Petition for Writ of Certiorari — Board of Trustees v. United Industrial Workers of Seafarers International Union

Supreme Court brief1969

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INDEX ane

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Citations to Opinions Below ................eee000., 1.

PE Ce ecekeradsakerks ves send beak een eeeuees Z

I As oak ch aadkieb ack bbc akeewkeeee 2

Questions Presented ........ ER er rT rae 2

Statement ........... yr erer Peer re Peer rr ere 3

Reasons fer Granting the Writ ................. er, ial

- A..The injunction against state action violates the

controlling federal statute and conflicts with de-

cisions of this court and other circuits ......... 10

B. The grant of backpay without recourse to admin-

- istrative agencies violates the controlling federal

statute and conflicts with decisions of this court

RSE a ee. tee Oe a 23

ae ne pe hak ews ecceawe 40

a Cake bie 66 KAREN SK 0 ODEO EKO REO EM ORD la

Appendix A

Statutes Involved .............. PPE ee re Pe la

. Appendix, B :

Opinion of the U.S. District Court for the Southern

District of Texas. (September 11, 1964) ......... 2a -

Appendix C | 7

Opinion of the U.S. Court of Appeals, Fifth Circuit

(September 14, 1965) LAE ES ee Ted Pee ee 4a

Appendix D

Opinion of the U.S District Court for the Southern

District of Texas (June 20, 1966) ............... 24a

Shc es

Tadex Continued

Page

poe E ,

Opinion of the U.S. Court of Aobeds. Fifth Cireuit

(November 16, 1906) ..:.. vente teen eee eens 33a

Appendix F

Opinion of the U.S. District Court for the Southern

District of Texas (March CME ccc cnku awe es 37a

Appendix G

Opinion of the U.S. District Court for the Southern:

District of Texas. (May 3, | eS eee ~- 4a

Appendix H

Opinion of the U.S. Court of Appeals, Fifth Cireuit |

COE UGE Chk seek ic eusaneee oust ube eaess 69a

Appendix I |

CR inion of the National Labor Relations mense |

aul 1D, TDDB) cco cece ctccqencesweces wuveets 95a

CITATIONS

CaSsEs : 7

Ador Corp.; 150 N.L.R.B. 1658 (1965) ..... ear a 32.

Allied Mutual Insurance Co. v. Roberson, , 306. F.2d 430

PT ME Suid din ay ue kweeehoanck wees ca 19

Amaigamated. Clothing Workers v. Richman Bros. Co.,

Pe SO Ee NPE: hv v nc vecinnsee cen eeekenedss 20

American Airlines, Inc. v. Air Line Pilots Ass? n, 169 ©

eg Fk a See 12

Barnhart v. Western Maryland By. . 128 F. 2d 709 (4th —

. 1942) sash ieddh PeOCk GE te UAE RRR OSS 27

Beeler v. Chicago R.I. & P. Ry., 169 F.2d 557 (10th 3

az sid éert. denied, 335 U. S. 903 (1949) .....26, 30

Index Continued | | iii

Page

Brotherhood of Locomotive Beaten v. Central of

- Georgia Ry., 341 F.2d 213 (5th Cir. ); cert. denied,

382 FS. ot | ere rns eee rrr. 29

Brothérhood of Locomotive Engineers v. Missouri-K-T

R.R., 363 U.S. 528 (1960) .........-- phbeakn ns 12

Brotherhood of Railroad Trainmen v.J acksonville Ter-

minal Co., 37 U.S.L. Week 4247 (March 25, 1969)

14, 15,, 16, 17, 25, 26

- Buster v. Chicago, M., St. P. & P. R.R., 195 F.2d 73 bh olaan

CE, BON saree ois kia cer eeees chet ceae ss Teoes 27

California v. Taylor, 353 U.S. 553 (1957) . bee eiees bas 18

Capitai Service, Inc. v. NLRB, 347 U.S. 501° (1954) . 21, 22

Dayton Coal & Iron Corp., 101 N.L.R. B. 1952) . 38

Deena Artware, Inc., 112 N.L.R.B. 371 ( Bess tiaw 37, 38

Douglas v. City of Jeannette, 319 US. 157 (1943) .... 22

Druwhit Metal Products Co., 153 N.L.R.B. 346 (1965) 32

Efco Mgs. Ince., 111 N.L.R.B. 1032 (1955) ......... sate 37

Elgin J. & E. Ry. v. Burley, 325 U.S. 711 (1945) cccke ae

General Committee of Adjustments v. Missouri-K-T

BRR., 320 U.S. 323 (1943)... 0. cece eee neces 39

General Motors Corp., 149 N.L.R.B. 396 (1964) ...... 32

German Vv. So. Carolina State Ports Authority, 295 F,2d

~ QO (4th Cir. 1061) 20.2. .c ccc cecescneecvessens 20

Hayes v. Union Pacific R.R., 184 F:2d 337 (9th Cir. °°

BG caer lt Meie'snsns 4) Le hia oa wek Rhee 7

Hettenbaugh v. Air Line Pilots -Ass’n, 189 F. 2d 319

- (Sth Cir. 1951) ......ccccwcvccccccsscvsevencves 27

Hilbert v. Pennsylvania R.R, 298 F.2d 881 (7th Cir.),

eert. denied, 368 U.S. 900 (196%) eee oa aa we 27

Hudson. & Mfanhattan R.R., 172 F. Supp. 329 (S.D. N. Y.),

- aff’d per curiam sub nom. Stichman v. General

Grievance Comm., 267 F.2d 941 (2d Cir. 1959),

cert. denied, 363 US. 843 EE ave ebevarker iss ‘28

¢ ee ene 5 no Laie Sai 5 oa A

International Ass’n of Machinists v. United Aircraft

[os ews

iv . Index Continued .

Page

Corp., 333 F.2d 367 (2d Cir. 1964), cert. denied,

79 0 S. 946 (1964) 2.0.0... cece e eee eee ees 19, 20, 21

Mcfarroll v. Los Angeles County District Council, 4

Cal. 2d 45, 315 P.2d 322 (1957), cert.. denied, 355

U.S. 932 (1958) Fev eudeeWeheebhaeeanesecéeeaces 14.

Moss Planing Mill Co., 110 N.L.R.B. 933 (1954) ....37, 38

Moss Planing Mill Co., 224 F.2d 702 (4th Cir. 1955)°.. 38!

Nashville Corp., 94 N.L.R.B. 1567 (1951) ............ 37,

NLRB v. Adams Dairy, Inc., 350 F.2d 108 (8th Cir.

* 1965), cert. denied, 382:U.S. 1011 (1966) ......... 32

NLRB v. Armstrong Tire Rubber Co., 263 F.2d 680

(Sth Cir. 1950) 20... sccsvescesvccccccseasccees 35

' NLRB v. Carolina Mills, Inc., 190 F.2d 675 (4th Cir.

Se aan Re he Ren ig ae PRE er AME 36

NLRB v. George E. Light Boat StSrage, on: 273 F.2d

762 (5th Cir, 1967) ..... iv vsnciuapaneseneus ues 35

NLRB v. New York Merchandise Co., 134 F.2d 949 (2d

Separate sitar sacar atin 25

NLRB v. Schertzer, 360 F.2d 152 (2nd Cir. 1966) .... 22

NLBEB v. Seven-Up Bottling Co., U.S. 344 (1953) .. 24

NLRB v. Southern Silk Mills, Inc., 242 F.2d 697 (6th.

Cir. 1957), cert. denied, 355 US. 821 (1957) . 35

NLBB y. Sterling Furniture Co., 227 F.2d 521 (9th Cir.

MS Se ss pkey ches Casi ee rab _ 38

” NLRB v. Stilley Plywood Co., 199 F.2d 319 (4th Cir.

SD ess side, BL Wiske seaweed ees 36

NLRB v. Wentworth Bus Lines, 191 F.2d 849 (1st Cir.

EE 3 ceceseasudeesepacekseatscankaueesekes

NFEAB First Division Award 12 476, y v. TRRA of

SE a ca eee va os cat i Gikah whew ea a eee

NRAB First Division Award 18 526, 'F, v. MS&P&SSM 37

| NRAB. First Division Award 19 208, ‘8, T v. CRI&P

35, 38

: NRAB First Division Award 19 545, Tv. CNO&TP .. 35

Index Continued oy

Page

-NRAB First Division Award 19-964, T v. St. L-SF .. 37

NRAB Second Division Award 3883, 4793, 4866 ...... 38

NRAB Interpretation No. 1 to Fourth Division-Award .

: BE npcdkcdawocbiees cous bauessetbessehsubusses 38

Norfolk & P.B.L. R.R. v. Brotherhood of Railroad

Trainmen, 248 F.2d 34 (4th Cir. 1957), cert. denied,

$55.U.8. 914' (1958) i... cccccnnccceee cet evones 27

Norma Mining Corp., 101 N.L.R.B. 944 (IGDS) .nncecs 37

Nunn g@. Missouri Pac. R.R., 248 F. Supp. 304 | 4 Sy

Mo. 1966) -......- +. eee e cece eee teeters eee e ees 29

Oklahoma Packing Co. v. Oklahoma Gas & Electric —

Co., 309 U.S: 4 (1989). onc cece cwcccccevcccecees 10

Order of Railway Conductors v. Pitney, 326 U.S: 561

CREE Retnescddvnedstccadsncd¥eeeksasesnwess 26, 31

Pacific American Shipowners Ass’n, 98 N.L.R.B. 582

Esc soos betes wa avenccnveneeesuseees ree

Pennsylvania R.R..v. Local 2013, Railroad ves,

’ 178 F.Supp. 53 (E.D. Pa. 1959) babelenbeesenece 29

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) . .25, 35

. Pugh and Barr, Inc., 102 N.L.R.B. 562 (1953),- aff'd,

231 F.2d 588 (4th Cir. 1956) -.........-. Foygees

Railway Clerks V. Florida E.C.R. Co., 384 U.S. 238

: (1966) ee ee eee ei ee ee mie ae elk 12

Roberts v. Thompson,, 107 F. — 775, (E.D. Ark.

| a: Pere ret TPT. Tete Ty Cece 27

Rutland Ry. v. Brotherhood of Locomotive Engineers,

307 F.2d 21 (2d Cir. 1962)... 0.25. cc ccwccccoctecs

St. Louis, S.F. & T. Ry. v. Railroad’ Yardmasters, 328

F. Ad 749 (5th Cir. 71964) (aba eeeckeneeeaveweeses 6, 29

Slocum Vv. Delaware, L.W. R.R., 339 U.S. 239 (1950).

