Brief for the Respondent in Opposition — Brotherhood of Railway v. REA Express, Inc.

FILE

aes JUL 28 1972

Supreme Court of the Ani CMA HR incon

Ocroser Term, 1971°

No. 71-1627

oe

BroTHERHOOD OF Rarway, AIRLINE AND STEAMSHIP CLERKS,

Freight Hanpers, Express and Station EMPLOYEs,

GutF DepaRTMENT District Boarp or ADJUSTMENT OF

BRAC, Futton Lopce No. 2040, Messrs. W. A. JoHNsoNn

anp Pau J. Masson,

Petitioners,

Vo

REA Express, Ivc.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF RESPONDENT REA EXPRESS, INC.

IN OPPOSITION TO CERTIORARI

ArtHuR M. WIsEHART

Attorney for Respondent

219 East 42nd Street

New York, New York 10017

(212) 557-8800

Of Counsel:

Fisher & PHILLIPS

26 Pryor St. N.E.

Atlanta, Ga. 30303

Peter G. WoLrFE

INDEX

PAGE

Preliminary Statement __... 1

Statutory Provisions | 2

Question Presented ............ = 2

Statement of the Case 3

ARGUMENT

I. Certiorari should not be granted to review a

Il.

ConcLusIon

Certificate of Service

Appenpix A

AES eee i ae

hypothetical case

The decision below raises no significant issues

for review

The Court of Appeals’ rejection of the District

Court’s interpretation of the contract does not

warrant review

Certiorari would serve no useful purpose be-

cause there are independent grounds for sus-

taining the decision below

Certiorari should not be granted in an equity

action where both courts below found the bal-

ance of injury favors the result reached ............

10

12

13

i

PAGE

TaBLE OF AUTHORITIES

Cases:

Andrews v. Louisville & Nashville Railroad, 40 U.S.

L.W. 4511 (May 15, 1972) ll

Brotherhood v. Chicago River & I.R. Co., 353 U.S. 30

(1957) 15

Brotherhood of Locomotive Engineers et al. v. Balti-

more & Ohio Railroad Co. et al., 372 U.S. 284 (1963) .. 15

Brotherhood of Railroad Trainmen et al. v. Toledo,

Peoria and Western Railroad, 321 U.S. 50 (1944) .... 13

Chicago and North Western Railway Company v.

United Transportation Union, 402 U.S. 570 (1971) .. 14

Cordovan Associates, Inc. v. Dayton Rubber Co., 290

F.2d 858 (6th Cir. 1961) 13

Detroit & Toledo Shore Line R. Co. v. United Trans-

portation Union, 396 U.S. 142 (1969) 12, 14-15

Eddy v. Prudence Bonds Corp., 165 F.2d 157 (2d Cir.

1947), cert. denied, 333 U.S. 845 (1948) 12, 13

Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711 (1945) ... 9

Federal Trade Commission v. Sperry & Hutchinson

Co., 405 U.S. 233 (1972) 9

Furness, Withy & Company, Limited v. Yang-T'sze In-

surance Ass’n Limited, et al., 242 U.S. 430 (1917) .... 7

Graver Tank and Mfg. Co., Inc. et al. v. Linde Air Prod-

ucts Co., 336 U.S. 271 (1949) 16-17

a iii

PAGE

Order of Railway Conductors et al. v. Pitney et al., 326

U.S. 561 (1946) 11

Pennsylvania R. Co. v. Day, 360 U.S. 548 (1959) ........ 9

Republic Pictures Corp. et al. v. Rogers, 213 F.2d 662

(9th Cir. 1954) 13

Rutland Railway Corp. v. Brotherhood of Locomotive

Engineers, 307 F.2d 21 (2d Cir. 1962), cert. denied,

372 U.S. 954 (1963) “ 9, 11, 12, 15

Texas, New Orleans R. Co. et al. v. Brotherhood of

Railway Clerks, 281 U.S. 548 (1930) 17

Transportation-Communication Employees Union v.

