Amicus Curiae Brief — Brotherhood of Locomotive Engineers v. Chicago, Rock Island & Pacific Railroad

Supreme Court brief1966

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Text

' “State Minimum Crew Laws Have Been Super-

_seded by Federal Regulation

- subject matter covered by the Arkansas stat-

utes

. The action taken pursuant to Public Law

/ 88-108 is inconsistent with the state statutes. .

- 3. The contentions of appellants based upon the

- legislative history of Public Law 88-108 are |

4 Appellants’ arguments based upon the pur-

ported safety justification for the minimum

The Rules Established by the Award Will -Con-

tinne to Govern the Manning of Trains, After -

Expiration of the Two-Year Period During —

Which the Award Is in Force, Until Those Rules

A 1. The rules established by the Award will govern

_ the manning of trains until changed through

~ eollective bargaining

2. State minimum crew laws have been super-

Bpowndix I—Members of National Railway.

_ Labor Conference

Appendix II—1965 BLF&E Notice of Proposed

: — in Rules

ii INDEX

Appendix III—1965 BRT Notice of Proposed

Cumpuen in Tiles. 2. 2 ee se 12

Appendix [V—Crew Consist Agreement of Jan-

WEY Gs SU ie A 14

TABLE OF AUTHORITIES CITED

CASES:

Akron, C. &Y.R. BO, v. Public U. Comm’n, Ct. Com!

Pleas, Preeiiin Cty; Olio: 3

Brotherhood of L. F. & E. v. Chicago, B. & Q. R. Co.,

225 F’. Supp. 11 (D.D.C. 1964), aff’d 331 F. 2d 1020

(D.C. Cir. 1964), cert. den., 377 U.S. 918 (1964). 15, 23, 45

Brotherhood of Railroad Trainmen v. Chicago, M. St.

P. & Pac. R. Co., 237 F. Supp. 404 (D.D.C. 1964),

remanded, 345 F. 2d 285 (D.C. Cir. 1965)......... 50

California v. Taylor, 353 U.S. 553 (1957).... . 19, 29, 33,47

Chicago, Etc. R. Co. v. Acme Freight, 336 U.S. 465

Re er oe Cee Pee diced eens 29

Chicago, M., St. P. & Pac. R. Co. v. Pearson, No. 6214

(E.D. Wash.) DPE a ak ES cD eee 3

Chicago & N.W. R. Co. v. LaFollette, 135 N.W. 2d

Pe CU A ee EN, 3

Florida Lime ¢ Avacado Growers, Inc. v. Jacobsen,

Meee ee, Pe NS 25

Hines v. Davidowitz, 312 U.S. 52 (1941)............ 28

Manning v. “American Airlines, 329 F. 2d 32 (2d Cir.

DU a ah ee dae ke. 47

Missourt Pacific R. Co. v. Norwood, 283 U.S. 249

ec OES eee ie 2 oF ia 60, ars eee a 19, 34

Napier v. Ailontic Coast Line, 272 U.S. 605 (1926).. 2

New York Central R. Co. v. Lefkowitz, 259 N.Y.S. 2d

76 (Sup. Ct. Westchester Cty., N.Y. 1965)....... 3

New York Central R. Co. v. Public Svc. Comm’n,

Super. Ct. Marion Cty., Ind. (1965).............. 3

New York Central R. Co. v. Winfield, 244 U.S. 147

OUR kha ee. Gee EER Bok een x: 32

Northern Pac. R. Co. v. Washington, 222 U.S. 370

rd oe Cee os coed ows OS 32

Pennsylvania R. Co. v. Public Service Comm’n, 250

PI re OR: oe wae 33

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) 3.

lcs aks

pa Ay eae

INDEX

‘

Southern Pacific v. Arizona, 325 U.S. 761 (1945)... 1

Southern Pac. Co. v. Dickerson, 397 P. 2d 187 (Nev.:

6 eee MS 0 Oe elie eRe ee ek WT BES Oe eee Rey Maer e 29S Wa '6

$¢ &

Pry

“Bea BBRo RB Bw B

A eae eee ee

Swift & Co. v. Wickham, —— U.S. —— (No. 9, 1965

NN poy Stk u cae i wNic eden 0s ede Say esaees

Switchmen’s Union v. Erie L. R. Co., Sup. Ct. Erie

BT eR CONOG Doi sine oe so vaeanan ss ere

Teamsters Union v. Morton, 377 U.S. 252 (1964). ...

Teamsters Union v. Oliver, 358 U.S. 283 (1959) 19, 33, 37,

Terminal Ass’n. v. Trainmen, 318 U.S. 1 (1943). ...

Texas v. Southern Pac. Co., 392 S.W. 2d 497 (Tex.

ee a OD eas Lint S.A

Wilson v. New, 243 U.S. 332 (1917)................

SraTUTES AND CoNSTITUTIONAL PRovISIONS:

Federal Statutes:

National Transportation Policy, 54 Stat. 899

(1940), 49 U.S.C. preceding $1.............. 4

Public Law 88-108, 77 Stat. 132, 45 U.S.C. follow-

OME MN ie ee OLA Ope passim

Railway Labor Act, 48 Stat. 1185 (1934), as

- - amended, 45 U.S.C. § 151 et seq.......... .. passim

State Statutes:

Ariz. Rev. Stat. § 40-853 (1965 Supp.)..........

Ark. Stat. Ann. §§ 73-720 through 722, 73-726

MEE PA CEM. eon cs eee. ts

Cal. Labor Code §4 6900.1-6903 (Dec. 1964 Supp.)

Ind. Stats. §§ 55-1327 through 1334 (1951).....

Me. Rev. Stat. Ann. §§ 35-1161................

_ Mass. Ann. Laws c. 160, § 185 (1959)..........

"Miss. Code §§ 7759-61 (1964 Supp.).............

. Nebraska, 1965 CCH Adv. Sess. Laws Reptr. 715

_ Nev. Rev. Stats. § 705.390 (1963)....... SPS

__ N.Y. Railroad Law §§ 54-a through 54-c (1952) . .

ND. Code §§ 49-13-09 through 49-13-13 (1965, .

NG se iva coco eters 3

Oo Wwwwmwwwwws

iv INDEX

Ohio Rev. Code $§ 4999.06-.07 (1954)..........

Ore. Sess. Laws c. 462,41 (1965 Supp.)........

Tex. Civ. Stats. Art. 6380 (1926).............,

Wash. Rev. Code $§ 81.40.010-.030............,

Wisc. Stats. §§ 192.25-.26 (1957)

Constitutional Provisions:

U.S. Const., Art. VI, Cl. 3 (Supremacy Clause),

MISCELLANEOUS:

Award by Arbitration Board No. 282............. passim

Executive Order No. 10891, November 1, 1960... ... 1

Executive Order No. 11101, April 3, 1963.......... 10

Hearings before the Senate Committee on Commerce

on §.J. Res. 102, 88th Cong., Ist Sess. (1963) (re-

ferred to as ‘‘Senate Hearings’’)....... 2, 12, % 14, 30,

’

Hearings before the Senate Committee on Commerce cai

on the Administration of Public Law 88-108, 89th

Cong., Ist Sess. (1965) (referred to as 1965 Sen-

ete Te ts oe Oa Pe ee 40

Hearings before the House Committee on Interstate

and Foreign Commerce on H.J. Res. 565 (referred

to as “‘House Hearings’’). .. 2, 10, 11, 12, 18, 14, 36, 41,49

Report of the Presidential Railroad Commission

Page

(1962) (referred to as ‘‘PRC Report’’)......... 6, 7, 36

Report to the President by Pmergency Board No. 154

(1963) (incorporated in House Hearings)........ 10

Report to the President on the Railroad Work Rules

Dispute by the Special Subcommittee of the Presi-

dent’s Advisory Committee on Labor-Management

Policy (1963) (incorporated in Senate Hearings,

House Hearings, and H.R. Rep. No. 713, 88th Cong.,

BU I a as . pre Ee yi ss 12

_ HR. Rep. No. 713, 88th Cong., Ist Sess. (1963) .. 12, 14, 29,

42, 45

' §. Rep, No. 459, 88th Cong., Ist Sess. (1963).... 14, 27, 30,

36, 45

H. J. Res. 665, 88th Cong., Ist Sess. (1963)......... 30

S. J. Res. 102, 88th Cong., 1st Sess. (1963)......... 30

109 Cong. Rec. (1963) ates ope 2, 14, 29, 30, 36, 41, 42, 44,49

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

Nos. 69 and 71.