’

Smith v. Evening News Ass’n, 371 U.S. 195 (1962) .:.. 18

T. Smith & Son, Ine. v. Williams, 275 F.2d 397 (5th

I cohen Coe AL ae tewe es 21

Somerville Cream Co., 106 N.L.R.B. 1155: (1953)".... 38

- .

Slee Bdiehirle tannin ne ei ameeag Sit

Aes aes vestige Li SOMA AED EAB aM CY

lesheshelanitinadieimti

a nie

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

vi Index Continued

Page

Switchmen’s Union v. ee Pacific Co., 398 F.2d

no ei te | Re On eee ‘hen 31

Symns Grocer Co., 109 N.L.R.B. 346 COD bvicvikdes 36

Texas & N.O.R. Co. v. seme Clerks, 281 U.S. 548

(1930).

Textile Workers of Aaenites v. Darlington Mfg. Co. "

ef Se Re eee

Toucey v..New Yotk Life Insurance Co, 314 U.S. 118

Bt ee Pee, Peer re Mer er eee 17

~ Underwood Machinery Co., 95 N.L.R.B. 1386 (1951) . 37

United Industrial Workers, 170 N.L.R.B. -No. 158

RMU TE, FOORP eos ve cyecveurenvces . Throughout.

- United R.R. Operating Crafts v. Northern Pacific Ry.,

208 F.2d 135 (9th Cir. 1953), cert. denied, 347 ~

2 SF. rs ae re 27

United States v. Philadelphia Nat. Bank, 374 U.S. 321

: (1963) * K eeoeoSeeceeeeerereeesre see eeeeeesr ees eeseseo ee 34

United States Cold Storage Corp., 96 N.L.R.B. 1108.

- ee bpaaeees eee Tee Te TT oe eee E ET COTS 37

Walker v. Southern Ry., 385 U.S. 196: (1966) ........ 27

West Texas Utility Co., 109 N.L.R.B. 936 (1954) ....37, 38

Williams v. Jacksonvill® Terminal Co., 315 U.S. 386

MM ast ee 26

Williamson v. Puerifoy, 316 F.2d 774 (5th Cir. 1963) . 17

STATUTES: a

Article 5154C, Texas Revised Civil Statutes An A." s

Interpleader Act, 28 U.S.C. § 2361 ............c cee 10-

National Labor Relations Act, §§7(c) and 8(b) ©

Throughout

Sections 2(7) and 6 of the Railway Labor Act, 45

U.S.C.A. §§ 152, seventh, and 156 ....... Throughout

28 U.S.C. §1254(1) ..... pak sedan aae at iepeye unde 2

28 U.S.C. § 2283 ...... sv0seee iawueeea ee et Throughout

| Index Continued | Vii

MISCELLANEOUS: . _ e

Galveston Daily. News (January 26, 1965; July 17,

en reer ine re es noe ove ee

Galveston News-Tribune (February BG, T1960) ...'.... 23

Senate Report No. 222, 69th Cong. 1st Sess. ..... eat * 16

Telegram to James Balthrop, Port Richmond Elevator

eee Pe pp ererrrrr Seer #, 31s

Pelegram to Bunge Grain Corp., (August 1, 1964) .. 31

Telegrams to W. H. Sandberg, Galveston Wharves

Board of Trustees (August 1 and August 19, 1964) 31

‘

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SE ET LEA LE eG OS lr SO Sh ia a Stet a adhe i eee ter Jn ad SE a a

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Seabee , eibeliee |

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Supreme Court of the United States

OCTOBER TERM, 1968

Wo.

BoarD OF TRUSTEES OF THE GALVESTON WHARVES AND

THE City oF GaLveston, Texas, Petitioners,

Vv.

UNITED INDUSTRIAL WORKERS OF THE SEAFARERS INTER-

NATIONAL UNION OF NortTH AMERICA, ATLANTIC,

GuLF; LAKES AND INLAND WATERS Districr,

MARINE ALLIED WORKERS Division, AFL- CIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO ‘THE

UNITED STATES COURT OF APPEALS >

FOR THE FIFTH CIRCUIT ~

_ Petitioners, the Board of Trustees of Galveston

Wharves and the City of Galveston, Texas, pray that a

writ of ‘certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit.

entered ingthe above-captioned case on August 8, 1968. |

CITATIONS TO OPINIONS BELOW |

_ The original opinion of the United States District

Court for the Southern District of Texas, rendered

September 11, 1964, is unreported and ‘is reprinted

herein as Appendix B. The first opinion of the Fifth.

Cireuit Court of Appeals, dated September 14, 1965,

appears at 351 F.2d 183 de is reprinted as Appendix

LOTIONS TEN

C, infra. The second opinion of the District Court,

dated June 20, 1966, is unreported and is reprinted as

Appendix D, infra. The second opinion of the Fifth

Circuit rendered November* 16, 1966, appears at 368

F.2d 412 and is reprinted herein as Apperidix E. The

third and fourth opinions of the District Court (the

latter upon reconsideration); dated March 20, 1967,

and May 3, 1967, respectively, are unreported and are

reprinted herein as Appendices F and G. ‘The third

and final opinion of the Fifth Circuit, dated August 8,

1968, appears at 400 F.2d 320 and is reprinted as Ap-

pendix H, infra. -

JURISDICTION

The opinion of the Fifth Circuit was rendered on

August 8, 1968. On August 21, 1968, petitioners filed

— petition for rehearing in the Fifth Circuit.

€ petition was denied on March 13, 1969. The juris- |

diction of this Court is invoked under 28 U.S.C. § 1254

(1).

STATUTES INVOLVED

Section 2(7) and 6 of the Railway Labor Act, 45

U.S.C.A. §§ 152, seventh, and 106 ; and 28 U.S.C. § 2283,

are set forth in Appendix A, infra. °

QUESTIONS PRESENTED

. 1. A labor dispute arose between a union’ and an

employer (the. City of Galveston, Texas) over the lay-

_ off of employees as the result of a lease of the employ-

_ er’s facilities. The employer obtained a state court in-

junction prohibiting the union from inducing city em-

ployees to engage in work stoppages. The question is

whether in the face of 28 U.S.C. § 2283 a Federal Dis-

trict Court, prior to the completion of the bargaining

. process ordered by the court, may enjoin the use of the

3 >

state court injunction on the theory that tle union’s

right to strike is implicit in the District Court’s order

and necessary to ‘“‘effectuate’’ that order. :

2. The-employer laid off its employees pursuant to

a provision in its Agreement with the union relating

to layoffs and also under a management prerogative

clause in the Agreement. The question is whether the

Court of Appeals may designate the dispute as a

‘““major’’ one and award backpay to the employees with-

out prior recourse to any administrative agency, includ-

ing the Railroad Adjustment Board. or a system board

of adjustment specifically designated by statute for the

awarding of backpay. |

STATEMENT :

_ Petitioner, Galveston Wharves (‘‘Galveston’’), is

an adjunct of the! City of Galveston,.Texas. It is the

owner and operator of dock facilities at the Port of

Galveston. As to some of its activities, it is deemed

a common carrier by rail under the ‘Interstate Com-

merce Act. Prior to August 1964, one of these facili-

ties was Elevator B, a shipside public grain elevator

which for several years had beenlosing money.’

On October 1, 1960, a collective bargaining Agree-

ment became effective between Galveston and. the re-

spondent union (‘SIU’), which had been certified as

the collective bargaining agent for all grain elevator

workers employed by Galveston at Elevator B. By

stipulation, the parties in 1963 extended the Agreement

for a one-year period through September 30, 1964.

On July 7, 1964, following several weeks of wide-

spread publicity in the city’s newspapers, Galves-

ton leased its previously unprofitable operations at

(United Industrial Workers, 170 NLRB. No. 158 (April 12,

1968). The Board’s opinion is reprinted as Appendix I, infra.

weil SB6 i Midk A Ap M Bha a2 an B50 se

Pras AN Red

stipulated that all employees in

Elevator B to the Port Bictunina Elevator Company,

to become effective on August 1, 1964. Despite this, on

. July 20, 1964, SIU served notice that it wished to re-

open negotiations on the Agreement.

Galveston had entered into the lease in conformity

with two provisions in the Agreement:

(a) Article XVI of the Agreement provided that

‘Seven calendar days’ notice must be given employees

that are to be laid off with notic# also being given, to

the Union.’’ On July 23, 1964, nine days prior to the

effective date of the lease,. Galveston gave its employees

and SIU the formal notice required by this clause.

(b) Article XII of the Agreement granted Galveston —

broad management rights. Thus, it preserved to Gal-

veston ‘‘the management of the Elevator and the direc-

tion of the working force, including, but not limited to

the right’to hire, suspend or discharge for good cause,

to assign the jobs to transfer employees within the

Elevator, to-increase and decrease the working force,

to determine the products to be handled, the schedules

of operation and the methods, ——— means of

handling.”’? :

When Port Richmond. ook over the piaiditinn on.

A t 1, it advertised in the local newspaper asking

ah, ge employees of Galveston to apply for employ-

ment. The parties to a — NLRB proceeding

e SIU unit (some 40

or so) then received letters from Port Richmond stat-

ing that its employment policy was to accept applica-

- tions ‘from sis prospective employees, including, of

2'These contract provisions, in turn, were permissible under

§ 2, par. -7 of the Railway +Labor Act, 45 U.S.C.A. § 152, seventh,

which allows changes in working conditions in the manner pre-

scribed in collective bargaining agreements.

supra-n, 1.

5) -

course, those formerly employed by the Galveston

‘Wharves.’’ Applications were made available at the .

Elevator. The NLRB found: ‘‘It is undisputed that -

only one of the total SIU complement filed an applica-

tion and he was hired.’’ United Industrial Wor ers, - |

Although Galveston had east in full Gompliance | j

with its labor Agreement, and Port Richmond had as-_ .

sumed control of Elevator B, SIU on July 29 served on

Galveston what it claimed-was a ‘section 6”’ notice—

requesting negotiation of all matters affecting wages, .

hours and ‘working conditions covered by the existing . E

contract. It also proposed a-clause in any future con- :

tract relating to shut-down, leasing or sub-contracting.