Union Pacific Railroad Co., 385 U.S. 157 (1966) ........ ll

Union Pacific Co. v. Price, 360 U.S. 601 (1959) ............ 9

United States v. John McShain, Inc., 258 F.2d 422

(D.C. Cir. 1958), cert. denied, 358 U.S. 832 _............. 13

United Steelworkers v. American Manufacturing Co.,

363 U.S. 564 (1960) 10

United Steelworkers v. Enterprise Wheel and Car

Corp., 363 U.S. 593 (1960) 10

United Steelworkers v. Warrior & Gulf Navigation Co.,

363 U.S. 574 (1960) 10

University Hills, Inc. v. Patton, 427 F.2d 1094 (6th Cir.

1970) 13

Virginia Railway Co. v. System Federation No. 40,

300 U.S. 515 (1937) 17

Rule:

F.R. Civ. P. Rule 52 " schielhate acaba rer tel 12

a So a a ca ae ak Ne a ee ai Oe i rg

iv

PAGE

Statutes:

29 U.S.C. $107 2

29 U.S.C. $108 2,18

45 U.S.C. §152 2,14

45 U.S.C. $153 3, 4, 5, 8, 15

45 U.S.C. $156 5, 6,8

45 U.S.C. §157 4,15

| IN THE

Supreme Court of the United States

Octoser Term, 1971

No. 71-1627

——g>—

BroTHERHOOD OF RaiLway, AIRLINE AND STEAMSHIP CLERKS,

Freight Hanpiers, Express anp Station EMPLoyss,

Gut¥ Department District Boarp or ADJUSTMENT OF

BRAC, Futron Lopce No. 2040, Messrs. W. A. Jonson

AnD Pau J. Masson,

Petitioners,

—V.—

REA Express, Inc.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

<> -

BRIEF OF RESPONDENT REA EXPRESS, INC.

IN OPPOSITION TO CERTIORARI

Preliminary Statement

The opinions of the Courts below are included in Peti-

tioners’ Appendix A; references to the decisions are cited

with the suffix “a”. Petitioners are referred to herein as

“BRAC”, and Respondent as “REA”.

— PSAP PTO VPM ESAN COR RUT ME I TRY CCT DF PAE OD A NR ts MER MR ITE

Statutory Provisions

The Courts below found it unnecessary to consider

REA’s contentions that the injunctive relief sought by

BRAC was barred by Sections 7 and 8 of the Norris- |

LaGuardia Act (29 U.S.C. §§107-108). Section 8 provides

(29 U.S.C. $108) :

“No restraining order or injunctive relief shall be

granted to any complainant who has failed to comply

with any obligation imposed by law which is involved

in the labor dispute in question, or who has failed to

make every reasonable effort to settle such dispute

either by negotiation or with the aid of any available

governmental machinery of mediation or voluntary

arbitration.”

Like Section 8 of the Norris-LaGuardia Act, the Railway

Labor Act also contains an “every reasonable effort”

requirement (45 U.S.C. $152 First).

Question Presented

In addition to the questions presented by BRAC the

following question will be argued on behalf of REA if,

contrary to the position taken in this brief, certiorari

should be granted:

“Whether a status quo order should be granted

when the party requesting it (a) has failed to seek

equitable relief first, instead of striking, (b) has failed

either to seek arbitration or to honor its commitment

to arbitrate the dispute, (c) has failed to invoke the

statutory grievance procedure, and (d) would be

_

3

harmed less by the denial of such an order than the

other party would be injured by its grant, as found

by both courts below.”

Statement of the Case

This case arose out of a strike situation. The strike

took place during the term of a collective bargaining agree-

ment.” REA, the carrier, sought and obtained a pre-

liminary injunction, halting the strike. BRAC, the union,

sought and obtained a status quo order to restrain opera-

tion of the 17 over-the-road truck runs which precipitated

the strike. The status quo order was the subject of appeal;

no appeal was taken from the preliminary injunction.

