Appendix — Ex parte Cassidy

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United States Court of Appeals for the

District of Columbia

APRIL TERM, 1939.

No. 7465

THE WASHINGTON TERMINAL COMPANY,

APPELLANT,

vs.

F. E. BOSWELL, E. R. BURKHEAD, R. R. BRIDGES,

H. L. SCHUYLER, J. H. SMALLWOOD, E. J.

COUGHLIN, F. J. CHRISMORE, G. J. VAT ES, B.

B. YATES, JAMES G. EARLY, H. L. UTZ, L. W.

THOMPSON, H. I. KINGMAN, W. H. McCOY, W.

K. HARMAN, H. M. BEALL, C. M. ABELL, W. L.

GROOMES, W. G. GAGE, N. E. KINGMAN, C. E.

THORNE, L. G. FROCKE, H. S. YATES, H. H.

WELCH, N. A. KELLY, F. C. BRANIGAN, R.

EDELIN, R. G. MOLER, R. CARROLL, C. L. YEW,

J. E. BROWN, L. H. CRAVEN, C. B. DIEDRICH, J.

T. GREENE, JOHN A. MURPHY, J. F. MITCHELL,

R. H. AYLOR, C. C. EVANS, H. E. JONES, R. L.

MATTINGLY, 0. W. SHEETS, W. L. STEWART,

R. C. THOMAS, R. A. MILLION, C. M. GREENE,

T. E. SMITH, T. L. MATTHEWS, T. E. BOLEN, C.

C. WALSH, A. S. TALBOTT, P. F. CRAVEN, M. J.

PALMISANO, C. T. CARTER, F. A. BABCOCK,

APPELLEES.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR

THE DISTRICT OF COLUMBIA,

Caption ..cccccsscseccvccccccvcccccvecvcsccesscesesseces A 1

ii INDEX CONTINUED

Original Print

...e tees eee eee eee 19 20

„„ „„ „„ 32 33

. „ „„ „6666666666 39 40

„ * 6% „„ „4 „14 43 44

Answer of defendant˖ n 54 55

Order assigning defenses for advance hearing.......... 62 61

Memorandum brief of defendants .............+.++++- 63 63

„„en „ 63 63

Memorandum brieeee „ 68 67

Plaintiff 's memorandum of points and authorities, Ke.. 159 159

Table of cont enn 159 159

Memorandum of points and authorities 166 166

Defendant 's memorandum of points and authorities, Ke. 234 234

.be denen 235 235

Memorandum of points and authorities ........... 236 236

Transcript of argument᷑tt 261 261

A „„ 261 261

Proceedings May 15, 193•ͥ9ͥ-.u:- 262 261

Proceedings May 16, 1939 ..........-. 6 „%%66 666 312 290

Order dismissing complaint 377 326

Notice of appeeaa 377 326

Memorandum: Cost bond (6250) on appeal—filed...... 377 326

Docket nt „„ 378 327

Designation of recorlgl lll ·kꝗ- 379 328

Clerk’s certifleate „ 328

Proceedings in United States Court of Appeals for the District of Co-

U vee ceugeresesceuesserserser ee 330

Minute entry of argument and Submission 330

Opinion, Rutledge, JJJJJJ) ... 331

Dissenting opinion, Stephens, JJ... 348

Judgmee 4 „„„„„ͤd 382

Designation of record ji... 382

Clerk’s certiflienalnte (omitted in printing). 383

Order allowing certiorari ........6-seeeereeeereer reer reeseeeeeres 384

—1337

United States Court of Appeals for the

District of Columbia

a. District Court of the United States for the

District of Columbia

Civil Action No. 1165

Tue Wasuineton TERMINAL Company, Plaintiff,

vs.

F. E. Boswe.u, E. R. Burxueap, R. R. Bawess, er AL.,

Defendants.

Unrrep Srates or AMERICA,

District of Columbia, ss:

BE IT REMEMBERED, that in the District Court of the

United States for the District of Columbia, at the

City of Washington, in said District, at the times

hereinafter mentioned, the following papers were

filed and proceedings had, in the above-entitled

cause, to wit: N

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plaintiff under a certain contract of February Ist, 1923, hereafter more

specifically referred to in paragraph 4 hereof.

2. Plaintiff is a corporation duly incorporated and existing under

the laws of the United States (Act of February 12, 1901, 31 Stat. 779;

Act of February 28, 1903, 32 Stat. 773) ; is a resident of the District of

Columbia, having its principal office and place of business in the Dis-

trict of Columbia located at Union Station, Massachusetts Avenue,

North East, Washington, D. C.; and is engaged in the operation and

management of a railroad terminal in the City of Washington.

3. Defendants are employees of the plaintiff performing service in

the District of Columbia on properties of the plaintiff as enginemen

and/or firemen engaged in operating or firing plaintiff’s vard-engines

which perform switching service in and about said Terminal. Defen-

dants reside at the places listed opposite the name of each defendant

as follows:

( 1) F. E. Boswell, residing at 21 Franklin, Rogers Heights, Md.

E. R. Burkhead, residing at 1650 W. Virginia Ave., N. E., Apt. #2,

„Chrismore, residing at 1326 Emerson St., N. E., Washington,

L. Utz, residing at 3742 Ist St., S. E., Washingto i 10 D. C.

W. Thompson, residing at 25 Bayly Ave., Hyatts rille, Md.

H. I. Kingman, residing at 830 Valley St., Seat Pleasant, Md.

H. McCoy, residing at 819 Bayly Ave., Hyattsville, Md.

K. Harman, residing at 120 W St., N. E., Washington, D. C.

M. Beall, residing at 26 Q St., N. E., Washington, D. C.

M. Abell, residing at 1312 A St., S. E., W n, D. C.

L. Groomes, residing at 1316 Euclid St., N. W., Apt. No. 1,

Gage, residing at 3753 W St., N. W., Washington, D. C.

Kingman, residing at 830 Valley St., Seat Pleasant, Md.

Thorne, residing at Oxon Hill, Md.

Frocke, residing at 404 G St., N. E., Washington, D. C.

Vates, residing at 1712 C St., N. E., Washington, D. C.

elly, residing at 135 12th St., N. E., Washington, D. C.

ranigan, residing at 4205 20th St., N. E., Washington, D. C.

lin, residing at

. Moler, residing at 404 G St., N. E., Washington, D. C.

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Greene, residing at 1422 F St., N. E., Washington, D. C.

n A. Murphy, residing at 931 7th St., N. E., Washington, D. C.

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the City of Washington have entered into or departed from said Union

Station.

entering and leaving said passenger station.

8. The movement of loaded passenger trains from points outside

of Washington into the Washington Union Station, from the Washing-

ton Union Station to points outside of Washington, and through the

Washington Union Station from a point outside of Washington to an-

other point, are performed and have always, since the opening of the

Terminal for general use on or about November 17, 1907, been per-

formed exclusively by road engines manned by road engine crews em-

ployed by said Tenant Lines.

9. When passenger trains commence or terminate their runs at

Washington the road engine crews of the Tenant Lines are required

and always have been required by the Tenant Lines to deliver the road

engine to the enginehouse at the end of a run and to bring the road

engine from the enginehouse to the Station at the commencement of a

run, respectively. Said road engines when so operated over the plain-

tiff’s tracks between the Station and the enginehouse are and always

have been manned by road engine crews employed by the Tenant Lines.

10. In addition to the movement of loaded passenger trains into,

out of, and through the Washington Union Passenger Station, certain

other movements of equipment take place over the tracks of the plain-

tiff, as follows: Empty passenger trains which have discharged their

passengers at the Station are moved to the storage yard; trains of

empty passenger cars are moved from the storage yard to the Station

for the purpose of taking on passengers and leaving for their destina-

tion; where trains of passenger cars have come into the Station one or

more cars are sometimes ent off from the head end of said train and

removed in a single movement to some designated track; where a train

of passenger cars is standing in the Station before departure one or

more cars are sometimes moved from another track against the head

end of such train and coupled on to form a part of said train on its

journey over the road; when trains of passenger cars have come into

the Station and discharged their passengers, said empty trains are

sometimes moved a sufficient distance to permit the road engine which

has brought such train into the Station to be uncoupled from the

train and proceed by a crossover movement to another track. Many

movements of the kinds heretofore described in this paragraph are and

always have been, since the commencement of operation of said ter-

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16. Said ‘‘Regulations and Rates of Pay for the Government of

Nremen of June 1, 1910 (Exhibit A), Regulations and Rates of Pay

for the Government of Enginemen’’ of September 1, 1911 (Exhibit B),

“Schedule of Rules and Rates of Pay for Enginemen, Firemen and

Yardmen’’ of December 1, 1919 (Exhibit C), and Schedule of Rules

and Rates of Pay for Enginemen and Firemen’’ of February 1, 1923

(Exhibit D), all contain substantially similar provisions establishing

certain rights of seniority as between plaintiff’s employes belonging

to each respective class covered by said regulations or schedules, said

provisions, among other things, entitling the employes of a given class

to vacancies and new runs in the order of seniority of the applicants,

providing for seniority as a factor in promotion and according recogni-

tion in similar respects to length of service in a particular employment,

said provisions being more specifically identified by reference to the

Exhibits attached hereto as follows:

Exhibit B, phs 1, 2, 5, 19, 21, 22, 24

Exhibit C, Article 8, Article 9

Exhibit D, Article 8, Article 9

17. At the date when the first of said above mentioned regulations

and schedules, to wit, the regulations of June 1, 1910 (Exhibit A) went

into effect, and continuously thereafter during the entire period when

said various regulations and schedules above referred to were succes-

sively in force and effect, and continuously during the period since said

schedule of February 1, 1923, (Exhibit D) has been in effect, the uni-

form and continuous usage and practice has been for movements of the

character described in paragrapi: 10 above to be made by road engines

manned by road crews employed by the Tenant Lines whenever in the

judgment of plaintiff’s managing officials efficiency or promptness in the

operation of the Terminal was thereby promoted, and a large propor-

tion of such movements have always been and are being so performed

by the use of road engines manned by road engine crews employed by

said Tenant Lines.

18. By Act of Congress of June 21, 1934, U. S. C. A. Title 45, Sec.

153, entitled ‘‘An Act to Amend the Railway Labor Act Approved May

20, 1926, and to Provide for the Prompt Disposition of Disputes Be-

tween Carriers and Their Employes”’, there was established a Board

known as the National Railroad Adjustment Board’’ with jurisdiction

over disputes growing out of the interpretation or application of agree-

ments between railroads and their employes concerning rates of pay,

rules or working conditions after such disputes shall have been handled

by negotiations up to and including the chief operating officer of the

carrier designated to handle such disputes in the event that such nego-

tiations shall have failed to result in adjustment. It was further pro-

vided in said Act that said Adjustment Board should be composed of

four divisions of which the First Division should have jurisdiction over

disputes involving yard and train service employes, including engin-

eers, firemen, conductors, trainmen, and yard service employes. It was

provided that said First Division should consist of ten members, five

of whom should be selected and designated by the carriers and five of

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+ (29, Notwithstanding that none of the defendants herein has insti-

tuted any proceeding in any competent court under section 3 (p) of said

Railway Labor Act wherein plaintiff would have opportunity and be

entitled to show that the defendants do not have any right under said

contract of February 1, 1923 (Exhibit D) or otherwise, to per-

form movements of the character described in paragraph 10

<bove, and wherein plaintiff might pray said court to set aside

said order of the National Railroad Adjustment Board, First

Division, of October 24, 1938, as unlawful, invalid and in excess

of the jurisdiction of said Board, none-the-less said defendants and

each of them have, beginning November 23, 1938, presented, and are

continuing to present to plaintiff claims and demands for sums of

money other than the full day’s wages which said defendants earn for

each day on which they actually do any work, said demands being based

upon their alleged right to perform movements of the character de-

seribed in paragraph 10 above, which movements they are not in fact

performing but which are being performed by road engine crews of the

Tenant Lines. Said demands so made upon the plaintiff by defendants

are in the nature of claims for penalty payments and are in excess of

the amounts which such defendants would earn if they actually per-

formed work of the character to which they claim they are entitied,

many suck demands being for another full day’s pay in addition to the

full day’s pay which claimants are already earning, said claim for such

extra day’s pay being based upon the fact that the claimant has not

been given an opportunity to perform some one specific movement of

the character mentioned in paragraph 10 above, the performance of

which movement would involve only a few minutes work. Such claims

and demands are rapidly accumulating from day to day and already

amount for the period beginning November 23, 1938, to a total of ap-

proximately $7,500.00 or at the rate of approximately $80,000.00 per

annum.

