Petition for Writ of Certiorari — Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Milwaukee, St. Paul & Pacific Railroad

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“QRpT wee FILED

NOV 4 196g

IN THE

Supreme Court of the Unites States” “«"

Octoser Term, 1968.

No. [<¥ G d

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND

ENGINEMEN, M. A. ROSS, anp W. H. WILKERSON,

Petitioners,

vs.

CHICAGO, MILWAUKEH, ST. PAUL & PACIFIC

_ RAILROAD COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

Avex ELson, _

Haroxrp C. HeEtss,

Wruarp J. Lassers,

Aaron S. Wo trr,

Attorneys for Petitioners.

Harotp C. Hetss,

Hetss, Day & BENNETT,

622 Keith Building,

Cleveland, Ohio 44115.

Auex Exson,

Wiuarp J. Lassers,

Aaron S. Wo trr,

E.son, LassErs aNnD WoLrFr,

11 South La Salle Street,

Chicago, Illinois 60603.

November 4, 1968.

THE GUNTHORP-WARREN PRINTING COMPANY, CHICAGO se

LEONEL POG

SOLE LR IPT FIL IOI LR PEST 2

AEG SN SU HE ANE ARO OF ENN ERE OR PR ct

# LIT IOP

Opinions Below

SECC HEHP CHCA H DD OCS HBT BODO HH8 CHOSE OH OE 6

Jurisdiction

Questions Presented

Statutes Involved

eeeeoeeveeeveeeeeeeeeeeeeeeeet tees eevee @

Statement of Facts

EE ee re re eer et eee

2. Proceedings Before the NMB and the District

Court in Case No. 66 C 1812.................

3. Events Following Dismissal of Action in Case

No. 66 C 1812 and the Proceedings Below

Reasons for Granting the Writ

1. A Review of the Decision Below Is Imperative

So That This Court May Stem the Erosion of

the Norris-LaGuardia Act...............008.

2. The Court of Appeals Has Erroneously De-

cided an Important Question of Federal Law

Which Has Not Been Decided by This Court,

Namely, Whether the Decision of the NMB, the

Agency Charged by Law with Administering

the Major Dispute Provisions of the Act, That

a Dispute Is a Major One Subject to the Juris-

diction of the NMB and Not the NRAB, Is to

Be Given Any Weight by the Courts..........

3. The Court of Appeals’ Decision Is in Direct

Conflict with Recent Decisions of the Courts of

Appeals for the Second Circuit and the Dis-

trict of Columbia Circuit on an Issue of Great

Importance in the Day-to-Day Interpretation

and Application of the Railway Labor Act:

Do the ‘‘Rates of Pay, Rules, or Working

Conditions’’ Set Forth in a Terminated Agree-

ment Continue in Effect Until Changed by

Agreement or in Accordance with $6 and Re-

lated Provisions of the Act?

Nee a aan eee kein aala ena keeles

11

+ ahh ncomegnensae fa

ot ges PRO sf

Appendix:

Ee iid ere uaeame bare Al

Findings of Fact and Conclusions of Law of the

ee EE Ba head oo 065s 0 use a ecko eee A9

NY Ss ch lotsa s os OSs ccakaeboanene Al5

Opinion of the Court of Appeals for the Second

Circuit in Manning v. American Airlines, Ince...A22

Agreement of June 21, 1968............ccccee0- A27

List or AuTHORITIES CITED.

Cases.

Atchison, Topeka & Santa Fe Ry. Co. v. Brotherhood

of Locomotive Firemen and Enginemen (April 23,

1968, C. D. Calif. No. 68-332F), appeal dismissed. .13, 17

Baltimore & O. Rd. v. United Railroad Workers, ete.,

_ 271 F. 2d 87, 91 (2nd Cir. 1959), vacated on other

So a 13

BLE v. Baltimore & Ohio R. Co., 372 U. S. 284 (1963). 6

Brotherhood of Railroad Signalmen v. Southern Ry.

oe ee 8s rrr ere rrr 11

Brotherhood of Railroad Trainmen y. Akron and B.

B. R. Co. et al., 385 F. 2d 581 (D. C. Cir. 1967),

cert. denied, 390 U. S. 923 (1968)............. 15, 16, 17

Brotherhood of Railroad Trainmen v. Chicago River

& I. R., 353 U. S. 30 (1957)........... eitesecues en, a

Butte, A. & P. Rd. v. BLF&E, 268 F. 2d 54 (9th Cir.),

cert. denied, 361 U. S. 864 (1959)................. 8, 10

Chicago, M. St. P. & P. Rd. v. Order of Railway Con-

ductors, 296 F. 2d 453 (7th Cir. 1961), cert. denied,

Se Ge Ue SES i oS ak knovecccecacuaseventen 8

Elgin, Joliet & E. Ry. Co. v. Burley, 325 U. S. 711

COPED sda beue canes okvenVancnnacesnsaateadces tea 6, 9

ili

Fla. E. C. Ry. v. B. R. T., 336 F. 2d 172 (5th Cir. 1964) 8

General Committee, BLE v. Missouri-K-T R. Co., 320

me er re ere err 11

Manning v. American Airlines, Inc., 221 F. Supp. 301

(S. D. N. Y. 1963) affirmed, 329 F. 2d 32 (2d Cir.),

cert. denied 379 U. S. 817 (1964) ......... 7, 8, 15, 16, 17

N. L. R. B. v. Hearst Publications, 322 U. S. 111, 131

PPP eer ee eres Cree eer tre rs cee 12

Norfolk & P. B. L. R. R. v. B. R. T., 248 F. 2d 34, 43-4

(4th Cir. 1957), cert. denied, 355 U. 8. 914 (1958)... .8, 13

Order of Railroad Telegraphers v. Chicago & North

Western Railway Co., 362 U.S. 330 (1960) ...... 8, 9, 10

Rutland Ry. Corp. v. B. L. E., 307 F. 2d 21, 53-4, 45-8

0 8s Be rr eee eee ery eee eeeceny 8, 9, 10

St. Louis, S. F. & T. Ry. v. Yardmasters, 328 F. 2d 749

(5th Cir.), cert. denied, 377 U. S. 980 (1964) ...... 8

Transportation-Communication Employees Union v.

Union Pacific Railroad Co., 285 U. S. 157 (1966)

PE Te a ee Te Tee TTPO e RT Ter ere 10, 11, 15

United Indusirial Workers v. Board of Trustees, 351

F’. 24.183, 189 (Sth Cir., 1965) .........00008. 7, 8, 10, 12

Statutes.

Norris-LaGuardia Act, 29 U.S. C. §§ 101 et seq. ......

veres Su ROVes URCEET ORES ao k dese 5 oot ee ee

Railway Labor Act, 45 U.S. C. $§ 151 et seq... ..3, 9, 15, 17

§ 2, Seventh (45 U.S. C. § 152, Seventh) .......... 7

§S, Piret (46 VU. GB. CO. § 168, Pivst)..........ccccee 7

$5, Firat (46 U. BS. ©. $206, Firat) ......scccccee 12,13

a?) (4 2: ere 12, 13, 14, 15

iv

Other.

Aaron, The Labor Injunction Reappraised, 14 Labor

ON A fee TT ere eee eee eee 8,9

Comment, Jurisdiction of Federal Courts to Enjoin

Labor Disputes, 32 Tenn. L. Rev. 264 (1965) ...... 8,9

Kroner, Interim Injunctive Relief Under the Railway

Labor Act: Some Problems and Suggestions, 18th

Annual Conference on Labor, New York University

ee STE T PELLET eee 10

McGuinn, Injunctive Powers of the Federal Courts in

Cases Involving Disputes Under the Railway Labor

Be Be es Bk ee CRED hob beeen cb eeeiccescess 7

Note, Railway Labor Act—Major and Minor Disputes,

31 J. of Air Law & C. 371 (1965) ...............6.. 9

33rd Annual Report of the National Mediation Board

eh eae Ore ene erry ret 8, 12

IN THE

Supreme Court of the Anited States

Ocroser Term, 1968.

Eo

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND

ENGINEMEN, M. A. ROSS, ann W. H. WILKERSON,

Petitioners,

vs.

CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC

RAILROAD COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

To the Honorable Chief Justice of the United States and

the Associate Justices of the Supreme Court of the

United States:

Petitioners pray that a writ of certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Seventh Circuit entered herein on July 2, 1968.

OPINIONS BELOW.

The Findings of Fact and Conclusions of Law of the

United States District Court for the Northern District of

Illinois, per Napoli, J., are not reported but are printed

2

ir the Appendix hereto at pp. A 9-14, infra. The opinion of

the Court of Appeals is reported at 397 F. 2d 541. It

is also reproduced in the Appendix hereto, pp. A 1-8, infra.

JURISDICTION.

The judgment of the Court of Appeals for the Seventh

Cireuit was entered on July 2, 1968. A timely petition

for rehearing filed by petitioners herein was denied on

August 5, 1968. The jurisdiction of this Court is invoked

under 28 U. S. C. § 1254(1).

QUESTIONS PRESENTED.

The Milwaukee Road (Chicago, Milwaukee, St. Paul &

Pacific Railroad Company), BLF&E (Brotherhood of

Locomotive Firemen and Enginemen), and BILE (Brother-

hood of Locomotive Engineers) entered into a tri-partite

agreement regarding work assignment seniority rules. The

agreement provided that it could be cancelled by any party

on 30 days’ notice but did not provide for the rules to be-

come effective after such cancellation.

BLE served a cancellation notice. The NMB (National

Mediation Board), whose services were invoked by BLF&E,

over protests of BLE and the carrier, held the dispute to

be within its jurisdiction as a ‘‘major dispute,’’ and en-

gaged in unsuccessful mediation. After NMB closed its

file, and after the processes of the Railway Labor Act

(‘*Act’’) were exhausted, Milwaukee Road subraitted tne

dispute to the NRAB (National Railroad Adjustment

Board), announced restoration of the pre-agreement work-

ing conditions, and when the BLF&E began picketing,

sought an injunction in the District Court. The District

Court dismissed the action as barred by the Norris-La-

Guardia Act. The Court of Appeals reversed, and without

3

reference to the NMB decision, accepted the carrier con-

tention that the dispute was a ‘‘minor dispute.’’

1. After the failure of the NMB mediation and the ex-

haustion of the other major dispute provisions of the

Act, may a carrier submit a dispute to the NRAB, im-

mediately thereafter unilaterally promulgate different work

assignment seniority rules. and then claim a ‘‘minor dis-

pute’’ as a foundation for avoiding the Norris-LaGuardia

Act?

