Amicus Curiae Brief — Ex parte Cassidy

The first question: Whether either party to a dispute over

which the Adjustment Board has authority is precluded

from seeking a determination of the dispute by the

courts, either before or after submission of the dispute

Dl iéceneaseteaeeeedsoesersoeneueseoséees

A. The historical background. jeaivemdwmasens

1. The period preceding the present Miadesa

2. The practice of the present Board... .....

3. Tae adjustment boards and the courts... .

B, Whether parties may resort to the courts before

submission of a controversy to the National

Railroad Adjustment Board..................

1. Considerations relating to the Railway

BO dilisiucnecasdes cnerestasennese

2. Considerations applicable to edministra-

tive bodies generally ........ pashan

Sy Gelecewedceceecvces s6060esenees

C. Whether Parties may resort to the courte after

submission of a controversy to the National Rail-

road Adjustment Board..

a While the proceeding ls pending before the

ee

2. After the Board had made its decision Lechadah

a. The adequacy of the remedy... ..

b. The analogy of the Interstate

eo

c. The advantages given the em-

a

The second question: Whether the Board may make an

award es parte if one party to the dispute does not appear

before the Board, and if so the effect given by the statute

See GD Gc cocnscecceccses peeeetesoouecouase

506724—-43—-1

sonnd

CITATIONS

Aint. New York, C. & St. L. BR. Co., 121 F. (2d) 808...

Bredy ¥. Interstate Commeres Commission, 43 F “(@d) 847,

affirmed, sub nom. Brady v. United States, 283 U. 8. 804...

Brand v. Pennayloania R. Co., 22 F. Supp. 569........

Burchell v. Marsh, 17 How. 344

Burke v. Union Pacifie R. Co., 120 F. (2d) 844

Cleapor v. Atlanta, B. & C. R. Co., 123 F. (2d) 374

Cook v. Des Moines Union Ry. Co., 16 F. Supp. 810

Cousina v. Pullman Co., 72 8. W. (2d) 356

Delaware & Hudson R. Corp. v. Williams, 129 F. (2d) 11,

judgment vacated December 7, 1942, Nos. 446-447, this

Estes v. Union Terminal Company, 89 F. (2d) 768.. 27, 34, 54,84

Evans v. Lowisrille & N. R. Co., 191 Ga. 395, 12 8. EB. (2d)

Everly v. Erie R. Co., National Railroad Adjustment Board,

Second Division, Award No. 515.

:

i

v. Chicago, M.., St. Paut & P. R. Co., 298 Ill. App.

GOB, 26 IE. BB. CD WB ic n0 ec ceccccccccccccccoceesscs 30,

Lowisville & N. R. Co. v. Bryant, 263 Ky. 578, 92 8. W. (2d)

Malichan v. Tezas & Pacific Ry. Co., 87 8. W. (2d) 771...

Malone v. Gardner, 62 F. (2d) 15..........---- 200-000

Marine Transit Co. v. Dreyfus, 24 U. 8. 263... .........

Matlock v. Gulf C. & 8. F. Ry. Co., 9 8. W. (2d) 1056....

McDermott v. New York Central R. Co., 32 F. Supp. 873... 30, 52

Meeker & Co. v. Lehigh Valley R. Co., 236 U. 8, 412... 58, 62, 91

SsSs3 & Ss B St &

Mitchell Coal Co. v. Pennayleania R. R. Co., 230 U. 8 247... 43

Moore v. Illinois Central R. Co., 312 U. 8. 680........... 30,

31, 35, 36, 41, 48, 49, 57, 83

Myers v. Bethlehem Shipbuilding Corp., 303 U. 8. 41...... 53

Nickey v. Mississippi, 202 U. 8. 303... .. ~~... -----nen 62

Nord vy. Griffin, 86 F. (2d) 481, certiorari denied, 300 U. 8.

673... 26, 31, 34, 35, 48, 55, 84

Pacific Live Stock Co. v. Oregon Water Board, 241 U. 8. 440. 62

Penn General Casuaity Co. vy. Pennayleania, 204 U. 8. 189. . 52

Pennsylvania Railroad Company v. Railroad Labor Board,

S86 GU. B Tircccdvcoccoceseccccesecescescontstvesee 13

Pennsyloania Railroad System and Allied Lines Federation

v. Pennsyloania Railroad Company, 267 U. 8. 203... ... 13

Pennsyloania R. R. Co. v. International Coal Co., 230 U. 8.

DOE .coccccececececouocecessoesoveccesoosesdosocues 44

Pennayloania R. R. Co v. Puritan Coal Co., 237 U. 8. 121... 44

Pennsyloania R. R. Co. v. Sonman Coal Co., 242 U, 8. 120. . “4

Pittaburgh & W. V. Ry. Co. v. United States, 6 ¥. (2d) 646. 63

Princess Lida v. Thompson, 305 U. 8. 456.........----+- 52

Railroad Yard Masters of North America v. Pittsburgh &

Lake Erie R. Co., 39 F. Supp. 876..............--..-- 34

Reconstruction Finance Corp. v. Bankers Trust Co, Nos

387-388, decided February 8, 1943... ...........-.-- 85

Reed v. St. Lowia 8. W. R. Co., 95 8, W. (2d) 887........ 30

Iv

Cases—Continued.

Rochester Telephone Corp. v. United States, 307 U.S. 125. 63, 84,

Rudd v. Minneapolis, ete., Ry. Co., National Railroad Ad-

justment Board, Third Division, Award No. 1718

Shields v. Utah Idaho Central R. Co., 305 U. 8. 177

Smith v. Tezas & N. O. Ry. Co., 32 F. Supp. 1013

Southern Pacific Co., In re, 155 Fed. 1001

Stephenson ¥. New Orleans & N. E. R. Co., 180 Miss. 147,

177 So. 50°

Swartz v. Svsid Buffalo Ry. Co., 44 F. Supp. 447

Swilley v. Galveston, etc., Ry. Co., 96 8S. W. (2d) 105

mbes seanbsin 8 v. Missouri-K.-T. R. Co., 40 F.

Tezas & New Orleans R. Co. v. es Sf Rae

re ee 13, 14

Tezas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U.8.

Tezas & Pacific Ry. Co. v. Rigsby, 241 U. 8. 33

Thomas v. Tezas & N. O. R. Co., 118 F. (2d) 75

Wilson v. New, 243 U. 8. 332

Wyatt v. Kansas City Ry. Co., 101 8. W. (2d) 1082

York & Cumberland R. R. Co. v. Myers, 18 How. 246

Youmans v. Charleston & W.C. Ry. Co., 175 8. C. 99, 178

s8 S8=866

Virginian Ry. Co, v. System Federation No. 40, 300 U. 8. 515.

Virginian Ry. Co. v. System Federation No. 40, 131 F. (2d)

Rituminous Coal Act, c. 127, 50 Siat. 72, 15 U. 8. C., See-

_ tions 828-851

Erdman Act of June 1, 1898, 30 Stat. 424, 425, Sec. 3,

Interstate Commerce Act, ce. 14, 24 Stat. 379, 49 U. 8. C.,

Sections 1-27:

Se edintbesmintpaedinwaudnats vebocetesbdtasiianne 44

43, 44, 62, 63, 70, 91, 92

Longshoremen’s and Harbor W orkers’ Compensation Act, ec.

509, 44 Stat. 1424, 33 U. 8. C., Section 905

National Labor Relations Act, ¢. 372, 49 Stat. 449, 29

U. 8. C., Section 160 (a)

tinued Page

N. Y. Civ. Practice Act, Sections 1456-1458... __._...__- 86, 88

Newlands Act of July 15, 1913, 38 Stat. 103, 105, Sec. 4-- - 73

Packers and Stockyards Act, c. 64, 42 Stat. 159, 7 U. 8. C.,

Roetiend 1b-Gdccke cnn toewtectacdbaplesseedeceut 42

Railway Labor Act as amended June 21, 1934, ¢. 691, 48

Stat. 1185, 45 U. 8. C., Sections 151-163:

Ge: Gn ckestednins snevedésiudtbennsecttaamwarienhens 29, 52

Bed. GB... 220--cce--cceecees 2, 15, 23, 26, 29, 32, 43, 44, 50,

54, 56, 61, 62, 66, 67, 70, 72, 84, 91

OE isso cb deelcsdcckddec cbbadedveeseredauin 72

a a en ee a Me SS A i SS

Safety Appliance Act, c. 160, 36 Stat. 298, ¢. 225, 35 Stat.

BG, @ SG. B DG, Gees Gy Wi cc tscedescccccccccce 42

Geouritice and Exchenge Commission statutes:

c. 38, 48 Stat. 74, 15 U. 8. C., Section 77 p....---.-- ~ 42

c. 411, 53 Stat. 1149, 15 U. 8. C., Section 77 www(b) - - 42

ce. 404, 48 Stat. 881, 15 U. 8. C., Section 78 bb_... .-. 42

c. 687, 49 Stat. 803, 15 U. 8. C., Section 79 p...._.-- 42

Transportation Act, 1920, Title III, ¢. 91, 41 Stat. 456:

ne ee eee 13

i es ee 13

Bh, Bil ciecnswecesdewenketesstiband anesdecndeenst 13

Uniform Arbitration Act, Sections 15-18, 9 U. L. A. 66-70. 86, 87

United States Arbitration Act of February 12, 1925 (43

Stat. 883, 885, 9 U. S. C., Sec. 10), Section 10......... 86, 87

Miscellaneous:

Attorney General’s Committee on Administrative Pro-

cedure:

ee eee 26, 27, 28, 56

Railway Labor, Sen. Doc. No. 10 (Part 4), 77th Cong.,

Ist Sess. (Compilation) __-.-- - - - 24, 26, 27, 33, 37, 38, 39, 45

Compilation: Inquiry of the Attorney General’s Committee

on Administrative Procedure relating to the National

Railroad Adjustment Board, and Historical Back-

ground and Growth of Machinery Set Up for the

Handling of Railroad Labor Disputes, 1888-1940-___- 2,

11, 12, 13, 14, 16, 24, 26, 27, 28, 29, 33, 37, 38, 39, 45

78 Cong. Ree.:

ise dasiswews eA Eel a A 22

Sy ee 21

Garrison, The National Railroad Adjustment Board: A

Unique Administrative Agency, 46 Yale L. J. 567 (Com-

pilation, Appendix, pp. 110-135) wan : 27, 33, 37, 39

Hearings before House Committee on Interstate and For-

eign Commerce on Railway Labor Act amendments, Ps. |

73d Cong., 2¢ Sess. . : 17, 20, 27, 56, 71, 74

Miscellaneous—Continued.

Hearings before Senate Committee on Interstate Com-

merce to amend the Railway Labor Act (8S. 3266, 73d

Cong., 2d Seas. ............---..----- ~~ 16, 18, 19, 20, 57, 91

H. Rep No. 1944, 73d Cong., 2d Sess.............. 17, 21, 22

National Mediation Board, Highth Annual Report_.... 29, 33, 40

National Mediation Board, Seventh Annual Report.....__ 40

National Mediation Board, In the Matter of Protest of

Carrier Members against the appointment of Justice Paul

W. Richards as Referee, decided June 6, 1941... _ 40

Report of the Director General for the Fourteen Months

Ending March 1, 1080, p. 16.............-.--..------ 12

8. Rep. No. 779, 68th Cong., Ist Sess... ............... 15

Spencer, William H., The National Railroad Adjustment

Board (University of Chicago Press, 1938)............. 27

Sturges, Commercial Arbitrations and Awards (1930)...... 87, 88

Wolf, The Railway Labor Board.............. 11, 12, 13, 14,15

§nthe Supreme Gourt of the Wited States

Ocrosern TERM, 1942

No, 28

Tue WASHINGTON TERMINAL COMPANY, PETITIONER

v

F. E. Bosweit, E. R. Burxueap, R. R. Brass,

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPBALS FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINION BELOW

The opinion of the United States Court of

Appeals for the District of Columbia is reported

at 124 F. (2d) 235, and is printed in the record

at R. 331-381. The district court rendered no

opinion.

STATUTE INVOLVED

The statute primarily involved is the Railway

Labor Act as amended June 21, 1934 (c. 691, 48

Stat. 1185, 45 U. 8. C., Sees. 151-163), and par- .

ticularly Section 3 thereof, which creates and

defmes the powers of the Nutional Railroad Ad-

justment Board. The entire Act is printed at

(1)

AE OEE

2

pp. 74-87 of the Appendix to a compilation of

material on the Adjustment Board entitled “Ip.

quiry of the Attorney General’s Committee on

Administrative Procedure relating to the Na-

tional Railroad Adjustment Board, and Histori-

eal Background and Growth of Machinery Set

Up for the Handling of Railroad Labor Disputes,

1888-1940” (hereinafter referred to as Compila-

tion) copies of which have been distributed to

the Court.*

The most important provisions are paragraphs

(i), (3), (m), (0), (p), and (q) of Section 3,

First of the Act. These paragraphs read as fol-

lows:

(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 conditions, including cases pend-

ing and unadjusted on the date of approval

*This volume is a compilation of most of the pertinent

decumentary; material relating to the National Railroad

Adjustment Board. It contains in full the reports of and

proceedings before the Attorney General’s Committee on Ad-

ministrative Procedure dealing with the Adjustment Board,

and reprints the executive orders, collective labor agreements,

and statutes disclosing the history of the Adjustment Board

and also the leading speeches and articles describing its oper-

ation. This publication was compiled by Harry E. Jones,

Executive Secretary, Eastern Committee for the National

Railroad Adjustment Board, New York City. Most of the

documents hereinafter referred to are printed in the Ap-

pendix te the volume (the pink pages).

3

of this Act, shall be handled in

manner up to and including the chief op-

erating officer of the carrier designated to

handle such disputes; but, failing to reach

an adjustment in this manner, the dis-

putes may be referred by petition of the

parties or by either party to the appropri-

ate division of the Adjustment Board with

a full statement of the facts and all sup-

porting data bearing upon the disputes.

(j) Parties may be heard either in per-

son, by counsel, or by other representatives,

as they may respectively elect, and the sev-

eral divisions of the Adjustment Board

shall give due notice of all hearings to the

employee or employees and the carrier or

carriers involved in any disputes sub-

mitted to them.

(m) The awards of the several divisions

of the Adjustment Board shall be stated in

writing. A copy of the awards shall be

furnished to the respective parties to the

controversy, and the awards shall be final

and binding upon both parties to the dis-

pute, except insofar as they shall contain

a money award. In case a dispute arises

involving an interpretation of the award

the division of the Board upon request of

either party shall interpret the award in

the light of the dispute.

(o) In case of an award by any division

of the Adjustment Board in favor of peti-

tioner, the division of the Board shall make

an order, directed to the carrier, to make

the award effective and, if the award in-

>

4

cludes a requirement for the payment of

money, to pay to the employee the sum to

which he is entitled under the award on or

before a day named.

(p) If a carrier does not comply with an

order of a division of the Adjustment

Board within the time limit in such order,

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 operating office of the

carrier, or through which the carrier oper-

ates, a petition setting forth briefly the

causes for which he claims relief, and the

order of the division of the Adjustment

Board in the premises. Such suit in the

District Court of the United States shall

proceed in all respects as other civil suits,

except that on the trial of such suit the

findings and order of the division of the

Adjustment Board 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 appro-

priation for the expenses of the courts of

the United States. If the petitioner shall

finally prevail he shall be allowed a reason-

able attorney’s fee, to be taxed and col-

lected as a part of the costs of the suit,

The district courts are empowered, under

the rules of the court governing actions at

law, to make such order and enter such

judgment, by writ of mandamus or other-

wise, as may be appropriate to enforce or

set aside the order of the division of the

Adjustment Board.

(q) All actions at law based upon the

provisions of this section shall be begun

within two years from the time the cause

of action accrues under the award of the

division of the Adjustment Board, and :not

after.

STATEMENT AND QUESTIONS PRESENTED

Respondents, employees of petitioner, were en-

gaged in a dispute with petitioner as to the inter-

pretation to be given the seniority provisions of

the collective agreement governing the work per-

formed by the respondents. After the parties had

failed to settle the dispute themselves, respondents

submitted their claims to the First Division of

the National Railroad Adjustment Board, which,

on October 24, 1938, ruled in respondents’ favor

(R. 9-10). On December 29, 1938, petitioner

filed this suit for a declaratory judgment, praying

that the agreement be interpreted in accordance

with petitioner’s original contentions and that the

award and order of the Adjustment Board be de-

clared “‘invalid and of no legal force and effect’’

(R. 13-14).

The District Court dismissed the complaint,

holding that there was no actual controversy be-

tween the parties, and that there was a specific

oe

remedy provided by statute for this type of case

(R. 326, 55). The Court of Appeals for the Dis.

trict of Columbia affirmed, on the ground that at

least during the first two years after the Adjust.

ment Board’s award the procedure prescribed in

Section 3, First (p) of the Railway Labor Act was

exclusive (R. 331-381). Before the entry of the

opinion of the Court of Appeals, the two-year pe-

riod expired. This Court granted certiorari

(R. 383).

