# Chicago, Rock Island and Pacific Railroad Co. v. Hardin

> District Court, W.D. Arkansas · June 7, 1965 · 239 F. Supp. 1

URL: https://www.frixlaw.com/law-library/cases/9762086

## Case

- **Full name:** CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, the Kansas City Southern Railway Company, Missouri Pacific Railroad Company, St. Louis-San Francisco Railway Company, St. Louis Southwestern Railway Company, and the Texas and Pacific Railway Company, Plaintiffs, v. Robert N. HARDIN, Prosecuting Attorney for the Seventh Judicial Circuit of Arkansas, Successor in Office to Lawson E. Glover, and John W. Goodson, Prosecuting Attorney for the Eighth Judicial Circuit of Arkansas, Defendants, and Brotherhood of Locomotive Engineers, Brotherhood of Locomotive Firemen and Enginemen, Brotherhood of Railroad Trainmen, Order of Railway Conductors and Brakemen, and Switchmen’s Union of North America, Intervenors
- **Court:** District Court, W.D. Arkansas
- **Decided:** June 7, 1965
- **Citations:** 239 F. Supp. 1
- **Precedential status:** Published
- **Opinion:** Dissent by Van Oosterhout
- **Judges:** Van Oosterhout, Miller, Henley
- **Cited by:** 11 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/9762086

