designated Award 282) was to "be binding on both the carrier and organization parties to the dispute and constitute a complete and final disposition of the aforesaid issues. . . (Section 3). The effective date of the Award was set at sixty days after filing in the United States District Court for the District of Columbia. According to Section 4 the Award was to "continue in force for such period as the arbitration board shall determine in its award, but not to exceed two years from the date the award takes effect, unless the parties agree otherwise." 10 It is this provision specifying the maximum mandatory duration that has sparked the issues we are now required to judge.

The Board met, held hearings, took evidence. It issued an Award that provided: "This Award shall continue in force for two years from the date it takes effect, unless the parties agree otherwise." An important extension agreement is that of the carriers and BLFE, which extended the termination date to March 30, 1966. Except for such agreement the Award expired at the close of the two year period on January 24, 1966.11

10 The measure was somewhat analogous to the legislative intervention in a 1916 rail dispute when Congress decreed that eight hours was to be the measure for a standard day in determining compensation, and forbade reduction in the standard day's wage until thirty days after findings were announced by a special commission created to study this system, to report back in six-to-nine months. The Supreme Court upheld this statute, characterizing it as a form of compulsory arbitration that was "limited" to a "reasonable period" fixed by the statute. See Wilson v. New, 243 U.S. 332, 345, 346, 351 (1917); Message from the President, supra note 7, at 4-5; S. Rep. No. 459, 88th Cong., 1st Sess. 8 (1963).

11 The parties and the District Court have all accepted and implemented the Award as effective January 25, 1964. With that date marking the first day of the two-year period it is

Award 282 held that the nearly two hundred carriers involved could eliminate ninety percent of the firemen positions, and set forth a procedure for dismissal and attrition. It was a staggering blow to the BLFE. The Award did not, however, authorize a single spasmodic discharge of thousands of firemen. Indeed, in some aspects it was "highly favorable to the employees," see In re Certain Carriers, Etc., 229 F. Supp. 259, 261 (D.D.C. 1964). Thus the Award guaranteed permanent employment for life, or until retirement or resignation, for every fireman who had been in active service for more than ten years, with a comparable job insured for all with service of two years or more. Those firemen with less than two years seniority were accorded severance allowances, amounting in some cases to six months pay. Under the terms of this Award the carriers have pruned eighteen thousand firemen from their ranks, paid out some $36,000,000 in separation benefits, and provided comparable jobs to twelve hundred former firemen.

On the crew consist issue, the Board determined that a single national standard would be inappropriate. It ruled that no change in crew consist be made except pursuant to the Award. Then it provided that where existing work rules required more or less than two trainmen, any party might give notice of a proposed change. If after conferences were held by the local properties no agree

clear that the full two-year period expired at the end of January 24, 1966. We see no valid basis for the assumption of the District Judge that the Award was in existence on January 25, 1966. It may be regrettable, but we consider the Award rendered on January 25, 1966, by a special board of adjustment with respect to a dispute between BRT and the Green Bay & Western Railroad Co. and Kewanee, Green Bay & Western Railroad Co. to be without legal significance, unless it has been adopted by agreement of the parties, a question not before us.

ment was forthcoming, the issue could be referred to a special board of adjustment created at the local level. The Award articulated a series of "guidelines" to be followed by these special boards in resolving particular disputes. Many crew consist agreements and special awards were made under this procedure.

Pursuant to Section 9 of the Railway Labor Act, 45 U.S.C. § 159 (1964), as incorporated by reference in Section 4 of Public Law 88-108, the unions sued in the District Court for the District of Columbia to impeach the Award. The attack was two-pronged. First, they contended that the statute authorizing compulsory arbitration in this context was unconstitutional as beyond the power of Congress, or in the alternative as delegating power to an administrative body without adequate specificity of standards. Second, the unions argued that the Award did not conform to the statute under which it claimed vitality. The District Court rejected both challenges, and both approved the statute and confirmed the Award. Brotherhood of Locomotive Firemen v. Chicago, B. & Q. R.R., 225 F.Supp. 11 (D.D.C. 1964). This court affirmed,12 118 U.S.App.D.C. 100, 331 F.2d 1020, and the Supreme Court denied certiorari, 377 U.S. 918 (1964).