After argument by the parties, this Court en-

tered the following order:

This cause is restored to the docket for

reargument. On the reargument counsel

are requested to include in their briefs and

oral argument a discussion of the following

questions :

1. Whether either party to a dispute over

which the Adjustment Board has authority

is precluded from seeking a determination

of the dispute by the courts, either before

or after submission of the dispute to the

Board ;

2. Whether the Board may make an

award ex parte if one party to the dispute

does not appear before the Board, and if

so the effect given by the statute to such an

award;

3. The effect of the expiration of the two-

year period specified by Section 3 First

(q) upon the right of either party to the

dispute to obtain a determination of it in

the courts;

7

4. The effect of the words “‘final and

conclusive’’ in Section 3 First (m) upon the

right to resort to the courts and upon the

scope of judicial review, (a) during the

two-year period, and (b) after expiration

of the two-year period.

The Solicitor General is requested to file

a brief, and, if he so desires, to participate

in the oral argument.

This brief is filed pursuant to the above request.

It will discuss the four questions listed in the

Court’s order.

SUMMARY OF CONCLUSIONS

1. A party is not precluded by the adjustment

provisions of the Railway Labor Act from resort-

ing to the courts instead of submitting a dispute

to the Adjustment Board. Once the machinery

of the Act has been invoked, however, extra-statu-

tory legal proceedings are no longer available to

the parties.

2. The Board may make an award although one

party does not appear, and such an award has the

same effect as any other.

3. The expiration of the two-year period speci-

fied in Section 3, First (q) for seeking enforce-

ment of orders of the Adjustment Board does not

enlarge the right of either party to resort to the

courts.

4. The provision in Section 3, First (m) that

non-money awards shall be ‘final and binding”’ is

an indication that Congress intended such awards

to be treated as conclusive except as otherwise

specified in the Act or required by the Constity.

tion. This would mean that where the statutory

remedies are legally adequate, no other proceed-

ings can be brought, and that in any extra-statutory

suits which might be brought, the Board’s awards

would be judicially reviewable to the minimum

extent required by the Constitution. In proceed-

ings under Section 3, First (p), the Board’s

awards would be prima facie evidence of the facts

stated.

These conclusions are based upon what we con-

ceive to have been the intention of the Congress

which passed the Act in 1934. That Congress, we

believe, assumed that paragraph (p) would not

only provide the carrier with an adequate remedy

in theory, but also that the paragraph would be

used by the employees. The latter has not been

the fact. Nevertheless, despite the effect of the

employees’ unforeseen refusal to avail them-

seives of the remedy upon its practical adequacy,

we do not feel free to urge that, because of the

manner in which the Act has operated, it should

be construed in a way not intended by the

Congress,

ARGUMENT

INTRODUCTION

The issues presented by this case arise because

of the effort of Congress to strengthen a bi-

partisan system of adjustment, dependent for its

existence and force upon the agreement of the

parties, by changing it into a compulsory system

finding its roots in mandatory statutory provi-

sions. Labor and management differ as to

whether this transformation affected the basic

nature of the system and the manner in which

it was designed to operate. A consequence of

their conflicting positions has been to impair the

effective functioning of at least the First Division

of the National Railroad Adjustment Board.

The difficult questions which now confront the

Court result, in part, from the failure of Congress

to recognize or be aware of the possible implica-

tions of this change. This is reflected in the novel

and, in so far as involved here, apparently inter-

nally inconsistent language of the Act. In these

circumstances, and in the absence of an express

declaration of any sort, legislative intention is dif-

ficult to ascertain.

WHETHER EITHER PARTY TO A DISPUTE OVER WHICH

THE ADJUSTMENT BOARD HAS AUTHORITY IS PRE-

CLUDED FROM SEEKING A DETERMINATION OF THE

DISPUTE BY THE COURTS, EITHER BEFORE OR AFTER

SUBMISSION OF THE DISPUTE TO THE BOARD

The primary issue presented in this case is

whether a carrier may bring an action for a

declaratory judgment seeking an interpretation of

a railway labor agreement after the same question

has been presented to, and decided by, the National

Railroad Adjustment Board. The Court has also

requested discussion of the separate but related

10

question as to whether the Adjustment Board’s

jurisdiction is exclusive in the first instance.

No provision of the Railway Labor Act ex.

pressly answers either of the questions. Nor is

there definite manifestation of congressional inten.

tion in the immediate legislative history of the Act.

We are thus faced with the task of seeking the

meaning of the Act in relation to a problem which

probably did not occur to the legislative body and

with respect to which it appears to have had no

“consciousness of intention’? whatsoever. Kei-

fer & Keifer v. Reconstruction Finance Corpora-

tion, 306 U. 8. 381, 389. The problem must be

resolved in the light of the purposes of the stat-

ute, and particularly of the provisions relating

to the Adjustment Board. An examination of

the historical backgreund of those provisions

should aid in determining the construction most

likely to achieve the statutory objectives.

A. THE HISTORICAL BACKGROUND “

1. The Period Preceding the Present Act

The present Board is the culmination of a long

period of practice and experimentation in devising

means of settling railway labor disputes. The first

predecessor of the Adjustment Board was the

“ The background and legislative history of the “final and

binding” clause in Section 3, First (m) are set forth sepa-

rately in our discussion of the Court’s Fourth Question,

infra, pp. 71-81. That material, which develops the rela-

tionship between adjustment under the Railway Labor Act

and arbitration, also has a bearing upon the answer to the

First Question.

11

“Commission of Eight’’ created on March 19,

1917, by agreement of the railroads and the

four train-service Brotherhoods, to interpret an

award of the Committee of the Council of Na-

tional Defense settling the eight-hour day contro-

versy.” This commission was composed of four

representatives of the Brotherhoods and four of

the carriers.’

Shortly after the Government took over the rail-

roads during that war, the Director General of

Railroads, by order, established Railway Board of

Adjustment No. 1, which was in substance and

form a continuation of the Commission of Eight

for train service employees.‘ The order, which

made effective a ‘‘memorandum of an understand-

ing,’” previously reached between the Brother-

hoods and the ‘‘directors for the railroads under

government control,’’ provided that ‘‘all contro-

versies growing out of the interpretation or appli-

eation of the provisions of the wage schedule or

agreements which are not promptly adjusted by

the officials and the employees on any one of the

railroads operated by the Government shall be dis-

*See Compilation, pp. 403-404, Appendix, pp. 18-19;

Wolf, The Railroad Labor Board, pp. 50-57. The award

was expressly made to become effective whether or not the

Adamson Act was held constitutional. Although the settle-

ment was obviously agreed upon before the decision of this

Court in Wilson v. New, 248 U.S. 332, it was signed on March

19, 1917, the same day that the decision was rendered.

* Compilation and Wolf, loc. cit. supra.

*See Wolf, supra, pp. 50 et seq.; ee tte Appendix,

pp. 19-22.

60672443. 2

12

posed of in’’ [italics supplied] the manner de-

scribed.’ Deadlocked cases were referable to the

Director General ; ‘“‘but practically every case”’ was

amicably settled by a majority vote of the Board.’

During succeeding months two similar oards were

established for the shopcrafts and for other na-

tional labor organizations."

This machinery was revogyized as applicable

only to the members of the major railway labor

organizations signatory to the understanding.’

By order of the Director General the cases of “‘em-

ployees not represeated by Railway Boards of

Adjustment’’ werz to be handled by the individual

or his represer<ative in the same manner up to .

* The Board consisted of an equal number of representa-

tives of the carriers and the labor organizations. Section 10

of the memorandum, in language similar to that in the pres-

ent Acc, provided that “Personal grievances or controversies

arising under interpretation of wage agreements, and all

other disputes * * * covered by this understanding,

will be handled in their usual manner by general committees

of the employees up to and including the chief operating

officer of the railroad (or someone officially designated by

him), when, if an agreement is not reached, the chairman of

the general committee of employees may refer the matter to

the chief executive officer of the organization concerned, and

if the contention of the employees’ committee is approved

by such executive officer” then the matter shall be jointly

submitted to the board of adjustment. In the proceedings

before the Board the employees were to be represented by

the person designated by the chief executive officer of the

organization concerned. bid.

* See ibid; Report of the Director General for the Four-

teen Months Ending March 1, 1920, p. 15.

* Compilation, Appendix, pp. 23-30; Wolf, supra.

* Wolf, supra, pp. 52-53.

ll

the chief operating officer of the carrier, and then-

if not settled, submitted to the Division of Labor

of the Railroad Administration.’

These orders became inoperative after the car-

riers were returned to private ownership. Rail-

way labor relations were subsequently governed

by Title IIL of the Transportation Act, 1920 (ce.

91, 41 Stat. 456). Although it had been proposed

that adjustment boards be made compulsory, Sec-

tion 302 of the 1920 Act provided only that—

Railroad Boards of Labor Adjustment -

may be established by agreement between

any carrier, group of carriers, or the car-

riers as a whole, and any employees or

subordinate officials of carriers, or organi-

zation or group of organizations thereof.”

[Italics supplied. }

Such adjustment boards were to hear cases sub-

mitted by the carriers or labor organizations, o7

‘upon the written petition signed by not less than

100 unorganized employees’? (Section 303). If

no adjustment board was established, or if an ad-

justment board failed to reach an agreement, the

dispute was to be submitted to the Railroad Labor

Board (Section 307).

* Compilation, Appendix, pp. 30-32.

1° Compilation, Appendix, p. 83; Wolf, supra, pp. 91, 267.

1 This Board was composed of three representatives of the

public, three of management, and three of labor. Its func-

tions are described in Pennsylvania Railroad Company v.

Railroad Labor Board, 261 U.S. 72; Pennsylvania Railroad

System and Allied Lines Federation v. Pennsylvania Rail-

road Company, 267 U. 8. 208; Tewas & New Orleans R. Co.

v. Brotherhood of Railway Clerks, 281 U. S. 548.

id

Although the Act was passed in the belief that

adjustment boards would be established, the ecar-

riers and the labor organizations were not able to

agree upon whether national or system boards

should be created.“ Accordingly, no general

scheme of adjustment boards was established.

One result of this was that the Railroad Labor

Board was swamped with a vast number of minor

cases and was unable to devote adequate time to

the larger issues with which it was expected

primarily to deal.”

Three regional adjustment boards, however,

were created, by agreement between the four

train-service brotherhoods and many of the car-

riers. These agreements were substantially simi-

lar to those entered into during the War; they

provided that disputes ‘‘shall be’’ disposed of in

the manner provided. Unsettled cases were to be

certified to the Railroad Labor Board.”

In 1926, after the break-down, for many rea-

sons,” of the machinery established in Title ITI

* Wolf, supra, pp. 267-273. As in 1934, the employees

sought a national board and the carriers system boards.

8 Tbid.

“Wolf, supra, pp. 273-276; Compilation, Appendix, pp.

89-53. The agreements conformed to the statute in that

after submission to the chief operating officer of the carrier,

disputes could be filed with the Board either by the chief of

the labor organization or by petition of 100 unorganized

employees.

** See Wolf, supra, pp. 358 et seq.; Texas & New Orleans

R. Co. v. Brotherhood of Railway Clerks, 281 U. 8. 548,

563; Virginian Ry. Co. v. System Federation No. 40, 300

U. S. 515, 542.

15

of the Transportation Act, the Railway Labor

Act was enacted in its place (44 Stat. 577). Sec-

tion 3 of this statute indicates an intention that the

establishment of adjustment boards was manda-

tory; it provided that—

* * * Boards of adjustment shall be

created by agreement between any carrier

or group of carriers, or the carriers as a

whole, and its or their employees.” [Italics

supplied. ]

* * 7: 7 *

The section went on to state that disputes of the

type here in question “shall be handled in the

usual manner up to and including the chief oper-

ating officer of the carrier * * *; but, failing

to reach an adjustment in this manner, that the

dispute shall be referred to the designated adjust-

ment board by the parties, or by either party

* * * [Italics supplied.] (Section 3, First

(c)).

As might have been anticipated, the change

from “‘may”’ to “shall’’ in the 1926 Act did not

in itself succeed in bringing agreement between

%* The labor organizations had previously supported the

Howell-Barkley Bill which was favorably reported to the

Senate in 1924, but which failed to pass. See Senate Re-

port No. 779, 68th Cong., Ist Sess.; Wolf, supra, pp. 406-

415. This bill provided for national adjustment boards.

Presumably the substitution in the 1926 bill of the provision

for the establishment of boards by agreement only was a

concession to the carriers in order to get them to join with

the labor organizations in submitting the latter bill to

Congress.

16

earriers and employees as to the kind of adjust-

ment board to be created. The carriers still in-

sisted on system boards and the Brotherhoods

on a national board.” The boards previously es-

tablished for train service employees were con-

tinued, however, and a new board created for the

southwestern region.” In addition, a number of

11 The situation was picturesquely described by Chairman

Winslow, of the Board of Mediation, before the Senate Com-

mittee on Interstate Commerce, at the Hearings on the 1934

amendments (Hearings on S. 3266, 73d Cong., 2d Sess., p.

137), as follows:

“The provision in the present act for adjustment boards

is in practice about as near a fool provision as anything

could possibly be. [Laughter.] I mean this—that on the

face of it they shall, by agreement, do so and so. Well, you

can do pretty nearly anything by agreement, but how can

you get them to agree? No way has yet been found, where

difficulties have come up. But the curious part is that they

can work entirely within the provisions of law and never

agree, so you never get an adjustment board. Side A, for

instance, wants a system board. Side B wants a regional

board, to illustrate. And they are both subscribing to that

provision of law; they both want boards; they are broken-

hearted to think that they can’t get them [laughter], but

they never will agree on the board. So what good is it? It

is utterly impractical and absolutely a mess * * *.”

* Compilation, p. 410, Appendix, pp. 57-61. The new

train service agreement was substantially the same as the

earlier ones, except that it omitted the provision required

by the 1920 Act for submission of cases by unorganized em-

ployees (/bid.). The older agreements were modified so as

to make unsettled cases referable to the Board of Mediation

instead of to the Railroad Labor Board, and so as to indicate

that only organizations party to the agreement could sub-

mit cases to the Board (/d., at 47, 49, 54, 56).

—— ee

17

system boards, were created for other classes of

employees.

But in many instances the carriers and the

employees were unable to reach agreement on

whether or not to establish boards of adjustment.

See H. Rep. No. 1944, 73d Cong., 2d Sess., p. 3.

Moreover, the 1926 Act contained no machinery

to deal with the cases in which the carrier and

labor members of the Boards, who were equal in

number, failed to agree. As a consequence,

‘Many thousands of these disputes have been con-

sidered by boards established under the Railway

Labor Act; but the boards have been unable to

reach a majority decision, and so the proceedings

have been deadlocked” (Ibid.). The Board of

Mediation was flooded with these deadlocked cases,

to be handled through mediation in addition to its

other duties.” The result of the failure of the

parties to agree to establish adjustment boards, or

of the members of such boards to reach decisions

was that ‘‘unadjusted disputes have become so

numerous that on several occasions the em-

ployees have resorted to the issuance of strike bal-

lots and threatened to interrupt interstate com-

merce in order to secure an adjustment”’ (Ibid.).

19 See the testimony of Chairman Winslow at the Hearings

before the House Committee on Interstate and Foreign Com-

merce on Railway Labor Act amendments (H. R. 7650) , 73d

Cong., 2d Sess., p. 72 (hereinafter referred to as “House

Hearings”). In 1934 the name of the Board of Mediation,

created by the 1926 Railway Labor Act, was changed to

“National Mediation Board.”

$<.

There was substantial agreement as to the need

for correcting these conditions. Federal Coordi-

nator of Transportation Eastman, who submitted

and explained the bill which became the 1934 Act

to the congressional committees, summed up the

views of the -carriers and the employees on this

question as follows (Hearings before Senate Com-

mittee on Interstate Commerce, to amend the Rail-

way Labor Act (S. 3266), 73d Cong., 2d Sess., pp.

152-153, hereinafter referred to as ‘Senate

Hearings’’) :

* * * Apparently it is agreed by all

that the provision in the present act for

boards of adjustment has been ineffective;

(1) because the establishment of such

boards has not been compulsory, and (2)

because there has been no way to prevent

deadlocks in those which have been set up.

The employees want a National Board of

Adjustment, divided into four sections, to

be created definitely and certainly; and the

railroads, as I understand them, are will-

ing fo have 16 regional boards of adjust-

men* set up. Both parties are willing to

permit system or other local boards of

adjustment to be set up by agreement,

so long as the arrangement is otherwise

within the terms of the act. Both are will-

ing to have neutral members appointed,

and by the Mediation Board if necessary,

in order to prevent deadlocks.

The Coordinator favored the establishment of a

national board, although he conceded that the

—

19

plan was experimental, that there was something

to the carriers’ objection that such a board might

“bog down with a multitude of docketed but

undecided cases’’ (id., at p. 18), that the plan

depended for its success ‘‘very largely upon the

wisdom with which it is administered, both by

the actual members of the board and also by the

parties which stand behind them, namely, the

carriers and the labor organizations,’ (ibid) and

that either side could ‘‘make the experiment fail’’

(id., at p. 19).