2. Was it error for the court below to disregard a find-

ing of the NMB that the dispute was a major dispute?

3. Unde the Railway Labor Act, do the ‘‘rates of pay,

rules, or working conditions”? set forth in a terminated

agreement continue in effect until changed by agreement or

in accordance with Section 6 and related provisions of

the Act?

STATUTES INVOLVED.

The statutes involved are the Norris-LeGuardia Act,

29 U. S. C. $$ 101 et seq. and the Railway Labor Act, 45

U.S. C. §$ 151 et seq., the relevant portions of which are

set forth in the Appendix hereto at pp. A 15 to A 22, infra.

STATEMENT OF FACTS.

1. The Dispute.

At all relevant times on the Milwaukce Road engineers

have been represented by the BLE’ and firemen by the

BLF&E. Firemen, after training, experience and examina-

tion are promoted to engineers but serve as such only

when their seniority permits. Otherwise they serve as fire-

men.

1. The BLE, although nominally designated defendant, sup.

ported the position taken by the railroad, and on appeal was per-

mitted to file a brief amicus curiae.

one |

—

PRE AES

4

Prior to November 1, 1956, on the seniority district

headquartered at Three Forks, Montana, whenever an

engineer’s vacancy occurred it was filled by a man from

the engineer’s ‘‘extra board.’’ In 1956, engineer work, but

not firemen work, declined at Three Forks.

Upon request of BLE and after an authorizing vote by

all firemen and engineers on the seniority district, BLE,

BLF&E and the Milwaukee Road entered into the Novem-

ber 1, 1956 tri-partite agreement (‘‘The Agreement’’). It

abolished the engineers’ extra board at Three Forks.

Engineers who were assigned to the extra board would

work as firemen. When an engineer vacancy occurred, the

senior firemen available would be called for the position.

Paragraph K of the agreement states:

‘“‘K. This agreement effective November 1, 1956,

applies only to the East Rocky Mountain Seniority

District, and is subject to cancellation on 30 days writ-

ten notice by any party signatory hereto.’’ (Fdgs. {ff

5-6, A 10).

On September 7, 1966, the BLE served notice on the

Milwaukee Road to cancel the agreement and restore the

engineers’ extra board, effective October 10, 1966. The

BLF&E protested the cancellation.

2. Proceedings Before the NMB and the District Court

in Case No. 66 C 1812.

On October 4, 1966, the BLF&E filed an application with

the NMB for its mediation services regarding cancella-

tion of the agreement. Shortly thereafter the BLF&E

filed a complaint in the district court (No. 66 C 1812) to

enjoin the Milwaukee Road from cancelling the agreement

until all provisions of the Act had been exhausted. On

December 13, 1966, the BLE intervened as a defendant in

5

that action. From the time that suit was commenced un-

til January 3, 1968, when it was dismissed without preju-

dice, the parties agreed to maintain the status quo.

The Milwaukee Road and the BLE opposed the BLF&E’s

application for mediation and advised the NMB of their

position that this was not a major dispute over which the

NMB had jurisdiction but was a minor dispute over which

the NRAB had jurisdiction. On December 14, 1966 the

NMB advised the parties that, in accordance with its past

practice regarding similar notices, it was treating the

notice to cancel the agreement as a notice under § 6 of the

Act of an intended change in agreements affecting rates

of pay, rules, or working conditions. The NMB then pro-

ceeded to exercise its jurisdiction in accordance with the

major dispute provisions of the Act.

After the NMB advised the parties on November 7, 1967,

that all practical methods provided in the Act for adjusting

the dispute had been exhausted and that it was terminat-

ing its services under the Act, and after the expiration of

the thirty-day period specified in §5, First of the Act

without the appointment of an emergency board under

§ 10, the BLF&E on December 11, 1967 moved to dismiss

without prejudice its prior action and the district court

below did so on January 3, 1968.

3. Events Following Dismissal of Action in Case No.

66 C 1812 and the Proceedings Below.

On January 3, 1968, the Milwaukee Road filed an ex parte

submission with the NRAB allegedly concerning this

dispute.’ On January 8, 1968, the Milwaukee Road advised

that effective January 11, 1968, it was going to reestablish

the engineers’ extra board at Three Forks. When the

i. It was stipulated that action by the NRAB might take 7

years.

P ae aa ae oe Oa

6

change in working conditions became effective the BLF&E

instituted limited picketing.

On the same day, January 11, the Milwaukee Road filed

this action to enjoin the strike and the district court en-

tered a temporary restraining order. It also ordered the

railroad to maintain the status quo by withdrawing its

notice of contract change. On February 2, 1968, after trial

on the merits, the district court entered its findings of facts

and conclusions of law and final judgment dismissing the

complaint (A 9-14). The district court found that the pro-

visions of the Act had been exhausted (Fdgs. 15, A 12),

that the dispute giving rise to the actual and threatened

strike and picketing is a major dispute and not a minor

grievance under the Act (Fdgs. { 21, A 13), and that this

case involves or grows out of a labor dispute within the

meaning of the Norris-LaGuardia Act (Fdgs. {| 22, A 13).

The district court concluded as a matter of law that the

dispute growing out of the railroad’s attempt to cancel

the 1956 agreement and re-establish the engineers’ extra

board was a change in the ‘‘rates of pay, rules and working

conditions’’ of the employees represented by the BLF&E,

and was therefore a major dispute within the meaning of

the Railway Labor Act, Elgin, Joliet € E. Ry. Co. v. Burley,

325 U.S. 711 (1945), and that since the processes of the Act

were exhausted by the parties, they were free to resort to

self-help, and the court was without jurisdiction to grant

injunctive relief under the Norris-LaGuardia Act, Broth-

erhood of Locomotive Engineers v. Baltimore & O. Rd. Co.,

372 U. S. 284, 291 (1963) (A 13-14).

The Court of Appeals reversed. It held that the question

of what the new work rules would be after termination of

the agreement was a minor dispute and that the Norris-

LaGuardia Act did not bar injunctive relief.

On June 21, 1968 Milwaukee Road & BLE entered into

7

a new agreement effective July 1, 1968, which provided for

work assignment seniority rules at Three Forks different

from those contained in the 1956 Agreement and different

from those in effect before the 1956 Agreement was made.

Petitioners did not learn of this new agreement until re-

cently and long after the Court of Appeals denied petition-

ers’ request for rehearing. The new agreement is repro-

duced at A 27, infra. ”

REASONS FOR GRANTING THE WRIT.

1. A review of the decision below is imperative so that

this Court may stem ihe erosion of the Norris-LaGuardia

Act.

Ever since this Court held that the Norris-LaGuardia

Act does not bar injunctions in labor disputes which are

‘‘minor’’ disputes referred to the NRAB under § 3, First

of the Act (Brotherhood of Rd. Trainmen v. Chicago River

and I. R., 353 U. S. 30 (1957)), there has been a ‘‘re-

emergence of the labor injunction as a potent force in

labor-management disputes involving the railroad and

airline industries.’ If a dispute is ‘‘minor’’ a carrier

may be entitled to enjoin a strike.? Since the determina-

tion of whether a dispute is major or minor has such fate-

ful consequences, the carriers understandably have at-

tempted to maneuver disputes into minor ones and the

1. McGuinn, Injunctive Powers of the Federal Courts in Cases

reread Disputes Under the Railway Labor Act, 50 Geo. L. J. 46

61).

2. And in an important related context, if the dispute is

‘‘major’’ a union may obtain an injunction under § 2, Seventh

of the Act requiring the carrier not to make any changes in rules

and work conditions. United Industrial Workers, etc. v. Board of

Trustees, 351 F. 2d 183 (5th Cir. 1965); Manning v. American

Airlines, Inc., 329 F. 2d 32 (2d Cir.), cert. denied, 379 U. S. 817

(1964).

8

unions into major ones, with varying degrees of success.’

Success for a carrier depends on judicial activism, not

judicial restraint. It may be assumed that the trial judge

was just as concerned about strikes as the members of the

Court of Appeals. The difference in result is a consequence

of the exaltation of form over substance in order to pre-

vent a strike.

Here the carrier terminated an agreement providing for

certain rules and working conditions and sought to impose

different rules and working conditions. As a last minute

effort to convert this dispute into a minor dispute, the

carrier submitted an issue to the NRAB.22 The NMB

and the district judge were not diverted by the carrier’s

tactic. They saw the dispute for what it was, a major

dispute.

The Court of Appeals gave legitimacy to the minor dis-

pute claim by accepting the carrier’s assertion set forth in

its submission te the NRAB, that ‘‘cancellation of the

agreement meant only reverting to the conditions which

prevailed prior to November 1, 1956.’’ (Appendix of Plain-

tiff-Appellant below, p. 12.)

1. See, e.g., Order of Railroad Telegraphers v. Chicago & N. W.

Ry. Co., 362 U. S. 330 (1960) ; United Industrial Workers, etc. v.

Board of Trustees, 351 F. 2d 183 (5th Cir. 1965); Rutland Ry.

Corp. v. B. L. E., 307 F. 2d 21, 33-4 (2d Cir. 1962) ; Butte, A. & P.

Rd. v. BLF&E, 268 F. 2d 54 (9th Cir.) cert. denied, 361 U. S. 864

(1959); Fla. E. C. Ry. v. B. R. T., 336 F. 2a 172 (5th Cir. 1964) ;

Manning v. American Airlines, Inc., 329 F. 2d 32 (2nd Cir.), cert.

denied, 379 U. S. 817 (1964) ; Norfolk &@ P. B. L. R. R. v. B. R. T., «

248 F. 2d 34 (4th Cir. 1957), cert. denied, 355 U. S. 914 (1958) ;

Chicago, M. St. P. & P. Rd. v. Order of Railway Conductors, 296

F. 2d 453 (7th Cir. 1961), cert. denied, 369 U. S. 844 (1962) ; St.

Louis, 8S. F. & T. Ry. v. Yardmasters, 328 F. 2d 749 (5th Cir.),

cert. denied, 377 U. S. 980 (1964). See also Aaron, The Labor

Injunction Reappraised, 14 Labor L. J. 41 (1963); McGuinn,

n. 1, p. 7, supra at 58; Comment, Jurisdiction of Federal Courts

to Enjoin Labor Disputes, 32 Tenn. L. Rev. 264, 273-4 (1965) ;

and 33rd Annual Report of the NMB (1967), pp. 35-6.

2. The submission was not filed until January 3, 1968. By that

date the NMB had taken jurisdiction of the dispute, all the pro-

visions of the Act had been exhausted and the district court on

petitioners’ motion dismissed without prejudice petitioners’ prior

action to maintain the status quo.