30. Said claim of defendants that yard engine crews employed by

plaintiff have an exclusive right to perform movements of the char-

acter described in paragraph 10 above, on which claim the demands of

the defendants for the money payments mentioned in paragraph 28

above are based, is not legally supported by the provisions of said

contract of February 1, 1923, above referred to (Plaintiff Exhibit D),

or any other contract between plaintiff and defendants, or to the bene-

fits of which defendants are entitled.

31. Said claim of defendants that yard engine crews employed by

plaintiff have an exclusive right to perform such work is not legally

supported by said award and order of said National Railroad Adjust-

ment Board of October 24, 1938, because said award and order insofar

as they purport or attempt to create such a right are unlawful, invalid,

void and in excess of the jurisdiction of said Board for the following

reasons :

(a) Said award and order purport to establish rights and impose

obligations not founded upon any contract between the plaintiff and

its employes, but are contrary to and in conflict with said contract of

February 1, 1923 (Plaintiff Exhibit D), and amount to an attempt by

said Board to impose upon plaintiff and its employees a new and dif-

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time by proper judicial construction of its rights and liabilities under

its contract with the defendants would, if necessary, be enabled by

making readjustments of its operating arrangements to fulfill its

obligations to defendants at less expense than by incurring the heavy

penalty payments which the defendants are now demanding. Plaintiff

further avers that so long as the defendants continue to make such

demands without instituting legal proceedings wherein the validity of

such demands can be adjudicated, and so long as the present contro-

versy between the plaintiff and defendants with respect to their respec-

tive rights and liabilities under the contract which exists between them

remain without judicial determination, a serious impediment exists to

‘the proper and adequate fulfillment of plaintiff’s obligation to serve

the publica which may, as a result of delay in securing an adjudication

that will settle such controversy, ultimately impair and interrupt the

performance of such service.

33. The plaintiff avers that by reason of each and all the facts

aforesaid the only remedy of this plaintiff, in order to avoid irre-

parable injury and damage, is to bring this suit in equity in this Honor-

able Court, praying a declaratory judgment or decree on the part of

this Court relative to the actual controversy hereinbefore set out, and

a declaration of the rights and other legal relations of the parties

hereto, with respect to such controversy.

Wherefore, plaintiff prays your Honorable Court to render a

declaratory decree or judgment declaring that the contract between

the plaintiff and the classes of employees of which defendants are mem-

bers, dated February 1, 1923 (Exhibit D hereof) does not give to the

said defendants the right to perform the work of: (a) moving empty

passenger trains which have discharged their passengers at the Station

to the storage yard; (b) moving trains of empty passenger cars

from the Storage Yard to the Station for the purpose of taking on

passengers and leaving for their destination; (c) cutting off one or

more cars from the head end of a train of passenger cars that has

come into the Station and moving the said car or cars in one move- |

ment to a designated track; (d) moving one or more cars from a

track and placing the same against and coupling said car or cars onto

a train of passenger cars standing in the Station so as to form a part

of the said train departing from the Station on its journey over the

the Terminal ;

And further declaring that said Award No. 3115, Docket 5059 and

Order of the National Railroad Adjustment Board, First Division,

Ses Tem Jo Awp MGC ST}

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EXHIBIT A.

THE WASHINGTON TERMINAL COMPANY

REGULATIONS AND RATES OF PAY FOR THE GOVERNMENT

OF FIREMEN

Rares or Pay Errectrve June 1, 1910

Reevtations Error May 1, 1911

Wasutveton TerminaL Firemen.

1. Ability, fitness and seniority entitle firemen to promotion as

opportunity may offer. The Superintendent shall decide whether the

candidate or applicant is qualified therefor. Firemen passed around

for promotion will, if they so desire, be informed, upon request to the

Superintendent, the reason for so doing.

9. A fireman cannot make application for the run that he has

j vacated, but if the run is vacated by the man who fills his vacancy,

may then make application, and his application must be considered.

Demoted enginemen will be given runs to which their seniority entitles

3. Firemen successfully passing the necessary examination for

romotion to enginemen shall receive a letter to that effect, signed by

+ Nremen wil be considered in connection with special duty per-

taining to locomotives.

5. All extra firemen will be run first in, first out.

6. Firemen accepting promotion to official positions may retain

their seniority as firemen.

Firemen in yard service will receive not less than 26 cents per hour.

7. Ten hours or less shall constitute a day; overtime at regular

hourly rates. Overtime to be computed for each employe on the basis

of actual overtime worked or held for duty, allowing time to the nearest

. tenth of an hour.

8. Regularly assigned firemen will not be used for extra service

when competent extra firemen are available.

9, Firemen of single-crewed yard engines will report for duty

within such time to reach the appointed place, and will be paid to the

nearest tenth of an hour, with a maximum of thirty minutes in addi-

— to the regular day's pay for reporting in advance of commencing

's work.

17 5

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longer than 6 hours

no deduetion in pay

or the

is to be calculated from the time fixed f

uired to work

ARTICLE 6.

CaLou.Latine Assignment AND Mal. Peniops.

or fixing the beginning

ours after starting work, without deduction in

ard e

i 4 allowed 20 minutes for lunch, with

or.

8 r

rews will not be

The time f

a unit, without regard to preparatory or indi

will be paid a minimum of eight hours, provided they do not discon-

tinue work of their own accord or are assigned to other duties.

report for duty at the appointed time and will receive one half hour’s

pay in addition to the regular day’s pay for preparatory work. Fire-

men of single or double crewed engines will report for duty within such

time to reach the appointed place and will be paid to the nearest tenth

of an hour with a maximum of thirty minutes in addition to the reg-

ular day’s pay for reporting in advance of commencing work.

(d) Enginemen and Firemen will not be required to report more

than four hours in advance of going on duty, after having been absent.

ARTICLE 12.

Enorng EquipMeEnt.

(a) All engines working regular or extra in the yard shall be

equi with foot-boards and grab irons on the front and rear. Reg-

ularly assigned engines will be furnished with waterproof boxes to the

front for the protection of yardmens’ clothes and lunches.

(b) A squirt hose will be maintained on all yard engines at all

times; water coolers and tin cups will be placed on all engines in yard

service and ice will be furnished from April 1st to October Ist. Awn-

ings will be placed upon all engines in yard service and substantial

ts shall be attached to all engines to afford the Engineman

and protection against inclement weather.

with engines that blow steam to such an extent that the vision of signals

is obscured.

ARTICLE 13.

Crew Consists.

Crews shall consist of a Conductor and at least two Brakemen at

all times.

ARTICLE 14.

Specia, Duty AND YARDMasTER Posrrioxs.

(a) Enginemen and Firemen will be considered in connection with

special 7 43 ꝗ—. to locomotives.

(b) Yard Conductors and Brakemen are eligible to promotion to

the position of Yardmaster and Assistant Yardmaster and will be

given preference in filling such positions.

EMPLOYES COVERED BY THIS SCHEDULE.

ARTICLE 15.

Derinition anp Duties.

(a) The word Vardman' as herein used applies to Conductors,

Brakemen and Switchtenders in yard service of the Washington Ter-

minal Railroad.

* (b) An Outside Hostler is a Hostler who handles engines between

the passenger station and the enginehouse or yards or on main tracks;

and must have at least 18 months’ seniority as a Fireman on the official

roster for Firemen; an Inside Hostler is a Hostler who handles engines

in and about the engine house or within the confines of the engine ter-

minal; the term ‘‘Hostlers’ Helper applies to employees used to

assist outside hostlers.

ARTICLE 22.

Fuves, Lamps, Ero.

(a) No fines shall be imposed upon Enginemen, Firemen or Yard-

men.

(b) Yardmen will not be required to purchase globes or lamps.

ARTICLE 23.

Time Nor ALLOWED.

When time claimed is not allowed, Enginemen, Firemen and Yard-

men will be notified in writing and the reasons given therefor.

ARTICLE 24.

Rest Perniops.

Rest periods will be regulated in accordance with the Federal Stat-

ute known as the Sixteen-Hour Law.’’ Enginemen, Firemen and

Yardmen, who are relieved for rest in compliance with this law, shall

be allowed to resume work when the lawful rest period is up and to

work eight hours or be paid therefor.

DECISIONS OF THE COMMISSION OF EIGHT.

Decision No. 1. _ Effective 7-1-17

ARTICLE NO. 1.

Hours on Dury.

exclusive of the meal hour.

Questions axp Answens, Surrtement B,“ ron THE PURPOSE OF

INFORMATION.

No. 7. Paragraph (c).

x constitutes new work as mentioned in this Article which

stipulates that no new work will be given to a crew where the assign-

(a) pus (8)

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ore ——

r 13. Paragraphs (a), (b), (d) and (e). a

nder the several provisions for meal periods, must they be gi

within the prescribed time!

Answer.

Fes. The lunch period must be given and COMPLETED within

4% and 6 hours.

ARTICLE NO. 3.

(a) Regularly assigned yard crews will each have a fixed starting

time and the starting time of a crew will not be changed without at

least 48 hours’ advance notice.

(b) Where three 8-hour shifts are worked in continuous service

the time for the first shift to begin work will be between 6.8) son pm.

p.m. and 4.00 p.m.; and the third 10.30 p.m.,

and 12.00 midnight.

(e) Where two 8-hour shifts are worked in continuous service the

first shift y be started during any one of the periods named in para-

re two 8 or 9-hour shifts are worked not in continuous ser-

vice the time for the first shift to begin work will be between the hours

of 6.30 a.m. and 10.00 a.m., and the second not later than 10.00 p.m.

ARTICLE NO. 4.

Catouzatine AssIGNMENTS AND Mga PEpiops.

Ruues or Curcaco Jormst AGREEMENT.

effective September 1, 1919, and are written into the schedules of —

ulations for the government of Yard Enginemen and Firemen and

supersede conflicting regulations for the government of Yard Engine-

men and Firemen employed on the Washington Terminal Railroad effec-

tive January 1, 1919, by order of Director General.

Representation Rule:

The right of any Engineer, Fireman or Hostler to have the reg-

— Leer Committee of his organization represent him in the

of his grievances, under the recognized interpretation placed

poe the schedule involved by the officials of the Company and the

ral Committee making the same, is conceded; provided, when a

member of either organization has a grievance, which the local Com-

mittee of his o ization is unable to adjust with the local officers of

the A matter shall be handled by the two General Chair-

men, who work jointly in handling such grievance to its final

ARTICLE 10.

(a) Firemen shall rank on the Firemen’s roster from the date of

their first service as Firemen when called for such service, except as

for any reason the senior eligible Fireman or r to

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enen 0} Sz4SII Sty Jo poatidep eq eee UBUIEILY ON (2)

paved oq 338 Huus op Yous sures ysojo1d ou ‘Zurysod

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1 oya ‘uvureity Joyunt eq} eoupdsrp [Teqs

under requirements of Section (h), a Fireman (or Firemen) should

the date of seniority thus established fix the

the senior i Fireman (or Firemen) due to be pro-

the En-

date of

ARTICLE 11.

from any cause, it becomes necessary to reduce the

the i 6 ing lists on any seniority

may, if they so elect, displace any Fireman their

i r the following conditions:

on will be made so long as those in assigned

ice are earning the equivalent of 4,000 miles

ight, or other service

per month.

That reductions are made they shall be in reverse order

service can earn the equivalent of 4, 800 miles per month; in dashed

or other regular service paying freight rates—the

per month—or in extra service the equivalent

tion of passenger or other assigned service, suf-

i to keep the mileage or equivalent thereof

and 4,800 miles for passenger service,

iles for other regular service, as provided herein.

tional assignments would reduce earnings below

will be effected by requiring the regular as-

the equivalent of 4,800 miles in pas-

r service has been reached.

rstood that after all Engineers who

returned to service as Engineers, this

„ et to further additions.

ons and replacing Firemen upon the ser-

mi shall apply as in the case of Engineers.

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ada 40 NOLLvaad

8 Alu

EXHIBIT D.

THE WASHINGTON TERMINAL COMPANY

SCHEDULE OF

RULES AND RATES OF PAY

FOR

ENGINEMEN AND FIREMEN

(Ix tHe Orsnation or Trains on Excixes Propertep sy Steam on

Ores Morive Pow)

Errective Fesrvary 1, 1923

(EXCEPT AS OTHERWISE SPECIFIED)

ARTICLE 1.

Rares or Pay.

Exorvemen (Effective August 1, 1927.)

Weight on Drivers 5 =

Less than 140,000 pounds . sore $1.065 $5.68 $.71

ee © Se pean. 7275 109 5.68 71

200,000 to 300,000 7425 1.1125 5.68 71 .

300,000 pounds were 765 1.1475 5.85 .7325 1.

