Appendix — Forgett v. United States

Supreme Court brief1968

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INTHE

apne Court of the Rnited States

- Octose TERM, -1967

—— 7 |

No.

BnorHERH00p OF hemsnte TRAINMEN, ET AL.,

Petitioners,

7s oh

THe AKRON & BARBERTON Bevr-Ramroap CoMPAny,

ET AL.,. Respondents.

N 0. ’ v

ORDER OF RalLway Conpucrors AND BRAKEMEN,

. | Petitioner,

‘Tas AKRON & BARBERTON BELT RAILROAD Oompany,

; * ET AL., Respondents.

gs deste No.

. Tue Axroy, & Barserton Bev RamRoap CoMPANy,

: ET AL., Petitioners, .

v..

BroTHERHOOD OF RarLRoap TRAINMEN, ET AL.,

Respondents.

. APPENDICES TO PETITIONS FOR WRIT OF CER-

TIORARI TO THE UNITED STATES COURT OF |

APPEALS FOR THE DISTRICT OF COLUMBIA —

Purss or Brnon S. Anan Paurrine, Inc., Wasummeron, D. C.

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- APPENDIX: : : o ‘e: Page

‘A—Opinion of District Soin, March 3, 1966 ...2.... 2a

B—Opinion of District Court March 28, 1966 . ere 2. 16a:

C—Opinion of District Court, April 19, 1966 ........ 25a

— D—Opinion of. District Court, May 19, 1966 .... seco OUR, -

-E—Opinion of Court of Appeals, May 12, 1967....... 38a.

F—Opinion of Court of Appeals, July 31, 1967 ...... 75a |

H—Memorandum and Order of Court of Appeals, ii: :

tember 21, 1967, in Brotherhood of Locomotive

Firemen and Enginémen viBangor and Aroostock.

Railroad Company, et al., Nos. 20192, 20193, 20215

G—Judgment of Court of Appeals, July 31, 1967 ..:. Q9la .

rs ones 6 ob cede decbanuneieuase< . 92a

a by Arbitratjon Board No. 989, November 26,

Ee SCL ieeoseeeees cieipabssbecena ca Peerrrrarr 95a

J. —Statutes Involved . ry re ee ne eee llia

7 IN THE 7 |

‘Supreme Court of the United States

- OcroBER ‘TERM, 1967 ©

No. °

BROTHERHOOD OF Ramnoap TRAINMEN, ET AL.,

aa . Petitioners, , Ee

V. ;

THE ‘nie & BARBERTON BELT RAILROAD CoMPANY,

ET AL., ——

No. 7 tan Pere Sagar aes

ORDER OF Ratway CoNDUCTORS AND VesPeen

Petitioner,

A 3

THE AKRON & BARBERTON BELT Risnsas CoPANy,

ET AL., Renpenaenee. j

| : re

_ No. |

THE AKRON & BARBERTON BELT Rartroab CoMPANY, ©

ET AL., Petitioners, -

Vv.

BROTHERHOOD OF ’ RalLRoaD TRAINMEN, ET. AL.,

a Sime i _ Respondents.

APPENDICES TO PETITIONS FOR WRIT OF. CER.

_ TIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA

aia ll

pena 2a

APPENDIX A

Opinion

ee M. Shea and ‘Richard =. Conway, both of Wash- ;

ington, D. C., for the plaintiffs.

Milton Kramer, of Washington, D. C, for defendants

Brotherhood of Railroad Trainmen, et al.

James D. Hill, of Washington, D. C., for defendant.

Order of or Conductors en Brakemen.

. This is an action brought by a group of railroads .

against several organizations of railway employees for an

injunction against calling a strike and for a declaratory -

‘judgment. The suit was instituted in the light. of the

termination of the effective period of two years, of an

’ award of a compulsory arbitration directed’ by Congress

in respect to certain issues in controversy between the

parties. A temporary restraining order was granted at

the institution of this action and has been extended by

consent -to continue until aftér the trial.

Pursuant to a pretrial : order made with the consent

| of the parties a hearing has been lield on the following

two basie issues in advance of the trial: (a) the effect-

of the expiration of the period during which the Award of

Arbitration Board No. 282.continued in force, as provided

in Section IV of that Award pursuant to Section 4 of

Public Law 88-108; and (b) whether the Norris-LaGuardia

Act is applicable to the -plaintiffs’ request’ for injunctive

relief. This decision deals with these two. questions. ;

At the. outset it is desirable to analyze ‘and summarize

the somewhat. complicated system prescribed \by the Rail-

way Labor Act (Act of. May 20, 1926, 44 Stat, O17, as

amended, 45 U.S.C. §§151. et seq.) for amicable adjust-

. me

ments of labor disputes in the railroad industry. The’

-statute contains a well conceived, carefully planned,

elaborate scheme for the settlement of differences between:

carriers and their employees by meang of negotiation,

‘mediation, and arbitration. It provides in: detail certain

specified sips to be pursued in chronological order when

such a cofitroversy arises. Neither employers nor employ-

ees may unilaterally make or insist on ‘any changes ‘in

agreements affecting rates of pay, rules, or working con-

ditions, without first exhausting the remedies provided by

the Act.

- The initial iia: to be me either“by a carrier or an

organization representing employees, in the event that

- it desires an alteration in an ‘existing arrangement, is

to serve a 30-days’ written notice of its intention to achieve

the change. The time and place for the beginning of con-

. ferences between the representatives of the parties, are

then to be agreed upon within ten days after the receipt

of the -nétice. The date of the first conference must be

within the 30-day period provided in the notice, Railway

Labor Act, Sec. 5, 45 U.S.C. $155.

. The Act further provided for the creation of the.

National Mediation Board appointed by the President,

Railway Labor Act, Sec. 4, 45 U.S.C. §154. If the negotia-

tions between the parties do not result in a settlement of

the dispute, either party is authorized to invoke the assist-

ance of the Mediation Board. In addition the Mediation

Board is empowered to proffer its services on its“own

initiative, in case of an, emergency.

an the negotiations and mediation still do not lead to.

' an adjustment of the controversy, it may be submitted to

a board of arbitration by agreement of the parties, Rail-

‘way Labor Act, Sec. 7, 45 US. C. §§157, . While such -

an arbitration is purely voluntary, the s te prescribes

the manner of creation and organization of such a board

AGS pO tiie aa icles

and the aiaibinin to be followed by it, The award is _/

- ing-and enforcible. ;

If ‘either party. dnsitone.' to submit to arbitration wil

the controversy remains unsettled, and if the National -

- Mediation Board is. of the opinion that the dispute would .

substantially threaten to interrupt interstate commerce,

the Board is required to notify the President. The Board

is also to notify the parties that its mediation efforts:have

failed. No change may then be made by the parties for

30 days. An Emergency Board may then be appointed by

the President to invéstigate the. dispute. The Emergency

-, Board must report to the President within 30 days from

4 ‘the date of its appointment. After the-creation of such

_-. ‘Board, and for 30 days after the Board has made its

report, no change except by agreement may be made by

the parties in. the conditions out of — the digpate

arose. :

At the weaiaisans of the last cities 30-day period

the remedies provided by the’ Railway Labor Act are

exhausted. If the dispute still remains. unresolved, pre- .

sumably either party may act unilaterally and resort to

self help. To state it more bluntly, the railroads may then |

proceed to muke the desired changes in rates of pay, rules:

or working conditions, or discharge employees whom they

deem unnecessary. On the other hand, representatives of

the employees may call them out on strike. Industrial

strife is in the offing. If the dispute is on.a sufficiently

large scale, the possibilities of serious detrimental and

even disastrougy effects to. thé public, are readily envis-.

aged. Lack of any further safeguard after the last stage

of. the statutory arrangement is passed, is the Achilles’

heel of the enlightened and beneficent plan provided by

- the Railway Labor Act. This possible contingency is

manifestly inescapable. It was hoped and even expected .

that the controversy would be settled at one of the

earliest stages before the impasse is reached. In. most

cases the hope and the ‘expectation proved well-founded. |

Unfortunately in the nationwide controversy involved in

this litigation, they were not. realized.’

The plan for the ‘amicable adjustment of disputes con-

sisting of a series of successive steps ‘and stages that have .

been described, is not hortatory or precatory. It is legally

- binding and enforceable, except that dn arbitration cannot

be compelled. The leading decision. on this subject is

Virginian Railway Co. v. System Federation No. 40, 300

U.S. 515, in which Mr. Justice Stone (later Chief Justice)

wrote an historic opinion, speaking: ‘for a unanimous

bench. This case breathed the spirit of life into the Rail-

way Labor Act. It overruled the contention of a railroad ©

company that there was.no duty to negotiate pursuant to -

the notices referred-to in the statute. The Court held that -

on the contrary tl was an obligation enforceable by

legal sanctions to fe under the various provisions: of the

. Act. Specifically t

the parties to negotiate after notices were served, and

' that this duty was enforceable by judicial decree. It-sus-

tained an order compelling the carrier to do so. On, this .

point Mr. Justice Stone wrote as follows (pp. 548, 552):

The statiite does not undertake to aetna agree-

ment between the employer and employees, but

it does command those preliminary nope without

.. 2 The Railway Labor Aet also established a erallel system for

the disposition of another category of controversies, known as

‘‘minor disputes’’, i.e., disputes growing out of grievances or out of ©

_ the interpretation or application of agreements concerning rates of

_pay, rules, or working conditions, as distinguished from ‘‘major

- ° disputes’’, i.e., controversies concerning what agreements should be

‘reached to govern such matters. For the purpose of determining

minor disputes the statute created a National Railroad Adjustment

Board, whose duty is to hear and decide such disputes, and whose °

decisions are legally binding. Any party to such a dispute. may

_ vefer it to the Adjustment Board, Railway Labor Act, Sec. 3, 45

_ U.S.C. § 153. In effect, a system of compulsory arbitration was

created and has been in es since 1926.

e Court ruled that it was the duty of . -

: which, no spiiniene éan be reached. It at least re-

quires the employer to meet and confer with the

authorized represéntative of its employees, to —

. listen to their complaisits, to make reasonable

‘effort to compose ‘differences—in short, to enter

nto a negotiation for the settlement of labor dis-

‘putes such as is contemplated by §2, First.

eThe peaceable settlement of labor controversies,

especially where they may seriously impair fhe

ability of an interstate rail carrier to perform

its service to the. Public, is a matter of -public

_concérn. ;

s * *. ‘e _* : : .

_. The fact that Congress has indicated its purpose

to make negotiation obligatory is in itself a

_ declaration of .public interest and policy which

rele. be persuasive in inducing courts to give

relie , ‘.

These views were reiterated in Elgin, J. & E. R. Co. v.

Burley, 325 U, S. 711, 719, in which Mr. Justice Rutledge ,

wrote the opinion.

The present controversy had its inception on Novem-

-- ber -2,. 1959, when most of the Class 1 railroads in the

United States; many of whom are plaintiffs i in the present

action, served notices, pursuant’ to Section. 5 of the Rails.

way Labor Act, on organizations of railroad employees,

stating that it was. their intention to. eliminate numerous

employees whose services ‘had become unnecessary as a

result of technological improvements. Specifically it -was

proposed to eliminate firemen on diesel engines in freight |

_and yard service, and to reduce the number of members

of the train crew on numerous runs. On September 7,

1960, employees’ organizations served counter-noticesg the

purport of which indicated an intention to maintain the |

existing ‘conditions. As soon as the first group of notices

was served, the remedies prescribed by ‘the Railway Labor -

Act were immediately. brought into play: negotiations

took place; the services of the hpnnen Board were in-

voked; and eventually when arbittation was declined, an

Emergency Board was created and made its report. Dur-

ing the intervening period, t!i-: President. appointed. .a

_ Special Commission which likewnse’ made. an investigation

and presented a report. . . 2%

With the creation of the Emergency Board and the .

submission of its report, all the remedies afforded by the

Railway Labor Act were exhausted without avail. As the |

Supreme Court held in connection with this controversy}

the parties were then relegated to self help in adjusting

their disputes, ‘Brotherhood of Locomotive Engineers v.

B. é O. R. Co., 372 U. S. 284. In other words, the rail-

roads were free’ to dispense with the services of numerous

employees in accordance with the proposal contained. in.

their notices of November 2, 1959. On the other hand, the

railroad employees were free to strike.’

By this time it was August, 1963. The country was

confronted with the specter of a nationwide railroad

strike, which, would paralyze industry. Disaster and havoc

were feared. Congress acted ‘expeditiously in order to

stave off such a catastrophe. Joint Resolution . was

promptly passed, which became law on August 28, 1963,

- Public Law No. 88-108, 77 Stat. 129. It commanded a

“compulsory arbitration of the two principal issues in dis- ,

. - pute between the parties.

‘This enactment expressly prohibited any pn in

_ yates of pay, rules, or working conditions covered by the

groups of notices respectjvely served by the carriers and

labor organizations, except by agreement or ‘pursuant to

an arbitration award. It explicitly prohibited any strike ©

or lock-out (See. 1). It directed the creation of an Anbi-

2 A brief sais of the dispute is contained in the opinion of this

- Court in Brotherhood of Locomotive Firemen and Enginemen v.

Chicago, B. & Q. Ry. Co., 225 F. Supp. 11, 14- oe.

“ ee ee es = =~ 4

- tration Board to pass on two issues: the use of firemen on

‘other than steam-powered locomotives in freight and yard

_ service;, and the size and composition of train’ crews

(Sees. :2 and 3): ‘Thus, Congress in effect orderéd a com-

pulsory arbitration of these two basic issues. It provided

that the arbitration should be conducted pursuant to the

applicable sections of the ‘Railway Labor Act, 45 U.S.C.

§157-159. The award of the Board was to be binding on

the parties. It was to be filed in the United States District

Court for the District of Columbia. It was to be in effect

for such period as the Arbitration. Board should deter-

mine, but not to exceed two years from its effective date,

unless the parties agreed otherwise. In all other respects,

the statute waseto — 180 duds from the date of its

enactment.

The Arbitration Board, which eventually became known

as Board No. 282, .was constituted as reqititred by the Joint

Resolution, held hearings, and rendered its award on No-

vember 26, 1963. The effective date of the award was

January 25, 1964. Pursuant to its terms, it remained in

effect until Jauary 25, 1966, except. that it was extended

for a couple of months by agreement in respect.to several, °

though. not all, of the organizations of ‘employees. .

The pertinent provisions of the award may be sum-

marized as: follows. First, the Board held ‘that firemen

were no longer necessary on diesel engines in freight or

"yard service, except as to ten percent of the firemen, who

might be needed for exceptional situations. Nevertheless,

all firemen yegularly employed on the effective date of the

award who Had a seniority: of ten years or more, were to

retain their status and were to continue in their employ-

ment until death, resignation, retirement, or discharge for

"cause. In other words, firemen in this group were accorded

practically a pernianent tenure for the period of their

working’ lives. Firemen who had seniority of between. two

to ten years were to receive the same rights, with the

| qualification, however, that they might be offered other .

comparable positions for which they were or could become *

qualified. In that event they were guaranteed five years’

service in their new employment.: Firemen whaxhad been |

hired within two years prior to the effective date of the

award were not to be entitled to retain their employment

or seniority rights, but if their services were terminated, .

. they were to receive a lump sum termination. allowance.

_ The second issue determined by the Board was to fix,

the size of train crews, referred to in the parlance of the

industry as “crew consist”. No change was to be made in —

any stipulated. number of members of train’ crews except

by agreement or pursuant to the provisions of the award.

. Any party was permitted to give notice of a proposed

ehange and if no agreement was reached, the issue could

be referred by either party’ for decision to a Special

Board of Adjustment, to be created in -the manner pre-

scribed by the award. A series of specific and concrete

principles were formulated and*prescribed by the award

to be followed by these special tribunals.

There has been considerable : activity pursuant to: the

award. Numerous firemen with less than two years’ tenure

have been separated from the service and received separa-_

- tion: allowances. Many firemen who had been employed for

periods from two to ten years have been offered. other

comparable jobs. Some of these men have -accepted these —

offers. Others have declined to do so. In that event the

- termination of their employment was accompanied. by a

separation allowance. Some of the firemen who had more

than ten years experience, in the riatural order of events, -

retired, resigned, or died. It is not disputed that there has.

been a considerable reduction in the number. of firemen

working in freight and‘ yard service on diesel engines.

Undoubtedly, many still remain, even though the Board

“held that all but ten percent of the firemen were surplus-

age. So, too, numerous steps were. taken pursuant ‘to the

10a

‘award which résulted in the reduction of the size of ‘train.

_ erews on many train runs ‘throughout the. country, : anes Nar

“The question now arises * ‘what is the. ‘effect of the

i Ce termination of: the effectiveness of the award, and .what

a } may the parties do ds a.result of the fact that the effec- —

ate Ere tive =period of: the award. ee come. to an end, Both the

Ve 2 - award and the: special Act of Wongress are silent on this

| point. ‘There’ are several possible. eonstructions of the Act aes Neat

sin this regard. It ‘is urged in behalf. of the labor- 6r se

ip nizations that the moment the, effectiveness of the a qd 7

-“-+-eomés -to, an end, it must be}deemed ja nullity and ‘the ;

: status quo that: éxisted before : ‘the, ’ passage of. the Joint — oh

. Resolution of August, 28, 1963, : is restored.- That status’ s

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7A quo. ig, as‘urged by. counsel for the, labor- otganizations, ; \ in

oi og" + that, the rules; rates of pay, ‘and’ working conditions that...

