# Petition for Writ of Certiorari — Southeastern Pennsylvania Transportation Authority v. Transport Workers' Union of Philadelphia, Local 234 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0888%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 492 U.S. 902 ## Text Supreme Court. U.S FILED \ MAR 6 iSbY 8 Bs. J4 8 6 JOSEPH F. SPANIOL, JR. | CLERK —_ IN THE SUPREME COURT OF THE UNITED STATES October Term, 1988 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. et al. Petitioners. TRANSPORT WORKERS’ UNION OF PHILADELPHIA, LOCAL 234, et al. Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT John F. Smith, III (Counsel of Record ) Richard S. Meyer Hope A. Comisky Barbra Shotel DILWORTH, PAXSON, KALISH & KAUFFMAN = 2600 The Fidelity Building Philadelphia, PA 19109 (215) 875-7220 Attorneys for Petitioners Southeastern Pennsylvania Transportation Authority, et al. Dated: March 8. 1989 PACKARD PRESS / LEGAL DIVISION, 1617 JFK BOULEVARD, PHILA., PA. 19103 (215) 563-9000 QUESTIONS PRESENTED (1) Whether an urban mass transportation author- ity’s addition of random drug and alcohol testing to an existing unchallenged policy of fitness for duty drug and alcohol testing of safety-sensitive personnel constitutes a major dispute under the Railway Labor Act. (2) Whether an urban mass transportation author- ity’s inclusion of a drug screen in routine return to work physical examinations of safety-sensitive personnel con- ducted in support of its fitness for duty standard violates the Fourth Amendment to the United States Constitu- tion. PARTIES TO THE PROCEEDINGS BELOW AND RULE 28.1 STATEMENT The proceedings below involved four actions which were not consolidated into one action. The respective parties and docket numbers in the court below are as follows: Petitioners include: 1. Southeastern Pennsylvania Transporta- tion Authority in all of the cases which include Nos. 88-1160, 88-1161, 88-1162, 88-1163, 88- 1206, 88-1207 and 88-1208; and 2. Louis F. Gould, Jr., Esquire, Individually and in his official capacity as Chairman of the Board of SEPTA; Robert J. Thompson, Individ- ually and in his official capacity as Vice Chair- man of the Board of SEPTA; Brian W. Clymer; Judith E. Harris, Esquire; Mary C. Harris, Thomas M. Hayward, C.P.A.; Frank W. Jenkins, Esquire; Richard E. Kutz, Esquire; David W. Marston, Esquire; James C. McHugh and Franklin C. Wood, Individually and in their official capacities as Members of the Board of SEPTA in all of the cases which include Nos. 88-1160, 88-1161, 88-1162, 88-1163, 88-1206, 88-1207 and 88-1208. Respondents include: 1. Transport Workers’ Union of Philadel- phia, Local 234 in Nos. 88-1160 and 88-1206; 2. Transport Workers’ Union of America, Local 2013 in No. 88-1161; 3. Brotherhood of Locomotive Engineers, Division 71 and Brotherhood of Locomotive En- gineers and Thomas C. Brennan in Nos. 88- 1162 and 88-1207; and il 4. United Transportation Union, Brother- hood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employ- ees, Brotherhood of Maintenance of Way Em- ployees, Brotherhood of Railroad Signalmen in Nos. 88-1163 and 88-1208. Petitioner Southeastern Pennsyivania Transporta- tion Authority has no parent corporation(s), non-wholly- owned subsidiaries or affiliates. ili i i i TABLE OF CONTENTS Page QUESTIONS PRESENTED .................... i PARTIES TO THE PROCEEDINGS BELOW AND RULE 28.1 STATEMENT ..........ccscece. ii TABLES OF AUTEEBORITEES 2. cccccccccccccccece Vii RE AAI OE oe 1 Se eet cncnedeé dnennd baadite ddd 2 Re ary See babka Snide sdsdec cena’ 2 STATEMENT OF THE CAGE .... cc cccccsccccce 2 A. The SEPTA Transportation System...... 3 B. Drug And Alcohol Use By SEPTA Person- nel And The Authority’s Response ...... 5 C. The Integrated Program................ 6 D. The Historical Development Of SEPTA’s Fitness For Duty And Suspicion Based Testing As It Relates To The Regional Ras Konddsgbsepewaeadunde cee 8 E. Major v. Minor Disputes Under The Rail- Uy RAE Oe ons ek cccdabscwnctascacs 10 F. The Proceedings Below Following Prom- ulgation Of The Integrated Program..... 14 REASONS FOR GRANTING THE WRIT........ 16 I. THE DECISION OF THE THIRD CIRCUIT THAT THE ADDITION OF RANDOM TESTING TO AN EXISTING PROGRAM OF FITNESS FOR DUTY DRUG AND ALCO- HOL TESTING CONSTITUTES A “MAJOR DISPUTE” CONFLICTS IN PRINCIPLE WITH DECISIONS OF OTHER CIRCUITS ON AN IMPORTANT QUESTION OF FED- ERAL LAW.....: Saidanncccaccekduss caeae 16 TABLE OF CONTENTS — (Continued) Page A. The Decision Conflicts In Principle With Decisions Of The Seventh And Eighth CHB no oc dccavencecssscbecssscaeces 16 B. How A Refinement Of Existing Drug And Alcohol Testing Is Categorized Under The RLA Has A Profound Impact On The Safety Of Urban Mass Transportation.... 19 Il. THE DECISION OF THE THIRD CIRCUIT WITH RESPECT TO RETURN TO WORK TESTING CONFLICTS IN PRINCIPLE WITH OTHER CIRCUITS ON AN IMPOR- TANT QUESTION OF FEDERAL LAW .... 22 A. In Not Recognizing That Return To Work Testing Is Related Solely To A Routine Fitness For Duty Determination, The Third Circuit Has Created A Conflict In Principle With Decisions Of The District Of Columbia And Fifth Circuits......... 22 B. The Question Of The Constitutionality Of Return To Work Testing Is Of Such Great Importance That The Court Should Grant Certiorari Even If There Were Not A Con- flict In Principle In The Circuits ........ 