The opinion of the court was delivered by: GREEN
Clifford Scott Green, District Judge.
Plaintiff, The United Transportation Union ("Union") commenced this action to obtain an injunction to prevent Penn Central Transportation Company ("Company"), defendant herein, from unilaterally establishing an extra list of trainmen for the Prior Right Pittsburgh Seniority District at Conway, Pennsylvania. The Union contends that it is entitled to an injunction to maintain the "status quo" in accordance with the provisions of the Railway Labor Act of 1926, 45 U.S.C. § 151 et seq. The Union charges that the changes Penn Central attempted to establish unilaterally are presently the subject of conference, pursuant to a Section 6 notice served on the Union by Penn Central on April 19, 1973.
Establish a new rule which permits the Carrier to:
1. Establish or abolish terminals or locations for outpost or outlying assignments.
2. Establish on or off duty points within existing terminals.
3. Establish an extra list at any location where there is sufficient work to warrant an extra list, or combine separate extra lists headquartered at the same location.
Existing transportation arrangements and arbitraries, special or constructive allowances requiring payment to employees account being required to fill assignments that commence and/or are relieved within existing terminals or at outlying points are eliminated."
The proposals are still in conference; however, the Company has taken steps to unilaterally establish an extra list at Conway. Penn Central contends it has a right to establish the "extra list" at Conway and argues it is merely continuing a practice under which the Penn Central or its predecessor has previously taken action without union concurrence. Thus, Penn Central argues an injunction should not issue because the "status quo" includes its prior established right to unilaterally make the change.
An answer to the Complaint was filed by Penn Central, which admitted most of the averments of the complaint; thereafter, we held an evidentiary hearing to permit the parties to present evidence on the remaining issue in dispute, i.e., what constitutes the "status quo". Pending determination by the Court, Penn Central has agreed to refrain from establishing the extra list.
From the admissions in the pleadings and the evidence presented at hearing, we find the following facts: Plaintiff, a labor organization, represents trainmen employed by Penn Central. There is in effect a collective bargaining agreement between the parties, but said agreement is silent on the respective rights of the parties in regard to establishing extra lists at outlying points.
Conway, Pennsylvania, is an outlying point and has been so considered since approximately 1956. Also, regular crews are assigned to Conway. The extra list at Pittsburgh is used to supply extra trainmen when needed at Conway; an extra trainman is paid from the time he reports to the Pittsburgh yard and thus is paid for the time involved in traveling to Conway; in addition, the Penn Central is required to provide the extra trainmen transportation between Pittsburgh and the outlying point, Conway. One of the reasons Penn Central seeks to establish the extra list at Conway and reduce the one at Pittsburgh is to save the extra pay, and transportation costs involved in having the men report at Pittsburgh. Of course, the Union objects to the change because it will eliminate the "deadhead pay", and thus adversely affect its members in their pay, rules and working conditions.
Penn Central recognizes the obligation of both parties to maintain the "status quo" but by testimony of Mr. Swert, its director of labor relations, attempted to prove that the right to establish the extra list at Conway exists as a matter of established practice and custom and, therefore, is a part of the status quo to be maintained. Mr. Swert testified that extra lists, similar to the Pittsburgh Seniority District trainmens' extra list proposed for Conway, had been previously established without Union approval and cited the New York extra list at Harrisburg, the Conemaugh extra list at Conway, the Williamsport extra list at Enola, and a Chesapeake extra list at Philadelphia. Notwithstanding the testimony of Mr. Swert, there is no evidence, except in regard to the Conemaugh list, that any of the previously established extra lists involved the establishment of a list at an outlying point, or that such extra lists involved the crucial factor of eliminating deadhead pay. In regard to the Conemaugh extra list at Conway, Mr. Swert testified to the establishment of an extra list at Conway in 1932; he testified Conway was an outlying point. Mr. Wible, the General Chairman of the Union, denied that an outlying point was involved in the Conemaugh extra list at Conway. After considering the conflicting testimony, we cannot find as a fact, as Penn Central urges, that the Conemaugh-Conway extra list involved the establishment of an extra list at an outlying point, under the circumstances there involved, or that it resulted in the loss of deadhead pay to the trainmen.
One other item of evidence warrants mention in regard to the issue of ...