# Appendix — Forgett v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1071%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1968 - **Citation:** 390 U.S. 203 ## Text DI LOVE LPO 2S ~ et Sag 4 + 4 Satin i ea 5 — - es : = ee i tele ae ‘ . . ‘ # ‘ a 5 ; v ed . . eo 4 . . x ¥ P - “ . . ¢ ’ , . * v ° « ‘ , - ad . © . * 9 ° . ad - ‘ ° . . s . . e ? ° ’ e - ‘ ° ad , ‘ ’ , , t . « a e¢ . - , . > “~ i . o - “ . . bad ad ’ ™ a >. - . . - a . A - ° © . . » ‘ . ¢ . - - y ‘ . ‘ ‘ ‘ . - - . . e . . ra] ° a“ . . . . . * . ‘ F . . . ” 2% . ad °¢ . “1 . . . e © : e ? . . sd : od ~ © . * . 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. =>, ehine Getn ap ates ony 7 — nes a : - ,. ° - Bi - ‘ . . . “ ° ° * . “ é bY a = * -) : ° . * as o c $ ° . e ale ™ io . “ bd « " -- w . ta- s y “ ° * are — Shea 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. 4 “ . ‘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 - —— a! a Tee ; 4 Eres : oe ‘ a Sa $ a L “% ae é ( i” =) . * 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. * ‘ -.s J ’ \ \ ° --- “Oma me : « = ss . ‘ . . \ ~ »> — — - n = 5 — 22. RSS . “ H 7 ~ 3 | La * 4 w : . is . e ; od . . . . * e be ge Py ee ee ‘ -eJf ig “ P at : - . > om er ‘ 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 * J! “4 ae "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 t 7 ee ree - . ba . . N EE RPA SDR HE TNO ee fe : - _ | ’ 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 4 v t . Conversely, however, if the work rule in effect onthelast © - 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 . oo 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 that no fireman was required for that. _ erew. ne Se : ° _ The National Diesel hintaan was not set aside ey he . Board. As.already noted, the opening section.of the Award =“ provided that. agreements in . force continued in effect except as they were modified by the Award. The Award provided a procedure for modifications during the two- year life of the Award. We: recognize that’ it may be turning -back the clock to an éra that two presidential boards and the Neutral Members of Board 282 have agreed is technologi@ily outdated, but taking into account the structure of Award 982’ as issued, we see no. alternative ; to holding that ariy new runs created after Award 282 &re subject to. the National Diesel Agreement, and its require- ment of a fireman on each engine_crew.———— — renee +» Moreover, the National. Diesel Agreement is in effect even though the only reason why a change in its work rule was not. made under the Award during its life time was the fact that the change was blocked by a’ state’s full crew law. The Supreme Court has expressly held that while such state law was‘in effect the. rend had no capacity to 2 The work rules effectuating the iain made under the Award- included the ancillary protective provisions of Part II.C for in- ‘dividuals transferred or separated in implementing the. noreeaa These work: rules continued i in effect afte? the Award. - Sta : oe Lae ‘ ‘make a change eontrary to its provisions. Den Brother- : hood of Locomotive Engineers v. Chicago, Rock I. & Pac. R. R., 382 U.S, 423 (1966). The opening sections of the : Award dealing with thé use of firemen and with crew consists provided for. the continuation of work. rules, how- » - ever established; uniess® changed pursuant to the Award. | ’ The repeal of a fall crew law subsequent to the expiration © of Award 282 came after expiration of the Board’s author- ity under the temporary statute and after expiration of the power of a carrier to invokt the procedures of ‘the Award. - med Ce eta, ~ IL Validity of Atcards Made January 25, 1966. In one respect we have decided* to grant. reconsideration and, modify eur opinion as requested, by the carriers. In our opinion of May 12, we held that Award 282 wwas no longer in existence on J anuary 25, 1966, when a special adjustmert board rendered crew consist awards between the BRT. and two carriers, and that therefore these awards were without legal significance. ° 6 ‘ We: rejected by” implication the carriers’. argument in brief that the BRT. had on to the contrary. On statutory provisions tnt an act ‘ done within a specified .. --—* period from the date of anothér action or event so that ‘thé initial or trigger date is excluded from the computa- tion. As we were aware, that is of course the modern. _ doctrine and is established by the decisions of this court among others. It is the rule adopted by Rule 6 ‘of the - - Federal. Rules of Civil Procedure. We. thought this rule - inapplicable because the starting date did not involve prob- Jems ot a tractlonal dey, aad wie in turn determined by 8 F.g., Freeman v. Pew, 61 App. D.C. 223, 59 F. 2d 1037 (1932) ; ;. - Burnet v. Willingham Loan & Trust Co., 282 U. S. 437, 439-40+ (1931) ; Prince v. United States, 185 F. Supp. “269, 271- Pinal (E. D. Wis. 1960): rs) a: See a still earlier computation beginning with 2 an initial date ‘that was concededly excluded from computation. - This led us to the view that the two-year period. prescribed by the Act as the life of the Award’did not extend beyond 731 full days (two, years of 365 days each, plus February 29, 1964), and that the Award which started ‘at 12:01 a.m. - on Jamuary 25, 1964, should not be*strétched to include ~ -the 732nd day of January 25, 1966.. We felt that in the peculiar. setting of this law that legislative consideration ' should prevail over the customary formula ‘for. computing : time.. On further reflection, we ‘think that while this analysis “may be sound for an appraisal of the problem in the first instance, a doetrine. not adverted to by the parties pre- empts the question. There is hornbook learning to the . effect that where there is doubtful language in a statute — for performance of an act, the courts prefer ‘that which will confirm rather than destroy any bona fide transaction . or title. 52 Am. Jur. Time § 18 (1944). This is powerfully ‘underséored by the doctrine, highly relevant to modern. needs, that. where statutes have been’ entrusted to admin-. . istrative agencies for implementation,, their construction ; should be given effect unless plainly unreasonable or in . ~ conflict with thé plain intent of the legislature. Board 282 was keenly aware of the problems: it faced’ in. possessing only temporary authority. It purposefully selected a standard for the: manning rule-for firemen that: could practicably be administered within that limited’ time. - When the speefal board assumed that it had the authority. to act on January 25, 1966, it must be presumed to have — ‘considered the question carefully and with a view to. con- forming to ‘the intent of Congress as nearly as. it could | discern. that intent. . eo Fae, S We note’ that the Union did not pro tly protest. the _ awards as untimely. And further indication that even the Union * regarded ‘the time question as, at least doubtfu —- 86a . appears ‘ftom the fact that. their notices used a January | 26, 1966 date as the effective date for proposed changes. 4 We acquiesce in the interpretation of this doubtful. question by the special board involved, since we cannot? é say this interpretation was unreasonable or violated any | plainly ascertainable legislative intent. Accordingly we ..”’ henor the board’s conclusion that Jandary 25, 1966 was. the final day. of the Award,-and hold that the special . arbitration awards rendered on that date were effective. ’ ee / TIT _Apptic ability of Section 8 of the Norris- La Guardia’ £ a » Ad.’ A. Brotherhood of Railroad Tyaivmen (BRT)’. 