24 ee fF) | PPT TTITCTT TT irre err 26 APP EEE nocd cnesbearccesdarvcaneneesecesvss A-1 Opinion of the U.S. Court of Appeals for the Third Circuit dated December 28, 1988... A-1 Order of U.S. Court of Appeals for the Third Circuit dated January 19, 1989 ......... A-31 Order of U.S. Court of Appeals for the Third Circuit dated February 16, 1989........ A-32 TABLE OF CONTENTS — (Continued) Page Opinion of U.S. District Court, Eastern District of Pennsylvania dated January 19, 1988 . A-33 Order of U.S. District Court, Eastern District of Pennsylvania dated February 19, 1988... A-54 Order of U.S. District Court, Eastern District of Pennsylvania dated March 1, 1988...... A-56 Statutory Provisions of the Railway Labor Act, 45 U.S.C. Section 152, First through TS CIVIL ACTION NO. 87-0448 CIVIL ACTION NO. 87-0455 A-55 ORDER AND NOW, this 19th day of February, 1988, it is hereby ordered and decreed that Southeastern Pennsyl- vania Transportation Authority (“SEPTA”) may promul- gate its Integrated Program of Education, Assistance, and Testing for Intoxicants and Controlled Substances — As Revised (and as further modified and submitted to the Court for review on January 28, 1988) (“Integrated Program”). It is hereby further ordered and decreed that SEPTA may begin random testing under the Integrated Program upon accomplishing the following steps: 1. Notification of all affected employees of the existence of the Integrated Program. 2. Constituting the Advisory Committee. 3. Meeting with the Advisory Committee con- cerning the selection of the Employe Assistance Program Referral Agency and Providers. 4. Implementation of the Revised Employe As- sistance Program (which implementation shall pre- cede the implementation of random testing by at least 10 days). SEPTA shall notify plaintiffs at the time of accomplish- ing each of these steps. /s/ E. LUDWIG Edmund V. Ludwig, J. A-56 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA TRANSPORT WORKERS’ UNION OF >: CIVIL ACTION PHILADELPHIA, LOCAL 234 Vv. SOUTHEASTERN PENNSYLVANIA : NO. 87-0389 TRANSPORTATION AUTHORITY TRANSPORT WORKERS’ UNION OF : CIVIL ACTION AMERICA LOCAL 2013 V. SOUTHEASTERN PENNSYLVANIA : NO. 87-0446 TRANSPORTATION AUTHORITY . BROTHERHOOD OF LOCOMOTIVE : CIVIL ACTION ENGINEERS, DIVISION 71, et al vi SOUTHEASTERN PENNSYLVANIA : NO. 87-0448 TRANSPORTATION AUTHORITY UNITED TRANSPORTATION UNION, : CIVIL ACTION et al. : Vv. SOUTHEASTERN PENNSYLVANIA ; NO. 87-0455 TRANSPORTATION AUTHORITY A-57 ORDER AND NOW, this day of Februarv, 1988, it is hereby ordered and decreed that the Motion of South- eastern Pennsylvania Transportation Authority To Alter Or Amend Judgment And To Amend Findings Of Fact is hereby granted. Paragraph 3 of the Order entered by the Court on January 20, 1988 is hereby deleted, for the reasons set forth in the revised Memorandum issued this date. BY THE COURT: /s/ Denied — E. LUDWIG J. Entered: 3-1-88 ORDER OF COURT A-58 STATUTORY PROVISIONS OF THE RAILWAY LABOR ACT §152. General duties First duty of carriers and employees to settle disputes. It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agree- ments or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof. Second. Consideration of disputes by representa- tives. All disputes between a carrier or carriers and its or their employees shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the em- ployees thereof interested in the dispute. Third. Designation of representatives. Represen- tatives, for the purpose of this Act shall be designated by the respective parties without interference, influence, or coercion by either party over the designation of repre- sentatives by the other; and neither party shall in any way interfere with, influence, or coerce the other in its choice of representatives. Representatives of employees for the purposes of this Act need not be persons in the employ of the carrier, and no carrier shall, by interfer- ence, influence, or coercion seek in any manner to prevent the designation by its employees as their repre- sentatives of those who or which are not employees of the carrier. Fourth. Organization and collective bargaining; freedom from interference by carrier; assistance in organizing or maintaining organization by carrier forbidden; deduction of dues from wages forbidden. A-59 Employees shall have the right to organize and bargain collectively through representatives of their own choos- ing. The majority of any craft or class of employees shall have the right to determine who shall be the represen- tative of the craft or class for the purposes of this Act. No carrier, its officers or agents, shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employ- ees, or to use the funds of the carrier in maintaining or assisting or contributing to any labor organization, labor representative, or other agency of collective bargaining, or in performing any work therefor, or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization, or to deduct from the wages of employees any dues, fees, assessments, OF other contributions payable to labor organizations, or to collect or to assist in the collection of any such dues, fees, assessments, or other contributions: Provided, That nothing in this Act shall be construed to prohibit a carrier from permitting an employee, individually, or local