Petition for Writ of Certiorari — Walters v. Walters

‘ ,

In the Supreme Court

OF THE om

United States

OCTOBER TERM, 1975

or ea ; rad

No. %¢ 3-1 420

Unxirep TRANSPORTATION UNtoN, a labor organization,

(UTU), A. H. Cuesser, President, (UTU), R. W.

Gey, General Chairman, (UTU), G. R. PERKINS,

General Chairman, (UTU), R. H. WoopHaMs,

Vice General Chairman, (UTU), Joun R.

Burce, General Chairman, (UTU), and

Does One through One Thousand, indi-

vidually and as representatives of the

aforementioned association,

Petitioners,

Vs.

SoUTHERN PactFic TRANSPORTATION COMPANY,

a corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Cuirron HILDEBRAND,

1212 Broadway

Oakland, Californie 944!?

Telephone: (415) 451-6732

Attorney for Petitioners.

Hinperranp, McLrop & Netsox, INc.,

1212 Broadway,

Oakland, California 94612.

Telephone: (415) 451-6732

Of Counsel.

—_———

a

PERNAU -WALSH PRINTING CO. - 562 MISSION STREET - SAN FRANCISCO. CA 94105

sees

PEPE a EL OI IE IIE IE LOGE EILEEN

Subject Index

Page

Opinions of the courts below .....----..+eeeereeeerereees 2

Parties’ contentions .......---ee eee e eee eeeees Perens 3

Sei cos once cv cavnccwsesee senses Sy sees eee aRs eens 5

i Mi, a dan ines Mata ee be chee ae nd See a VERE RS? 5

The dispute which motivated the lawful strike action

arose over the railroad company’s denial of the forma-

tion and existence of special herder agreements which

modified Article IX, §1 of the national agreement,

and hence is a major labor dispute .......--++++++++:

Estoppel argument .........0eeeeeeeee crete ese er ceee ees

The principle of estoppel applies to President Biaggini’s

eteteMeht .. cc cccccccescccresacccvevvcsvescseseses

ME 6 us wa nO a a9 ON AN ERENE SERED AN EAE SRS

ConclWsion 2.2.22. ccc cc cece ceerceccccccesecscsscssvess

atte NII eels 8 Me

ROME Aa eT

i a hh ta

ac fi ible ih Nila ible it Og car

~~

Table of Authorities Cited

Cases Pages

Anaconda Wire and Cable Company v. National Labor

Relations Board, 444 F.2d 1028 (7th Cir. 1971) ........ 3,7

Atlantic & West Point v. U.T.U., 307 F.S. 1200 ......---. 11

Delaware & Hudson Ry. Co., et al. v. U.T.U., 450 F.2d 603

(Mar, 31, 1971) ......ccvcccccccnsereccccsnveseress 9,10

Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 3

OR Ry We: 2 it ee, rrr rr rr rr er.

Insuranee Co. v. Wilkinson, 13 Wall. 222 ..........-+...- 4

International Brotherhood of Electrical Workers v. Washing-

ton Terminal Co., 473 F.2d 1156 (D. C. Cireuit 1972) 5

(sg

oO

—_

ou

Rutland R.R. v. B. of L.E., 307 F.2d 21 .............-.- 15

Salmon Falls Mfg. Co. v. Goddard, 14 L.Ed. 493 .......... 6

Schell v. Fauche, 138 U.S. 52, 34 L.Ed. 1040 ............ 6

Seits v. Brewers Reefer Machine Co., 35 L.Ed. 836 ........ 7

Southern Paeifie Transportation Co. v. International

Brotherhood of Electrical Workers, et al., 474 F.2d 696

(9th Cir. 1978) «2... .ccccccnsereresessccecccsccceces 5

Southern Ry. v. B. of L.F. & E., 384 F.2d 323 .......... 10

“Ui. of N.A. v. BP... BOO F.Bd GEO «2. ccc sescccccwccesss 14

Switehmen’s Union of North America +». Southern Pacific

Co. 306 B. 24 468 (Oth Civ. T9068) . 2c. ccccccecceees: 4

United States v. Fidelity Casualty of N. Y., 402 F.2d 893... 12

Union Mutual Life Ins. Co. v. Wilkinson, 13 Wall. 222,

cee MES hee ee Se een ea Wee AEE REET 9,15

Walden v. Skinner, 101 U.S. 577, 25 L.Ed. 963 .......... 7,14

Statutes

Norris-LaGuardia Act, 29 U.S.C., Section 108 ........... 4,5,14

Railway Labor Act, 45 U.S.C.A., Section 151 ............ 5, 8

Ss

PEI AS DEE TL Qe RNS FERRER AT ser —

Iu the Supreme Court

Anited States

OcToBER TERM, 1973

No.

Unitep Transportation Union, a labor organization,

(UTU), A. H. CHEsser, President, (UTU), R. W.

Guy, General Chairman, (UTU), G. R. PERKINs,

General Chairman, (UTU), R. H. WoopHaMs,

Vice General Chairman, (UTU), JoHn R.