RHOOD OF LOCOMOTIVE ENGINEERS, BROTHER ooD

OF LOCOMOTIVE FIREMEN AND ENG

HOOD OF RAILROAD TRAINMEN, ORDER OF RAILWAY CON-

DUCTORS AND BRAKEMEN, and SWITCHMEN’S UNION OF

NORTH AMERICA, Appellants,

CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY,

THE KANSAS CITY SOUTHERN RAILWAY COMPANY MIS-

ROBERT N. HARDIN, Prosecuting Attorney for the Seventh Judicial

Cireuit of Arkansas, and JOHN W. GOOD ON, Prosecuting Attorney

for the Eighth Judicial Cireuit of Arkansas, Appellants,

CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY,

THE KANSAS CITY SOUTHERN RAILWAY COMPANY, MIS-

SOURI PACIFIC RAILROAD COMPANY, ST. LOUIS-SAN FRAN-

CISCO RAILWAY COMPANY, ST. LOUIS SOUTHWESTERN

RAILWAY COMPANY, and THE TEXAS AND PACIFIC RAIL-

WAY COMPANY, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF ARKANSAS

BRIEF FOR THE NATIONAL RAILWAY LABOR

CONFERENCE AS AMICUS CURIAE

3 INTEREST OF THE AMICUS CURIAE

The National Railway Labor Conference, the amicus

curiae on whose behalf this brief is submitted, represents

the great majority of American railroads. Its function is

(1)

to assist these member railroads in connection with labor

relations problems and represent them in contract negotia-

tions that are national in scope. When Public Law &

108 (77 Stat. 132, 45 U.S.C. following § 157) was en.

acted, Conference members accounted for 92 percent of

the total railroad mileage in the United States, employed

94 percent of the industry’s employees, and owned 95 per-

cent of the total net investment in railroad plant and equip.

ment in this country.’ Corresponding percentages. today

are somewhat greater. (A list of the member railroads

appears in Appendix I hereto.)

The members of the Conference include nearly all of the

carriers that are subject to Public Law 88-108 and the Award

by Arbitration Board No. 282 rendered pursuant thereto,

Through its Chairman, who has served as a carrier member

of both the Presidential Railroad Commission and the Arti-

tration Board, the Conference has been the carriers’ princi-

pal spokesman throughout the dispute that culminated in

the Award by Arbitration Board No. 282.

The interest of the Conference in this case is two-fold.

In the first place, since many of its members operate in

states that have minimum crew laws’ and since other

states—and, indeed, municipalities—may at any time decide

to enact such legislation, the Conference has an obvious

and important stake in this Court’s decision whether such

laws are valid. This interest is particularly immediate for

1109 Cong. Ree. 15275; Hearings before the Senate Committee on

Commerce on §.J.Res. 102, 88th Cong., Ist Sess., p. 106 (hereinafter

referred to as Senate Hearings); Hearings before the House Committee

on Interstate and Foreign Commerce on H.J.Res. 565, 88th Cong., Ist

Sess.,:p. 200 (hereinafter referred to as House Hearings).

2In their brief, the labor organization appellants refer to these state

laws as “full crew laws.” (BLE Br. p. 8, n. 1.) Railroads frequently

refer to the same laws (for good reason) as “excess crew laws.” How-

ever, in this brief the less argumentative term “minimum crew laws” will

be used.

the carrier members that are parties to pending suits in-

volving minimum crew laws of several states other than

_ Arkansas,* states which have themselves filed briefs amicus

curiae in the case at bar. The minimum crew laws now on

the books in seven states * require the carriers to maintain

many jobs that Arbitration Board No. 282 has determined

do not serve either the public interest in ‘‘adequate and safe

transportation services’’ or any legitimate interest of the

el s

8 Switchmen’s Union v. Erie L.R. Co., Sup. Ct. Erie Cty., N.Y. (1965)

(New York law held preempted by P.L. 88-108), appeal pending, Ap-

' Division; New York Central R. Co. v. Lefkowitz, 46 Mise. 2d 68,

969 N.Y.S. 2d 76 (Sup. Ct. Westchester Cty. N.Y. 1965) (New York law

held not preempted), appeal pending, Appellate Division; New York Cen-

tral R. Co, v. Public Sve, Comm’n, Super. Ct. Marion Cty., Ind. (1965)

(enforeement of Indiana law enjoined), appeal pending, Indiana ——

Court; Chicago & N.W. R. Co. v. LaFollette, 135 N.W. 2d 268, -278

(Wise. 1965) (Wisconsin law held not preempted; now pending in lower

state courts on remand) ; Chicago M. St. P. & Pac. R. Co. v. Pearson, No.

6214 (B.D.Wash.) (Washington law; pending) ; Akron, C. @ Y. R. Co. v.

Public U. Comm’n, Ct. Com. Pleas, Franklin Cty., Ohio (Ohio law; pend-

ing). Also, the Texas minimum crew laws have recently been held to be

in a decision that is now final, Texas v. Southern Pac. Co.,

992 S.W.2d 497 (Tex. Civ. App. 1965) (alternative holding), writ of

error refused “no reversible error,” Texas Supreme Court.

4General minimum crew laws currently are extant in seven states—

Arkansas, Indians, Massachusetts, New York, Ohio, Washington, and

Wieeonsin: Ark, Stat. Ann. §§ 73-720 through 722, 73-726 throngh 729

(1957) ; Ind. Stats. §§ 55-1327 through 1334 (1951); Mass. Ann. Laws c.

160, § 185 (1959) ; N.Y. Railroad Law §§ 54-a through 54-c (1952); Ohio

Rey. Code §§ 4999.06.07 (1954); Wash. Rev. Code §§ 81.40.010-.030 ;

Wise. Stats. §§ 192.25-.26 (1957). Laws in Nevada and Texas have been

held to be applicable only to steam-powered operations: Southern Pac. Co.

¥. Dickerson, 397 P.2d 187 (Nev. 1964) (Nev. Rev. Stats. § 705.390

(1963); Texas v. Southern Pac. Co., supra (Tex. Civ. Stats. Art. 6380

(1926)) (alternative holding). Minimum crew laws have been’ repealed

entirely in Mississippi: Miss. Code §§ 7759-61 (1964 Supp.). The portions

of minimum crew laws that apply to freight and switching operations have

been repealed in Arizona, California, Nebraska, North Dakota, and Ore-

gon: Ariz, Rev. Stat. § 40-853 (1965 Supp.) ; Cal. Labor Code §§ 6900.1-

6903 (Dec. 1964 Supp.) ; 1965 CCH Adv. Sess. Laws Reptr. (Nebraska)

715; N.D. Code $§ 49-13-09 through 49-13-13 (1965 Supp.); Ore. Sess.

Laws ¢, 462, § 1 (1965 Supp.). Maine has a law that applies only to steam-

powered passenger trains. Me. Rev. Stat. Ann. § 35-1161. —

carriers’ employees. Thus the substantial burden imposed

on the members of the Conference by these laws hampers

the carriers’ efforts to realize fully the goal of the National

Transportation Policy—‘‘safe, adequate, economical, and

efficient service and . . . sound economic conditions

the several carriers.’’ (54 Stat. 899, 49 U.S.C. preceding

§1.)

In addition, the carriers represented by the Conferenee,

wherever they operate and whatever this Court’s decision

as to the validity of state minimum crew legislation, may be

directly affected by any statements that the Court may make

concerning the work rules that will govern the manning of

trains upon expiration of the two-year period during which

the Arbitration Award ‘‘shall continue in force.”’ (PL,

88-108, $4.) Certain arguments advanced by appellants

appear to be based upon the erroneous premise that when

the Award ‘‘expires’’ the work rules in effect prior to the

Award will be revived, thereby requiring the carriers to

hire thousands of men to fill positions eliminated under the

Award. But, as we shall show, the work rules prescribed

in the Award will continue to regulate the manning of trains

after expiration of the two-year period until those rules

are changed after collective bargaining conducted pursuant

to Section 6 of the Railway Labor Act.

We have had the opportunity to examine carefully the

brief of appellees and we agree with the arguments

presented therein. We shall not repeat in detail the argu-

ments so effectively advanced by appellees, although we

think it worthwhile to supplement appellees’ statement of

the case in certain respects and to underscore certain

elements of appellees’ analysis that we consider particularly

important. We do, however, treat more fully the question

of the significance to be given the duration of the Award in

states not having minimum crew laws. Although that ques-

tion is a collateral matter in this case and. hence naturally

not central to the arguments of thé parties, the manner in

which the Court treats the issue may be of paramount

jmportance to the members of the amicus entirely apart

from the outcome of this particular litigation.

STATEMENT

The basic issue in this case is the correctness of the lower

court’s decision that two Arkansas minimum crew laws are

invalid under the Supremacy Clause of the Constitution

because they are superseded by Public Law 88-108 and the

Award of Arbitration Board No. 282 thereunder. If the

Congress and the Board acted upon a subject matter that

is also the subject matter of the minimum crew laws, and

if this federal action resulted in manning regulations in

conflict with the minimum crew laws, those laws cannot

stand.

While we believe that the character of the Congressional |

mandate to the Arbitration Board and the inconsistency

of the Board’s Award with the state laws is clearly disclosed

by the terms of the statute and the Award, at the same time

we cannot agree that ‘‘it seems pointless to supplement the

countless reviews of the history of the dispute’? (BLE Br.

p.14n.7). The statute and the Award did not represent a

novel solution conceived by the members of the 88th Con-

gress and the Board. Rather, the legislation and the

Award bear the imprint of years of troubled negotiation

by the parties and of thoughtful examination by distin-

guished public bodies. In consequence, the sketchy state-

ments of fact supplied by the appellants simply will not

serve. Rather, it is the statement set forth in the appellees’

brief that brings into clear focus the purpose of the Con-

gress in enacting Public Law 88-108. We believe it may be

useful to the Court for us to add certain additional facts

with which the amicus is especially familiar because’ of its

role as railroad negotiator.

