Petition for Writ of Certiorari — Far East Conference v. Federal Maritime Commission

Supreme Court brief1965

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1964.

No. 588.

C. E. RUSS,

Petitioner,

vs.

SOUTHERN RAILWAY COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To he United States Court of Appeals

W. E. Frrzcerap,

Burwell Building,

602 S. Gay Street,

Knoxville 2, Tennessee,

Ross & KRaAvusHAAR,

Haroxp A. Ross,

1736 Standard Building,

Cleveland 13, Ohio,

: Counsel for Petitioner.

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—-PHONE: 621-5647

TABLE OF CONTENTS.

EAGER ERR A ae eee Cle Ne ane ee ee

Questions Presented For Review ______._.______

REA SEE SEAL ea wn ar

CTO cu bas

Reasons For Granting the Writ ___......___ >

The Judgment Below Has Decided a Federal Ques-

tion in a Manner in Conflict With Applicable

Decisions of This Court _.._..______________

The Court Below Has Rendered a Judgment Te-

ciding an Important Question Under the Rail-

way Labor Act, Affecting Labor Relations in

the Railroad Industry and Delineating the

Authority of the National Railroad Adjust-

ment Board, Which Should Be Reviewed by

CN co

The Judgment Rendered in the Court Below Has

Failed to Properly Apply Section 3, First (m)

of the Railway Labor Act _....._____._____.__

i ae

Appendix:

a ea

Judgment of the United States Court of Appeals

fk a

Opinion of the United States Court * Appeals

ee i I etn diesen

TABLE OF AUTHORITIES.

Cases.

Brotherhood of Locomotive Engineers and Cleveland,

Cincinnati, Chicago and St. Louis Railway,

Award No. 4917 (First Division, 1940) ________ 25

Brotherhood of Locomotive Engineers v. Louisville &

Nashville R. R. Co., 373 U.S. 33, 10 L. Ed. 2d 172

(1963), affirming 297 F. 2d 608 (6th Cir. 1961)

Brotherhood of Locomotive Engineers and IT!nion

Pacific Railroad Company, Award No. 11854

ip; Sena eae eee eee eee 26

Brotherhood of Locomotive Firemen and Enginemen

and Missours-Kansas-Texas Railroad Company,

Award No. 14°51 (First Division, 1951) ______ 15

Brotherhood of Locomotive Firemen and Enginemen

and Southern F.uific Lines, Atlantic System,

Award No. 15315 (First Division, 1952) ______ 16.

Brotherhood cf Railroad Trainmen v. Chicago River &

Indiana R. Co., 353 U. S. 30 (1957) ________- 13, .31

Brotherhood of Railroad Trainmen and Sautherx

Railway Company, Award No. 20007 (First Divi-

SA EEE ae citi occa iene 24

Brotherhood of Railroad Trainmen and The Chicago,

Rock Island and Pacific Railway Company,

Award No. 7595 (First Division, 1943) ________ 15

Capitol Airlines, Inc. v. Air Line Pilots Association,

International, 54 LRRM 2326 (D. C. Tenn. 1963)

sks ids ise pcsaceaudecice omc eakiate Dee 20, 27

Federal Services, Inc. and GUA, Local 33, 64-1 ARB,

URE REN sikiccecsiasiin dc scan eecceeeinean 16

Lodge 12, Machinists v. Cameron Iron Works, Inc.,

292 F. 2d 112 (5th Cir.), cert. den. 368 U. S. 926

| ) Zeman Ta NNRO eee nlnneh Ee nae iaeie eer ee Ne we 18

Oregonian Publishing Co., 33 Lab. Arb. 574 (1959) 18

Patterson-Sargent Co., 23 Lab. Arb. 21 (1954) _____ 18

Texas Gas Transmission Corp. v. International

Chemical Workers, 200 F. Supp. 521 (D. C. La.

REE cep oe era A A RE ee 19

Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957) 17

Thomas v. New York, Chicago & St. Louis R. Co., 185

fe _) 22

United Steelworkers v. American Mfg. Co., 363 U. S.

564 (1960) ______ Fed Ce SES Se GAT ER 17

United Steelworkers v. Enterprise Wheel & Car Corp.,

gee U.S. 368 (1900) 17, 18, 19, 21

' United Steelworkevs v. Warricr & Gul! Nav. Co., 363

I ans TT 17

Washington Terminal Co. v. Boswell, 124 F. 2d 235

Acs a cmeniencn 13, 14

Statutes.

ie RS a ) en 2

Ce ee eo, cscinessiachenimenantianae 17

Railway Labor Act:

gk Me Se EER Eee ee 28

45 U0. S. C. $153 Firat (i) _.._..._... 7, 3,2, 3

460. S. C. $150 Firat (m) ....__._.... 2,3, 33, 3

45 U. S. C. § 153 Firat (p) ....___- 2, 3, 29, 32, 34

a i cis mentees 31

Is Stig nh a caeaein 28

Miscellaneous.

Garrison, The Natio-.al Railroad Adjustment Board:

a Unique Administrative Agency, 46 Yale L. J.

is UR I hice wert dheacoreecctc nineties 14, 23

In the Supreme Court of the United States

SOUTHERN RAILWAY COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit.

Petitioner prays that a writ of certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Sixth Circuit entered in the above case on July

16, 1964.

OPINIONS BELOW.

The opinion of the District Court for the Eastern

District of Tennessee is copied at pages 43a-56a of the

certified record accompanying this petition.’ The District

iThe Appendices te the Briefs in the court below of the

Petitioner and Respondent herein have been certified as the

Record for use with this petition, nine extra copies of which are

filed herewith. Vols. I and II comprise the Respondent’s Appen-

dix in the court below, and the pages are numbered from la-

443a. The Appendix to Petitioner’s Brief below has been at-

tached at the beginning of Vol. III as pages 1b-3b. In this peti-

tion references are to the original pagination. Vol. III also in-

cludes the proceedings in the United States Court of Appeals for

the Sixth Circuit.

Court’s opinion and judgment are reported in 218 F. Supp.

634 (1963). The opinion of the Court of Appeals for the

Sixth Circuit is set forth in the Appendix, infra, pages 36-

44, and is not yet officially reported.

JURISDICTION.

The judgment of the Court of Appeals for the Sixth

Circuit was made and entered on July 16, 1964. No peti-

tion for rehearing was filed on behalf of petitioner. The

jurisdiction of this Court is invoked under 28 U. S. C.

§ 1254 (1).

QUESTIONS PRESENTED FOR REVIEW.

1. May the National Railroad Adjustment Board upon

determining that a discharge by the carrier of an employee

for violation of its operating and safety rules was excessive

punishment, and therefore not justified, prescribe an

award and order mitigating said punishment, which award

and order is enforceable under 45 U.S. C. § 153 First (p),

when the employee is covered by a collective bargaining

agreement for the craft of which he is a member, and said

bargaining agreement provides procedures for the handling

of claims and grievances, including discharge fer cause,

aid further provides for the processing and adjustment of

all claims and grievances in proceedings instituted by the

employee or his authorized representative before the Na-

tional Railroad Adjustment Board?

2. May the Federal Courts set aside an award of the

National Railroad Adjustment Board which orders the

reinstatement of an employee discharged by a rail carrier

unless the Board finds the discharge was wrongful, al-

though 45 U.S. C. § 153 First (m) provides that awards

of the Board shall be final and binding except insofar as

they contain a money award?

STATUTES INVOLVED.

The statutes involved are the provisions of Section 3,

First (m) and ({p) of the Railway Labor Act, 45 U. S. C.

153 First (m) and (p), which are printed in the Appen-

dix at pages 34-35, infra.

STATEMENT OF THE CASE.

This is an action brought in the United States District

Court for the Eastern District of Tennessee under Section

3, First (p) of the Railway Labor Act, 45 U. S. C. 153,

First (p), seeking enforcement of an award and order of

the National Railroad Adjustment Board, issued on Janu-

_ary 31, 1961. In its order, the Adjustment Board, First Di-

vision, directed the respondent carrier to comply with the

terms of the award on or before March 2, 1961, by rein-

stating petitioner to employment and by paying him back

pay for a period as of September 27, 1958, which was four

months after his discharge, to the date of his reinstate-

ment. Respondent, however, did not comply with the re-

instatement portion of the awerd and order until May

29, 1961, when petitioner was restored to service without

pay for time lost. Respondent refused to comply with the

back pay provisions of the order, and the Brotherhood of

Locomotive Engineers, as petitioner’s bargaining repre-

sentative, and petitioner filed proceedings in the District

Court to enforce the monetary portion of the Board’s

order. By order of court, the Brotherhood was dismissed

from the case which proceeded with petitioner Russ as

party plaintiff (Ja, 2a).

