# Petition for Writ of Certiorari — Louisville & Nashville Railroad v. National Mediation Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0995%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 396 U.S. 878 ## Text y Set SER PRE ET Grane # ae & 2 PREME COURT. U. B. Ls) 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 ay Sika EF g 7) 26 ( : 'Q 7 Se > > Z = | FZ : 2 ee ee & .......... 21 . 30 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) 2 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 a 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. 4 - 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. wi 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 | 6 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. 2 eo 7 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 a ASE SO! are s 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. - 23 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. % s °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 J - 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). , = ‘ wt a ' 26 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 ' - 27 “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 28 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, 29 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. Y 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 31 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 ed EPONA aeRO RT e 32 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). 33 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 SOE REL OREN ELT OO EE PAE PTE ELE WOH EGE, AE SION HET ALT ft POR EY et A iol a aN fr 5 x : . > rere assed eaialk Pedaacteed ETL ELE SLE AMER sa id z PSS NATION EON YENP NS MTR PIE rin oY SHANG ° ° . . ae hs i | ee ig > ° Ps ° . . : ° a . . cs ¢ = > . > ’ ¢ . . / hall . . 4 4 R — a) oe ts APPENDIX — . of . . , j ’ ‘ ° . 4 . . ' > . *. . 4 . “2 » , - “e . om ? . ‘ - ¢ © _ . ? ; . ' t 4 ri . 7 ‘ s E + J e 2 > ee , / 4 e ‘ t +i A \ wad ’ : 4 P he ‘ ed N 2 : meh ' Aete ' : woe > . e , tne P ‘ as * ) ee ‘ . , oy . ; i ; : F : 5 * ’ ‘ ‘ ~ . ‘A . P . ‘ ‘ . é z. +i / t We ; e . * a a. s . : - etn oe nee ee ee cae a ¢? “ : . » * P é . % e s . ° “ > ; ¥ a ¢ . i - Ce e ' . . ? 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. 6 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. 7 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 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 © widely from the sort of dispiite contemplated by Section 2, 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 Be . 15 iD 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 , ' 16 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. 17 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 Ty : RRB p EP MEME te + ’ 18 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). Cs \ _ 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—— to be a wholly unsatisfactory resolution | Ivan-find nothing © in the statute which permits the — to impose a different result. Pd 20 “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. vw 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 | rl 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. e Dated: March 14, 1969. Opinion by Circuit Judge Wright. Separate concurring opinion by Circuit J udge Burger, with whom Circuit Judge Tamm joins. TT 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 Coast Line Railroad Company, and St. Louis Southwestern © Railway Company is a ‘‘earrier’’ as defined in Section 1 First of the Railway Labor Act (45 U.S.C.-§ 151 First). 22 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 23 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 - 24 - 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. & 25 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. ee 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. ; : Ss 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- thorized representative of apprentices training to become © 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 29 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- LA . 30 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 — \ a 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 32 ~ 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. © The apprentice, notices served by the BLF&E upon the 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 o » 33 . 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» 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 ee ee 36 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 % 37 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 at eres 38 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 > { 40 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 é 41 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 ‘\ a 42 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 | 4 43 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- 45 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 46 @ 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 who after hearing shall within ten days designate the employees who may participate in the election. The Board shall have access. to and have power to make copies of the books and records of the carriers to obtain and utilize such information as may be deemed. necessary by it to carry out the purposes and provisions of this para- graph. Tenth, The willful failure or refusal of any carrier, its officers, or agents to comply with the terms of the’ . third, fourth, fifth, seventh, or eighth paragraph of this section shall be a misdemeanor, and upon conviction ~ thereof the carrier, officer, or agent offending shall be subject to a fine of not less than $1,000 nor more than $20,000 or imprisonment for not more than six months, - or both fine ‘and imprisonment, for each offense, and each.day during which such carrier, officer, or agent shall willfully fail or refuse to comply with the terms- of the said paragraphs of this section shall constityte a separate offense. It shall be the duty of any district attorney of the United States to whom any duly desig- © nated representative