4 3 existed prior .to. the service. of the notices pf 1959 and . = *

: pe B=. 11960, « ‘respectively, ¢ came back in ‘effect, and that. parties --° :

area: | _ May resort-to ‘self help-to compel. their “enforcement; In * . - ; eee

| e a ei other words, it is. contendéd that labor organizations may”. ee

=a 4 * call & strike unless the railroads re-hireAhe seme, number chee

it: ‘eee: firemen that they he id’ in service= -previously* ‘to August .

” $28, 1963, and restore “th size"of every train crew all Re es ae |

gy: othe country to the size:p sevailing prior to that’ date. Were 2 ear ,

such a construction. to be; adopted, everything that has ,

been - -accomplished | by’. the award: would be wiped out

“except ’ ‘that ‘the. — pedi will have been. _—— for £

Mir years. Oh ain | ea pike.

“ . ‘ag heretofore: stated, ‘many aia have ‘been die Co \

s Gharged, and many y jobs. have been, abol shed. : It would ;

\\ seem. unreasonable ‘to construe the Act ff Congress and

4.- the award made pursuant to’it, as requiring:-restoration

a..: cof ‘these positions’ and” a re-hiring of thousands of employ- oe

| ees, More than that,if-the- award. becomes: a-nullity, the

ie perpnanent tenure that was. granted by the award to large a

3 ‘groups: of. “employees would be” wiped out. The: vested ~

“Tights of ‘an: — namber “of | mppereees probably ore

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large, would be immediately destroyed. This is partici.

larly true of the firemen who had more than ten years’

_ service. Their. Jifetime security »would be abrogated.. A

question would arise whether the firemen who had accepted .

¢ comparable jobs with a guaranty of five yefrs’ employ-

me:

“ment, would, havé a right to: insist on the guaranty. Any

employee‘ who was re-hired would have to pay“ back the

severance allowance: that he had received. Such would be:

the logical result if’ the defendants’ contention weré

adopted. As a matter of fact, it would probably be impos-

sible to find ‘immediately a sufficient number of qualified .

employees to fill the requirements that would-be artificially

created. Surely Arbitration Board No. 282,:composed of

. -eminent and experienced men, could not have contemplated

that its work would go for naught, and that the perma-

nent rights accorded by it to thousands’ of. employees

would be destroyed at the end: of the two-year period.. The

. eonelusion is inescapable that the construction urged by

the labor organizations ‘is unreasonable and would defeat

the very purpose of the legislation and of the award.

The Court rejects it.

The doctrine that all statutes ere receive a sensible

and reasonable construction * is equally applicable to the

award involved in this case. This Court is of the opinion

‘and concludes that the results of the termination of the

effective period of the award of Board 282, are as follows.

_No Aurther steps may, be taken. under the award by.

4 either side after.its termination date. Thus. the railroads

may not discharge any more firemen PUrsua to the.

: provisions. of the award, and they may not initiate. pro- °

ceedings. under the award fcr changing the size and com--

position of train crews on specified runs. They may not

“take any other - ‘steps under the award.’ So,’ too, no ew

privileges wmay.accrue iis ae under the terms of the

8 United States v. Kirby, 74 U.S. 482. United States \ v. Amoricah

Trucking Ass’ ns., 310-U. S. 534. Nie age

ere neo eT ee Ge erie ait pate ee

as . ;

12a 7 aie

award. On the other hand, what has been accoinplished’

under the award remains and is not to be nullified or

wiped out. Any rights that became vested under the award

_while it was in effect, remain vested. Thus, ithe firemen

with seniority of more than ten years, who were granted

“/ permanent status for their working lives, retain that

status. It is not annulled. The firemen who aocepted com-

parable jobs with a:guaranty of* five years’ employment, |

preserve the guaranty. Members of train crews who were

accorded permianent status under the. award do not

relinquish it. The employees who have received severance

pay may retain the money. They are under no*obligation

to refund it, as they might have been were the award to

be regarded as a nullity. If the award were a nullity, a

serious question would arise whether an action in quasi- _

contract for money had and received under a mutual ©

mistake; might not lie in behalf of the‘carriers against

ail formér employees who received severance pay. |

On the other hand, the carriers have a right to maintain |

‘the status that. existed on the date of the ‘termination

of the award. The vacancies’ caused by the separation of

firemen’ and members of train crews pursuant’ to the

award, may remain unfilled. To require the railroads

to go out and immediately find qualified employees to fill.

the places that have been abolished would-be not: only

unreasonable, but would lead*to an absurdity. °

| The Court is further of the opinion that the steps

_ taken under the award have resulted in the creation of

a new status. The fact that the arbitration was compul-:

sory rather than voluntary does not affect’ the problem.

Rt eS

The award of the compulsory arbitration for this purpose ~ .

“must” be regarded as faking the place of an agreement.

within the meaning of the: Railway Labor Act. The Act

should receive a liberal construction: The parties. have

arrived at a new plateau as a Tesult of the ictal

: under. the: award.

- . nex Se me

Bina OEE Rp i ss Da x

PN ea ee Sie FO

The conclusion is inescapable that since a new status’

_ hag been created under the Act, neither side may take

any unilateral action or resort to self help. The carrier

. May not change. rates of pay,.rules, or working conditions, .

including size of train crews, employment of firemep, etc.,

and, on the other hand; the eriployees may not call a. -

strike or use other coercive measures in order to enforce

their demands. If either side desires to bring about any

- ¢hange in the arrangements resulting from the award,

‘it must initiate proceedings by serving notices undér

Section 5 of the Railway Labor Act and exhaust each

step in the procedure prescribed by that statute.. The.

status existing prior to the award is not restored. .

Manifestly the “Arbitration Board construed the Act

as authorizing it to provide for the creation of rights

_ during the effective period of the award that would

endure thereafter. If is an elementary, principle of statu-

tory construction that the interpretation of a statute

by the administrative agency that- administers it, is to

be accorded great weight and should ordinarily be ac- -

} cepted unless obviously erroneous or unreasonable.

‘In view of these considerations, any threatened strike

may be enjoined and. reciprocally the carriers may: be re- '

quired by judicial decree to submit to the invocation of

remedies provided by the Act.

A question was raised by counsel as to the status of A

the notices that some of ‘the employees’ - organizations

have served during the effective period of the award.

’ Phe. ‘Court is of the opinion and concludes that such’.

notices may not be deemed effective as of a date prior to

the termination of the award. It would be a futile gesture,

however, to require the parties to serve new notices. A -

reasonable interpretation of the situation is .that the

. notices that have been served may ‘remain, but that

they become effective only on the day after the termina- .

tion of the award. The various proceedings under the

14a -

‘Railway Labor Act ne&d not be initiated until after that .

time.

. U.S.C. §107 bars the granting of an injunction .against

_ outset it may be *stated that an injunction against a.

a strike, and whether any provision of that Act is appli-

cable to an application for such an injunction. At the

strike may be properly granted to maintain the status

quo, while the parties pursue the various steps of nego-

tiation, mediation, or arbitratiori provided by the Railway -

Labor Aet. Such an injunction ‘is one of the means

* the Railway Labor Act.. Equity decrees of other = ,

which the courts may invoke to enforce the provisioris of

may likewise be employed for similar puyposes.

Thus it was said, by Circuit Judge Friendly. for the

- Second Circuit, in Manning v. ‘American Airlines, Inc.,

— 829 FB. 2d 32, 34:

LaGuardia Act in the sense that the provisions of the _

_ The propriety of an injunction to enforce the iets

unique provisions of the Railway Labor Act for main-

taining the status quo while the parties to a labor.

dispute pursue various stages of negotiation, medi-

ation or arbitration, was established long ago..

In Virginian Railway Co. v. System Federation N 0. 40,

300 U. S..515, 562-563, which has already been discussed

in some. detail, it was held in an opinion by Mr. Justice

Stone that the Railway Labor Act supersedes the Norris-

Railway Labor Act “cannot be rendered nugatory by the

earlier and more general provisions of the Norris-

LaGuardia Act”: Bohne as! he

The second question to be determined as a result of

this hearing, is whether the Norris-LaGuardia Act, 29°

‘In Brotherhood of Reliread Pica ot al. on

R, -€ I.R. Co., 353 U. S. 30, in which Mr. Chief Justice

Warren délivered the opinion for a unanimous Court,

it : was expressly held that the use of. “injunetive . relief

ets Gree rere

to vindicate dies processes. of the Railway aoe Act, ts

authorized, and that the specific provisions of the. Railway

Laboy Aet take precedence over the: more general pro-

visions of the ‘Norris-LaGuardia Act (pp. 41-42). A simi-

- lar conclygion was reached in Brotherhood of Lotomotive.

Engineers et al. v. Louisville & N. R. Co., 373 U. S. 33, 39. -

The defendants rely on two cases, Which: however are _

clearly: distinguishable. In Brotherhood of Railroad Train- .

men Vv: Toledo, P.\& W. R. Co., 321 U. S. 50, it was held ©

that a railroad was, not; eutitied to an injunction against

. a strike if it declinéd to subject itse]f to one of the

remédies ‘accorded by the. Railway Labor <Act,*in that

case the: machinery for voluntary arbitration. In Order

of Railroad Telegraphers v. Chicago & N. W. R. Co., 362 - ~

_U. S. 330, it was held that there was no basis for en-

, joining a strike at the behest of-a railroad that had

— declined to negotiate; because of an erroneous view as to

whether it was under a- duty to negotiate concerning the

* subject matter involved in the dispute. ,

‘This Court finds no basis for holding o some of t the

_ provisions of the Norris-LaGuardia Act ‘may be applicable

while others may not be. This Court reaches the conelu-

sion that’no provision of the Norris- LaGuardia Act ap-

_ plies to an action or an, application for an injunction

against a strike of railroad employees if the defendants

have failed to fuifill their obligations udder the ew

Labor Act.

The icbiios. + reached’ iby this Court in this opinion

will be embodied in the final _— to be entered ©

after the trial of this action. ;

/s/ Alexander Holtzoff |

es : United States District , Judge.

March 3, 1966. es ae .

‘| So

9 / ie * if \ IX B ¢

Opinion of ‘thie Court °

THE Court: This action’ was brought by - a large -

number of railroads against. several organizations of rail-

-road-employees for the purpose of securing an adjudica-

tion as to reciprocal rights of the parties following the

termination of the effective period of an award of .a

compulsory . arbitration aang by the Congress congern-

ing two ®asic controversies

the employees, namely, the question whether firemen should

' be eliminated from diesel powered: locomotives in freight —

- and yard service, and whether the size of train crews or

crew consist, as it is denominated in the parlance of the

industry, may be: reduced on various Tuns. :

The, ‘award of the Special Arbitration’ Board created

under the authority of Congress, is known as Award 282.

Two basic issués of law involved’ in this’ case were

heard and determined separately. in advance of the trial:

' The remaining issues involving largely the application

of these prior rulings to specific situations, then came

on for trial. This opinion | disposes of the remaining

questions. of fact and law. ‘

The evidence was introduced at the trial in the form

of a detailed stipulation of facts consisting of abgut

22 pages- Avith numerous exhibits attached thereto.

Ceanasi are tobe highly commended for their shiaieiiie a

. cooperation and meticulous and sedulous labors in pre-

- paring ‘the stipulation and for — in this highly

effective and preteens ‘manner, ;

Although this action was ; brought . originally for ‘a

‘ permanent injunction as well as a declaratory judgment,

: counsel for the. plaintiffs eaonted, after. the Court

aimee of Peieiiiibitin March 28, 1966, pages 116.127.

ee ae See

penn aN AN sion aie ef ee

etween the employers and

: _ Ta

announced its earlier ruling on the. two ‘basic questions

. on March 3rd, 1966, that the plaintiffs would not press.

for an injunction at this time but desired a declaratory

judgment. Accordingly, this ac.ion then proceeded and

, - Avill be determined as an action for a declaratory judg-

ment.

‘We shall now take up the various 3 problenis presented

_ and argued at the trial.

_ The rulings about to * ‘made must be considered: in

the light of the previous underlymg -basic opinion of

March 3rd, 1966, which is to be deemed ee by

-reference..

During -the effective _— of Award 282, which ter-

_minated so far as the defendants‘in this action are .con-

cerned on -January- 25th, 1966, numerous reductions in

train crews were authorized, either byoagreements or by

Special Boards of Adjustments created, under Article III —

of Award 282. About 90 such awards of Special Boards"

of Adjustments are listed in the stipulation.

| In its opinion of March 3rd, 1966, this Court ’ ‘ruled

‘that a new status was created as a result of these awards .

and that, this status is to be maintained after the expira-

tion of the effective period of Award 282 and may be.

changed only by agreement or by first serving 30- day

~ notices. under Section 6 of the Railway Labor Act and °

then pursuing step by — the remedies provided by |

that. statute. . 5

.. During ‘the same period as has just been stated,

e a number of agreements have been made° relating to the |

composition and size.#f train crews embodying a pro ~~

vision that they shall continue in effect to the same extent

as if they were: awards of Special Boards ‘of Adjustment

created pursuant to Article III, or Section III as it As

a sometimes ane of Award 282.

: ” . . ‘

5) % ~ ° : : cooemess —

eiiaees , _— Io ind NEN sta TA AN Coca: fo”

: a

one

'. expiration of Award 282 except by further - agreement

a ae 18a

_ Accordingly, it is the opinion of the Court that the.

same consequences attach to these agreements as to the

awards of Special Boards of Adjustment. The agreerfents

ereate a new status which may not be altered except by —

agreement or in the manner prescribed by the Railway

Labor Act, as has just been stated.

This ruling obviously likewise applies to similar agree-

ments which include a provision that they shall continue

in effect until changed ia accordance with ‘the provisions ’

‘of the Railway Labor Act. This’ conclusion likewise

governs, those agreements which provide that they. shall.

continue in effect until January 25th, 1966 and thereafter. -

Some of the agreements are silent on the question as

to how long they should continue in force. The same ‘con-

Sequences attach to them. In other words, they also

create a new status that ‘may not be modified after -the

_ or by invoking the remedies provided by the Railway .

_ Labor Act, as already indicated. : 7

There are numerous agreements referring to Award 282 =

which are expressly. made dependent, in one way or |

another, in their duration, on the effective period of |

the ,basic award. Irrespective of the precise phraseology

employed in each.instance, they must be deemed to have

been executed in the light. of and in contemplation of

Award 282 and as having the same effect as awards of

—. Boards of Adjustment created under that award.

It follows, hence, that the same consequences attach to

them as to the agreements already discussed. |

a ay

.- This conclusion also extends to agreements containing |

such provisions as that the agreement “shall remain in _ c

effect until January 25, 1966, as provided by Section IV,.

Duration of Arbitration Award No. 282;” or “shall re-

main in effect only for the duration of award of Arbitra-

| 198

. tion Board 282; or that “neither party shall serve |

notices under the provisions of Arbitration Award No.

282 for any ~~ in crew consists prior to January

25th,..1966;” or “an agreement in accordance with the .

terms of the aaak of Arbitration Board 282;” or “that .

this agreement shall remain in effect’ until January 25th,

1966, with the understanding that neither party shall

serve notices under the provisions of Arbitration Award

No. 282 for any change in crew consists prior to J anuary

25th, 1966 ; -? or “that this agreement will continue in

“effect in ancordance: with Section IV, Duration of Award

of Arbitration Board 282.”

It is clear that all of these agreements were adjusted

to the duration of the effective period of Award 282, they

were made in contemplation of that Award, and the

reasonable construction of these agreements, in the opin-—

jon of the Court, is that they have the same effect as

awards ‘of the Special Boards of Adjustment created

under the Award, and the: same .consequences attach,

namely, that a.new status is created which cannot be

changed except in the manner already discussed.

. It will be°*recalled that in practically every ‘cose-the——

original . conttoversy had its inception in notices served

by carriers and counter-notices served by organizations a

of-employees. There are a few cases, however, in which

‘notices were served only by organizations of employees.

’ The Court is’of the opjnion, however, that they too come

within the purview of Award 282 and therefore ‘the

ina ruling applies to them. ia

‘In Division 700, Brotherhood of. Locomotivé Engineers

v. National Railway. Labor Arbitration Board 282, 224

F.' Supp. 366, the Court. held that a carrier was not

affected by Award 282 if neither the carrier. nor any of

the organizations of. employees served any notices under

| - Railway. Labor Act in respect to employees * that

carrier. This Court in the course of its opinion made 7

- the following observation on page 366:

“What is obviously meant by the statute” refer-

ring to the ‘statute creating Board 282—‘“is that the

Notices of N ovember 2nd, 1959”—meaning the car-

riers’ notices—“or | the notices of Septémber, 7th,

- 1960°°—meaning the employees’ notices—“should have

. . been outstanding throughout the period of mediation

in.order that the. compulsory’ arbitration peMieeming

should atten to the specific parties. ™

~ It. wall be “observed that the. Court remarked that in A

order that the award might be applicable it was neces-

sary that either one of the two groups of notices should

have been. outstanding ‘and not that both groups were

‘ required. To be. sure, this observation is a dictum, but it

expresses the view of this Court, and the Court now

tules, that Award 282, applies in the case of any carrier

as to which: either one of the two sets of notices were

outstanding, - :

- The Southern Stine’ System is in’a peculiar position. .

