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March 28, 1994



The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN


 In this action for injunctive and declaratory relief, plaintiff Consolidated Rail Corporation ("Conrail") seeks a permanent injunction preventing a threatened strike by the defendant Brotherhood of Maintenance of Way Employees ("BMWE" or "the Union"). Plaintiff also seeks a declaration by this court that, under the provisions of the Railway Labor Act ("RLA"), 45 U.S.C. § 151, et seq., the defendant is prohibited from striking over issues that are "minor disputes", which are subject to the compulsory requirements created by Section 3 of the RLA, 45 U.S.C. § 153, for resolution of such disputes. Conrail also submits that the Union's concerns over safety issues must progress through arbitration pursuant to the Federal Railroad Safety Act ("FRSA"), 45 U.S.C. §§ 421-447. Finally, Conrail's Amended Complaint seeks declaratory and injunctive relief for the Union's breach of its duty under Section 2 First of the RLA to "make and maintain" agreements. *fn1" 45 U.S.C. § 152 First. The Union filed an Answer to Conrail's Amended Complaint on October 1, 1993.

 Conrail has filed a Motion for Preliminary Injunction, in which it sought relief for the reasons set forth in its Amended Complaint. The Union opposed Conrail's Motion and filed a Motion to Dismiss under Fed. R. Civ. P. 12(c).

 A hearing on these matters was held on December 14 and 15, 1993. At the hearing, the parties agreed to consolidate the preliminary injunction matter with the trial on the merits pursuant to Fed. R. Civ. P. 65(a)(2). See Trial Transcript, 12/14/93, at 3. The court then heard argument on the Union's Motion to Dismiss, and subsequently denied said Motion. See Trial Transcript, 12/15/93, at 13. The parties' proceeded to present evidence on the merits of the case.

 At the conclusion of the above proceedings and upon request of the court, the parties submitted proposed findings of fact. After giving careful consideration to the parties' submissions, we have arrived at the following factual findings, which are fully set forth below.


 A. The Parties.

 1. Plaintiff Conrail is a Pennsylvania corporation with its principal office at Two Commerce Square, 2001 Market Street, 17th Floor, Philadelphia, Pennsylvania. Conrail operates a railroad system in fourteen states and Canada, utilizing approximately 26,000 employees (including 22,300 employees covered by collective bargaining agreements), and is a "carrier" for purposes of the Railway Labor Act ("RLA").

 2. Defendant BMWE is an unincorporated labor organization in which employees participate and which exists for the purpose of, among other things, dealing with carriers pursuant to the RLA concerning rates of pay, rules and working conditions, including negotiation and administration of collective bargaining agreements. The principal office of the International BMWE is located at Suite 200, 26555 Evergreen Road, Southfield, Michigan 48076-4225.

 3. Defendant BMWE also is organized into subdivisions, known as Federations. Each Federation is directed by a General Chairman. All of the BMWE Federations and General Chairmen representing Conrail employees are named as defendants in this matter and are referred to hereinafter as "BMWE" or "the Union".

 5. Both Conrail and BMWE are actively doing business within the Eastern District of Pennsylvania.

 B. Historical Background.

 6. A collective bargaining agreement between the parties has been in effect pursuant to the RLA since February 1, 1982 ("the 1982 Agreement"). (Parties' Joint Exhibit 1.)

 7. The 1982 Agreement contains a three-step grievance procedure at Rule 26 for resolving employee claims and grievances. (Parties' Joint Exhibit 1.)

 8. On or about June 10, 1988, BMWE served on Conrail notices under Section 6 of the RLA proposing that the parties' existing agreements and/or practices be changed in a number of ways. (Parties' Joint Exhibit 3; Plaintiff's Exhibit 31.)

 9. BMWE supplemented its 1988 Section 6 notices on October 29, 1991 (Plaintiff's Exhibit 1) and January 30, 1992 (Plaintiff's Exhibit 2).

 10. The parties bargained for several years over these proposals and other proposals exchanged by the parties. Eventually the parties exhausted the mediation procedures of the RLA, without reaching agreement. (Trial Transcript, 12/14/93, at 34.)

 11. The National Mediation Board ("NMB") found pursuant to Section 10 of the RLA, 45 U.S.C. § 160, that the ongoing dispute between the BMWE and Conrail threatened substantially to interrupt interstate commerce to a degree such as to deprive various sections of the country of essential transportation service. The NMB notified President Bush of its findings. (Parties' Joint Exhibit 8, at 4 and Appendix A.)

 12. President Bush appointed Presidential Emergency Board No. 221 ("PEB 221") pursuant to Section 10 of the RLA, 45 U.S.C. § 160, to investigate the dispute and report to him and the parties on the recommended settlement. (Trial Transcript, 12/14/93, at 34 (Swert); Parties' Joint Exhibit 8, at Appendix A.)