7 Appellant Union seeks a ruling that even ‘assuming ‘the District Court had jurisdiction to issue a restraining order, the i issuance of the’ order reflected error in this case. We are. cleat that the District Court was correct in holding that it had jurisdiction to-enjoin a violation of » the Railway Labor Act, and that’ this jurisdiction was not -negatived by or. subject-to— Section 4-of the Norris- . La Guardia Act. “We affirneed that conclusion in No. 20316, ‘and fully adhere toAhat ruling. © a. Although the'District Court liad jurisdiction to issue the restraining order we think it erred in doing so because— as we subsequently held in our May 12, 1967 ruling—the complainant carriers had failed to comply with their obli- - _ gations under the Railway Labor Act. Section 8 of the’. \ Norris-La Guardia: Act, 29 U.S.C. § 108 (1964), provides that a federal court shall not grant a restraining order. ’ or injunction in a labor dispute where the complainant ‘thas failed to comply with any obligation imposed by law which is involved in the labor dispute i in question.’’ The issuance of the restraining order ‘was conditioned on. the carriers’ posting a bond to make good damages, - not to exceed $10,000, sustained by any party er. am = a o -1965). ee. ; te ; (8a E : : ae _jostfained. We think the Union, which had to obey the “injunction or suffer penalties for contempt: of court, is . entitled to a ruling from this court that vacates an erroneous determination of the District Court, although of course we do not purport to describe what if anything the Union i is entitled to collect, on the bond. The District Court erred in concluding that because it ° held, correctly, that the. action was not sibject to Section 4 of the Norris-La Guardia Act, which would have ousted _ the court of jurisdictipn, it necessarily followed that the ‘‘clean hands’’ provision of Section. 8 of the Norris-La Guardia Act was likewise wholly inapplicable. The. a -Supreme Court’ has said, speaking ‘through the Chief © Justice, that ‘‘there must be an accommodation’? of this Act with the Railway Labor Act.’ Brotherhood of Railroad Trainmen v. Chicago'R. & Ind. R.R.,'353 U.S. 30,'40 (1957). That principle of accommodation means that. actigns to enjoin violations of the Railway-Labor Act may be main- tained without regard to Section 4 “of the Norris-La ; Guardia Agt, and yet be subject to Section 8 of that: Act. ” : That is the conclusion of other courts which have consid-— ered the mattet,* and we agree, The point is, simply, that. Congress did’ contemplate actions te ‘effectuate-the Rail- . all Labor Act wv. enjaining violations.° 5 That PUTPOS¢e ties 9a See land Ry. v. Brotherhood of Locomotive Eng’rs, 307 F. ae 1, 37-40 (2d Cir. 1962), cert. denied, 372 U.S. 954 (1963) ; icago, Rock I. & Pac. R.R. v. Switchmen’s Union, 292 F. 2d . 4 61, 64-66 (2d Cir. 1961), cert. denied, 370 U.S. 936 (1962) ; ; Elgin, J. ‘& E. Ry. v. Brotherhood of- Railroad Trainmen, 302 F. 2d 540, 544-45 (7th Cir.), cert. denied, 371.U.S. 823 (1962); Manning v. American Airlines, Inc., 221 F. Supp. 301, 304-06 (S.D.N.Y. 1963) ; cf. Brotherhood of Railroad Trainmen vy. Toledo P. & W.R.R., 321 — U.S. 50, 60-65 (1944); Brotherhood of Railway. Clerks v. Florida ; E. C. Ry. ., 384 U.S. 238, 247 n. 8 (1966) ; Brotherhood of Railroad . Carmen v. — & Nw. Ry. 354 F. 2d 786, 794-76 (8th Cir. durable resolution of vexing ‘questions. Congress contemplated~ that the parties | would resume negotiation .after they had garnered experience from — actually living with the Tules decided upon by the arbi-— trators-after giving ‘‘due consideration to the effect . . . upon adequate -and safe transportation service to the. public. and upon the -interests.of the carrier and em- - ployees.”* , (Sée Section 7(a).of Publi¢ Law 88-108). The general requirement in Section 8 for reasonable efforts at negotiation does not contemplate a departure. from the assumptions of a specific statutory plan. Therefore, entry of the restraining ‘order was not Amproper. _ The Unions have assumed that a full decree will be - entered by this court. We think the proper course #8 to ’ 7 ; j Ae . : He ‘ se nis te tare ee ae toe ae ae \ | baa het 2 ; o, a ° : ‘(90a . . . | ~yptiand for the: District Court ta enter decrees in accord- : & onve with our rulings. We approve its approach on, matters ‘drawn. dnito - ‘question except: as indiéated in our opinions.° The various , Judgments ‘and denrees appealed from are "accordingly \ vacated and the causes rémanded for -the entry of fresh. —— not inconsistent with’ our opinions. / ordered. " . = : 4 be . ; vd 6 We affirm both the. reasoning and rent reached a the Dis- | trict Court in construing the’ effect of the agreements entered into betwéen. the. BRT and the Kansas City. Southern RailWay and ‘Louisiana & Arkansas Railway, and thy Wichita Terminal Asso- ciation. We agree that the correspondence between the BRT and the Richmond, Fredericksburg’& Potomac Railroad constituted a | Dad er@w consist agreement of the same duratiog as an award by a special adjustment board. “We also approve the District Court’s holding. that ieee Railway Company and its subsidiaries were proper parties plaintiff “in suits involving. the ORCB and were covered wd Award 282. — a — 4 the District ‘Court and ‘the whe submitted ox counsel, ; » a APPENDIX G Before: Danaher, Circuit Judge; Bastian, Senior Circuit. Judge; and Leventhal, Circuit. J idge. « J edpninint Those causes came on for hearings on. the records of and were argued. by. counsel. ‘. On May 12, 1967, this court filed an opinion in ae above- a within ten days thereafter. -eaptioned causes, and° invited the parties to’ submit pro- | posed judgments and to request - supplemental ‘rulings “The . railroads submitted : proposed ais wk oo requests for supplemental. rulings, and filed petitions for rehearing. The. unions also submitted proposed judgments and requests for supplemental rulings, and filed” —— to the ‘vailrogds’ petitions for rehearing. Upon consideration of the foregoing, it ‘As . ORDERED AND Apsuperp by the Court: that, except: insofar © as they are granted i in the supplemental 9pihion filed this date, the aforsaid petitions for rehearing are denied ; and ‘itis | FurTHER ORDERED AND “ADJUDGED - the Court that, inso-> far.as reflected in the supplemental opinion filed this date, the requests for supplemental rulings are granted ; and it i is FURTHER OrpEREp AND ApsubcED. by the Court that: these te vacdte the orders and. decrees. appealed from herein and ” Sengen are remanded to the’ District Court with dif€ctions enter orders and decrees consistent with the opinion of this — Court filed May 12, 1967, and the cneceuern opinion filed — Per Curiam, _ a —-— wu 92a APPENDIX A - ae ” ~ Before: Danher, Circuit Judge; Rastion, Sealine Circuit: Judge’; and Leventhal, Circuit Judge, in Chambers. 7 eer and Order* These .cases were argued on cross-appeals filed by the Brotherhood of Locomotive Firemen and Enginemen (BLFE) in Nos. 20192 and 20193, and by -the ‘carriers,’ Bangor and Aroostook Railroad Co. et al. .» in Nos. 20215 and 20216. This court rendered . an opinion in ‘these cases, ana others consolidated. therewith, on May 12, 1967; and filed a supplemental opinion on July 31, 1967. The carriers filed a petition for ‘rehearing? and clarifica- tion’on August 15, 1967, and on August. 25, the BLFE filed a memorandum in opposition to that petition. The carriers assert, among other things, that this court’s opinion, and particularly its supplemental opinion, reflects a misunderstanding of the meaning and application of’ ee Award 282 intended by the Board of Arbitration — . 