Appendix — Brotherhood of Locomotive Engineers v. Rutland Railway Corp.

Supreme Court brief1963

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. Ottice-Supreme C

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SUPREWE COURT. U. &

F IW ED

BROTHERHOOD OF LOCOMOTIVE ENGINEERS, et al,

Petitioners, |

ia ae

RUTLAND RAILWAY CORPORATION,

wf ‘. \ Respondent.

: APPENDIX TO

_ PETITION FOR A WRIT-OF CERTIORARI

‘To the United States Court of Appeals

, For the Second Circuit. -

Harotp N. McLavcHLN,

Haratp A. Ross,

1190 Union Commerce Building,

Cleveland 14, Ohio,

° ’ Counsel for Petitioners.

Of Counsel:

Purr H. Horr, ,

Burlington, Vermont,

Donatp W. FisHgp,

Toledo, Ohio,

Harotp C. Herss,

Cleveland, Ohio, |

V. C. SHorrLeworts, , °

Cedar Rapids, Iowa, |

Way.anp K. SuttIivan,

Cleveland, Ohio. cs

OO —. —- _— -— i —_ i re 7

——

¢/

cee, TABLE OF CONTENTS.

APPENDIX TO PETITION FOR WRIT OF CERTIORARI:

Statutes Involved 1

Opinion of the United States: Court of Appts for

* the Second Circuit. 4

Dissenting Opitiion A ae RIN AME

. Judgment « of theCourt of Appeals ; LL = a

;

\ : -O

oD | )

Vo al

: a > ‘APPENDIX. ‘

¥ staTutEs INVOLVED.

Title 45 U.S. C. ose, First, Second and Sixth, and

§ 156. |

vge $152. ‘General dutiesDuty of carriers and em-'

ployees to settle disputes.

~ First. It shall be the duty of all carriers, on 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] dis-

putes, whether arising out of the application of such agree-

ments or otherwise, in order to avoid any inf ruption to

commerce or to the operation of any carrier growing out _

of any dispute between the carrier and the employees

thereef. ) ,

Second. All disputes. between a carrier or carriers

‘ and its or their employees shall be considered, and, if

possible, decided, with all expedition, in conference be-

tween representatives designated and autharized so to

confer, respectively, by the carrier or carriers and by the<

employees thereof interested in the dispute.

_Sixth. In case of a dispute between a carrier or car- |

riers 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

ashall be the duty of the designated representative or repre-

sentatives of such carrier or carriers and of such em-

ployees, within ten days after the receipt of noticé 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 in-

{

2 ‘ e

volved 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 chapter shall be construed to supersede the pro-

visions of any agreement (as to conferences) then in ef-

fect between the parties. * * * May 20; 1926, c. 347, Sec.

2, 44 Stat. 577; June 21, 1934, c. 691, Sec. 2, 48 Stat. 1186;

June 25, 1948, c. 646, Sec. 1, 62 Stat. 909; Jan: 10, 1951, c.

1220, 64 Stat. 1238. He

§ 156. Procedure in changing rates of pay, rules, and

working conditions. ge ~ 7

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 work-

ing conditions, and the time and place for the beginning of

conference between the representatives of the parties in-

terested 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 witlr ref-

erence thereto, or the services of the Mediation Boara 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 s€ction 155 of this title,

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. May

20, 1926, c. 347, § 6, 44 Stat. 582; June 21, 1934, -c. 691,

§ 6,.48 Stat. 1197.

Title 29, U.S. C. §§ 161, 108, and 113(c).

§ 101. Issuance of restraining orders and injunctions; .

limitation; public policy.

No court of the United States, as defined in this chap-

ter, 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 imma strict conformity

with the provisions ‘of this chapter; nor shall any such re-

straining order or temporary or permanent injunction be ——~

a issued contrary to the public policy deelared in this chapter.

- Mar. 23, 1932, c. 90, § 1, 47 Stat. 70. ,

§ 108: Noncompliance with obligations involved, in

labor disputes or failure to settle by negotiation or arbitra-

.tion as preventing injunctive relief.

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. Mar. 23, 1932, c. 90,

§ 8, 47 Stat. 72.

§ 113. Definitions of terms and. words used in chapter.

When used in this chapter, and for the purposes of

this chapter— - =)

* * * (c) The term “labor diepete” includes any

controversy conceyning terms or conditions of employment,

or concerning the association or representation of persons

‘in negotiating, fixing, maintaining, changing, or seeking to

arrange terms or conditions of employment, regardless of ©

whether or not the disputants stand in the proximate re-

lation of employer and employee. * * * Mar 23, 1932, c.

90, § 13, 47 Stat. 73.

‘

\ Title 28 U. S. C. § 1391 (b) and (c)

§ 1391. Venue generally.

* * * (b) A civil action wherein jurisdiction is not

founded solely on diversity of citizenshp may be brought

only in the judicial district where all defendants reside,

except as otherwise provided by law.

in which it is incorporated or licensed to do business or is

doing business, and such judicial district shall be regarded

as the residence of such corporation for venue purposes: ro

* * * June 25, 1948, c. 646, 62 Stat. 935.

OPINION OF THE UNITED STATES COURT OF APPEALS

-f. FOR THE SECOND CIRCUIT.

Before: WATERMAN, KaurMAN and MARSHALL, Cir-

cuit Judges.

Defendants-appellants seek review of an injunction ;

order issued by the United States District Court for the

District of Vermont, Gibson, J., enjoining, on the ground

that the strike was illegal because it arose out of a “minor

dispute,” any further strike activity by the defendants.

Though the court below correctly held that the dispute ~

was a minor dispute, the case is reversed and remanded

for findings as to the gvod faith of management in the

conduct of conferences prior to the strike.

Waterman, Circuit Judge:

The four appellant labor unions, the Brotherhood of

Locomotive Engineers, the Brotherhood of Locomotive

Firemen and Enginemen, the ‘Brotherhood of Railroad

Trainmen, and the Order of Railroad Conductors and

Brakemen, hereinafter referred to collectively as the de

fendant brotherhoods, and the five individual, appellants,

each either a general or local chairman of one of the

above-mentioned brotherhoods, appeal from a judgment

order of the United States District Court for the District of

Vermont, enjoining’as of October 27, 1960, the unions, their

members, and agents*from further striking, picketing, or

‘using any other form of economic coercion in connection .

with a dispute which the plaintiff Rutland Railway Corpo-

ration had submitted to the National Railroad Adjustment

Board, the injunctiorr to remain in effect until the Board

had disposed of the dispute.

The strike began on September 16, 1960. It continued

until the injunction order was effective Then, obedient

thereto, the workers went back to their jobs.

| The Rutland Railway operations are divided into

three subdivisions. One subdivision runs from the New

Hampshire border at Bellows Falls, Vermont, to Rutland.

Vermont, and is approximately 52 miles long. The main

line subdivision runs northerly from the southwestern

corner of the State of Vermont through North Bennington,

Rutland, -and Burlington, Vermont, to the northern tip of

Lake Champiain at Alburg, Vermont, a distance of about

155 miles. At Alburg the road proceeds westerly across

northern New York State through Malone and Norwood,

New York, to Ogdensburg, New York, a distance of one

hundred twenty-two miles. Malone is halfway between.

Alburg and Ogdensburg. Norwood, between Malone and ,

Ogdensburg, is 35 miles. from the former and 25 miles from

the latter. The portion of the line from Alburg to Ogdens-

burg is called the Ogdensburg Subdivision.

On November 2, 1959,'the Rutland Railway, which

had been in financial difficulty, sent notices to the general

_chairmen of the four defendant brotherhoods, as the duly

‘

. 6

. recognized representatives of the Ru‘land’s operating

employees, to inform the labor organizations that the

carrier proposed, among other things, to change all ex-

isting agreements and rules which would prevent it from

consolidating and‘ abolishing crew terminals, merging

seniority districts, and establishing interdivisional runs.'

' The relevant part of the notices given by the Rutland were

as follows:

“We hereby give notice, under our existing agreements

and pursuant to the provisions of the Railway Labor Act,

é} that effective January 1, 1960, we propose to revise and sup-

plement such agreement or agreements in accordance with

the proposal set forth in ‘Attachment A’ appended hereto.

ATTACHMENT A

Se | an * €

’ a

“Roap Jaane anp Encine Service ASSIGNMENTS.

“A."Except as hereinafter provided, eliminate all agree- -

ments, rules, regulations, interpretations, and practices,

however established, applicable to any class‘or grad

train or engine service Bee

“(i) prohibit or impose restrictions on the right of the

carrier to establish, move, consolidate or abolish crew termj-

nals, or merge or consolidate seniority districts,

“(ii) prohibit or impose restrictions on the establishment.

or operation of interdivisional, inter-seniority district, intra- -

divisional or intraseniority district ruris. .

“(iii) prohibit or provide penalties for running crews

through established crew terminals, or

»“(iy) provide for automatic release of crews upon arrival

at terminals or end of run, or when off of assigned territory.

“B. Establish a rule to provide that

_ “1 The carrier shall have the right to establish, move,

consolidate and abolish crew terminals,-to merge and ‘con-

solidate seniority districts, and to establish interdivisional,

interseniority district, intradivisional and intraseniority dis-

trict runs im assigned and unassigned service with the right

to operate ariy such rua, whether assigned or unassigne( (in-

cluding extra service), on either a one way or turnaround

(including short turnaround) basis and through established

crew terminals. * * * : .

“9 No rule, regulation, interpretation or practice, how-

ever established shall be construed to in any way prohibit,

(Continued on following page)

oad

As part‘of a concerted country-wide effort to initiate

national discussion of railroad problems most of the Class

I carriers in the nation also delivered similar notices to

brotherhood officers. .

The issuance of these notices was required by Section

6 of the Railway Labor Act, 44 Stat. 582 (1926), as

* amended, 45 U. S. C. § 156 (1958).* At the time these

(Continued from preceding page).

restrict or limit the provisions of paragraph 1 of. this rule

except as provided in sub-paragraphs (a) and (b) of this _

paragraph 2.

+ * = *

“(b) Before a run is established under the provisions of

this rule which the carrier dues not now have the right to

establish without agréement with its employees, and which

involves both the establishment of a new home terminal

for the class of service involved and operation through an

established crew terminal or terminals for such class of

service, the carrier shall give notice to the ‘general chair-

man a ee

“3. All agreements, rules, regulations, interpretations and

practices, however established, which conflict with the above

s shall be eliminated, except that existing rules and practices

considered by the carrier to be more favorabie are pre-

served.”

2 The section reads:

Sec. 6. Carriers and representatives uf the employees

shall give at least thirty days’ written notice of an intended

change 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 in-

terested in such intended changes shall be agreed upon with-

in 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 finafly acted upon,

as required by section 5 of this Act, 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.

’

SO iy see ae . \

. notices were sent the Rutland Railway had collective bar-

~ gaining agreements with the brotherhoods.

On November 30, 1959, conferences between repre-

sentatives of the Rutland. ani representatives of its em- .

‘ployees were. commenced in order to consider the pro-

- posals contained in the Section 6 notices sent November

Ps The parties failed to reach agreement on any of the

proposals, and the conferences were soon recessed. The

railroad then delegated authority to the Carriers’ Eastern

Conference Committee to further confer on behalf of the

Rutland, and the labor representatives delegated their

authority so to do to the National Conference Committee of

the four brotherhoods.’ } Pics

+ ° The Rutland’s financial plight continued to worsen.»