representatives of employees from conferring with management during working hours without loss of time, or to prohibit a carrier from furnishing free transportation to its employ- ees while engaged in the business of a labor organiza- tion. Fifth. Agreements to join or not to join labor organizations forbidden. No carrier, its officers, or agents shall require any person seeking employment to sign any contract or agreement promising to join or not to join a labor organization; and if any such contract has been enforced prior to the effective date of this Act [enacted May 20, 1926], then such carrier shall notify the employees by an appropriate order that such con- tract has been discarded and is no longer binding on them in any way. A-60 Sixth. Conference of representatives; time; place; private agreements. In case of a dispute between a Carrier or carriers and its or their employees, arising out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, it shall be the duty of the designated repre- sentative or representatives of such carrier or carriers and of such employees, within ten days after the receipt of notice of a desire on the part of either party to confer in respect to such dispute, to specify a time and place at which such conference shall be held: Provided, (1) That the place so specified shall be situated upon the line of the carrier involved or as otherwise mutually agreed upon; and (2) that the time so specified shall allow the designated conferees reasonable opportunity to reach such place of conference, but shall not exceed twenty days from the receipt of such notice: And provided further, That nothing in this Act shall be construed to supersede the provisions of any agreement (as to con- ferences) then in effect between the parties. Seventh. Change in pay, rules or working condi- tions contrary to agreement or to section 156 forbid- den. No carrier, its officers or agents shall change the rates of pay, rules, or working conditions of its employ- ees, as a Class as embodied in agreements except in the manner prescribed in such agreements or in section 6 of this Act [45 USCS§156]. Eighth. Notices of manner of settlement of dis- putes; posting. Every carrier shall notify its employees by printed notices in such form and posted at such times and places as shall be specified by the Mediation Board that all disputes between the carrier and its employees will be handled in accordance with the requirements of this Act, and in such notices there shall be printed verbatim, in large type, the third, fourth, and fifth paragraphs of this section. The provisions of said para- graphs are hereby made a part of the contract of employ- ment between the carrier and each employee, and shall A-61 be held binding upon the parties, regardless of any other express or implied agreements between them. [The remining paragraphs of §152 are omitted]. §153. National Railroad Adjustment Board First. Establishment; composition; powers and duties; divisions; hearings and awards; judicial re- view. There is hereby established a Board, to be known as the “National Railroad Adjustment Board”, the mem- bers of which shall be selected within thirty days after approval of this Act [enacted June 21, 1934], and it is hereby provided — (a) That the said Adjustment Board shall consist of thirty-four members, seventeen of whom shall be selected by the carriers and seventeen by such labor organizations of the employees, national in scope, as have been or may be organized in accordance with the provisions of section 2 of this Act [45 USCS §§151a, 152]. (b) The carriers, acting each through its boards of directors or its receiver or receivers, trustee or trustees or through an officer or officers designated for that purpose by such board, trustee or trustees or receiver or receivers, shall prescribe the rules under which its representatives shall be selected and shall select the representatives of the carriers on the Adjustment Board and designate the division on which each such representative shall serve, but no - carrier or system of carriers shall have more than one voting representative on any division of the Board. (c) Except as provided in the second paragraph of subsection (h) of this section, the national labor organizations, as defined in paragraph (a) of this section, acting each through the chief executive or other medium designated by the organization or A-62 association thereof, shall prescribe the rules under which the labor members of the Adjustment Board shall be selected and shall select such members and designate the division on which each member shall serve; but no labor organization shall have more than one voting representative on any division of the Board. (d) In case of a permanent or temporary vacancy on the Adjustment Board, the vacancy shall be filled by selection in the same manner as in the original selection. (e) If either the carriers or the labor organiza- tions of the employees fails to select and designate representatives to the Adjustment Board, as pro- vided in paragraphs (b) and (c) of this section, respectively, within sixty days after the passage of this Act [enacted June 21, 1934], in case of any original appointment to office of a member of the Adjustment Board, or in case of a vacancy in any such office within thirty days after such