9

The most frequently cited distinction between major and

minor disputes is that set furch by this Court in Elgin,

Joliet & E. Ry. Co. v. Burley, 325 U. S. 711, 722-24 (1945).

There the Court made clear that major disputes relate to

‘‘the formation of collective agreements’’ or ‘‘where it is

sought to change the terms’’ of an agreement.’ That is

precisely what this dispute is about. On its face, the ter-

mination of an agreement or the proposed termination of

an agreement is ‘‘an intended change in agreements affect-

ing rates of pay, rules or working conditions * * *’’ and

taken by itself constitutes a major dispute within the plain

meaning of §6 of the Act. But here we have more—a

unilateral promulgation of the change.

1. In Burley the Court, however, was not concerned with the

major-minor dichotomy vis-a-vis the Norris- LaGuardia Act. This

Court, to our knowledge, has never defined a dispute as a minor

one under the Railway Labor Act so as to nullify the force of the

Norris-LaGuardia Act. The Chicago River case concerned an ad-

mitted minor dispute. In the Telegrapher’s case, supra, 362 U. S.

330, this Court rejected the carrier notion that a dispute was a

minor one to which Norris-LaGuardia was inapplicable. In view

of the large number of post-Chicago River lower court decisions,

many of which appear irreconcilable, relating to major versus

minor disputes in the context of the right te injunctive relief (see,

e.g., eases cited, n. 1, p. 8, supra), this Court should grant certio-

rari to review a concept so vital to the administration of the RLA

and the Norris-LaGuardia Act. We observe also that in the

Rutland Railway case, n. 1, p. 8, supra, Mr. Justice (then

Circuit Judge) Marshall stated in dissent that the major-minor

dichotomy ‘‘is of such generality that it fails to pose

the problems we must solve in any meaningful fashion.’’ 307

F. 2d at 42. <A leading labor law scholar, Benjamin Aaron, has

stated that ‘‘the changing character of disputes arising under the

RLA has tended to destroy whatever useful distinctions were

originally: implied by the words ‘major’ and ‘minor’’’ and the

classification of such disputes in these terms has become ‘‘a sterile

exercise in logomachy.’’ Aaron, The Labor Injunction Reap-

praised, 14 Labor L. J. 41, 62, 63 (1963). The distinction is

‘‘illusive’’ and requires ‘‘clarity’’ by this Court. Zd. at 58. Other

commentators have also suggested the need for new guidelines by

this Court. See, e.g., Note, Railway Labor Act—Major and Minor

Disputes, 31 J. of Air Law & C. 371, 376 (1965) ; Comment, Juris-

diction of Federal Courts to Enjoin. Labor Disputes, 32 Tenn.

TEAST RE

APR PN TPA: BNET

SLL, PETER LLL LIE LE LOL EI PULLER LSI LMI IEE OT LON

10

The court below, by ignoring the plain language of § 6

and Burley, converted this dispute into a minor one and

revived the historic abuses of the judicial process against

which the Norris-LaGuardia Act was directed. It is

hardly necessary to remind this Court of the importance of

the national policy expressed in the Norris-LaGuardia Act.

This Court has said that if the scope of the Norris-

LaGuardia Act is to be narrowed that is a role not for the

courts but for Congress which made coverage of the Act

‘‘broad because it wanted it to be broad.’’ Order of Rail-

road Telegraphers v. Chicago & N. W. R. Co.. 362 U. S. 330,

335-6, 342 (1960).

The principal case relied upon by the Court of Appeals,

Transportation-Communications Employees Union v. Union

Pacific R. Company, 385 U. S. 157 (1966), is inapposite.

There this Court was concerned with an admitted minor

dispute and the issue was whether the NRAB had to con-

sider the existing agreements of two contesting unions in

L. Rev. 264, 274 (1965). The ‘‘major-minor’’ dichotomy has

resulted in ‘‘ineredible judicial contortions,’’ ‘‘an incredible

muddle,’’ ‘‘casuistry’’ and ‘‘fumbling misclassifications of ‘major

disputes’ into ‘minor disputes’ * * *’’ Kroner, Interim Injunctive

Relief Under the Railway Labor Act: Some Problems and Sug-

gestions, 18th Annual Conference on Labor, New York University

(1966) 179, 183, 184, 188, 189.

1. The decision below is not only contrary to the teachings of

Burley but also to decisions of other Courts of Appeals. See, ¢.9.,

Butte, Anaconda & P. Ry. v. BRT, 268 F. 2d 54 (9th Cir. 1959),

cert. denied, 361 U. S. 864 (carrier’s transfer of work from one

craft of employees to another was a major dispute) ; and United

Industrial Workers, etc. v. Board of Trustees, 351 F. 2d 183 (5th

Cir. 1965) (carrier’s termination of contract by going out of busi-

ness was a major dispute). Also, under the test enunciated by the

majority in Rutland Ry. Corp. v. B. L. E., 307 F. 2d 21 at 33-4

(2d Cir. 1962) the dispute here is “major” since the “* present

agreements . . . contain express provisions contrary to the posi-

tion taken by the railroad’’; and as Circuit Judge (now Mr.

Justice) Marshall observed in dissent, once the carrier served a

§ 6 notice seeking to terminate the agreement the dispute clearly

was major. 307 F. 2d 42, 45-8.

11

order to render a valid and enforceable award. In the

case at bar there is no conflict between existing agree-

ments. There was only one joint agreement governing the

work. It is an agreement, not a job, which has been ter-

minated. The question now is what the new seniority work

rules shall be as to how the same jobs shall be filled since

the agreement was terminated.

We do not believe that this Court should permit the

distortion of the T-C E Union doctrine to nullify the Norris-

LaGuardia Act—an issue not at all before the Court in that

case.!

Because of the interplay between the crafts of engineer

and firemen, tri-partite collective agreements are common.

Such agreements governing seniority, maximum and mini-

mum mileage, training, and promotion go back more than

a half century. Disputes concerning the making of such

agreements have been held to be non-justiciable by this

Court. General Committee, BLE v. Missouri-K-T R. Co..,

320 U. S. 323 (1940).

2. The Court of Appeals has erroneously decided an im-

portant question of federal law which has not been de-

cided. by this Court, namely, whether the decision of the

NMB, the agency charged by law with administering the

major dispute provisions of the Act, that a dispute is a

major one subject to the jurisdiction of the NMB and not

the NRAB, is to be given any weight by the courts.

After the BLF&E invoked the services of the NMB in

October, 1966, the BLE and the Milwaukee Road repeatedly

urged the NMB not to docket this case as a major dispute

under the Act (Fdgs.718, A 11-12). They urged that

what was involved was an interpretation of contract and

1. In Brotherhood of Railroad Signalmen v. Southern Ry. Co.,

389 U. S. 958 (1967), Chief Justice Warren, Mr. Justice Fortas

and Mr. Justice Marshall would have granted certiorari for the

reasons stated in the dissent in T-C E U.

peat

apts ARAN AMOI IM POON RELL R LY BILL ELI MO EE eT ee

12

therefore a minor dispute over which the NMB had no

jurisdiction. After investigation, the NMB made a de-

termination that the dispute arose out of the BLE’s notice

to cancel the 1956 agreemen. It so advised the parties on

December 14, 1966: ‘‘The Board has previously ruled

that similar notices should be handled by the Board as a

notice under $6 of the Act * * *’’. The NMB thus treated

the rotic. to cancel as a notice under § 6 of the Act. (Fdgs.

{1 11-12, A. 11). The NMB then proceedec to perform its

duties under the Act, and after unsuccessful efforts to

mediate or obtain an agreement to arbitrate, advised the

parties of the status quo provisions of the Act and closed

its files.

Charged with the duty of administering the major dis-

pute provisions of the Act, the NMB’s decision is entitled

to weight. It is a long-established rule that courts must

give ‘‘appropriate weight to the judgment of those whose

special duty is to administer the questioned statute.’’

N. L. R. B. v. Hearst Publications, 322 U. S. 111, 131

(1944).

The NMB has various functions under the Act. See § 5,

First. It is aware that if it determines a dispute is major

rather than minor there is greater ‘‘ potential for interrupt-

ing commerce’’.!

During 1967 the NMB handled almost 1,000 cases of all

types, two-thirds of which were ‘‘major disputes’’ or

mediation cases of the type involved here. Since 1934,

the Board has handled over 12,000 cases, two-thirds of

which were mediation cases. 33rd Annual Report, supra,

1. 33rd Annual Report of the National Mediation Board for

the fiscal year ending June 30, 1967, p. 4.

The NMB is aware that the parties sometimes try to have their

ease viewed through ‘‘major or minor lenses’’ instead of ‘‘ ordinary

glasses’’ [Cf. United Industrial Workers v. Board of Trustees,

351 F. 2d 183, 189 (5th Cir., 1965)]. See the NMB’s 33rd Annual

Report, supra, pp. 35-6.

13

pp. 29-32, 89. This record establishes the NM3’s creden-

tials to determine whether a dispute is major or minor.

The Board has treated the notice in this case, just as it

has treated similar notices in other cases, as a major dis-

pute falling under § 6 of the Act.

The district court gave weight to the determination of

the NMB. It recognized the obvious fact that as the na-

tional agency concerned with avoiding strikes and lock outs

in the railroad industry the NMB would go slow in char-

acterizing a dispute as a major dispute unless it was clearly

such a dispute.

The court below did not confront the issue of the NMB’s

administrative ruling in this case or the NMB’s past prac-

tice in similar cases. Indeed, its opinion conspicuously

fails to state that the NMB determined that the dispute

here involved was a major dispute. But silence cannot

sweep away the NMB past practice and present deter-

mination of its own jurisdiction. We are aware of no

prior case in which a court has overturned—overtly or

sub-silencio—a decision of the NMB as to its jurisdiction

under §§ 5 and 6 of the Act. ‘‘Primary jurisdiction to de-

termine whether a dispute is minor or major resides in the

agencies established by the Railway Labor Act.’’ Balti-

more & O. Rd. v. United Railroad Workers, etc., 271 F. 2d

87, 91 (2nd Cir. 1959), vacated on other grounds, 364 U. S.

278 (1960). And when the NMB has refused to docket a

dispute as a major one and referred the parties to the

NRAB, the courts have followed the NMB’s decision. Nor-

folk @ P. B. L. R. R. v. B. R. T., 248 F. 2d 34, 43-4 (4th

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

Topeka & Santa Fe R. Co. v. BLF&E (C. D. Calif, 1968),

n. 1, p. 17, infra.