Petitioner Russ, a locomotive engineer, had been jis-

charged by respondent on May 15, 1958 for alleged viola-

tion of certain Operating Rules, as interpreted by the re-

spondent. On May 8, 1958, petitioner was the locomotive

engineer on Extra 2152 West, operating from Louisville,

Kentucky to Princeton, Indiana (69a-7a, 324a). The lo-

comotive fireman on the crew was J. D. Cox (80a, 133a-

134a, 343a-344a). As they approached a point approxi-

mately one-half mile from Ramsey, Indiana, the train first

met a motor car operated by Assistant Supervisor Tames

and his crew (70a-71a). Petitioner was flagged by Tames,

who was protecting his track car in accordance with Rule

9 of the carrier’s Operating Rules for motor cars (35a).

To enable Tames to proceed, petitioner backed his train in-

to a side track. Tames, who was standing on the ground

beside the switch, hollered to petitioner and passed on to

him information that there was another track car heading

toward Milltown, a point about six miles away (74a-75a,

124a, 329a). Petitioner relayed this information to fire-

man Cox (74a, 8la, 95.a, 117a-118a, 329a, 537a). Tames

stated in the carrier’s investigation of the accident that he

was merely relaying information to petitioner (380a-381a).

In the submission to the National Railroad Adjustment

Board and before the District Court, petitioner alleged that

Tames’ actions did not constitute flagging for the second

motor car as that procedure is related in Rule 9 of the Op-

erat‘ng Rules for motor cars.

Petitioner did not proceed toward Milltown for ap-

proximately 20-22 minutes after he first met Tames’ mo-

tor car (8la). After entering the main track, the train

preceeded through a tunnel, then downgrade and around

a curve where vision was obstructed (89a, 9la-92a, 119a,

294a, 327a, 345a-346a). While rounding the curve, pe-

titioner could not see ahead of his locomotive cab, and

fireman Cox’s vision was limited to one or two car lengths

ahead (92a, 114a, 119a, 15la, 157a, 327a). On rounding

the curve, fireman Cox saw the track car about a car length

ahead and shouted to petitioner to apply the brakes in an

emergency position (92a, 93a-94a, 15la, 156a, 327a, 346a).

Petitioner applied the emergency brakes but struck the

track motor cer, which resulted in the death of its oper-

ator (94a, 98a, 105a, 327a-328a).

At trial before the District Court, petitioner testified

that he did not apply the emergency brakes on the loco-

motive but only to the cars in the train, because he was

afraid of flattening the wheels on the locomotive, and of

causing the locomotive from sliding and jackknifing off the

tracks (95a-100a). There was a conflict in the testiznony

at trial as to the speed of the train at the time it came upon

the second motor car which was not properly on the main

line since the operator had not obtained a lineup of move-

ments on the main track pursuant to Rule 8 of the rules

for operation of track motor cars, and was not complying

with Rule 9 which vequired him to throw fusees or to put

a red flag out a reasonable distance to warn opposing

movements of his presence (85a-88a, 90a, 301a-302a). The

testimony of the members of the train crew was that their

speed was approximately 15 miles per hour (92a, 142a,

148a, 317a, 324a, 329a, and 347a). Tests made by the re-

spondent with a somewhat similar train on the day follow-

ing the accident tended to show from braking distances

that the train was traveling from 25 to 30 miles per hour

at the point of impact (297a, 397a-398a). Respondent’s

road foreman stated in the investigaticn that the longer

stopping distances of petitioner’s train from the test train

which established the rates of speed were probably due to

the loss of air from previous service applications of the

brakes prior to encounter with the second car (399a).

However, petitioner’s testimony was that it took twice the

braking distance to stop by balancing the air on the loco-

motive’s brakes (100a). Since the motor car had only

been visible to the fireman from 40 to 80 feet, the train

could not have been stopped at this distance whether it

had been operated at 15 miles per hour or 30 miles per

hour.

On May 12, 1958, respondent held an investigation ct

which petitioner was charged with violation of several

Operating Rules pertaining to locomotive engine«'rs, which.

are set forth at pages 33la-334a of the certified Record.

Fireman Cox was charged with violating several of the

same Operating Rules and several other rules pertaining to

locomotive firemen. These Rules are set forth at page 350a

of the certified Record. Briefly, it should be noted that

Rule 1004 states that the engineer is jointly responsible

with the conductor for the same movement and protection

of the train; and Rule 199 states that both the engineer and

conductor must give consideration to conditions of the

track and all other conditions, and to reduce speed on

curves and points where required for safe inovement.

Rule 1051, which was applied to Cox, states that firemen

“are jointly responsible with the engineer for proper per-

formance of the engine and, where necessary, the protec-

tion of the front end of their train.”

Respondent took the position that these Rules and the

information conveyed by Assistant Supervisor Tames re-

quired petitioner and Cox to run their locomotive at re-

duced speed, which is defined in the carrier’s Operating

Rules a3 proceeding prepared to stop short of train or ob-

structicn (29a, 427a). Since petitioner was unable to stop

short of the motor car, he was considered to have violated

all of the above Operating Rules.

Thus, on May 15, 1958, respondent dismissed both pe-

titioner and fireman Cox from service (283a-284a). On

September 27, 1958, Cox was restored to service on a2

lenien<y basis without pay for time lost (424a).

The Brotherhood of Locomotive Engineers presented

a grievance or claim in behalf of petitioner Russ and Cox

and engaged in appropriate conferences with ofhcials of

respondent up to the highest officer designated to handle

such claims (197a-198a). Carrier’s investigation and the

conferences with the Brotherhood were held pursuant to

Articles 31 and 32 of the collective bargaining agreement

hetween the Brotherhood and the carrier (1b-3b). These

Articles detail the procedure for disciplining an engineer

and for processing his grievance. The conferences were

not satisfactorily concluded (197a).

Therefore, pursuant to Article 32(b) (3) of the collec-

tive bargaining agreement and Section 3, First (i) of the

Railway Labor Act, 45 U.S. C. 153, First. (i), the Brother-

hood, in February 1959, submitted this dispute to the Na-

tional Railroad Adjustment Board, First Division, which

is the proper division to decide grievances or disputes in-

volving engineers and firemen, and requested restoration

to service and pay for time lost for both petitioner and

Cox. Article 32(b) (3) of the bargaining agreement states,

in pertinent part:

“All claims or grievances involved in a decision of

the highest officer shall be barred unless within six

months from the date of said officer’s decisio.: pro-

ceedings are instituted by the employees or a duly

authorized representative before a tribunal having

jurisdiction pursuant to law or agreement of the

claim or grievance involved.” (2b-3b.)

In the proceedings before the Board, the Brotherhood

conterded that neither petitioner nor Cox had violated the

Operating Rules for which they had been discharged. It

was stated that since they had not been properly flagged,

they were not required to operate at reduced speed, and

that the accident which occurred did not establish a vio-

lation of the Rules. It was contended that the accident was

proximately caused by the failure of the track motor car

operator to protect his movement as he was required to

‘ do under Rules 8 and 9 of the carrier’s Operating Ruies

for motor cars (283a-290a). It was said that petitioner

had a right to expect a fusee or a warning from the track

car operator to provide him with a reascaable distance in

which to stop his locomotive.

On January 31, 1961, the Adjustment Board, First

Division, with Keferee Arthur W. Sempliner, issued its

Award 19846 denying the claim of Cox and sustaining

petitioner’s claim to the extent that he should be restored

to service as of September 27, 1958 with back pay from

that date and seniority unimpaired (280a-282a). The

findings of the Board stated that the track motor car

operator’s failure to comply with various safety rules was

the proximate cause of the accident, which finding it

supported with the Interstate Commerce Commission’s

investigation report (281a).

The Board thus posed the following question:

“The question exists, however, that while the

proximate cause of the accident was the responsibility

of others than the claimants, was there a violation of

the carrier’s rules by claimants, sufficient to warrant

the punishment imposed?”

The Board then proceeded to find as follows:

“A warning had been given that a track motor car was

in the area ahead. The obligation then existed to

operate the train at a reduced speed, prepared to stop

within the assured clear distance ahead. The accident

was, per se, evidence of the violation of the rule.

However, the docket further discloses that on Septem-

ber 27, 1958, claimant J. D. Cox «vas restored to serv-

ice on a leniency basis, without pay for time lost, as

carrier wac of the opinion the discipline thus far

assessed was sufficient punishment for his offense.

: 9

The organization makes no reply to this position. The

issue is not one of the degree of claimants’ respon-

sibilities and we need not define the extent of each.

The carrier having determined that the punishment

for one was sufficient, there is a wide disparagement

in the punishment of the other, which cannot be

justified. The claim of C. E. Russ should be sus-

tained to the extent that he should be restored to

service as of September 27, 1958, with full compensa-

tion from tat date, and seniority rights unimpaired.

