Petition for Writ of Certiorari — Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas Railroad

Office-Supreme Court, U.S.

FILE COPY FILED

JUL 1 = 1959

JAMES R. BROWNING, Clerk

In the

Supreme Court of the United States

OCTOBER TERM, 1959

No. ..... 65.

THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS, et al.,

Petitioners,

Vv.

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

) TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

J. HART WILLIS,

1408 Tower Petroleum

Building,

Dallas 1, Texas,

Attorney for Petitioners.

Of Counsel:

WAYLAND K. SULLIVAN,

HAROLD C. HEISS,

CLARENCE E. WEISELL,

Cleveland, Ohio.

V. C. SHUTTLEWORTH,

Cedar Rapids, lowa.

WILLIAM P. FONVILLE,

HART WILLIS, JR.

Dallas, Texas.

WARLICK LAW, INC.—1207 HORD STREET—DALLAS—RI 1-6711

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Appendix B, Judgment Below .............................::006

ii Authorities

Cases

Page

Brotherhood of Railroad Trainmen, et al. v. Chicago

River & Indiana Railroad Company, et al., 353

oso ecp cx secveactacsveotevecssesces, -0s ae

Brotherhood of Railroad Trainmen, Enterprise Lodge

No. 27, et al. v. Toledo, P. & W. RR., 321 U.S. 50

(1944) een e hoedesy dant snnceokccecs, 23, 27

Inland Stee] Company v. United States,

NM I I occ cng c sea sececs ic. -vensnrvcavereverSean 22

Order of ~- gl Conductors v. as 326 U.S.

561 (1946) . | eee SS ae

Statutes

Norris-LaGuardia Act, Section 7, 29 U. S. C. 107. 5

Norris-LaGuardia Act, Section 8, 29 U.S. C. 108... 6

Railway Labor Act, Section 2, Seventh, 45 U. S. C.

ae fy ASCE Ren 6, 25

Railway Labor Act, Section 6,

_ i 5s A | eens .. 6, 15, 17, 21, 24, 25, 26

In the

Supreme Court of the United States

OCTOBER TERM, 1959

ET Cnr

THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS, et al.,

Petitioners,

Vv.

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE |

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Brotherhood of Locomotive Engineers, the Brother-

hood of Locomotive Firemen and Enginemen, the Order of

Railway Conductors and Brakemen and the Brotherhood of

Railroad Trainmen, hereinafter called “petitioners,” pray

that a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit, en-

tered in the above entitled case on April 20, 1959.

2

OPINION BELOW

The opinion of the Court of Appeals (infra, Appendix

A) is not as yet reported.

JURISDICTION

The judgment of the Court of Appeals was dated and

entered on April 20, 1959. (infra, Appendix B.)

The jurisdiction of this Court is invoked under the pro-

visions of 28 U.S. C., Section 1254 (1).

QUESTIONS PRESENTED

Respondents, claiming the right as a managerial pre-

rogative, unilaterally ordered changes to be made in work-

ing conditions embodied in collective bargaining agree-

ments. Petitioners protested and invoked the services of the

National Mediation Board.’ Respondents, declining to

maintain the status quo, placed the changes in effect while

the matter pended before the National Mediation Board.’

Upon withdrawal by the National Mediation Board the

respondents’ employees, represented by petitioners, struck.

Respondents, without referring the dispute to any board or

committee, sought and obtained a temporary restraining

order against the strike.’ Approximately thirty-four days

later, prior to the hearing on the application for a tempo-

rary injunction, respondents referred the dispute to the

National Railroad Adjustment Board,‘ to the National

1R. Vol. 1,

2R. Vol. 1, p. 66.

5R. Vol. 1, pp. 23-23.

*R. Vol. 1, p

. 69; Vol. 2, pp. 1-54.

3

Mediation Board,’ and to various disputes committees cre-

ated in collective bargaining agreements,* and thereupon

predicated the claim to an injunction upon the pendency of

the disputes before each and all of such bodies. On the hear-

ing of the application for temporary injunction the district

court, holding the interpretation of the collective bargain-

ing agreements to be primarily a matter for determination

by the Boards and Committees to which the dispute had

been referred by the respondents, granted a temporary

injunction against the strike pending the determination of

the dispute by such boards and committees, on condition

that the respondents restore and maintain during that time

the conditions which existed prior to the changes provoca-

tive of the strike or, at the election of the respondents, pay

to the employees adversely affected by such changes the

same amounts which the respondents would have paid had

the changes not been made.’ The respondents appealed from

that portion of the order requiring the restoration and

maintenance of the status quo.* The petitioners appealed

from that portion of the order enjoining the strike.° The

court of appeals, on the postulate that the district court

is, by the provisions of the Railway Labor Act, denied

jurisdiction to pass any kind of preliminary judgment

upon the merits of the dispute and that that kind of juris-

diction cannot be exercised under the guise of discretionary

equity powers te impose reasonable conditions upon the

5R. Vol. 1, pp. 58, 59; Vol. 2, pp. 188-215, 216-261.

®R. Vol. .. 69-72; Vol. 2 >. 55-76, 77-98, 99-131; 132-145, 146-159,

160-173, 174-187.

7R. Vol. 1, pp. 102-103, 136-138.

®R. Vol. 1, pp. 104-105.

®R. Vol. 1, pp. 149-153.

4

grant of an injunction, of requiring the respondents to

come into equity with clean hands or upon any theory

whatsoever, held that the district court was without juris-

diction to require restoration and maintenance of the status

quo. That court sustained the order granting the injunc-

tion against the strike, and vacated that part of the order

requiring the restoration and maintenance of the status

quo. The questions presented are:

QUESTION NO. 1: Whether a district court under

circumstances where a dispute arising under the Railway

Labor Act has been submitted by a railroad to the National

Railroad Adjustment Board and an injunction against a

strike by employees is sought on authority of Brotherhood

of Railroad Trainmen v. Chicago River and Ind. RR Co.,

353 U. S. 20, may on the granting of an injunction impose

reasonable conditions designed to protect the employees

against a harmful change in working conditions during

pendency of the dispute before the Adjustment Board by

ordering that the railroad restore the status quo, or, in the

alternative, pay the employees the amount they would have

been paid had changes in working conditions giving rise to

the dispute not been made?

QUESTION NO. 2: When a carrier and its employees

have agreed upon procedural steps to be followed before

new intradivisional runs may be established or when a

carrier has agreed not to make changes in runs, or changes

in terminals, or rearrangements of runs without notice to

employees, and has agreed that all rulings in reference to

the agreement shall be made in writing and shall not be

5

made effective unless agreed to by the parties, may such

employees be enjoined from striking in an endeavor to

compel the carrier to comply with such agreements before

new intradivisional runs are established?

