# Amicus Curiae Brief — Ex parte Cassidy

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0056%3A7

## Record

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

## Text

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, how

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0056%3A7. Public record. Not legal advice.