vacancy occurs, the Mediation Board shall thereupon directly make the appointment and shall select an individual associated in interest with the carriers or the group of labor organizations of employees, whichever he is to represent. (f) In the event a dispute arises as to the right of any national labor organization to participate as per paragraph (c) of this section in the selection and designation of the labor members of the Adjustment Board, the Secretary of Labor shall investigate the claim of such labor organization to participate, and if such claim in the judgment of the Secretary of Labor has merit, the Secretary shall notify the Mediation Board accordingly, and within ten days after receipt of such advice the Mediation Board shall request those national labor organizations duly A-63 qualified as per paragraph (c) of this section to participate in the selection and designation of the labor members of the Adjustment Board to select a representative. Such representative, together with a representative likewise designated by the claimant, and a third or neutral party designated by the Mediation Board, constituting a board of three, shall within thirty days after the appointment of the neutral member, investigate the clairas of the labor organization desiring participation and decide whether or not it was organized in accordance with section 2 hereof [45 USCS §§151la, 152] and is otherwise properly qualified to participate in the selection of the labor members of the Adjustment Board, and the findings of such boards of three shall be final and binding. (g) Each member of the Adjustment Board shall be compensated by the party or parties he is to represent. Each third or neutral party selected un- der the provisions of (f) of this section shall receive from the Mediation Board such compensation as the Mediation Board may fix, together with his neces- sary traveling expenses and expenses actually in- curred for subsistence, or per diem allowance in lieu thereof, subject to the provisions of law applicable thereto, while serving as such third or neutral party. (h) The said Adjustment Board shall be com- posed of four divisions, whose proceedings shall be independent of one another, and the said divisions as well as the number of their members shall be as follows: First division: To have jurisdiction over dis- putes involving train- and yard-service employ- ees of carriers, that is, engineers, firemen, hos- tlers, and outside hostler helpers, conductors, A-64 trainmen, and yard-service employees. This di- vision shall consist of eight members, four of whom shall be selected and designated by the carriers and four of whom shall be selected and designated by the labor organizations, national in scope and organized in accordance with section 2 hereof [45 USCS §§151a, 152] and which represent employees in engine, train, yard, or hostling service; Provided, however, That each labor organization shall select and designate two members on the First Division and that no labor organization shall have more than one vote in any proceedings of the First Division or in the adoption of any award with respect to any dispute submitted to the First Division: Provided further, however, That the carrier members of the First Division shall cast no more than two votes in any proceedings of the division or in the adoption of any award with respect to any dispute submitted to the First Division. Second division: To have jurisdiction over disputes involving machinists, boilermakers, blacksmiths, sheet-metal workers, electrical workers, car men, the helpers and apprentices of all the foregoing, coach cleaners, power- house employees, and railroad-shop laborers. This division shall consist of ten members, five of whom shall be selected by the carriers and five by the national labor organizations of the employees. Third division: To have jurisdiction over disputes involving station, tower, and telegraph employees, train dispatchers, maintenance-of- way men, clerical employees, freight handlers, express, Station, and store employees, signai A-65 men, sleeping-car conductors, sleeping-car por- ters, and maids and dining-car employees. This division shall consist of ten members, five of whom shall be selected by the carriers and five by the national labor organizations of employ- ees. Fourth division: To have jurisdiction over disputes involving employees of carriers directly or indirectly engaged in transportation of pas- sengers or property by water, and all other employees of carriers over which jurisdiction is not given to the first, second, and third divi- sions. This division shall consist of six members, three of whom shall be selected by the carriers and three by the national labor organizations of the employees. (i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act [enacted June 21, 1934], shall be handled in the usual manner up to and including the chief operat- ing officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full state- ment of the facts and all supporting data bearing upon the disputes. (j) Parties may be heard either in person, by counsel, or by other representatives, as they may respectively elect, and the several divisions of the A-66 Adjustment Board shall give due notice of all hear- ings to the employee or employees and the carrier or carriers