to authorize a strike at this time. We are still analyzing these issues to determine the best course of action to take." (Parties' Joint Exhibit 33, at 2.)
28. On December 3, 1993, the BMWE submitted a proposal to Conrail for expedited arbitration of nine specific questions regarding two of the issues contained in the BMWE's July 14, 1993 strike authorization memorandum. (Parties' Joint Exhibit 30, Attachment A.) The BMWE's proposal included a provision at Paragraph 3 in which the parties would effectively waive their rights to object to the procedural disposition of the selected disputes prior to arbitration. (Parties' Joint Exhibit 30, at 2.) The BMWE's proposal would result in arbitration of those designated disputes without going through the on-the-property investigation steps, which are part of the existing grievance procedure under Rule 26 of the 1982 Agreement. (Parties' Joint Exhibit 30, at 2; Trial Transcript, 12/14/93, at 55-56 (Swert).) Chairman Dodd explained that the proposal was designed to expedite the resolution of the nine specified questions in a manner that permitted both the BMWE and Conrail to present all evidence relevant to the resolution of those questions. (Trial Transcript, 12/15/93, at 22 (Dodd).)
29. Defendant General Chairman Dodd admits that all of the disputes encompassed by the BMWE's December 3, 1993 proposal could be handled by the customary Rule 26 procedure in the 1982 Agreement, and subsequently, arbitrated before adjustment boards already established by the parties. (Trial Transcript, 12/15/93, at 31 (Dodd).) However, Defendant Dodd stated that the BMWE is not satisfied with the existing grievance procedure under Rule 26. (Trial Transcript, 12/15/93, at 22 (Dodd).)
30. In its 1988 Section 6 Notice, the BMWE proposed to "establish a progressive discipline/grievance program." (Joint Exhibit 3, Attachment A, #5.) The BMWE did not, however, submit a proposal to change the Rule 26 procedure or the time limits for handling of grievances. (Trial Transcript, 12/14/93, at 118 (Domzalski); 12/15/93, at 32 (Dodd).)
31. The 1992 Agreement did not alter Rule 26 of the 1982 Agreement. (Trial Transcript, 12/14/93, at 71 (Swert).) The moratorium clause, Article XIV in the 1992 Agreement bars BMWE from serving a Section 6 Notice to change the Rule 26 grievance procedure for the period of the current contract, or until November 1994. (Parties' Joint Exhibit 2, at 16; Trial Transcript, 12/14/93, at 71-72 (Swert).)
32. On December 10, 1993, Conrail's Senior Director of Labor Relations Lipps responded to the BMWE's proposal, explaining that Conrail was amenable to following the steps of Rule 26 with respect to the disputes listed in Attachment A of the BMWE's December 3, 1993 letter. (Parties' Joint Exhibit 34.)
33. Conrail acknowledged that the parties may mutually agree to establish any particular agreement regarding any rule in the collective bargaining agreement. (Trial Transcript, 12/14/93, at 73 (Swert).) Nonetheless, it rejected the BMWE's December 3, 1993 proposal, stating only that if the selected disputes progressed through the requisite steps provided in Rule 26 and remained unresolved, they should proceed to arbitration. (Parties' Joint Exhibit 34; Trial Transcript, 12/14/93, at 60 (Swert).)
34. The BMWE presently is not refusing to resolve disputes either through conferences, the submission of claims, or arbitration. (Trial Transcript, 12/14/93, at 57-58, 65-66 (Swert); at 115-17 (Domzalski).)
35. The BMWE has not called upon any of its members to refuse to work for Conrail even under circumstances in which the BMWE has identified hazardous working conditions. (Trial Transcript, 12/15/93, at 24 (Dodd).)
36. With respect to the issues herein discussed, there has been no further strike vote, no strike date has been set, and the BMWE has not notified Conrail of any intention to strike. (Trial Transcript, 12/15/93, at 17, 19-20, 26-28 (Dodd); at 53 (Cassese); Parties' Joint Exhibit 33.)
D. Effect of a Threatened Strike on Conrail.
37. According to testimony by Conrail National Sales Director Janice M. McNeal, Conrail lost approximately $ 15.2 million from business interruptions during the last period of labor unrest in June 1992. (Trial Transcript, 12/14/93, at 24 (McNeal).)
38. McNeal also testified that because Conrail is in a highly competitive business in which it must compete with a large number of other transportation companies such as the trucking industry, any disruption in Conrail's services could in time result in the permanent loss of customers' good will and future business upon which Conrail relies for its livelihood. (Trial Transcript, 12/14/93, at 24-27 (McNeal).)
39. Conrail National Sales Director McNeal admitted, however, that at present no shipper had taken business away from Conrail as a result of any actions taken by the BMWE with respect to the eleven issues cited in the BMWE strike authorization memorandum of July 14, 1993. (Trial Transcript, 12/14/93, at 27 (McNeal).)
40. In the BMWE's July 14, 1993 strike authorization memorandum, the BMWE recognizes that:
. . . even during a short strike or threatened strike, Conrail stands to lose substantial revenue. In addition, customers who have alternatives to ship other than rail, often will not deal with a railroad that has labor problems. This by itself puts tremendous pressure on management to resolve disputes rather than face continued unrest from the membership.
