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.