involved in any disputes submitted to them. (k) Any division of the Adjustment Board shall have authority to empower two or more of its mem- bers to conduct hearings and make findings upon disputes, when properly submitted, at any place designated by the division: Provided, however, That except as provided in paragraph (h) of this section, final awards as to any such dispute must be made by the entire division as hereinafter provided. (1) Upon failure of any division to agree upon an award because of a deadlock or inability to secure a majority vote of the division members, as provided in paragraph (n) of this section, then such division shall forthwith agree upon and select a neutral person, to be known as “referee”, to sit with the division as a member thereof and make an award. Should the division fail to agree upon and select a referee within ten days of the date of the deadlock or inability to secure a majority vote, then the division, or any member thereof, or the parties or either party to the dispute may certify that fact to the Mediation Board, which Board shall, within ten days from the date of receiving such certificate, select and name the referee to sit with the division as a member thereof and make an award. The Mediation Board shall be bound by the same provisions in the ap- pointment of these neutral referees as are provided elsewhere in this Act for the appointment of arbitra- tors and shall fix and pay the compensation of such referees. (m) The awards of the several divisions of the Adjustment Board shall be stated in writing. A copy of the awards shall be furnished to the respective parties to the controversy, and the awards shall be A-67 final and binding upon both parties to the dispute. In case a dispute arises involving an interpretation of the award the division of the Board upon request of either party shall interpret the award in the light of the dispute. (n) A majority vote of all members of the divi- sion of the Adjustment Board eligible to vote shall be competent to make an award with respect to any dispute submitted to it. (o) In case of an award by any division of the Adjustment Board in favor of petitioner, the division of the Board shall make an order, directed to the carrier, to make the award effective and, if the award includes a requirement for the payment of money, to pay to the employee the sum to which he is entitled under the award on or before a day named. In the event any division determines that an award favor- able to the petitioner should not be made in any dispute referred to it, the division shall make an order to the petitioner stating such determination. (p) If a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner, or any person for whose benefit such order was made, may file in the District Court of the United States for the district in which he resides or in which is located the principal! operating office of the carrier, or through which the carrier operates, a petition setting forth briefly the causes for which he claims relief, and the order of the division of the Adjustment Board in the prem- ises. Such suit in the District Court of the United States shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be conclusive on the parties, and except that the petitioner shall not be liable for costs in the A-68 district court nor for costs at any subsequent stage of the proceedings, unless they accrue upon his ap- peal, and such costs shall be paid out of the appro- priation for the expenses of the courts of the United States. If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit. The district courts are empowered, under the rules of the court governing actions at law, to make such order and enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the division of the Adjustment Board: Provided, however, That such order may not be set aside except for failure of the division to comply with the requirements of this Act, for failure of the order to conform, or confine itself, to matters within the scope of the division’s jurisdiction, or for fraud or corruption by a member of the division making the order. (q) If any employee or group of employees, or any Carrier, is aggrieved by the failure of any division of the Adjustment Board to make an award in a dispute referred to it, or is aggrieved by any of the terms of an award or by the failure of the division to include certain terms in such award, then such employee or group of employees or carrier may file in any United States district court in which a petition under paragraph (p) could be filed, a peti- tion for review of the division’s order. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Adjustment Board. The Adjust- ment Board shail file in the court the record of the proceedings on which it based its action. The court Shall have jurisdiction to affirm the order of the division or to set it aside, in whole or in part, or it may remand the proceeding to the division for such further action as it may direct. On such review, the A-69 findings and order of the division shall be conclusive on the parties, except that the order of the division may set aside, in whole or in part, or remanded to the division, for failure of the division to comply with the requirements of this Act, for failure of the order to conform, or confine itself, to matters within the scope of the division’s jurisdiction, or for fraud or corruption by a member of the division making the order. The judgment of the court shall be subject to review as provided in sections 1291 and 1254 of title 28, United States Code [28 USCS §§1254, 1291). (r) All actions at law based upon the provisions of this section shall be begun within two years from the time the cause of action accrues under the award of the division of the Adjustment Board, and not after. (s) The several divisions of the Adjustment Board shall maintain headquarters in Chicago, IIli- nois, meet regularly, and continue in session so long as there is pending before the division any matter within its jurisdiction which has been submitted for its consideration and which has not been disposed of. (t) Whenever practicable, the several divisions or subdivisions of the Adjustment Board shall be sup plied with suitable quarters in any Federal build- ing located at its place of meeting. (u) The Adjustment Board may, subject to the approval of the Mediation Board, employ and fix the compensations of such assistants as it deems nec- essary in carrying on its proceedings. The compen- sation of such employees shall be paid by the Mediation Board. (v) The Adjustment Board shall meet within forty days after the approval of this Act [enacted June 21, 1934] ard adopt such rules as it deems A-70 necessary to control proceedings before the respec- tive divisions and not in conflict with the provisions of this section. Immediately following the meeting of the entire Board and the adoption of such rules, the respective divisions shall meet and organize by the selection of a chairman, a vice chairman, and a secretary. Thereafter each division shall annually designate one of its members to act as chairman and one of its members to act as vice chairman: Pro- vided, however, That the chairmanship and vice- chairmanship of any division shall alternate as be- tween thé groups, so that both the chairmanship and vice-chairmanship shall be held alternately by a representative of the carriers and a representative of the employees. In case of a vacancy, such vacancy shall be filled for the unexpired term by the selection of a successor from the same group. (w) Each division of the Adjustment Board shall annually prepare and submit a report of its activities to the Mediation Board, and the substance of such report shall be included in the annual report of the Mediation Board to the Congress of the United States. The reports of each division of the Adjust- ment Board and the annual report of the Mediation Board shall state in detail all cases heard, all actions taken, the names, salaries, and duties of all agen- cies, employees, and officers receiving compensa- tion from the United States under the authority of this Act, and an account of ail moneys appropriated by Congress pursuant to the authority conferred by this Act and disbursed by such agencies, employees, and officers. (x) Any division of the Adjustment Board shall have authority, in its discretion, to establish regional adjustment boards to act in its place and stead for such limited period as such division may determine to be necessary. Carrier members of such regional i A-71 boards shall be designated in keeping with rules devised for this purpose by the carrier members of the Adjustment Board and the labor members shall be designated in keeping with rules devised for this purpose by the labor members of the Adjustment Board. Any such regional board shail, during the time for which it is appointed, have the same authority to conduct hearings, make findings upon disputes and adopt the same procedure as the divi- sion of the Adjustment Board appointing it, and its decisions shall be enforceable to the same extent and under the same processes. A neutral person, as referee, shall be appointed for service in connection with any such regional adjustment board in the Same circumstances and manner as provided in paragraph (/) hereof, with respect to a division of the Adjustment Board. Second. System, group, or regional boards: estab- lishment by voluntary agreement; special adjustment boards: establishment, composition, designation of representatives by Mediation oard, neutral member, compensation, quorum, finality and enforcement of awards. Nothing in this section shall be construed to prevent any individual carrier, system, or group of carriers and any class or classes of its or their employees, all acting through their representatives, selected in accordance with the provisions of this Act, from mutu- ally agreeing to the establishment of system, group, or regional boards of adjustment for the purpose of adjust- ing and deciding disputss of the character specified in this section. In the event that either party to such system, group, or regional board of adjustment is dissat- isfied with such arrangement, it may upon ninety days’ notice to the other party elect to come under the jurisdiction of the Adjustment Board. If written request is made upon any individual carrier by the representative of any craft or class of A-72 employees of such carrier for the establishment of a special board of adjustment to resolve disputes other- wise referabie to the Adjustment Board, or any dispute which has been pending before the Adjustment Board for twelve