The 1959 and 1960 notices that, in a formal manner,

marked the beginning of the dispute that led to the enaet.

ment of Public Law 88-108 represented the culmination

of years of controversy respecting the reduction of man.

power made possible by modern technology. When the

notices were served, the use of firemen was required on

most diesel engines by rules stemming from the National

Diesel Agreement of 1937 between many carriers and the

BLF&E. Thus, engines were ordinarily manned by an en-

gineer and a fireman, and in addition, in the case of road

freight trains, by a head brakeman. However, the 1937

agreement had been signed at a time when few of the car.

riers involved had had much experience with the use of

diesels—only 218 of 43,812 locomotives then in use were

diesels—much less with such later devices as ‘‘deadman

controls,’’ which halt the engine in the event of the disability

of the engineer. Report of the Presidential Railroad Com-

mission (1962), pp. 36, 38 (hereinafter cited ‘‘PRC Re-

port’).

It soon became evident that, at least in road freight

trains where there were three men in the cab and where the

fireman no longer was occupied by stoking the boiler, it

did not make much sense to have three men to perform the

tasks that previously the head brakeman had shared with

the engineer. And while on yard engines engaged in

‘switching operations there were generally only two men

in the cab, the carriers were of the view that the engineer

alone could safely operate the engine because operations

were conducted at low speed and were controlled by hand

‘signals from men on the ground.

The situation as to the ‘‘consist’’ of train crews—te.,

the members of the crew other than the engineer and the

smear semncieinats Meidiats When the 1959 and 1960

notices were served, the consist of train crews—putting

aside minimum crew law states—was governed by a variety

of local agreements, and sometimes was left entirely to

managerial discretion. Many crews consisted of one con-

ductor and two trainmen. But many others included fewer

than two trainmen, while some crews included more. The

carriers were convinced that here, too, in many ¢ireum-

stances existing agreements required more men f .n neces-

sary to insure safe operation, especially in viv 7 of such

developments as the introduction of Centre’ sed Traffic

Control, the increasingly widespread use of ra .o- telephone,

improvements in braking and signal systems and the mod-

eraization of classification yards.

The railroads’ judgment has been vir icated by every

public body that examined this problem i the context of the

1959 and 1960 notices. Apart from the Arbitration Board

itself, the most important of these p blic bodies was the

Presidential Railroad Commission aj pointed by the Presi-

dent in 1960 (Exec. Order 10891). Tuat Commission, which

was composed of a distinguished sroup headed by Judge

Simon H. Rifkind, conducted p. extensive hearing that

produced a mass of evidence,’ ‘xe bulk of it relating to the

contentions of the brotherhoo¢ s respecting safety and work-

load. In its Report to te President, dated February

26, 1962, it stated that ‘‘ar elaborate system of rules, prac-

tices, and decisions, dev: oped over a period of more than

100 years, governs th. manning of American railroad en-

gines and trains [and] the assignment of railroad operating

employees to their daily tasks’’ (p.2). This “‘common law’’

of railroad labor relations, the Commission concluded, had

‘*not: been sufficiently flexible to permit many changes jn

manning and assignments which are appropriate in the light

of the technological and economic revolutions that haye

taken place’’ (p. 6). Consequently, it recommended gen.

erally that ‘‘the rules governing the manning of engines and

trains and the assignment of employees be revised to permit

the elimination of unnecessary jobs and at the same time

to safeguard the interests of the individual employees ad.

versely affected’’ (p. 7).

The ‘‘basic considerations’’ which governed the Commis.

sion in making specific recommendations were ‘‘that the

Nation is entitled to a safe and efficient rail-transport

system, that management should be accorded reasonable

opportunity to install technological improvements, that

employees are entitled to work . . . under conditions which

promote efficiency, safety, and security, and that where

improvements in technology leading to greater productivity

adversely affect employees, adequate provision must be

made for their welfare’? (p. 9). In this connection, the

Commission observed that ‘‘an efficient, safe, and modern

railroad system in muscular trim for effective competition,

will provide better employment-opportunity than a system

headed toward decline by its own obsolescencc”’ (p. 11).

In this context, the Commission made recommendations

as to the specific issues before it. With respect to the use of

firemen, it observed that the basic dispute concerned the

essentiality of the fireman’s job ‘‘for the safe and efficient

operation of diesels in road freight and yard operations”

(p. 37). Accordingly, the Commission analyzed each of the

fireman’s basic tasks in terms of safety and efficiency. Of

these tasks, the brotherhoods relied most heavily upon the

maintenance of a ‘‘lookout’’ on the left-hand side of the

cab (including the passing of signals to the engineer). The

Commission unequivocally rejected the brotherhoods’ con-

tentions, stating that ‘‘the fireman’s lookout function .

is not essential to the safe and efficient operation of vel

freight and yard diesels’’ (p. 40). On freight diesels, which

were invariably manned by three persons, the lookout func-

tion could be performed by the head brakeman, who had

shared it with the fireman in the past (pp. 38-40). And ‘‘on

yard diesels, [the fireman’s] function in passing signals is

minimal. In view of the slower nature of yard operations,

which proceed under signals from members of the ground

crew, the precautions taken by other members of the crew

should suffice for the safety of men and equipment. The

only exception .. . is in those rare occasions when the yard

engineer is disabled while the diesel is in motion’’ (p. 40).

And those situations could be met by requiring use of dead-

man controls (pp. 43-44).°

_ The Commission concluded, in light of these findings,

that although it was not possible to say ‘‘that nowhere in

the United States is there in operation a single run which

requires the services of a [fireman] to render it safe and

efficient,’’ such situations would be so nearly ‘‘unique’’ that

they should not be made the subject of a general rule re-

quiring the use of firemen (pp. 45-46). Accordingly, the

Commission recommended that the existing rules requiring

the use of firemen be abrogated and that, subject to measures

for the protection of men already employed—retention of

firemen with more than ten years’ service and substantial

separation allowances to others—the carriers should be per-

mitted in their discretion to discontinue firemen’s assign-

ments (pp. 48-50).

_ As to the consist of train crews, the parties’ contentions

once again revolved about ‘‘the matter of safety of opera-

*8imilarly, the Commission found that mechanical duties performed

Para “are relatively minor, and are not essential to safe operation”

(p. 43), and that on road freight diesels in the event of disability of the

engineer the head brakeman could “easily stop the train” (p. 43).

eto f

ak a

tions’’ (p. 56). The Commission determined that the exigt.

ing rules, most of which had been developed more than 3)

years ago and some of which went back to the 19th century

(p. 55), had resulted in ‘‘some overmanning . . . but little

undermanning’’ (p..57). Accordingly, the Commission ree.

ommended that the carriers and the brotherhoods be allowed

to propose changes in the consist of specific crews, and that

if agreement could not be reached the disputes be arbitrated

by special tribunals which should apply the basic criteria

of ‘‘safety of operations’’ and appropriate workload (p.

59). The men already employed would be protected in

various ways, as in the case of firemen (p. 60).

These findings and recommendations were, of course, at

odds with state minimum crew legislation, as the Commis-

sion recognized. The Commission stated: ‘‘[MJost of the

legislation of this kind was enacted prior to 1920. These

laws apparently fail to envision modern railroad operations.

We feel that our recommendations with respect to this issue

{consist of train crews] should have nationwide applica-

tion.’’ Just ‘‘how the restriction of those laws may be

lifted,’’? however, the Commission did not undertake to.

answer (p. 64).

While the carriers accepted the Commission’s recom-

mendations, the brotherhoods did not. Therefore, after

Mediation Board efforts failed and the brotherhoods re-

jected the Board’s proposal that the dispute be arbitrated,

the President established, pursuant to Section 10 of the

Railway Labor Act, an Emergency Board consisting of

Judge Samuel I. Rosenman, Clark Kerr, and Nathan P.°

Feinsinger (Exec. Order 11101).

The Emergency Board’s recommendations, in general,

were the same as those of the Presidential Railroad Com-

mission. In its report of May 13, 1963,’ the Board stated

7 The report is set out in full in the House Hearings, pp. 42-49.

that: the basic issue was whether the brotherhoods were

right i in contending that their proposals respecting manning

were essential for the protection of employees ‘‘against

arbitrary, unsafe, and unreasonably onerous working con-

ditions, and for necessary security and stability of employ-

ment... .’’ House Hearings, p. 43. With respect to the

use of firemen, the Board noted that ‘‘[t]he carriers have

always accepted the continued use of firemen on passenger

diesel operations, where there are now only two men in the

cab,’’ but that, as to freight diesels, the carriers maintained

‘that the ‘‘work performed by firemen. . . . —left-hand look-

out, the communication of signals to the engineer, and the

detection and correction of locomotive malfunctions’’—

“ean be combined with other work performed by employees

in other classifications.’’ The brotherhoods, moreover, did

“not contend that there are no jobs presently occupied by

firemen which cannot be abolished.’’ Thus, the Board

observed, ‘‘The basic problem . . . becomes one of establish-

ing a procedure for ascertaining those situations, if any,

which will continue to require the presence of a fireman in

order to assure adequate safety, and to prevent placing an

undue burden upon the remaining crew members.’’ House

Hearings, p. 45.