In subsequent months there poured into the courts, here and elsewhere, a number of actions, some brought by unions and some by railroads, presenting a plethora of particular problems,18 but these skirmishes need not

12 One judge dissented on the ground that the constitutional issues should have been referred to a three-judge district court.

13 These actions were largely concerned with the proper construction of the statute or award in regard to individual fact situations. See, e.g., Brotherhood of Railroad Trainmen v. Certain Carriers, Etc., 121 U.S.App.D.C. 230, 349 F.2d 207 (1965); Brotherhood of Railroad Trainmen v. Chicago,

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detain us. What is critical to the situation now before us is this. Instead of using the two-year period specified by Congress and the Award to continue meaningful negotiations looking toward long range adjustments of the various vexing problems, guided by the experience gleaned from functioning under the Award's interim rules, the parties apparently focused on whether the expiration of the Award would leave them in a better position than they might achieve by return to the collective bargaining table, where some concessions might have to be made.

The positions adopted by the parties, distilled to their essentials, were as follows: The Unions believed that upon expiration of Award 282, authorized by Congress as a "final" settlement for a period "not to exceed two years," it would have no continuing significance. They assumed that immediately upon the expiration of the Award the status quo ante would revive and the National Diesel Agreements would once more control. This position was shared by the other unions who presumed the prior crew consist rules would return from a two year consignment to limbo. But as a hedge the unions also, during the effective period of the Award, served notices proposing in substance that on termination of the Award there would come into effect rules that were substantially similar to the old work rules, with relatively minor adjustments.

Not surprisingly, the carriers took a different view. As they saw it, the status created by Award 282 had an enduring quality that transcended the formal effective

M., St. P. & Pac. R.R., 120 U.S.App.D.C. 295, 345 F.2d 985 (1965); Atchison, T. & S.F.Ry. v. Brotherhood of Railroad Trainmen, 324 F.2d 899 (7th Cir. 1963); In re Certain Carriers, Etc., 231 F.Supp. 519 (D.D.C. 1964); Brotherhood of Railroad Trainmen v. Missouri Pac.R.R., 230 F.Supp. 197 (E.D.Mo. 1964); In re Certain Carriers, Etc., 229 F.Supp. 259 (D.D.C. 1964).

period of that Award. But they too, "just in case," served counter-proposals on the unions to preserve the benefits the Award had carved for them. As will appear in greater detail, the carriers declined to discuss the merits of any of these notices at the few conferences that were held prior to the termination of the Award, reasoning that although Public Law 88-108 and the Award permitted bargaining during that period they nevertheless stopped short of imposing a legal duty to do so. These are the two central questions of these appeals: What rules were in force the day after Award 282 expired? What was the duty of the parties to bargain about changing those rules, and when did it arise?

These appeals reach us from the orders disposing of suits and counter-suits seeking declaratory and injunctive relief, brought by the carriers and by the Brotherhood of Locomotive Firemen and Enginemen (BLFE), the Brotherhood of Railroad Trainmen (BRT), and Switchmen's Union of North American (SUNA), and the Order of Railway Conductors and Brakemen (ORCB). See generally Bangor & A.R.R. v. Brotherhood of Locomotive Firemen, 253 F.Supp. 682 (D.D.C. 1966) (Nos. 20192, 20193, 20215, and 20216); Akron & B. Belt R.R. v. Brotherhood of Railroad Trainmen, 250 F.Supp. 691, 252 F.Supp. 207 (D.D.C. 1966) (Nos. 20152, 20172), supplemented, 254 F. Supp. 306 (D.D.C. 1966) (Nos. 20229, and 20249); Akron & B. Belt R.R. v. Order of Railway Conductors, 253 F. Supp. 538 (D.D.C. 1966) (Nos. 20158 and 20191).14

14 Appeal No. 20316, Brotherhood of Locomotive Firemen (and H. E. Gilbert) v. Bangor & A.R.R., arises from an adjudication of contempt for violating a temporary restraining order. Although it was argued together with these cases, it presents different questions and is being considered separately. See Bangor & A.R.R. v. Brotherhood of Locomotive Firemen, 255 F.Supp. 476 (D.D.C. 1966).