Brief for the Petitioner — Order of Railroad Telegraphers v. Railway Express Agency, Inc.
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4 “Office - Supreme Court, Us &
4 YILED
1943
CHARLES ELMORE cneruey
hanna
—- a.)
SUPREME Ct COURT OF THE UNITED STATES
: - Ooross Tana, 1943 ih oh
No. 343
THE ORDER OF RAILROAD TELEGRAPHERS,
Petitioner,
vs.
RAILWAY EXPRESS AGENCY, INCORPORATED,
Respondent.
ON WRIT OF CERTIORARI TO THE. ©
UNITED STATES CIRCUIT COURT OF APPEALS,
FIFTH CIRCUIT.
BRIEF FOR PETITIONER, THE ORDER OF .
: RAILROAD TELEGRAPHERS.
“ ‘Wruam G. McRas, 7
First National Bank Bldg. be
Atlanta, Georgia,
Lzo J. _Hassenaver,
1 105 W. Adams St.,
Chicago, Tl: |.
Counsel for Petitioner.
; November 4, 1943.
¢
THE TWENTIETH CENTURY PRESS, INC., CHICAGO
Ais Gu ‘PACE
NN WOO oo cad ces oxancdecbacde ies <anems eee 1
eed eee ey 1
Statute involved .............060: ta ee a ekcdd eis ais 2-3
Questions presented ..2...........0. 008008. ta STE 4-5
Se a ee ie oe ed eens ela,
Factual background:..:........... igen sUgutecsiass ae
‘Hearings: before National Railroad Adjustment
fits eiahe shit oud ciduneaavncasnileaetelns 18
/ Objections by SPE to "Adjustment Board’s
jurisdiction sa eae lea ices Beate eo Shaskuvasakes 8
| Adjustment Board award. ivastue eyes nee eer rer 9
| Decisions below .........,....%. GY See Fe ne eaan cues 9
| Specification: of Errors to < ES wie Dba ak 6g bacok nee ~ 10
\ Summary ME BPIIOE, 5 oy 5 occ n ct aciden'e rece erey 11-14
htejernent
' I. - Section 6 of the Railway Labor Act of 1926,
_ Imposes. d legally enforceable obligation on
carriers to give at least thirty days’ written
notice of an intended change in rates of pay.. 15
Disputes are to be decidéd in conference
between authorized representatives of parties —
interested in the dispute. ..........5....... 16
Section 1, First and Second of the Act of
1926, imposed -a mandatory ‘duty on the
part of carriers to—
(a)Make and maintain agreements. ,
(b) Consider all disputes in conference with
representatives of employees designated.
and authorized to confer............. 16, 18
_ IIL.
VIL.
li
District Court held that Railway Labor |
Act controlling, but lower court did not con-
sider its application to the facts............
When two courts have reached the same con-
.. clusion on a question of fact, their finding
will not be disturbed unless it is clear that
_ their conclusion was erroneous.........:...
Individual employees cannot change terms ‘of
union contract by individual contracts with
their i) Neel s hu
The Circuit Court of Appeals erred in hold-
ing that-the written notice given to every
joint agent, and the securing of the consent -
to the arrangement of each agent affected,
was all that was required to alter the rates of
pay prescribed in the agreement of August
MOE Kitiesicas: ke Faw e Re Ee Mace «bac
The fact that Congress made negotiation ob-
ligatory, and awards of the Adjustment —
rd prima facie causes of action is in-itself :
a declaration of public interest and policy... ..
The lower court’s construction of contract.
clearly erroneous ............ Pay ek ag 5 "i
A State Statute of Limitations is no bar to a |
suit upon an award of The National Railroad .
Adjustment Board ................ CMMisix
Cape 2 Oe DS DRS DOSES SOS O66 46S F560" sco 45 0d
, | PAGE
Individual notices sent employees indis-'_
criminately not a fulfillment of duty on car-
_ Tiers under Section 6 of the Act........ nes QB,
28 -
29
a | °
Crrations.
me PAGE
Cases : rise A 7
Birmingham Tr. & Sav. Co. v. Atlantic B. & A. Ry. —
. Co. (D. C. N.-D. of Ga. 1931), 271 i: : 28
Burke v. Morphy, 109 F: ( 2d) 572, Certiorari denied —
Ms nck soc ne ac shb Shins aden tacbaeen
Escoe v. Zerbst, 295 U. 8. NG ais cise i ones “saws <a
Gray v. Powell, 314.U. S, 402, 411-13........... 13, 32, 34
Tilinois Central R. Co. v. Moore, 112 F. (2d) 959,
reversed 312 U.S. 630......... wines Sek oie a o ates
Mississippi Valley Barge Line v. United 1 States, 292
U. S. 282, 286-287 Cryekamerae ue catinnated ake th 34
National Labor Relations Board v. Jones & Letzhlin, ee
OE ca cGesa seb vacedvonedveaseye'e 14, 43.
National Licorice Co. v. Labor Board, 399 U. S. 350,
354, 360, 366..... Sh ae ee ee ke ane 46, 47, 49
Pennsylvania Railroad System and ‘Allied Lines Fed-
. eration No. 90 v. Pennsylvania Railroad Company,
267 -U.,B. BOB, 21G. cece cece gees sccescccces’s “18
Pick. Mfg. Co. v.-General Motors Clete, 299 U. S.
Dies sel aps nnh bebe nha saan sree o- 13, 31
Railway Employees Coop. Assn, v. Atlanta B. & C.
R. R..Co. (D. C. Ga. 1938) 22 F. Bape. 510. ....... >. i
Rochester Tel. Corp. v. United States, 307 U. S. 1235,
So ae MOE Aaics ce Calrtaas So iwee ek eaa et o> 33, 34
Shields v. Utah Idaho R. Co., , 305 U. S. 177, 180-181,
184, a Se ecieian ss etna en te 13, 33, 34
Silberschein v. United States, 266 U.S. 221....... | ie
Swayne & Hoyt, Ltd. Vv. United States, 300 U. S. .
RESIS Retin Seng ARR Pipa ne oe en 34
"F. (2d) ee oe ean RES as!
ae ary
Texas & N. O. R. Co. v. Brotherhood of Ry. & S. s.
Clerks, 281 U.S. 548, 558,.567, 568. 569. . 13, 14, 27, 31, 49°
Tift v. — Railroad Co., 138 Fed. 753, affirmed
Virginian Raitvay Co. v. Carole Federation No, 40,
300 U. S. 515, oeaee, 548-549, 552, 553
Washington Terminal Co. v. Kael. aa: e ay ;
235, 242, affirmed June 14, 1943, 318 U. S.....5.,50,56 -
| Wheeling Corrugating Co. v.. Las apt 41 P. (2d). -
| -§93 |
Williams v. Terminal Co., 315 U. S. 386, 399, 400,
oe ka ee ee fees ‘ P
PAGE
ee
>
~~ WF ee sea
_ oe
ee ee ae
? vo
nN PAGE
Statutes: a, oN | ee
Interstate Commerce Act, Section 16(2) ae nercr bs ‘31
. Judicial Code, Section 240(a) 28 U. S. C. 347, 48 Stat.
Sass TIN a Se ae es ae ll a SSR ry a Weir area 1.
.. National Labor Helaticles Act, Sections 7 and8..... 46
Newlands ‘Act (Public No. 6 (63d mipiincs approved
July. 15, 1913)........ Pisddabbbiminbateeeniaeas
- Railway-Labor Act, May 20, 1926, c. 347, 44 Stat,
577; U.S. C. Tit. 45, Secs. 151 et seq.............. 3.
Section 2 (First) (45 U. S.C. See. 152) .2, 16, 17, 19, 20, ‘41
Seetion 2 (Second) . icimaekcas 3, 5, 16, 17, 19, 20, 24, 40, 48
- Section 2 (Third)........- PEW OO Ee 3, 16, 20, 37, 38,47 .
Section 2 (Fourth)...... eee PABe? 3, 5, 16, 17, 20, 24, 37, 48
, Section 2 ee a 4,11, 14, 16; 20, 26, 27, 41, 42
Section 3 (45 U.S. ©. 153)... 6.66. e eee eee ee ea
Section 5 (45:1, BC..105)<-.0.0%..0cpcccs ence eee 20H 2
Section 6 (45 U. S. Cx156)....... civ Ap Nea Saeaes
af 5, 7, 10, 11, 12, 14,15, 16, 17, 23, 24, 25, 26, 30, 37, 38,
fh RESTS pele NE) ST cease 40, 41, 42, 48, 49
Section 7 BS ae 3 a ee eats eens 20
/ Section 10 (45 U.S. C. 160).....: Neiesce bn ebvtgl et. / ee
_ Railway Labor Act of 1926, as amended June 21,
—- 1984, c. 691, 48 Stat. 1185, 45 U.S. C. 151 et seq... 2
Section 2 (Third) (45 U.S. C. nen sath: eg eee 4
Section 2 (Fourth) (45 Bee RED occciph ices eure ae
~ Section 2 (Fifth) (45 U.S. C. aaa See a 4.
Section 2 (Seventh) (45 U.S.C. 152)...4, 14; 27, 40,41, 42 |
Section 2 (Eighth) (45 U.S. C. 158)............... 18
. Section 2 (Tenth) (45 U.S. C. 160).......... 4, 18, 27, 43
Section 3 (i) (45 U.S. C. 153(i)) . 64. A rang bis Sey 2:
__-Seetion 3 (p) (45 U. S.C. 153 (p))........-. "2,5, 31, 56
- Section 3 (q) (45 Uc S. C. 153(q)).-.. 062... eee 2.5, 56
Section 5 (Third(e)) (45 U.S. C. 155(e)).........21,57
Section 6 (45 U.S. C. 156) /.......)....... Siti Saat 40,41 ,
Transportation Act of 1920, Sec. 301........... eee |
aw
IN THE .
SUPREME COURT OF THE UNITED STATES
a ; Octonzs Trem, 1943.
No. 343
THE ORDER OF RAILROAD TELEGRAPHERS,
Petitioner,
“VB.
‘RAILWAY EXPRESS AGENCY, Lob CORPORATED,
_ Respondent.
ON. WRIT OF CERTIORARI TO THE.
- UNITED STATES CIRCUIT COURT. OF APPEALS,
FIFTH CHOU.
BRIEF FOR PETITIONER, THE ORDER OF-
Sax er TELEGRAPHERS.
The opinion of the United States Cireuit Court of Ap.
peals, Fifth Circuit, is reported, at 137 F. (2d) 46, and is
printed in the reeord at R. 369- 377. The. opinion-of the
District Court, Findings of Fact and Conclusions: of Law
is is printed i in the record at’ R. 335-356.
Jurisdiction. a ‘7
The judgment of the United States Circuit ‘Court of
Appeals, Fifth Circuit, sought to be reviewed was entered
on July 9, 1943, (R. 378). The jurisdiction of this Court is,
invoked under Section 240(a) of the Judicial Code, as
amended (28 U. 8. C. 347, 43 Stat. 938).
2
Statute Involved. «sss
"~The suit was brought by The Order of Railroad Teleg.
‘raphers to enforce an award rendered by the National Rail-
road.Adjustment Board. Such suit was. filed in the District
~~ Court of the United States for the Northern District of .
Georgia, under Section 153(p) of the Railway Labor Act,
as amended, (Act of Jurie 21, 1934, c. G91, 48 Stat. 1185,
45.U. 8. C. 151 et seq.).* Certain provisions of the Railway
Labor Act of. 1926, ¢. 347, 44 Stat. 577; U. S. C. Tit. 45,
Sees. 151-163, are involved because the change in rates of
pay was effected in 1930, in violation of the provisions of
Section 6 and related provisions of the Act of 1926.
The portion of the Act of 1926 principally concerned is
. Section 6, which provides in part as. follows:
. Working Conditions.
Procedure ‘in Changing ‘Rates of Pay, Rules and -
_..“See. 6. Carriers and the representatives of the
employees shall give at least thirty days’ written no-
tice of an intended change affecting rates of pay, rules,
' or working conditions, and the time.and place for con-
ference between the representatives of the parties in-
_ terested in such intended changes shall be agreed upon
within -ten days after the receipt of said .notice, and
said time shall be Within the thirty days provided. in
_, the-notice.* * * In every case where such notice of
intended change has been given or conferénces are be-
ing held with reference thereto, or the services of the
Board,,of Mediation have been. requested by. either
party, or said board has proffered its services, rates
_ .of pay, rules,‘or working conditions shall not be al-
. tered by the Carrier until the controversy has been
finally acted upon, as required by. section 5 of this Act,
by the Board of Mediation, tinless a period of ten days
_ has elapsed after termination’of conferences without
request for or proffer of the services of the Board of
_ Mediation.”’: .. -
*Section 153 (i), {p), and (q) appear in Appendix B hereto.
ere
al
. .
: ‘
; . . —
; ‘ . ;
| : :
' 8
\ y : é
i eeteeniaidian, Sends | 7 To.
In addition the General Duties preeermes ¢ in the Act of
1926, are similarly involved : \
‘*Sec. 2. First. It shall be the duty of all carriers,
their officers, agents, and employees to exert every
reasonable effort to make and maintain agreements
concerning rates of pay, rules, and working conditions,
and to settle all disputes, whether arising out of the
application of such agreements or otherwise, in order ~
to-avoid any interruption to commerce or to the opera-
tion of any carrier growing out of any dispute between
the carrier and the employees thereof.
\ Second. « All disputes between a carrier and its em-
\ ployees shall be considered, and, if possible, decided,
\ ’ with all expedition,-in conference between representa- .
‘ ‘tives designated and authorized so to confer, respec-"
tively, by the carriers and by the employees thereof
interested in the dispute.
- Third. Representatives, far the purposes of this Act,
- shall be designated by the respective parties in such:
manner as may be provided in their corporate organi-
zation or unincorporated: association, or by other
means of collective. action, without interference, influ-
ence, or coercion exercised by, either party over the
self-organization or “designation of representatives by
the other. ~ i -—
Fourth. In case ofa dispute between a carrier and
its employees, arising out of grievances or out of the
interpretation or application of agreements concern-
ing rates of pay, rules, or working conditions, it shall
be the duty » f the designated representative or repre-
sentatives. ‘of such carrier and of such: employees, with-
_in ten days after the receipt of notice of a desire on
the part of either party to confer in respect to such
dispute, to specify a.time and place at which such con-
ference shall be ‘sgt ided, (1) That the place so.
specified shall be sitgm@ted upon the railroad line of the
earrier involved ‘unless ‘otherwise mutually agreed
upon; and (2) that the tinie so-specified shall allow
the designated cqpamrece reasonable opportunity to
. " ss ”
«4
4
' reach such place of conference, but shall not exceed
‘twenty days from the receipt of such notice; And pro- .
vided further, That nothing in this paragraph shall
be construed to supersede the provisions of any agree-
ment. (as to conferences) then in effect between the
parties.