The Board’s recommended solution was to permit the

carriers to eliminate firemen’s jobs, subject to a right of

protest by the brotherhoods as to certain ‘‘key’’ categories.

If a protest could not be resolved through negotiation, it

would be settled by arbitration. For persons already em-

ployed, the Board recommended protective provisions that

~~ generally paralleled’ those of the Presidential Commission.

House Hearings, pp. 45-46.

-As to crew consist, the Board’s recommendation was

again basically the same as that of the Commission. That is,

the parties should negotiate locally, pursuant to national

guidelines ‘‘based on considerations of safety and efficiency —

and of undue burden on other members of the crew,’ and

failing agreement there should be arbitration. Persons

already employed could not, however, be released —_ by

attrition. House Hearings, p. 47.

Again, the carriers accepted the Board’s proposals but

the brotherhoods rejected them. The President then pro-

posed arbitration by Mr. Justice Goldberg—accepted by the

carriers, rejected by the brotherhoods. The President next

requested a report from a special subcommittee of the Pres-

ident’s Advisory Committee on Labor-Management Policy.

That report, dated July 19, 1963, also recognized that a fair

settlement of the manning disputes involved, in essence, the

finding of a solution that would serve all the interests at

stake—the nation’s, the carriers’, and the employees’—in

‘‘safe and efficient operations,’’ with fair treatment of em-

ployees already in service. See H.R. Rep. No. 713, 88th

Cong., 1st Sess., pp. 8-10; Senate Hearings, p. 17; House

Hearings, pp. 14-15.

Three days later the President asked the Congress for leg-

islation. His message called attention to the reports of the

Presidential Commission, the Emergency Board, and the

subcommittee of the Committee on Labor-Management Pol-

icy, and stated that his objective was to provide a solution

for the parties’ dispute which, among other things, ‘‘recog-

nizes both the public interest in promoting railroad eff-

ciency’’ and ‘‘the public’s concern for those adversely

affected by a settlement.’’ Senate Hearings, p. 8; House

Hearings, p. 9. He proposed that an ‘‘expert body should

pass on these proposed rule changes in the light of public

service and safety’’ and should make provision for the

welfare of employees who might otherwise be adversely

affected. That body should be ‘‘directed to use to ad-

vantage the work of the two previous panels which re-

ceived evidence on these matters’’—the Commission and the

Emergency Board—and should ‘‘judge the effect of each

proposed rule on the adequacy and safety of transportation

service to the public and on the interests of both parties.”’

Senate Hearings, p. 9; House Hearings, p. 9. He quoted

the Commission’s statement that ‘‘{a]n adequate program

to realize the benefits of advancing technology in the public

interest . . . must include both reasonable opportunity for

management to achieve change, and for workers to enjoy

feasonable protection against the harsh effects of too sudden

change. Progress plus protection must be our choice. . . .”’

Senate Hearings, p. 10; House Hearings, p. 10. And he

also cited the Emergency Board’s view that there is a

“necessity for progress in the railroad industry, for ef-

ficiency in order to meet the challenge of competing indus-

tries,’ but that a solution must ‘‘at the same time...

preserve not only strong unions for the employees, but for

the individual worker a continued life of usefulness to him-

self and his family, and to society itself.’’ Senate Hear-

ings, p. 11; House Hearings, p. 10. The President con-

eluded the message by urging the ‘‘srompt enactment’’

of the legislation to “help launch a new national effort to

meet the growing challenge of worker displacement by

technological and economic change,’’ an effort that would

“above all . . . benefit the public interest, and that is our

primary test.’’ Senate Hearings, p. 13; House Hearings,

ig Sele

This dominant note sounded by the President—that the

task was to serve the public interest by solving the problem

of automation in a way that would permit the railroads to

provide efficient and safe service and at the same time

protect employees from hardship—continued as the theme

of the congressional hearings. Thus the committees ex-

plored the interests that had to be taken into account—the

nation’s and the parties’ in ‘‘progress * plus protection,’

and safety of railroad operations.”°

Finally, after last minute efforts by the Labos Deni

ment to settle the dispute failed, the Congress had to aet in

order to prevent a nationwide strike scheduled for Angust

29, 1963. The result was Public Law 88-108. While the

statute differed from the President’s bill in certain respeets

—e.g., an ad hoc board replaced the Interstate Commerce

_ Commission for reasons set forth in the appellees’ brief—

there was no change in the basic purpose of the legislation.

Thus, the years of dispute, investigation, and recommen-

8 The need to eliminate assignments rendered obsolete by technological

change in the railroad industry was explored in detail with witnesses for

the Administration and the carriers. E.g., Senate Hearings, pp. 45, 65, 79-

80, 92, 109, 111, 117, 121, 124, 126, 127, 128, 137-139, 227-228,

235-237, 242-244, 244-245, 252-255, 354-356, 360, 368-369, 373-374, 411;

House ‘Hearings, pp. 37-40, 182-185, 186-190, 204-206, 212-213, 217-

218, 248-249, 250-257, 261-266, 306-313, 400-401, 408-410, 417-418, 427-

428, 527-529, 542, 545-547, 574. Further indications of Congress’ con-

cern with the matter appear in the Senate debate. 109 Cong. Ree. 15048,

15049, 15050, 15051, 15057, 15122-23; 15276.

®The need to provide for the protection of employees already in

service was also explored extensively with government and carrier wit-

nesses. E.g., Senate Hearings, pp. 45, 46, 64, 70-71, 99, 107-108, 109,

110, 123, 366, 402-403, 405-406, 408-410; House Hearings, pp. 37-38,

39-40, 51-52, 57-58, 62-63, 66-67, 70-71, 74-76, 91-92, 101, 117-167, 172-

173, 186, 206-207, 214, 216, 242, 243, 258-260, 415-417, 425-427, 534-535,

‘B50, 574-575, 576, 582-583, 585, 586, 591-592, 612. This matter, too,

received attention in the committee reports and was discussed during the

subsequent debates. See H.R. Rep. No. 713, 88th Cong., 1st Sess., pp. 8,

9, 23-24, 25-26; S. Rep. No. 459, 88th Cong., Ist Sess., p. 4; 109 Cong.

Rec. 15966-67; see also 109 Cong. Ree. 15903, 15133.

10 The effect of any legislation on the safety of railroad operations was

also the subject of much testimony during the hearings. E.g., Senate

Hearings, pp. 72, 85-86, 98, 99, 100, 110, 118, 121, 122, 124, 125, 482-

488, 491-498, 501, 504-505, 528, 530, 536, 630-634, 709-712; House Hearings

pp. 50, 107-108, 110-111, 182-185, 213, 241-242, 250-257, 265, 421, 548,

618, 647, 706-723, 738-767, 803, 805, 815-816, 820, 996-999. Congres’

concern with safety was indicated also in the House Report and during

the debates. H.R. Rep. No. 713, 88th Cong., 1st Sess., pp. 8, 9, 21-22,

24-25; 109 Cong. Rec. 15903, 15962, 15127, 15128, 15141-42.

dations were distilled in Section 7(a), which directed the

Board, in the language of Section 3 of the President’s

pill, to ‘‘give due consideration to the effect of the pro-

posed award upon adequate and safe transportation serv-

jee to the public and upon the interests of the carrier and

employees affected,’’ as well as to the narrowing of the

ateas of disagreement accomplished in bargaining and

mediation. The Board faithfully executed this mandate, as

the courts have held in rejecting petitions by the brother-

hoods to impeach the validity of the Board’s Award.

Brotherhood of L. F. @ E. v. Chicago, B & Q. R. Co. 225

F. Supp. 11 (D.D.C. 1964), aff’d, 331 F. 2d 1020 (D.C. Cir.

1964), cert. den., 377 U.S. 918 (1964) .™

The conclusions reached by Arbitration Board No. 282

and the provisions of its Award have been fully described in

appellees’ brief, and need not be repeated here. We empha-

size only that the Board generally agreed with the conclu-

sions of the Presidential Commission and the Emergency

Board concerning the reductions in the manning of trains

made possible by technological advances without unduly

affecting the safety of operations, and that the provisions of

the Award generally correspond with the recommendations

made by the Presidential Commission and the Emergency

Board despite some differences in detail.

Thus, the Arbitration Board did, as its mandate required,

give prime attention to the requirements of safety—the

problem that, as we have indicated, so deeply engaged the

attention of the public bodies that were the lineal ancestors

of the Board. The proceedings before the Board were,

in the language of its Neutral Members, ‘‘pervaded’’ with

“concern with safety’? (Op. Neut. Members, R. 116).

" The neutral members of the Board were Ralph T. Seward, Chairman,

Benjamin Aaron and James J. Healy; the carrier members were J. E.

Wolfe 7 Guy W. Knight; and the union members were H. E. Gilbert

It is this problem—the minimum manning requirements

consonant with reasonable assurances of safety—that, is

also the sole purported justification for the state minimum

crew laws. And the findinys of the Arbitration Board

respecting the minimum number of firemen that should be

required as well as the findings of the special boards respect.

ing the minimum crew consist—findings made with due

regard to safety of operations—are squarely in conflict with

the requirements of the state minimum crew laws enacted

many years ago when conditions in the industry were very

different from present-day conditions.