Mr. Eastman advanced as one of the advantages

of a national board, as contrasted with regional

boards, the desirability of ‘‘a more uniform settle-

ment of these disputes’’; this he felt would ulti-

mately ‘‘tend to reduce very materially the num-

ber of disputes which could not be settled locally’’

(id. at 154, 155). In this connection he stated:

I also have the feeling that the national

board will have a very distinct advantage,

because it can establish certain precedents

of general application which should furnish

a guide for deciding cases locally. As a

matter of fact the same rules are now in-

terpreted in many different ways through-

out the country, and that is one reason why

grievances which arise remain unsettled,

because there is disagreement as to what

the same language means and a great vari-

ety of interpretations. If we had one

board, nation-wide, setting precedents in

these matters, I think the tendency would

be to establish guides which would enable

a great many of the Jesuse to be eattlod af

home.” * *

+ * * a *

Furthermore, I have the feeling that it is

very desirable to have a more uniform set-

tlement of these disputes. These matters

that we are now dealing with are griey-

ances. They are not the basic rates of pay

or the basic working rules and the inter-

pretation of those rules or grievances which

men have, and it doesn’t seem to me that

it is necessary to have any number of dif-

ferent ways of disposing of those all over

the country, and that the national board

could soon set certain precedents which

would discourage and limit the number of

such disputes which would arise, because it

would be perfectly clear what the outcome

would be if they were preferred to the na-

tional board.”

Uniformity in applying railway labor agree-

ments is, of course, more likely to be achieved if

all disputes must first go to a national board

rather than to the numerous state and federal

courts. Thus, although Mr. Eastman was speak-

ing only of the advantages of national over re-

gional adjustment boards, his remarks are also

pertinent here.

As a result of opposition on the part of the car-

riers to a national adjustment board, two new

2° House Hearings, supra, p. 48.

*t Senate Hearings, supra, p. 155.

sc naamamammanamcms

- 21

paragraphs, now Section 3, First (w), and 3, Sec-

ond, had been added to the bill by the time it

eame before the House Committee. They pro-

vided (1) that any division of the adjustment

board might establish regional boards, and (2)

that any carrier or group of carriers could agree

with the representatives of its or their employees

to establish system, group, or regional boards,

which would take the place of the national board

in so far as that carrier or carriers were con-

cerned. Mr. Eastman supported the bill with

these amendments, which he thought sufficient to

meet the objections raised. This would seem to

indicate that the uniformity in decision which

might have resulted from the creation of only a

single board was regarded as less consequential

than the establishment of boards satisfactory to

the parties. The important thing, obviously, was

to have an adjustment board, whether local, re-

gional, or national, definitely available for all

disputes of the type in question.

The bill, substantially in the form submitted by

Mr. Eastman (78 Cong. Rec. 12391, 12371), was re-

ported favorably by both legislative committees.

The House report (H. Rep. No. 1944, 73d Cong.,

2d Sess.), after summarizing the conditions which

made the amendment necessary, stated (p. 3):

This condition should be corrected in the

interest of industrial peace and of uninter-

rupted transportation service. This bill,

therefore, provides for the establishment of

——

22

a national board of adjustment to which

these disputes may be submitted if they

shall not have been adjusted in conference

between the parties. * * * [Italics sup-

plied. ]

When the carriers and employees could agree

to establish similar regional or system boards,

they were to be “‘exempt from the jurisdiction of

this National Board”’ (id.,p.4). Ifa board dead-

locked on a decision, impartial referees were to be

chosen by the board members, or if necessary, by

the Mediation Board. The House report” ¢on-

cludes (ibid.) :

The committee is confident that this bill

strengthens the Railway Labor Act, where

it is necessary to do so, and feels sure that

if the act is amended as proposed in this

bill, it will provide effective and adequate

machinery to adjust controversies between

the earrier managements and employees.

It will assure employees the right to bar-

gain collectively and will contribute im-

measurably to the establishment and main-

tenance of industrial peace.

2 The debates on the 1934 Act add little to the committee

reports. The only remarks which might seem to bear upon

the question is that of Representative Mead, supporting the

bill, who stated that “* * * this bill sets up an orderly

procedure for the settlement of grievances and disputes that

arise upon the railroads of the country. It augments and

supplements existinglaw; * * *” (78 Cong. Rec. 11718).

This suggests that preexisting judicial remedies were not to

be destroyed. But this statement referred to the Act gener-

ally, and may not have had the present problem in mind.

23

The Act was passed in June 1934 without any

change in these provisions (48 Stat. 1185).

2. The practice of the present Board.

As has been shown, the present Adjustment

Board is an outgrowth of the boards established

by agreement of the parties. Under such agree-

ments, disputes were first to be handled on the

property of the carrier, and when they were not

disposed of satisfactorily at that stage, the mem-

bers of the boards were to settle the disputes by

“adjustment,” a process which was probably in

part adjudication and in part bargaining. The

preliminary stages of negotiations on the prop-

erty are the same under the Railway Labor Act

as under the earlier agreements, and the Board

itse!® is selected by the parties in substantially

the s*me manner as its predecessors. The source

of the present Board’s powers, however, is not the

will of the parties, but the statute. The Act

makes provision for referees if the parties dead-

lock on awards, and thus permits decisions to

which the parties have not agreed (Sec. 3, First

(1)). It seems to impose certain of the funda-

mental procedural requirements common to fed-

eral administrative bodies. (See Sec. 3, First

(j).) And the Board’s decisions can be enforced

in the courts in the same manner as those of such

familiar agencies as the Interstate Commerce

Commission (Sec. 3, First (p)).

Whether in this background ‘‘the work of the

Board should be denominated ‘adjustment’, as the

ee ee

ee,

Board’s name implies, or whether it is adjudica-

tion, is a matter of interpretation on which opin-

ions differ widely. The question is not merely the

empty one concerning what labels should be at-

tached for convenience, but it is one on which sev-

eral important problems hinge. In a sense, the

Board’s work is only an extension of the machin-

ery for settling disputes on the property of the

carriers. When the employee and his foreman

discuss a grievance of the employee, they are ad-

justing rather than adjudicating, and the same is

true when the representative of the local union

considers the case with the local superintendent.

The controversy does not take on an adjudicatory

character as it goes on up through the hierarchy

of railroad and labor representatives. If the con-

troversy is not settled on’ the property, the ques-

tion then is presented to still other ‘representa-

tives’ of the parties, namely, the members of the

Adjustment Board. The ¢arrier and labor mem-

bers differ in their analysis of the work of the

divisions.’”’ Attorney General’s Committee on

Administrative Procedure, Railway Labor, Sen.

Doe. No. 10 (Part 4), 77th Cong., Ist Sess., pp.

4-5 (Compilation, pp. 230-232). The carrier

members have maintained that ‘“‘the most cursory

examination of the nature of the arguments put

up to the Board and the grounds of its decisions

where these are given, conclusively demonstrates

that it regards its function as one of strict legal

interpretation rather than compromise and ad-

justment’’ (ibid). The labor members, on the

other hand, have taken the position that the Board

“should operate as a continuation of the confer-

ence room method employed upon the various

properties where men and management ‘talk

things through,’ argue the meaning of rules, dis-

cuss the application in effect under those rules,

and finally attempt to reach an equitable ‘adjust-

ment’ based upon our practical knowledge of how

things are done ‘back home’ ’’ (ibid). The Attor-

ney General’s Committee found that “in any

event, when a referee is called in, the proceeding

before the Board is much like true adjudication’”’

(ibid).

This Court is not now called upon to resolve the

troublesome question as to the nature of the Board

and its functions. We have called attention to the

controversy, however, because it affects the prac-

tice of the Board in several respects pertinent

here.

(a) As a result of their view that the Board is

a continuance of the negotiations on the property,

the employee members have refused to permit the

Board to hear cases not submitted by the organi-

zation representing the majority of a craft or

class. Each division of the Board deadlocks as to

whether cases submitted by individuals may be

heard at all, and the result has been that they have

not been heard.” In at least three instances ref-

erees appointed to break such deadlocks have held

that individuals have no standing before the

Board. Gooch v. Ogden Union Ry. Co., National

Railroad Adjustment Board, Second Division,

Award No. 514 (Referee McAllister); Everly vy.

Erie R. Co., id., Award No. 515 (Referee McAllis-

ter); Rudd v. Minneapolis, etc. Ry. Co., National

Railroad Adjustment Board, Third Division,

Award No, 1718 (Referee Sharpe). Whether this

result is right or wrong,” it has the effect of pre-

venting persons whose cases are not sponsored

** This question is discussed in Attorney General’s Com-

mittee on Administrative Procedure, Railway Labor, Sen.

Doc. No. 10 (Part 4), 77th Cong., Ist Sess., pp. 7-10; Com

pilation, pp. 233-234. The Final Report of the Attorney

General’s Committee on Administrative Procedure states (p.

188) : “The Board has deadlocked upon the question whether

employees in person, as distinguished from labor organiza-

tions, should be permitted to bring their claims before the

Board. The effect of this deadlock has been that no such

claims are set down for hearing.”

* The statute declares that the Board shall hear “disputes

between an employee or group of employees and a carrier

or carriers” (Section 3, First (i)), that “Parties may be

heard either in person, by counsel, or by other representatives,

as they may respectively elect” (Section 3, First (j)), that

notice of hearing shall be given “to the employee or employees

and the carrier or carriers involved” (idid.), and that any

person for whose benefit an award is made may sue on the

award in a United States District Court (Section 8, First

(p)). (Italics supplied.) The courts have indicated that

they disagree with the view that individuals have no right

to appear before the Board except through the labor organi-

zations. General Committee of Brotherhood of Locomotive

Engineers v. Southern Pacific Company, 182 F. (2d) 194

(C. C. A. 9); Nord v. Griffin, 86 F. (2d) 481 (C. C. A. 7),

27

by the majority organization from having their

claims decided by the Board, and if the Board

were regarded as having exclusive jurisdiction,

would make the organizations’ decisions as to

their cases conclusive.

(b) The Board’s procedure is more closely akin

to that of the boards which were its predecessors

than to that of the ordinary administrative agency.

There are no responsive pleadings; both sides

of the case must be submitted simultaneously

(Attorney General’s Committee on Administrative

Procedure, Railway Labor, Sen. Doc. No. 10 (Part

4), 77th Cong., Ist Sess., pp. 11-12 (Compilation,

pp. 238-239)). The material submitted consists

of intermingled fact and argument; the Board has

no power of subpoena and evidence is not taken,

although oral arguments are heard (id., at pp.

12-14, Compilation, pp. 239-242). The case is

explained to the referee by the other members of

the Board, not by the parties (id., at pp. 15-16,

Compilation, pp. 242-243). Although the Attor-

ney General’s Committee made some suggestions

for the improvement of this procedure, it did not

find it to be fundamentally unfair. See Final

Report of the Attorney General’s Committee on

Administrative Procedure, pp. 185-188; see also

Garrison, The National Railroad Adjustment

certiorari denied, 300 U. S. 678; Estes vy. Union Terminal

Company, 89 F, (2d) 768 (C. C. A. 5). See also House

Hearings, p. 88; William H. Spencer, 7'he National Railroad

Adjustment Board (University of Chicago Press, 1938), p.

39, Compilation, Appendix, p. 189.

506724—43—_ 8

28

Board: A Unique Administrative Agency, 46 Yale

L. J. 567 (1937), reprinted in Compilation, Ap-

pendix, pp. 110-135. The facts of the cases are

usually well known to the parties and disclosed by

the file of the negotiations on the property. The

Attorney General’s Committee estimated that in

only five percent of the cases were there any fact

issues with respect to which evidence would have

been helpful (Final Report, p. 187).

The Court is not, of course, required in this

case to pass upon the validity of these departures

from orthodox administrative procedure. We

have referred to them so that the Court may have

the information before it, in view of petitioner’s

contention that the Board’s procedure should be

given consideration in determining whether the

Board’s jurisdiction is exclusive and its awards

‘final and binding.”’

(ce) The bipartisan nature of the Board is re-

flected both in its inability to agree on rules of

procedure and in the failure of the First Division,

from which this case arose, to keep up with its

docket. In 1940, when the report of the Attorney

General’s Committee on Administrative Proce-

dure was prepared, the Division was ‘‘more than

three years behind its docket” (p. 188). Between

1940 and 1942 the number of undisposed cases on

hand at the close of the fiscal year rose from

4298 to 6033, leaving the Division between four

and five years behind (National Mediation Board,

29

Eighth Annual Report, p. 45)." The members

of the Division have been unable to agree upon a

means of removing this congestion, although the

statute permits them to sit in panels (Sec. 3, First

(k)), or to establish regional boards (Sec. 3, First

(w)).” This condition might affect the desir-

ability of making the Board the exclusive forum

for the disposition of such cases.

3. The adjustment boards and the courts.

The reported cases arising before the 1934 Act,

and involving the interpretation of railway labor

agreements establishing an adjustment procedure,

fall into several categories. Some of these pro-

ceed to interpret the agreement without regard

for, or even awareness of, the availability of any

other procedure, although it would appear that

an adjustment board covering the employees and

carriers involved was in existence.” Other cases

hold that an employee must avail himself of the

adjustment provisions of the contract governing

* The Railway Labor Act of 1984 was entitled “AN

ACT * * * to provide for the prompt disposition of

disputes between carriers and their employees” (48 Stat.

1185. [Italics supplied.] See also Sec. 2 (General Pur-

poses (4, 5)).

* At the present time the Office of Defense Transporta-

tion, at the request of the President, is endeavoring, thus

far unsuccessfully, to see if the parties will agree to steps

through which the jam can be broken.

* See, e. g., Louisville & N. R. Co. v. Bryant, 263 Ky. 578,

92 S. W. (2d) 749 (1936). The Louisville & Nashville Rail-

road was a party to the agreement creating a Southeastern

Regional Adjustment Board for train service employees

(Compilation, Appendix, pp. 39-42; see pp. 14, 16, supra).

30

his crafts before resorting to the courts; these

decisions generally are based upon the principles

of contract law,” although there is occasional

reference to the Railway Labor Act as well.”

And another group of cases holds that an em-

ployee can go to court without availing himself

of the remedies prescribed in the contract or un-

der the Act where for one reason or another such

action would be futile.”

After the 1934 Act became effective, but before

this Court’s decision in Moore v. Illinois Central R.

Co., 312 U. 8. 630, there were only a few reported

instances of suits brought by employees who had

not gone to the Adjustment Board.“ The Fifth

* Harrison v. Pullman Co., 68 F, (2d) 826 C. C. A. 8);

Bell v. Western Railway, 228 Ala. 328, 153 So. 484 (1984) ;

Wyatt v. Kansas City Ry. Co., 101 8. W. (2d) 1082 (Tex.

Civ. App., 1937); Swilley v. Galveston, etc., Ry. Co., %

S. W. (2d) 105 (Tex. Civ. App., 1986) ; Matlock v. Gulf, 0.

& 8. F. Ry. Co., 99 8. W. (2d) 1056 (Tex. Civ. App., 1986) ;

Cousins v. Pullman Co., 72 8. W. (2d) 356 (Tex Civ. App.,

1984); Reed v. St. Louis 8. W. R. Co., 95 8. W. (2d) 887

(Mo. App., 1936).

* Bell v. Western Ry., 228 Ala. 328, 153 So. 434 (1934) ;

Wyatt v. Kansas City Ry. Co., 101 8. W. (2d) 1082 (Tex.

Civ. App., 1987).

” Youmans v. Charleston & W. C. Ry. Co., 175 8. C. 99,

178 S. E. 671 (1985) ; Mallehan v. Tewas & Pacific Ry. Co.,

87 S. W. (2d) 771 (Tex. Civ. App., 1935).

™ McDermott v. New York Central R. Co., 82 F. Supp. 873

(S. D. N. Y.); Hvans v. Louisville & N. R. Co., 191 Ga. 395,

128. E. (2d) 611 (1940) ; Ledford v. Chicago, M., St. Paul &

P. &. Co., 298 Til. App. 298, 306, 18 N. E. (2d) 568 (1989).

In the Ledford case the complainants had sought to go to the

Adjustment Board, but the Board had refused to docket the

case. See pp. 25-26, supra.

31

Circuit Court of Appeals had held in the Moore

case itself that preliminary resort to the Adjust-

ment Board was unnecessary, and there was a dic-

tum to the same effect in Nord v. Griffin, 86 F. (2d)

481, 483-484 (C. O. A. 7), certiorari denied, 300

U. S. 673. There have been several independent

court actions by employees since then.” These

cases have held that under the rule of the Moore

case an employee has an election between suing in

court and proceeding before the Board, but that he

cannot do both.” §So far as we know, there have

been no cases brought by carriers before submis-

sion of a claim to the Adjustment Board,

More significant than the small number of de-

cisions is the apparent attitude, if it can be so

called, of the parties toward the judicial method

of resolving this type of controversy. In so far

as the legislative history of the 1934 Act indi-

cates, it never occurred to anyone that the courts

afforded a forum in which such matters might be

determined. Prior to 1934, it was assumed that

if disputes were not disposed of by the parties

amicably or by an adjustment board the only

alternative was to threaten the use of economic

* ™ Adams v. New York, 0. & St. L. R. Co., 121 F. (2d) 808,

810 (C. C. A. 7); Austin v. Southern Pac. Co., 128 P. (2d)

89 (Cal. App., 1942) ; Burke v. Union Pacific R. Co., 129 F.

(2d) 844 (C. C. A. 10); Swartz v. South Buffalo Ry. Co., 44

F. Supp. 447 (W. D. N. Y.).

* Adams v. New York, 0. & St. L. R. Co., 121 F. (2d)

808, 810 (C. C. A. 7); Austin v. Southern Pac. Co., 123 P.