Fifth. Disputes concerning changes in rates of pay,
rules, or working conditions shall be dealt with as pro-
vided.in section 6 and in other provisions of this Act
relating thereto,.”’ : }
The sanctions of the criminal as well as the civil law
have by Section 2, Tenth, of the Act of June 21, 1934, beep
made applicabie, to changes, without thirty dats’ notice in
the rates of pay, rules, or working conditions of classes of
employees (Section 2, Seventh) -(Seetion 2, Fifth of the
Act of 1926), to interferences with labor organizations otf
employees, (Section 2, Fourth) to coercive attempts to in-
- duce employees to join or not to join a labor organization
. (Section 2, Fourth and Fifth) and to interferences with
the designation of representatives (Section 2, Third):
Questions Presented. |
1. Whether or not Section’6 of. the Railway Labor Act
of 1926 is to be construed, in its application to the facts of
this case, so as to permit a carrier to alter rates of pay,
- rules, or working conditions of any of its employees, in
effect at the time of the passage of the Act, without first giv-
- ing at least thirty days’ written notice to the authorized and °
designated representatives of the employees of an intended
change affecting rates of pay, rules or working conditions, :
in an effort to reach an agreement as to a time and place
for conference between the representatives of the parties
interested in such intended changes.
5s.
~~ -
pO eee a ee
ae ET
re
ee
me —
5
2. Whether or not, where a majority of a craft or class
has selected a representative, signatory to an agreement, a
cirrier is free to make with any one it pleases and for any °
group it pleases, contracts’ altering established rates of
pay, rules, or working conditions, without notice to or con-
ferences with the designated representatives of the em-
ployees involved. :
3. Whether or not Section 6 and Section 2, Second and
Fourth of the Act of 1926, manifest an intent on the part of
_Congress that carriers shall confer. with representatives of
the employees before changing rates of pay, rules or ‘work-
ing conditions,
4, W hether or not the conclusion of the court below, to
the effect that a group of employees affected accepted com-
pensation, not in the terms provided in the agreement, but
upon those fixed by the carrier, deprived the representa-
tive organization of -a. right of action ‘in a suit upon an
award under Section 153(p) of the Act, as amended.
5. Whether or not the conclusion of the eourt below
that the bar of the state statute of limitations has fallen .
_ as-to all of the amounts due under the terms of the award
“which accrued more than six years before suit was filed,
ousts the jurisdiction of the United States District Court
in a suit for an order to enforce an award brought within
the statutory period as provided in n Sec ‘tion 153(q) of. the
Act, .as amended.
6. Whether or not the Railway Labor Act of 1926 is to
be construed, in its application to the facts of this case, so
as,to permit any alteration by a carrier of rates of ,pay,
‘rules, or working conditions, in effect at the time. of\ the
‘passage of the Act, without the carrier exerting every rea- ea
‘sonable effort to comply with the requirements of ‘the Act
prescribing a brief period of attempted mediation with the
«4
L
ae |
6 : Gi
: representatives of its employees designated so to confer in
the manner provided by the Act. |
7. Whether or not the Railway: Labor Act of 1926, im-
poses a legally. enforceable obligation on carriers to give
_ thirty days’ written notice of an intended change in rates ©
of pay, and to confer with designated representatives of
_ the employees before changing rates of pay. a
Statement.
Petitioner is a voluntary unincorporated association,
national in scope, selected by crafts and. classes of em-
_ployees of carriers by railroad in accordance with the
provisions’ of Section 2, of the Railway Labor. Act. Re-
spondent, a corporation, took over the express business on
the Seaboard Air /Line Railway upon dissolution of the
American Railway Express Company March 1, 1929. On-
that date the ilway Express Agency, Inc., in . fact
assumed,. and operated under, the collective bargaining: |
contract executed in 1917 between The Order of Railroad -
Telegraphers, hereinafter referred to as Telegraphers, and
the Southern Expréss Company regulating rates of pay,
_ Tules and working conditions governing the Southern Ex.
press Company’s agents jointly employed as railroad and
express agents, on the Seaboard Air Line Railway - |
' (R. 19-22)... |
The rules and rates of pay of the contract were applied
by the Railway Express Agency, Inc., hereafter referred to
as Express Agency, from March 1; 1929, to April 10, 1930.
On March 25, 1930, the Express Agéncy through one of its
. division superintendents, notified by letter each of the in-.
- dividual joint railroad-express agents under his super-
vision, that on and after April 10, 1930, the compensation
which the Express Agericy would pay for handling a car-
7
load shipment by express would be $5.00 per car instead of
the percentage rate of agency commission (R. 137). A.
similar notice was given by another division superintendent
on April 8, 1930, to all joint railroad-express agents in his ©
territory that the compénsation of $5.00 per car would be-
come effective with business on eae after — 10, 1930
(R. 138).
The Railway Labor Act of 1926, stil in- Section 6,
“that carriers -and representatives . of the. employees shall
give at least. thirty days’ written notice: of an intended
_ change affecting rates of pay, rules or working. conditions
and shall agree upon the time and place of conference.
~ It was. stipulated between’ the Telegraphers and the Ex-.
press Agency that no notice of cancellation vr any other
notice was ever served on any of the General Chairmen of
the Telegraphers, signatory to the Agreement of aa a
1917 (R. 65). :
The action of the Express Agency was sintensed, by the
Telegraphers through its Local Chairman in June, 1930
(R. 315). The Express Agency informed the Seaboard
Air Line Railway Company shortly thereafter (R.. 323)
that it declined the élaim made‘on- behalf of Dinkins joint
railway-express agent at Lawtey, Florida.’ |
This claim and related claims remained unadjusted (R.
. 333). -No voluntary board of adjustment having been
*. agreed upon as provided in Section 3, of the Act of 1926,
atteinpts to adjust the claims were renewed by the General
Chairman (R. 324, 326, 327). Upon creation of the Na- ’
tional Railroad Adjustment Board in 1934, efforts were
" made by the Telegraphers to secure the Express Agency’s
agreement to enter into a joint submission of the dispute
to that board. It was refused (R. 333).
e
8
Failing to adjust the dispute concerning the claims which ~
arose as a result'of altering the rates of pay, the matter
_ Was referred by the Telegraphers, representing the joint
railroad-express agents, tu the. National Railroad Adjust: —
ment Board, Third Division, ° / i than
In the hearings before the Adjustment Board, the Ex. .
press Agency maintained: Ri
‘1. That the members of the Telegraphers ‘organization
‘were not employees ‘of the Express Agency and it was not
their employer within the ternis and provisions of the Rail-
way Labor Act.* ° wit ,
2. Even if the joint railroad-express agents were its
employees, within the provisions of the Railway Labor Act,
_ the Telegraphers had no contract with the Express Agency.
which would form the basis of a dispute under Section
153(i) of the Railway Labor Act, as amended.
A deadlock having ensued among the members of the
Third Division of the Adjustment Board over the question —
of jurisdiction, the National Mediation Board, upon re-
- quest, appointed a neutral person as referee in order that
the dispute could: be again considered and a majority de-
cision reached. Upon full consideration by the Third Divi-.
_ sion of the Adjustment Board, with a referee sitting as a
“member thereof, an award (R. 224-239) was rendered order-.
ing that the case be heard on its merits.
‘Subsequently the Express Agency filed its response on.
the merits and further hearings were held before the /
} _ Adjustment Board which again ended in a deadlock end the
National Mediation Board was again. requested to, and did |
.appoint.a héutral person other than the referee previously
_ *Express Ageney ’s claim that the agents concerned were not in
its employ was abandoned .in the District Court (R. 57); (Court
of Appeals’ opinion (R. 373). “A
..
appointed to sit with the Adjustment Board as a member
thereof to consider the dispute and endeavor to reach a_
niajority decision. After oral argument before the referee
by both parties to the dispute, the Third Division of the
Adjustment Board rendered its award No. 548, (R. 7-16) | -
for the enforcement of which this suit was ‘filed under
Section 153(p) of the Railway Labor Act.
A Stipulation of Facts was entered into and filed in the |
- District Court at the trial (R. 60-100, Exhibits 101-134).
Following. the opinion (R. 335-353), the District Court
entered Findings.of Fact, and Conclusions: of Law. hee :
Judgment on the Award (R. 353-358). = |
. On appeal to the Cireuit Court of denis, that Court a
- affirmed the District Court in the following ees, and
held: thy
1. The Third Division of the National Railroad Aitjust- :
ment Board had jurisdiction of the dispute (R. 373).
2. The Express Agency in fact assunied, ‘and opsenied
. under, the contract between the Telegraphers through its
General Chairman and the Southern Express Company (R.
374).
The Court below, however, erroneously lield that the
suit filed by the Telegraphers was one on. a contract and
_ that the individual notices sent by the Express Agency to
‘the 344 joint railroad-express agents, represented by the
Telegraphers, constituted sufficient notice under the agree-
ment and the acceptance of the altered rate of pay pre-
vented the employees for ‘thenfselves and the union for
them, from any right of action to recover more (R. 376).
_ As a basis for reversing the judgment ofthe District
' Court, the Court below (R. 375) misinterpreted the opinion
_ of this Court in Virginian Railway Co. v. System- Feder-
ation No. 40, 300 U. 8. 515, 548-9, ‘in holding that a-carrier, |
“if as ee
__ subject to the Railway Labor Act, was _permitted.to make
such individual contracts’ as~it-iay elect to make directly
with all of its employees, regardless of whether a collec
tive agreement covering a ¢raft or class was in existence,
and that altering the rates of pay therein prescribed could
be affected without the requisite statutory notice to, and
the resulting conferences with, the designated representa: .
tives of the employees as were made mandatory in the Rail-
way Labor Act. ae.
SPECIFICATION OF ERRORS'TO BE URGED.
The Cireuit Court of Appeals erred— |
1. In holding that the suit filed to enforce an award. of
’ the National Railroad Adjustment. Board was a’ suit upon
a contract between the railroad labor organization repre-
senting employees and the carrier. f
_ 2 In holding that a’ colleétive bargainin@agreement
covering all-emplbyees of a craft or class regifiting rates
of pay, rules, or pork conditions may be changed by a
carrier, signatory thereto without mandatory’ notice and
' conference presefthed by statute and that’ employees, at the |”
instance of the carrier, may waive their rights through
special individual agreements changing the whole structure
as to rates of pay under threat of, removing the agency
from the stations. % .
* 3. In holding that acceptarice of the reduced commission
rates of pay by the employees at the instance of the car-
rier, deprived the- authorized and designated: representa-
tive labor organization of the right to seék enforcement
of an award sustaining the ¢laims of the organizatjon aris-
ing under its agreement. .. : :
A
“
+." In holding in disregard of the provisions of Section
(6 of the Railway Labor Act of 1926, a tarrier may, where
i ee i te
the majority of a craft.or class has selected a representa- |
-...._tiveand a collective bargaining agreement has been pro-
_ mulgated, make with all such employees specific individual
~“. agreements ‘altering rates of pay, without notice to or con-
ference with the designated representatives of the emi-
gue ee
‘Ir holding in dibsweard of the Railway Labor Act of
: ne the representative of the majority’ is not to represent
the craft or class for the purposes of the Railway Labor
Act, and that such Act does not reserve exclusively to craft
representatives as opposed to individual- employees the
changing of collective agreements with respect to to rates of
pay, rules or werking conditions. affecting employees pre-
viously hired under the’ terms of such collective agree-
ments... 5, °
6. In holding that the statute of limitations of. the state
of Georgia was a bar to an action on-an award of the
National Railroad Adjustment Board sustaining claims of
the petitioning organization based upon continuing viola-
tions of a collective: bargaining agreement.
14 te reversing sa e judgment of the District cee
SUMMARY OF ARGUMENT.
“Tite ‘decision of the Court of siatvond below ane be .
reversed by this Court because :
L In the Railway Labor Act of “1926, uti 6, Con-
' gress imposéd a legally enforceable obligation on carriers
to give at least thirty days’ written notice of an intended
change affecting rates of pay, rules, or working conditions,
and to agree upon a time and place for conferences between
. representatives of the parties interested | in such intended
changes before altering rates of pay. Congress in the:same
Act, Section 2, Fifth, ‘provided that disputes concerning |
oa ’
“et -
.
eed, age
12,
changes in rates of pay, rules; or working conditions, shall
be dealt with as provided in Section 6 and in other provi-
sions of the Act relating thereto. The Court below in -the
instant case; gave no consideration to the mandatory provi-
sions of these Sections and decided the question independ-
ently. The District Court-found as a fact that no notice
was given by the Express Agency in compliance with Sec.
‘tion 6 of the Act of 1926, The Express Agency did not take
_issue with this finding upon its appeal to the court below.
It had stipulated that no official notice of cancellation of
-., “the Express Schedule Agreément of August 1, 1917, was
ever served on any of the General Chairmen of the Teleg-
raphers. . :
"The Court below having concurred in the finding of the
} Adjustment Board and of the District Court that the x
press Agency in fact assumed, and operated under, the
contract of August 1, 1917, was bound to apply the manda-
tory provisions of Séction 6 and to hold in accordance: with
the findings of the District Court that no notice was ‘given
in compliance with the terms of said Section. |
Under the decisions of this Court; upon consideration of
the purposes of the Act, there can be no doubt that the
requirements of the Act for the giving of notice, ete., are
mandatory upon the carrier employer. Virginian Railway
Company v. System ‘Federation No. 40, 300 U. 8. 515, 542-
Notices ie -individual employees, covered by a col-
lective bargaining agreement, of a change in rates of pay,
effective from two to sixteen days, without providing for
the full period of consideration of the carrier’s proposal,
deprived employees of communicating with each other and _
their duly authorized representatives in an effort to secure’ _
conferences on the proposal of a change in rates of pay.
The ‘Take It or Leave rt"? policy of the Express Agency
3,
13
is violative of every principle of collective bargaining. The
securing of the consent of employees affected by the. method
pursued by the Express Agency cannot by any stretch of
_ the imagination be termed a compliance with the principles: -
of the Railway Labor Act, -or with the provisions in a
- collective bargaining agreement requiring thirty days’.
notice of cancellation. -
II. The lower court concurred in thie Sadings of the
District Court and of the National nanreee Adjustment
. Board, that.