SUMMARY OF ARGUMENT

The fundamental problem of automation—securing the

benefits of modern technology without producing wholesale

dismissal of employees—is addressed in the railroad indus-

try by Arbitration Award No. 282. The basic thrust of the

Award is that employees who have devoted any substantial

part of their careers to the railroads should not be required

to look elsewhere for work, but that, as those employees

leave, the railroads should not be required to fill positions

that are no longer needed. State minimum crew laws fore-

close the possibility of adjusting the manning of trains to

modern technology im that eminently sensible manner.

The result is unsound as a matter of policy-and improper

as a matter of law.

I. 1. The subject matter of the Arkansas laws and the

awards rendered pursuant to Public Law 88-108 is the same:

the number of men to be assigned to the crews of trains.

There is no exception in either the federal statute or the

awards for states that have minimum crew laws.

2. The federal awards and the Arkansas laws are in

eonflict, and therefore the Arkansas laws cannot stand. The

federal awards authorize the elimination of 90% of fire-

men’s assignments and the use of two or fewer brakemen on

trains operated by appellees, while in general the Arkansas

laws require the use, in Arkansas, of a fireman and three

‘brakemen on each such train. The argument that there is no

without violating the federal awards assumes erroneously

that the only purpose of the federal minimum manning

requirements is to prevent undermanning. However, an

equally important purpose, implicit in the standards pro-

vided by Section 7(a) of Public Law 88-108, is to secure

the benefits that acerue from the elimination of overman-

ning. The Arkansas laws are an obstacle to the execution

of that purpose. The argument that there is no conflict

because the Congress allegedly sought only to prevent a

strike likewise misreads the purpore of the federal legisla-

tion. Because the prevention of a strike necessarily would

affect the underlying manning issues, Congress directed a

federal board to resolve those issues in accordance with

the national interest. The purpose disclosed by that direc-

tion is frustrated by the continued application of the Arkan-

sas laws.

3. The legislative history of Public Law 88-108 does

not support. the contention that the Congress intended an

exception for minimum crew law states. In view of the

importance of such an exemption and its inconsistency with

the overall purposes of the federal legislation, such an ex-

emption should not be implied im the absence of a clear

demonstration that it was intended by the Congress as a

whole. Such a demonstration is not provided by the com-

ment in the report of the House Committee on Inter-

state and Foreign Commerce, amplified during the floor

debate by the Chairman of that Committee, to the effect

that the measure would not affect state manning laws. First,

the Chairman of the Commerce Committee was imme-

diately challenged by the Chairman of the Rules Com.

mittee, whose Committee had also considered the bill and its

effect on state manning laws; thus, it cannot be said that the

House as a whole agreed with one view or the other. Sec-

ond, there is no reference to any exception for minimum

crew law states in the Senate report and debate, and the

Senate acted in the face of authoritative advice that if Con-

gress desired to avoid supersession it should amend the bill

so to provide; thus it cannot be said that the ‘‘intent”’ of the

Senate was not to preempt. Third, to the extent they dif-

fered, the bill eventually enacted was the bill adopted by

the Senate rather than the House Committee’s version.

Accordingly, the most persuasive evidence of the Congres-

sional intent is what the Congress actually did; and what it

did cannot be reconciled with the continued vitality of

state minimum crew laws.

4. The appellants’ reliance on a supposed ‘‘safety’’ justi-

fication for the Arkansas statutes is unsound. The sugges-

tion that the Court should not presume that the Congress

meant to override state ‘‘safety’’ legislation is inappro-

priate in an instance like this, in which the Congress deals

with the very subject matter of the state legislation, takes

safety into account, and reaches a determination inconsistent

with the state legislation. Moreover, it is now impossible to

establish that the Arkansas laws are reasonably related to

the requirements of safety, cf. Southern Pacific v. Arizona,

325 U.S. 761, 775-780 (1945), in view of the federal de-

termination that safety does not justify the manning levels

required by the Arkansas laws.

Equally unsound is the complex suggestion that the

Arbitration Award should be viewed as a collective bar-

gaining contract entered into pursuant to the Railway Labor

Act, and, accordingly, that the validity of the Arkansas laws

is established by a supposed ‘‘safety’’ exception to the

general rule that a collective bargaining agreement concern-

ing a matter as to which federal law imposes a duty to bar-

gain overrides inconsistent state laws. Teamsters Union v.

Oliver, 358 U.S. 283 (1959) ; California v. Taylor, 353 US.

‘53 (1957). Apart from the fact that it is no longer

| possible to establish a safety justification for the Arkansas

| laws, the Award is not simply a collective bargaining agree-

ment; it represents the considered judgment of a tribunal

created by the Congress upon the very subject matter with

which the Arkansas laws purportedly are concerned. More-

over, even if the Award is viewed as a railway labor collec-

tive bargaining contract, it nevertheless preempts the Ar-

kansas laws. The preemptive effect of the Award must be

tested under the Railway Labor Act and Public Law 88-108

in combination. The manning dispute which led to the en-

actment of Public Law 88-108 was one of the most difficult

economic disputes in the history of labor-management rela-

tions. The Preamble to Public Law 88-108, and the Presi-

dent’s Message to which Public Law 88-108 was the Con-

gress’ response, emphatically express the preference of

the Congress and the Executive for solutions to the man-

ning dispute ‘‘reached through collective bargaining.’’ In-

deed, the various statutory limitations on the scope of the

arbitration, on which the appellants rely so heavily, are

| expressions of that emphatic preference. Accordingly,

neither Missouri Pacific R. Co. v. Norwood, 283 U.S. 249,

258 (1931), which was decided under the Railway Labor

Act alone, nor the reference to state safety legislation

in Teamsters Union v. Oliver, supra, is controlling here.

Rather, the controlling precedent is the holding in Oliver

that ‘‘the paramount force of the federal law remains

even though it is expressed in the details of a contract

federal law empowers the parties to make, rather than in

terms in an enactment of Congress,’’ 358 U.S., at 296-297.

peas

II. The Award, as such, is in force for only two years,

Thereafter, the work rules established by the Award will

continue to govern the manning of trains until those rules

are changed through collective bargaining in the manner

. prescribed by the Railway Labor Act. However, argu-

ments advanced by the appellants imply the contrary—that

when the Award expires, the pre-Award rules will revive,

The importance of this issue goes far beyond any issues as

to preemption, for the manning rules in effect after the

expiration of the two-year period will affect all carriers

subject to the Award wherever they operate.

1. The Congress expected the Board to authorize the

elimination of substantial numbers of unneeded positions

and to provide generous separation allowances and long-

term wage guarantees for employees adversely affected.

Such provisions—which were included in the Award—are

wholly inconsistent with automatic revival of earlier rules.

The Congress did not intend that the railroads should pay

millions of dollars in separation allowances in order to

eliminate positions declared to be unneeded, only to be re-

quired after a few months to hire enough men to fill the

very same positions.

Rather, as stated in Section 3 of Public Law 88-108,

the Congress intended that the Award should be a ‘‘com-

“major disputes’ provisions of the Act, those rules re-

main in effect until they are changed in the manner pre-

geribed by the Act. The effect of a termination provision

js simply to free the parties to resume collective bar-

2. The principles just stated will govern the situation

following expiration of the Award in states that do not

have minimum crew laws. They also refute appellants’

contentions that preemption could not have been intended

“because of the supposedly ‘‘temporary”’ nature of the fed-

eral legislation, and that, if intended, preemption ceases

at the end of the two-year period. The Congress intended

a ‘complete and final disposition’’ of the original dispute

and the establishment of new rules reflecting contemporary

conditions, rules which would serve the justified interests of

the parties and the public and which would remain in effect

until changed through normal collective bargaining. Those

rules, both as established by the Arbitration Award and

as eventually modified through collective bargaining, must

be effectuated in minimum crew law states as well as else-

where if the Congressional intent is to be fully achieved.

At the heart of the legal issues raised in this case is a

public policy question of large consequence: whether the

effectiveness of a Congressionally sanctioned resolution of

labor problems produced by automation can be limited by

inconsistent state laws. The railroads and their employ-

ees share with other American industries both the anxieties

and the hopes generated by modern labor-saving technol-

tee secmemearesan othe an

earl

competitive position vis a vis other modes of transporta-

tion. And whatever may be the complete catalog of canges

for the inroads that have been made by the railroads’

competitors, there can be no dispute that excessive railroad

labor costs have been a major factor. In recent years vig.

orous management, together with radical innovations not

related to labor costs, such as ‘‘piggyback’’ service, have

measurably improved the position of the railroads. But

if the burden of excessive labor costs cannot be lifted, the

railroads will be unable to afford a service that reflects fully

the inherent advantages of railroad transportation, and the

public will suffer.

At the same time, the public interest, as well as the

interest of the railroads, embraces considerations other

than dollars, and therein lies the dilemma. If the railroads

were immediately to take full advantage of available tech-

nological changes, wholesale dismissal of employees would

result.

As we have indicated, the quest for a reasonable resoln-

tion of these competing considerations has troubled rail-

way labor negotiations since the advent of the diesel loco-

motive in the 1930’s, and the tensions have become ever more

aggravated as the pace of technological change has aceel-

erated. The Arbitration Award of Board 282, rendered

against the backdrop of the recommendations of the publie

bodies that explored the problem prior to the passage of

Public Law. 88-108, has given the first genuine promise

of a breakthrough.

