Petition for Writ of Certiorari — Brotherhood of Railroad Trainmen v. Missouri Pacific Railroad

- Supreme Gourt ot the Rated States

Oo Tau, 1967

- 501

Baermann oF RAU ROAD Trance, Petitioner, —

. ae !

00 Mn wauxzn, Sr. Paul, & Pacmio —

e ET AL., Respondents.

PETITION FOR A WRIT OF CERTIORARI .

To THE UNITED STATES COURT OF APPEALS

Fon THE DISTRICT OF COLUMBIA CIRCUIT

Davip 105 Une 5

211 West Wisconsin Aventis:

| Milwaukee, Wisconsin 53208

| : - Mivton Kramer |

Rae 1625 K St., N. W.

5 Washington, D. O. 20006

8 Counsel for Petitioner,

Of Comied: 5

Gamma, Per & Una

Pauses or Brson 8. Ann Prin, Inc., Wannen, D. C. f

* 7 5

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Supreme Court of the United Sta a

OcrosER TERM, 1967

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‘BROTHERHOOD OF RAILROAD TRAINMEN, Petitioner,

ose OCHICOAdo, Minwavxeg, Sr. Pav. & Pactric RatRoAp

COMPANY, ET Al., Respondents 1

r PETITION FOR A WRIT OF CERTIORARI

ro THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT —

— —

Petitioner prays that a writ of certiorari issue to

review the final judgment of the United States Court

of Appeals for the District of Columbia entered in

this case on May 19, 1967, Court of Appeals No. 19,867.

CITATIONS TO OPINIONS BELOW

The opinion of the Court of Appeals is not re-

ported; it is attached hereto as Appendix „A“, infra.

The judgment of the Court of Appeals is attached

hereto as Appendix B', infra. The opinion of the

District Court is reported at 248 F. Supp. 1008; it

is attached hereto as Appendix “0”, infra. Question

‘No, 33 and the Answer of Board 282 to this Question

13

are not reported; they a are attached hereto i as 0

, infra. . |

The judgment of the Court of Appeals was entered

May 19, 1967. This Court’s jurisdiction is invoked

under 28 U.S. O., Bee. 1254 (1). .

QUESTION PRESENTED

Whether Public Law 88-108 permits Board 282 to

authorize a railroad, simply because it denies there

was a rule in effect within the meaning of Award 282,

to reduce the number of trainmen in erew consist

before Board 282 or any other impartial tribunal passes

on the validity of such denial.

STATUTE INVOLVED

Public Law 88-108, 77 Stat. 132, 45 U. S. C. 157 (1966

Supp.) is set forth in Appendix „E“, inf ra.

a > STATEMENT

In Public Law 88-108, Congress required the rail-

roads and railroad unions to submit their dispute

over the proper manning of trains to compulsory ar-

bitration. The manning dispute concerned ‘‘firemen

on diesels’? and crew consist“, ie., the number of:

employees in-road and yard service: It is only the

latter issue that is here involved.

The arbitration board (Board 282) established by i

Publie Law 88-108 flled its award (Award 282) on

January 25, 1964’; the validity of the Award, as well

as the eonstitutionality of Public Law 88-108, was up-

‘The text of Award 282 is iofcially reported in 41 Lab Arb.

673 (1963).

8 ö „

held in Brotherhood of Locomotive Firemen & Engine-

men v. Chicago, Burlington & Quincy E. Co., 225

F. Supp. 112 (1964), aff d. 331 F. 2d 1020 (D. C. Cir.

1964), cert. den., 377 U.S. 918 (1964), :

The instant case, like the companion cases in which

. petitions for certiorari. are being filed, arises from

_ that portion of the Award 282 which deals with ‘‘crew

consist“. Board 282 concluded that this issue, unlike

the “‘firemen issue“, could not be resolved by a nation-

wide formula. It therefore provided a procedure which

would enable either party seeking a change in the

number of trainmen in a crew consist to invoke a

local Special Board. Until the local Special Board

ruled that the change was justified and would not

endanger the safety of the remaining erewmen and

traveling public, the established number of trainmen

in tlie crew consist had to be maintained. Award 282,

Part III, R. 5. 1 ae

Despite this requirement, Respondent reduced crew

consists on certain mainline freight and passenger

trains and certain branch line freight trains from one

conductor and two brakemen to one conductor and

one brakeman without submitting these changes to a

local Special Board. Respondent justified these re-

ductions by pointing to its own assertion that there

were no rules“ in effect, within the nieaning of Award

282, which stipulated the number of trainmen on these

runs. Petitioner disputed this assertion, and sought

a ruling from Board 282 that the reduction violated ©

Award 282. In its Answer to Question 33, Board

282 ruled, however, that Respondent’s reduction eou]fj

remain in effect until the National Railroad Adjust-

ment Board decided whether or not there were sun

erules“ in effect. 0 5

4 ä

REASONS FOR GRANTING THE WRIT .

Disputes between carriers and railroads over man-

ning trains are not new. As this Court stated in

\

Brotherhood of Locomotive Engineers v. Chicago, Rock

Ialand & Pacific R. Co., 382. U.S. 423 61008) at ap:

“Since the railroad unions first gained strengt

in this country the problem of mannin,

presented an issue of constant dispute no betwen de the

railroads and the unions. ... .