(2d) 39 (Cal. App., 1942).

32

force. We do not know whether the failure of

the employees to resort to the courts was due

to a belief that such matters could not be heard

in the courts, to a belief that the judicial remedy

was expensive and time consuming and that the

carrier had superior facilities for engaging in

litigation (R. 334), to a feeling that the courts

were not sufficiently expert or inclined to under-

stand the employees’ point of view, or merely

to the employees’ greater faith in their own bar-

gaining power—or to these factors in combi-

nation. Whatever the reason, it is clear that the

industry regarded some other type of machinery as’

essential.

The reluctance of labor to use the courts is

evidenced by its failure to make any extensive use

of the enforcement procedure available under

Section 3, First (p) after awards had been en-

tered in its favor. The various divisions of the

Adjustment Board have entered thousands of

awards.“ Only a few have been enforced through

proceedings instituted under paragraph (p).”

“ The number of awards is stated in the Annual Reports

of the National Mediation Board.

* Reported cases are: Atlantic Coast Line R. Co. v. Pope,

119 F. (2d) 39 (C. C. A. 4); System Federation No. 59 v.

La. & Ark. Ry. Co., 119 F. (2d) 509 (C. C. A. 5), certiorari

denied, 314 U. S. 656; Thomas v. Texas & N. O. R. Co., 118

F. (2d) 75 (C. C. A. 5) (for the same case see also 162 S. W.

(2d) 1039 (Tex. Civ. App., 1942)) ; Cleapor v. Atlanta, B.

& 0. R. Co., 123 F. (2d) 874 (C. C. A. 5); Virginian Ry.

Co. v. System Federation No. 40, 181 F. (2d) 840 (C. C, A.

4); Smith v. Texas & N. O. R. Co., 32 F. Supp. 1013 (W. D.

33

The Attorney General’s Committee on Adminis-

trative Procedure found: ”

Theoretically, the railroads do not need to

comply with an award until an action is

brought in court to enforce the award.

The theory does not accord with the fact,

however. Of about 5,000 awards that the

Board has made to date, not more than

a half dozen enforcement proceedings in

court have been brought, and yet the great

preponderance of the awards have been

complied with. Some awards, however, are

never enforced either by court action or by

economic force, either because of doubts as

to the success of litigation, or because of

insufficient general importance.

This report, an article by Dean Lloyd Garrison,”

and the brief of the respondents in the District

Court (R. 103) recognize that the primary sanc-

tion relied on to enforce the Board’s orders has

been the economic bargaining power of the em-

ployees, and we do not think it will be denied

that the employees’ organizations whose cases are

La.) ; Alabama State Federation v. Kurn, 46 F. Supp. 385

(N. D. Ala) ; System Federation No. 8 v. Missouri-K.-T. R.

Co., 40 F. Supp. 803 (N. D. Tex.) ; Cook v Des Moines Union

Ry. Co., 16 F. Supp. 810 (S. D. Iowa). Only the last of

these cases involved a decision of the First Division of the

Adjustment Board.

* Attorney General’s Committee on Administrative Pro-

cedure, Railway Labor, Sen. Doc. No. 10 (Part 4), 77th

Cong., 1st Sess., p. 6 (Compilation, p. 233).

* Garrison, The National Railroad Adjustment Board: A

Unique Administrative Agency, 46 Yale L. J. 567, 591-592

(1987) (Compilation, Appendix pp. 129-130).

34

handled by the First Division have adopted the

policy of not taking cases to the courts.” There

have been approximately eight threats to strike

against carriers which declined to comply with

orders of the Adjustment Board. These disputes

were al] settled peacefully, generally through com-

pliance by the carrier with the Board’s awards.”

There have also been a few suits to enjoin car-

riers from giving effect -to Adjustment Board

orders. Nord v. Griffin, 86 F. (2d) 481 (C. C. A.

7), certiorari denied, 300 U. 8. 673; Estes v.

Union Terminal Co., 89 F. (2d) 768 (C. C. A. 5);

Brand v. Pennsylvania R. Co., 22 F. Supp.

569 (E. D. Pa.); Stephenson v. New Orleans &

N. E. R. Co., 180 Miss. 147, 177 So. 509 (1937);

Railroad Yardmasters of North America v. Pitts-

burgh & Lake Erie R. Co., 39 F. Supp. 876 (N. D.

Ohio). These cases have generally been brought

by employees aggrieved by Board decisions affect-

ing their seniority, not by the railroad labor or-

ganization, and injunctions have been granted

when it was found that the Board had violated due

., ™ The position of the employees’ representatives is that if

they accept the awards, the carriers should do likewise, that

they have no means of contesting an award when they lose

and that accordingly it is unfair to give the carrier a chance

to challenge an award when it loses, that taking the cases to

court would cause further long delays before awards were

obeyed, and that the carriers have a large body of lawyers

available to give them an unfair advantage over the em-

ployees if cases have to be taken to court.

* This information was obtained from the files of the

National Mediation Board.

35

process by not giving the claimants notice of its

hearings (Nord v. Griffin; Brand v. Pennsylvania

R. Co., supra) or that the Board had acted without

jurisdiction (Stephenson v. New Orleans & N. #.

R. Co., supra).

B. WHETHER PARTIES MAY RESORT TO THE COURTS BEFORE SUB-

MISSION OF A CONTROVERSY TO THE NATIONAL RAILROAD

ADJUSTMENT BOARD

In Moore v. Illinois Central R. Co., 312 U. 8.

630, this Court held that an employee was not

required to seek adjustment of his controversy

with a carrier before the National Railroad Ad-

justment Board as a prerequisite to the institution

of a lawsuit. The United States filed a brief as

amicus curiae in the Moore case. The Gov-

ernment. was of opinion that the question was

a close one, and that the various factors to be

considered did not point conclusively in either di-

rection. We suggested that a possible solution of

the problem would be to permit court action by

individuals who could not, without the use of some

mandatory process, bring their cases before the

Adjustment Board, but not otherwise.

The Court held, however, that resort to the

statutory machinery was not compulsory. The

Court has now requested a reconsideration of the

matter. Even if the Court should not treat the

Moore case as controlling, the choice it made be-

tween the various arguments advanced is entitled

to weight. It is on this basis that we have re-

examined the questions decided in the Moore case.

36

1. Considerations relating to the Railway Labor

Act

(a) The statute declares that unadjusted dis-

putes may be referred to the Adjustment Board.

The word “‘may”’ could have been used either to

show that parties were not required to go befoxe

the Adjustment Board at all, or that they need not

appeal a particular case unless they desired to

do so. In the Moore case, this Court adopted

the former interpretation, saying (312 U. S., at

635) :

It is significant that the comparable section

of the 1926 Railway Labor Act (44 Stat.

577, 578), had, before the 1934 amendment,

provided that upon failure of the parties to

reach an adjustment a ‘‘dispute shall be re-

ferred to the designated Adjustment Board

by the parties, or by either party * * *”

This difference in language, substituting

““‘may”’ for ‘‘shall’’, was not, we think, an

indication of & change in policy, but was in-

stead a clarification of the law’s original pur-

pose. For neither the original 1926 Act,

nor the Act as amended in 1934, indicates

that the machinery provided for settling dis-

putes was based on a philosophy of legal

compulsion. On the contrary, the legisla-

tive history of the Railway Labor Act shows

a consistent purpose on the part of Congress

to establish and maintain a system for peace-

ful adjustment and mediation voluntary in

itsnaturee * * *

37

The !egislative history of the 1934 Act is con-

sistent with the above conclusion.“ The advan-

tages which Mr. Eastman thought would accrue

from the uniform interpretation*of railway labor

agreements by a single body did not lead to his

refusal to accept regional or local adjustment

poards, whenever the parties could agree to estab-

lish them (see pp. 19-21, supra).

(b) The primary purpose of the Railway Labor

Act was the settlement of disputes peacefully with-

out interruption to transportation. Since judicial

proceedings are a peaceful means of lving dis-

putes, the possibility of resort to the is en-

tirely compatible with this basic objective. On

the other hand, the uniform interpretation of

such agreements by a single expert tribunal would

eliminate the possibility of discrimination be-

tween men working on different parts of the same

road or on different roads, and thus remove one

cause of dissatisfaction and controversy.” Fur-

™ The Moore opinion refused to draw the inference that

the Board was intended to have as broad a jurisdiction as

the prior adjustment and arbitration (see pp. 85-88, infra)

boards to which disputes were required by agreement to be

submitted.

“See Garrison, The National Railroad Adjustment

Board: A Unique Administrative Agency, 4 Yale L. J.

567 (Compilation, Appendix, pp. 110-135). The cases

which come before the Board arise out of numerous technical

rules with “intricate” interpretations. Attorney General’s

Committee on Administrative Procedure; Railway Labor,

Sen. Doc. No. 10 (Part 4), 77th Cong., Ist Sess., p. 3 (Com-

pilation, p. 229) ; Garrison, supra, pp. 586-591 (Compilation,

Appendix, 125-129). A definite advantage is to be derived

38

thermore, compulsory use of the machinery estab-

lished by the statute would (except for those cases

which go to referee} in substance result in the

settlement of cases by agreement between the car-

riers and the unions. Such a solution of a dis-

pute would probably be more consistent with har-

monious labor relations than the peaceful but

compulsory acceptance of judicial decisions. We

believe that the advantage of decisions to which

both sides have agreed is the basic reason for the

use of the adjustment board device.

But the benefits of a uniform interpretation by

a single body of experts and of a decision result-

ing from agreement between the representatives

of the carriers and the employees are not to be

found in the large proportion “ of the eases which

are decided with the assistance of referees. The

referees are not necessarily experts in the railway

labor field,’ and their decisions are not neces-

from having such cases decided by persons familiar with the

subject and its terminology, and not by persons having “no

practical experience of railroading.” Garrison, supra, p. 598

(Compilation, Appendix, p. 131).

* Approximately one-half. See report of Attorney Gen-

eral’s Committee on Administrative Procedure, Railway

Labor, Sen. Doc. No. 10 (Part 4), 77th Cong., 1st Sess., pp.

1, 15 (Compilation, p. 242); National Mediation Board,

Eighth Annual Report, p. 45.

* Dean Garrison’s article states in this connection:

* * * With rarest exceptions, the referee, to be

neutral, must be drawn from outside the railroad

world. He comes to the Board with no practical ex-

perience of railroading. Its vocabulary, its customs

are strange to him. He cannot catch the undertones of

sarily uniform.“ The parties frequently do not

acquiesce in referees’ decisions;“ thus, they do

the cases, or weigh as surely as one bred to the trade the

force of the rival contentions addressed to him. He

cannot appreciate with any certainty the implications,

for future cases, of the decisions he must render. He

has no fellow-judges to consult with. Nearly every

case comes up to him evenly balanced, strenuously

fought, and freighted with importance not only to both

sides but to all other carriers and unions for whom the

decision will stand asa precedent. And his will be the

final say, for he knows that there will be no review.

Try as he will he is bound to make mistakes which a

more experienced judge would not make. And these

mistakes may be costly and wide-reaching in their

effects. When he is through with the cases assigned to

him, and has begun to gain some insight, he is not

likely to be reappointed to the Division in which he

sat, for he will probably be unwanied either by the

labor members or the carrier members or both; and

the National Mediation Board (which has to mabe the

appointments since the Divisions are not able to agree

upon mutuaily satisfactory persons) ie properly

will not appoint unwanted men. *

Garrison, The National Railroad Adjustment Board: A

Unique Administrative Agency, 46 Yale L. J. 567, 593-594

(Compilation, Appendix, p. 131-132). The Annual Reports

of the National Mediation Board show that since 1935 only

one referee has sat with the First Division during more

than three fiscal years, and one other during as many as

three fiscal years. Other Divisions have often been able to

agree upon referees, and referees have been more frequently

reappointed.

** See report of Attorney General’s Committee on Admin-

istrative Procedure, Railway Labor, Sen. Doc. No. 10 (Part

4), 77th Cong., ist Sess., p. 19 (Compilation, p. 247).

“ “Yet, identical problems repeatedly have to be carried

all the way to a referee before the parties will consider them-

selves bound. When the same problem has been decided

hundreds of times by many different referees, and when all

40

not have the harmonious effect of a determination

agreed upon by representatives of both sides.

The cases submitted to the referees comprise

those in which there is undoubtedly the bitterest

conflict. We are not inclined to believe that there

is any great difference in the effect upon ami-

cable labor relations between decisions rendered

by the referees in such cases (most of whom now

are judges), and those rendered by courts. In

decisions are in agreement, principles that should be regarded

as established are not always recognized by the parties,

* * * In the application of the ‘road yard’ rule, for in-

stance, the decisions have uniformly accepted the basic prin-

ciple advocated by labor, but the carriers have consistently

refused to acquiesce in that principle. As a result cases in-

volving the ‘road yard’ rule are seldom settled on the prop-

erty of the carrier, the Board nearly always deadlocks such

cases, and they almost invariably have to be decided by

referees. The failure to acquiesce in decisions of the Board

is one substantial cause of the large volume of business of

DivisionI. * * ° Jbid. Whustrative of the parties’ at-

titude are (1) the withdrawal by the employees of cases sub-

mitted to Justice Royal A. tome a» referee after his conclu-

sions had been made knows bet befeee his opinions were

filed, and the resubmissiom of #h ‘mers to the Board in

the hope of getting « different me = « (Delaware «6 Hudson

2. Corp. v. Williams, 1 ¥. (aa) 18 1. C. A. 7), judgment

vacated December 7, 1942, New #66-447, this Term), and

(2) the attempt by the carriers to disqualify Justice Paul W.

Richards as referee because of disagreement with some of

his prior decisions in other cases (See National Mediation

Board, Jn the Matter of Protest of Carrier Members against

the appointment of Justice Paul W. Richards as Referee,

decided June 5, 1941; Seventh Annual Report, p. 11).

* In the past several years, the National Mediation Board

has generally appointed State supreme court judges as

referees. National Mediation Board, Seventh Annual Re-

port, p. 46; Eighth Annual Report, pp. 46-47.

41

each instance the decision is reached by the peace-

ful process of adjudication, and a strike against

it is unlikely. In neither instance does the

losing party regard the decision as one to which

he has agreed. It is not unlikely that the judg-

ment of a court, which is directly enforceable,

would be treated with more respect than is such

an award of the Board.”

(c) The practice of the Board in refusing to

hear eases not submitted by the representative of

the majority of a craft is not consistent with the

notion that the Board has exclusive jurisdiction

of the type of cases which come before it. See

pp. 25-27, supra.

(d) Most courts, both before ana after this

Court’s decision in the Moore case, seem to have

held, or assumed, that the jurisdiction of the Ad-

- judgment Board is not exclusive. See pp. 29-31,

supra.

2. Considerations applicable to administrative

bodies generally

It can be argued that the establishment of the

Adjustment Board in itself manifests a congres-

sional intention that all disputes coming within its

jurisdiction be submitted to it rather than to the

“© See Note 44, supra. Since a judicial decree is enforce-

able, employees would never be faced with the necessity of

threatening to call a strike to obtain compliance with a court

order, although they have engaged in such tactics with

respect to some Adjustment Board awards. See pp. 33-34,

supra.

courts, But it can also be argued that the faiare

of Congress to declare that the Board was to have

exclusive jurisdiction, in a field in which common-

law remedies are available, indicates that the pre-

existing remedies were not to be destroyed.

Examination of the language of statutes creat-

ing other administrative bodies and of the deci-

sions under them reveals the absence of any uni-

form legislative or judicial, policy which might be

controlling here. In some instances Congress has

specified that an administrative remedy is to be

exclusive, as in the National Labor Relations

Act “ and the Longshoremen’s and Harbor Work-

ers’ Compensation Act.“ Frequently it is clear

from the fact that the statute regulates an en-

tirely new field that only statutory remedies are

to be available.” On the other hand, Congress

has also specifically provided, as in the Interstate

Commerce Act,” the Civil Aeronautics Act” and

the statutes administered by the Securities and

Exchange Commission, * that existing remedies are

“Te, 372, 49 Stat. 449. 29 U. S. C., Section 160 (a);

Amalgamated Utility Workers v. Consolidated Edison Co..

309 U. S. 261.

“c. 509, 44 Stat. 1424, 33 U. S. C., Section 905.

* See, ¢. g., Bituminous Coal Act, c. 127, 50 Stat. 72, 15

U.S. C., Sections 828-851 ; Packers and Stockyards Act, c, 64,

42 Stat. 159, 7 U. S. C., Sections 181-231.

*o. 104, 24 Stat. 379, 49 U. S. C., Section 22.

¢, 601, 52 Stat. 973, 49 U. S. C., Section 676.

* ¢. 38, 48 Stat. 74, 15 U. S. C., Section T7p; c. 411, 53 Stat.

1149, 15 U.S.C., Sections 77www (b) ; c. 404, 48 Stat. 881, 15

U. S. C., Sections 78bb; c. 687, 49 Stat. 803, 15 U. S. C.,

Section 79p.

43

not to be abridged. And some statutes, such as

the Safety Appliance Act,” which contains no ex-

press provision one way or the other, have been

construed as permitting private persons to enforce

their rights in courts as well as ne the

administrative tribunal.