The District Court granted the status quo order in the

belief that the dispute was “major”, in the parlance which

has developed under the Railway Labor Act, but stayed

such order pending appeal upon finding that “the danger of

irreparable injury to [REA] is greater than to [BRAC]”

(33a). The Court of Appeals reversed the status quo order,

concluding that the dispute was “minor”, and directed the

District Court to grant REA’s motion to compel arbitration

of the dispute (11a).

Pursuant to Section 3 of the Railway Labor Act (45

U.S.C. $153) the parties have established a Special Board

* The relevant portion of the duration clause provides “No pro-

posals for changes in rates of pay, hours of service or working

conditions will be initiated by either party during the period of

this Agreement, except that notices may be served on or after

April 1, 1971, provided such notices do 1tot contemplate effective

dates earlier than July 1, 1971.” (R. 423.) The dispute arose more

than six months before July 1, 1971. As BRAC’s petition points

out, “the matter was the subject of substantial correspondence

and several meetings between representatives of BRAC and REA”

between November 18, 1970, and the date of the strike, April 19,

1971 (Pet. 8).

| I REPEC PNET EM, AML IL TE ERE TEE ELOY CNT EE EMR TRE IF EL PSO

o 4 my _ batt

a

4

of Adjustment by agreement. The agreement states that

the Adjustment Board “shall have jurisdiction of, and shall

: hear and decide, claims and grievances (including dis-

, ¢ipline cases) arising out of the interpretation or applica-

tion of agreements governing rates of pay, rules, or working

conditions between the parties signatory hereto and which

are submitted to the Board” (R. 310, Exh. C).

The agreement also acknowledges

“... the right of management to determine methods

of operations and the utilization of the working

forces. ...”;

and

“... the right of the parties to be free from all

work stoppages, slowdowns, lockouts or other interrup-

tions of work during the term of this Agreement” (R.

310, Exh. C).

Omitted from BRAC’s statement of facts but significant

to REA’s view of the case are the facts involving REA’s

repeated efforts to secure, and BRAC’s to avoid, arbitra-

tion. On February 10, 1971, REA initiated arbitration

under Section 7 of the Railway Labor Act, in accordance

with the following contractual provision (2a-3a) :

“In the event of failure to make an agreement con-

cerning the operation of a new run within forty-five

(45) days after notice is given to the General Chair-

man or General Chairmen representing the employees

to be affected, the matter may be referred by either

party to final and binding resolution in accordance with

Sections 3 and/or 7 of the Railway Labor Act, as

amended. The issues submitted for such determination

* The duration clause is quoted supra at p. 4.

pee Bie ST APRIL OI

shall not include any question as to the right of the

Company to establish the run but shall be confined to

the manner of implementing the run.” (Emphasis

added.)

For the purpose of complying with the above clause, REA

named its arbitrator, and requested that BRAC do the

same (R. 341). On March 5, after BRAC’s representative

cancelled a meeting previously scheduled to diseuss the

subject, REA sent another letter pointing out the need for

BRAC to name an arbitrator (R. 343). To date, BRAC

still has not done so.

On April 30, 1971, REA made a separate submission of

the dispute to the Special Board of Adjustment established

pursuant to Section 3 of the Act (R. 20, Pl. Exh. 36), the

other alternative specified under the arbitration clause

quoted above. This submission was made after it had be-

come apparent that the parties were in disagreement about

whether truck runs involved in the dispute were “new”.

BRAC’s statement of facts misleadingly suggests that

its Section 6 notice was the product of this dispute (Pet.

p. 8). Instead, the notice was a general reopener of the

contract between REA and BRAC, proposing many changes

in virtually every part of the contract (R. 505, Def. Exh.

26). As the District Court found, the dispute about the

truck runs arose in the “fall of 1970” (23a); BRAC’s

Section 6 notice was not served until April 1, 1971, and

could not have affected rights under the duration clause of

the collective bargaining agreement prior to July 1, 1971.*

a

6

The Section 6 notice was served months after the dispute

arose, and could not have become effective until sub-

stantially afier the strike—in fact, the notice itself

specified July 1, 1971 as the effective date (R. 308a).