Several meetings between Galveston and SIU followed,

at which it was ‘agreed to arbitrate the grievance as to - q

the men laid off. Even though each party designated 3

its representatives to the System Board of Adjust-

ment, SIU, as the Fifth Circuit noted, ‘‘has taken no

steps since to prosecute or process the Adjustment

Board hearing” (351 F.2d at 186 n. 12). Instead, on

July 31, SIU ieee picketing the entire Galveston

Wharves premises.’ On the same day, it brought this

action under the Railway Labor Act against Galveston

and Port Richmond (since dismissed as to the lessee).

It sought an injunction against consummation of the

. lease or any operation under it pending exhaustion of

_ the Railway Labor Act machinery, and also restoration

of the prior status quo. It alleged that Galveston

should have given thirty days’ notice of its layoff

under §6 of the Railway Labor Act, which provides

for such notice ‘‘of an intended change in agreements

® The picketing was limited to the Elevator B area after Gal-

_ veston obtained a temporary restraining order from a state court,

hs i hacen in ae ea, TAS inaliel aiaiad

bail mnie oir ig he sist wane TGhKa

~~ the resolution of the issues involved will or upon

affecting rates of. pay, rules, or working conditions

***” (45 U.S.C.A. § 156; emphasis added).

The District Court denied a. temporary restraining

order and, after a hearing on affidavits and documents,

denied a preliminary injunction. | App. B. The Dis- .

trict Court specifically held: ‘‘The Court classified this

controversy as a minor dispute due fact that .

the interpretation of an existing agreement,’}) and re-

lied upon a recent Fifth Circuit case which had so

held. St. Louis, SF. & T. Ry. v. Railroad Yara-

masters, 328 F.2d 749 (1964).

On appeal, the Fifth Circuit conceded that the lease -

had been ‘‘non-discriminatorily motivated” (351 F.2A

at 184; App. C). Nevertheless, it held that the Agree-

ment, even by “‘reasonable implication,’’ did not afford

“‘some arguable basis” for what Galveston had done %

(td. at 188) ; that Galveston ‘terminated the contract

by going out of business”’ (id. at 189) ;* that there had

* The court’s inconsistency and confusion are illustrated: by its

treatment of this point. ; .

In arguing that what petitioner did could not possibly be called

a “‘layoff’’, the Court said that during the term of the contract,

petitioner ‘‘terminated fhe. contract by going out of business.

*** Nothing in this regord even remotely suggests that this was

@ temporary layoff * * *.” This was it—final, positive, all washed

up’’ (td. at.189). Yet at another point in the same opinion the

court stated that petitioner ‘‘has made a lease of limited duration’’ _

(td. at 187) and that petjtioner “‘did not go out of business. Its

lease, as leases of industrial properties go, is short termed

indeed’’ (td. at 191).

As pointed out below, the union itself has repeatedly referred to

the treatment of these employees as a “‘layoff’’ or “laying off.’’

And in one brief it told the court: ‘‘* * * Appellees [Galveston]

refer to the lease as ‘long-term.’ - But this is a euphemism—-since

the record is clear that it was a five-year lease’’ (Brief before the

Fifth Circuit dated November 18, 1965, p. 7). ee

‘ eo?

thus been ‘‘an intended change i agreements affecting °

rates of pay rl working conditions’’ under the

Act (emphasis added), and that the Railroad Adjust- .

ment Board therefore had no jurisdiction. Galveston,

said the court, should have given thirty days’ notice

under § 6 of the Act. Since it had ‘‘so clearly violated’?

the employees’ rights, ‘‘some suitable relief and sanc-

tion’ should be imposed so that bargaining about this

operational termination’’ could go, forward (id. at 191-

192). The case was remanded.°

Judge Bell dissented from that part of the opinion

which related to Galveston. Stating that he had

‘looked in vain for some foundation for the [ma-

jority’s] holding,’’ he concluded:

‘ &

The dispute necessarily turns on a construction

of these provisions [in the Agreement] to deter-.

mine whether the carrier acted within its rights.

This is a classic example of a minor dispute which.

under the law is to be ‘handled by the Railway |

Adjustment Board [351 F.2d at 192.°]

- In the meantime, Galveston had sought and obtained

from the District Court of Galveston County, Texas,

‘an injunction which prohibited SIU members from

picketing. The original basis for the egies was

5 SIU twice filed unfair labor practice charges against Pori huch-

_ mond, and both times they were dismissed. However, when Port |

Richmond filed charges against SIU, the NLRB took jurisdiction

and obtained an injunction against SIU — of Port Rich-

mond.

6 Additionally, he pointed out that even if this were a major

dispute, § 6 of the Act might well be inapplicable if the cessation

of the elevator business had been bona fide. He added, as the

majority had conceded, that ‘‘There is not a whisper in the record

of the elevator having been leased because of anti-union animus”

(351 F.2d at 193).

tht Php Rabel? ae

itrihe tap lgt ate ENA ik oni Pit te abe

» ins I aE MOD iP Boba gee

| Seer igh Re RRL ct ted

8 , .

the ‘no strike”? provision in the contract, which pro-

hibited strikes or picketing during the life of the con-

tract. Later an amended petition was filed in the State

Court which changed the basis of the°injunction to

Art. 5154C of the Texas Revised Civil Statutes, which

makes illegal any picketing designed to induce city em-

ployees to engage. in work stoppages.

On remand from the Fifth Circuit, the Federal Dis- °

_trict Court ordered the parties to bargain in good faith.

_ It-refused, on the grounds of hardship, to return the

parties to their pre-lease status, it denied an SIU re-

quest for backpay, and it refused to modify the injune-

tions against picketing it had issued against SIU at

the behest of the NLRB (see n. D, Supra). App. D.

_On Appeal for the second time the Court of Appeals

'. approved the refusal to modify the injunctions, but it

remanded the case for the imposition of ‘‘some suit-

able relief and sanction”’ that would have the effect of.

. restoring the status quo prior to the lease. 368 F.2d

412; App. E. | | S |

On several occasions thereafter the parties informed

the District Court that they were negotiating a settle-

ment of their differences, Then, as the District Court

later found, the settlement negotiations were broken

off by SIU, which filed a petition for' interim relief

and sanctiofis. The District Court at first granted

backpay and denied SIU’s request to enjoin Galves-

ton’s use of its state court injunction. App. F. On

reconsideration, however, the court reversed itself,

ordered reinstatement of the laid off employees, but

denied the union’s claim for backpay on the ground

_ that only the Railway Adjustnient Board-could grant

such relief. At the same time, the court enjoined

Galveston from using the injunction it had obtained, —

from tle state court. It did so on the ground that the.” ’

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

applicable to this case. App. G. | :

In its prior opinion, the Court.of Appeals had stated

that ‘‘We do. not blueprint these matters. They are

best ‘left to the discretion of the District Judge’”’ (351.

- F.2d at 192). Despite this statement, the appellate = Aa

court now reversed the District, Judge’s discretionary

decision and ordered the award of backpay. It did so

even though SIU’s original complaint had not even

sought backpay, SIU had not cited a Single case or a

single statutory provision supporting such an award," |

and the court itself conceded that ‘‘no case has been

‘found where a federal court has awarded backpay as

part of its enforcement of the status quo in a major

dispute.”’ 400 F.2d at 327; App. H. es

The Court of Appeals also approved the enjoinder of

any use by Galveston of the injunction it had obtained ,

. from the Texas court. It disavowed the reasoning pf -

the District Court, pointing out that Galveston is es

sovereign arm of the State of Texas and therefore

inimune from the Norris-LaGuardia Act. The court

instead approved the federal injunction on the ground

that the union’s right to strike was “implicit”? in the

court’s order, and the injunction was thys necessary “‘to |

carry out” or effectuate the District Court’s bargain-

ing order.

’ In fact, SIU conceded: ‘*Similarly, it is tre we are unable to

find a case in which a Court has ordered payment of backpay

against a carrier for breach‘ of statute’’ (Brief before the Fifth

Circuit datet November 1967, p. 3). - tale

_ REASONS FOR GRANTING THE WRIT

A. The Injunction Against State Action Violates the Control-

- ling Federal Statute and Conflicts With Decisions of This

Court and Other Circuits.

The decision betow—that under the circumstances of

this case a federal court can enjoin Galveston from

giving effect to a state court injunction against picket-

ing—violates § 2283 of the Judicial Code, conflicts with

decisions in other circuits as well as in the Fifth Circuit .

itself, and contravenes the holdings of this Court. |

The Court of Appeals recognized that 28 U.S.C.

§ 2283 defines the limited area in which it can act.

That section provides:

A court of-the United States may not ents an

injunction to stay proceedings in a State court

except as expressly authorized by Act of Congress,

or where necessary in aid of its. jurisdiction, or to

protect or effectuate its judgments. :

This language embodies a clear congressional mandate |

that, absent the specific exceptions noted in the section,

the federal courts do not have power to enjoin pro-

ceedings in state courts. Oklahoma Packing Co. v,

Oklahoma Gas & Electric Co., 309 U.S. 4, 8-9 (1939).

The Court of Appeals conceded that no Act of Con-

gress. authorized its injunction,’ and that no injunction

8 This ‘ease dealt with the predecessor § 265, but the Court’s

‘ comments are equally applicable under ‘the later section.

® The section requires that a’statutory exception be ‘‘expressly’’

uthorized. The former restriction, which applied only to actions

der the federal bankruptcy laws, was generalized to cover such

~other exceptions as Congress might wish to make by specific statu-

_ tory enactment. See Reviser’s Note to § 2283. An example of a

statutory exception in addition to\the bankruptcy laws is the Inter-’

pleader Act, 28 U.S.C. § 2361.

\ : "§

)

* 8s Den din

was needed to aid federal court jurisdiction.” Nor did

the court hold that an injunction: was necessary ‘‘to

protect’’ the court’s judgment. Therefére, the sole

_ issue is whether an injunction was necessary, within

the meaning of the statute, to “effectuate” the court’s

Bey judgment.

\ It is important to, note briefly just how the Court of ;

Appeals viewed the case in relation to.this last excep- a

tion for effectuation of a federal court ive The.

court reasoned as follows:

When the bargaining between the parties ‘‘has run -

_ its course,’’ or if Galveston ‘‘continues to refuse to bar-

' gain,’’ then the union would have a right to strike. .