Most pertinent would appear to be the inter-

pretation given Section 16 (2) of the Interstate

Commerce Act, which is in substantially the same

language as Section 3, First (p) of the Railway

Labor Act, and upon which the latter provision

was modeled. See p. 91, infra. In a long series

of cases, this Court has held that when a question

presented is administrative rather than judicial,

or where there was an evidentiary question upon

which fact-finding bodies might differ and thus

interfere with the uniformity which the Inter-

state Commerce Act was designed to secure, the

matter must first be submitted to the Interstate

Commerce Commission. Texas & Pacific Ry. Co.

v. Abilene Cotton Oil Co., 204 U. S. 426, 446-447;

Baltimore & Ohio R. R. Co. v. Pitcairn Coal Co.,

215 U. 8. 481; Mitchell Coal Co. v. Pennsylvania

R. R. Co., 230 U. 8. 247; Great Northern Railway

Co. v. Merchants Elevator Co., 259 U. 8. 285, and

cases cited at 295 n. But where the question

was merely whether there had been compliance

with a tariff, or was one of construction of words

* ¢, 160, 36 Stat. 298, c. 295, 85 Stat. 476, 45 U. S. C., Sec-

tions 15, 19; Texas & Pacific Ry. Co. v. Rigsby, 241 U. Ss.

33, 39.

606724434

At

used in their ordinary sense, preliminary resort

to the Commission was unnecessary. Pennsyl-

vania R. R. Co. v. International Coal Co., 230

U. 8. 184, 196; Pennsylvania R. R. Co. v. Puritan

Coal Co., 237 U. 8. 121, 134; Pennsylvania R. R.

Co. v. Sonman Coal Co., 242 U. 8. 120; Great

Northern Railway Co. v. Merchants Elevator Co.,

259 U. 8. 285; and cases cited at 295 n.; Balti-

more & Ohio R. Co. v. Brady, 288 U. 8. 448.

The drawing of conclusions from one statute

as to the interpretation to be given an entirely

different law is an uncertain approach, even where

some of the language employed is similar. Al-

though Sections 16 (2) of the Interstate Commerce

Act and 3, First (p) of the Railway Labor Act

are substantially the same, the other differences

between the two statutes are so great as to make

it clear that each section must be fitted into its

particular setting. The Interstate Commerce Act

specifically gives a shipper a choice between a

suit in court and the commencement of proceed-

ings before the Commission (Section 9). It fur-

ther provides (Section 22) that:

* * * nothing in this act contained

shall in any way abridge or alter the reme-

dies now existing at common law or by

statute, but the remedies of this act are in

addition to such remedies * * *,

Despite these seemingly explicit previsions, it is

established, as we have indicated, that in certain

types of cases a complaint must first go before the

Interstate Commerce Commission in order that

45

the basic objectives of the vital substantive

provisions of that Act may be achieved.

The primary reason for first requiring resort to

the Interstate Commerce Commission in such

cases does not apply to the Adjustment Board.

The latter body does not exercise administrative

discretion; nor do many of its decisions turn upon

disputed questions of fact. See pp. 27-28, supra.

To the extent that they do, the Board is in some

respects less fitted to resolve them than are the

courts, since the Board has no subpoena power

and under its rules does not permit the

presentation of evidence or the examination

of witnesses.“ The Adjustment Board, all

of whose permanent members are experi-

enced railroad men, may however, be more

expert than the courts in interpreting the con-

tracts over which it has jurisdiction.” In so far as

a uniform interpretation is deemed desirable, it

would be wise to require cases involving such con-

tracts first to be submitted to the Board. But

the provisions in the Act for the creation of re-

gional and local adjustment boards show that the

object of the Railway Labor Act was not pri-

marily to secure uniformity in the interpretation

of these agreements.

In view of these considerations, we believe that

no definite conclusion can be drawn from an anal-

“ Report of Attorney General’s Committee on Admin-

istrative Procedure, Railway Labor, Sen. Doc. No. 10 (Part

4), 77th Cong., 1st Sess., p. 6n. (Compilation, p. 238n.).

Ibid.

46

ysis of the Interstate Commeree Act or any other

statute as to whether the Board established under

the Railway Labor Act was intended to have ex-

elusive jurisdiction. The variety of statutes and

decisions shows that the present problem cannot

be solved by any automatic rule pursuant to which

a statute establishing an administrative body is

inevitably construed in one way or the other. In

each case all of the manifold factors which guide

courts in construing statutes are given considera-

tion, and the determination made as to what Con-

gress would have intended in the particular act

involved.

When a statute creates new rights and estab-

lishes an agency to administer them, it may nor-

mally be presumed, even in the absence of express

language to that effect, that the legislature in-

tended the agency to have exclusive primary juris-

diction. But the Adjustment Board does not

administer or pass upon rights created by the

Railway Labor Act, but upon contract rights pre-

viously recognized and enforced in other forums.

The Board is also not strictly comparable to other

administrative bodies, in that it stems from boards

established by agreement whose functions were

clearly the settlement of disputes through adjust-

ment rather than adjudication.

It is conceivable that Congress could have de-

signed the Adjustment Board either as a supple-

ment to or a substitute for the existing remedies

for breach of railway labor contracts. Whether it

has or not must be determined by the particular

47

intenvion of the Congress which passed the Rail-

way Labor Act, rather than by the invocation of

any general principle of administrative law.

3. Conclusion

As was indicated by the Government’s brief in

the Moore case, we think that the question as to

whether an employee or carrier may proceed only

before the Adjustment Board is a close one. The

various manifestations of congressional intention

point to no definite conclusion. In such cireum-

stances, the controlling consideration should be the

effect of the proposed interpretation upon the at-

tainment of the objectives of the Railway Labor

Act, provided that this may not be said to be in-

consistent with the method intended by Congress.

With respect to disputes settled without ref-

erees, decisions by a board made up of repre-

sentatives of the carriers and the employees are

more likely to be willingly accepted by both sides,

and thus less likely to result in interruptions to

commerce, than would the decisions of courts.

This is less true, we believe, as to the cases de-

cided with the assistance of referees. Experience

under the present Board suggests that judicial

determinations would cause no more, and might

cause less, ill feeling than the decisions of the

referees (see p. 39, n. 44, supra). However, the

possibility of resort to different tribunals in itself

might result in disharmony, to the extent that

court and Board decisions might be less uniform

48

than decisions of the Board alone including its

referees,

In so far as actual interruptions to transporta-

tion are concerned, we cannot say that strikes

are more likely to occur if the parties are

permitted to take their cases either to the courts

or to the Board. Such cases have almost invar-

iably been brought by the employees rather than by

the carriers. In accordance with their past prac-

tice, the railroad labor organizations would almost

certainly take their cases to the Board, and if they

chose to use the courts in a particular instance,

there would be no reason to anticipate that

the judicial decision would not dispose of the con-

troversy. Most of the cases taken to the courts

probably would be brought by individual em-

ployees or groups not desiring to have their cases

handled by the majority organization. This is

the situation at the present time. Such persons

or groups might be unable to induce the Board to

decide their cases at all, or might be unwilling to

submit themselves to a bipartisan board where the

interests of the labor members might well be ad-

verse.” We assume that even if it should be held

that the employees were as a general rule required

to go to the Board instead of to court, this would

not apply to persons whose cases the Board re-

fused to hear.”

* E. g., Nord v. Griffin, 86 F. (2d) 481 (C. C. A. 7), certi-

orari denied, 300 U. 8S. 673; Moore v. Illinois Central R. Co.,

312 U. 8S. 630.

* See cases cited, supra, p. 30, n. 80, and Ledford vy. Chi-

cago M., St. Paul & P. R. Co., 298 Til. App. 298, 18 N. E.

The considerations which we have advanced

were, in substance, before this Court when the

Moore case was heard in 1940, The Court held

at that time that the statute did not preclude a

party from resorting to the courts without first

going to the Adjustment Board. We assume that

under the principle of stare decisis decisions of this

Court will not be overruled lightly or unnecessar-

ily. Once the Court has decided a question one

way, the burden of persuasion should be on the one

who seeks to have the decision overruled. Since

we are not convinced that the conclusion reached in

the Moore case was erroneous, or that it has in any

way impaired the effectiveness of the Railway

Labor Act as a means of avoiding interruptions

to commerce, we do not feel justified in requesting

its reversal.”

(2d) 568 (1989). In the Moore case, the record did not

show that the plaintiff had requested the majority organiza-

tion to take his case to the Board, or that he had done so

himself, but his past relations with the organization were

such that he might reasonably have assumed either that it

would have refused to handle his case or not represented

him very zealously.

*8 Inasmuch as there was no evidence in the Moore case

that the plaintiff had attempted to have the labor organiza-

tion take his case to the Board, or that he had tried to do so

himself (see n. 57 supra), the case cannot be distinguished on

the ground that it involved a situation in which such efforts

were unsuccessfully made. If the Court should desire to

limit the Moore decision, it should not require an employee

to do more than show that the majority union has declined

to present his case. Since the filing of proceedings with the

Board by the individual would under such circumstances be

futile, and since the Board generally does not issue a formal

©. WHETHER PARTIES MAY RESORT TO THE COURTS AFTER bUB-

MISSION OF A CONTROVERSY TO THE NATIONAL RAILROAD

ADJUSTMENT BOARD

- The problem presented after a case has been

submitted to the Adjustment Board differs from

that previously considered. The existence of

alternative means of resolving disputes as to the

interpretation of railway labor agreements does

not foreclose giving exclusive effect to the ma-

chinery created by the Railway Labor Act once

it has been invoked. The statutory provision

primarily involved before the case comes to the

Board is Section 3, First (i); the provision con-

cerning enforcement of the Board’s orders after

it has acted is Section 3, First (p), which reads

as follows:

If a carrier does not comply with an

order of a division of the Adjustment

Board within the time limit in such order,

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 operating 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 of the division of the Adjustment

Board in the premises. Such suit in the

District Court of the United States shall

ruling declining jurisdiction, to require a refusal by the

Board itself would merely serve to exhaust the period of

limitations in which a person would be able to sue in court.

except that the itioner

liable for costs in the district court nor for

costs at any subsequent stage of the pro-

ceedings, unless they accrue upon his ap-

peal, and such costs shall be paid out of the

appropriation for the expenses of the

courts of the United States. If the peti-

tioner shall finally prevail he shall be al-

lowed a reasonable attorney’s fee, to be

taxed and collected as a part of the costs

of the suit. The district courts are empow-

ered, under the rules of the court govern-

ing actions at law, to make such order and

enter such judgment, by writ of mandamus

or otherwise, as may be appropriate to en-

force or set aside the order of the division

of the Adjustment Board.

The question may be separately considered in

relation to two chronological periods: (1) while

the proceeding is pending before the Adjustment

Board, and (2) after the Beard has made its de-

cision.

1. While the proceeding is pending before the

Adjustment Board

Since this question is not raised in the present

case, it is unnecessary to consider it at length. We

think it clear, however, that when Congress pro-

vided that the parties might submit unadjusted

52

disputes to the Adjustment Board, and that the

Adjustment Board might enter awards and orders,

it did not intend that the proceedings before the

Board could be set at naught by an independent

action seeking a determination of the same ques-

tion before another tribunal.

Such suits would be based upon contracts, and

would be actions in personam. Under the rule

governing concurrent suits in personam in federal

and state courts” two actions may proceed inde-

pendently, although a judgment in either is res

judicata in the other. Kline v. Burke Construe-

tion Co., 260 U. 8. 226; Penn General Casualty Co.

v. Pennsylvania, 294 U. 8. 189, 195; Princess Lida

v. Thompson, 305 U.S. 456, 466. The result would

be that if one party to a dispute instituted pro-

ceedings before the Board and the other party pre-

ferred a different forum, the latter could file a suit

in court. If the cases were so timed that judg-

ment was first rendered in the judicial proceeding,

the jurisdiction of the Board would be lost, and

the statutory machinery made incu perative.”

* The judicial proceedings would normally be brought

in a state court, unless the requisites of federal] jurisdiction

were present. Such suits are not regarded as based upon

the Railway Labor Act or any federal statute. Malone v.

Gardner, 62 F, (2d) 15 (C. C. A. 4); Burke v. Union Pacific

R. Co., 129 F. (2d) 844 (C. C. A. 10); McDermott v. New

York Central R. Co., 32 F. Supp. 873 (S. D. N. Y).

” A decision of the Board, however, would be res judicata

in the courts only to the extent that the Board’s order could

not be judicially reviewed ; an order could, of course, be set

aside in an enforcement suit brought under Section 8, ~

Such unseemly competition between adjudica-

tory bodies, even if permissible under the common

law, is hardly consistent with the purpose of Con-

gress, as expressed in the Railway Labor Act

(Sec. 2), ‘‘to provide for the prompt and orderly

settlement of all disputes growing out of griev-

ances or out of the interpretation or application

of agreements covering rates of pay, rules, or

working conditions.’’ Nor would such a race for

the tribunal deemed most favorable be conducive

to harmonious labor relations. The decisions or

awards in such circumstances would not ve ac-

cepted as the ruling of an impartial, or bipartisan

body, but as the unfortunate consequence of being

in the wrong court, or of bad timing. Il will

would almost inevitably be engendered. Thus, to

construe the Act as allowing resort to the courts

while a case was before the Adjustment Board

might undermine its primary objective, the peace-

ful and amicable settlement of labor disputes.

Even apart from the Railway Labor Act the

general policy of the courts not to take action

which will interfcie with proceedings pending be-

fore administrative agencies is pertinent. E. g.

Myers v. Bethlehem Shipbuilding Corp., 303 U. 8.

41. To permit the bringing of an independent

suit on the same cause of action while a case is

pending before the Board would certainly under-

First (p). Since the First Division of the Board is now

years behind in its docket (see pp. 28-29, supra), the judicial

proceeding would probably be concluded first.

54

mine its effectiveness as much as a direct inter.

ference with its operations.

2. After the Board hag made its decision

After the Board had miade its decision, all fur. .

ther proceedings, whether by way of enforcement

suit or an independent action on the contract,

would take place in the courts. There would thus

no longer be the possibility of conflict between

judicial and administrative tribunals. The ques.

tion is whether when Congress established a spe-

cial judicial procedure through which the Board’s

orders might be enforced or set aside, it intended

that the courts review the orders in other ways.

We believe that this question should be answered

in the negative. There would, of course, be no

doubt as to this if the statute contained express

language making paragraph (p) the exclusive

method of judicial enforcement or review. While

the problem is not that simple, the adequacy of

the statutory remedy, the advantages it was de-

signed to give the employees, and comparison with

the closely parallel provisions of the Interstate

Commerce Act indicate that paragraph (p) was

probably designed as an exclusive review pro-

cedure." This conclusion is, to some extent,

*' As we shall show, the statutory remedy is legally ade-

quate both for the carriers and for employees who invoke

the services of the Adjustment Board, whether they win or

lose. This might not be the case as to other employees who

are adversely affected by a Board award and who are, or

should be, parties to a proceeding before the Board. Nord

55

confirmed by the ‘‘final and binding” clause in

Section 3, First (m), which may be interpreted

as requiring that the Board’ 8 orders (except for

money awards) be final, except as otherwise pro-

vided in the Act or required by the Constitution.

This is the point rais by this Court’s Fourth

Question, and it is considered at greater length

infra, pp. 70-95,

‘a. The adequacy of t the remedy. On its face,

paragraph (p) pu orts to provide a remedy

only where the awa “is in favor of the employee

and where the carrier does not comply. But the

failure of the statute to provide expressly for

judicial review at the instance of the carrier does

leave the remedy inadequate. This will appear

from an analysis of the four situations in which

review might be sought : (1) the right of the em-

ployee if he is successful before the Board; (2)

the right of the carrier when it is successful be-

fore the Board; (3) the right of the employee

v. Griffin, 86 F, (2d) 481 (C. C. A. 7), certiorari denied, 300

U. S. 6738; Hates v. Union Terminal Co., 89 F. (2d) 768

(C. C. A. 5); Brand v. Pennsylvania R. Co., 22 F. Supp.

569 (E. D. Pa.) ; Stephenson v. New Orleans & N. E. R. Co.,

180 Miss. 147, 177 So. 509 (1987). Such persons would have

no right to judicial relief under paragraph (p), nor would

they be able, as is the carrier, to await a proceeding against

them before complying with the award. If the carrier obeys

the Board’s order, they would’ be remediless. Such persons

have been held entitled to judicial relief by way of injunc-

tion in the cases cited, and nothing said in this brief is to be

regarded as directed at their special problem. This Court

is, of course, not called upon to determine the rights of such

persons in this case.

who has lost before the Board; and (4) the right

of the carrier who has lost before the Board.

(1) If the employee wins his case before the

Board, he may sue for enforcement under para-

graph (p). ‘

(2) If the carrier wins before the Board, it has

no statutory right to sue. But it has the power to

put the Board’s decision jnto effect without the aid

of any enforcement procedure. Although the Act

permits carriers as well as employees to bring cases

to the Board, substantially all of the cases consist

of claims by employees against the carriers, seek-

ing either monetary awaxis or changes in prae-

tices allegedly required by the terms of the agree-

ments. The cases are almost invariably brought

to the Board by the employee“ and Congress

understood that this would be so.” An award

in favor of the carrier would deny the em-

ployees’ claim, and the carrier could put the award

into effect itself simply by not paying the amount

demanded or otherwise doing what the employee

requested.“ There was accordingly no need for

* See Final Report of Attorney General’: Committee on

Administrative Procedure, p. 186.