Its component parts. were not parties to the proceedings

before Arbitration Board 282 and as a result would not -

have* been bound by its award. They entered.intd an.

. agreement, however,. with the Brotherhood..of Railroad

Trainmen on July 26th, 1965, reducing the size of various _

yard crews and crews on numerous branch lines. This

agreement provided in Paragraph 5 that:

“This agreement shall become éffective J uly 26th,

- 1965 and shall contiue in effect until January 25th,

1966 and thereafter, to the.same extent as if it were

, an award of a Special Board of Adjustment rendered

_ In pursuance of Section III, consist of road and yard

. crews, of.the Award cal Arbitration Board No. 282, “s

The conclusion necegearity follows that the same conse-

quences attach to this — as do to the ee: ‘

atready. discussed.

: 2la -

A different result must be reached in respect to three

_ agreements which contain an express\provision to the-

effect that upon their expiration the prior rule as to’crew , _

consist would again be in full force and ‘effect. It is clear

that in these instances the express intention of the parties

i was to preclude the creation, of a new status, but to limit

‘the reduction of size of crews to a’ specific period. In

these cases the Court is.of the opinion that the carriers

are “Dbligated to restore the erews to their pre-existing

‘size. These crews may be reduced only by further agree-—

ment or by proceedings under the Railway Labor Act -

initiated by the service of notices under Section 6, —

In some instances proceedings were pending but not

completed before Special Boards of Adjustment when: the

" . “effective period of Award 282 came to an end on January

25th, 1965. The question is presented whether these pro- -

ceedings may continue subsequently to that date and final

-. awards made later.

The problem is ‘malogous to that which .arises in the

event of a repeal of a statute conferring jurisdiction on

a court. Under such. circumstances the court is not only

deprived of authority to entertain future actions of the’

type covered by the jurisdictional act which has been re-

pealed but also looses power to- proceed in those ‘cases

covered by the act that were pending on the effective .

date of repeal. This principle, was established -in the

historic case of. Ex Parte McCardle, 7 Wallace - 506.

There are numerous other cas€és enunciating and applying

the same principle. Among them are Railroad Company .

v. Grant, 98 U.S. 398; Hallowell v. Commons, 239 U.S.

506; Bruner v. United States, 343 U.S. 112. In Railroad

Company v. Grant, Mr. Chief Justice Waite stated that:

* “Tt is well settled that if a law conferring juris-

diction is repealed without any reservation as to

‘, ° pending eases, all such cases fall with the law.”

_emptory cutoff d&te contained i in the statute. "7

“The conclusion | is ‘inestapable that . all proceedings

. 22a

° . : . me

‘Such a peaiitvedtiin is “frequently prevented = “by the ‘

‘inclusion of an, express ssaving or reservation clause in |

the legislation providing for repeal. .

‘No. such’ clause 1 is found either in the “Act providing

for the creation of the Arbitration Board or in the Award

_ of the Board. It is mot unlikely that»the Board was of the

opinion that it was without power to inelude such a reser-

vation or saving clause in its Award’ in view,.of the per-

pending before pecial . Boards. of Adjustment ‘came to

an end on~danuary, 25th, 1966 and that no effective

. award could. be made i in any of them pero aaiie! té mes .

ate date. . :

The Court i is not unmindful of the.fact that ‘underneath |

the prosaic questions of a somewhat technical nature, cs,

seemingly, upon which it has had to rule, there are human |

Ss.

_. «problems. The,-Court is not oblivious of ‘the fact that

‘there are many employees and their families who’ have

-” suffered some: hardship | and possibly considerable hard-

ship, if is to be’ hoped of.a temporary ‘nature. This un-

fortunate situation -is part. of! a. much larger picture.

Asa result of vast far-reaching technological improve-

ments, inventions. and, discoveries coming along within

: - a short. period -of time ‘we haye been going through a

* situation that is somewhat analogous and akin to the

Andustrial Revolutien in England of 150 years ago, al- _

though not quite as intense in degree. The period of

transition creates difficulties for individuals, without:

doubt. ee ea. oe

Fortunately, we have developed. a social consciousness

that did not exist in England 150 years. ago and many

steps have been taken, effectively, to lighten the burden .

on individual employees and their families during the

period of mirameaten For example, the government has

* ey

eRe amr tea ae ee 23a -

_ provided, for unemployment comperisation and- oe

forms .of social . security. There are various. agreements

-.. between labor unions and. employers that tide employees |

over’ a. critical period. Board 282 has made an outstanding

and notable contribution in. that field. Some hardships

Sys will remain, without, a doubt. The. Court is not unaware

of that tact. ge

One of the pony is the fact that-there are inany

employees. who are unwilling to learn new skillssor change. _

‘oceupations or,are reluctant to change: their homes. The.

old pioneer: spirit seems to have -been dampened. The

| quest for adventure that - “was exhibited by men and

* womén who crossed the prairies in covered wagons seems

to thave been diminished to a large’ degree. The spirit of .

the immigrant who looked around and ‘was willing to

take | any job to makg a living does not seem to exist a"

" the same extent.

However, - we — ‘salion that we are dealing with

: human beings. that. have all the frailities, as well as.

all-,the. good. —— of humanity ; we are pot pare

dealing with automftons. ;

The Court had ‘all this ig nied aad it woe ‘that :

some of these tulings will necessarily cause some hard-

| . Ship. The Court is gratified, however, to be cognizant ._

of the fact that the award of Board 282 has eliminated. -

or reduced a great many - ee that otherwise might |

have followed:

-The Court does not want to coriclude this opinion

,without expressing a sense ‘of gratification at the fact

‘that although the representatives of the carriers and

' the representatives of the employees fought energetically

and valiantly for the rights of the parties whom they

represent, as it was their duty, they nevertheless did so” : j

j — : 2 ~

, wie ‘ $

Mae |

“in a manner that was. in due accord with the oe for

ives the law and ethics and morals.

- The stipulation of facts entered into by the parties, —

. the opinion of this Court filed om March 3rd, 1966, and

a transcript of the present decision, will together consti-

‘tute. the findings of fact and conclusions of law. Counsel

may submit a judgment: —* tke ne made in

thaee. two- opinions.

25a . - , ‘ : N \

: _ APPENDIX “a :

* * e * |

. Opinion of the Court * :

THE Courr: In -this action a preligtinary determina- Be

tion has been had as to some of the basic questions of *:

law in an opinion rendered by this Court on March 3rd. .

Then the issues as to all of the defendants except one

were tried and determined by a subsequent opinion ren-

dered by this Court on- March 28th. The issues as to the

‘defendant Order:of Railway Conductors and Trainmen

were severed by the Court on the application of the

_ parties for separate. — and or are before the

Court at this time.

ead

. The parties have in a.ver cominendshle manner pan: .

lated. all the facts; and the Court adopts the stipulation d

of facts ,as its findings of fact and this. opinion - wal

constitute me semen of. law. . Ph,

There are - two issues to be determined between the.

_ parties.

RW. 7

‘served. certain notices under Section 6 of the Railway

During -the effective petiod of kwerd 282 the defendant

Labor Act, 45.U. S. ‘Code 156, proposing changes in what _

is called’ crew consist in the parlance of the railway

its opinion of of March 28th that while these notices were

not nullities, they were prematurely served and did. aot —

become effective until the day aftér the termination, of

the effective period of: Award 282.

Immediately. upon their becoming effective, it was the

- duty of both parties to proceed to .gonduct conferences,

as provided in Section 6 of the Railway | Labor_ Act with

the view to. me, the dispute,

- eppanseript of Proceedings, April 19, 1966, pages 46-53, -

industry or the size of train_ crews. The Court eld in”

26a

It appears in this casge’that conferences have been had, |

prior fo the termination of the effective period of the

. Award between the parties, ‘These conferences, however,

-coasisted ‘of a statement on the part of the carriers to

‘the effect that the. notices were prematurely served and

were otheiwis¢ outside of the scope of the Act, and there- 4

- fore there was: no “obligation to negotiate. To be sure,

at these conferences representatives of the employees

attempted to discuss the merits of the dispute. Into this

discussion, however, the. representatives of the carriers

declined to enter. 3

The Court i is of the opinion that this:i is net a conférence

- of the type required. by ‘the Railway Labor Act. Confer- —

- ences required ‘by ‘the Act must involve negotiations con-

cerning the merits of the dispute. There was no obligation .

‘to negotiate until — the termination, of the effective .

epee of the Award. at

- Under the Railway Labor Ait, as it has been: construed

by the Supreme Court in Virginian Railway v. Federation

of Railway Employees, 300 U.S.°515, it was held in a

unanimous opinion rendered by Mr. Justice Stone, to

which this Court ‘adverted at length in its opinion of _

March 3rd, that there is a binding obligation-on the part

of both partiesto conduct negotiations in good faith

~~ pursuant to notices setved under Section 6 of the Railway

Labor Act. .The Supreme Court made it clear that the .

provision for negotiations, was not mérely an expression

“of a-pious wish, was not, hortatory, but was ‘a command.

- page 545 the Court stated :

“It is, we éhink, not open to dotbt that Congress

intended 't lirement be -mandatory: upon ©

railroad employer and that its command in a

‘proper case be enforced by. the courts. rm

In that ease it was the carrier who refused to <negotiate,

but the obligation is equally binding on both'sides. .

At page 548 Mr: Fastice Stone ‘states: fm

. “The. statute does not: undertake to meih: ‘agree-

ment between the employer and employees, but it does

command those preliminary: steps without which no — .

agreement \can.be reached. It at least requires the ©

employer to meet and confer with the authorized -

_ representative’ of its employees, to listen to: their

~ complaints, to. make reasonable effort. to compose

differences. ‘In short, to enter into a negotiation for

the settlement of labor disputes.”

Bucigetialty, I ‘would. say that theré i is an ditties on

the part of the representatives: of employees tu’ meet

and: confer with authorized representatives of the em-_

- ployers and to make serene was ae to compose dif-

-. ferences. ~ -

That. requirement is not fulfilled by a hres at which

. one side denies the obligation “to negotiate. ‘There must --~ ~

be a bona fide actual negotiation, and the courts will, ted

appropriate decrees, require. negotiations.

_ Accordingly, the Court rules that it is the duty of both

sides, through their representatives, to meet, confer and:

negotiate for’ the purpose of endeavoring to reach an

agreement, if possible, and that such negotiations are the

first step to be taken under the ——— see by

the Railway Labor Act. | |

~~. The Court’ further holds that the- fidetings held at

which ‘one side.declined -to-negotiate the merits of the

_ dispute because it was’ under no obligation to do 80, ‘is

not sufficient complianée with the Act. 3

This discussion disposes of the first issue to be deter- .

, mined at this hearing. ll

The second. and final issue is heen dhu party may,

‘ prior to the termination of: the negotiations, apply to”

_ the. National Mediation Board for their services.,:-That~

question too is governed by Section 6 of the Railway:

———————— rr”

“nection with -a dispu

28a

Labor Act. It sonibhis in -effect, that after the Service

of notices under Sectidn 6. conferences are to be held -

. between the’ parties and .also-that application may be

made to the National Mediation Board for its” Services. -

«Section, 155 of Title 45, being Section 5 ) of thie Railway

Labor Act, provides that -either . employees: or. a .carrier

aay invoke the. services of ' the-Mediation Board in con-,

concerning’ changes in rates of . -

Orking- ‘conditions ngt adjusted by the .

parties_in~ éonference. In other words, it is contemplated |

_that conferences should take place. first and an a “attempt

‘should be made to reach an adjustment.

pay, rules, or

Whether conferences’ must be. exhausted or whether |

in the course of the conferencés application may .be made

to the Mediation Board is a matter concerning which the .

statute seems to-be silent. It seems to the Court that-it

is the National Medjation Board that must first. exercise

its discretion in determining at what point in the negotia-

tions it will accept an. offer or comply with a request

for its services. Whether it‘ should wait. until all of the

negotiations are exhausted or whether it should step in

during: the progress of the negotiations: if requested, it

seems to thé Court is a: matter for the discretion, of the ~

. sevayan Mediation Board.

he Court has in mind the. general basic principle

at the -judiciary will not interfere with proceedings °

: pending in administrative agencies until after the’ pro-

ceeding has terminated. In this connection the Court ~~

“refers to its decisions in Southern Pacific-Co. v. National

Mediation Board, 223 .F. Supp. 951, and International ©

Brotherhood of Teamsters <ic, v. ‘Brotherhood of Railway .

Steamship Clerks, 245 F. Supp.-835, which was affirmed.

by the Court of Appeals on March 29nd of this year.

In other words, the Court reaches the conclusion that |

it is not for this Court to determine at what point the

after the negotiations are completed: That is a matter

- for the National Mediation, Board. .

The Court does reach the conclusion, aie that

recourse to. the National Mediation Board may be had :

only. aftér notiées under ‘Section 6 become effective, which

_ in this case was the day after the termination of . the

effective period of the Award... 2

‘In conclusion the Court wants - to. state ' ‘mphatically

that under’ the Railway Labor Act there may be no re-

course ‘to ‘self-help until each of the procedural steps

provided by the statute are. exhaustéd successively, and

the conferences and mediation are only the first two

steps, there are others prescribed.

Counsel may submit -& proposed "judgment, embodying

these two rulings. . | ’ :

“National Mediation Boar: may step into the dente, =

whether during the progress of the negotiations or only ©

1 nmaiond

Wien! mba

10 Al CLAD LIL aie Mh eS Re A Bn MY rab

. " . ‘ rae P

‘APPENDIX D.__

. Opinion of the Court *

‘ Tae Court: “The predeat “motion . is, . in effect, an

application at the foot of. ‘the decree. In the opinion of

the Court the relief/ which the. Court will grant is a

_ proper relief to be granted at the foot of the decree, even

though the motion ‘itself poy, as” originally framed, .

seeks relief’ ‘beyond such.a scope.

The relief requested is in the form of a declaratory :

adjudication or judgment. The Court is of the .opinion

: < there is ‘a re controversy: justifying such

- relief.

The basic question stewie to the Court is whether

conferences should be held pursuant to Section 6 of the -

Railway Labor Act on the basis of notices served by the |

carriers, ‘who are making‘ the present motion, on sthe .

defendant brotherhood, and by the latter on the carriers. _

Some conferences have indeéd faken place.’ The confer-

ences have been abortive. Each side blames the other for

the fact that the conferences were frustrated.

The Court is of the opinion that no useful purpose —

-would be served by determining. ‘whose fault it was that

in any particular instance a bona fide conference on the

merits of the dispute has not taken place.:

The fact remains that the Railway Labor Act, by -

Section 6 thereof, 45 United States Code 156, contem-

plates that there should be a full-fledged conference on the

merits of the dispute after the - ‘service of notices.

The Court has previously held ‘that although the notices

served prior.to the expiration date of the Award were —

not nullities, they did-not actually become effective until

after the expiration of the Award and no ‘steps had to

‘ be taken thereunder,

Bla

There ifa publie interest invelued here and irrespective

of who is to’ blame for the abortive character of. the. * |

‘ attémpts to hold conferences, the Court holds that con-

ferences must be held at this time..It bases -its decision - °

on the ruling of the Supreme Court in Virginian Railway

~ Co.-v. System Federation No. 40, 300°U.S. 515; in which

the Qapreme Court+held that although: the ‘courts cannot

compel parties to agree, they may &nd will compel them

_. to negotiate under Section 6 of -the; Railway Labor Act.

Naturally, such a negotiation must be a ful Gedged nego-

tiation on-the-merits of the dispute.

_- here is another branch of this motion and that is an.

' adjudication as-to the.rights or duties of the brotherhood “s

in. respect! to the National Mediation Board. The Court

is of the’ opinion that it should not interfere, either’ ”

directly or indirectly, with the National Mediation Board,

Switchmens Union of North ‘America v: National Media-

tion Board, 320: U.S. 297; Southern Pacific Co. v: National

-*. Mediation Board, 223 F. Supp, 951; International Broth-

. erhood of Teamsters V., Brotherhood. of Railway &

Steamship Clerks,. 245 F. ‘Supp. 835, which was affirmed .

by the Court of Appeals on March 22nd, 1966,

However, it cannot be said. that : the sical “under

_ the Railway Labor Act will have been exhausted until and

‘unless conferences are hield under the notices, and the

Court reaches the conclusion that the attempts to “hold.

such conferences so far have. not complied with the

spirit or the letter of the Railway Labor Act.-

' The Court further holds that there can be no resort

to self-help on either side until every step—first, ‘con-

ferences, and then the other-steps prescribed by the Rail-

way Labor Act—are concluded. In other words, the

carriers may not put their notices in effect unilaterally

‘and the employees may not: resort hes a — .

| Nan oiieee eee

Court ‘will not interfere® with the National Mediation

Board. It may well be ‘that the National Mediaticn Board,

.' in the exercisé of its ‘diseretion, will. postpone further

7 ._ Steps ‘until after ‘conferences have been held as indicated’.