Bure, General Chairman, (UTU), and

Does One through One Thousand, indi-

vidually and as representatives of the

aforementioned association,

Petitioners,

vs.

SovuTHERN Paciric TRANSPORTATION COMPANY,

a corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Petitioner, United Transportation Union, a labor or-

ganization, prays that a Writ of Certiorari issue to

QQ BOW a a PERT ERETEK e EEOAEO

hie RA Te RRS ONT ET

lds hired

Pt le Pt ea 9

| Wea ey

review the judgment of the United States Court of

Appeals for the Ninth Circuit entered in the above

ease No, 72-2013 on February 4, 1974.

OPINIONS OF THE COURTS BELOW

The opinions of the Courts below are attached

hereto and labeled Appendices A and B.

As stated in the opinion of the Ninth Circuit, in

November, 1961, certain herder (switechmen) agree-

ments were entered into between Southern Pacific

and its switchmen, giving the switchmen exclusive

rights to align switches in the performance of herding

work and prohibiting the performance of this work

by road crews.

The evidence presented to the trial judge in the

District Court was entirely by affidavits and declara-

tions. These declarations related to the negotiation of

a national agreement which was not resolved until Jan-

uary, 1972. In negotiating the national agreement,

President Biaggini of the Southern Pacific in nego-

tiating the agreement with Charles Luna, the president

assured Mr. Luna that he need not worry about the

situation in the newly merged union, as Article 9 of

the newly proposed agreement would not be applied by

the Southern Pacific to displace herders, or if any,

only a very few in the back shop and roundhouse

areas. Relying on these representations of Mr. Biag-

gini, the president of the United Transportation

Union signed the agreement, including Article 9, and

3

thereafter Southern Pacific abolished some sixteen

herder jobs, including various herders situated where

Mr. Biaggini said they would not be affected. (Ke-

secker affidavit, R.T. p. 155; Burge affidavit, R.T. p.

158; Burge affidavit, R.T. p. 134; Blazin affidavit, R.T.

p. 92).

As stated by the Court of Appeals, the Union as-

serts that the District Court erred in that the un-

disputed record evidence required the District Court

to deny all equitable relief to Southern Pacific be-

cause:

“(1) [Southern Pacific] should be by the con-

duct of its president estopped to claim such relief

because of its misrepresentations and bad faith in

connection with the inception of the agreement on

which the railroad relies.

“(2) Because of fraudulent and mistaken rep-

resentations so made at the inception of the

agreement.”

PARTIES’ CONTENTIONS

We summarize Union’s contentions as follows:

(a) That Article LX does not incorporate a sepa-

rate oral agreement with Southern Pacifie concerning

its herders and was reached and made during the course

of the national bargaining negotiations. Hence, Article

IX is not a binding agreement between these parties

under the rationale of Anaconda Wire and Cable Com-

pany v. National Labor Relations Board, 444 F.2d

1028 (7th Cir. 1971).

"a ae ee teal ———

Berwisens SARE AMER TAIT RE PIE ca ae

4

(b) Mr. Biaggini as president of Southern Pacific

made certain false representations as to the number

of herder positions which would be abolished under

the proposed Article IX. That the Union relied in

good faith upon those false representations and ceased

further collective bargaining on the Article. Hence,

Southern Pacific should be estopped to implement the

Article adverse to those representations under the ra-

tionale of Glus v. Brooklyn Eastern District Term:

nal, 359 U.S. 231, citing Insurance Co. v. Wilkinson,

13 Wall. 222.

Accordingly, Union urges that the 1961 herder

agreements with Southern Pacific are legally still

effective and the dispute looks to a new agreement

concerning switchmen-herder duty assignments and

falls within the “major dispute” category as delineated

in Switchmen’s Union of North America v. Southern

Pacific Co., 398 F. 2d 448 (9th Cir. 1968) at page 445,

citing Elgin, J. & E. Railway Co. v. Burley, et al.,

995 U.S. 711, 723. Therefore, the restraint is violative

of the Norris-LaGuardia Act, 29 U.S.C. $108,

Southern Pacifie denies the actionable false state-

ment factual premise urged by Union and further

contends that:

(a) the National Agreement superseded the 1961

herder agreements, hence, Article IX is a valid sub-

sisting agreement between the disputing parties, and

(b) the dispute arises from its reasonably suscepti-

ble implementation of Article IX and is a “minor

dispute” within the jurisdiction of the Adjustment

Board.

AE NOOR, LOLA EEE ET I

A)

Accordingly, Southern Pacific contends that the re-

straint was proper under the rationale and holdings of

International Brotherhood of Electrical Workers v.

Washington Terminal Co., 473 F.2d 1156 (D. C. Cir-

cuit 1972), cited and followed in Southern Pacific

Transportation Co. v. International Brotherhood of

Electrical Workers, et al., 474 F.2d 696 (9th Cu.

1973).

JURISDICTION

Jurisdiction of the Supreme Court of the United

States is invoked because the case involves the inter-

pretation of the Railway Labor Act, 45 U.S.C.A., See.