1. The Third Division of the National Railroad Aitiet
ment Board had jurisdiction of the dispute. ;
~The Express Agency in fact assumed, and operated. 2
ial the contract between the Telegraphers through its |
Gener Chairman and the Southern Express Company.
Thus, since the.two lower courts ‘reached the same con-
clusion on a-question of fact, their finding will not -he dis-
turbed unless clear error is shown.”’ Teras ¢ N. O. R. Co. |
v. Brotherhood of Ry. & S. S.C Clerks, 281 U.S. 548, 558; Vir-
giniam Ry. Co. v. System Federation No. 40, 300°U. S. 515,
042945; Pick Mfg. Co. v. General:-Motors Corp., 299 U. 5.
‘Congress having left these matters to the determination
of an administrative body, the function of review is per-
formed by the courts when they determine that there has
been.a fair hearing, and.an application of the statute in a
just and reasoned manner. Gray v. Powell, 314 U. 8. 402,
411-413; Shields v. Utah Idalio R. Co., 305 U.S. 177, 180-181.
lil. There is no merit in respondent's arguinent that
(a) it-had the absolute: right to make individual contract=
and that this Court in Virginian Railway Co. v. System —
Federation No. 40, 300 U. S. 515,°conferred the right of
individual agreement, aml (b) that there was-nothing in
the Raitway Labor Act which weuld outlaw such individual - -
oe
. +
as . 14
dgreement even though a collective bargaining agreement
“was in effect. Respondent’s argument entirely miscon-
‘ceives the meaning of this Court’s opinion in the Virginian
ease and of this Court’s opinion in Teras & N. 0. R. Co. v.
Brotherhood of Railway and S.'8. Clerks, 281 U. S. 548,
The decisions upholding the General Duties, as set forth
in Seetion2-of the Act and prohibiting interference’ and
outlawing various ‘methods of engaging~in it are plainly ©
7
nae controlling here,
Respondeng’s argument assumes that because of the man-
datory provisi@® of Section 2, Fifthy and Section 6 of the
_ original Railway Labor Act of 1926, its liberty of contract.
‘is limited. The premise of Ry is that liberty of
contract is absolute. and n subject to restriction in ther.
public interest.. 2 | :
This Court has repeatedly held that the due process
clause confers no such immunity.
IV. Where a collective bargaining agreement has been _
, promulgated between an employer and authorized repre:
sentatives of the employees and which agreement has never
been abrogated by ‘either of the parties, no changes inay be
made'of the rates of pay, rules or wérking conditigns by
employees acting individually. Such action is prohibited in <
the declared policy of the Railway Labor Act and is further
- violative of the public policy that union is esséntial to give
employees opportunity to deal on an equality with the em-
ployer. National Labor Relations Board v. Jones & Laugh-
lin, 301 U.S. 1, 33-34. ' ae
The prohibitions of Section 6 and Section 2, Seventir, of
the Railway Labor Act against changes in rates of pay or
working conditions are aimed at preventing changes fixed
_ in collective ba¥gaining agreements previously promul-
gated and published by the employer. Williams v. Terminal
Co., 315 U. S. 386, 399, 400, 402-3. . :
as.
ae | at 15 | ~~
he
The sitesi Labor Act imposes a legally enforceable
obligation on carriers to ‘‘give at least thirty days’ writ-
ten notice of an intended change affecting rates —
and to attempt to agree upon a ‘‘time and place for.
conference between the representatives of the’ —.
before altering rates of pay. .
-The main question involved is whether or not Section 6
| _ of the Railway Labor Act of 1926, is to be construed in its
application to the facts in this case, so as to permit a carrier
to alter the rates of pay, rules, or working conditions of any
of its employees, i in effect at the time of the passage of the
Aet, without first. giving at least thirty days’ written notice
to the representatives of the employees of ‘an intended
change affecting rates of pay, rules, or working conditions,
in an effort to reach an agreement as:to a time and place ©
for.conference between the representatives of the’ parties
interested i in such intended changes.
The primary purpose of:the Railway. Labor Act of 1926
was to protect commerce. The Act clearly manifests the
intention of Congress to encourage, and in certain. instances,
to require collective. bargaining between carriers and their
employees, through designated representatives, as a means
of effecting the settlement of disputes: between carriers and,
their employees which might tend to interrupt the flow.of~
commerce or the ee # of a carrier engaged it ‘inter-
state commerce.
Congress encbyraged the making and maintaining of col-
‘lective bargaining agreements concerning rates of pay, rules
or working conditions between carriers and their employees.
16
2
(Section 2, First) through representatives, “designated by }
the respective parties in such manner as may be provided -
in their corporate organization, unincorporated association,
or by other means of collective action”’ (Section 2, Third),
-and provided that ‘‘all disputes between a carrier and its
employees shall be considered, and, if possible, decided, with
_ all expedition, in conference between representatives, desig-
_ nated and authorized so to confer,. respectively, by the
carriers and by the employees thereof interested in the dis-
pute’’-(Section 2, Second). :
- * While all disputes between a carrier and its employees
were required by Section 2, Second, to-be considered, and,
if. possible, decided, with all expedition, in conference be. -
tween representatives of the’ parties interested in the dis-
pute, Section 2, Fourth, Fifth, and Section 6 of the Act
outlined the particufr mode of procedural processes to
be complied with respecting attempted mediation of two.
specified classes of disputes.’ Section 2, Fourth, outlined the
procedure to be complied with in disputes between a carrier
and its employees ‘‘arising out of grievances or out of the
interpretation or application of agreements concerning rates
of pay, rules, or working conditions.’” 7 aoe
Section 2, Fifth, provided:
‘*Disputes concerning changes in rates of pay, rules, or -
working conditions shall be dealt with as provided in .
Section 6 and in other provisions of this Act relating
; 7, eee Foe
r
Section 6 provided for notice to'and an attempt to arrange
-a conference between representatives of the parties inter-
ested in an intended change, before any change should be
made. . | |
In each of these, two specified. classes of ‘disputes, Con- |
- ress imposed upon the designated representative or repre-.
© ft oe
ae a
!
17
ee " sentatives of the carriers and of such employees, the duty to
- give. notice and to attempt to agree upon (Section 6) or
specify (Section 2, Fourth) a time and place for conference
between the representatives of the parties interested in the
‘dispute, so that the dispute should be’ considered, and, if
- a carrier altering rates o
possible, decided with all expedition, in conferenée between
such representatives of the parties (Section 2, Second).
Congress specifically enagted a statutory prohibition against
Sy, rules, or working conditians,
in effect at the time of the passage of the Act, until after
- the-representatives of the carrier and the representatives
of the employees had exerted every reasonable effort to —
consider such disputes in conference ( Section. 6).
The legal obligations of: the respondent. and the legal
} rights of the employees, which were violated in the present
case, are set forth in Section 2 of the Railway Labor Act.
).
Section 2, read as a whole, shows a clear purpose on the
_ part of Congress to provide for the maintenance of har-
Pe
monious labor relations in interstate commerce, through
the establishment of employment relations by contracts
engendered th rough collective bargaining: It is the essence
of \u- contractual obligation that it shall be voluntarily
rafseaiges Pane by ae
The mandatory. duty .to treat. with or confer with the
duly authorized representatives of the employees, -rests
upon Section 2, First, and Second, of the Railway Labor
Act of 1926.. This Segtion, First and Second, were not -
changed by the 1934 amendments to the Railway Labor
mo -
The language of these paragraphs is much thie same as
that used in Title III, Section 301 of the Transportation
- Act of 1920. “A construction of that section by this Court,
hawever, i in Pennsyile ania Railroad System and Allied Lines
‘* judicial power’’-(P. 85).
. ad e
18
z Federation No. 90 v. Pennsylvania Railroad Company, 267
U. S. 203, 216, indicated. that the First and Second para-
graphs of Section 301 did not create an enforceable obli- :
gation. -
- At the time Section 2 of the Railway Labor Act of 1926 *
: - Was being considered by the House Committee on Interstate
_and Foreign Commerce, it became apparent that the
language of Section 2, First and Second ‘permitted enforce-
‘ ment by judicial ae es joe
These paragraphs have been further strengthened in the ne
aniendments to the Railway Labor Act of 1934, which
greatly enlarge the scope of the enforceable obligations.
Section 2, Tenth, provided certain penalties for-failure to
publish a notice prescribed by Section 2, Eighth, informing |
employees all\disputes will be handled in accordance with
*Mr..Richherg, who ‘explained the bill to the House Committee
on Interstate and’ Foreign Commeree, testified as follows in answer *
to questions as to whether Section 2, paragraphs First and Second,
were enforceable (Hearings. on H. R. 7180, 69th Cong., 1s¢)Sess.) :
‘I think any attion -involving an arbitrary refusal to comply
"with that duty might be subject to judicial compulsion. * * *
In other words, I think it would not be exerting a reasonable effort .
to make and maintain agreements, for a carrier or its appropriate
', Officers to“refuse:to even ineet a committee that sought to make
“an agreement’’ (P. 84). -
‘ eh] @
<1 think that a duty imposed by law is enforceable by judicial . -
~? power., Of course, this is not a duty which could be enforced in ‘a-
very absolute way,-because it is a duty to exert every reasonable
effort." In other words, all that could be enforced by the court
would be an order against-an arbitrary refusal to even attempt to
comply with that duty, but~I believe that could be subject to.
‘In the first place, it is their duty to exert every reasonable
effort: * © © to settle all disputes, whether arising out of the
abrogation of agreements or otherwise, in order to avoid any inter-
ruption ‘to commeree. In other words, the legal obligation is im-
posed, and as I have previously stated, and I want to emphasize
it, I_believe that the deliberate violation: of that legal obligation
could be prevented by court compulsion’’ (P. 91).
.
pth Dat nt EDI REBE DERE Ie ot ay oy
eo
the requirements of the Act. Such handling necessarily |
“required conferences as that term was used ih paragraphs~
._. First and Second of Section 2. It would be absurd to argue
’ that Congress intended that a carrier should be prosecuted
_and penalized for failure to notify employees. that -it will
hold a conference, but that it should not be under-a_tegat——
‘obligatior ‘o fix a time and place to hold a conference.
. Therefore, in seeking to have employment relations har- .
-moniously established and maintained in interstate com-
merce on the basis of contract, Congress not only made it |
the duty of the parties tto make every reasonable effort to
make and maintain agreements, but also made it the duty
of carriers and -employes to. confer through ‘‘represen-
tatives designated and authorized. so to confer,’’ and made
it’the duty of both parties to refrain from exercising any
influence over the selection or action of the agents of the
other party, which would result i in fraudulent, non- enforce-
‘able contracts. :
It must be assumed. that members of Congress, like all
other persons familiar with industrial relations and with
controversies -between employers and employe organiza-
tions on the railroads and elsewhere, know that the refusal’
of employers to ‘‘recognize’’ employe organizations and
their representatives, and to confer with them, has been —
‘a most prolific source of controversy and a frequent cause _
of strikes. The Railway Labor Act was clearly written upon
the theory that if the parties could be legally obligated; at.
least to meet and’ to discuss their differences, and if then\.-
a machinery of government mediation and opportunity for
arbitration could be provided, there would be every reason
to expect that most, if not all, labor dispufes would be
peaceably determined. The entire efticacy of the Act, there-
fore, would depend upon providing assurance at the outset
that each party could compel a consideration of its posifion
.»
.
: _ 2: -
by the other party and could be assured that, if any agree-
ment were reached, both parties would be legally obligated -
to perform it because the validity of the contract made by
duly authorized representatives could not be challenged. .
Therefore, in addition to the provisions of the first three
"\_ paragraphs of Section 2, it was provided in the Fourth and
~.. Fifth paragraphs that conferenees must be held in- regard
to the two large classes of disputes commonly arising on the
_ Failroads. The Fourth paragraph covered disputes ‘Sartsing
* out of grievances or out: of the interpretation or applica-
tion of agreements, concerning rates of pay, rules or work-
ing conditions.’’ The Fifth paragraph covered ‘‘disputes
concerning changes in rates of pay, rules or working con-
_. ditions.’”
A mere. reading of the provisions of this Section of the.
- Act alone shows a clear intent on the parteof Congress to .
make sure that the terms and conditions of employment on
the railroads shall be fixed‘by contract and that such con-.
_ tracts shall not be applied, interpreted or changed, except
- — 4n conjunction with an opportunity for the empleyes con-
cerned to be heard and to be represented through duly
authorized agents., The obligations which are written into
the law are unmistakable. The intent of Congress to im-
* “ pose such obligations is clearly manifested in the repeated
use of the word ‘‘shall,’’ which: stands in marked contrast
to the use of the permissive word “may”? in such pro-
visions as that in Section 5, which provides that either
party to the dispute may invoke the services of the Board
of Mediation, or the provisions of Section 7, of the Act of
1926, that a controversy ‘‘may by agreement of the parties
to such controversy be submitted to the arbitration of a |
board of three.’’ When the subsequent sections of the Rail-
way Labor Act-are examined to find‘whether Congress had
' any intention to make legally enforceable these rights and
duties defined in Section 2, we find that the whole machinery
—-
a rrr or
nce oe ~
ee
aestatit by Cinbiese for the settlement of lepetia heehines
futile and ridiculous, unless*there is a legally enforceable
right in‘ the employes. to select their own representatives
_without coercion. from the other side and ‘to obtain-eon-——
——-sideration-of their interests through conferences between
their duly authorized representatives and the representa-
tives of management. |
When each Section following the statement of duties in
Section 2 is considered the necessity for the enforcement
of the previously expressed obligations becomes even more
obvious. mies Hee
The record-in this case shows that the suidhiete't in this
_ eraft and class, designated joint-railroad express agents, =
» have for many/years, sinee 1909, negotiated with the prede-.
. cessor express:company employer agreements concerning
_ Tates of pay, rules and working conditions. None of the
~ respondent’s predecessor Companies nor the Director Gen-
eral, ever entered into individual contracts or with minori- _
ties and never manifested.a desire to do so. When railroad’.
