# Petition for Writ of Certiorari — Far East Conference v. Federal Maritime Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0273%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1965 - **Citation:** 379 U.S. 991 ## Text 4 5 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 13 21 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. 2 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? 3 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, 4 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). 5 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 6 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 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 41 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 42 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, 43 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0273%3A1. Public record. Not legal advice.