Totally lacking is any record support for the state-

ments in the petition that REA refused to negotiate (Pet.

pp. 8, 9, 19). REA attempted to negotiate as well as arbi-

trate its differences with BRAC. BRAC refused, pre-

ferring instead to take advantage of REA’s financial weak-

ness by conducting a strike. The District Court specifically

found that there had been “protracted negotiations” (23a).

Further, before entering its order the District Court di-

rected the parties to make additional efforts to seek a

negotiated settlement (R. 464):

“During the ten-day period immediately following

Tuesday, April 27 (beginning Wednesday, April 28),

the parties shall meet and shall negotiate in an effort

to resolve their differences, including assignment of

drivers, rates of pay and working conditions respect-

ing the other 15 runs.

Should these successive negotiations be successful,

it should bring this controversy to an end. Should

these successive negotiations not be successful, the

Court will promptly proceed to a determination as to

the nature of the disputes involved (whether major

or minor) and direct such further proceedings under

the Railway Labor Act as may be appropriate in the

light of such decision.”

BRAC’s petition contends that the decision of the

Court of Appeals is based on findings which it “gratui-

tously” made with respect to Rule 12 of the collective bar-

_ ;

gaining agreement (Petition 11, 21). By a sinuous, garbled

factual statement, which certainly does not comport with

the requirements of Rule 23(4),* Petitioners suggest that

the Court of Appeals was not fully informed about Rule

12, making its decision “without a shred of evidence before

it on that issue” (Petition 21-22). The fact is that, follow-

ing oral argument, the Court requested supplemental briefs

dealing in detail with the position of the parties as to the

applicability of Rule 12. A true copy of the Court’s re-

quest is annexed hereto as Appendix A. REA’s supple-

mental brief was twenty pages long (not including lengthy

appendices), and BRAC’s was fourteen pages. Thus it

cannot be seriously contended that the Court of Appeals

was not fully briefed on the subject.

. ARGUMENT

L

Certiorari should not be granted to review a hypo-

thetical case.

BRAC’s petition is devoted to an argument based upon

the assumption that the collective bargaining agreement

and the rights of the parties thereunder are only tangen-

tially if at all involved in this litigation. However,

BRAC’s representative admitted that the dispute at heart

* Rule 23(4) states that:

“The failure of a petitioner to present with accuracy, brev-

ity, and clearness whatever is essential to a ready and ade-

quate understanding of the points requiring consideration

will be a sufficient reason for denying his petition.” (Em-

phasis added.)

“See Furness, Withy & y¥. Limited v. Yang-Tsze Seunee

Ass’n Limited, et al., 242 U.S. 430 at 434 (1917).

8

was a contractual one in his first letter on the subject. The

letter of the International Vice President, Mr. Devlin,

dated February 23, 1971, written in response to REA’s

plan for the new runs, states:

“Your proposals are in violation of the Agreement.

I do not intend to document each and every violation

in this letter because the respective General Chairmen

will file appropriate claims if this is necessary, how-

ever, I should like to call to your attention a few facts

that I hope will preclude the necessity of filing such

claims.” (R. 495, Exh. 18; emphasis added.) *

Later, of course, the BRAC served a Section 6 notice

and attempted to frame the dispute in statutory terms.

But the post hoe ergo propter hoc rationalizations of

BRAC’s lawyers can not convert the essence of the dispute

into something which it is not.

“In reaching for resolution of this problem of course

we must not place undue emphasis on the contentions

or the maneuvers of the parties ... Since a Section

6 notice is required by the statute in order to initiate

a major dispute, the labor representatives are likely

to serve such a notice in any dispute arising out of any

ambiguous situation so as thereby to make the contro-

versy appear more like a major dispute ... Or they

may seek to bring the particular conflict at issue within

the bounds of an outstanding Section 6 notice that in

* The “claims” referred to would be BRAC’s way of initiating

the grievance procedure and bringing the matter ultimately before

the Adjustment Board in accordance with the requirements of Sec-

tion 3 of the Railway Labor Act (45 U.S.C. §153). The union’s

subsequent failure to file such claims is an indication of BRAC’s evi-

dent lack of confidence in their merits in the light of prior Adjust-

ment Board rulings.