Mallets:

Under 275,000 pounds

275,000 pounds and over

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[eqs sjucurusisse ‘eyqvorjovid st 41 SB 10 "oull}

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o m d 0 Mon o AousZ10010 ue ut permbei sy (9) “worsen?

Nene pu our; ye sunoy e (q) eee

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emen PUB UeMIEULZUuG BIyXG en AjINOY eG} enn jrfey-ouO puY

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A ore

5 WIOLLAV

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(b) — three eight-hour shifts are worked in continuous ser-

time

vice, the ti or the first shift to begin work will be between the hours

e 8 80 a. m. and 8.00 a. m.; the second, 2.30 p. m. and 4.00 p. m.; and

the third, 10.30 p. m. and 13.00 midnight.

(e) ere two shifts are worked in continuous service, the first

shift may be started during any one of the periods named in Section

(b).

(d) Where two shifts are worked not in continuous service, the

time for the first shift to begin work will be between the hours of 6.30

a. m. and 10.00 a. m., and the second not later than 10.30 P. m.

(e) Where an independent assignment is worked regularly, the

starting time will be during one of the periods provided in Sections

(b) or (d).

ARTICLE 6.

CaLcuLaTINnG ASSIGNMENT AND Meat Pertops.

The time for fixing the eres of assignments or meal periods

is to be calculated from the time for the crew to begin work as a

unit, without regard to preparatory or individual duties.

ARTICLE 7.

Luyon Tre.

(b) Yard crews

without being allowed 20 minutes for lunch, with no deduction in pay

or time therefor.

(e) An individual engineman, fireman or hostler working through

two shifts is to have one meal period with each. (Effective March

16, 1924.)

ARTICLE 8.

SenioriTy.

(a) Ability, fitness, and seniority entitle Enginemen and Firemen

to promotion as opportunity may offer. Enginemen and Firemen

thirty

the second or third examination, they will hold seniority over any

(e) inemen and Firemen transferred from the P. B. & W. R. R.

and the B. O. R. R. to the Washington Terminal Company will be

— seniority as shown on the official roster of Enginemen dated

ebruary 1, 1912, and Firemen dated May 1, 1911.

(d) A i roster will be 1 adjacent to the Crew Board

and at the ne House, giving dates Enginemen and Firemen en.

tered service, al: the date of their promotion. Men so promoted will

4 their seniority. The classified roster will be revised every six

months.

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0 os uv Aue

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uo ddu Suryeur eotaies Ul uvUeILy 10 UBWOUIsUy

101098 0} ua

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ARTICLE 18.

Resrriorions.

ARTICLE 19.

Service Lerrer.

Enginemen and Firemen who have been in the Company’s service

for six months, will, if they so desire, be given a service letter signed by

the rintendent, when leaving the employment of the Company,

which must sign when cago This letter will indicate the dif-

ferent services performed during employment.

ARTICLE 20.

Trae Nor AuLowep.

When time claimed is not allowed, Enginemen and Firemen will

be notified in writing and the reasons given therefor.

ARTICLE 21.

Rest Pops.

Rest period will be regulated in accordance with the Federal Stat-

ute known as the Sixteen Hour Law. Enginemen and Firemen who

are relieved for rest in compliance with this law, shall be allowed to

resume work when the la rest period is up and to work eight hours

or be paid therefor.

ARTICLE 22.

Duration or Scuepu.e.

Should either the Management or the Enginemen and Firemen

desire to change any or all these regulations, the party desiring to make

the change shall noti e other party in writing of the desired change ;

and no change will made, except by mutual consent, until thirty

days after such nchiee has been given.

FOR THE WASHINGTON TERMINAL

COMPANY:

J. H. Toxon,

Superintendent.

FOR THE EMPLOYEES:

Danivs Harman,

General Chairman.

Brotherhood of Locomo-

tive ineers.

Paul. B. WELL,

General Chairman.

Brotherhood of Locomo-

tive Firemen & Engine-

men.

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— — re ee

JURISDICTION

Fist Drvisi0n : To have jurisdiction over disputes — train-

reraen.

SEconD Division : To have jurisdiction over disputes ——

coach cleaners, power-house employees, and railroad-shop laborers.

Turep Division: To have jurisdiction over disputes involving sta-

tion, tower, and telegraph train dispatchers, maintenance-

of-way men, clerical employees, freight handlers, express, station, and

store employees, signal men, sleeping-car conductors, sleeping-car

porters, and maids and dining-car employees.

Fourra Drvmtox: To have jurisdiction over disputes involving

employees of carriers directly or indirectly engaged in transportation

divisions.

Form or SuBMISSION

Parties: All parties to the dispute must be stated in each sub-

Srarement or Cram: Under this caption the petitioner or peti-

tioners must clearly state the particular question upon which an award

Srarement or Facts: In a „Joint Statement of Facts,“ if pos-

sible, briefly, but fully set forth the controlling facts involved. In

event of inability to agree upon a “Joint Statement of Facts,“ then

each party shall show separately the facts as they respectively believe

them to be.

Posrriox or EMPLOYEES: Under this caption the oy wo must

clearly and briefly set forth all relevant, argumentative i

— or rules involved, if any; and all data submitted in support

of employees position must affirmatively show the same to have been

— 2 to the carrier and made a part of the particular question in

ispute.

Position or Carnien: Under this caption the carrier must properly

and briefly set forth all relevant, argumentative facts, including all

documentary evidence submitted in exhibit form, quoting the agree-

ment or rules involved, if any; and all data submitted in support of

carrier’s position must affirmatively show the same to have been pre-

sented to the * or duly authorized representative thereof and

made a part of J pee question in dispute.

SIGNATURES : submissions must be signed by the parties sub-

mitting the same.

Ex Parte Svsmission: In event of an ex I submission the same

general form of submission is required. e petitioner will serve

written notice — the appropriate Division of the Adjustment Board

of intention to file an ex parte submission on a certain date (thirty

days hence), and at the same time provide the other party with copy

of such notice. For the purpose of identification such notice will state

the question involved give a brief description of the dispute. The

Secretary Af the appropriate Division of the Adjustment rd will

immediately thereupon advise the other party of the receipt of such

notice and request that the submission of such other party be filed with

such Division within the same period of time.

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SaONvuvadd Y

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“Burrvey oy} 30

op pus um oq} 30 serjzed em usa o [[LM een ONp be me Jo

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eq} UIGIIM sotjied i sBurpesdoid ey1pedxe pus aun GA1estod OF,

‘IVaaNGf)

QUOTATION FROM THE MINUTES OF APRIL 27, 1937, SHOW-

ING FURTHER ACTION TAKEN THEREON*

slowing

of hearing.

At the direction of the Division I am sending to the manage.

ment a copy of the employees’ submission, and to the general

chairman a copy of the management’s submission. This is being

done in order that both parties may have an opportunity to study

the submissions prior to the date set for hearing.

— —

. above rules have been continued in effect by the First Division of the National Rail-

road Adjustment Board and are still effective.

regular members and in

ward was rendered.

Referee John A. Lapp when a

FIRST DIVISION

The First Division consisted of the

addition

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piration of five days, be advertised upon the Bulletin Board for a pe-

riod of three days and at the expiration of that time will be given to

the senior Yardman in service making application therefor. Tempo-

rary vacancies created by the advertisement as above, will be likewise

advertised starting on the first day the vacancy is created in each case

and filled in like manner, and so on until all vacancies are filled.

signment or vacancy precludes promotion to that assignment or va-

cancy. A Yardman cannot make application for an assignment that he

has just vacated, but if the assignment is vacated by the man who fills

his vacancy, his application will then be considered.

(d) When working hours of any assignment are changed causing

the assignment to be advertised, the Yardman holding the assignment

prior to the advertisement will be permitted to hold assignment during

the same. When Yardmen are absent for any cause when vacancies

are advertised, they will be permitted to make application for vacancies

occurring during their absence, provided they do so within three days

after returning to work.“

Articles 8 and 9 of the current Schedule of Rules and Rates of Pay

for Enginemen and Firemen, read as follows:

‘* AnTIoLe 8.

‘Seniority. (a) Ability, fitness and seniority entitle Enginemen

and Firemen to promotion as opportunity may offer. Enginemen and

Firemen passed around for promotion will, if they so desire, be in-

(b) Firemen eligible to promotion to Enginemen will be given

three examinations. Failing to pass the first examination, they will

be allowed thirty days to prepare themselves for a second examination

and failing to pass the second examination will be allowed an additional

thirty days to further prepare themselves. If they successfully pass

the second or third examination, they will hold seniority over any jun-

ior Firemen who may have been promoted in the meantime. Failing

to pass the third examination or if they decline examination, the Fire-

men so doing will be dropped to the senior extra Firemen and can only

come up again in his turn. This shall not be retroactive. Firemen en-

titled to promotion, who are injured or unable to take the examination

by reason of sickness, suspension or leave of absence, shall not lose

their turn thereby.

R. R., and the B. & O. R. R. to the Washington Terminal Company will

be given seniority as shown on the official roster of Enginemen dated

February 1, 1912, and Firemen dated May 1, 1911.

(d) A classified roster will be pos adjacent to the Crew Board

and at the Engine House, giving dates Enginemen and Firemen eatered

service, also the date of their promotion. Men so promoted will retain

their seniority. The classified roster will be revised every six months.

(e) In reduction of force and rearrangement of crews consesvent

thereto, seniority of Enginemen and Firemen shall govern. Engine-

men and Firemen relieved from service through reduction in force,

will be given preference in re-employment without loss of seniority

provided they return to service within 30 days from time required.

(Effective Oct. 25, 1927.)

(f) Enginemen and Firemen dismissed from service will lose their

seniority unless reinstated within six months from date of dismissal ;

Enginemen and Firemen leaving the service of their own accord lose

their seniority.

(g) All extra Enginemen and Firemen will be worked first in,

first out, but they will be marked upon the list in the manner in which

—— ET

——— —

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Posrriox or Empioyegs: It is the contention of the Brotherhood

of Locomotive Firemen and Enginemen and the Brotherhood of Rail-

road Trainmen that the contracts or agreements existing between the

Washington Terminal Company and the o izations guarantee the

employes covered by such agreements the richt to } perform the work in

dispute, and that tenant line companies because of these agreements on

the Washington Terminal have no right to make agreements with their

respective employes to perform this service within the Washington

Terminal, nor has the Washington Terminal —— the right to per-

mit or require these tenant line employes to perform this work within

the Washington Terminal.

In support of our position we submit herewith copy of agreement

dated July 27th, 1934, covering manning of construction trains within

the limits of the Washington Terminal during the electrification work

by the Pennsylvania Railroad, signed by the General Chairmen on the

various railroads, who met at the request of the railroads that they

reach an agreement among themselves regarding the manning of this

construction train service. After this agreement was reached it was

, and recognized by the managements in the settlement of dis-

An opportunity for oral argument is requested.

Washington, D. C., July 27, 1934

AGREEMENT.

Ir Is Heresy Acreep, That the Washington Terminal crews will

man all of the trains used in the construction work on the Washington

Terminal rails in connection with the electrification work, and that

R. F. & P. crews will man all of the trains used in construction work

on the R. F. & P. rails (Potomac Yard) in connection with the electrifi-

cation work; that P. R. R. crews will man all assigned crews that might

be assigned to the so-called trouble trains (wire trains) except such

trains as are assigned exclusively to the Washington Terminal or Po-

tomac Yard, such trains to be manned by men holding seniority on the

respective railroads.

Manning of construction trains working on two or more of the rails

of the Pennsylvania R. R., Washington Terminal Co. or R. F. & P.

R. R. will be divided proportionately on a time basis, the basis of time

consut.ed on the respective properties.

(Signed) J. M. McCormick,

W. C. Kxow gs,

H. E. Cong,

W. A. Cup,

General Chairmen, Pennsylvania, R. R.

J. D. Hrrx,

J. K. Wmui1aMson,

H. M. Cousixs,

General Chairmen, R. F. & P. R. R.

R. E. Typrves,

S. W. Hanpy,

General Chairmen, Washington

Terminal Co.

Reply of the Washington Terminal Company to Ex Parte Submis-

sion, Brotherhood of Locomotive Firemen and ge sake and Brother-

hood of Railroad Trainmen versus Washington Terminal Company:

Srarement or Ciam: It is the practice of the Washington Ter-

minal Company to require tenant line road engines, manned by tenant

line road engine crews, to move dead equipment from the depot to the

coach yards, move dead equipment from the coach yards to the depot,

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4. These movements are not only clearly permissible under exist-

ing regulations and agreements but constitute a practice about as old as

Washington Terminal itself, which on November 17th, 1937, was thirty

years old, and have been acquiesced in throughout that long period of

time.