STATUTES INVOLVED

Section 7, Norris-LaGuardia Act, 29 U. S. C., Section

107, page 99:

“No court of the United States shall have jurisdic-

tion to issue a temporary or permanent injunction

in any case involving or growing out of a labor dis-

pute, as defined in this chapter, except after hearing

the testimony of witnesses in open court (with oppor-

tunity for cross-examination) in support of the alle-

gations of a complaint made under oath, and testi-

mony in opposition thereto, if offered, and except

after findings of fact by the court to the effect —

“(a) That unlawful acts have been threatened and

will be committed unless restrained or have been

committed and will be continued unless restrained,

but no injunction or temporary restraining order

shall be issued on account of any threat or unlawful

act excepting against the person or persons, associa-

tion, or organization making the threat or committing

the unlawful act or actually authorizing or ratifying

the same after actual knowledge thereof;

“(b) That substantial and irreparable injury to

complainant’s property will follow;

“(e) That as to each item of relief granted greater

injury will be inflicted upon complainant by the de-

nial of relief than will be inflicted upon defendants

by the granting of relief;

“(q) That complainant has no adequate remedy

ane?

6

Section 8, Norris-LaGuardia Act, 29 U. S. C., Section

108, page 121:

“No restraining order or injunctive relief shall be

granted to any complainant who has failed to comply

with any obligation imposed by law which is involved

in the labor dispute in question, or who has failed to

make every reasonable effort to scttle such dispute

either by negotiation or with the aid of any available

governmental machinery of mediation or voluntary

arbitration.”

Section 2, seventh, Railway Labor Act, 45 U. S. C., Sec-

tion 152 (seventh), page 479:

“No carrier, its officers, or agents shall change the

rates of pay, rules, or working conditions of its em-

ployees, as a class, as embodied in agreements except

in the manner prescribed in such agreements or in

section 156 of this title.”

Section 6, Railway Labor Act, 45 U. S. C., Section 156,

page 581:

“Carriers and representatives of the employees

shall give at least thirty days’ written notice of an

intended change in agreements affecting rates of pay,

rules, or working conditions, and the time and place

for the beginning of conference between the repre-

sentatives of the parties interested in such intended

changes shall be agreed upon within ten days after

the receipt of said notice. In every case where such

notice of intended change has been given, or confer-

ences are being held with reference thereto, or the

services of the Mediation Board have been requested

by either party, or said Board has proffered its serv-

ices, rates of pay, rules, or working conditions shall

not be altered by the carrier until the controversy has

been finally acted upon, as required by section 155

of this title, by the Mediation Board, unless a period

7

of ten days has elapsed after termination of confer-

ences without request for or proffer of the services

of the Mediation Board.” —

STATEMENT

Prior to October 19, 1958, there existed established

intradivisional runs on the respondents’ line of railroad

between Wichita Falls, Texas, and Forgan, Oklahoma, as

follows: Wichita Falls, Texas, to Altus, Oklahoma, a dis-

tance of 75.9 miles; Altus, Oklahoma, to Elk City, Okla-

homa, a distance of 58.3 miles; Elk City, Oklahoma, to

Woodward, Oklahoma, a distance of 84.8 miles, and Wood-

ward, Oklahoma, to Forgan, Oklahoma, a distance of 83.2

miles. Five crews were assigned to these runs on way-

freight service. Effective 12:01 A.M., October 19, 1958,

by General Orders 119 and 120, issued October 2, 1958,

the respondents unilaterally and over the protest of peti-

tioners, abolished these intradivisional runs and estab-

lished new intradivisional runs, to-wit from Wichita Falls,

Texas, to Elk City, Oklahoma, a distance of 134.2 miles,

and from Elk City, Oklahoma, to Forgan, Oklahoma, a

distance of 168 miles. Only three crews were assigned to

these runs in wayfreight service.’°

The respondents are bound by contract with the Brother-

hood of Locomotive Engineers and the Brotherhood of

Locomotive Firemen and Enginemen as follows.”

“Article 4—lInterdivisional, Interseniority Dis-

trict, Intradivisional, and/or Intraseniority District

Service (Freight or Passenger)

19R. Vol. 1, pp. 63-65.

1R. Vol. 1, p. 16; Vol. 2, pp. 42-43.

8

“Where a carrier deires to establish interdivisional,

interseniority district, intradivisional, or intrasenior-

ity district runs in passenger or freight service, the

carrier shall give notice to the General Chairman of

the organizations involved of its desire to establish

such runs, giving detailed information specifying the

service it proposes to establish and the conditions, if

any, which it proposes shall govern the establishment

of such service, the purpose being to furnish the em-

ployees with all the necessary information.

“The parties will negotiate in good faith on such

proposals and failing to agree, either party may in-

voke the services of the National Mediation Board.

If mediation fails and the parties do not agree to

arbitrate the dispute under the Railway Labor Act,

then at the request of either party, the proposal will

be considered by a National Committee consisting of

the chiefs of the employee organizations involved and

an equal number of carrier representatives who shall

be members of the Carriers’ Conference Committees,

signatories hereto, or their successors or representa-

tives, provided, however, that this procedure of appeal

tone Nationa! Committee thus created shall not be

made in any case for a period of six months from the

date of this agreeinent.

“If said National Committee does not agree upon

the disposition of the proposal, then the conferees will

in good faith undertake to agree upon a neutral chair-

man who will sit with the Committee, hear the argu-

ments of the parties, and make representations and

recommendations to the parties with the view in mind

of disposing of the controversy. In the event the par-

ties do not agree upon such neutral chairman, then

upon the request of the parties, or either of them, the

National Mediation Board will appoint the chairman.

“While the recommendations of the Chairman are

not to be compulsory or binding as an arbitration

award, yet the parties hereto affirm their good inten-

9

tions of arranging through the above procedure for

the final disposition of all such disputes on a fair and

reasonable basis.

“Every effort will be made to settle disputes over

interdivisional service on the property and thus to

minimize the number of appeals to the above National

Committee.

“This rule shall become effective August 1, 1952,

except on such carriers as may elect to preserve exist-

ing rules or practices and so notify the authorized

employee representatives on or before July 1, 1952.”

The respondents are bound to an agreement with Order

of Railway Conductors and Brakemen and Brotherhood of

Railroad Trainmen, which provides as follows.’

“ARTICLE 10

“Wayfreight and Mixed Train Service

“Rates of Pay Effective December 16, 1953

“(a) Conductors and brakemen in wayfreight and

mixed train service will be paid:

Per Mile Per

Class Cents Day

(SES EAL ATT REI OAS 15.31 $15.31

SSL LTE TD 13.82 13.82

Number Brakemen

Runs of Crews per Crew

Wichita Falls Altus .................... 2 3

* * * * *

(f) No changes will be made in the above runs,

nor number of crews assigned to them, unless busi-

12R. Vol. 2, pp. 12-14.