And if it did strike, the strike would conflict with the

state court injunction. Therefore, a federal injunction: 3

_. against use of the state court injunction is necessary to

‘‘effectuate the judgment”’ of the District Court, what- j

ever that judgment may eventually turn out to. be. | |

We submit that this is a far ery from any possible |

situation Congress had in mind when it narrowly de- |

fined the areas of conflict which would permit the ex-.

traordinary federal enjoinder of state action. What-

ever judgment of the District Court-ultimately evolves,

_ it certainly will not be an order to strike. The factis,

‘as even the Court of Appeals seems to concede in parts re

of its opinion, that the union cannot strike now, re-

gardless of whether this is a major or a minor dispute.

in His

1 The extremely limited nature of the exclusion represented by

this second exception is made clear by the Reviser’s Note following

§ 2283: ;

The phrase ‘‘in aid of its jurisdiction’? was added to con- i

form to section 1651 of this title and to make clear the

recognized power of the Federal courts to stay proceedings .

in State cases removed to the district -courts.

Ce Ne ed 0) Oe ne ee

The law prohibits such a strike during the bargaining

period.” Even under the Court of Appeals ruling, the

District Court will only order that the parties bargain

and that appropriate ‘‘sanctions’’ be imposed. No one

knows iia bargaining will ‘‘run its course’’—in

this case or in any other labor case to which the deci-

_ sion below will equally apply. Sometimes weeks,

. months or even years pass before such bargaining and

the litigation or arbitration emanating from it are

finally resolved, as the union conceded in: this very

ease.” As this Court pointed out in Railway Clerks v.

Florida E.C.R. Co., 384 U.S. 238, 246 (1966), ‘‘the pro-

cedures of the Act are purposely long and drawn out,

11 Brotherhood of Locomotive Eng. v. Missouri-K-T R.R., 363 U.S.

528 (1960). The court below quoted the following language from

American Airlines, Inc. v. Air Line Pilots Ass’n, 169 F. ‘Supp. 777,

787 (S.D.N.Y. 1958) : :

[W]hereas in the case of minor dieetie strikes are illegal

per se because the processes of the Act are final, binding and

conclusive throughout and therefore can be enjoined ee |

the case of a major dispute a strike is not illegal per se and

cannot. be enjoined if the processes of the Ratlway Labor Act

have been complied with and exhausted [emphasis supplied].

Surely this language, quoted with approval, should have led the

court to recognize that it was protecting a right to strike which

- did not exist. If this.is a minor dispute, striking is illegal; if

major, it is illegal until both parties. have exhausted the admin-

istrative processes under the Act—not the case here.

12 The Union told the Fifth Circuit in one of its early, briefs:

Complex issues involving the duty of the carrier to bargain,

to require the lessee to assume its contract with Appellant, the, é

- *fsuecessor’’ doctrine, will be before the System Board, “whose

‘processes are already -in motion... These matters before the’

Board will take many weeks, months, and, in view of. the i ip-*

evitable litigation that will ensue over any award. that is ren- .

dered, even years. [Brief before the Fifth Circuit dated

September 25, 1964, p. 18. - ; ae

+ 5 7 3

s .

based on the hope that reason and practical: considera-

tions will provide in time an agreement that ‘resolves

the dispute.”’ te

The union, or any number of reasons, may well pre-

fer not to strike. Thus, the strike referred to by the

Court of Appeals is’at most a contingency that may

never occur," and even if it does, it will occur at some

indefinite future date.

The fact that state and federal law are in complete |

harmony at this stage of the proceedings is demon-

strated by the: NLRB order in United I ndustrial

Workers, supra n.1. There, the Board held that: SIU

violated § 8(b)(7)(c) of the NLRA, after Port Rich-

mond took over the operation of Elevator B, by picket-

‘ing with the purpose of forcing Port Bichinont to bar-

gain with the union. The Board ordered SIU to cease

pand desist such picketing.* Since the Court of Ap-

peals has not ordered the unscrambling of the lease—

and in fact has repeatedly indicated that such a sanc- |

tion will not be necessary”—the net effect is that Port

‘Richmond will continue in control of Elevator B at

least for the duration of the lease, and the union can-

. 38$IU once asked the Fifth Circuit to modify the District Court’s

injunctions so as to allow the union ‘‘to take economic action

against the lessor-appellee [Galveston] here if, and when, the

' parties- have exhapsted all of the statutory bargaining procedures

oe ah _ABrigf pefore the Fifth Circuit dated September 6, 1966,

ms) ee, <a

% ee Boakd, Bio ‘declined to accept certification of SIU as hee

eek § onit™ baséd upon a finding that. its chief distinction

~- would’ ‘be one “8: separation based on race..

eu BOLE B 2d at 191; 368. “fs 2d at 413; App. C, E.

Te -

wee Le Sie erat

POTTS et, Ce ee ‘

ELT IRI ern ree

PP ART ENLIST IE

Stayer abies astireebehe

not picket Elevator B during this period. Under these

circumstances, how could it possibly be said that an -

_ injunction against state action is necessary to ‘‘effec-.-

tuate’’ any judgment which the District Court may now

enter? Under the circumstances and the applicable

law, there is neither a right to strike nor a federal

court judgment to be effectuated by an injunction

against state proceedings.

More importantly, for the federal courts to encour-

age strikes by holding that picketing is a necessary |

coreomitant of their order to bargain is, we submit, not

only erroneous. but directly contrary to the national

labor policy of discouraging work stoppages whenever

possible. Nothing could so unsettle the balance of

. labor-management relations worked .out by Congress

than to hold, before bargaining even begins, that ‘‘The

right to strike is adjunct to the Union’s statutory

rights and implicit 1 in our order.’’ 400 F 2d. ” 334;

App. H.

It is one thing to hold, as this Court recently aa in

a 4-to-3 vote, that the ultimate right of the disputants

to resort to self-help is implicit in the statutory scheme

of the Railway Labor Act. Brotherhood of Railroad

Truinmen v. Jacksonville Terminal Co., 37 U.S.L.Week

4247 (March 25, 1969). It is quite another to make

the right to strike part of a court order to bargain.

The Court in Jacksonville Terminal. Co. pointed out

that it would be disruptive of the national labor policy

to forbid a strike in all instances, since this would so

vitally affect the bargaining process. But it is just

as clear that a District Court order which obstensibly

is directed solely to the bargaining-process, but which

in fact carries with it a ruling on the union’s right to

strike after the bargaining is over, would be equally

‘disruptive of the bargaining process. As the Court

pointed out; ‘The heart of the Railway Labor Act is

the duty, imposed by § 2 First upon management.and

labor, ‘to exert every reasonable effort to make and

maintain agreements concernirig rates of pay, rules,

and working conditions, and to settle all disputes .. .

in ordér to avoid any interruption to commerce or to

the operation of any carrier growing out of any dis- -

pute between the carrier and the employees thereof.’

The Act provides a detailed framework to facilitate the

voluntary settlement of major disputes.’’ This can

hardly be accomplished: when the right to strike is in-

corporated into the District Court’s bargaining order,

since the bargaining has not been completed and, as

this Court recognized in Jacksonville Terminal Co.,

the union cannot strike in any’and all circumstances,

regardless of the facts. : ;

There is, however, an even more important distinc-

tion between the situation in: Jacksonville Terminal

Co. and the one in the instant case. In that case, the

Court repeatedly emphasized that all procedures re-

quired by the Railway Labor Act had been exhausted

before there was any recourse to tlie federal or state

courts and before any injunctions issued. For example,

the Court said: ‘‘The events most pertinent to the

present litigation began on April. 24, 1966, when the

Florida East Coast Railway.Company (FEC), having

exhausted all procedures required by the Railway

Labor Act for the resolution of a ‘major dispute,’ uni-

laterally changed its operating employees’ rates of pay,

DOES RUS eli BR la ita hin BIg isa

rules, and working conditions’? (37 U.S.L.Week at

4247; emphasis added; footnotes deleted).’* As we

have pointed out, that is not the situation here. ‘The

Railway Labor Act.machinery has not been exhausted.

We are not dealing with a present right to strike but —

rather with a present prohibition against striking,

embodied within the federal law itself, for no one

- elaims—not the union and not the courts below—that

SIU can strike now, whether or not the state court in-

junction remains in effect. The imbalance in labor-

management relations that would result from the type

ef order entered below can hardly be overstated. This —

could hardly have been the intent of Congress.” :

16 The Court also said: ‘‘While the dispute is working its way

through these stages, neither party may unilaterally alter the status

quo §§ 2 Seventh, 5 First, 6, 10’’ (37 U.S.L.Week at 4250) ; ‘‘ How-

ever, we conclude that the least unsatisfactory one isto allow par-

ties who have unsuccessfully exhausted the Railway Labor Act’s

procedures for resolution of a major dispute to employ the full

range of whatever peaceful economic power they can muster, so

long as its use conflicts with no other obligation imposed by federal

law’’ (id. at 4254; emphasis added ; footnote deleted).

17“¢The objection that the ‘bill should in express terms forbid

strikes during the period of -the inquiry by the emergency board

and for 30 days thereafter is successfully met, in the opinion of

the committee, by the contention that in forbidding a change in

_the condition out of which a dispute arose, one of which and a

very fundamental one is the relationship of the parties, it already

' forbids any interruption of commerce during the period referred to ;

and tf strikes were in express terms forbidden for a given period

there might be an implication that after that period strikes to

interfere with the passage of the United States mails and with

continuous transportation service might be made legal. In the

opinion ofthe committee, this possible smplication should be

avoided: §. Rept. No. 222, 69th Cong., Ist Sess. at 5 (emphasis

added). This passage from the Senate Report gas quoted in Texas

& N.O.R. Co. v. Ry. Clerks, 281 U.S; 548, 566, fn. 3 (1930), in which

case this Court also observed that ‘‘the major purpose of Congress

in passing the Railway Labor Act was ‘to provide a machinery to

prevent strikes.*’’ Id.-at 565.