5. February 4th, 1918, the Committee re resenting Yard Trainmen

on Washington Terminal took up with the Management the practice of

Yard Brakemen being used in Back-up service and requested that the

service known as Back-up service on Washington Terminal be per-

formed by competent Conductors. The request of the Employes was

given due consideration and effective April 1st, 1918, nineteen (19)

years ago, it was arranged that Yard Trainmen assigned to Back-up

service would be qualified Conductors and paid Conductox’s rate and

clearly covered oy agreement to perform the service herein complained

of. Such ification and compensation has continued since April

Ist, 1918, and is still in effect.

6. As further evidence of the clear understanding of their acqui-

escence in and the existence of an agreement in Back-up service, invite

attention to Article 16 which was contained in the combined Schedule

of Rules and Rates of Pay for Enginemen, Firemen and Yardmen of

the Washi n Terminal Railroad issued y the United States Rail-

road Administration, effective December ls , 1919. That Article pro-

vided as follows:

„ PHOTS anp Back-up Men.

%a) Back-up men will be classified as Conductors and paid Con-

ductors’ rate.

„%) Enginemen or Firemen used as Pilots will be allowed En-

ginemen’s pay; Yardmen used as Pilots will be allowed Conductors’

pay.

7. Not only are the movements of the character described made as

a matter of right and by force of practice and agreement; the necessity

for them has existed for thirty — years since the opening of the

Terminal in 1907 and because that they were necessary, they were so

recognized and provisions made by agreement for compensation. They

were and are considered necessary to the proper operation of the Ter-

minal and their continuance through the long period of years has only

been interupted to the extent required to meet changed conditions. To

do anything different than this generally accepted ractice would en-

tail an added burden of increased Terminal time of trains and mate-

rially increase movements to such an extent they would prove an inter-

ference with orderly movements through interlockings and produce in-

efficient operation, to the de:riment of the service. It would be particu-

larly prohibitive in times of extraordinary occasions such as holiday

movements and extraordinary travel incident to the Inaugural celebra-

tions of the President of the United States.

8. These questions have been and are still well understood by the

Employes and the Management. Numerous conferences have been had

at which this subject was — Management being impressed

with the apparent attitude of the Employes that their objection was

not so much to the movements being handled by Back-up men and road

engines as to such service being possibly extended to the point where it

would be really hurtful to them. Experience, however, has not shown

this to be a fact.

9. While more recently the Employes have sought to eliminate

these movements regardless of the fact that they have been sanctioned

by custom and practice and covered by agreement extending over many

years, together with regulations and working agreements, the Manage-

ment does not consider there is any proper claim. There is not and has

not been any violation of agreement and what is being done is by cus-

tom, practice and agreement, varying in existence to as much as thirty

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terested employes under agreement properly 3 — and are clearly

permissible under current existing schedule. This is only another way

of stating that there is involved only a proper exercise of the rights of

= Management and men employed in making the movements re-

erred to.

12. At a conference held on December 2nd, 1936, between Messrs.

A. J. Lovell, Vice President, Brotherhood of Locomotive Firemen and

Enginemen, and J. A. Farquharson, National islative resenta-

tive of Brotherhood of Railroad Trainmen, and Mr. C. W. way,

Chairman of the Board of Managers of the Terminal Company, discus-

sion was had on certain subjects in question, and following that con-

ference, by letter dated Dec. 14th, 1936, Mr. Galloway advised the said

Lovell and Farquharson, that at their request, that pick-ups and set-

overs be limited to one movement, which refers to the setting over and

picking up of head end of passenger trans, had been accepted and agreed

to and that instructions had been issued accordingly ; such amendment

in the — relating to this movement has been in effect since said

date. From this it is clear that the practice was changed by agreement

with the Chairman of the Board of Managers and in full force, and it

amounted to change in contract—the creation of a new agreement so far

as this item is concerned—and not the recognition of any violation of

any agreement then in existence. This fairly illustrates the difference

between violations of agreements in existence and the creation of new

agreements by the way of amendments to old agreements long recog-

nized by acquiescence, as in this case.

13. It is most respectfully insisted that what is actually being at-

tempted in this case is to ask your Board to make a new agreement.

Contracts may exist by acts of the parties, we gomme carried out and

acquiesced in over a period of many years, just as effectively as if the

terms were reduced to writing and signed. This is the case here. A

contract by acquiescence of all the parties has been in existence for 30

years. Your Board is asked to create a new contract. Of course it is

— ey that is not a function of your Board, but of the Mediation

14. This Company feels your Board is without jurisdiction to

chanye the practices that have been in existence for thirty years and

acknowledged by the organizations now appealing to your Board by

the fact that they negotiated the agreement to pay employes repre-

sented by them when used in such service. It therefore cannot be

claimed that there has been any violation of the working agreement, and

the fact that in all the years they have worked under this agreement

there has been no question until recently, and it is for this reason the

Washington Terminal feels your Board is without jurisdiction, because

if there is any question it is one that should be negotiated in the same

form and manner that the existing rule was negotiated, and with the

protection of the law under the Amended Railway Labor Act. In this

case the agreement is not in question; they are asking your Board to

change an agreement. Therefore, there can be no dispute so long as

agreement is complied with, about which we repeat there is no ques-

on.

15. It is admitted that the agreement exhibited with the Employes’

submission made on July 27, 1934, was entered into to cover the elec-

trifieation of certain tracks within the Washington Terminal area for

Pennsylvania Railroad exclusive electric operation. The very fact that

such an ent was made to cover this limited purpose is conclusive

evidence that the practice, which had existed prior to that time and still

exists in general amounted to an agreement by acquiescence well recog-

nized by all parties in interest.

16. The Carrier respectfully calls attention of this Board to the

ag of using Railroads to use the tracks and the facilities of the

ashington Terminal Company. It has been recognized and observed

by Carriers and Employes that under trackage agreements where one

uses the tracks of another Road, the rights of employes of the

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WASH. TERM. CO. VS. BOSWELL, BUBKHEAD, ET AL.

Answer of Defendants

Filed February 15 1939

First Defense

The defendants say that the allegations of the complaint

fail to state a cause of action against the defendants.

Second Defense

The defendants say that the allegations of the complaint

do not state a cause of action appropriate for the granting

of a declaratory judgment against the defendants because:

(1) The complaint fails to show the existence of an actual

controversy between the plaintiff and the defendants.

(2) The complaint affirmatively shows that there exists a

remedy specially provided by statute for this type of case.

(3) The complaint affirmatively shows that the purpose

of the plaintiff in filing this action was to secure a judicial

review of a decision of an administrative board, a purpose

not contemplated by, nor permitted under, the Declaratory

Judgments Act.

(4) The complaint fails to show the existence of any stat-

ute or order about to be enforced against the plaintiff, or

from the enforcement of which any damage will result to

the plaintiff.

Third Defense

1. The defendants admit the truth of the allegations con-

tained in Paragraphs 2, 3, 5, 6, 7, 8, 11, 12, 13, 14,

55 15, 16, 19, 21, 24, 26 and 27 of the complaint, and ad-

mit that the Exhibits attached to the complaint are

true and correct copies of various documents as indicated

by their headings.

2. The defendants deny the allegations contained in Para-

graphs 30, 31, 32 and 33 of the complaint.

3. The defendants have no knowledge as to the truth or

falsity of the allegations contained in Paragraphs 17, 23

and 25 of the complaint, and hence deny the same for want

of such knowledge.

56 THE WASHINGTON TERMINAL COMPANY vs.

4. Further answering, the defendants say that on Feb-

ruary 1, 1923 there was executed by and between the plain-

tiff and certain persons employed by it as locomotive en-

ginemen and firemen a certain agreement known as a

„Schedule of Rules and Rates of Pay for Enginemen

and Firemen’’. The said employees were represented

in the premises by the Brotherhood of Locomotive Engi-

neers and the Brotherhotd of Locomotive Firemen and En-

ginemen, the said two Brotherhoods acting through the

then General Chairmen of their local organizations. The

said Schedule constituted an agreement concerning the

rates of pay, rules and working conditions of the said

classes of employees. Exhibit D’’, attached to the com-

plaint, is a true copy of this Schedule.

5. Articles 8 and 9 of the said Schedule guarantees to

the said classes of employees, and to the defendants as mem-

bers of the said classes, certain rights in connection with

their employment regarding promotions, furloughs (in the

event of reduction of forces), reinstatements (in the event

of increase of forces after prior reduction), choice of posi-

tions, filling of vacancies, and the filling of new positions,

The said rights consisted of certain recognized preferences

among the individual employees in regard to the above

matters accorded to them in ratio of their respective periods

of service. These rights were, and are, termed ‘‘seniority

rights’’.

56 6. Shortly after the execution of this Agreement

there arose a dispute between the plaintiff and the

defendants, members of the classes of engineers and fire-

men, as to the correct interpretation and application of the

terms thereof. The defendants contended, and still con-

tend, and here allege, that the true intent and purpose of

the said Agreement was, and is, to provide that all work

generally classified as that of yard engineers or firemen

performed upon the tracks of the plaintiff, was and is to

be done by the employees of the plaintiff exclusively, they

to have rights to, and choice of, the said work in ratio of

seniority. The plaintiff, however contended, and still con-

tends that it has the right under this Agreement to secure

the services of the employees of other railroads to perform

certain of its functions for it, regardless of the seniority

rights of the defendants.

= a aS. awa US eS Oe *

BOSWELL, BURKHEAD, BRIDGES, ET AL. 57

7. Acting on this interpretation of the Agreement, the

plaintiff maintained, and still maintains, the following prac-

ice:

As alleged in Paragraphs 5 and 7 of the complaint the

entire business of the plaintiff consists in the operation

of a passenger terminal in the City of Washington, D. C.,

into which run the trains of several main line railroads,

termed the Tenant Lines. These lines operate passenger

trains from, into and through this terminal, using their

own road engines and crews for the purpose. The prac-

tice of the plaintiff, which gave rise to the dispute in ques-

tion, was and is to permit and require the train crews of the

Tenant Lines to use the said road engines in the moving of

empty and loaded cars and trains of cars from place to

place in the yards of the plaintiff, when such movement

does not constitute a portion of any through train run, but

does constitute a switching service in the said yards.

57 The defendants say further in this connection that

at present, and for a long period of time in the past,

the plaintiff and the Tenant Lines have recognized that the

services described above are properly services of and for

the plaintiff, and which it could be required to render. It

has been, and now is, the practice to keep a strict account-

ing between the parties of the amount and value of such

services, and periodically the plaintiff is required to pay,

and does pay to the Tenant Lines, sums equal to the rea-

sonable value of said services.

8. Attempts were made from time to time, subsequent to

1923, to adjust this dispute but without success.

9. On June 21, 1934 the Congress of the United States

enacted a statute known as the Railway Labor Act (45

U. S. C., Section 151-163 inclusive), amending an earlier

statute known by the same name. In Section Three of the

said Act (45 U. S. C., Section 153) provision was made for

the establishment of a tribunal known as the National Rail-

road Adjustment Board. The said Board was given juris-

diction to hear, decide and adjust ‘‘disputes between an em-

ployee or group of employees and a carrier or carriers

growing out of grievances, or out of the interpretation or

application of agreements concerning rates of pay, rules,

or working conditions. (U. S. C. Title 45, 153 i.)

58 THE WASHINGTON TERMINAL COMPANY vs.

10. The said statute further provided that the said Board

should be divided into four divisions. The First Division

to have jurisdiction over disputes involving employees in

train and yard service, and that the said First Division

should consist of ten members, five to be selected by the

carriers generally, and five by the national organizations

of employees whose members were employed in the service

indicated. Subsequent to the passage of the said

58 statute the employees, acting through their national

organizations, and the carriers (the plaintiff among

others) acting through their national association, selected

their representatives as members of the National Railroad

Adjustment Board, First Division, and the said Board was

organized and entered upon the performance of its fune-

tions.

11. It was further provided by the said Statute that all

decisions of each Division of the said National Railroad

Adjustment Board should be by a majority vote of its

members, but in the event that the members should be evenly

divided as to any case, the Division in question should have

authority to select a neutral referee to sit with it and ren-

der a decision.