* Section 3, First (0) speaks of an order in favor of “peti-

tioner”, directed to the carrier, and paragraph (p) refers

to the “petitioner” bringing suit against the carrier if the

latter does not comply with the Board’s order. This sug-

gests that Congress assumed that the employee would nor-

mally be the petitioner before the Board. See Senate Hear-

ings, p. 33.

“The Act was prepared on the assumption that the em-

ployees would not strike against unfavorable awards. See

57

giving the carrier a remedy such as that made avail-

able to the employee in paragraph (p). This was

pointed out to the House Committee hy Coordi-

nator Eastman“ and his assistant, Mr. Carmalt.”

Mr. Carmalt stated that ‘‘the carrier had the power

in its bands to enforce the awards of the Board as

against the individual.’’”

(3) An employee who has been denied relief by

the Board would appear to have no further

remedy. He certainly has none under the Act. The

earrier can proceed to make such an award ef-

fective by itself (supra). The employees’ posi-

tion would seem to be the same as that of a

shipper who has unsuccessfully brought a claim for

reparations before the Interstate Commerce Com-

mission. If he loses he cannot have the order over-

turned in court." This results under the Raii-

way Labor Act from the fact that the em-

ployee voluntarily invoked the services of the

Board, foregoing his alternative right to sue in

court in the first instance (Moore v. MWinois Cen-

tral R. Co., 312 U. 8. 630, see pp. 35-49, supra.”

House Hearings, pp. 63-64, 58-59; Senate Hearings, p. 35.

This assumption has been justified. The strike threats re-

ferred to by petitioner were to compel the carriers to obey

awards in favor of the employees.

** See House Hearings, p. 61.

*Jd., at page 63.

* Ibid.

“See pp. 62-64, infra.

* This reasoning of course would not apply if the Court

should now overrule the Moore case and hold that the

employees could not resort to the courts in the first instance.

58

Once he has made his election to use the statutory

machinery, he cannot complain that the remedy

is inadequate. Of. Baltimore & Ohio R. Co. vy.

Brady, 288 U. 8. 448, 457-458; Austin v. South-

ern Pac. Co., 123 P. (2d) 39 (Cal. App. 1942).

(4) The position of an unsuccessful carrier

before the Board is greatly superior to that of an

unsuccessful employee. For the Board’s award

is not self-enforcing against the carrier. Thus,

the carrier can refuse to comply until and unless

a proceeding is brought against it under para-

graph (p). When such a suit is brought, the

award is only prima facie evidence of the facts

stated, and the carrier can defend as in any other

civil action. That such a procedure provides an

adequate remedy for the losing party, consistent

with the Constitution, would seem to follow from

the reparations cases under the Interstate Com-

merce Act. Meeker & Co. v. Lehigh Valley R. Co.,

236 U. 8. 412; Cook v. Des Moines Union Ry. Co.,

16 F. Supp. 810 (8. D. Iowa).

The inability of the carrier to bring an inde-

pendent action to set aside the award does not

make this defensive remedy inadequate. Prior

to the passage of the declaratory judgment acts,”

persons against whom claims of breach of con-

tract were made could not initiate actions to ob-

tain an interpretation of the contract. Although

© The Federal Declaratory Judgment Act was passed on

June 14, 1934, a week before the Railway Labor Act of 1934.

See 48 Stat. 955, 1185.

this may have been inconvenient for them, it was -

never thought that this disability, which left them

with full power to assert their rights defensively

in an action brought against them, was uncon-

stitutional. The Railway Labor Act, enacted

one week after the Declaratory Judgment Act,

was drafted and approved by the congressional

committees before the Declaratory Judgment Act

became law, and it can hardly be said to have

been designed with an eye toward procedural

remedies which were non-existent until the latter

act was passed.

The petitioner claims that the statutory remedy

is inadequate because the employees have usually

not brought suit under paragraph (p), but have

threatened to strike if the carrier did not comply

with the award. This has happened on eight oc-

casions (see p. 34, supra). The employees’ posi-

tion is that since the carriers can enforce awards in

their own favor without the necessity of going to

court, the employees should not be compelled to

go to the trouble of suing and engaging in ex-

pensive and time-consuming litigation to obtain

enforcement of awards when they have been suc-

cessful before the Board. (Ibid.) While it is dif-

ficult on this point to judge cases in the abstract, it

can be said that the object and hope of the Railway

Labor Act was to insure the peaceful settlement of

labor disputes, and the reason for giving the em-

ployees the remedy contained in paragraph (p)

5067 24—43-——_5

60

* was to provide a means for enforcement of awards

which would make the use of economic pressure

unnecessary.

But the fact that such tactics may have been

adopted does not, in our view, change the situation

so as to give the carrier an additional judicial

remedy. Before the Railway Labor Act and the

Declaratory Judgment Act were passed, the em-

ployees could have enforced their claims under

labor agreements either through a lawsuit or by

the threat to use economic force. The carriers’

only judicial remedy at that time was defensive, a

fact which obviously did not deprive them of con-

stitutional rights.

The question then comes down to what Congress

intended. The legislative history indicates that

Congress did not have in mind the possibility that

the enforcement suit under paragraph (p) would

not be used by the employees. Since the employ-

ment of a threat to strike as a device to enforce

Adjustment Board awards was hoped to be avoided,

it did not affect the understanding of Congress that

the statutory remedies were expected to be ade-

quate to cover all situations and accordingly were

exclusive.

We believe it probably true, however, that in

establishing an adequate remedy to cover all situa-

tions Congress assumed that the remedy would

be used. We can do little more than speculate as

to whether Congress would have intended the

remedy to be exclusive if it had known that the:

61

labor organizations would refuse to avail them-

selves of it. That would depend in part on

whether the object of Congress was to provide an

adequate means of judicial] review of the Board’s

orders or an effective and legal method of en-

foremg thera wien disobeyed. The legislative

history (infra, pp. 75-80) shows concern only as to

the latter. Accordingly, despite the effect of the

employees’ unforeseen refusal to avail themselves

of the remedy upon its practical adequacy, we do

not feel free to urge that, because of the manner in

which the Act has operated, it should be construed

in a way not intended by the Congress.

Petitioner attacks the adequacy of the statu-

tory remedy on the ground that the Adjustment

Board is not a judicial or quasi-judicial body

and that its procedure does not conform to the

standards generally recognized as essential to

due process. It may be conceded that the Board

differs in many respects from other administra-

tive agencies or tribunals. See p. 23, supra. But

as long as the constitutional rights of the car-

riers are safeguarded, this would appear to be

immaterial. The carrier has a legal right to dis-

regard a Board order until it has been affirmed

by a court in an action brought under paragraph

(p). The carrier will be able to present its side

of the case adequately in a defense to such a pro-

ceeding. Since an award has no legal effect un-

til judicially approved, the carriers’ constitu-

tional rights are protected irrespective of the nat-

ture of the Board or its procedure.”

For the Act, in making the Board’s awards

prima facie evidence of the facts stated, merely

shifts the burden of proof. Meeker & Co. v. Le-

high Valley R. Co., 236 U. S. 412; Baldwin vy,

Scott County Milling Co., 307 U. 8S. 478, 482,

Congress has the power to shift the burden, and

certainly may do so on the basis of a preliminary

determination of facts, regardless of whether such

determination was based upon a completely ju-

dicial proceeding. Nickey v. Mississippi, 292 U.S.

393 (tax assessment prima facie valid); Pacific

Live Stock Co. v. Oregon Water Board, 241 U. 8.

440, 451-454 (engineer’s report prima facie evi-

dence).

From the above analysis we believe that the

remedy established by Congress was, and was in-

tended to be, legally adequate to protect both car-

riers and employees in all situations, once a case

had been decided by the Adjustment Board. The

fact that such a remedy was established affords sup-

port for the belief that Congress intended that

" There is no indication in the statute that Congress in-

tended that the Adjustment Board not follow the procedural

standards commonly accepted by other judicial agencies (see

paragraphs (i), (j), and (m) of Section 3), although the

Board does lack the subpoena power granted to most admin-

istrative agencies. The Board has generally proceeded,

however, on the assumption that its procedure was intended

to be the same as that of the adjustment boards established

by agreement before 1934. See pp. 23, et seq.

remedy to be followed once the statutory machinery

was invoked.

b. The analog, of the Interstate Commerce Act.

This construction of the Act is supported by the

practice under Section 16 (2) of the Interstate

Commerce Act, which Section 3, First (p) follows

almost in haec verba. See p. 91, n. 99, infra. Both

statutes relate to actions against carriers, in the

one instance by shippers and in the other by

employees. Neither gives the carrier any remedy

except by way of defense.

Under Section 16 (2) in many cases shippers

have an election whether to proceed before the

courts or before the Interstate Commerce Com-

mission. Baltimore & Ohio R. Co. v. Brady, 288

U. 8. 448, see p. 57, supra. But after a shipper

has taken his case to the Commission, Section

16 (2) has been held to provide the exclusive

remedy. Ibid. If he loses before the Commis-

sion, he is remediless. Ibid.; Brady v. Inter-

state Commerce Commission, 43 F. (2) 847 (N. D.

W. Va.), affirmed, sub nom. Brady v. United

States, 283 U. 8. 804; Interstate Commerce Com-

mission Vv. United States, 289 U. 8. 385, 394; Stand-

ard Oil Co. v. United States, 283 U. 8. 235, as

interpreted in Rochester Telephone Corp. v. United

States, 307 U. 8. 125, 140n. And the remedy pre-

scribed in that section has been held to bar the

carrier from suing to enjoin the enforcement of a

reparations order. Pittsburgh & W. V. Ry. Co. v.

United States, 6 F. (2d) 646 (W. D. Pa.); Balti-

64

more & Ohio R. Co. v. United States, 87 F. (2d)

605, 606 (C. C. A. 3). Although the latter cases

involved suits for injunctions,” we think that the

same policy applies to actions for declaratory judg-

ments when a special statutory remedy is avaiiable.

More significant, perhaps, than these decisions

was the general practice and understanding that

carriers could not sue to set aside reparations

orders. Whether because no such action was

available to them or because they were satisfied

with the protection afforded them as defendants in

proceedings brought under Section 16 (2), they

have not instituted many such actions. What-

ever the reason, Congress, which modeled para-

graph (p) of the Railway Labor Act on Section

16 (2), may not unreasonably be deemed to have

intended it to have the same effect as an exclu-

sive remedy once proceedings had been instituted

before the administrative body.

c. The advantages given the employees. To per-

mit a carrier to bring suit for a declaration as to

the meaning of a railway labor contract, after the

Adjustment Board has decided the identical case

against the carrier, would deprive the employees

of some of the advantages which paragraph (p)

was designed to give them. Under that paragraph

once an employee had convinced the Adjustment

Board that his claim should be allowed, he was

® The decisions turned in part on considerations appli-

cable only to cases under the Urgent Deficiencies Act.

65

given the choice of venue, immunity from costs, and

the right to attorneys’ fees, and in addition the

award became prima facie evidence of the facts

stated. In the absence of express statutory au-

thorization, the first three " of these would clearly

not be available in a suit brought by the carrier."

It is no answer to impute triviality to these ad-

vantages by characterizing them as merely pro-

eedural. Congress intended the successful claim-

ant before the Adjustment Board to have them, and

they will be unavailable to him if he must defend

his award in a suit brought by the carrier. On this

point we can add nothing to the ably reasoned

opinion of Justice Rutledge in the court below (R.

334-339).

Petitioner argues that the employees may still

secure these advantages if they sue within the two-

" A court of equity may allow costs “as between solicitor

and client,” but only “in exceptional cases.” Sprague v.

Ticonic National Bank, 307 U. 8. 161, 167.

" This would probably not be so as to the requirement that

the Board’s award be prima facie evidence. If we assume

that Congress did not intend paragraph (p) to provide an

exclusive method of review, it would not have intended that

a Board award be given less weight in a suit by the carrier

than in a suit by an employee. Accordingly any court

which was called upon to review the Board’s decision, or to

pass upon the same dispute after the Board had made its

award, would be required to give the award at least the

weight prescribed in a proceeding under paragraph (p).

This conclusion can rest both upon what Congress would

have intended under this particular statute and upon general

principles of administrative law. Cf. Shields v. Utah Idaho

Central R. Co., 305 U. S. 177.

year period allowed, and that even if the carrier

has previously instituted its own independent suit,

the employees would not be foreclosed from bring-

ing a statutory erforcement suit; that if they did

so the court in which the first suit was brought

would be required to stay its hand until the second

case had been terminated. But the result would be

that the employees would still, to some extent, have

to defend a separate suit brought by the carrier, in

which the statutory advantages would not be avail-

able to them. Furthermore, it is highly specu-

lative, in view of the vagaries of court calendars

and the range of discretion open to federal and

state trial court judges, whether once the carrier

had brought its suit, the situation would invariably

be adjusted so as to protect the employee in the

manner suggested.”

THE SECOND QUESTION

WHETHER THE BOARD MAY MAKE AN AWARD EX PARTE

IF ONE PARTY TO THE DISPUTE DOES NOT APPEAR BE-

FORE THE BOARD, AND IF SO THE EFFECT GIVEN BY

THE STATUTE TO SUCH AN AWARD

The Court has asked our view as to whether the

Board may make an award ez parte if one party to

the dispute does not appear before the Board, and

if so the effect given by the statute to such an

award.

Inasmuctk as the Act requires the Board to give

notice to the parties involved in a dispute (See. 3,

See pp. 28-29, supra.

67

First (j)), there can be no ex parte award in the

sense that the adverse party is not notified and

given an opportunity to be present. Accordingly,

we assume that the Court’s question relates to a

ease in which the responding party is notified but

does not appear.

We think that if a party does not appear after

notice is received, the Board may make an award

against him,” and that such au award shall have

the same effect as if he had appeared.” The Act

provides that disputes may be referred to the Board

“by either party’’ (paragraph (i)). The Board

is to give notice to all parties, and is empowered

after hearing to enter its award. There is no re-

striction upon the effect of these general provisions

in case one party does not appear, and we think

that no such limitation can possibly be implied.

The statutory provisions do not differ substan-

tially from those relating to other judicial or

quasi-judicial agencies, and we think it proper

to assume that the Board would have the power,

unquestionably possessed by other bodies, to ren-

der a decision although one party fails to appear.

To hold that the Board’s proceedings could be

hamstrung or rendered less effective by the failure

* Whether such an award could be entered by default,

without any consideration of the merits of the case presented

by the petitioning party, would presumably depend upon the

rules of the Board.

"? Since this is so, we do not think the responding party’s

appearance may properly be regarded as voluntary.

of a party to participate in its proceedings would

enable the defending party to nullify the statu-

tory scheme.

THE THIRD QUESTION

THE EFFECT OF THE EXPIRATION OF THE TWO-YEAR

PERIOD SPECIFIED BY SECTION 3, FIRST (Q) UPON THE

RIGHT OF EITHER PARTY TO THE DISPUTE TO OBTAIN

A DETERMINATION OF IT IN THE COURTS

If either party may obtain an independent

determination of a dispute in the courts imme-

diately after and not withstanding the Board has

entered its award, apart from the procedure pre-

scribed in the Act, he or it can unquestionably still

do so after the expiration of the two-year period

specified in paragraph (q) for suing on Board

awards.” The only question which need be con-

sidered here is whether the same result follows

if it should be held that, if the dispute has gone

to the Board, a party may not sue (except in the

manner specified in paragraph (p)) during the

two-year period.” The court below left that ques-

tion open, treating the case as‘one begun before the

expiration of the two years. The two years ex-

™The paragraph reads as follows: “All actions at law

based upon the provisions of this section shall be begun

within two years from the time the cause of action accrues

under the award of the division of the Adjustment Board,

and not after.”

We assume in the following discussion that no other

atatute of limitations stands as a bar to the suit in a par-

ticular case. Such statutes would presumably govern if the

limitation in paragraph (q) did not apply.

pired, however, while the case was under consider-

ation by the Court of Appeals.”

An employee who has prevailed before the Board

ean no longer bring the action described in para-

graph (p) after two years have elapsed from the

time the Board’s award became effective (R. 347).

We think that Congress would not have intended

him to be able to sue on the contract, independently

of the award, after that period. This result can

be supported on the ground that his original cause

of action on the contract was merged in the award.

Whatever the theory, we think that a holding that

all actions by employees are barred after the two

years is most consistent with the policy of limita-

tion contained in paragraph (q).

If, as we are assuming arguendo, the carrier has

no right to institute a suit during the two-year

period, it does not seem reasonable to hold that its

cause of action, which vanished when the case was

first submitted to the Adjustment Board, revived

at the expiration of the two years, the exact moment

when the employee’s claim became unenforceable

in court. It is more reasonable to conclude that

the Board’s award, and the claim upon which it

was based, become dead if not obeyed within

two years and if no enforcement suit has been

brought within that time. The carrier would then

“The Adjustment Board’s award was made October 24,

1938 (R. 4). The case was argued before the Court of Ap-

peals on April 18, 1940 (R. 330). The case was decided by

the Court of Appeals on November 18, 1941 (R. 331).