» agents were checked in by the route agent for the Express
Agency they did not sign or negotiate any contract. They
were hired under the conditions expressed i in the collective
bargaining agreements. , 2:
What is true of respondent, i is generally true of all the
railroad industry. Agreements filed with the Nation e-
‘diation Board pursuant to the express mandate of Section 5,
Third (e)-of the Act, as amended June 21, 1934, shows that
carriers do not ‘customarily have more than one standard
of rates of pay, rules or working conditions for.a craft and —
class.
The Disfrict Court in its opinion said on this subject
(R. 348) :
“Tn view of the manifest purpose of the statute now
under consideration it would seem that in such circum-
' 99 pe ee eer
- Stances any sanction of individual agreentents contrary
‘to the terms of the collective agreement, made by one
employed aad’ working ‘under it, would permit, and
indeed encourage, the violation of the “‘treaty,’’ Yazoo
“€M.V.R.R. Co. v. Webb, 64 F. (2d) 902; and therefore |
should not be permitted. By such inmeans the entire
structure of the collective agreement could be broken -
‘down. If changes may be effected in’ sixteen instances» ©
out. of. three hundred, they may be multiplieduntil
one hundred and sixty changes may be effected, and
‘what began as an agreement of the majority be reduced °
to the contract of a minority. If: changes in compensa-.
_ tion may be made, other conditions may be required ®
which could well result in the nullification of the em-
- ployee’s right to freely choose his representatives for
,. collective bargaining and the adjustment of disputes.
’ It is not difficult to conjeeture the difficulty of maintain-
ing the social peace between interstate rail‘carrier-em-.
plover and: its employees, so plainly sought by the
statute, if varying contracts of compensation -existed |
between those’ in similar employment, and if suéh em-
ployees ‘be held -accountable for any yielding to the
mass power of the employer ditected against him as an-
individual. Congress has declared ‘such: matters to be
impressed with .a jiublic ‘interest, and any individual
agreement is not-e-matter of concern alone to the con-
tracting parties. ”’ , ree |
a?
‘\ Attempts on respondént’s part’ to negotiate ‘separaté
agreements met with u protest.from joint railroad-express
agent rae He deglined to accept any reduction of tlie
commission \rates unless it: was uniformly. applied on the:
' Seaboard Air Line Railway property (R. 88). Following
receipt of the respondent's letter, providing for a commis-
=~ Sion of $5.00 a car as compensation on each carload
shipment forwarded from such agent’s office, Dinkins had.
the assistance of the’ route agent Davis,. ‘in preparing |
his statement showing the amount due him for his services.
_ to respondent’’ (R. 89). Thereafter, or March 25, 1930, :
ee,
2
and April § 8, 1930, the.two superintendents of . elie
notified all joint Failway -express. agents on the Seaboard |
Air. Line Railway, that. on and ‘after April 10; 1930,
the compensation’ for handling a~ varload shipment by f
express would be $5.00 per car (R. f*). Dinkins was noy
a duly authorized representative petitioner. The
posal to. reduce the rate of pay a led i in the agredent
Of 1917, was ‘made to him, alone. No’ ‘communication was -
addressed “to any authorized represéntative ‘of petitioner
hy respondent, who had the power and authority to nego-
tiafe, treat’ with? or meet with respondent in conference |
concerning the dispute referred to in. Section 5 of the Act”
of 1920/and to lié handled i in accordance ‘ith the procedural
" processes enumerated ii Section 6 of {that Act.
"Would a notice sent under Sectign 6 ofthe Act of, 1926 by
a representativ e of a carrier (“‘désignated and authorized so
to confer’ ) to any person other than the representative of |
_ the employees (*‘designated and authorized so to confer’’)?
2 meet*the requjrements of the statute? The first duty placed
: — the recipient of the notice is that he attempt, to agree
‘‘within ten days after the receipt. of the notice,’’ upon ‘‘the
. tine-and.place hie conference between the representatives of -
the parties interested in such intended changes.’* Cai it be
said that the notice so provided: was intended to ‘be given to
any person other than the representative so designated to
confer? Can it be said that Congress intended the’ notice to
__ be given to some individual employee and that such indi-
vidual en)ployee should have a duty to make an agreement
with the representative of the carrier as to'the time and
place for conferences. between the representative of the car-
rier and the representative of the employee?’ We do not
think so. The notice obv ‘iously was to be sent to the author-:
ized representative of the employees w ho could reach an.
_ agreement as to the time and place of a conference between
himself and, the repr ‘esentative of the carrier. The provision
.
* 2
Os
f<
%
i.
24
of.Seetion 2, Second, that ail disputes be considered “with =
“all expedition’’ in conference between representatives, pre-
- eludes toleration of the delay which would arise upon notice _
‘ . not being sent directly to the representative designated and .
authorized so to confer, The notice contemplated isa notice
to the representative of the employees, and net otherwise.
_ Whether the disputes in this case be considered as having.
arisen under Section 2, Fourth, of under ators they
were disputes under Section 2, Second, and were required
to be ‘‘considered, . . . with.all expedition, in conferencé *
between representatives oo, and authorized so to
confer, respectively, by Ahe carrier and the employees
thereof interested in the dispute.’” :
# : :
Congress froze the rates of pay, rules and working condi-
tions which were in effect between carriers and their en.
= ployees by the provisions of Section '6, and provided further
_that'such frozen ‘‘rates of pay, rules and working conditions:
_ Shall not be altered by the carrier | . . unless a period of
ten days has elapsed after termination of conferences withi-
: . out request for or proffer of the services of the Board of
| Mediation.” e
Aside froni the provisions of Section 6, there: was pfo-
vided certain subsequent procedure, mandatory in char:
acter, which indicates the extent. to which Congress has
gone to safeguard railroad employees against summary
and arbitrary alterations of rates of pay, rules or work-
ing conditions prescribed in their collective agreements
with carriers.’ As‘ outlinéd in the foregoing section, fol-
lowing the giving of notice, the Act requires holding of
conferences between the parties. Where such conferences:
are unsuccessful, either. party may invoke the services
of the Board of. Mediation, or the Board may proffer
_ its services (Section 5, First, Act of 1926). That seetion
places the duty of, the Board of Mediation ‘‘as its final re-
”
Xe]
tu Wier
‘ 5
quired action,’”. if its efforts to bring about a settlement
+ through mediation have been unsuccessful, to induce the
parties to submit to arbitration.. In the event that the dis-
pute be not pain under the foregoing provisions of the
Act, and an emergency Board is created under Section 10,
for thirty days ‘thereafter, no change shall be made by the .
parties to the controversy in the conditions out of which
"the dispute arose.
It is undisputed that no notice as provided i in Sectjon 6
was given to the authorized representatives of the em- - |
ployees of intention to alter the rates of pay provided in the
. collective agreement.. The record is devoid of showing that
* Section 6 was complied with; and there was no contention
either in the Express Agency’s. pleading or argument to the
court that,the duty of givin notice. under Section 6 of the
Act. was complied with. The District Court i in the opinion —
held (R. 351) ‘*The notice was not’ in compliance with the .
terms of the Railway Labor Act of 1926 in effect:at that
'’ time.”? The District Court, in its additional findings of fact
(R. 356), found: ‘(7) No notice was given by the agency
- to the representatives of the joint agents of. the carrier’s
intention to change the terms of the agreement of August 1,
1917, as provided in Article 14 of the agreement, nor was
any notige given in compliance with the terms of Section 6
of the Railway Labor Act of 1926, in effect at that time.’”
This finding, that the notice of the change of rates of pay -
was not in accordance the terms of Section 6 of the Act
. of 1926, was not excepted to and was not specified in ‘thie
statement of ‘points to be relied upon on appeal (R. 360-363).
It. cannot be successfully denied that the Express Agency
was attempting to change a collective agreement embodying
a. whole class into a large number of individual contracts
embodying all the members of that class. The individual
contracts between a carrier and its employees, made in the
"manner which the Express Agency attempted to use in this
' ease, are not the types of individual contracts which were
approved in the case of Virginian Ry. Co. v. System Federa-
tion No. 40, etc., 300 U.S. 51 eae :
_ It would appear. that the language employed in Section
2, Fifth, and Section 6, of the Act of 1926, would furnish °
_ No ‘Ineans of escape f rom the conclusion that the duties re-
‘quired by the sections are mandatory and ‘that no change
affecting rates of pay can be validly accomplished without
giving the*thirty- days’ notice and following -subsequent _
procedural processes.
_ These sections are substantially the same as correspond-
ing sections contained in the 1934 amendments to the Act
of 1926, except for the imposition of eriminal penalties.
Their purpose and effect clearly jis to insure that the rates |
_ of pay, rules, or working conditions, provided in collective
a bargaining agreements between carriers. and employees -
_will- not be changed except by negotiations betwéen the
- parties'or by mediation if necessary and such conferences |
have been initiated and concluded. These sections are
fnportant. concomitants of the . statutory ‘plan to require
. joint conferences between authorized Tepresentatives of
the parties and exhaustion of the machinery for mediation
and arbitration before any action is ‘taken which might
result in th interruption of service. Experience has shown
~~ that through such. conferences and mediatory processes
numerous disputes can be adjusted between thé parties. -
_ The commands and-prohibitions of these sections are clear -
_ and positive. The use of the. word *‘shall”’ indicates that the -
direction is mandatory. It is the language of command, not
advice (Escoe v. Zerbst,/295 U.S. 490, 493). When the
purposes of flie act are’ considered, there can be no doubt
that the requirements of the Act for the giving of notice.
etc., are mandatory: upon the earrier employer. (Pirginian ;
~
.
4 Paes
_ Ry. Co. v. System Federation No. 40, 300 U. 8: 515, 543,”
_ 545): Were the requirements-of the Act advisory, the pro-.
cedure herein outlined, which is designed ‘to facilitate vol- -
untary adjustment of disputes by requiring the status quo |
to be maintained after the giving of notice and until at least
thirty days after Mediation has failed or. the Emergency —
' Board has. made i its report, would be useless. ; |
~: The Act, as -ainended June 21, 1934, strengthened -
: making’ and maintaining of agréements and prohibited ©
arbitrarily altering rates of pay. preseribed in agreements
hy the addition of Section 2, Tenth, providing that a will-
ful failure or refusal of a carrier, its officers or agents to
comply with the terms of Section’ 2,. Severith, is a mis--
demeanor and punishable by fine or imprisonment, or both.
The provisions of Section 2, Seventli, may be compared: to
‘Section 2, Fifth, of the Act of 1926.
The Act, as it stood in 1926 when first enacted, imposed
definité and enforcible obligations notwithstanding the
absence.of statutory penalties (Texas € N. O. R. R. Co. v.
Brotherhood of Ry. é S. S.Clerks, 281 U: 8. 548, 567, 569).
Criminal sanctions were plainly not necessary to the en-
* foreemént of the provisions of.the Act, they were added by
‘the amendment of 1934 (Section. 2, Tenth), to prevent a
~ carrier from changing rates-of pay, prescribed in-a collec-
. tive agreement unless such change be made in conformity
with procedural processes set forth in Section 6 of the Act..
‘i effort on the part of a carrier to’ change rates of pay,
ete., without giving the thirty days’ notice required by Sec
te 6 was enjoined in Railway Employees Coop. Assn.|V.
“Atlanta B: & C. R. R. Co. (D. C. Ga. 1938) 22 F. Supp. 510
where the prohibitory and -mandatory effect of Sectior
was recognized. | : |
In a case arising under the Newlands Act (Public “ud 6,
(63rd Congress) approved July 15, 1913), a prohibition sim-
6 ,
+. ilar in effect was enforced. Section 9 of that Act providedg
that whenever receivers appointed by a Federal. Oourt were
in possession of a railroad ‘‘no reduction of wages shall be
made by such receivers without be aoa of the court ~
therefor, after notice.to such employees, notiee, to be
given not less than twenty days before the hearing upon the
receivers’ petition or application. * * * ’’ In Birmingham
Tr. & Sav. Co. v. Atlanta, B. € A. Ry. Co. (D.C. N. D. of *
Ga. 1931) 271 Fed. 731, an order of the court authorizing a
reduction of wages without the delay of twenty days was
held to be without legal effect. The court upheld the validity” .
of the. Act in that case. | | '
The Railway Labor Act of 1926 applied to the facts in
this case was and is controlling as. to the issues involved.
The. District Judge so construed and applied the Act. In his
opinion (R. 351) the District Judge held as to the notice
relied upon by the Express Agency: oe
o
; \
‘This notice was-not in compliance with the terms of _
the Railway Labor Act of 1926, in effect at that time.
It purported-to be effective immediately, thus not .giv-
-ing the required thirty days’ notice and failed’to give
the time and place for, conferences between the repre-
sentatives of the parties interested in such intended
changes. It was, therefore, impossible to provide the
time for conferences provided by the Act. \
ie "4 ‘Thus without_regard to tlie question as to whether
the notice should have been served upon, tlie bargain:
ing representative or the employees, the notice faiici
to comply with this important provision of the statuté
and could well he disregarded by the employees. This
action by the carrier, as well as the negotiation of the
individual agreements, doubtless resulted from the posi-
~ + tron of the carrier that it was not bound by the 1917
_* agreement, and-its further position, now abandoned, .
_ that no employer-employee relationship existed be-
tween it and the joint agents. These queétions having
29
been determined adversely to the carrier’s contention,
the means then employed to obtain relief from what it
.. deemed to be burdensome terms. of employment, are
rendered ineffectual, and the defendant carrier is
obliged to comply with ° the terms of the award as
sought to be enforced in this proceeding.”’
. The conclusion of the District J udge that “‘It was, there-
fore, impossible to provide the time for conferences pro-
vided by the Act,’’ is correct. There is no question as to the
_ dispute having ‘been one renee” intended changes in
| rates of pay. ae | 7
- ne
When two courts have reached the same conclusion on ‘ a
_ question of fact, their finding will not be disturbed ae
"it is clear that their conclusion was erroneous.
The National Railroad Adjustment Board, i in its award
No. 298, on: the question of jetindiction: (R. 224), found: ;
& Express commissions are inextricably, interwoven,
with the wages which railways contract to pay : rents. Be-
cause of the close property relationship between-the Rail-
ways and the Express Agency, that the railway by" which
an agent is primarily-employed and the Express Agency
by which he is secondarily employed, are jointly and sev- -
erally obligated to maintain the wage structure of agree-
mnents, insofar as express commissions are found to be an
essential factor in determining the wages to be paid by the
railway (R. 236).
