The opinion of the court was delivered by: VANARTSDALEN
VANARTSDALEN, District Judge.
This action arises from a complaint by the plaintiffs, Trustees of the Property of Penn Central Transportation Company, seeking to enjoin a threatened strike by the defendants, Railroad Yardmasters of America (RYA). RYA answered and counterclaimed also requesting injunctive relief.
After the issuance of a temporary restraining order preventing a strike, the parties agreed that the court need only consider the two issues involving Section 6 notices of the Railway Labor Act (45 U.S.C. § 156)
concerning the abolishment of yardmasters' jobs and the programming or laying out of work by yardmasters for the next succeeding shift. Both of the disputes concern rates of pay, rules or working conditions; are thereby defined as major disputes, Elgin, Joliet and Eastern Railway Co. v. Burley, 325 U.S. 711, 722-724, 89 L. Ed. 1886, 65 S. Ct. 1282 (1945); and are subject to the notice and status quo provisions of Section 6 of the Railway Labor Act. This section requires the union and company to give thirty days' written notice of changes affecting rates of pay, rules or working conditions and that during the following bargaining period, from the date of the Section 6 notice to final mediation, there will be no changes in the existing rates of pay, rules, or working conditions. The purpose of the latter "status quo" provision is to avoid the employment of self-help by either party. Elgin, supra. As the Supreme Court stated in Detroit and Toledo Shore Line Railroad Co. v. United Transportation Union, 396 U.S. 142, 150, 24 L. Ed. 2d 325, 90 S. Ct. 294 (1969):
"The Act's status quo requirement is central to its design. Its immediate effect is to prevent the union from striking and management from doing anything that would justify a strike. In the long run, delaying the time when the parties can resort to self-help provides time for tempers to cool, helps create an atmosphere in which rational bargaining can occur, and permits the forces of public opinion to be mobilized in favor of a settlement without a strike or lockout."
To insure that there is no resort to self-help, this court has been given the responsibility of enforcing Section 6 through the use of injunctive relief. Shore Line, supra ; Southern Railway Co. v. Brotherhood of Locomotive Firemen and Enginemen, 119 U.S. App. D.C. 91, 337 F.2d 127 (1964); Manning v. American Airlines, Inc., 329 F.2d 32 (2nd Cir. 1964).
The pivotal issue in this dispute is establishing the status quo at the time of the Section 6 notice. The status quo has been defined to include "those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute." Shore Line, supra, 396 U.S. at 153; Baker v. United Transportation Union, AFL-CIO, 455 F.2d 149, 153 (3rd Cir. 1971).
The carrier contends that the abolishing of the yardmasters' positions is part of the status quo due to Rule 5-B-1 of the collective bargaining agreement permitting job abolishment on thirty-six hours' notice. It also cites Article IV of the agreement of April 27, 1956, which involves the assignment of work following the abolishment of a yardmaster position. The carrier also cites the hearing record where RYA admitted that the carrier had the right to abolish these jobs.
Under these circumstances, there is little question that the abolishment of yardmasters' jobs qualifies as part of the status quo. There is no clearer example of a "working condition or practice in effect prior to the time the dispute arose" than one which has been agreed upon by both the union and carrier, integrated into a written contract and exercised prior to the issuance of a Section 6 notice. In this case, the carrier's right to abolish yardmasters jobs is directly referred to in Rule 5-B-1 of the collective bargaining agreement effective since 1947. Also, Article IV of the 1956 agreement clearly infers that the carrier has the right to abolish jobs by its reference to the regulation of the assignment of work after a yardmaster's position has been abolished. In addition, RYA even admits that the company has this right.
The record indicates that the carrier not only has the right to abolish jobs but also that the right has been exercised prior to the present dispute. While the jobs were not as systematically abolished as after the Sharp Committee's evaluations, the record does show that the carrier had sporadically abolished jobs in sufficient numbers prior to any RYA protests to qualify the action as a working condition and part of the status quo.
Finally, where the right exists prior to the Section 6 notice, the issuance of the notice will not affect the working practice since it is part of the status quo prior to the incident. United Transportation Union, Local Lodge No. 31 v. St. Paul Union Depot Company, 434 F.2d 220 (8th Cir. 1970), cert. denied, 401 U.S. 975, 28 L. Ed. 2d 324, 91 S. Ct. 1194 (1971). For these reasons, the defendants will be denied injunctive relief against the plaintiffs' abolishment of yardmasters' positions.
Entirely different circumstances are present with respect to the issue of the yardmaster programming or "laying out" work beyond his tour of duty. The carrier contends that, during negotiation of the dispute, it can require the yardmaster to plan out work for the next succeeding shift since this procedure is again a working practice or condition and part of the status quo. The facts do not substantiate this allegation.