The claim of J. D. Cox should be denied in accord

with these findings.” (281a-28%a. )

On the sam ~ ute the Adjustment Board issued an

order directing the respondent to reinstate petitioner and

to pay him the money award on or before March 2, 1961

(443a). Petitioner was not restored to service until May

29, 1961, and was never paid any part of the money

portion of the award. A complaint seeking enforcement

was filed on October 31, 1961 (5a-12a, 17a).

Trial de novo was held in the District Court. The

District Court found that the evidence sustained the Ad-

justment Board’s finding that petitioner, having been

warned that the track motor car was ahead, was obligated

te operate the train at reduced speed, prepared to stop

within the assured clear distance ahead, and that the

accident was, per se, evidence of the violation of the rule

(53a).

In a memorandum opinion the District Court stated

that the carrier had the authority to make, interpret and

require obedience to its Operating Rules. The District

Court held, however, that under the bargaining agreement

and the Railway Labor Act the Adjustment Board had

jurisdiction to find that discipline is excessive in a par-

ticular case and had the power to modify the same (55a-

56a). The District Court agreed that, with the evidence

before it, the Board could properly find that the penalty

of termination was too severe. The Court said:

“As various courts have pointed out, the Buard has

experience in dealing with railroad labor agreements,

grievances arising under them, their inte -pretation,

and its expertise in such matters is considered vital in

* re iching correct results. For these reasons, its find-

ings and conclusions are entitled to respect. This does

not mean that it can usurp the prerogative of manage-

ment to discipline employees for violatior of safety

rules. It does mean that it may determine after a full

hearing whether the discipline imposed by manage-

ment is too severe and if it so determines, fashion a

remedy within the framework of the bargaining

agreement which is fair to both the carrier and the

employee. We are of the epinion that the evidence

supports the finding of the Board that the penalty of

permanert termination of work for a man six‘y-six

years old in a field in which he had given thirty-six

years of his life—six years more than half of his life—

with an unblemished record to May 8, 1958, the day

of the accident, was too severe.

“We are further of the opinion that the order of

the Board restoring Russ to duty with pay as of

September 27, 1958 is within the framework of the

bargaining agreement between the Brotherhood of

uocomotive Engineers and the Southern Railway

Company and is valid and enforceable.” (55a-56a. )

The District Court entered judgment against respond

ent carrie in the sum of $22,903.05, which was the full

amount of the award (57a). Respondent appealed to the

United States Court of Appeals ror the Sixth Circuit. The

carrier took the positicn that as both the Board and the

District Court found the petitioner had violated one of its

Operating Rules, respondent had the right to discharge

him. It contended that its action was a valid exercise of

managerial prerogative which could not be overturned by

the Board ‘n the absence of a showing of discrimination or

arbitrariness on its part.

Although petitioner contended before the Board and

the District Court that he did not violate any rule of the

Railroad, this point was not raised on appeal. Petitioner

contended that both the Board and the District Court

found the discipline imposed upon him by the carrier to

be too severe, and that the Board therefore had the right

to fashion a remedy which in its view was justified. He

further stated that since Article 32(b)(3) of the bargain-

ing agreement recognized the arbitration proceedings

before the Board, the Board as arbitrator had the right to

modify discipline, and that such authority was within its

power to determine whether the claimant had been dis-

charged for “just cause” under the collective bargaining

agreement. Petitioner also claimed that if it was necessary

for the Board to determine that the discipline administered

was discriminatory on the part of the respondent, the

Board, in taking into account the discipline given to the

fireman, and the District Court, in pointing to his long

record of service without accident, did determine that the

excessive punishment was discriminatory.

The Court of Appeals found that nothing in the agree-

ment or the Railway Labor Act limited the right of re-

spondent to discharge for cause. Thus, the Board was not

justified in ordering reinstatement without finding that the

discharge was wrongful. Since Russ had violated the rule,

the discharge could not have been found to be wrongful.

He could not recover damages because the suit had to

proceed in the District Court on principles pertaining to

the law of master and servant. Although the Court

pointed out that the proceedings before the Board amount

ti compulsory arbitration, it determined that the con-

siderations applicable to voluntary arbitration wherein

the arbitrator can fashion a binding remedy were not

applicable. The Court therefore passed the issue in regard

to severity of discipline, because it found that the Board

based its decision on discrimination, and because Russ had

been reinstated. Thus, the Court below accepted the

argument that the Board had no av‘aority to modify the

discipline without a finding that the carrier had acted in a

discriminatory or arbitrary manner. The Court went on

to find, however, that the issue of discrimination had no

merit because the duties, responsibilities and conduct of

the engineer and fireman were not identical and did not

require the same discipline. The award was therefore

determined to be arbitrary and erronecus.

The court below reversed the judgment of the District

Court and remanded the cause with instructions te set

aside the Adjustment Board’s award.

REASONS FOR GRANTING THE WRIT.

The Judgment Below Has Decided a Federal Question in a

Manner in Conflict With Applicable Decisions of This

Court.

The Adjustment Board, under the Railway Labor A~

is considered an arbitrator created by Section 3, First (i)

to settle or adjust disputes grcwing out of grievances.

Brotherhood of Railroad Trainmen v. Chicago River &

Indiana R. Co., 353 U. S. 30, 39 (1957). The Act has

created a comprehensive and wholly exclusive system of

compulsory arbitration under the auspices of the Adjust-

ment Board. Rrotherhood of Locomotive Engineers v.

Louisville & Nasnville R. R. Co., 373 U. S. 33, 10 L. Ed.

- 24172 (1963), affirming 297 F. 2d 608 (6th Cir. 1961).

As an arbitrator in the railway lakor field, the Adjust-

ment Board has been accorded a specific expertise in this

field. In Washington Terminal Co. v. Boswell, 124 F. 2d

235, 241 (D. C. Cir. 1941), the court stated in regard to

the discretionary powers of the Adjustment Board:

‘“* * * Though they (the findings) may not make his

case finally, they do so initially. They also bring to

the court the weight of decision on facts and !aw by

men experienced in contracts, disputes and proceed-

ings of this special and complicated character. The

whole adjustment procedure up to the point of award,

findings and order by the Board, appears to be con-

structed upon the idea that it is not the business of

lawyers, but is the business of railroad men, workers

and managers alike. That does not make their find-

ings and decisions less probative; rather it should

make them more so. They know the language, func-

tions and purposes of railroads and ci their collective

agreements. Their judgment is informed by experi-

ence in negotiating and administering these contracts.

Because of this they, perhaps better than lawyers, are

qualified to interpret and apply them. Whether so or

not, their judgment should carry weight when the

judicial state of controversy is reached. It cannot be

assumed, therefore, that the findings have no substan-

tive effect, merely because they were not given final-

ity, as to either facts or law. They are probative, not

merely presumptive in value, having effect fairly com-

parable to that of expert testimony.”

In the exercise or development of the Board’s exner-

tise, noted by the court in the Washington Terminal case,

one of the foremost authorities concerning the Board has

shown that the various divisions of the Adjustment Board

“are busy building up their own common law and it is

curious to note how seriously their lay members treat the

precedence and with what skill they are able to urge that

this case should be distinguished or that analogy applied.”

Garrison, The National Railroad Adjustment Board; a

Unique Administrative Agency, 46 Yale L. J. 567, 583

(1937).

In its expertise, the Beard, unlike the court below,

did not believe that the degree of responsibility was the

important factor in determining whether the punishment

imposed on Russ was excessive. Rather, the Board, with-

out specifically saying that the action of the carrier was

“arbitrary,” found in its expertise as follows:

“The issue is not one of the degree of claimanis’

responsibilities and we need not define the extent of

each. The carrier having determined that the punish-

ment for one was sufficient, there is 2 wide disparage-

ment in the punishment of the other which cannot be

justified.” (Emphasis supplied.) (12a.)

The standard, applied in the instant award, of estab-

lishing arbitrariness of discipline and severity of punish-

rent by comparing the discipline meted out to the claim-

ant with others in the same cre~ or with individuals

involved in comparable disciplinary cases is well settled

and in accord with the Board’s principles as set forth in

the following awards:

In Brotherhood of Railroad Trainmen and The

Chicago, Rock Island and Pacific Railway Cor-:pany,

Award No. 7595 (First Division, 1943), the Board said:

“The record discloses enough in the way of ex-

tenuating circumstances, even granting technical

violations of the rules by both claimants, to. persuade

that the discipline was too severe in the cases of both

Conductor Crotty and Brakeman Wedgeworth. We

find support in the record for this appraisal of the

discipline in the fact that Engineer Capehart, who was

also involved and, likewise discharged, was reinstated

without pay for lost time some fourteen weeks there-

after.

““AWARD

“Claimants are to be reinstated with pay for time

lost, but provided that pay for such lost time is to

commence to accrue from January 25, 1942, or the

date of the reinstatement of Engineer Capehart.”

