Petition for Writ of Certiorari — Louisville & Nashville Railroad v. National Mediation Board

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PREME COURT. U. B.

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IN ane ‘

Sure COURT OF THE UNITED STATES

OCTOBER TERM, 988. /969 —

No. MEE 200

LOUISVILLE & NASHVILLE.RAILROAD COMPANY, &

ET AL., Petitioners, —

Vv.

NATIONAL MEDIATION BOARD, ET AL., Respondents.

DISTRICT OF COLUMBIA CIRCUIT.

Francis M. SHEA ~

RicuHarp T. Conway

WiiuiAM H. Dempsey, Jr.

Davip W. MILLER } -

734 Fifteenth Street, N.W.

Washington, D.C. 20005

Of Counsel: JAMES A. WILCOx ~

SHEA & GARDNER 1225 Connecticut Avenue, N.W.

734 Fifteenth Street, N.W. Washington, D.C. 20005

Washington, D.C. 20005 Attorneys for Petitioners.

“JUN 5 1969

_ PETITION FOR A WRIT OF CERTIORARI TO/ THE’

UNITED STATES COURT OF APPEALS FOR THE

anes

JOHN F. al CLERK

sa to eS

- Ge

TABLE oF ConTENTS

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CITATION TO OPINIONS BELOW.........___. :

JURISDICTION ....... a PENG cigte

AQUESTIONS PRESENTED... at

STATUTES INVOLVED...,._ ,

STATEMENT .......... Pare ny

1, Summary of the case....... Vereen ruwn ous ee

Page

3. The NMB’s refusal to resolve the dispute......

4. The Sixth ’Circuit'litigation.....'.°..._. ra

9. Proceedings below....... eee eee bee ioe

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2. The decision below is not compelled by the

the Railway Labor Act....... ehh Foaea eae 15

a. The policy of the Act and the legislative

history of Section 2,Ninth...........__. 15

_b. The statutory. language, Board practice

and regulations...................... 7. 17

B. The Right of the Firemen To Compel the.

Carriers To Bargain About Apprentice Engi-

ee ee a 22

C. Importance of the Issues Presented........... 30

CONCLUSION ........ SRP Maa Rowe oUt ad os 33

(1)

SOON Wwe to DD eB

| : Appendix

APPENDIX: | "Page

OPINION OF THE COURT OF APPEALS..... ee |

JUDGMENT OF THE COURT OF APPEALS. . 20

FINDINGS OF FACT AND CONCLUSIONS OF

+ LAW OF THE DISTRICT COURT........... 21 .

’ JUDGMENT OF THE DISTRICT COURT...... 35

LETTER-OPINION AND ORDER OF THE:

‘NATIONAL MEDIATION BOARD........... 38

EXCERPTS FROM THE RAILWAY LABOR

BE re ee ea ee ee ee . 42

; TABLE or Cirations*

Cases: ap é Page

American Airlines, Inc., 2 NMB 8 (1953)......... 22, 32.

Brotherhood of Locomotive Firemen &. Enginemen _

v. Central of Georgia Ry., — F.2d — (5th Cir.

Nob 815, May 2,1969)...................... 10, 13

Otherhood of Locomotive Fire. & E. v. Louisville

& N. R. Co., 400. F.2d 572 (6th Cir. 1968), cert.

denied, 393 U.S. 1050........... 0.0.2.2... 9, 11-12, 13

Brotherhood of Railroad Trainmen v. Akron &

Barberton Belt R.-Co., 385 F.2d 581 (D.C. Cir.

_ 1967), cert. denied, 390 U.S. 923...... aT are 5, 6

Brotherhood of R. Trainmen v. National Mediation

Board, 135 F.2d 790 (D.C. Cir. 1943)........... 22

. Broth¢rhood of Railroad Trainmen v. Smith, 251

Ree (re Gee. BW). ak es oi ei 25

Brothethood of Ry. & S.S. Clerks v. United Trans-

port Service Employees, 320 U.S.-715.......... 19, 22

. Carey v. Westinghouse Corp., 375 U.S. 261........ 30

Chicago & N.W. Ry., 1 NMB 130 (1938), denial of a

- injunction against enforcement aff’d sub nom.

Bro. of R. Trainmen v. National M. Board, 135

F.2d 790 (D.C. Cir. 1943). .... 2.2.00 0002... 0 0 29,

Chicago & N.W-Ry., 2 NMB 169 (1949).......... 29

Chicago, N.S. & M. R.R., 3 NMB 101 (1953)...... 99

* Citations to “NMB” are to the three volumes of “Determinations of

Craft or Class of the National Mediation Board,” which the Board has

published at oe intervals.

III

| Cases—Continued — Page

Delaware & H. R. R., 1 NMB 270 ( 1943) ai TPR es 22

Elgin, J. @ E. R. Co. v. Burley, 325 U.S. 11 eee 24

Erie-Lackawanna R.R., NMB File No. C-3642 (Auk.

RE GGG otha Sadar er nneee aeenanan “32

Flight Engineers Inter. Ass’n v. Eastern Air Innes,

Ine., 311 F.2d 745 (2d Cir. 1963)............... 27, 28

Frontier Airlines, Inc., NMB File No.. C-3802 |

eS Be ee Se eee ere 32

General Committee v. M.-K.-T. R. Co., 320 US. :

ee eid + eee korea 13, 17, 24, 30

General Committee v. So. Pac. Co., 320 U.S. 338. . 13 _ s

Great No. Ry., 3 NMB 144 (1953) ................ «B82

Howard v. St. Louis-San Francisco Railway Com-

pany, 361 F.2d 905 (8th Cir. 1966). ............. 14-15

Kansas City Term. Co., 2 NMB 238 (1953) ....... ‘ 22

Lakefront D. & R.T. Co., 2 NMB 101 (1948)...... ° 19

Machinists v. Street, 367 i “eer oe

McDonnell Co., 173 N.L.R.B. No. 31, 1968-2. CCH-

NLRB 20, 244 Ee Sr eee ae ee esd sk a3 30

Northwest Airlines, Inc.,2 NMB 19 (1948)........ 19

Order of Railway” Cond. & Brake. v. Switchmen’ s

Union, 269 F.2d 726 (5th Cir. 1959)............ 25

Pan American World Airways, Inc., 3 NMB 41 ©

oe os Oe ee ee a oak bes 32

Pennsylvania R. Co. v. Rychlik, 352 U.S. 480...... 16

Railroad Trainmen v. Howard, 343 U.S. 768...... 14

Ruby v. American Airlines, Inc,, 323 F.2d 248 (2d

51 eg? PSO gre oe ere ae eek ie Sige 27, 28

St. Paul Union Depot Co., 1 NMB 181 (1940), in-

junction against enforcement rev'd sub nom. Bro.

of Ry. &é S.S. Clerks v. United Transport Service

Employees, 320 U.S. 715...........0.... oats 19, 22

Southern Pacific.Co. v. Switchmen’s Union of

- North America, 356 F.2d 332 (9th Cir. 1965). . 15, 20, 25

_ Steelev. L.& N. R.Co., 323 U.S.192........ ER be ' 24

Switchmen’s Union v. Board, 320 U.S. 297........ 13, 14

Switchmen’s Union v. Southern Pacific Co., 253 ;

F.2d 81 (9th Gir. 1958)....................... 25

Texas & N. O. R. Co. v. Ry: Clerks, 281 U.S. 548. . 16

NMB, 34th Ann. Rep. (1968)..................-.

-Cases—Continued ; Page

Texas & Pac. Ry., 2 NMB 234 (1952) PE Oe eee . &

Trans-Texas Airways, Inc.,3 NMB 16 (1956)..... 32

‘Transportation.Union v. U P. R. Co., 385 U.S. 157. . 32

Union R.R., 1 NMB 336 (1946)...........0.4.... , 22

. United Air ‘Lines, Inc., 3 NMB 35 (1957) .:.....-. 32

United Air Lines, Inc., 3 NMB 56 (1961).......... 32

Virginian Ry. v. Federation, 300 U.S. 515 (1937).. 22-30 -

Wabash Ry., 1 NMB 90 (19388)..........0 20000... 22

Wirtz v. Bottle Blowers Assn., 389 U.S. 463...... 16

Woodwork Manufacturers v. NLRB, 386 U.S. 612. . 16

Statutes:

Railway Labor Act:

| Section 2, 45 U.S.C. §15la.,...........0...... 16

Section 2, Second,45 U.S.C. §152, Second....... 29:

Section 2, Third, 45 U.S.C. $152, Third......... 23, 24

Section 2, Fourth, 45 U.S.C. $152, Fourth...... 23, 24

Section 2, Ninth, 45 U.S.C. §152, Ninth ........ passim

Section 8, 45 U.S.C. §153......... Mee cee 22,32 :

Section 5, 45 U.S.C. §155......::.05..6....... 8, 29

Section 6, 45 U.S.C. §156................. 6, 22, 93, 29

Section 201, 45 U.S.C. §181............05..0...5. 30.

Public Law 88-108, 77 Stat. 132 (1963), 45 U.S.C. .

NI I sk co hr ra nee be ok eh a 5)

Amendments to the Railway Labor Act, 48 ate

ie eal ae ena wae 16:

28 U.S.C. § ES aa sh coe ech eee eee 2

Miscellaneous:

Hearings on H.R. 7650, House Committee on Tater:

state and Foreign Commerce, 73d ‘Cong., 2d :

tc ons beet aes te yas swrencee yee 17

NMB, Regulations, 99 C.F-R. § 1208.2.>.......... 21 .

Z IN THE . a

SUPHEME ‘COURT OF THE UNITED STATES -

OCTOBER TERM, 1968

No. ae

LOUISVILLE & NASHVILLE RAILROAD COMPANY,

ET AL., Petitioners, - | —_

Vv.

NATIONAL MEDIATION BOARD, ET AL., Réspowdents.

PETITION FOR A WRIT OF CERTIORARI TO THE ~~

. UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT. F

Petitioner prays that a writ of certiorari issue to review °

the judgment of the United States Court of Appeals fore

the District of Columbia Circuit entered in this case on

March 14, 1969. : .

Citation to Opinions Below

The opinion of the Court of Appeals, which is not yet

officially reported, is printed in the appendix to this Petition

at pages 1-19. The findings of fact, conclusions of law, and

judgment of the District Court, which are reported at 284

F. Supp. 344, are printed in the appendix hereto at pages

* 21-37. The tetter-opinion and order of the National Media-

tion Board, ‘which is not officially reported, As printed in

the = hereto at pages 38-41.

(1)

Jurisdiction

The judgment of the Court of Appeals was enter on

March 14, 1969 (App. infra p. 20), and a timely petition

for rehearing was denied on April 29, 1969. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

Sani Questions Presented

Two unions, the Brotherhood of Locomotive Engineers

(the ‘‘Engineers’’) and the Brotherhood of Locomotive

Firemen and Enginemen (the ‘‘Firemen’’), asserted con-

flicting rights to bargain with the railroad petitioners re-

specting the rates of pay, rules, and working conditions of

apprentice locomotive engineers. The Firemen asserted

that the railroads were required to negotiate with the

Firemen and that, should negotiations not produce an

agreement acceptable to the Firemen, they would be entitled

to strike the railroads after exhaustion of the required

procedures of the Railway Labor Act. The Engineers, on

the other hand, asserted that they would be entitled to

strike the railroads if the_railroads bargained with the

Firemen. The railroads and the Engineers sought to have

the controversy resolved by requesting the National Media-

tion Board to determine which of the two unions™Wwae-the

bargaining representative of apprentice engineers. The

Board, however, refused to make such a determination.

The questions presented are: |

1. Is the National Mediation Board authorized and re-

quired, by Section 2, Ninth, of the Railway Labor Act (45

U.S.C. § 152, Ninth) to determine which of the contending

unions, if either, is the bargaining representative of ap-

prentice engineers?

2. Is the Brotherhood of Locomotive Firemen ond Engine-

men, prior to resolution of the jurisdictional dispute between

it and the Brotherhood of Locomotive Engineers, entitled

to require the railroads to apgain with it about the rates —

of pay, rules, and workin conditions of apprentice_engi-

neers and, if agreement isnot reached, to strike the rail-

roads?

Statutes Involved

The statutory provision principally involved is Section 2,

Ninth, of the Railway Labor Act (45 U.S.C. 152, Ninth).

That provision, together with several other pertinent parts

of the Act, is set forth in the appendix hereto at pages 42-50.

Statement -

While the two lower courts were not in accord respecting

the legal issues presented in this litigation, they did not

disagree. respecting the facts. Nor do we dispute in any

material fashion those courts’ statements of the facts. Ac-

cordingly, in this petition we draw our description of the

case in the main from the District Court’s detailed findings |

of fact and from the Court of Appeals’ principal and con-

curring opinions. °

1. Summary of the case. Petitioners are 6 railroads .

whose situation in this case typifies most of the nation’s

Class I railroads. Respondents are the National Mediation

Board and two labor unions that are locked in a jurisdic-

tional dispute over apprentice locomotive engiricer pro-

grams. Because of a need to suppl@Mment traditional sources

of engineers, petitioner Louisville & Nashville Railroad

(‘‘L&N’’) decided to establish such an apprentice engineer

program. It entered into a coftective bargaining agreement

respecting that program with the union that represents

1The Louisville & Nashville Railroad Company, the Southern Pacific

Company, the Great Northern Railway Company, the Illinois @entral

Railroad Company, the Seaboard Coast Line Railroad Company (desig-

nated as Atlantic Coast Line Railroad Company in the proceedings below

prior to the merger of that company with another aches and the St.

Louis Southwestern Railway Company.

- locomotive engineers, respondent the Brotherhood of Loco-

motive Engineers (the ‘‘Engineers’’). Angther petitioner,

‘the Great Northern, later followed suit. Still other rail-

roads, including the other petitioners, anticipated that they

would eventually need similar apprentice engineer pro-

grams. The controversy producing this lawsuit arose be-

cause a second union, respondent the Brotherhood ef Loco-

motive Firemen and Enginemen (the ‘‘Firemen’’), which

represents locomotive firemen, had also demanded the right

to negotiate respecting the terms and conditions of appren-

tice engineer programs on the nation’ s railroads.2 The

Engineers threatened to strike the railroads if they

negotiated’ with the Firemen. To avoid an impasse, both

the railroads and the Engineers asked respondent the

National Mediation Board (‘‘NMB’’) to determine which

union was entitled to negotiate on behalf of apprentice

engineers. The NMB, however, concluded that it lacked

statutory authority. The Engineers then commenced this

litigation. The District Court held that the NMB was

obliged to settle the controversy between the unions. More-

.over, the court held that the Firemen could not require the

carriers to negotiate with it unless and until the NMB de-

termined that the Firemen’s union was the bargaining

representative of apprentice engineers. The Court of

Appeals, however, reversed, being of the view that the NMB

had no jurisdiction, that both unions could serve conflicting

demands upon the earriers, and that either could strike if

those demands were not met. In short, this litigation was

generated by a jurisdictional dispute between two: unions

in which the carriers are caught in the middle unless the

2 After the hearing in this case, the Brotherhood of Locomotive Firemen

and Engingmen merged with several other unions to form the United

Transpo n Union. Since the record references are to the Brotherhood

of Locomotive Firemen and Enginemen, however, for convenience we refer

- to that union in this petition rather than to its successor.

3 \ ra

Court of Appeals’ decision is set aside. In more detail,

the facts are as follows: v

2. How the dispute arose. For many years, there had

generally been two employees assigned to work in the cabs

of railroad: locomotives, the engineer and. the fireman. In

the railroad industry, the representation.of employees by

labor organizations is on the basis.of craft lines, and the .

engineers and the firemen have been recognized as two

separate crafts. On each of the petitioner railroads, and

on most of the railroads in the country, the firemen h

been represented by respondent Firemen and the engineers .

by re&pondent Engine¢grs. (App. infra pp. 22-23.)

The fact in which the current litigation is ultimately

rooted is the technological obsolescence of the fireman’s

position brought about by the replacement of steam loco-- °

_ motives by diesel locomotives. In 1959, the erection: | 0- |

posed that, since that development had eliminated thé ‘task

of tending the fire in the engine, the fireman’s pdsition

should be eliminated. This proposal, which was resisted

by the Firemen, was followed by years of negotiation punc-

tuated by reports of two presidential boards basically sup-

porting the railroads’ position.* Since those reports did

not produce an agreement between the parties, and in the

face of a threatened nationwide strike, the Congress in 1963

committed the problem to arbitration by yet a third presi-:

dential board. Public Law 88-108, 77 Stat. 132, 45 U.S.C.

following § 157. The fesult was an award, commonly re-'

ferred to as Award 282,' that permitted the carriers to

eliminate ‘up to 90% of the firemen positions, subject to

_ 3 The Presidential Railroad Commission, chaired by Simon H. Rifkind,

and Emergency Board No. 154, chaired by Samuel I. Rosenman. See also

the detailed history of the dispute, referred to by the Court of Appeals

(App. infra p. 3), in Brotherhood of Railroad Trainmen v. Akron €&

Barberton Belt R. Vo., 385 F.2d 581 (1967), cert. denied, 390. U.S. 923.

4The Board appointed pursuant to P.L. 88-108 was designated,py the

NMB as Arbitration Board No. 282, hence the term “Award 282.”

SEP YLT RIT ap EE MEN OTE REE Bee |

provisions granting protection to existing employees. Ac-

cordingly, during the period since the effective date of

Award 282 (J anuar% 25, 1964), the carriers have had the

opportunity to, and have, substantially reduced the number

of firemen.’ (App. infra pp. 3, 23.)

This reduction in the firemen force also reduced the num- ..

ber of persons employed by the railroads who might be

promoted to engineer. Prjor to the arbitration award, the

. caryfers had looked to the pool of firemen as their principal

source of supply for engineers. After the award, it was

clear that, to the extent the provisions of the award could:

be put into effect, that source would be reduced and another

source might have to be tapped. (App. infra pp. 3, 23-25.)