12. After the enactment of the Railway Labor Act the

defendants, through their representatives, made further ef-

forts to adjust with the plaintiff the dispute above de-

scribed, which had been pending since 1923. These efforts

met with no success, and the defendants requested the

plaintiff to join with them in a joint submission of the dis-

pute to the National Railroad Adjustment Board, First

Division. This the plaintiff refused to do. Thereafter, as

authorized by the provisions of the Railway Labor Act, the

defendants, through their representatives, themselves pre-

pared and filed with the National Railroad Adjustment

Board, First Division, their submission of the dispute. The

plaintiff was duly notified of this fact, and it thereupon

filed its own submission, stating fully its contentions in

regard to the matter. The said submissions contained any

and all facts, data and arguments which the parties con-

sidered relevant to the issue. After due notice and hear-

ing, at which representatives of both the plaintiff and de-

fendants were present, the National Railroad Adjustment

Board, First Division, found itself unable to agree upon an

r ee Oe

TM SB Seer ene * Fe TF i" ®@ 7 oN @ eye

reer

BOSWELL, BURKHEAD, BRIDGES, ET AL. 59

award, and called in a neutral referee as authorized

59 by the Railway Labor Act. The said referee exam-

ined and passed upon the contentions of the parties,

and decided the dispute in favor of the defendants. The

said decision was embodied in an award of the said Board,

a copy of which is attached to the complaint as Exhibit

Ff”. Thereafter the said National Railroad Adjustment

Board, First Division, issued its order to the plaintiff com-

manding it to comply with the terms of the said Award, all

as set forth in Paragraph 27 of the complaint.

13. After the issuance of the said order the defendants

requested the plaintiff to comply with, and apply the said

order of the National Railroad Adjustment Board, First

Division. This the plaintiff refused, and still refuses, to

do. Further efforts have been made by the defendants

since the issuance of the said order to adjust their differ-

ences with the plaintiff by negotiations, but without suc-

cess. Thereupon the individual defendants have from time

to time filed with the plaintiff claims for compensation for

work which, under a proper interpretation of the Agree-

ment of February 1, 1923, and under the order of the Na-

tional Railroad Adjustment Board, was rightfully work

which the defendants should have performed, and for which

they should have been compensated, but the performance of

which has been secured by the plaintiff through the employ-

ment of road crews of the Tenant Lines.

14. Section Three, Paragraph m. of the Railway Labor

Act (45 U. S. C. Section 153 m.) declares that any awards

or orders of any Division of the National Railroad Adjust-

ment Board shall be ‘‘final and binding upon both parties

to the dispute except insofar as they shall contain a money

award“. The Board, however, is given no power to enforce

its awards or orders by process, and no power to institute

legal proceedings looking to their enforcement. In case

any carrier refuses to comply with any order of any

60 Division of-the Board, it is provided that:

„The petitioner, or any person for whose benefit

such order was made, may file in the District Court of the

United States for the district in which he resides, or in

which is located the principal office of the carrier, or

through which the carrier operates, a petition setting forth

briefly the causes for which he claims relief, and the order

60 THE WASHINGTON TERMINAL COMPANY vs.

of the Division of the Adjustment Board in the premises,”

(U. S. C. Title 45, Section 153, p.)

It is further provided in this same paragraph as follows:

„Such suit in the District Court of the United States

shall proceed in all respect as other civil suits, except that

on the trial of such suit the findings and order of the divi-

sion of the Adjustment Foard shall be prima facie evidence

of the facts therein stated, and except that the petitioner

shall not be liable for costs in the district court nor for

costs at any subsequent stage of the proceedings, unless

they accrue upon his appeal, and such costs shall be paid

out of the appropriation for the expenses of the courts of

the United States. If the petitioner shall finally prevail he

shall be allowed a reasonable attorney’s fee, to be taxed

and collected as a part of the costs of the suit.’’

It is also provided that the right to bring any such action

for enforcement is limited to two years.

The defendants say that the true intent and purpose of

the provisions of the Railway Labor Act above mentioned

in this paragraph is to provide a method for the enforee-

ment, and a provision for the judicial review of awards

and orders of the National Railroad Adjustment Board,

especially adapted to the type of case, and that such method

of enforcement and review is exclusive.

15. Further answering the defendants deny each and

every allegation of the complaint not heretofore denied, or

denied for want of knowledge, or not admitted herein to

be true.

16. The defendants therefore say that the plaintiff is

entitled to no relief in the premises, and in particular is

entitled to no relief by declaratory judgment be-

61 cause:

a. The Schedule or Agreement of February 1, 1923,

properly interpreted, does not permit the practice for the

continuance of which the plaintiff is contending, i. e., the

practice of using road engines and crews for the purpose

of moving cars or trains of cars upon the tracks of the

plaintiff when such movement forms no part of the through

run of any train.

b. There is no actual controversy between the parties

hereto inasmuch as any dispute or controversy which may

aorere ans Ss 2 ft ee OS we

™

BOSWELL, BURKHEAN, BRIDGES, ET AL. 61

have existed in the past has been decided and adjudicated

by the National Railroad Adjustment Board, a tribunal

having special jurisdiction by statute to decide such dis-

putes or controversies.

e. The practice and procedure of the National Railroad

Adjustment Board in this case secured to the plaintiff a

full and fair hearing, and a full and fair opportunity to

present all facts and arguments which it considered rele-

vant to the case.

d. Remedy by declaratory judgment cannot be invoked

to review a decision of an administrative tribunal where a

specific means of review has been provided by statute for

the type of case in question.

62 WHEREFORE, the defendants pray judgment of

the Court that the complaint of the plaintiff be denied

and dismissed at the plaintiff’s costs.

FRANK L. MULHOLLAND

CLARENCE M. MULHOLLAND

WILLARD H. McEWEN

HAROLD C. HEISS

RUSSELL B. DAY

WILLIAM E. WILLIS

Attorneys for the Defendants.

Order Assigning Defenses for Advance Hearing

Filed March 2- 1939

Upon consideration of the plaintiff’s motion to call up

defenses for preliminary hearing, filed herein on February

21, 1939;

It is ORDERED this second day of March, 1939, that de-

fendants file their points and authorities in support of

their First Defense and in support of their Second De-

fense, incorporated in their said answer of February 15,

1939, on or before March 20, 1939, and that the plaintiff file

its points and authorities in opposition thereto within

fourteen (14) days thereafter, and that said First Defense

62 THE WASHINGTON TERMINAL COMPANY vs.

and said Second Defense thereafter shall be placed on the

Motions Calendar for hearing in regular order.

JENNINGS BAILEY

Justice.

We consent:

FRANK L. MULHOLLAND

WILLIAM E. WILLIS

Attorneys for defendants.

SYDNEY R. PRINCE, JR.

Attorney for plaintiff.

BOSWELL, BURKHEAD, BRIDGES, ET AL. 63

63 MEMORANDUM BRIEF OF DEFENDANTS

Filed March 20, 1939

* * *

INDEX.

Original Copy Print

ee. elne 1 68 67

TD. 2 69 68

aun Of %% „„ 7 74 73

Argumenn r 11 78 77

I. A Declaratory Judgment will not be granted as a

substitute for another remedy prescribed by statute

for the particular type of case ........+.++-005+ 11 78 77

-L 11 78 77

Procedure prescribed by the Railway Labor Act. 17 84 83

Typo Of . „0 18 85 84

Organization and Development of National

Railroad Adjusement Board ............. 20 87 86

II. A Declaratory Judgment will not be granted as a

means of reviewing the decision of another tribunal 45 112 111

III. A Declaratory Judgment passing upon the valid-

ity of an administrative order will not be granted

where the plaintiff is not imperiled by the order... 49 116 115

IV. The Railway Labor Act does not vest judicial power

in the National Railroad Adjustment Board..... 54 121 120

No cause of action of any kind is stated by the

CUES. « «os vcwsceveeeseeseveseveseeves 71 138 137

rn 72 139 138

64 THE WASHINGTON TERMINAL COMPANY VS.

64 APPENDIX I.

Original Copy Print

Excerpts from Railway Labor Act as amended June 21,

bene e e e e eee 75 142 141

APPENDIX II.

Excerpts from Memorandum of Understanding Incorpo-

rated in General Order No. 13 of the Federal Diree-

tor-General of Railroads issued March 22, 1918

APPENDIX III.

Excerpts from Agreement Establishing Southeastern Re-

gional Board of Adjustment under the Provisions

of Title III of the Transportation Act of 1920

APPENDIX IV.

Excerpts from the Interstate Commerce Act and the

Packers and Stockyards Act

Interstate Commerce Act

Packers and Stockyards Act

TABLE or CASES

Aetna Life Insurance Co. vs. Quarles, 92 Fed. (2d),

WW... „„on

Alabam 's Freight Co. vs. Hunt, 29 Ariz. 491

Back’s Gdn. vs. Bardo, 234 Ky. 211; 27 8. W. (2d),

Atl. 571

Central High School Athletic Asso. vs. City of Grand

Rapids, 274 Mich. 147; 264 N. W. 322

65 TABLE or CASES

City of Erie vs. Phillips, 323 Pa. 527; 187 Atl. 203

Crowell vs. Benson, 285 U. 8. 22

BOSWELL, BURKHEAD, BRIDGES, ET AL.

Davis vs. American Foundry Equipment Co., 94 Fed. (2d),

441.

E. Edelmann 4 Co. v4 Triple-A Specialty Co, 88 Fed.

(2d), 852 .

Ferree vs. — 273 Ky. 238; 115 8. W. (2d), 1055..

Gen. Investment Co. vs. N. V. C. R. R. Co., 271 U. 8.

228

Grooms vs. 8 225 Ky. 228; 7 8. w. (2d), 863

Haan vs. Haan, 231 N. V. Sup. 58

Kings Co. Trust Co. vs. Melville, 216 N. Y. Supp. 278...

McCalmont vs. McCalmont, 93 Pa. Sup. Crt. 203

Meeker vs. Leigh Valley R. R. Co., 236 U. S. 412

Minds vs. Penna. R. R. Co., 237 Fed. 267

Moore vs. Louisville Hydro-Eleetrie Co., 226 Ky. 20, 10

8. W. (2d), 466

Oren vs. Swift & Co., 51 8. W. (2d), 58

Pa. R. R. vs. U. 8. Railway Labor Board, 261 U. 8.

. ⅛ . 29, 69

Pa, System, ete. vs. Penna. R. R. Co., 267 U. S. 203

Petition of Kariher, 284 Pa., 445, 131 Atl. 265

Prentis vs. Atlantic Coast Line Co., 211 U. S. 210

Shea vs. North-Butte Mining Co., 55 Mont. 522; 179 Pac.

Sis se UES ̃ ..... ¾—P .é . 57, 60

Southern Ry. Co. vs. Eichler, 56 Fed. (2d), 1010

State of R. I. vs. State of Mass., 12 Peters Reports U. 8.

66 TaBLe or Cases

Stewart vs. Hertin, 125 Neb. 210, 249 N. W. 552

Stuart vs. Norviel; 26 Ariz. 493

Sullivan vs. Union Stockyards Co., 26 Fed. (2d), 60.. 36, 63

Tracy vs. Commissioner of Int. Revenue, 53 Fed. (2d),

Wheeling eee Co., vs. MeManigal, 41 Fed. (2d),

593

66 THE WASHINGTON TERMINAL COMPANY vs.

Tan or Statures CITED

Federal Declaratory Judgments Act, U. 8. C. Title 28,

Article 400, Paragraph I .....--+--eeerereerreres 45

Interstate Commerce Act, Sec. 1 35-88-89

Packers and Stockyards Aet.r .. 35-89-91

Railway Labor Act, 1926

Gestion B z 30-31

Railway Labor Act as Amended June 21, 1086... 75

Section 3, Paragraph First (i)) „%% ee

Section 3, Paragraph Second 33, 80

Section 3, Paragraph First (m 34, 78

Section 3, Paragraph First (yy 34, 52, 78

Transportation Act of 1920

Bection 3bc11IlI1I1IlIll „„ 27

BGoction 0 ãůn·ͥ !. 6 28

Ff... Ken 28

304 (i77))))) „„ 29

BOT (aͤ/ „„ 29

United States Constitution, Article III, See. l. 54

67 TaBLe or MISCELLANEOUS CITATIONS

Original

American Jurisprudence, Vol. 14, page 364. 55

American Jurisprudence, Vol. 16, page 2955. 12, 46

Borchard on Declaratory Judgment 13, 45

Federal Court Rule No. 27. 11

General Order No. 13 Federal Director-General Rail

sss „„ 23, 82

Report of Conference Committee re Federal Court Rule

We, BT 46% Sees Im

Report of Walker D. Hines, Director- General of Rail-

PORES . cc e 24, 25, 26, 27

Report of Committee of the House of Representatives

on Interstate and Foreign Commerce re Railway

BOSWELL, BURKHEAD, BRIDGES, ET AL. 67

Memorandum Brief of Defendants

Filed March 20 1939

NATURE OF THE CASE

The motion of the plaintiff calls to the Court’s atten-

tion the fact that the first two defenses of the answer

raise legal issues. The defenses in question are in

brief: (1) that the complaint fails to state a cause of

action under the Declaratory Judgments Act, and (2)

that the complaint fails to state any cause of action.