‘In the first eight months of 1960 it was. hauling 5300'car-

loads of freight less than it was hauling in the comparable

period of 1959. Its operating revenues were $264,000 less

_ than.those of the same period in 1959. Therefore the,rail-

road’s board of directors met in the spring and summer

of 1960 in order to devise methods for combating the

company’s financial problem. A plan was finally agreed

we ~

3 The representatives of the employees countered with pro-

ee their own, served by a Section 6 notice on September

_ 7, 1960. National ‘conferences on these controversies were sus-*

pended when the Presidential Railroad Commission was estab-

lished on November 1, 1960. The President authorized and di-

rected the Commission “to investigate and té inquire into the is-

sues raised by the proposals of the parties involved in the above .

mentioned controversy with the objective of making a report to

the President, including its findings and recommendations with

respect to the controversy, and assisting in achieving an amicable

settlement and agreement with respect to issues in dispute be-

tw the parties.” The Commission rendered its report and

recommendations on February 28, 1962. As yet, no agreement _

between labor and management has been reached on the rail-

roads’ proposals to change all rules preventing consolidation. vf

crew terminals, merger of seniority districts and establishment |

of interdivisional runs. :

- &

upon whereby certain operating expenses would be re-

duced by the abolition of several freight runs.

On its Ogdensburg Subdivision, which stretched from ‘, ry

Alburg, Vermont, to Ogdensburg, New York, the Rutland

had operated a total of four freighit trains and two yard"

switchers. From east to west.on the Ogdensburg Sub-

division, there were terminals at Alburg, Vermont; Ma-

lone, New York; Norwood, New York; and Ogdensburg,

New York. Two of these trains operated daily in opposite -~

directions between Alburg arid Norwood. The two other

trains operated out of Malone, one going to Ogdensburg

~ and Teturning each day, the other going to Alburg and

returning each day. Pursuant to the, decision of its di-

rectors to reduce the number, of freight runs, the, rail-

road posted bylletins on “September 8, 1960, announcing

that beginning September 17 the four existing daily freight

runs on the Ogdensburg Subdivision were to be replaced

by two, running daily;between Alburg and Ogdensburg

in opposite directions. This new schedule would reduce

change the home terminals of some of the trainmeh whose

jobs were not eliminated.

‘On September 14 the ‘railroad learned that. its em-

ployees would strike in an attempt to prevent these new

schedules from becoming effectives On the- morning of

September 15 the brotherhoods, obviously referring to the

schedule changes on the Ogdensburg Subdivision, tele-

graphed the railroad that they would go on strike at 12:01

A. M., September 16 because.“carrier cancelling 1957 and

_ the number of jobs on the subdivision by ten oe would

1959 agreements by bulletins and changing home termi- ~

nals and running thru former termirial for certaji local -

freight crews.” The railroad replied in part as follows: ©

Rutland Railway Corporation effective Sept 17, 1960

will’arréfe train assignment to confirm to the de-

= © y

mands of traffic. The change is not and cannot be

shown to have violated any rule or agreement as al-

leged. No agreement has been violated and the car-

rier is merely exercising its right te operate in an

economical manner. Conferences on this issue have

not been held on the property with the [brother-

hoods]. ¢

The operating employees punctually struck at the time

indicated by the brotherhooss' telegram that the strike

-would begin.‘

* Meanwhile, another dispute was raging between the Rut-

land Railway and its employees. This second dispute was only

tangentially related to the dispute spelled out in the text. In

August 1960 the brotherhoods asked for pay increases for the

employees whom they represented. A conference to negotiate

this dispute convened on August 30, eight days prior to the Sep-

tember 8 bulletin. The president of the railroad explained to

the labor representatives that the financial condition of the car-

rier made it impossible for management to meet the wage de-

mands of the unions but he stated that if certain rule changes

were agreed to by the unions the savings from these changes

might permit increases in pay. The changes proposed by the rail-

road were these: ae

1. Eliminate all arbitraries.

2. Open closed yards—the only closed yard on this prop-

erty is Rutland yard, closed to trainmen (yardmen).

3. Dovetail rosters, each craft, Vermont and New York

divisions.

4. Make provisions for operating road switchers.

5. Provide for operation of trains between assigned

terminals so that wage payments will equal the miles and/or

an 8 hour day.

The brotherhoods contended at the district court hearing that

a spokesman for the management explained that change No. 5

meant the running of trains through established home terminals,

but the district court refused to make such a finding. The Au-

gust 30 conference ended without success. On September 7, 1960

(see footnote 3), the general chairman of the Brotherhood oi

Railroad Trainmen served a Section 6 notice on the railroad as-

(Continued on following page)

. 11

Ten days later, on September 26, the railroad filed a

complaint in the United States District Court for the Dis-

trict of Vermont, asking the court to enjoin a further

strike, to order the defendants to comply with the pro-

cedural requirements of the Railway Labor Act, and to.

award damages to the plaintiff.

To support its claim for an injunction the railroad, de-

fining the disagreement with its employees to be whether

the management of the railroad had the right to rearrange

train runs and thereby reduce jobs and change crew ter-

minals without first negotiating the matter with the repre-

sentatives of its workers, ‘promptly submitted the dispute

ee National Railroad Adjustment Board under, the

inor dispute” provisions of the Railway Labor Act, §§ 2

___ Second, Sixth, 3, 44 Stat. 577, 578 (1926), as amended,

45 U.S.C. §§ 152 Second, Sixth, 153 (1958). On October

7 the defendants moved to dismiss the action because of

improper venue. This motion was denied on October 10.

The defendants then answered, and filed a counterclaim

in which they on their part sought an injunction prevent-

ing the railroad from putting into effect the schedule of

changes set forth in its bulletins of September 8 until at

sleast the relevant procedures provided by the Railway

Labor Act should have been exhausted.

After holding hearings on the merits of the respective

claims the district court issued an injunction enjoining the

(Continued from preceding segs) 2

serting that the brotherhood desired to change existing rates of

pay and rules. On September 12, the railroad agreed to sub-

mit the union’s proposals to national bargaining under the au-

spices of the National Mediation Board. A National Mediator

came to Rutland to mediate this dispute over future wages.

There was testimony at the hearing that the Mediator’s work

did not relate to the dispute over the bulletined changes in train

schedules on the Ogdensburg Subdivision.

——

4 rl 12

strike. A consideration of the railway’s prayer for an

award of damages was postponed to a later date. In its

opinion, reported at 188 F. Supp. 721 (D. Vt. 1960), the

court held that the dispute dut of which the strike arose

was a minor one, subje¢t to the jurisdiction and decision

of the National Railroad Adjustment Board and that the

Section 6 notice of/November 2, 1959, sent out by the

Class I railroads on the national level did not alter the

minor nature of this particular dispute ovewthe rechedul-

ing of freight runs. The court did not grant the defend-

ants’ prayer for an injunction to prevent the railroad from

effectuating its rescheduling. The defendants appeal to -.

this court, seeking review of the district court decision

A adverse to them.

The appellarfts contend that the venue ne this action

was not properly located in /the District of Vermont; that

et controversy out of which this litigation arose was not

“minor dispute” as the court below held, but a “major

hina under the Railway Labor Act, 44 Stat. 577

(1926), as amended, 45 U. S. C. § 151-63 (1958), and that

the Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 U.S. C.

§§ 101-115 (1958), deprived the court of jurisdiction to

enjoin the strike. The appellee railroad asserts, on the

other hand, that the court below was correct in deter-

‘mining the dispute a minor one which permitted the car-

rier to prodéed with its schedule changes and required-

that the employees desist from striking.

VENUE

Three of the defendant brotherhoods, the Brother-

hood of Locomotive Engineers, the Brotherhood of Loco-

‘ motive Firemen and Enginemen, and the Brotherhood of

Railroad Trainmen, have their headquarters at Cleveland,

Ohio. .The headquarters of the fourth brotherhood, Order

~ of Railroad Conductors and Brakemen, are at Cedar

Rapids, Iowa.

Inasmuch as this action arises under the laws’ of the

United States, namely, the Railway Labor Act, the rele-

vant venue provision of the Judicial Code is 28 U. S. C.

§ 1391(b):

“(b) A civil action wherein jurisdiction is not

founded solely on diversity of citizenship may be

brought only in the judicial district whereall defend-

ants reside, except as otherwise provided by law. ‘i

The brotherhoods assert that, since they are uninesepo-

rated associations, the proper venue for an action against

any one of them is only in the judicial district where its

principal place of business is situated.

* In Sperry Prods., Inc. v. Association of Am. R.Rs. 432

F. 2d 408 (2 Cir. 1942), cert. denied, 319 U. S. 744 (1943),

involving thé venue provision for patent infringement ac-

tions, Judge Learned Hand discussed the concept of venue

as it related to unincorporated associations. The venue

statute there involved, 35 Stat. 1084 (1909), 28 U. S. C.

§ 109 (1940) (now 28 U.S. C. § 1400(b) (1958) ), stated

that any ‘suit for patent infringement might be brought

“in the district of which the defendant is an inhabitant,

or in any district,in which the defendant * * * shall have

committed acts of infringement»and have a regular and

established place of business.” Judge Hand stated that for

venue purposes, as well as for other procedural incidents,

an unincorporated association should be conzidered a jural

entity, cf. United Mine Workers v. Coronado Coal Co., 259

U. S. 344 (1922). and that the érfly practical approach

to the procedural problems created by actions involving

unincorporated associations was to assimilate their treat- <

ment to that accorded ‘corporations. Therefore, Judge

Hand concluded that an unincorporated association should

be considered ~present” wherever it was contihuously

carrying on a substantial part of its a€tivities, since this

was the standard for the “presence” of corporations. How-

ever, he hastened to afld that being ‘“‘present” in a district

was not tantamount to being an “inhabitant” of that dis-

trict. Again assimilating the situation of the unincorpo-

rated entity which has no place of incorporation to that

of the incorporated entity, Judge Hand announced that

the unincorporated entity was an “inhabitant” of the dis-

tfict of its principal place of business.

Although Spérry Prods., Inc. involved the venue pro-- .

vision: for patent infringement actions, courfs have applied _

- Judge Hand’s reasoning in that case to the determination

of questions that have arisen involving the general venue

statute. Until the revision of the Judicial Code in 1948

there was little difficulty in so doing because the general

venue statute, 28 U: S. C. § 112 (1940), provided only

that “no civi} suit shall be brought in any district court

against any person * * * in any other district than that:

whereof he is an inhabitant * * *” Thus Judge Hand's

discussion of where an uninc-rporated association was an

inhabitant was applicable with equal force under the gen-

eral venue provision a8 it then existed. See Brotherhood

of Locomotive Firemen v. Graham, 175 F. 2d-802 (1. C.

Cir. 1948), rev'd or other grounds, 338 U. S. 232 (1949).

Cf. Darby v. Philadeiphia Transp. Co., 73 F. Supp. 522

(E: D. Pa. 1947). But see Thermoid Co: v. United Rubber

Workers, 70 F. Supp. 228 (D. N. J. 1947). But in 1948

the general venue statute was redrafted ag 28 U. S. C.

§ 1391; and a subsection (c) was added. This subsection

stated: ’

. ¢ (¢) A corporation may be sued in any judicial

district in which it is’ incerporated or licensed to do

business or is doing business, and’ such judicial dis-

a | 15

trict shall be regarded as the residence of such corpo-

ration for venue purposes.” ‘

Under the venue provision drafted in’ 1948 courts were

faced with the question whether they should follow Judge

Hand and hold that an unincorporated association resides

only at ifs principal place of business. or whether the proc-

ess of assimilation which Judge Hand advocated should

be extended by assimilating the treatment of unincorpo-

rated associations for venue purposes with the newly

expanded concept of corporate residence.

The cases are divided on this issue. Some courts have

held that for determining venue’as unincorporated asso-

ciation resides only at its principal place of business.

oa, Brotherhood of Locomotive Firemen, v. Graham supra;

McNutt v. United Gas Workers, if F. Supp. 871, 875 .

(W. D. Ark. 1952); Griffin v. Illinois Cent. R.R., 88 F.

a Supp: 552, 555 (N. D. Ill. 1949); Salvant v. Louisville &

N. R. R., 83 F. Supp. 391, 396 (W. D. Ky. 1949) : Cherico

__ v. Brotherhood of R.R. Trainmen, 167 F. Supp. 635 (S. D.-

-N. Y. 1958). Cf. Hadden v. Small, 145 F. Supp. 387 (N. D.