Nin ‘this opinion, but. the Court-will not interfere by any

* order or. adjudication with the ‘activities_ of the National.

Mediation Board, ‘directly or indirectly.

‘So far. as mediation ‘proceedings are conéerned, the ° .

You may submit an appropriate order i in | Sobtormity |

po with this decision. © ,

% be i ee eas .

2°

APPENDIX E

. . . *

“Appeal trom ‘the United States District Court

: ‘ for ‘the District of Columbia

* -

“Teale May 12, 1967 Pees a

Mr. Milton Kramer was on: the brief. for appellants in

Nos. 20,152, 20,229 and 20, 249 and appellees: in No. 20, 172.

| Mr: James’ D. Hill for appellant in No. .20, 158 and

appellee in No. 20,191. °

Mr. Joseph ‘. -Rauh, Je., with whorh Messrs. ‘John.

“Silard, Daniel H, ‘Pollitt, Isane. N. Groner, David Epstein

. and Stephen £. Moss, were’ on the brief for appellant in -

Nos. 20,192 and .20,193 and appellee in Nos. 20,215 and ,

20,216. :

% Mr. Francis M. Shea,:with whom Mr. Roherd T. Con- ©

_ way was on the: ‘brief for appellants in Nos. 20,172, 20,191,

_ 20,215 and 20,216 and appellées in Nos: 20,152, 20,158,

20,192; 20,193, 20,229. and 20,249. Messrs, David Booth

Beers and Ralph J. Moore, Jr., also entered es.

for appellants in Nos. 20,215 and 20,216.

Before DANAHER, Circuit Judge, Bastian, Senior Cireutt

_ Judge, and Leventuat, Circuit Judge. 6

LeventHat, Circuit Judge:* This opinion dni with a :

~ number of appeals and cross- appeals i in the rajlroad work ~

rules litigation. ‘ 3

It may help if at ‘e outeet -we satiate wince ‘the

nature of our _Views, though their precise exposition and -

the complexity of the issues require a long opinion. Part

I of this — reviews the history of the ‘Passage by.

ad As amended by Order of. July 18, 1967.

34a

Congress in 1963 of a law providing for compulsory

arbitration of the work rules controversy with an Award

of two years duration. In Part II we approve the con-

* clusion of the District Court that the work rules in effect

. following the expiration of the Award’ in 1966:did not

. revert to the 1963 condition and that the new plateau of

work rules, established: for early 1966 by the Award, con-

‘tinued in .effect unless changed in accordance. with the

Railway Labor’ Act. in Part III, reversing .a ruling of

the District Court, we hold that even prior to the expira- :

tion of the Award the carriers had’ a statutory duty to

respond to notices of the unions and begin collective

. bargaining about -the rules to become effective following .

_- the expiration of the Award. In Part IV we conclude,

reversing the District Court, that the railroad companies

violated their duty to bargain with the Firemen, on the

notice relating to prospective work rules, and with the .

Trainmen. We affirm other aspects of the decree, albeit

for reasons somewhat different from those of the District -

Court, since we conclude that the railroads had no statu-

tary duty to bargain. over either another notice ‘served by

the Firemen, which sought to undermine rights vested

under the Award, or’ the ~~ notice served by the

Conductors. es ;

‘

Understanding of the i issues will be.. aided by a historical )

review of the tale meeacad :

The phenomenal growth. of railroads, in the 19th cen-

tury was accompanied by evolution of complementary

employee organizations. Railroad workers were among the

first to organize unions to present- employee demands ~

collectively. The Order of Railway’ Conductors was |

founded in' 1868, the Brotherhood of Railroad ‘Firemen

and Enginemen i in 1873, and the Brotherhood of Railroad

Trainmen in 1883. Labor relations in the railroad sphere.

30a

has been the subject of Congressional enactments, and is .

now governed essentially by the Railway. Labor, Act.’

The last. ‘hundred years have also witnessed the evolu-

tion of an elaborate “common law’? embracing the. rela-

_ tions of railroad management and labor. There. exists a

roughly defirfed system that is the product of long-estab-

_hished practices and understandings, collective bargaining

‘agreements, court decisions tand .administrative orders.

The system covers among other things the manning of

‘trains and the assignment of tasks to employees. These

principles. and patterns of behavior are collectively

denominated “work rules.”? As the Supreme Court has . ©

aptly put it, the railroad industry with its = of |

regulations -is virtually a “state within a state.”

Work rules concerning firemen date from the early days

of the industry. Their initial chore was to select and load

fuel into the. wood-burning locomotive. The appearance

in.the late 1920’s of the diesel engine spawned: the prob-

_ lems ‘that beset the industry to this day. The carriers

consistently contended that the former loaders of wood

were now merely dead wood. Yet beginning in 1933 the

Brotherhood of Locomotive Firemen and Enginemen

‘(hereafter BLFE) negotiated individual agreements with -

various carriers to preserve the continued status of fire-

men-helpers.': The BLFE in 1937 joined with substan-.-

tially all United States carriers in signing the National

Diesel Agreement, poe for the eniployment of fire:

145 U.S.C.. §§ 151- 63 (1964), as amended, 45 USC . §153

(Supp. II, 1966),

' 2 See generally Comment, The Railway Work Rules Dispute—

A Precedent for Compulsory Te 14 DE Pau L. Rev. 115

(1964).

’ See Whitehouse v. Illinois. Cent. R.R., 349 US. 366, 371

(1955), quoted by Fortas, J., dissenting in Transportation-

. Communication Employees Union v. Union Pace. -R.R., 385 U. S.

157, 176 n.5 (1966).

men-helpers on i: pentiedty all diesel powered locomotives.

_ Similar terms -endured in subsequent contracts, including

the Diesel. Agreement of 1950. -

While work rules retaining positions Fo: firemen. became

’ thus established, the industry’s quest for modernization -

resulted in almost one hundred percent diesel operation.. ,

In 1956 the carriers gave hint that intense competition e

from other’modes of transport and the resulting financial

pressure would no- longer permit preservation of the

‘ancient status. During negotiations on their proposal to

‘ give management the discretion to determine the employ-

ment of firemen the carriers withdrew this.plan by agree-

ing to a three-year moratorium on such changes in work ~

rules. But the die had been cast, and the carrfers argued

-that the verdict of history. and technology had come in,

pronouncing railroad firemen extraneous members of-a

train crew. So too, they asserted, advanced technology

and innovations would permit sharp reductions in the level

. of what is called the “crew consist,” specifically the ©

number of brakemen. ‘needed for the safe operation of

the train.

It is against the backdrop of the always “sensitive and

_ touchy problem” * of overmanning and efforts.to overcome

it. that we focus on the events. mor re._immediately— ~~

leading up to these appeals: In 1959 the carriers served.

notices thder Section 6 of the ee Labor Act,’ pro--

*Brotherhood of Locomotive teens v. Chicago, Rock I. &

Pac. R.R.¢ 382 US: 423, 430 (1966). :

545 U.S.C. § 156 (1964) : Carriers ‘and esesinmaniitii “ofthe

- employees shall give at least thirty days’ written notice of an

intended change in agreements affecting .rates of pay, rules, -or.

working conditions, and the time. and place for the beginning of

’ eonference between the representatives of the parties interested in

such intended changes shall be agreed upon within ten days after

the receipt of said notice, and said time shall be within the thirty : ‘

days provided in the notice. In every case where such notice of

. intended change has been given, or conferences are being held with °

‘reference thereto, or the ‘services of the Mediation Board have

37a . :

posing the elimination of firemen from freight and yard °

service, and the abrogation of regulations fixing the size .

of train crews. The following year, 1960, the unions

. served a series of counter-proposals directed at’continuing -

and éven extending the use of, firemen and at.setting the.

erew. consist level at not less:than one conductor and two

brakemen plus such additional trainmen as the assuraiice ,

of maximum safety demanded.

' 4 Shortly thereafter, in an effort to aid in the adjustment

of this dispute, President Eisenhower appointed a. special

. Presidential Railroad Commission to study the various

facets of the problem. This Commission issued its report

and recommendations -in 1962. In general the carriers

- accepted the findings, but the unions balked.

Meanwhile, the lengthy procedures ‘contemplated and .

mandated by the Railway Labor Act continued. Negotia-

tions and mediation failed to bridge the gulf between the. .

parties. The atmospkere of crisis heightened, for the

Supreme Court ruled in March of 1963 that all the tools

of the Act prescribed for. the parties had been tried and

found inadequate, and they—were thus free to resort to

"self-help: that is, the unions could lawfully strike, or

the carriers could unilaterally impose the’ new - rules.

_ The last device in the statutory” arsenal was invoked.

Acting under Section 10 of the Railway Labor. Act, ‘45.

U.S.C. §160, the President, on a finding ‘by the Na-

tional Mediation Board of the threat of deprivation of

been requested. by either party, or said Board has’ proffered its

services, rates of pay, rules, or working conditions shall not be

altered by the carrier until the contfoversy has been finally acted

.. upon, as required by section 155 of this title, by the Mediation

- Board, unless a period of tén days has elapsed after termination

of conferences without — for or r proffer of the Services of the

Mediation Board. :

. Brotherhood of Lecemotive Engineers vy. Baltimore & O. R. R.,

_ U. S. 284, 299-91 (1963).

- ~« Om

| Se

38a.

essential transportation services, convenéd an. Emergency

Board to: make a prompt investigation apd report. For

‘thirty days following the rendition of such a report no

_party may take unilateral action: The investigation was

made and the report was filed. |

Once again the unions proved unwilling to accede -to

the recommendations of others. During July of 1963 a

flurry of tense negotiations was. spurred by the active

intervention of P ent Kénnedy and the participation —

of Secretary of Labor Wirtz. The unions rejected -the

President’s proffer of the services of Justice _Arthur

Goldberg as arbitrator of ‘the dispute—For a fleeting

_period it appeared that voluntary arbitration would pro-

,vide the answer ough the ‘parties indicated willing-

chess in principle they could not get together in the pro-

cedural particulars of arbitration. .

‘A strike was imminent. The country was faced with a

serious émergency. ‘No outstanding. techniques ‘remained —

“to move the antagonists to a responsible accord. Only

’ Congress could avert a national. catastrophe, and it was~

to Congress that President Kennedy turned for unprece-

dented measures." The Administration proposal, sub-

mitted July 22, 1963,° would have authorized the Inter-

state Commerce Commission to serve, in effect, as the

agency for compulsory settlement of the threat by em-

‘powering it to put into effect, on the application: of the

parties, any of the changes proposed in the. notices: of

1959 and 1960 wjth such modification as it found appro-

priate in reconciling the private and- public interest. That

resolution made it clear that these were to be only interim

work Tules to - be effective, until the parties themselves

“4 See Message from the Prestdent of the United States Relétive

to Ratlroad-Labor Dispute, H.R. Doe. No. 142, 88th — 1st Sess.

(1963). P

“*8. J. Res. 102, sth _ ng., 1st Seas. (1963).

‘~

39a

agreed on more permanent terms, but in no event. to last —

fox more than two years.

The law that was actually passed differed in various

particulars. from the Administration measure. The “one

- significant change”® made was the substitution of an inde-

-,pendent ad hoc board of arbitration for the Interstate

Commeérce Commission, principally for the feason that

. Congress wanted to emphasize the, peculiar and non-

precedential nature of its emergency intervention. By

August 28, 1963, this unique compulsory ‘arbitration law,

Public Law 88-108, had passed both Houses of Congress

and received presidential approval. We set out this statute

‘ ‘in ah appendix to this opinion.

Publie Law 88-108 expressly forbade 2 any esiieaaaen self-

help by the parties who ‘es served ‘or-feceived the notices -

of 1959 and 1960. It cre a Board of Arbitration (since

designated Board 282); to be composed of seven members,

‘two each representing the carriers and unions, and the

other three to be selected by the President if, as hap-— |

-pened, the parties. eould not agree even on mutually

-acceptable neutral members. The .Board: ‘was, orderéd to

‘pass on the two focal issues of the use of firemen and the

size and composition of train crews. The Award (since

designated Award 282) was to “be binding on both the

-earrier and organization parties to the dispute and .

constitute a complete and final disposition of the afore-

said 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. Ac-

cording 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 aaa ciety unless the sical —_ —

as Brotherhood ‘of ‘Loconiotive Engineers v. Chicago, Rock i-&-—

Pac. R.R., supra note 4, 382 U.S. at 432..

40a

wise.” *®. It is this provision specifying the maximum

mandatory duration tliat has ogerked ‘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. Mareh 30, 1966. Except

- for such agreement the Aw ard expired at the close of the:

; two year period on January 24, 1966."

Award 282 held that the nearly two bansitned carriers

involved could eliminate panety percent of -the firemen .

_ positions, and set forth a procedure for dismissal and

attetalon, It was a staggering blow to the BLFE.. The

'\10'The measure was’ somewhat ‘ideas 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 determin-

ing compehsation, and-forbade reduction in the standard day’s

- wage until thirty days after findings were announced fy a special

“* commission created to study this system, to report back’ in six-to-

nine months. The Supreme Court upheld this statute, characteriz- -.

ing it as a form of compulsory arbitration that was “‘limited’’ to |

. @ ‘‘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., Ist 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 _

clear that the full two-year period expired at the end of J anuary

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. : -

4la

| Award did nat, however, authorize a single spasmodic

discharge of thousands of firemen. Indeed, in some aspects

--. it was “highly favorable fo .the employees,’”’ see In re

Certain Carriers, Etc., 229 F. Supp. 259, 261 (D.D.C.

1964). Thus the . Award guaranteed permanent employ- :

ment for life, or until retirement or resignation, for every

. fireman who had been ‘in active service for more than ten

rs, with a comparable job insured for all with service

‘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 th

terms. of this Award the carriers have pruned eighte

thousand firemen. from their ranks, paid out some $36,-

060,000 in separation benefits, and provided —

‘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 pur-

suant to the Award. Then it provided that where existing

work rules required. more or less than two trhinmen, any —

party might give notice of a.proposed.change. If after

conferences were held by the local properties no agree- —

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

. US.C: § 159 (1964), as incorporated by reference in Sec-

tion 4 of Public Law 88-108, the unions sued in the Dis-

trict Court for the District of Columbia to impeach the

Award. The attack was two-pronged. First, they econ-

~ tended that the statute authorizing campulsory arbitration —

in this context was unconstitutional as beyond the power

of Congress, or in the alternative as delegating power

: ; rae

42a

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,”

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 courte,

‘here and elsewhere, a number of actions, some brought:

_ by unions and some by railroads, presenting a ple thora

of .particular problems,”* but, these skirmishes need not

, 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 nego-

tiations looking toward Tong range adjustments of the

various vexing problems, guidéd-by the experience gleaned

_ from funetioning 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’ ¢ollective bargaining .

table, where some connnenime ee | have to be ener _

as 2 One judge jennie’ on the ground that the. donstitutional

rs issues should have -been referred toa three-judge district court.

18 These actions were. largelyx.concerned with the proper con- --

struction of the statute oreaward in regard to individual fact

situations. Seq, ¢. .g., Brotherhood of Railroad Trainmen v. Certain

Carriers, Ete.,

Brotherhood of Railroad Trainmen Vv. Chicago, M., St. P. & Pac.

RR, 120 U.S.App.D.C. 295, 345°F 2d: 985 (1965); Atchison, T

& S.F.Ry. vy. Brotherhood of Railroad Trainmen, 324. F.2d 899

(7th Cir. 1963); In re Certain Carriers, Etc,, 231 F.Supp. 519

- (D.D.C. 1964); Brotherhod@ of Railroad Trainmen v. Missouri

Pac:R.R., 230 F.Supp. 197 (E.D.Mo., 1964) ; In re Certéin —

’ Ete, 229 F.Supp. 259 (D.D.C. 1964). :

121 U.S.App.D.C.. 230, 349 F.2d 207 . (1965);

43a

The positions 5 ndopiad 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 fevive and the National To

Diesel Agreements would once more control. This posi-

tion was shafted 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. tts ne er

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 effeytive

periad of that Jovard. Brat they 100, “just in case,” served

counter-proposals" on the unions to preserve tle benefits

: the Award had carved for them. As will appear-in greater

detail, the carriers dechined to digeuss the merits of any

of these notices at the few conferentes that were held

prior to the termination of the Award, reasoning that

although Public Law 88-108 and the Award permitted bar-.°

gaming during that périod they nevertheless stopped —

short of imposing a legal duty to do so. These are the two -

4 central questions of these appeals: What’ rules were :in

“ force, the day’ after,.Award 282 expired? What: was the

duty’ of the parties to ‘eam about omens 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 earriers and by the Brotherhood of

| Locomotive Firemen and Enginemen (SLFB), the . woes ship

~ - sea

erhood of Railrdad ‘Trainmen (BRT); wei Switchmen’s -

Union: of North American (SUNA), and the Order of

Railway Conductors and Brakemen (ORCB): See gener-

| Acco é A.R.R. v. Brotherhood of Locomotive Fire-

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.€, ,1966) (Nos. 20229, and 20249); Akron -

‘é B. Belt R.R. v. Order of Railway Conductors, 253 F.

