Petition for Writ of Certiorari — Brotherhood of Locomotive Firemen & Enginemen v. Elgin, Joliet & Eastern Railway Co.

ao PFE SPREE OG

TPREME. COURT. 1h. &

IN THE

| Uriaee preme Cert,

FEED

MAR 3 1969. i

JOHN F. BAVIS, EL RK

U.S.

‘Supreme Court of the Enited States.

Ocroskr Term, = 1067

N- SB <<

BROTHERHOOD OF LOCOMOTIVE FIREMEN AXD

. ENGINEMEN,

Petitionci,

Us.

ELGIN, JOL IET & EASTERN RAIL WAY COMPAXY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS ~

FOR THE SEVENTH CIRCUIT.

ALEx Exson,

Exson, Lassers anp WoLFr,

11 South La Salle Street,

Chicago, Illinois 60603.

Harrop C, Heiss,

622 Keith Building,

~ Cleveland, Ohio 44115.

Tuomas H. Cuirrorb, Jr.,

Lucas, Cuirrorp & WILDERMUTH,

115 West 5th Avenue,

Gary, Indiana,

Attorneys for Petitioner.

March 3,:1969.

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nidinnin Below: ree Svenenene Tee ay phen ae ct “ene

Jurisdiction ........ er rrer Torr ep Onn try 2

Question Presented. . enna eaevee ree ee Pesvscseee 2

Statute Involved............ POT ene a Ae 3

Stafement of Facts ‘ | .

® Preliminary Statement...... pithewngus aciges”

2. Contr olling Facts... eee cette eee nese tenes 3

S. Melstod. Littwation. .... . ..65..2.555- speeder 4

Reasons for Granting the Writ |

Preliminary Statement...-...........2...05. ee ae

1. The decision below conflicts with a decision of

a this Court and of the Court of Appeals for the

© District of Columbia and ignores the res

judicata effect of the latter decision.......... 7

2. The decision below presents an important issue

of federal jur isdiction arising under the Rail-

way Labor Act which should be resolved. by

Oe Cs aa errs dced sew eeh ants Coens ee 8

PMN ove ona eee ve 13

. Appendix:

_ Opinions Below ; ‘a |

m Court of Appéals...:......+..... +k Hog tines Al

Judge Kerner’s Dissent................04- ess OB .

MNOS, 5 ek ik diecdccsieees es Al5

, Statute Involved....................00. ererre, «|

sQ

li

oy ey List or AUTHORITIES CITED.

Cases.

Akron, Canton & Youngstown R..v. Public Utilities

Commission of Ohio, 224 N. E. 2d 169 (1967), af-

fiemed, ._.__. N. Bd. (Ohio Court of Appeals,’

November 19, 1968) . Se Oe TN rere 9)

Bangor & A. R.'Co. v. Br otherhood of Locomotive Fire-

men and Enginemen, 253 F. Supp. 682 (D. D. C.

1966), affirmed in part and reversed in part, sub

nom., Brotherhood of. Railroad Trainmen v. Akron

& B. B. R. Co., 385 F. 24581 (D. C. Cir. 1967), cert.

denied, 389 U. S. 923 (1968)........+..... 2. vm 6; f, 8,9

Brotherhood of Locomotive Firemen and Enginemen,

et al. v. Chicago, Rock. Island & Pacific Railroad Co.

OF Whe sc. i. waa , 21 L. Ed. 2d 289 (1968)...... 5, 11

BLF&E v. Detroit, Toledo Shore Line Railroad Com-

pany, 70 L. R-R. M. 2237 (N. D. Ohio, Dec. 13, 1968) 11

Brotherhood of Locomotive Firemen and Enginemen

v. Southern Railway Company, 212 F. Supp. 465, 217

F. Supp. 58 (D. D. C., 1963), affirmed 337 F.. 2d 127

(C. A. D. C,, ER Fasae eee ae eres 11

Brotherhood of Railroad Trainmen v. Chicago River

ged 1-968 U. B. WT) oo. oe jo yes 12.