This issue has continuing importance to the orderly ad-

ministration of the Act.’ If the lower courts are to be

1. See, .g., the Santa Fe case, n. 1, p. 17, infra.

SoC WES a AAI URAL ARE AMES NRE GMI LES te oes seo nt MeL CR SIE AEA Re OA EIR IPR BI, ai eal Rl aR IT Pt Te

14

free to ignore or give weight to the NMB’s present and

long-standing administrative practice the mandate should

come from this Court.

Surely, this Court should not countenance a discrimina-

tory judicial practice which gives effect only to NMB de-

cisions ‘that a dispute is minor and hence enjoinable. The

erosion of the Norris-LaGuardia Act, see point 1 above, is

in part a result of this practice.

3. The Court of Appeals’ decision is in direct conflict

with recent decisions of the Courts of Appeals for the

Second Circuit and the District of Columbia Circuit on an

issue of great importance in the day-to-day interpretation

and application of the Railway Labor Act: do the ‘‘rates

of pay, rules, or working conditions’’ set forth in a termi-

nated agreement continue in effect until changed by agree-

ment or im accordance with $6 and related provisions of

the Act?

The Court of Appeals has held that even though the

agreement is silent as to what rules and working conditions

shall be in effect after termination, the employer may never-

theless impose rules or working conditions which were in

effect prior to the making of the terminated agreement.’

1. The rationale of the decision below is found in two para-

graphs (A7):

‘‘The only change in working corditions which could be

effected by a termination of the 1956 tri-partite agreement

was one whose occurrence was within the contractual con-

templation of the parties. The agreement made specific pro.

vision for its termination. And it had merely withdrawn

one isolated factor of working conditions, the making of the

work assignments at Three Forks, from the method prevailing

under the existing contractual relationships between the rail-

road and BLF&E, and BLE, respectively.

‘*In our opinion a dispute as to whether a termination of

the 1956 agreement has the effect of restoring the engineers’

extra board ut Three Forks, and whether such a restoration

constitutes a ‘new’ working condition, presents only issues

which are to be resolved by reference to and interpretation of

A TIER RADAR AER ANE

15

This holding is in direct conflict with Manning v. American

Airlines, Inc., 221 F. Suvp. 301 (S. D. N. Y. 1963) affirmed,

329 F. 2d 32 (2d Cir.), cert. dented, 379 U. S. 817 (1964) ;

and Brotherhood of Railroad Trainmen v. Akron and B. R.

R. Co. et al., 385 F. 2d 581 (D. C. Cir. 1967), cert. denied,

390 U. S. 923 (1968).

These cases hold that under the scheme of the Railway

Labor Act even though an agreement is terminated by its

own terms or notice of termination, the work rules pro-

vided for in that agreement do not terminate. They can be

changed after expiration only by agreement or processing

under §6 of the Act. In Manning the flight engineers and

American Airlines had in force both a basic agreement and

a separate agreement for the check-off of union dues. The

latter provided that it was to ‘‘continue in full force and

effect until April 30, 1963, and shall be subject to renewal

thereafter only by mutual agreement of the parties hereto.’’

On February 28, 1963 both the union and the carrier served

a § 6 notice with respect to the basic agreement. On March

8, 1963, the union served another § 6 notice with respect to

the dues check-off agreement. That notice proposed a

change which would make the duration of the dues check-off

agreement the same as that of the basic agreement. The

carrier took the position that the check-off agreement would

expire by its own terms on April 30, 1963 and thereafter

the carrier discontinued the dues check-off. The district

court issued an injunction requiring the carrier to continue

the check-off under the terms of the old agreement even

though it had expired. The district court rejected the air-

the related collective bargaining agreements, as well as the

practice, usage and custom pertaining to all such agreements.

This is particularly true where a jurisdictional dispute over

work assignments is involved. The rationale and teaching of

Transportation-Communication Employees Union v. Union

Pacific Railroad Co., 385 U. S. 157, 87 S. Ct. 369, 17 L. Ed.

2d 264, is pertinent in this connection.’’

SEL Rab ES 1 TRE LE es .

16

lines’ argument that to require continuance of the dues

check-off would in effect extend the old agreement or make

a new agreement for the parties because the old agreement

definitely expired on April 30, 1963.

The Court of Appeals affirmed. It rejected the carrier’s

minor dispute contention and held—in direct conflict with

the decision below—that the question of what work rules

will be in effect upon the termination of an agreement in-

volves ‘‘not ‘the interpretation or application’ of the

* * * agreement, which admittedly expired, * * * but the

application of § 6 of the Railway Labor Act.’’ 329 F. 2d at

35. For the convenience of the Court the Manning opinion

is reproduced in the appendix hereto, pp. A 22 to 26, infra.

The Manning doctrine formed the rationale of Brother-

hood of Railroad Trainmen v. Akron and B. B. R. Co., 385

F. 2d 581, 593 (D. C. Cir. 1967), cert. denied, 390 U. S. 923

(1968). In our opinion the doctrine was there unsoundly

extended to justify holding that work rule changes ordered

by a compulsory arbitration board authorized by Congress

to fix terms only for a two-year period continued in effect

after the two-year period until changed by agreement or

by exhausting the processes of the Act. There the unions

urged, as does the railroad here, that the work rules in

effect prior to the award sprung back into life upon the

award’s expiration. 385 F. 2d at 593. In that case there

was substantial evidence of the intent of the President,

the Congress and the parties that the old rules would re-

sume automatically upon the award’s expiration.’ The

Court of Appeals in Akron stated there was ‘‘logic’’ to the

unicns’ position, but rejected it under the Manning doc-

trine, 385 F. 2d at 593, and this Court denied certiorari.”

1. See Petition for Writ of Certiorari of the BLF&E, October

Term 1967, No. 859, pp. 4-13.

2. The opinion of the court below fails to meniion either of the

foregoing cases although both were cited to the court in briefs and

ita ee | 4 eat em

17

In the instant case the 1956 agreement provided for

termination but made no provision for the rules to govern

upon termination.’ To fill that vacuum the lower court

jumped to the conclusion that ‘‘the only change in working

conditions which could be effected by termination of the

1956 tri-partite agreement was one whose occurrence was

within the contractual contemplation of the parties.’’ In

substance, the court concluded that restoration of the rules

in effect prior to the 1956 agreement may not constitute

new working conditions because the new rules are the same

as the old rules.

Under the Manning and Akron cases, this position does

not have any foundation in the Railway Labor Act. Even if

we assume that the post-agreement rules are the same as

the pre-agreement rules, they are different rules than those

provided for in the terminated agreement.

The crucial fact is there is no provision in the cancelled

agreement authorizing restoration of the pre-agreement

rules or any other rules. Nor is there any basis for the

court’s conclusion that there is validity to the railroad’s

contention that the cancellation of the agreement meant

oral argument, and the railroad in its brief helow stated the

Manning case was ‘‘most heavily’’ relied upon by petitioners.

1. It is possible for parties to a collective agreement to provide

a method for termination and also to provide what rules shall be in

effect upon termination. In such a case the doctrine of the Manning

case is inapplicable. Atchison, Topeka & Santa Fe Ry. Co. v.

Brotherhood of Locomotive Firemen and Enginemen (April 23,

1968, C. D. Calif. No. 68-332F), appeal dismissed. In that case a

tri-partite agreement provided: ‘‘This agreement * * * shall con-

tinue in effect for a period of two years and subsequent thereto

subject to the right of any of the parties * * * to serve ten days’

written notice of desire to return to the schedule as printed, where-

upon at the expiration of the ten days, schedule rules will auto-

matically go into effect.’’ The NMB held that it could find ‘‘no

basis for docketing the request’’ as a major dispute under § 6 of

the Act. The district court gave weight to the NMB’s decision and

held the dispute was a minor one.

BS oA SS 5 AERP OE Cd AT RMT at

18

only reverting to the conditions which prevailed prior to

November, 1956. The railroad & BLE repudiated the court

below by their agreement made several days prior to the

decision of the lower court providing a method of assigning

engineers different from the rules which existed prior te

1956 and different from the 1956 agreement itself.

CONCLUSION.

For the reasons hereinatjuve stated, petitioners respect-

fully request that this Court issue a Writ of certiorari to

the Court of Appeals for the Seventh Circuit and reverse

the judgment of that Court.

Respectfully submitted,

Auex ELson,

Haroxtp C. HEtss,

Witiarp J. Lassers,

Aaron S. Wo rr,

Attorneys for Petitioners.

Harotp C. Hess,

Heiss, Day & BENNETT,

622 Keith Building,

Cleveland, Ohio 44115.

ALEX ELson,

Wiuarp J. Lassers,

Aaron S. Wotrr,

Exson, Lassers aNnD Wo LFF,

11 South La Salle Street,

Chicago, Illinois 60603.

November 4, 1968.

1. As set forth in the Statement of Facts, this agreement (A

27, infra) was not brought to the lower court’s attention and

the petitioners were unaware of its existence until very recently.

The validity of the new agreement is not before the Court: £.v.,

we exclude from consideration the fact that the agreement was

made in violation of the agreement of the parties to maintain the

pee quo, 1.e., the 1956 agreement pending disposition of the

appeal,

Al

APPENDIX.

OPINION BELOW.

In THE Unrrep States Court or APPEALS

For the Seventh Circuit.

July 2, 1968.

Before Castie, Chief Judge, and Kitny and Farrcaap,

Circuit Judges.

Caste, Chief Judge. The plaintiff-appellant, Chicago,

Milwaukee, St. Paul and Pacific Railroad Company, in-

stituted this action in the District Court against the de-

fendants-appellees, Brotherhood of Locomotive Firemen

and Enginemen (BLF&E) and the Brotherhood’s Vice

President, M. A. Ross, and General Chairman, W. H.

Wilkerson. Subsequently, a motion by the plaintiff rail-

road to join the Brotherhood of Locomotive Engineers

(BLE) as a defendant! was allowed by the District Court.

The railroad’s complaint sought injunctive relief against

a threatened strike or work stoppage by BLF&E. The

court issued a temporary restraining order which also

required the railroad to maintain the status quo, and

following a combined hearing on the issuance of a pye-

liminary injunction and upon the merits, made and en-

1. BLE although nominally designated a defendant supported .

the position taken by the railroad. On appeal it was permitted to

file a brief amicus curiae.

A2

tered findings of fact and conclusions of law upon which

it based a judgment order dismissing the railroad’s com-

plaint. The railroad appealed.