282). This ‘court has determined that Board 282 has contitining, * vitality for deciding questions of interpretation as to the scope and. application of the Award. (Opinion of May 12, 1967, pp. 39-40.) ‘It has also made clear that even on a question. where the Board did not have final authority, i.e. ‘interpretation of. the underlying statute, the court would accept the interpretation of the Board’ even though con- trary to the interpretation the court would itself have ren- - dered, so Jong as the Board’s interpretation was. not un- reasonable or contrary to ascertainable legislative intent. | (Supplemental —— of July 31, ei p. 15). *In Brotherhood of Leoometies Firemen and Enginemen- v. _ Bangor and Aroostook Railroad a et. al., Nos. 20192-20193, “20215 and 20216. ~ AccorDINGLY, now upon.consideration of the foregoing, of this court’s opinions above cited, and on the record before the court, It is OrpErep by the court that the carriers’ petition of August 15, 1967 is. denied, without prejudice: however to the Board’s seeking leave within thirty days,from. the date of this order to submit as amicus curiae a showing of re- spect, if any theré be, in which the opinions of this court .. are inconsistent with the understanding of Board 282 as to the proper meaning and applicability of its award. _Issuanee of the mandate will be stayed for thirty days. It is FuRTHER Orperep that the court’s supplemental opinion of July 31 be clarified by the addition of -the fol- — } lowing as a final paragraph of -saseed I of the opinion (p. 13 of slip opinion). : = ‘“‘The carriers argue in. effect that the Award at ie authorized the carriers to blank firemen positions: during the lifetime of the Award, with this personnel action re- maining in a state of suspended animation until its vitali- zation upon repeal of the full crew law. The Court noted in Rock Island; supra, 382 Us. at 423: ; Congress wanted to do as little'as possible in solving the dispute which was before it, and we note that this a dispute was not-over.,the size of crews in States which ~ had full-crew laws. _ The Board authorized the carriers to list jobs for blank- .ing, and thus provide a ¢lassification ‘‘when and if such full crew laws are amended or repealed,’’ _ Answer of May 17, 1964, to Carriers’ Question No. 5 ander Section II— Part B(1) and B(2). But this conditional blanking was only available as an advance procedure made fruitful if the necessary condition materialized during the 2-year... _ lifetime of the Award. See Opinion of Neutral Members, quoted supra, 41 LAB. ARB. at 661. The Board’s S energy was not limited to ‘‘the dispute which was before it [Con- “ _ reference to resolve academic differences or disputes that 94a | gress]’’ at the passage of the law, but also extended to firemen manning disputes arising during the crgical 2- — year period. But the Board’s order and interpretations © ~ cannot be stretched -beyond: the“ ‘Congressional frame of were neither in being at the time nor projected as arising durjng the ae period.” - So ordered. ee 95a | SW -APPENDIXI : ' ‘ ‘ » . \ - Award This Award i is ia pursuant to Public Law 88- -108, &8th Congress, S.J. Res. 102, enacted August 28, 1963. 9 _ The organization parties to the dispute eanned H. BE: Gilbert and R.'H. McDonald. as organization members of this Arbitratio&# Board. , The carrier parties to the dispute . . named Guy W..Knight and J. E.. Wolfe as carrier members of the. Board. ‘Benjamin Aaron, James J. Healy, and Ralph T. Seward were named as neutral members by the “President. : _ On Gapieater 11, 1963, “the Board met, elected its Chair- man and adopted rules of procedure. On September 23, . 1968; in accordance with Section 3-of the. Joint Resolution, the Secretary of Labor furnished to the Board and to ‘the parties to the dispute coptes of “his. statement to the . parties of August . 2, 1963, together with memorandums - setting forth his understanding of the matters with respect to which.the parties were in-tentative agreement and the » .____—extent-of disagreement with respect’ to matters on which. the. ‘parties were not in tentative agreement. » * Public hearings were ‘held’ in Washington, D. , on °» twenty-nine days between-September 24 and November. 2, _ 1963, at which witnesses were heard, exhibits introduced and arguments made. Rebuttal exhibits and written argu- “ments were received on November 9, 1963. an -On November 6-and 7, 1963, the neutral members of the Board, with the agreement of: the parties, visited cer- / tain railroad yards in the Chicago area. The sole purpose = é of these visits was to assist the neutral members in under- standing the evidence and arguments presented at the __. formal hearings and nothing said or shown to them during these visits was accepted as-evidence. re oe fs fe er j 2 _ hh a 96a ~ During the. coprse of. the sisiiailtinn. questions arose as to whether certain carriers and certain of their em- - ployees were or properly- should be parties to the dispute and subject to the Board’s jurisdiction. The carriers with regard to which such questions arose were the Union Rail- © road C®m ny, the Florida East Coast Railway Company, and the Elgin, Joliet & Eastern Railway Company. The. Board declined to rule on these firrisdictional questions on the grounds that final determination of the Board’s juris- diction over any particular’ carriér and any particular: group of employees could be made only by the courts_and that time did not permit the Board to conduet the special proceedings , required for such_a~determination. Nothing in this Award, | owever, and no action by the Board, in- cluding the reception into evidence of -Carriers’ Exhibit No. 1 or Employees’ Rebuttal Exhibit No. 33, listing cer- - tain carriers. as parties to the proceeding, is intended to ° _ prejudice the position of any carrier or any organization as to these “jurisdictional questions. . ; ’ The Board has incorporated in this Award any matters... on which it found the parties were in agreement, has re- solved the matters on which the parties were noi in agree- ment, and has given due consideration to those matters on which the parties were in tentative agreement. Further, | the Board has given due consideration to the effect of the Award upon adequate and safe transportation service to | the public and upon the interests 6f the carrier and em- __ployees affected, giving due consideration to the narrowing of the areas of disagreement which has been- ‘accomplished in bargaining and mediation. After a full consideration of the evidence ined arguments and upon the entire record, the Board-makes a complete and final disposition of the i issues submitted and finds and awards as follows. as / oe } e ’ ¥ a Ms : | | Me. I. Disposition or Section 6 Notices oi 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. are denied, eithaie to the extent hereinafter provided. IL. Ves OF Ymeuzs. (Hetrers) On OTHER THan STEAM POWER. Parr A—Savine CLAUSE A(1). All agreements, rules, regulatio , interpretations, ‘and practices,- however established, with respect to the _employment of firemen: (helpers) shall continue: undis- . turbed except | as modified by the terms of this Award. Pane B—Repucrions In Joss B(1). Within 7 days following the effective date of this . Award, éach carrier covered‘ by this Award shall have the right to give to each local chairman of the organization representing firemen (helpers) in each fireman (helper) seniority district a list-of pool and regularly assigned. - freight engine crews (including pool and regularly assigned crews used in mixed, miscellaneous, and: unclassified ° serv-- ives) and a list of. ‘regularly assigned yard engine crews (including regularly assigned crews used in transfer, belt line; and miscellaneous yard services) then employed by the carrier in each such seniority district. The two lists ‘shall include those engine crews which, in the carrier’s judgment, based. upon considerations of aafety, undue work ' .purden, and adequate and safe transportation service to . the public, do not require the services of a fireman (helper). B(2), Each local chairman, within 30. days of receipt of the earrier’s lists, shall have the right, based upon con- we: » 98a ‘siderations of safety, undue work burden, and adequate | -and safe transportation service to the miblic, to designate . the engine’ crews in which ‘the carrier shall be required to continue to use firemen (helpers) ; provided that such des- ignated crews shall not be more than 10 per cent of the freight engine crews, nor more than 10° per cent of the yard engine crews, in any seniority district, as, Such crews are listed by the carrier.. Each lecat chiairman’s’ designa- ion of crews to be operated with firemen (helpers), made - as provided herein, shall be final and binding upon the . p rties in interest and shall not be subject to challenge or review; but prior conference shall bé had between the pa ties. in interest with respect to the-crews to be so desig. “nated by the local chairman. The time and place for the. beginning of such conferences, shall be agreed upon within 10 days after the receipt of the earrier’s lists by the local ' chairman, and said ‘time shall be within. 