Supp. 538 (D.D.C. — (Nos. 20158 and 20191). ud

Tn shdies of the trial of ‘these cases, the parties con-

sented to the preliminary ‘adjudication of the effect. of

the expiration of Award 282. In a guideline opinion under-

lying subsequent. rulings, the “District ct Lourt held that,

even though thi Award’ formally te ninated, it had cre-. .

. ated a “new plateau ™-of. work rules, which were ‘to ‘con- | ~

tinue in force until changed pursuant to the regular

procedures. of the Railway’ Labor Act.** See Akron & B.

'. Belt-R.R.. v. Brotherhood of ne Trainmen, 250 me

Supp. 691, 695- 97 (D.D.C. 1966). .

“The BLFE argues that the intintion of. _— in

giving. the Awa:d a limited 2-year lifé was to deny . it

“any further glegal effect, to leave the parties as if the

award had hover aaa in existence, - -and to” restore the

34 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 éases, it presents different ques-

tions and is being consider eparately. See Bangor & ARR.

v. Brotherhood of Locomotive iremen, -— F. Supp: 47 “i - 2. -

1966).

(18 iat Manning v. : oii Airlines, In¢,, "399 F.2d 32,

- 34 (2d Cir,),,cert. denied, 379 U.S. 817 (1964). See also’ Manning

| 7. aren Airlines, Tne., 221 F. Supp. 301°(S.D. N.Y. ier

‘ R. ‘

@ . ; - “ * ‘yy ° :. a

- 18 National Woodwork ifrs..Aes’n v. NLRB,

' 2?

wen quo ante with the result that the day after tne

Award expired the work rules in éffect were the same

as those in effect when the-statutes was passed.. This

approach has a kind of formal logic, and certain. provi-’ -

sions of Publi¢ Law 88- -108 could be read this way. Our . |

‘approach in ascertaining “legislative intent” is hampered

by the fact that, the possibility. that by.the end of the

__. formal duration of the Award the parties might not have

“agreed on anything to take its plage is a subject on which

the legislative history is, to use Justice Harlan’s phrase,

“essentially negative, which shows with fair conclusive- .

ness only that Cgngress was not squarely faced with the

problem this case presents,” ** In our casé there is the

added consideration that Con Ss was undoubtedly aware

of the: problem but appardntly thought. a lay in

avoicance of express delineation. ~

We thok the mere limitation of the effective vitind of

the. Award neither implies nor a the constriction .

the unions seek. Our reling is thatthe work rules created

by the Award constituted. a new plateau that was. not

automatically eroded when the Award expired. The legal - °

underpinning for our ruling is not: the.Joint Resolution,

- which expired after 180 days of. life—except insofar as

necessary ‘to sanction the Award. The ruling is not based

. on the Award, which had*only a 2-year: life, or on any

agreement of the parties. The predicate of our ruling is,

Simply, the force of the Railway Labor Act. Certain work

rules were in forcé on January 24, 1966 (or March 30,

1966, in the. case ‘of the BLFE). The mandate .of the.

Railway Labor Act requires that the work rules in effect

on any particular day shall also be in effect the following ;

day-—beyond the power of either party to institute a uni-

- lateral -modification—subject to change only in accordance

with’ the procedures preseribed by the Act} These pro-

——., 35 U.S.L.W. 4349, 4360 (U.S. April 17, 1967),\

geen ae’

< “oa cee

. 46a

cedures begin with the notices required by Section 6 to

be served by any party seeking a change at least thirty

days in advance of ‘the proposed effective date of such .

change. This new-plateau reasoning applies even though

the work rules are established by agreements of limited .

duration. “The effect of §6 is to: yams agreements _

‘subject to its provisions regardless of {what they say. as

to termination.” ** It likewise- applies even though the —

work*rules are established by an arbitration award of |

limited duration. 3 .

This by, no means suggests that there is no legal” sig-

nificance in establishing an award or agreement as one

of limited -duration.' The limited duration has the obvious.

significance that work rules can be changed for the post-

expiration period. The work rules can-be changed, how-

ever, only by compliance with the provisions of the Rail-

way Labor Act prescribing how er in work rules

are to be effectuated. oo

What we are ih effect holding is that since Public Law

88-108 is silent as to the applicable legal rule, the case .

is governed by the combination of undeniable physical |

facts plus the general legal rule of the Railway Labor :

Act. The BLFE is constrained to find superseding inten- —

tion in. Public Law 88-108 which would in effect obliterate

not only the Award as a document with legal effect but

also the physical facts that came into being during the

. 2-year period. We think its construction of Public Law

88-108 would be unreasonable and inconsistent with the

purposes and. context of the legislation. It must have’

been reasonably contemplated that the Board of Arbitra-

tion might ofder deflation of the scope of existing over-

manning. And it seems obvious that an dutomatic rescind-

ing of any such pruning at the instant the Award was to.

terminate would spark the most unsettling havoc. To

” Manning v. American on Inc., supra note 15, 329 F.2d

at 34.

47a

reach this result would necessarily mean trying. to re-

create a practically unrecoverable situation and sweeping

away a host of rights that had already vested concomitant

with the award, made final under the Act, permitting re-

ductions in the work force. Such a view. would also wipe

out the supposedly permanent guaranty of employment

‘for those thousands of employees whose seniority, the

Award decreed, entitled othem to lifetime protections.

We turn now to the question to what extent and hy what

procedure the .parties could and did lawfully invoke. the

‘machinery prescribed by the Railway Labor Act in order.

techange the work rules in effect on the railroads at the

expiration of the Award, rules that had been prescribed

by the Board (including the crew consist rules prescribed.

by. various local boards). |

As already stated, these work rules were not om

Congress had enacted a compulsory arbitration measure

of limited duration. The appropriateness of a limited

duration for a compulsory arbitration measure, articulated

by the Supreme Court 50 years ago in Wilson v. New,

had been emphasized by-the President and Congress.”

When .were the, parties - to. bargain about . possible ~

changes in the work rules that survived the Award?

All parties agree that negotiation during the pendency”

of, Award 282-was permissible, Dut the carriers say it was .

not obligatory. In our opinion, however, bargainjng during

the pendency of the Award 282 was not merely a matter

_ for the whim of the parties but was to be governed by

provisions of the Railway Labor Act, and these provisions

remained in effect during the life of the Award for pur-

‘poses of* regulating the responsibilities of the parties fo

18 See note_10 supra.

. g . cae °

as ase

48a

bargain concerning changes proposed to become effective

after the expiration of the Award.

The principles and objectives entities Public Law

88-108 reveal that Congress placed a high premium on

_the opportunity for continued cellectivé bargaining during, ©

the life of the Award, in the hope and expectation, appar-

ently shared at that: time by the parties. themselves, ‘that:

the unions and carriers would themselves work out a long

range solution to these sensitive problems. by the tradi-

tional devices of collective bargaining. This special statute

served to give the Nation a temporary respite from the

threat of a disastrous. national rail strike by: forbidding

for two years any unilateral changes or. resort to self-

help and imposing instead interim rules t6 cover the situ-

ation. But as we have seen, both the statute and the

Award expressly contemplated that the parties were free

; ‘to alter or extend the rules fixed by Award. --

Public Law 88-108 established a procedure for tired

ing rules to govern for up to two years, in the absence-

of a negotiated pact. This did not displace the otherwisé

applicable provisions of the Railway Labor Act on the —

duty to bargain on changes proposed to become effective

subsequent to the two-year period. President Kennedy

in his message to Congress expressed the desire that the

parties continue to confer on the ultimate resolution of.

_their disputes.” A chief spokesman ‘for the carriers, Mr. | ©

J. E. Wolfe,” assured the Senate Committee that the car- ot

19 Indeed, on the crew consist issue, ‘Seatin III.A(1). of. ‘the

Award, remanded the dispute to local properties ‘‘for negotiation’’,

'-and only if these further efforts to reach a settlement proved

pointless were special boards of adjustment to be — to fix

the temporary rules. -

- 2 See. Message from ‘the President, supra note 4, at + 68.

Chairman of’ the National Railway Labor Conference, an

organization whose members conduct about ninety percent of all

railway. operations in the ee States.,

49a

‘riers understood that. the Administration’ s bill “imposes &

duty on the parties to attempt to settle their differences”

and would “protect the public interest as a result of the

establishment of these interim tules for a period of 2

years or less while the ‘parties: undertake, through collec-

tive bargaining, to bring. about @ more permanent ,solu-

tion of the problems. "72 We are aware that in the reshap-

- ing of the measure the duty to bargain on the work rules

‘was not expressly spelled out, but the plan was surely

retained. Indeed the preambles of both measures expressly

. and unequivocally proclaimed the care taken to select a

system which solved the immediate emergency “in a man- |

ner which preserves and prefers solutions reached through

- .eolleetive bargaining.” Changes were made by the Con-

_- gress—notably thie substitution of an. indepéndent ad hoc

“board: for the Interstate Commerce Commission as the

arbiter for.the dispute.* There was not a breath of a

_' suggestion, however, that Congress intended to remove -- |

or even downgrade the policy that the parties themselves:

should. confer in order to reach long-range solutions

through collective bargaining and agreement. ;

The carriers contend that all this means only ‘that the

parties were free to _bargain during the Award if-they°

wished, or even that they were encouraged to do 30, but

that for the two-year period the special act repealed -

pro tanto and by implication the duty under the Railway

-. Labor Act to confer on proposed rule changes. We dis-

agree. In our view Public Law ‘88-108 was ‘intended to

work the minimum disruption of permanent railroad legis-

_ lation and normal collective bargaining. The only disrup-

'. tion wrought, the only — by implication”, was that

as Hearings on S.J.Res. 102; Before the Senate Comm. on

Commerce, 88th Cong., 1st Sess:, ser. 24, at 375 (1963).

. 23 The Supreme Court referred to this jpahativation as the only.

“‘significant change’’ from the Administration: bill. Brotherhood .

of Locomotive Engineers v. Chicago, Rock I. & Pac. R, R., _—

note 4, 382 U.S. at 432. ;

. 50a.

/which necessarily accompanied the objective of staving

off a cataclysmic strike by imposing a tempofary settle-

ment. We detect no. glimmer of an ‘intimation -that the

carriers were authorized to- regard this as a two year ©

hiatus in their obligation to bargain. Rather, we find much

“to” hiilitate-against such a cotistruction.

It is notable that the parties to this dispute had already

agreed to submit their controversy to arbitration. They

stumbled over procedural details. Congress viewed its

role primarily as draftsmen of the specifies of an arbitra- -

tion agreement to which the carriers and unions had

already agreed in principle.** The statute in Section 4,

the Award in Part IV, and the reports of both congres--

sional committees carefully ‘specified that the effective

duration of the Award was limited te no moré than two

years, unless extended by stipulation, in order to restrict

the “scope and impact” of the statute.” .

In essence then we have a mechanism tantamount-to an -

. arbitration agreement, albeit one drafted by Congress,

‘that confers on the arbitrator | the power. to impose a

settlement .binding for 1 up to two years. It. becomes appro-

' priate, then, to consider what would have been the rights

and duties of the parties if. they had themselves written

the arbitration agreement. We are not concerned here

with customary adjudicatory or grievance arbitration.

Although | so-called “legislative” arbitration agreements

are relatively infrequent they are not unknown. Under

such agreements,’ praapenties rules and working condi-

* See S. Rep. No. 459, 88th Cong., 1st Sess. 9 (1963) ; IER.

| Rep. No. 713, 88th Cong., 1st Sess. 12-13. (1963) ; Brotherhood ~

of Locomotive. Firemen v. Chicago, B. & Q. R.R., 225 F.Supp. 11,

18 (D.D.C.), aff’d, 118 U.S.App.D.C. 100, 331. ‘F.2d 1020, cert.

denied, 377 U.S. 918 (1964).

8S. Rep. No. 459, 88th Cong., Ist Sess. 10 (1963); see H.R.

‘Rep. No. hice 88th nite Ist Sess. 14-15 (1963).

=f 4. aed

“,

5la

tions, instead of being determined by agreement of the

- union and employer, as is customary, are. determined by

an arbitrator to whom the function is delegated.* Such

a determination by arbitration is equivalent to a deter-

mination by agreement insofar as the rights and duties of

the parties concerning future modification are concerned.

An arbitration award does not operate to “prevent the

[parties] from seeking through negotiations under the

procedures provided for by the Railway Labor Act or

otherwise a new agreement’. . . covering the rules... .”?””

Responsible conduct of the. process of collective bar-

gaining, for consideration of proposals to modify work

rules established by an agreement or award of limited

duration, embraces conference and consultation prior. to

the termination date. This is the way: responsible busi-.

nessmen deal with each other when -they plan to continue

a business relationship—for example, in negotiating on a

contract or lease before its expiration date. This is the -

Way responsible employers and unions implement the col-

lective bargaining process, ‘and respond to calls for change.

And this is the way railroads and railroad unions must

‘respond under the mandate ofthe Railway Labor Act.

The purpose of a- Section 6 notice is “to fix a pro-

‘cedure for the commencement of conferences between rep-

resentatives of the two parties if changes are to be made

in the contract.” ** No rigid form for these notices is

defined i in the statute.” All that is specified is thirty days

‘o

- .26 See Evxourr & ELKouri, How ARBITRATION Worxs 30-47

+ (rev. ed. 1960). :

27Sheehy, Ch.J., in Brotherhood of Railroad ‘Trainmen. v. St.

Louis Sw. Ry., 220 F.Supp. 319, 326. (E.D. Tex. 1963).

78 MceMullans v. Kansas, O. & G. Ry., 229° F. 2d 50, 56 (10th Cir. ),

cert. denied,-351 U. S. 918 (1956).

"29 See Detroit & 7. S.L.R.R. v. Brotherhood of Locomotive viel

men, ani F. 2d 152, 153 (6th Cir. 1966). s :

- . 52a

written notice of a proposed change. The Act requires:

. that within ten days a time and place for conference be

set, and that the first conference be held within the 30- ay

period. ©

To- recapitulate, the Railway Lidia Act ‘not sae re-

_. quires railway employers‘and unions to confer and bar-

gain on work rules established by agreements or awatds

having a fixed expiration date when pone party wants to_

change the rules, but permits- -the statutory machinery to

be invoked prior to expiration in order to seek an agree-

ment on changes %o beobane effective gn or. after expira-

‘ tion. , : \

If an agreement (or award) contains a fixed éxpiration

_ date, rather than the common indefinite or automatic self-

- yenewal term, thenathe notice must indicate a proposed _

effective date for changes that is not only at least thirty

days after the notice, but also a time after the outstanding

agreement, or award expires. Nothing in the Railway _

Labor ‘Act, or the scheme of Public Law 88-108, forbids

' service of a notice more than thirty days before the sug-

ested rules would or could be effective, ‘and nothing

relieves the recipient from the duty to commence bargain-

ing at that earlier ‘stage.

The carriers seek to buttress ‘their claim: of pro tanto .

repeal by implication by arguing that it ean hardly: be

' supposed :that Congress intended.to permit. the unions to

ready themselves to strike on J anuary 25, 1966. The only

. forecast of that-day we.can find in ‘the legislative history

“is the assumption that it would be pyeceded by an agree-

’ ment of the parties. And that in turn, in our view, assumes

that responsiblé collective bargaining would have been in

_ train some time prior to the expiration date. If we -turn

from speculation about legislative intent to the realities

_. of-the Railway Labor Act, we are aware that the confer-

ences triggered by Section 6“ notices are typically the

heginning and not the end of the statutory procedures.

If conferences proposed by a Section 6 notice are unavail-

ing, either. party can invoke the services of the National

Mediation Board. While negotiations continue or the

Board has jurisdiction, no self-help. is permitted. The .

parties are free. to submit. their controversy to arbitra- .

tion. If none of these techniques resolves the matter, the

~ President may convene an emergency board .to investigate’.

the dispute and ‘report back on the issues: Only when all

_ these steps have been exliausted aré‘the parties permitted

to act unilaterally. “For the procedures of the .Act are

purposefully long and drawn out, based on the hope that

- reason and practical ‘corfsiderations will provide in time

an agreement that resolves the — ater

We do not say that. the time of serv. e of notice - is com-—

pletely irrelevant to the duties of. thd parties, It may be

that a notice: served the day~after the Award would

betoken bad faith to the point of vitiating its validity. We

. shall have occasion to point out that certain union notices

were defective for analogous reasons. But the mere. fact

that thé union,notices were served prior to January .25,

1966, did not relieve thé carriers of their duty to confer

and bargain prior to January 25, 1966. We are not con-

: sidering a case where the railroads, while conceding that .

the unions had a right to begin bargaining prior to the ©

expiration date, responded that the particular notice came

' too early, perhaps on the ground that it did not permit °

enough experience under the existing rules to spawn real-

istic and informed bargaining. In the case before us the ©

carriers flatly refused to engage in any statutory bargain- .

ing whatever prior to the expiration date. Except in the .

case of objectionable union proposals discussed below, the

carriers before us must be held to hhave + Sonera their

i; *% Brotherhood of Railway Clerks v. Florida E.C. Ry... 384 U. S.