(Parties' Joint Exhibit 4, at 1-2.)
E. Procedural Posture of Conrail's Present Civil Action.
41. On or about September 8, 1993, Conrail filed an Amended Complaint seeking declaratory and injunctive relief under the RLA against the BMWE's threatened job action over the disputes identified in the BMWE's July 14, 1993 strike authorization memorandum, which Conrail perceived to be minor disputes.
Conrail also sought declaratory and injunctive relief under the Federal Railroad Safety Act ("FRSA") with respect to the issue identified as "Rail Safety Act Strikes" in the BMWE's strike authorization memorandum, to require the BMWE to follow the FRSA's mandate that such disputes be resolved by the procedures under Section 3 of the RLA. On or about October 8, 1993, Conrail filed a motion for preliminary injunctive relief. By stipulation of the parties, the hearing on Conrail's motion was consolidated with a trial on the merits, which also encompassed Conrail's request for a declaratory judgment. The hearing was held on December 14 and 15, 1993.
A. Injunctive Relief
The issues before this court are not unfamiliar. See Conrail v. Brotherhood of Maintenance of Way Employees, 781 F. Supp. 360 (E.D. Pa. 1991); Conrail v. Brotherhood of Maintenance of Way Employees, 735 F. Supp. 1265 (E.D. Pa. 1990). Unfortunately, we are again in the position of having to intervene in yet another labor dispute arising between these same parties. The plaintiff's Amended Complaint, as illuminated by the voluminous record and numerous memoranda of law submitted in this case, indicates that Conrail is again seeking an injunction and declaratory judgment against the defendant Union's alleged "threatened strike" over "minor disputes" in violation of the RLA, Section 3. 45 U.S.C. § 153. At this stage of our present review, we submit the now familiar brief resume outlining the legal landscape governing railroad labor disputes.
In order to obtain a permanent injunction against the defendant BMWE, Conrail must show both that the Union threatens to strike and such a strike would be unlawful under the Railway Labor Act, 45 U.S.C. §§ 151 et seq. Conrail can demonstrate this by showing that the Union has failed to follow the procedures mandated by the Railway Labor Act for the particular type of dispute at issue, and that the Union has turned to precluded avenues of economic self-help.
See Conrail v. Brotherhood of Maintenance of Way Employees, 781 F. Supp. at 369. Beyond this, the district court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity -- whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance. See Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 254, 90 S. Ct. 1583, 1594, 26 L. Ed. 2d 199 (1970) (citations omitted), overruled on other grounds by Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 96 S. Ct. 3141, 49 L. Ed. 2d 1022 (1976).
As an initial matter, we have no doubt that the issues presented in this action represent "labor disputes" within the meaning of § 13(c) of the Norris-LaGuardia Act, 29 U.S.C. § 113(c). It is also plain that § 4 of that Act, 29 U.S.C. § 104, would prohibit us from issuing an injunction if it is applicable to our functioning under the Railway Labor Act.
At this advanced stage of the RLA's development, the courts have thoroughly reviewed the interrelation of these two Acts. The Supreme Court has spoken with pristine clarity in holding that the Norris-LaGuardia Act cannot be read alone in matters dealing with railway labor disputes. Virginian R. Co. v. System Federation, etc., 300 U.S. 515, 563, 81 L. Ed. 789, 57 S. Ct. 592 (1937); Brotherhood of R. Trainmen v. Chicago R. & I.R.R. Co., 353 U.S. 30, 39-40, 1 L. Ed. 2d 622, 77 S. Ct. 635 (1957). The Supreme Court went on to say that there must be an accommodation of the Norris-Laguardia Act and the Railway Labor Act so that the obvious purpose in the enactment of each is preserved, with the balance favoring the later and more limited one. Id. ; see also, Chicago & N.W. R. Co. v. United Transp. Union, 402 U.S. 570, 582-83, n. 18, 29 L. Ed. 2d 187, 91 S. Ct. 1731 (1971).
It suffices to say that the Norris-LaGuardia Act can affect our present review only so far as its provisions are found not to render moot the requirements of § 2, First and § 3 of the Railway Labor Act, which mandates that railroads and unions "exert every reasonable effort to make and maintain agreements," 45 U.S.C. § 152 First, and sets forth the required procedure for resolving "minor disputes." 45 U.S.C. § 153.
It is true enough that, as said in the Virginian Railway case, supra, 300 U.S. at 563, 57 S. Ct. at 607, the Norris-LaGuardia Act does not deprive the federal courts of jurisdiction to enjoin compliance with the various mandates of the RLA, but we also note that this exception is necessarily a limited one. Even when a violation of a specific mandate of the RLA is shown, "courts should hesitate to fix upon the injunctive remedy . . . unless that remedy alone can effectively guard the plaintiff's right." International Ass'n of Machinists v. Street, 367 U.S. 740, 773, 81 S. Ct. 1784, 1802, 6 L. Ed. 2d 1141 (1961). Moreover, not all provisions of the Norris-LaGuardia Act are rendered nugatory by the Supreme Court's rulings. Indeed, we find in this case that the requirements of § 9 of the Norris-LaGuardia Act are especially relevant:
every restraining order or injunction granted in a case involving or growing out of a labor dispute shall include only a prohibition of such specific act or acts as may be expressly complained of in the bill of complaint or petition filed in such case and as shall be expressly included in . . . findings of fact made and filed by the court.