2. In any case where express commissions were consid- —
ered in establishing the wage scale for agents on any rail-
Way, an obligation: exists eithe? to maintain the rate of.’
commission intact or adjust the wage scale to compensate
for changes in the rates of. commissions until such time as
‘the wage rates or the commissions, or both, are changed in
30
accordance with Section 6 of’ the Railway Labor Act. (R.
232). bie oh ; ; ,
In the award No. 548 on the merits, the Adjustment Board
concurred in the opinion rendered in award No. 298, and -
found (R. 7, 16) :. co, :
1. That the contract of 1917, was in existence and did
exist in which the joint railway-express agents making in-
dividual agreements with the Express Agency, had. pre-
_ viously made an agreement with the representatives of the
Telegraphers and so long as they were parties to that
agreement they were -bound by it, and so long as that
agreement was in force any agreement: subsequently made
which was at variance with that original agreement was
void unless the original agreement has been removed ‘or
voided by the same process -as when it was made; that it
was further invalid and a violation of the principles of that
agreement unless negotiated and ratified between the prin-
cipals of the original agreement.
, 2. That the agreement of August’l, 1917, was an agree-
ment between the Telegraphers and Southern Express
Company -and was in turn assumed and observed by its
successor companies, and that no notice having been served
by either of the parties to change or terminate such con-
tract mnder the terms of. Article 14 thereof, that the con.
tract remains in full force and effect.
Respondent took issue only with the findings of the Ad.
justment Board that (1) it had jurisdiction of the dispute, é
(2) that the Express Agency was bound by the agreement _
of August’1, 1917: — | ao 3
The District Court concurred in the findings of the Ad-
justment Board and entered judgment on the award. The
court below concurred in the findings of’ the District Court
_ that the Adjustment Board had jurisdiction and that. the
aches :
| respondent snnemned and ‘epenten anor the contract of
August 1, 1917 (R. 372).
F in
On the questions of fact involved. in the dispute sub-
mitted to the Adjustment Board both Courts below affirmed
the findings that the Adjustment Board had jurisdiction
and that the respondent in fact assumed, and operated un-
"der, the contract hetween the Telegraphers and the Soitth-*
ern Express Co. Under the long established rule, this Court
accepts the findings in which two Courts concur, unless
clear error is shown. Texas € N. O. R. Co. v. Brotherhood ;
. of Railway & S. 8. Clerks, 281 U. S. 548, 558: Virginian |
Railway Co. v. ‘System Federation No. 40, 300 U. S. 515,
542-545; Pick Mfg. Go. v. General Motors ie 299 U.S.
. 3,40
Section 153(p) of the Railway bento Act, as amended,
. under which the suit for the enforcement of the award was _.
instituted, was ‘taken bodily, with a few minor exceptions —
not here material, from the Interstate Commerce Act, Title
49, Section 16(2) providing for the enforcement of repara-
tion orders. ‘ 3
In Tift v. Southern Railroad. Co., 138 Fed. 753, affirmed
148 Fed. 1021, the Court held that explicit law, the settled ,
_ policy of the G overnment, and the practical principles of —
reason and justice require that the national courts should
not discredit the conclusions of. the commission. This.
Court in 206 U. S. 428, affirmed the above principle.
The. application and enforcement of the foregoing sec-
tion by the Federal Courts were known to the framers of °-
the 1934 amendments to the Railway Labor Act. It would -
seem ‘that the clear intention of Congress in adopting the
identical provision in the Railway Labor Act for the en-
forcement of awards rendered by the Adjustment Board
was to authorize the Federal ae to apply - the same
32
enforcement and to follow the same standards established
under the provisions of the Interstate Commerce Act. If
Congress intended the Federal Courts to apply other |
standards than the ones already established under the In-
terstate Commerce Act, it would presumably have go stat
in the Railway Labor Act as amended, _ enema ee
The determination of the issue by the Adjustment Board,
composed of men ‘‘appointed by law and informed by ex-
_ perience’’ should not be taken lightly, butsshould be given
the full weight and consideration accorded: by the Federal
Courts to the rulings of the Federal Administrative bodies
_ Who are charged with the performance of duties prescribed
by Congress in the interest of maintaining an uninterrupted
flow of interstate commerce. . ;
. \ As was stated in the Sixth Annual Report of the National
/ Mediation Board (p. 8):
_ “The function discharged by the Adjustment Board
is necessary to the effective day to day observanee of
labor agreements, for if either party may violate the
terms of such contracts with ‘impunity the agreements
ae
codes of law outlining the rights, privileges and obli-
| gations of the carriers on the one hand and their
| empldyees on the other. And it is just as essential to
|. jon a judicial body (Adjustment Board) to arbitrate
. | disputes which arise under a code of labor laws as it
~ 48 to have our system of courts to dispose of contro-
versies which arise under public laws or out of the —
‘application of private contracts.’’
As to the great weight to be given by the Courts to the
determination of Federal Administrative Boards, the deci-
_ Sion of the Supreme.Court in Gray v. Powell, 314 U. S.
402, 411-413, is applicable here. The Court there said:
“In a’ matter left specifically by Congress to the
determination of an administrative body * * * the
become meaningless. Such agreements are in effect,
3,
function of review placed upon the courts is fully per-
formed when they determine that there has been a fair.
_ hearing, with notice and an- opportunity to present the
circumstances and arguments to the decisive body, and .
_ an application: of the statute in a just and_reasoued —
manner. Shields v. Utah Idaho R. Co., 305 U. S. 177,
180, 181, 184, 185, 187.
- Such a determination as is here avebiod bidiaes ‘to !
the usual administrative routine. * * * Where, as |
here, a determination has been left to an administra-
tive body, this delegation will be respected and the —
administrative conclusion left untouched. * * * It is’
not the province of a court to absorb the administra-
tive functions to such an extent that the executive or
legislative agencies become mere fact-finding bodies.
deprived of the advantages of prompt and Setatte
action.”’ “ J ‘
The Court litoe engaged in a review of the Adjustment
Board’s findings and award, upon the record before the
. Adjustment Board and the Stipulation of Facts entered
into between petitioner and respondent. The testimony.
introduced, before the District Court by Tespondent. through
the only witness appearing for the respondent, in substance
was no different from that contained in his affidavit and
filed before the Adjustment Board following the award
that the dispute should be heard on its merits (R. 248).
Accordingly, it is the position of petifioner that the respond-
ent had not overcome the prima facie effect to be given the
finding and order of the Adjustment Board and of the facts
therein stated. The findings and the award made by the
Adjustment Board as well as the findings or decisions of
other federal administrative agencies made in the exercise
of the statutory authority to determine the issues before
it, is conclusive, if supported by substantial evidence, even
in the absence of express statutory language to that effect. ©
See Rochester Tel. Corp. vy. United States, 307 U. S. 125 .
(Federal.Communications Act) ; Shields v. Utah Idaho R.
Co., 305 U. 8. 177 (Railway Labor Act); Swayne & Hoyt .—
-Ltd-v. United States, 300 U. 8. 297' (Shipping Act) ; Silber-
schein v. United States, 266 U. S. 221 (War Risk Insurance
. Act); Wheeling Corrugating Co. y. McManigal, 41 F. (2d)
993 (Longshoremens and Harbor Workers .Compensation
., Act). ge esl cscha:
The above principle is based upon a recognition by the
courts of the peculiar fitness of administrative.agencies by .
reason of their expert knowledge of the subject matter to.
make findings and decisions entrusted to them as was set
forth by the Supreme’ Court in Gray v. Powell, supra. The
inembers of the Adjustment Board are informed by experi- |
, ence of long standing of the nature and effect to be given
~~ “polleetive bargaining agreements promulgated between ¢ar-:
riers and’ their employees according to crafts and classes.
The courts therefore have determined that they will not
substitute their judgment for that of the administrative.
body even though upon a consideration of all the evidence
the Court might reach a different conclusion. Swayne &
Hoyt Ltd. v, United States, 300 U. S. 297, 304. **So long as
there is.warrant in the record for the judgment of the ex- .
_ pert body it, must stand * * *, . Having found that the
- recard permitted the Commission to draw the conclusion
that it did, a court travels beyond its province to express
concarrence therewith as an original question.’’ Rochester
Tel.-Corp. v. United States, 307 U. S. 125, 146. To hold
_ otherwise would make the Board ‘‘but-a mere instrument
_ for the purpose of taking testimony to be submitted to the
courts for their-ultimate action.”’ United States v. L. &N.
R.Co., 235 U.S. 314. “The judicial function is exhausted: _
. when there is found to be a rational basis for the conclusion -
approved by the administrative body.”’ Mississippi Valley
Barge Line Co. v. United States, 292 U. S. 282, 286-287..." .
; : 7
The conclusions of the Court heloW gs to, “the state of
the- law governing suits on contracts hetweén employers
and unions,’” and_ its definition of the rights of all parties
“under such contracts, is contrary to the definition of the |
rights of the parties to labor agreements: as defined over
the -vears by men “‘appointed hy law and informed by
experience,’* who served. upon the several: Administrative
Boards established by Congress to perform the function
of interpreting and applyi ing labor agreements,
In the appendix we set out a list-of decisions of the
United States Railroad Labor . Board, created under the
Transportation. Act of 1920, aiid of the National Railroad
Adjustment Board, created by. the Railway Labor Act’ of
Jtine 21, 1934, wherein these Boards: consistently held .
that no changes in an agreement covering rates of pay,
rules, or working ‘conditions could be effected by a ear-
rier without notice to the signatory representative of the
employ e®.
Im.
The threats. to remove the agency: unless the individual ~°
employee accepted a lower rate than provided in the
agreement is tantamount to an interferen 1ce with the
employee’s a by. the Telegraphers.
The w holesale change in rates of pay was Jeffected as a
railway-express agent; at Lawtey, Florida, November 29,
1929, “with the understanding the practice Will be general
oy the Seaboard Air Line’’ (R. 88). .
!
result of an ‘agreement reached with in, fs the joint
The Express Agency, in order to secure the possible ad-
vantage of Dinkins’ conditional agreement to ‘accept $5.00
per car On éar lot shipments; had to comply with the condi-
tion preseribed by Dinkins by making ‘‘the j practice general
on the Seaboard Air Line.’’ It therefore sent out the notices
.
36
of March 25, 1930, and April 8, 1930, for the purpose of
making the rate of $5.00 per car general on the Seaboard
Air Line effective April 10, 1930. ie
As to the consent to the arrangement on the part of joint
.railway-express agents, Smith and Meares, and which was
typical of the consent of other agents whose claims were de-
nied by the Court below, the record shows:
Paul Smith, Emory, Georgia (R: 78-81)..
e .
.
* _- On April 29,1930, joint agent Smith wrote Superintend-
ent May that it would ‘“‘be necessary for him to take the
regular commissions on car load shipments as there are no
_ provisions being made on such shipments in the contract.’’.
The Agency sent agent Smith “‘error letters”’ charging him
with the difference because Smith continued to deduct “the
). asual percentage rate of agency commissions.”’ The com-
,pany ended Smith’s employment on August 7, 1931, and set
up the express agent successor to Smith, at a location other
than the Seaboard Air Line Railway station. On October
5, 1931, Smith meekly capitulated to the dictation of the
Express Agency and agreed to accept $5.00 per car and
- was promptly checked in again as agent at Emory for the
Express Agency. Sees
_ E. Meares, McBee, S. C. (R. 98-99).
The letter of joint agent Meares to Harrison, route agent
for the Express Agency, dated June 16, 1930, clearly
reveals thatthe company had threatened to separate -
him from his agency, as‘it had done Smith at Emory.
So Meares, in succumbing to the interference, influence and
coercion on the part of the express Agencyjs representa-
tive, Mr. Harrison, agreed to refrain from handling. the
matter with the general Chairman and to accept the $5.00
per car rate. He was thus interfered with, influenced and
coerced, in his designation of a representative by the car-
." |
_ rier,.in violation of Section 2, Third, - the Railway I Labor
_ Act.
The viciousness of the scheme adopted is that it deprives =
the employées of the right which experience shows it advis-
able for them to have, and which Co has unequivocally
‘ declared they shall have, namely th right to bargain with’
management and accordingly havea voice and egy ob
through authorized representatives, in determining ;
‘the rights of the einployees shall be.
The inescapable result, of the -action of the ‘Sac
_ Agency is that if it may validly adopt. this method of altet-
af :
ing rates of pay, other‘carriers may pursue a similar policy . |
with the same showing of justification. The inevitable out- .
come will be economic warfare caused b evading the
procedural processes Congress has mandated shall be fol-
lowed to avoid such strife.
“The duty of the Express Agency to maintain agreements }
with its employees prescribed by the Act of 1926, obviously
includes the duty to refrain from using tactics expressly
condemned by the Act for the purpose ‘of ee down
an existing agreement. .
The provisions of the Act requiring good faith in the
.making of collective agreements is useless if; after such
agreements are made, the carrier can employ the sabotage
tacties of interference, influence and coercion of helpless
individual employees to destroy the structure which was
erected in good faith. The Act compels the same good
faith in ‘the changing of collective bargaining —
as it requires in their making. |
Can it be that-a catrier, like the Express Ageass is ay
statute required to specify a time and place to confer with
the representative of its employees where. they have a
grievance, (Section 2, Fourth) but‘is not under a legal obli-
~ gation to sco to agree upon (Seetion 6) a time and
.
; 7 38
place for conference with representatives of its employees
a ‘when it wishes to change the rates of pay and. “eee con-
ditions of its employees ? FES
We contend that the representative, for the purposes of .
the Railway Labor Act of 1926, designated by a craft or
class of carrier employees in accordance with the provi-
sions of Section 2, Third, of. said Act, has the ex¢lusive
‘Tight to confer and agree with the representatives of ‘saidt
carrier respecting any-and every intended change pro-
' posed to be made in an’ existing collective agreement gov-
_ erning rates-of pay, rules, and working conditions of said
- employees, and that the representatives of the carrier can
‘not execute a valid agreement with any individual employee
of.said craft or class which will effect a change in the
| terms of his employ ment as fixed by the existing collective
agreement. | ;
cna Cae in Virginian Railway Company ‘vy. System
Federation No. 40, 300,U. S. 515, 548-549, did not by its
decision construe the Railway Labor Act as sanctioning:
the conduct of a carrier in the making of individual con-
tracts with its eniployees, wlio were already governed by
the terms of an existing collective contract, whereby the
terms of employment could be changed from _those pre-
scribed in the collective conttact.