-

9

reality does not relate to that dispute.” Rutland Rail-

way Corp. v. Brotherhood of Locomotive Engineers,

307 F.2d 21 at 33 (2d Cir. 1962), cert. denied, 372 U.S.

954 (1963).

To paraphrase a recent comment by this Court,

“The difficulty with [BRAC’s] position is that we

must look to its [original statement], not to the argu-

ments of its counsel, for the underpinnings of its [ posi-

tion].” Federal Trade Commission v. Sperry ¢&

Hutchinson Co., 405 U.S. 233 (1972).

When one looks at BRAC’s own initial view of the dis-

pute, it is seen as purely a contractual matter which falls

clearly within the ambit of the prior decisions of this Court

concerning what constitutes a “minor” dispute. See Elgin,

J. d E. R. Co. v. Burley, 325 U.S. 711, 723-725 (1945),

(“minor” disputes seek “to enforce contractual rights”

(325 U.S. at 724)) ; Union Pacific Co. v. Price, 360 U.S. 601

at 609 (1959), (“minor” disputes arise “from the applica-

tion of collective bargaining agreements to particular

situations”) ; Pennsylvania R. Co. v. Day, 360 U.S. 548 at

550 (1959).

10 ’

Il.

The decision below raises no significant issues for

review.

The decision below involves an issue that has been raised

(and decided) many times before: was a “major” dispute

or a “minor” dispute involved? There is no reason for the

Supreme Court to decide the issue yet again.

Even if the meaning of the contract were “plain”, in the

eyes of the District Court, the Adjustment Board is not

thereby deprived of jurisdiction. The Adjustment Board

has exclusive jurisdiction over the application, as well as

interpretation of collective bargaining agreements. Thus,

it alone can provide the remedy for violation of the labor

agreement. In United Steelworkers v. American Manv-

facturing Co., 363 U.S. 564 (1960), the Supreme Court

rejected the so-called “Cutler-Hammer” doctrine which had

held there was nothing to arbitrate if the contract’s mean-

ing was plain, in favor of the “therapeutic values” of labor

arbitration and the “common law of the shop” (363 U.S.

564 at 567-8). Similar rulings in favor of the values of

arbitration were upheld in the other cases of the Steel-

workers “Trilogy”: United Steelworkers v. Warrior ¢

Gulf Navigation Co., 363.U.S. 574 (1960). If there were

no dispute over the meaning of the terms of the agree-

ment, the Adjustment Board nonetheless must provide

the remedy for its violation. See United Steelworkers v.

Enterprise Wheel and Car Corp., 363 U.S. 593 (1960).

The obligatory nature of the statutory grievance/arbitra-

tion procedure in Railway Labor Act cases was recently

—

11

underscored by this Court in Andrews vy. Louisville &

Nashville Railroad, 40 U.S.L.W. 4511 (May 15, 1972).

A decision by the Adjustment Board is of particular

importance in this case. What BRAC has asserted, in es-

sence, is that REA acted in violation of seniority rights.

Seniority rights in particular are the product of the collec-

tive bargaining agreement and lie within the province of

the Adjustment Board. Seniority districts fall under the

jurisdiction of different union officials (General Chairmen).

Typically one General Chairman does not want to lose

work from one of his seniority districts to another General

Chairman’s seniority district. Thus, the matter becomes a

jurisdictional dispute involving intra-union rivalry. The

legislative history of and decisions under the Railway

Labor Act make it clear that jurisdictional disputes were

one of the chief reasons for the establishment of the Ad-

justment Boards. Under Transportation-Communication

Employees Union v. Union Pacific Railroad Co., 385 U.S.

157 (1966), there can be no question that this is a “minor”

dispute requiring an Adjustment Board decision.