In that connection, the Firemen’ in 1965 served upon the

nation’s railroads notices under Section 6 of the Railway

Labor Act (45 U.S.C. § 156) proposing the establishment

by agreement of an apprentice program for persons who

would be trained to become engineers, and seeking to fix a

* variety of detailed features of the program.® (App. infra

pp. 3-4, 26.)

The service of these notices triggered the acrimonious

inter-union dispute that led to this litigation.{ Shortly after

the notices were served upon the carriers, the Engineers

union advised the carriers that the Firemen’s riotices en-

5 While Award 282 expired on March 31, 1966, the courts held that the

rules established by, the award continue in effect until changed pursuant

to the procedures prescribed in the Railway Labor Act. Brotherhood of

Railroad Trainmen v. Akron & B.B. R.R. Co., 385 F.2d 581 (D.C. Cir.

1967), cert. denied, 390 U.S. 923 (1968).

6 Section 6 requires that “[¢]arriers and representatives of the employees

shall give at least thirty days’ written notice of an intended change in agree-

ments affecting rate of pay, rules, or working conditions.” The first of

these Section 6 notices was served in March of 1965 upon the L&N; the

second in April upon the Southern Pacific; and the balance in November

upon the other petitioners and more than 100 other carriers. (App. infra

p. 26.) While there are some differences among these notices, those dif-

ferences are not material. For the text of the notices, see the Appendix

in the court below, pp. 50-69, 79-97.

croached upon its jurisdiction because it was entitled to

represent apprentices training to become engineers, and

that the carriers could not lawfully bargain with the Fire-

men. The Engineers union, in the words of the District

Court, ‘has ‘‘since [then] consistently maintained-that posi- _

tion before the NMB and in this Court, as well as otherwise,

and threatens to strike and engage in other self-help against

any carrier that confers, negotiates, or otherwise agrees

with the [Firemen’s union] upon the merits of its appren-

tice notices.’’ The Firemen’s union, on the other hand,

‘thas claimed and it now claims that its apprentice notices

come within its jurisdiction . . . and that the carrier de-

fendants and the other carriers served with the said notices

are required by the Railway Labor Act to . . . bargain with

the [Firemen] about the merits of,the nanant made there-

in.’’ Moreover, ‘‘[t]here is substantial likelihood that the

[Firemen]... will engage in strikes or other self-help

against the carriers . . . if the procedures of the Railway

Labor Act are exhausted without an agreement being

reached between the said carriers and the [Firemen].’’

(App. infra pp. 4, 27.)

On the L&N, the need for an apprentice engineer program

materialized in early 1966, and accordingly. that carrier set

up such a program.’ It recognized the Engineers as the

designated and authorized bargaining representative for

apprentice engineers and entered into an agreement with

that organization. There is no indication that any of the

apprentice engineers who have been employed by the L&N

desire a different bargaining representative. (App. infra

pp. 4-5, 9 n. 17, 14-15, 25.)

3. The NMB’s refusal to resolve the dispute. Shortly

s 7 So too did the Great Northern the following year (App. infra pp. 5,

26), so that the issues relating to the L&N relate also to the Great Northern.

Since, however, the passages in the Court of Appeals’ opinion respecting

existing apprentice programs generally refer to the LEN, we follow suit

in this petition.

ey”

ere

FS EP ERAS TE rene TS Fe

3 rd

thereafter, on June 6, 1966, the carriers that had been

served with the Firemen’s notice, including the L&N and

the other petitioners, informed the National Mediation

Board about the dispute between the two unions and sought

its mediatory services so that the carriers might ‘‘be prop-

erly and legally informed as to which of the two disputing

___ organizations may legally bargain for. and on behalf of

apprentice locomotive engineers.’’ On June 21, 1966, the

: NMB declined this request on the ground that the ‘‘question

as posed involved a question of representation,’’ and that

‘¢[s]uch issues are resolved under Section 2, Ninth, of the

Railway Labor Act’’ rather than under the provision—

- Section 5—governing. mediation by the NMB. (App. infra

pp. 5-6, 28-29).

But when the Engineers accepted this suggestion and

so ag to the NMB under Section 2, Ninth, for a determi-

nation of the controversy on the L&N, the NMB refused

to act. On July 22, 1966, the NMB dismissed the applica-

“tion, stating<that Section 2, Ninth, does not extend to a

‘¢jurisdictional dispute as such,’’ and that ‘‘the dispute,

if any exists, is not a representation dispute; but may in-

volve an issue as to the right of the employees of one craft

or class to do the work that is alleged to be that commonly

_ done by employees of another craft or class. Procedures

other than those outlined in Section 2, Ninth, of the Railway

Labor Act are available to settle such disputes.’’? (App.

infra pp. 6, 30, 38-41.) A few days later, the Engineers filed

another Section 2, Ninth, application, this one relating to

the controversy on the Southern Pacific. At.the same time,

the Engineers asked the NMB to reconsider its dismissal of

the application respecting the L& and to tell the Engineers

what ‘‘procedures’’ it had in mind ‘‘other than those out-

lined in Section 2, Ninth, [that] are available to settle such

disputes.’’ The NMB did not reply to either the Engineers’

Southern Pacific application or its request for reconsidera-

tion and clarification. (App. infra pp. 6, 30-3T.)

4. The Sixth Circuit litigation. In the meantime, on June

25, 1966, the Firemién sued the L&N in the United States —-

District Court for the Western District of Kentucky, seek-

ing to enjoin effectuation of the L&N’s apprentice engineer

agreement with the Engineers. On July 5, 1966, the court

dismissed the action en the ground that:it ‘‘involves a

controversy between [the Firemen and’ the Engineers] .

as to which of those organizations is the exclusive heiciibe:

ing representative for and in behalf of the apprentice loco-

~—motive envineers employ ed by the L&N and this Court has

no jurisdiction to determine that’ controversy, the determi-

nation of which is exclusively within the jurisdiction of the ©

National Mediation Board. ’’ After the District Court judg-

ment in the case at bar, but before the Court of Appeals”

judgment, the Court of Appeals for the Sixth Circuit affirmed

the judgment of the Kentucky District Court on the same

grounds as were given by that court. Brotherhood of Loco-

motive-Fire. & E. v. Louisville & N. R. Co., 400 F.2d 572 .

(1968), cert. denied, 393 U.S..1050. (App. aed pp. 5, 29.)

5. Proceedings below. Despite the decision of the Ken-

tucky District Court, the NMB, at the Firemen’s vequest,

scheduled mediation ‘on both the Southern Pacific: and the

L&N regarding the Firemen’s Section 6 notices. The first,

and so far only, mediation session was held on August 4,

1966. On that same day, the ngineers filed their complaint

in the case at bar against the ‘Firemen, the ‘NMB, and the

earriers. The Engineers sought ax order requiring the NMB =

to resolve the jurisdictional dispute

men from compelling the carriers to negotiate unless the

NMB confirmed the Firemen’s right to bargain about ap-

prentice ehgineer programs. The carriers’ position was that

they were willing to bargain with whatever union was the

bargaining representative of apprentice engineers; that-the

NMB should make that determination; and¢hat until it did

the carriers could not be compelled to bargain with oriher

union. (App. infra pp. 7, 28.)

10°

The District Court resolved the issues in favor of the

Engineers and the carriers. It held that the NMB was

empowered and required by Section 2, Ninth, to determine

. Which union was the bargaining representative of appren-

tice engineers, and that unless the NMB determined that

that representative was the Firemen, the Firemen could not,

by a strike or otherwise, force the carriers to bargain about*

the Section 6 notices relating to the apprentice engineer

_ program. (App. infra pp. 31-35.)

The bourt of Appeals, however, reversed for reasons

we discuss in the subsequent portions of this petition.

Reasons for Granting the: Writ

| 3 ,

There can be little praise for the decision below in terms

of its practical consequences. .Two of the three judges of

the Court of Appeals observed that the decision. ‘‘ places

the carriers in the unhappy position of having to deal

simultaneously with two rival- unions whose bargaining

. demands will very likely conflict’’ and each of whom’ ‘‘will

have the right to strike,’’ so that the carriers ‘‘will be able

neither to avoid nor to resolve a strike by agreeing with

the striking union without the risk of violating its obligation

not to depart unilaterally-from its agreement with the other

Union.’’ Although those judges believed that this result

was a ‘‘wholly unsatisfactory ‘resolution,’ they thought

» that the existing ‘‘inadequate statutory scheme. leaves the

problems. posed by this litigation ‘falling between two

stools.’’’ (App. infra pp. 17, 19). The Court of Appeals

for the Fifth Circuit, in discussing the decision below, wryly

observed: ‘‘[T]he Court may itself be giving its de¢ision

the characterization that it is bound to be right because

it is so wrong in result.’? Brotherhood of Locomotive Fire-

men & Enginemen v. Central of Georgia Ry., — F.2d —

(No. 23,815, May 2, 1969) (slip op.p.3n.1). |

This Court should, we urge, grant review so as to consider

whether there is indeed a gap in the Railway Labor Act

that disables the NMB from resolving jurisdictional dis-

putes of-the sort here involved and that accordingly exposes

the carriers, and the public, to the perils of-conflicting de-

mands of competing unions enforce&ble by the weapon of

the strike. As we show below, there is solid basis for con-

cluding that the Congress did not intend such a result and

did not draft the Act so as to produce it. Moreover, as we

also show, the questions presented are of ‘widespread im- -

‘portance and the answers to those questions given by the

Court of Appeals conflict with decisions both of this Court.

and of other Courts of Appeals.

A. Tue JurispicTion or THE NMB unver Section 2, NINTH.

"We deal first with the question respecting the jurisdiction

of the NMB to resolve the controversy between the Firemen

and the Engineers. The decision of the Court of Appeals

on that issue is at odds with the views of. other courts of

appeals, departs from the Congressional purpose reflected

in the legislative history, does not accord with prior NMB

practice, and was not compelled by the language of the

statute. ate a ——,

ese se

1. The decision{below conflicts with decisions of other courts

of appeals.

We have described above the litigation that the Firemen

brought to enjoin enforcement of the apprentice training

program established by the L&N, and have noted that the .

‘ . complaint was dismissed by the trial court, that the dis-

missal was affirmed by the Court of Appeals for the Sixth

Circuit, and that certiorari was denied by this Court. Both

- lower courts were of the opinion that the dispute between

the two unions was for the National Mediation Board to

decide. Brotherhood of Locomotive Fire. & E. v. Louisville

SEROTEC SED RES YAO Lape

. » ,°

. ae: ‘ F

—

dé N. R. Co., 400 F. 2d 572 4968). The Court « of Appeals

stated (id., at 574-575) : Aes

“The Railway Labor Act i is a comprehensive statu-

tory plan for resolving disputes between transpor tatjon

companies and their employees. The Act looks toward

‘the orderly resolution of disputes and sets: up pro-

cedures whereby this goal may be accomplished. One

of the things condemned by the Act is unilateral action

by a party to an agreement which has the effect of

changing the status quo established by the agreement.

A United States District Court has — to

enjoin such action... . | ‘

‘‘However, there are certain tol Aisputes encom-

passed by the Act which may not be resolved by the

courts. One of these is a representation or jurisdic-

tional dispute between, labor wihions .... Congress .

has conferred exclusive jurisdiction upon ‘the National

Mediation Board to resolve such disputes: Section 2,

Ninth, of the Railway Labor eee U.S.C. § 152.’’

(Emphasis added.)

“lI t is noted that the United States District Court for the District .

of Columbia has recénfly ordered the National MMiation® Board to

“hear this dispute, the Board having originally declined to assume -

jurisdiction [citing the decision of the District Court in the .case at

har].”

That decision by the Sixth Circuit is squarely in conflict

with the decisiorf below. ‘To. be sure, in the Sixth Circuit

case the: relief sought was an injunction against the L&N

rather than an order requiring Board action and precluding

a strike by the Firemen, and the NMB-was not-a party to

the Sixth Circuit -litigation. However, the Sixth Circuit

held that an-injunction against the carrier could not be

granted because the dispute between the Engineers and the

Firemen as to the representation of apprentices on the L&N

f 13

was a jurisdictional dispute within tie exclusive jurisdiction

of the National Mediation. Board under Section 2, Ninth.

- In the decision below, in contrast, the Court of Appeals held

that the identical dispute between the Engineers and the

Firemen was not within the jurisdiction.of the Mediation

Board. The two decisions are in conflict with respect to ©

the very same dispute. .

Nor has this disagreement betes een the two courts gone

unnoticed by other courts.- In Me Central of Leorgia de-

cision cited above (p. 10); the Court of Appeals for the

Fifth Circuit, after commenting upon the District of Colum- -

bia Circuit’s recognition that its decision wrought undesir-

able results, concluded by saying: “To add to the confusion, |

this may put the D.C. Circuit. in conflict with the. Sixth’s”

opinion,”’ citing the Louisville & Nashville decision. .

The Sixth Circuit’s view respecting the scope of Section

2, Ninth, is shared by other court&, while ‘the D.C. Cir-

cuit’s is shared by none. The meaning of Section 2;

Ninth, was first dealt with in an important way by this

_ Court in three decisions in 1943. . Switchmen’s Union v.

Board, 320 U.S. 297; General Committee v. M.-K.-T. R.

CO., 320 U.S. 323; General Committee v. So. Pac: Ca, 320

U.8..338. The foous of those cases haa the jurisdiction

"of the courts rather than upon the jurfisdiction of the Board,

and accordingly this Court was not called upen to delineate

with specificity the types of jurisdictional disputes com-+.

mitted to the Board by Section 2, Ninth. However, this

Court. made it clear that the Board’s mandate ,is*broad.

‘Thus, in. the MM. -K.-1. decision, the Court observed that it

‘is clear from the legislative history of §2, Ninth that. it

was designed not only to help free the unions from~the

influence, coercion’ and control of thé carriers but also to

resolve a wide range of jurisdictional disputes between

unions or between groups of employees.’’ 320 U.S., at 336.

Again, in Switchmen’s Union, this Court stated that Section _

4’

2, Ninth, ‘‘was aimed not only at company-unions which had

long plagued labor relations ».. but also at numerous

jurisdictional disputes between unions.’’ 320 U.S., at 302.

That this Court was of the opinion that the type of juris-

dictional dispute here involved—a determination whether a

particular group of employees comes within one craft or

another—fell under Section 2, Ninth, is disclosed by the

latergopinion in Railroad Trainmen v. Howard, 343 U.S.

768, There the Court held that a judicial remedy was

available to train porters whose rights had been impaired

by a racially discriminatory agreement between a carrier

and a union by which they were not represented. In so

concluding, the Court noted that there was no administra-

tive remedy available to the parties because the dispute did

not ‘‘hinge on the proper craft classification of the porters

so as to call for settlement by the National Mediation Board

under our holding in Switchmen’s Union v. National Media-

tion Board. ...’’ Id., at 774. In remanding for entry of

an injunction, the Court instructed the District Court to

‘*bear in mind that disputed questions of reclassification of

the craft of ‘train porters’ are committed by the Railway

Labor Act to the National Mediation Board.’’ Id., at 775.

(Emphasis i in original.) But the case at bar does ‘‘hinge

on the proper craft classification’’ of the apprentice engi-

neers, and therefore should ‘‘call for settlement by the

National Mediation Board.”’

The aftermath of the Howard decision places another

Court of Appeals in opposition to the court below. After

this Court’s decision, the porters brought an action to re-

quire that they be included within the brakemen’s craft.

In affirming a dismissal of that action, the Eighth Circuit

Court of Appeals stated that it had ‘‘every reason to believe

that the Mediation Board, upon proper petition, would exer-

“tise its jurisdiction and competently determing any dispute”’

resp

Specting the craft classification of the porters. Howard

“

v. St. Lowis-San Francisco Railway Company, 361 F. 2d 905,

909 (1966).

Finally, we draw the Court’s attention to Southern Pacific

Co. v. Switchmen’s Union of North America, 356 F. 2d 332,

335 (1965). There the Ninth Circuit Court of Appeals, in

holding that a carrier was not required to bargain about a

Section 6 notice that threatened encroachment upon the craft

jurisdiction of another union, pointed to Section 2, Ninth,

as the appropriate means for resolving the jurisdictional

dispute: ‘‘That section, in providing for the certification

of bargaining representatives, would seem necessarily to

encompass the essential preliminary steps of fixing craft

lines and of resolving any inter-union disputes in that

respect.’’ Id., at 335. But the ‘‘fixing of craft lines’’ and

the ‘‘resolving of any inter-union disputes in that respect’’

is what the court below held the NMB could not do i in the

case at bar.

2. The decision below is not compelled by the language of

Section 2, Ninth, and is at odds with both the legisla-

tive history of that provision and with the fundamental

policies of the Railway Labor Act.

The Court of Appeals concluded that the language of

Seetion 2, Ninth, plainly precluded the NMB from resolving

the jurisdictional dispute between the Engineers and the

Firemen. We show below that the terms of the statute

impose no such straitjacket upon the NMB. First, however,

we discuss important considerations to which the court

below evidently gave little, if any, weight—the basic policies

of the statute and the legislative history of Section 2, Ninth.

a. The policy of the Act and the legislative history of

Section 2, Ninth. This Court has ‘‘cautioned against a

literal reading of congressional labor legislation ; such legis-

lation is often the product of conflict and compromise be-

~ 4.4

tween strongly held and opposed views, and its proper con-

struction frequently requires consideration of its wording

against the background of its legislative history and in the

light of the general objectives Congress sought to achieve.”’