151, and the Norris-LaGuardia Act, 24 U.S.C.A., See.

108. There is an issue as to whether this is a major or

minor dispute under the tests set out in Elgin Joliette

& Eastern Railroad v. Burley, 325 U.S. 711 (195+)

and also under the Norris-LaGuardia Act as to

whether or not there was bargaining in good faith.

THE LAW

THE DISPUTE WHICH MOTIVATED THE LAWFUL STRIKE

ACTION AROSE OVER THE RAILROAD COMPANY'S DENIAL

OF THE FORMATION AND EXISTENCE OF SPECIAL

HERDER AGREEMENTS WHICH MODIFIED ARTICLE IX,

(1 OF THE NATIONAL AGREEMENT, AND HENCE IS A

MAJOR LABOR DISPUTE.

In considering the threshold issue of the magnitude

of the dispute, defendants submit that the basic au-

ARH LS AL aS icp 4 1

1, oi Lunda He tists

aren

angst

Pir nse easricasia

6

thority defining major and minor disputes, Elgin, J.

dad E. R. R. v. Burley, 325 U.S. 711 (1954), supports

their position. The Court stated regarding major dis-

putes:

‘‘The first relates to disputes over the forma-

tion of collective agreements or efforts to secure

them. They arise where there is no such agree-

ment or where it is sought to change the terms of

one, and therefore the issue is not whether an

existing agreement controls the controversy. They

look to the acquisition of rights for the future,

not to assertion of rights claimed to have vested

in the past.”

In the instant case, the affidavits of the defendants

establish that a separate oral agreement was reached

with the president of the Southern Pacific which

varied the terms of Article TX, §1 of the national

agreement. The parties clearly contemplated in the

national agreement that other agreements might be

reached. Article XV, §2(e) of the national agreement

provides as follows:

“This article will not debar management and

committees on individual railroads from agreeing

upon any subject of mutual interest.”

It is a well-settled principle of law that several

agreements connected in fact and in subject matter

can be considered in evidencing the intent of the

parties.

Schell v. Fauche, 138 U.S. 52, 34 L.Ed. 1040;

Salmon Falls Mfg. Co. v. Goddard, 14 L.Ed.

493.

7

It is further well settled that the parol evidence

rule was never intended to perpetrate a fraud, and

therefore parol evidence will be allowed to reform

contracts entered into by mistake or fraud and to

make them correspond to the intent of the parties.

Walden v. Skinner, 101 U.S. 577, 25 L.Ed. 963.

Parol evidence may show that the parties did not

intend the written paper to be a complete and final

statement of the whole transaction.

Seits v. Brewers Reefer Machine Co., 35 L.Ed.

836.

And in the recent case of Anaconda Wire & Cable

v. N.L.R.B., 444 F.2d 1028 (1971), it was held that

the employer is legally obligated to incorporate into

writing any agreement reached during the negotia-

tions. In the ease at bar, the affidavits of defendants

reveal repeated efforts of the defendants to meet with

the employer which were frustrated on every occa-

sion. The national agreement itself has attached to it,

as shown by the affidavit of L. W. Sloan, several

agreements which modify the terms of the national

agreement, yet the plaintiff refuses to acknowledge

the fact that any agreement was negotiated or is in

existence concerning the special herder agreements of

1961. Interpretation is not the issue, since the plain-

tiff denies the formation or existence of the agreement

which modified the terms of the national agreement.

bE thine LN Oto AR at oe

8

ESTOPPEL ARGUMENT

THE PRINCIPLE OF ESTOPPEL APPLIES TO

PRESIDENT BIAGGINI'S STATEMENT

Defendants in good faith relied on the representa-

tions of the president of the Southern Pacific; and

therefore the Norris-LaGuardia Act and the Railway

Labor Act, 45 U.S.C.A. §151, et seq., protect the

rights of the defendants to strike in this instance. By

relying on the representations of the president of

Southern Pacific, the defendants ceased further col-

lective bargaining negotiations regarding the herder

agreement, which it must be assumed would have

continued had these special agreements not been pro-

tected. It is clearly the policy of the law to encourage

negotiations and collective bargaining to settle labor

disputes. When the union officials and membership

relied on the representations of management, col-

lective bargaining as to that issue was terminated.

When the plaintiff failed to acknowledge the forma-

tion or existence of those representations and agree-

ment after the national agreement was implemented,

they foreclosed the union from collective bargaining

negotiations. The plaintiff further, by failing to

acknowledge that these representations and agree-

ments were actually made, undermined the confidence

that the union membership had in its leaders to en-

gage in meaningful collective bargaining negotiations,

and thus would destroy the basic concept of nego-

tiating procedure. Therefore, the only alternative in

this regard was a lawful strike by the union acting

in good faith upon reliance of representations made

by the company which were not acknowledged; and

9

this action is supported by the most recent authority

of Delaware & Hudson Ry. Co., et al. v. U.T.U., 450

F.2d 603 (Mar. 31, 1971).

This situation brings into play the rule as set forth

in Union Mutual Life Ins. Co. v. Wilkinson, 13 Wall.