20 cig after the receipt of the said lists. . > . B(8). At 3-month dutarvile folowing the awe of the sf ‘carrier’ s original lists, the carrier shall give to each local chairman lists of pool. and regularly assigned freight . - engine crews and of regularly assigned yard engine crews which have been established or discontinued in each senior- ity district during the preceding 3 months and which meet. the criteria set forth in paragraph. B(1) of this Award; and>the number of crews designated by the local chainnan in which the carrier shall be’ required to ‘use firemen (helpers) shall thereafter be adjusted, in the manner pro- . ‘vided in paragraph B(2) of this Award; provided that not © more than 10 per cent of the pool and regularly assigned freight engine crews nor more than 10 per cent of the : regularly assigned yard engine crews, then employed by . the carrier in any seniority district and. included in either list, shall be designated as crews in which firemen. _— a must be used. . B(4). Copies of all lists herein- required to be furnished | by the carrier to the local chairman shall be furnished to — -the general chairman of the organization involved. . : 99a B(5). After the expiration of 37 days following the effec- tive date of this Award, the carrier shall ‘not be required to use firemen (helpers) on, other than steam power in any class of freight service (including all mixed, miscellaneous, and unclassified services) or in any class of yard service (including all. transfer, belt line, and miscéllaneous yard services), otherghan in crews designated by the. local chair- man, pursuant to the provisions of paragraphs B(2).and B(8) of. this Award, except as may be necessary to pro- vide jobs for ‘frem@h, (helpers) whose employment rights are retained as provided in Parts C and D of this Award; provided that no yard locomotive shall be operateu without . a fireman (helper) unless and until it is equipped with a deadman ess in — operating condition. Parr C—Repuctions In EMPLOYMENT -Q(1). ‘After the expiration of 37. days following the ‘effec- tive date of this Award, the carrier shall not be required to\hire firemen (helpers) on other than steam power in ‘any class of freight service (including all mixed, miseel-— -laneous, and unclassified services) or in any class of yard service (including al] transfer, belt line, and miscellaneous _ - yard services) unless or until such new hire is‘ needed to | man engine crews designated by a local chairman as pro- — vided in paragraphs B(2) and B(3) of this Award; and firemen (helpers) that are unneeded to man such desig- . nated crews may be separated from the carrier's payrolls. and have all of their seniority and employment rights and _ relations terminated, to “the extent permitted in the follow- — ing paragraphs of Part C of this Award. » €(2). Firemen (helpers) hired on or after a date 2 years prior to the effective date of this Award may be separated from the carrier’s payrolls and have all of their employ- ment and seniority rights and relations terminated, and _ in such.case shall be entitled to .a lump sum separation allowance in an amount to be determined as provided in ¥ ‘ 100a Section 9 of the Washington Job Protection Agreement of May 21, 1936. C(3). Firemen (helpers) hired prior to a date 2 years «= prior to the effective date of this-Award whose average . monthly earnings as firemen. (helpers), hostler helpers, “hostlers, or engineers have not exceeded $200 during the 24 full calendar months preceding the effective date ofthis Award; may be separated from the carrier’s payrolls ‘and have all of.their employment’ and seniority rights and rela- tions terminatéd with a severance allowance equal to 100 per cent of their earnings during the preceding 24 calendar . > months; or may elect to remain on the ‘seniority lists of the carrier with rights to such work as: they are qualified to perform, and which may be or become available to them, as provided in Part D of this. Award. 0(4). Firemen (helpers) hired pribr to a date 2 years prior to the effective date of this Award, who have not on tat . performed Service as.an engineer or as a fireman (helper) . * ‘since that date, may. be separated from the carrier’s pay-, Tolls. as firemen (helpers) and have all of their employ- — ment and seniority rights and relations as firemen (help- ers) terminated with no severance allowance. - (5). The provisions of paragraphs C(3) and C(4) of this Award’shall not. apply to officers or employees of the organizations representing firemen or. engineers: employed by the carrier, or to supervisory or *sanagement officials — . of the carrier, er to employees on“appropriate leaves of absence, or to discharg@l.employees whose cases for“rein- . statement. are pending, providing, if not so situated, they ‘could have met the minimum requirements of. pervien. or earnings. C(6). AIF other firemen (helpets) with bien thah- 10 oat seniority on, the effective date of. this Award shal? retain their rights ‘to and obligations to protect engine . _ sérvice assignments as provided by rules in effect on the day preceding the day this. ae becomes effective, Se 1la | cept as modified: by and subject fo the provisions of Part D of this Award, unless and until offered by the carrier * another comparable job (such as, but not limited to, engi- neer, fireman (helper), brakeman, or clerk in the same or - another seniority district) ‘for which they are, or can .be-° come, qualified. The offer‘of another job shall carry with it. relocation expenses as provided for and under the condi- .°- tions set forth in Section 10 of the Washington gob Pro- ~ tection Agreement of. May 21, 1936, the continuation of accumulated seniority rights. toward such purposes as vaca- tion and other applicable fringe benefits, and guaranteed ~ annual earnings, for a period not exceeding 5. years; equal’ 7s to'the total compensation..received by each.such employee’ “as fireman (helper), hostler helper, hostler, or engineer during the last 12 months in which compensation was ‘re- 2. ceived prior: to the date of transfer. Such offers of: -jobs. shall be posted and made available to all qualified. firemen . (helpers) in order of. ‘seniority in the seniority district~in which the job offered is located. -If, within 7 days after notice is posted, no- senior man elects to take such offered job, the most junior man then on the fireman (helper). ° roster in that seniority district must, within 3 days from. ~ receipt of written notice, accept the job or all 6f his, em- "ployment and seniority rights and relations shall be. fermi- nated and, in that event, he shall be entitled to -one-half the severance allowance provided for in paragraph C(3) of this Award. If such junior firemari (helper) shall fail to accept such job and thereby terminates his employment as herein provided, the next most junior fireman (helper) on. that same roster must accept,,the job within 3 days from receipt of-written, notice or forfeit