The fundamental thrust of the Award, as of the recom-

mendations of the Presidential Commission and the Emer-

gency Board, is quite simple and, in the railroads’ view,

eminently generous to the employees.” It is that the em-

13The railroads do not stand alone in holding this view. The cosrt

which upheld the Award, for example, commented that the Board “ds

loyees. who have devoted any substantial part of their

orking lives to the railroads—over two years in the case

[firemen and any time at all in the case of other crew

; ould not be required to look elsewhere for

mployment, but on the other hand that the railroads should

ot, once those employees have left, be required to hire

ew employees to fill needless positions. While under this

cheme the railroads will be required to shoulder a very

re cost that, strictly from an economic point of view, is

mete, the railroads are not insensible of their obligations

oward the employees who have served them long and faith-

ully, as is evidenced by the railroads’ willingness to accept

he job protection provisions—as well as all other provisions

_of the recommendations of both the Presidential Commis-

jon and the Emergency Board. The promise held out to

he railroads is that, having undertaken that burden for

n interim period, ultimately they will be free to take full

advantage of existing technology.

While it is regrettable that the parties could not take

he first step in solving the automation problem without

t intervention, it is the first step that is the

hardest. The railroads are hopeful that the work rvles

But in seven states, minimum crew laws foreclose the

possibility of resolving, in the manner intended by the

Congress, the problem of adjusting the manning of crews

so as to afford the railroads and the public the substantia)

benefits of technological advances while insuring both the

safety of operation and the welfare of employees. That

is so even though, in view of the findings of Board 282,

of the special boards established under its Award, of the

Presidential Commission and of the Emergency Board,

there can no longer be any genuine doubt that these state

laws, however reasonable when passed, are now super-

annuated. Indeed, no appellant on brief has raised a voice

in defense of the soundness of state minimum crew laws.

The question, then, as a matter of labor relations policy,

is whether these archaic laws should bar the full realization

of the promise of Public Law 88-108, thereby hampering

the railroads in their efforts to provide the best possible

service and casting upon the people of all of the states the

attendant costs. In the first part of this argument, we

urge that such a result, which is so plainly undesirable as

a matter of common sense, is also insupportable as a matter

of law. .

We devote the last part of our argument to the question

whether, upon the termination of the two-year period of

the Award, the work rules prescribed by the Award are to

remain in effect until changed pursuant to Section 6 of the

Railway Labor Act or, instead, the old work rules are to be

automatically reinstated. The resolution of this issue will

affect operations in all states and will shortly be of critical

importance. Since some of appellante’ arguments errone-

ously imply that the old work rules will be reinstated, we

think the Court should be fully advised of the character of

the problem and of the reasons why the work rules pre-

seribed by the Award continue in effect after the expiration

of the two-year period until changed in the manner pro-

vided by the Railway Labor Act.”

L State Minimum Crew Laws Have Been Superseded by

Federal Regulation.

The appellees have assembled the precedent relevant to

the preemption issue and have analyzed the issue in detail.

While we agree with appellees’ argument and shall not at-

tempt to cover fully all of the relevant considerations, we

perhaps may assist the Court by a statement of our

views concerning some of the more significant aspects

of the case. ‘The dispositive questions appear to be:

Did the Congress in Public Law 88-108 take action with

respect to a subject matter that is covered by the Arkansas

statutes, and, if so, is the federal action inconsistent with

the state laws? We submit that those questions should be

answered in the affirmative and, consequently, that the Ar-

kansas minimum crew laws cannot stand.

1. The Congress took action with respect to a subject

matter covered by the Arkansas statutes. In Section 3 of

Public Law 88-108, the Congress directed the Arbitration

Board to make a ‘‘complete and final disposition of the .. .

tered upon determining the number of crew members that

are required by a variety of considerations and authoriz.

ing the carriers to eliminate all unnecessary positions, pro-

vided that safety of operations was secured and existing

employees were treated fairly. Thus the Congress re.

sponded to the President’s request for -action that would

‘‘help launch a new national effort to meet the growing

challenge of worker displacement by technological and eco-

nomic change....’’ See supra, p. 13.

Not only is the subject matter of the federal statute—

the number of employees to be used on trains—the same

as that of the Arkansas statutes, but the federal statute

on its face is to have nationwide application. No excep-

tion is made for minimum crew law states, nor is there such

an exception in the Award of Board 282 or in the awards

of the special boards that have dealt with crew consist in

minimum crew law states under authority of Board 282’s

award. This is hardly surprising, for the automation prob-

lem was presented to the Presidential Commission, the

Emergency Board, the Congress, and Board 282 as a na-

tional problem—as of course it is.

2. The action taken pursuant to Public Law 88-108 is in

consistent with the state statutes. It seems obvious that

the federal arbitration awards rendered pursuant to Public

Law 88-108 are inconsistent with the Arkansas statutes.

The Award by Board 282 authorizes the elimination of

90% of firemen’s positions, and the awards of the special

boards respecting crew consist authorize the use of two

or fewer brakemen, on appellees’ trains. In sharp contrast,

with certain minor exceptions the Arkansas laws require

the use, in Arkansas, of a fireman and three brakemen on

each such train.

The argument to the contrary most vigorously pressed

is that the carriers can comply with both the state laws

eae 23

a - Se

Lees Dae

See

and the federal awards by obeying the former. But this

misconceives the purpose of the federal legislation. Ap-

pellants’ contention might be valid if the Congress’ pur-

3 pose had been confined to the establishment of minimum

manning requirements in order to protect the employees

and the public from the consequences of undermanning.

But that was only part of the task the Congress set for

the Board. The Board was equally charged with protect-

ing the public and the carriers from the consequences of

overmanning. Its job was to determine what crew sizes

are adequate to satisfy all relevant considerations, so that

the carriers might eliminate unneeded jobs. The purpose

was to achieve ‘‘progress plus protection,’’ in the words of

the Presidential Commission cited by the President—not

protection alone. The continued application of the Arkansas

laws will frustrate that important purpose of the federal

law, a purpose that is implicit in the Section 7(a) stand-

ards—‘‘adequate and safe transportation service to the

ic and... the interests of the carrier and employees

affected’’—and that is evident from the entire history of “i

the dispute that led-to the enactment of Public Law 88-108.

In short, what the Board has authorized pursuant to fed-

eral law, the Arkansas laws prohibit.

The appellants also suggest that the Congress’ sole pur-

pose was to prevent a strike, and that, since enforcement

of the state laws would not frustrate that purpose, the

laws are not superseded. But it is clear that the Congress’

purpose was not limited to preventing a strike. To be sure,

it was that purpose that led the Congress to act. But it could

not prevent the threatened work stoppage—whic a

be noted, would not have been limited to states not having

minimum crew legislation'‘—without affecting the under-

lying dispute as to manning of trains. A simple strike

"See 8. Rep. No. 450, 88th Cong., Ist Sexs., p. 5.

prohibition would have determined the manning issues ‘en-

tirely in the carriers’ favor. Conversely, prohibiting

changes in the existing work rules, which also would have

prevented a strike, would have determined the underlying

dispute entirely in the unions’ favor, leaving the carriers

burdened with countless positions that two neutral federal

tribunals had recommended be eliminated. Thus, to pre-

vent a strike, the Congress had no reasonable choice but

to regulate the working conditions in dispute, either di-

rectly, as it had in 1916 by requiring an eight-hour day,"

or through an appropriate federal agency. It chose the

latter, and directed the agency to decide the manning issues

in accord with the requirements of the national interest

expressed in the Section 7{a) standards. The purpose

disclosed by that direction is no less real, and is quite as

important, as the purpose of preventing a work stoppage.

Because ‘‘the application of state law . . . would operate

to frustrate’’ that ‘‘purpose of the federal legislation,”

the state laws ‘‘must give way.’’ Teamsters Union vy.

Morton, 377 U.S. 252, 258 (1964). The state regulation

‘*stands as an obstacle to the accomplishment and execv-

tion of the full purposes and objectives of Congress.’’

Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (emphasis

added).

3. The contentions of appellants based upon the legisla-

tive history of Public Law 88-108 are unsound. In answer to

the analysis outlined above, the appellants assert that the

legislative history of Public Law 88-108 evidences that the

Congress did not intend preemption. The appellees are, we

submit, cn sound ground in maintaining that, since what the

Congress did is incompatible with the continued vitality of

the state laws, what some members of the Congress may

have said at one time or another is immaterial. And what

3 90 Stat. 721; see Wilson v. New, 243 U.S. 332 (1917).

the Congress did, as is shown above, cannot be reconciled

with the continued vitality of state minimum crew laws.

But even if resort to legislative history is appropriate,

lants are not aided. An exemption of minimum crew

law states from the scope of the legislation should not be

implied in the absence of the clearest possible demonstration

that it was intended by the Congress as a whole, in view of

the importance of such an exemption and its inconsistency

with the overall purposes of the legislation. Cf., California v.