222, 233, 20 L.Ed. 617, 622:

‘The principle is that where one party has by

his representations or his conduct induced the

other party to a transaction to give him an ad-

vantage which it would be against equity and

good conscience for him to assert, he would not

in a court of justice be permitted to avail himself

of that advantage. And although the cases to

which this principle is to be applied are not as

well defined as could be wished, the general doc-

trine is well understood and is applied by courts

of law as well as equity where the technical

advantage thus obtained is set up and relied on

to defeat the ends of justice or establish a dis-

honest claim.”

The above quotation was cited with approval in the

ease of Glus v. Brooklyn Eastern District Terminal,

359 U.S. 231, 3 L.Ed.2d 770, 79 S.Ct. 760, where the

Court held that the railroad was estopped to take

advantage of misrepresentations of a claim agent in

his dealings with an injured man. In the Glus case,

the plaintiff had waited to file his action until the

statute of limitations had run, but the Court held that

‘‘despite the delay in filing his suit, petitioner is en-

titled to have his cause filed on the merits if he can

prove that respondent’s responsible agents, agents

with some authority in the particular matter, con-

Vip sii inhi PAR aS Rie a Ali ROSA Litt i ATI OG Aha Foe ord ne 9

Biviteranss seni

10

ducted themselves in such a way that petitioner was

justifiably misled into a good-faith belief that he

could begin his action at any time within seven years

after it had accrued.”

Similarly, in the case at bar, we believe these

authorities are applicable in reference to the binding

effect of the representations of President Biaggini on

the railroad and their estoppel to deny the effect of

these representations. The Court of Appeals would

disregard this phase of established law and class

these contentions as “nonsense”.

ARGUMENT

The parties to this lawsuit had pursued the pro-

cedures required by the Railway Labor Act without

resolution of the dispute. At that time, both parties

had authority to resort to the ultimate right of self

help. See Delaware & Hudson Ry. Co. v. U.T.U., 450

F.2d 603 (cert. den. June 7, 1971), holding that it was

not unlawful for the union to pursue a selective

strike and reversing the preliminary injunction.

The railroad does not come into court with clean

hands to seek an injunction. The representation of

President Biaggini of the Southern Pacific followed

by removal of the herders constituted bad faith bar-

gaining, and later this was confirmed by his marked

reluctance to meet and talk with the union representa-

tives or to keep appointments made (R.T. p. 79). See

Southern Ry. v. B. of L.F, & E., 384 F.2d 323 regard-

a ST ee ee BP

11

ing the requirement of good faith bargaining and also

Atlantic & West Point v. U.T.U., 307 F.S. 12085.

The conduct of President Biaggini and the later

conduct of the railroad as to herders constituted a

form of bad faith bargaining which was as bad as a

refusal to bargain. It prevented further bargaining

and kept the union from being able to meet the issue.

Mr. Biaggini admits in his affidavit and agrees that

Southern Pacific would so apply the agreement as to

have no substantial effect on herder positions, with

the exception that the railroad did expect to discon-

tinue positions of herders working on inside tracks

and handling switches in connection with the move-

ment of engines to and from ready tracks and engine

houses, roundhouses, and shop areas, He further

stated that it would not be Southern Pacific’s inten-

tion to apply the agreement so as to eliminate herder

positions where the men were used to tend switches

which were used where trains were entering and leav-

ing the yards at various locations (R.T. p. 145).

The affidavits of Kesecker (R.T. p. 155), Blazin

(R.T. p. 95), Holland (R.T. p. 57), Burge (R.T.

p. 81) show that the herders removed by Southern

Pacific were not confined to those in roundhouse or

shop areas, but included the ones which Mr. Biaggini

stated would not be affected. President Biaggini by

his own admission had told President Luna and Mr.

Burge, the representative of his employees, not to

worry about this, and that there would be ‘‘no sub-

stantial effect on herders’ positions,” and he referred

to the positions which have subsequently been abol-

12

ished. (See Burge affidavit, R.T. p. 158 regarding

inside herders.) This conduct flies in the face of

U.S. v. Fidelity Casualty of N. Y., 402 F.2d 893:

“The principle is that where one party has by

his conduct induced the other party to a transac-

tion to give him an advantage which would be

against equity and good conscience for him to

assert, he would not in a court of justice be per-

mitted to avail himself of that advantage.”

This Court in equity should not allow the technical

advantage thus obtained to be set up and relied on to

defeat the ends of justice or to establish an unfair

claim. The affidavits of all the employees, including

Hayden (R.T. p. 97), Holland (R.T. p. 57), Kesecker

(R.T. p. 59), Cody (R.T. p. 55), Lechner (R.T. p.

71), and Presidents Luna (R.T. p. 62) and Chesser

(R.T. p. 66) show that the representation of Presi-

dent Biaggini was relied on by the organization and

further collective bargaining was discontinued with

this representation having been given.