(Emphasis supplied.)

The Findings in Brotherhood of Locomotive Firemen

and Enginemen and Missouri-Kansas-Texas Railroad

Company, Award No. 14261 (First Division, 1951) con-

cluded:

“This Division has held in many past awards that

it has jurisdiction to modify a disciplinary action of an

employer, when the circumstances warrant.

“It is further found from an examination of the

full record that while the action of the Respondent

was neither arbitrary or capracious (sic), the punish-

ment invoked was excessive and should be modified

to the extent of reinstating the claimant, with senior- »

ity rights unimpaired, and with pay for all time lost

retroactive to the date the conductor member of this

crew was returned to service by the carrier.” (Em-

phasis supplied.)

The doctrine was alss adopted in Brotherhood of Loco-

motive Firemen and Enginemen and Southern Pacific

Lines, Atlantic System, Award No. 15315 (First Divisio.,

1952):

“* * * A careful consideration of the facis in this case

and of the record as a whole, including the claimant’s

service and discipline record covering a period of

about forty-five years, compels us to conclude that

although a severe disciplinary penalty was justified,

the extreme penalty of dismissal was unduly drastic

and must be modified so as to be made commensurate

with the offense and reasonably consistent with the

carrier’s treatment of other employ s. charged with

similar violations.” (Emphasis supplied.)

The conclusion must therefore be reached that the

Adjustment Board award involved herein is appropriate

on the basis of the Board’s principle concerning excessive

punishment as premised in the decisions set forth above.

In further substantiation of the basic propositions sup-

ported here, petitione:’ points to the vast number of labor

arbitration decisions in industries other than the railway

field where the arbitrator found discipline to be too severe

or excessive, and on that basis alone reversed manage-

ment’s decision. For example, see Federal Services, Inc.

and GUA, Local 33, 64-1 ARB, paragraph $136, where the

arbitrator held the discharge of an employee tor lying as

too severe even though management claimed that the

violation indicated a compromise of the high security

essential for the work being performed. therefore neces-

sitating the discharge. The employee was reinstated with

compensation for the entire period.

Although the arbitration rendered by the Adjustment

Board is a statutory creation, there has been a similar

tendency in other industries to include arbitration pro-

visions in the collective bargaining agreement. These

agreements have been held enforceable in the federal

district courts under Section 301 of the Labor-Manage-

ment Reiations Act (29 USC 185). Textile Workers v.

Lincoln Mills, 353 U. S. 448 (1957). As a result, many

of the problems confronting this Court have been met

previously. Some were resolved in the so-called Steel-

workers Trilogy. United Steelworkers v. Enterprise Wheel

& Car Corp., 363 U.S. 593 (1960); United Steelworkers

v. American Mfg. Co., 363 U.S. 564 (1960) ; United Steel-

workers v. Warrior & Gulf Nav. Co., 363 U.S. 574 (1960).

As a matter of fact, the Enterprise Wheel case dealt

primarily with the question of remedies in arbitration,

which is the gravamen of the instant coniroversy.

In the Enterprise Wheel case, the arbitrator found

that the discharge of several employees for leaving work

in protest to the previous discharge of a fellow employee

was not justified, although he found their conduct to be

improper. In his view, only a ten-day suspension should

have beer. imposed. Thereupon, he fashioned a remedy in

which he ordered the reinstatement of the employees with

back 7 ay, minus the period of a ten-day suspension. As

here, the arbitrator substituted his judgment for that

of management and modified the discipline originally

meted out by the employer. iie did not consider whether

management’s action was arbitrary. He did not say why

a ten-day suspension was considered by hia to be a more

appropriate punisLment. As here, the employer refused

to abide by the award and order. In the Enterprise Wheel

case, the bargaining representative sought enforcement of

the award and order. On certiorari, this Court in holding.

the award and order enforceable, stated in part, at page

097:

“When an arbitrator is commissioned to interpret

and apply the collective bargaining, he is to bring his

informed judgment to bear in order to reach a fair

solution of a problem. This is especially true when it

cornes to formulating remedies. There the need is for

flexibility in meeting a wide variety of situations. The

draftsmen may never have thought of what specific

remedy should be awarded to meet a narticular con-

It may be seen that the courts ure now recognizing

what has long been claimed by arbitrators, that the arbi-

trator is permitted his informed judgment in fashioning

flexible remedies and in modifying discipline. The power,

however, has been implied rather than specifically prede-

termined by the narties. This fact has never deterred arbi-

trators generaliy, or the Adjustment Board, from awarding

remedies for contract violations or in modifying discipli-

nary action of the employer. This was previously shown

in this brief in regard to the Adjustment Board. In addi-

tion, arbitrators generally have uniformly held that the

power to decide the contract violation must carry with it

the power to fashion an award and remedy. Oregonian

Publishing Co., 33 Lab. Arb. 574 (1959); Patterson-Sar-

gent Co., 23 Lab. Arb. 21 (1954).

Finally, in 1961, the Fifth Circuit Court of Appeals,

taking cognizance of the Steelworkers Trilogy, particularly

the Enterprise Wheel case, affirmed the power long claimed

by arbitrators. The court held that an arbitrator has the

power to effectuate a remedy, even when the collective

bargaining agreement specifically declared that the arbi-

tration body “shall have no authority to violate, contra-

vene, disregard or supplement the terms of this agree-

ment.” Lodge 12, Machinists v. Cameron Iron Works, Inc.,

292 F. 2d 112 (5th Cir.), cert. den. 368 U.S. 926 (1961).

The language which the court used in making this de-

cision was so positive and broad that a district court in

that circuit was persuaded to reverse an earlier holding

that the arbitrator had no authority to fashion a remedy

or apply his own judgment. Texas Gas Transmission Corp.

v. International Chemical Workers, 200 F. Supp. 521 (D.

C. La. 1962). The Court said under the broad teaching

of Cameron, that it is clear that, in order to deny the ar-

ditrator power to fashion an appropriate remedy for brvach

of the collective agreement, there must be clearly re-

strictive language in the contract negating the arbitrator’s

power to fashion a remedy. It was held that under the

great latitude given arbitrators in formulating remedies

the arbitrator had the power to assess the “penalty” en-

tered by him. When the above authorities are coupled

together, it is obvious that the award and order reinstating

and granting back pay to petitioner Russ is valid and en-

forceable, was granted in accordance with the authority of

the Adjustment Board, is not contrary to the provisions of

the collective bargaining agreement, but is specifically

within the provisions of Articles 31 and 32 thereof, and

did not violate any principles of law by changing discipline

adm‘nistered by the employer (1b-3b). The Enterprise

Wheet case establishes beyond question the validity and

enforceability of an award ordering the reinstatement of

an employee whom the employer had discharged, even

though the Adjustment Board may have found the con-

duct for which the employee was discharged to be im-

proper or in violation of the employer’s rules.

If the Adjustment Board is to functio;: in accordance

with this Court’s pronouncements on the subject of ar-

bitration, it must be treated akin to arbitrators who are

within the purview of the Enterprise Wheel doctrine. In

fact, in Brotherhood cf Locomotive Engineers v. Louisville

& Neshwnille R. R. Co., 373 U. S. 33, 10 L. Ed. 2d 172, at

179, Justice Goldberg, in his dissenting opinion, stated in

interpreting the majority opinion as follows:

“Given the premises oi Chicago River, it must fol-

low that such enforcement proceedings are governed

by federal law as declared by this court in cases such

as Steelworkers v. American Mfg. Co., 363 US 564,

Steelworkers v. Warrior & Gulf Co., 363 US 574, and

Steelworkers v. Enterprise Corp., 363 US 393, * * *.”

Furthermore, Congress saw fit to commission the Ad-

justment Board to bring its expert judgment in the fair

solution of any given labor situation in the railroad field.

The very name “Adjustment Board” shows that Congress

intended that this arbitration hody have a variety of tools

in meeting the many problems of labor relations in the

railroad industry. The specific language employed in Sec-

tion 3, First (i) of the Act, 45 USC 153, First (i) shows

that there were to be “adjustments.” The Board was not

to be limited ts a specific remedy to be awarded in par-

ticular contingencies. As the court said in Capitol Air-

lines, Inc. v. Air Line Pilots Association, Inter national, 54

LRRM 2326 (D. C. Tenn. 1963), the Adjustment Board is

not faced with an “either/or situation,’ but there is a

middle ground in which it may operate. To enforce the

award and order in this case properly follows the pur-

pose ci arbitration and of arbitration bodies, including the

Adjustment Board. In other words, they are to balance

the interests of management and labor providing peace-

ful sciutions as to the day-to-day relationships between

labor and management.