_ Brotherhood of Ry. & S.S. Clerks v. Florida Kast Coast

Ry. Co., 384 U. S. 238 (1906). .....4.2-% Peas aree he 11

Butte, Anaconda & P. Ry. v. BLF&E, 268 F. 2d 54

(C. A. 9, 1959), cert. denied 361 U. S. Mis 11

Chicago & North Western R. Co. v. LaFollette, 27 Wis:

- 2d 505, 1385 N. W. 2d 269 ites rer ere 5

ill

Elgin, Joliet & Eastern R. Co. Vv. Burley, 325 U.S. 711

PUD 5554 5 rear ee Lek nes Sat ae he Bee ben 6 8

Florida E. C. Ry. v. Brotherhood of Railroad Train-

men, 336 F. 2d 172 (5th Cir. 1964)..... fae! ee H

Locomotive Engineers: v. Chicago, Rock Island & Pa- \

cific R. Co., 382 U. S. $23, 430-432 (1966)......... 4,5, 8

Manning v. American Airlines Inc.,.329 F. 2d 32 {C. A.

2, 1964), cert. denied, 379 U.S. 817 pa mnee ees tewe's 11

New York Central R. Co. v. Lefkowitz, 259 N. Y. S. 2d

76 (1965), aff’d 282 N. Y. S. 2d 68 (App. Div. 1967), -

aff’d 23 N. Y. 2d 1, 241 N. E. 2d 730 (1968), app. dis-

missed, ........... U. S, sae , od L. W. 3302 (Feb. 24, :

ee Ane aes aha aa eerteas oan cakes 3

Public Service Commission v. New York Central R. Co.,

216 N. E, 2d 716 (Ind. Sup. Ct., , 1966), cert. denied,

385 U.S. OOF Shine hse se peeve Cee A eek see ES aes 5

Railroad Yardmasters of America v. Pennsylvania

Railroad, 224 F. 2d 226 (C. A. 3, 1955).......... -

Rutland Ry. Corp. v. B. L. E., 307 F. 2d 21, 42 (2nd

Cir. ) one eee ee | 12

Texas & New Orleans R. Co. v. Brotherhood: of Railway

& Steamship Clerks, 28t U. S. 548, 567-571 (1930). 10

United Industrial Workers & Seafarers, ete. v. Board

of Trustees, 351 F. 2d 183 (C, A. 5, 1965)......... 11

Virginian Railway Co. v. System Federation No. 30,

300 U. S. 515, 549-553 (1937)...... She Sala OR iba nee 10

Statutes. ; |

Railway Labor Act, 45 U.S. C. §§ 151 et seq....... ae

"$2, Seventh, 45 U.S. C. § 152, Seventh ...... ona

5G, OO UU. OO. 9 208 one i enciin cas ZO See eee ee 3

Burns Ind. Stat. Anno., §$ 55-1330, oe ae 3

rt:

iv °

Other.

Aaron, The Labor Injunction Reappraised, 14 Labor

Ld. 41,08, GB, OB (1088). .. o.oo iccccediccincess

Carroll, The Annotated Alice, p. 247.:............. :

Comment, Jurisdiction of Federal Courts :‘to. Enjoin

Labor Disputes, 32 Tenn. L. Rev. 264, 274 (1965) .. %

Kroner; Interim Injunctive Relief Under the Railway

Labor Act: Some Problems and Suggestions, 18th

Annual Conference on Labor, ‘New York University

(1966) 179, 183, 184, 188, 189...... ere ne reser

Note, Railway Labor Act—Major and Minor Disputes,

31 J. of Air Law & C. 371, 376 (1965).............

12

12

IN THE

Supreme Court of the Guited States _———_,

Octoser Term, 1968. :

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND

e° ENGINEMEN;,!' iy ° 2

ee Petitioner,

vs."°

ELGIN,: JOLIET & EASTERN RAILWAY COMPANY,

_ Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS :

FOR THE SEVENTH CIRCUIT.

To the Honorabl® Chief Justice of the United States and

the Associate Justices of the Supreme Court of the United

States zo

Petitioner prays that a writ of certiorari issue to réview

the, judgment of the United States Court of Appeals for

the Seventh Circuit entered on December 4, 1968. *

1. On January 1, 1969, the United Transportation Union, a

merger of petitioner, Brotherhood of Railroad Trainmen, Switch-

men’s Union of North America, and the Order of Railway Con-

ductors and Brakemen, succeeded petitioner as the collective bar-

gaining representative of the employees of the defendant engaged

“as firemen. : . ¢

—

‘OPINIONS BELOW.