10

ness or changed conditions justify it, nor will termi-

nals be changed, or runs rearranged, without ten (10)

days’ notice.

“ARTICLE 59

“All rulings in reference to any Article of this

Agreement shall be made in writing only by the Offi-

cials signing this Agreement and the General Chair-

man of the O.R.C. and the B. of R. T. organizations

will be furnished with a copy of such rulings, but

such rulings shall not be made effective until agreed

to by the parties herein mentioned.”

The respondents are bound by mediation agreements with

the petitioners which provide that the purpose of the

agreement is to fix the general level of compensation dur-

ing the period of agreement which ends in November,

1959, and, with certain exceptions, not applicable to the

situation here, that neither the respondents nor any of the

petitioners’ organizations will serve any notice or progress

any pending notice to negotiate agreements which would

have the effect of increasing or decreasing the number of

employees required to be used under existing agreements."’

On October 7, 1958, the petitioners requested the re-

spondents to cancel General Orders 119 and 120. The re-

spondents refused.'* On October 14, 1958, the National

Mediation Board advised the respondents that the petition-

ers had invoked the services of that board.'* The respond-

ents, nonetheless, placed their General Orders 119 and 120

into effect at 12:01 A.M. on October 19, 1958, ** and so

13R, Vol. 1, p. 59; Vol. 2, pp. 188, 210, 211-212, 213, 214.

14R. Vol. 1, p. 66.

15R. Vol. 1, p. 66.

16R. Vol. 1, p. 66.

11

changed the status quo. On October 20, 1958, the National

Mediation Board advised the respondents that the peti-

tioners’ applications for the services of that board had

been given the board’s file number C-2827; that its media-

tor was in Dallas and suggested that the respondents defer

contemplated changes pending immediate investigation.

The respondents took the position that, having changed

the status quo before receiving such suggestion, no restora-

tion was required."’

On November 5, 1958, the National Mediation Board

notified all parties concerned that its file C-2827 was

being closed as of that date."* On November 6, 1958, at

6:00 A.M., the employees went on strike.

On November 6, 1958, the respondents, without notice

to the petitioners, obtained from the United States Dis-

trict Court for the Northern District of Texas, Dallas

Division, a temporary restraining order against the

strike.’* On receipt of notice of the order, the strike was

called off.

On or about December 10, 1958, the respondents sub-

mitted the controversy to the National Railroad Adjust-

ment Board, First Division.?? On about December 10, 1958,

the respondents submitted the controversy to the National

Committees created by Article 4 of the National Agree-

ments dated May 23, 1952, with the Brotherhood of Loco-

motive Engineers and the Brotherhood of Locomotive

17R, Vol. 1, p. 66.

18R. Vol. 1, p. 66.

19R. Vol. 1, pp. 23-28.

20R, Vol. 1, p. 69; Vol. 2, pp. 1-54.

12

Firemen and Enginemen and by Article 6 of the National

Agreement dated May 29, 1952, with the Order of Railway

Conductors and Brakemen.”' On or about December 10,

1958, the respondents submitted the controversy to the

Disputes Committees created by Article X of Mediation

Agreements with the Brotherhood of Locomotive Firemen

and Enginemen, and the Brotherhood of Railroad Train-

men, the Brotherhood of Locomotive Engineers, and the

Order of Railway Conductors and Brakemen.** On about

December 16, 1958, the respondents submitted the contro-

versy in two separate submissions on different phases to

the National Mediation Board.**

At the hearing of the application for the preliminary

injunction, on December 18, 1958, the district court heard

the argument on the motion to dismiss the amended com-

plaint, the statement of the pleadings and, without taking

testimony in open court, without considering evidence, and

without making findings of fact, entered an order grant-

ing the respondents an injunction against the strike called

by the employees on condition that the respondents restore

and maintain conditions affected by their General Orders

119 and 120 to the conditions which existed prior to the

effective date of such orders or, on the election of the re-

spondents, pay the employees adversely affected by such

orders the same amounts they would have paid such em-

ployees had the changes made by such orders not been

effected.**

21R. Vol. 1, pp. 69, 70; Vol. 2, pp. 55-76, 77-98, 99-131.

22R. Vol. 1, pp. 70-72; Vol. 2, pp. 132-145, 146-159, 160-173, 174-187.

23R. Vol. 1, pp. 58, 59; Vol. 2, pp. 188-215, 216-261.

24R. Vol. 1, pp. 102-130, 136-137; Vol. 3, p. 101.

13

From the portion of the December 18, 1958, order re-

quiring respondents to restore and maintain conditions

affected by their General Orders 119 and 120, the respond-

ents appealed*® to the Court of Appeals, which vacated

that portion of the order. The petitioners appealed** to the

Court of Appeals from that part of the December 18, 1958,

order granting a preliminary injunction against the strike,

but that portion of the order was affirmed.

The basis for federal jurisdiction in the court of the first

instance, the United States District Court for the North-

ern District of Texas, was alleged by the respondents to be:

“Acts of June 25, 1958, United States Code, Title 28,

Sections 1331 and 1337; Railway Labor Act, United

States Code, Title 45, Sections 151 et seq.; and Interstate

Commerce Act, United States Code, Section 1, et seq.””’

REASONS FOR GRANTING WRIT

I

The decision below should be reviewed because, in cir-

cumstances where a carrier seeks an injunction against

a strike provoked by its action in unilaterally effecting

changes in working conditions alleged to be embodied in

collective bargaining agreements on the claim of mana-

gerial prerogative, a dispute which the carrier then refers

to the Adjustment Board, it erroneously interprets the

Railway Labor Act as denying to a district court from

25R. Vol. 1, pp. 104-105.

26R. Vol. 1, pp. 149-153.

27R. Vol. 1, p. 15.

14

which the injunction is sought jurisdiction to require

maintenance of the status quo as a reasonable condition

to the grant of the writ.

The decision below should be reviewed because, in cir-

cumstances where a carrier seeks an injunction against a

strike provoked by its action in unilaterally effecting

changes in working conditions alleged to be embodied in

collective bargaining agreements on the claim of mana-

gerial prerogative, where the carrier declined to maintain

the status quo while the matter pended before the National

Mediation Board and subsequently referred the matter to

the Adjustment Board, it erroneously interprets the Rail-

way Labor Act as denying to a district court from which

the injunction is sought jurisdiction to exercise the tradi-

tional equity powers of requiring the carrier who seeks

the equitable remedy of injunction to stand in court with

clean hands and to do equity by restoration and mainte

nance of the conditions which existed prior to the changes

provocative of the strike.