70

be under no legal obligation to comply with the

award, and there would be no substantial basis

for allowing it to maintain an action involving

the question raised. Indeed, after the employee

had lost his right to enforce his claim, there might

no longer be even a case or controversy in the con-

stitutional sense ; there would merely be a difference

of opinion between the parties as to how the

contract should be interpreted.”

For these reasons we are of the opinion that

if the submission of a case to the Adjustment

Board should be held to deprive a carrier of the

right to bring a separate judicial proceeding, the

disability should not be limited to the two-year

period, but should be regarded as permanent.

THE FOURTH QUESTION

THE EFFECT OF THE WORDS ‘‘FINAL AND BINDING’’ IN

SECTION 3, FIRST (M) UPON THE RIGHT TO RESORT

TO THE COURTS AND UPON THE SCOPE OF JUDICIAL

REVIEW, (A) DURING THE TWO-YEAR PERIOD, AND

(B) AFTER EXPIRATION OF THE TWO-YEAR PERIOD™

Section 3, First (m) of the Railway Labor Act

states that the awards of the Adjustment Board

* To the extent that new claims could arise based upon a

continuation of the same conduct, the question would not be

academic. New proceedings could presumably be based upon

acts occurring after, or differing from, those which were

the basis of the claim before the Adiustment Board.

*? For reasons set forth in answer to the third question

(supro, pp. 67-69), we think the right to resort to the

courts outside of paragraph (p) and the scope of judicial

review do not change at the expiration of the two-year

71

shall be “‘final and binding upon both parties to

the dispute, except in so far as they shall contain

a money award.”’ Paragraph (p), which is not

limited to money awards,” specifies the only

statutory means of enforcing such awards, and

declares that in such cases the order of the Board

shall be “‘prima facie evidence’”’ of the facts

stated. These two paragraphs contain appar-

ently inconsistent provisions as to the manner in

which the Board’s awards shall be treated. The

language of paragraph (p) makes it clear that

the prima facie evidence rule governs suits

brought to enforce awards. The question is what

effect, if any, can be given to the clause in para-

graph (m). To the extent that the clause makes

an award conclusive, it strengthens the position

taken in answer to the court’s First Question that

no extra-statutory method of reviewing the

Board’s orders is available.

A. LEGISLATIVE HISTORY

Since the language of the Act is itself responsible

for doubt as to what was meant, we turn to other

indicia of legislative intention. Neither the com-

mittee reports nor the congressional debates, how-

ever, deal with this issue. Some idea as to what

period. Accordingly, the views set forth in this section are

equally applicable to the period before and after the expi-

ration of two years from the Board’s award.

**Tn this respect paragraph (p) differs from Section 16

(2) of the Interstate Commerce Act, which applies only to

orders “for the payment of money.” See p. 91, infra.

72

Congress intended may be gleaned from an exami-

nation of the historical background of paragraph

(m), and also from the references to it in the legis-

lative hearings on the 1934 Act.

1. Historical background.—The words ‘‘final

and binding’’ in paragraph (m) were taken from

Section 3 of the 1926 Railway Labor Act." That

section (44 Stat. 577, 579) provided that boards of

adjustment should be created by agreement of the

parties, and that the agreement should, inter alia,

contain a stipulation that “‘decisions of adjust-

ment 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 * * *’’, (Sec-

tion 3 (e)). (Italics supplied). The quoted pas-

sage would seem in turn to have been taken

from the agreements between the carriers and

train service employees for the Southeastern,

Eastern and Western Regions, adopted in 1921,

establishing regional adjustment boards.” The

thirteenth paragraph of each of these agreements

provided that:

13. All decisions of the Board shall be

approved by a majority vote of the full

membership of the Board, and shall be

final and binding upon the parties to the

dispute. [Italics supplied.]

“Mr. Eastman so testified before the House Committee,

House Hearings, p. 58.

* These agreements are quoted in the Appendix to the

Compilation, pages 39, 43, and 50.

73

Similar language has been included in the arbi-

tration provisions of railway labor legislation for

a number of years. Section 8 (1) of the 1926 Act

(44 Stat. 577, 585, 45 U. 8. ©. § 158(1)), which

remained unchanged in 1934, declared that agree-

ments to arbitrate

Shall provide that the award, when so filed

[in a United States District Court], shall

be final and conclusive upon the parties as to

the facts determined by said award and as

to the merits of the controversy decided;

[Italics supplied. ]

Title 3 of the Transportation Act of 1920 (ce. 91,

41 Stat. 469) contained no arbitration section. Its

predecessor, the Newlands Act of July 15, 1913

(38 Stat. 103, 105) provided, however, for the

settlement of controversies by agreements to arbi-

trate. Section 4 of that Act stated that ‘“‘the

agreement to arbitrate—

* * 7. * .

Eleventh. Shall provide that the award

and the papers and proceedings, including

the testimony relating thereto, certified un-

der the hands of the arbitrators, and which

shall have the force and effect of a bill of

exceptions, shall be filed in the clerk’s office

of the district court of the United States

for the district wherein the controversy

arises or the arbitration is entered into,

and shall be final and conclusive upon the

parties to the agreement unless set aside

for error of law apparent on the record;

[Italics supplied. ]

74

A substantially identical paragraph was contained

in Section 3, Second, of the Erdman Act of June

1, 1898 (30 Stat. 424, 425).

All of these provisions, the language of which

is similar to that contained in paragraph (m) of

the present Act, differ from it in one funda-

mental respect. In every case the tribunal which

was to render “‘final and binding,” or “‘final and

conclusive,’’ awards was to be established by the

agreement of the parties. The statutes merely

declared that such agreements, if made, should

contain such clauses. But the finality of the

awards was ultimately dependent upon the con-

sent of the parties, not upon a statutory mandate.

Questions as to the effect of the awards would

thus be determined in accordance with the prin-

ciples of the law of contracts or of voluntary

arbitration.

It is, of course, to be noted that the “‘final and

binding’’ clause does not apply to money awards,

which constitute much the largest proportion of

the decisions rendered by the Adjustment Board.”

* These provisions were applied in Georgia & F. Ry. Co.

v. Brotherhood of Locomotive Engineers, 217 Fed. 755

(C. C. A. 5), and Jn re Southern Pacific Co., 155 Fed. 1001

(C.C.N.D.Cal.). In these cases the court’s power to over-

turn awards was regarded as the same as in common law

arbitration.

* The Secretary of the First Division has advised the

Solicitor General that the 789 sustained awards rendered

by that Division during the year 1942 fell in the following

classes: (1) money awards 517; (2) mixed awards 221; (3)

non-money awards 51.

75

Money awards were presumably treated differ-

ently because of a belief that the Constitution

required a trial by jury to be available in such

cases.

2. The legislative hearings. The legislative

hearings show that the draftsmen of the 1934 Act

unquestionably obtained the ‘‘final and binding’’

clause in paragraph (m) from the provisions in

the earlier statutes for the inclusion of such a

requirement in adjustment and arbitration agree-

ments. Mr. Eastman stated, in reference to para-

graph (m) (House Hearings, p. 58) :

That is the same language which, as I

recall it, is in the present act with refer-

ence to decisions of boards of adjustment

on grievances. The present act also pro-

. vides that if the parties agree to arbitration

of a major issue, then the decision of the

board of arbitration shall be final and con-

clusive.

Now, the only difference here is that

there is provision for preventing deadlocks

on an adjustment board by the appoint-

ment of a neutral member.

In answer to questions as to the right of em-

ployees to strike if an award went against them,

Mr. Eastman declared (id., p. 59):”

In my answer to you I said there was

nothing in the act which provided for the

* The question as to the right to enjoin a strike by em-

ployees was seemingly left up in the air. Mr. Eastman’s

legal adviser, Mr. Carmalt, thought it arguable that such a

506724—43_—-6

76

enforcement of those particular decisions,

That answer would not apply to decisions

of the adjustment board, and they are made

final and binding by the terms of this act,

and as I understand it, the labor organiza-

tions, none of them, are objecting to that

provision. They have their day in court

and they have their members on the adjust-

ment board, and if an agreement cannot be

reached between the parties representing

both sides on the adjustment board, a neu-

tral man steps in and renders the decision,

and they will be required to accept that

decision when made, with respect to these

minor matters. * * *

The colloquy on this subject continued (House

Hearings, pp. 60-61):

Mr. Cooper. Do I understand this para-

graph then on page 17, in which it says,

‘‘the awards shall be final and binding upon

both parties to disputes’’, would that pre-

strike might be enjoined under the law (House Hearings,

pp. 62-63). Mr. Eastman thought the contingency would

not arise, since he could not “conceive of organizations

striking over the settlement of grievances, particularly when

they had been passed upon by an impartial tribunal under

Government auspices.” His idea was to find out from ex-

perience whether such a provision was necessary before

including it in the law (pp. 62-64). Congressman Wolver-

ton stated, however, that although that might be true, he was

seeking to find out “whether this language declares some-

thing else to be the policy” (p. 64). Mr. Eastman then

agreed to study the matter and give the Committee his

opinion on it, but so far as we know, nothing further was

done.

77

vent a railroad employee or an organiza-

tion from striking, if they saw fit? Would

it be a violation of the law if they did that?

Mr. Perrenomi. Could an injunction is-

sue to prevent them from doing it?

Commissioner Eastman. I cannot tell

you what the legal procedures would be in

enforcing the award, where it is against the

employee. Paragraph (p) covers the case

where a carrier does not comply with the

order of the adjustment board.

Mr. Cooper. Would it apply to either

carrier and/or employees? Now, if we go

that far are we not writing something new

into the law of the land to deprive the

employees of rights which they already

had?

Commissioner Eastman. Well, as I say,

you have exactly similar provisions in the

present labor act with respect to decisions

by adjustment boards and where they agree

to arbitration, and this law is in effect an

agreement on the part of the parties to

arbitrate all of these minor disputes.

The CHamRMAN. Was that not one of the

reasons, to try to keep down strikes to get

people together?

Commissioner EastMAN. Yes. It is a very

important part of it. The willingness of the

employees to agree to a provision of that

sort seemed to me to be a very important

and praiseworthy thing.

Mr. Cooper. Well, I fully approve of that

method, Mr. Commissioner, and I say that

if they are going into these boards and are

78

willing to go in there, why probably they

ought to abide by the finding of the board;

but I do not know whether I would want

to go so far as to say that if they do not

agree to it that it would be a violation of

law.

Mr. Wotverton. Does this act in any way,

Mr. Eastman, provide that it will be a vio-

lation of law if they do not comply with the

decree and the order that is made?

Commissioner Eastman. It says that the

award shall be final and binding.

Mr. Wotverton. Does this bili attempt in

any way to enforce that provision; and if

so, is it contrary to public policy to put such

a provision in the bill?

Commissioner Eastman. Page 19, line 19

[the last sentence of paragraph (p)], it

says:

The district courts are empowered, under

the rules of the court governing actions at

law, to make such order and enter such

judgment, by writ of mandamus or other-

wise, as may be appropriate to enforce or

set aside the order of the division of the

adjustment board.

Chairman Winslow of the former Board of

Mediation, subsequently stated with reference to

the ‘‘final and binding’’ clause (House Hearings,

p- 72):

* * * The bill requires ‘final and bind-

ing’? may apply to all decisions of an ad-

justment board, and that seems easy, but it

is not. In the early days of our work, with

79

all good intent, we thought that if disputes

went through an adjustment board and were

decided, that was the end of it for us, and

for everybody else, by law. * * *

His experience proved, however, that though the

parties agreed that the decisions were ‘‘final and

binding,”’ they disagreed as to how they should

be applied, and that in such cases mediation be-

came necessary. Thus, “in spite of the provi-

sion ‘final and binding’ there is considerable

trouble arising’ (p. 73).

George M. Harrison, testifying on behalf of the

Railway Labor Executives Association, stated his

views on the subject as follows (House Hearings,

p. 82):

When that decision is made, the law wili

provide that it shall be final and binding

on the parties and enforceable in the

eourts, in substantially the same manner

as the present law provides for the en-

forcement of arbitration awards, the ex-

tent that the court may go in issuing a

mandatory process to compel observance

of the decision on the grievance basis.

He then described the situation under the provi-

sions of the 1926 Act as follows (House

Hearings, pp. 88-89) :

* * * Now, under the present law we

have agreements, set up local machinery,

which may be considered comparable to

what this will provide, to be established

if they want to establish it; but in the

80

agreements establishing the voluntary ma-

chinery, there shall be a provision to make

final and binding and conclusive on the

parties the decisions made by such ma-

chinery and the parties shall in good faith

abide by such decisions. I know—my opin-

ion is, regardless of a specific provision

in the law, that if you had a contract made

by true and legal representatives set up

by such voluntary machinery, you could

go into court and enforce the terms of that

contract. I am not an attorney, but I base

that on experience that we have had, be-

cause some of these local boards have made

decisions and managements have refused

to respect them, and when court action was

threatened, we generally got the terms of

the contract obeyed.

Before the Senate Committee, Mr. Harrison had

stated (Senate Hearings, p. 32) : °

Then we provided, in order to overcome

our past experience, that the decision when

made by the adjustment board shall be en-

forceable. We have had several instances

where, even though the law provides that

the agreement setting up the board shall

provide for the acceptance of the decision

by the parties, that the decisions haven’t

been obeyed.

[p. 34.] The CHatrMan. Are the deci-

sions enforceable in the courts just the

same as the national-board decisions?

Mr. Harrison. We don’t provide for

that, but it is our intention and our pur-

81

pose that such system boards, group boards,

or regional boards that are established by

the parties, by agreement, will provide such

terms that the decisions can be enforced in

the courts. The fact of the matter is the

present law provides for that. It provides

that decisions shall be final and binding and

conclusive on the parties, and I think that

kind of decisions can be enforced.

He emphasized the fact that under an agreement

to settle disputes, the award would voluntarily be

lived up to by the labor organizations (House

Hearings, p. 89).

These statements of opinion before the congres-

sional committees show that the witnesses expected

the awards of the Adjustment Board to have the

same effect as those of the earlier adjustment and

arbitration boards, and that such awards have

usually been obeyed voluntarily. They also indi-

cate that a method of enforcement against the car-

rier was considered desirable in case of failure to

comply, but was not thought necessary against the

employees since the carrier could itself put the

.award into effect. See pp. 55-56, supra.

Paragraph (p), which contains the enforcement

device adopted, was regarded as strengthening the

award rather than the contrary. No one referred

to the prima facie evidence provision in that para-

graph, or conceived of the possibility of conflict

between that provision and the “final and binding’’

clause in paragraph (m). Nor did anyone advert

to the fact that most of the Board’s decisions would

be money awards to which the Act did not give final

and binding effect.

B. THE MEANING TO BE GIVEN THE “FINAL AND BINDING” CLAUSE

It is apparent from the above that neither Con-

gress nor the persons who explained the Act to

its committees were conscious of the possible incon-

sistency between the ‘‘final and binding”’ clause in

paragraph (m), derived from earlier adjustment

and arbitration statutes, and the prima facie evi-

dence rule in paragraph (p) taken from the Inter-

state Commerce Act. In the absence of any actual

legislative intention as to how the provisions were

to be reconciled, we must, in accordance with

familiar rules of statutory construction, search for

an interpretation of the law which will give each

paragraph meaning and leave Section 3, as a whole,

harmonious and consistent.

Conceivably the ‘final and binding’’ clause might

be interpreted as (1) foreclosing all review of non-

money awards, except as provided in paragraph

(p) or required by the Constitution; (2) giving

such awards the same effect as an arbitration’

award, to the extent legally permissible; (3) ex-

pressing a desire that the parties abide by the

awards, but with paragraph (p) controlling as to

the scope of review and the procedure to be fol-

lowed; or (4) making non-money awards subject

only to the final and binding clause and money

awards alone subject to the prima facie evidence

rule contained in paragraph (p).

1. The “‘final and binding”’ clause in paragraph

(m) might be deemed to require that an award

(except for a money award) be treated as con-

clusive, except as otherwise specifically indicated

in the Act or as limited by constitutional consider-

ations. This view would appear to be most con-

sistent with the strong language used. The clause

would not be conclusive, of course, in an enforce-

ment suit brought by an employee under para-

graph (p), since in that case the Act specifically

requires that it be treated only as prima facie

evidence.

But the ‘final and binding”’ clause might be held

to bar all other methods of attacking non-money

awards, to the extent legally permissible. This

would mean that neither the employees nor the

carriers could seek review of awards in cases de-

cided against them or otherwise collaterally im-

peach an award. This -result would be constitu-

tional as to the carrier if the Court regards the

right of the carrier to defend its position in an

enforcement action under paragraph (p) as a

legally adequate remedy (see pp. 57-62, supra). It

would be valid as to the employee if the decision

in the Moore case is not restricted or overruled,

and if he has an election between suing in court or

proceeding before the Board. He cannot complain

of the inadequacy of a remedy he has voluntarily

chosen. And even if he has no such choice it

would probably be valid as to an employee who

has invoked the Board’s services. The position of

such an employee is analogous to that of a shipper

who can place his claim for reparations only be-

fore the Interstate Commerce Commission. If

such a shipper takes his case to the Commission

and is denied relief, he has no available avenue of

judicial review.” This result has been based in

part on the discredited ‘‘negative order’’ doctrine,

and in part on the ‘‘statutory scheme dealing with

reparations.’’* Whatever the theory, it has never

been thought to deprive the shipper of constitu-

tional rights.”