It is not only a matter of labor-management rela-

tions. Federal-state relations in this delicate area

should not be further strained by forbidding’state ac-

tion based on aii entire.series of future contingencies, .

as the Court of Appeals did here.** And particularly

they should ‘not be strained by a separate court action

and an injunction, rather than through the orderly

process of appeal. If SIU believed that the state c

encroached upon some federal right by restraining’its

picketing, the proper avenue of challenge was by ap-

peal within the state courts, with ultimate recourse to

this Court. ‘‘ Nowhere has a Federal trial court been

given despeloonsid or appellate jurisdiction over State

judges”. Williamson v. Puerifoy, 316 F.2d 774,275

(5th Cir. 1963). The point is well made by Brother- |

hood of Railroad Trainmen v. Jacksonville Terminal

Co., supra. In that case the attack on the state court

injunction was not made in an ancillary. proceeding in

the federal courts. Instead, the union took an appeal

from the issuance of the state court injunction to the

Florida District Court of Appeals and from there to

the Supreme Court of Florida. It then sought cer-

tiorari in this Court. Thus,there was no occasion in

that case to confront thé proposition of whether the .

federal district courts, inan entirely different proceed-

18 The tenuous and illusory enbane of any conflict between state .

and federal jurisdictions is illustrated by the Court of Appeals’

_ Statement that ‘‘The effect of the state court injunction against _

a possible Union strike is perhaps to render impotent the duty to

bargain imposed by this Court.’’ 400 F. 2d at 331; emphasis

added ; footnote deleted: j

RAE EN re ME SPP I EIR RENT A”

haa aa ne

Nek ae OS)

ing, ¢an stay the use of what had separately been ob-

tained from the state courts.” ¢

The court’s novel interpretation 2283 .patently

ignores the effect clearly jntended ngress and

flatly contradicts the authority of past is. The

final exception in the Act relating to the ‘‘eitéc ation”?

of judgments was added solely to authorize injunctions

- against relitigation in-a state court of matters pre-

viously and fully adjudicated . by the federal courts,

19 The Court of Appeals relied on Dellteibiie v. Taylor, 353 U.S.

553 (1957). But that case merely held that the Railway Labor

Act applies to a state-owned belt railroad engaged in interstate

commerce and supersedes provisions of state civil service laws which

conflict with the Act. No one disputes that thé Act applies in

general to petitioner’s business, although the grain elevators them-

selves do not relate to its carrier-type operation. However, it is

a far different and quite erroneous position to assert that the ap-

plicability of the Railway“Labor Act to a carrier owned by an arm

of the State means that all power of the State to legislate in rela-

tion to such operation is thereby usurped, and even’ further that

such usurpation gives federal courts the power, to stay state court,

orders in ancillary proceedings.

Indeed, the Court in Califorma v. Taylor implicitly recognized

the validity of the California law prohibiting strikes by public em-

ployees, and, rather than overturning the law, indicated simply

that its reduction of the possibility of work stoppage did not mean

that the railroad was not also subject to the collective bargaining

requirements of the Act:

The fact that, under state law, the employees of the Belt

« Railroad may have no legal right to strike reduces, but does

not eliminate, the possibility of a work stoppage. It was to .

meet such a possibility that the Act’s ‘‘reign of law’’ was

established [353 U.S. at 566].

In fact, this Court has more recently held in a parallel decision

. that employees could bring a state action for breach of a collective

bargaining contract, even though such conduct would constitute

an unfair labor practice prohibited by §8 of the NLURA. While

federal law is directly applicable, the court’s jurisdiction is not -

preempted. Smith v. Evening News Ass’n, 371 U.S. 195 (1962).

—_

19°

A simple reference to the Reviser’s Notes demonstrates

this: | | , :

The exceptions specifically include the words

“to protect or effectuate its judgments,”’ for lack |

of which the Supreme Court held that the Fed-

eral courts’ are without power to enjoin relitiga-

tion of cases and controversies fully adjudicated

by such courts. (See Toucey v. New -York Life

Insurance Co., 62 S.Ct. 139, 314 US. 118, 86 L.Ed.

100. .A vigorous dissenting opinion (62 8.Ct. 148)

notes that at the time of iy Bee revision of the

Judicial Code, the power of the courts.of the

United States to protect their judgments was un- .-

questioned and that the revisers\of that code noted

no change and Congress intended no’ change).

Therefore the revised section restores the basic

law as generally understood and interpreted prior

to the Teucey decision. |

Other courts have specifically recognized this.restricted

meaning.” . The injunction issued by the District Court

here is quite obviously not within the purview of this

last exception for relitigation of matters already dis-

' posed of in the federal court, and, as previously stated,

the court below conceded that it was. not within the .

' first two exceptions in § 2283. STA

Even if this Court were to decide that the Railway

Labor Act in some way preentpted the state law other-

wise applicable to respondent or made a state court —

injunction inappropriate, the decision below is ngne-

theless erroneous and disruptive. Such a holding

would not obviate the independent prohibition of § 2283.

7 ~

2» E.g., Allied Mutual Insurance Co. v. Roberson, 306 F. 2d 130

(4th Cir. 1962) ; International Ass’n of Machinists v. Umted Air-

- craft Corp., 333 F. 2d 367 (2d Cir. 1964), cert. denied, 379 US.

946 (1964). . i

/ >

/ a

Sm ilies

’ e .

» Ki eed de leenTaatbnate moe SO Dat DSRNA LD

ew We aad > IM oe

‘3 —

Quite simply, this Court has establishec beyond ques-

- tion that the flat prohibition against federal court in-

junctions applies even when state courts are proceeding

in an area preempted by federal legislation. Amalga- .

mated Clothing Workers v. Richman Bros. Co., 348

U.S. 511 (1955).

The court below attempts to distinguish Richman.

However, that ease is directly in point. It held that

’ under § 2283 the federal court had no power to enjoin

state court proceedings initiated by an employer seek-

ing an injunction against union picketing on the

ground that such conduct violated state law. An al-

legation thatthe state court was ‘‘wholly without jur-

_ isdiction over the subject matter, having invaded a field ,

preempted by Congress’’, was not within any excep-

tion to the prohibition against enjoining proceedings

in state courts (348 U. iS at 515). ~

If the decision below is not reversed, it will likewise

stand in direct conflict with\those of other circuits

which have considered the question. German v. So.

- Carolina State Ports Authority, 295 F.2d 491 (4th

Cir. 1961) ; International Ass’n of Machinists v. United

Aircraft Corp., supra. In German, the South Carolina ©

Ports Authority obtained an injunction against union

picketing from a South Carolina court. The’ union

then sought a federal injunction against use of the

state injunction on the ground that the picketing was

protected by the NLRA. The Court of Appeals held |

that even assuming the picketing was protected, the |

state court procéeding could not be enjoined.™ In

211t added, in language particularly applicable here: “Tf. the Zs

state court’s. restraining order is erroneous, relief may be sought

through state channels, ultimately to the Supreme Court of =

United States.’’ 295 F. 2d at 495.

Pee 2

International Ass’n, the union sought a federal court

injunction to prevent an employer from proceeding in

the Connecticut courts with a suit. for damages based _

on organizational aétivities which the union said were

protected by §7 of the NLRA. The Court of Appeals

held that for a number of reasons the federal court

could not issue such an injunction. One of these rea-

sons was § 2283: iss 3 |

There is nothing in the present case which would

make that statute inapplicable. There is no ex-

press authorization by Act of Congress There

is no jurisdiction in the district court which would

be aided by an injunction. The district court has

. issued no judgments which require, protection or

effectuation [333 F.2d at 371].. ‘

‘Indeed, itis difficult to perceive why the court be- ©

low erred this time when it had itself previously and

correctly applied § 2283. After a careful and lengthy

review of the case law, it barred an injunction against

state proceedings ‘‘even when the subject matter of an

action, as federal courts see it, rests exclusively in

federal courts under a fed Statute.’’. T. Smith &

Son, Inc. v. Williams, 275 F.2d 397, 407 (5th Cir.

1960) .™ .

The court quite curiously and mistakenly relied in.

large part upén the earlier ease of Capital Service, I NC.

> = The Fifth Circuit in that case properly recognized the con-

_ trolling congressional limitation and the vital underlying bases

for enactment of the statute: . j

[T]he hands-off doctrine expressed in Section 2283 is to

be considered in the light of the function of Section 2283 as

a pillar of federalism. Like the doctrine of abstention, its.

oe justification * * * lies in regard for the respective

competence of the state.and federal court systems and for the

“maintenance of harmonious federal-state-relations in a matter

close to the political interests of a State’’ [275 F. 2d at 407].

‘ -

eR ROG E A PP ED RiP NE DES AL RENEE PLES IE ALE EMENTS LO ITS ig POG ENNIS ELLIE T,

- : ll 4 ny

;

SONIA WOE ION

eee,

ees a eee ae

22.

v. NLRB, 347 U.S. 501 (1954). There, a manufacturer |

obtained an injunction against certain union conduct

and filed an unfair labor practice charge with the

NLRB against the union based on precisely the same

conduct. This Court concluded, ’quite naturally, that:

_since the NLRB had: exclusive jurisdiction, the state

court injunction and the exercise of authority by the

NLRB were in ‘direct conflict.” No such situation

exists here.

Finally, eyen if an fajunction were authorized i in this

case by an exception to § 2283, it would still have been

necessary for the respondent to establish in a hearing

in the District Court that an equitable basis existed

for such remedy. As pointed ‘out in Douglas v, City

of Jeannette, 319 U.S. 157, 168 (1943), the courts

‘‘should conform to this policy by refusing to interfere

with or embarrass threatened proceedings in state

courts save in those exceptional ‘cases which. call for

_the interposition of a court of equity to prevent ir-

reparable injury which is clear and imminent.’’ No

such finding, or even an allegation thereof, was asserted

or recognized by the courts below. No hearing for °

the taking of testimony has ever been held in this case.

Surely, on the limited facts of the case developed to |

date, no’such finding could be made. ©

Moreover, if equity rests with either party, it surely

‘favors petitioner. No real injiify ‘to the respondent

arises if it must refrain from picketing until the va-

lidity of the state’s prohibition is resolved and the bar-

23 Similarly, the case of NLRB v. Schertzer, 360 F. 24 152 (2nd_

Cir. 1966) cited by the court, involved an injunction of state

garnishment proceedings, sought by the Board, and deemed pecu-

liarly necessary to avoid possible ministerial burdens in supervising

compliance with its orders involving backpay.

gaining, if there is to be such, has terminated. . On the

other hand, how can the petitioners, or their successor,

be’ restored for injury to their business by the action

of the respondent, when the basis for the injunction

against picketing is ultimately upheld?* The court

below ‘says that the effect of the state’s injunction is

‘‘pnerhaps to render impotent’’ the court-imposed duty

to bargain (citing only the Norris-LaGuardia Act,

which it previously had held inapplicable). 400 F.2d

at 331. Aside from this being a fallacious conclusion

in itself, the fact is that appropriate and sufficient sanc-

tions exist under the Act and under the contempt power

of the federal courts to deal with any violations cf

court orders relating to the bargaining process.