These are important federal questions which have not

been but should be settled by this Court. If the decision of

the Court of Appeals stands the entire object of the Rail-

way Labor Act can be simply and easily frustrated by any

carrier. Under the holding of the Court of Appeals a car-

rier desiring to effect changes in working conditions em-

bodied in collective bargaining agreements, and at the

same time to avoid the procedures of notice, negotiation,

mediation, and agreement prescribed in the agreements

or in the Railway Labor Act, need only unilaterally order

i. - =

a

15

the changes to be made, decline to maintain the status quo,

obtain an injunction against the strike provoked by its ac-

tion, refer the matter to the Adjustment Board, ride out

the years of decision in that Board in enjoyment of the

changes unilaterally, and if it is wrong, unlawfully made

by it, secure in the knowledge that the court from which

it obtained the writ of injunction is powerless to require

restoration and maintenance of the status quo as a condi-

tion to the grant of the writ.

The dispute here does not involve time claims. It involves

the working conditions of the employees as a group. In

the present case, collective agreements were in effect be-

tween the respondents and each of the Brotherhoods. Those

agreements provide for notice and negotiation concerning

establishment of or changes in intradivisional district runs

or numbers of crews assigned to them, with resolution of

differences by Committees or officials designated in the

collective bargaining agreements, and with the right of

either party to invoke the services of the National Media-

tion Board. Upon the theory that the arrogation by the

respondents of the right to make changes unilaterally

which they had agreed in collective bargaining agree-

ments to make upon notice, negotiation, and agreement

amounted to changes in agreements affecting working

conditions, it would appear that the respondents have vio-

lated Section 6 of the Railway Labor Act, 45 U. S. C.

Section 156, by not following the procedure therein

prescribed. If, arguendo, on authority of Order of Railway

Conductors v. Pitney, 326 U. S. 561, the dispute may be

16

properly referable to the Adjustment Board, then in the

event the contentions of the petitioners are ultimately

sustained by the Adjustment Board, the petitioners’ cause

will be lost if the conditions which existed prior to the

changes which provoked the strike are not restored and

maintained pending decision by that Board. If the Adjust-

ment Board sustains the position of the petitioners, it will

have determined that the respondents could not lawfully

have made the changes without notice to and negotiation

and agreement with the petitioners. It will be observed

that the changes unilaterally effected by the respondents

involve the abolition of old, and the establishment of new,

home terminals. It will be understood at once that such

disruptive changes materially affect the lives and affairs

of the employees. If such changes can be made by the

respondents only upon negotiation and agreement with the

petitioners, which the petitioners contend the respondents

have solemnly bound themselves by agreement to do, then

the petitioners will have the right and opportunity to nego-

tiate for some compensation not necessarily in terms of

money for the disruptive impact of the changes upon the

lives and affairs of the employees. If the petitioners’ posi-

tion is correct. the action of the respondents in unilater-

ally making the changes is unlawful. If the changes so

unilaterally made by the respondents are allowed to remain

in effect during the years of ti decision of the Adjust-

ment Board in this dispute, then upon a determination by

that Board that the position of the petitioners is correct,

petitioners will have no adequate remedy at law. It is

‘’

17

true, as the respondents have heretofore in this litigation

claimed and will no doubt here urge, that the Adjustment

Board can award money damages. But this would not

compensate for the valuable right which the employees in

the interim will have lost; i.e., the right to negotiate for

conditions to compensate the employees for the adverse

effect of the changes desired.

If the position of the petitioners is sustained by the

Adjustment Board, it will have been determined that the

changes unilaterally placed in effect by the respondents

could not have lawfully been made except upon the pro-

cedure provided in the agreements or in accordance with

Section 6 of the Railway Labor Act. The placing of the

changes into effect during the pendency of the dispute be-

fore the Adjustment Board will have completely frustrated

the object of Section 6 of the Railway Labor Act which

specifically provides that in every case where notice of an

intended change in working conditions embodied in collec-

tive bargaining agreements has been given or the services

of the National Mediation Board have been requested by

either party, working conditions shall not be altered by the

respondents until the controversy has been finally acted

upon by the Mediation Board or unless a period of ten

days has elapsed after termination of conferences without

request for or proffer of the services of the Mediation

Board.

In Order of Railway Conductors v. Pitney, supra, this

court did not order the grant of a temporary injunction to

maintain the status quo pending the decision of the dispute

18

over interpretation of the agreements. It would appear to

be likely that the Court considered the grant of a tempo-

rary injunction in that case inappropriate for the reason

that the court held that the district court had supervisory

power to instruct its trustees, who were operating the

carrier, and the jurisdiction to interpret the collective

bargaining agreements for that purpose. The district court

had interpreted the collective bargaining agreements in a

way contrary to the position of the petitioner in that case.

This court reviewed the evidence and concluded that the

court’s findings on which its instructions to its trustees

were based were not clearly erroneous and to the extent

that it constituted instructions to its trustees, affirmed

the order of the district court. No determination that the

position of the petitioners is without merit exists here. The

reasons stated by Justice Rutledge in the dissenting opinion

in Order of Railway Conductors v. Pitney, supra, for the

maintenance of the status quo while a dispute over inter-

pretation of agreements pends in the Adjustment Board

are particularly presuasive here. Justice Rutledge said:

“In my opinion, however, petitioners are entitled

to immediate temporary relief, pending the determi-

nation of the Adjustment Board, in order to assure

compliance with Section 6, if the Board should decide

in their favor.

“Section 6 enjoins a clear and positive duty on the -

part of carriers and employees, a duty which is judi-

cially enforceable, since no other remedy is provided.

The opinion of the Court so rules as I understand it,

for otherwise there would be no reason for holding

the cause. But if, pending the Board’s determination,

the change forbidden by Section 6 takes place and the

19

Board’s decision turns out to be in favor of the peti-

tioners, the very purpose of Section 6 will have been

defeated. Its object is to maintain the status quo,

pending the expiration of the period provided by the

section for allowing the processes of negotiation,

mediation and conciliation to have play. It is to pre-

vent changes being made until these processes have

been exhausted or the prescribed waiting period has

expired without bringing them into effect. See

Brotherhood of R. Trainmen v. Toledo, P. & W. R.

Co., 321 U. S. 50; cf. Elgin, J. & E. R. Co. v. Burley,

325 U. S. 711.

“The decision of the Board will not restore this

rightful status quo for the period required for making

its determination, including the time now gone by, or

in fact for any later period. The only relief the Board

can give is either ‘an administrative declaratory de-

termination’ or an award of money damages, subject

to the special provision for judicial review. Although

the latter remedy would afford partial vindication of

private rights, it does not safeguard the public inter-

est, in accordance with the primary design of Section

6. And in many cases it may be impossible for a

court to effectuate the Board’s decision for the future

with adequate restorative measures.”