The memorandum opinion of the United States District

Court for the Northern District of Indiana, Hammond Divi-

Sion, is not reported but is printed in the Appendix hereto

at pp. A 15 to A 22, infra.'' The opinion of the Court of

Appeals and dissenting opinion of Judge Otto Kerner is

reported at 404 F. 2d 80. It is also reproduced in the

Appendix hereto at pp. A 1 to A 14, infra.

_ JURISDICTION. ;

The judgment of the Court of Appeals for the Seventh

Circuit was entered on December 4, 1968. The jurisdiction

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

QUESTION PRESENTED. |

~

——

Does a federal court, in a state with a full crew law,

have jurisdiction under Section 2, Seventh, of the Railway

Labor Act to enforce the National Diesel Agreement, re-

quiring the use of a fireman, against a-carrier’s unilateral

change in that agreement, where there has been an ad-

judication binding upon the parties by a district court

and Court of Appeals that the National Diesel Agreement

is in effect in full crew states, or is the dispute minor and

therefore wholly within the jurisdiction of the National

Railroad Adjustment Board?

STATUTE INVOLVED.

The Railway Labor Act, 45 U.S. C. §§ 151 et. seq., the

relevant. portions of which are ‘set forth in the Appendix

hereto at pp. A 23 to A 24, infra. ~

1. References to the Appendix. to this Petition are ‘‘A’’. Ref-

erences ito the Appendices to Briefs in - Court of Appeals are

_

STATEMENT OF FACTS. eee

.1. Preliminary Statement.

The somaplaiat seeks to-enjoin conduct of respondent-

deferdant adjudicated to be impermissible by a binding de-

cision of another Court of Appeals, and to enforce the posi-

tive mandates of the. Railway Labor Act, 45 U.S. C. §§ 151

et seq. (the ‘‘Act’’). It alleges that the defendant (some-

_ times referred to as “‘KJ&E’’) unilaterally changed the

working conditions of the employees represented by the

plaintiff-petitioner (‘BL &K’’) without complying with

the duties imposed upon it by § 2, Seventh and.$6 of the

Act. The cause was heard on plaintiff’s motion for prelimi-

nary injunction to require use of firemen until, the proc-

esses of the Act are exhausted witlt reference to securing *

changes in rates of pay, rules or working conditions. The

district -court concluded that the dispute involved was a

minor dispute over which federal courts have no jurisdic-

tion and accordingly dismissed the complaint. The Court of

Appeals for the Seventh Circuit affirmed, Judge Otto

Kerner . dissenting.

There is no dispute of facts. They are ean below.

2.. Controlling Facts.

The. National Diesel Agreement of 1950 to which the

defendant is a_ party, and the basic collective agreement of

the parties contain work rules which require carriers and

the defendant herein to use and employ firemen on sub-

‘stantially all diesel locomotives including the locomotives

involved in the operations here in-dispute. In addition,

‘ Indiana. has had for many years a full-crew law requiring

the use of firemen which law is still in effect. Burns Ind.

Stat. Anno., §§ 55-1330, 55-1331.

In August, 1967, the United States Steel Company com-

eet

pleted a new facility in the Gary Sheet & Tin Plate Works

known as the 84-inch hot strip mill. When the mill was

completed the defendant EJ&E (a subsidiary of U. S.

Steel) comigenced a new run on August 12, 1967 known as

the 84-inch strip mill job.

It was necessary for the carricr to consider its collective

agreements with the three labor organizations representing

employees involved in these operations—the Brotherhood

of Locomotive Engineers (‘‘BLE’’), the Brotherhood of

Railroad Trainmen (‘‘BRT’’), and .plaintiff. Different

starting times, different relief points, different provisions

for the annulment of assignments, and different. manning

requirements than those specified in the collective agree-

ments with the organizations were required before the

operations could be comynenced in the manner contémplated

by the defendant. . 3

The agreements with the BLE and BRT were amended

by negotiation, the defendant recognizing that it could

not make the changes in the manning of this run without

such agreements (Def. App. pp. 67-68).

The defendant did not communicate or negotiate zwith

plaintiff concerning changes in its agreement requiring

use of a fireman despite repeated requests for negotiation.

The defendant operated without a fireman and refused to

negotiate on the ground that there was nothing to discuss

because the agreement between the parties and the National

Diesel Agreement had been modified by the Award of

Arbitration Board 282 (M$morandum of the District Court

A 15). :

3. Related Litigation.

The background of the events leading to the Award

of Arbitration Board 28%, established under Public Law

88-108 is summarized by this Court in Locomotive Engi-

meers v. Chicago, Rock Island & Pacific R. Co., 382 U. 8.