In conclusion, the injunction issued in this case flatly

violates the congressional. prohibition embodied in

§ 2283. Clearly, none of the exceptions permitting suc h

injunctions is applicable. If this. decision is not ro- .

versed, new and irreparable harm will be done to the

concept of. federalism and the balance of power between

the federal and state judiciaries. .

B. The Grant of. Backpay Without Recourse to Administrative

Agencies Violates the Controlling Federal Statute and Con- .

flicts With Decisions of This Court and Other Circuits.

For the first time in the 42-year history of the Ra:l-

way Labor Act, 45 U.S.C. § 151 ef. seq., a federal court

24'The impact upon the public caused by such a strike would be

even more serious. The Galveston papers estimated that the loss

to the economy of Galveston from the port. strike in January-

_. March, 1965, was $100,000 a day- Galveston Daily News, January

26, 1965; Galveston News-Tribune, February 16, 1965, p. 4. Cne

study indicated that 70- percent of the Island’s economy was linked

to the Port, and 54 percent of its populatiomr was supported directly

or indirectly by the Port. Galveston Daily News, July 17, 1958,

p. 4.

M6 PMN IPE ALL DLE

has ordered the award of backpay to employees, under

the Act, without any prior determination of any kind

by any administrative board or agency.

The holding below is unique in the history of the

federal court system and in the development of the field

of administrative law. As the Court of Appeals con-

ceded, ‘‘ Admittedly, no case has been found where a

federal court has awarded backpay as part of its en-

forcement of the status quo in a major dispute.’’ 400

F.2d at 327.” Yet that is precisely what the court did

. in this case. Its ruling not only lacks support in prior

ease law but directly thwarts the intent of Congress ex-

pressed in the Act. If allowed to stand, it will wreck

havoc in the railway labor field and, just as importantly,

in all of the other administrative fields where backpay

awards have heretafdre been made by appropriate

statutory agencies.

The decision will result in repeated conflicts between

the federal courts and administrative agencies over -

which tribunal has jurisdiction to grant backpay in a

given dispute. It will result in double standards as

to backpay awards, and forum-shopping by litigants.

It will take backpay decisions away from those agencies

with experience and expertise in awarding them,” and

place them in courts ill-equipped to handle them. As

% See also n. 7, supra.

%° There are innumerable ways in which the agencies have had

to call upon this expertise in the field of backpay. For example,

the NLRB for fifteen years calculated backpay on the basis of the

entire period between discharge and an offer of reinstatement.

* However, as this Court quoted the Board in NLRB v. Seven-Up

Bottling Co,, 344 U.S. 344, 347 (1953), ‘‘ ‘The cumulative experi-

ence of many years discloses that this form of remedial provision

falls short of effectuating the basic purposes and policies of the

Act.’”’ Therefore, the method of calculation was changed. This

the Court of Appeals recognized in this very case, it

will even result in the appointment of special masters

to decide the intricate and multitudinous problems in- ~

herent in backpay awards.” The use of such special

masters, adding new burdens to an already over-

burdened federal judiciary, is wholly unnecessary in

light of the administrative decisional structure already

in existence and specially -designed by Congress for

just this type of case.* Citing a lack of ‘‘expertise and

competence,’’ this Court refused in Jacksonville Ter-

minal Co., supra, to allow federal courts to decide issues

for which they are ‘‘institutionally unsuited” (37 U.S. _

L.Week at 4254).

The NLRA requires collective bargaining with re-

spect to rates of pay, wages, hours and other conditions

of employment, and with respect to questions arising

under existing agreements. The Railway Labor Act,

Court refused to disturb the change, pointing out that ‘‘as is true

of many comparable judgments by those who are steeped in the

_ actual workings of these specialized matters, the Board’s conclusions

may ‘express an intuition of experience which outruns analysis and

sums up many unnamed and tangled impressions . . .’; and they

are none the worse for it.’’ Id. at 348. |

27 SIU told the Court of Appeals in one of its briefs: ‘‘The

[District] Court’s confusion as to the method for computation of

backpay, although. understandable, should certainly not pose an

insuperable obstacle’? (Brief of Appellant-Appellee dated Sep-

tember 1967 in No. 25081, p. 14; emphasis added).

28'The court cannot avoid this decisional structure by resort to

-a master. As the Second Circuit said in NLEB v. New York Mer-

~ chandise Co., 134 F. 2d 949, 952 (2d Cir. 1943): ‘We start with

the premise that Sec. 10(c) makes the fixing of back pay a part

of that ‘affirmative relief’ which is confided solely to the Board;

so that no court should assume the duty, whether directly “or

through a master; we have as little power over it as over ‘equiva-

lent employment.’ Phelps Dodge Corp. v. NLRB, 313 US. 177

* #*#*> Soe also NLRB v. Wentworth Bus Lines, 191 F. 2d 84%

(1st Cir. 1951). :

’

DSI ETIN EIEN PARRA ISA AREY

PMR

SLEEP SSE SANT

2a AOL ETE, EIS LIL OY eee te ed

rj a ELPA PNE TEEPE PR ET I ET,

_on the other hand, forbids a change in the agreement

itself with respect to pay, rules and working condi-

tions without compliance with the notice and bargain-

ing procedures of §6. See 45 U.S.C. § 152, Seventh.

_ Proposals of sach changes may giye rise to ‘‘major’”’

disputes. On the other hand, issues. regarding the

meaning of existing agreements or their application

to particular fact situations constitute only ‘‘minor’”’

disputes to which the requirements .of §6 are inap-

_plicable. Witliams v. Jacksonville Terminal Co., 315

U.S. 386 (1942); Order of Railway Conductors v.

Pitney, 326 U.S. 561 (1946) ; Beeler v. Chicago R. I.

& P. Ry., 169 F.2d 557 (10th Cir. 1948), cert. denied,

335 U.S. 903 (1949). As this Court pointed -out in~

Jacksonville Terminal, §6 of the Railway: Labor Act

was amended by Congress specifically’ for the pur-

pose of confining the ae: s prohibitions to changes m

‘agreements.

Furthermore, as pointed out in Pitney, ‘Not. only

has Congress then designated an agency peculiarly

competent to handle the basic question here involved,

but it also intended to leave a minimum responsibility

to the courts.’’ 326 U.S. at 566. Aside from ordering

the parties to resort to administrative procedures when

appropriate, the role of a federal court is limited to

review or enforcement proceedings if and when a de-

cision by the adjustment or mediation boards are later

challenged or ignored by the parties. 45 U.S.C. § 153,

First (p) and (q).

_In awarding backpay without resort to an adminis-

trative tribunal, the opinion below ‘conflicts with de-

cisions of this Court, of other circuits and of the Fifth —

Circuit as well.

| 27

Citing three decisions of this Court, the Seventh

Circuit has specifically held that ‘‘the district courts of

the United States have no jurisdiction in an action to

restore a discharged railway employee to his position,

or to award him back wages because of his alleged

wrongful discharge.’’ Buster v. Chicago, M., St. P.

& P. R.R., 195 F.2d 73, 74 (7th Cir. 1952).”

- In Hilbert v. Pennsylvania R.R., 298 F.2d 881 (7th

Cir.), cert. denied, 368 U.S. 900 (1961) the railroad |

closed its terminal in one city, making it necessary for

engineers located there to be reassigned to another city

if they continued such employment. The railroad con-

tended that its authority unilaterally to terminate that

operation was not abrogated by the existing agreement.

The Court of Appeals recognized the presence of a

minor dispute subject to administrative remedies and

affirmed the District Court’s refusal to grant an injunc-

tion against the railroad’s action. The court held that

the union’s previously-issued § 6 notice did not convert

the dispute into a major one, even though the revisions

sought by the union might involve some of the same

proposals involved in the minor dispute.

In Rutland Ry. v. Brotherhood of Locomotive Engi-

neers, 307 F.2d 21 (2d Cir. 1962), the carrier had at

2° See also Walker v. Southern Ry., 385 U.S. 196 (1966) ; Roberts

v. Thompson, 107 F. Supp. 775, 776 (E.D. Ark. 1952). Similarly, .

numerous cases hold that the District Courts have no jurisdiction

under the Railway Labor Act to award damages for wrongfal dis-

‘charge. Buster v. Chicago, M., St. P. & P. R.R., 195 F. 2d 73

(7th Cir. 1952); Barnhart xv. Weetern Maryland Ry., 128 F. 2d

709 (4th Cir. 1942); Hayes v. Umon Pacific R.R., 184 F. 2d 337

. (9th Cir. 1950) ; United R.R. Operating Crafts v. Northern Pacific

Ry., 208 F. 2d 135 (9th Cir. 1953), cert. denied, 347 U.S. 929

(1954) ; Hettenbaugh v. Air Line Pilots Ass’n, 189 F. 2d 319

(5th Cir. 1951) ; Roberts v. Thompson, supra.

26m age ERIE NIE NMEA EVO APT ARES PTE Fs

WE Yet scents en EASET ER. |

DE RV DR at CAI wo

first proposed under § 6 to change any portions of the

existing agreement which might prevent it from con-

solidating, altering or abolishing terminals and runs. |

However, concerned during the delay about the rising.

unprofitability of several freight runs and concluding |

that it would be acting within its rights under the

existing agreement anyway,. it unilaterally abolished

_ several freight runs. The court held this to give: rise

to a minor dispute (regardless of the previous notice .

about the possible changes), observing:

[ W Je should not in the process of classifying this

dispute as major or minor thereby also adjudicate

the merits of the controversy between the parties.

_If this is a minor dispute, a decision on the merits

of the dispute is the function of the National Rail- |

road Adjustment Board; and if this is a major

dispute the outcome of the parties’ difference is to

be determined by extra-judicial forces and pro-

cedures [307 F.2d at 33].

In Hudson & Manhattan R.R., 172 F.Supp. 399

ASD.N.Y.), aff'd per curiam sub nom. Stichman v. .