_ 288, 246 (1966). See also. Farmer, Compulsory Arbitration—A

Management Lawyer’s View, 51 Va. L. Rev. 396, 401-02 (1965).

. \ . wf é.

\ | ? ?

. \

statutory duty under the Railway Labor ‘Act to, confer ~

and bargain on the merits ‘of proposed changes in work -

rules. The decree of the District Court embodies. a con-

‘trary declaration, and’.to that extent it is ‘reversed. -

We now.consider the effect of our reversal of the. Dis-

trict Court’s ruling that the notices were not effective: to

require negotiation until after termination of the Award.

As we have seen, conferences are but the first (step in-

the chain of Railway Labor Act procedures. Once they -

have been frustrated, one side to the dispute can move to

the. next tier of procedures, and indeed in at least one

series of cases.involving parties before us the National _

Mediation Board has accepted jurisdiction of the con-

-troversy. The carriers have foresaken their right to insist —

on conferences by their refusal to respect effective Section.

"” 6 notices. The standard for good faith bargaining is quite

liberal. Certainly it does not compel agreement. Judge

Bryan, after the most ‘careful analysis, formulated the

frequently quoted’ standard that the—

requirement of good faith bargaining is “deal a

requirement of absence of -bad faith. In order to show

such lack of good faith it is necessary to establish

facts from which it can be reasonably inferred that)

a party,enters upon a course of bargaining and pur-

sues it-with the desire or intent not to enter into an

agreement at all. American Airlines, Inc. 'v. Air Line

Pilots am, 169 F.Supp. 777, 794 (S.D.N. # 1958). !

Applying such a test, the carriers have , breached their |

duty té-enter negotiations in good faith, for- a refusal to .

bargain on an erronéous premise of law is no excuse.

% See, e.g., Order of Railroad Telegraphers v. Chicago & Nw.

Ry., 362 U.S.:330 (1960).. We do not consider attempts to obtain

- new work rules incompatible with those imposed by the Award

or with the report of the,Presidential Emergency Board reflective

of bad faith on the part of the unions. Compare Pullman Co. v. |

Order of Railway Conductors, 316 F. 2d 556 (7th Cir.), cert. denied, °

| ame U.S. 820 (1963).

Iv.

‘Although the: statutory duty to sabe continued | pean

ing the limited duration award, it was not unaffected by

the, temporary statute and the arbitration award. Their.

emanations do affect. the conceptions. of bargaining‘ in

good faith pursuant to a good faith notice, inherent in

’ the scheme of the Railway Labor Act. We shall develop

our specific rulings by considering the three groups~of—

unions in’ chronological order by: dates of notices. :

A. Ounen OF - . Ramwae Conpucrors AND Baaxmoen

“(ORCB)

One group of. cases before us, Nos. 20158 ites 20191,

concerns the Order of Railway Conductors and ae

(ORCB).* ‘On _Montlay March 23, . 1965, .that union,

expressly relying on the provisions of the Railway Labor

Act, served notices on the carriers which proposed a rule

requiring not legs than one conductor and two brakemen

on all classes of road train service thirty - days after .

-notice.- That date was; obviously, a full nine months prior

_ to the expiration date of the Award. The. carriers con- . *

sidered the n®tices premature and refused to concede any -

obligation: to bargain on the merits of the proposals.* .

- -ORCB invoked the services of the National Mediation

- Board, ‘which docketed the case, but suspended action -

when. the District Court held the notices premature. . .

We think it manifest that thé proposal to scrap the

Award during .its life time could be broached to the car-

The District Opinion is reported: Akron & B. Belt R.R. v.

Order: -of Railway Conductors, 253 F.Supp. 538 (D.D.C. 1966).

%3 The carriers lodged a further abjegtion on the ground that

the ORCB is not the certified bargaining representative of -most “

of the road brakemen directly affected by the motices. Compare

Southern Pac. Co. v. Switchmen’s Union of North. America, 356.

F.2d 332,335 (9th Cir. 1965). The. parties have —" ‘this

issue out of these ell

oe : ri

. *. . Sal . a

ay oe oe * ° 3 ° *.

| 7 a) Te

-:* tee 56a

riers _to see if they were interested but could not be pre,"

.: sented to them as a subject‘ of bargaining that -was man-.

datory under a statutory 0 igation. We agree with Judge

Bryan’s apprgach that the Wllective bargaining system of

_ the Railway Labor Act subsumes and presupposes a bar-

‘gaining “in good faith.” * The i Issue of good faith is inter-. -

laced with “bargainability”—a term of art which means.: .

- not only capable of being ‘aeation but also a proper i

ject -of mandatory bargaining. We. have already held that -

_ the carriers were in bad faith in asserting: that: they had _ .

_ ho legal obligation to bargain during the'life of the Award. |

' They had an obligation, we think, to bargain about changes. -

to become effective with the expiration of~thé Award. | .

But we also think that they had no obligation to bargain ~~

* about a proposal to. make charges during the life.of the - |.

Award. Such an obligation wotild be inconsistent with an -

inherent and essential element of Public Law ne Dest e

which was intended to promote long range solutions

through collective bargaining: by removing the need ei

bargain over immediate crises. 2} a

The ORCB argues that the carrier’s duty to sdeialine is

| reaffirmed by Section III of the award of Board 282 which

directs the parties to, resume local negotiations on crew :

* consist. We agree that--the unions could. have called on ©”

the carriers ‘to negotiate: pursuant to the Award. But this

_} is entirely different, from thé statutory duty. imposed by

‘Section, 6 of the Railway Labor Act, upon which the union

purported to rely, The Award machinery was essentially

différent from and displaced the Railway. Labor. Act con-

- eerning rules effective during the life of the Award. This

is demonstrable from. the provision of the-Award that.

_ specified that if the parties were unable ‘to arrive at an

agreement their dispute’ should be referred to a local arbi-

tration’ tribunal, This ‘is, of course, -entirely different

; \ from and anpeteawes = Vasic. structure of the Hatiwey.

. ™ See American Airlines ‘linet Vv. ‘Air Line Pilots Ass’ n., supra, 1.

| ° F. Supp. at 793.05.

‘Labor “Act wim, snvitilien for “compulsory arbitration

only for minor disputes, and contemplates mediation or,

voluntary arbitration where agreement has not settled —

“major. disputes,”” i.e. disputes relating to changes in rates _

of pay, rules or working conditions.* In this-context, we,

‘ agree that these notices were ‘premature.

~- termination of the Award) a new work rule be inserted « é

» requiring that not less than two, or in some eases th

_counter-proposals with -respect

B. Bioruzizoon OF RaILRoaD ‘TRAINMEN (BRT)

‘In. another group of cases (Nos. 20152, 20172, 20229 and

20249) we “are concerned with the Brotherhood ‘of Rail-

3 , road ‘Trainmen (BRT).”

‘On June 30, 1965, BRT served a notice proposing that

beginning January 26, 1966 . ‘(unquestionably after the

in the agreements between the BRT and the carriers:

brakemen be included’ in the “crew consist” of the &

rier’s runs.-In most instances the bayer in turn served |

oO crew’ consist rules, ©

although -they took the formal’ position that ‘the BRT ~

notices were premature and’ that during the life of the _

Award the. only proper procedure for instigating crew .

consist changes was in accordance with Part A(3) of

Section It of Award 282."

, 8 See Elgin, J. & E. Ry. v. Burley, 325 US. 711, 722-28 (1945).

", ° 96 These are appeals from judgments following the opinions in

Akron & B. Belt R.R: v. Brotherhood Railroad Trainmen, 250

F.Supp: 691, 252 F.Supp, 207, and 254 F.Supp. 306 (1D.D.C. 1966).

The Switchmen’s Union of. North America (SUNA) is also a

party in Appeals 20152 avid 20172. :

#7 «* Bither™ ‘party in interest’ shall give written. notice of any

_ proposed change in any such stipulated number of trainmen.

. The time and. place -for the beginning of conferences between

y the’ representatives of the parties in,interest with respect’ to such

proposed change or changes sliall be agreed upon within 10 days

~after thereceipt of said noticé, and said time shall be. within

15 days after the receipt of said notice.”’

t. oe é ; j

7 = oes) 58a

The carriers’ ‘deaket: of an. obligation ‘to bargain with -

- the BRT was essentially based on the contention of pre--

maturity which. we have already considered and rejected.

' We: turn to the carriers’ current argument that Section

6 of the Railway Labor Act cannot meaningfully~itmpose

a duty to bargain during the life of the Award about

- changes following its expiration, since this would. undercut -

bargaining pursuant to the Award concerning work rules.

- during the life of the Award. We see no- inherent, incon-

sistency such as we found in discussion of the ORCB

proposals. Bargaining and arbitration for rules to be in

effect for a two-year period are not inherently negatived -

by tandem bargaining under a different system over long-

range rules. Conflict in scheduling might be a temporary

‘ problem, but it could hardly dignify a complete denial of

_a duty to bargain over. the ultimate and dominant issues.

|. @. BrorHERHOOD OF LocoMotTivE FIREMEN AND ENGINE:

_ MEN (BLFE)

The third major group of cases, Nos. 20192; 20193, 20215

and 20216, imvolves the, Brotherhood of Locomotive Fire-

men and Enginemen (BLFE). ”

In November 1965 this union served notices to ‘iio

effect at 12:01am. on March 31, 1966, the day after

the Award, as "extended by stipulation, was to expire.

There wet three notices, each made expressly pursuant

to the Railway Labor Act: Notice No. 1 related to the

' types of engine services on which the employment of fire-

men would be-required, and would have pegged employ-—

- ment at a level. of .6000.jobs below ‘the terms of the

. National Diesel Agreement, but far above the level pro-

vided by Award 282. Notice No. 2 prdévided for compensa-

tion to —— who had been relocated, . severed, Or. other:

88 These are eieila from judgments following the opinion in

- Bangor &-A.R.R. v. Brotherhood of Locomotive ree, 253

F.Supp. - (D.D.C. 1966). . |

XN 7°

_ 59a

‘wise disadvantaged by the operation of Award 282. By

stipulation of the, parties we need not here consider

' Notice No. 3, which set out a training program for

apprentices. The carriers céntended that all such notices

were premature, and further contended that the second

and third were not even proper subjects of collective bar-

carriers resisted any attempts to reach the merits of the

proposed rules.

In the BL¥FE consolidated declaratory judgment actions,

the District Court agreed with the carriers on the major

points, holding Notices 1 and 2 not only premature but

also non-bargamable: although the carriers had not even ~

challenged the bargainability of the first notice. Thé court’s

interjection seems not only to have provided ‘an additional

reason for holding that the earriers had not violated a

legal obligation in the past, but also. to have prompted the

carriers to seek restriction of their obligation to bargain

in the future.

With the controversy dine expanded en, there was

' already “uncertainty as to the exact legal rights of the’

parties, the issue became the subject of a legal ruling.

Since the genie | ean not be put back into the bottle, ‘we

turn to consideration of the soundness of the determina-

tion’ by the District Court, and we conclude that it was

not a‘correet statement of. sppticable legal doctrine.

The District Court reasoned ern

‘the employees may not in the guise. of serving. natioss

under Section 6 of the Railway Labor Act, seek to

_ abrogate or set aside the Award. It must® be borne

_ in mind that the Award*is the result of a compulsory

arbitration conduced under a° mandate of Congress

“and has the stamp of judicial approval in the form

of a judgment in a proceeding to impeach it. Neither

a carrier, nor a union may institute’ proceedings, |

directly or indirectly, to set aside any provision of .

the Award, or the operations or activities that have

60a

‘taken place under it or - the results that. have been |

; achieved. as

% Since these notices were found niot to “relate to inatters

subject to collective bargaining under the statute,’ the

court declared that they “need not be complied’ with.” 253 ~

F. Supp. at.689: We disagree and are of the view that

_ Congress did ‘not intend that; either Public Law 88-108 or

Award 282 would permanently excise from the scope -of

eollective bargaining any proposals that otherwise would

have been lawful under the Railway Labor Act. Applying

this standard, we find that Notice No. 1 falls within the

-realm of proper collective ee but Notice No. 2

does not.

’ We begin our reasons for reaching this conclusion with

a review of the’ principles surrounding disputes about

‘bargainability. The settled tradition under. the. Railway

Labor Act reveals a firm obligation on the railroads and

' their employees to rfegotiate about changes in working

conditions suggested by one side or the other. In the

landmark case of Virginian Ry: v. System Federation No.

40, Railway Employees Dep’t, 300 U.S. 515, 548 (1937),*°

Justice Stone held that while the Act does not‘ compel

agreement, it does demand those preliminary steps, . trig-

gered by a Section 6 notice, without which no agreement

- eotld be reached. The minimum requirements are that

the employer at least meet with the union to listen to its .

proposals and to make a er effort to achieve an

accord.

~The subjects ‘for mandatory. mutual snisieedtinn are

defined in Séction 6 oe by reference to “rates of pay,

8° Bangor & A. R.R. v. Brotherhood of Locomotive Hide:

supra note 38, 253 ‘F. Supp. at 687. aa

- Accord, Elgin, J. & E. Ry. v. Butley, supra note 35, 325

U. S: at. 124-25 maid

6la

rules,. or wanking conditions.” ** But the courts have rati-

‘ fied the practice of the industry so that the duty to bar-

gain “geperally has been considered to absorb and give

statuto | approval. to the philosophy. of bargaining as —

worked out in the labor movement in the. United States.” *

That is, “what carriers must legally ' bargain about is

affected by what is in fact bargained about in the rail-—

road world.” * :

The scope of ‘bargainability. is altbieies broad. The

recent guidepost opinion in Order of Ratlroad Telegra-'

phers v. Chicago & Nw. Ry., ‘supra note 31, 862 US. at

338 (1960) states:

In an effort to prevent a DP ieitns and stoppage of

interstate commerce, the trend of legislation affecting

railreads and railroad employees has been to broaden,

not. narrow,’ the scope of subjects about which work-

‘ers and railroads may or must negotiate and bargain

‘collectively. Furthermore; the whole idea of what is

bargainable has been greatly affected by the practices

‘and customs of the railroads and their employees

themselves. It is too late now to argue that employees

ean have no collective voice to influence railroads to

act in a way that will preserve the. interests of the |

employees as well as the interests of the railroad and

the public at large.**

The court upheld the right to sitike to compel bargaining

‘on a proposed work rule change to prevent the carrier

from abolishing positions in existence before a certain

date. The court es the carrier’s contention that the |

"4 See also 45 U.S.C. § 152, Seventh. (1964). a

*2 Order of Railroad Telegraphers v. Railway Express kouny, p

Ine., 321 U.S. 342, 346 (1944).

48 United Indus. Workers of Seafarers: Int’1 Union v. Board of

Trustees of Galveston’ Wharves, 351 F.2d 183, 191 (5th Cir. 1965).

sis Cf. Fibreboard Paper Prod. Corp. v. NLRB, 379 U. S. 203,

209-15 (1964). erases

| 62a 2

proposal was not part of a legitimate “labor dispute”

because it sought to om “wasteful” and “unneces- |

sary” jobs. . eae,

The scope of work rules” discussed by railroads ond

unions over the past century, including the use of firemen

and the manning of trains,** has greatly exceeded what a |

layman might expect-the term to include. Bargaining in

the rail industry has comprehended fields frequently.

reserved to management in other industrial .contexts.

Not until the railroads began to experience the pressure .

of advancing technology and vigorous competition from

other modes of transportation after the Second World

War was there any suggestion that some questions of

bargaining. ‘Increasingly, the roads have come to use

the allegation of non-bargainability, and have sought judi-

cial rulings to protect managerial discretion. Rarely have .

the courts sanctioned this technique, and recent pronounce-

ments do not augur well for its encouragement.

This setting bids us. be chary of the conclusion of the °

District Court that there was no bargainability in Notice

No. 1 which proposed that. for the future the parties estaB-

lish work. rules different: from those prescribed by. the

Award for a two-year period. The court stated that Notice

No. 1 “demands the restoration of firemen on those runs.

for which Award:282 expressly held firemen were unneces- -

sary. Obviously, compliance with this notice would be a

consent to abrogate and do away with the outcome of the

‘5 See HLR. Rep.(No. 713, 88th Cong., 1st Sess. 6 (1963); Conf-

ment, The Railway Work Rules Dispute—A Precedent for Com- _ .

pulsory Arbitration, 14 De Pavut L. Rev. 115, 119-20 (1964).

_ See also Brotherhood of Locomotive Engineers .v. aes Rock

I. & Pac. R.R., supra note 4, 382 U.S. at 429.

*6 See the excellent discussion in Weber, Public Policy and the

Scope of Collective en 13 Las. LJ. 49 Jae

. 68a

arbitration.” “The District Court gave no clue as to how

in its opinion a Section 6 notice could validly propose

co changes in the work rules established by the Award, by |

what niethod, and to what extent.