months from the date the dispute (claim) is received by the Board, or if any carrier makes such a request upon any such representative, the carrier or the representative upon whom such request is made shall join in an agreement establishing such a board within thirty days from the date such request is made. The cases which may be considered by such board shall be defined in the agreement establishing it. Such board shall consist uf one person designated by the carrier and one person designated by the representative of the employees. If such carrier or such representative fails to agree upon the establishment of such a board as pro- vided herein, or to exercise its rights to designate a member of the board, the carrier or representative making the request for the establishment of the special board may request the Mediation Board to designate a member of the special board on behalf of the carrier or representative upon whom such request was made. Upon receipt of a request for such designation the Mediation Board shall promptly make such designation and shall select an individual associated in interest with the carrier or representative he is to represent, who, with the member appointed by the carrier or representative requesting the establishment of the special board, shall constitute the board. Each member of the board shall be compensated by the party he is to represent. The mem- bers of the board so designated shall determine all matters not previously agreed upon by the carrier and the representative of the employees with respect to the establishment and jurisdiction of the board. If they are unable to agree such matters shall be determined by a neutral member of the board selected or appointed and compensated in the same manner as is hereinafter provided with respect to situations where the members A-73 of the board are unable to agree upon an award. Such neutral member shall cease to be a member of the board when he has determined such matters. If with respect to any dispute or group of disputes the members of the board designated by the carrier and the representative are unable to agree upon an award disposing of the dispute or group of disputes they shall by mutual agree- ment select a neutral person to be a member of the board for the consideration and disposition of such dispute or group of disputes. In the event the members of the board designated by the parties are unable, within ten days after their failure to agree upon an award, to agree upon the selection of such neutral person, either member of the board may request the Mediation Board to appoint such neutral person and upon receipt of such request the Mediation Board shall promptly make such appoint- ment. The neutral person so selected or appointed shall be compensated and reimbursed for expenses by the Mediation Board. Any two members of the board shall be competent to render an award. Such awards shall be final and binding upon both parties to the dispute and if in favor of the petitioner, shall direct the other party to comply therewith on or before the day, named. Compli- ance with such awards shall be enforcible by proceed- ings in the United States district courts in the same manner and subject to the same provisions that apply to proceedings for enforcement of compliance with awards of the Adjustment Board. §155. Functions of Mediation Board First. Disputes within jurisdiction of Mediation Board. The parties, or either party, to a dispute between an employee or group of employees and a carrier may invoke the services of the Mediation Board in any of the following cases: A-74 (a) A dispute concerning changes in rates of pay, rules, or working conditions not adjusted by the parties in conference. (b) Any other dispute not referable to the National Railroad Adjustment Board and not adjusted in confer- ence between the parties or whether conferences are refused. The Mediation Board may proffer its services in case any labor emergency is found by it to exist at any time. In either event the said Board shall promptly put itself in communication with the parties to such contro- versy, 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 action (except as provided in paragraph third of this section and in section 10 of this Act [45 USCS §160}) to induce the parties to submit their controversy to arbitration, in accordance with the provi- sions of this Act. If arbitration at the request of the Board shall be refused by one or both parties, 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 [45 USCS §160], no change shall be made in the rates of pay, rules, or working conditions or established practices in effect prior to the time the dispute arose. [The remaining paragraphs of §155 are omitted]. 8156. Procedure in changing rates of pay, rules, and working conditions Carriers and representatives of the 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 conference between the representatives of A-75 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 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 [45 USCS §155], by the Mediation Board, unless a period of ten days has elapsed after termination of conferences without request for or proffer of the services of the Mediation Board. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0888%3A1. Public record. Not legal advice.