é .

TA

5

423, 430-432 (1966), holding that the Award did not super-

sede state full crew laws.' | S fat

Award 282 Rpired on Mareh 30, 1966. Shortly before

this dafe the parties instituted litigation, herein referred

; the Bangor case, in the United States District Court *

for the District of Columbia to determine the consequences

of the expiration of the Award. Bangor d: A. R. Co. v.

Brotherhood of Logqmotive Firemey and Enginemen, 253

F. Supp. 682 (D. D. C. 1966), affirmed in part and reversed

in part, sub nom., Brotherhood of Railroad-Trainmen v.

Akron & B. B. R. Co., 385 F. 2d 581 (D. C. Cir. 1967), cert.

denied, 389 U..8. 923 (1968). The issues in the Bangor

.case, -insofar as they are relevant and controlling here,

related to the impact of the Award in full-crew states. The

~ earriers argued that upon the expiration of the Award and >

the subsequent repeal of a state full crew law, thecarriers

would then be empowered to place into effect in that state

the work rules provided for in Award 282. —

¢

This argument was rejected by the district court in the

Bangor case on May 5, 1966, 253 F. Supp. 682 at 686-7.

_ The Court of Appeals in the Bangor case affirmed this hold-

1. In Brotherhood of Locomotive Firemen and Enginemen, et

al. v. Chicago, Rock Island & Pacific Railroad Co. et ~ Aes U. S.

wy 21 L. Ed. 2d 289 (1968), the Court held the Arkansas full

crew law to be constitutional. Attacks on other full crew state laws:

were instituted in New York, Ohio, Wisconsin and Indiana.

New York Central R. Co. v. Lefkowitz, 259 N. Y.S. 2d 76 (1965),

aff’d 282 N. Y.S. 2d 68 (App. Div. 1967), aff’d 23 N.Y. 2d 1,

241 N. E. 2d 730 (1968), appeal dismissed, ........ ke Speenne , 33

L. W. 3302 (Feb. 24, 1969); Akron; Canton &: Y oungstown R. v.

Public Utilities Commission of Ohio, 224 N. E. 2d 169 (1967),

affirmed, ........ ss F ween (Ohio Court of Appeals, November

19, 1968) ; Chicago & North Western R. Co. v. LaFolletfe, 27 Wis.

2d 505, 135 N. W. 2d 269 (1965); Public Service Commission v.

New York Central R. Co., 216 N. E. 2d 716 (Ind. Sup. Ct., 1966),

— denied, 385 U. S. 843. The parties in the Indiana suit in-

cfided both plaintiff and defendant here. The Indiana Supreme

Court held the Indiana full crew law to be constitutional and not

_ pre-empted by federal law. On the latter point it relied on this

Court’s decision in Locomotive Engineers, supra, 382 U. S. 423.

ye Be se :

ing of the district court and held that the National Diesel

‘Agreement continued in effect after the expiration date of

Award 282 in full crew states unless the full crew law was -

repealed during the period of the award. See the discus- ©

sion of that court at 38) F. 2d 581, 611, 61%; set forth in

Judge Kerner’s ron: Eos (A 9-11). This Court denied

certiorari on January 29, 1968, 389 U. S. 923, and a final

judgment consistent with the opinion of the Court. of -

_ Appeals-was entered by the district court on May 29, 1968."

a

The defendant concedes that the Bangor case ts res

judicata. |

REASONS FOR GRANTING THE WRIT.

b

. Preliminary Statement.

federacourts culminating in decisions favorable to plain-

tiff afte wiped out by the.decision below.? The decision

below is patently wrong but cannot be brushed aside simply

as.an aberrant decision. It sets the pattern for denying

justice by abuse of the fgmiliar major-minor dichotomy.

In an increasing number of cases, any contention, however

unmeritorious, is seized upon as involving an interpretive

issue which can only be resolved by the National Railroad |

Adjustment Board, a tribunal years behind in its docket

and a launching pad for a new round of litigation. Unless

the pattern is broken more litigation will be spawned. The

end result will be a’ denial of justice.

Certiorari Should be granted to break this pattern. It

is warranted on the traditional ground of resolving con-

aoa of bitterly contested litigation in state and

1. For a description of the carrier’s intensive but abortive efforts

to overturn the decision on the full crew issue even after denial

of certiorari, see Appendix to.Reply Brief pp. 1-4.