The District Court found that the dispute out of which

the litigation arose related to and was generated by an

attempt by the railroad, at the request of BLE, to cancel

a November 1, 1956, tri-partite agreement between the

railroad, BLF&E and BLE governing the work assign-

ment seniority of engineers and firemen at Three Forks,

Montana, in the railroad’s Kast Rocky Mountain Seniority

District, and to re-establish an engineer’s extra board

at the Three Forks, Montana, point on its lines. The

court concluded that inasmuch as the dispute involved

a change in working conditions of employees represented

by BLF&E it was a major dispute within the meaning

of the Railway Labor Act and since the mediation ser-

vices of the National Mediation Board, invoked by

BLF&E, had been exhausted without resolving the dis-

pute the BLF&E was free to resort to self-help, and the

court was without jurisdistion to grant injunctive relief,

such jurisdiction having been withdrawn by the Norris-

LaGuardia Act, 29 U. S. C. A. § 104.

The sole contested issue on appeal is whether under

and for the purposes of the Railway Labor Act (45 U.S.

C. A. § 151 et seq.).the dispute here involved is a ‘‘major’’

dispute or a ‘‘minor’’ dispute. If it is the latter the dis-

pute is a matter subject to submission to the National Rail-

road Adjustment Board for final and binding resolution—

a form of compulsory arbitration—and the Norris-La-

Guardia Act does not bar injunctive relief. Brotherhood

of Railroad Trainmen v. Chicago River & Ind. R. R. Co.,

353 U. S. 30, 77 S. Ct. 635, 1 L. Ed. 2d 622.

The difference which distinguishes ‘‘minor’’ disputes,

over which the National Railroad Adjustment Board has

FS ca Ag 2 ae EEE.

A3

exclusive jurisdiction, from ‘‘major’’ disputes, the pro-

cedures for resolution of which are prescribed in § 6 of

the Railway Labor Act, 45 U. S. C. A. § 156, is set forth

in Elgin, J. € EH. Ry. Co. v. Burley, 325 U. S. 711, 722-724,

65 S. Ct. 1282, 1289-1290, 89 L. Ed. 1886. In Hilbert v.

Pennsylvania R. R. Co., 7Cir., 290 F. 2d 881, 883, this

Court characterized that difference as follows:

‘‘*Major disputes’ encompass those differences

arising out of proposals for new contracts or of

changes in existing contractual or legal obligations

and relations. They arise where there is no collective

bargaining agreement or where it is sought to change

the terms of one. In such a case, the issue cannot

be resolved by reference to an existing agreement.

‘* “Minor disputes’, on the other hand, are grievances

or other differences arising out of the application

or interpretation of an existing collective bargaining

agreement. The dispute relates either to the meaning

or proper application of a particular provision with

reference to a specific situation. See Elgin, J. é E.

Ry. Co. v. Burley, 325 U. S. 711, 722, 65 S. Ct. 1282,

89 L. Ed. 1886.’’

But, as recently observed in Southern Railway Company

v. Brotherhood of Locomotive Firemen and Enginemen,

D. C. Cir., 384 F. 2d 323, 327:

‘‘This distinction, however, like many others in the

law, is more easily stated than applied.’’

With the above quoted definitions and admonition in

mind we turn to consideration of what the record shows

with respect to the nature and background of the dispute

here involved.

For many years prior to 1956, there existed on the

Milwaukee railroad a seniority district known as the East

Rocky Mountain Seniority District with headquarters at

Three Forks, Montana. Railroad engineers on this senior-

A4

ity district are represented by BLE. Firemen on this dis-

trict are represented by BLF&E. It has been the custom

for employees hired as firemen, after training, education,

experience and examination required by the railroad, to

be promoted from firemen to engineers. After such pro-

motion, however, employees serve as engineers only at

such times as engineer openings are available, by virtue of

seniority rules, and when no such openings are available,

they serve as firemen. Upon such promotion, when the

needs of the service required, firemen would serve first on

the engineers’ ‘‘Extra Board’’ and thereafter, when their

seniority warranted, would receive permanent assignments

as engineers. Engineers on the extra board had no per-

manent assignments but served when a regularly assigned

engineer was unavailable for service due to sickness, acci-

dent, holiday, vacation, or other reasons.

Thus, for many years the interplay? between crafts of

engineers and firemen, the promotion and demotion of

engineers and firemen, their dual seniority rights, the ebb

and flow or movement from the firemen’s craft up to the

engineers’ craft, have been controlled by rules relating

to extra boards.

In about 1956 work opportunities for engineers on the

Three Forks engineers’ extra board declined due to re-

placement of steam power by diesel power and other factors.

The result was that engineers on the extra board had sub-

stantially less work opportunities. At the same time there

were substantial employment opportunities for firemen

who in general had less seniority than engineers. Upon

request of BLE and after a vote authorizing such action

had been taken of all firemen and engineers on the seniority

2. This interplay has been the subject of a number of decisions.

See: General Committee, B.L.E. v. Missouri-K-T. R. Co., 320 U. S.

323; Hooser v. Baltimore & Ohio R. Co., 7 Cir., 279 F. 2d 197;

McElroy v. Terminal R. R. Ass’n of St. Louis, 7 Cir., 392 F. 2d 966.

A5

district, BLE, BLF&E and the railroad entered into a

tri-partite agreement which became effective November 1,

1956. The agreement provided, in general, that the engi-

neers’ extra board at Three Forks would be abolished and

that the engineers on that extra board would work as fire-

men. When there was need for services of an engineer

who formerly would have been taken from the engineers’

extra board, the senior firemen available would be called

for the position. The agreement thus established a vari-

ance from the normal rules governing the method of han-

dling work assignments involving interplay and ebb and

flow between the crafts.

The agreemeni contained the following provision:

‘“‘K. This agreement effective November 1, 1956, ap-

plies only on the East Rocky Mountain Seniority Dis-

trict, and is subject to cancellation on 30 days’ written

notice by any party signatory hereto.’’

On September 7, 1966, BLE served notice on the railroad

to cancel the agreement of November 1, 1956, according

to paragraph K thereof, and to restore the engineers’ extra

board at Three Forks, Montana, effective October 10, 1966.

BLF&E protested cancellation of the agreement claiming

that it could not be terminated except with the concurrence

of all the parties thereto and that a referendum of all

engineers and firemen at Three Forks, was necessary in

order to terminate the agreement. On October 4, 1966,

BLF&E filed an application with the National Mediation

Board for its mediation services in connection with the

dispute over the proposed cancellation and restoration of

the extra board. On October 10, 1966, the BLF&E filed

a complaint in the District Court seeking to enjoin the

railroad from cancelling the agreement until all provisions

of the Railway Labor Act had been exhausted.* The Na-

3. BLF&E’s October 10, 1966, action was dismissed without

prejudice on January 3, 1968.

— Pe rare ee ewe eT ees TS

A6

tional Mediation Board terminated its services on Novem-

ber 7, 1967. On January 3, 1968, the railroad filed an ex

parte submission of the dispute with the National Railroad

Adjustment Board, and on January 8, 1968, advised that

effective January 11, 1968, the engineers’ extra list at

Three Forks would be restored. On January 11, 1968, the

BLF&E commenced picketing which had the effect of stop-

ping certain portions of the railroad’s operations, and

the complaint in the instant action was filed.

The findings of the District Court disclose that BLF&E’s

original protest to the railroad concerning the cancellation

of the 1956 tri-partite agreement which created a variance

i. the method of handling work assignments, applicable

solely at Three Forks, was made on the ground that te>-

mination of the agreement required the concurrence of all

the parties thereto and a favorable referendum of all en-

gineers and firemen at Three Forks. In view of the pro-

vision made in paragraph K of the agreement, this, of

course, involved only a matter of contract interpretation—

a classic example of a minor dispute.

On brief in this Court BLF&E assames, arguendo, that

the railroad did have the right to terminate the 1956 agree-

ment and that it has been effectively cancelled, but asserts

that such cancellation does not give the railroad ‘‘the right

to impose new working conditions on the firemen’’ by

re-establishing the engineers’ extra board at Three Forks

without making a new agreement or exhausting the major

dispute provisions of the Railway Labor Act. It is on the

basis of the premise that the railroad sought to impose

‘‘new working conditions’’ following termination of the

1956 agreement that BLF&E concludes that the dispute

is a major dispute and, consequently, when thirty days

elapsed after the National Mediation Board terminated its

services, without the establishment of an emergency board,

AZ7

the railroad was free to re-establish the engineer’s extra

board at Three Forks, but BLF&E is authorized to resort

to a strike without interference by injunction.

The only change in working conditions which could be

effected by a termination of the 1956 tri-partite agree-

ment was one whose occurrence was within the contractual

contemplation of the parties. The agreement made specific

provision for its termination. And it had merely with-

drawn one isolated factor of working conditions, the mak-

ing of the work assignments at Three Forks, from the

method prevailing under the existing contractual relation-

ships between the railroad and BLF&E, and BLE, re-

spectively.

In our opinion a dispute as to whether a termination

of the 1956 agreement has the effect of restoring the

engineers’ extra board at Three Forks, and whether such

a restoration constitutes a ‘‘new’’ working condition, pre-

sents only issues which are to be resolved by reference

to and interpretation of the related collective bargaining

agreements, as well as the practice, usage and custom per-

taining to all such agreements. This is particularly true

where a jurisdictional dispute over work assignments is

involved. The rationale and teaching of Transporation-

Communication Employees Union v. Union Pacific Rail-

road Co., 385 U. S. 157, is pertinent in this connection.

It was there pointed out (385 U. S. pp. 160-161):

‘*A collective bargaining agreement is not an ordi-

nary contract for the purchase of goods and services,

nor is it governed by the same old common-law con-

cepts which control such private contracisc. John

Wiley & Sons v. Livingston, 376 U. S. 543, 550; ef.

Steele v. Louisville & N. R. Co., 323 U. S. 192. *...

({)t is a generalized code to govern a myriad of

eases which the draftsman cannot wholly anticipate.

. . « The collective agreement covers the whole em-

ployment relationship. It calls into being a new com-

Pe EEE TRE tg TT eS ee OE RE eee ee eee ae ee Rok PNET Salts PS a te oO aR LRT li On! Move

A8

mon law—the common law of a particular industry

or of a particular plant.’ United Steelworkers of

America v. Warrior & Gulf Nav. Co., 363 U. S. 574,

578-579. In order to interpret such an agreement it

is necessary te consider the scope of other related

collective bargaining agreements, as well as the prac-

tice, usage and custom pertaining to all such agree-

ments. This is particularly true when the agreement

is resorted to for the purpose of settling a jurisdic-

tional dispute over work assignments.”’

We therefore conclude that the dispute here involved is a

minor dispute.