_ Wirtz v. Bottle Blowers Assn., 389 U.S. 463, 468. Such an

inquiry regarding the legislative history and underlying

policy of labor legislation should be made even. if the literal

language of the statute may be.said to ‘‘unambiguously

embrace’’ a particular interpretation. Woodwork Manu-

facturers v. NIRB, 386 U.S. 612, 619. These principles are

applicable to the Railway Labor Act as well as to other

labor legisldtion. Pennsylvania R. Co. v. Rychlik, 352 U.S.

480, 488-489. : |

The ‘‘general objectives Congress sought to achieve’’ in

the Railway Labor Act, as set forth in the statement of

‘*General Purposes”’ in Section 2, focus upon the avoidance

of ‘‘any interruption to commerce’’ by the ‘‘prompt and

orderly settlement of all disputes,’’ and upon the right of

employees to organize and bargain through representatives

of their own choosing. 45 U.S.C. § 151a. For the Congress to

have failed to provide machinery for resolving jurisdictional

disputes such as the one at hand would serve none of these

purposes and could frustrate all of them. The settlement

of such disputes would be left to a test of strength—to a

contest as to which union could conduct the most damaging

strike. Since the ‘‘major purpose of Congress in passing |

the Railway Labor Act was ‘to provide a machinery to

prevent strikes,’’’ Texas € N.O. R. Co. v. Ry. Clerks, 281

U.S. 548, 565, the Congress could hardly have intended such

a result. | f

But it is not necessary to look solely to the general pur-

poses underlying the Act, because clear legislative history

= supports petitioner’s reading of Section 2, Ninth, whereas

none supports the Court of Appeals’ reading. Section 2,

Ninth, was added to the Act by the 1934 amendments (48

Stat. 1185, 1188), which were drafted by Joseph B. Eastman,

then the Federal Coordinator of Transportation. He made

entirely plain in his testimony that disputes of the sort

involved here would be disposed of under Section 2, Ninth.

Thus, for example, he was asked how ‘‘a conflict of juris-

diction as to classes and crafts . . . in the classification of ©

employees’’ would be resolved, the illustration given being

that of whether: a person installing metal window frames

should be considered for jurisdictional purposes as ‘‘a car-

penter or a sheet-metal worker.’’ He responded: ‘‘It is the

intent that that would be handled under the paragraph ninth

Ahat I have discussed.’’ Hearings on H.R. 7650; House

Committee on Interstate and Foreign Commerce, 73d Cong.,

2d Sess., at p.57. And at another point, when asked whether

the Act’s failure to define ‘‘eraft or class’’ might ‘‘create

disputes between the different classes of employees as to the

jurisdiction of each,’’ Mr. Eastman replied that ‘‘that mat-

ter is sufficiently covered by the provisions of the ninth

paragraph, which . . . provides the tribunal .w hich shall -

have power to soidlibee and determine:such disputes.’’ Id.,

p. 45. These descriptions of jurisdictional controversies—

‘<a conflict of jurisdiction as to classes or crafts,’’ ‘‘disputes

between the different classés of employees as to the juris-

diction of each’’—fit perfectly the dispute in the case at bar

between the Firemen and the Engineers.

It was this testimony, together with other statements by

Commissioner Eastman, that led this Court to conclude in

General Committee v. M.-K.-T. R. Co., 320 U.S. 323, 336,

that Section 2, Ninth ‘‘was designed . . . to resolve a wide

range of jurisdictional disputes selina unions or between

groups of employees.’’ According to the testimony of the

drafter of the provision, that ‘‘wide range’’ was meant: to -

include precisely the type of dispute sash to the NMB

in this case:

b. The statutory language, Board practice and regula-

tions. In the face of this legislative history and substantial

contrary authority from@this Court and other courts of

appeals, and with acknowledgement by a majority that the

result was ‘‘wholly unsatisfactory,’’ the Court of Appeals

_ concluded that nevertheless there was no escape from the

words of Section 2, Ninth—that these words precluded

_action by the Board. Quoting the statutory language, the |

Court observed that, under Section 2, Ninth, the Board has

authority tact only where a ‘‘dispute shall arise among a

carrier’s employees as to who are the representatives of

such employees.’’ The Court reasoned that, as to the con-

troversy on the L&N, the statute was inapplicable because

there was no ‘‘dispute among the apprentices over. who

represented them.’’ Rather, the ‘‘apprentices were to be -

represented by the Engineers. The carriers thought so, the

union thought so, and apparently the apprentices thought

so.’’ To be sura, there ‘‘was undoubtedly a dispute between

the two unions,”’ and ‘‘[i]n that the unions represent their

members, this was a dispute among empioyees of. the car-

rier.’’ ‘‘But no single employee was jn dispute with another

employee over who did or should represent a group to which

they jointly belonged.’’ And the same conclusion applied

to. the carriers where no stich group had as yet come into *

being: since there were no apprentice engineers, obviously ~

there could not be a dispute among them. (App. infra pp.

14-15.)

Such a restriction of NMB jurisdiction under Section 2,

Ninth, by a literal reading of the first phrases in the section

cannot survive analysis, for it would in a variety of situa-

tions frustrate the evident purposes of the provision. Thus,

if the court’s rationale were consistently applied, the NMB

would be powerless: to certify a representative that is the

unanimous choice of a carrier’s employees because there

would be no ‘‘dispute among employees”’ at all. So also,

where employees are divided not between rival unions but

between the supporters of one union and the supporters of

—_

“s

no union, the NMB would not be authorized to certify the

majority’s preference, because the dispute would not be as

to ‘‘who’’ the representative should be—the word used in

the statute—but as to whether there should be a representa-

tive at all. Quite naturally, the NMB has itself perceived

the vice of such an approach to the interpretation of Sec-

tion 2, Ninth. If such an approach were accepted, the Board

has said, ‘‘[i]n order for the employees to secure repre-

sentation rights in such’a situation it would be necessary

for them to artificially create a dispute by injecting another

contender Tor representation to secure services of the Board

and a certification. This clearly is contrary to the Act which

was enacted to promote peaceful settlements not foment

disputés.’? Northwest Airlines, Inc.,2 NMB 19, 23 (1948).°

Not only is the rationale of the Court of Appeals impos-

sible of consistent application, but it is internally flawed.

While in our view the statute should not and cannot sensibly

‘be approached by way of an effort to give a precisely gram-

'’ matical meaning to each of its terms, the fact is that such

~an approach in this case should have confirmed, rather than.

precluded, NMB jurisdiction. This\is why that is so:

~ Pr oe

8 Citations to “NMB” are to the three volumes of “Determinations of

” Craft or Class of the National Mediation Board,” which the Board has

published at irregular intervals.

In Northwest Airlines, Inc., supra, the Board expressly rejected a chal-

lenge to its jurisdiction under Section 2, Ninth, where there was only one

union seeking recognition. Later, in Texas & Pac. Ry., 2 NMB 234 (1952),

the Board certified a union whose application under Section 2, Ninth, was

supported unanimously by the employees in the craft or class. In Lake-

front D. & R.T. Co., 2 NMB, 101 (1948), the Board found “that a repre-

sentation dispute existed” where the. relevant craft or class consisted of

but one employee, whose chosen representative the carrier refused to recog-

nize. See also St. Paul Union Depot Co., 1 NMB 181_ (1940), injunction

against enforcement rev’d sub nom. Brotherhood of Ry. & S. S. Clerks v.

United Transport Service Employees, 320 U.S. 715. Unanimity in repre-

sentation “disputes” occurs surprisingly often; in the last year (May 1968-

April 1969), the Board issued certifications in at least 10 eases in which

the employees voted unanimously (Case Nos. R-4003, 4006, 4027, 4031,

4032, 4036, 4042, 4049, 4063, 4069).

ey ORS HEI Ree ERR pe toate: 7

In the fimal analysis, the ‘Court of Appeals’ construction

of Section 2, Ninth, rests on a literal reading of but a single

word: ‘‘such.’’ As the Court acknowledged with respect

to the L&N, there was a dispute ‘‘among employees’’—the ,

engineers and the firemen—as to who should represent the

apprentice engineers. But the Court found that not enough.

The statute requires that there be a dispute among em-

ployees as to who shall represent ‘‘such employees.’’ That

phrase, the Court concluded, means that the dispute must

exist among the employees whose representation is in ques-

tion—in this case, among the apprentice engineers them- |

selves. a

- The point the Court fissed is that in order to determine

whether there is a dispute ‘‘among employees’’ as to who

shall represent ‘‘such employees,’’ the Board is called upon

at the outset to draw craft lines, for otherwise there is no

way of knowing the limits of the releyant group. As the

Ninth Circuit Court of Appeals said in the Southern Pacific

decision, supra, p. 15, Section 2, Ninth, ‘‘in providing for the

certification of bargaining representatives, would seem nec-

essarily to encompass the essential preliminary steps of

fixing craft lines and of resolving any inter-union disputes

in that respect.’’ 356 F.2d, at 335. Thus, for example, if

on the L&N the apprentices were treated as part of the

firemen’s craft, then there would be a dispute ‘‘among

employees’’ as to which union should represent ‘‘such em-

ployees’’—.e., the firemen and the apprentices considered °

as a group. It was just such a drawing of craft lines to

place the apprentices either in the firemen’s or the engi-

neers’ craft that the Engineers union sought from the NMB,

and it was just such a drawing of craft lines that the NMB

had to make in order to determine whether an election or

‘‘any other appropriate method”’ of identifying the proper

-- representative of apprentices was necessary. The turnabout

here is that the NMB, which should have resolved the craft

line issue, did not; but the court, which had no authority

to resolve that issue, did. That is, in holding that there

was not a dispute ‘‘among employees’? as to who should

represent ‘‘such employees’’ because there was not a dispute

“among the ‘‘group”’ (asthe court put it) of apprehtices, the

court itself carved out the relevant class of employees and

somehow decided that the class included only apprentices.°

Finally, we note that the prior practice of the NMB does

not support-the decision below. The only spécific mention

of that practice in the opinions of the court below was in

connection with the NMB’s regulations. But those regu-

lations are additional evidence that, in disputes as to which

there is a question as to craft lines, the NMB is obliged to

draw those. lines at the outset. Thus the regulations pro-

vide that an application under Section 2, Ninth, ‘‘should

be accompanied by signed authorization cards from at least

a majority of the employees composing the craft.or class

involved in the dispute.”* 29 C.F.R. § 1203.2. (Emphasis

- added.) Moreover, if certiorari is granted we would show

that the actual course of prior administrative determina-

® As to those railroads that had not actually employed apprentice engi-

neers, there is the additional question whether the term “employees” in

Section 2, Ninth, can inappropriate circumstances be construed to include

persons not yet hired. The statute does not answer this question explicitly.

Accordingly, for the reasons we have already given, the issue should be

resolved on the basis of other considerations. The dilemma produced by

conflicting demands of two unions is just as real, and threatens precisely

the same consequences, whether those demands involve existing or prospec-

tive employees. Accordingly, if due regard is to be given the policies of

Section 2: Ninth, it should be read broadly to confer jurisdiction upon the

NMB to resolve all jurisdictional disputes turning upon craft line determi-

nations. In any event, as we show in the next portion of this petition, if

the NMB did not have jurisdiction as to the disputes on some of the rail-

roads because no apprentices had been hired, then neither could the Firemen

compel the carriers to bargain respecting the terms of employment of a

non-existent group ‘of eniployees. Pp. 28-29, infra.

10 Quite properly, the Court of Appeals did not regard the formal absence

of authorization cards as independently supporting the NMB’s dismissal of

the Engineers applications, nor did the NMB in its order refer to that

absence. The submission of ecards would simply have embroidered by addi

tional and unnecessary documentation the substance of the dispute that was

presented—a dispute among employees as to the drawing of craft lines. |

a ASE SO! are

22 :

tions under Section 2, Ninth, does not conform to the de-

‘cision of the Court of Appeals, but rather that the NMB

has settled jurisdictional disputes by drawing craft lines

in situations indistinguishable from the case at bar."

B. Tue Ricut oF THE FirEMEN To CompeL THE CARRIERS

To Barcain ABout APPRENTICE ENGINEER ProcramMs

The Court of Appeals’ holding that both the Firemen and.

the Engineers were entitled to require the carriers to bar-

gain about apprentice Mmgineer programs is radicallt out

of line with what we understan@ to be the Railway Labor

Act’s scheme of collective bargaining through representa-

tives chosen by a majority of the employees in each craft

or class. The holding markedly restricts this Court’s land-

mark opinion in Virginian Ry. v. Federation, 300 U.S. 515,

11 Among the reported decisions of the NMB are many in which the

Board has resolved jurisdictional disputes*between unions by drawing the

relevant eraft lines (1) without giving weight to the existence vor’ not of

-eontroversy among the employees, whose representation was at issue, (2)

' without first inquiring whether a decision one way or the other might cause

a change in the representative of one of the crafts, and (3) often without

the necessity of a subsequent election. See, e.g., Chicago, N.S. & M.B-R.,

3 NMB 101 (1953); Kansas City Term. Co., 2 NMB 238 (1953) ; Chicago

& N.W. Ry., 2 NMB 169 (1949) ; American Airlines, Inc., 2 NMB 3 (1953) ;

Union R.R., 1 NMB 336 (1946); St. Paul Union Depot Co., 1 NMB 181

(1940), injunction against enforcement rev’d sub nom. Brotherhood of Ry.

& S.S. Clerks v.. United Transport Service’ Employees, 320 U.S. 715;

Wabash Ry., 1 NMB 90 (1938). The single area in which the NMB has

sometimes been unwilling to decide disputes involving only the determination

of eraft or class lines is where the relevant lines have theretofore bren drawn

by agreement between the two unions, and one of the unions has then sought

to undo the agreement through proceedings under Section 2, Ninth. In

such cases, the Board has dismissed the application without making the

requested craft or class determination, observing that the procedures of

Sections 3 and 6 of the Act (45 U.S.C. §¢ 153, 156) are available for

securing interpretations and changes gf agreements. See Delaware d: °

H.R.R., 1 NMB 270 (1943); Chicago & N.W, Ry., 1 NMB 130 (1938),

denial of injunction against enforcement aff’d sub nom. Brotherhood of |

R. Trainmen v. National M. Board, 135 F.2d 790 (D.C, Cir. 1943). But

see Chicago N.S. & M.R.R., supra. The ‘case at bar does not, of course,

fall within that category.

and casts doubt on a major body of decisions that has de-:

veloped in the generation since Virginian Ry. was decided.

The statutory structure of collective bargaining through

representatives of crafts or classes of employees is built on

several sections of the Act: Section 6 (45 U.S.C. . $156),

- which requires ‘‘representatives of. employees”? to’ give

‘‘notice of an intended change in agreements affecting rates

of pay, rules, or working conditions’’; Section 2, Fourth (45

U.S.C. § 152 Fourth), which provides that ‘‘[t]he majority

of any craft or class of employees shall.have the right to

determine who shall be the representative of the craft or °

elass’’?; Section 2, Third (45 U.S.C. § 152 Third), which

enjoins that neither union nor carrier ‘‘shall in any way

interfere with, influence, or coerce the other in its choice of

representatives’’; and Section 2, Ninth (45 U.S.C. § 152,

Ninth), which furnishes an administrative procedure for -

_ determining the identity of the employees’ representative

and obliges the carrier to ‘‘treat with the representative so

eertified [by the NMB] as-the representative of the craft or

class for the purposes of this Act.”’ j ai

The fundamental principles which we understand the

- eourts to have inferred from this structure are these: that,

where the identity of the employees’ bargaining representa-

tive is indubitably established, the carrier must bargain with

that representative, and with no other; and that where there

is substantial doubt as to the identity of the representative,

the carrier cannot be compelled to bargain with, a union on

the basis of a claim that it ma y be the representative of the

. employees. :

The judicial development. of these principles commenced

with Virginian Ry., the leading case in which this Court con-

‘ sidered the nature of.a carrier’s obligation under Section 2,

Ninth, to ‘‘treat with’’ the authorized employees’ represent-

ative. Insofar as here relevant, this Court held that this ~

* obligation is exclusive, so that the carrier must not negotiate

24 oe

ee ce «

* with any union other than the one duly authorized to repre-_

sent a particular eraft or class of employees:

‘¢. . . Both the atatute snd the decree are aimed at ::

securing settlement of labor. disputes by inducing col-

lective bargaining with the true representative of. the

employees and by preventing such bargaining with any

who do not represent them. The obligation imposed on

the employer by § 2, Ninth, to treat with the true repre-

sentative’ of the employees as designated by the Media-

tion Board, when read in the light of the declared pur-

poses of the Act, and of the provisions of § 2, Third -

and Fourth, giving to the employees the right to organ- .

ize and bargain collectively through the representative

of their own selectign, is exclusive. It imposes the af-

firmative duty to treat only with the ‘true fepresent-_

ative, and hence the negative duty to treat with no

other . . . [T]he injunction against petitioner’s enter-

ing into any contract concerning rules, rates of pay and —

working conditions, except with respondent, is designed

only to prevent collective bargaining with anyone pur-

porting to represent employees, other than respondent,

Who has been ascertained to be their true representative

7 300 U. S., at 548-549. ( Emphasis added.)

For years, Virginian Ry. has been the unchallenged

authority in this area of the Act, establishing the rule that

the authorized bargaining representative is the exclusive ~

representative of all members, of the craft. In this Court,

see, e.g., Machinist¥ v. Street, 367 U.S. 740, 759-760 ; Elgin,

J.é E.R. Co. v. Burley, 325 U.S. 711, 728; Steele v. LL. NeR.

Co., 323 U.S, 192, 200; General Committee v. M.-K. f. R. Co.,.

320 U:S. 323, 335.

Building on the principle of Virginian Ry,., the courts have

held that a Section 6 notice is invalid and nonbargainable if

it is seryed by¢a union whicl: is not the authorized repre-

non.