68 THE WASHINGTON TERMINAL COMPANY vs.

By its motion the plaintiff has called upon the de-

fendant to support these defenses in a hearing prior to

trial, a procedure sanctioned by the new Federal Court

Rules. As we understand this procedure, the ordinary

rules regarding motions to dismiss are applicable, i. e.,

all facts well pleaded in the complaint must be considered

as being admitted. Our first task, therefore, will be to

endeavor to formulate from the complaint a fair state-

ment of the facts in the case.

STATEMENT OF FACTS

In 1907 the plaintiff company began its operations

which have, throughout its existence, consisted in the

furnishing of passenger terminal facilities for certain

carriers referred to in the complaint as ‘‘Tenant Lines“.

Its tracks are purely switching and terminal tracks; it

operates no main line road service; its locomotive and

train crews engage in switching operations only.

It is the practice of this carrier that all through

trains coming into the station are brought in by the road

engines and crews of the tenant line on which the train

originates. No question is raised regarding this prac-

tice. In addition, however, it is further the practice to

require these same engines and crews to perform certain

operations in connection with the making up and break-

ing up of trains. Cars are added to, or taken from,

trains; empty trains are moved into or out of the sta-

tion, and are, to some extent, moved about in the yards

by these road engines. It is claimed that this service

BOSWELL, BURKHBAD, BRIDGES, ET AL. 69

is not a ‘‘switching’’ service, but it is apparent that cer-

tainly it is not in any sense a road service. This practice

of using road engines and crews, furnished by the tenant

lines, in performing the operations in question is the

practice which has given rise to dispute.

It remains to consider the reason why the propriety

of this practice is in question. It appears from the com-

plaint that at intervals from 1910 to 1923 various sched-

ules or agreements as to working conditions affecting

train crews were effective on this property. The first

two of these were posted by unilateral action of the car-

rier, the third was negotiated between the Director Gen-

eral of Railroads and the various brotherhoods repre-

senting the classes of employees involved, and the last

was negotiated by the carrier and the brotherhoods and

is still in effect.

This last agreement, as well as its predecessors, con-

tained provisions regarding the seniority rights of em-

ployees. At this point we believe it may prove helpful

to the Court to explain the significance of the term

‘seniority right’’. The word ‘‘seniority’’ refers to the

length and continuity of service of employees in relation

to one another. ‘‘Seniority rights’’ are those rights

which, by agreement, accrue to the individual employees

in ratio of their seniority. The various Exhibits at-

tached to the complaint, and in particular Exhibit C,

Paragraphs 8 and 9, and Exhibit D, Paragraphs 8 and 9,

show the nature of these rights. It appears that in the

event of lay-offs employees are to be released in inverse

70 THE WASHINGTON TERMINAL COMPANY vs.

order of seniority, while re-employment is to be in direct

order of seniority. Demotions and promotions are to be

handled in the same manner. In the event of a vacancy,

or in the event of the establishment of a new position,

employees are to be notified by bulletin, and they may

‘‘bid’’ for the position—seniority to govern in the selec-

tion. The above list of seniority rights provided by this

agreement is not exhaustive, but is illustrative as to

their nature, and as to the reason why they are valued

and jealously guarded by employees.

It must be apparent that the use of the term ‘‘senior-

ity rights implies the existence of a territorial unit

within which those rights may be exercised; that is, on a

certain unit of railroad operations there are a certain

limited number of jobs available to those employees who

have seniority rights within that unit. Such units are

ordinarily termed ‘‘seniority districts’, and, in the case

of train service men, are usually the operating divisions

or groups of divisions of the railroad. In the case of

smaller operations, as here, the entire system of the

railroad may constitute a single seniority district.

Seniority rights which are not effective over a fixed

district are necessarily valueless, as the carrier might,

by expanding or contracting districts at will, virtually

nullify the rights of employees by limiting or eliminating

the area within which they might be exercised.

From the foregoing we may clearly understand the

nature of the controversy which has existed between the

plaintiff and its train service employees. It is the con-

tention of the latter that they have a right under the

Agreement of 1923 to perform all work in the nature of

switching service which is carried on over the tracks

of the plaintiff, i. e., their seniority district. It is the

contention of the plaintiff that the work performed by

the road engines, while not mentioned in the Agreement,

is excepted from its provisions because it has been per-

formed by road crews both before and since the effective

date of the Schedule. In other words, the plaintiff con-

tends that by custom and usage this work, while admit-

tedly performed over the plaintiff’s tracks, is really not

the work of the defendants’ seniority district, but it

forms a sort extra-territorial extension of the various

seniority districts of the road crews of the tenant lines.

This the plaintiff contends is a part of the Agreement

by implication.

It is thus apparent that the dispute between the par-

ties to this case is one growing out of the interpretation

and application which the carrier has made of the Collec-

tive Agreement of 1923, and that it has existed for

some~time.

Efforts were made from time to time to adjust this

dispute in conferences between the parties, but without

success. Thereafter, the dispute was duly submitted by

the employees to the National Railroad Adjustment

Board, First Division, for adjustment. This Board is an

administrative tribunal set up in accordance with the

provisions of a Federal statute known as the Railway

Labor Act as amended June 21, 1934. (Relevant portions

of this Act are copied in Appendix 1.) We shall discuss

72 THE WASHINGTON TERMINAL COMPANY vs.

the organization and functions of this Board in another

section of this brief. It will suffice for our present pur.

pose to note that in the adjustment of this dispute the

Board was confronted with the necessity of considering

the proper interpretation of the agreement in question.

The procedure of the Board as established by the statute

and applied in this case will also receive full discussion

later herein.

After considering the whole case the Board issued

a formal award embodying a decision favorable to the

contentions of the employees, aid subsequently issued

an order to the plai..iff to apply the said award. It

should be noted that orders of the National Railroad

Adjustment Board are not enforceable by any process or

action on the part of the Board. They depend for their

enforcement upon suits instituted in the Federal courts

by the parties benefited by the order.

The defendants have requested the plaintiff to apply

the order of the Board. This the plaintiff has refused to

do with the result that certain claims are accumulating

against it for work which the defendants claim to be

entitled to perform, and which the plaintiff has per-

mitted the employees of the Tenant Lines to perform

in their stead.

The plaintiff now brings this action seeking a

declaratory judgment.

ANALYSIS OF ISSUES

The relief which the plaintiff seeks is two-fold. First,

it asks an interpretation of its rights and those of the

defendant under the Collective Agreement of February 1,

1923; second, it asks the Court to invalidate the award

and order of the National Railroad Adjustment Board

both because of errors of law alleged to have been com-

mitted by the Board, and because of the asserted uncon-

stitutionality of the Railway Labor Act which estab-

lished the tribunal and fixed its jurisdiction.

Otherwise expressed, the plaintiff desires this Court

to set aside a decision of an administrative board, to re-

examine the subject matter of that decision, and to issue

its own judgment on the merits. Without question, there-

fore, the action is one looking toward a judicial review of

an administrative order. This review is sought through

the medium of a declaratory judgment.

The defendants have challenged the sufficiency of

the complaint on the ground that it does not set forth

facts sufficient to justify the issuance of a declaratory

judgment and indeed fails to state any cause of action

at all. The latter of these two positions will be reserved

for a later section of this brief, and we will for the pres-

ent confine ourselves to the first.

Prior to the enactment of the Declaratory Judgments

Act (U. S. C. Title 28, Article 400), the jurisdiction of

the Federal Courts was in general limited to contro-

versies involving the classical conception of a cause

74 THE WASHINGTON TERMINAL COMPANY vs.

of action, i. e., a right, its violation and consequent dam-

age. The Act extended that jurisdiction by eliminating

the requirement of actual violation of a right and result-

ing damage and substituting therefor the requirement

merely of an actual controversy as to the existence of

rights. Thus, where such a controversy exists the liti-

gant needs not violate his adversary’s claimed right be-

fore testing its existence in Court. This broad extension

of jurisdiction, however, is qualified by certain well de-

fined limitations which have been placed upon it.

First. It is well established that it is not the pur-

pose of the Declaratory Judgments Act to permit the

Courts to give advisory opinions on abstract legal ques-

tions. In the words of the statute, an ‘‘actual contro-

versy’’ must exist. That is, there must be such a disagree-

ment between the parties as to the existence of mutual

legal rights and obligations that a proposed course of ac-

tion by one party will result in the imposition of legal

damage upon him if he is mistaken in his contention.

Thus for a party to be able to invoke the Declaratory

Judgments Act, he must show that the subject matter of

the controversy is such as to imperil him or threaten him

with liability for damages. As above noted, the plaintiff

is seeking two declarations from the Court. The first

being an interpretation of an agreement, the second a

declaration of the invalidity of an order of the National

Railroad Adjustment Board. Before the plaintiff can

secure relief as to either of these matters it must estab-

lish that the agreement in the one case, or the order of

the Board in the other, may be interpreted in such man-

ner as to actively imperil the plaintiff’s rights. The

order of the Board is not susceptible to such an interpre-

tation, however. We will point out below that the order

is in itself unenforceable, and that the plaintiff has not

shown, and cannot show, any possible injurious conse-

quences to itself arising from that order however it may

be interpreted.

Second. From what has been said it is apparent

that the Declaratory Judgments Act was designed as a

method of deciding undecided controversies, not as a

method of re-submitting to the Court issues already

passed upon by a different tribunal, with the hope of ob-

taining a different result. In other words, the procedure

established by the Act is not a procedure for review. As

the gist of the plaintiff’s action in this case is to secure

such review, its complaint is fatally defective.

Third. It is agreed by all authorities that the pro-

cedure of the Declaratory Judgments Act may not be

used as a substitute for a procedure specially provided

by statute for the type of case in question. We will show

that the Railway Labor Act provides a statutory method

for the review of decisions of the National Railroad Ad-

justment Board, which method forms an integral part of

the regulatory scheme of the statute. It follows, there-

fore, that the procedure invoked in this action cannot

be substituted for that provided in the Railway Labor

Act, and on the face of its complaint the plaintiff is not

entitled to the relief which it seeks.

— iareeeeeemmeninani

76 THE WASHINGTON TERMINAL COMPANY vs.

Fourth. The plaintiff alleges that the Railway

Labor Act is void in that it seeks to vest judicial power

in an administrative board. While we believe that a

consideration of the three issues named above will sat-

isfy the Court that this is not an appropriate case for the

issuance of a declaratory judgment, we shall in addition

support the position that the power exercised by the

National Railroad Adjustment Board is an administra-

tive power only, and is in no sense judicial.

In summary, therefore, the defendants will maintain

the following positions in support of their contention that

the complaint fails to state facts sufficient to justify the

Court in the issuance of a Declaratory Judgment:

I. A Declaratory Judgment will not be granted as

a substitute for another remedy prescribed by statute

for the particular type of case.

II. A Declaratory Judgment will not be granted as

a means of reviewing the decision of another tribunal.

III. A Declaratory Judgment passing upon the

validity of an administrative order will not be granted

where the plaintiff is not imperiled by the order.

IV. The Railway Labor Act does not vest judicial

power in the National Railroad Adjustment Board.

ARGUMENT

L A Dectaratory Jupoement Wuxi Nor Be Grantep

As 4 Susstirure ron Axor Remepy Pre-

Suu By Statute ron tHe Particutar Tyre

or Cask.

The Rule of Law.

In the early days of the Declaratory Judgments

Acts and to some extent even today, there has been con-

siderable conflict among the Courts on the question of

whether one seeking a declaratory judgment must show

that he has no other adequate remedy available. This

conflict has been set at rest for the Federal Courts by

the adoption of Court Rule No. 57 which provides that:

„The existence of another adequate remedy

does not preclude a judgment for declaratory re-

lief in cases where it is appropriate.’’

We mention the above doctrine and its repudiation

in the Federal Courts merely for the purpose of clarify-

ing the issue here. The defendants’ objection to this

proceeding is not based on the existence of another ade-

quate remedy either at common law or in equity, but upon

the existence of a specific remedy prescribed by statute

for this exact type of case.

It is clearly established by authority that where such

statutory remedy exists a court may not issue a declara-

tory judgment in the premises for to do so would nullify

the provisions of the statute which sets up the special

remedy.

Thus the Conference Committee which assisted in

the preparation of the present Federal Court Rules in

its note regarding Rule No. 57 explicitly states:

„A declaration may not be rendered if a special

statutory proceedings has been provided for the

adjudication of some special type of case, but gen-

78 THE WASHINGTON TERMINAL COMPANY vs.

eral, ordinary or extraordinary legal remedies,

whether regulated by statute or not, are not

deemed special statutory proceedings.’’