Rather than permit the railroad unions 2 strike

over this issue in 1963, Congress enacted Public Law

88-108. Section 3 of that law empowered Board 282

to resolve matters on which the parties were not in

agreement”? at that time, and to render an award that

would constitute a complete and final disposition of

these issues for a period limited to two years from

the date of the Award. Ibid at 433. In short, Public

Law 88-108 constituted an immediate si yey to a

particular problem.

KNecently, Congress has indicated that e it

appears that collective bargaining disputes in the rail-

road industry cannot be resolved without a strike, it

will adopt ad hoc legislation compelling binding arbi-

tration of the underlying disputes (See, Public Law

Disputes Act, Public “tan 90-54, July 17, 1967).

Therefore, although Publie Law 88-108 has expired,

the instant case, which involves one facet of the con-

duet of Board 282, has an importance transcending

the immediate issues and parties. The use of ad hoc

compulsory arbitration statutes to solve collective bar-

gaining disputes presents unique and critical legal ques-

tions. Equally important, of course, is the impact

that the functioning and conduct of Board 282 and

of the — — pia and the’ public a8.

well as upon the rights of the parties here. rahe

The companion cases challenge the conduct of the

Deal Special Boards on the ground that they acted —

outside the limitations placed upon. their authority by

Publie Law 88-408. The challenge here is that Board

e A ee, See

Congress imposed upon it.

It failed to fulfill these duties because this Answer

to Question 33 interpreted its Award to permit Respon-

dent to reduce crews without regard to the impact

that such reductions would have upon the safety of

the remaining trainmen and the traveling public. It

permitted this simply because Respondent: asserted -

that there was no ‘‘rule’’ established by agreement,

interpretation, or practice“, as those terms are used

in Award 282, in effect at the time Award 282 be-

came effective, By sanctioning such reductions on the

‘basis of. unverified assertion by this answer, Board

282 abdicated its responsibility to give ‘‘due consider-

ation to the effect of the proposed award upon adequate

and safe transportation service.“ Public Law 88-108,

Section 7, App. E“, infra. Obviously, Congress did

not intend the safety of trainmen and the traveling

public to depend upon unverified assertions of the .

‘ railroads any more than it intended the minimum

number of trainmen to depend upon unverified as- .

sertions of railroad unions. Otherwise, there would

bave been no need to establish an impartial 3 1 0 :

to sift their competing claims.

Nor did Congress intend Board 282 to shift the re- ,

-gponsibility to interpret its on Award to the National

¢ Qs

6

_taitvoed Adjustinent Board. Wee (hla th e-

eisely what it did when it required the Petitioner: to

submit the question whether there existed a rule es-

tabliched by “agreement „ interpretation“, or prac-

, within the meaning of Award 282, to the National

Railroad Adjustment Board. Congress could not have

intended this delegatiom of responsibility because the

First Division. of the National Railroad Adjustment

Board (the division to which these disputes had to

be submitted) had, at the time Public Law 88-108 was

enacted, a backlog of approximately 714 years work“.

H. R. Rep. No. 1114, 89th Cong., Ist Sess., a 3-5;

8. Rep. No. 1201, p. 2. By the time the First Divi-

sion could decide this question (unless Respondent

agreed to expedite the determination). Board 282 and

the Special Boards it created would have gone out

| of existence. And, Congress, of course, could not have

anticipated that the railroads would agree to expedite

‘such a determination.“

Congress also could not have intended this delega-

tion of responsibility because it commanded Board 282,

not the National Railroad Adjustment Board, to hg

solve all disputes over the crew consist issue.

“viously, to do this, Board 282 or a local Special 835

had to first decide whether there wag a rule stipulating

the number of trainmen in order to decide whether

‘that numiber should be reduced. . ae

In short, by its Answer to Question 33, Board 282

¢ failed. (1), to give due regard to the safety of the.

trainmen or the traveling public; (2) to resolve the

“dispute between the parties oper the meaning of its

bart 262 apparently considered it ‘significant that Respondent

rn. f

of fact in the present case“ App. 6“. !

ward: or (3) to 1 the e W dis

pute between the parties. None of these results can

iE be reconciled with Public Law 88-108.

Thus, this case raises a novel question which ‘the

Oourt has never passed on: the extent to which a

- compulsory arbitration board must affirmatively carry

out the duties which Congress has entrusted to it.

‘Unless this Court answers this question, confusion on

the part of future compulsory arbitration boards and

the parties subject to them will continue to impair

both the fairness and the effectiveness of compulsory. - |

_ arbitration as a method of n collective bar-

5 gaining disputes. .

| CONCLUSION .

This petition for a writ of certiorari should be

granted.

3 Respectfully submitted,

\ _ Davin Lzo UN

\. - 211. West Wisconsin Avenue

N Milwaukee, Wisconsin 53203

ö Mo KraMeR Rn

1625 K St., N. W.

Washington, D. C. 20006

Counsel os Petitioner.

Of Counsel:

GOLDBERG, PREVIANT & Uni

211 West Wisconsin Avenue

Milwaukee, Wisconsin 53203

- SoHOENE AND KRaMER

1625 K St., N. W.

ee D. 0. ae

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