°o

+ 95,

sentative of the’ employees whose rates of pay; rules, or

“working conditions would. be affected by the proposal.

Southern Pacific Co. v.. Switchmen’s ‘Union of North*

America, 356 F. 2d 332 (9th Cir. 1965) ; Order of Railway

Cond. é Brake. v. Switchmen’s Union, 269 F.2d 726, 730-732

45th Cir. 1959).; cf. Switchmen’s Union-v. Southern Pacific

Company, 253 F. 2d 81, 84 (9th Cir. 1958) ¢Brotherhood of ©

Railroad’ Trainmen v. Smith, 251 F.2d 282, 287 (6th Cir.

1958).

It is clear from the foregoing ‘authorities that if ‘the

Engineers union had been certified by the NMB as the repre- °

‘sentative of the apprentice engineers, the Firerhen’s union

could not have required the carriers to bargain with it about

apprentice engineer programs. But the Court of Appeals

concluded that Virginian Ry. was not controlling because

‘the “Mediation Board has not certified wh®h union is the

true representative of ‘apprentice locomotive ‘engineers.’ ”’

‘“Tn such a situation,’’ the Court said, ‘‘any union for whom.

futtre apprentices were ‘fairly claimable’ as part of that

union’s craft or class could legitiniately bargain with the

carriers about the terms and conditions under Which such

future engineers would work.’’ And the Firemen qualified

under that test, for they ‘‘had a reasonable expéctation

that they might finally represent at least some future-em-

ployees’ falling within the as yet largely empty category of

‘apprentice engineers.’ ’’ (App. mfra p. opr «

This holding, which confines Virginian Ry. to its pr ecise

u : .

. 2 The ¢oncurring Slatin indicated uncertainty as to exactly how far the

Firemen’s “bargainable interest” would extend (App. infra p. 18-19). That

does not affect the principle involved, however, for even under the con- .

curring judges’ view it is clear that the ‘vesult j is the subjection of the carrier

to we a from two rival unions respecting the apprentice

enginéer program. Thus, the econeurring judges said: “Today’s result

places the carriers in the unhappy position of having to deal simultaneously

with two rival unions whose bargaining demands will very likely conflict if a _

high: _— of union statesmanship i is not fortheoming” (App. ®fra p. 19).

, =

‘

a '

facts, seriously undermines thé principle of that decision

and also serves:to aggravate.the vice of the- court’s other

holding, that the NMB did not have power under Section 2,

Ninth, to settle the dispute between the Firemen and the

Engineers. The way in which it does is perhaps most appar-

ent w)th respect to the L&N, which had actually employed ap-

prenthg engineers The Court of Appeals noted that those

apprenticé®s were all evidently satisfied with their represen -

tation by the Engineers, and the court was carefu] to say

that it did not ‘‘east doubt on ‘the Engineers’ status as

representatives of-the apprentices actually employed by the

L&N’’ (App. infra. p. 9 n..17). In those circumstances, .

prior to the decision below surely it would have been at

least arguable that the Virginian Ry. rule of exclusive bar-

gaining would apply to such a situation as well as-to the

situation in which the representative is formally certified by

the NMB. But under the Court of Appeals’ decision not’

only was Virginian Ry. inapplicable because of the absence

of certification, but it could never be’ applicable because

certification was impossible. And, as we have already dis-

cussed, certification was unpossible not because the Engi-

“neers did not command enough support among the appren-

tices, but because they commanded too’ much support. So

much that, as the Court viewed it, there was no ‘dispute.

—. them such as to ‘tie 4 certification under Section _ .

2, Ninth. .

Thus, under the Court of Appeals’ analysis, if only the

Engineers union had been able to manufacture a dispute

among the apprentices as to their representative, it could

have applied for an election under Section 2, Ninth; the

Board could have taken jurisdiction; it might have drawn

the engineers’ craft line so as to include the apprentices; it

would then have certified the Engineers; and that would

have brought Virginian Ry. into play so that the carrier

would have been obliged to deal with the Engineers and not

‘ ° rad

‘ al

' -

“with the Firemen. But as there was no dispute among the

apprentices so that the NMB could not formally certify the

Engineers, Virginian Ry. was inapplicable and both unions

could serve conflicting demands. With all deference, we

‘suggest that this is a bizarre result that this Court could not

have contemplated in Virginian Ry.

The only other Court of Appeals that has substantially

considered a carrier’s obligation under the Railway Labor

Act when faced with conflicting bargaining demands from

two different unions has come to a conclusion exactly oppo-

site‘to the decision below. Ruby v. American Airlines, Inc.,

323 F.2d 248 (2d Cir. 1963) ; Flight Engineers Inter. Ass’n

v. Eastern Air Lines, Inc., 311 F.2d 745 (2d Cir. 1963).

Eastern involved a dispute between two unions as to which

craft encompassed so-called ‘*pilot-engineers.’’ One union

sued to require the carrier to bargain with it and not with

the other union. The Court of Appeals denied relief, stat-

ing: “ Where there is doubt as to representation and where

there are rival jurisdictional claims, those doubts are to be

resolved and the claims are to be vindicated or rejected not

by the courts but by the administrative and other processes

provided by the [Railway Labor] Act... .’? 311 F. 2d,

at 747. In Ruby, there was a dispute between two unions as

to which was entitled to represent the pilots on a particular

airline. One of the'contending unions applied to the NMB

for an investigation ugder Section 2, Ninth, and submitted

authorization cards from 84% of the pilots. While the repre-

sentation dispute was pending before the NMB, the other

union, which had theretofore been recognized by the carrier

as the pilots’ representative, sued to restrain the airline

from dealing with the union that had secured the 84%

authorizations. The Court of Appeals held that relief could

not be granted, because ‘‘the courts cannot properly require

an employer to bargain with a previously designated repre-

sentative in the face of a substantial representation dispute

requiring the intervention of the Mediation Board under § 2,

Ninth .. ...’’ 323 F.2d, at 225. But under the approach of

‘ the Court of Appeals in the case at bar, the result would

have been quite different if the union applying for gertifica-

tion had had 100% support by the pilots instead-of 84%. In

that event, the NMB would have had no jurisdiction to con-

duct Section 2, Ninth, proceedings; Virginian Ry. accord-

ingly would not have been applitable ; and the carrier would

have been obliged to bargain with both unions. Since those

were not the facts in Ruby, perhaps technically there is not

a conflict of decisions. But we suggest it is not possible to

read Ruby and Eastern and believe that the Second Circuit

shares the view of the Court below.

In both Ruby and Eastern, each of the contending unions

might be said to have had a reasonable expectation that it

might at some time in the future be confirmed in its right

to represent the employees in question. Yet in neither case

did the court suggest that such an expectation might give

rise to a duty on the part of the carrier to bargain with

both unions. Nor in the cases cited earlier, p. 25, where

Section 6 notices going beyond the craft jurisdiction of the

serving union were held to be invalid, did the courts pause

to inquire whether the union might have a ‘‘fairly claim-

able’’ right to represent the craft. It was enough that it did

not represent the craft when it served the Section 6 notice.

In contrast, in the case at bar the Court of Appeals con-’

cluded that the carriers were obliged to bargain with the

Firemen even though the most that could be said about the

Firemen’s title was that it was ‘‘fairly claimable’’ and even

though-on the L&N all of the apprentices, so far as appears,

were content to be represented by*the Engineers. —

There is, finally, another aspect of the lower court’s deci-

sion that deserves review. The Court of Appeals, as we

have noted, held that, as to carriers which had not employed

apprentice engineers, thePa could be no Section 2, Ninth,

determination by the NMB because there could be no dispute

_ “among’’ non-existent ‘‘employees’’ within the meaning of

that provision. But if that is so; then the Firemen were not

entitled to serve a Section 6 notice relating to a program

for non-existent apprentice engineers. If there are’ no

‘comployees” Yor purposes of Section 2, Ninth, then there

are no ‘‘representatives of [such] employees’’ within the

meaning of Section 6, relating to proposals ‘‘affecting —

_— of pay, rules or working conditions”’; jator. are there

‘‘representatives designated and authorized . . . to confer

. by the employees’’ within the meaning of Section 2,

Sooniil, dealing with the obligations of carriers to confer;

nor is there a dispute between ‘‘an employee or group of

employees”’ and a carrier within the meaning of Section D,

relating to mediation by the NMB.

Had the Court of Appeals so held, the final result might

have beén considered acceptable. A carrier could uni- '

laterally establish an apprentice engineer program, but once

apprentices were employed there woffld be ‘ loyees’’

within the meaning of all provisions of the Act. That is,

there could be a ‘‘dispute among employees” ‘within the

meaning of Section 2, Ninth, and there could be ‘‘represent-

atives of employees’’ authorized to make proposals and

_ insist on bargaining with the carrier. But, as the decision

‘ below stands, the carriers must. bargain W ‘ith. two unions

respecting non-existent employees while at the same time

the NMB is disabled from resolving the jurisdictional dis-

pute because the employees are non-existent. Surely this

result is at odds with common sense and does not reflect

a consistent. intepretation of what should be regarded : as

integrated statutory provisions.

Virginian Ry. and the cases decided upon its authority

have laid down as basic rules of the Railway Labor Act that

a union has rights only as the representative of a craft of

existing employees, and that there can be only one true rep-

| 7 30

| qv

resentative of a craft—the union selected by the majority

of members of the craft. The decision below unjustifiably

limits Virginian Ry. and undermines the éntire body of

relevant lower court case law that has developed over the

last several decades.

C. IMPorRTANCE OF THE IssuES PRESENTED.

Jurisdictional disputes are among the most. intractable

of all labor controversies. They bear with special harshness.

upon employers, who cannot settle with one contestant. with-

out risking a strike by the other. And when that risk of

strike involves the nation’s railroads or airlines,’ the public

interest is importantly engaged. Moreover, in the railroad

industry, the potential incidence of this sort of controversy

is especially large, for the efnployees are divided into some

28 crafts which are represented by some 38 national, and

innumerable smaller, unions whose claims often overlap and

whose relationships have not always been tranquil."

The Congress perceived the threat to the public interest

posed by these inter-union struggles.” As this Court has

observed, Section 2, Ninth, was enacted ‘‘to resolve a wide

range of jurisdictional disputes between unions or between

groups of employees.’’ General Committee v. M.-K.-T. R.

Co., 320 U.S. 323, 336. But the Court left open the exact

delineation of that ‘‘wide range.’’ This is the first decision

sfnce M.-K.-T. in which a Court of Appeals has determined

13 Section 201 of the Aet (45 U.S.C. § 181) extends the coverage of most

of the other er ineluding Section 2, to interstate common carriers

by air.

14 NMB, sinh Axy. Rep. Table 10 at 81-89 (1968). On the airlines,

there are 9 crafts or classes represented by 13 national, and a number of

loeal, unions. Ibid.

15 Tt should be noted that under the Labor-Management Relations Act,

a disfute of the sort here involved would be resolved by the NLRB in a

unit clarification proceeding, which is essentially what the Engineers sought

in the case at bar. See Carey v. Westinghouse Corp.,-375 U.S. 261, 268;

McDonnell Co., 173 N.L.R.B. No. 31, 1968-2 CCH-NLRB § 20,244.

‘ F 6

that a particular type of jurisdictional dispute cannot be

resolved under Section 2, Ninth. Thus the decision estab-

lishes a new type of labor ‘‘no man’s land’”’ in which the

ddmpanies are caught between the demands of competing

unions and in which none of the three parties can secure

relief from either. the courts or from the, adfhinistrative

agency charged with resolving other sorts of jurisdictional

disputes. This is quite enough to invest the decision with

considerable importance.

Moreover, the type of dispute falling in this newly devised

‘‘no man’s land’’ will be neither infrequent nor unimpor-

tant. All that is needed is a group of employees as the prize

and two unions with ‘‘fairly claimable’’ craft rights to

assert. There are, for example, many groups of subordinate

officials (supervisory employees) and professional and. tech-

nical employees who are not now represented by unions.

When the unions that already hold representation rights in

allied crafts learn the lesson of the decision below and serve

conflicting Section 6 notices requiring recognition as the

representative’ of sueh employees, another jurisdictional

dispute akin to the instant dispute will arise. The examples

could be multiplied. Indeed, as the ruling respecting the

L&N discloses, even employees that are already represented

are fair game, at least until their union has been certified

—and many have not been. ;

_ It is probably a good guess, however, that the decision

below will find its widest application, not to jurisdictional

disputes respecting employees of a type that have been

around for a long time, but rather to disputes over new

types of employees brought into being by the impact of

advancing technology on traditional work functions. Thus,

the introduction of the diesel locomotive eliminated the

nedd for firemen, but the reduction in the number of firemen —

‘quite predictably produced a scramble between the Engi-

neers and the Firemen as to which union could control new

EPONA aeRO RT e

sources of engineers. One can just as easily foresee cont-

petition between the conductors and the engineers when

trains are able to be run by remote control. Will the con-

‘trollers be within the one craft, within the other, or a

separate craft? And in Transportation Union v. U.P. R.Co.,

385 U.S. 157, where a new group of employees had been

trained to operate computers that integrated work thereto-.

fore done by two different crafts of employees, the situation

would have been the same as in the case at bar if the con-

tending unions had not been able to rely upon their respec-

tive contracts so that this Court could order tripartite arbi-

tration by the National Railroad Adjustment Board under

Section 3 of the Act (45 U.S.C. § 153).

Heretofore, the NMB has responded on occasion with

marked flexibility to developments such as these, by carving

out new crafts or classes where the purposes of the Act

seemed to call for them,’ merging old crafts whose distine-

tion seemed to be no longer valid,’* and expanding existing

crafts to encompas™ employees whose work was unknown

when the craft lines were originally drawn." The decision

below will narrow considerably the instances in which the

Board will be able to resolve by administrative order

jurisdictional disputes arising out of changing technology

and evolving operational concepts. Yet these are the dis-,

putes thaggre especially virulent, because for the union

whose = ae craft work is being overtaken by techno-

logical or other change—the Firemen whose members are

16 See Frontier Airlines, Inc., NMB File No. C-3802 (April 16, 1968) ;-

Trans-Texas Airways, Inc., 3 NMB a (1956) ; cf. Great No. Ry., 3 NMB

144 (1953).

17 See United Air Lines, Inc., 3 NMB 56 (1961) (“committee of three

neutral persons” appointed by the NMB under §2, Ninth).

18 See Pan American World Airways, Inc., 3 NMB 41 (1957) (employees

at guided missile range); American Airlinas, Inc., 2 NMB 3 (1953) (com-

puter technicians) ; cf. Erie-Lackawanna R.R., NMB File No. C-3642 (Aug.

18, 1967) ; United Air Lines, Inc., 3 NMB 35.(1957).

displaced by diesel locomotives, the Telegraphers whose

members are displaced by computers—acquisition of re-

placement members through additional representational

rights is regarded as a life or death matter. It is precisely

these sorts of disputes that are most likely to be éommitted

by the decision below to resolution by economic warfare in

which the carriers cannot protect themselves even by

surrender.

We urge that this Court grant plenary review to deter-

mine whether this is indeed the course staked out by the

Congress in the Railway. Labor Act. :

Conclusion ‘

For the reasons stated, a writ of certiorari to review the

judgment of the United States Court of Appeals for the

District of Columbia Circuit should be granted.

; Respettfully submitted,

Francis M. SHEA

.RicHarp T...Conway

Wim. H. Dempsey, JR,

Davip- WW. MiLLer ,

Wn Fifteenth Street, N.W.

shington, D.C. 20005

Of Counsel: Samus 2A. WiLcox

SHea & GARDNER ; 1225 Connecticut Avenue, N. Ww.

734 Fifteenth Street, NW. _Washington, D.C. 20005

Washington, D.C. 20005 ‘Attorneys for Pétitioners.

PLR

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Pen

Bnited States Court of Appeals

FOR THE DISTRICT OF —— CIRCUIT

“e

“ot

No. 22,050 -

ee OF LOCOMOTIVE FIREMEN’ AND ENGINEMEN,

Appellant

Vv.

NATIONAL MEDIATION BOARD, et al., Appellees

No. 22,185 ©

NATIONAL MEDIATION BOARD, Appellant _

oe |

BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Appellee

\ ‘ ‘

Appéals from the United States District Court

for the District of Columbia

“Decided March 14, 1969

; Mr. Joseph L. Rauh, Jr., with whom Messrs. John Silard,

Daniel H. Pollitt, Isaac N. Groner, Alex Elson, Willard J. Las-

i F- sers and Aaron S. Wolff were on the brief, for appellant in

~~ ’ No. 22,050.

Mr. Walter H. Fleischer, Attorney, Department of Justice,

with whom Assistant Attorney General Edwin L. Weisl, Jr.

‘ and. Mr. John C. Eldridge, Attorney, Department of Justice,

were on the brief, for the National Mediation Board, appel-

of lant in No. 22,185 and appellee in No. 22,050.

Mr. Francis M. Shea, with whom Messrs. Richard: T.

Conway, David W. Miller and James A. Wilcox were on the »

G brief, for railroad appellees in No. 22,050.

Mr. Barclay D. McMillen, with whom Mr. Harold A. Ross

was on the brief, for appellee Brotherhood of Locomotive

Engineers.

—

Before BURGER, WRIGHT and TAMM, Circuit Judges.

Wricut, Circuit Judge: The judgment of the District

Court under review here relieves certain railroad companies

of dny duty to bargain over a proposal submitted to them

by the Brotherhood of Locomotive Firemen and Enginemen

(the Firemen), and enjoins the Firemen from striking to

force such bargaining. The District Court has viewed the

Firemen’s proposal as creating a representatiorfal dispute

with the Brotherhood of Locomotive Engineers (the Engi-

neers), rather than as a matter for collective bargaining with

the railroads, and has ordered the National Mediation Board

to decide. the e dispute under Section 2, Ninth, of the Railway

Labor Act.' We reverse.