General Grievance Comm., 267 F.2d 941 (2d Cir. 1959), .

cert. denied, 363 U.S. 843 (1960), the layoff of unneeded

employees following: acquisition of new equipment, as-

serted to’ be within the carrier’s general rights not

abrogated by the existing agreement, created a minor

dispute; a strike by the union, not ba layoff, was en-

joined.**

30 See also Norfolk & P.B.L. R.R. v. Brotherhood of Railroad

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

914 (1958), where the railroad established a new yard at which

crews would be required to report for duty. The Fourth Circuit

found a minor dispute as to whether the action was within man- |

agement’s prerogative under -existing agreements and held the

matter subject to final determination by the adjustment board.

(Cont. )

rs}

The action of the court below: also conflicts with its

own disposition of other cases. Directly in pojnt in

facts as well as applicable law is Brotherhood of Loco-

motive Engineers v. Central of Georgia Ry., 341 F.2d

213 (Sth Cir.), cert. denied, 382 U.S. 841 (1965).

Following ICC approval of the sale of Central’s stock

to Southern Railway, Central gave notice to its em-

ployees that it no longer needed their services due to

the, resultant consolidation of operations. The court,

holding that the dispute was a minor one, stated:

[I]t does not follow that every time a carrier takes

unilateral action that may affect ‘‘rates of pay,

rule$ or working conditions’’ then Section 6 must

be invoked on the theory that the carrier is thus

intending to effect a ‘‘change in agreements affect-

ing rates of pay, rules or working conditions”

whith the parties here both agree can be accom-

plished only in the manner provided under Section

‘6 of the Act. The Central of Georgia Railway does

not purport fo and has not suggested an intention

to make a ‘‘change in the agreements affecting

rates of pay, rules or working conditions” [341°

F.2d at 216; emphasis by the court].

The court in that case relied on its earlier decision *

of similar effect in St. Louis, 8.F. & T. Ry. v. Rail-

road Yardmasters, 328 F.2d 749 (5th Cir. 1964), where

the railroad’s plan to abolish some yardmaster posi-

tions was viewed as producing a minor dispute depend-

ing upon the construction of. its rights under the exist-

Similarly, the general abolition of positions which are no longer

either necessary or economically useful do not constitute changes.

in agreements affecting working conditions but at the most give

rise to minor disputes regarding the carrier’s right to take such

action under existing agreements. Nunn v. Missouri Pac. R.R.,

248 F. Supp. 304 (E.D. Mo. 1966); Pennsylvania R.R. v. Local

#013, Railroad Workers, 178 F. Supp. 53 (E.D. Pa. 1959).

‘

* Da al ST pea

ing contract. In réversing the decision below, the Fifth —

Circuit observed that the union and District Court had

‘‘fallen into the error of assuming that whenever an

_ issue arises between the carrier and the Union relating

to ‘rates of pay, rules, or working conditions’ then

Section 6 must be invoked”’ (id. at 753).

The Court of Appeals in the instant case thus made

a series of. mistakes in reaching it erroneous result:

1. The original and basic error was in designating

this as a major dispute. .

In Risin, J.d EH. Ry. v. Bate 325 U.S. 711, 723

(1945), this Court described major disputes as Uhone

* *.* over the. formation of collective agreements

or efforts to secure them. They arise when there

is no such agreement or where it 1s sought to change

the terms of one, and therefore the issue is not

whether an existing agreement controls the contro-

versy. . They look to the acquisition of rights for

the future, not to the assertion of rights claimed

to have vested in the past’ [emphasis added].

Congress thus gave the National Railroad Adjustment

_ Board (or system boards of adjustment specially cre- .

ated to bear the same responsibilities) exclusive juris-.

diction to interpret and apply the terms of ezisting

collective bargaining agreements in resolving disputes

- arising thereunder when submitted by either party.

31 It has consistently been held that ‘‘The Act does not interfere -

with the normal right of the employer to select its employees or

discharge them, or to create and abolish positions, = slong as it:

does not-impair the collective bargaining process.’’ Beeler v.

Chicago, R.I. & P. Ry., 169 F. 2d 557, 560 (10th Cir. 1948), cert.

denied, 335 U.S. 903" (1949).

}

ere

' No one, including SIU, questions that if this is a

- minor dispute, the statutorily-established adjustment

board ‘has primary exclusive jurisdiction. Slocum v.

Delaware, L. & W. R.R., 339 U.S. 239 (1950) ; Order.’

of Railway Conductors v. Pitney, 326 U.S. 561 (1946).

Nor does anyone question that, as the Court of Ap-

peals said, the dispute is a minor one if the Agreement,

‘‘by its terms [or] réasonable implication therefrom,

&* Suapparently affords some arguable basis’’.for the

employer’s action (351 F.2d at 188; emphasis added).

The sole issue, then, is whether the Agreement in this

. ease apparently afforded such an arguable basis for

Galveston’s action. Clearly it did.

As pointed out in our Statement, one article in the

_ Agreement, carefully complied with by Galveston, pro-

vided for seven days’ notice before employees wére

‘laid off.’” The Court of Appeals concluded that Gal-

veston’s action ‘‘was not, and cannot even remotely be

justified as a ‘lay off’ *.* *’? (351 F.2d at 189). Yet the

SIU itself has repeatedly, from the very inception of

‘ this case, called Galveston’s action a “‘lay off”’ or “‘lay-

ing off,’’ ** and surely common understanding of this |

term would encompass this meaning. But if there is

some question in this connection, its resolution. falls

precisely wtihin the statutory responsibility ofthe

Adjustment Board, whose members ‘‘understand the

railroad problems and speak the raliroad jargon.”’

Slocum v. Delaware, L..W. R.R., 339 U.S. 239, 243 |

* Telegram to W. H. Sandberg, Galveston Wharves Board of

“Trustees, dated August 1, 1964; Telegram to James.Balthrop, Port

Richmond Elevator Co., dated August 1, 1964; Telegram to-Bunge

Grain Corp., dated August 1, 1964; Telegram ‘to Mr. Sandberg,

dated August 19, 1964; SIU picket signs July 31—October 4, 1964

(see Umted Industrial. Workers, supra); Brief before the Fifth

Circuit dated November 1967, p. 24. ¥

WEB orntoreweransncegs

‘ts

cific Co., 398 F.2d 443 (9th Cir. 1968).

Moreover, while the Court , Appeals at one point

stated that Galveston went out of business, at another

point in the same opinion it held that Galveston,did _

not go out of business (supra, n. 4). And finally, »

_ the holding of the Court of Appeals that Galveston

terminated its Agreement during the term of the

nt (351 F.2d_at 189) flies in the face of the

nding that on August 13, 1964, SIU +‘re-

_ quested opening of the contract which at slaimed was

in force Since it considered Port Richmond as a suc-

- cessor’? (United Industrial Workers, the? emphasis

added). The point is not which answers to these issues

were correct but rather that the issues should have

been resolved in the first instance by an administrative

tribunal instead 6f a court, for clearly there was an

arguable basis for treating Galveston’s action as a.lay-

off covered by the Agreement.

Another article in the Agreement reserved broad

management rights to Galveston. Such a mare ae TA

rights ‘clause has been held to waive a union’s right

to bargain over an employer’s good faith decision to

close a plant. Ador Corp., 150 N.L.R.B. 1658 (1965) ;

Druwhit Metal Products Co., 153 N.L.R.B. 346 (1965).

See also NLRB v. Adams Dairy Inc.; 350 F.2d 108 (8th

Cir. 1965), cert. denied, 382 U.S. 1011 (1966) ; General

Motors Corp., 149 N.L.R.B. 396 (1964). Certainly the

article provided, at the very least, an arguable basis

for Galveston’s\action. This being so, the — was

a minor one. ,

2. Even if the Court of Appeals was correct in find-

ing that the basic dispute is a major one, it does not

- follow that the disputé over backpay is also major.

The District Court pointed out in its opinion of June

20, 1966 (App. D): - 3

The moving force behind the action herein taken

is the finding by the Court of- Appeals that the -

dispute over the leasing of the elevator is major

rather than thinor within the meaning of:the Rail-

way Labor Act. However, a portion of the relief

sought by plaintiff relates to berffits and wages

“due under the contract.. This Court is, of course,

without jurisdiction to determine what. wages and

other benefits have accrued under the terms of

the Labor Agreement herein found to have re-

“ mained in force until September 30, 1964. * * *

The amount of wages and benefits due must be

resolved by interpretation of the existing contract.

This is a ‘‘minor dispute’? which ultimately must

be referred to and determined by the Railroad

Adjustment Board, if not disposed of -by- agrée-

men.” * *

3. Even if the Court of Appeals correctly held that

the backpay issue is a major dispute, the cojirt never-

theless reached the wrong result. For as udge Bell

pointed out in dissent to the court’s original opinion,

the Darlington case holds that an employer has the

right to close a_part of its business so long as. there

is no showing of an anti-union purpose (351 F.2d at

193). Even the majority of the court conceded that

no such anti-union purpose was involved in this case

(351 F.2d at 184). :

4. Even if the District Court had jurisdiction to

grant batkpay, it clearly should have declined to do

‘e

33 Textile Workers of America v. Darlington Mfg. Co., 380 U.S.

. 263 (1965).°

PRR NF ee IRIN

8 en ee IN Fah

so under the doctrine of primary jurisdiction. As thé

District Court pointed out’ in its opinion of May 3,

1967 (App. G): ‘This doctrine, as defined in U. S.

v. Philadelphia Nat. Bank, 374 U.S. 321 (1963), re-

quires judicial] abstention in cases where protection —

of the integrity of a regulatory scheme dictates pre-

leninary resort to the agency which . Cane head

scheme.”’

5. Finally, no award should have been ordered in

this case without affording Galveston a fair and com-

plete hearing on the facts. Not a word of oral testi-

- mony. has ever been taken. Galveston has repeatedly

attempted, without success, to introduce evidence as

to industry practices, the financial condition of the

Elevator B operation, and many other matters.

The Court of Appeals treated the issue of backpay

as a relatively simple one, with ‘‘suffteient guidelines”’

already marked out ‘‘to chart our eoursé in these

waters.’”’ 400 F.2d at 327. The District Court took

a different view. In its opinion of May 3, 1967 (App.