(Emphasis supplied.)

In American Jurisprudence, Volume 16, page 295,

we find the following statement:

„A court will not take jurisdiction to render a

declaratory judgment where another statutory

remedy has been especially provided for the char-

acter of case presented, if the effect would be to

interfere with the right of the parties to appeal

to the court given jurisdiction in that particular

matter by the statute. Likewise, a declaration will

not be made where the purpose is to affect pro-

ceedings which may be taken before a public board

which has full power to act in the matter and

which would not be bound by the declaratory

judgment. In accordance with this principle, the

courts have refused to enter declaratory judg-

ments in respect of such questions as the validity

of assessments, the time for which an employee

is entitled to compensation under the Workmen’s

Compensation Law, the inheritance of personal

property, and the status of the plaintiff as the

natural son of defendant, where jurisdiction as to

these questions was given to other courts or

boards.

(Emphasis supplied.)

Professor Borchard, co-author of the Uniform

Declaratory Judgments Act, whose treatise on this sub-

ject has been widely quoted, states in this connection

as follows:

Where, however, a special statutory method

for the determination of the particular type of

case has been provided, it is not proper to permit

that issue to be tried by declaration. This would

amount to ousting of its jurisdiction a statutory

court prescribed for the particular case, and it

was not intended that a declaration should be em-

ployed for such a purpose.“

(Borchard on Declaratory Judgments, pages

156-7.)

(Note: Emphasis the Author’s.)

And further:

Nor as already observed, will the court per-

mit a special tribunal having statutory jurisdic-

tion of the express type of case sub judice, or

given jurisdiction by agreement of the parties, to

be ousted of its jurisdiction by a petition for a

declaration in the ordinary courts.’’

(Borchard on Declaratory Judgments, p. 180.)

A leading case in the interpretation of the Declara-

tory Judgments statutes is that of Petition of Kariher,

284 Pa., 455, 131 Atl, 265, decided in 1925. The Supreme

Court of Pennsylvania made the following statement as

to the law:

In all jurisdictions where declaratory judg-

ment practice obtains, the rule is established * * *

that a proceeding to obtain such a judgment will

not be entertained * * * where another statutory

— —

80 THE WASHINGTON TERMINAL COMPANY vs.

remedy has been specially provided for the char.

acter of case in hand.’’

See also to the same general effect, City of Erie vs. Phil-

lips, 323 Pa. 527; 187 Atl. 203; and Bell Telephone Com-

pany of Pennsylvania vs. Lewis, 313 Pa. 374; 169 Atl. 571.

Another Pennsylvania case, that of McCalmont vs.

McCalmont, 93 Pa. Sup. Crt. 203, involved an action for

declaratory judgment seeking to annul a marriage. The

relief sought was refused, the Court saying:

„The State is a party in interest in divorce pro-

ceedings and in order to guard against collusion

between the parties has prescribed certain forms

and procedure which must be observed, including

an oath or affirmation by the libellant that the

facts contained in the petition or libel are true,

to the best of his or her knowledge and belief,

and that said complaint is not made out of levity

or by collusion and for the mere purpose of being

freed and separated from each other, but in sin-

cerity and truth for the causes mentioned in said

petition or libel; followed by proceedings in court

or before a master calculated to sift the evidence

thoroughly and satisfy the court of the truth of

the matters averred in the libel * * .

These safeguards instituted on behalf of the

the State cannot be swept away by recourse to the

Declaratory Judgments Act of 1923. Jt should

not be resorted to where, as here, a method has al-

ready been established for the speedy determina-

tion of the issues involved with due regard to the

interests of the State as well as wf the parties

libellant and respondent.’’

(Emphasis supplied. )

In the case of Young vs. Bridges, 86 N. H. 135, 165

Atl. 272, a declaratory judgment was asked as to the dis-

tribution of an estate. It was held that inasmuch as

jurisdiction in such matters was specifically conferred

upon the Probate Court by statute, other courts could

not be asked to pass thereon through the medium of a

declaratory judgment. A similar conclusion was reached

in the case of Stewart vs. Hertin, 125 Neb. 210, 249 N. W.

552, which involved a guardianship matter.

The Court of Appeals of the State of Kentucky ap-

plied the same rule of law in the case of Moore vs. Louis-

ville Hydro-Electric Company, 226 Ky. 20, 10 8. W. (2d)

466. In this case the plaintiff had instituted proceedings

under the Workmen’s Compensation Act of the State

for certain alleged injuries. His claim was allowed by

the Workmen’s Compensation Board as to some par-

ticulars, but was rejected insofar as it related to a claim

of hernia. The decision as to the hernia was appealed

to the Circuit Court and sustained, but was later re-

versed by the Court of Appeals and compensation or-

dered. Thereafter another controversy arose as to the

time during which plaintiff was entitled to be compen-

sated for the hernia, and this action was filed seeking a

declaratory judgment on that point. A demurrer to the

petition was sustained in the Circuit Court, which ruling

82 THE WASHINGTON TERMINAL COMPANY vs.

was upheld by the Court of Appeals. The latter court

said:

It has been often written that the Workman’,

Compensation Law is in the nature of an arbitra-

tion, and was intended to provide a simple and

speedy method whereby employees might be com-

pensated for injuries received. The entire

mechanics of the law shows that it was the legis.

lative intent to vest exclusive, original jurisdic.

tion to hear and determine matters within the pur-

view of the Act in the Workman’s Compensation

Board. Provisions are made for a review of the

findings of that board by the Circuit Court, and

an appeal may be taken from the judgment of the

Circuit Court to this Court. If the employee may

ascertain that he and the employer do not agree

about the length of time for which he is entitled to

compensation, and then file a petition for a decla-

ration of his rights, likewise the employer may

ask for a declaration of rights, and in that way

substitute the Circuit Court and this Court for

the Workman’s Compensation Board in deter min-

ing many questions, the determination of which is

vested by the law in the Workman’s Compensa-

tion Board. We cannot approve thus invading

the jurisdiction of that Board.

(Emphasis supplied.)

The same principle was stated by the United States

Circuit Court of Appeals for the Fourth Circuit in the

case of Aetna Life Insurance Company vs. Quarles, 92

Fed. (2d), 321:

„The Court will refuse a declaration where

another Court has jurisdiction of the issue, where

a proceeding involving identical issues is already

pending in another tribunal, where a special statu-

tory remedy has been provided, or where another

remedy will be more effective or appropriate

under the circumstances.’’

(Emphasis supplied.)

From an examination of these authorities there can

be no question but that remedy by declaratory judgment

is not available as a substitute for a prescribed statutory

procedure.

Procedure Prescribed by the Railway Labor Act.

Having determined the nature of the applicable rules

of law, it remains to be established that the Railway

Labor Act prescribed a definite procedure to be followed

in this type of case. We shall therefore direct the Court’s

attention to the nature of the case involved, the organiza-

tion and development of the administrative agency which

has been set up to deal with these cases, and to the statu-

tory provisions governing the review of the orders of

that agency. We shall show that all of these form in-

tegral parts of a statutory scheme for the handling of

a certain type of case, a scheme designed to preserve the

public interest by insuring the continuance of the agen-

cies of interstate commerce uninterrupted by labor con-

troveries.

84 THE WASHINGTON TERMINAL COMPANY vs.

The Type of Case It has long been the policy of

Congress to foster the develop-

ment of collective bargaining between carriers and their

employees as a means of avoiding labor disputes which

might interrupt the functioning of the nation’s railroads

and inflict serious damage on the public. Disregarding

some of the older attempts to accomplish this result,

modern efforts along this line were begun with the en-

actment of the Transportation Act of 1920, and were con-

tinued by two later statutes—the Railway Labor Act of

1926 and the Railway Labor Act as amended in 1934,

The last named statute is now in effect.

A reference to ‘‘collective bargaining’’ calls to mind

a system whereby the employer and the selected repre-

sentatives of the employees meet to negotiate a collective

agreement fixing the wages and terms of employment

of the employees as a group. This phase of collective

bargaining is well understood. The execution of a collec-

tive agreement, however, is only the beginning—not the

end of the collective bargaining process.

Such an agreement by its nature covers a large num-

ber of varied individuals and situations. If a collee-

tive agreement is made, therefore, there will inevitably

arise controversies as to exactly how the agreement shall

be applied in specific cases. Such controversies, while

not as broad in scope as those relating to making or

changing agreements, may nevertheless cause as grave

disputes between the parties, and in the aggregate may

as seriously threaten the disruption of the industry.

The Railway Labor Act of 1934 recognizes the ex-

istence of such disputes and the importance of providing

a method for adjusting them. It provides this method

in these words:

„Section 3. First (i) The disputes between

an employee or group of employees and a carrier

or carriers growing out of grievances or out of

the interpretation or application of agreements

concerning rates of pay, rules, or working condi-

tions, including cases pending and unadjusted on

the date of approval of this Act, shall be handled

in the usual manner up to and including the chief

operating officer of the carrier designated to

handle such disputes; but, failing to reach an ad-

justment in this manner, the disputes may be re-

ferred by petition of the parties or by either party

to the appropriate division of the Adjustment

Board with a full statement of the facts and all

supporting data bearing upon the disputes.

(Emphasis supplied.)

Therefore, the type of case for which Congress es-

tablished the procedure provided in the Railway Labor

Act is one involving disputes between carriers and em-

ployees growing out of grievances, or out of the inter-

pretation or application of collective agreements.

We have pointed out above that the dispute between

the plaintiff and the defendants in the present case is

one growing out of the interpretation which the plaintiff

has put upon the Collective Agreement of 1923. Accord-

ingly there can be no question but that the case at hand

is one of those with regard to which Congress saw fit

to legislate.

86 THE WASHINGTON TERMINAL COMPANY vs.

Organization and Develop- The statutory foundation

ment of National Railroad for the National Railroad

Adjustment Board. Adjustment Board is to

be found in the various

paragraphs of Section 3 of the Railway Labor Act. A

summary of these provisions will probably be more help-

ful to the Court than detailed quotations from them.

(For the provisions in question see Appendix I.)

In brief, this Board is a body composed of repre-

sentatives selected by the carriers and by the national

organizations of employees in equal numbers. The Board

is divided into several divisions, the First Division being

the only one with which we are concerned. This Division,

whose jurisdiction is confined to disputes involving train

and yard service employees, is composed of ten (10)

members, five (5) of whom are selected by the carriers

and five (5) by the five labor organizations whose mem-

bers are engaged in train and yard service. Both in

personnel and in organization this Board departs some-

what from traditional judicial concepts. Judicial

tribunals are non-partisan and the litigant is protected

in his cause by the impartiality of the judge. The Ad-

justment Board is bi-partisan rather than non-partisan,

and one appearing before it is protected by the fact that

half of its members are predisposed in his favor. If he

can maintain this advantage and, in addition, secure the

approval of one or more members whose natural pre-

disposition is against him, his cause must surely be just

and he will prevail. The judge is learned in the law, but

must be informed by the parties as to the practical

aspects of each case. A member of the Adjustment Board

has probably only a layman’s understanding of the law,

put a wide practical knowledge of the field in which the

tribunal operates. A judge decides the case before him,

while, as its name implies, this Board is intended to ad-

just matters submitted to it. ‘‘Compromise’’ judgments

of courts are contrary to the whole theory of the law,

while a reasonable and acceptable compromise embodied

in an order of the Board will often fulfill the exact

purpose for which it was created.

The organization of the Board may seem anomalous

at first glance. The anomaly disappears, however, if

it realized that the Adjustment Board takes as its pat-

tern not the courtroom but the conference table. Its

members are representatives or advocates, rather than

arbiters. It is provided in the Railway Labor Act that

any award of any Division of the Board must be con-

curred in by a majority of the members. If the regular

members are unable to reach an agreement, a neutral

referee is called in to sit and vote with them for the

purpose of breaking the deadlock. (See Railway Labor

Act (Section 3, First (1) in Appendix I.) If such referee

is selected, the Board then adopts a quasi-judicial

formula of procedure. The members then become ad-

versaries indeed and actively urge their respective views

upon the referee to whom their differences are, in effect,

submitted for decision.

88 THE WASHINGTON TERMINAL COMPANY vs.

That Congress chose to establish the National Rail-

road Adjustment Board according to this exact pattern

is made clear by the terms of the Railway Labor Act.

The selection of this pattern was not made as a matter

of chance or whim. The Adjustment Board was organ-

ized as it was because long years of successfu! experience

had revealed this sort of organization as the one most

likely to accomplish the Congressional purpose of estab-

lishing industrial peace on the railroads.