all f his employ- ment and seniority rights and relations the allowance _qpusvided-for above. In each case of. refusal to, accept such ' «job offer the next most. junior fireman (helper) shall .be required to accept, as provided for above, or. forfeit’ his employment and seniority rights and relations with, in each ° case, the allowance bois for akove, until there are no— | I] “7 See e. : ee ae eee ee en, ~ firemen (helpers) with less than 10 years’ seniority remain- ing on the seniority roster for the seniority district in which the job offer is located. Thereafter, the same pro- cedure -as is provided above shall be followed in the fire- gaan (helper): Qeniority district which has its principal extra list for firemen (helpers) clasest. to = location of - ‘the job offered. (7). ’ Firemen (helpers) with 10-or more years of ‘seniority as; of the effective date-of this Award,-who are’ not: separated from the carrier’s payrolls’ under the pro- visions- of paragraphs C(3) or C(4) of this Award, shall retain their rights to and obligations to protect; engine - sérvice assignments as provided by rules in effect on the _ day preceding the day*this Award here effective; ex-. cept as modified by and subject to the provisions-of Part D of this. Award, unless and until retired, discharged for cause, or otherwise removed from the carrier*8 active. work- } ; ing tate of firemen on. {helper Py hatural attrition’ _ 3 os," & w Parr D~Resuvs To Work D(a). Firemen, (helpers) who elect to remain on the seniogity lists of the carrier as provided in paragraph C(3) of this Award shall be entitled to ‘exéreise their ° seniority rights as firemen (helpers) to available employ- ‘ ment in engine crews used in passenger service and in o ‘freight and,yard engine crews designated “by the local chairmen i in their respecffve seniority districts.as provided: in paragraphs B(2) and B(3) of this Award, as hostlers or — .. hostler helpers, and as engineers in any’ class of service for Which they are. qualified; but such firemen (helpers). ’ shall have no. rights to and shall not claim seniority rights” sto oF employment i in any other sérvice. D(2). Firemen: (helpers) who remain oh the active work-~ _ ing lists of the carrier-ypder the provisions of paragraphs - ° €(6):and C(7) of this Award shall have the right to work — - their ~— as firemen (helpers), to the extent that — e) = 8 . - : be * CR} General considerations. - (a) Assurance of adequate safety. - (b) Avoidance of unreasonable tii or r workload on members of the. crew. a — (¢e) Changes i in operating conditions, including density ; of ‘traffic. (d) Practices: regarding the consist of crews in com- parable situations where such practices are not in dispute. (e) Special. conditions | which exist on a" gartioular assignment. (f) Duties required in compliance with the carrier Ss | operating rules: and instructions applicable to the q crew in. question. “ee | eae " (g) Physical characteristics of the line to bé traversed and in the areas ‘where switching or industrial: work is to be performed (including grade and gen- | eral climatic conditions)... : “(hy The number of highway, stoont, road, railroad, or other crossings or intersections to be protected. i) State, county, or municipal regulations applicable with respect to highway, street, ‘road, railroad, or other crossings. or intersections. : ; (j) Availability and use of communication equipment .. (such as, but not limited to, end-to-end train radio, _. train to way-side radio, and walkie-talkies). a 108a_ * (k) ‘The presence or absence of a fireman in the engine service crew. ; C(3). Particular ineiisdiiis caiaiieas road service. ms (a)_The . amount of baggage and storage mail to be handled on and off the train at intermediate sta- tions by the train crew. (b) The number of passenger cars handled i in the train and passenger count. (c) The method of handling passenger transportation Se ee ee (a) The number of. passengers, beanies and leaving the train at intermediate stations. (e) Duties required other than the above on any par- ticular sanguin. ~C(4). Particular considerations—freight service, includ- ing miscellaneous and unclassified services. , (a): The amount and nature of. work to be performed en route. | " (by) The length @2 tala, to slidiinds alle tha amount and nature of work to be performed en route. — (c) ‘Time lmitations applicable to the particular as- mgnenans. rae: aa, C(5). Postion considerations—yard, transfer, and belt sed service, ° including all miscellaneous yard services. (a) The amount and nature of the work to be per- — formed. (b) Volume of wutk considered in ccaiteiot with ap- ° plicable service time limitations. - 109a S am - Parr D—EMpiover Protection D(1). Road trainmen and yard brakemen or helpers, _ other than those on furlough on the date that this Award » becomes effective, shall be known and designated, for the - purposes of this Award, as “protected employees.”’ D(2). A ‘‘protected employee,” known and designated as provided in paragraph D(1) of this Award, shall retain his rights: to and obligations to protect. road and. yard service assignments (including all assignments in miscel- laneous and unclassified road services and all assignments in transfer, belt line, and miscellaneous yard sefvices). for which he is qualified, as provided by rules in effect on the day preceding the day this Award becomes effective, - to the extent that such positions are available to him in his seniority district, unless and until retired, discharged - for cause, or otherwise removed from the carrier’s active working. lists 6f- road trainmen and yard brakemen or | helpers by natural attrition; provided, that no ‘such “pro- tected employee” shall have any right to jobs or positions that the carrier may discontinue pursuant to the provisions of this Award if other employment in any such classes of service, for which such employee is qualified, is available to him in: his’ seniority district. .If and when the carrier is required to create new jobs or positions for road train- men or yard brakemen or helpers, pursuant to the pro- visions of this Award, such. -positions shall first be filled, to the extent available, by “protected employees’’ then. . filling positions which the carriers would otherwise have the right to abolish or eliminate pursuant to thee pro- visions of this Award, before such jobs or positions may + be claimed by other employees of the carrier in accordance with their seniority — 2 \1l0a +) —_— IV. Duration This Award shall continue in force for two years from - the date it takes effect, unless the ene agree otherwise. . Dated: November 25, 1963 /s/ BENJAMIN ii Benjamin Aaron. Neutral Member . - /8/ Jagges J. Heavy — 6 ae James J. Heal} -Neutyal Member /s/ Raupu\T. Sawarp Ralph T. Seward same ene of the Arbitration Board . ‘Con qgRrine : : - /8/ Guy W. Knicut nee + oko Guy W. Knight a a eee : _ Carrier Member cneogtP ser | /s/ J. E..Wours ' J. E. Wolfe Carrier Member ‘ r . | DissENTING: i -H. E. Gilbert Organization Member . 