One of the conditions placed on the railroads by the STB was they could not implement the carve-up until agreements were either reached with labor or arbitrations crammed agreements down labor's throat. Recognizing that Morgan and Owen found every mechanism possible to give the railroads the upper hand when implementing their mergers, nearly mandating that the railroads abrogate collective bargaining agreements and/or portions of collective bargaining agreements, most rail unions, despite militant rhetoric at the beginning, reached voluntary agreements with CSX and NS, the two acquiring railroads.

The BMWE was unable to reach agreement because both NS and CSX were demanding huge seniority districts through combining and realigning existing districts, lower long term wages for many who will work on the new system and an expansion of areas which our members would have to protect in order to be eligible for protection either under Feb. 7 or the Conrail Sub Plan. The offers made by CSX and NS were so severe that the BMWE, which is more adversely affected by the types of changes the STB allows than the other crafts, rejected them.

Under the law which governs these kinds of mergers, the railroads have a right to force the union into binding arbitration if they do not reach agreement during negotiations. In mid-November 1998 CSX, NS and Conrail served notice on BMWE and the few other crafts which did not reach agreement to arbitrate. Under the operating plans of CSX and NS, a small portion of the Conrail property--the areas around Detroit, New York City and Philadelphia--would continue to be operated by Conrail for the benefit of CSX and NS. The arbitrations were conducted December 15 - 19, 1998 and heard by Arbitrator William Fredenberger. He is required to issue a decision by January 14, 1999 as this Journal goes to press.

The BMWE Committees on Conrail, CSX and NS, after recognizing that the railroads simply would not accept a reasonable compromise, began polling the membership on the properties to find out whether they were willing to strike illegally, possibly go to jail and lose their jobs or if they would accept the legally binding decision of the arbitrator even if it were adverse to the BMWE. An opinion poll was sent to each member on CSX, Conrail and NS (not a strike ballot) in order to do the research required.

On December 11, 1998, CSX, NS and Conrail went to the U.S. District Court for the Western District of Virginia in Roanoke, Virginia and obtained a temporary restraining order forbidding the union from even discussing illegal striking or taking any action encouraging a strike, even though the union had not threatened a strike. A restraining order, under law, is only good for seven days unless the parties agree to extend it. If the parties do not agree to extend it, then there is a hearing for a Preliminary Injunction. On December 18, 1998 the railroads' motion for a preliminary injunction, which would make the terms of the restraining order binding throughout the whole course of the litigation until altered by the judge, was denied.

BMWE recognized that the restraining order and the terms of the proposed injunction violated the U. S. Constitution First Amendment rights of the membership. However many were extremely nervous because the Judge, Judge Turk, had worked for a firm which represented a predecessor of the NS prior to his being a judge and his former law partner, Bill Poff, regularly represented NS in prior injunction actions before Judge Turk and was representing NS before Judge Turk in this action also.

The railroads attempted to get the BMWE to agree not to strike and not to encourage its members to strike. They made it clear they considered the First Amendment protected opinion poll to encourage the members to strike. BMWE agreed not to strike, as it was not its intention to strike over the implementation of the Conrail carve-up anyway. However BMWE would not agree to refrain from encouraging its members from considering a strike.

Judge Turk ruled in favor of BMWE and denied the railroads' motion for a preliminary injunction. He recognized that BMWE had the absolute First Amendment right to conduct an opinion poll about the members' willingness to engage in a strike. He also made it clear that in the event there was a strike, he would be available 24 hours a day, 7 days a week to handle the situation.

CSX and NS intend to implement the transaction as of March 1, 1999. This means they will apportion the Conrail forces between the two railroads and function as competitors as of that date.