Respondents will argue that if in a suit by a carrier for

injunction against a strike, the carrier is required to main-

tain the status quo pending the determination by the Ad-

justment Board of the dispute between it and its employees

over a proposed change in conditions, a disastrous pattern

will be set for the railroad industry; that every time a

railroad makes an operating change, even though author-

ized by or not prohibited by its labor agreements, the

union will claim an agreement violation and threaten to

strike and in order to prevent a strike, the railroad will

20

seek an injunction and submit the union’s claim to the

Adjustment Board or other appropriate agency and while

the claim is pending before such Board or agency the court

will compel the railroad either to restore the operating

condition or pay the affected employees the sums of money

which they would have received had such operating change

not been made with the end result not intended by the Rail-

way Labor Act that no operating change, even though

authorized by or not prohibited by an agreement can be

made without prior approval of such board or agency. The

complete answer to this argument would appear to be that

a court of equity, without prejudging the case or binding

any board to a determination upon the merits of the con-

troversy, can readily perceive whether the claim of a union

that an operational change by the carrier violates an agree-

ment is transparent, ephemeral, or sham, or whether real

and substantial. The Court of Appeals, in vacating that

part of the order requiring the restoration and maintenance

of the status quo, held that the exclusive jurisdiction in

interpretive disputes given to the Adjustment Board by

the Railway Labor Act denies to the district court from

which an injunction to protect the jurisdiction of that

Board is sought, jurisdiction even to inquire preliminarily

into whether there is merit in the dispute referred to the

Board. This rule would certainly circumscribe the court of

equity. It would not appear to be sound. In Order of Rail-

way Conductors v. Pitney, supra, this court recognized a

situation in which a district court could properly inquire

into the merits of a dispute referred to the Adjustment

Board.

La i i i ee ll

a, ts

21

It could hardly be tenably argued that if the changes

provocative of the strike had not been made at the time of

the issuance of the temporary restraining order the enjoin-

ing court could have ordered the maintenance of the status

quo eo instanter. Yet it is only by virtue of a deliberate

violation by the respondents of the explicit provisions of the

Railway Labor Act that the changes had been made at that

time. On October 2, 1958, the respondents published Gen-

eral Orders 119 and 120 notifying the employees that on

October 19, 1958, the changes which provoked the dispute

and strike wou'd be made.” The petitioners protested, re-

quested cancellation of the general orders, and invoked the

services of the National Mediation Board. On October 14,

1958, the National Mediation Board advised the respond-

ents that the petitioners had invoked the services of that

Board.” The National Mediation Board was on the case

until it closed its file on November 5, 1958.*° In such a

situation Section 6 of the Railway Labor Act specifically

and explicitly proscribes any change in the status quo.

Nonetheless, in apparently cynical disregard of the Rail-

way Labor Act, the respondents placed the changes into

effect on October 19, 1958. They then contended and now

contend that the district court from which they sought and

obtained an injunction against the strike provoked by their

action could not as a reasonable condition to the grant of

the injunction require the restoration and maintenance of

the status quo pending the decision of the Adjustment Board

28R. Vol. 1, p. 66.

29R, Vol. 1, p. 66.

39R. Vol. 1, p. 66.

22

to which the respondents referred the dispute some thirty-

four days after obtaining the temporary restraining order.

The Court of Appeals held that the district court in such

circumstances could not on any theory of requiring the re-

spondents to come into equity with clean hands or upon any

other theory whatsoever require the restoration and main-

tenance of the status quo as a condition to the grant of the

injunction sought. In view of the fact that it was only by

virtue of the respondents’ deliberate violation of the Rail-

way Labor Act that the status quo eo instanter the issuance

of the temporary restraining order was the changed condi-

tions which provoked the strike, the dispute over which had

arisen days before the change, the holding of the Court of

Appeals would appear to lend judicial sanction to contempt

for law. Certainly Brotherhood of Railroad Trainmen, et

al. v. Chicago River & Indiana Railroad Company, et al.,

353 U.S. 30, 42, is authority for the grant of an injunction

against a strike of employees to protect the jurisdiction of

the Adjustment Board. It would, however, nowhere appear

therein that this court would deny to an enjoining court the

traditional equity power to require one who seeks the

equitable writ to stand in court with clean hands and to do

equity. The court stated in Inland Steel Company v. United

States, 306 U.S. 158:

“A court of equity ‘in the exercise of its discretion

frequently resorts to the expedient of imposing terms

and conditions upon the party at whose instance it

purports to act. The power to impose such condi-

tions is founded upon and arises from the discretion

which the court has in such cases to grant, or not to

, 23

grant, the injunction applied for. It is a power inher-

ent in the court, as a court of equity, and has been

exercised from time immemorial.’ ”

II

The decision of the court below should be reviewed for

the reason that in a situation where a carrier and its

employees have agreed upon procedural steps to be fol-

lowed before new intradivisional runs may be established

and where the carrier has agreed not to make changes in

runs or terminals, or rearrangements of runs, without

notice to and agreement by the employees, it erroneously

interprets the Railway Labor Act as denying to the em-

ployees the right to strike in an endeavor to compel the

carrier to comply with such agreements before new intra-

divisional runs are established.

This is an important federal question which has not, but

should be, settled by this court. This court noted in

Brotherhood of Railroad Trainmen v. Chicago R. & I. R.

Co., 353 U. S. 30, (in footnote 24) that:

“The Norris-LaGuardia Act has been held to pre-

vent the issuance of an injunction in a railway labor

case involving a ‘major dispute’, Brotherhood of Rail-

road Trainmen v. Toledo P. & W. R. Co., 321 U.S. 50.

In such a case, of course, the Railway Labor Act does

not provide a process for a final decision like that of

the Adjustment Board in a ‘minor’ case.”

It would appear that when a carrier has agreed, as here

in the case of the agreements with the Brotherhood of

Locomotive Engineers and the Brotherhood of Locomotive

Firemen and Enginemen, that if desirous of establishing

24

new intradivisional runs, it will give notice and negotiate

in good faith with the right in either party in the event of

failure to agree to invoke the services of the National

Mediation Board, a unilateral attempt to establish new

intradivisional runs to which the employees did not agree

and invoked the services of the National Mediation Board

produced a major, not a minor, dispute.

It would appear that when a carrier has agreed, as here

in the case of the agreements with the Brotherhood of

Railroad Trainmen and the Order of Railway Conductors

and Brakemen, that it will not change tabulated runs

except on the justification of business conditions, and ten

days’ notice, in agreements which provide that no ruling

as to any article in the agreement shall be effective until

agreed by the parties, and unilaterally and without agree-

ment, attempts to change a tabulated run when the Rail-

way Labor Act provides specifically that no change shall

be made by a carrier in rules and working conditions

except as provided in the agreement, or except by notice

under Section 6 of the Act, with the right of either party

to invoke the services of the National Mediation Board in

the event of failure to agree, the resulting dispute is a

major, not a minor, one.