é ji I

For many years, the railroad industry has recruited virtu-

ally all locomotive engineers from the ranks of locomotive

firemen. As firemen have moved up the seniority ladder

within their craft, they have learned the skills of an engineer

while working in the locomotive cab. They~have taken

examinations administered by the carriers, and those who ~

passed the examinations have, in the order of their seniority

as firemen, gained status as engineers. Persons newly quali-

fied as engineers have not normally been immediately

employed as such; rather they have continued to work as

firemen until the demand for active engineers has reached

far enough down the seniority list of that craft to encom-

pass them. With seasonal fluctuations.in the demand for

'45 USC. § 152, Ninth (1964). The District Court’s findings of

fact, conclusions of law and decree are reported in Brotherhood of |

Locomotive Engineers v. National Mediation Board, D. D.C., 284

F Supp. 344 cs fa

engineers, the employees at the bottom of the engineer

seniority list “ebb and flow” back and forth between serving

as engineers and as firemen.

Both the Engineers’ and the Firemen’s unions have

included in their collective agreements with the carriers

provisions : regulating the progress of employees from fire-

man to engineer, including the process of “ebb and flow”

for those employees near the bottom of: the engineer list

and near the top of the fireman list. Most engineers have a

fireman’s seniority number as well as an engineer’s number,

-and many locomotive enginemen are members of both the

Firemen’s and the Engineers’ unions.

Recent evehts have made it no longer possible for all new

engineers to be supplied from the ranks of active firemen.

In 1959 the carriers proposed to eliminate the position of

fireman for freight and yard service, a proposal which the

Firemen resisted. After winding its way through the media-

tory procedures of the Railway Labor Act for some years

without resolution, the dispute threatened to erupt into a

strike in 1963. At that point Congress determined to settle

the dispute by compulsory arbitration: Board 282 was

established, with power to bind the parties to its resolution

of the disputed issues for a two-year. period. Board 282’s

award permitted the carriers to eliminate up to 90 per cent

of the firemen’s jobs in freight and yard service. While the

award was in effect (between early 1964 and early 1966),

the carriers managed to eliminate about 18,000 firemen’s

jobs, far more than had been expected.? |

Such a large scale elimination of firemen made it clear

that further sources of new engineers would have to be

found for the future. In early 1965 the Firemen’s union.

operating from the premise that the craft’s traditional role

2A fuller history of the dispute summarized here can be found in

this court’s opinion in Brotherhood of Railroad Trainmen v. Akron &

Barberton Belt R. Co., 128 U.S.App.D.C. 59, 385 F.2d $81 (1967),

cert. denied, 390 U.S. 923 (1968).

2 POTS EOI

4 =a

as supplier of engineers gave it a bargainable interest in

future engineer training programs, proposed apprenticeship

plans to the Louisville & Nashville and Southern Pacific

Railroads under Section 6 of the Railway Labor Act.’ In

November 1965 the Firemen proposed similar plans under

Section 6 to over a hundred other rail carriers.

Service of these notices provoked objection from the

Engineers’ union. The Engineers claimed to be the exclusive

representative of any future apprentice engineers, and

asserted exclusive bargaining jurisdiction over all programs

for training engineers. They warned .the carriers not to

bargain with the Firemen over the proposed plan. When

the carriers did not reply to the Firemen’s Section 6 notice,

the Firemen sought the mediatory services of the National

Mediation Board under Section 5 of the Act,* and the

Board docketed the request and scheduled mediation

between the Firemen and the L & N and Southern Pacific

companies. - ~

In the meantime, the L & N negotiated an agreement

with the Engineers for an apprenticeship program, the

345 U.S.C. § 156 (1964):

“Carriers and representatives of the employees shall give at

least thirty days’ written notice of an intended change in agree-

ments affecting rates of pay, rules, or working conditions * * *.

*”

Mas USC. § 155 (1964):

_/ “First. Disputes within jurisdiction of Mediation Board.

“The parties, or either party, to a dispute between an

employee or group of employees and a carrier may invoke the

services of the Mediation Board in any of the following cases:

“(a) A dispute concerning changes in rates of pay, rules, or

working conditions not adjusted by the parties in conference.

“(b) Any other dispute not referable to the National. Rail-

road Adjustment Board and not adjusted in conference between

the parties or where conferences are refused.

” * ol a *

“In either event the said Board shall promptly put itself in

@ communication with the parties to such controversy, and shall

use its best efforts, by mediation, to bring them to agree-

nom?

details of the program to be left to management discretion.

The Engineers were recognized. by the railroad as the

bargaining representative for the new class of apprentices.

Since the bringing of this suit in the District Court, the

Great Northern Railway Company has entered into a similar

agreement with the Engineers and very recently has set in

motion its own apprentice program.

- The Firemen objected -to the L & N entering into an

agreement with the Engineers before it bargained with the

Firemen concerning their similar proposal. They brought

suit in the Eastern District of Kentucky to enjoin the

implementation of the Engineers—-L & N agreement., The

court dismissed the suit for want of jurisdiction. That judg-

ment was affirmed by the Sixth Circuit on the ground that

the case involved a jurisdictional dispute which, under appli-

cable Supreme Court precedents, was for the National

Mediation Board to decide (if indeed it could be decided in

any official forum).5 : |

The carriers,° arguing that they were caught in a dilemma

by the competing claims of the rival unions, sought the

mediatory services of the National Mediation Board under

Section 5 ro

“in order that they may be properly and legally informed

as to which of the two disputing organizations may.

legally bargain for and on behalf of apprentice loco- «

motive engineers.”

The Board declined the carriers’ request for mediation, stat-

ing that “[t]he question as posed involved a question of

> Brotherhood of Locomotive Firemen & Enginemen v. Louisville &

Nashville R. Co., 6 Cit., 400 F.2d 572 (1968), cert. denied, __ USS.

__., 37 US. L. WEEK 3262 (January 20, 1969).

©The carriers in question were the L & N and the Southern Pacific,

the first two carriers upon which the Firemen had served their § 6

notices. Both had refused to bargain with the Firemen over the

notices.

representation. Such issues are resolved under Section 2,

Ninth * * *.”?

Section 2, Ninth, of the Railway Labor Act, the key

statutory provision involved in’ this case, places upon the

National Mediation Board the duty to investigate “‘any dis-

pute * * * among a carrier's employees as to who are the

representatives of such employees” and to certify to the

parties and to the carrier the name of the true representa-

tive. The Supreme Court has held that, while the Board’s

decisions on the merits under this section are unreviewable

by. the courts,’ its statutory duty to “investigate” the dis-

putes in question can be judicially enforced.?

After the Board had rejected the carriers’ request for

mediation, the Engineers requested a Board decision under.

Section 2, Ninth. As-the Engineers viewed the situation,

a dispute existed between them and the Firemen over who

represented the apprentice engineers . employed by the ©

»L & N. And in the Engineers’ view, this dispute fell within

the purview of Section 2, Ninth.

The Board, however, found that no Section 2, Ninth, dis-

. pute actually existed, so that it lacked jurisdiction to certify

a representative.'° At this point, the. Board’s posture was as_

ese Sst 2 | “2 Ma

° 7The reason given by the Board for declining to offer mediatory

services under § 5, First, appears to conflict with its later decision that

no § 2, Ninth, representational dispute existed. The apparent conflict +:

is discussed infra, Note 10. *

_ 8$witchmen’s Union v. National Mediation Board, 320 U.S. 297

(1943).

*Brotherhood of Railway & Steamship Clerks v. Ass'n for Benefit

of Non-Contract Employees, 380 U.S. 650, 661 (1965). ’

_ !°This decision is in apparent conflict with the reason the Board

gave for declining the carriers’ request for § 5, First, mediation. How-

ever, the Board’s earlier ruling stated that “(t]he question as posed”

was representational. The carriers had indeed posed it as a represen-

tational dispute. Thus the Board was merely declining to give an

_ advisory opinion under the guise of mediation on a question which it

might later-be called upon to determine authoritatively. It was not

ruling that a § 2, Ninth, dispute was actually presented; it did not

have sufficient facts before it to make such a determination.

follows: (1) It had declined to advise the carriers which of

the unions represented the apprentices under the guise of

Section 5 mediation.” (2) It had declined the Engineers’

request to settle the same question under Section 2, Ninth.

(3) It had granted the Firemen’s request to mediate the dis-

pute created by the carriers’ refusal to bargain over the

Firemen’s proposed apprenticeship program, and had sched-

uled mediation between the Firemen and the carriers.

The Engineers, joined in part by the carriers, then brought

the present suit.. They sought to compel the Board to settle

the jurisdictional dispute under Sectiog®2, Ninth, to prevent

the carriers and the Firemen from bargaining over the Fire-

men’s apprenticeship proposal, and to enjoin the Firemen

from striking to compel such‘ bargaining. Pleadings and

affidavits were received by the District Court, and on cross-

motions for summary judgment the court found for the

Engineers and granted the relief sought."

In our view, the District Court’s orders rest upon two

erroneous conclusions of law. It concluded first that:

“* * * The apprentice notices served by the BLF&E

[Firemen] upon the carrier defendants and many other

carriers are valid and bargainable under the Railway

Labor Act * * * only if the BLF&E is the duly desig-

nated and authorized representative on such carriers of

apprentices training to be locomotive engineers. * * *’"12

And second that:

“The dispute between the BLE [Engineers] and the

BLF&E * * * is a dispute among employees as to who

'lThe Engineers sued the Firemen, the Board and the six carriers

who are appellees here, asking that (1) the Firemen and the Carriers

be enjoined from bargaining over the § 6 notice and (2) the Board. be .-

ordered to decide the dispute. The Carriers, essentially nominal

defendants, answered and cross<laimed against: the Firemen, asking

that the § 6 notice be declared non-bargainable-and that the Firemen

be enjoined from striking to force such bargaining. The court’s relief

against the Board and the Firemen granted the prayers of both the

Engineers and the carriers, so that they are appellees here.

'2284 F.Supp. at 351. ] .

a id il tne ee

are the representatives of such employees, within the.

meaning and intendment of Section 2, subd. Ninth of

the Railway Labor Act * * *, * * *713

The view that the, Firemen can barpain about the content

of an apprenticeship program only if they ‘epresent the ©

“apprentices is based on an overextension of Virginian Rail-

way Co. v. System Federatien No. 40, 300 U.S. 515 (1937).

In Virginian Railway a dispute existed among the carrier’s

employees whether they were represented by a company

union or by a union affiliated with the American Federation

of Labor. The Mediation Board certified the A.F.L. union

in a Section 2, Ninth, proceeding. The carrier continued ;to

bargain with the company union. Upholding an injunction

against this bargaining, the Supreme Court held:

“* * * The obligation imposed on the employer by

§ 2, Ninth, to treat with the true representative of the

employees as designated by the Mediation Board * * *

is exclusive. It imposes the affirmative duty to treat

only with the true representative, and hence the nega-

tive duty to treat with no other. * * *’’!4

The duty to treat with “the true representative” of

employees and “with no other” must be read in the context

of the facts in Virginian Railway. There the Mediation

Board had already determined that one union was the rep-

resentative of the only employees. concerned. The company °”

union properly reptesented nobody: Hence the carrier

could not bargain with the company union without dero-

gating from the representative status of the certified union.

Here the facts are very different. The Mediation Board

has not certified which union is the true representative of

‘“apprentice locomotive engineers.” As we discuss more

fully below, it was quite correct in refusing to make such a

certification. Thus, in bargaining with the Firemen over the

'3 Ibid.

14300 US. at 548.

terms of the apprentice engineer program, the carriers would

not have derogated from tlte Engineers’ status a$ certified

representative of locomotive engineers, unless in some way

such bargaining violated the carriers’ collective agreement

with the Engineers. , But if this latter wege the case, the

Engineers’ proper remedy lay not in the courts or before

the Mediation Board, but rather in a proceeding under Sec-

tion 3 of the Act before the National Railroad Adjustment |

€ Board.'5 | short, no representative had been certified for

“apprentice engineers.”’ In such a situation. any union for

whom future apprentices were “fairly claimable” as part -of

that union’s craft or class could legitimately bargain with

the carriers about the terms and conditions under which ,

such future engineers would work,!®

, Consideration of the history of the. relationship between

the Firemen and the Engineers leads to the conclusion that

the Firemen had a reasonable expectation that they might |

finally represent at ‘least some future employees’ falling

within the as yet largely empty. category of “apprentice |

~ engineers.”'? - Though logic may point toward the .Engi-

"$45 U.S.C. § 153 (1964). Section 153, First (i), gives.the National

Railroad Adjustment Board jurisdiction to decide “disputes between

-an employee or group of employees and a Carrier or carriers growing

out of grievances or out of the interpretation or application of agrée-

ments concerning rates of pay, rules, or working conditions” upon

petition by either party. When such disputes involve a second union,

the N.R.A.B. has the duty to consider the claims of the second union. -

' Transportation-Communication Employees Union v. Union Pacific R.

Co., 385 U.S. 157 (1966). .

: "ey. ve, and Highway Drivers, etc., Local 710 v. N.L.R.B., 118

U.S.App.D.C. 287, 335 F.2d 709 (1964).

The question of which proposals are bargainable is one which,

under the Railway Labor Act, may be decided by the courts. By

their very nature, such questions cannot be settled by collective bar--

gaining, and the Act does not provide for their settlement by either

the National. Mediation Board or the National Railroad Adjustment

Board. .

'’This is‘not to cast doubt on the Engineers’ status as representa-

tives of the apprentices actually emploved by the L& N. The point

10 | : *

neers’ union representing all apprentice engineers, history as

well as logic plays a large part.in labor relations in the rail-

woad industry. Historically, the Firemen’s union had repre

_ sented all persons learning to be engineers, because persons ,

learned to be engineers. while working as firemen. .Whether

the change from pure on-the-job training to a more formal-

ized apprenticeship program will completely eliminate the

Firemen from a representative role thus is a question at

least open to doubt. .

The fact that it was reasonable for the Firemen to claim

some role in representing apprentice engineers is concretely

iilustrated by the joint proposals of the Firemen and the

Engineers made a@ recently as. 1960. Those proposals,

_ which the two unions agreed upon, contemplated a gradu-

ated .program in which the employee would move through

four stages: locomotive helper (trainee); locomotive helper,

locomotive helper (apprentice engineer), and locomotive

engineer. Elsewhere in the proposals, “‘helpers” were equated

with firemen. ‘Thus the scheme contempkted representation

by the Firemen through three of the four stages. '®

Further, and quite apart from any claim on the part of

the Firemen: to possible representation of future apprentices,

the Firemen were the certified representatives of a group of

employees with a strong economic interest.in. the nature of

apy apprentice engineer program. The existing firemen em-

ployees of the carriers had traditionally looked forward to

_is rather that, after the Firemen have had a chance to bargain over

the nature of the apprenticeship program, some apprentices at some

stage of the Program might appropriately be represented by the Fire-

men.

'8The Presidential Commission which was constituted to attempt a

settlement of the work rules dispute of the early 1960’s took ote of

the need for new sources of engineers, and recommended that:

“‘a joint committee should be established composed of representa-'

tives. of the Carriers and the Organizations representing. engine

service employees. This Committee would consider the develop-

ment of a training program which would adequately meet the

long run need for future trained engineers.”” (Emphasis added.)

ae eese. oo

TAR RTOE <

eventual promotion to the engineer seniority list, and, by - if

progress up that list, to status and. pay as operating engi-

neers. Yet the injection of a separate apprentice program

for the training of engineers would clearly reduce the indi-

vidual fireman’s chances of reaching that goal.

- Wander the agreement between. the Engineers and the L&

N, the nature of the apprenticeship program was left to

management discretion. Management instituted a 90-day

training program, at the end of which trainees would be

- qualified as engineers. The Firemen proposed a much

training ,program extending over three years. Whatever the

merits of the latter proposal, it can certainly be seen as ec

nomic protection for firemen not yet on the enginee

seniority list. It would delay the infusion of new engineer

recruits into those lists for three years, thus allowing present

firemen a first crack at available engineer jobs. ane

Whether the Firemen’s interest in the length and seniority

provisions of any engineer apprenticeship program qualifies

as a bargainable interest is governed by Qrder of Railroad

Telegraphers v. Chicago & North Western R. Co., 362 U.S.

330(1960). In Telegraphers the carrier proposed to elimi-

nate certain railroad stations, and the jobs that went with

them, for reasons of efficiency. The union proposed a. pro-

vision that no existing jobs be eliminated except by agree-

ment between the carrier and the union. The carrier refused

to bargain, taking the position that this work preservation ,

proposal did not involve “‘conditions of employment, ” but

rather invaded the exclusive prerogatives of management.

The Supreme Court held that the proposal, which related to

the “‘job security” of the union’s members, was bargainable.

It went on to state:

“* * * [T]he trend of legislation affecting railroads +

and railroad employees has been to broaden, not

narrow, the scope of subjects about which workers and

_ railroads may or must negotiate and bargain collectively.

Furthermore, the whole idea of what is bargainable has

been. greatly affected by the practices and customs of

s eee ‘

the railroads and their employees themselves. It is too

late now to argue that employees can have no collec-

tive voice to influence railroads to act in a way that

will preserve the interests of the employees as well as

the interests of the railroad and the public at large.’’!9

Here, even assuming that thé Firemen will never represent

any of the apprentice engineers, present firemen have a “job

security”’ interest in the length and size of the apprenticeship

program. Their union has long bargained with the carriers

over the process of turning firemen into engineers.?° In the

past they have even bargained to restrict carriers’ practice

of bringing in outside engineers to fill vacant jobs.?! Thus

their historical expectation of promotion to:the job of engi-

- neer is a-“term or condition” of their employment which

their union may legitimately bargain to protect.