Accordingly, we hold that the District Court erred in

concluding that the Norris-LaGuardia Act, 29 U. S. C. A.

§ 104, deprived it of jurisdiction to entertain the railroad’s

complaint for injunctive relief.

A motion of the defendants-appellees to strike a por-

tion of the reply brief of plaintiff-appellant as not being

addressed to an issue within the scope of the appeal, nor

directed to matter in reply to questions discussed in ap-

pellees’ brief, was taken with the case. Inasmuch as our

disposition of the appeal is in no manner grounded on a

resolution of that issue we decline to extend this opinion

to encompass the discussion an expository ruling on the

motion would necessarily entail. The basis of our opinion

makes the matter of no import. We treat it as being moot.

The judgment order of the District Court dismissing the

plaintiff-appellant’s complaint is reversed, and the cause

is remanded to the District Court for further proceedings

consistent herewith.

REVERSED AND REMANDED.

a Mot ec tls tora _— hs

seh thle ALS aad alte, Geren nde ORG

A9

FINDINGS OF FACT AND CONCLUSIONS OF LAW

OF THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS.

This cause coming on for hearing on motion of plaintiff,

Chicago, Milwaukee, St. Paul and Pacific Railroad Com-

pany, a corporation, for a preliminary injunction, and the

Court having considered Briefs and Memoranda; and hav-

ing heard testimony and oral arguments of counsel; and

being fully advised; makes the following Findings of Fact,

and states the following Conclusions of Law:

Finpinecs or F'act.

1. This suit is brought under the Interstate Commerce

Act, the Railway Labor Act, and 28 U.S. C., Sections 1331

and 1337. The amount in controversy exceeds the sum of

Ten Thousand Dollars ($10,000.00), exclusive of interest

and costs.

2. The plaintiff, Chicago, Milwaukee, St. Paul and

Pacific Railroad Company (hereinafter referred to as the

Milwaukee Road), is a common carrier within the meaning

of the Railway Labor Act, with its principal office and

place of business in Chicago, Cook County, Illinois.

3. The defendant, Brotherhood of Locomotive Firemen

and Enginemen (hereinafter referred to as the RLF&B),

is an unincorporated labor organization within the mean-

ing of the Railway Labor Act, and is the recognized collec-

tive bargaining representative of the craft or class of

locomotive firemen employed by the Milwaukee Road.

4. The defendant, Brotherhood of Locomotive Engi-

neers (hereinafter referred to as the BLE), is an un-

incorporated labor organization within the meaning of the

BPRS

aT nn Oe A LT dat se MG AN, RE TA Lines Na 6 IR MET MRE a sina" wet eer BANS vey

A10

Railway Labor Act, and is the duly certified collective

bargaining representative of the craft or class of locomo-

tive engineers employed on the Milwaukee Road.

5. The plaintiff, Milwaukee Road, the defendant

BLF&E and the defendant BLE are parties to an Agree-

ment dated the 1st day of November, 1956.

6. The agreement concerns the method of filling engi-

neers’ job vacancies and provides for abolishing the engi-

neers’ extra list at Three Forks, Montana. Paragraph K

of the agreement states:

‘““K. This agreement effective November 1, 1956,

applies only to the East Rocky Mountain Seniority

District, and is subject to cancellation on 30 days

written notice by any party signatory hereto.’”

7. On or about September 7, 1966, the local chairman

of the Engineers served notice on the Milwaukee Road

to cancel the agreement of November 1, 1956 according

to Paragraph K thereof, and to restore the engineers’

extra board at Three Forks, Montana, effective October

10, 1966. (Ex. B to BLF&E’s Ex. 1.)

8. On November 17 and 27, 1966, the BLF&E protested

the cancellation of the foregoing agreement contending

that said agreement could not be terminated except with

the concurrence of all the parties to the agreement and

that a referendum of all the engineers and firemen at

Three Forks was necessary in order to terminate the agree-

ment (Exs. C, D, and E to BLF&E’s Ex. 1).

9: On or about October 4, 1966, the BLF&E filed an

application with the National Mediation Board (herein-

after referred to as the NMB) for its mediation services,

1. A copy of the agreement is attached as an exhibit to the

answer filed by defendant BLF&E. It is exhibit A to BLF&E’s

exhibit 1. All 15 exhibits attached to BLF&E’s answer were

admitted into evidence on the stipulation of the parties.

Pee See es ;

All

which application set forth as the question in dispute:

‘‘Cancellation by the Brotherhood of Locomotive Engi-

neers of the Tripartite agreement dated November 1, 1956,

between the BLF&E, BLE and CMStP&P Railroad. The

1956 Agreement discontinued engineers’ extra board at

Three Forks, Montana, and cancellation would re-establish

engineers’ extra board at that point.’’ (Ex. F to BLF&EH’s

Ex. 1.)

10. On October 10, 1966, the BLF&E filed a complaint

against the Milwaukee Road in the United States District

Court for the Northern District of Illinois captioned

‘‘Brotherhood of Locomotive Firemen and Enginemen,

and William H. Wilkerson, plaintiffs, vs. Chicago, Mil-

waukee, St. Paul & Pacific Railroad Company, defendant,

No. 66 C 1812.’’ That complaint sought to enjoin the Mil-

waukee Road from cancelling the Three Forks agreement

until all provisions of the Railway Labor Act had been ex-

~ hausted. (BLF&E’s Ex. 1) On December 13, 1966, Engi-

neers were permitted to intervene as a defendant in that

action. From the time that suit was commenced on October

10, 1966 until January 3, 1968, when that action was dis-

missed without prejudice, all of the parties thereto agreed

to maintain the status quo.

11. The NMB treated the notice to cancel the agree-

ment as a notice under Section 6 of the Railway Labor

Act of an intended change in agreements affecting rates

of pay, rules, or working conditions (BLF&E’s Ex. 5).

12. The NMB proceeded in accordance with Section 5

of the Railway Labor Act which provides for using its

best efforts, by mediation, to settle disputes concerning

such proposed changes in working conditions. Such dis-

putes are major disputes within the meaning of the Rail-

way Labor Act.

13. At all times relevant, the BLE and the Milwaukee

Se RF RE Ge RANE Be aE ee wes) owen. whites ye .

A12

Road have contended that this was a minor dispute within

the meaning of the Railway Labor Act and that such a

dispute was not properly before the NMB. The BLF&E

at all times has contended that this was a major dispute

properly before the NMB.

14. By letter dated November 7, 1967, the NMB ad-

vised the parties that:

‘It is the judgment of our Board that all practical

methods provided in the Railway Labor Act for our

adjusting the dispute have been exhausted, without

effecting a settlement.

‘‘In these circumstances, notice is hereby served in

behalf of the Board that its services (except as pro-

vided in Section 5, Third, and in Section 10 of the

law) have this day been terminated under the provi-

sions of the Railway Labor Act.’’ (BLF&E’s Ex. 13)

15. The status quo provisions of the Railway Labor

Act are no longer in effect since the Court finds that 30

days have passed since the NMB terminated its services

and the parties have stipulated that the President has not

been notified concerning the establishment of an emer-

gency board under the provisions of Section 10 of the

Act and no such Board has been created.

16. On or about January 3, 1968, the Milwaukee Road

filed an ex parte submission with the National Railroad

Adjustment Board concerning this dispute. The parties

have stipulated that action by the Adjustment Board might

take 7 years. (A copy of the submission before the Ad-

justment Board is attached as Exhibit A to plaintiff’s

complaint.)

17. By letter dated January 8, 1968, the Milwaukee

Road edvised that effective January 11, 1968, it was going

to ‘‘re-establish the engineers’ extra list at Three Forks,

Montana,’’ thus giving effect to the cancellation of th>

tri-partite agreement. (BLF&E’s Ex. 15)

sie se

A13

18. At the same time on January 11, 1968, when the

Milwaukee Road made effective the changes in the work-

ing conditions of the employees represented by the

BLF&E, the BLF&E instituted picketing at certain points

on the plaintiff’s property (western region), which picket-

ing had the effect of stopping certain portions of plain-

tiff’s railroad’s operations.

19. If the Milwaukee Road were again to attempt to

place into effect the engineers’ extra list at Three Forks,

Montana, and if the BLF&E were to resume picketing or

strikes in response thereto, the Milwaukee Road would

suffer irreparable injury.

20. If the Milwaukee Road were to put into effect the

engineers’ extra list at Three Forks, Montana, employees

represented by the BLF&E who are employed by the Mil-

waukee Road at Three Forks, Montana, would suffer ir-

reparable injury.

21. The dispute giving rise to the actual and threatened

strike and picketing is a major dispute and not a minor

grievance under the Railway Labor Act.

22. This case involves or grows out of a labor dispute

within the meaning of the Norris-LaGuardia Act (29

U.S. C. $113).

ConcLusions oF Law.

1. The dispute out of which this litigation arises re-

lates to and was generated by the attempt by the Mil-

waukee Road, at the request of the Engineers, to cancel

the agreement of November 1, 1956 and to re-establish

an engineers’ extra board at Three Forks, Montana,

' thereby changing or attempting to change the working

conditions of the employees represented by the BLF&E.

2. The dispute here involved is a major dispute within

the meaning of the Railway Labor Act since it relates to

Pw eo nba 2 aR CNet tab! ten de ek Bat tem RAINS ON a NAS See . Se 2 th he ER:

Sta steal aati ae ine kasd CoN tone nts sem stbcheS Sgtate

Al4

an attempt by the carrier to change ‘‘rates of pay, rules

and working conditions.’’ 45 U. S. C. § 156; Elgin, Joliet

& Eastern Railway Company vs. Burley, 325 U. S. 711

(1945).

3. After the BLF&E invoked the services of the NMB

regarding the dispute here in question, the processes of

the Railway Labor Act were exhausted by the parties.

Since the Milwaukee Road and the BLF&E have ex-

hausted the processes of the Railway Labor Act, they are

free to resort to self-help. Brotherhood of Locomotive

Engineers vs. Baltimore & Ohio Railroad Company, 372

U. S. 284, 291 (1963).

4

4. The Court is without jurisdiction to grant injunc-

tive relief to plaintiff, such jurisdiction having been

withdrawn by the Norris-LaGuardia Act, 29 U. S. C.

§ 104.

5. The complaint fails to state a claim upon which

relief can be granted.

Enter:

/s/ ALEXANDER J. NAPOLI,

United States District Judge.

Dated: February 2nd, 1968.

RO Sess Ree TSS a ee eS eer Nm eee tiie Ba

Al5

STATUTES INVOLVED.