2. See the Bangor case, supra, and cases cited n. 1, p. 5, supra.

7

flicts between courts of appeals, and to settle an important

persistent issue of feder al jurisdiction involving inter-

pretation of the Railway Labor Act. It should be granted

and the judgment below reversed per curiam for the rea-

sons set forth in Judge Kerner’s dissent.

1. The decision below conflicts with a decision of this

Court and of the Court of Appeals for the District of

Columbia and ignores the res judicata effect of the latter

decision. :

The controlling legal issue in this case is whether the

award of Arbitration Board 282. modified the Nationa!

Diesel Agreement in effect between the parties in Indiana,

a full-crew state.

Defendant mounts its defense on the assumption that the

. National Diesel Agreement was so modified, and the rul-

ings below xvcept this defense.

The crucial fact, ignored by the majority opinion of the

court below, is that. the issue was thoroughly litigated

between the parties in the Bangor case, supra, and there

was a clear and unequivocal ruling by the Court of Appeals

for the District of Columbia that ‘‘the National Diesel

Agreement is in effect even though the only reason why

a change in its work’ rule was not made under the Award

. during its lifetime was the fact that the change was blocked

by a state’s full crew law.’’ 385 F. 2d 581 at 611. There

was no need or right to inquire into the issue anew. This

point is put in its proper, perspective by Judge Kerner

in his dissentifig opinion. After noting that the carrier

agrees that the decision in Bangor is res judicata between

the ‘parties, and setting forth the holding in Bangor, he

states (A 11): . |

‘*As it is conceded that the carrier’s attack on Indiana’s

- Full Crew Law * * * failed and the law was not repealed

during the life of Award 282, then the 1950 National

g

Diesel Agreement was and is in effect between these

parties. This is due to the fact that_the condition

precedent for a change in that Agreement by Award

. 282, i.e., the pen of the Full Crew Law, never came

to pass. ” :

8

Moreover, the decision below,. by its holding that the

carrier may have a basis for claiming that it can operate

some runs, without a fireman in a full crew state in dis-

regard of the National Diesel Agreement where the full

crew law was not repealed during the period of the award,

is in direct conflict with the decision of the Court of Appeals

forthe District of Columbia in Bangor.

The ruling below is also in conflict with this Court’s

decision in Locomotive Engineers v. Chicago, Rock Island

& Pacific R. Co., 382 U. S. 423 (1966), the rationale for

the Court of Appeals decision in Bangor.

2. The:decision below presents an wmportant issue of

federal jurisdiction arising under the Railway Labor Act

whiciw should be resolved by the Court.’

The majority opinion of the court below holds that a

federal court is without jurisdiction to enforce the collec-

tive agreement of the pagties and the positive mandates of

the Act. The opinion beats extensively the major- -minor

drums explicated in Elgin, Joliet & Eastern R. Co. v.

Burley, 325 U.S. 711 (1945).

It winds up favoring the minor dirge and concludes ac-

cordingly that exclusive authority to decide the dispute

_ rests in the National Railroad Adjustment Board.

a“

The majority concludes that the dispute is minor be-

cause it :

‘‘can be solved by the administrative interpretation of

the existing agreement in light of Award 282. Although

the holding of the District of Columbia Circuit Court

9 ?

of Appeals in the Bangor case may control part of the

instant dispute, the agreement must still be applied to

the facts presented.’ spans

a 7 »

‘‘1. E.g., whether the switching operation in the instant

case’ constitutes a ‘run.’’’ [Emphasis supplied.] (A 5.)

. a é

- This conclusion misconceives and misrepresents the Bangor

opinion. .

In Bangor the court*held that “Award 282 could not as

a matter of law shed any light on the existing agr eement

since the award did not modify the Diesel Agreement in

full crew states.. No one disputes the requirement of~the

Diesel Agreement that there be a fireman on the job in

question. The sole dispute is whether that agreement had

been modified by Award 282. This question has been an- .

swered in the negative in the Bangor decision.4 As Judge _

‘Kerner said in dissent (A 8): : |

° ‘‘Neither an application nor an interpretation is re-

quired under the facts of this case... There is no dis-

pute as to the facts so there is no reason for an appli- -

cation of any agreement. Since the only alleged dis-

pute between the parties is over a decision of a Court

_ of Appeals (as will be shown below), there ‘is no neces-

sity for interpreting any agreement.’’