- , Ohio 1951). Other courts have held that an unihcorpo-

rated association may .be sued in any distrfct in. which it

‘is doing business. Portsmouth Baseball Corp. v. Frick,

: 132 F. Supp. 922 (S. D. N.-Y. 1955): American Airlines,

» Inc. v. Air Line, Pilots’ Ass’n, 169 F. Supp. 777 (S. D.

- N. Y. 1958); Eastern Motor Express, Inc.’ v. Espenshade,

138 F. Supp. 426 (E. D. Pa’.1956). And the Supreme

Court has not yet spoken on the matter. ©

Venue in the federal courts is not a jurisdictional

concept. See'28 U.S. C. § 1406(b) (1958)- H. R. Report

‘

* Another difference between the new statute and the old one

was that the new one spoke in terms. of “residence” instead of

“inbabitance”;’ but it is clear from the Reviser’s Notes to §$ 1391

‘ that, the two terms were intended to be synonymous. H. R. Re-

port 308, 80th Cong., Ist Sess. A147 (1947).

308, 80th — lst Sess. A154 (1947) (Reviser’s Notes).

We should not think about it in the metaphysical terms

which have often been associated with considerations of

jurisdiction. Venue is a concept of- convenience. See

Neirbo v. Bethlehem Shipbuilding Corp. ., 308 U. S.' 165,

167-68. (1939) ; Cohen v. Commodity Credit Corp., 172

F. Supp. 803 (W. D. Ark. 1959): Jacobson v. Indianapolis

Power & Light Co., 163 F. Supp. 218 (N. D. Ind. 1958);

The North River, 57 F. Supp. 808 (E. D. N. Y. 1944);

Vogel v. Crown Cork’& Seal Co., 36 F. Supp. 74 (D. Md.

' 1940). It should be treated in practical terms.. See Sperry

. Prods.; Inc. v. Ass’n of Am. R.Rs.; supra; American Air-

lines v. Air Line Pilots Ass’n, supra. Congress has stated

in § 1391(c) that the residence of a corporation for venue

purposes is not only in the state wherein it is incorporated

hut also, in the places where it is licensed to do business

and where it is doing business. It is true that we would

‘be reading into 28 £4¢ § 1391(c) words which are

not there if we should assert that that subsection states

that it applies to,unineorporated associations. See Cherico

v. Brotherhood of R.R. Trainmen, supra. But we do not

find any manifestation here of a congressional policy of

exrpressio unius est exclusio alterius, and so we follow-the

reasoning in Sperry Prods. and assimilate the residence of

‘ unincorporated associations under 28 U. S.-C. § 1391(b)

- .to‘that of corporations, 28 U. S. C. § 1391(c). Since the

residence of a corporation for venue purposes has been

expanded to include all the judicial districts in which the

corporation is dojng business, the residence of an unin-

‘corporated association for venue purposes should likewise.

be expanded to include all the judicial districts in which

the unincorporated entity is doing business. We believe

this accords with, the practical requirements of litigation

involving unincorporated associations. If an unincorpo-

rated union is carrying on sufficient aetivities in a particu-

lar judicial district so that it is deemed: to be doing busi-

ness there, it usually will suffer no undue hardship if

required to stand suit there. If in certain instances the

defense of a suit in a particular district is peculiarly op-

pressive, the association — always seek a transfer of the

- acti6y under 28 U.S.C. § 1404(a) (1958).

Turning to the case batore us, we hold that the de-

fendant brotherhoods were doing business in the District

of Vermont. They set up and maintained grievance com-

mittees and other facilities among the’ employees of the

Rutland Railway in Vermont. They organized a Strike of ©

railroad employees in Vermont. They negotiated with the

management of the plaintiff railroad in Vermont. There-

fore, we conclude that venue for this action in the District

of Vermont was proper and we affirm the order of the

court L.clow denying the motions to dismiss.

_Mrnor or Masor Dispute.

We think that there are only two general questions

presented by the i issues of labor law inv: alved in this case.

They are: First, is this a so-called “maior” or “minor”

dispute under the pre Labor Act, 44 Stat. 577, as

amended, 45 U.S.C. § 151-63 (1958)? Second, does the _

Nérris-LaGuardia Act, 47 Stat. 70 (1932), 29U.S © -

$ 101-15 (1958) deprive the: district court of jurisdiction

- enjoin the strike?

For either of these statutes to be operative, there must

be first of all a “labor dispute.” The Norris-LaGuardia

Act, $13(c), 47 Stat. 73, 29 U. S.C. $173 (ce) (1958),

defines a labor dispute as follows:

“(c) The ten. ‘labor diapute’ includes any contro-

versy concerning terms or conditions of employment,

or concerning the association oy representation of per-

= 18 |

‘sons in negotiating,. fixing, maintaining, changing, or

seeking to arrange terms or conditions of employment,

regardless of whether or not the disputants stand in

the proximate-relation of employer and empfoyee.”

Section 2 of the Railway Labor Act, 44 Stat. 577 (1926),

45 U.S. GC. § 151(a) (1958), sets out the disputes to which

it applies as “all disputes concerning rates of pay, rules,

or working conditions” and “‘all disputes growing out of

grievances or out of the interpretation or application of

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

ditions.” fh Order of R.R. Telegraphers v. Chicago &

N. W. R. R., 362 U. S. 330 (1960), the Supreme Court

explicitly held that a labor dispute existed under the Nor-

ris-LaGuardia Act, and implied that one existed under the

Railway Labor Act, when a railroad sought to close a num-

ber of its stations, and thereby reduce employment. The

Court stated:

Plainly the controversy here relates to an effort

on the part of the union to thange the “terms” of an

-existing collective bargaining agreement. The change

just as plainly referred to “conditions of em-

“ployment” of the railroad’s employees who are repre-

sented by the union. The employment of many of

these station agents inescapably hangs on the number.

of railroad stations that will be either completely

abandoned or consolidated with other stations. And,

in the collective bargaining world today, there is

. nothing strange about agreements that affect the

- permanency of employment. The District. Court's

finding that “[cjoilective bargaining as to the length

or term of employment is commonplace,” is not chal-

lenged, Id. at 336.

Numerous other courts have assumed the presence of labor

disputes in similar situations. E.g., Hilbert v. Pennsyl-

_vania R. R., 290 F.2d 881 (7 Gir.), cert. denied, 368 U. S.

900 (1961); In the Matter of Hudson & M. R.R., 172 F.

Supp. 329 (S. D. N. Y.); aff'd sub nom. Stichman v. Gen-

eral Grievance Comm. of the Bhd. of R.R. Trainmen, 267

F. 2d 941 (2 Cir. 1959), cert. denied, 361 U. S. 928

(1960). Cf. Butte A. & Pac. Ry. v. Brotherhood of Loco-

motive Firemen, 268 F. 2d 54 (9 Cir.), cert. denied, 361

U. S. 864 (1959). The court below was correct when it

found that a labor dispute relating to working conditions

existed when the case was heard on October 20, 1960.

‘ In erder to avoid interruptions to transportation re-

sulting from disputes over rates of pay, rules, or working

@tiditions, to provide peaceful and orderly procedures

for the settlement of these disputes, and to foster the or-

ganization of employees, 44 Stat. 577 (1926), 45 U.S. C.

$151(a) (1958), the Railway Labor Act was passed in

1926. 44 Stat. 577, as amended, 45 U. S. C. § 151-63

(1958). The Act contemplates; two types of disputes,

major and minor, and provides different procedures for

handling each: See Railway Labor Act, § 2, 44 Stat. 577

(1926), 45 U.S.C. § 15a) (1958), Mearings on H.R. _

7650, before House Committee on Interstate Commerce,

73d Cong., 2d Sess. (1934); Hearings on S. 3266, before

Senate Committee on Interstate Commerce, 73d Cong., 2d

Sess. (1934). Mr. Justice Rutledge in his oft-quoted

opinion for the Court in Elgin, J. & E. Ry. v. Burley, 325

U.S. 711 (1945), explained the distinction between major

‘and minor disputes under the Railway Labor Act:

The first | major dispute] relates to disputes over

the formation of collective agreements or efforts to

secure them. They arise where there is no such agree-

ment or where it is sought to change the terms of one,

and ‘therefore the issue is not whether an existing

agreement controls the controvers ~ They look to the

acquisition of rights for the future, not to assertion

of rights claimed to have“vested in the past.

The second class, [minor disputes] however, con-

templates the existence of a collective agreement al-

ready concluded or, at any rate, a situation in which

no effort is made to bring about a formal change in

terms or to create a riew one. The dispute relates

either to the meaning or proper application of a par-

ticular provision with reference to a specific situation

or to an omitted case. In the latter event the claim

is founded upon some incident of the employment re-

lation, or asserted one, independent of those covered

by the collective agreement, e.g., claims on account of

personal injuries. In either case the claim ‘js to rights

accrued, not merely to have new ones created for the

future. Id. at 723.

. See also Hearings on H. R. 7650, before House Committee

‘on Interstate Commerce, 73d Cong., 2d Sess. 47 (1934).

In both types of disputes the Act requires that, as a

first step, the parties must maké every reasonable effort

to settle their differences in conference. § 2 First, Second,

44 Stat. 577 (1926), as amended, 45 U. S. C. § 152 First,

’ Second (1958). Elgin, J. & E. Ry. v. Burley, supra at 724-

25 and nn. 12, 18. Major disputes ébmmence with the issu-

_ ance of a notice | known as a “Section 6 notice,” given by

' the party seeking to change existing agreements.: §§ 2

Seventh, 6, 44 Stat. 577, 582 (1926), as amended, 45 U.S.

C. §§ 152 Seventh, 156 (1958). In major disputes, if settle-

ment cannot be reached in conference, the matter is re-

ferred to mediation under the auspices of the National

Mediation Board. § 5, 44 Stat. 580 (1926), as amended, 45

U. S. C. § 155 (1958). °If mediation fails, the Mediation

Board proposes voluntary arbitration to the parties, $$ 5,

7, 44 Stat. 580, 582 (1926), as amended, 45 U.S.C. $$ 155,

157 (1958), a course of action neither party is required

to adopt. Brotherhood of R. R. Trainmen v. Toledo, P. &

W. R. R., 321 U.S. 50 (1944). Finally, if the President of

the United States desires, he is empowered to set up an

emergency board to ‘investigate and report to him with re-

. spect tb the dispute. § 10, 44 Stat. 586 (1926), as amended,

45 U.S.C. § 160 (1958). The parties are required to com-

. ply with each stage in the above-described procedure be--

fore either may resort to, self-help, and it is the statutory

duty of the carrier not to alter rates of pay, rules, or work-

ing conditions, i.e., to maintain the status quo, until the

' Mediation Board has acted upon the dispute. § 6, 44 Stat. -

582. (1926), as amended, 45 U, S. C. § 156 (1958); see

Burke v. Morphy, 109 F. 2d 572 (2 Cir.), cert. denied, 310

U.S. 635 (1940). Grand International Bhd. of Locomo-

tive Engineers v. Morphy, 109 F. 2d 576 (2 Cir.), cert.

denied, 310 U..S. 635 (1940) However, the Act does not

create any tribunal having final authority to decide a major

dispute without the consent of both parties, and in such

disputes no provision in the Railway Labor Act prohibits

the workers from striking as soon as all of the procedures

for settling the dispute have been exhausted without a

mutually satisfactory solution having been reached."

The procedure under the 1926 Act for handling the

other type of dispute (the minor dispute) soon proved in-

efféctual tc produce peace in the railroad industry. Dead-

lock often resulted from the.refusal by one side or the

other to participate in the voluntary local boards w shich the

Act contemplated.as the source of decision in such dis-

“ Since the Railway Labor Act contains no provision to the

contrary, the Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.

