# Petition for Writ of Certiorari — Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Milwaukee, St. Paul & Pacific Railroad > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0289%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 393 U.S. 1022 ## Text “QRpT wee FILED NOV 4 196g IN THE Supreme Court of the Unites States” “«" Octoser Term, 1968. No. [- 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0289%3A1. Public record. Not legal advice.