The court beiow recognized that the trilogy of the

Steelworkers cases supports the position that where the

parties have submitted to voluntary arbitration, the arbiter

can fashion a remedy and issue an award which would

be binding on both parties. The court, however, disre-

garded Article 32 of the applicable agreement which pro-

vides mr submission of any grievance or dispute to the

Adjustment Board by either of the parties. In addition,

aw FIN

aE PS DGG Tee ee

Se ae

the court failed to properly apply the doctrine set forth

in the Enterprise Wheel case. This Court should decide

the applicability of the Steelworkers cases upon the au-

thority of the Adjustment Board and the effect there-

upon on the enforceability of Adjustment Board awards.

The Court Below Has Rendered a Judgment Deciding an

Important Question Under the Railway Labor Act,

Affecting Labor Relations in the Railroad Industry

and Delineating the Authority of the National Rail-

road Adjustment Board, Which Should Be Reviewed

by This Court.

The court below has accepted the contention of the

respondent that the carrier, under the facts presented,

possesses the managerial prerogative or unilateral author-

ity to make rules, to finally interpret them, to unilaterally

determine a violation of these rules, and, upon finding a

violation, to assess discharge or punishment therefor which

cannot be modified hy the National Railroad Adjustment

Board in the absence of a finding that the discharge was

wrongful or that the railroad in discharging the petitioner

acted arbitrarily. The acceptance of this contention in the

opinion below means that the Adjustment Board did not

have the authority to modify the discipline of discharge

which the carrier had imposed, even though the claim

was before it under the “just cause” provisions of the ap-

plicable collective bargaining agreement which also pro-

vided for arbitration by the Board. It also means that the

Adjustment Board may not issue an enforceable award and

order which mitigates discipline upon finding it excessive,

unless a specific provision in the collective bargaining

agreement grants the Board suck authority.

First, if the opinion and decision of the court below

is permitted to stand, the Adjustment Board would not

have the authority at any time to modify the discipline of

discharge imposed by a carrier when a claim has been

submitted to the Board under the “just clause” provisions

of the bargaining agreement. This conclusion, however,

stems from an erroneous reliance on common law rules

which are not applicable to the instant proceedings. The

major authority supporting this finding in the opinion

below is Thomas v. New York, Chicago & St. Louis R. Co.,

185 F. 2d 614 (6th Cir. 1950). In that case, the plaintiff

was a non-union employee who did not have auy contract

with his employer creating continued employment. Under

those circumstances, the employee was subject to termina-

tion of his emplyoment at the will of his employer. The

Board erred in ordering his reinstatement and back pay,

for he could not have been wrongfully discharged since

there was no continuous right of employment arising out

of the contract or any violation of the Railway Labor Act.

In the instant case, petitioner was a union employee en-

titled to the benefits flowing from the collective bargaining

agreement which contains clauses in regard to seniority,

discipline and discharge, and also contains a detailed pro-

cedure for processing grievances and claims, including

submission to the Adjustment Board. Thus, the incidents

of continued employment arise from provisions of the col-

lective bargaining agreement. The court in Thomas set

forth this important distinction by stating, at page 617:

“Appellant was not a union member and hence

cannot rely upon any union contract as to duration

or tenure of employment. If any individual contract

between appellant and the carrier limited the preroga-

tive of discharge and created a continued employment,

nothing to that effect was introduced in evidence.”

In this case, the limitation upon the carrier’s mana-

gerial prerogative arising from Article 31 of the collective

bargaining agreement which limits its right to discharge

or discipline for just cause only was disregarded. The deci-

sion below further failed to recognize that in Article 32 of

the same collective bargaining agreement the carrier has

agreed to a procedure of adjustment of grievances or

claims culminating in proceedings instituted by the em-

ployee or his duly authorized representative before the

National Railroad Adjustment Board.

To further understand the limitations over managerial

prerogative in the discipline area, consideration must also

be given to Section 3, First (i), 45 USC 153, First (i).

This section provides that disputes growing out of griev-

ances are to be handled as follows:

‘“k * * in the usual manner up to and including the

chief operating officer of the carrier designated to

handle such disputes; but, failing to reach an adjust-

ment in this manner, the disputes may be referred

by petition of the parties or by either party to the

appropriate division of the Adjustment Board with a

full statement of the facts and all supporting data

bearing on the disputes.”

Disputes handled by the Adjustment Board growing

out of grievances have been described as “cases of disci-

pline or refusal to promote.”” Garrison, The National Rail-

road Adjustment Board; a Unique Administrative Agency,

46 Yale L. J. 567, 583 (1937). The author states at page

586 of his article that grievances consisting of questions

of discipline or refusal to promote are reviewable by the

Adjustment Board. The theory that a railroad in these

circumstances may discharge any of its employees due to

an alleged limitless managerial prerogative in regard to

hiring and firing of employees has no basis. The applicable

provisions of the collective bargaining agreement and of

the Railway Labor Act show that the question of discipline

and the measure of that discipline were subject to review

by the National Railroad Adjustment Board.

The argument that the carrier is the final authority as

to the measure of discipline has frequently been presented

to the Adjustment Board. In Brotherhood of Railroad

Trainmen and Southern Railway Company, Award No.

20007 (First Division, 1961), a claim was filed in behalf

of Conductor A. E. Anderson for restoration to service

with seniority unimpaired and pay for all time lost as a

result of his dismissal from the service of the carrier due

to his alleged responsibility for an accident at Roberta,

Alabama, on September 29, 1958. The carrier’s position

was stated in the findings as follows:

“The respondent further argues that when there is

evidence of rule violation it has a right to administer

the measure of discipline and this Division may not

substitute its judgment for that of management.

* ok

In response to this argument the Division replied in

its award:

“* * * There is no need to elaborate on this sub-

ject because in many instances when requested to re-

view claims presented to this Division for modification

of carrier’s penalty, when the Division felt that it was

excessive, the Division has sustained these claims

either in whole or in part. Therefore, we must de-

termine whether there was sufficient evidence pre-

sented and sustained at the investigation that proved

Conductsr Anderson was guilty as charged by the

respondent, and if so, would these violations warrant

the penalty imposed by the carrier * * *.” (Em-

phasis supplied.)

Upon its evalution of the alleged offense and the

gravity thereof, the Board found that the defendant carrier

had acted arbitrarily by rendering excessive discipline.

The First Division stated:

“After carefully considering all of the evidence

presented to us we find that the decision of the re-

spondent was in error and was both arbitrary and

excessive. If carrier had felt that claimant’s judgment

was wrong and he deserved some forr: of discipline,

it might have done so in line with the system in use

on the property, but even then consideration should

have been given to claimant’s thirty-two years of

loyal service (claimant’s record was not introduced

so we must assume that it was good).

“Since the record conclusively establishes claimant

was unjustly dismissed (even though lesser discipline

might haye been warranted) and the carrier operates

under a system of discipline which specifically pre-

cludes suspension with loss of pay, this Division would

not be justified in penalizing claimant in that manner.

Since the record conclusively establishes that claim-

ant was unjustly dismissed we find that he should be

restored to service with seniority unimpaired and

paid for all time lost.”

In additional cases, the Board lias had within its

expertise the question of management’s prerogative in

regard tc the modification of discipline. The Board of its

own volition found a discharge to be quite excessive and

stated as follows in Brotherhood of Locomotive Engineers

and Cleveland, Cincinnati, Chicago and St. Louis Railway,

Award No. 4917 (First Division, 1949):

“While there is no question but that the engineer

here concerned was at fault for the coilision involved

we think the discipline administered quite excessive,

considering the fact that the man had 47 years sen-

iority, and should the discipline of discharge be

affirmed he would be deprived of the benefits accru-

ing from a lifetime of service. It is argued here that

this being an appeal for leniency, that that is a high

prerogative of management alone; we do not agree

to that proposition. A more reasonable discipline

would have been to resirict him to yard service or

such other service as he might be suited for and it

is the intent of this award that the carrier has that

prerogative. We think the discipline has fully served

its purpose and that he should be restored to his

original seniority but without pay for time lost.”

In 1947, the First Division of the Board was involved

in debate among the regular members as to its power to

interfere in cases of discipline. In Brotherhood of Locomo-

tive Engineers ard Union Pacific Railroad Company,

Award No. 11854 (First Division, 1947), the referee, in

the Board’s findings, stated .he aforementioned question

and its resolution as follows:

“This brings us to the question, which has been

hotly debated, as to the power of this Division to inter-

fere in cases of discipline. We do not think that there

is any real disagreement in the awards on this point.

The rule is that the imposition of discipline is the

province of the Carrier with tiie right i: this Divi-

sion to interfere if the Carrier’s decision is manifestly

unjust. ;

“It is now apparently suggested for the first time

that, though the Division may in accordance with the

above principle set aside a finding of guilt as to a

vioiation of the rule, it may not mitigate in any degree

the punishment imposed. We see no reason for such

a distinction. An unjust or arbitrary sentence con-

stitutes a grievance which i+ is as much within the

jurisdiction of this Division to right as is an un-

warranted finding of an employe’s guilt; and the con-

sequences to the employe may be as serivus in one

case as in the other.