The respondents contend this is a minor dispute for

determination by the Adjustment Board. Apparently the

rationale of their contention is that, notwithstanding the

plain and simple terms of the provisions concerned, the

respondents claim they have a right under the agreement

to make changes unilaterally and without agreement; that,

25

therefore, the dispute is one as to the application or mean-

ing of a collective bargaining agreement and thus a minor

dispute referable to the Adjustment Board. It can be

demonstrated that this contention is not tenable. Section

2, Seventh, of the Railway Labor Act provides that no

change in rules or working conditions embodied in agree-

ments may be made by a carrier except in the manner

provided in the agreements or in Section 6 of the Act.

Section 6 provides that a carrier desirous of making a

change in rules or working conditions of its employees

shall give at least 30 days’ written notice, negotiate in

good faith, with the right in either party to invoke tie

services of the National Mediation Board. A carrier obey-

ing the directive of the statute and giving notice and

negotiating a desired change in rules or working condi-

tions, in the event of failure to agree, has provoked a

major dispute for jurisdiction of the National Mediation

Board. If the respondents’ contention here were correct,

a carrier heedless of the provisions of the Act, could uni-

laterally make a change in working conditions, simply

claim that it has the right to make the change unilaterally

under the agreement, even though the agreement would

appear to state clearly otherwise, and defeat jurisdiction

of the National Mediation Board. On that postulate, a

carrier could, in violation of the Railway Labor Act, usurp

to itself the right to make unilateral changes in working

conditions embodied in agreements and frustrate the pro-

cedure provided by the Act.

26

It can be demonstrated further that the dispute here is

a major one, referable to the National Mediation Board,

and not a minor one, referable to the Adjustment Board.

Article 4 of the agreements between respondents and the

Brotherhood of Locomotive Engineers and the Brother-

hood of Locomotive Firemen and Enginemen embodies the

working condition that the respondents shall have no right

to establish new intradivisional runs except on notice,

negotiation, agreement, and, at either party’s invocation,

mediation. To eliminate Articles 4 from the agreements

the respondents would have to serve a Section 6 notice in

accordance with the provisions of the Railway Labor Act.

The respondents’ attempt to establish new intradivisional

runs unilaterally and without negotiation, on the claim

that they have the right sc to do, constitutes an attempt

by the respondents to change the working conditions em-

bodied in the agreement that denies them such a right,

without having given notice of the intended change as

provided in Section 6 of the Railway Labor Act.

It is clear that the dispute here is a major dispute, not a

minor dispute. And, since it is a major dispute, and it is

perfectly clear from the amended complaint that the re-

spondents have violated their obligations imposed upon

them by iaw involved in this labor dispute, and have failed

to make every reasonable effort to settle such dispute by

negotiation, the Norris-LaGuardia Act forbids the issu-

27

ance of an injunction against the strike. Brotherhood of

Railroad Trainmen v. Toledo P. & W. R. Co., 821 U.S. 50.

CONCLUSION

For the reasons set forth above, it is respectfully sub-

mitted that this petition for a writ of certiorari should be

granted.

Respectfully submitted,

J. HART WILLIS,

1408 Tower Petroleum

Building,

Dallas 1, Texas,

Attorney for Petitioners.

Of Counsel:

WAYLAND K. SULLIVAN,

1370 Ontario Street,

Cleveland 13, Ohio.

HAROLD C. HEISS,

Keith Building,

Cleveland 15, Ohio.

CLARENCE E. WEISE! L,

1706 Union Commerce Building,

Cleveland 14, Ohio.

V. C. SHUTTLEWORTH,

1120 Merchants National Bank Building,

Cedar Rapids, Iowa.

WILLIAM P. FONVILLE,

2232 Republic National Bank Building,

Dallas 1, Texas.

HART WILLIS, JR.,

1408 Tower Petroleum Building,

Dallas 1, Texas.

28

PROOF OF SERVICE

I, J. Hart Willis, one of the attorneys for the Brother-

hood of Locomotive Engineers, et al., Petitioners herein,

and a member of the Bar of the Supreme Court of the

ited States, hereby certify that, on the &7 day of

ere , 1959, I served copies of the foregoing petition

r writ of certiorari on the Respondents, Missouri-Kansas-

Texas Railroad Company of Texas, by mailing copy in duly

addressed envelopes, with first-class postage prepaid, to

Respondents’ attorneys of record, as follows: to W. A.

Thie, M. E. Clinton, and M. W. Feeves, Esquires, Barrett

Building, Denison, Texas; and to 0. O. Touchstone, Esquire,

405 Southland Life Building, Dallas 1, Texas.

ae Se ee

_’ J. HART WILLIS,

Attorney for Brotherhood of

Locomotive Engineers, et al.,

Petitioners,

1408 Tower Petroleum

Building,

Dallas 1, Texas.

29

APPENDIX A

In the

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 17580

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, et al.,

Appellants-A ppellees,

versus

THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS, et al.,

Appellees-A ppellants.

(AND REVERSE TITLE).

Appeals from the United States D. trict Court for the

Northern District of Texas.

(April 20, 1959.)

Before RIVES, JONES and WISDOM, Circuit Judges.

RIVES, Circuit Judge: At 6:00 o’clock A. M. on No-

vember 6, 1958, the engineers, firemen, conductors, brake-

men and switchmen of appellant Railroad Companies

30

struck and ceased work. The strike was called without

notice to the Railroad Companies by the four railroad

labor organizations.’ The strike stopped all train operations

of the Railroad Companies over 2919 miles of track ex-

tending from St. Louis and Kansas City, Missouri, on the

north to Oklahoma City, Oklahoma, and to Houston and

San Antonio, Texas, on the south. The strike was halted

on the same day by a temporary restraining order issued

by the district court upon the application of the Railroad

Companies.

The strike had been precipitated by General Orders 119

and 120, issued October 2, 1958, by the Railroad Com-

panies, effective at 12:01 A. M. on October 19, 1958. Those

orders made certain changes in the intradivisional runs

of freight trains and the away-from-home terminals for

freight service between Wichita Falls, Texas, ard Forgan,

Oklahoma, a distance of 302 miles. Before the orders be-

came effective, the National Mediation Board advised the

Railroad Companies that the employees had invoked the

services of that Board, but the Railroad Companies none-

theless placed the orders into effect as scheduled. About

a month later, but prior to the hearing of their application

for a preliminary injunction, the Railroad Companies

undertook to submit the matters in dispute to the National

Railroad Adjustment Board, and in part, to the National

Mediation Board, and to Committees established by the

colle-tive bargaining agreements.

1The Brotherhood of Locomotive Engineers, The Brotherhood of Loco-

motive Firemen and Enginemen. The Brotherhood of Railroad Trainmen,

and The Order of Railway Conductors and Brakemen.