4 | RR. Yn McDogald Organization Member ro, 11la. } APPENDIX J _ | STATUTES INVOLVED Public Law 88-108,-:77 Stat. 132: Whereas the labor dispute between the carriers" repre- sented by the Eastern, Western, and Southeastern | Carriers’ Conference Committees and certain of their employees represented by the Brotherhood of Locomotive > ., Engineers, Brotherhood of Locomotive ‘Firemen and. Enginemen, Order of Railway Conductors and Brake-. men, Brotherhood of Railroad. Trainmen, and: the Switchmen’s Union of North -America, labor organiza- tions, threatens essential transportation services of the Nation; and - p Whereas it is essential to the national badinnal: includi g the ‘national health and defense, that essential. transporta- tion services be maintained; and a Whereas all the procedures for: resolving such dispute’ pro- vided for in the Railway Labor Act have been exhausted and have not resulted in: settlement of the dispute; and. Whereas the Congress finds 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 which preserves and prefers solutions reached through collective bargaining; and Whereas, on ‘August 2, 1963, the Secretary of Labor sub- mitted to the carrier and organization representatives certain suggestions as a basis of negotiation for disposi- tion of the firemen (helper) and crew consist issues in the dispute and thereupon through such negotiations tentative agreement was reached with respect to pettone of ‘such ‘suggestions ; and "Whereas, on August 16; 1963, the carrier parties to the i aie accepted hve the organisation parties to the dis- ¢ \ a bg . ‘so p. oe 7 ;™* \; Jf \ Se BA. ine event, the said Board shail sinimaite put itself in communication with the parties to such contraversy, - and shall use its best efforts, ‘by mediation, to bring them to ‘ agreement. If such :efforts to bring about an amicable _ settlement through mediation. shall be unsuccessful, the said Board shall at once endeavor as its. final required ac- . ‘tion (except as provided i in paragraph third of this section : and in Section; 10, of this Act) to induce the parties to sub- mit their controversy to arbitration, i in accordance with the aii of this Act.. Poe a “If arbitration at the. riigiaet of the Board shall be re- | fused by one or both partiés, the Board shall at once ~ notify both parties in writing that its. mediatory efforts have failed and for thirty days thereafter, unless in the intervening period the parties agree. to arbitration, or an emergency board shall be created under Section’ 10 of this Act, no change.shall be made in the rates of pay, rulés, or working conditions or established practices in effect: prior _ ~ to the time the dispute arose. ce he . Sao fe a ) oe 86 e Section 6. Carriers and representatives of the employees shall give at least thirty days’ written notice of an intended change i in agreements affecting rates of pay, rules, or work- ing conditions, and the time and place for the beginning . of conference 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 Me@Miation Board have 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 controversy has been finally acted ‘upon as required: by Section 5 of this Act, by the Mediation Board, unless a period of ten days has elapsed . 117a. _ after termination of conferences without request ‘for or proffer of the services of the Mediation Board. _ ARBITRATION - . * Sec. % First. Whenever a controversy shall arise be- tween.a carrier or carriers and its or their.employees which is not settled either in conference between representatives of the parties or by the appropriate adjustment board or’ through mediation, in the manner. provided in the pre- ‘ceding sections, such controversy may, by agreement of the | parties.to such controversy, be Submitted to the arbitration of a board of three (or, if the parties to the controversy so stipulate, of six) persons: Provided, however, That the: | failure or refusal of either party. to submit a controversy . — to arbitration shall not be egnstrued as a Violation of .any. legal obligation imposed upon such party by the terms of this Act or otherwise. 2 Second. Such board of arbitration shall be chosen 3 in the following manner : , (a) In the case » of a board of oy the carrier or car- ' riers and the representatives. of the employees, parties re- spectively to the agreement to arbitrate, sliall each name one arbitrator; the two arbitrators thus chosen shall select a third arbitrator. If the arbitrators chosen by the parties shall fail to name: the third arbitrator within five days af- ter their first meeting, such third arbitrator shall be named by the Mediation Board. ei, _ (b). In the case of a: board of" s six, : dies carrier or carriers © - and the representatives of the employees, parties respec- tively to the agreement to arbitrate, shall each name two. “% arbitrators; the .four arbitrators thus chesen shall, by a . majority vote, select: the remaining two arbitrators. Ifthe ~ ‘arbitrators chosen by the parties shall fail to name the two arbitrators within fifteen days after their first meet-. ing, the said two arbitrators,‘or as many of them as have not been named, shall be named by the Mediation Board. , “ e ° bed ° » ~ ‘18a | Third. (a) When the arbitrators selected’ by the respec- tive parties have.agreed upon the remaining arbitrator or arbitrators, they shall notify the Mediation Board, and, in the event of their failure té agree upon any or upon all of the necessary arbitrators within the period fixed by this Act, they shall, at the expiration of such period, notify the © Mediation Board of. the arfbitrators selected, if any, or of their failure to make or complete such selection. (b) The board of arbitration shall organize and select its - own chairman and make all necessary rules for conduct- . ing its hearings: Provided, however, That the board of - arbitration shall be bound to give the parties to the con- troversy a full and fair hearing, which shall include an .op- - portunity to present evidence. in support of their claims, and an opportunity to present their case in person, by coun- sel, or hed other representatives. as they wad aie tarmac elect. ¢ ‘(c) Upon siting from °the Mediation Board that the . ‘parties, or either party, to an arbitration desire the re- ' convening of the board of arbitration (or a subcommittee _of such board of arbitration appointed for such purpose pursuant to the agreement to arbitrate) to pass upon any ° controversy over the meaning or application of their award, the board, or its subcommittee, shall at once reconvene. No question other than, or in eddition to, the questions - - relating to the rfeaning or application of the award, sub- mitted by the party or parties in writing, shall be’ con- sidered by the reconvened board of arbitration or its sub- — committee. Such rulings shall be silent -by — Sasol or nub: committee thereof in the same manner, and filed in the same district court clerk’s office, as the original. award and © become a part thereof. ae (a) No arbitrator, except those chosen by the Mediation Board, shall ” incompetent to act as an arbitrator. because ; a a — 119a of his interest in the controversy to be arbitrated, or be- cause of his connection with or partiality to either of the parties to the a com (e) Each member of -any board of arbitration created under the provisions of this Act named by either party to - the arbitration shall -be compensated by the party naming him. Each arbitrator selected by the arbitrators or named. by the Mediation Board shall receive from the Mediation Board such compensation as the Mediation Board may fix, together with his necessary ‘traveling expenses and ex- _ penses actually incurred for subsistence, while serving as an arbitrator. (f) The board of ahinativs shall dosnt a certified copy of its award to the: respective parties to the contro- versy, and shall transmit the original, together with the - papers and proceedings and a transcript of the evidence taken at the hearings, certified under the. hands of at least a‘ majority of the arbitrators, to the clerk of the district court of the United States for the district wherein the con- traversy arose or. the arbitration is entered into, to be filed in said clerk’s office as- hereinafter provided. The said board. shall also furnish a certified copy ofits award, and the papers and proceedings, including testimony re- lating thereto, to the Mediation Board, to be filed in its office ; and in addition 4 certified copy of its award shall be ‘filed in the office of the Intertsate Commerce ‘Commission: Provided, however, That such award shall not be consttued to diminish or extinguish any of the _powers or duties of the Interstate Commerce Commission, under the Inter- state Commerce Act, as amended. j (g) A ‘board of arbitration may, ‘hi: to ti approval of the Mediation-Board, employ and fix the compensation of such assistants as it deems necessary in carrying on the arbitration proceedings. The compensation of such em- ployees, together with their necessary traveling expenses and expenses actually incurred for subsistence, while so er es Pa coe ae : 120a employed, and the necessary expenses of boards of arbitra- ~ tion, shall be paid by the Mediation Board. Whenever practicable, the hoard shall be cnet with suitable quarters in any. Federal building located at its _ place of meeting or at-any place where the board may -* conduct its proceedings ¢ or deliberations. (h) All testimony before said board shall be given endat oath or affirmation, and any member of the board shall ~ have the power to administer oaths or affirmations. The board of arbitration, or any member thereof, shall have the power to require the attendance of witnesses and the production of such books,. papers, contracts, agreements, - and documents as may-be deemed by the board of arbitra- ~ tion material to a just determination of the.matters sub- - mitted to its arbitration, and may for that purpose request the clerk of the district court of the United States for the, district wherein said arbitration is being conducted to is- sue the necessary: subpoenas, and upon such request the. said clerk or his duly authorized deputy shall be, and he "hereby is, authorized, and it shall be his-duty, to issue such . subpoenas. In the event of the failure of any person to % eomply with such subpoena, or in the event of the con- _tumacy of any witness appearing before the board of ar- bitration, the board may invoke the aid of the United States — courts to compel witnesses to attend and testify and. to _ produce such books, papers, contracts, agreements, and documents. to the same extent and under the same condi- tions and penalties as provided for in the Act to regulate commerce approved February 4, 1887, and the amendments. thereto. Any! witnéss appearing before a board of arbitration . shall receive the same fees and mileage as witnesses in. | courts pf the United States, to be paid a the party secur- _ ing the| subpoena. -\ ® 121a Src. 8. The agreement to arbitrate— (a). Shall. be in writing ; (b) ‘Shall stipulate that the arbitration 1 is had under the — provisions of this Act; | (c) ‘Shall state une the board of i is to consist of three or six. members; ma _(d) Shall be signed by. the ety seid seh tives of the carrier or carriers and the employees, parties . . respectively to the agreement ta.arbitrate, and shall be acknowledged by said parties before a notary public, the clerk of a district court or uit court of appeals of the, United States, or before a ember of the Mediation Board, . J and, when so acknowledged, shall be filed in the office - o the Mediation Board; ‘ (e) Shall state suasifipally the questions to be submitted to the said board for decision; and that, in its award or awards, the said board shall confine itself strictly. to deci- | sions as to the questions so°specifically submitted to it; | (f ) ‘Shall provide that the questions, or any ore or-more of them, submitted by the parties to the board of arbitration may be withdrawn from arbitration-on notice to that effect. - signed by the duly accredited representatives of all the parties and served on the board of arbitration;. : (g). Shall stipulate that the signatures of a majority of _ said board of arbitration affixed to their award shall. be competent to constitute a valid and binding award; © Co (h) Shall fix a period from the date of the appointment of the.arbitrator or arbitrators necessary to complete the board (as provided for in the agreement) within which the ‘said board shall commence its hearings ; ; : (a) Shall fix a period from the beginning of the hicinstinge - within which the said board shall make and file its award: | 122a Provided, ‘That the parties. may agree at any time upon an extension. of this period; , (3) Shall provide for the date from ‘which the diene _ shall becofhe effective and shall fix the eer — which the award shall continue in force; -..___ (k) Shall provide that the award-of the bene’ of arbitra-. tion and the evidence of the proceedings before the board relating thereto, when certified under the hands of at. least F - a majority of the arbitrators, shall be filed.in the.clerk’s _ office of the district court of the United States for the . | district wherein the controversy arose or the arbitration was entered into, which district, shall be designated in the . | agreement; and, when so filed, such award and proceedings shall constitute the full and complete record of the ar-\ bitration;. | (1) Shall provide that the sith ia so filed, shall be | final and ‘conclusive upon the: parties as to the facts deter- _ mined by said award and as to the merits of. the controversy decided ; . : (m) Shall ceed that any difference arising as to the ‘meaning, or the application of the provisions, of.an award — | made by a-board of arbitration shall be referred back for _ a ruling to the same board, or, by. agreement, to a sub- — committee of such board; and that such ruling, when ac- © knowledged in the same manner, and filed in the same dis- trict court clerk’s office, as the original award, shall be a “ . part of and shall have ‘the same force and effect as such original award; and ae. ; 124a. or subcommittee thereof, for interpretation, as provided _ by this Act: Provided further, That an award contested as herein provided shall be construed liberally by- the court, with a view to favoring its validity, and that no award shall be set aside for trivial irregularity or clerical error, going only to form and not to. substance. Fourth. If the. court shall determine that a part of ‘the award, As invalid on some ground ‘or grounds designated in this section as a ground of invalidity, but shall deter- mine that a part of the award is valid, the court shall set ‘aside the entire award: Provided, however, That, if the. parties shall agree thereto, and if such valid and invalid parts are separable, the court shall set aside’ the invalid part, and order judgment to stand as to the valid part. _ Fifth. At the expiration of ten days from the decision of the district court upon the petition filed as a foresaid, final judgment shall be'entered in accordance with said decision, unless during said ten days-either party shall appeal therefrom to the circuit court of appeals. In such. ease only such portion of the record shall be transmitted to, the appellate court as is necessary to. the proper under- standing and consideration of the questions of law. . pre- sented by said petition and to be decided.. Sixth. The determination of said circuit court of appeals upon said questions shall be, final, and being certified by - the clerk thereof to said district court, judgment pursuant thereto shall thereupon be-entered by said district court. Seventh. If the petitioner’s contentions are finally sus- tained, judgment shall be entered sétting aside the award > in whole or, if the parties so agree, in part; but in such case the parties may agree. upon a judgment to be entered disposing of the subject mattér of the controversy, which. | _ judgment when entered shall have the same force and effect as judgment entered upon an award. ~p eye 125a Kighth. Nothing in this Act shall be a construed to re- °- / quire an individual employee to render labor or service’. without. his consent, nor shall anything in. this Act be con- strued to make the quitting of his labor or service by an _ individual employee an illegal act; nor.shall any court is- - gue any process to compel the performance by an individual employee