We do not have here a mere question of interpreta-

tion, which would make a minor issue for the Adjust-

ment Board. We have ‘‘the creation of a new agree-

ment,” looking to the future, as is referred to in the

Burley case, supra. This oral commitment looked to

the future in keeping the old agreement in effect

rather than Article IX. It was not a mere question

of the meaning of Article IX, but of the existence of

an agreement as to the future and how it was to be

applied. This is an abrupt change from the way in

which Article IX was actually applied, and is the

opposite of the national agreement, and so is not a

13

matter of mere interpretation. The railroad sought

to explain it away by saying that the statement of

their president was ‘‘conversation of one not directly

involved in labor relations who is normally not even

a participant in negotiations.” The president of the

railroad certainly was a competent spokesman for

the railroad and was so chosen under the last section

of Article IX of the National Agreement. He had the

right to recognize that the old “‘special rules” would

remain in effect; and their national agreement so

contemplated by having this special section in it,

reading as follows:

“‘Section 2. The foregoing is not intended to

impose restrictions with respect to any operation

where restrictions did not exist prior to the date

of this agreement... .”

Even the National Agreement had appended to it

several separate Letters of Understanding. (See Ex-

hibit A attached to ‘‘Entry 8” of Clerk’s Transcript).

The evidence shows without dispute that after Mr.

Biaggini had made these representations, the union

leaders relied upon them and broadcasted to their

membership and the interested members just what

Mr. Biaggini had stated and were thereby lulled into

a false sense of security. Being unaware of the con-

sequences of this reliance, they ceased to bargain on

the question and their only remedy was to strike

when they found out that they had changed their

position to their detriment with their reliance on the

statement of President Biaggini. President Biaggini

admits he did involve himself in this matter, and

AIRS Red Re oe 2S Sen OR PTS

Bhd Rea nuit x! sien ACL rat PR

14

that he did represent that the way the agreement

would be applied would have no practical effect on

the herders and to continue the special rules in effect.

It would appear that the parties have a right to rely

on what the president of the railroad admittedly has

said and that they did rely upon it, to their detri-

ment. There is no equity in granting an injunction to

the railroad under such circumstances. The statement

made was either false or mistaken; there was reliance

and damage, all of which give the essential elements

of fraud or misrepresentation in the inducement to

the contract, which should allow reformation rather

than an injunction under the rule of Walden v. Shin-

ner, supra.

The parties here were involved under the rule of

the Burley case, in a major dispute looking to the

acquisition of rights for the future and not merely to

the assertion of rights claimed vested in the past.

They were in a dispute about a formal change in

terms relating to the creation of a new agreement

and not merely as to the meanings or the application

of a particular past agreement. The rule is well

stated in S.U. of N.A. v. S.P., 398 F.2d 443:

‘‘Major disputes are those which relate to the

formation of collective bargaining agreements or

efforts to secure them... . A dispute is major

only if an effort is made to bring about a formal

change in the terms of an existing agreement or

create a new agreement.”

Section 8 of the Norris-LaGuardia Act, 29 U.S.C.A.

§108, precludes injunctive relief if the railroad has

15

failed to fulfill its legal obligations, which include a

showing of good faith. See Rutland R.R. v. B. of

L.E., 307 F.2d 21, which applies the ‘‘clean hands

doctrine in a court of equity involving injunctive

relief as to labor contracts; and inequitable conduct

will not be condoned.”

—Eeee

CONCLUSION

We respectfully request this court to review this

ease and to reaffirm the doctrine of estoppel of the

Wilkinson and Glus cases so firmly embedded in our

law that the railroad cannot take advantage of its

own misrepresentations and still claim that it has

bargained in good faith.

Dated, Oakland, California,

March 22, 1974.

Respectfully submitted,

CLIFTON HILDEBRAND,

Attorney for Petitioners.

HILDEBRAND, McLeop & NELSON, INc.,

Of Counsel.

(Appendices Follow)

BIR esperar pers oe ay as

Anppodix.A. -

In the United States District Court for the

Northern District of California

Civil No. C-72-429 RFP

Southern Pacific Transportation Company, '

a corporation, - ‘ |

laintiff,

)

vs

United Transportation Union, a labor or- :

ganization, (UTU), et al.,

Defendants. J

[Filed Apr. 3, 1972]

ORDER GRANTING PRELIMINARY

INJUNCTION

This cause came on to be heard upon plaintiff’s

application for a preliminary injunction and upon

this Court’s order to show cause and temporary re-

straining order issued March 10, 1972, the Court

having considered the verified complaint, amended

complaint and affidavits filed herein and arguments

of counsel and being fully advised in the premises.

The Court finds that defendants caused and par-

ticipated in a strike and work stoppage against plain-

tiff by taking concerted action to picket and strike

plaintiff’s lines of railroad in the States of California,

ii

Oregon, Nevada, Utah, Texas and elsewhere on

March 10, 1972, and that such strike and work stop-

page caused plaintiff to curtail and eliminate trans-

portation services and resulted in immediate and

irreparable injury, loss and damage to plaintiff, to

plaintiff’s customers and to the public.