C. $$ 101-15 (1958), operates to prevent. the federal courts from

enjoining strikes in major disputes, at least after the exhaustion

of all of the procedures provided’ by the Railway Labor Act for

settling such disputes. See Brotherhood of R. R. Trainmen v.

Chicage River & Ind. R. R., 353 U. S. 30, n. 24 (1957); Brother-

hood of R. R. Trainmen v. Toledo, P. & W R R., 321 U. S. 50 ®

(1944); Order of R.R. aaa v. Chicago & N. W. R. R.,

362 U. S. 330 (1960).

putes. Moreover, in many cases in which boards were

established no decision could be reached because of the

equal number of labor and management members on each

board. These circumstances produced an ever-increasing

backlog of unresolved disputes. See Hearings on S. 3266

before Senate Committee on Interstate Commerce, 73d

Cong., 2d Sess. 17, 137 (1934). To eliminate these road-

blocks, the statute was amended in 1934 and the National

Railroad Adjustment Board was created, making it un-

necessary for the parties to set up local boards. § 3, 48

Stat. 1189 (1934), 45 U. S. C. § 153 (1958); H. R. Rep.

No. 1944, 73d Cong., 2d Sess. 3; S. Rep. No. 1065, 73d

Cong., 2d Sess. 1, 2 (1934). Under this amendment, if the

parties fail to agree in conference, either side may submit

the matter to the Nationa! Railroad Adjustment Board.

Procedures are provided for assuring the Board will not

become deadlocked, and unless the Board’s decision con- ;

tains a monetary award the decision of the Board is final

and binding on the parties. § 3(i)(1)(m)(n), 48 Stat.

1189 (1934), 45 U. S. C. § 153(i) (1) (m) (n) (1923), see

Union Pac. R. R..v. Price, 360 U. S. 601 (1959). See gen-

erally Garrison, The National Railroad Adjustment Board:

A Unique Administrative Agency, 46 Yale L. J. 567

(1937). Thus a system of compulsory arbitration of minor

disputes was created by the 1934 amendment. Brother-

hood of R. R. Trainmen v. Chicago River & Ind. R. R., 353

U.S. 30 (1957) ; California v. Taylor, 353 U.S. 553 (1957).

See Hearings on H. R. 7650 before H use Committee on

Interstate Commerce, 73d Cong., 2d Sess. 47, 58, 60, 81-

82, 118 (1934); Hearings on S. 3266 before Senate Com-

mittee on Interstate Commerce, 73d Cong., 2d Sess. 33, 35

(1934). To effectuate these procedures for the conclusive

determination of minor disputes, courts have issued in-

junctions against strikes by the railroad unions. E.g.,

Brotherhood of R. R. Trainmen v. Chicago River & Ind

R. R./supra; In the Matter of Hudson &M, R. R., 172 F.

Supp. 329 (S. D.N. Y.). aff'd sub nom. Stchman v. Gen-

eral Grievance Comm. of the Bhd. of R. R. Trainmen, 267

F. 2d 941 (2 Cir. 1959), cert. denied, 361 U.S. 928 (1960).

The defendants contend that the present controversy

is a major dispute under the Railway Labor Act; and. ~

therefore, their strike may not be enjoined; or, at least,

may only be enjoined for the short period of time neces-

sary for the exhaustion of mediation and the other major

dispute procedures. The railroad, on the other hand.

claims that this is a minor dispute, and, therefore, the

strike must be enjoined so that the issue between the

parties can be decided with finality by the Railroad Ad-

justment Board. We are called upon to decide whether

this dispute is a major or a minor dispute, so that the

parties then may go forward under the applicabie set of

procedures sanctioned by the Railway Labor Act. As

Elgin, J. & E. Ry. v. Burley, supra, explained, the differ-

ence between major and minor disputes is that the former

relate to new agreements or changes in existing contracts

whereas the latter involve the interpretation and the ap-

plication of existing agreements. We readily recognize

that here, as in other areas of.jurisprudence, the difference,

on-the c 1e hand, between the interpretation and the appli-

cation of an existing agreement, and, on the other hand, a

change in an original intended basis of agreement is often

a question of degree.

* There is some doubt whether a federal court has power to

issue an anti-strike injunction in a mifior dispute before the

matter is submitted to the Railroad Adjustment Board Cf. Man-

ion v. Kansas City Terminal Ry.. 353 U. S. 927 (1957): Hilbert v

Pennsylvania R. R , 290 F. 2d 881 (7 Cir.), cert. demied, 368 U

S. 900 (1961). But inasmuch as. the Rutland Railway has sub-

mitted the present controversy to the Board, we are not here

faced with this problem. |

24 | =o

In reaching for resolution of this problem of course we .

must not place undue emphasis on_the contentions or the

maneuvers, of the parties». Managementt will assert that its

posifion, whether right or wrong, is only an interpretation °

or application of the existing contract. Unions, on the

other hand, in their assertions about the dispute at issue,

will obviously. talk in terms of change. Since a Section 6

notice is required by the statute in order to initiate a major

dispute, the labor representatives are likely to serve such

a notice in any dispute arising out of any ambiguoup situ- :

ation so as thereby to make the controversy appear more

like g maj8r dispute. Compare Order of R. R. Telegraph-

ers v. Chicago & N. W. R. R., 362 U.S. 330 (1960). Or

they may seek to bring the particular conflict at issue —

within the bounds of an outstanding Section 6 notice ‘that

in reality does not relate to that dispute. See Comment,

Enjoining Strikes and Maintaining the Status Quo in Rail-

way Labor Disputes, 60 Colum. L. Rev. 381, 394-97 (1960).

But, on the other hand, we should not in the process

of classifying this dispute as major or snihor thereby also

adjudicate the merits of the controversy between the par-

ties. If this is a minor dispute, a decision on the merits

of the dispute is the function of the National Railroad Ad-

justment Board; and if this is a major dispute the outcome

of the parties’ difference is to be determined by extra-

judicial forces and procedures. See Order of Ry. Cone

ductors v. Pitney; 326 U.S. 561 (1946) ; Norfolk & P. B. L..

R. R. v. Brotherhood of R. R. Trainmen, 248 F. 2d 34 (4

Cir. 1957), cert. denied, 355 U.S. 914 (1958).

The disagreement een the Rutland Railway and

its employees is not whet the train runs on the Ogdens- .

burg Subdivision should be’ rescheduled, but, instead,

whether. the railroad has the unilateral right -to make

those changes without negotiating about them with the

P 4

2 95°

fH Grotherhoods. Cf. Norfolk & P. B. L. R. R. v. Brotherhood

” of R. R. Trainmen, supra; Missouri-K.-T. R. R. v.. Brother-

hood of Locomotive Engineers, 266 F. 2d 335 (5 Cir. 1959),

reversed on other grounds, 363 U. S. 528 (1960). Whether -

it be a major or a minor dispute, the disagreement is a dis-

pute over the scope of the railroad’s managerial preroga-

. tive. It is a major dispute if the present agreements be-

tween the railroad and the brotherhoods contain express

provisions contrary to the- position taken’ by the railroad -

or-if the clear implication of these agreements is incon- ~

sistent with the railroad’s proposals. It is a minor dispute

if there is a clearly governing provision in the present

> agreements, although its precise fquirements are am-

biguous; and it is also minor if what the railroad seeks‘to

do is supported by customary and ordinary interpretations

of the language ‘of the agreements.

__ The‘unions assert that the Section 6 notices of Novem-

‘ber 2, 1959, demonstrate that this is a major dispute.

These notices ‘were issued pursuant to national handling

and similar notices were issued by most of the-other Class

. I railroads in ‘the country on the same day. Hilbert v. Penn-

sylvania R. R., 290 F\ 2d 881 (7.Cir.), cert: denied, 368

‘U. S. 900 (1961). Conferences over the changes referred = ~-

to in those 1959 notices were stil] going on when the Rut-

land bulletined the new schedules for the Ogdensburg

Subdivision in September 1960. . sf

However, we note that the lariguage in the Rutland’ >

notices was not necessarily inconsistent with the railroad’s

present contention that it has the right under its existing

agreements fo change train schedules without negotiation.

The November 2, 1959 notices set out a procedure for es-

_ tablishing new runs “which the carrier does not now have

the right to establish without agreement with its acid

ees * * *” The notices 3 also state:

26 |

., “3. All agreements, rules, regulations, interpreta-

tions and practiceshowever established, which con-

flict with the above shall be eliminated, except that

existing rules and practices considered by- the carrier

to be more favorable are preserved.”

The Seventh Circuit, faced-with aN. notices in Hil-—

bert v. Pennsylvania R. R., supra, held that the railroad’s

- November 2, 1959, Section 6 notices involved in that case

did not turra subsequent controversy over a proposed —

change in certain home terminals of the road into a major

dispute. Cf. Pennsylvania R. R. v. Local 2013 of United

R. R. Workers, 178 F. Supp. 53 (E. D. Pa. 1959). We be-

lieve a similar ‘situation exists in thé case before us. The

Section 6 notices created a major dispute, but the dispute

so created was ngt the dispute over which the Rutland’s .

employees went out on strike ten and one-half months.

later. Although there is an apparent similarity between .

the changes proposed in the notice given by the Rutland

on November 2, 1959, and the schedule changes which the

railroad later made unilaterally, the court below found

that thé railroad in making the September 1960 changes

was not acting pursuant to the earlier notices. We cannot .

say that the district court was in er ror in so finding. -

Butte, A. & Pac. Ry. v. Brotherhood of Locomotive

Firemen, 268 F. 2d 54:(9 Cir.), cert. denied, 361 U. S. 864

(1959), relied upon by the defendants, is distinguishable

‘from the present case. In ‘that case the railroad issued

Section 6 notices in which it first proposed to allocate cer-

tain ore loading formerly done by yard crews to main line

- crews, and, failing to reach agreement with the representa-

tives of its workers thereon it then proposed to reduce the

size of the yard crews from five men to three men. Since

‘this second proposal; too, was unacceptable; the railroad

announced that the shipper would load its own ore. The

h | :

_ 27

. Shipper was Anaconda Copper Company, which ¢conven-

iently happened to own all of the stock of the tailroad.

The railroad asserted that since the shipper, instead of the

carrier, was going to load the ore,- the road’s dispute with

its employees was at an end, and therefore the strike in

which its.employees wére engaged should be enjoined.

_ The court held that the major dispute commenced. by the

~ railroad’s Section 6 notices continued, for the action ‘taken

by the copper company should be imputed to its wholly-

» owned subsidiary, the railroad. Thus the court there held

*Shat the Section 6 notices related to the controversy .

throughout.- That decision turned upon the specific facts

in that case relating to the notices and the dispute. Sim-

ilarly, in the present case, the significance of the Section 6

_ notices rests to a large extent on what the Rutland Railway

intended when it issued the 1959 Section 6 notices and

what the managemegt and the employees intended ‘when

they subsequently came involved in the 1960 dispute.

In the present case; upon a set of facts different from those -

in Butte, A. & Pac. Ry., we have concluded that the con-

troversy created by the Rutland’s Section 6 notices was

_ not thégame ‘controversy over. which its whinicedane struck

_ in September 1960. ;

_ The Rutland Rillwey points out several provisions in

its agreements with the defendant brotherhoods which,

the railroad contends, demonstrate that it had the right to

act as it did. One such provision is Article 39(a) of its

agreement with the Order of Railway Conductors ard the

Brotherhood of Railroad Trainmen:

‘‘(a)° All vacant or new runs will be posted on a the

division on which'they occur within five (5) days, to

zs within five (5) days, and to be assigned to the_

est bidder within ten (10) days, merit, fitness and

abiliiv to be considered. In case of men being away

when run is advertised, when reporting for duty _

made within five (5) days.”’

