# Brief for the Petitioner — Order of Railroad Telegraphers v. Railway Express Agency, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Petitioner
- **Published:** January 1, 1944
- **Citation:** 321 U.S. 342

## Text

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 . 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,
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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) 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 '

>

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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:

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 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.”

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0268%3A3. Public record. Not legal advice.