Both employers and employees who desire harmoni-

ous labor relations have long been aware of the ad-

vantages offered by the conference room. A confer-

ence between the employee who has a grievance, and his

immediate supervisor may bring a ready adjustment of

the matter. Too often, however, the attitudes of the

direct participants are warped by prejudices and pre-

delections of a personal or local nature. The conference

is more likely to succeed if held between representatives

of the parties, just as attorneys can often arrange settle-

ments of legal actions when their clients cannot.

If an adjustment is not reached in conference on the

property between local representatives of the persons

who are involved in the dispute, the next logical step is

to submit the controversy to a conference off the prop-

erty, between representatives selected by the carriers

generally and by employees generally—or in other

words, to an adjustment board.

While local or system adjustment boards have been

employed for a long time as a means of settling disputes

between train service employees and the carriers, the

first use of this procedure which was other than local

in character, was embodied in a document known as the

“Joint Settlement Awarded by the Committee of Na-

tional Defense. This was the instrument which for-

mally ended the ‘‘8-hour day controversy during the

World War. The ‘‘Settlement’’ which was dated March

19, 1917, contained the following provision:

It is further agreed that if any differences

arise over the application of the foregoing award,

they shall be referred to a standing Commission

of Eight, four to be chosen by the National Con-

ference Committee of Railways and four by the

railroad brotherhoods. A majority decision to

be binding.

The said Commission of Eight was duly selected

as provided, and applied the settlement awarded by the

Council of National Defense to approximately 225 rail-

roads involving nearly 900 agreements and in doing so

was required to make approximately 30,000 decisions.

While the Commission of Eight was made up of an equal

number of representatives of the employees and the

railroads, it disagreed on only 3 cases; that is, there

were only three matters submitted to the Commission

upon which agreements were not reached,

On March 22, 1918, the Federal Director-General

of Railroads issued his General Order No. 13, which ap-

proved and made effective a memorandum of under-

standing between the Regional Directors of the railroads

and the executive officers of the Train Service Labor

90 THE WASHINGTON TERMINAL COMPANY Vs.

organizations. This order established a tribunal known

as Railway Board of Adjustment No. 1, which was to ad-

just disputes growing out of the interpretation and ap-

plication of agreements concerning rates of pay, rules

and working conditions of train service employees. A

copy of a portion of this memorandum is attached io

this brief as Appendix II. An examination of certain

portions which we have italicized in the Appendix will

reveal that the National Railway Labor Act borrowed

freely from its phraseology.

This order was followed by General Order No. 29

(May 31, 1918) and General Order No. 53 (November

13, 1918) which provided similarly for Railway Boards

of Adjustment Nos. 2 and 3, which were to have jurisdic.

tion respectively over disputes involving shopcraft em-

ployees and disputes involving telegraphers, switchmen,

clerks and maintenance-of-way employees.

During the period of Federal control, Railway

Board of Adjustment No. 1 decided 3,000 cases without

an appeal; Board No. 2 decided 2,000 cases with less

than 10 appeals; and Board No. 3 decided 1,100 cases

with only one appeal.

The following excerpt from the Report to the Presi-

dent by Walker D. Hines, Director-General of Railroads,

for the 14-months period ending March 1, 1920, indicates

the character of service rendered by the Boards of Ad-

justment during the period of Federal control:

„At the beginning of the Railroad Administra-

tion in 1918 the Division of Labor was created as

BOSWELL, BURKHEAD, BRIDGES, ET AL. 91

a division coordinate with the other divisions in

the Railroad Administration and Mr. W. S. Car-

ter, president of the Brotherhood of Locomotive

Firemen and Enginemen, was appointed to the

position of director of that division and has held

it through the life of the Railroad Administration.

„One of the early steps taken and an exceed-

ingly important step, was the creation of certain

bi-partisan boards of adjustment to deal with

grievances of employees which could not be settled

on the railroads between the local managements

and the representatives of the employees. The

principle of collective bargaining was frankly

recognized in the creation of these boards because

they were created by agreement between the rep-

resentatives of the railroad labor organizations

on the one hand and the regional directors of the

United States Railroad Administration on the

other hand. The work of these boards of adjust-

ment has been eminently satisfactory. Each board

has been composed of an equal number of expert

representatives of the management and expert

representatives of the employees. With a full

practical knowledge of the problems the members

of these boards have approached their work with

the desire to do justice and with the recognition of

the importance of reaching an agreement. The

result is that in the several thousand cases which

have come before the three boards which have

been created there has been an agreement in prac-

tically very case.

„Various orders of the Director-General have

established reasonable rules and working condi-

—

THE WASHINGTON TERMINAL COMPANY vs.

tions, which were applicable in the very numerous

cases where no rules and working conditions had

been established prior to Federal control, and in

some cases the rules and working conditions estab-

lished by the Director-General have, by agree-

ment, become a substitute for those which pre-

vailed by agreement prior to Federal control.

„As a result of these defined working condi-

tions and these boards of adjustment, the em-

ployees generally have felt that they were much

better protected than formerly against arbitrary

action.

„Naturally such a system requires time for it

to be fully understood and successfully carried out

by the vast number of local officials who are re-

sponsible for discipline and by the local labor rep-

resentatives who with the local officials deal with

grievances. Inevitably at first the new system

had the effect in many instances of raising a ques-

tion as to the authority of the local officials and

caused some discouragement on the part of some

of them and some misconception of the situation

on the part of some employees. Nevertheless, the

system has fully justified itself, and it is only a

question of time and mutual understanding when

local incidents of a discouraging character will

disappear.

It is an interesting commentary that on some

of the largest railroads in the country, with the

strongest and most effective managements, not

a single case has come to one or more of these

boards of adjustment. The local managements

have dealt with the classes of employees repre-

BOSWELL, BURKHEAD, BRIDGES, ET AL. 93

sented on such board or boards so reasonably as

to obviate the necessity for appealing thereto any

grievances at all, and the committees representing

the employees have adopted a reasonable attitude

and avoided appeals to the Boards of Adjustment.

Eventually this same successful treatment should

be manifest on all the railroads and as to all

classes of employees, if the system shall be main-

tained in some proper form.“

These various Railway Adjustment Boards were

dissolved in 1920 inasmuch as the period of Federal con-

trol of railroads was then terminated by the Transporta-

tion Act of that year. Title III of this statute contained

certain provisions designed to stabilize labor relations

on the railroads. The device of Adjustment Boards was

retained, although their establishment was made vol-

untary and not compulsory. Their jurisdiction was

limited to disputes ‘‘involving only grievances, rules or

working conditions“, which is similar to the jurisdic-

tional limit of the present Adjustment Board.’

Under this Act there were organized what were

known as ‘‘Regional Train Service Boards of Adjust-

ment’’; one was established for the Southeastern Region

on May 31, 1921; for the Western Region on August 25,

1921; and for the Eastern Region on November 9, 1921.

The agreements setting up these boards were all sub-

1 For the ready reference of the Court we reproduce here a

portion of the Transportation Act of 1920:

“Sec, 301. It shall be the duty of all carriers and their officers,

employees, and agents to exert every reasonable effort and adopt

every available means to avoid an interruption to the operation

of any carrier growing out of any te between the carrier and

94 THE WASHINGTON TERMINAL COMPANY VS.

stantially the same. Excerpts from that establishing

the Southeastern Regional Board are reproduced as Ap-

pendix III hereof. As in the case of General Order 13

and the memorandum incorporated, the phraseology will

be found to be similar to that used in the present Railway

Labor Act.

The United States Railroad Labor Board which is

referred to in the agreement above mentioned as an ap-

pellate tribunal to which disputes could be referred in

the event that the regional board could not agree upon an

award was created by the provisions of the Transporta-

tion Act of 1920. It consisted of nine members, all ap-

pointed by the President, with the advice and consent of

the Senate. Three members, however, were appointed

from nominees submitted by the carriers and three from

those submitted by the employees. This Board had

jurisdiction of (1) disputes relating to wages (which,

as we have seen above, were not within the jurisdiction

of the Adjustment Boards), and (2) disputes where the

the employees or subordinate officials thereof. All such disputes

shall be considered and, if possible, decided in conference between

representatives designated and authorized so to confer by the car-

riers, or the employees or subordinate officials thereof, 22

interested in the dispute. If any dispute is not decided in

conference, it shall be referred by the parties thereto to the board

which under the provision of this title is authorized to hear and

decide such te (41 Stat. L. 469).

Sec. 302. Boards of Labor Adjustment may be

established by agreement between — carrier, group of carriers,

or the carriers as a whole, and any employees or subordinate officials

or organization or group of organizations thereof (41

of carriers,

Stat. L. 469).

Sec. 303. Each such Adjustment Board shall * “ receive

for and as soon as practicable and with due diligence de-

cide, any te involving only grievances, rules or working condi-

tions, not decided as provi in section 301, between the carrier

Adjustment Boards had jurisdiction but had found them-

selves unable to agree.“

This Board functioned with fair success for several

years until it was held that its orders lack legal sanc-

tion (Penn. R. R. Co. vs. U. S. Railway Labor Board,

261 U. S. 72; Penna. System, etc. vs. Penna. R. R. Co.,

267 U. S. 203). After the decisions in the above cited

cases the Board lost much of its influence. Consequently

the whole situation under the Transportation Act became

so unsatisfactory that the carriers and employees joined

in asking Congress to repeal Title III of this Statute,

and to enact in its stead a new statute, the Railway Labor

Act of 1926.

the labor

the

Kajustmen

ustment Board has failed or

a reasonable i

96 THE WASHINGTON TEKMINAL COMPANY vs.

This latter Act also considered that the best avail-

able means of adjusting disputes growing out of griev-

ances, or out of the interpretation or application of col-

lective agreements was afforded by the now familiar de-

vice of Adjustment Boards. It therefore continued the

pre-existing policy of the Government in this regard.

The following excerpts are from the Railway Labor Act of

“Sec. 3. First. Boards of adjustment shall be created by

agreement between any carrier or group of carriers, or the car-

riers as a whole, and its or their employees.

“The agreement—

“(a) Shall be in writing;

“(b) Shall state the group or groups of employees covered

by such adjustment board;

“(c) Shall provide that disputes between an employee or

group of employecs and a carrier, growing out of grievances or out

of the interpretation or application of agreements concerning rates

of pay, rules, or 1 — conditions, shall be handled in the usual

manner up to and including the chief operating officer of the carrier

designated to handle such disputes; but, failing to reach an adjust-

ment in this manner, that the dispute shall be referred to the desig-

nated adjustment board by the parties, or by either perty. with a

full statement of the facts and all supporting data bearing upon

1926

tively elect, and that adjustment ds shall hear and

decide promptly all disputes referred to thern as rovided

graph (e). Adjustment boards shall give due notice of all hearings

in the

dispute;

“(e) Shall stipulate that decisions of adjustment boards shall

be final and binding on both parties to the dispute; and it shall

be the duty of both to abide by such decisions;

“(f) Shall state the number of representatives of the em-

ployees and the number of representativs of the carrier or car-

riers on the adjustment board, which number of representatives,

vely, shall be equal;

“(g) Shall provide for the method of selecting members and

filling vacancies;

(h) Shall provide for the portion of expenses to be assumed

by the respective parties;

%) Shall stipulate that a majority of the adjustment board

members shall be competent to make an award, unless otherwise

mutually agreed;

person, by counsel, or by other re resentative, as they 1 7 poate

Para-

BOSWELL, BURKHEAD, BRIDGES, ET AL. 97

The United States Railroad Labor Board was abol-

ished by the Railway Labor Act of 1926, and there was

established instead a board known as the National Board

of Mediation, whose functions were quite different from

those of its predecessor. The new Board had no power

to decide any dispute or to make any order enforceable

or otherwise. Its sole authority was to attempt to bring

the parties into agreement by mediation.

After the enactment of the Railway Labor Act there

was established by agreement a fourth train service

board of adjustment; this one having jurisdiction over

the Southwestern Region. In addition some system

boards were created whose authority extended only to

the system involved. Many carriers, however, refused

either to become parties to the agreements establishing

regional boards, or to agree to establish system boards.

Thus the boards of adjustment which were established

and did function under the Railway Labor Act of 1926

covered only a portion of the nation’s railroad system.

In addition, however, the Act provided no effective

method of handling cases to a conclusion where the mem-

bers of the board disagreed, and a deadlock resulted. Of

course, no appeal could be taken to the United States

Railroad Labor Board for that body had been abolished,

“(j) Shall stipulate that adjustment boards shall meet regu-

larly at such times and 2 as designated; and

“(k) Shall provide for the method of ad the employees

and carrier or carriers of the decisions of the boa

“Second. Nothing in this Act shall be

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