In our view its conclusion was erroneous. | The crisis

- ‘conditions of 1963 evoked an unusual response from (on-

gress, but. one not intended to displace totally the frame-

work of labor relations law and practice in the field. The ~

phrasing of Public Law 88-108 and the reports that

accompanied it make clear that Congress in its controlled —

response did not intend to effect. a permanent alteration

‘in development of’ collective .bargaining. The preamble

set the tone 6f the statute, declaring that “it is desirable

to achieve [tk@%protection-of the national ihterest] in a

- manner which: preserves. and prefers solutions reached.

through collective bargaining. .. .” According to Section’8,

.the statute. expired of its own terms one-hundred. and

eighty days after enactment. The Award of the Arbitration

Board, by virtue of Section 4, could not “exceed two years

from the date the award takes effect, unless the parties

agree ‘@therwise. ” Section IV of the Award itself reiterated —

the limited duration of the terms imposed and specified it

would be in force for two — “unless the — agree

otherwise.”

This dual theme of limited survival and ‘contractual

freedom infuses a proper resolution 6f this case, and does

so with a spirit that is frustrated by the District Court’s

conclusions of non-bargainability (and indeed -of pre-

- maturity). In providing in Section 3 of the law that the -

- Award would be “binding on both the carrier and organiza-

tion parties” and constitute a “complete and final disposi-

tion” of the major issues, Congress meant only that the

Board’s conclusions were to have the status of arbitration.

awards in the. classic sense, not ae of mediation sug-

** Bangor &- A. R. R. v. Brotherhood of Locomotive —

supra note 38, 253 F. ~— at 688. :

gestions or fact-finding as in the ordinary | major Aiewate

under the Railway Labor Act. But Congress contemplated .

and intended that the parties could continue to work out a

- settlement different from that imposed by the Board to bé

effective for a limited two-year period. In submitting the

Administration draft to Congress,. “President Kennedy

repeatedly emphasized to the Congress his hope that the

‘dispute , could. eventually be settled -by ‘collective bargain-

ing.” Brotherhood of Locomotive Engmeers v. Chicago,

Rock I. & Pac.'R.R., supra note 4, 382 U.S. at 431. The —

President “expressed no desire to have Congress pass a law

that would finally and completely dispose of the problem,”

observing that it would be “ ‘wholly inappropriate to make .-

general and permanent changes in our labor. relations.

statutes... .’” Id. at 432. And the Congress “enacted the

bill proposed by the President” with but fone" ‘significant

- Congress emphasized in unambiguous bas that the

parties were not to be locked in by the terms -of the

Award on the firemen and crew consist issues:

It should be eapecially noted that, a g the

- joint resolution provides for. arbitration on these two

issues, the parties may still bargain collectively on.

_ these issues; and resolve them among themselves.

‘This process may take place before the arbitration

board is established ; after the board has initiated its

‘proceedings; and may also take place after the board

has made an award. By agreement, the parties may

. make the appointment of the board unnecessary; may

- make the decision of the board unnecessary; and may

supersede the. decision of the board—all through col-

lective bargaining. H.R. Rep. No. 713;* 88th. “Cong.

| Ist Sess. 13 (1963). (Expphasis added.) _ |

‘We find it ‘Seeeeibnt accommodate the iiaselins lan-

guage and animating. philosophy of Public Law 88-108.

with. the District :Court’s holding that Notice No..1. was

non-bargainable. The carriers argue now: that thé District

‘Goart did: not foreclose all sonstialey of altering the roles :

. imposed by the Board, but meant, only. to vindicate its -

efforts by precluding. return to the status’ quo ante. Even

if we agreed that the BLFE’s. Notice’ \No. 1 would have

that effect,* nothing we detect forbids proposing just such

a complete regression. .At least, we hold that-under the .

Railway Labor Act, and after taking into \account: such

qualification of that.law as is fairly implied from Public

' “Law 88-108, the BLFE could legitimately require. that the

- carriers negotiate about these proposals for work’ rules to

‘be. operative in the future:

Nothing compels the carriers to accede totally to changes

proposed in Notice No. 1, and indeed in light of the realities

of collective bargaining it is. unlikely that the BLFE .

expects to insist on complete acceptance of its suggestions.

But certainly there was no disability prohibiting the opener

that the BLFE included in its first notice:

Notice. No. 2, ‘however, fajlg in a different category. It

' - did not propose certain rule changes to gavern the future

operation of the #ailroads. It’ was aimed directly and

--urideniably at vitiating the Award of the Arbitration

Board, an Award ‘that has long. since received judicial

, eonfirmancs and been fully implemented by the parties.

- Although Notice’ No..2 expressly refers to Section 6 of

the Railway Labor Act, the notice on its face demonstrates

the irrelevance of Section 6, and ‘the “major disputes” °

provisions of the Railway Labor Act in general, :

Notice No. 2 explicitly proposed that “employees whose

employment and seniority were terminated by the’ applica-.

_ 282 will, on [the expiration of the Award as extended by —

_ *8 We note, however, that apparently 6000 fewer firemen would

~ have been required under the proposed rules than the National .

* Diesel — had provided. : eae

stipulation), t ‘a recalled and denteusd to the adatiy

roster and employed with ‘their: original seniority date

and used as firemen (helpers)... .’ In subsequent sections,

the notice proposed that employees terminated in. the °

course of implementing Award 282 be’ .reimbursed for

monetary loss due to the termination and deprivation of

seniority, including expenses incurred for meals, travel, .

lodging, and change a residence when relocating for other

assignments. |

‘These proposals relate to alleged past grievances. We

are éoncerned here with bargainability, and. instinct in

the essence of collective bargaining is a notion of mutality,

that if a subject is brought up each side has at least the -

authority both to offer and to concede.

What is the status of the union concerning the subject |

it proposed for bargaining in Notice No. 2? We turn to

Elgin J. & E. Ry. v. sc ~~? note 35, 325 de at

739;

To settle for the eutare alone, withest- reference to.

or effect upon the past, is in fact to bargain collec-

_, tively, that is, to.make a collective agreement. That.

_ authority is conferred independently. of the power to |

: deal with grievances, as part of the power to contract

“concerning rates of pay, rules, or working condi-

, tions.” It includes ‘the power to make a new agree-

ment settling for the future a dispute concerning the

coverage or meaning of a preexisting collective agree-

ment. For. the. collective bargaining. power is not

exhausted by being once exercised; it covers changing.

the terms of an existing | agreement as well as making

one in the first place. . / .

- But it does not cover changing them Avith retro-

active effects upon accrued rights or claims. For ‘it.

is precisely the difference between making settle--

ments effective only for the future and) making. them

effective retroactively to conclude rights claimed as.

-. having already accrued which marks | the ‘statutory

. 67a

: |

| boundary between ‘aliens nails and the settle-

ment of grievances.

The Court held that.a union had no lawful titiaite to

bargain for some of its members in ‘settling. claims they -

asserted against the railroad arising from the application

of new work rules. The court observed that the railroad

was not entitled to assume from the union’s. status as

bargaining agent that it had the right to settle claims for

past grievances, and that’ any stampa reached were

without legal significance. _ ; F

This analysis has an immediate bearing on our situa-_

_ tion. The BLFE proposed that the carriers jettison the

rights that had accrued to them under the Award, for

the Notice by its terms is limited to rehiting and’ ‘reim-

bursing those employees terminated in: implementing

Award 282. If Award 282 meant anything it provided the

sanction of Congress for the railroads’ authority to dis-

charge thousands of firemen. This permission was sharply

narrowed by stringent protective provisions under which .

severed. employees have already received many millions

of dollars in benéfits. The rights to these payments vested

' when the employees were discharged pursuant to the -

- Award. The BLFE Notice proposed that the carriers

renounce their. vested rights. But the bargainability of

> this subject: matter as a proposal for a change in “work. .

rules” is undercut by the fact that the Elgin case squarely . -

- denies ‘the BLFE any warrant in law to “bargain” over

any possible concession on the employee’ s side to make a

refund, or even partial refund, of any severance benefits °

already vested or paid. ‘Clearly a proposal that - cannot

lawfully be adopted is non-bargainable. *-Since the union

could not bargain away any part of the rights that accrued

% — under the Award, it could got compel. the

* See a Pace. Co. v. Switchmen’ s Union of North America,

Supra hote 33, 356 F. a at 334-35.

‘

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68a

. rights that accrued to’ the ‘carriers undet the Award,

. which” defined and limited the liability of the carriers

Filter ye arising from changes made in ‘accordance with the Award.

=~,

an oy application of. the award. As to this it suffices to point

-... ae ~. 4 of Publi¢ Law 88-1 108 permit: the union to bring forward,.

~ these; would not’ be ‘domprehended- by Section 6 of: the

—

rules, classified as major disputes:

No. 2 is inherently ¢ ‘Attack ,on the fairness of the Award

“4

"thereunder and its: judicial er

7 /, 7: i

* It i is our ‘hope and donteniplasis on ‘th t ‘any futher: liti-

is gation: will be conducted with’ a y Sed eutleok, The halls

Pe of justice shou d not be an arena whtre gladiators are

| oe spurred on- in desperate combat. They provide a, forum

; where } legal. disputes can’ be’ settled, with a minimum of

heerad “80 as. to further the Congressignal objective, of

7 ee ree

- . ba . .

N EE

RPA SDR HE TNO ee

fe : -

<! »,

1 +

Y ‘

eh ‘

oy de a

780.45; U. 8.0. § 158(m) (1964). ;

ot Stee Brotherhood, of Railroad Trainmen v. “haiiaial R. R:

decided this -day. °

that. they ar Te: usedfrequently in industrial relations. Whatever

_ may “be the general practice, and. regaydiess of what other provisions

by Section 6., Resse

~ ae ’

\" = ioe ae ol pera e . ‘

ie railroads’ to bargain on a proposal ‘that they surrender |

ie oe. i Notice No, 2° the union claimed there had been mis- «

~ Gut, that Section’ 8.of. the Railway Labor Act ™ and Section -

questions ‘of interpretation as'to the scope and appli- 7

“eability” off the Award: for resolution by Board 282." But .

: Railway Labor Act, governing proposed changes: -work. :

The rest. of Notice |

—and that‘is not bayghitiable under Seetion’6 ‘consistently,

My with the _purpose. of Publi¢ Law. 88/108, | -and the “Award *

Aon, USApp D.C.” - ‘Spang, ‘Fad nina (No, races

wa: y sie a ie ~ The BLFE, contends in its brief that, ihers is nothing’ wrong x

ee ee a with retroactive contract : proposals and agreements, and suggests

of the Railway Labor-Act may require, there is no duty to bargain —

".. eolleétively over the settlement of past a that i As: — .,

69a ,

agreement and, if possible, ‘harmony between: carriers. and

unions.”

| The nerws are directed to submit within 10° days a

proposed judgment, and to confer and endeavor to agree °

thereon. At that time the parties may also request. sapple- «

. mental rulings on any matters that ioiead not -been dis

cussed in this i sara ke

ae) ; Affirmed i in part, ‘

- , reversed m pee

58 This court’ s opinions in the instant eases will undoubtedly

‘have bearing on others ome in one way or mt out of Award

i __ 282. + ¥ BG

Before the present division are ten. cases, Nos. 20152, 20158,

20172, .20191,; 20192, 20193, 20215, 20216, 20229 and 20249.

Before the instant division also is No, 20316, decided today.

Previously argued before Judges ‘Bastian, Burger and Wright

are five cases, Nos. 19867, 20003, 20004, 20212 and 20213.

Case No. 20135, decided today, came before Chief Judge Bazeton,

Senior Circuit Judge Edgerton and Circuit Judge Coffin, - the

First Cireuit, sitting by designation).

Hitherto in the District Court, cases involving ‘i _

-.. work rules disputes have been‘referred to a single District Judge.

-The faet that we have differed from him in some aspects of relief

granted or of the basis of rulings should not be permitted to

obscure our appreciation for the prodigious effort he has made in

: ‘response to so difficult an assignment, yand for the commendable

manner in which he has approached sO many’ novel and complex

guestions. x

‘In’ today’s ‘text we eve undertaken definition ‘of the basic eost- _°

principles applicable to future consideration of \the issues. It:

would. seem that sound judicial administrati of the District

this juncture. We have in mind avoidance .of.further Sodadine z

of this District Judge and the broadening _ of application of /

, pertinent judicial expertise and exposure’ in meeting our common .

problgms. in this area. So it is that we have ourselves achieved

some distribution of the work ‘ad, and we regretfully assume

that ‘there may yet be heavy demands on judicial manpewer in

the District Court by reason of railroad work rules controversies. ‘

70a

‘APPENDIX:

Public Law 88-108

Act or Avausr 28, 1963, 77 Srar. 132.

Whereas the labor disptite between the carriers repre-

“sented by the Eastern, Western, and‘ Southeastern’ Car-

riers’ Conference Committees and certain of their employ-

ees represented by the Brotherhood of Locomotive Engi-

neers, Brotherhood of Locometive Firemen and Enginemen,

Order of Railway Conductors and Brakemen, Brotherhood

‘of Railroad Trainmen, and the Switchmer’s Union of North

America, labor organizations, threatens essential trans-

pomeee services of the Nation; and

_ Whereas it is essential to the national interest, including

the national health and defense, that essential trans-

portation services be maintained: and

_ Whereas all the procedures for resolving such dispute |

_ provided for in the Railway Labor Act have been exhausted

and have'not resulted: in settlement of the dispute; arid °

. Whereas the Congress find that emergency measures

are essential to security and continuity of transportation.

‘services by such carriers; and »-

Whereas it is desirable to achieve the above objectives

in a manner, whjch preserves and prefers solutions reached

through collective bargaining ; and ‘

Whereas, on August 2, 1963, the Ronstany of iti

submitted to the carrier and ‘organization representatives

certain suggestions as a basis of negotiation for disposi-

tion. of the fireman (helper) - and crew consist issues in’ the

. dispute and thereupon through such neg6tiations tentative -

agreement was reached with respect to portions of such

suggestions ; and Po ie ; eae. .

Whereas, on August’ 16, 1963, the: carrier parties to the

dispute. — and the organization parties to thre dis- |

oO.

Me | Tila

pute accepted with cartain reservations the Risveters of

Labor’s suggestion that the fireman \ (helper) and crew -

consist issues be resolved by binding ‘arbitration but the

said parties have been unable to agree upon the terms and

procedures of an ‘arbitration agreement: Thérefore be it .

Resolved by the Senate and House of Representatives -

of the United States of America in Congress assembled,

“That no carrier which served the notices of November 2,

1959, and no labor organization which received such notices

or served the labor organization notices of September 7,

1960; shall make any change except by agreement, or pur.

suant to an arbitration award as hereinafter provided, in

rates of pay; rules, or working conditions encompassed by

any. of such notices, or engage in any strike or lockout over

- any dispute arising from any of such-notices. Any’ action

heretofore taken which would be prohibited by the fore-

going sentence shall be forthwith rescinded and the status

existing immediately prior to such action restored.

See. 2. There .is hereby established an ‘arbitration board

- to consist of seven members. The representatives of the

carrier and organization parties to the aforesaid dispute -

‘are hereby directed, respectively, within five days after the

enactment hereof each to name two persons. to Serve as

members of such arbitration board. The four members thus

- chosen shall. select three additional members. The seven

members shall then’ elect a chairman. If the members

chosen ‘by the parties shall fail to name one or more of the

additional three members within ten days, such additional

-- ‘members shall be named by the President. If either party

fails to name a member of members to the arbitration

‘board within the five days provided, the President shall

name such member or members in lieu of such party and

shall also name the additional three members necessary

to constitute a board of seven members, all within ten,

days after the date of enactment of this joint resolution.

Notwithstanding any other provision of law, the’ National

. 72a

Mediation: Board is authorized and directed : (1) to com-

pensate the arbitrators not named by the parties at a rate

‘not in excess of $100 for each day together with necessary

travel and subsistence expenses, and (2) to provide such

' Services and facilities as may be necessary and appropriate

in carrying out the. purposes of this jgint resolution,

See. 3. Promptiy upon the: completion of ‘the naming of

the arbitration board the Secretary of Labor shall furnish

to the board and to the parties to the dispute copies of

his statement to the..parties of August 2, 1963, and the

‘papers therewith submitted to-the parties, together with

memorandums and such other data as the board may

request setting forth the matters with respect to which the _

parties were in tentative agreement ang the extent of dis-

agreement with respect to matters on which the parties

were not in-tentative agreement. The arbitration board

-shall-make a decision, pursuant to the. procedures herein-° '

_ after set forth, as to what disposition shall be made of.

