# Petition for Writ of Certiorari — Board of Trustees v. United Industrial Workers of Seafarers International Union > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0893%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 395 U.S. 905 ## Text INDEX ane | : oe Page 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 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 ‘ ‘a bo ° > SE ET LEA LE eG OS lr SO Sh ia a Stet a adhe i eee ter Jn ad SE a a REIRSON NAT Dee Dee ‘ Seabee , eibeliee | oe a | 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 a 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 4 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 6 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). ee 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 ¢ 9 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. | : x 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 6 \ 10 _ 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 11 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 12 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 . - is ae 13 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 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. sj CF . 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]. ‘ - oe - 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. 2 * 23 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 24 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 25 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 . ee 2a AOL ETE, EIS LIL OY eee te ed * rj a ELPA PNE TEEPE PR ET I ET, Ps as 26 _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. i | 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 28 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} 29 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 - 30 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). } P| 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 (1950). See also Switchmen’s Union v. Southern Pa- © 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 t 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 4 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 34 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- 35 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 . 36 (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- 37 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 © (1955). (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, 38 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 40 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0893%3A1. Public record. Not legal advice.