# Appendix — Ex parte Cassidy

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0056%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1943
- **Citation:** 319 U.S. 732

## Text

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,

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Original Print

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„„ „„ „„ 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-

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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

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—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,

1

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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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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ts

or the

is to be calculated from the time fixed f

of

t
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

=
J
E
1
:
S
g
~
=
5

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.

(c) Enginemen of single crewed and double crewed engines will
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.

(c) Enginemen, Firemen and Yardmen will not be required to work
with engines that blow steam to such an extent that the vision of signals
is obscured.

25

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 ——

29

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

i
:
5
5

for any reason the senior eligible Fireman or r to

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lvus 0}8p Yous ‘suoTE[NFe1 e oUBp10008 UT Poyst|qezse Used s, UOT;
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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

r
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
18

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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3

(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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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

41

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.

cesT ‘81 ANON GALdOGV NOLLATOSAa

n aH NA “CO
U,, u ινν ‘NOSIOHOIN ANN
‘qavog INaWisaray dvowlivy TYNOLLYN

jo sopio Ag

„ f4042499g

jo 200 Ag
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sum pepyeorpul s ‘A1B}VINIG SN JO

ernjeusis oy} Aq peisens o Hes puw joe uorstaig ayetidoidde ayy
jo Jepro Aq pousis oq [eqs prvog juouNsnfpy oq} Jo Spree [IV

scuva N

‘oye Klan eds Avur fay} sv ‘saatyeyuesoidal
zemo Aq 10 ‘jasunoo Aq ‘gosied ul deute paved oq Ci. Sent

SaONvuvadd Y

‘gousptae ArB}UEUMIOp PUB son] SATVJUSUINIIV

SUBAd[el UAMOTY U WOISSTUIGNS wulle [BULBUO IIey} Ul Zurpnjout jo
Ayyrqrsuodses pus Aynp oq} Uk pes “1oaomoy “ore sensed oy,

“Burrvey oy} 30

op pus um oq} 30 serjzed em usa o [[LM een ONp be me Jo
0% he 10 sensed od Aq poysonber jr poyuwss og II uf

Son vH

“portsep St Survey [B10 un Jou 40
a0 hen SMOTSSTUIGNS II Ul 078zS OF permbes enn udp u 0} ena
seuonhed 10 40 õ%qnhed em Aq pay gon sofdoo ug un ‘pivog
juounsntpy oy} Jo uofst ad eyetsdoidde om Jo Uwes o OF Pess gap
b ‘porsdeid outyouml 10 wezj11Med4} oq [TBS SUOISSTUIqNS |

“suotssnostp [810 Aresseoouun syouq A at jo
peou oy} Suryeraqs sum uo zes ATOZ oq U dad! ey} uodn Suliveꝗ
ep Suysoddns [je pu’ syouy beten pu jUOUTIEe OW} yey} 198uUeUT
yous ul SuoIsstuqns eivdeid pynoys pavog jyueuysn{py eq} jo odoos
eq} UIGIIM sotjied i sBurpesdoid ey1pedxe pus aun GA1estod OF,

‘IVaaNGf)

Ir

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.

re

regular members and in
ward was rendered.

Referee John A. Lapp when a

FIRST DIVISION

42

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:
3

The First Division consisted of the

addition

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60

47

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.

(c) Yardmen failing to make application in writing for a new as-
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.

(c) Enginemen and Firemen transferred from the P. B. & W.
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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($26T ‘OT Your anon)
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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-
pu

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.

49

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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51

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

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*

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

t
d
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s
l,
d
d
ir
0
is
8
*

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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

68 THE WASHINGTON TERMINAL COMPANY vs.

2

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

69

BOSWELL, BURKHBAD, BRIDGES, ET AL. 69

3

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

70 THE WASHINGTON TERMINAL COMPANY vs.

4

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

71

5

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.

6

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

75

9

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.

10

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.

77

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

78 THE WASHINGTON TERMINAL COMPANY vs.

12

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:

79

13

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.

14

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

81

15

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.

16

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:

83

17

„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.

18

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 o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0056%3A1. Public record. Not legal advice.