‘The reference to the new run issue in Bangor by the

lower court has no relevance in a full crew state such as ¢

Indiana.’ In such a state; the National Diesel Agreement

requires the use of a fireman on all runs—old or new. The

majority opinion below. states that the Bangor opinion

‘‘may control part of the dispute.® By the device of

Separating the dispute into parts—part 1, the holding on

full crew laws, and part 2, the holding on new runs—the

1. In non-full crew states the Bangor court held that as to tlew

runs established after expiration of the award to which the provi-

sions of the award could not have been applied during the period it

was in effect, the ‘‘ National Diesel Agreement and its requirement

of a fireman on such engine crew’’ applied. 385 F. 2d at 611.

10

case is shelved as a minor dispute.' But this device, in-

tended ¢o create an issue of fact for an Adjustment Board,

is synthetic. There are no parts to this underlying dispute.

There is, only one issue, and that is whether the National

Diesel Agr eement was modified by the Award in Indiana.

That issue aS:we show in Part I hereof was adjudicated

adversely to the defendant i in a decision binding upon it.

The defendant recogniged that it could not make the

» changes necessary to man the run to the 84” steel mill

without negotiating changes in its agreeements with the

BLE and BRT (Def. App. 67-68). The only explanation

offered as to why no agreement was made With the BLF&E

was the carrier’s opinion that the National Diesel Agree-

ment was modified in Indiana by the Award (Def. App.

68). Judge Kerner was charitable in characterizing this

opinion (A 13) as one not made ‘‘in good faith.’’ His con-

clusion that ‘‘the carrier unilaterally changed the existing

working conditions contained in the National Diesel Agree-

ment in violation of the Railway Labor Act’’ is fully

supported by the record. |

The only relief sought by the complaint is-for an injune-

tion requiring the assignment.of a fireman until the defend-

ant has exhausted the processes.of the Act with respect to

changing rates of: pay, rules or working conditions. Juris-

diction to grant such relief is firmly part of Railway Labor

iw? egies es

1. This holding by the lower court may be explained in part by

its confusion as to the nature of the case before it. Its statement at

A 5 ‘‘The nature of this controversy is such that the policy behind

our entire system of railway labor law precludes the possibility of

the use of a strike—with its consequent interference with interstate

commerce—to settle the dispute’’ indicates that the court regarded

the mattér before it as a strike situation instead of an application

by the union for an injunction. to enforce the mandates of the Act.

2. Virginian Railway Co. v. System Federation No. 30, 300 U.S.

515, 549-553 (1937) ; Texas & New Orleans R. Co. v. Brotherhood

of Railway & Steamship Clerks, 281 U. 8S. 548, 567-571 (1930) ;

11.

In .a recent case involving precisely the same issue

as this case injunctive relief to enforce Section 2, Seventh

of the Act was granted. BLF&E v. Detroit, Toledo Shore —

Line Railroad Company, 70°L. R. R. M., 2237 (N. D. Ohio,

Dee. 13, 1968).

The majority opinion below should be repudiated by the

‘Court for another reason ,of overriding importance. It ‘is

part of a growing pattern of judicial opinion designed to

nullify or frustrate legitimate rights of labor unions by

unwarranted use of the major-minor dichotomy. In: strike

sitvations the objective is to cir¢umvent the limitations of © —

the Norris-LaGuardia Act. In this case the plaintiff did

not strike, although there was a right to do so.’” Instead it

sought judicial relief to which it was clearly entitled. How

ean the result in this case be explained to workingmen?

It will not advance their respect for the courts to explain

that the writer of the majority opinion in the course of

oral argument referred: to the case as a ‘‘featherbedding

ease. 992 ‘

Manning v. American hittin Inc., 329 F. 24 32 (C. A. 2, 1964)» °

cert. denied, 379 U.S. 817; United Industrial Workers & Sta-

farers, etc. v. Board of Trustees, 51 F. 2a 183 (C. A. 5, 1965);

Railroad Yardmasters of Americ v. Pénnsylvania Railroad, 224

F. 2d 226 (C. A. 3, 1955) ; Brotherhood of Locomotive Firemen

and Enginemen v. Southern Railway Company, 212 F, Supp. 465,

217 F. Supp. 58 (D. D. C.,.1963), affirmed 337 F. 2d 127 (C. A.

D. -C., 1964). me

1. Brothierhood of Ry. & S. 8S. Clerks v. Florida East Coast Ry.

Co., 384 U.S. 238 (1966), citing with approval Florida East Coast

Ry. Co. v. rotherhood of R. R. Trainmen, 336 F. 2d 172, 179-180

(5th Cir. 1964) ; Butte, Anaconda & P. Ry. v. BLF&E, 268 F . 2d

54°(C. A. 9, 1959), cert. denied. 361 U.S. 864.