## Opinion text

VAN OOSTERHOUT, Circuit Judge
(dissenting).
The pleadings, the issues and the background material relating to this case are *30 well stated in Judge Miller’s opinion. All of us appear to be in agreement that the summary judgment cannot be granted upon grounds two or three of the motion for summary judgment because of the existence of a dispute as to relevant material facts. I am inclined to agree that no genuine issue as to material facts exists with respect to ground one of the motion based upon preemption.
I have no doubt whatever that the federal government can, if it chooses, by appropriate legislation preempt the field covered by the Arkansas statutes here under attack. My difficulty is that I cannot find any reasonable basis for saying that Congress has taken such action. The majority, in support of preemption, relies principally upon Public Law 88-108 discussed in the majority opinion. If it be assumed that the collective bargaining notices served by the parties became a part of the act providing for arbitration, I find nothing in the notices specifically proposing the abrogation of state crew consist statutes. Such statutes in my view do not fall within the notice provision for a rule to provide that “all agreements, rules, regulations, interpretations, and practices, however established, which conflict with the provisions of paragraph 1 of this rule shall be eliminated.” In my view, parties cannot by agreement abrogate valid state safety statutes. The state of Arkansas has a legitimate interest in its health and safety laws.
While Public Law 88-108 contemplates that the arbitrators follow collective bargaining procedures as closely as possible and that an award shall be binding upon the parties, it is difficult to glean any Congressional intention that the arbitrators were given power to abrogate state safety laws.
In Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 , 83 S.Ct. 1210, 1217 , 10 L.Ed.2d 248 , the Supreme Court states:
“The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives.
“The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained. See, e. g., Huron Portland Cement Co. v. Detroit [ 362 U. S. 440 , 80 S.Ct. 813 , 4 L.Ed.2d 852 ], supra.”
Thus contrary to the view of my brothers, I can find nothing in Public Law 88-108 or the arbitration award which manifests a Congressional intent to preempt the field covered by the Arkansas statutes.
I cannot agree that the legislative history if it is relevant helps the plaintiffs’ position. At most it shows a controversy among members of Congress as to whether state safety regulations will be preempted by the law. I believe the majority’s reliance upon the fact that the bill did not contain a disclaimer of an intent to preempt rests upon a weak foundation. I think it is more significant that there is no express or fairly implied statement of any attempt to preempt.
The Arkansas statutes which we are here considering have been before the Supreme Court on three prior occasions, as set out in the majority opinion, and they have been branded as measures for the protection of public safety. In Missouri Pacific R. R. v. Norwood, 283 U.S. 249, 252 , 51 S.Ct. 458, 460 , 75 L.Ed. 1010 , the Court in holding the Arkansas statutes valid, states: “Both acts were sustained as valid exertions of police power for the promotion of safety of employees *31 and others.” And at p. 256, 51 S.Ct. at page 462 , in responding to a query as to whether Congress has preempted the field, answers, “[i]n the absence of a clearly expressed purpose so to do Congress will not be held to have intended to prevent the exertion of the police power of the states for the regulation of the number of men to be employed in such crews.”
The Supreme Court on numerous occasions has recognized the favorable position of state laws designed to protect safety. Local 24, International Brotherhood of Teamsters etc. v. Oliver, 358 U.S. 283, 297 , 79 S.Ct. 297 , 3 L.Ed.2d 312 ; Terminal R. R. Ass’n of St. Louis v. Brotherhood of Railroad Trainmen, 318 U.S. 1 , 63 S.Ct. 420 , 87 L.Ed. 571 ; Reid v. State of Colorado, 187 U.S. 137 , 23 S.Ct. 92 , 47 L.Ed. 108 .
Oliver did not involve a safety regulation but a conflict between federal labor law and a state antitrust law. The Court observes, “We have not here a case of a collective bargaining agreement in conflict with a local health or safety regulation ; the conflict here is between the federally sanctioned agreement and state policy which seeks specifically to adjust relationships in the world of commerce.” 358 U.S. 283, 297 , 79 S.Ct. 297, 305 .
California v. Taylor, 353 U.S. 553 , 77 S.Ct. 1037 , 1 L.Ed.2d 1034 , heavily relied upon by the majority, is clearly distinguishable. There the conflicting statute was a state civil service statute which prohibited collective bargaining and such a statute, of course, would obviously defeat the purpose of the federal Railway Labor Act. At footnote 8, p. 560, 77 S.Ct., p. 1041, Terminal R. R. Ass’n of St. Louis v. Brotherhood, supra, is cited and the observation is made that such case did not concern a conflict between federally protected collective bargaining and inconsistent state laws.
I recognize that my conclusion that Congress did not expressly preempt the field does not settle the matter. In Local 20, Teamsters, Chauffeurs and Helpers Union v. Morton, 377 U.S. 252, 258 , 84 S.Ct. 1253, 1257 , 12 L.Ed.2d 280 , the matter of the test to be applied when Congress has not expressly preempted the field is thus stated:
“The basic question, in other words, is whether ‘in a case such as this, incompatible doctrines of local law must give way to principles of federal labor law.’ Local 174, Teamsters, etc. v. Lucas Flour Co., 369 U.S. 95, 102 [ 82 S.Ct. 571, 576 , 7 L.Ed.2d 593 ]. The answer to that question ultimately depends upon whether the application of state law in this kind of case would operate to frustrate the purpose of the federal legislation.”
In the Florida Lime & Avocado Growers case, supra, the Court in applying the foregoing test found that while the California standards were more restrictive than the federal standards, there was no inevitable collision between the two schemes of regulation, despite of the dissimilarity of the standards. At p. 146 of 373 U.S., at p. 1219 of 83 S.Ct. the Court says that “[w]hile it is conceded that the California statute is not a health measure, neither logic nor precedent invites any distinction between state regulations designed to keep unhealthful or unsafe commodities off the grocer’s shelves, and those designed to prevent the deception of consumers.”
Similarly here, it is possible for the plaintiff railroad to comply with the state law without violating federal law or the arbitration award. The award provides only for the minimum consist crews; there is no maximum fixed.
While it would be inconvenient and burdensome for the railroad to comply with the state safety laws, it is possible for them to comply with both the arbitration award and the state law. The arbitration board apparently did not consider the state statute preempted as in dealing with the firemen issue, the Board at p. *32 35 of its opinion mentions the laws of states requiring a fireman as a reason why individual carriers will not immediately stop assigning firemen on many freight engine crews. There is language in the Board’s findings and in the findings of the Presidential Commission indicating that the question of the validity of crew consist laws is beyond the scope of the problem assigned to them.
I recognize that a strong case can be made for preemption in the situation here presented. Possibly it might have been wiser for Congress to have specifically preempted the field. However, such is a matter for Congressional determination, not judicial determination.
In my view, the real issue is the conflict between the operation of the federal statutes regulating interstate commerce and the Railway Labor Act and the state statutes under attack. It is quite true that courts at the present time take a more liberal view on the preemption issue than was held thirty or more years ago when the cases dealing with the precise Arkansas statutes here involved were decided. If this were a case of first impression, I might be persuaded to join in the majority opinion. It is possible that the Supreme Court as presently constituted might take a different view on the preemption problem presented in the earlier Arkansas cases. However, if any change is to be made in the application of preemption here, it should be made by the Supreme Court, not this court. The prior specific findings in the earlier cases, that the Interstate Commerce Act and the Railway Labor Act did not preempt the field covered by the Arkansas safety statutes, and the favored position given by the Supreme Court to state safety statutes, restrain me from holding that federal preemption here exists.
In ruling upon this motion, we do not reach the issue of whether the safety standards imposed by the Arkansas statutes are reasonable in the light of present conditions.
I would with some reluctance deny the motion for summary judgment on the preemption issue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9762086. Public record. Not legal advice.