If a proceeding were brought against an em-

ployee,” these priaciples might not apply. Such

an employee would not have invoked the Board’s

services. Nor would he be able to avoid compli-

* See pp. 62-63, supra.

* Rochester Telephone Corp. v. United States, 307 U. 8.

125, 140n.

" If the right of shippers to judicial review had rested on

the Constitution, the negative order cases would have been in

violation of the Constitution. This was not suggested in the

Rochester Telephone case. '

* Although it is rarely, if ever, done, the carriers have

equal power with the employees to bring cases before the

Board. Sec. 3, First (i). An employee might also be before

the Board as a third party respondent in cases brought by

other employees against a carrier. E. g., Nord v. Griffin,

86 F. (2d) 481 (C. C. A. 7), certiorari denied, 300 U. S. 673.

Seniority disputes often find employees, or groups of em-

ployees, on the side of the carrier. /bid; Estes v. Union

Terminal Co., 89 F. (2d) 768 (C. C. A. 5); Stephenson v,

New Orleans & N. E.R. Co,, 180 Miss. 147, 177 So. 509 (1937).

ance with the Board’s order until xn enforcement

suit was instituted against him and thus assert his

position defensively; the carrier might make the

award effective immediately.

Wherever the remedy was legally inadequate, a

person would presumably be entitled to bring an

appropriate independent action attacking the

award of the Board. Cf. Anniston Mfg. Co. v.

Davis, 301 U. 8. 337. In such an action, the

Board’s award would be “final and binding”’ to

the extent that Congress could make it so. In

other words, the scope of judicial review would be

the minimum required by the Constitution. Al-

though it is unnecessary to determine in this case

just what those limits are, we assume that the

court would at least have power to determine ques-

tions of law, such as whether there had been com-

pliance with the statute and the Constitution.”

2. Since the ‘‘final and binding’’ clause was de-

rived from earlier statutes requiring the inclusion

within adjustment and arbitration agreements of

a svuilar provision, it can be argued that it was

intended to give non-money awards of the adjust-

ment boards the same effect as those of its prede-

cessors. The testimony of Mr. Eastman and Mr.

Harrison quoted supra, pp. 74-80 supports this

conclusion.

* As to whether the question of the existence of substan-

tial evidence to support a finding raises a question of law

see Reconstruction Finance Corp. v. Bankers Trust Co., Nos.

387-388, decided February 8, 1943.

There has been no judicial pronouncement as to

the effect of the awards of the early adjustment

boards ; but the agreements establishing the boards

closely resemble contracts to arbitrate and we as-

sume that the principles governing the enforce-

ment of arbitration awards would be applicable.

Such awards normally would be enforced by the

courts in the absence of “irregularity, fraud, wtra

vires or other defect,’’ Marine Transit Co. v. Drey-

fus, 284 U. 8. 263, 276; Burchell v. Marsh, 17 How.

344, 349;** York & Cumberland R. R. Co. v. Myers,

18 How. 246, 253. The Railway Labor Act speci-

fies, in Section 9, that an arbitration award may be

impeached only if it does not conform to the re-

quirements of the Act, is not confined to the stipu-

lations of the agreement to arbitrate, or is fraudu-

lent or corrupt. The United States Arbitration

Act of February 12, 1925 (43 Stat. 883, 885, 9

U. 8. C. See. 10), the Uniform Arbitration Act (9

Uniform Laws Annotated, p. 61) and the Draft

State Arbitration Act (e. g., N. Y. Civ. Practice

Act, Sec. 1457) all provide that an award may be

vacated if fraudulent or corrupt, if the arbitrators

have been guilty of misconduct (such as refusing to

hear material evidence) or prejudicial misbe-

“In the Burchell case the Court stated “If the award is

within the submission, and contains the honest decision of

the arbitrators, after a full and fair hearing of the parties, a

court of equity will not set it aside for error, either in law

or fact.”

87

havior, or if the arbitrators have ‘exceeded their

powers.”’ 96

These reasons for setting aside an arbitration

award are not strictly applicable to administrative

determinations. They demonstrate, however, an in-

tention that the power of the courts to overturn

awards be circumscribed within extremely narrow

limits. When translated into terms of administra-

tive law, they would probably permit the courts only

to overturn an award if it was not issued in con-

formity to the statute or was otherwise illegal (see

pp. 84-85, supra).” These have been the grounds

upon which awards of the present Adjustment

Board have been invalidated. (See pp. 34-35,

supra.)

In the law of private arbitration, since the entire

proceeding was based upon contract, the usual con-

tractual remedies were available unless the agree-

ment specified otherwise.” This would customarily

mean that the person who broke the contract could

be sued for damages or to prevent further breach.

Until the declaratory judgment came into exist-

ence, he would have been able to bring no action

of his own.

** The citations to the various state arbitration laws are

collected in Sturges, Commercial Arbitrations and Awards

(1930), p. ix and appendix.

* We assume that an administrative order, like that of an

arbitration board, could also be set aside for fraud, but know

of no cases in which that problem has arisen.

** It is unnecessary here to consider the extent to which the

courts at common law refused to enforce contracts to

arbitrate.

88

The tendency of modern arbitration statutes,

such as the United States Arbitration Act and the

Railway Labor Act itself, is to permit an award to

be attacked only in a prescribed manner. Under

the Railway Labor Act, an arbitration award may

be challenged on the specified grounds only within

ten days after it has been filed with the clerk of a

federal district cour: (Section 9)."

We think this expression of legislative policy as

to arbitrations generally may well be given effect in

construing the provision of paragraph (m), which

has its source in statutory provisions for arbitra-

tion. If the arbitration analogy is applied, a non-

money award could be contested only in the manner

prescribed in the Act. This would lead to the con-

clusion that the means of setting aside awards pre-

seribed in paragraph (p), if legally adequate,

would be exclusive.

The consequence of giving to the final and bind-

ing clause the effect given to its predecessors would

thus mean that both the method and the scope of

review would be narrowly restricted. Such an in-

terpretation would lead, in its practical operation,

to the same result as that previously suggested, that

the award be deemed final except where the statute

specifies to the contrary or where necessary to fui-

fill constitutional requirements.

* Cf. United States Arbitration Act, Section 10; Uniform

Arbitration Act, Secs. 15-18 (9 U. L. A. 66-67); N. Y. Civ.

Practice Act, §§ 1456-1458 ; Sturges, loc. cit. supra, c. 15.

89

3. The effect of the “final and binding’ clause

in paragraph (m) may be regarded as having been

generally curtailed by the prima facie evidence

provision in paragraph (p). It can be argued that

the latter paragraph, which gives the Board’s order

relatively little weight, shows that paragraph (m)

was not intended to determine the scope of judicial

review or affect the right to resort to the courts.

This view finds support in the apparent unreason-

ableness of treating the award as conclusive when

it has prima facie effect in the only kind of pro-

ceeding in which it can be enforced, as well as the

fact that the clause is in terms inapplicable to the

larger proportion of money awards entered by the

Board. This anomaly can be avoided by applying

the specific indication in paragraph (p) as to the

desired scope of review to any judicial proceeding

involving Board orders.

On this theory, the “final and binding”’ clause

has the effect merely of a legislative declaration

that the parties ought, and were expected, to abide

by Board orders. The force of the mandatory

character of the language used is destroyed by the

fact that the only means of enforcement against a

carrier is through a suit in which the award is

given only prima facie weight.

That the ‘‘final and binding”’ clause was largely

precatory in and of itself appears from the fact

that Mr. Eastman and Mr. Harrison regarded it

as strengthened by paragraph (p). Mr. Harrison

indicated that similar language in the earlier ad-

justment agreements was valuable in the main as

an expression of the good faith of the parties es-

tablishing the Board and as manifesting their

willingness to abide by an award voluntarily. Ifa

carrier refused to comply, the threat of court ac-

tion was necessary. Paragraph (p) was designed

to provide a similar sanction for the awards of the

new Board.

If the “‘final and binding”’ clause is given this

effect, it would not control the scope of judicial

review, nor would it limit the ways in which

orders of the Board could be judicially attacked.

Paragraph (p) would govern on both of these

issues, The scope of review generally, as to both

money and non-money awards, would be that speci-

fied in the later paragraph; the award would be

given prima facie effect only. If the Court should,

for reasons unconnected with the ‘final and bind-

ing’’ clause, hold paragraph (p) to be an exclusive

remedy, all other avenues of review would be closed.

If the Court should hold to the contrary, Board

orders would be subject to review in other proceed-

ings, in all of which they would be given prima

facie weight.

4. Since the “‘final and binding’’ clause does not

apply to money awards, it may be suggested that

it eau be reconciled with paragraph (p) by giving

non-money awards final and binding effect (to the

extent constitutionally permissible) but leaving

money awards alone to be controlled by the proce-

dure prescribed in the latter paragraph. We do

not think that the Act can be so construed.

It is true that the exemption of money awards

from the “final and binding’’ clause, and the prima

facie evidence rule in paragraph (p) both had

their roots in the right to a jury trial in suits for

money damages. Paragraph (p) was derived

from Section 16 (2) of the Interstate Commerce

Act, which only applied to orders for the payment

of money, and which this Court has indicated was

drafted in the light of the constitutional right to

a jury trial. Meeker & Co. v. Lehigh Valley R.

Co., 236 U. &. 412, 430; Baltimore & Ohio R. Co.

v. Brady, 288 U. 8. 448, 458. But the fact that

paragraph (p) was obviously modeled on Section

importance of the few

16 (2)” emphasizes the

* Section 16 (2) of the

Interstate Commerce Act

(before immaterial changes

in 1940 (54 Stat. 912))

reads as follows:

If a carrier does not comply

with an order

for the payment of money

within the time limit in such

order,

the complainant,

or any person for whose benefit

such order was made, may file

in the

circuit court of the United

States for the district in

which he resides or in which

is located the principal

operating office of the carrier,

or through which the road of

the carrier runa,

or in any State court of

5067 24— 43-7

Section 3, First (p), of the

Railway Labor Act reads as

follows:

If a carrier does not comply

with an order

of a division of the Adjust-

ment Board

within the time limit in such

order,

the petitioner,

or any person for whose benefit

such order was made, may file

in the

District Court cf the United

States for the district in

which he resides or in which

is located the principal

operating office of the carrier,

or through which

the carrier operates,

differences between the sections. Whereas Section

16 (2) is limited to an order “‘for the payment of

general jurisdiction having

jurisdiction of the parties,

& petition setting forth briefly

the causes for which he claims

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.

& petition setting forth briefly

the causes for which he claims

relief, and the order of the

division of the Adjustment

Board in the premises.

Such suit in the District Court

of the United States shall

proceed in all respects as

other civil suits,

except that on the trial of

such suit the findings and

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, uniese 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.

The district courts are

empowered, under the rules

of the court governing

actions at law, to make

such order and enter such

Judgment, by writ of man-

damus or otherwise, as

may be appropriate to en-

force or set aside the

order of the division of

the Adjustment Board.

money,” and refers to actions for “damages” only,

those phrases were omitted from paragraph (p)

of the Railway Labor Act. And Congress added to

the latter paragraph a sentence not contained in

Section 16 (2), providing that:

The district courts are empowered, under

the rules of the court governing actions at

law, to make such order and erter such

judgment, by writ of mandamus or other-

wise, as may be appropriate to enforce or set

aside the order of the division of the Adjust-

ment Board.

Such other forms of relief as are contemplated in

this provision for judgment of “mandamus or

otherwise”’ are clearly broad enough to encompass

non-money awards, and it would have been un-

necessary to provide for them if only money awards

were intended to be reached. This sentence was

referred to in the hearings (see pp. 77-78 supra)

as bolstering the final and binding clause. It was

undoubtedly included in the Act in order to make

it clear that both money and non-money awards

could be enforced against the carriers,

Both paragraph (p) and the final and binding

clause in paragraph (m) thus apply to non-money

awards. We are accordingly compelled to con-

clude that no differentiation between the two para-

graphs on the basis of a distinction between money

and non-money awards would be warranted.

94

Recommendation.—We have suggested that the

“final and binding”’ clause might, with some jus-

tification, be construed as:

1. Foreclosing all review of non-money awards,

except as provided in paragraph (p) or required

by the Constitution ;

2. Giving an adjustment board award the same

effect as an arbitition award, to the extent legally

permissible; and

3. Expressing a desire that the parties abide by

the award, but with paragraph (p) controlling as

to the scope of review and the procedure to be

followed.

The first of these interpretations is probably

supported most closely by the ordinary meaning

of the words employed ; the second by the historical

background of the clause, and partly by the state-

ments of the persons testifying before the Con-

gressional Committees; and the third by the prac-

tical effect of the broad scope of review allowed

in the only proceeding in which the awards can be

legally enforced, and the fact that the large propor-

tion of money awards are not governed by the

clause at all. The first two of the interpretations

reach substantially the same results, as does the

third if paragraph (p) be regarded as an exclusive

remedy apart from paragraph (m). On any of

these theories, if our views as to the adequacy of

the remedy are correct, the Board’s awards can

normally be challenged only by way of defense to

a suit brought under paragraph (p) ; in such a suit,

of course, the awards would have only prima facie

weight.”

We believe that Congress intended the Board’s

awards to be accepted by the parties at least to

the same extent as had been the decisions of its

predecessors. No one thought that the statutory

mandate would be less potent than a contractual

provision to the same effect. Indeed, the enforce-

ment procedure in paragraph (p) was regarded as

strengthening the award. The failure of any one

to refer to the prima facie evidence provision in

that paragraph is an indication that no one was

of the opinion that it would completely alter the

effect of the awards. For this reason, we believe

that the Board’s awards should be made as ‘‘final’”’

as possible, in accordance with either of the first

two of the interpretations discussed above.

This view, we think, is also most consistent with

the over-all purpose of the Act to insure the peace-

ful settlement of labor disputes. The friction aris-

ing from the many disputes as to grievances and

the interpretation of contracts will be reduced to

the extent that the parties treat the awards of the

Board as ‘final and binding.”’

“Tf paragraph (p) is held to be an exclusive remedy

apart from the “final and binding” clause, money and non-

money awards would be subject to the same treatment. If

not, extra-statutory suits on money claims alone might be

permissible. It is of some significance that, outside of the

language of paragraph (m) itself, there is no indication in

the legislative history or purposes of the Act that money and

non-money awards were to he governed by different rules.

, 7

THE BASIC ISSUE UNDERLYING THIS CASE

The importance of this case transcends that of

the rather technical legal issues to be decided. It

involves fundamental differences between manage-

ment and labor as to the effect to be given the

adjustment provisions of the Railway Labor Act.

Labor favors the final and complete settlement

of cases by the adjustment device and is willing,

without other compulsion, to abide by awards of

the Adjustment Board. When the Act was passed,

the employees’ representatives recognized that they

were agreeing to abandon their right to strike over

such questions. In return, labor expected the car-

riers voluntarily to comply with the Board’s

decisions.

Although the carriers might have been of the

same view when the Act was passed, they have

since taken the position that the Board’s proce-

dure deprives them of a fair hearing, that this

affects the quality of the awards, and that many

of the Board’s decisions are plainly erroneous and

seriously prejudicial to the efficient operation of

the roads. As a result, they are frequently un-

willing to comply with the awards unless forced

to do so, or until they have had an opportunity to

have the validity of the awards tested before a

judicial tribunal.

The employees reply that the adjustment sys-

tem will not be workable if the Board’s awards

are not treated as finul without the necessity for

litigation to enforce them. The employees’ rep-

97

resentatives feel that, for financial and other rea-

sons, they are in no position to compete with the

carriers if such matters are taken to the courts,

and that resort to litigation would delay final

decisions for a long time after the entry of the

Board’s awards and thus cause even greater dis-

satisfaction than now prevails with the period

between submissions and settlement. As a result,

it was the policy of labor, before the beginning of

the present war, not to sue on awards but to

threaten to strike if awards were not obeyed. This

policy generally resulted in compliance with the

awards.

If the carriers prevail in this case, they will have

found a means of bringing the Board’s awards to

the courts, and presumably will take to court all

awards against them which they deem harmful.

Irrespective of the merits of the decisions in such

circumstances, it is clear that the result would be

to open an avenue of review not contemplated by

Congress and to lessen the effect of the Board’s

orders. If the employees prevail, on the other

hand, they will continue to rely on their economic

power instead of upon the judicial remedy provided

in paragraph (p), and that paragraph will remain

substantially a dead letter.

These difficulties arise because of the substitution

of an adjustment system having its foundation in

a mandatory statute for a procedure based upon

agreements between the parties. When the parties

established the early adjustment boards by agree-

ment, they generally felt bound as a matter of mu-

tual good faith to accept the Board’s decisions.

The employees believe that the awards of the pres-

ent Board should be treated with the same respect,

particularly since they are final as to the employees

if they lose. The carriers, however, see no reason

why, since they have not given their word to accept

the Board’s decisions, the awards should be any

more binding than those of other agencies whose

decisions are given effect by law. The decisions

of other agencies may not be finally accepted until

upheld in the courts, and the carriers feel that they

need not accept Adjustment Board awards which

they deem clearly erroneous unless and until the

employees make use of the statutory enforcement

procedure which permits the orders to be judicially

reviewed.

We have taken the position that paragraph (p)

was designed to be an exclusive remedy once the

Board has entered an award. We recognize, how-

ever, t

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