Norris-LaGuardia Act, §§1, 2, 4, 7, 8 and 13(a)(c); 29

U. S. C. §§ 101, 102, 104, 107, 108 and 113(a) (c):

Section 1. Norris-LaGuardia Act.

‘‘No court of the United States, as defined in this

chapter, shall have jurisdiction to issue any restrain-

ing order or temporary or permanent injunction in a

case involving or growing out of a labor dispute, ex-

cept in a strict conformity with the provisions of this

chapter; nor shall any such restraining order or tem-

porary or permanent injunction be issued contrary to

the public policy declared in this chapter.’’ 29 U.S. C.

§ 101.

Section 2. Norris-LaGuardia Act.

‘‘In the interpretation of this chapter and in deter-

mining the jurisdiction and authority of the courts of

the United States, as such jurisdiction and authority

are defined and limited in this chapter, the public

policy of the United States is declared as follows:

‘‘Whereas under prevailing economic conditions,

developed with the aid of governmental authority for

owners of property to organize in the corporate and

other forms of ownership association, the individual

unorganized worker is commonly helpless to exercise

actual liberty of contract and to protect his freedom

of labor, and thereby to obtain acceptable terms and

conditions of employment, wherefore, though he should

be free to decline to associate with his fellows, it is

necessary that he have full freedom of association,

self-organization, and designation of representatives

of his own choosing, to negotiate the terms and con-

ditions of his employment, and that he shall be free

from the interference, restraint, or coercion of em-

ployers of labor, or their agents, in the designation

A16

of such representatives or in self-organization or in

other concerted activities for the purpose of collec-

tive bargaining or other mutual aid or protection;

therefore, the following definitions of and limitations

upon the jurisdiction and authority of the courts of

the United States are enacted.’’ 29 U. S. C. $ 102.

Section 4. Norris-LaGuardia Act.

‘‘No court of the United States shall have jurisdic-

tion to issue any restraining order or temporary or

permanent injunction in any case involving or growing

out of any labor dispute to prohibit any person or

persons participating or interested in such dispute (as

these terms are herein defined) from doing, whether

singly or in concert, any of the following acts:

‘‘(a) Ceasing or refusing to perform any work or

to remain in any relation of employment;

‘‘(b) Becoming or remaining a member of any

labor organization or of any employer organization,

regardless of any such undertaking or promise as is

described in section 103 of this title;

‘‘(e) Paying or giving to, or withholding from,

any person participating or interested in such labor

dispute, any strike or unemployment benefits or in-

surance, or other moneys or things of value;

‘*(d) By all lawful means aiding any person par-

ticipating or interested in any labor dispute who is

being proceeded against in, or is prosecuting, any

action or suit in any court of the United States or of

any State;

‘‘(e) Giving publicity to the existence of, or the

facts involved in, any labor dispute, whether by adver-

tising, speaking, patrolling, or by any other method

not involving fraud or violence;

‘‘(f) Assembling peaceably to act or to organize

to act in promotion of their interests in a labor dis-

pute ;

‘*(o¢) Advising or notifying any person of an inten-

tion to do any of the acts heretofore specified;

renee end ote Seateailin nee - a 2

Al7

‘‘(h) Agreeing with other persons to do or not to

do any of the acts heretofore specified; and

**(i) Advising, urging, or otherwise causing or in-

ducing without fraud or violence the acts heretofore

specified, regardless of any such undertaking or prom-

ise as is described in section 103 of this title.’’ 29

U.S. C. § 104.

Section 7. Norris-LaGuardia Act.

‘*No court of the United States shall have jurisdic-

tion to issue a temporary or permanent injunction in

any case involving or growing out of a labor dispute,

as defined in this chapter, except after hearing the

testimony of witnesses in open court (with oppor-

tunity for cross-examination) in support of the alle-

gations of a complaint made under oath, and testimony

in opposition thereto, if offered, and except after

findings of fact by the court, to the effect—

‘‘(a) That unlawful acts have been threatened and

will be committed unless restrained or have been

committed and will be continued unless restrained, but

no injunction or temporary restraining order shall

be issued on account of any threat or unlawful act

excepting against the person or persons, association,

or organization making the threat or committing the

unlawful act or actually authorizing or ratifying the

same after actual knowledge thereof;

‘*(b) That substantial and irreparable injury to

complainant’s property will follow;

‘*(c) That as to each item of relief granted greater

injury will be inflicted upon complainant by tlie denial

of relief than will be inflicted upon defendants by the

granting of relief;

‘*(d) That complainant has no adequate remedy at

law; and

‘*(e) That the public officers charged with the duty

to protect complainant’s property are unable or un-

willing to furnish adequate protection.

‘*Such hearing shall be held after due and personal

Al&

notice thereof has been given, in such manner as the

court shali direct, to ali known persons against whom

relief is sought, and also the chief of those public

officials of the county and city within which the un-

lawful acts have been threatened or committed

charged with the duty to protect complainant’s prop-

erty: Provided, however, That if a complainant shall

also allege that, unless a temporary restraining order

shall be issued without netice, a substantial and irrep-

arable injury to compiainant’s prererty will be un-

avoidable, such & temporary restrainirg order may be

issued upon testimony under vath, sufficient, if s»s-

tained, te justify the court in issuing a temporary

injunction upon a hear.ng after notice. Such a tem-

porary restraining order shali be effective for no longer

than five days and sail become void at the expiration

of said five days. No temporary restraining order or

temporary injunction shall be issued except on con-

dition that complainant shall first fle an undertaking

with adequate security in an amount to be fixed by

the court sufficient to recompense those enjoined for

any los3, expense, or damage caused by the improvi-

dent or erreneous issuance of such order or injunc-

tion, including all reasonable costs (together with a

reasonable attoraev’s fee) and expense of defense

ayainst the order or against the granting of any

injunctive relief soughi in the same proceeding and

sudsequently deaied by the court.

‘The undertaking mentioned in this section shall

be understood to signify an agreement entered into

by the complainant and the surety upon which a

decree may be rendered in the same suit or proceed-

ing against said complainant and surety, upon a

hearing to assess damages of which hearing com-

plainant and surety shall have reasonable no. », the

said complainant and surety submitting themselves

to the jurisdiction of the court for that purpose. But

nothing iv this section contained shall deprive any

party having a claim or cause of action under or upon

such »ndertaking from electing to pursue his ordinary

remedy by suit at law or in equity.’’ 22 U. 8. C. § 107,

Crete vn Nana eel ieee,

Am Ba Gee ee eee li lh a AT. Ai tate ta eRe Ric lap Ee Vida g powers

A19

Section i3(a) and (c), Norris-LaGuardia Act.

‘‘(a) A case shall be held to involve or to grow out

of a labor dispute when the case involves persons who

are engaged in the same industry, trade, craft, or oc-

cupation; or have direct or indirect interests therein;

or who are employees of the same employer; or who

are members of the same or an affiliated organization

of employers or employees; whether such dispute is

(1) between one or more employers or associations of

employers and one or more employees or associations

of employees; (2) between one or more employers or

associations of employers and one or more employers

or associations of employers; or (3) between one or

more employees or associations of employees and one

or more employees or associations of employees; or

when the case involves any conflicting or competing

interests in a ‘labor dispute’ (as defined in this sec-

tion) of ‘persons participating or interested’ therein

(as defined in this secticn).

‘*(e) The term ‘labor dispute’ includes any contro- ;

versy concerning terms or conditions of employment,

or concerning the association or representation of per-

sons in negotiating, fixing, maintaining, changing, or

seeking to arrange terms or conditions of employment,

regardiess of whether or not the disputants stan’ iz

the proximate relation of employer and employ:2.’’

29 U. S. C. $ 113(a)(c).

er re eee ¥

es at ia ad

Railway Labor Act, §§2, First, Seventh, 3 First (i), 5,

First and 6; 45 U. S. C. §$ 152, First, Seventh, 153, First

(i), 155, First and 156:

Section 2, First, of the Railway Labor Act.

‘*First. It shall be the duty of all carriers, their

officers, agents and employees to exert every reason-

able effort to make and maintain agreements con-

cerning rates of pay, rules, and working conditions,

and to settle all disputes, whether arising out of the

application of such agreements or otherwise, in order

to avoid any interruption to commerce or to the opera-

A20

tion of any carrier growing out of any dispute between

the carrier and the employees thereof.’’ 45 U S. C.

§ 152, First.

Section 2, Seventh, of the Railway Labor Act.

‘*Seventh. No carrier, its officers, or agents shall

change the rates of pay, rules, or working conditions of

its employees, as a class as embodied in agreements

except in the manner prescribed in such agreements

or in Section 6 of the Act.’’ 45 U.S. C. § 152, Seventh.

Section 3, First (i) of the Railway Labor Act.

‘‘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—

* * #

(i) The disputes between an employee or

group of employees and a carrier or carriers

growing out of grievances or out of the interpreta-

tion or application of agreements concerning rates

of pay, rules, or working conditions, including

cases pending and unadjusted on the date of

approval of this Act, shall be handled in the usual

manner up to and including the chief operating

officer of the carrier designated to handle such dis-

putes; but, failing to reach an adjustment in this

manner, the disputes may be referred by petition

of the parties or by either party to the appro-

priate division of the Adjustment Board with a

full statement of the facts and all supporting data

bearing upon the disputes.’’? 45 U. S. C. § 153,

First (i).

Section 5, First, of the Railway Labor Act:

‘‘The parties, or either party, to a dispute between

an employee or group of employees, and a carrier may

invoke the services of the Mediation Board in any of

the following cases:

‘‘(a) A dispute concerning changes in rates of pay,

rules, or working conditions not adjusted by the par-

ties in conference.

A21

‘*(b) Any other dispute not referable to the Na-

tional Railroad Adjustment Board and not adjusted

in conference between the parties or where confer-

ences are refused.

‘‘The Mediation Board may proffer its services in

case any labor emergency is found by it to exist at

any time.

‘‘In either event the said Board shall promptly

put itself in communication with the parties to such

controversy, and shall use its best efforts, by media-

tion, to bring them to agreement. If such efforts to

bring about an amicable settlement through mediation

shall be unsuccessful, the said Board shall at once

endeavor as its final required action (except as pro-

vided in paragraph third of this section and in section

10 of this Act) to induce the parties to submit their

controversy to arbitration, in accordance with the

provisions of this Act.

‘Tf arbitration at the request of the Board shall

be refused by one or both parties, the Board shall at

once notify both parties in writing that its mediatory

efforts have failed and for thirty days thereafter,

unless in the intervening period the parties agree to

arbitration, or an emergency board shall be created

under section 10 of this Act, no change shall be made

in the rates of pay, rules, or working conditions, or

established practices in effect prior to the time the

dispute arose.’’ 45 U.S. C. § 155, First.