G), the District Court found that. problems relating

to backpay “brought to the Court’s attention by both

parties’? would ‘‘require research into entirely un-

‘familiar fields.’’ The fact is that this is an extraordi-

narily complex area. A few of the many problems that

could arise in this very case are these:

(1) There is the issue as to whether and to what

‘extent the affected employees have sought other em-

ployment. ‘‘[A] substantial number of Awards of

this Board have firmly established the rule that a _

Claimant is obligated to mitigate alleged damage’ by

seeking and accepting comparable employment to which

entitled by his seniority’? (National Railroad Adjust-

ment Board (NRAB) Award 14588, March 10, 1967).

As pointed out in our Statement, Port Richmond spe-

cifically invited SIU members to apply for work, only

one man applied, and he was hired. It may be that

the mentbers already had other jobs.* Regardless of |

what the situation is, it must be determined by the

appropriate tribunal, because a failure to attempt to

obtain suitable employment definitely should result

in deductions from backpay.*°

(2) Backpay must be limited to the expiration date

of the contract. NLRB v. George E. Light Boat Stor-

age, Inc., 373 F.2d 762 (5th Cir. 1967). A substantial

question exists as ft whether and when the contract

expired. . ;

-—

(3) There will be questions as to- whether the em-

ployees have been drawing compensation from the

Railroad Retirement Board. See NRAB First Divi-

sion Award 19 208, S, T’ v. CRI&P; NRAB First Di-

vision Award 19 545, T v. CNO&TP.

(4) The Agreement with the SIU guaranteed a

forty-hour week but not overtime. If the employees

received backpay based on average gross earnings

received over the last six months, they ‘would receive

payment for overtime work never performed and not .

guaranteed by the Agreement.

34 The union stated in a brief to the Fifth Circuit that if the

employees were rehired, “they would have to give up jobs pro-

cured in the interim * * * ”’ (Brief dated September 1967, p. 9).-

% Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 199-200 (1941) ;

NLEB x. Southern Silk Mills, Inc., 242 F. 2d 697, 700 (6th Cir.

' 1957), cert. denied, 355 U.S. 821 (1957) ; NLRB vy. Armstrong Tire

& Rubber Co., 263 F. 2d 680, 683-684 (5th Cir. 1959).

_omegeEgES .

(5) There undoubtedly would be questions about _

retired employ ees—questions which the Court of Ap-

peals left open.

(6) The eourt also note® but did not resolve ques-

tions relating. to employee contributions to the Sea-

‘ farers Welfare Plan.

(7) There will be issues over those employees, if any,

who have died since August 1, 1964.

(8) What will be the situation in regard to new

employees who were hired before August 1, 1964, but

after or during the six-month period for tilevinting

average earnings ? ;

(9) The Railroad Adjustment Board does not allow

interest on backpay. See NRAB First Division Award

12 476, T v. TRRA of STL. On NLRB awards, some »

Courts of Appeals have allowed interest and some have

not. Obviously, this will be an issue that must he

resolved.

But these are ‘Sat the lalla Mind other

questions: arise in cases before appropriate administra-.

tive tribunals. Some of the many problems are illus-

trated by labor decisions mentioned in the footnote.”

36 (1) In discrimination cases, backpay has been denied to those

union members who, although discriminatorily laid off, would have

been laid off for economic reasons even if no discrimination had

been practiced. NLRB v. Carolina Mills, Inc., 190 F. 2d 675 (4th

Cir. 1951).

(2) A backpay order for employees discrimiinatorily discharged

_ has been held to amount to no more than would equalize earnings

with other employees. They should not be awarded for time that

the plant was standing idle. NLRB v. Stilley Plywood Co., 199

F. 2d 319 (4th Cir. 1952).

(3) There are problems relating to the date of an offer of rein-

statement, which must be found in order to determine the termina-

Surely there is no basis for suddenly casting on the

federal courts this new burden of resolving these many .

and varied questions in the first instance. Indeed,

tion of the liability period. Nashville Corp., 94 N.L.R.B. 1567

(1951).

(4) There is no liability for backpay during a period while

- employees would have been out on strike anyway. United States

Cold Storage Corp., 96 N.L.R.B. 1108 (1951).

(5) Backpay may be based on the earnings of another com-

parable unskilled laborer when employment is not fixed, on the

assumption that the claimant would have the same opportunities

for work at the same wages. Pugh and Barr, Inc., 102 N.L.R.B.

562 (1953), aff'd, 231 F.-2d 558 (4th Cir. 1956). .

(6) The fact that the length of work-weeks will frequently vary

must be taken into account. Deena Artware, Inc., 11 .L.R.B.

371 (1955).

(7) Baeckpay may be denied for failure of an employee to co- _.

operate in determining the amount due or for lack of evidence

regarding interim earnings. Efco Mfg.. Inc., 111 N.L.R.B. 1032

(8) Two or more employees may be jointly and severally liable

for backpay. Norma Mining Corp., 101 N.L.R.B. 944 (1952).

(9) Actual physical inability to work during the period may

reduce backpay accordingly. NRAB First Division Award 18526,

F. v. MSTP&SSM; Pacific American Shipowners Ass’n, 98 N.L.R.B.

582 (1952). “W

(10) Backpay may include an increase for a promotion which

the employee would have received. Underwood Machinery Co.,

95 N.L.R.B. 1386 (1951).

(11) Expenses for moving to another location where reinstate-

ment is offered have been allowed. Symns Grocer Co., 109 N.L.R.B.

346 (1954). «

(12) A customary allowance for quarters and meals has some-..

times been included. West Texas Util. Co., 109 N.L.R.B. 936

(1954).

(13) Questions often arise as to vacation pay during the period

in question. Moss Planing Mill Co., 110 N.L.R.B. 933 (1954).

See also NRAB First Division Award 19 964, T. y. StL-SF.

(14) Questions relating to Workmen’s Compensation benefits

and health and welfare benéfits must be considered. NLRB y.:

IN CO POLI tis OEY,

there is every reason to leave them to the bodies cre-

ated by Congress for this purpose.

The Court of Appeals has ordered ‘‘sanctions’”’

against Galveston, and yet it was SIU that—after meet-

ing with Galveston on several occasions about the lay-

offs, agreeing to arbitrate its grievance, and designating

Moss Planing Mill, 224 F. 2d 702 (4th Cir. 1955); NRAB Inter-

pretation No. 1 to Fourth Division Award 2034.

(15) Travel expenses for interim employment in excess of travel

costs to the employer’s plant have on occasion been included.

West Texas Util. Co., 109 N.L.R.B. 936 (1954).

(16) Sometimes questions arise as to Christmas gifts to em-

ployees during the period at issue. Moss Planing Mill Co., 110

N.L.R.B. 933 (1954).

(17) Insuranee benefits have been held to go to the estate of a

deceased employee. Dayton Coal & Iron Corp., 101 N.L.R.B. 672

(1952). :

(18) Veterans’ on-job subsistence pay received while an em-

ployee was out has been deducted from backpay. Somerville Cream

Co., 106 N.L.R.B. 1155 (1953).

(19) Issues have arisen ag to whether union dues over what

- would normally have been paid should be disallowed. West Texas

Util. Co., 109 N.L.R.B. 936 (1954).

(20) There may have to be an exclusion for the estimated effect

that a seasonal shortage of work would have had on the backpay’

of an employee. NLEB v. Sterling Furniture Co., 227 F. 2d 521

(9th Cir. 1955). .

(21) Medical maternity benefits payable under group insurance

may or may not be awarded to backpay claimants who’ bore

children during the period. . Deena Artware, Inc., 112 NLRB.

371 (1955).

(22) Similar questions arise as to other medical and _ hospital

expenses; group insurance and life insurance. NRAB Second

Division Award 3883; NRAB Second Division Award 4793; NRAB

Second Division Award 4866. a

(23) Issues arise as to the deduetion of taxes. See NRAB First

Division Award 19 208, T. v. CRI&P.

/ ae od

— a .

‘ 39

” its representatives to the System Board of Adjust-

ment—then ceased prosecuting its claim and called

a strike. No one has ever alleged that Galveston has -

not acted in good faith or that it ‘has reflected any

~ anti-union animus in leasing an unnecessary and eco-

nomically-unsound portion of its business, dealing with

SIU according to its rights as it saw them. Even if

this were an appropriate case for sanctions, which we

deny, the Act itself provides the dorrect sanction by

making a ‘‘willful failure or refusal’’ to comply with

the court’s demands a misdemeanor punishable by fine

or imprisonment. 45 U.S.C. §152, tenth. The fed-

eral courts, in a proceeding to enforce a proper order

of the Adjustment Board, also has at its disposal- all

of the sanctions for contempt of its directions. Here,

no determination of the respective rights of the parties

has been made; no ‘‘sanction’’ could possibly be viewed

-as appropriate.

- The assumption is not that the court must be allowed

to act in these circumstances. On the contrary, unless

the Act explicitly allows a.judicial remedy, ‘‘the as-

sumption must be that Congress fashioned a remedy

available only in other tribunals.’’ General Committee

of Adjustments v. Missouri-K-T R.R., 320 U.S. 323,

337 (1943).

- Phe respondent union, sores that it could find

no statutory or decisional authority to support its re-

quest for judicial relief, was quite frankly asking the

Fifth Cireuit:to fashion an entirely new remedy under

the Railway Labor Act. The Fifth Circuit complied.

We stibmit that theré is no basis in law or in public

‘policy for adding another handicap to the effective

functioning of the federal judiciary by depriving it

_of the benefit of initial (and aiid final) resolution

sa i ae a as A cea

of these problems by responsible administrative bodies.

This Court must establish once and for all that primary

and exclusive jurisdiction: ‘conferred by the Congre ess

is not to be disregarded.

CONCLUSION

The Fifth Circuit in this case has taken two un-

precedented steps, one of which will have an important

and adverse impact upon federal-state relations and

the other of which will have a similar impact upon re-

lations between the federal judiciary and congression-

ally-created administrative tribunals. Both steps resu't

in conflicts between circuits. We respectfully suggest

“that this Court, not the Fifth Circuit, should finally

rule on two such important innovations in the law.

And we respectfully urge that the decision below be

reversed.

one submitted,

V. W. McLEop .

808 Sealy & Smith

- Professional Building

Galveston, Texas 77550

EK. BARRETT PRETTYMAN, JR.

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

Counsel for Petitioners

Of Counsel: -

Hogan & Hartson

815 Connecticut Avenue, N.W.

Washington, D. C. 20006

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