Therefore, we conclude-‘that the Firemen’s Section 6

notice concerning engineer apprenticeship programs, served

on appellee carriers during 1965, was bargainable under the

19362 U. s. at 338. te

~~~ ?9For example, the Firemen’s collective agreement with the St.

Louis Southwestern Railway Company contains the following provi-

sions:

“62-1. Firemen shall rank on the firemen’s roster from the

date of their first service as firemen when called for such service

except as provided: in Article 62-11, and when qualified shall be

promoted to positions as engineers in accordance with the fol-

lowing rules: :

“62-2. Firemen shall be examined for promotion according

to seniority on the firemen’s roster, and those passing the

required examinatiom shall be given certificates of qualification,

and when promoted, shall hold their-same relative standing in

the service to which assigned.”

2IWhile the railroads were under federal control during World War

I, firemefi complained that their promotional chanceS were being

impaired by the carriers’ practice of hiring outside engineers over the

heads of their own firemen with many years’ seniority. As a result,

the-industry adopted the “Chicago Joint Agreement,” which regulated

this practice. When the railroads returned to private control, the pro-

visions of the Chicago Joint Agreement were retained through collective

bargaining.

Railway Labor Act. The National Mediation Board’s sched-

uling.of mediation over the notice was proper under Section

5 of the Act. The District Court’s order relieving the carriers

of their duty to bargain over the notice must be set aside. |

Ill

The District Court also ordered the National Mediation.

Board to investigate the dispute and certify to the parties

‘“‘whether apprentices being trained to become locomotive

engineers come within the craft or class of locomotive engi-

neers * * * or within the craft or class of locomotive fire-

men * * *, if either.”?? The court’s order was based upon

Section 2, Ninth, of the Railway Labor Act, which provides

that the Board shall “investigate” and decide disputes

“among a carrier’s employees as to who are the representa-

tives of such employees. ” The Board had denied the Engi-

‘neers’ request that ‘it settle the er under Section 2,

Ninth. 3

As the Supreme Court has noted, Section 2, Ninth, was

designed to ‘resolve a wide range of jurisdictional disputes

between unions or between groups of employges.”*? On

the other hand, some inter-union disputes are “left to these

voluntary processes whose use Congress ha[s] long encour-

_aged to protect these arteries of interstate commerce from \

industrial strife.”?4 And as this court has recognized, ‘‘the—

Board has no power under Section 2, Ninth, to decide a

jurisdictional dispute’merely as such.’’*5

The language of Section 2, Ninth, describes with some

precision the nature of the “‘inter-union” or “‘jurisdictional”

22284 F Supp. at 353.°

23General Committee af Adjustment v. Missouri-Kansas- vexme R.

Co., 320 U.S. 323, 336 (1943).

241d. at 337.

25 Brotherhood of Railroad Trainmen v. National Mediation Board,

77 US.App.D.C. 259, 263, 135 F.2d 780, 784 (1943) (concurring

opinion of Rutledge, J.).

—

disputes which the section covers. The Board is to decide

disputes “‘among a carrier’s employees as to who are the

representatives of such employees.” The statute describes

the manner in which tfte dispute is to be settled. The Board

may use a secret ballot, or “utilize any other appropriate

method” of determining the “‘choice of representatives bys

the employees without interference, influence, or coercion

exercised by the carrier.’

The regulations promulgated by the Board under Section

2, Ninth, conform to the natural reading of the statutory

language. To invoke the Board’s Section 2, Ninth, powers,

a union challenging another union’s right to represent a

class or craft must present authorization cards showing that

employees within the class or cfaft support the invoking

union.” Further regulations set out the number of authori-

zation cards which must be presented before the Board will

hold an election.2® Thus the.regulations, like the statute,

contemplate that when within an existing group of employees

some wish to be represented by one union and some by

another, the Board is to decide which union is “the true

representative.’ ‘

The situation presented to the Board in this case deviated

Ninth. The Engineers applied to the Board for a Section

2, Ninth, decision as to who represented the apprentice

'.. engineers recently hired by the L & N (the only carrier to

have actually hired apprentices). It will be recalled that the

L & N apprenticeship program was instituted. pursuant to’ an

agreement with the Engineers, which left the content of the

program to management discretion. These apprentices were

to be represented by the Engineers. The carriers thought

so, the union thought so, and apparently the apprentices

thought so. No authorization cards were brought to the

2645 U.S.C: § 152, Ninth. .

2799 C.F.R. § 1203.2 (1968). .

2899 C.F.R. § 1206.2 (1968). ) 7

Board showing a dispute among ,the apprentices ‘over who _.

represented them. Nor was this a mere technical failing; no

one has claimed before the Board, before the District Court,

or before us, that ahy such dispute gould have been shown.

. There was undoubtedly a dispute between the two unions

which revolved generally around the apprenticeship program.

For ‘instance, fe Firemen thought that the L & N should

bargain over the Firemen’s proposal; the Engineers and the

L & N thought not. In that the. unions represent their.

members, this was a dispute among employees’ of the

carrier. The firemen employees thought they had a bargain-

able interest in the apprenticeship program; the engineer

employees thought not. But no single employee was in dis- aa

pute with another employee over who did or should repre- ~

sent a group to which they jointly belonged.

Thus the Board’s decision that it did not have Section 2, °

Ninth, jurisdiction was firmly supported by the language of

the statute and by the scheme erected to administer it. ‘In

addition, of course, the Board’s construction of its own

jurisdictional statute deserves substantial deference.2? If

more is needed, sound policies rooted in the Railway Labor

Act supported the Board’s decision.

When the Board makes a craft or class determination

concerning a group of employees, it does so partly on the

basis of ‘the kind of work those employees are doing.*° If

their work looks more like the work traditionally done by

firemen, that cuts in favor of certifying them as firemen; if

it looks more like engineers’ work, the Engineers’ union is

more likely to be certified as the representative.

Here, the Board could not. yet know the nature of what

work, if any, the apprentices would be doing. To that

29 Udall v. Tallman, 380 U.S. 1 (1965); cf S.E.C v. National Secu-

rities, Inc., U.S. __, __., 37 U.S. L. WEEk 4101, 4105 (Janu-

ary 27, 1969).

i 3°See Brotherhood of Railway & Steamship Clerks v. Ass'n for

Benefit of Non-Contract Employees, supra Note 9, 380 U.S. at 662-

665. 3 , '

extent, it was disabled from making a proper Section. 2,

Ninth, class or craft determination. True, apprentices were

employed on the L & N. But that program had been

worked out solely between the carrier-and the Engineers.

The Firemen had not yet been able to bargain about the

_nature of the program. The Board could not fairly make

its determination on the basis of a program respecting which

only one of the two competing unions had had its say. To |

have done so would have in effect accepted a fait accompli

achieved only because the carrier had improperly refused to

bargain with the Firemen.

It may be that the Firemen have sufficient bargaining

power to win some concessions from the carriers concerning

apprentice training. ‘Perhaps a longer apprenticeship pro-

gram can be won, a less formal program involving more

_ on-the-job training. Perhaps the suggestion in the Firemen’s

original proposal! that the program be regarded as a training

program for enginemen generally (that is, firemen and engi-

neers) might be implemented in part or in whole.*! Any of

_these..changes might alter the Board’s ultimate Section 2,

Ninth, determination as respects representation of appren-

tices. Finally, the unions might achieve some degree of

harmony in tripartite bargaining and mediation with the

railroads. And some joint-union apprenticeship plan, akin

to that proposed in 1960, might obviate the need for any

Section 2, Ninth, determination at all.

These policy considerations demonstrate wy it would be

premature for the Board to decide now who represents

apprentice engineers. These policies, the literal language of

the statute,,and the Board’s own reading of it, all lead

-toward the conc}usion that the Board presently lacks juris-

\ ’

31The Firemen’s § 6 notice included a definition of “apprentice”

as “a person who is engaged in learning the craft of Locomotive

Engineman.” In fact there is no such recognized craft, as the District

‘Court found, 284 F.Supp: at 346. The terms “‘engineman” or “engine

service employee” refer to the joint class of firemen and engineers.

diction under Section 2, Ninth, to determine the represen-

tative of apprentice locomotive engineers.

Accordingly, the District Court’s injunction ordering the

Board to decide the dispute must be vacated. The District

Court orders enforcing its basic decree, from which the

Firemen have sought interim relief, must be vacated along

with the decree itself.

Reversed.

BURGER, Circuit Judge, with whom Circuit Judge TAMM

joins, concurring: 1 concur in the result reached and add

these comments to clarify the basis upon which I rely.

The arguments advanced-by the Carriers and the Engineers

are very persuasive as to what kind of statute the public

interest called for, as the instant case and others abundantly

illustrate. Unfortunately, however, an inadequate statutory -

scheme leaves the problems posed by this litigation “‘falling

between two stools.” The absence of existing apprentices

seems to preclude there being a “representational” dispute

within the meaning of Section 2, Ninth. As for the two—

presently operating apprentice programs Section 2, Ninth

once again appears unavailing since there is no dispute

among those apprentices as to who their representative is.

Finally, since none of the parties claim that the instant dis-

pute arises under their respective collective bargaining |

agreements, it appears that the National Railroad Adjustment

Board does not have jurisdiction. Thus, despite a clearly

expressed broad Congressional intent that “(a)ll disputes...

be considered with all expedition” 45 U.S.C. § 152, Second,

the shippers—and the public, which ultimately bears the

burdens of all such conflicts—must continue to pay a heavy

cost for the futile controversy which has engaged the courts

and numerous litigants for so long.

Added to this, we cannot be unmindful that for over

thirty years the Mediation Board has construed the statute

Rae a

: RRB p EP MEME te

+ ’

as not vesting in it the powers which Appellees urge. The

controversies which led to the creation of Board .282 and

subsequent events might well cause some doubts in Con-

gréss as to the Board’s construction of the statute, but

this cannot encourage us,as admittedly is often done by

judges, to read the statute—a euphemism for re-writing it—

as we think Congress should hare Urafiod it. That the

course we are compelled to follow may well prolong this -

unhappy history, of wasteful strife is a matter within the

power and province of Congress. :

The broad claims of the Firemen concerning the historical

connection between their craft and the training of railroad

engineers deserves some comment. The Firemen were indeed

the. source of most of those who became railroad engineers,

but they were the “‘pupils,” not the teachers; the Engineers

trained and taught the Firemen so that they could qualify

for engineer jobs when available. To what extent this gives

the Firemen a “bargainable interest” in the apprenticeship

training program of the Carriers is not clear, but we are not

called upon now to define its scope.

Moreover, if anything is clear from the history. which pre-

ceded Board .282 it is that due to gradual technological

changes the traditional functions of the Fireren had become

largely obsolete, but the carriers, shippers and the public

were not relieved of the burden of unneeded employees. To

remedy this problem Congress created Board 282; after

lengthy hearings the Board permitted the carriers to extin-

guish up to ninety percent of the Firemen’s jobs. Although

the 282 Award has, by its terms, expired, this Court has

recognized that its obvious legislative intent has not thereby

“lost its vitality."q The primary interest of the Firemen at ©

this juncture is to ensure that their promotional rights are

not impaired by having graduate apprentices supersede

‘See Brotherhood of L.F.E. v. Bangor & Aroostook R.R. Co., No.

20,472 (D.C. Cir., decided February 28, 1969); Brotherhood of Rail-

road Trainmen v. Akron & B.B. R.R. Co., 128 U.S. App. D.C. 59,

385 F.2d 581 passim (1967),,cert. denied, 390 U.S. 923 (1968).

_ existing firemen in their quest to become engineers. History

and logic, then, may well point toward confining the ‘‘bar-

gainable interest’’ of the- Firemen solely to the effect .and

not the internal structure of the apprentice programs; this is

not to say that both of the contending Unions may not

have some contribution to make within the framgwork of.

_ their experience.

Today’s result places the carriers in the unhappy. position

of having to deal simultaneously with two rival ‘unions

whose bargaining demands will very likely conflict if a high

order of union statesmanship’ is not forthcoming. Moreover,

since both Unions have now been given the right to serve

Section .6 notices, the disappointed Union will have the

right to strike once the statutory procedures are exhausted.

The Carriers will be able neither to avoid nor to resolve a

strike by agreeing with the striking union. without the risk

of violating its obligation not to depart unilaterally from its

agreement with the other Union. Although I consider this——

in the statute which permits the — to impose a different

result.

“J udgment of the Court of. Appeals

"Filed March 14, 1969]

Unrrep States Court OF Avie FOR THE DIstRIcT OF

CoLuMBIA CIRCUIT

No. 22,050 September Term, 1968.

Civil Action 2060-66

BrorHEeRHoop of LocomMoTIvVE FiREMEN AND E\NGINEMEN,

Appellant,

o,.

National Mepration Boarp, et al., Appellees.

No. 22,185

NationaL Mepiation Boarp, Appellant,

* 4 v. e |

BrotHEeRHOOD oF LocomoTivE ENGINEERS, Appellee.

Appeals from the Uubied States sets Court for the

District .of Columbia.

Before: Burckr, Wricht and Tamm, Circuit Judges.

Judgment ~

These cases came on to be heard on the record on appeal

from the United States District Court for the District of

Columbia, and were argued by counsel.

“21

On Consweration TuEreEoF; It is ordered and adjudged

by this Court that the judgment of the District Court dated

April 26, 1968, appealed from herein is. hereby reversed,

and the District Court is hereby directed to vacate the afore-

said judgment.

Per Curiam -

For the Court:

NatHan J. Pautson,

Clerk.

Dated: March 14, 1969.

Opinion by Circuit Judge Wright.

Separate concurring opinion by Circuit J udge Burger, with

whom Circuit Judge Tamm joins.

Findings of Fact and Conclusions of Law of the

District Court

[ Filed — 26, 1968]

On the basis of the shscdiiae and affidavits on file, the

Court hereby makes the following Findings of Fact and

Conclusions of Law.

_ FINDINGS OF FACT

1. Each of the defendants Louisville & Nashville Railroad ~

Company, Southern Pacific Company, Great Northern Rail-

way Company, IHinois Central Railroad Company, Atlantic

Railway Company is a ‘‘earrier’’ as defined in Section 1

First of the Railway Labor Act (45 U.S.C.-§ 151 First).

2. The’ plaintiff Brotherhood of Locomotive Engineers

(hereinafter called the ‘‘BLE”’’), and the defendant Broth-

erhood of Locomotive Firemen and Enginemen (hereinafter

ealled the ‘‘BLF&E”’’) are unincorporated labor organiza-

tions which represent certain employees of the carrier de-

fendants and of various other carriers for purposes of the

Railway Labor Act (45 U.S.C. §§ 151 et seq.).

3. The pe gue National Mediation | = sy (herein-

after called the ‘‘NMB’’) is an agency of the federal gov-

ernment which has certain duties, powers, and functions.

under the Railway Labor Act (45 U.S.C. § 154).

4. In the railroad industry, the representation of em-

ployees by labor organizations is and for many years has

been on the basis of crafts or classes of employees.

5. There are and for many years have:been two crafts or

classes of engine service employees, that is, employees

whose basic duties are confined to service in the cabs of

locomotives: Iocomotive engineers and locomotive firemen.

6. The BLE is and for many years has been the- duly

designated and authorized representative of the craft or

class of locomotive engineers on each of the carrier de-

fendants and on most of-the other railroads in the United

States. On each carrier where that is true, it is undisputed

that ‘under the Railway Labor Act the BLE is the exclusive

representative of all of the carrier’s employees within the

craft or class of locomotive engineers and is the only or-

ganization authorized to serve upon the carrier under Sec-

tion 6 of the Railway Labor, Act (45 U.S.C. § 156) notices,

- of proposals to change the rates of pay, rules, or working

-eonditions applicable to the craft or class of locomotive

engineers, to confer; negotiate, or bargain with the carri?r

about such proposals, and to enter into agreements with

the carrier about the rates of pay, rules, and working con-

ditions applicable to the craft or class of locomotive en-

gineers. *

Vea

7. The BLF&E is and for many years has been the duly. .

designated and authorized representative of the craft or °

class of locomotive firemen on each of the carrier defend-

ants and on most of the other railroads in the United States.

On each carrier where that is true, it is undisputed that

under the Railway Labor Act the BLF&E is the exclusive

representative of all of the carrier’s loyees within the

craft or class of locomotive firemen a id is the only organiza-

tion authorized to serve upon the carrier under Section 6 of

the Railway Labor Act (45 U.S.C. § 156) notices of pro-

posals to change the rates of pay, rules, or working con-

ditions applicable to the craft or class of ‘locomotive fire-

men, to confer, negotiate, or bargain with the carrier about

such proposals, “#nd to enter into agreements with the car-

rier about the rates of pay, rules, and working tenditions

applicable to the craft or class of locomotive firemeti.

8. There is no existing separate craft or -class of: em-

ployees, for purposes of the Railway Labor Act, designated

or known as ‘‘engine service employees”’ or ‘‘locomotive

enginemen.’’ The term ‘‘engine service employees”’ is com-

monly understood in the railroad industry to refer to both

locomotive engineers and locomotive firemen.

9. Locomotive engineers generally are needed and used on

all locomotives operated by a carrier. Prior to the ef-

fectuation of the Award by Arbitration Board No. 282,

agreements between the earriers and the BLF&E generally

required that a locontotive fireman be used on each locomo-

tive operated by a carrier. . That Awar , Which was issued

on November 26, 1963, pursuant to Public Law 88-108 (77

Stat. 132), geyerally authorized the carriers to eliminate

up to ninety Ceveont of locomotive fireman positions on

locomotives in freight and yard service. |

10. For many years, the carriers’ needs for. additional