Moreover, this Court has held that any question as to

whether a dispute is major or minor is within the primary

jurisdiction of the Adjustment Board. “The court should

exercise [its] equitable discretion to give that agency [the

Adjustment Board] the first opportunity to pass on the

issue.” Order of Railway Conductors et al. v. Pitney et al.,

326 U.S. 561 at 567 (1946).

The various Courts of Appeals decisions are consistent,

not conflicting, with the decision below. Rutland Railway

Corp. v. Brotherhood of Locomotive Engineers, 307 F.2d

21 (1962), cert. denied, 372 U.S. 954 (1963), held that the

ieieceeeemnentes KSEE S IRN MN CREE IIL TENE TEP ESM IR GEE MRT NM

_

12

scheduling of new runs, such as is involved in the instant

case, involved a minor dispute because (307 F.2d at 36):

“... the existing agreements involved here, reason-

ably interpreted, may recognize implicitly a right in

the railroad unilaterally to make the changes which

it bulletined on September 8, i960 .... Whether the

railroad does in fact have the rights it claims, or

whether on further analysis it does not is for the

Board to determine; on the ultimate resolution of this

issue we express no opinion.”

Detroit é Toledo Shore Line R. Co. v. United Transporta-

tion Union, 396 U.S. 142 (1969) does not render this

principle any less clear. In Shore Line, the interpretation

of specific provisions of a written document or the appli-

cation of an arbitration clause was not in issue; the rights

the railroad relied on were not “expressed in an agree-

ment” (396 U.S. at 148).

Ill.

The Court of Appeals’ rejection of the District Court’s

interpretation of the contract does not warrant review.

It is clear that a Court of Appeals may reverse a District

Court’s unwarranted interpretation of a contract. The

action by the Court of Appeals in doing so is not circum-

scribed by the “clearly erroneous” standard set forth in

Rule 52 of the Federal Rules of Civil Procedure. As Judge

Learned Hand stated in Eddy v. Prudence Bonds Corp.,

165 F.2d 157 (2d Cir. 1947), cert. denied, 333 U.S. 845

(1948) :

“Tt is not necessary to analyze the mental process by

which a court imposes legal consequences upon verbal

utterances; possibly, it is proper to call the result a

_

‘finding of fact.’ It is enough here, that, whatever the

right description, such a finding is assailable as an

ordinary finding of fact is not; for appellate courts

have untrammelled power to interpret written docu-

ments.” (165 F.2d at 163)

13

See also Republic Pictures Corp. et al. v. Rogers, 213 F.2d

662 (9th Cir. 1954); United States v. John McShain, Inc.,

958 F.2d 422 (D.C. Cir. 1958), cert. denied, 358 U.S. 832;

Cordovan Associates, Inc. v. Dayton Rubber Co., 290 F.2d

858 (6th Cir. 1961); University Hills, Inc. v. Patton, 427

F.2d 1094 (6th Cir. 1970).

IV.

Certiorari would serve no useful purpose because

there are independent grounds for sustaining the de-

cision below.

An order requiring restoration of the status quo rests

on equitable considerations, including clean hands. BRAC’s

continuous delay in arbitrating the dispute, together with

its use of the “ultimate weapon” of a strike—a strike which

was illegal on any theory of the case—instead of seeking

equitable relief if it felt itself wronged—shows that it is

without clean hands. In a similar case, a railroad was

denied an anti-strike injunction because it had rejected

an offer of voluntary arbitration and thus had lost “the

| right to have the aid of equity in a federal court.” Brother-

hood of Railroad Trainmen et al. v. Toledo, Peoria and

Western Railroad, 321 U.S. 50 (1944). This decision was

based on the “every reasonable effort” requirement of

Section 8 of the Norris-LaGuardia Act, which is applicable

to employers and unions alike. BRAC has shown by its

behavior that it has not exerted “every reasonable effort”

14 |

to settle this dispute. It therefore has no right to a status

quo injunction.

The “every reasonable effort” requirement also is con-

tained in Section 2 First (45 U.S.C. §152), which this Court

recently held to be“... central to the effective working of

the Railway Labor Act.” Chicago and North Western

Railway Company v. United Transportation Union, 402

U.S. 570 (1971).