29 U.S.C. § 109. The evident purpose of this section was not to preclude mandatory injunctions, but to forbid blanket injunctions against labor unions, which are usually prohibitory in form. See Virginian R. Co. v. System Federation, etc., 300 U.S. at 563.
When an injunction is sought, judicial restraint is called for not only by the scheme and structure of the RLA but the Norris-LaGuardia Act as well. An injunction should not issue unless there is "some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive." United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S. Ct. 894, 97 L. Ed. 1303 (1953). When we granted Conrail's previous two injunction requests, such a danger plainly existed. In 1991, the Union had received nearly one hundred percent approval from all lodges to support a strike, the Union also had informed Conrail and the general public that a work stoppage would be conducted, the General Chairmen of the local Federations had requested strike approval from the BMWE executive committees, and the Union stipulated that it intended to strike on January 1, 1992. See Conrail v. Brotherhood of Maintenance of Way Employees, 781 F. Supp. at 367-68. In the Conrail suit brought in 1990, counsel for the BMWE stated at oral argument that the Union conceded that it was, in fact, threatening a strike and a strike date had been set. See Conrail v. Brotherhood of Maintenance of Way Employees, 735 F. Supp. at 1266.
Conrail emphasizes that because this is the third time the parties have been before the court in connection with the Union's "strike threats," this court cannot expect the Union to comply with statutory mandates without a permanent injunction order. We agree with the plaintiff insofar as the Supreme Court has instructed us to consider, in a review of a request for injunctive relief, "the bona fides of the expressed intent to comply, the effectiveness of the discontinuance and, in some cases, the character of the past violations." United States v. W.T. Grant Co., supra, 345 U.S. at 633. We also agree with Conrail that the Union in the past has threatened strikes over issues communicated to management in notices of proposed changes to bargaining agreements, which are authorized by the RLA under Section 6 of that statute. 45 U.S.C. § 156. We refuse to conclude from this past activity, however, that the Union has a proclivity to strike over every arbitrable grievance and that a broad injunction is mandated.
To sustain a prospective injunction, a court must make detailed findings concerning the pattern of past work stoppages and the likelihood of their recurrence under the specific set of facts presented to the court, and relate those findings to the legal framework governing the labor dispute (here, the RLA). See United States Steel Corp. v. United Mine Workers, 534 F.2d 1063, 1077 (3d Cir. 1976) (in § 301 suit under Labor Management Relations Act, holding that court may grant prospective injunction, but only if it specifically finds on evidence in the record that types of violations that have occurred in past are likely to recur, or finds that new and different kinds of violations are expected to occur in future). A union's past action alone cannot be the basis for enjoining future conduct. A court must also find sufficient indicia of an intended job action in a current dispute. The best evidence of such an intention is the ultimatum of a strike date. Because unions are not always so formal about their intentions, however, courts should look to specific communications between a union and the carrier for warnings of future unilateral action, or refusals to participate in mediation or arbitration, or ongoing conduct within the union to prepare for and pursue self-help.
A court called on to classify infant disputes between a carrier and union and to issue blanket injunctions runs a grave risk of becoming ensnarled in the private relationship of the parties and substituting its interpretation of the collective bargaining agreement for that of the arbitrator or mediator. An injunction ordered on issues that are unripe for determination inhibits the exercise of important employee rights and induces the carrier to resort to the courts for injunction orders rather than to concentrate efforts in negotiation. Thus, creating incentives for carriers to come to the courts as a means of first resort, sacrifices the national policy of avoiding interference in the private economic affairs of the parties without furthering the cause of compromise and agreement.
With respect to the issues herein discussed, the Union has not notified Conrail of any intention to seek self-help in resolving any of the grievances currently pending before Conrail, no strike date has been set, and the General Chairmen of the two local Federations, which authorized a strike on eleven general issues, have testified at trial that they have no intentions of seeking further strike authorization against Conrail.
Findings of Fact, 18, 23-24, 27, 34-36. In fact, the only evidence presented by Conrail of the BMWE's threat to strike is a letter that was circulated internally to two local Federations on July 14, 1993 seeking initial strike authority on eleven broad working condition issues. Findings of Fact, 17-18. Conrail could not point to any action taken by the Union to follow up on its strike authorization letter.
Findings of Fact, 34-36.
Indeed, the defendants, specifically the General Chairmen from the two local Federations that voted on strike authorization with regard to the aforementioned eleven issues, have contended before this court that there is no need for an injunction because the Union is not threatening a strike against Conrail. General Chairman of the Pennsylvania Federation of the BMWE, Jedd Dodd, gave the following testimony at trial, which we reproduce here in pertinent part:
Q: Speaking today, regarding the current actions that Conrail has taken, do you have any intention as general chairman of the Pennsylvania federation of seeking to implement the further strike authorization steps under Article 20?