- locomotive engineers had been met primarily, although not

exclusively, by the promotion of qualified locomotive fire-

men to the craft or class of locomotive engineers. When a

- locomotive engineer is no longer needed as such, because of

fluctuations in the carrier’s business or other reasons, he

may be demoted, according to his seniority, to the craft or

class of locomotive firemen. ‘The collective bargaining

agreements between each carrier and the BLE and the col-

lective bargaining agreements between that carrier and the

’ BLF&E contain substantially identical provisions concern-

ing the promotion of qualified locomotive firemen to locomo-

tive engineers and the demotion of unneeded locomotive

engineers to locomotive firemen. Those provisions were

adopted by the Director General of Railroads in 1919, when

the railroads were being operated by the Federal Govern-

_ment, and have been retained, with some modifications, ever

since. They do not specify the training required before a

locomotive fireman may be qualified for promotion to loco-

motive engineer or a locomotive engineer may be hired by

a carrier.

11. A locomotive fireman who has been promoted to the

craft or class of locomotive engineers thereafter is repre-

sented by the BLE (except on those few railroads on which

‘the craft‘or class of locomotive engineers is represented by

the BLF&E) for as long as he remains a member of that

craft or class; he is no longer represented by the BLF&E;

and the rates of pay, rules, a conditions estab-

lished by the carrier with the , rather than the rates

ef pay, rules, and working conditions established by the

earrier with the BLF&E, are applicable to such individual.

When a locomotive engineer has been demoted to the craft

or class of locomotive firemen, thereafter he is represented

by the BLF&E (except on those few railroads on which

locomotive firemen are represented by the BLE) for as

long as he remains a member of that craft or class; he is

no Jonger represented by the BLE; and the rates of pay,

rules, and working conditions established by the carrier

with the BLF&E, rather than the rates of pay, rules and

working conditions established by the carrier with the BLE,

are applicable to such individual.

12. Prior to-the effectuation of the Award by Arbitration

Board No. 282 (Finding of Fact 9, above), the needs of the

carriers for additional locomotive engineers genérally could

be fully satisfied through the promotion of qualified locomo-

tive firemen and the hi#mg of persons otherwise qualified

to become locomotive engineers. There was no necessity

for a program to train apprentices to become locomotive

engineers, and none of the carriers had such a program. As

the number of locomotive firemen employed by the car-

riers, and thus the number of locomotive firemen qualified

for promotion to locomotive engineers, has been reduced

following effectuation of the Award by Arbitration Board

No. 282, the defendant Louisville & Nashville Railroad

Company has found it necessary to provide an additional

source for obtaining locomotive engineers. Other carrier

defendants and other railroads foresee a similar need within

the near future.

13. In order to meet its needs for locomotive engineers,

the defendant: Louisville & Nashville Railroad Company

determined it to be necessary, in April 1966, to establish a

program for the training of apprentices to become locomo-

tive engineers. On April 28, 1966, that carrier and the BLE

entered into an agreement establishing the rate of pay

applicable to such apprentices. While the Louisville &

Nashville continues to promote qualified and available lo-

comotive firemen to positions as locomotive engineers, part

of its need for additional locomotive engineers is now being

met by hiring apprentices who have successfully completed

the apprentice training program and qualified to become

locomotive engineers. The BLE has been recognized by the

Louisville & Nashville as the designated and authorized

bargaining representative of the apprentices, and the

BLF&E has not applied to the NMB for an investigation

to determine whether someone other than the BLE should

be certified as the designated and authorized representative

of such apprentices.

“&

Bee RRS ECS TIPO

' 26

14. The defendant Great Northern Railway Company and

the BLE efitered into an agreement concerning the future

training of apprentices to become locomotive engineers on

September 13, 1967. Apart from the Louisyidle & Nash-

_ ville and the Great Northern, none of the carrier defendants

has yet established a program for training apprentices to

become locomotive engineers. In some instances, the estab-

lishment of sucha program has been delayed by the dispute

between the BLE and the BLF&E as te which organization

is entitled to represent apprentices training to become lo-

comotive engineers, but some of the carrier defendants and

other railroads believe that the establishment of such ‘an

apprentice training program within the relatively near

future will be essential in order to assure them of an ade-

quate supply of qualified locomotive engineers.

15. On or about March 25, 1965, the BLF&E served upon |

the defendant Louisville & Nashville Railroad Company a

notice, purportedly ‘pursuant to Section 6 of the Railway

Labor Act (45 U.S.C. § 156), which proposed the establish-

ment of an apprentice training program. On or about

April 28, 1965, the BLF&K served upon the defendant

Southern PacifisCompany a notice, purportedly pursuant to

Section 6 of the Railway Labor Act, which proposed the

establishment of an apprentice training program. On or

about November 15, 1965, the BLF&E served upon each

of the carrier defendants except the Louisville & Nashville

Railroad Company and upon more than 100 other railroads

throughout the United States a notice, purportedly pursuant

to Section 6 of the Railway Labor Act; this notice con-

sisted of three parts identified as ‘‘Notice No. 1,”’ ‘‘Noticey,

No. 2,’’ and ‘‘Notice No. 3’’; the part designated as ‘‘ Notice

No. 3’? proposed the establishment of an apprentice train-

ing program. ‘‘Notice No. 3’’ and the notices served upon

the Louisiville & Nashvillé’and the Southern Pacific, de-

scribed above, are hereinafter called the ‘‘apprentice

notices.’’ a

27 -

16. In its apprentice notices, the BLF&E proposed to

require the carriers to establish a program for-the train:

ing of apprentices who, ‘upon successful completion df the

program, would become qualified and receiye seniority as

locomotive engineers, and those tiene thers relate

to the training of apprentices to beéome locomotive en-

gineers. ; :

17. In correspondence with the carriers shortly after t]

BLF&K’s apprentice. notices had been served, the BLE

claimed that these notices encroached upon its jurisdiction

as the representative ofthe craft or class of locomotive

engiueers and that the carriers could not lawfully bar-

gain or agree with the BLF&K upon the.apprentice train-

ing program proposed in those notices.’ The BLE has since

-. consistently maintained that positjon before the NMB and

in this Court, as well as others and threatens to strike

and engage in other self-help against any carrier that

confers, negotiates, or Otherwise agrees with the BLF&E

upon the merits of its apprentice notices.

18. In correspondence with the carriers and the NMB and

before this Court, the BLF&E has claimed and it now

claims that its apprentice notices come within its jurisdic-

tion as the representative of the craft or class of locomo-

tive firemen and that the carrier defendants and the other.

carriers served with the said notices are required by the

Railway Labor Act to confer, negotiate, and otherwise

bargain with the BLF&E about the merits of the pro-

posals made ‘therein. There is substantial likelihood that

the BLF&E, if not restrained by the court, will engage in

strikes or other self-help against the carriers with respeet

to this proposals if the procedures of the Railway Labor

Act are exhausted without an agreement being reached be-

tween the said carriers and the BLF&F.

19. Since the BLF&E’s apprentice natices were served

on the carriers, there has existed, and there now exisfs, a

dispute between the BLF&E and the BLE as to whether

+ Aye SLND Mee yer of ome

28 na *

apprentices being trained to become locomotive engineers

are a part of the craft or class of locomotive fi

remey.

20. A strike by either the BLE or the BLF&E fs any

~ of the carrier defendants would cause grave and‘irreparable

injury to the carrier and would disrupt essential transporta

tion services in interstate commerce. f

21. The carrier defendants and the other carriers served

wish the BLF&E’s apprentice notices have expressed their

willingness to bargain with the duly designated and a-

locomotive engineefs regarding any valid and bargainable

proposal with respect to the rates of pay, rales, or working

conditions applicable to such apprentices. The earriers

have objected to the BLF&E’s apprentice notices, however,

on the ground that those notices are invalid ayd non-bar-

gainable under the Railway Labor Act because they are

not within the jurisdiction of. the BLF'&K a the representa-

tive of the graft or class of locomotive fyremen. The car-

riers have contended that they are not fequired to bargain

or agree with the BLF&E with respect to the BLF&K’s

apprentice notices unless and until it has been definitely

determined that the BLF&E is the designated and au-

thorized representative of apprentices training to become

~ locomotive engineers. Consequently, the carriers have re-

fused to bargain with the BLF&E upon the merits of the

BLF&E’s apprentice noticés. At various times, the

BLF&E has applied to the NMB for its mediation services

with respect to the apprentice notices served upon the

carrier defendants and some of the other carriers, but no

mediation upon the merits of the notices has occurred. ‘The

BLF&E has requested the NMB to terminate fts services

with respect to such notices, but the NMB has not done

SO.

22. On or about June 6, 1966, the representative of the

carrier defendants and the other carriers that had been

served with the BLF&E apprentice notices informed the

NMB of the dispute between the BLF&E and the BLE,

arising out of the BLF&E’s apprentice notices and re-

quested mediatory services of the NMB in order that the

carriers might ‘‘be properly and legally informed as to

which of the two disputing organizations may legally bar-

gain for and on behalf of apprentice locomotive engineers.’

On or about June 21, 1966, the NMB dismissed this applica-

tion on the ground that the question as posed ‘‘involved

a question of representation’’ and that ‘‘[s]uch issues are

~ resolved under Section 2, Ninth, of the Railway Labor Act.”’

On or about June 29, 1966, counsel for the carriers requested

a hearing for the purpose of securing clarification of the

grounds for dismissal.. This request was denied by the

NMB on June 22, 1966. _ |

~ 23. On or about June 25, 1966, the BLF&E filed a com-

plaint against the defendant Louisville & Nashville Rail-

road Company in the United States District Court for the

Western District of Kentucky (Civil Action No. 5402). In

that complaint, the BLF&E sought to restrain the Louis-

ville & Nashville from effectuating and implementing the

agreement of April 28, 1966, between the Louisville &

Nashville and the BLE (Finding of Fact 13, above). On

or about July 5, 1966, the court dismissed that action after

concluding that the ‘‘action involves a controversy between

BLF&E and BLE... as to which of those organizations

is the exclusive bargaining representative for and in behalf

of the apprentice locomotive engineers employed by the

L&N and this Court has no jurisdiction to determine that

controversy, the determination of which isiexclusively with-

in the jurisdiction of the National Mediation Board.’’ An

appeal by the BLF&E is now pending in the United States .

Court of Appeals for the Sixth Cireuit (No. 17,588).

24. On or about June 30, 1966, and July 5, 1966, the

BLE informed the NMB of the BLF&E’s s ‘challenge to its

right to represent apprentice locomotive engineers em-

ployed by the Louisville & Nashville and requested the

NMB’s services pursuant to Section 2 Ninth of the Rail-

way Labor Act. On July 22, 1966, the NMB dismissed this

application on the ground that its authority under Sec-

tion 2 Ninth does not extend to a ‘‘jurisdictional dispute

as such,’’ and that ‘‘the dispute, if any exists, is not a

representation dispute; but may. involve an issue as to

the right of the employees of one craft or class to do

the work that is alleged to be that commonly done by

employees of another craft or class. Procedures other

than those outlined in Section 2, Ninth, of the Railway

Labor Act are available to settle such disputes.’

25. On or¢about July 22, 1966, the NMB, acting upon the

mediation cases ‘involving the BLF&E’s apprentice notices

served upon the defendants Louisville & Nashville Railroad

Company and Southern Pacific Company, notified the

BLF&E and the carriers’ representative that, because of

the denial of the carriers’ request for a hearing with re-

spect to the dismissal of the -carriers’ application dated

June 6, 1966 (Finding of Fact 22, above), the BLF&E

and the carriers ‘‘should now enter into discussion con-

cerning the Section 6 notices served by the BLF&E... .’’

Accordingly, the NMB announced that mediation confer-

ences with respect to the apprentice notices served by the

BLF&E upon those two carriers would be held on August

4, 1966. ”

26. On July 27, 1966, the BLE, stating its contention

that the BLF&E’s apprentice notice as served on the

defendant Southern Pacific Company infringed on the

BLE’s. right to represent apprentice locomotive engineers,

applied for the NMB’s services under Section 2 Ninth of

the Railway Labor Act to determine which organization

does represent apprentice locomotive engineers on the

Southern Pacific for purposes of the Railway Labor Act,

in order that the BLE might know whether that carrier .

could properly and legally bargain with the BLF'&E con-

cerning the apprentice notice. On July 28, 1966, the BLE

requested the NMB to reconsider its dismissal of the —

n°

‘BLE’s Section 2 Ninth application with ‘respect to . the

right to represent apprentice locomotive engineers on

the Louisville & Nashville (Finding of Fact 24, above),

and to advise the BLE as to the nature of the ‘‘[p]ro=:

cedureS other than those outlined in Section 2 Ninth’? which —

the NMB had stated, in dismissing that application, ‘‘are-

available’’ to settle the dispute between the BLE and the

BLF&E (Finding of Fact 24, above). The NMB did not

reply to either the July 27, 1966, request with respect to

the situation on the Louisville & “Nashville, except that

the NMB notified the BLE, on or about August 1, 1966,

that mediation conferences would be held as: scheduled on

‘August 4, 1966.

.27. On August 4, 1966, representatives of the NMB met

separately with representatives of the BLF&E and

representatives of the carriers, but the merits of the

BLF&E’s apprentice notices were not discussed. No fur-

ther mediation with respect to those notices has been

scheduled.

CONCLUSIONS OF LAW

1. This action arises under the Railway Labor Act, 45

” U.S.S. §§151 et seq., and all parties are subject to that

. Act. The court has jurisdiction of the parties and the

subject matter. 28 U.S.C. §§ 1331, 1337, 1361, 2201, 2202. °

2. This action involves an actual case or controversy

whichis justiciable by this court. Railway Clerks y. Em-

ployees Ass’n., 380 U.S. 650 (1965); Brotherhood of R.R.

Trainwen v. Akron & B.B. R.R., 55 CCH Lab. Cas. { 11,912

(D.C. Cir., May 12, 1967), petitions for cert. pending; Pan.

American World Airways, Inc. v. Int’l Bhd. of Teamsters,

— F. Supp. , 56 CCH Lab. Cas. § 12,270, at 20,205

(S.D.N.Y. Nov. 9, 1967).

3. Under the Railway Labor Act, the duly designated and

_ authorized representative of a craft or class:of employees of

a carrier is the exclusive representative of that craft or

APRA PINES

~ class for purposes. of bargaining or agreeing with the

carrier about the rates of pay, rules, and working condi-

tions applicable to that craft or class. Only* the duly

designated and authorized representative of a craft or

‘class of employees of a carrier may serve the carrier with

a notice, pursuant to Section 6 of the Act, of proposed

' changes in agreements affecting rates of pay, rules; or

working conditions applicable to such craft or class of }

employees. If an organization serves a carrier with a

Section 6 notice concerning the rates of pay, rules, or

working conditions of employees who are not within the

eraft or class represented by the organization, that. notice

is invalid, and the carrier is not required to confer, partici-

pate in mediation, or otherwise bargain with the organiza-

tion concerning that notice’or thé proposals made therein.

carrier defendants and many other carriers are valid and

. bargainable under the Railway Labor Act, therefore, only

if the BLF&E is the duly designated and authorized repre-

sentative’ on such carriers of apprentices training to be-

come locomotive engineers. 45 U.S.C. §§152 Second

' through Tenth, 156; Virginian Ry. v. Federation, 300 US.

515, 548-549 (1937); Southern Pacific Co. v. Switchmen’s

Union, 356 F.2d 332 (9th Cir. 1965); Order of Railway

Cond. & Brake. v. Switchmen’s Union, 269 F.2d 726 (5th Cir.

1959).

4. There is a bona fide dispute between the BLE and

the BLF&E as to whether apprentices training to become

locomotive engineers: are within the jurisdiction of the

BLF&E as the designated and authorized representative

of the craft or class of locomotive firemen on the defendant

carriers and many other carriers or within the jurisdiction

of the BLE as the designaté@l and authorized representative

of ‘the craft or class of locomotive engineers on such car-: -

riers.. The carriers are not required under the Railway

Labor Act to confer, participate in mediation, or other-

wise bargain with the BLF&E over its apprentice notices

. unless and until it has been determined, in the manner.

provided by the Railway Labor Act, that the BLF&E is

the duly designated and authorized representative on such

carriers of apprentices training to become locomotive en-

gineers. Until such time as it has been so determined and .-

the procedures of the Railway Labor Act otherwise have

been exhausted with respect to such notices, the BLF&E

may not strike or otherwise engage in self-help. against

the carriers with respect to such notices or the proposals

made therein. 45 U.S.C. §§ 155-160; Southern Pacific Co.

v. Switchmen’s Union, 356 F.2d 332 (9th Cir. 1965) ; Ruby

, Vv. American Airlines, Inc., 323 F.2d 248, 2&5 (2d Cir. 1963) ;

Flight Engineers’ Inter. Ass’n. v. Eastern Air Lines, Inc.,

311 F.2d 745 (2d Cir. 1963) ; Pan American World Airways

v. Int’l Bhd. of Teamsters, —— F. Supp. ——. 56 CCH

Lab. Cas. J 12,270 at 20,206 (S.D.N.Y. Nov. 9, 1967); see

NLRB .v. Downtown Bakery Corp., -330 F.2d 921, 928

(6th Cir. 1965); Garment .Workers v. NLRB, 280 F.2d

616, 621-622 (D.C. Cir. 1960), aff’d 366 U.S. 731 (1961);

NLRB v. Hannaford Bros. Co., 261 F.2d 638, 640 (1st

Cir. 1958).

. The dispute between the BLE and the BLF&E re-

ues to in paragraph 4 above is a dispute among em-

ployees as to who are the representatives of such employees,

within the meaning and intendment of Section 2 Ninth

of the Railway Labor ‘Act (45 U.S.C. § 152 Ninth). ‘General

Committee v. M.-K.-T. R. Co., 320 U.S. 323, 336 (1943) ;

Switchmen’s Union v. NMB, 320 U.S. 297, 302 (1943);

Howard v. St. Louis 8.F. Ry., 361 F.2d 905, 909 (8th Cir.

1966); Southern Pacific Co. v. Switchmen’s Union, 356

F.2d 332, 335 (9th Cir. 1965); Brotherhood of Loc. F. &

FE. v. Louisville € N. R.R., Civil Action No. 5402 (W.D.

Ky. 1966), appeal pending (6th Cir.); ‘‘Railway Labor