The decision of the court below in holding that. a,carrier,
may secure. individual agreements with its employees
although covered “by a collective bargaining agreement. |
failed to consider the prohibitions contained in Section 6 and
related Sections of the act against such action. This ruling
of the court is based upon the fact that the lower rates
of pay dictated hy the carrier were accepted by the em-
- ployees and that such acceptance prevented them and tiie
organization for them to. recover the difference, notwith-
standifig’ the prov isions of the Railway Labor ‘Act. If we’ ‘
were to follow this theory of the court below to. its ultimate
‘conclusion, employees covered by a collective bargaining
_ agreement would find no security in the rates of pay,’ rules -
and working conditions govered therein, and by ‘the same
‘token would not be in a position to rely upon representa-
-tion of its collective bargaining agent to secure for them |
all of the benefits provided for in such an agreement. .Col-:
lective bargaining would.e useless and the faith of em- -
ployees i in negotiations between management and employées
representatives could not long endure. a
In Burke v. Morphy, 109 F. (2d) 572, cert. den. 310 U. S.
635, this Court refused to review the decision of the Circuit. _
Court of Appeals:which set aside | a wage cut order of a
District Judge ordering the receiver of a railroad carrier
to cut wages of the railroad’s employees because the re-
ceiver had no money to pay the wages fixed in the collective ;
_ bargaining agreements, and holding that such order was
without legal justification because the Railway Labor Act
“forbids any intended change in an agreement affecting
rates of pay unless thirty days’ notice is given to the other .
party to the agreement.’’ Pay checks given. employees in
that case contained an endorsenient purporting to consti-.°
tute an-acknowledgment of full payment for services up
to and ineluding the date of the draft:
at
. In this case the Telegraphers organization-as represent-
ing the joint rdilway-express agents was‘ well within its
: Tights i in its-position that the Express| A; geney was violating
the Railway Laber Act ‘in making’ the changes with respect -
_travened the plain prohibition ‘ of the \Act it was a nullity,
and ‘until the rates of pay, or the agre ment affecting rates’
of pay were changéd in: accordance with the provisions of -
the Act, the joint railway-express agents, were entitled to
their pay under the terms of the agreement ax it existed:
; yo
‘
to rates of pay. Since the act ot the [xpress Agency y con- - *
Tie Seow,
‘March and April, 1930
930. This would be true even without
a protest on the part of the employees, but by making the
protest shortly thereafter the employées made doubly sure
that they were not accepting any part of ‘the Express
. Agency’s arbitrary alteration.
IV.
_- Individual employees cannot change terms of union con.
tract by individual contracts with their employers.
This point was decided by this Court as now contended
_ for by petitioner in the case of Williams v. Terminal Co.,
315 U. S. 386, 399-403, when it construed Section 2, First,
Second, and Seventh of the 1934 amendments to the. Rail-
way Labor Act, and when it construed and compared Sec-
tion 6.0f the Act of 1926, with Section 6 of the 1934 amend.
ments. This Court said (p. 399): _.
“The object of the Act is to avoid interruption to.
commerce through. the promotion of free association
among employees for the purpose of settling disputes —
between them and the carriers. Section 2. To assure
continued operations, changes by carriers im agree:
- ments reached through collective bargaining, pending
negotiation, are prohibited.’’ (Italics ours.)
Continuing on page 400, this Court said:
a i /
_. “Section 2, Seventh, note 11, supra, forbids changes
of pay or working conditions of employees ‘as a class
. a8 embodied in agreements’ except as provided in Sec-
_ tion 6, note 11, supra. The crucial Section 6 is phrased |
_. 80 as to leave no doubt*that only agreements reached
_ after collective bargaining ‘were covered. Section 2.
Seventh, first appeared in the 1934 amendments to the
Railway Labor Act, _and Section 6. was likewise then,
amended by adding ‘in agreements’—to that section’s
former requirement: of notice of ‘an intended change
affecting rates of p.y, rules; or working conditions.’
87 > a:
Compare Section 6, 44 Stat. 582; with Section 6, 48 -
Stat. 1197. The additions ‘point squarely .to limiting
the bargaining provisions of the Railway Labor Aet to
, .
collective action.’”’ Yee
_ Continuing on pp. 402-3, this. Court said:
'. “*Because the carrier was, by the Act, placed under
the duty to exert every effort to make collective agree-
nents; it does not follow that, pending those negotia- .
tions, where no collective bargaining agreements are.
or have been: in effect, the carrier. cannot exercise its. -
authority to arrange its business relations with. its em-
ployees in the manner shown by this record.* * *
The institution of negotiations for collective bar-
gaining does not change the authority of the carrier.
The prohibition of Section 6 against changes of wages
: or conditions pending bargaining and those of Section’
* . 2, Seventh, are aimed at preventing changes in condi-
a is tions. previously fixed by collective bargaining agree-
—— ments. Arrangements made after collective bargaining
- . obviously are entitled to a higher degree of permanency °
and.continuity than those made by the carrier for its.
own convenience and purpose.’” (Italics ours.) _
The addition,to Section 6.of the words ‘‘in agreements”? ’
_ in the 1934 amendments\ did not change the law, when
applied fo the facts in this case, as it stood in the 1926 Act.
Here there was in: effect an\existing agreement arrived at
after collective bargaining. \The duties placed upon ear-
riers to exert every reasonable effort to make and maintain .
agreements were the same in both the-1926 Act and the
1924 amendments to that Act. ( Section 2, First.) Since
the carrier was under the duty to maintain a collective -
rith! its employees covered by the contract of
only-after negotiati d conference with petitioner. ..
mth, ‘of-the 1934 amendments replaced
ifth, of the 1926 Act, relating to the procedure .
?
>.
hanges in that agreement could be made eo
~~ Act relating thereto.” Existing collective agreem
-
| 42 oe, e
for changing rates of pay in existirffr collective agreements,
Section 2, Fifth, of the 1926 Act governs this case. ° It
~ Feadb: | .: 3 .
**Disputes. concerning changes in rates dj pay, rules,
~~ or working conditions shall be dealt with as provided
in Section 6 and in other provisions of this Act re-
_lating thereto.” eet ms
Section 6 réquired that written notice of at least thirty
days be given of an intended change affectingrates of pay,
rules, oF working conditions, and that ‘‘the time and place
for conference between the representatives of the parties
shall be agreed upon.”’ ‘This language ¢learl¥. referred to
collective bargaining, as distinguished . from -individual
bargaining, because the conferences were- to. bé between -
the representatives of the parties. So ‘construed,-: the addi-
* tion of the words “‘in agreements”? to Section 6 in the 1934.
amendments did not change the intent or scope of ‘Section
* Gof the 1926 Aet. as applied, to the facts in this case.
~ Section 2, Fifth, of. the 1926 Avt did) hotvever, restrict
thé method of degling’ with changég in. rates of pay, rules,
and working conditions fixed in, existing collective agree-
ments. It provided’ that such changes ‘‘shall he dealt with
as provided’ in Section 6 and in Other provisions of. this
ents were
to’be-changed only in accordance with the Act, and got in
accordance with: the provisions of the existing contacts.
The provisions of Section -2, Seventh, of the 1934 amedd-°
ments permits ‘the alternative method. of changing collec-
tive agreeménts, i. e.. “in the yaanner prescribed in such
"agreements of in Section 6 of this "Act.”’ The changes here.’
were made in 1930, and. were governed by Section 2, Fifth,
- Section 6, and other related provisions of the 1926 Act. .
Even if the carrier, under the 1926 Act,’could change the
agreement under the terms of Article 14 of the agreement, ff
ee Se a bit hie .
4 tn Z
43
_ the sending of notices to individual employees from two to: |
sixteen days before the change was made, did not meet
..its duty to give thirty days’ notice to the representative of .
-the employees and exert every reasonable effort to make
and maintdin a collective agreement instead of a series of
individual agreements. ea
While the decision i in Williams v. ‘ela Co., supra,
is that the Railway Labor Act: does not prohibit an em-
ployer.from changing the terms of employment by ex parte
action, where a collective agreement is not and has not
_been in existence,.it would appear, a ‘fortiori, that the em-
ployer. would be prohibited from changing the. terms by
ex parte action, or by making individual agreements with
employees who were covered -by a collective apnoea
Responderit not only failed to exert every re e-
. effort to maintain the collective tigreement involv re,
it denied its existence, disclaimed any obligation was im-
. posed upon it by the Act; and sought to destroy the collec-
tive agreement by negotiating a series of individual ‘ ‘agree-
ments in violation of the Act. This respondent should not
be given the benefit of any intention of substantial compli-.
ance with the law or the contract in the face of its deliberate
. defiance of the provisions of both. Its conduct has been,
bereft of any intention. to recognize any of its obligations
under the Railway Labor Act, has resulted i in. long and con-
tinuing/ violations of ‘the Act, and has bordered closely
es it has not actually been, a violation of the criminal
La sions of Section 2, Tenth of the 1934 amendments to —
the Act of 1926.
"In Labor Board v. Jones & Laughlin, 301 U.8S.1, 33-34,
this Court reaffirmed for the fourth time:
‘That a single employee is helpless i in dealing with
, an employ er; * .* * that.union was essential to give
* laborers opportunity to deal on an equality with their
e s . 44 .
employer; * 2s that such collective action would be
a mockery if representation were made futile by inter-
ference with freedom of choice.’*
_ These views were expressed when this Court had under
consideration the Railway Labor Act of 1926, and the Act
as amended in 1934. Clerk’s case and Pirginian Railway
Is an employee’s helplessness in ‘dealing with an em-
ployer teliminated the moment his representative executes
- with the employer a collective agreement covering his craft
or class? Is the employer then left free to negotiate with
the émployee individually for a reduction in thé-rates of
__ pay which his-representative secured for him in the collec-
“tive agreement? May the employer threaten -t8 remove
_ the employee in the event the employeé insists upon nego-
tiating with the employer through his representative, and
procure from the employee a valid individual contract waiv-
ing his rights under the collective agreement? |
The lower court answered all of these questions in the
affirmative when it held that a union contract is not ‘‘bind-
ing on the individual employees beyond their power to
change the terms by individual contracts with their .em-
ployers’’ (R. 374). : :
This ruling by the lower court ean be correct.only upon.
the theory that it was the intention -of the Congress, in the
passage of the- Railway Labor Act, to perpetrate a collossal
frand upon all of the employees of carriers who should
‘ pay dues to promote collective bargaining with their em- _
ployers. No other conclusion can. be drawn than that the
individual employee is more helpless to deal with an em- .-
ployer after he has paid dues to promote a collective agree-
ment than he was before he spent the money. His economic
; position is weakened pro tanto. ‘
‘ | 45 |
we know that Congress had no such intention in -the
passage of the Railway Labor Act. However, the results
will be the same if the Court should construe the Act to
have that effect. No other recourse would be left to the
employees to obtain their rights but to use their strike
power to enforce their demands. Tlie Congressional pur-—
pose to make collective action: of employees an’ instrument
of peace rather than of strife will be destroyed. The chaotic
conditions which such a decision would create in the Na-
~ tion’ is horrible’ to apprehend.
The court below in its opinion referred to previous rul-
ings wherein it held that persons employed under the terms
of a collective/nargaining agreement have their tenure and
rights governed by its terms and that for act taken
contrary thereto, to their damage, there is a Tight\of action
in them or in the union to redress their grievances. The |
court below held, however, that the’ cases previously de--
cided by it do not-hold that contracts so made are binding -
on individual employees beyond their power to change the
terms by individual contracts with their employer (R. 374).
An examination of the cases cited on thif’ point by the.
court below in its opinion will show: their in&pplicability to
the instant case. : :
In Yazoo and M.V.R.R. Co. v. Webb, 64 F. (2d) $02, the
employee involved was employed as a porter. The class
or craft had an organization but had no agreement or con-
tract with. the carrier. It was a case of individual hiring
and accordingly the facts were unlike those in the instant. ~
case. | ,
In System Federation No. 59, ete. v. L. d A. Ry. Co., 119
F. (2d) 509, the court below said: :
. ° e a -
‘“*The only/ question with which we'are here con-
eerned is whether the seniority rights claimed, arise’
/
/
vA
?
46
out, and exist, because of, the 1929 contract, and per-
sist during and only during its terms, or whether they
indefinitely continue to exist after it has Been abro-—
gated, and the relations of employer and employee are
no longer fixed and being carried on, under that con.
‘tract, but gor many years under rules promulgated by
the company, and later_under a‘ contract between the |
- company and the union which affirms that it ‘covers all
_ understangings iow in effect’ ”’.
. Illinois Central R. Co. vy. Moore, 132 F. (2d) 959, re-
versed by. this Court, 312 U.S. 636, involved. a cause of
action instituted by a- former employee of the carrier in a
state court. The court below reversed the judgment in
Moore’s favor because of error in striking the carrier’s .
plea of the state statute of limitations.
This Court in National Licorice Co. v. Labor Board, 399°
' U.S. 350, 354, 360, held that contracts “*exenuted between
the company and each workman individually and not as a
collective agreement with representatives of the employees”
were -a violation of the National Labor Relations Act, in
that, by their terms they “imposed illegal restraints upon
the employees’ rights to organize and bargain collectively as
guaranteed by Sections 7 and § of the Act.’ The provision
of the contracts was that the ‘‘question as to'the propriety
of an employee’s discharge is in no event to be one for
arbitration or mediation,’’ and this court held ‘‘The effect”
of this clause was to discourage, if not forbid, any presenta-.
tion ‘of the discharged employée’s grievances to appellant
through a labor organization or his chosen representative,
or in any way except personally.’’
The provisions of Sections 7 and & of the N ational Labor
Relations Act, insofar as they. are ‘‘aimed at the settlement
of industrial disputes by the promotion of collective bar-
47
gaining between employes and the authorized representa-
tive of their employees, and by mediation and arbitration
when such collective bargaining does not result in agree-.
ment’’ (Virginian Railway Case, p. 553), had their ana-
logue in Section 2,.Third, of the Railway Labor Act of
1926, which provided: .
“Third. Representatives, for the purpose of. this ”
Act, shall be designated by the respective parties in
such manner as may be provided in their corporate .
organizatior or unincorporated association, or by other
means of collective action, without interference, influ-
ence, or coercion exercised by either party over the
Self-organization or designation of representatives by
the other.”
_ _The letter from the Local Division Chairman Meares to
Mr. Harrison, route agent for the Express Agency (R: 98-
99) sets out the individual contract of Local Chairman
Meates. ‘Referring to the conversation with the route agent
on that daté relative to “‘separation of express agency at
this point,’’ Meares agreed to accept the offer of $5.00 per -
car and agreed that he would not handle ‘‘the matter further
with the committee which represents us as agents over the .