2. In BLF&E vx. Chicago, Rock Island & Pac. R. oe

i Sea , 21:L. Ed. 2d 289, 296, this Court, in upholding the

validity of the Arkansas full crew law, referred to‘the first Snding

of Arbitration Board 282:

‘1. The record contains no evidionee to support the pia

frequently and irresponsibly made, that firemen presently~em-

ployed in road freight and‘yard service throughout the country

are oo paid to do nothing and actually perform no. —

wor, 3

12

The time has come for this Court to discourage judges

from following the philosophy of the lao in Alice:m

Wonderland. .

‘‘The rule is, jam to- morrow and jam yesterday—but

never jam to-day.”’

“Tt must come sometimes to ‘jam today,’ Alice

objected.”’

‘‘No, it can’t’’ said the Queen. ‘‘It’s ae every

other dat ry: to-day isn’t any other day, you know.’’

Carroll, The Annotated Alice, p. 247.

~~

“9

- @

1. In view of the large nuriber of lower court decisions sub-

sequent to Brotherhood of Railroad Trainmen v. Chicago River and

I? R., 353 U.S. 30 (1957), many of -which appear irreconcilable

‘and are cited in the author ities referred to below, relating to major

versus minor disputes in the context of the right to injunctive

relief (by the carriers to enjoin strikes and, as here, by the unions

to compel compliance with the Act), this Canrt should granf

- certiorari to review a concept so vital to the administration of the

Act: We observe also that in Rutland Ry. Corp. v. B. L. E., 307

F. 2d 21, 42 (2nd.Cir. 1962), Mr. Justice (then Circuit Judge) :

Marshall "stated in dissent that the major-minor dichotomy ‘‘is of.

such generality that it fails to ‘pose the problems we must. solve in

any meaningful fashion.’’ A leading labor law scholar, Benjamin

Aaron, has stated that ‘‘the changing character of disputes arising

under the Act has tended to destroy whatever useful distinctions

were originally implied by the words ‘major’ and ‘thinor’’’ and

the classification of such disputes in these terms has become ‘‘a

sterile exercise in logomachy.’’ Aaron,-The Labor Injunction Re-

appraised, 14 Labor L. J. 41, 62, 63 (1963). The distinction is

‘‘illusive’’ and requires “clarity” by this Court. 7d. at 58. Other

commentators have also suggested the need for new guidelines by

this Court. See, e.g., Note, Railway Labor Act—Major and Mmor~ -

Disputes, 31 J. of Air Law & C. 371,376 (1965) ; Comment, Juris-

diction of Federal Courts to Enjoin Labor Disputes, 32 Tenn.

L. Rev. 264, 274 (1565). The ‘‘major-minor’’ dichotomy has re-

sulted in‘‘incredibie judicial contortions,’’ ‘‘an incredible muddle,’’

‘“easuistry”” and ‘‘fumbling misclassifications of ‘major disputes’.

into ‘minor disputes’ * * *’’? Kroner, Interim Injunctive Relief

Under the Railway Labor Act: Some Problems and Suggestions,

18th Annual Conference on Labor, New _oe University (1966)

179, 183, 184, 188, 189.

13: . -

CONCLUSION.

.

For the reasons herein set forth, and the plainly errone-

ous character of the holding below, thi$ Court should issue

a writ of certiorari to the Court, of Appeals fore the

. Seventh Circuit and reverse the judgment of that court

per curiam. eta ie

\: -Respéctfully submitted, -

~e

- Atex ELxson, :

Exson, Lassers anD WoLFF, 4

11 South La Salle Street, .

_ Chicago, Tlinois 60603.

Haroip C. Heiss, f

622 Keith Building,

- Cleveland, Ohio 44115.

Tomas H. CLIFFORD, JR.,.

Lucas, CuiFrorp & WILDERMUTH, .

115 West 5th Avenue,

a Gary, Indiana, . °

7 na ete 8 Attorneys for Petitioner.

March 3, 1969... °°: rent a

3 ’