of-a carrier’s employees may apply to institute in the proper court and.to prosecute under the direction of the Attorney*General of the’ _ United States,. all necessary proceedings for the en- forcement of the provisions of this section, and-for the punishment of all. violations thereof and the costs and expenses. of such prosecution shall be paid out of the appropriation for the, expenses of the courts of the “United States: Provided, That nothing in this Act shall be’ construed to require an individual employee to render labor or service without his consent, nor shall anything in this Act be construed to make the quitting of his labor by an individual employee an illegal act; nor’shall any court issue any process to compel the e a AS 47 performance by an individual eniployee of such labor or service, without his consent. | > : . pining. . \ . ‘ NATIONAL Boarp or ADJUSTMENT; GRIEVANCES; INTERPRETATION AGREEMENTS : Section 3. First. There is hereby edtablished, a Board to be known as the ‘‘ National Railroad Adjust- ment Board’’, the members of which shall be selected within thirty days after appr oval of this Act, and it is ail re f ' * * * * * . .(i) The 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 agreements concerning rates of pay, rules, or work- ing-conditions, including cases pending and unadjusted _ on the date of approval of this Act, shall,be handled / ~# in the usual manner up to and including the chief oper- ating officer of the carrier designated -to handle such disputes; but, failing. to reach an adjustment in this ~manner, “the disputes may be referred by petition of the parties or by either party to the appropriate: divi i- sion of the: Adjustment Board with a full statement of the facts and all supporting: data — upon the — | disputes. < _ ee ee * :) * * Functions OF MEDIATION Boarp SEcTION 5. ‘First. 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:. v. (a) A dispute concerning mana in rates of pay, rules, or working conditions not adjusted by the parties . in eonferenee, 48 : , Ran ; , w ‘ e ‘ idee ~ (b) Any other dispute not referable to the National Railroad Adjustment Board and not adjusted in con- ference bytween the parties or where conferences are refused. ° ~The Mediation Board may proffer its services in case any labor emergency is found by it to exist at any time. In either évent the said Board shall promptly put . itself in communication with the parties to such contro- versy, and shall use its best efforts, by mediation, to bring them-to ‘agreement. If such efforts to bring about an amicable settlement through mediation shall be un- successful, the said Board shall at once endeavor as its final required action (except as provided in paragraph | third of this section and in*Section 10 of this Act) to induce the parties to submit their controversy to arbi-: “tration, in accordance with the provisions of this Act. . If arbitration at the request of the Board shall be refused by one or both parties, the Board shall at once notify both parties in writing that its mediatory efforts have failed and for thirty days thereafter, unless in the intervening period the parties agree to arbitration, or an emergency board shall be created under Section 10 of this Act, no change shall be made in the rates of pay, rules, or working conditions or estahlished prac- tices in effect prior to the time the dispute arose. Section 6. Carriers and representatives of the em- ployees shall give at least.thirty days’ written notice of an intended change in agreements affecting rates of pay, rules, or working conditions, and the time and place for the beginning of conference between the representatives of the parties interested in such intended changes shall be agreed upon within ten days after the receipt of said notice, and said time shall be within the thirty days pro- vided in the notice. In every case where such notice of intended change has been given, or conferences are being held with reference thereto, or the services of the Mediation Board have been requested by either party, 49 or said Board has proffered its services, rates of. pay, - rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon as required by Section 5 of this-Act, by the Mediation Board, unless a period of ten days has elapsed after termination of conferences without request for @r proffer of the services of the Mediation Board. en . . * * » « EMERGENCY Boarp - Section 10. If a dispute between a carrier and its employees be not adjusted under the foregoing pro- visions of this Act and should, in the judgment of the Mediation Board, threaten ‘substantially to interrupt interstate commerce to a degree such as to deprive any. section of the country of essential transportation serv- ice, the Mediation Board shall notify the President, who ‘may thereupon, inf his discretion, create a board to in- vestigate and report respecting such’ dispute. Such board shall be composed of such number of persons as to the President may seem desirable: Provided, how- ever, That no member appointed shall be pecuniarily or otherwise interested in ahy organization of employees or any carrier. The compensation of the members of any such board shall be fixed by the President. Such board shall be created separately in each instance and it shall investigate promptly the facts as to the dispute and make a report thereon to the President within thirty days from the date of its creation. There is hereby authorized to be appropriated such sums as may be necessary for the expenses of such board, including the compensation and the necessary traveling expenses and expenses actually incurred for subsistence, of the members of the board. All expendi- tures of the board shall be allowed and paid on the presentation of itemized vouchers therefor approved by the chairman. After the creation of such board and for thirty days after such board has made its report to the President, _ 50 . no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which -the dispute arose. a “*¢ e . e * - “~~. ladle “ere --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0995%3A1. Public record. Not legal advice.