.. Seaboard Sys.’’ There could hardly be a more glaring case
: of interference, influence, and coercion of an employer over
the self-organization ‘or designation of representatives of
‘the employees by the carrier than is established here. The
“carrier required Meares, as Local Chairman, to agree to.
withhold from the General Chairman further. information of »
importance to every joint agent on his division, and: to fore-
go his and: their rights to bargain collectively with the em-
ployer. This conduct of the carrier was identical with: the
conduct of the employer which was condemned by this Court
‘in the National Licorice Co. case.
pay prescribed in the agreement of August 1, 1917.
_ The notices required by Section (2, Fonrth. and by See.
tion’6 of the Railway Labor Act of 1926 weré notices in-
tended to pave the way ‘‘for conferences between repre-
sentatives.’’ While Section 2, Second, did not set up a
particular form of Notice, it required all disputes to be
considered in conference between representatives desig-
‘nated and authorized so to confer, and placed a duty upon
the representatives of the carrier and of the employees to
- arrange a conference between them at’ which the dispute
could -be so considered. These provisions superseded the —
~’ provisions of Article 14° of ‘the Agreement ‘permitting ex-
"parte or unilateral abrogation ‘of the Agreement without
conference between the representatives of the parties.
That this was the clear intention of Congress is evi-
_ ° dencéd ‘by the third proviso of Settion 2, Fourth, “That
nothing in this’ paragraph shall be construed to supersede
the provisions of any agreement (as to conferences) then
in effect between the parties.”’ The Act was intended to
invoke the aid of conferences where there was no provi-
sion for them in existing agreements. The notices required
_ by the statute were for thé purpose of setting in motion
the colléctive bargaining machinery, Representatives
were given ten days from the receipt of the notice within
which to specify (Section 2, Fourth) or agree upon (Sec-
tion 6) a time and ‘place for conference between repre-
sentutives. ° | i | |
The holding of the Coyrt below that ‘‘the securing of tlie ,
consent to the arrangement: of each agent affected’’ (re-
49°
gardless of how obtained) was sufficient to support the
change of rates of pay provided in the agreement, disre-
gards the provisions of Section 6 requiring thirty days’
notice and an effort to arrange. conferences between the
representatives of the parties interested in such intended
changes, as a condition precedent to the right of the‘carrier
to alter the rates of pay prescribed in the agreement.
_An individual employee could not agree to the abrogation
of the agreement affecting the whole class of employees
covered by the agreement. So long as the agreemerit was
' in force and effect, ‘any intended changés therein, whether
affecting the whole class or an individual employee, were -
prohibited by the Act, unless changed in compliance with
the provisions of Section 6, . ee ese oe
This Court in construing the Railway Labor Act of 1926
_ in Texas & N. O. Railroad Co. v. Brotherhood of Railway
—& S.S. Clerks, 281 U. S. 048, upheld the constitutionality _
of the Act, and said on’ page 568 of the opinion:
“A definite statutory prohibition of conduct which
would thwart the declared purpose of the statute can.
* not be disregarded.’’. "ne
The fact that Congress made negotiation obligatory, and
awards of the Adjustment Board prima facie causes of :
action is in itself a declaration of public interest. and
policy. . 5 Aion i
In National Licorice Co. y. National Labor Relations’ -
Board, 309 U. S. 350, 366, this Court in referring to the
Virginian case said:
‘*The effect of the decree was to order the employer
to deal exclusively with the Federation, although the
“employee had a contract with an association not a party —
50
to the suit found to be a dominated labor organization
...+But in all, the public right was vindicated by re-
straining the unlawful actions of the defendant even
though the restraint prevented its performance of the
contracts.”’. .
. The court below declined to follow the ruling of this Court
in the National Licorice case, supra (R. 376), in that it con. _
strued this suit for an order to enforce the award of the Na- |
tional, Railroad - Adjustment Board as a suit. upon a con-
‘tract.and not. dealing with the assertion of public rights.
* This ruling by the court below is directly in conflict with |
the contrary ruling in the case of Washington Terminal
. Co. v. Boswell, 124 F. (2d) 235, 242, decided by the United
States. Court of Appeals for the District«of Columbia;
affirmed by this. Court by a divided Court, June \14, 1943,
318 U.S. ...., where the Court of Appeals held: that the -
National Railroad Adjustment , Board| = r | “‘Publig.
agency’’ performing public functions, and re ore its’de-
cisions are not without legal effect. fe
/
A- % ; | >
The ruling of. the ped! below also conflicts with the
ruling of this Court, in the irginian Railway case (p. 552), .
- that: 3
“*More is involved than the settlement of a private ~
. controversy without appreciable consequences tc
._ public. The peaceable. settlement of labor
_ Versies, especially where they may seri i
-the ability of an interstate rail earrierto perform its
service to the public is a matter of public concern. That
is testified to by the history of the legislation now _
before us, the reports of committees of Congress hav- —
ing the proposed legislation in charge, and by our com-
mon knowledge * * *. The fact that Congress has
indicated its purpose to male negotiation obligatory is -
in itself a declaration of public interest and policy
which should be persuasive in inducing Courts to give |
relief.’ .— : é '
>
_o
51
The lower. court’s construction of contract clearly
The court’ below erroneously construéd the contract of
August 1, 1917, in holding that (R. 376) ‘* As to the claims
in group one, ‘there was no.violation of the contract, be- :
cause, under the undisputed evidénce, carload express ship-
men's of perishables. were not within the contemplation of
_. the contracting parties and were not ineluded within its.’
terms. Indeed they were not instituted-until 1929.”
The court ‘elow thus disposes of the judgments of all
the claimants in its group one, notwithstanding that some
Were awarded judgments for carload -shipments of com-
modities other
Emory, Geor i
-
an perishables. As to shipments fromr
(R. 81). it appears that-the_carload ship-.
, of ‘horses, a ene S|
Contrary to/the lower court’s finding that the vidence
was undisput¢d as to carload express shipments of perish-
ables not -being within the contemplation of the co tracting
parties, the evidence on this point is clearly in dispute. In
Article IIT\of the collective agreement effective | July 1,
1909-{R. 121), and Article 2 of the collective agreement
effective June 1, 1912 (R. 124); percentage rates of com-
missions were specified on perishables. received and for-
warded. Commissions for forwarding and receiving per- -
ishables were paid for-at a. rate different from the rate
paid on other commodities. There WAS no mention jin —
either of those a which. were succeeded by the
contract of Augus , 1, 1917, of the quantity of such ship-
ments of /perishables. ‘The word ‘‘perishables’’ was ex-
cluded_entirely froin the contract of August 1, 1917, and —
. the commissions for receiving and orwarding perishables
were made the samie as on other commodities, as disclosed -
"See
4
52
_ by the words “total business received and forwarded”’ in
Article :2 (R. 19) of the contract of ‘August 1, 1917. -The .
quantity of shipment terms,,uch as-‘‘carload’”’ or “‘less-
- than-carload’’, wasnot mentioned in either of said three .
agreements. The Express Agency paid the same commis-
sions. on ‘‘carload”’ shipments as on ‘‘less-than-carload”’
shipments at the rate provided under these agreements.
Certainly’ it cannot be said that shipments of perishables
by express were not within the contemplation of the par-
. ties when they made the agreement of August 1, 1917. Per.
‘tshable shipments had been included in ‘the: two former
agreements, and were not excluded by the agreement éf
August 1, 1917. Perishables were included in: the latter
. 4greement under the term ‘total business received and
forwarded.’’ Since perishables were express business all
the time, and since no mention was made in any of the three
_ agreements relative to the ‘rates not applying on: “car.
load”’ shipments, can it be said‘that a different rate should.
apply, to “‘carload’’ shipments, or that such shipments
were not within the contract? To have so held is to ignore
entirely the fact that the. Express Agency construed the”
contract of 1917 as including within its terms ‘‘carload”’
'*” express shipments. It was: stipulated by respondent (R.
86) -that prior .to 1929 ‘‘on the, ocea: ional carload ship-
ments which moved by. express, join , tailroad-express
agents on this line of railroad, whose compensation was on
a@ commission basis, were allowed a certain’ percentage of
the express revenue received on car-lot movemente i
and it was further stipulated (R. 87) that “the scale of .
commissions. so allowed was the same as that stated in
- Article 2 of the agreement between the joint agents. re :
the Southern Express Company, dated August 1, 1917. Ny
This Court will not ignore the plain fact that the letters
.8ent out by Superintendents Sernggs and May (R. 137-139)
‘ to the joint railroad-express agents reduted the rate of
pay on all carload shipments regardless of the commodity
shipped, and changed it from “the usual percentage rates
of agency commissions”’ to “$5.00 a car on each carload
“shipment.’’ The reduction was not limited to carload ship-'
ments of -perishables alone, but applied té all commodities.
The “‘usual percentage rates of agency commissions’’ were
the same as those stated in Article 2 of the agreement.
The respondent construed the contract as requiring the
payment of percentage rates of agency commissions on.
- earload shipments of perishables; fhe same as upon other
4
commodities, when its officials approached Dinkins to ex-
plain the 85% provision of Article V of the Standard Oper-
ating Agreement (R. 87) and obtained a written statement
from Dinkins that ‘the position of the Express Company |
on the mattér 6f Commissions on car lot shipments was out-.
lined to me today and I am agreeable to accepting $5.00
per car on such shipments”’ with “‘the understanding that |
the practice will be general on the Seaboard Air Line”’
(R. 88). .: | |
There is no mention in Dinkins’ letter that the reduction
-. was to apply to perishable shipments alone. Perishables
_Were‘not mentioned in the proposed agreement, and Din-
kins cannot be said to have agreed to handle carload ship-- -
ments of perishables:oiit of Lawtey for a compensation of
$5.00 per car, except to the extent that carload shipments.
of 'perishables were included in the term “ear lot ship-
_ ments’’, and then-only in the event that all other agents
-~0n the Seaboard-Air Line should be required to accept the
.
same rate on ‘fear lot shipments’’.
The fact that the Express Agency admits (R. 88) that.
after the carload ‘strawberry business was taken over by
the Express Company, that Scruggs was instructed by his
superior in the Company organization to go back to see
‘ .. Dinkins a second time to secure a written statement from
\
\ ry . : . -
\ : -. : S|
~
Lie
|
| a, pega
him (R. 88), that he. would agree to accept $5.00 per car .
on ‘‘ear lot shipments” provided all other agents. on the
“Seaboard Air Line accepted the same rate, would seem to
_ he conclusive of the fact that the Express Company con-
-Strued the contract of August 1, 1917, as including within
its terms ‘‘earload: express. shipments of perishables”’ as
well as other carload shipments. How can the conduct of
the Company’s officers in seeking this agreement from Din.
kins be explained upon any theory other than that the com.
pany construed the contract of August 1, 1917, to cover all
‘carload shipments, including carload shipments of perish.
ables? Ander no stretch of the imagination can. We ton-
- ceive of the Company requiring a written agreement which
. Clearly purports to effect a change in rate of pay; without
- the company having first concluded that a rate of pay was
then in effect on carload shipments. fa :
That the Express ‘Company first so concluded is evi-
denced by the fact that it approached Dinkins to obtain an
- agreement to change’ the rates. 4 :
The ‘change was made as to “‘ear lot shipments’’, and -
the rate-on ‘‘car Jot shipments” up to April 10, 1930, was
the same as the rate on other shipments;—that is, there
was in effect a rate referred to by Superintendents~May
and Scruggs as ‘‘the usual’ percentage rates of agency
commissions,’’ specified‘in Article 2 of the contract of
August 1, 1917. Bie anf
The lower court cites authorities (note 5, R. 376) to: sus-
tain its holding that Article'12 of the collective contract is
‘without effect to prevent changes in the transfer allow-
_ ance to Carlton at Boykins, Virginia, and others in group
three, so long as those changes do not fall below the $10:00 —
.' Minimum for transfer allowancg fixed by Article 3. Phe
decisions cited are not applicable to the. facts inthis case.
They merely hold that the Fair Labor Standatds Act of
1938 does not prevent the employer and ‘employee from:
contracting as to wages. provided the minimum wages or
“the maximum hours provisions of the Act were not vio- -
lated. Article-3 fixed a minimum transfer allowance of
- $10.00 per month at points where agents are required to”
transfer express. matter ‘to or from other lines or trains,
but this agreement for a $10.00 minimum was not: to apply
_ to all points, since Article 12 of the Agreement stated that
this rule was not to be construed so as to reduce compen-
‘sation at points where the rates of pay were in excess of
the $10.00. Where a rate in excess of $10.00 was in effect
at a point, such as Carlton’s rate of $25.00 at Boykins,
Virginia, Article 12 fixed the $25.00 rate as the minimum |
at that point. Had the rate been increased to $50.00 at.
_ that point, it could have been cut back to $25.00 without
violating’ the agreement, but any reduction below $25.00
was a reduction below the minimum fixed by the contract
. at that point. That the: respondent so construed the agree-
ment is evidenced by the fact that it sought and obtained
written agreement from Carlton ( R. 97-98) that he would
. accept a lesser amount. - The. minimum rate at ’Boykins, —
_ Virginia, was not fixed by Article 3, but was fixed by Arti-
cle 12 of the agreement, it having been stipulated (R. 96)
that ‘‘before March 1, 1922, Boykins had been, registered
by the Agency as,a point’ at-which there was‘allowed any
incumbent agent the-sum of $25.00 for transferring express
matter at that station’’. ; :
_. A State Statute of Limitations is fo bar toa suit upon
an award of The National Railroad Adjustment Board.
The court below has intimated that if it is in error as to
the. Telegraphers right. to recover, it’ is in. no doubt that
the bar of the statute has fallen as to the amounts sued for
” ¢ aac
x
56
which accrued more than six years before the suit was
filed. This ruling of the court is clearly erroneous for the
Treason that the suit is brought to enforce an award and
order of the National Railroad Adjustment Board, and
the cause of action acerned under the provisions of Sec.
153(p) of the Railway Labor Act, as amended. *The only
statutory limitation upon a suit brought for the enforce. -
ment of such an award is prescribed as two years under _
the provisions’ of Seetion 153(q) of the Act. This suit
was brought within that’ time, and the award i enforce-
"able in all ofits terms under the provisions ‘of the Act as
interpreted by the Court of Appeals for the: pa of
‘ Columbia in ‘Washington Terminal Co. v. Boswell, ‘supra.