 13. PEB 221 conducted several days of hearings and investigated the dispute between the parties. PEB 221 issued a thirty-eight page report ("the PEB 221 report") in May 1992, making findings and recommendations on all the issues in dispute. (Parties' Joint Exhibit 8.)

 14. The PEB 221 report addressed each of the proposals made by BMWE, either expressly or by recommending to retain the status quo. All issues not mentioned in the Report were deemed withdrawn. (Trial Transcript, 12/14/93, at 35 (Swert); Parties' Joint Exhibit 8, at 37.)

 15. After PEB 221 issued its report, the parties entered an agreement dated July 28, 1992 ("the 1992 Agreement"), amending and supplementing many of the provisions in the 1982 Agreement. (Parties' Joint Exhibit 2.)

 16. Article XIV of the 1992 Agreement - known as the moratorium provision - provides for a multi-year period of labor peace by precluding efforts to coerce changes in agreements and practices. It provides in pertinent part:

(b) . . . no party to this agreement shall serve, prior to November 1, 1994 . . . any notice or proposal for the purpose of changing the subject matter of the provisions of this Agreement or which proposes matters covered by the proposals of the parties cited in Section 1(a) of this Article [i.e., the BMWE's Section 6 notices of April 2, 1984 and June 10, 1988 as supplemented by BMWE's proposals dated October 29, 1991 and January 30, 1992, and Conrail's Section 6 notices of April 9, 1984 and March 8, 1989], and any proposals in pending notices relating to such subject matters are hereby withdrawn ...
(c) Proposals that may be pursued in accordance with the various Articles of this Agreement are not affected by Section 1(b). Such proposals may be progressed within, but not beyond, the specific procedures for peacefully resolving disputes provided for in the relevant article of the Agreement that addresses such subject matters or in the Railway Labor Act, as amended.
(d) . . . no party to this Agreement shall serve or progress, prior to November 1, 1994 . . . any notice or proposal which might properly have been served when the last moratorium ended on July 1, 1988.

 (Parties' Joint Exhibit 2, at 16-17.)

 C. The Current Dispute.

 17. On July 14, 1993, the General Chairmen of two local BMWE Federations, the Pennsylvania Federation and Consolidated Rail System Federation, circulated a memorandum to its members. In that memorandum, Chairmen Jedd Dodd and James P. Cassese sought authority to conduct a strike over eleven "potential strike issues," which represent what the BMWE perceive to be issues "currently in dispute with Conrail." (Parties' Joint Exhibit 4; Trial Transcript, 12/15/93, at 15-16 (Dodd).)

 18. The BMWE Federations did not send their July 14, 1993 strike authorization memorandum to Conrail or to any customers of Conrail. (Trial Transcript, 12/15/93, at 17 (Dodd).)

 19. In particular, the BMWE July 14, 1993 memorandum requested strike authorization with respect to the following issues: (1) the definition of a production gang; (2) the designation of appropriate qualifications for positions; (3) meals and lodging for heavy bridge gangs in the Building and Bridges Department; (4) alleged violations of seniority district lines; (5) the right to strike in the event of railroad violations of the Rail Safety Act of 1970; (6) Conrail's policy of leasing track, which allows Conrail to avoid the union contract; (7) management's alleged failure in providing clean and sanitary camp cars and requiring members of the camp car to perform their own cleaning; (8) Conrail's unilateral promotion of safety, labor/management and quality programs for employees; (9) Conrail's practice of listing several machines on the same job advertisement; (10) employees' right to a fair and impartial disciplinary hearing; and (11) Conrail's practice of contracting out maintenance of way work. (Parties' Joint Exhibit 4.)

 20. The July 14, 1993 BMWE Memorandum requested that "the Lodges meet and provide [the General Chairmen] with this strike authority now, so that at some time in the future, should it become appropriate, we can initiate strike action in an expeditious manner." (Parties' Joint Exhibit 4.)

 21. The Union sought strike authority so that it could "exert greater leverage in bargaining with Conrail." (Parties' Joint Exhibit 4; Trial Transcript, 12/15/93, at 40 (Dodd).)

 22. On or about September 21, 1993, the local lodges of the Pennsylvania Federation and Consolidated Rail System Federation cast their votes affirming authorization for a system strike under Article XX, Section 13 of the BMWE Constitution and Bylaws. (Parties' Joint Exhibit 33.)

 23. No further steps have been taken by either Chairman Dodd or Cassese to obtain authority within the BMWE hierarchy as required by the BMWE constitution and by-laws to strike Conrail. (Trial ...

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