The Court further finds that on March 13, 1972,

defendants engaged in a concerted layoff and work

stoppage at Oakland, California, in order to force

plaintiff to concede or acquiesce in defendants’ inter-

pretation of the work rules contained in the collective

bargaining agreement between the parties dated Jan-

uary 27, 1972, and are likely to engage in other

concerted layoffs, strikes and pressures in order to

accomplish the object of forcing plaintiff to acquiesce

to defendants’ interpretation of said work rules. Said

concerted layoff or work stoppage caused plaintiff to

curtail and eliminate transportation services and re-

sulted in immediate and irreparable injury, loss and

damage to plaintiff, its customers and to the public,

which injury and loss will continue unless further

work stoppages are enjoined.

The Court further finds that if defendants are not

enjoined from further striking they will cause the

withdrawal of all of plaintiff's employees represented

by defendants, plaintiff's operations will be para-

lyzed; that plaintiff will be forced to eurtail or elimi-

nate its services necessary to the transportation of

perishable products and goods and property of Cali-

fornia industries and of industries of other states,

that plaintiff will be forced to curtail or eliminate its

at BN SOF EAN OEE LE ne ee a

iii

passenger, mail and baggage services to the detriment

of the public and the United States Government,

which products, goods, properties, passengers, mail

and baggage are continuously and necessarily carried

by plaintiff to and from points throughout the United

States; that plaintiff, its employees, the industries

affected, interested railroads, the public and the

United States Government will be deprived of large

amounts of revenue and of supplies for the armed

forces in Vietnam, of other defense materials, food-

stuffs, goods, mail, baggage and other property which

are daily carried by plaintiffs; that plaintiff’s em-

ployees who are not interested in the subject matter

of this case will be laid off and subjected to substan-

tial loss of wages by the continuance of such strike;

that such damages cannot be wholly estimated, cal-

culated or compensated for in money, and that said

damages will be immediate, substantial and irrepa-

rable. Said damages will be irreparable in that money

damages will not compensate for injuries to the na-

tional defense effort in Vietnam nor be adequate

compensation for the loss of business, livelihood, and

service to the carrier, shippers, passengers, employees

and the general public.

The Court further finds that the disputes and

grievances which are the basis of defendants’ strike

and work stoppage do not concern changes in agree-

ments, but instead concern the interpretation and

application of existing agreements covering rates of

pay, rules and working conditions and are minor dis-

putes for which defendants have an appropriate ad-

—————————— oo ——et—

iv

ministrative procedure for handling with plaintiff.

The Court further finds that this matter has been

submitted to the National Railroad Adjustment Board

for arbitration.

The Court concludes that the strike and work

stoppages were conducted and caused by defendants

in violation of the Railway Labor Act, 45 U.S.C. 151,

et seq., and the issuance of a preliminary injunction

is appropriate in these circumstances.

Now, Therefore, It Is Ordered that the defend-

ants and all persons in active concert and participa-

tion with them, and all persons acting by, with,

through or under them, or by their order, be and

they are hereby restrained and enjoined from the

following in furtherance of the disputes and griev-

ances herein found by the Court to be minor disputes:

(1) threatening, calling, instigating, authorizing,

encouraging, participating in, approving or

continuing a strike, concerted layoff or other

work stoppage, against the plaintiff and all

acts in furtherance or in support thereof be-

cause of a dispute concerning the interpretation

or application of the work rules contained in

the agreement of January 27, 1972, between

plaintiff and defendants;

(2) picketing or bannering the premises on which

plaintiff conducts its operations, including the

entrances and any other places where said

premises are situated, from interfering with

ingress to or egress from said premises, includ-

ing the delivery, unloading, loading, dispatch

Vv

and movement of plaintiff’s rolling stock and

equipment and the contents thereof, or from

loitering or congregating at or near any ap-

proaches thereto, and upon any public street

or highway leading to or from any place which

the employees of plaintiff or those having busi-

ness with the plaintiff desire to enter or leave

en route to or from said premises because of a

dispute concerning the interpretation or appli-

cation of the work rules contained in the agree-

ment of January 27, 1972, between plaintiff

and defendants;

(3) slowing down, laying off, or interfering with in

anywise or manner the orderly and prompt

continuance of work in plaintiff’s operations

because of dispute concerning the interpreta-

tion or application of the work rules contained

in the agreement of January 27, 1972, between

plaintiff and defendants;

(4) in any way carrying out or effectuating or

conspiring to carry out or effectuate the activi-

ties enjoined in subdivisions (1), (2) and (3)

hereof.

It Is Further Ordered that said defendants and

each of them take all steps within their power to

avert and prevent the resumption of the strike and

work stoppage.

It Is Further Ordered that this Preliminary In-

junction shall not be construed to require an indi-

vidual to render service without his consent or to

osha nu a hylan so

TPR Mae te tte ee OD sendy ait Eels ss Seabed NMA Daten Salle sh a 8

make the quitting or resigning of an individual em-

ployee of plaintiff an illegal act.

It Is Further Ordered that this Preliminary In-

junction is on condition that a bond be filed by plain-

tiff herein in the sum of $5,000.00 for the payment

of such costs and damages as may be incurred or

suffered by any party who is found to be wrongfully

enjoined or restrained. Said bond to be approved by

the Clerk of this Court, or by the Court.