The language of Article XXXVII(a) in the carrier's agree.

or the layover of such runs changed, they will be con-

sidered new runs and bulletined as such.”

ployeés over changes in train runs. This finding was not

clearly erroneous. Across the nation there seems to be no

' uniform pattern in this matter; some railroads have more

latitude to act unilaterally over changes of this sort than

do others. See the Presidential Railroad Commission Re-

port (Feb. 28, 1962) at 295.

In a number of cases involving disagreements similar

to the one in the present case, courts have classified the dis-

putes as minor. In the Matter of Hudson & M. R. R., 172

F. Supp. 329 (S. D. N. Y.), aff'd sub nom. Stichman v.

General Grievance Comm. of the Bhd. of R: R. Trainmen,

267 F. 2d 941 (2 Cir. 1959), cert. denied, 361 U. S. 928

(1960), see also cert. denied, 363 U. S. 843 (revision of

runs and use of multiple control cars reducing trainmen

jobs); Norfolk & P. B. L. R. R. v. Brotherhood of R. R.

Trainmen, 248 F. 2d 34 (4 Cir. 1957), cert. denied, 355

U.S. 914 (1958) (change of point for reporting to work) ;

Missouri-K-T.-.R.°R. v. Brotherhood .of Locomotive En-

gineers, 266 F. 2d 335 (5 Cir. 1959), reversed on other

grounds, 363 U. S. 528 (1960) (changes in intradivisional ©

runs and away-from-home terminals) ; Hilbert v. Pennsyl-

_ vania R. R., 290 F: 2d 881 (7 Cir.), cert. denied, 368 U.S. .

900 (1960) (reassignment of engineers from one terminal

-to another); Baltimore & O. R. R. v. United R. R. Work-

ets, 271 F. 2d 87 (2 Cir. 1959), vacated and remanded on

other grounds, 364 U.S. 278 (1960) ( abolition of post of

oiler on diesel powered tugs).

In the light of the provisions of the collective bar-

gaining agreenients, the prior conduct of the parties as

found by the trig) judge and the decisions in analogous

cases, we hold that the existing agreements involved here.

teasonably interpreted, may recognize implicitly a right in

the railroad unilaterally to make the changes which it

bulletined on September 8, 1960; therefore, we hold that 4

the ensuing dispute must be viewed by the courts as a

minor dispute. Whether the railroad does in fact have the

rights it claims, or whether on further analysis it does not

is for the Board to determine; on the ultimate resolution

of this issue we express no opinion. We only hold that for

the purpose of defining the extent to which a court may in-

tervene and enjoin a strike the dispute in the present case

is to be considered minor as one involving the interpreta-

tion of existing agreements.

Our decision is not inconsistent with the Supreme

Court’s holding in Order-of R. R. Telegraphers v. Chicago

& N. WR. R., 362 U.S. 330 (1960). Besides concluding

in that case that a controversy over a railroad’s proposal

to reduce the number of its stations was a labor dispute

under the Norris-LaGuardia Act, the Court held that that

disagreement between management and labor involved a

bargainable issue and that the controversy was a major

dispute. We do not say that the issue in the present case

is not a bargainable one. We have no doubt that the

brotherhoods, upon the expiration of the existing agree-

ments, may require the railroad to bargain over future

procedures for changing train runs and schedules. We

only hold that there is a sufficient indication that the exist-¢%

ing agreements have preserved management’s right uni-

laterally to make the schedule changes management in-

tended to make so as to require that the dispute be sub-

mitted to the National Railréad Adjustment Board, as pro-

vided by the Railway Labor Act.

We are not entirely certain what constituted the basis

in the Chicago & N. W. R. R. case for the Court’s other cons

clusion that there a major dispute existed. Cf. Hilbert 2:

Pennsylvania R. R., 290 F. 2d 881, 895 (7 Cir.), cert. de-

nied, 368 U. S. 900 (1961). Probably the Court was ap-

plying the traditional standards for distinguishing the two

types of disputes, and, on the facts presented to it in that

case, concluded that a major dispute was present. On a

different set of facts we have found a minor dispute here.

But perhaps the Court in Chicago & N. W. R. R. was add- °

ing a new dimension to the usual criteria for distinguish-

ing major disputes from minor one, that of the magnitude

of the effect on working conditions which would result

from the proposal by the railroad. But even if the Court

was adding this ingredient to its analysis, which we doubt,

the controversy before us is still a minor dispute because

the proposed schedule changes on the Ogdensburg’ Sub-

* division would only affect very few jobs. ,

The court below did not condition its issuance of the

injunction against appellants on a requirement tfat the

railroad maintain the status quo. It was certainly within

the court’s power to impose such a condition. See Brother-

hood of Locomotive Engineers v. Missouri-K-T R. R., 363

U: S. 528 (1960) ; also United R. R. Workers v. Baltimore

& O. R. R., 364 U. S. 278 (1960). But likewise it was in the

court's discretion to decline to impose " conditions. 363

U.S. at 534-35. We find no abuse by the court of its

discretionary powers in this area.

INTERRELATION OF THE RarLway ‘Lasor ACT AND

i .

THE Norris-LaGuarpia ACT

In general,. the Norris-LaGuardia Act, 47 Stat. 70

(1932), 29 U.S. C. § § 101-15 (1958), passed in 1932, de-

prives federal district courts of jurisdiction to issue in-

junctions against strikes by employees in labor disputes,

§ 4(a), 47 Stat. 71 (1932),.29 U: S.C. § 104(a) (1958);

allows injunctions to be granted against unlawful acts

which will cause irreparable injury only under strict pro-

cedural requirements, § 7; 47 Stat. 71 (1932), 29 U.S. C.

§ 107 (1958); and precludes injunctive relief even when

these stringent requirements are met if the complainant

has failed to fulfill, on its.part, its legal obligations or has

‘failed, on its part, to fhake reasonable attempts to settle

the labor dispute by negotiation, mediation, or voluntary

arbitration, § 8, 47 Stat. 72 (1932), .29 U. S.C. § 108

(1958). See 75 Cong. Rec. 4626, 4629 (1932 ); Chicago R.

I. & Pac. R. R. v. Switchmen’s Union, 292 F. 2d 61 (2 Cir.

1961), petition for cert. filed, 30 U. S. L. Week 3036 (U.S.

. July 19, 1961) (No. 237). This statute embodies a policy

_ of fostering the resolution of labor difficulties through the

interplay of private forces umhampered by judicial inter-

ference. See S. Rep. No. 163, 72d Cong., ist Sess. 18

(1932) ; H. R. Rep. No. 669, 72d Cong., Ist Sess. 3 (1932).

The draftsmen of the Norris LaGuardia Act had before

them the 1926 provisions of the Railway Labor Act,-which

included most of the present procedures for settling

‘major disputes, the provisions’ for disposing of minor dis-

putes through voluntary local. boards, and Section 2 First

and Second, 44 Stat. 577 (1926), 45 U.S.C. § 152 First

and Second (1958), which imposed on both management

and Jabor the duty to confer over any dispute. All of these

provisions channeled, but did not eliminate, the operation

of private forces in the determination of labor disputes. s

See Brotherhood of R. R. Trainmen v. Toledo, P. & W. R.

R., 321 U.S. 50, 58-59 (1944); cf. 75 Cong. Rec. 4505-10,

~ 4618-26, 5462-515 (1932). Subsequent labor legislation,

however, including the 1934 amendments to the Railway

Labor Act which provided for official adjudication of cer-

tain labor disputes by the National Railroad Adjustment

Board, reflected a policy of interpositioning greater gov- -

ernmental participation in labor relations. See Note, Ac-

commodation of the Norris-LaGuardia Act to Other Fed-

eral Statutes, 72 Harv.“L. Rev. 354, 356 (1958). To ac-

commodate the differing policies underlying the Norris-

LaGuardia “Act and the Railway Labor Act js not an easy

task. In Brotherhood of R. R. Trainmen v. Chicago River

& Ind. R. R., 353 U.S. 30, 40 (1957), the Supreme. Court

stated:

°° * the Norrie LaGuardia Act cannot be read

alone in matters dealing with railway labor disputes.

*. There must bé an accommodation of that statute and

the Railway Labor Act so that the obvious purpose in

the enactment of each is preserved. We think that the

purposes of these Acts are reeoncilable. ,

On numerous occasions courts have issued injunctions *

in labor digputes despite the apparently categorical lan-

guage of the Norris-LaGuardia Act. In Virginian Ry. v.

System Fed’n 40, 300 U. S. 515 (1937), a labor union

which had been certified by the ional Mediation Board

obtained ‘an injunction against alrailroad commanding the

road to deal with it and not to interfere with the employees’

choice of a bargaining representative. In a series of cases —

the Suprenie Court has held that railroad unions may be

enjoined from showing discrimination in their representa-

tidn of railroad employees. Tunstall v. Brotherhood of

Locomotive Firemen, 323 U. S. 210 (1944); Graham v.

Brotherhood of Locomotive Firemen, 338 U.S. 232 (1949) ;

Brotherhood of*R. R. Trainmen v. Howard, 343 U. S. 768°

(1952); Conley v. Gibson, 355 U. S. 41 (1957). See also

Steele». Louisville & N. R. R., 323 U. S.192 (1944) (aris-

ing in a state court where. Norrie-LaCusndie. Act was

inapplicable). See.also Railroad Yardmasters of America

v. Pennsylvania R. R., 224 F. 2d 226 (2 Cirs 1953). See, *

generally, Chicago, R. I. & Pac. R. R. v. Switchmen’s

Union, supra; American Airlines, Inc.,v. Air Line Pilets

Ass’n, 169 F. Supp. 777, 785-87 (S. D: N. Y. 1958).

* In Brotherhood of R. R. Trainmen v. Chicago River &

Ind. R. R., 353 U. S. 30 (1957), the Supreme Court held

> G

‘>

that the Nofris-LaGuardia Act did not preclude a federal

court from enjoining a strike which might defeat the effec-

tiveness of the National Adjustment Board’s authority to

adjudicate a minor dispute. The Court concluded first, that

Congress. had intended the proceeding before the Adjust-

ment Board to be a reasonable substitute for self-help and

second, that the earlier and more general language of the

Norris-LaGuardia Act should give way to the later specific |

provisions of the 1934 amendments to the Railway Labor

‘ Act. For cases in which lower courts have enjoined strikes

in sych situatians, see supra at p. 2092. In the present case,

as in the Chicago River case, a minor dispute is. involved,

the railroad has submitted the matter to the Railroad Ad-

justment Board, and we follow the lead provided for us in

that case and its progeny. We hold that an injunction is

properly issuable in order to enforce compliance with the.

requirement of the Railway Labor Act that a minor dispute

is to be heard and determined by the National Railroad

Adjustment Board.’ Cf. Textile Workers U Miegt OR Lincoln

Mills, 353 &. S. 448, 457-59 (1957).

; ‘

. SIn 1960 the Supreme Court again spoke on the relation-

ship between the Norris-LaGuardia Act and the Railway Labor

Act. Order of R. R. Telegraphers v. Chicago & N. W- R. R., 362

U. S. 330 (1960). The Court held that Section 4 of the Norris-

LaGuardia Act withdrew jurisdiction from the federal court to

enjoin the strike involved in that case. The Court discovered

no provision of the Railway Labor Act which made the strike

- unlawful and concluded that there the dispute was a major one. +

That case is distinguishable from the present one for the labor

dispute here is a minor,dispute. The Supreme Court in Chicago

' & N.W.R. R., though holding that the strike there could not be

enjoined, recognized th&t federal courts could enjoin strikes aris-

ing out of minor disputes. 362 U. S. at 341. Moreover, a strike

which would frustrate the procédures created. *by the Railway

Labor Act for the final determination of such disputes would be

unlawful. Cf. Chicago, R. I. & Pac. R. R. v. Switchmen’s Union.