Even though BRAC argues that REA’s action was

illegal, BRAC’s strike unquestionably was illegal. The law

seldom excuses a resort to a clearly illegal act by one on the

basis of the commission of an allegedly but not clearly

illegal act of another, especially when, as found below, the

injury from the latter is not irreparable. No civilized legal

system could long endure the philosophy that two wrongs

make a right, and claims of illegality about action taken

under a collective bargaining agreement are to be tested

in ways other than on the economic battlefield. This is

particularly true of a case in which the strike not only

injures the opposing party but also, because of the essential

nature of the services it performs, affects society generally.

The fact that the problem of strikes relating to essential

services, including transportation strikes, has been deemed

so serious as to warrant national attention in at least three

State of the Union messages, from Presidents of both

parties, is not without significance in connection with this

Court’s consideration of a petition of a union which decided

to flex its muscles instead of seek the attention of the courts

at the outset of the dispute.

Even if the dispute indeed were “major”, the strike would

have been illegal because the statutory procedures had not

been completed. Detroit € Toledo Shore Line Railroad

—_—_

Co. v. United Transportation Union, 396 U.S. 142 (1969).

Cf. Brotherhood of Locomotive Engineers et al. v. Bal-

timore & Ohio Railroad Co. et al., 372 U.S. 284 (1963).

Further, the parties had agreed to arbitrate major as well

as minor disputes, as shown in the language quoted supra

on p. 4. (“... the matter may be referred by either party

to final and binding resolution in accordance with Sections

3 and/or 7 of the Railway Labor Act, as amended.”) Sec-

tions 3 and 7 of the Railway Labor Act both deal with arbi-

tration (45 U.S.C. §§153, 157). Section 3 establishes a sys-

tem of compulsory arbitration for “minor” disputes or, in

the language of the statute, those disputes involving “griev-

ances or... interpretation or application” of the present

collective bargaining agreement. Brotherhood vy. Chicago

River é I.R. Co., 353 U.S. 30 (1957). Section 7 establishes a

system of voluntary arbitration for “major” disputes, or

those involving the formation of a new collective bargaining

agreement.

In their arbitration clause, REA and BRAC agreed to

arbitrate all disputes involving “new runs”. The use of

the disjunctive “Sections 3 and/or 7 of the Railway

Labor Act” indicates the parties had agreed to arbitrate

whether the dispute be regarded as “major” or “minor”.*

15

* While this provision relates only to “new” runs, disputes in-

volving existing or “old” runs clearly would fall under the normal

“minor” dispute grievance arbitration provisions. See Rutland

Ry. supra. This is the paradox embodied in the decision of the

District Court. Central to its reasoning was the belief that at

least part of the runs were not “new”; yet, if the runs were not

“new” they had to be old, making the dispute a fortiorart “minor”

(ie., arbitrable) in nature. It is inconceivable that the parties to a

collective bargaining contract would have agreed to arbitrate the

greater but not the lesser departure from past practice, yet this

logical fallacy underlies the District Court’s decision.

16

¥.

Certiorari should not be granted in an equity action

where both courts below found the balance of injury

favors the result reached.

The Court of Appeals stated (lla):

“The District Court was careful to point out that a

status quo order rescinding REA’s unilateral imple-

mentation of the 17 proposed runs might cause far

greater irreparable harm to REA than to BRAC. We

agree.” *

Under the “two court” rule, such findings are conclusive.

Graver Tank and Mfg. Co., Inc. et al. v. Linde Air Products

*The District Court’s finding on the subject is as follows (32a-

33a) :

“Though not called upon to do so, the court, after hearing

the evidence in this case, expresses the opinion: (1) that, in

the long run, the making of the changes proposed by ‘the

plaintiff here (as distinguished from the manner in which

they were proposed and made) is probably in the best interest

of both parties ; and (2) that the defendant union probably

me no serious objection to them per se, provided only that

the manner of their implementation can be agreed upon. In

view of these opinions the court has ordered restoration of

the status quo most reluctantly and only because it felt com-

pelled to do so. The court therefore recommends to the par-

ties that, if they agree with these conclusions, they proceed

with all haste to attempt to reach an agreement. It has also

occurred to the court that the conclusions reached in this

order may be found to be wrong. If so, much damage may

have accrued and many backward steps may have been taken.