' those portions of the carriers’ notices of November 2, 1959, _

’ identified as “Use of Firemen (Helpers) on Other Than

Steam Power” and “Consist of Road and Yard Crews”

~~and that portion of the organizations’ notices of September -

7, 1960, identified as “Minimum’ Safe Crew Consist” and.

implementing proposals pertaining thereto. The arbitra-:

tion board shall incorporate in such decision any matters:

on which it finds the parties were in agreement, shall re-

. solve the matters on which the parties were not in agree-

ment, and shall, in making its award, give due considera-

tion to those matters on which the parties were in tentative

. agreement. Such award shall be binding on both the carrier

and organization parties to the dispute and shall constitute

a complete and final disposition of thé aforesaid issues

- covered by the decision of the board of arbitration. ‘

Sec. 4. To the extent not inconsistent with this , joint

.resolution, the‘arbitration shall be conducted pursuant to .

sections 7 and 8 of the Railway Labor Act, the board’s

73a

‘award shall be made and fited as provided ‘in said sections

“States District Court for the District of Columbia is here-

Be designated as the court in which the award is to be filed,.

and the arbitration board shall report to the National

-_ Mediation Board in the same manner as arbitration boards

functioning pursuant to the- Railway Labor Act. The

award shall continue .in force for such period as the arbi-

tration boar§\shall determine in its award, but not to.

exceed two ydark8:from the date the award takes effect, ce:

unless the partiés agree otherwise. -

Sec..5. The’ arbitration . board shall an its hearings

. thirty ‘days. after the enactment, of this joint resolution _.

or on such earlier date as the parties to.the dispute and

the board: may agree upon and shall make and file its

award not later than ninety days- after the enactment of

this joint resolution: Provided, however, That said award

shall not become effective until sixty days after the filing

of the award.

Sec. 6. The patie, to the. deans arising from the.

, aforesaid notices shall immediately resume collective bar- |

‘ gaining with respect to all issues raised in the notices

of Novembér 2, 1959, and September 7, 1960, not to be dis-

posed: of by arbitration under section 3 of this joint resolu-

issues by agreement. The Secretary of Labor and the

_ National Mediation Board are hereby directed to give all

reasonable.assistance to the parties and to-engage in media- _

tory action directed toward promoting such agreement.

_ See. 7. (a) In making any award under this joint reso-

eden: the arbitration. board established. under section 2

shall. give due consideration to the effect -of the proposed

_ award. upon adequate and safe transportation service to

the- public and’ upon the interests of the carrier and

employees affected, giving due consideration to the nar-

. 4a

rowing “of me areas ° of Jimerevinent which has ‘been

accomplished i in bargaining and mediation.

(b) The. obligations imposed by this joint resolution, -

upon suit by the Attorney General, shall be enforcible .

through such orders as may be necessary. by any court of

the United States having jurisdiction of any of the parties.

. ~ See. 8. This joint gg shall expire one hundred

and eighty days after the date of its enactment, except that -

it shall remain in effect with respect to the last sentence

of section 4 for the period prescribed in that sentence:

Sec. 9. If any provision of this joint resolution or the

application thereof is held invalid, the remainder of this

joint _ resolution and the ‘application -of such provision to

other parties or in other circumstances not held invalid.

shall not be-affected thereby, et bee a

Approved August 28, 1963.

- Appeals from the United States District Court

for the District of Columbia

Supplemental Opinion Filed July 31, 1967

Mr. Milton Kramer was on thé brief for appellants in “

Nos. 20,152, 20,229 and 20,249 and appellees in No. 20,172.

Mr. James D. Hill for appellant in No. 20, 158 and

| appellee in No. 20,191.

Mr. Joseph L. Ruah, Jr., with whom Messrs. John

-Stlard, Daniel H. Pollitt, Ieaac N. Gréner, David Epstein ‘

_ and. Stephen E. Moss, were on the bref for appellant in

Nos. 20,192 and 20,193 ane appellee in ‘Mbs. 20,215 and

20, 216.

Mr. Francis M. Shea; with whom Mr. Richard ae ene

‘was on the brief for appellants in Nos. 20, 172, 20,191, -

20,215 and 20,216 and appellees in Nos. 20,152, 20,158,

20,192, 20,193, 20,229 and 20,249. Messrs. David Booth .

Beers and Ralph J. Moore,-Jr., also entered appearances :

for appellants i in Nos. 20,215 and 20 216. oes

Before DANAHER, Circuit Judge, Bastian, Senior Circutt :

Judge, and LEVENTHAL, Circuit Judge.

etenaniel Opinion _

- Lavanrnat, Circuit Fudge: On May 12, 1967, this sunt.

‘released its. opinion disposing.of many of the Tegal .ques-

tions ayising from the railway work rules disputes. and

the compulsory arbitration statute passed by Congress in

and complexity of the issues, we directed the parties to

~ 1962 to handle the controversies. Because of the number

76a

;

‘confer in an effort to propose a judgment embodying our’

rulings, and invited them to request supplemental rulings

| on any points not explicitly covered by our opinion.

"The ‘parties - have submitted numerous requests for sup-

plemental rulings, for reconsideration, and for clarification.

I The New Plateau .Work Rules Continuing In Effect

-A. Brotherhood of RaiJroad Trainmen (BRT)

The carriers’ contend that our ‘‘new plateau’’ rationale,

holding - that the-substantive terms effected by Award.

282 continue in force after the formal expiration date of °

the Award until chariged pursuant to the Railway Labor

Act, logically requires reversal of the District Court’s

ruling that the procedures established by Award 287 for

‘special arbitaration awards on the trainmen issue lapsed

* at the termination of the Award. We disagree.

Our decision rests on’ an accommodation of the some-

times divergent directives of Public Law 88-108, Award

.282, and the Railway Labor Act. Throughout, our touch-

stone has been our understanding of. dominant Congres-

sional intention. We viewed Congressional intervention

‘in 1963 as reflecting a sensitivity to the dangers of impos-

ing’ drastic’ changes on the pattern — of railway labor

collective bargaining. : : -

The point is simply’ this: We think Congress: meant

that changes in substantive work rules issuing forth after

the expiration of Award 282 should not be wrought by the

compulsory edict of a board, but should either be reached

iby agreement of the parties or should be born out of their

‘actions under the Railway Labor Act, an act which regu-

lates their conduct of bargaining so as to promote the 7

possibility of agreement, with the assistanee of the National

Mediation Board or other special boards.

This ‘dominant. Congressional intention means - -that a

difference must be drawn between those ‘actions of Board

° : Tia -

982 and its agents prior to the expiration date of Award

* 282 which effected changes in substantive work rules, and __

those actions which merely constituted issuance of proce-

dures for promulgating future changes in substantive work

rules. The completed changes in substantive work rules

continue on—unless and until changed again in accord- ~ '

ance with the Railway Labor Act. “ But there-is no con-

tinuance of what are in effect only procedures for i issuing

future mange | in substantive work rules. —

"Those procedures constituted a special mechanism for

making changes by award, and were intended to have

énly a two-year life, Upon the expiration of the two-year :

‘period the special machinery was exhausted and-in the

absence of agreement only the system of the Railway

Labor Act was available for future changes in substan-

tive work rules. Consequently, i in the absence of ratifica- _*

tion by agreement of the parties, a local adjustment board

_ had no independent legal authority that would permit it —

‘to achieve an alteration in substantive work rules subse-

* quent to the ana of thé two-year —

pa aos

B. Brotherhood of Senile Firemen- maid Enginemen en

(Bie . oF Fe M

The parties are in disagreement as to the import fer the

Firemen of our ruling as to the Trainmen, a ruling an-

nounced in.our May 12 opinion and adhered to on recon-

goes for the reasons noted above.

@ On the firemen issue, Board 282 decided that” £ mpet fire.

men could be dispensed with for other than steam power: |

engines. It developed a procedtire permitting the ‘‘blank-

ing’ of firemen positions as follows: Each carrier could

list those éngine crews on which it thought firemen un-

necessary for reasons of.safety or workload. These posi-

_ tions could then-be blanked, except that each local union

chairman was,given the right within 30 days of receipt

Ta"

_ of the carrier’s list to deaignate’ up to ten ‘percent of these

crews as requiring continued employment of. firemen. The

Award refers te this right to designation, as based upon

considerations of safety, undue work burden and adequate

‘and safe.service to the public, but provided that the desig-

nation shall not be subject to challenge or ‘review. This

‘procedure was: designed - to take. place * at three. month

intervals. 4

| A dispute arose when it came time to decide whit hap- -

pened to this procedure, and ‘the results it had Teaped, ;

when Award 282 expired. _ os

.The carriers insisted that when Award 989 expired the

: procedures continued in effect as: part of the new plateau

of work rules, and constituted a. continuing mechanism

for reducing. the employment of firemen unless and until

changed in accordance with Section 6 of the Railway Labor

, Act. The BLFE argued both that this procedure passed

out of existence when the Award termninated, and that the -

changes it had effected lapsed, so that positions blanked

during the life of the Award were resurrected. The Dis-

trict-Court ruled that a ‘‘new plateau”’ had been. created

_ that preserved what had been accomplished by the carriers

under the Award in reducing firemen’s positions, -but

held that the carriers could no longer resort. to the:

machinery created by the Award to make further job cuts.

The’ District Court .concluded, however, that the carriers

' were prevented only from taking ‘‘affirmative acts’’ in reli-

ance on the Award, but explained that this did not prevent

‘the carriers from refusing to fill vacancies resulting from

natural attrition. The underlying premise of that court’s

decision was that Award 282 superseded the requirements

- of the National Diesel Agreement which would otherwise

~. demand the use of firemen on all locomotives. eae

As set forth in our May 12 opinion, this court has

: rejected, though for somewhat different reasons, the con-

‘

79a

tention of the BLFE that. after anil 30, \1966, the status

quo ante compulsory arbitration was automatically re-

* stored. While we explicitly ruled: that ‘the procedure

created by the Board for making new crew consist rules

expired when the Award did, we did not previously’

€ ine the problem presented in the firemen context.

ThesBLFE insists that there is no tenable distinction :

whereby ‘firemen should be- subject to continuing reduc-

tions under the Award though trainmen are not similarly.

affected. The carriers concede that it is difficult to

distinguish the two situations, but suggest that the Award

might be viewed as merely setting forth a procedure for

crew consist changes but as directly affecting the firemen

“rules. .

Once naeia we find both parties somewhat out. of align-

_ ment with our basic premises. We have endeavored to

make it clear that nothing of the Award survived its

.expiration date. It is~the work rules resulting from the

Award that endure, by virtue of the Railway Labor Act;

they are deemed to be incorporated into the prior agree- ,

ments of the parties that themselves endure by virtue of the

Railway Labor Act unless and until changed: in accord-

- ance with that statute. We must therefore discern what

-*¢wérk rules”’ were put into effect under and prior » the

expiration of Award 282. —"

The Award did not dispense with the 1 use of firemen. It

began by continuing in force all ‘agreements, rules,

regulations, interpretations, and practices, however estab-

lished,’’ extept as modified by the Award. The Award

‘provided procedures whereby the carriers could mark

_. firemen jobs for extinction, and also established a recipro-

- eal poWer in the local BLFE chairman to immunize from

elimination ten percent of the crews listed. »The Opinion

of the’ Neutral Members of Board 282 makes abundantly

clear that the Board recognized. that the Award had the

™

ec! ehh 86 7 ci eee ae

of*firemen. The Board explained that it was conscious

that, the immediate impact of the Award might be small,

‘but that this was a deliberate choice reflecting concemn

- tribute to a final solution to the problems: Re oe,

~The Board’ 8 award will remain in force only. two

_ years. Within that time the effect of attrition may be ~

‘uch that the number ofsfiremen, or train crew _.

atl actually eliminated may be’ comparatively small.

% Opision, of Neutral Members, 41 Las. Ars. 680, 681.

The Board ‘isha. themselves characterized- oii thee

did as having ‘‘established a ‘procedure for determining

transportation service, particular jobs should be made .

subject to elimination.”’ Cp! 681) (Emphasis added.). In | -

explaining why the Award: provided that the union could

- insist on saving teri percent of the jobs marked for elimina-

* tion, the Neutral Members reasoned that this procedure,

would obviate the. possibility of objections, based on: safety

** effect only of sanctioning a procedure, of limited dutation’ 3

. for accomplishing a reduction in crew consist and the use _

for the humax factor in the equation ° and the foal that-

the Award would establish some principles that could con-

- whether, considering safety, workload, and adequacy-of ~

or: -egnvenience, to individual proposals for job reduction.

The underlying premise, as explicated by. the Board, was

that the Award would be able to authorize such reductions.

‘only during wo yéars, and unless an efficient procedure

were provided for making ‘specific decisions ‘the likeli-

hood of reducing [the number of disputes over individual

jobs] significantly in a two-year. period would not be.very

_ great.’’ (p. 690). Because of the two-year limitation on

the Award, the Board doubted that any standards it might -

prescribe could; be applied in particular disputes ‘‘in

“Sufficient-time to yield any significant results.”’ (p. 690).

As the event: turned out the earriers used the Award’s

‘ procedures to terminate many more firemen jobs than the

la |

‘ . : .

7 . —

‘Board predicted The, Neutral Members’ underestimate als

does not undercut buf rather underlines the view that the, .

mechanics for reduction in; firemen, jobs were procedures

of necessarily . limited duration, rather than. work. rules

with continuing: vitality.

Our conclusion is that the provisions in te Award for

establishing new firemen levels did not. constitute ‘‘work,

rules’’ in the classic sense, as we have used and applied:

that term, but instead are more accurately described as . :

procedures fox, establishing new’ work rules. The history:

of labor. rélations. agreements in. this industry reveals that

the: manning: -work rules } Were expressed in tefms . of a

ultimate results, like one-conductor-and- three-br kemen, or”

sia firemén-required-on-all- freight-locomotives, and were not «

formulated in terins of & methodological approach. This

‘practical construction. of the concept $f work rules is re-

'.. inforeed by the Board’s expressions’ tréating the mechanics

_of lists and designations as procedures. Accordingly, for

purposes of det@rmining what ‘‘work‘rules’’ were in force

on the last day of the life of Award 282, we do not;consider i ms

the procédures provided ‘by the Aw&rd for changing job ines

requirements as being themselves part of the substantive”

“work rules.’”? These procedures, like the pracedures —-:

changing substantive: work rules for erew consist of ~

trainmen, had no effectiveness after. the expiration of the

Award.

‘Ganeien::

ae on

1In the course of: ‘Congremional testimony, Chairman’ Ralph .

Seward of Board 282 and Assistant Secretary of Labor James

Reynolds indicated that their original ‘expectation was that: the

provedures would: Jead to a reduction of about. 5500 jobs, rather

than the 18000 the carriers succeeded in blanking. * See Hearings |

on the Administration of Public Law 88-108 Before the Senate —

Comm. on Commerce, 89th Cong., Ist Sess., ser. 89-45 at 363-64,

465-66 (1965). -And according to Senator McGee, the number of:

. firemen eliminated also exceeded. the expectations of ‘‘Members ~

of the U.S. Senate.’”? Hearings on the Administration of Public .

Law 88-108 Before:the Senate.Comm. on Commerce, 89th Cong.,

2d Seas,, ser. 89- 56, ‘at 1030 (1966).

Or ok Oe eke. fe

- This’ construction also gives what we consider the

appropriate. effect ‘to the undeniably significant provisions

in Public Law 88-108 and Award 282 that limited the effec- _

.tivness of the Award to two years. Sinee, the Award did

not become effective for sixty days after filing, the parties

had more thaa two full years to: plan its implementation. > _ |

’ Phe pre-existing work rules, contained in: the National

Diesel Agreement of 1950, stipulated that ‘‘A firemen, or

- a helper, taken. from the seniority ranks of the firemen, . ..

~~ shall be employed on all locomotives.’ ° Award 282 con- . t

tinued this requirement (and any. others st¢mming from - !

agreement or practice), until changed in accordance with

the Award. For two- years plus, the carriers had the,

machinery for proposing, at’ three month intervals, the

crews that they thought. could, safely and efficiently dis-

pense with firemen positions. The. fruits of these noticés

and negotiations, after, adjustment. for the Union’s ten |

percent retention, effected; what must be rgarded as new.

‘‘rules’? applicable to the particular runs involved, But |

when the Award expired, so did the procedures it sug-

gested. “What survives is the contplex of work rules in

' force on the last day prescribing the substantive terms that

controlled the use of- firemen on individual: runs.

wR consequence, @ carrier is not dnly -prévented from. |

taking ‘‘affirmative.acts’’ under the Award to reduce the +

" use of firemen, .as: the—Distriet—-Court ‘properly held, but—.____—

. also, if the carrier was required to. keep a firemen on a

particular crew as of the last day of the Award, it, cannot

“thereafter change the work rule by discontinuing : that

position, except by agreement or in accordance. with

Section 6. The-work rule that continues ‘in force provides

for a fireman on this crew, and that is not changed because

the particular fireman*on duty dies.or retires. - a

t .

day of the Award -provided that a fireman was not — |

required for a particular “— crew—because that crew

*. he could control—the work rule does.not require’a fireman

, a change‘in work rules but simply.an action in accordance .

was included on the carrier’s list of proposéd blankable

_ jobs and the union’s-local chairman did not designate it

’ for retention of a fireman, within’ the ten percent, of crews

on that crew even though | for one reason or another the

carrier had not. removed or transferred that fireman by

the end of the effective period of the Award.’ The carrier _

may thereafter transfer him, or refuse to replace him .

‘when he dies or retires. Such action would not constitute |

with the: work rule. in force on ‘the critical date, a rule

which proyided

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