292 F. 2d 61 (2 Cir. 1961), petition for cert. filed, 30 U. S. L:

Week 3036 (U.S. July 19, 1961) (No. 237). any, ;

a ¢

35]

But what significance for the case before us have Sec-

tion 2 First, Second, and Sixth of the Railway Labor Act

and Section 8 of the Norris-LaGuardia Act? Section 2

First and Second impose a duty on both parties to make

every reasonable effort to settle a dispute, whether it be

major or minor, and, as a.part of their efforts, to confer

over their differences.” Section 2 Sixth provides the pro-

- cedure for calling a conference to discuss a minor dispute.

These conferences afe to take place before a submission of

the dispute to the Railroad Adjustment Board. § 3 First

- (i), 48 Stat. 1189 (1924), 45 U.S. C. § 3 First (i) (1958);

Elgin J. & E. Ry. v. Burley, 325 U. § 711 (1945) ; Brother-

hood of R. R. Trainmen v. Chicago River & Ind. R. R.,

supra at 33. Section 2 First, Second and Sixth were already

part of the Railway Labor Act when the Norris-LaGuardia

Actwas passed.

' . Section 8 of the Norris-LaGuardia Act states:

_ ‘

“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 séttle such dispute

either by negotiation or with the aid of any available

governmental machinery of mediation or woluntary

arbitration.” |, 5 |

:*® These sections provide in pertinent part:

“First. It shall be the duty of all carriers, their officers,

agents, and employees to exert every reasonable effort * * *

. to settle all digputes, whether arising out of the application

of such agreements or otherwise, * *. *

“Second. All disputes between a carrier ot carfiers and °

its or their employees shall be considered, and, if possible,

decided, with‘ all expedition, and in conference ‘between

srepresentatives designated and authorized go to confer, re-

. spectively, by the carrier or carriers and by the employees

thereof interested in the dispute.” . ‘

Section 8 thus imposes two different requirements-on,one

who seeks injunctive relief in a labor dispute. H@ must

comply with all his legal obligations relevant to the dispute

and, further, he must make every reasonable effort to

settle the dispute by the methods enumerated. Brother-

_ hood of R. R. Trainmen v. Toledo, P. & W. R. R., 321 U.S.

50 (1944). This is known as the “clean hands” provision

of the Norris-LaGuardia Act. See 75 Cong. Rec. 5464

(1932)."° noe ;

Since section 2 First, Second and Sixth of the Railway

Labor Act were enacted before the Norris-LaGuardia Act,

the rule of thumb upon which courts too often rely that

the scope of earlier and more general legislation must

always be reconsidered in the light of more specific pro-

visions appearing in subsequent legislation does not help

in deciding the present question. Moreover, the purpose .

of the Railway Labor Act § 2 First, Second and Sixth and

the purpose of the “clean hands” provision of the anti-

' injunction statute are not so inconsistent that it is im-

possible to accommodate one to the other.

In ‘Brotherhood of R. R. Trainmen v. Toledo, P.'& W.

R. R., supra, the Supreme Court held that urider section 8

of the Norris-LaGuardia Act a railroad was not entitled

to an injunction against a strike because the road had _

refused to submit to voluntary arbitration, an available

method for settling the dispute there involved. In. Butte

A. & Pac. Ry. v. Brotherhood of Locomotive Firemen &

Enginemen, 268 F. 2d 54 (9 Cir.), cert. denied, 361 U. S.

1’ The extent to which the Supreme Court has gone to en-

force compliance with this provision of the Norris-LaGuardia

Act is seen in Brotherhood of R. R. Trainmen v. Toledo, P. & W.

R. R., 321 U. S. 50.(1944), in which the Court reversed an order

granting injunctive relief to a complainant that had not complied

with section 8, and this despite the fact that the acts complained

of had caused violence.

—

| ~aee

— ~

oe ST

864 @1959) (alternative holding) the Cour of Appeals for ,

the Ninth Circuit, held that an anti-strike injunction had to

be denied under the Norris-LaGuardia Act’ because the

railroad had abandoned the ‘procedures of the Railway

Labor Act for settling the major dispute in that case. Al-

though*both of these cases involved major disputes, we

believe their treatment of the relationship between section _ |

8 of the Norris-LaGuardia Act and the procedures.set up,

by the Railway Labor Act for settling railway“]abor

disputes is applicable to the case before us. See Butte A.

_& Pac. Ry. v. Brotherhood of*Locomiotive Firemen & En-

ginemert, supra, at n. 10. Cf. East Texas Motor Freight

Lines v. International Bhd. of Teamsters, 163 F. 2d 10 -

(5 Cir. 1947)."° ape :

‘Reading the relevant sections of the Railway Labor

Act together with the “clean-hands” provision of the Nor-

ris-LaGuardia.Act, and remembering that the dispute here

is a minor-dispute, we observe that an applicant for an in-

junction (1) must comply with all legal obligations re- :

quired of it including the making of every reasonable effort

’ to settle the dispute by conference and (2) must.make

‘every reasonable effort to settle the dispute by negotia-

tion.” We are not certain whether’ the draftsmen intended

different concepts by the words “conference” and “negotia-

tion.” See Brotherhood of R. R. Trainmen v. Toledo, P.” °

‘In Chicago, R. I. & Pac. R. R.v. Seitchmen’s Union, 292

F.: 7%, 66 (2 Cir. 1961), petition for cert. led, 30 U. S. L. Week

3036 .U. S. July 19, 1961) (No. 237), it was ‘suggested that

a union which failed to comply with the Railway Labor Act § 2

First, Secord might be subject to an anti-strike injunction. The

present case involves the converse situation. The railroad, per-

haps, has failed to comply with those provisions, and, therefore,

under § 8 of the Nor is-LaGuardia Act, if its failure is shown, it |

may be deprived of injunctive relief as long as it continues in

its dereliction. See also Long Bland R. R. v. Brotherhood of R.R.

Trainmen, 185 F. Supp. 356 (E. D. N. Y. 1960). |

‘3 iation and voluntary arbitration are only relevant for

major disputes. ; “

—

38 Tae

& W. R. R., supra, at 61. However, we find that in apply-

ing these terms to the present controversy a distinction

should be drawn between the duty to negotiate and the

duty to confer. We construe “negotiation” to mean full-

scale discussion and disputation. We construe “conferring”

to mean activity ‘of a similar type to negotiation but ac-

tivity requiring a lesser output of time and of energy.| We

_ Must make-this distinction in the present case because

of the nature of the issue which divides the parties. The.

basic gispute is whether the railroad under its existing

agreement must, negotiate béfore it reschedules the runs

on the Ogdensburg Subdivision. If the railroad were re-

quired by statute to negotiate this issue ‘before it sub- _

mitted the dispute to the Adjustment. Board, the result

would be to require the railroad to negotiate with employee

representatives over hihi bce negotiate with them

—a solution sounding a lot like an exercise in theoretical

logic. We think in practice it would be virtually impossible

for the parties to negotiate whether they would negotiate

about the restheduling without actually negotiating about.

the rescheduling itself. Thus the brotherhoods would im-

mediately achieve what they are only’entitled to obtain

after adjudication of the dispute by the Railroad Adjust-

ment Board. Therefore, we hold that any requirement in —

section 8° of the Norris-LaGuardia Act that a: railroad

negotiate before obtaining an ‘injunction is superseded by

the statutory scheme in the Railway Labor Act that gives

the Adjustment Board the power to decide whether there

should be any negotiation at all between management and

the brotherhoods. ~ ¢

» But in minor disputes involving the scope of the man-

agerial prerogative it must be that Section 2 First, Second

and Sixth of the Railway Labor Act together with the

Norris-LaGuardia Act impose some lesser duty on a rail-

road which seeks injunctive relief. Otherwise; in any

minor dispute in which a railroad can contend that the

question is one committed to managerial prerogative, the

railroad will be tempted not to try to. reach a private

- understanding with the representatives of its employees,

a result inconsistent with one of the fundamental policies

_~ of the Railway Labor.Act. See Brotherhood of R.R. Train-

_men v. Toledo, P & W., supra; Gunther v. San Diego &

Ariz..E. Ry., 198 F. Supp. 402 (S. D. Cal. 1961). There- |

fore, we hold that the relevant sections of the Railway

Labor Act and the Norris-LaGuardia Act impose a duty

upon a railroad, short of negotiation, to take some reason-

able steps toward dispute settlement before it.can obtain

' an anti-strike injunction. ‘These lesser efforts are com-

prehended within the concept of “conferring.” It is not

easy to state exactly what the railroad must do in cases

in which it must confer but need not negotiate. In each

case the district judge must apply his experience and good

sense to the specific circumstances of the case. However,

certain minimum steps can be suggestedyfor the usual

‘case. Unfair surprise should be avoided whenever possi-

ble. The representatives of management should meet with |

those of labor. Each side should listen.to the contentions ° -

of the other side and each side should explain its position

clearly and honestly, but not for as long a time as is .

customary in full-scale bargaining. In short, men of good

' faith must in good faith get together in a sinceré effort to

resolve their differences. Cf. Brotherhood of R.R. Train-

men v. Toledo, P. & W. ‘R.R., at n. 18; Brotherhood of Ry.

Clerks v. Atlantic Coast L. R.R., 201 F. 2d 36, 40 (4 Cir.),

cert. denied, 345 U.S. 992 (1953); American apr ge Inc.

v. Air Line Pilots Ass’n, 169 F. Supp. 77 (S. D. N. Y.

1958) ; Long Island R.R. v. Brotherhood of R.R. rabies.

_ 185 F. Supp. 356, (E. D. N. Y. 1960). See also*NLRB v.

; 7;

—

® :

, ‘ ~ 40>

Wooster Division of Borg-Warner Corp., 356 W. S. 342

(1958); NLRB v. Truitt Mfg: Co., 351 U. S. 149 (1956);

NLRB v. Insurance Agents’ International Union, 361 U. S.

477 (1960). ie : :

In the present case the district court made no iinding

whether the management of the railroad made the good

faith efforts which we have held to be’a prerequisite to the

obtaining by it of injunctive relief. The telegram that the

railroad sent to the brotherhoods on September 15 stated

“Conferences on this.issue have not been held on the prop-

erty “with the [brotherhoods].” However, the railroad

claimed at the hearing that its representatives met with

representatives of the brotherhoods on September 9 and

on September 16. We cannot determine from the record

alone, without the benefit of observing the witnesses,

whether the extent of these discussions mét the standard

we find-is imposed by-the Railway Labor ‘Act.

If in fact the railroad has failed to take the steps

requiréd of it by the Railway Labor Act, it is not entitled

_to injunctive relief against the strike of its employees.

Butte, A. & Pac. Ry. v. Brotherhood of Locomotive Fire-

men, 268 F. 2d 54 (9 Cir.), cert. denied, 361 U. S. 864

(1959). Therefore, we must remand the case for the dis-

- trict court to determine whether the railroad made reason-

able efforts to settle this dispute in conference. See Penn-

sylvania R.R. v. Transport Workers Union, 178 F. Supp. 30

(E. D. Pa. 1957) (Finding No. 15), appeal dismissed, 278

F. 2d 693 (1960). If the district court finds that the rail-

road has not done so, it should not issue the injunction

until the railroad has perfected its right to such relief by

compliance with its statutory obligation.

