May 24, 2005
R. L. Marceau, Assistant President
Members, National Negotiating Committee
Re: Update on Status of National Handling
Dear Sirs and Brothers:
This is to update you on events that have occurred since national negotiations broke off and we
sued the National Carriers' Conference Committee ("NCCC") carriers on March 15,2005 in federal court in East S1. Louis, Illinois.
On April 24, 2005, the NCCC applied for mediation by the National Mediation Board ("NMB"). On April 26, 2005, the NMB assigned the application File No.
CA-6881 and asked the parties to submit comments by May 10,2005 regarding whether the application was proper. On May 9,2005, UTU submitted
comments contending the parties' issues were not ripe for mediation because UTU sued the NCCC carriers about the impropriety of the carriers' Section 6
notice(s) on crew consist and FELA, enclosing a file-stamped copy of the Complaint in East St. Louis. The NCCC did not respond.
On May 16,2005, the NMB noted UTU' s position, and the fact the NCCC did not respond, but decided that there was an "insufficient basis to refrain from
mediation," and docketed the NCCC application as CaseNo.A-13369. OnMay23, 2005, UTU International President Paul C. Thompson wrote to the Board
members complaining this was not the same treatment two carriers received when they. litigated a moratorium issue against UTU, namely, no docketing by
the board until the federal court ruled (copy enclosed).
On May 18,2005, the NCCC carriers moved for summary judgment in the East 8t. Louis case and asked for expedited consideration. On May 20,2005, the
Court denied the NCCC motion for expedited handling saying oral argument would be scheduled after a normal briefing schedule (copy enclosed). UTU's
papers are due June 17, 2005, and we will move for summary judgment then. My understanding is the Court will probably schedule oral argument
sometime in August.
Fraternally yours,
Paul C. Thompson International President
May 23, 2005
FAX and Federal Express (priority)
Harry Hoglander, Chairman
Edward Fitzmaurice, Member
Read Van de Water, Member
National Mediation Board
Re: Application for Mediation Services for NCCC and UTU
NMB Case No. A-13369 (NMB FileNo. CA-6881)
Dear Chairman Hoglander and Members Fitzmaurice and Van de Water:
This is in reply to the Board's May 16,2005 letter docketing the NCCC' s application in subject case despite UTU' s May 9, 2005 comments advising,
among other things, that UTU had sued NCCC carriers in federal court in East St. Louis, Illinois over inclusion of local crew consist agreements barred by
moratorium and a proposed joint legislative proposal to alter, amend or repeal of the Federal Employers' Liability Act in their Section 6 notices. The
assignment of a mediator on these two issues in these circumstances is contrary to recent Board practice in nearly identical circumstances involving CSX
Transportation, Inc., Conrail and UTU. .
On November 22, 2002, UTU invoked the mediation services of the Board in a dispute with CSX
Transportation, Inc. and Conrail concerning use of push cars and adjustments to crew consist. Those carriers claimed the UTU Section 6 notices
were barred by the moratorium in the UTU National Agreement, listing cases to that effect with the First Division, NRAB on November 25, 2002. The Board
assigned the cases "CA" numbers, CA -6772 (Conrail) and CA-6773 (CSX) on November 26, 2002, and requested comments of the parties. The carriers
responded December 11, 2002, advising of the listing of the cases with the NRAB First Division and the filing of a lawsuit on December 6, 2002 seeking
declaratory and injunctive relief from progression of UTU' s Section 6 notices. This is all detailed in the Board's September 17, 2003 letter to the parties
(copy enclosed), importantly noting that "Between December 11, 2002 and August 29,2003, the Board took no action on UTU's application…”
As further noted in the Board' s September 17,2003 letter, on August 29, 2003, UTU renewed its request for mediation after the August 28, 2003 decision
of the district court finding the moratorium in the UTU National Agreement did not apply. At that point, the Board, in its September 17, 2003 letter, relving
on the August 28, 2003 district court decision, docketed UTU' s application, assigned it NMB Case No. A -13279 and advised a mediator would be
assigned. While the district court was later reversed by he Sixth Circuit [395 F.3d 365], by that time the moratorium issue had become moot.
In comparison, in this case, even though UTU in its May 9,2005 comments enclosed a file stamped copy of its March 15, 2005 lawsuit in federal court in
East St. Louis, and the carriers did n01 respond, the Board nonetheless docketed the NCCC application and advised a mediator would be assigned. This
is not the same trea1ment given to CSX and Conrail on their moratorium issue in 2002-03. At a minimum UTU expected the local crew consist moratorium
and FELA legislation issues would be held out of mediation until the district court decision, although it would make more sense not to docket the NCCC's
application at all since those are the only two issues the carriers want to discuss. The NCCC carriers have moved for summary judgment in the case and
sought expedited consideration by the cour1
UTU respectfully requests that it be treated like Conrail and CSX. There is no sound reason to, include the two issues in litigation in mediation (or in fact to
mediate at all) until after the district court' decision is known. UTU only seeks application of the Board's recent practice in this regard.
Sincerely,
Paul C. Thompson
International President
Enclosure
cc: Mary Johnson, General Counsel- NMB (FAX)
Robert F. Allen. Chairman-NCCC (FAX)