Act Amendments,’’ Hearings before House Comm. on

Interstate and Foreign Commerce on H.R. 7650, 73rd Cong.,

2d Sess. , pp. 45, 57 bate

5) ARE EI AERP IE ILLS MOM

ii “oe

aa 7 “iad Say’

= saad

6. The applications by the BLE under Section 2 Ninth

of the Railway Labor Act with respect to the representa-

‘tion of apprentices being trained to become locomotive

engineers on the Louisville & Nashville Railroad Company

and the Southern Pacific Company, respectively, were valid

and sufficient invocations of the jurisdiction<ef the NMB

- under Section 2 Ninth of the Act. Upon receipt of those

applications, it was the duty of the NMB to investigate

the dispute between the BLE and the BLF&E and to

certify to the parties whether such apprentices come within

the craft or class of locomotive engineers represented by

the BLE or within the craft or class of locomotive firemen

represented by the BLF&H, if either. Railway Clerks v.

Employees’ Ass’n., 380 U.S. 650 (1965). and the authorities

cited in paragraph 5 above.

7. The jurisdiction of the NMB,under Section 2-Ninth of

_ the Railway Labor Act to determine the dispute between

the BLE and the BLF&EK referred to in paragraph 4 above

is exclusive, and*this Court does not have jurisdiction to .

determine that. dispute. Railway Clerks v. Employees

Ass’n., 380 U.S. 650, 658-661 (1965) ; Switchmen’s Union

v. NMB, 320 U.S. 297 (1943) ; General Committee v. M.-K.-T.

R. Co., 320 U.S. 323, 336 (1943); General Committee _v..

Southern Pacific Co., 320 U.S. 338 (1943).

8. In dismissing or failing to act upon the applications

of the BLE under Section 2 Ninth of the Railway Labor

Act on the ground that the applications were beyond the |

jurisdiction of the NMB under Section 2 Ninth, the NMB

failed to perform its mandatory duty under that Section.

‘ his court has authority to declare the statutory duty of

the NMB in this action and to compel the NMB to per-

form its duty under Section 2 Ninth of the Act with

respect to the BLE’s applications. Railway Clerks v. Em-

ployees Ass’n., 380 U.S. 650, 661 (1965); Air Line Dis-

‘ patchers Ass’n. v. NMB, 189 F.2d 685 (D.C. Cir. 1951).

judgment filed by the defendant Brotherhood of Liocomoti

pats sha

9. There is no genuine issue as to any material fact, and

the BLE and carrier defendants are entitled to judgment -

as a matter of law, as hereinbefore set forth. Fed. R.

Civ. P. 56. ee. , :

10. The motion of the BLF&E for summary judgment

should be denied, and the motions.of the BLE and the

carrier defendants for.summary judgment should. be

granted as provided in the judgment being entered here- -

with.

i. JOHN J. er

United States District Judge

April 26, 1968*

Judgment of the District Court

arin [Filed April 26, 1968]

| Motions for summary judgment, and affidavits having

been filed by each of the parties except the defendant Na-

tional Mediation Board, memoranda having béen filed by

all the parties, counsel for all the parties having been heard,

the Courf having determined that the motion for summary ae

Firemen and Enginemen should be denied and that the’

motions for summary judgment filed by the. plai

- by the carrier defendants should be granted, the Court

' having made its findings of fact and conclusions of law

which are being filed herewith, and 6, >» deliberation having .

been had, it is hereby :

Oxpenep, ADJUDGED AND Deoréep:

- 1. That the defendant National Mediation. Board has the:

power and duty, which it is hereby directed to exercise’

under Section 2 N: inth of the Railway Labor Act (45 U.S.C.

§152 Ninth), to investigatesthe dispute between the plain-

tiff and the defendant Brotherhood of Locomotive Firemen

and Enginemen, pursuant to the applications heretofore

filed by plaintiff with the National Mediation Board, and

to certify to the parties whether apprentices being trained

to become, locomotive engineers come within the craft or

class of locomotive engineers represented by the BLE or

within the craft or class of locomotive firemen represénted

» by the BLF&E, if either.

* 9 That the defendants Louisville & Nashville Railroad

Company, Southern Pacific Company, Great Nérthern Rail-

way Company, Illinois Central Railroad Com@hy, Atlantic

~ Coast Line Railroad Company, and St. Louis: uthwestern

Railway Company, respectively, are not required to confer,

participate in mediation, or otherwise bargain with respect

to the apprentice notices served upon them by the Brother-

hood of Locomotive Firemen and Enginemen unless and

unfil the National Mediation Board determines, pursuant

to an investigation under Section 2 Ninth of the Railway

Labor Act, that the Brotherhood of Locomotive Firemen

and Enginemen is the duly designated and authorized. rep-

résentative of apprentices training to become locomotive

engineers on such carrier defendant. k

3. That the Brotherhood of Locomotive Firemen and

Enginemen, each of its lodges, divisions, locals, officers,

agents, and employees, and all persons acting in concert

with them,.are hereby enjoined from authorizing, calling,

encouraging, permitting, or engaging in any strikes and

from picketing the premises of any of the carrier defend-

ants referred to in paragraph 2 above for the purposes of

reqWring any of the said carrier defendants to bargain or

agree with thé’Bretherhood of q@zocomotive Firemen and

Enginemen concerning the proposal#made in its appretitice

notices unless and antil: (1) the’ National Mediation Board

determines, pugsuant to an investigation under Section 2

Ninth of the Railway Labor Act, that the Brotherhood of

Locomotive Firemen and Enginémen is the duly designated

and authorized repr¢sentative of apprentices training to

Pre ea

‘ nae

become locomotive engineers on such carrier defendant, and

(2) the Brotherhood of Locomotive Firemen and Engine-

men otherwise exhausts the procedures of the Railway

Labor Act with respect to its apprentice notices.

4. Plaintiff and the carrier defendants shall recover

from the defendant Brotherhood of Locomotive Firemen

and Enginemen their taxable costs. ees

/3/ Joun J. Strica

— States District Judge

April 26, 1968

eres

ee ad

-Letter-Opinion and Order of the National Mediation Board

NATIONAL MEDIATION BOARD

, WASHINGTON, D.c. 20572

July 22, 1966

_ Mr. P. S. Heath, Grand Chief Engineer

Brotherhood of Locomotive Engineers

1118 BLE Building

Cleveland, Obio 44114.

Dear Mr. Heath:

On: July 1, 4966, the Brotherhood of Locoinotive’ Engi-

neers addressed\a telegram to the Board requesting its

services pursuant to Section 2, Ninth, of the Railway Labor

Act in a dispute involving representation of Apprentice

Locomotive Engineers employed by. the Louisville and

Nashville Railroad.

In the telegram it was pointed out that the Brotherhood

of Locomotive Engineers, as the certified representative of

the Locomotive: Engineers, had entered into an agreement

with the Louisville and Nashville Railroad on April 28,

1966, for Apprentice Locomotive Engineers as a part of

the craft or class of Locomotive Engineers. It was further

stated that the Brotherhood of Locomotive Firemen and

Enginemen had raised the question as to the BLE’s right

to represent Apprentice Locomotive Engineers employed

by the Louisville and Nashville Railroad before the United

States District Court for the Western District of Kentucky

- (Civil Action No. 5402). |

‘This telegram was acknowledged and copies transmitted

to the Carrier and the BLF&E for comments. The telegram

was supplemented by a letter from the BLE, dated July 5,

1966, copy of which was also furnished to the Carrier and

the BLF&E. Subsequently, comments were reeeived from

both the carrier and the BLF&E. Peg

“39 |

Mr. Sei:oll, Director of Personnel, Louisvi e and Nash

ville Railroad, in a letter dated July 11, 1966; statess_

“In compliance with your request that we furnish you

a statement of our position in that matter, we wish to

advise that, in our opinion, the Brotherhood of Loco-

motive Engineers represents apprentice locomotive

engineers on this railroad and we have accordingly

entered into an agreement with that organization rela-

tive to such apprentices.”

Mr. Gilbert, President of the Brotherhood of Locomotive

Firemen and Enginemen, in his ner of July ad 1966,

states: 5

“Accordingly, it is cleat ‘that — Mr. Heath j is asking

the Board to do is to extend a right which it now has | —

to represent on the L&N the craft or class of locomotive

engineers to embrace employees performing the Funce-

tions of firemen in violation of the representation rights

of this organization“and in violation of the rights of ;

the employees to select their own collective bargaining:

representative.”

In the present situation, it is clear that the Brotherhood

of Locomotive Engineers has been certified by the National

Mediation Board, Case No. R-3225, Certification issued

December 31, 1957, as the representative of the craft or

class of Locomotive Engineers, employees of the Louisville

and Nashville Railroad Company. Neither the carrier nor

the Brotherhood of Locomotive Firemen and Enginemen

dispute this fact. ce

It is also clear that the carrier has recognized the

Brotherhood of Locomotive Engineers as the representative

of the Apprentice Locomotive Engineers, employees of the

L&N Railroad and ha¥e entered into an agreement with

that organization relative to such apprentices. :

RE OT oA TRU YAN > {

Careful scrutiny of the statements received from the

Brotherhood of Locomotive Firemen and Enginemen fails

to reveal a position that a representation dispute exists.

Section 2, Ninth, of the Railway Labor Act provides :

“Tf any dispute shall arise among a carrier’s employees

as to who are the representatives of such employees

designated and authorized in accordance with the

requirements of this Act, it shall be the duty of the

Mediation Board, upon request of either party to the

dispute, to investigate such dispute and to certify to

both parties, in writing, within thirty days after the

receipt of the invocation of its services, the name or

names of the individuals or organizations that have

been désignated and authorized-to represent the em-

ployees involved. in the dispute, and certify the same |

to the carrier.” :

Section 2, Ninth, of the Act quoted above authorizes this

Board to investigate a dispute to determine the representa-

tive of the employees, but under this section of the law, the

Board has no authority to decide a jurisdictional dispute

as such.

Review of the contentions of all concerned indicates that

the dispute, if any exists, is not a representation dispute ;

but may involve an issue as to the right of the employees

of one craft or class to do the work that is alleged to be

that commonly done by employees of another eraft or class.

Procedures other than those outlined in Section 2, Ninth,

of the Railway Labor Act are available to settle such

disputes.

The Board in executive session July 19, 1966, examined’

the complete file pertaining to the request received from the -

Brotherhood of Locomotive Engineers to investigate, pur-

_suant to Section 2; Ninth, of the Railway Labor Act, a rep-

resentation dispute among Apprentice Locomotive Engi-

neers as part of the craft or class of Locomotive Engineers.

wee

After full consideration of the- request and the arguments

of the parties in support of their contentions, the Board

concludes and hereby finds that no dispute within the mean- .

ing .of Section 2, Ninth, of the Act exists and that the appli-

cation of the Brotherhood of Loéometive Engineers should

be and is hereby dismisséd.

By direction of the NATIONAL MEDIATION BOARD.

_ /s/ Thomas A. Tracy

Execugjve Secretary

‘\ a

Excerpts from the Railway Labor Act

Railway Labor Act (44 Stat. 577, as amended, 45 U.S.C.

- $151 et seq.) a

DEFINITIONS |

a, - Section 1. When used in this Act.and for the pur-

poses of this Act— :

Fifth. The term ‘‘employee’’ as used herein includes

every person in the service,of a carrier (subject to its

continuing authority to supervise and direct the manner

of rendition of his service) * * *

Sixth. The term ‘‘representative’’ means any person

or persons, labor union, organization, or corporation

designated either by a carrier or group of carriers or

by its or their employees, to act for it or them.

ee * @ . go

GENERAL PURPOSES

Section 2. The purposes of the Act are: (1) To

avoid any interruption to commerce or to the operation

of any carrier engaged therein; (2) to forbid any lim-

itation upon freedom of association. among employees

or any denial, as a condition of employment or other-

wise, of the right of employees to join a labor organiza-

tion; (3) to provide for the complete independence of

carriers and of employees in the matter of self-organi-

zation; (4) to provide for the prompt and orderly

settlement of all disputes concerning rates of pay, —

rules, or working conditions; (5) to provide for the

prompt and orderly settlement of all disputes growing

out of grievances or out of the interpretation or appli-

cation of agreements covering rates of pay, rules, or

working conditions. , .

GENERAL DuTIES ~

First. It shall be the duty of all carriers, their offi-

cers, agents, and employees to exert every reasonable |

effort to make and maintain agreements concerning

rates of pay, rules, and working conditions, ‘and to

settle all disputes, whether arising out of the applica-

tion of such agreements or otherwise, in order to avoid

any interruption to commerce or to the operation of

any carrier growing out of any dispute between the

carrier and the employees thereof.

Second. All disputes between a carrier or carriers

and its or their employees shall be considered, and, if

possible, decided, with all expedition, in conference

“between representatives designated and authorized so

to confer, respectively, by the carrier or carriers and

by the employees thereof interested in the dispute.

Third. Representatives, for the purposes of this Act,

Shall be designated by the respective parties without

‘interference, influence, or coercion by either party over

the desigfation of representatives by the other; and

neither party shall in any way interfere with, influénee,

or coerce the other in its choice of representatives.

Representatives of employees for the purposes of this

Act need not be persons in the employ of the carrier,

and no carrier shall, by interference, influence, or co-

ercion seek in any manner to prevent the designation

by its employees as their representatives of those who

or which are not employees of the carrier.

Fourth. Employees shall have the Nght to organize

and_ bargain collectively through rep

their own choosing. The majority of any sraft or class *

of employees shall have the right to determine who

shall be the representative of the craft.or class for the

purposes of this Act. No carrier, its officers or agents,

shall deny or in any way question the right of its em-

ployees to join, organize, or assist in organizing the

labor organization of their choice, and it shall be un-

lawful for any carrier to interfere in any way with -

the organization of its employees, or to use the funds

of the carrier in maintaining or assisting or contribut-

ing to any labor organization, labor representative, or

other agency of collective bargaining, or in performing

£ -

: _. 44

any work therefor, or to influence or coerce employees

in an effort to induce them to join or remain or not to

join or remain members of any labor organization or

‘to deduct from the wages of employees any dues, fees,

assessments, or other contributions payable to labor

organizations, or to collect or to assist in the collection

of any such dues, fees, assessments, or other contribu-

tions: Provided, That nothing in this Act shall be con-

strued to prohibit a carrier, from permitting an em-

ployee, individually, or local representatives of em-

ployees from conferring with management: during

working hours without loss of time, or to prohibit a

carrier from furnishing free transportation to its em-

ployees while engaged in the business of a labor organi- -

zation. ; ; 2

Fifth. No carrier, its officers, or agents shall require

any person seeking employment to sign any contract

or agreement promising to join or not to join a labor «—

organization; and if any such .contract has been en-

forced prior to the effective date of this Act, then such

carrier shall notify the employees by an appropriate

order that such contract has been discarded and is no

longer binding on them in any way. |

Sixth. In case of a dispute between a earrier or car-

riers and its or their employees, arising out of. griev-

ances or out of the interpretation or application of

agreements concerning rates of pay, rules, or working

conditions, it shall be the duty of the designated repre-

sentative or representatives of such carrier or carriers

and of such employees, within ten days after the receipt

of notice of a desire on the part of either party to con-

fer in respect to such dispute, to specify a time and

place at which such conference shall be held: Provided,

(1) That the place so specified skall be situated upon

the line of the carrier involved or as otherwise mutually

agreed:upon;.and (2) that the time so specified shall

allow the designated conferees reasonable opportunity

to reach such place of conference, but shall not exceed

twenty days from the receipt of such notice ¥ And pro-

vided further, That nothing in this Act shall be con-

strued to supersede the provisions of any agreement

(as to conferences) then in effect between the parties.

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

change the rates of pay, rules, or working conditions

‘of its employees, as a class as embodied in agreements

except in the manner prescribed in such agreements or

in Section 6 of the Act.

Kighth. Every carrier shall notify its employees by

printed notices in such form and posted at such times

and places as shall be specified by the Mediation Board

that all disputes between the carrier and its employees

will be handled in accordance with the requirements of

this Act, and in such notices. there shall be printed

verbatim; in large type, the third, fourth, and fifth

paragraphs of this section. The provisions of. said

paragraphs are hereby made a part of the contract of

employment between the carrier and each employee,

and shall be held binding upon the parties, regardless

of any other express or implied agreements between

them. | :

Ninth. If any dispute shall arise among a-carrier’s

employees’.as to who’ are the representatives of such

employees designated and ‘authorized in accordance |

with the requirements of this Act; it shall be the duty

of the Mediation Board, upon request of either party

to the dispute,:to investigate such dispute and to certify

to both parties, in writing, within thirty days after the

receipt of the invocation of its services, the name or

names of the individuals or organizations that have

been designated and authorized to represent the em-

ployees involved in the dispute, and certify the same

to the carrier. Upon receipt of such certification ‘the

carrier shall treat with. the representative so certified

as the representative of the craft or class for the. pur-

poses of this Act. -In such an investigation, the Media-

tion Board shall be authorized to take a secret ballot

of the employees involved, or to utilize any other ap-

propriate method of ascertaining the names of their

duly designated and authorized representatives in such

manner as Shall insure the choice of representatives by

the employees without. interference, influence, or co-

ercion exercised by the carrier. In the conduct of any

election for the purposes herein indicated the Board

shall designate who may participate in the election and

establish the rules to govern the election, or may ap-

point a committee of three neutral persons wh

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.