Section 6 of the Railway Labor Act.

‘*Sec. 6. Carriers and representatives of the em-

ployees shall give at least thirty days’ written notice

of an intended change in agreements affecting rates

of pay, rules, or working conditions, and the time and

place for the beginning of conference between the

representatives of the parties interested in such in-

tended changes shall be agreed upon within ten days

after the receipt of said notice, and said time shall

be within the thirty days provided in the notice. In

every case where such notice of intended change has

been given, or conferences are being held with refer-

Pe ee ae ee

A22

ence thereto, or the services of the Mediation Boarc

have been requested by either party, or said Board has

proffered its services, rates of pay, rules or working

conditions shall not be altered by the carrier until

the controversy has been finally acted upon as re-

quired by section 5 of this Act by the Mediation Board,

unless a period of ten days has elapsed after termina-

tion of conferences without request for or proffer of

the services of the Mediation Board.’’ 45 U. 8. C.

§ 156.

In THE Unrtep States Court oF APPEALS

For the Second Circuit.

Manning v. American Airlines, Inc.

329 F. 2d 32 (2nd Cir.) cert. denied, 379 U. S. 817 (1964).

Before Lumbard, Chief Judge, and Medina and Friendly,

Circuit Judges.

Friendly, Circuit Judge.

This appeal concerns another phase of the controversy

between American Airlines, Inc. and its flight engineers

discussed in the opinions in Ruby v. American Airlines,

Inc., 2 Cir., 329 F. 2d 11. At the same time that it signed

the basic agreement of May 1, 1958, with its Chapter of

Flight Engineers’ International Association, which was to

‘‘continue in full force and effect until April 30, 1963 and

shall renew itself without change until each successive

April 30 thereafter unless written notice of intended change

is served in accordance with Section 6, Title I, of the Rail-

way labor Act, as amended, by either party hereto at

least sixty (60) days prior to April 30 in any year after

April 30, 1962,’? American executed another agreement

for the check-off of union dues of engineers who signed

a prescribed authorization form. This check-off agree-

a en | Set Mig ediote em

A23

ment was to ‘‘continue in full force and effect until April

30, 1963, and shall be subject to renewal thereafter only

by riutual agreement of the parties hereto.’’ American’s

February 28, 1963 ‘‘opener’’ under the basic agreement

excluded ‘‘the dues-checkoff agreement which expires of

its own terms on April 30, 1963.’’ Although the Chapter’s

February 28 ‘‘opener’’ did not refer to the check-off agree-

ment, the Chapter gave notice on March 8 of a desire to

change the latter so that it would have a termination date

and a self-renewal clause similar tc the proposed new

basic agreement. American discontinued the check-off of

dues on May 1, 1963. In an action brought by the Chapter,

Judge Wyatt issued an order directing it to resume this,

from which it appeals.

Validity of the order turns primarily on § 6 of the Rail-

way Labor Act, 45 U.S. C. § 156. The first sentence of that

section requires 30 days’ written notice of ‘‘an intended

change in agreements affecting rates of pay, rules, or work-

ing conditions.’’ The second sentence says that where such

notice has been given, and in certain other instances not

here material, ‘‘rates of pay, rules, or working conditions

shall not be altered by the carrier’’ until the controversy

has been finally acted upon by the Mediation Board or

until a lapse of ten days after conferences without request

for or proffer of its services—events which have not here

occurred.

The propriety of an injunction to enforce the then unique

provisions of the Railway Labor Act for maintaining the

status quo while the parties to a labor dispute pursue

various stages of negotiation, mediation or arbitration, was

established long ago. Texas & N. O. R. R. v. Brotherhood

of Ry. Clerks, 281 U. S. 548, 565-566, 50 S. Ct. 88, 74 L. Ed.

608 (1930). Although the Texas & N. O. decision ante-

dated the Norris-LaGuardia Act, 29 U.S. C. §§ 101-115, the

debates on that Act, 75 Cong. Rec. 5503-04 (1932), made

Le.

A24

clear that it was not intended to apply to injunctions of

this nature. See Railroad Yardmasters v. Pennsylvania

R. R., 224 F. 2d 226 (3 Cir. 1955) ; Chicago, R. I. & P. R. R.

v. Switchmen’s Union, 292 F. 2d 61, 63-64, 66 (2 Cir. 1961),

cert. denied, 370 U. S. 936, 82 S. Ct. 1578, 8 L. Ed. 2d 806

(1962).

American’s principal argument, in which it is joined by

the Air Transport Association of America as amicus curiae,

is that $6 is inapplicable because the check-off is a ‘‘spe-

cialized’’ agreement with a fixed termination date and with-

out the self-renewal provisions of the basic agreement.

Stated so broadly the argument is wholly without force.

The effect of §6 is to prolong agreements subject to its

provisions regardless of what they say as to termination.

If the basic agreement of 1958 had no automatic renewal

clause, § 6 would have nonetheless applied; unless the terms

of the agreement were still to be followed there would be

‘‘an intended change,’’ which would bring into play the

thirty-day notice provision of §6 and with it the re-

quirement of the second sentence that the status quo be

maintained until compliance with all the demands of the

section was had. Indeed, the current effectiveness of the

wage and hour clauses of the basic agreement, which

American does not contest, is due solely to the second sen-

tence of § 6, since automatic renewal was prevented by the

openers.

A stronger form of the argument is that the contrast of

the language of the check-off agreement—‘‘shall be sub-

ject to renewal thereafter only by mutual agreement of

the parties hereto’’—with the automatic renewal language

of the basic agreement, and of two side agreements, war-

rants the conclusion that the parties did not mean § 6 to

apply. Passing the question whether and how parties

subject to the Railway Labor Act can lawfully make agree-

ments ‘‘affecting rates of pay, rules or working condi-

1» bn A nila IS Siti ae hadith NaN Sei

A25

tions’’ so that these will not be subject to § 6, as might be

convenient when unusual situations of short duration arise

within the period of a basic contract, we think the argu-

ment puts more strain on the words of the check-off agree-

ment than these will bear. In our view the different lan-

guage meant only that automatic renewal of the basic

agreement would not carry the check-off agreement along

with it. It is no answer that § 6 thus gives identical effect

to two intentionally dissimilar provisions; the very purpose

of $6 is to stabilize relations by artificially extending the

lives of agreements for a limited period regardless of the

parties’ intentions.

American was thus required to maintain the check-off

if, but only if, this comes within the phrase ‘‘rates of pay,

rules, or working conditions’’—a phrase in $6 which

springs from the original Railway Labor Act of 1926, 44

Stat. 582, and was left unchanged when the Act was

amended in 1934, 48 Stat. 1197. We see little force in

American’s claim that Congress could not bave intended

a check-off agreement to be comprehended by these words

since §2 Fourth of the Railway Labor Act made all such

agreements unlawful until § 2 Eleventh was added in 1951,

64 Stat. 1238. A statute taxing ‘‘beverages,’’ enacted dur-

ing the prohibition era, would surely include hard drinks

when these became lawful, as well as soft ones. But the

question remains whether an agreement which, as American

argues, affects only the employees’ relations with their

union, as distinguished from matters such as hours, senior-

ity or safety, is a ‘‘working condition.’’

We are persuaded that it is. ‘‘Working conditions’’ is

a broad term. The Act uses the same phrase ‘‘rates of

pay, rules, or working conditions’’ in §§ 3 First (i) and 204,

45 U.S. C. §§ 153 First (i) and 184, relating to boards of

adjustment, where the desire was rather plainly to be as

comprehensive as possible; we find it difficult to believe

ee nee Te ee ee eee

‘lO RR RTE seu Ane Mi

A26

that if during the term of the agreement the Chapter had

complained of an inadequacy in the check-off and had re-

fused to submit the issue to a board of adjustment, Ameri-

can would not have thought itself entitled to the powerful

remedy which the Act gives when a union declines to ar-

bitrate such a dispute. See Brotherhood of Railroad Train-

men v. Chicago River & I. R. R., 353 U. S. 30, 77 S. Ct.

635, 1 L. Ed. 2d 622 (1937). The check-off has been held to

come within the provisions of the National Labor Rela-

tions Act, §§$ 8(a) (5) and 9(a), requiring an employer to

bargain with the employees’ designated representative ‘‘in

respect to rates of pay, wages, hours of employment, or

other conditions of employment.’’ N. L. R. B. v. Reed &

Prince Mfg. Co., 205 F. 2d 131, 186 (1 Cir.), cert. denied,

346 U. S. 887, 74S. Ct. 139, 98 L. Ed. 391 (1953) ; ef. Switch-

men’s Union of North America v. Southern Pac. Co., 253

F. 2d 81, 84 (9 Cir.), cert. denied, 358 U. S. 818, 79 S. Ct.

29, 2 L. Ed. 2d 60 (1958). The purpose of § 6 was to pre-

vent rocking of the boat by either side until the procedures

of the Railway Labor Act were exhausted; interpreting

‘‘working conditions’? to include an agreed check-off ac-

complishes that purpose better than a narrower construc-

tion.

American’s claim that the controversy was within the

exclusive jurisdiction of the board of adjustment under

§ 204 overlooks that what is here involved is not ‘‘the in-

terpretation or application’’ of the check-off agreement,

which admittedly expired on April 30, 1963, but the appli-

cation of §6 of the Railway Labor Act. The many other

arguments advanced do not warrant discussion.

Affirmed.

ea aS VINEE SR Ct alates

BA ti ee ARC ABE ENREN BR AAE l ri Bina Na Sees aren

A27

Chicago, Milwaukee, St. Paul and Pacific Railroad Company

374 Union Station Bldg.—Chicago, Illinois 60606

S. W. Amour

Vice President—Labor Relations

June 21, 1968

Mr. G. H. Russ,

General Chairman—BLE

4603 North 9th Street,

Tacoma, Washington.

Dear Sir:

In connection with the regulation of an engineers’ pool,

where no extra engineers’ board is maintained, in case of

an unfilled engineer vacancy in the pool, the engineer in

the pool standing next out will carry the vacant pool turn

with him as well as his own, and upon his return to the

home terminal the vacant turn will occupy the same rela-

tive position in the pool as before.

This understanding is effective July 1, 1968, and is sub-

ject to cancellation upon ten (10) days notice by either

party.

Will ycu kindly indicate your concurrence in the space

provided below.

Yours very truly,

S. W. Amour,

Vice President—Labor Re-

lations.

I Concur:

G. Russ,

Gencral Chairman—BLE.

ec: Mr. R. E. Delaney

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.

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