Taylor, 353 U.S. 553, 561-567 (1957). The only substantial

-gapport for appellants’ argument is a comment in the report

of the House Committee on Interstate and Foreign Com-

merce (H.R. Rep. No. 713, 88th Cong., ist Sess., p. 14), as

amplified by the Chairman of that Committee during the

floor debates (109 Cong. Rec. 15273), to the effect that the

measure before the House would not supersede state mini-

num crew legislation. That comment is not sufficient to carry

appellants’ burden for several reasons.

In the first place, when the Chairman of the House Com-

mittee on Interstate and Foreign Commerce expressed on

the floor of the House the view of his Committee that

state minimum crew laws would not be superseded, he

was immediately challenged by the Chairman of the House

Rules Committee, who also supported the bill and whose

Committee had also considered the bill and its effect upon

state minimum crew legislation. (109 Cong. Ree. 15271,

15273.) Even apart from the other legislative history cited

by appellees, therefore, it cannot be said with any certainty

from what was said in the House of Representatives that the

House as a whole agreed with the views of the one Commit-

tee and its Chairman or with the views of the other Com-

Secondly, the report by the Senate Committee on Com.

merce (S. Rep. No. 459, 88th Cong., Ist Sess.) did not con.

tain any remarks similar to those in the House Report,

and no one suggested during the debates in the Senate

that the legislation would not be effective in states having

minimum crew laws. Rather, the Senate Report and the

Senate debates, like the legislation itself, assume that a

nationwide problem was involved and thus do not expressly

deal with the possibility of an exception for states having

minimum crew laws.'? The Senate acted, moreover, in the

face of advice by the General Counsel of the Interstate

Commerce Commission, in the Senate Hearings (pp. 400-

401), that if the Congress wished to be certain that state

minimum crew laws would not be affected, the bill should

be amended so to provide. Even if it could be said that

the House of Representatives did not intend state mini-

mum crew laws to be superseded, therefore, there is no

basis whatsoever in the legislative history for believing that

the Senate shared that intent, and good reason for believing

that it did not.

Thirdly, to the extent that there were inconsistencies

between them, the dill eventually enacted was that adopted

by the Senate rather than that reported by the House

Committee on Interstate and Foreign Commerce. The

House amended H.J. Res. 665 ‘vo conform to S.J. Res. 102,

In view of these considerations and those discussed in

’ brief, we believe that the court below was cor-

rect in observing that ‘‘if any rational conclusion can be

drawn from a legislative history on the question . . . it is

that the Congress intentionally elected not to include a

saving provision for such [state minimum crew] laws and

thereby create local exceptions to the authority of the arbi-

tration board to fix the size of train crews on a nationally

uniform basis’’ (R. 266). At the least, it cannot be said

that the legislative history evidences a clear intent on the

part of the Congress to except minimum crew law states

from the scope of Public Law 88-108. The most persuasive

evidence of the Congressional intent remains what the

Congress did. On that basis, as we have said, there can

be no doubt: What the Congress did in Public Law 88-108

undercuts the Arkansas and other minimum crew laws

and, therefore, by virtue of the Supremacy Clause, such

laws are dead.

4. Appellants’ arguments based upon the purported

safety justification for the minimum crew laws are unsound,

Appellants’ arguments based upon the proposition that

the minimum crew laws are safety measures are not very

clear, but they appear to make two separate points—both

of which are without substance.

The first point appears to be that the Court should pre-

sume that the Congress did not intend to override state

safety legislation. That argument ignores the fact that

the Congress in enacting Public Law 88-108 was specifically

concerned with the relation of the manning of trains to

safety of operation, and that the Arbitration Board was

mandated to and did give large weight to that factor.

Whatever may be the situation with respect to state safety

legis in general, when the Congress has dealt with

the subject of that legislation and has reached a de-

termination inconsistent with that legislation, the ‘pre.

sumption’’ should be that the Congress intended to

the state legislation. No one has suggested that the fed.

eral government lacks the power to regulate the manning

of trains in interstate commerce; when it does so, as here,

inconsistent state legislation, whether grounded on

‘‘safety’’ considerations or something else, must fall. Of,,

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 227-228, 299.

236 (1947); New York Central R. Co. v. Winfield, 244 US,

147 (1917) ; Southern R. Co. v. Railroad Comm’n, 236 U8.

439, 446-448 (1915); Pennsylvania R. Co. v. Public Service

Comm’n, 250 U.S. 566, 569 (1919) ; Napier v. Atlantic Coast

Line, 272 U.S. 605 (1926); Northern Pac. R. Co. v. Wash-

ington, 222 U.S. 370, 375-380 (1912).

Moreover, this as well as appellants’ other argument

based upon an alleged safety justification for the Arkansas

minimum crew laws is undermined by the impossibility of

establishing that the minimum crew levels specified by

those laws are reasonably related to the requirements of

safety. Cf., Southern Pacific Co. v. Arizona, 325 US. 761,

775-780 (1945). It is doubtful whether those minimum

crew levels ever were justified by safety considerations.

Bat whatever may have been the situation when the Arkan-

sas laws were enacted over a half century ago, they cannot

now be so justified. At the specific direction of the Congress,

the Arbitration Board and the special boards created under

its Award extensively considered the minimum crew levels

consonant with reasonable safety of operations and deter-

mined, as had the Presidential Commission and the Emer-

gency Board, that under present-day conditions safety of

operations will be adequately insured by crews substantially

smaller than those required by the Arkansas laws. Whatever

might be the situation in the absence of such federal deter.

minations, Arkansas cannot be permitted to justify its mini-

| mum crew requirements by a contrary evaluation of the re-

quirements of safety today or by reliance upon an evaluation

that, even if warranted when made, has now been demon-

strated by impartial federal agencies to be insupportable un-

der contemporary conditions.

The second point that appellants appear to draw from

their premise that the minimum crew laws are safety meas-

ures is more complicated than the one just discussed, but

equally erroneous. In effect, appellants contend that the

Congress intended the Arbitration Board to fashion an

agreement for the parties to the manning dispute, and thus

that the Award should be regarded as the equivalent of a

collective bargaining agreement. Appellants must, of course,

acknowledge that Teamsters Union v. Oliver, 358 U.S. 283

(1959), and California v. Taylor, 353 U.S. 553 (1957), hold

that state laws may be preempted by collective bargaining

agreements entered into pursuant to federal labor legisla-

tion; but they argue that the minimum crew laws, as safety

measures, come within an exception supposedly recognized

in the Oliver opinion for ‘‘a case of a collective bargaining

agreement in conflict with a local health or safety regula-

tion... ,”’ 358 U.S., at 297.”

In addition to the impossibility, referred to above, of

establishing that the minimum crew laws in fact are reagon-

ably related to the requirements of safety, the short answer

to this contention is that the Arbitration Award is more

than a ‘‘collective bargaining agreement,’’ ever. though it

prescribed work rules which modified and became a part

of existing collective bargaining agreements (see p. 46,

infra); the Award represents the considered judgment of

an arbitration board created by the Congress and domi-

nated by impartial neutral members upon the very subject

with which the minimum crew laws purport to be concerned.

There is, in addition, a more fundamental answer to

appellants’ contention. We agree with appellees that, put-

ting uside Public Law 83-106 and viewing the Award simply

as the equivalent of a collective bargaining agreement

arrived at pursuant to the Railway Labor Act, it would

preempt the Arkansas statutes. Surely Missouri Pacific R.

Co. v. Norwood, 283 U.S. 249, 258 (1931), has been under-

mined by the subsequent development of the preemption

doctrine in the labor relations area and is in addition dis-

connection, how two of the appellants in this case—the BRT and the

BLE—regard state minimum crew laws was evidenced by recent announce-

ments in their publications ge pene with carriers in certain

e stern states to withdraw from all as to ire legality of the

minimum erew laws in the states in which those carriers operate and also to

withdraw their opposition to repeal of such laws. In exchange, the carriers

agreed to provide job security for firemen and trainmen now in service

(and in the ease of the BRT agreement to maintain crew consists at cer-

tain prescribod levels that are below the levels required by the Arkansas

statutes and by the laws of some of the states in question). See “Train-

men News,” February 8, 1965, p. 1 (“BRT Does It Again! Crew Con-

sist Pact Safeguarding Jobs Won on 24 Roads’); “The Locomotive

Engineer,” January 15, 1965, pp. 1, 2 (the BLE “has won full protection

for every fireman-helper on the rosters of the Eastern Railroads even if

the state full-crew laws now protecting those jobs are repealed”). In an

editorial announcing the BRT agreement (which agreement appears in

Appendix IV hereto), the President of the BRT stated: “This agree-

ment places the matter of the crew consist—long a matter of bitter

dispute—where it belongs: in collective bargaining agreements.” “Train-

men News,” February 8, 1965, p. 1.

tinguishable on other grounds set forth in appellees’ brief.

But Norwood caa be disregarded, even if still valid in the

context in which it was decided, because the preemptive ef-

fect of the Award must be tested under the Railway Labor

Act and Public Law 88-108 in combination. Whatever may be

said about the intent of the Congress with respect to prior

agreements as to mauning arrived at under the Railway

Labor Act alone, Public Law 88-108 introduces a wholly

new element which cannot properly be ignored, even if it

be assumed that the Award thereunder is the equivalent of a

collective bargaining contract.