“In innumerable awards, some by unanimous deci-

sion without the aid of a referee, and many with

referees participating, the principle has been upheld

that this Division has the power to modify a sentence

if it is unreasonable or manifestly unjust. We cite

just a few out of a large number. Awards 24, 1757,

3512, 2026, 2630, 2633, 3316, 8862, 11263. This ques-

tion should by now be regarded as svitled.” (Em-

phasis supplied.)

The decision below therefore missed the mark when

it determined that the basic issue in deciding whether the

Board’s award and order was enforceable was whether the

carrier acted arbitrarily or in bad faith in its interpretation

and application of iis rules and in imposing the discipline.

The question is whether the Adjustment Board, as the final

arbitrator of discipline cases, has authority to modify disci-

pline upon finding that punishment was excessive, even

though it found that the employee had committed an

offense. .

In Cepitol Airlines, Inc. v. Air Linz Pilots Associa-

tion, 54 LRRM 2326 (D. C. Tenn. 1963), which involved

a discharge for smuggling, the court stated:

“The question presented is whether or not in

ordering reinstatement the Board having found the

employees guilty of the charges, exceeded its author-

ity under the collective bargaining agreement and

under the agreement establishing it and defining its

powers and procedures.”

The basis of the Boazd’s award in that case was that dis-

missal was too severe a punishment. The company, how-

ever, argued, in effect, that since nothing specific in the

contract limited management’s right to discharge for

violation of its rules, the punishment could not be modified

by the System board of Adjustment where it found the

employees guilty of the charges. The court stated, how-

ever:

“Although the agreement in the present case is

not so explicit as to set out that no discharge should

be without just cause, the language in the agreement

is sufficiently broad to include the lack of just cause

as a proper grievance. A decision of the company to

discharge an employee for misconduct, even if the

employee is guilty, may or may not be for just cause.

If the offense and the circumstaness accompanying it

are sufficient to warrant such a penalty, just cause

would exist, but it is also true th.t in many cases

such a penalty may be excessive and unwarranted.

The penalty actually imposed by the company is an

‘action of the company affecting’ the employee and

consequently constitutes the subject of a grievance

as defined ir, Section 27 of the agreement.

Therefore, it cannot be said that the Board ex-

ceeded its authority in mitigating the punishment and

ordering reinstatement withcut exonerating the em-

ployees.” (54 LRRM 2329.)

Since this System Board did not exceed its anthor-

ity in mitigating punishment where it found the emn!uyee

had violated the ~'r lines’ rules, it can be seen that the

court found that management was not the final authority

as to the measure of discipline under the provisions of

the bargaining agreement. Airline System Boards of

Adjustment are provided for in the Railway Labor Act, 45

U. S. C. 181. Although both air and rail system vVoards

are created by mutual agreement c‘ the parties, they have

the same duties and functions as the National Railroad

Adjustment Board and are governed by the provisions of

Section 3 of the Act, 45 U.S. C. 153.

The above authorities estabiish that the carrier in the

instant case did not have the absolute and final determina-

tion as to the di cipline to be imposed. Under the “just

cause” provisions of the collective bargaining agreement,

the Adjustment Board could modify the discipline if it

found it excessive or unjust, even though it found that the

emp!oyee had committed the offense for w uich he hed been

discharged. The Board founu that discharge was unwar-

ranted and excessive punishment in view of the nature of

the offense and the suspension given the fireman (281a-

282a). The District Court found that discharge was an ex-

cessive penalty or too severe in that the petitioner had

worked fcr the carrier for a period of thirty-six years with

an unblemished record. (55a-56a.) Both findings were

based on the record and were reasonable. Adopting the pe-

titioner’s contention that the Board had authority to for-

mulate a remedy, the facts are adequate to support the

award of the Board and the decision of the District Court.

In that the Board in its expertise found that the discharge

was excessive and the decision of the District Court af-

firmed that finding, there is no basis for the conclusion of

the Court of Appeals that the award was arbitrary and un-

enforceable (Appendix, p. 44).

The judgment below now establishes, however, that

the many decisions of the Board as to its powers and its

authority to mitigate punishment when ruling on a claim

under its expert interpretation of the “just cause” provi-

sions of the collective bargaining agreement are not cor-

rect. If this decision is permitted to stand, railway labor,

railway management, and the Adjustment Board will not

know the proper role of the Board in disciplinary actions.

Second, the decision below holds that an award and

order of the Adjustment Board mitigating discipline upon

finding it excessive is not enforceable under the provisions

of Section 3, First (p) of the Railway Uabor Act, unless

a specific provision in the collective bargaining agreement

limits the authority of the railroad to discharge an em-

ployee for cause by granting the Board authority to modify

punishment. The court stated:

“We find nothing in the agreement or in the Act

which limited the right of the railroad to discharge an

employee fcr cause. In the absence of a statute or an

agreement, an employer may discharge his employee

for cause or without cause. Violation of a rule

certainly justified a discharge even for cause.” (Ap-

pendix, pp. 41-42.)

Not only does the decision restrict the Board frum

determining in the first instance its authority, but it

further limits its expertise in interpreting contractual pro-

visions, which language it may interpret to be sufficiently

broad +) include the authority to determine whether

punishment is excessive or unwarranted.

Under this view, a specific provision giving the Ad-

justment Board the power it has claimed for years to

modify discipline wnoon finding it excessive would be re-

quired to be included in the bargaining agreement. Under

this view, the Adjustment Board would have authority

only to rule on those claims where an express provision of

the contract applies. Thus, under this view labor and man-

agement upon drafting the agreement would be required

to ascertain every problem which could arise in the fu-

ture, and would be required to include provisions to cover

any anticipated situation. To require the parties to cover

every possible contingency in a collective bargaining

agreement is out of line with the purposes and practicali-

ties cf the cc!’ ctive bargaining process. This is particu-

larly true in an industry where contracts are not ne-

gouated every two or three years, and the basic agree-

merts were drafted and have been in effect for decades.

This is true in an industry where labor contracts contain

skeletal clauses and only provide the minimum number

of provisions in regard to the orderly regulation of labor-

management relations.

If this decision is permitted to stand, labor representa-

tives must either risk standing on the basic contracts,

knowing that any interpretation by the Adjustment Board

of the provisions to include the usages of the industry or

any implied powers claimed by the Adjustment Board

before which labor is compelled to arbitiate under the doc-

trine of Brotherhood of Railroad Trainmen v. Chicago

River & Indiana R. Co., 353 U. S. 30 (1957) and Brother-

hood of Locomotive Engineers vs. Louisville & Nashville

R. R. Co., 373 U.S. 33 (1963), will be negated in enforce-

ment proceedings, or must serve Section 6 notices under

45 USC § 156 on all carriers to place into effect compre-

hensive and encyclopedic contracts in order to cover every

grievance, dispute or controversy which could arise in the

future. Thus, the decision below could cause havoc and

instability to the already tenuous area of labor relations

in this industry. This Court should, therefore, determine

the authority of the Adjustment Board and decile the re-

lationship of the Adjustment Board in interpreting the col-

lective bargaining agreement.

The Judgment Rendered in the Court Below Has Failed

to Properly Apply Section 3, First (m) of the Rail-

way Labor Act. |

In the instant case, the Adjustment Board ordered the

carrier to reinstate petitioner to his former position by

March 2, 1961. Respondent, however, refused to return

petitioner to service until May 29, 1961. During this

period, the Board’s order for back pay was still in ef-

fect. The Court of Appeals for the Sixth Circuit determined

that since the discharge was not wrongful in the first in-

stance, petitioner could not recover any pay for time lost.

Under Section 3, First (m) of the Railway Labor Act, 45

USC 153, First (m), however, the Court did not have

jurisdiction to set aside the Board’s award of petitioner’s

reinstatement to be made effective on March 2, 1961, for

this section provides that “the awards shall be final ani

binding upon both parties to the dispute, except in so far

as they shall contain a money award.”

By setting aside the Board’s order, tke court denied

petitioner the right to reinstatement by March 2, 1961,

and, in effect, erroneously determined that the reinstate-

ment portion of a Board award and order is not final and

binding. The court below, though setting aside the mon-

etary portion, should have required respondent to pay

petitioner the amount owing from March 2, 1961 to May

29, 1961. If a Board order as to reinstatement is nct ef-

fectuated in this manner, carriers who are ordered to re-

store employees to service will not do so. In view of this

decision, carriers may refuse to reinstate an employee in

conformance with the Board order for one or more years

while enforcement proceedings are pending. If the de-

cision of the court is adverse to the claimant as to the mon-

etary portion of the award, he would lose back pay not

only from the time he should have been reinstated but to

the time that he is actually reinstated by his employer.