We believe that this disposition accommodates the

purposes of both statutes. Except for the creation of the -

_ Railroad Adjustment Board. the polity behind both stat-}

utes is to facilitate the private settlement of labor disputes,

see Brotherhood of R.R. Trainmen v. Toledo, P. & W. R.R.,

321 U. S. 50, 58 (1944); Dwellington v. Thompson, 91 F.

Supp. 787 (D. Mo. 1950), aff'd sub nom. Rolfes v. Dwell-

ington, 198 F. 2d 591 (1952). Furthermore, it connot be

said that this result subverts the jurisdiction. of the

National Railroad Adjustment Board because efforts 'pri-

vately to settle a dispute are required by the Railway-

Lahor Act itself before submission of the dispute to the

Adjustment Board. - -.-

Our decision is consistent with the Supreme Court's

ring in Brotherhood of R.R. Trainmen v. Chicago River

& Ind. R.R., supra.” In that opinion, especially at footnote

24, the Court conclitded that because the Railway Labor

Act created the Railroad Adjustment Board to decide the

merits of minor disputes with finality, Section 8, like the

other provisions of the Norris-LaGuardia Act, did not bar

injunctive relief. But the Court did not address itself to

‘ the relationship of section 8 to those provisions of the

Railway Labor Act which, without regard to the type of

dispute involved, call for private conference in an effort

to adjust the differences between the parties prior to gov--

ernmental intervention. Therefore, that decision is not

relevant to this part of our opinion. See discussion in

Chicago R. I. & Pac. R.R. v. Switchmen’s Union, supra,

at 66,«as to the scope of the decision in the Chicago River

& Ind. R.R. case."

’ Reversed and remanded for further proceedings not

inconsistent with this opinion..

18 The defendants also assert that the railroad is not entitled

to an injunction because it has not complied with the non-statu-

tory duty of clean hands imposed on all who seek to invoke the

jurisdiction of a court of equity. We believe that in the present

case the scope of this non-statutory obligation is no greater than

the statutory obligation imposed by Section 8 of the Norris-La-

Guardia Act. .

° ’ ‘ & é

‘ i

Mem,

MaRSHALL, Circuit Judge (dissenting) :

With deference to my brothers, I déem the issues

raised by the present case to be of such importance that a

statement of my dissenting views is necessary. Because

the “Section 6” and contract termination notices served by

Rutlarid were also issued by most of the Class I railroads

in the country, the factual pattern ‘before us is of national

-importance. Much of what the majority says seems to me

not only well put but also quite correct. I do not disagree

with their treatment of the venue problem, with most of

their general statements as to when a strike is legal or

illegal under the Railway Labor Act, or with the assertion

that a “labor di§pute” is involved.in this case. I strongly

disagree, however, with the result they reach and would

suggest that much of what they say is actually inconsistent

with that result. *.,

The majority correctly states the principal issue to be

whether the dispute between the parties was “major” or

“minor” under the Railway Labor Act. That proposition,

however, is of suéh generality that it fails to pose the

problems we must solve in any meaningful fashion. The

legal dispute here involves two questions. First, what pro-

cedures must a party to a collective agreement in the rail-

road industry follow in order to terminate that agreement

or any part thereof?’ Second, the termination having

been accomplished, under what circumstances may the

parties resort to economic force? ¥

My position, briefly summarized, is that Rutland vol-

untarily terminated so much of the collective agreement

' This seems to me to be the principal issue in the case since

I would agree that if the relevant contractual provisions had ot

been terminated, the decision would be clearly governed by

a of R. Trainmen v. Chicago R. & I. Ry., 353 U. S. 30

(1957). a

°o

as might be said t®@yovern the establishment of new runs

and the merging or elimination of crew terminals and, then,

believing that it could not secure what it gesired through

the normal processes of collective bargaining, violated the

plain mandates of the Railroad Labor Act’s major dispute

procedures by unilaterally changing certain runs and ter-

minals. This .action should have been enjoined by the

District Court. It does not follow that a strike to prevent’

such changes was justifiable, however, since, in my view

at least, a remedy in the courts was available to the anion

and should have been resorted to. I would, therefore, have

enjoined both Rutland and the Brotherhoods from en-

gaging in self-help until exhaustion of the major dispute

procedures. ee 5

The majority conclusion is radically different. Th

hold explicitly that the agreement insofar as it dealt with’

the establishment of runs and terminals was not terminated

and sub silentio that there was in fact no way in which to

terminate it. They enjoin the union’s use of economic

force, therefore, pending exhaustion of the drawn-out

minor dispute procedures and leave Rutland free to act

unilaterally. - ¢

The words “major” and “minor” have no intrinsic

legal significance. They are derived from the terminology

of railway industrial relations pod are used judicially

merely as a shorthand way of referring to a distinction in-

corporated in the structure of the Railway Labor Act. The

statute, itself, however, does not.use the words. The dis-

tinction is of legal significance solely because the Act estab-

lishes mutually exclusive mandatory procedures to be

followed in resolving two different kinds of disputes.

Disputes involving grievamces or contract interpreta-

- tion questions—are_to be handled under Section 3 First.*

ne fies

245 U. S.C. A. $153 First.

44 . ,

Under that provision either party may submit the dispute

to the appropriate Adjustment Board for a “final and bind-

g” decision on the meaning of the contract. A strike over

ss properly submitted to the.Adjustment Board may

be enjoined in order to proteet the Board’s jurisdiction.

Brotherhood of R. Trainmen v. Chicago River & Ind. R.

Co. 353 U. S. 30 (1957). And, in appropriate ‘circum-

stances, the enjoining court may condition the strike in-

junction upon preservation of the status quo by manage-

ment pending final adjudication by the Board. B?other-

hood of Locomotive Engineers v. Missouri-Kansas-Texas

‘R. Co., 363 U. S. 528 (1960).*

But Jabor contracts in the railroad industry,do not

continue in force in perpetuum unless both parties so de-

sire. Like many familiar agreements, they are subject to

termination and change, a proéess which, when invoked by

a party,‘ is characterized as a major dispute. ~

While the Act provides for compulsory arbitration of

minor disputesgit leaves the resolution of major disputes

to free collective bargaining and the use of economic force ~

subject only to certain mandatory procedural ‘require-

ments. Section 6° governs the procedure to be followed in

changing agreements affecting working conditions. Any

party desiring such a change must, give, 30 days written

notice to the other party. Either party may then request

’ Even though the majority believes a minor dispute is in-

volved, it does not discuss the applicability oftthat decision to this

case: Since I cannot agree this is a minor dispute, I shall also

forego discussion.

* Presumably, a palpable breach of contract would be in vio-

lation of Section 6, see note 5, supra, and accompanying text,

which requires 30 days written notice of an intended change in

agreements and would therefore. also create a major dispute. Cf. :

Railroad Yardmasters of America v. Pennsylvania R. Co., 224 F.

2d 226 (3 Cir. 1955).

45 U.S.C. A. $156.

a”

: 45

the services of the Mediation’Hoard or the Board may step

in on its accord under Section 5." Under Section 6 “rates

of pay, rules or working conditions shall not be altered”

until final action by the Mediation Board under Section 5.

Section 5 prohibits changes in “rates of pay, rules, or

working conditions or established practices” until 30 days

after the Board has notified the parties of the failure of its

mediatory efforts. Section 10° empowers the President to

establish an emergency board after the failure of media-

tion efforts and provides ‘no change, except by agreement,

shall be made by the parties to the controversy in the con-

ditions out of which the dispute arose” until thirty davs

after the Béard makes its report to the President. The

legislative history indicates that when the rail unions and

pose upon these provisions, the’ unions sur-

rende their right to strike pending exhaustioh of

major dispute procedures in exchange for a statutory pro-

vision restraining management from disturbing the status

quo.” These “freeze” or “cooling-off"'’ provisions have

ebeen held to be enforceable by the courts. Grand Inter-

national Brotherhood v. Morphy, 109 F. 2d 576 (2 Cir.

1940) ; cert. denied 310 U. S. 635 (1940); Railroad Yard-

masters v. Pennsylvania R. Co., 224 F. 2d 226 (3 Cir.

1955). '

No provision is made, however, for the compulsory

resolution of substantive issues in major disputes, and the

parties are free to resort to economic force after exhaust-

«45 U.S.C. A. $155.

745 U.S.C. A. § 160.

“67 Cong. Rec. 4524, 4588. See also comment, \Enjomng

Strikes and Maintaining the Status Quo in Railway Labor Dis-

putes, 60 Colum. L. Rev. 381, 388 (1960).

* Chicago, Rock Island & Pac R Co. v. Switchmen's Wrior

292 F. 2d 61, 66 (2 Cir. 1961)

\ 67 Gong. Rec. 4648, 4650 of aon

- a

46 ° at

ing the procedures. Chicago River, supra, at fn 24; Order

of R. Telegraphers v. Chicago & N. W. R. Co., 363 U. S.

330 (198). See also Chicago, Rock Island.and Pac. R. Co.

v. Switchmen’s Union, 292 F. 2d 61 (2 Cir. 1961). oe

Within this legal framework, I fail to grasp how the

factual pattern here presents the difficulties encountered

by the majority. On November 2, 1959, Rutland served no-

tice on the Brotherhoods “under our existing agreements

and pursuant to the provisions of the Railway Labor Act”

that it wanted a new contract, “effective January 1, 1960,”

which would in effect éliminate all “agreements, rulés,

regulations, interpretations and practices, however estab-

lished,”’ restricting the carrier's right to establish new runs

and which would also explicitly “| @|stablish a rule to pro-

vide that * * * [t]he carrier shall have the right to estab-

lish, move,.consolidate :and abolish crew terminals * * *

with the right to operate any * * * run * * * through

established crew terminals.” This was a 30 day notice of,

termination of all contractual provisions, explicit or im-

plied, relating to the establishment of new runs and crew

-terminals. Rutland, by thus invoking Section 6 of the

Act, and the termination provisions of the contracts, noti-

fied the Brotherhoods that it desired not only to terminate

all restrictive provisions, practices and even all ambiguities

as to the establishment of new runs but also that it wanted

an explicit provision: incorporated in a new agreement

which would béstow upon it the absolute prerogative to

change crew terminals. Rutland thereby voluntarily ter-

i _tMhiinated the old agreement to this extent and invoked the

major dispute procedures. Having invoked them, presum-

ably it was bound by them.

Nevertheless, on September 8, 1960, before exha:'stion °

of the-miajor dispute procedures, Rutland announced that

it intended unilaterally to, establish new runs thereby

47 ;

changing certain crews terminals and to operate these runs

through , other -established terminals. Since the major

dispute procedures require that the carrier not changé

“working conditions,” “established practices,” or the “‘con-

ditions out of which the, dispute arose” until their ex-

haustion, Rutland’s action was a plain violation of the

Railway Labor Act.''.-The Brotherhoods called a strike

because of the unilateral changes announced by Rutland

and were enjoined by the District Court.

‘} Arguably, these provisions might be read merely to mean

that the collective agreement, with all its ambiguities, is to remain

in force pending exhaustion of the major dispute pr, ures. Un-

der, that view, minor disputes could occur during that period and

might involve the subject matter of the major disptite.. In such

a case, however, the union would still be frée to strike over the

issue after exhaustion of the major dispute procedures. A con-

trary holding would mean that ambiguous terms in a collective

agreement’ would not be subject to change through collective

_ bargaining unti! their meaning had been determined by the Ad-

justment Board. This would effectively lengthen the term of the

contract beyond the intentions of the parties and would prohibit

clarification through collective bargaining of those’ contractual

provisions which need it most. It would, moreover, seem directly

contrary to the intent of Section 6 which contemplates the pro-

posal of changes in agreements wheneyer the. parties desire and

which contains no provisions restraining its use until an Adjust-

ment Board decision has been rendered on the meaning of the

old contract.

In any case, the preferable view is that changes in existing

conditions which are the subject of a major dispute are forbidden

whether or not they are arguably authorized by the collective

agreement. The “freeze” provisions carefully avoid reference to

the collective agreement, but emphasize “working conditions”

(Section 6), “established practices” (Sectjon 5), and “conditions

out of which the dispute arose” (Section 10). This is in contrast

to other parts of the Act, and indeed, Section 6 itself, which

refer directly to the “agreement” when necessary. Moreover,

the legislative history of the statute shows the “freeze” provisions

were intended to enforce a “cooling off” period: upon both labor

and management in the railroad industry. See Note 10, supra. .