31

On December 18, 1958, the district court granted a

preliminary injunction enjoining the strike pending de-

cisions by said Boards and Committees, and in the same

order, directed the Railroad Companies to restore and

maintain conditions affected by their General Orders 119

and 120 to the conditions which existed prior to the effec-

tive date of such orders or, on the election of the Com-

panies, pay the employees adversely affected by such orders

the same amounts they would have paid such employees

had the changes made by such orders not been effected.

On December 29, 1958, the Railroad Companies filed

notice of appeal from that part of the order requiring

them to restore and maintain the status quo pending the

injunction. On January 5, 1959, they sought from the

district court a stay of that portion of the order. The court

then ruled that the injunction had been granted on condi-

tion that the Railroad Companies restore and maintain

the status quo, and denied the stay requested by them and

entered an order so reciting. On January 6, 1959, the Rail-

road Companies obtained from this Court’ a stay of that

portion of the order dated December 18, 1958, requiring

them to restore the status quo. On January 13, 1959, the

Railroad Companies attempted to appeal from the district

court’s order of January 5, 1959." On January 15, 1959,

the defendant employees and labor organizations appealed

fru.a that part of the order of December 18, 1958, granting

2The panel being composed of Circuit Judges Tuttle, Jones, and Brown.

3In view of our ruling on the appeal from the part of the order of

December 18, 1958, requiring the restoration of the status ques we find it

unnecessary to rule upon the attempted appeal from the order of January

5, 1959.

32

a preliminary injunction against them. The 302-mile line

over which this controversy arose constitutes a separate

seniority district for the engineers, firemen, conductors,

and brakemen.

Prior to October 19, 1958, way freight crews on this

line were assigned as follows:

Two crews between North Yard (Wichita Falls,

Texas) and Welon (Altus, Oklahoma), a distance of

75.9 miles, daily except Sunday, with North Yard the

home terminal for both crews, and with Sunday lay-

over at North Yard for one crew and at Welon for

the other crew;

One crew from Welon (Altus, Oklahoma) to Elk

City, Oklahoma, and return, a distance of 58.3 miles

in each direction, daily except Saturday, with Welon ‘

the home terminal and with Saturday layover at

Welon;

One crew from Elk City, Oklahoma, to Guest

(Woodward, Oklahoma), a distance of. 84.8 miles, on

Mondays, Wednesdays and Fridays, and from Guest “|

to Elk City on Tuesdays, Thursdays and Saturdays, |

with Elk City the home terminal and with Sunday

layover at Elk City; and

One crew from Guest (Woodward, Oklahoma) to - -

Forgan, Oklahoma, a distance of 83.2 miles, on Mon-

days, Wednesdays and Fridays, and from Forgan to

Guest on Tuesdays, Thursdays and Saturdays, with ;

Guest the home terminal and with Sunday layover at |

Guest.

‘ —_

SS JO tate i pee na 5 5

” pais BFE BA esas tie were

Such way freight assignments, or similar way freight

assignments between North Yard (Wichita Falls, Texas)

and Forgan, Oklahoma, have been in existence for more

than twenty-five years.

33

Effective at 12:01 A. M. on October 19, 1958, the Rail-

road Companies rearranged assigned way freight service

between North Yard (Wichita Falls, Texas) and Forgan,

Oklahoma, as follows:

Assigned two way freight crews to-operate between

North Yard (Wichita Falls, Texas) and Elk City,

Oklahoma, .a-distance of 134.2 ‘miles, daily except

Sunday, with North Yard the home terminal of both -

crews, and with Sunday layover at North Yard for

one crew and at Elk City for the other; and

Assigned one way freight crew to operate from Elk

City, Oklahoma, to Forgan, Oklahoma, a distance of

168 miles, on Mondays, Wednesdays and Fridays, and

from Forgan to Elk City on Tuesdays, Thursdays and

Saturdays, with Elk City the home terminal and with

Sunday layover at Elk City. is

This arrangement of way freight service was made in

accordance with General Order No. 119.

Prior to October 19, 1958, North Yard (Wichita Falls,

Texas) was the home termina! and Altus, Oklahoma, and

Forgan, Oklahoma, were the bulletined away-from-home

terminals for unassigned crews in through freight serv-

ice between North Yard (Wichita Falls, Texas) and

Forgan, Oklahoma. Effective at 12:01 A. M. on October 19,

1958, the Railroad Companies abolished Altus, Oklahoma,

and Woodward, Oklahoma, as away-from-home terminals

for unassigned crews in through freight service, established

Elk City, Oklahoma, as an away-from-home terminal for

such crews, leaving North Yard (Wichita Falls, Texas)

as the home terminal and Forgan, Oklahoma, as an away-

34

from-home terminal for such crews. This change in away-

from-home terminals was made in accordance with General

Order No. 120.

In response to the district court’s question as to “the

number of men that were put out of employment by the

change” the counsel for the Railroad Companies replied,

“There were ten.”

While not so strongly urged,‘ the attacks of the defend-

ants, cross-appellants, on the jurisdiction of the district

court to grant the preliminary injunction are matters

which cannot be waived and which we should consider at

the outset. Indeed, we find the jurisdictional questions

practically determinative of the appeal as well as of the

cross-appeal.

No testimony of witnesses was heard in open court be-

fore the preliminary injunction was issued, nor did the

district court make any findings of fact. Absent such testi-

mony and findings, the defendants and cross-appellants

insist that Section 7 of the Norris-La Guardia Act, 29 U.

S. C. A. §107, deprived the district court of jurisdiction.

The pertinent provisions of that section are quoted in the

margain.°

‘The position of appellees and cross-appellants is thus stated in brief:

“* * * If the condition requiring the restoration of the status quo

or the optional alternative payments be maintained in the order, the

Employees are content to abide the determination of the various

submissions made of the controversy by Carriers. Otherwise not.’

5“No court of the United States shall have jurisdiction to issue a tem-

porary or permanent injunction in any case involving or at tale | out of

a labor dispute, as defined in this chapter, except after hearing the testi-

mony of witnesses in open court (with opportunity for cross-examina-

35

The material facts were, however, admitted; that is,

the strike, the matters in controversy (though not their

legal effect), and the submissions by the Railroad Com-

panies of the dispute to the Nationa] Railroad Adjustment

Board and, in part, to the National Mediation Board and

to the Committees established by agreement. Under such

circumstance, the specific provisions of the Railway Labor

Act, 45 U.S. C. A. §§ 151, et seq., take precedence over the

more general provision of the Norris La Guardia Act.

Brotherhood of Railroad Trainmen, et al. v. Chicago River

& Indiana Railroad Company, et al., 1957, 353 U.S. 30, 42.