of such labor or service, without his consent. : : “ee «> @ « . Norris-LaGuardia Act, 47 — 2 70, 29 U.S.C. § 101 et seq Section 1. No court of the United States, as herein de- - fined, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this Act; nor shall any such restraining order or temporary or perma- | nent injunction be igsued contrary to the _ policy creeeeece in this Act. . _* * - 7 Szcrtox 4. No court: — the | United States shall have jurisdiction to issue any restraining order or tempotary : ‘- or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or. persons participating or intefested in such dispute (as these terms are herein defined) from doing, whether r singly. or in con- , cert, any of the. following acts: (a) Ceasing or- refusing: to perform any - work or to out main in any relation of employment ; & (b) Becoming or remaining a member of any labor | or- ganization or of any employer organization, regardless bf any such undertaking or promise as is described in section 3 of this Act; . os - (¢) Paying or giving to, or withholding from, any’ per- son participating or interested in suth labor dispute, ‘any \ bY ' 126a 4 ‘4 \. strike or. ‘anemployment benefiis or ‘insuratice, or . other | ec: a moneys or things of value; - ; oA. “Ad | By: gl Jawful, méans aiding any person participating Tea h Ne | aoe agai st,in, or.is prosecuting, ‘any action: or suit i in =_y. court a | of t a United States or of any State; | » volved i in, any labor disputé, whether ‘by advertising, speak- or violence; a . ** & - _ promotion of their, interests in- a labor ‘dispute; do any. of the acts p heretofore: spevified ; ine “(h), ‘Agreeir Lwith other persons to do or nn ado any re a | “of ‘the | acts, hératofore specified ; and ;. vr ay ieee he aah ihr (i) Advising, firging, or. otherwise causing or inducing ey “d without fraud or vivlerice’ the\acts heretofore specified, re- a 7. a _ Bardless of any such undertaki es or ‘promise as is ache aa ? sgitaaercat séction 3 of. this Act, ie. ar, 6 : . “omy i ae at hs * ~ * ; es: i Secweon 7. No- ‘conrt of the, United. States shall hive ee oo jurisdiction to.issue a temporary or permanent injunction sin. any case: involving : or growing gut of a labor dispute, as ce herein: defined, except * after. hearing the testimony of . “witnesses inopen: court (with opporturiity’ for cross-exami: 6 natigh) in suppost of the: allegations ofa complaint made A eS under ‘oath, and testimony in opposition ‘thereto, if: offered, Ay iat on ard except after’ ‘findings of of fact by the court, to the effect— Fi (a) That ‘unlawful acts have been threatened: and. will had be committed unless restrained or have been committed and. ay Oo ere ill be ‘continued unless restrained, but no: injunction or“. | . teaaparary restraining order: shall ‘be issued on account . ‘~. of any. threat or-unlawful act excepting against. the per- (g). ‘Advising-or notifying -aiiy. ‘person * an intention ‘ ~ ‘or ‘in erested i im. any. labor dispute who is being proceeded . , ; Giving. publicity. to} ‘thé existetice of, or the facts in- i ing, patrolling, or by’ any. -_— - method-n0b involving fraud = _ (f) Assembling venti to acto on. ey organize +o aét'i in” * | “fon, or ReFsONS, association, Or. organization “making the | % 3 , ‘ ‘127a ~ threat or iecaiidii the unlawful act or jit liathiedins ‘ing or ratifying the same after actual, knowledge: thereof ; (b) That substantial and irreparable | injury to com- plainant’s property will follow; = (c), That as to each. item of relief granted seinen injury * will be inflicted upon complainant by. the. denial. of relief than. will be inflicted upon —o by the granting of relief; . (d) ‘That éomplainant ae: no > adequate remedy at law; and -(e) That the-publi¢ officers charged withe the duty f p pro- . tect complainant’s property’ are unable or unwilling to . _furnish adequate protection. Such hearing shall be held after due and personal notice — ‘“.\\thereof-has been given, in such manner as the court shall « \, direct, to al] known persons against whom relief is sought, and also to the chief of those public officials of the county and city within which the unlawful acts have been threat- ened or crear Begrsis with the duty ,fo protect com- _plathant’s pro : Provided, however, That if a com- ~plaintant shall oS Ph that, unless a temporary restrain- _ ing order shall be issued without notice; ‘a substantial and irreparable injury to: ‘complainant’s property will, be un- avoidable, such a temporary restraining order. may be is- > sued. upon testimony, under oath, sufficient, if sustained, to... Leg justify the court in issuing a temporary: injunction upon a \ | hearing after notice. td a temporary restraining order \ ‘shall be’ effective for no longer than five.days and shall ‘> become void at the expiration of said five days. No tem-- porary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking ith. adéquate’ security in an amount _ to be. fixed by the court sufficient to recompense those en- joined for any loss, - expense, or damage caused by the improvident or erroneous issuance of such order. or in-. | junction, ineluding all. reasonable costs (together with a -- a - 128a - reasonable attorney’s fee) and expense of. defense against ' the ofder or against the granting of any injunctive re- lief sought in the same proceeding: and subsequently denied by the court. : : The undertaking herein mentioned shall be bitin to signify ‘an agreement entered into by the complainant and the surety upon which a decree: may be. rendered - in the same suit or proceeding against said complainant ~ and surety, upon a hearing to assess damages of which _ hearing complainant and surety shall have reasonable notice, ‘the‘said complainant and surety submitting them- selves to the jurisdiction of -the court for that purpose. — But nothing herein contained shall deprive any party _. having a claim-or cause of action under or upon. such undertaking from electing to pursue his ordinary remedy 7 by suit at law or in equity. ; ‘ Section 8.. No restraining order or injunctive relief shall | be granted to. any complainant who has failed to comply ‘with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make . every reasonable effort to settle such dispute: either by negotiation or with the aid of any ‘available governmental machinery of mediation or voluntary ‘arbitration. “Section 9. No restraining order or temporary or per- ; manent injunction shall be granted in a case involving or_ growing out of a labor dispute, except on the basis of- find- -ings of fatt made and filed by the court in the record of the case prior to the-issuance of such restraining order or ‘ injunction ; and ~ every restraining order or injunction . - granted in a case involving or growing out ofa labor dis- -pute shall” include only a prohibition of such specific act . -or acts as may be. expressly complained of in the bill of _.complaint or petition filed in such’ case and as: shall be . - expressly included i in said findings of fact made and filed by the court as provided herein. : ‘ ot ie } . : F . P . t t s - . . . : 4 5 ~~ - : vt . ‘ . 4:4 ” . ° 4 . ‘ e ry . 4 . . . . sd - - Ped Py e . ‘ . . ° ° . “hatte 5 . 4 . . : : - . 2 . . e . #. ” e yt > . e ; : . ent ‘ . + : . . : e . _ ae . % ® bd . . . : . e 5 . ; ° ‘ ’ Pa « r ' . = , : . xs . . - . : . a . . - ‘ - . . 7 . ; ae . 25 e . . ‘. ’ Ae ' . : 3 . . : . . ‘ ‘ ° re ° . ‘ . ; . . : ' Z “ , a : . . . » . 4 . “ . ‘ e . eg : S e : * e ~ : . ‘ . . ® . . ‘ ° . iB . , p . . e J - . ° : Rg ° . ak a “ . i . ’ . ra ‘ “ a ‘ - s ‘ . . . od . ; . - : . s . . : ‘4 ‘ . , » é : . . ; - . t . ~ Pa . ~ a ’ . ‘ bg 3 . . . : : a . . . * ‘ se . . o 8 - 4 , , . i Pane ile Pe < . ‘ v. . - ‘ Ms os aoe o = . 2 . . - . ae. . . ras --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1071%3A2. Public record. Not legal advice.