To permit the decision of the Court below to stand will
pave the way for a wholesale evasion of the Act by a sub-
stantial portion of the railroads and other industries sub-
| ject to related legislation. °
An amendment was offered by the Chairman of the Com-
mittee of Railroads delegated to deal with the amendments
- to the Act of 1926, at the time such amendments were con-
sidered by the respective committees of the Senate and
_ House of Representatives in 8, 3266 and H. R. 7650. Mr. /
'‘M. W. Clement, the‘above chairman, proposed among other,
amendments the followi img:
“Prov ided, that no hoard erented under the: provi-
sions of this’ seetion shafl consider a grievance of any
- character the cause of which arose more than 2 vears
ae to the effective date-of this Act:’’ ( Senate ‘Hres.
—S. 3266, p. 71; Hotse of Rep. Hrgs..H. 7650, p. 137).
The proposed amendment was not adopted.
Mr. _Sogeph. B. Kastan, ' testifyi ing before the Senate
~€ ommittee on Interstate and Foreign Commerce (S. 3266,
oe
p. 17, April 10, 1934), said:
“Because. of the lack of adjustinent boards in many
e2 . . : .
situations and. the tendency of those which do exist to
2
A 57
deadlock, very disturbing conditions have at times
been created especially in recent months, in at least
four important instances, strike votes have been taken
for the purpose of creating an emergency which would
justify the President in ‘appointing .a fact-finding
hoard, so that these grievances and similar contro-.
. Versies might be passed upon by an apart hody.’
“ee
.
Similar testimony was presthited by.Mr.. George M. ©
rn Harrison, on behalf of the standard railway labor unions.
, See Hearing on H. R. 7650, PP. 80-82. .
. ea : "Conclusion.
“The isnportance of this case transcends that of the rather —
technical legal issues to be decided. It involves funda-
mental differences .between the carrier and employees as
to the procedural processes to -be followed in effecting
changes in rates of pay, rules, or working conditions of
‘ crafts and classes of employees fixed by collective bar.
gaining agreements. ; :
Reed carrierbprevails in this ease, there will be estab-
lished_a_ principle which will have as. serious effect as it
will be far reaching i in related industries gov erned by such
agreeuients, : ”
Eurployees in the. transportgtian industry and related
industries are. uniformly affetted by the decision of the
court below. If .this decision is to prevail, every. col-
lective” bargaining agreement in effect between carriers
and -their employees, covering every class and craft, as
filed, with. the National Mediation Board under Section 5,
Third (e) of the. Railway Labor Act, as .amended, may
be changed indiscriminately by the negotiation -of indi-
vidual agreements,
e
3 58 F ;
- 4 It is respectfully submitted that the judgment of the
' Cireuit-Court of Appeals for the Fifth Circuit should be
reversed.
Respectfully submitted, .
Wituiam G. McRaz,
Leo J. HASSENAUER, -
Attorneys for
‘The Order of Railroad Telegraphers,
Petitioner.
59
APPENDIX A.
‘The following is a list. of decisions of the United States ©
Railroad Labor Board, created under ‘the Transportation
~ Act of 1920, and the National Railroad Adjustment Board,
ereated by the Railway Labor Act of June 21, 1934, wherein
these Boards consistently held that no changes in. agree-
ment covering rates of pay, rules or working conditions
could be effected without notice to the signatory repre-
sentatives of the eenployers..
’U. S. Railroad Labor Board.
~ Decision 3798. SEA
Bro. of Railway & —— — v. Northern Pacific
Railroad Co.
**Oprnion.
~ “The effect of the rules of an agrecment eannot be
‘changed by local understanding, unless concurred in
by the parties signatory to such an agreement.”*
National Railroad ‘Adjustment Dose.
Award ‘No. 2205—Third Division.
. The Order of Railroad Telegraphers v. The Atchison,
- Topeka &. Santa Fe Ry. Co. . A
_ Claims of The Order of Railroad Telegraphers for the
difference between what employees received and what they .
should /have received were e, wustained. The ‘Board in its
Opinion said:
<*The Carrier attempted to show a variance of the
“Agreement by a subsequent cunderstanding that the
construction, contended for by the Carrier should be
- adopted. The subsequent understanding, however, was
with a Local Chairman .of the Relay. Division who
> Was not a party to the Agreement and who at most
60
could have bound enly his Relay Division. Both of the
- elaimahts here involved were of other divisions.- id
Award No. 732—Thira Division. é
The Order of Railroad Telegraphers v. Chicago, Rock
Island & Pacific Railway Company. :
In the course of: the Opinion of the Board, it was held:
“‘The agreement is: executed for the Telegraphers
by the General Chairman.and General Secretary and
‘Treasurer. It is in every respect a collective bargain.
. Ing agreement. The right to make such agreements is
now well established. Recent.decisions of the: Supreme
Court (See Nafional Labor Relations Board vy. Penn-
« . Sylvania Greyhound Lines, Inc., 58 Sup. Ct. Rep. 571: -
National Labor Relations Board v. Pacific Greyhound
- Lines, Inc., 58 Sup. Ct. Rep. 577; National Labor Re--
lations Board: v. Mackay Radio and Tel:.Co., 58 Sup. °
Ct. Rep. 904) fully recognize this right.
‘The right to bargain collectively carries w ith it the
right of group representation, otherwise the beneiits
‘of collective bargaining could never be realized, and
to concede to an individual employee coveréd. by a col-
lective bargaining agreement the right to change,
modify, waive or invalidate any of the provisions of
‘such an agreement would defeat the very purpose of
collective bargaining. Moreover, to recognize any such
right in eases like the instant ‘case would give to the
, employer a power he should not possess if we are to
have collective bargaining. (See cases cited above. )
“The Board finds that the existing agreement he-
_ tween the parties cannot be changed or modified or any |
of its provisions waived except in the manner pro-
vided therein or by mutual agreement between the
parties who negotiated and exeeuted the same or their
duly authorized agents or representatives, ”’
Award No, 765—Third ‘Division, Bae
61
The — of Railroad ai tirana v. Boston & Maine
. Railroad.
The Opinion of the Board stated in-part as follows:
\-"
‘“Tt should be unnecessary to add_that the action of |
the former agent in making a special Agreement was
not binding on either organization, or his successors |
represented by a collective bargaining agency under
an agreement expressly: dealing with the manner of.
establishment of rates.’
Award No. 522—Third Division.
The Order of Railroad ee v. Pere Marquette :
Ry. Co.
The Board in its Opinion stated:
‘**In the claim at issue the facts are evidenced that
the agent at Bridgman was working under a collective
agreement which had been properly negotiated be-
tween and ratified by the Carrier and the organizatior
of which he formed a part. So long as the agent was
employed by the Carrier in the capacity of agent at
Bridgman he was working under the rules of that
agreement and was bound and governed by its speci-
fications and: requirements; and any other supple-_
mentary agreement or contract made or entered into
by him as an individual that would in any “manner
change or modify; invalidate or set aside, or that. was
at variance with the rules, conditions, rates of pay or
terms of that agreement, was invalid and a violation
of-the principles of that agreement unless such supple-
mentary agreement had been effected and ratified fol-
‘lowing conference and negotiation -between the parties
_ to the origin agreement.’ “
‘The Carrier linin of the Board dissented in separate
dissenting opinions. However,‘it is interesting to note that .
the Carrier members were in accord with the principle
that ne issue was taken with the pronouncement in the
‘i
- award that an individual employee cannot revise a col-
lective agreement. Res Se,
Award No. 218—Third Division.
The Order of Railroad Telegraphers- v. ‘The Chicago,
Rock Island & Pacific Railway Co.
The claim of the organization for the difference in com-
mission rates from 10 per cent to 61% per cent for ett
shipments, was sustained. “
The Board in the courle of its. » astaes stated :
“The reduetion in Hankins’ commissions amounted
to a reduction in his total compensation paid him for .
the work which he performed for the Carrier. The
very essence of a collective agreement of the sort
involved if this case is that reductions in the com-
pensation of individuals shall-not be affected by indi-
vidual bargaining with the particular employe, but ~
shall be effected only through negotiations with his.
representatives, who are the parties to the agreement.
Article 23 simply expresses this principle when it pro-
vides that no departure from the rates of pay pre-
scribed in the agreement shall be made without prior -
notice to the representatives of the employees. It is
immaterial that this Article sfeahs of ‘rates of pay’
and does not ‘specifically mention commissions. The
commissions. are a part of the total pay and whether
Article 23 were in. the-agreement ‘or not, the carrier
would be obligated to negotiate desired changes in pay
_° with. the representatives of the employees, and not
_ with the employees individually. To hold otherwise
would be to destroy the whole purpose and very being
of the Agreement.
‘“‘Since {he carrier should doetore have notified
the employvee’s representative of the commission re-
duction, which it desired in its own interest to effect
in conjunction with the Express Company, the carrier
violated the Agreement, and must be held responsible
for loss suffered by the employee as a result. Had the
63
representatives of the employee been notified, and had .
the matter been properly negotiated with them, it may ~ e|
well be that some reductions in the commissions would *
have been agreed upon. But this was not. done, and
we cannot speculate on what might have happened.
The simple result of the whole transaction was that
the railruad saved money in joining with the Express
Company in effecting the commission change, and that
the work that Hankins performed for the carrier was
‘paid fof in a lower total amount. We are not con-
cerned with whether this was a fair result or not, or
whether prior to the change Hankins was or was not
“being overpaid. We are concerned only with the man-
ner in which the change was accomplished.’ It was
~ accomplished by individual bargaining in violation of
the as, ‘and that — of the case.’
"Award No. 524—Third Division.
The Order of Railroad. Telegraphers v. The Chicago,
Rock Island & Pacific Railway, Co.
‘The claim of the Organization that the Agreement was
- violated and that the employee involved be compensated for |
the difference in the rate of pay provided in the Agreement
_and that arbitrarily fixed by the Carrier, was sustained.
The Board. in sustaining the claim said in part:
‘‘In connection with the waiving of. penalties or
making changes in rules contained in schedules and
agreements which have been jointly ratified following
conference and negotiation between the parties, the
Board submits that no such action can be taken except
it be through.following the same “orderly process of
conference and negotiation as had preceded the rati-
fication by the parties of the origi agreement.’
eneaid No. 528—Third Division.
‘The Order of Railroad Telegraphers v. Missouri Pacifie/ .
Lines. /
/
/
/
64 -
In the Statement of Facts the Board eid: ;
“On July 1, 1930, the Railway Express Agency, Inc.,:°
through its Superintendent, and with the concurrence ~
of the management of the Missouri Pacific Lines, |
arbitrarily (by bulletin notice to all railroad station
agents concerned) reduced the carload commission rate
. on both territories to 3%, with a maximum .of $5.00
per.carload express shipment, without notice, confer-
ence or agreement with the duly ee repre-.
sentatives of’ the agents. re
The Board sustained the claim of the employees jana
~ said:
‘“Conshhites further the reapombibiiity of the Car-
rier and the joint agencies established, the Board sub-
mits that inasmuch as the Carrier required its agents
to handle express and permitted them to receive com-
. pensation or commissions from the Express Company
. for such handling, the fact is evidenced that the Car-
rier recognized the handling of express as a part of
the agent’s duties, and predicated the amount of com-
pensation or wages to ‘be paid by the Carrier to the
‘ agents affected upon an estimate, knowledge or reason-
able assumption of the express commissions or com-
pensation which the agents were to receive from|the
performance of those duties, incident to their railroad
work, _which were performéd-) for the express agency.
“Insofar as the agreement between the Carrier and -
General Committee is concerned, the. Board submits
that the commission rates established prior to the re-
duction, existed at the time the agreement between the
parties was} ratified, and had existed for some time
{ previous to \the ratification of that agreement, and
x < form a sound: basis for the conclusion that ‘the original
‘express commission paid before the reduction’ was a
, _ determining jfactor or means of arriving at a mutual
~ understanding between the parties to the agreement
fs « of the compensation to be paid by. the Carrier to the
representatives of the joint agencies affected by the
reduction in the commission rate: .
ee ———eeE—eEeEeEeEeEeEeEeEeeEeEeEeEeEeEeEeEeEeEeeeEeEeEeEeEeEeEEEeEeeEeEeEeEeEeEeE>EEE>=E=EeEaEaEea>=>=EaEOEOEOE_E_E_COEEOO
‘ .
| “In view of these conditions the Board sulmits that
the commissions paid. by the Express Agency at the
__ time the agreement. ‘between the employes and the Car-
rier was ratified formed as much~a part of the com- -
pe pensation of the émployes or agents affected as the
figures written into the agreement for the railroad
service. and disturbing the basic rate upon which the
Agents’ compensation: from the Carrier was founded
_ and permitting the express commissions to be reducéd
without conference and agreement, the Carrier vio-
lated the principles of the — agreement between
the parties.’’
] anata RR ia
»
¢ JP /
- APPENDIX B.
Section 153, (i), (p), & (q) of the Railway Laliee Act as:
amended, June 21, 1934:
“*(i) The Monte between an employee re group of .
. employees anda carrier or carriers growing out of
grievances or out of the interpretation or application
. et agreements concerning rates of pay, rules, or work-
__ ing conditions, including cases pending and unadjusted
on the-date of approval of this Act, shall be handled
in the nsual manner up to and including the chief oper-
- ating Officer of the carrier designated to handle such
disputes; but, failing to reach an adjustment in this
manner, the. disputes may be referred by petition of
the parties or by either party to the appropriate divi-
sion of the Adjustment Board with a full statement ’
of the facts and all supporting data bearing upon the
disputes.
#(p) If a carrier doesnot comply with an order cf
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 Dis-
trict 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 fot 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 Statés -
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 shal] be prima
facie evidence ofthe facts therein stated,:and except
that the petitioner shall not be liable for’ costs in the °
distri¢t court nor for-costs at any subsequent stage of.
the proceedings,. unless they accrue upon, his. appeal,
and sueh costs shall be ‘paid out of -the appropriation
... for the expenses of the courts of the United States.
_ If the petitioner shall finally prevail he shall be allowed
a reasonable attorney’s fee, to be taxed and collected
. 67
‘asa 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 judg-
ment, by writ of mandamus or otherwise, as .may be
appropriate to. enforce or set aside the order: of the.
division of the Adjustment Board. hel
‘‘(q) All actions at law based, upen the provibions
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.”
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.