The decision below weakens the Adjustment Board’s

position as compulsory arbitrator of the grievances and

disputes presented, and negates its statutory power to ren-

der an order of reinstatement which is final and binding.

This question which was raised by the judgment in

setting aside the entire award and order should be re-

viewed, in that the decision appears to modify the unequiv-

ocal language of the stat 1te.*

1 It should also be noted that because the entire award was

set asic the order below taxes the costs of appeal to petitioner,

the plaintiff-appellee below. (Appendix, p. 35.) The order is

clearly in error in this respect. because Section 3, First (p) states:

“that the petitioner sha!’ uot be liable for costs in the district

court nor for costs a‘. any subsequent stage of the proceedings,

unless they accrue upon his appeal.”

CONCLUSION.

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

W. E. Frezcerap,

Burwell Building,

602 S. Gay Street,

“Xnoxville 2, Tennessec,

Ross & KxausHAAR,

Harovp A. Ross,

1736 Standard Building,

Cleveland, Ohio (44113),

Counsel for Petitioner.

APPENDIX.

STATUTES INVOLVED.

TrrLe 45 U.S. C. § 153, First (m) and (p).

Sr ~* First. There is hereby established a Board, to

be known as the “National Railroad Adjustment Board,”

the members of which shall be selected within thirty days

after approval of this Act, and it is hereby provided—

(m) The awards of the several divisions of the Ad-

justment Board shall be stated in writing. A. copy of the

awards shall be furnished to the respective parties to the

controversy, and the awards shall be final and binding

upon both parties to the dispute, except in so far as they

shall contain a money award. In case a dispute arises in-

volving an interpretation of the award the division of the

Board upon request of either party shall interpret the

award in the light of the dispute.

(p) If a carrier does not comply with an order of a

division of the Adjustmert Board within the time limit in

such order, the petitioner, or any person for whose bene-

fit such order was made, may file in the District Court ci

the United States for the district in which he resides or in

which is located the principal operating office of the car-

rier, or through which the carrier operates, a petition

setting forth briefly the causes for which he claims relief,

and the order of the division of the Adjustment Board in

the premises. Such suit in the District Court of the United

States shall proceed in all respects as other civil suits, ex-

cept that on the trial of such suit the findings and order

of the division of the Adjustment Board shall be prima

facie evidence of the facts therein stated, and except that

the petitioner shall not be liable for costs in the district

court nor for costs at any subsequent stage of the pro-

ceedings, unless they accrue upon his appeal, and such

costs shall be paid out of the appropriation for the ex-

penses of the courts of the United States. If the petitioner

shall finally prevail he shail be allowed a reasonable at-

torney’s fee, to be taxed and collected as a part of the costs

of the suit. The district courts are empowered, under the

rules of the court governing actions at law, io make such

order and enter such judgment, by writ of mandamus or

otherwise, as may be appropriate to enforce or set aside

the order of the division of the Adjustment Board.

JUDGMENT OF THE UNix¥D STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIi.

(Filed July 16, 1964.)

Tuts CAUSE came on to be heard on the transcript of

the record from the United States District Court for the

Eastern District of Tennessee, and was argued by counsel.

On CoNSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the judgment of ‘the

said District Court in this cause be and the same is hereby

reversed and the cause remanded, with instructions to set

aside the award of the National Railroad Adjustment

Board.

It is further ordered that defendant-appellant recover

from plaintiff-appellee the costs on appeal, as itemized

below, and that execution therefor issue out of said Dis-

trict Court.

Appreved for entry:

s/ Paut C. WEICcK,

Chief Judge.

OPINION OF THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT.

Before Weick, Chief Judge, Miller and Phillips, Cir-

cuit Judges. ;

Weick, Chief Judge. This appeal is from an order of

the District Court enforcing the monetary portion of an

award and order of the National Railroad Adjustment

Board which directed Southern Railway Company to

reinstate, with back pay, C. E. Russ, a locomotive engineer

who had been discharged by the railroad for violation of

its safety and operating rules.

The facts are fully stated in the opinion of the District

Judge, reported in 218 F. Supp. 634, and need be referred

to only briefly, here.

The controversy arose out of a collision in which a

train operated by Engineer Russ, collided with one of

Southern’s track motor cars, killins the operator of the car.

After an investigation, the railroad discharged Engineer

Russ and Fireman J. D. Cox, on May 15, 1958, for viola-

tion of its safety and operating rules.

A warning had been given by the Assistant Supervisor

to Russ, prior to the collision, that the track motor car was

in the area ahead. Russ communicated this warning to

Cox. In such a situation, the rules of the railroad required

that the train be operated at a reduced speed sufficient to

bring it to a stop within the assured clear distance ahead.

The rules also required the fireman to maintain a lookout

for obstructions on the tracks and to warn the engineer

thereof.

The railroad reinstated the fireman on September 27,

1958, on a leniency basis, without -pay for time lost, but

did not reinstate Engineer Russ.

In February, 1959, the Brotherhood of Locomotive

Engineers made claim to the National Railroad Adjust-

ment Board in behalf of Russ and Cox, for restoration of

service and back pay. The Board on January 31, 1961

mad: findings to the effect that the accident was per se a

violation of the rule requiring the engineer to operate the

train at a reduced speed so that he could stop within the

assured clear distance ahead. It found, however, that there

was “a wide disparagement’ in the punishment” which

the railroad administered to the engineer and fireman

which could not be justified. [i was of the view that there

was no issue involved over the degree of responsibility

involved in the two positions. It denied the claim of Cox

for back pay, but ordered Russ reinstated as of the same

date when Cox was reinstated, namely, September 27,

1958, and with back pay from that date amounting to

$22,903.05, and seniority unimpaired.”

1 We believe that the word ‘disparity’ was intended.

2 The Board said:

“The question exists, however, that while the proximate

cause of the accident was the responsibility of others than

the claimants, was there a violation of the carrier’s rules by

claimants, sufficient to warrant the punishment imposed? A

warning had been given that a track motor car was in the

arez ahead. The obligation then existed to operate the train

at a reduced speed prepared to stop within the assured

clear distance ahead. The accident was, per se, evidence of

the violation of the rule. However, the docket further dis-

closes that on September 27, 1958, claimant J. D. Cox was

vestored to service on a leniency basis, without pay for time

lost, as carrier was of the opinion the discipline thus far

assessed was sufficient punishment for his offense. The or-

ganization makes no reply to this position. The issue is not

one of the degree of claimants’ responsibilities and we need

not define the extent of each. The carrier having determined

that the punishment for one was sufficient, there is a wide

disparagement in the punishment of the other, which cannot

be justified. The claim of C. E. Russ should be sustained to

the extent that he should be restored to service as of Sep-

tember 27, 1958, with full compensation from that date, and

seniority rights unimpaired. The claim of J. D. Cox should

be denied in accord with these findings.”

The railroad restored Russ to service on May 29, 1961,

without pay for lost time, and ordered him to report for

duty on July 20, 1961. It refused to comply with the back

pay provisions of the order, with the result that the

Brotherhood and Russ filed proceedings in the District

Court to enforce the monetary portion of the Board’s

order. The Board was dismissed from the case, which

proceeded with Russ as party plaintiff.

The case was tried de novo in the District Court on

the record before the Board and on new evidence offered

in Court. In a memorandum opinion, the Court held that

the evi ‘ence sustained the finding of the Board that En-

gineer Russ had violated the railroad’s rule. The Court

was of the view, however, that while the Board could not

usurp the prerogative of management to discipline em-

ployees for violation of safety rules, it had the right to

determine whetker the discipline was too severe, and to

fashion a remedy within the framework of the bargaining

agreement between the railroad and the Brotherhood of

Locomotive Engineers. The Court was of the opinion that

the evidence supported the finding of the Board that the

penalty of »ermanent termination of work was too severe

and that the order of the Board restoring Russ to duty

with back pay was within the framework of the bargain-

ing agreement and was valid and enforceable. He entered

judgment against the railroad in the sum of $22,903.05,

which was for the full amount of the award, reserving the

application of plaintiff for allowance of attorneys’ fees

pending review by this Court.

At the out et the question is presented as to the force

and effect of the monetary award made by the Board and

the scope of review by the District Court and this Court.

The Railway Labor Act provided that the awards of

the Board “shall be final and binding upon both parties to

the dispute, except insofar as they shall contain a money

award.” 45 U.S. C. § 153 First “m.”

With respect to suits for enforcement, the Act pro-

vided that they “shall proceed in all respects as other civil

cases, except that on the trial of such suit the finding and

order of the divisio.. of the Adjustment Board shall be

prima facie evidence of the facts therein stated * * *”

and the District Courts are empowered to enter such

judgment “as may be appropriate to enforce or set aside

the order of the division of the Adjustment Board.” 45

U.S. C. § 153 First (p.).

