# Brotherhood of Locomotive Firemen and Enginemen v. National Mediation Board, National Mediation Board v. Brotherhood of Locomotive Engineers > Court of Appeals for the D.C. Circuit · April 29, 1969 · 410 F.2d 1025 URL: https://www.frixlaw.com/law-library/cases/9454567 ## Case - **Full name:** BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellant, v. NATIONAL MEDIATION BOARD Et Al. Appellees; NATIONAL MEDIATION BOARD, Appellant, v. BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Appellee - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** April 29, 1969 - **Citations:** 410 F.2d 1025 - **Precedential status:** Published - **Opinion:** Concurrence by Burger - **Judges:** Burger, Wright, Tamm - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9454567 ## Opinion text BURGER, Circuit Judge, with whom Circuit Judge TAMM joins, concurring: I concur in the result reached and add these comments to clarify the basis upon which I rely. The arguments advanced by the Carriers and the Engineers are very persuasive as to what kind of statute the public interest called for, as the instant case and others abundantly illustrate. Unfortunately, however, an inadequate statutory scheme leaves the problems posed by this litigation “falling between two stools.” The absence of existing apprentices seems to preclude there being a “representational” dispute within the meaning of Section 2, Ninth. As for the two presently operating apprentice programs Section 2, Ninth once again appears unavailing since there is no dispute among those apprentices as *1035 to who their representative is. Finally, since none of the parties claim that the instant dispute arises under their respective collective bargaining agreements, it appears that the National Railroad Adjustment Board does not have jurisdiction. Thus, despite a clearly expressed broad Congressional intent that “(a) 11 disputes * * * be considered with all expedition” 45 U.S.C. § 152 , Second, the shippers — and the public, which ultimately bears the burdens of all such conflicts — must continue to pay a heavy cost for the futile controversy which has engaged the courts and numerous litigants for so long. Added to this, we cannot be unmindful that for over thirty years the Mediation Board has construed the statute as not vesting in it the powers which Appellees urge. The controversies which led to the creation of Board 282 and subsequent events might well cause some doubts in Congress as to the Board’s construction of the statute, but this cannot encourage us, as admittedly is often done by judges, to read the statute — a euphemism for re-writing it — as we think Congress should have drafted it. That the course we are compelled to follow may well prolong this unhappy history of wasteful strife is a matter within the power and province of Congress. The broad claims of the Firemen concerning the historical connection between their craft and the training of railroad engineers deserves some comment. The Firemen were indeed the source of most of those who became railroad engineers, but they were the “pupils,” not the teachers; the Engineers trained and taught the Firemen so that they could qualify for engineer jobs when available. To what extent this gives the Firemen a “bargainable interest” in the apprenticeship training program of the Carriers is not clear, but we are not called upon now to define its scope. Moreover, if anything is clear from the history which preceded Board 282 it is that due to gradual technological changes the traditional functions of the Firemen had become largely obsolete, but the carriers, shippers and the public were not relieved of the burden of unneeded employees. To remedy this problem Congress created Board 282; after lengthy hearings the Board permitted the carriers to extinguish up to ninety percent of the Firemen’s jobs. Although the 282 Award has, by its terms, expired, this Court has recognized that its obvious legislative intent has not thereby lost its vitality. 1 The primary interest of the Firemen at this juncture is to ensure that their promotional rights are not impaired by having graduate apprentices supersede existing firemen in their quest to become engineers. History and logic, then, may well point toward confining the “bargainable interest” of the Firemen solely to the effect and not the internal structure of the apprentice programs; this is not to say that both of the contending Unions may not have some contribution to make within the framework of their experience. Today’s result places the carriers in the unhappy position of having to deal simultaneously with two rival unions whose bargaining demands will very likely conflict if a high order of union statesmanship is not forthcoming. Moreover, since both Unions have now been given the right to serve Section 6 notices, the disappointed Union will have the right to strike once the statutory procedures are exhausted. The Carriers will be able neither to avoid nor to resolve a strike by agreeing with the striking union without the risk of violating its obligation not to depart unilaterally from its agreement with the other Union. Although I consider this to be a wholly unsatisfactory resolution I can find nothing in the statute which permits the Court to impose a different result. . See Brotherhood of L.F.E. v. Bangor & Aroostook R.R. Co., No. 20,472 (D.C.Cir. decided February 28, 1969) ; Brotherhood of Railroad Trainmen v. Akron & B.B. R.R. Co., 128 U.S.App.D.C. 59 , 385 F.2d 581 passim (1967), cert. denied, 390 U.S. 923 , 88 S.Ct. 852 , 19 L.Ed.2d 983 (1968). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9454567. Public record. Not legal advice.