Dated: April 3, 1972.

/s/ Robert F. Peckham

United States District Judge

Appendix B

United States Court of Appeals

for the Ninth Circuit

No. 72-2013

.

Southern Pacific Transportation Company,

a corporation,

Plaintiff-A ppellee,

vs.

United Transportation Union, a labor or-

ganization, (UTU), A. H. Chesser, Pres-

ident, (UTU), R. W. Guy, General ‘

Chairman, (UTU), G. R. Perkins, Gen- |

eral Chairman, (UTU), R. H. Wood- |

hams, Vice General Chairman, (UTU),

John R. Burge, General Chairman,

(UTU), and Does One through One

Thousand, individually and as represen-

tatives of the aforementioned association,

Defendants-A ppellants.

[February 1, 1974]

Appeal from the United States District Court

for the Northern District of California

OPINION

Before: Dunrway and Wricut, Circuit Judges, and

Fast,* Senior District Judge.

Fast, Senior District Judge:

THF CASE

The defendants-appellants (Union) are, for our

purposes, the representatives of the Switchmen em-

*Honorable William G. East, Senior United States District

Judge for the District of Oregon, sitting by designation.

ee a ee Eee

3

4

vu

i alle ls Ghd til ete le 6d Sidi eR AD Lisi dsc se

ployees of the plaintiff-appellee (Southern Pacific)

and appeal from the District Court’s order dated

April 3, 1972, granting a restraint of a strike called

and being conducted by the Union against Southern

Pacific.

A brief narration of background history is war-

ranted. In November of 1961, certain herder’ agree-

ments were entered into between Southern Pacific and

the Switchmen, giving switchmen exclusive right to

line switches in the performance of herding work and

prohibiting the performance of this work by road

crews. These agreements remained in effect until pur-

portedly superseded by a National Agreement reached

on August 2, 1971. The terms of the National Agree-

ment were bargained for and negotiated over a period

of nearly two years following a distressing national

18-day strike against the railroads, and the National

Agreement was contentiously bargained for and pro-

vided that the national railroads would give the Union

a 42 per cent wage hike in return for relaxation of a

number of old contract work rules that had plagued

the railroad industry by restricting work assignments

to certain crafts within the Union. Because of a delay

by proceedings for approval of the wage increases

before the Pay Board, the 1971 agreement did not be-

1“Herders are taken from the ranks of switchmen and in fact,

are switchmen, who perform yard service, usually by working

alone, detaching engines from arriving road trains; lining neces-

sary switches for movement of road engines to and from trains and

roundhouse facilities; to allow trains and light engines to move

into and out of tracks at ends of yards and line switches in round-

hous: areas for movement of engines within such areas.” Bush

Affidavit dated March 10, 1972.

ix

come effective until January 27, 1972. Immediately

thereafter, the increases were paid to Union members

and the nation’s railroads sought to implement the

new work rules and enjoy the consequent productivity

increases. Specifically, Southern Pacific abolished six-

teen herder positions pursuant to Article TX’ of the

National Agreement because they became unnecessary

when Southern Pacific assigned its road crews (also

represented by the Union) the work of attaching and

detaching their engines to or from their road trains

and line the switches necessary to move the engines

between the engine service areas and the tracks where

the trains rested, which work was theretofore per-

formed by switchmen occupying the sixteen herder

positions that were abolished.

The Union in turn called the subsequently enjoined

strike even though none of the switchmen employed

in the sixteen positions were laid off but all were

absorbed into other work activities.

The District Court found that the dispute out of

which the strike arose involved the interpretation and

application of existing collective bargained agree-

ments and, therefore, was a “minor dispute” as that

term is used and applied to matters under the juris-

2The pertinent parts are:

“ARTICLE IX—ROAD-YARD MOVEMENTS

Section 1. Road freight crews may be required at any point

where yard crews are employed to do any of the following as

part of the road trip, paid for as such without any additional

compensation and without penalty payments to yard crews,

holsters, ete.: . . . handle engines to and from train to ready

track and engine house including all units coupled and con-

nected in multiple; ....”

x

diction of the Railway Labor Act, 45 U.S.C. $151, et

seq. The injunction was to permit utilization of the

compulsory arbitration procedures of Section 3 of the

Act, 45 U.S.C. §153, which provides for submission

of such disputes to the National Railroad Adjustment

Board (Adjustment Board). The dispute itself was

submitted to the Adjustment Board on March 19,

1972, and is now pending before that forum.

ASSIGNMENT OF ERROR

The Union asserts that the District Court erred in

that the undisputed record evidence required the Dis-

trict Court to deny all equitable relief to Southern

Pacific because :

“(1) [Southern Pacific] should be by the conduct

of its president estopped to claim such relief be-

cause of its misrepresentations and bad faith in

connection with the inception of the agreement

on which the railroad relies.

“(2) Because of fraudulent and mistaken repre-

sentations so made at the inception of the agree-

ment.”