But this policy cannot be effectuated if management is allowed to

take’advantage of an ambiguous contract during the “freeze” to

make changes in «working conditions relating to the dispute,

Such action is far more likely to warm up the dispute than cool’

it off. °

In *reviewing that<action, I should have thought the

principal question. would be whether the union was free

to strike against Rutland’s illegal actions or whether the

conduct of both parties in derogation of the major dispute

procedures must be enjoined. On balance, I would have

adopted the latter course both on the grounds that resort

to the courts is generally preferable to this kind of sélf -

help'* and on the furtherogrounds -that the “cooling” off”

policies of the major, dispute procedures cannot be ef-

fectuated by allowing both parties simply to do away with

the Act. These problems have become irrelevant, how-

ever, for the majority has concluded ‘that the dispute is

minor and must be resolved by an Adjustment Board

determination of the meaning of the old agreement.

One reason asserted by the majority in Support of.

this result seems to be that the Section 6 natice was not

sufficiently broad to cover the matters in dispute. Two

quotations from the notice are set out, apparently to dem-

onstrate that it was intended only to do away with restric-

. tions.on the managerial prerogative to establish new runs.

~The majority then finds there are no erplicit restrictions in

the agreements, and, therefore, the Section 6 notice does

not encompass this dispute. But if all this is true, why did

Rutland serve. notices pursuant to Section 6 and the. vari-

_ ous contracts in the first place? Plainly, Rutland’s pur-

pose was to eliminate the. ambiguities” in the agreement

. .

_ __ Cf. Local 33, Bakery Sales Drivers v. Wagshal, 333 U. S.

. 437 (1948); Dorchy v. Kansas, 272 U. S. 306 (1926); but see Mas-

tro Plastics Corp. vsN. L. R.B.,.350 U. $.270 (1956). -

; '’ Existing ambiguities in a document cannot be eured by the

continued silence of the parties. Obviously, therefore, Rutland’s

notive gontemplated inserffon, of néw provisions. which would

either affirmatively establish its prerogatives or would direct the

Adjustment Board to follow a rule of canstruction which would

prevent “interpretations” from infringing on these rights. Either

course would require a new provisiorf and a “change” in the ex-

isting agreements.~ - :

-_—

which the majority admits exist and in fact relies upon in

sending this case to the Adjustment Board. I have not

found any language in the statute or. policy behind it which

would prohibit or nUtlify this use of Section 6 in the man-

ner suggested by the majority. I believe that clarification ~

through collective bargaining of ambiguous contractual

provisiofis is a most laudable purpose and should be en-

couraged rather than hamipered by the courts. Moreover,

the majority inexplicably ignores paragraph B(1) of the

notice. That paragraph explicitly notifies the unions that

Rutland seeks to “Establish a rule to provide that * * * 1.

The Carrier shall have the right to establish, move, con-

solidate and abolish crew terminals * * *’’ Surely a re-

quest to incorporate a comprehensive clause such as this

must be said to change an.ambiguous contract or an agree-

ment containing no such explicit provision. That para-

graph B(1) encompasses. thé dispute here is plainly evi-.

dent, for the majority itself states the present “disagree-

ment * * * {is] whether the h ayeone of the railroad

had the right to * * * change c terminals.”

The majority states the “major-minor”’ distinction in

, the following fashion:

It is A major dispute if the Present agreements be-

tween the railroad and the brotherhoods contain ex-

press provisions contrary to the position taken by the

railroad or if the clear implication of these agreements —

is iticonsistent with the railroad’s proposals. It is.a

minor dispute if there is an ambiguous, but clearly

governing, provision in the present agreements or if

what the railroad seeks to do may reasonably be im- |

plicit withify the customary and @dinary interpreta-

tions of the language of the agreements. |

While this.might be a correct statement of the law in the

\ . .

absence of a Section 6 notice, I would suggest that it is

entirely erroneous once such a notice has been served. The

majority opinion itself at one point concedes that major

disputes commence with notice under Section 6. Moreover,

it must be so, for under the Railway Labor Act a party is

free to terminate an ambiguous contract an ,the hope of *

making it explicit without going to an hietenden Board

for a determination of its meaning. This is precisely what -

Rutland attempted to do. The reliance placed by Rutland -

and ‘the majority upon the collective agreement. is utterly”

inconsistent with the Section 6 notice, for Rutland in-

tended by that notice to terminate and.do away with the

very same contractual provisions which are. now so strenu-

ously relied upon. And, the inconsistency of relying on

these provisions is magnified since the notice was also

based upon the termination clauses of ‘the same ‘agree-

ments. I dare say that if this were a commercial contract

with a 30 day termination provision, we would not show

such solicitude for one who invoked the termination proce-

dures but later claimed the agreement was still in effect

when the other party refused to méet ares demands ‘for a .

new contract. ‘

But the significance of today’s decision transcends the

immediate and hopefully temporary problems of the Rut- -

land Railroad and its employees. There is much in the

majority opinion which implies there cannot be a major

dispute if the relevant agreement contains “an ambiguous;

But clearly governing, provision,” regardless of whether a

Section 6 notice has been served. The quotation .in the

’ preceding paragraph seems to be to that effect. Along the

same lines; reliance is placed upon “a number of cases in-

volving disagreements similar to the one in the present

case, [in which] courts have classified the disputes’ as

minor.” In all but one; however, there was no effective

: '

' = 4 a

es Section 6 notice an Ragrcore no effective termination

of, the agreement.’ Me Railway Labor Act establishes a

system of free collective bargaining, Section 6 .being an

integral part of that system. It is designed to allow either

‘party to terminate an agreement, Whether or not its mean-

ing is clear, and bargain freely over new provisions subject

only to certain procedural requirements. To hold that

Section 6 is rendered inoperative if-there’ is “an am-.

ebiguous, but clearly governing, proyision in the present

agreements” is to’ give it an effect precisely opposite to:

that intended and to deprive the parties of their right to

bargain freely. , ¢S ¥

The dilemma “created by the majority ° opinion is

neatly posed when it says, “(The brotherhoods, upon the

expiration of the existing agreements, may require the

. railroad to.baggain” over the issues in dispute. But the

only manner in whieh the existing agreements may “ex-

pire” is through notite pursuant to Section 6 by one of

the parties, since none of these contracts:contains a fixed

14 In the Matter of Hudson & M. R. Co., 172 F. Supp. 329

_ (S. D. N. Y. 1959), aff'd per curiam sub nom. Stichman v. Gen-

eral Grievance, Comm. of the Bhd. of E. Trainmen, 267 F. 2d

941 42 Cir. 1959) cert. denied 363 U. S. 843 (1960) (propgsal to

amend the agreement withdrawn); Norfolk & P. B. BR. v.

Brotherhood of R. Trainmen, 248 F. 2d (4 Cir. 1957) cert. denied

355 U. S. 914 ‘(1958), (go section 6 notice); Missouri-Kansas-

0 Texas R. Co. v. Brotherhood of Lagomotive Engineers, 266 F. 2d

~ 335 (5 Cir. 1959) rev'd on other ¢ ounds 363 U. S. 528 (1960)

(no section 6 notice); Baltimore & O. R. Co. v. United R. Work-

ers, 271 F. 2d 87 (2 Cir. 1959) vacated and remanded on other

grounds 364 U.S. 278 (1960) (no section 6 notice). Of the cases

cited by the majority, only Hilbert v. Pennsylvania R. Co., 290

F. 2d 881 (7 Cir. 1961) cerfdenied 368 U. S. 900 (1960) involved

a Section 6 notice. I would submit that décision-is erroneous,

-The majority omits one decision ‘nvolving a dispute “similar

to the one in the present case.” Order of R. Welegraphersov.

* Chicago & N. W. R. Co., 363 U. S. 330 (1960). A\Section 6 notice

was involved in that case, and the Supreme Court found it to be

a major dispute. See Note 18, infra, and accompanying text. >

‘’

, 32

“expiration date.’* Presumably, if the union had, on No-

vember 2, 1959, issued a Section 6 notice stating its desire

to “eliminate all agreements, rules, regulations, interpre- |

tations and practices, however established, allowing the

carrier to establish new runs without the union’s consent”

and to “establish a rule that the carrier shall not have the

right to establish, move, consolidate crew terminals or to

, Operate any runs through established crew terminals,

without the union’s consent,” the majority's ruling would

not vary.” Yet that is not Significantly different from

Order of R. Telegraphers v. Chicago & N.W. R. Co., 363

U. S. 330 (1960), in which the Supreme Court held that

major dispute existed. While the majority is “not en-

tirely certain” as to the basis of that decision, I would

submit the governing consideration must have been the

Section 6 notice." Otherwise, the:case would have been

= oo

'® Each contract provided that it was to remain in effect un-

’ til changed in accordance with the ‘Railway Labor Act. The

thrust of the majority’s decision, therefore, is to eliminate the

possibility of termination and to restrict the freedom of the

parties to bargain collectively. aa

'* Since there is no explicit grant to the carrier of these rights

and there is an “ambiguous, but clearly governing, provision,”

the majority’s criteria for determining that a minor dispute exists

would be satisfied. Surely the fact that the carrier gave the /

notice here does not serve to distinguish the two cases. That” —

factor, if anything, would help the brotherhoods.

'? The majority is correct in stating that the magnitude of

the effect upon working conditions is not the governing factor€«

The statute itself does not use the words major and minor and,

therefore, provides no standards for judging: the magnitude.

_ Adoption of such a test would engulf us in sterile inquiries such

as when does a little dispute on a big railroad become,a big dis-

pute on a little railroad. On the one hand, it might tip the tactical

‘ balance by allowing management the protection of the equity

arm of the federal courts so long as it bit off a little at a time and

did not attempt to get everything in one gulp&On the other .

hand, a literal application of major and minor mht encourage

the unions to.strike over every dispute simply to show, how big

it was. ‘

:. 53

indistinguishable from the Court’s decision in Chicago

River, supra, and all the other cases which have followed

it. E.g. cases cited in note 14, supra. The most profitable

inquiry for the majority is not how to distinguish Chicago

and N.W. Ry. from this case but how to distinguish it from

all the cases finding minor disputes. Viewed from that

perspective, the “uncertainty” yanjshes. In any case,

Butte, A. & Pec. Ry. v. Brotherhood of Locomotive Fire-

men, 268 F. 2d 54 (9 Cir. 1959), cert. denied, 361 U. Ss.

864 (1959) is: precisely on point and explicitly supports

my view of the statute. I do not grasp how it may be dis- .

- posed of simply by asserting the facts are different." As_

for Hilbert v. Pennsylvania R. Co., 290 F. 2d 881 (7 Cir.

1961), cert. denied, 368 U. S. 900 (1961), relied on by the

majority, I would decline Yo follow it since it also seems”

based on the erroneous notion that Section 6 is inoperative

when the existing agreement is ambiguous.

My redding of the statute and of subsequent judicial

interprétations leads me to believe the majority has

adopted a view which does much violence not only to our - |

policies of free collective bargaining but also to traditional

notions of freedom of contract. “I must, therefore, dissent.

JUDGMENT OF THE COURT OF APPEALS.

(Eittered June 18, 1962.)

This cause ‘came on to be heard ori’the transcript of

record from the United States District Court for the Dis-

trict of Vermont: and was argued by counsel.

—

°o

\S-Bufte differs from our ruling in Stichman, note 14 supra,

as to the effect of a withdrawal of-a Section 6 notige. The notice .

here, however, was not withdrawn.

Sf ine

* On. Conservation WHEREOF, it is now hereby

ordered, adjudged, and decreed that the order of said

District Court be and it hereby is reversed and’ that the

action be and it hereby is remanded for further proceed-

ings not inconsistent with the opinion of this Court; with

costs to the appellants. Z

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.