The Railway Labor Act creates the National Railroad

Adjustment Board for the resolution of “minor griev-

ances” in the event that the parties are unable to agree

upon their settlement, that is compulsory arbitration in

this limited field. It does not provide a process for a

final decision of a “major dispute.” Brotherhood of Rail-

road Trainmen, et al. v. Chicago River & Indiana Rail-

tion) in support of the allegations of a complaint made under oath, and

testimony in opposition thereto, if offered, and except after findings of

fact by the court, to the effect—

“(a) That unlawful acts have been threatened and will be committed

unless restrained or have been committed and will continue unless re-

strained, but no injunction or temporary restraining order shall be issued

on account of any threat or unlawful act excepting against the person or

persons, association, or organization making the threat or committing the

unlawful act or actually authorizing or ratifying the same after actual

knowledge thereof;

“(b) That substantial and irreparable injury to complainant’s prop-

erty will follow;

“(c) That as to each item of relief granted ee injury will be

inflicted upon complainant by the denial or relief than will be inflicted

upon defendants by the granting of relief;

“(d) That complainant has no adequate remedy at law; and

“(e) That the public officers charged with the duty to protect com-

plainant’s property are unable or unwilling to furnish adequate protec-

tion.” 29 U.S.C.A. §107

36

road Company, et al., supra. As footnote 24 to the opinion

in that case observes:

“The Norris-LaGuardia Act has been held to pre-

vent the issuance of an injunction in a railway labor

case involving a ‘major dispute.’ Brotherhood of Rail-

road Trainmen v. Toledo, P. & W. R. Co., 321 USS.

50.” (353 U.S. at p. 42.)

The differences between major disputes which must still

be settled through traditional processes of agreement and

minor disputes which the National Railroad Adjustment

Board has been empowered finally to resolve has been

elaborately discussed in Elgin, J. & E. R. Co. v. Burley,

1945, 325 U. S. 711, 722, et seq., from which we quote

briefly :

“The first relates to disputes over the formation of

collective agreements or efforts to secure them. They

arise where there is no such agreement or where it is

sought to change the terms of one, and therefore the

issue is not whether an existing agreement controls

the controversy. They look to the acquisition of rights

for the future, not to assertion of rights claimed to

have vested in the past.

“The second class, however, contemplates the exist-

ence of a collective agreement already concluded or,

at any rate, a situation in which no effort is made to

bring about a formal change in terms or to create a

new one. The dispute relates either to the meaning

or proper application of a particular provision with

reference to a specific situation or to an omitted case.

In the latter event the claim is founded upon some

incident of the employment relation, or asserted one,

independent of those covered by the collective agree-

ment, e.g., claims on account of personal injuries. In

37

either case the claim is to rights accrued, not merely

to have new ones created for the future.” (325 U.S.

at p. 723.)

In the present case, collective agreements were in effect

between the Railroad Companies and each of the Brother-

hoods. The Brotherhoods claim that those agreements pro-

vide for notice and negotiation concerning establishment

of or changes in district runs or numbers of crews assigned

to them, with resolution of differences by Committees or

officials designated in the collective agreements, and with

the right of either party to invoke the services of the Na-

tional Mediation Board. Upon the theory that the changes

effected by Orders 119 and 120 amount to changes in

agreements affecting rates of pay, rules or working con-

ditions, the Brotherhoods claim that the Railroad Com-

panies have violated Section 6 of the Railway Labor Act,

45 U.S. C. A. $156, by not following the procedure therein

prescribed. The Railroad Companies claim that the exist-

ing agreements relate to establishment of service, not to

changes or rearrangements of service long established, and

that they had retained their powers of management to

change terminals and rearrange runs when business or

changed conditions justify.

Without intimating any view as to their validity, we

think it clear that the respective contentions of the Rail-

road Companies and of the employees are based upon exist-

ing agreements; their claims are to rights accrued and not

to have new rights created for the future. The dispute is

thus a “minor” dispute, the resolution of which is com-

mitted to the National Railroad Adjustment Board. Pri-

38

mary jurisdiction of that Board cannot be defeated by the

emphasis with which any party asserts that its position is

clearly the only rightful one, nor would it be appropriate

for this Court to discuss the relative merits of questions

which must be decided by that Board.

We conclude that the district court had jurisdiction to

grant the preliminary injunction against a strike in this

labor dispute in order to protect the primary jurisdiction

of the National Railroad Adjustment Board to resolve the

dispute.

Turning now to the appeal of the Railroad Companies,

we do not find it necessary to decide whether the order

of which they complain was a preliminary mandatory

injunction against them or simply a condition upon which

they were granted a preliminary injunction against the

defendants. Whether injunction or condition, the order

directed the Railroad Companies to restore and maintain

conditions affected by their General Orders 119 and 120

to the conditions which existed prior to the effective date

of such orders, or, at the election of the Companies, to pay

the employees adversely affected by such orders the same

amounts they would have paid such employees had the

changes made by such orders not been effected. If we accept

the premise, heretofore discussed and decided, that the

dispute precipitated by General Orders 119 and 120 was a

minor dispute, which the National Railroad Adjustment

Board alone had jurisdiction to resolve, then it is clear

that the district court could not pass any sort of prelimi-

nary judgment upon the merits of that dispute. That kind

39

of jurisdiction denied to the district court by the provisions

of the Railway Labor Act cannot be exercised under the

guise of discretionary equity powers to impose reasonable

conditions upon the grant of an injunction, of requiring

the plaintiff Railroad Companies to come into equity with

clean hands, or upon any other theory whatsoever. To hold

otherwise would permit the district court, in every case

where either a railroad company or a labor organization

seeks an injunction to protect the jurisdiction of the Na-

tional Railroad Adjustment Board, to lift itself by its

bootstraps into some kind of jurisdiction to pass prelimi-

nary judgment upon the merits of disputes committed to

the exclusive jurisdiction of the Board.

That part of the judgment of the district court of De-

cember 18, 1958, requiring the restoration and mainte-

nance of the status quo or the optional alternative pay-

ments, is therefore vacated; and, as thus modified, said

judgment is affirmed.

MODIFIED AND AFFIRMED.

A true copy

Test:

/3/ EDWARD W. WADSWORTH

EDWARD W. WADSWORTH

Clerk, U. S. Court of Appeals, Fifth Circuit

New: Orleans, Louisiana

MAY 15 1959

(SEAL)

41

APPENDIX B

JUDGMENT

Extract from the Minutes of April 20, 1959.

No. 17580

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, et al.,

versus

THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS, et al.,

(AND REVERSE TITLE).

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Northern District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that that part of the

judgment of the district court of December 18, 1958, re-

quiring the restoration and maintenance of the status quo

or the optional alternative payments, in this cause be, and

the same is hereby, vacated; and, as thus modified, that

judgment be, and it is hereby affirmed;

It is further ordered and adjudged that appellees-appel-

lant, The Brotherhood of Locomotive Engineers, and others,

be condemned in solido to pay the costs of this cause in this

Court for which execution may be issued out of the said

District Court.