PARTIES’ CONTENTIONS

We summarize Union’s contentions as follows:

(a) That Article IX does not incorporate a sep-

arate oral agreement with Southern Pacific concern-

ing its herders and reached and made during the

course of the national bargaining negotiations. Hence,

Article IX is not a binding agreement between these

parties under the rationale of Anaconda Wire and

xi

Cable Company v. National Labor Relations Board,

444 F.2d 1028 (7th Cir. 1971).

(b) Mr. Biaggini as president of Southern Pa-

cific made certain false representations as to the num-

ber of herder positions which would be abolished

under the proposed Article IX. That the Union re-

lied in good faith upon those false representations and

ceased further collective bargaining on the Article.

Hence, Southern Pacific should be estopped to im-

plement the Article adverse to those representations

under the rationale of Glus v. Brooklyn Eastern Dis-

trict Terminal, 359 U.S. 231, citing Insurance Co. v.

Wilkinson, 13 Wall, 222.

Accordingly, Union urges that the 1961 herder

agreements with Southern Pacific are legally still

effective and the dispute looks to a new agreement

concerning switchmen-herder duty assignments and

falls within the “major dispute” category as delin-

eated in Switchmen’s Union of North America v.

Southern Pacific Co., 398 F.2d 443 (9th Cir. 1968)

at page 445, citing Elgin, J. & E. Railway Co. v.

Burley, et al., 325 U.S. 711, 723. Therefore, the re-

straint is violative of the Norris-LaGuardia Act, 29

U.S.C. $108.

Southern Pacific denies the actionable false state-

ment factual premise urged by Union and further

contends that:

(a) the National Agreement superseded the 1961

herder agreements, hence, Article IX is a valid sub-

sisting agreement between the disputing parties, and

bb Wee Saibaba iy bar AR

(b) the dispute arises from its reasonably suscep-

tible implementation of Article IX and is a “minor

dispute” within the jurisdiction of the Adjustment

Board.

Accordingly, the restraint was proper under the

rationale and holdings of International Brotherhood

of Electrical Workers v. Washington Terminal Co.,

473 F.2d 1156 (D. C. Circuit 1972), cited and followed

in Southern Pacific Transportation Co. v. Interna-

tional Brotherhood of Electrical Workers, et al., 474

F.2d 696 (9th Cir. 1973). We agree and affirm.

DISCUSSION AND CONCLUSIONS

Union’s Contention (a)

We decline to burden this opinion with the details

of the high level national character of the collective

bargaining terminating in the National Agreement.

Suffice, we have considered and conclude that Union’s

contention (a) above is without merit in fact and at

law.

Union’s Contention (b)

Manifestly the survival of this contention rests

wholly and solely upon the factual picture presented

by the evidentiary record. Our search of the record

discloses that on June 31, 1972, after the agreement

was signed, John Burge, General Chairman of Union,

on Southern Pacifie’s lines, contended for the first

time to L. D. Bush, Assistant Manager of Labor Re-

lations for Southern Pacific, that Union believed Ar-

ticle [IX was not national in scope and did not apply

eee

to Southern Pacific as it did to other railroads, and

that the 1961 agreement was still in effect, relying on

two short in duration bargaining telephone conversa-

tions had on or about August 16, 1971, first, between

Mr. Biaggini and Mr. Luna, as President of Union,

and secondly, between Mr. Biaggini and Mr. Burge.

The substance of those two telephone conversations is

reflected only through the affidavit form averments of

the parties to the telephone conversations. The aver-

ments are in conflict as to the exact statements made

by Mr. Biaggini.

On their fact, the claimed conversations, viewed in

a light most favorable to the union, do not support

its claims. They relate only to the manner in which

Southern Pacific proposed to implement the terms of

Article IX, once it became effective. There was no

misunderstanding as to what Article IX says. Thus

the conversations relate only to the meaning of the

language of Article IX as it applies to Southern

Pacific and its union employees. The union does not

seek rescission or reformation of Article IX. It

claims that, as between Southern Pacific and the

union, Article IX does not exist. This is nonsense.

The District Court found and concluded “that the

disputes and grievances which are the basis of

[Union's] strike and work stoppage do not concern

changes in agreements, but instead concern the inter-

pretation and application of existing agreements

(italics supplied) covering rates of pay, rules and

working conditions and are minor disputes for which

xiv

[Union has] an appropriate administrative procedure

for handling with [Southern Pacific].”

Finally, we conclude that:

(1) The District Court’s finding is not clearly er-

roneous. Rule 52(a), Federal Rules of Civil Proce-

dure.

(2) The National Agreement superseded the 1961

herder agreements and that Article IX thereof is a

valid subsisting agreement between the parties hereto.

(3) “[{Article [IX is] reasonable susceptible to the

interpretation sought [implementation thereof] by

[Southern Pacific]” and the District Court’s conclu-

sion that the dispute leading to the strike involved

herein is a minor dispute suitable for resolution by

the Adjustment Board is right and sound. Jnterna-

tional at 1173.

AFFIRMED.

Ce eet Se