The court also believes that, pending an appeal, if any, the

danger of irreparable injury to plaintiff is greater than to

defendant. If the position of defendant is affirmed it can

: always exact restitution in the end. In view of these con-

siderations, and in order to give the parties time to consider

the suggestions made by ‘he court, it is therefore ORDERED that

execution of this order be stayed for a period of ten days or

until a ruling on any appeal herein, should one be filed.”

-

Co., 336 U.S. 271 at 275 (1949), and cases cited therein;

Virginia Railway Co. v. System Federation No. 40, 300 U.S.

515 at 542 (1937); Texas, New Orleans R. Co. et al. v.

Brotherhood of Ratlway Clerks, 281 U.S. 548 at 558 (1930).

In such circumstances, with the balance of injury favor-

ing the result already reached, it seems highly question-

able, to say the least, whether this case is of the importance

which warrants consideration by the Supreme Court.

17

CONCLUSION

Certiorari should be denied and the petition dismissed.

Respectfully submitted,

ArtTHuR M. WIsEHART

Attorney for Respondent

219 East 42nd Street

New York, New York 10017

(212) 557-8800

Of Counsel:

FisHer & PHILLIPs

26 Pryor Street, N.E.

Atlanta, Georgia 30303

Peter G. WoLFE

18

Certificate of Service

I hereby certify the foregoing Brief in Opposition to

Certiorari was served by causing two true copies thereof

to be airmailed, postage prepaid, to each counsel of record

at his post office address this 28th day of July, 1972:

Highsaw & Mahoney, Suite 506, 1015 Eighteenth Street,

N.W., Washington, D.C. 20036 and William J. Donlon,

General Counsel, Brotherhood of Railway and Airline

Clerks, 6300 River Road, Rosemont, Illinois.

Arthur M. Wisehart

—, ES ae

pe SLAG ISTO LES

SIN HE TCP EE 7

APPENDIX A

UNITED STATES COURT OF APPEALS

Firta Circuit

OFFICE OF THE CLERK

January 14, 1972

To AuL CounsEL or Recorp

Re: No. 71-2212-REA Express, Ine. v. Brother-

hood of Railway, Airline and Steamship

Clerks, ete., et al.

Dear Sirs:

The Court requests that each party furnish a supple-

mental brief responding to the following inquiries :

1. Appellee has argued that even assuming all 17 of the

over-the-road runs here at issue are “new runs” within the

meaning of Rule 8 and its accompanying Memorandum of

Understanding, changes in seniority rights are not within

the scope of that rule and that, therefore, such changes

in seniority rights must be considered as major disputes.

Are the changes in seniority rights which have resulted

from REA’s unilateral implementation of the 17 over-the-

road runs governed by Rule 12(b) through (e)? Addi-

tionally, are these changes the result of transfers of posi-

tions of work from one seniority district to another such

that the procedures outlined in Rule 12(a) are applicable?

2. Assuming that the controversy over implementation

of the 17 over-the-road runs substantially involves minor

disputes which are properly the subject of arbitration

2a

under RLA $3 and/or $7 and at the same time involves

major disputes which are properly the subject of media-

tion under ILA $6, should this Court denominate the

entire controversy as “minor” or should it characterize

the entire controversy as “major”?

Each party must file four (4) legible copies of the re-

quested supplemental brief, either typewritten or printed,

by January 28, 1972.

Yours very truly,

/s/ Epwarp W. WapswortH

Edward W. Wadsworth

Clerk

ec: Honorable Griffin B. Bell

Honorable Robert A. Ainsworth, Jr.

Honorable John C. Godbold