# Appendix — Brotherhood of Locomotive Engineers v. Rutland Railway Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0823%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1963 - **Citation:** 372 U.S. 954 ## Text . Ottice-Supreme C m te Trace Y 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 g —— ¢/ 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. 2 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 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.” 29 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 4 30 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 31 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. 4 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 S re 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- » YY 33 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 2 ‘> a oy 34 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 ¢ ee . 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.” . ‘ By 36 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. ; “ 8 — 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- 39 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-} be 41 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 i 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, 42 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 43 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” r> @. : 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 va - 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 ~ 3 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. e ro ‘} 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. ° > > Pe ~~ 48 In *reviewing that ¢ ‘’ > , 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 34 * 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 > --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0823%3A3. Public record. Not legal advice.