The Board had exclusive primary jurisdiction over

disputes arising out of collective bargaining agreements.

Pennsylvania R. Co. v. Day, 360 U. S. 548; Hodges v.

Atlantic Coast Line R. Co., 310 F. 2d 438 (C. A. 5).

An award which does not contain an order for the

payment of money is final and bin: .:g on both parties to

a dispute. Brotherhood of Locomutive Engineers v. Louis-

ville & Nashville R. Co., 373 U. S. 33, 40; Trainmen v.

Chicago R. & I. R. Co., 353 U.S. 30.

It is clear, however, from the express language of the

statute, that money awards ¢: ‘he Board are not final and

binding, but the railroad may appeal therefrom to the Dis-

trict Court and obtain a de novo hearing. Washington

Terminal Co. v. Boswell, 124 F. 2d 235 (C. A., D. C.),

affirmed by a divided Court in 319 U. S. 732; Thomas v.

New York, Chicago & St. Louis R. Co., 185 F. 2d 614

(C. A. 6); Callan v. Great Northern Ry. Co., 299 F. 2d 908

(C. A. 9); Brotherhood of Railway, etc. v. Atlantic Coast

Line R. Co., 253 F. 2d 753 (C. A. 4); Boos v. Railway

Express Agency, Inc., 253 F. 2d 896. The Court may take

evidence and is not bound by the findings of fact of the

Board, which are only prima facie evidence. The award,

however, carried with it a presumption of validity. Train-

men v. Chicago R. & I. R. Co., supra. The weight to be giv-

en to it is comparable to that accorded to expert testimony.

Washington Terminal Co. v. Boswell, supra; Thomas v.

New Yerk, Chicago & St. Louis R. Co., supra. The Court

is empowered to enforce or set aside the Board’s order.

Brotherhood of Locomotive Engineers v. Louisville &

Nashville R. Co., supra, pp. 41 and 43; Brotherhood etc. v.

Railway Express Agency, 238 F. 2d 181 (C. A. 6).

The burden of proof was on the railroad to prove that

the award was wrong. Elgin, Joliet & Eastern Ry. Co. v.

Burley, 327 U. S. 661; Brotherhood etc. v. Railwaz; Express

Agency, supra.

Since these suits in the District Court are to proceed

as other civil suits and the trial is anew, the Court was

free to adopt findings of fact and conclusions of iaw. The

sco .> of appellate review would seem to be the same as

in other civil cases. The reviewing court is bound by the

clearly erroneous rule. Rule 52(a) Federal Rules of Civil

Procedure.

The raiiroad points out that both the Board and the

Court found as a fact that Engineer Russ had violated one

of its rules. It contends that it had the right to discharge

Russ for such violation, and its action in so doing was

in the exercise of the prerogative of management, which

could not be usurped by the Board in the absence of a

showing of discrimination or arbitrariness on its part.

Russ and Cox both contended before the Board that

they did not violate any rule of the railroad. This point is

not in issue in this appeal. Russ contends here that the

discipline imposed on him by the railroad was too severe,

taking into account his long record of service and when

compared with that administered to the fireman, was

discriminatory. He clsims the Board had the right to

fashion a remedy and likens the case to a voluntary

arbitration proceeding. He cites the trilogy of Steel-

workers cases as authority. United Steel Workers v.

American Mfg. Co., 363 U. S. 564; United Steel. Workers

v. Warrior & Gulf Nav. Co., 363 U. S. 574; United Steel

Workers v. Enterprise Wheel & Car Corp., 363 U. S. 593.

The collective bargaining agreement contained no

provision for arbitration. It did provide procedure for

investigations and discipline as follows:

Article 31. Investigations and Disciplin«-.

(1) Engineers will not be discharged or de-

merited without the authority of the Superintendent,

and after he has reviewed the evidence, he will give

the engineer an opportunity of being heard in his

defense. Investigation will be held by proper officer

within five days if possible, and the accused engineer

and his representative will have the privilege of hear-

ing all evidence submitted and interrogating al! wit-

nesses. An engineer will have the privilege of having

another employee in engine service with him at the

investigation, to assist him, provided such assistant is

in good standing on the division. If found blameless,

he will be paid for time lost and placed back on his

run. If discharged or demerited, he will be advised

within thirty days of the cause, and, if requested in

writing, written statement showing the cause will be

furnished him within fifteen days from date of receipt

of request.”

The collective bargaining agreement contained provi-

sions for the processing of grievances, which were followed

in this case.

We find nothing in the agreement or in the Act which

limited the right of the railroad to discharge an employee

for cause. In the absence of a statute or an agreement, an

enployer may discharge his employee for cause or with-

out cause. Violation of a rule certainly justified a dis-

charge even for cause. 56 C. J. Sec. 219.

The Board would not be justified in ordering rein-

statemnent without a finding that the discharge was wrong-

ful. Thomas v. New York, Chicago & St. L. R. Co., supra;

Tinnon v. Missouri Pacific R. Co., 282 F. 2d 773 (C. A. 8).

The Board made no euch finding here. Its finding was

only that there ‘vas a disparity in the punishment imposed

for the engineer in relation to that administered for the

fireman. It then proceeded to impose the same discipline

on each without making any determination as to either

the degree of responsibility or fault. It stated:

The issue is not one of the degree of claimant’s

responsibilities and we need not define the extent of

each.

The District Court entertained the same view and he

made no findings with respect to this issue.

At the time the railroad discharged Russ and Cox for

violation of its rules, it accorded to both the same treat-

ment. There was no discrimination. The charge of dis-

crimination arose czly because four months later the rail-

road reinstated Cox, on considerations of leniency, but

extended no leniency to Russ. About thirty-three months

after dismissal, following the entry of the Board’s order,

the railroad voluntarily reinstated Russ, but without back

pay. Cex lost four months’ pay, and Russ thirty-three

months’ wages. This was the posture of the case when it

was tried in the District Court.

We pass the issue of severity of the discipline dis-

cussed by the District Court, because the Board based its

decision on discrimination, and Russ has been reinstated.

The issue of discrimination might have merit if the duties,

responsibilities and conduct of the engineer and fireman

were the same. Cf. Brotherhood of Railway Trainmen v.

Louisville & Neshville R. Co., 211 F. Supp. 308, 210 (N. D.

Ala., S. D. 1962). But they were not identical and in our

judgment did not require the same discipline.

The engineer had a much greater responsibility than

the fireman. He was in control of the operation of the

train. The throttle aud brake levers were on his side of

the cab. There was an emergency brake lever on the fire-

laan’s side, which he could use only in an emergency.

Every crew member was required to take orders from the

engineer. The fireman was required to assist the e1 gineer

and to take orders and instructions from him. There was

a difference in the salary paid for the two positions. It was

the engineer who, in violation of the rule, failed to bring

the train to a stop within the assured clear distance hhead

- after he had received a warning as to the presence of the

track motor car.

Some of the rules which both engineer and fireman

were charged with violating, were identical; others, such

as the duty to warn, applicd only to the fireman.

We are of the view that considerations applicable to

voluntary arbitration do not apply here. Title 15 U.S. C.

§ 157 provides that disputes may be submitted to arbitra-

tion, »ut this procedure was not utilized. If it had been

used, then the arbitrator could have fashioned a remedy

and made an award whic’: would have been binding on

both parties. The trilogy of the Steel Workers cases, relied

on by Russ, supports this proposition.

Russ was not required to utilize the provisions of the

Act, but could have instituted an action for damages for

wrongful discharge, against the railroad, in a court of

competent jurisdiction. Moore v. Illinois Central R. Co.,

312 U. S. 630; Slocum v. Delaware L. & W. R. Co.,.339

44 3

U. S. 239, 244, 245; Tran: ontinental & Western Air v,

Koppal, 345 U. S. 653. :

In a suit for damages, the only remedy the Court |

could fashion would be to apply the law of Master and |

Servant. If the discharge was not wrongful, plaintiff could |

not have recovered damages. 9

It should be pointed out that the proceedings before |

the Board amounied to compulsory aritration. The |

Board was not a governmental agency. Its members were | |

named by the railroads and the unions. The appeal af- |

forded the railroad in money awards, where liability could

be tested according to legal considerations, was probably &

necessary to give constitutional validity to the Act.

Here the Board and the Court found that the engineer

had violated the company rule. \Neither found that the iy

discharge was wrongful. Neither found that the railroad.

in discharging the engineer acted arbitrarily. We think

that the award based on discrimination, without taking #

into account differences in duties and in the degree of

responsibility and fault, was arbitrary. The monetary &

portion of the remedy fashioned by the Board was not final §

and conclusive but was subject to judicial review in a de

novo trial. The money judgment entered by the District

‘Court against the railroad was erroneous.

The judgment of the District Court is reversed and

the cause remanded, with instructions to set aside the

award of the Board.

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.