The history of the dispute set forth in our Statement

and in the appellees’ brief demonstrates that the parties

to the dispute, the Presidential Commission, the Emer-

gency Board, the President and the Congress all recognized

that the work rules governing the manning of trains were

the subject of perhaps the most vexing and difficult railway

labor relations controversy in decades, that resolution of

the dispute would have important economic consequences

to both the railroads and to their employees, that the con-

tentions of both sides centered upon the reasonable re-

quirements of safety, and that the interest of the nation as

a whole required the Congress, as the President put it, to

‘help launch a new national effort to meet the growing

challenge of worker displacement by technological and eco-

nomic change.’’ See p. 13, supra.

This ‘‘new national effort’’ was to consist of solutions

arrived at through collective bargaining, insofar as that

method was consistent with the public interest. Thus, the

Presidential Commission stated ‘‘that the solutions to the

issues before us must be found within the framework of

collective burgaining,’’ noting that in other industries it

“ig generally considered to be a function of management

_ to determine the size and composition of the work force,”’

_ but in the railroad industry ‘‘the employees have a legiti-

mate collective bargaining interest in the matter of crew

consist, and it is our view that the collective bargaining

process should remain the basic method for resolving dig.

putes coneerning this matter.’’ PRC Report, pp. 7, 55, 58,

The President, in his Message to the Congress, repeated

this theme, stating that his objective was to propose action

that ‘‘[e]neourages the parties to achieve their own soln-

tions through collective bargaining,’’ and that legislation

which would provide only for interim changes in work

rules ‘‘for those situations and for such length of time

as the parties are unable to agree by collective bargain-

ing’’ was desirable so as to ‘‘preserve and prefer collective

bargaining and give precedence to its solutions.’’ Indeed,

while the legislation he proposed would have covered all

issues between the parties, it was, he said, ‘‘most appro-

priate to the disposition of those rule changes“invotving-the”

manning of train and engine srews—the automation issues

....’’ Senate Hearings, pp. 8, 10; House Hearings, pp. 9, 10

(emphasis added ).”° A

Public Law 88-108 refiected this approach. The pre-

amble to the Joint Resolution, for example, recited that

iit was desirable to resolve the dispute over manning “‘in

a manner which preserves ard prefers solutions reached

through collective bargaining,’’ even though the break-

down of that process required federal intervention. As

stated in the Senate Report, the Joint Resolution was

**designed to insure a prompt, peaceful, and fair settle.

ment of the 4-year-old railroad work rules dispute by col-

lective bargaining where possible and by arbitration where

bargaining has not succeeded.’’ S. Rep. No. 459, 88th Cong.,

20 See also, ¢.g., Senate Hearings, pp. 39, 40, 44, 57, 69-70, 72, 375,

430-432, 451-459, 474, 475, 481; 483, 490-491, 499-500, 516-517, 568, 607,

‘622-623, 655-656, 665; House Hearings, pp. 32, 33, 37, 39, 81, 591, 621,

652, 672, 735, 770, 771-772, 810, 829, 910, 987-988, 1000; 109 Cong. Ree.

15048, 15049, 15281, 15282, 15283, 15286, 15287, 15290.

ist Sess., p. 3. Consequently, the scope and effect of the

arbitration were limited in various ways, the most important

of which restricted the duration of the Arbitration Award

to not more than two years, after which the work rules

prescribed in the Award are subject to bargaining under

Section 6 of the Railway Labor Act, although they continue

in effect while such bargaining is in process.”

* ©Zn“these circumstances, neither Norwood nor the so-

called ‘‘safety’’ exception to this Court’s holding in Oliver

are controlling, even if the Award is deemed to be the

equivalent of a collective bargaining agreement. Rather,

the truly relevant precedent is the holding in Oliver. The

emphatically expressed preference of the Congress and

the Executive for solutions to the manning dispute reached

through collective bargaining will as surely be frustrated

in minimum crew law states, if those laws are not pre-

empted, as will be the solution imposed by arbitration pend-

ing such collectively bargained solutions. If ever there

was a situation which justified application of the holding

21 We discuss the limitation upon the duration of the Award and its

significance in detail at pp. 38-53, infra. Among other things, we demon-

strate that the limitation upon the duration of the Award does not, as

appellants argue, indicate that preemption was not intended or that the

Arkansas laws will revive upon expiration of the two-year period, even if

preempted during that period. To the extent that appellants rely also upon

the other limitations upon the scope and effect of the Award—the restric-

tion of arbitration to matters as to which che parties were not in agree-

ment and to carriers who were parties to the 1959 and 1960 notices, and

the freedom of the parties to supersede the Award by voluntary agree-

ments during the life of the Award—to support their argument that pre-

emption was not intended, those limitations also merely reflected the

preference of the Congress for solutions reached in collective bargaining.

Thus, the reason for the limitations is inconsistent with an intent not to

preempt state minimum crew laws, as such laws, of course, frustrate

solutions reached in collective bargaining as well as those imposed by

arbitration. Moreover, the fact that the Congress expressly placed some

limitations upon the seope and effectiveness of arbitration under Public

Law 88-108 indicates that further unexpressed limitations, such as an €x-

- eeption fer states having minimum crew laws, were not intended, rather

than that they were, as appellants appear to argue.

in Oliver that ‘‘the paramount force of the federal law

remains even though it is expressed in the details of a

contract federal law empowers the parties to make, rather

than in terms in an enactment of Congress,’ 358 U.8., at

296-297, surely this is such a situation. The Congress hag

taken the question of manning in hand because of its ree.

ognized importance to the national interest, has expressed

its preference for a solution of the question through collec.

tive bargaining, and has sanctioned an interim solution by

arbitration-to be used as a point of departure in any future

negotiations, all of which is squarely inconsistent with the

eontinued enforcement of state minimum crew laws. Even

if the Award be viewed as analogous to a collective bargain-

contract, therefore, the Award and the collective bargaining

agreements that may be made in its wake should be held to

override conflicting state legislation.

Il. The Rules Established by the Award Will Continue to

Govern the Manning of Trains, After the Expiration

of the Two-year Period During Which the Award

Is In Force, Until Those Rules Are Changed in the

Manner Prescribed by the Railway Labor Act.

Pursuant to Section.4 of Public Law 88-108, the Arbitra-

tion Award provides that it ‘“‘shall continue in force’? for

two years from its effective date unless the parties agree

otherwise (R. 95). That two-year period will end on Jan-

uary 25, 1966, except with respect to firemen, as to whom it

will end on March 31, 1966, by agreement of the interested

parties. Appellants urge that this limitation upon the dura-

tion of the Award demonstrates both that preemption of

state minimum crew laws was not intended by the Congress

and that, if intended, preemption ceases upon the termina-

tion of the two-year period of the Award with a consequent

revivification of the state minimum crew laws.

The appellants, in their briefs, do not spell out their un-

derstanding of the situation that will exist with respect

to the work rules governing the employment and use of fire-

men and trainmen upon expiration of the two-year period

during which the Award ‘‘shall continue in force.’’ Their

arguments based upon the expiration of the Award appear

to assume, however, that the Congress intended a restora-

tion of the status quo existing before the dispute which cul-

minated in the enactment of Public Law 88-108, and, con-

sequently, that the work rules in effect for years prior to

the Award will be revived.

We show below that, to the contrary, the work rules

established by the Award will continue to govern the man-

ning of trains after the expiration of the two-year period

during which the Award is in force as an award, until those

rules are changed in the manner prescribed by the ‘‘major

disputes’’ provisions of the Railway Labor Act. The Con-

gress did not intend a return to the preexisting status quo

under work rules which have long been regarded by almost

everyone to be obsolete and which led to the frustration of

normal collective bargaining, but rather intended that the

work rules established by the Award should constitute a

new and more realistic status quo which would provide a

basis for normal collective bargaining in the future.

Before discussing this matter in detail, we emphasize that

its importance goes far beyond any issues as to the pre-

Award wherever they operate and whatever may be the

ultimate fate of state minimum crew laws. ‘Thus, the

BLF&E has informed the carriers that in its view the work

rules in existance prior to the Award—<he rules that were

repudiate ‘by the Award—will go back into effect upon

termination of the two-year period, and that, in consequence,

_ firemen again must be used on virtually all trains although

they serve no necessary function. In mid-November 1966,

the BLF&E served the carriers with a notice, purportedly

pursnant to Section 6 of the Railway Labor Act, in which it

proposed a new agreement as to the use of firemen to be

effective following expiration of the Award. The letter

transmitting the notice stated, however, that the position

of the BLF&E is that the pre-Award rules will automati-

cally be operative upon expiration of the Award, if the

carriers do not in the meantime. agree to the organization’s

demand for a new contract.”

1. The rules established by the Award will govern the

manning of trains until changed through collective bargain-

ing. In assessing the validity of the position thus taken by

the BLF&E, it is yorthwhile to note the practical conse-

quences of that position. As of July 1965, some 17,000 fire-

men’s assignments had been éliminated pursuant to the

Award, approximately half of them through promotion or

by natural attrition.” In addition, as of September 1965,

the railroads had paid over $36 million in separation allow- ©

ances to firemen who had rejected comparable job offers

and elected instead to be separated from service and to

other firemen whose services were subject to termination

under the Award.* “Thus, the BLF&E is claiming: (1) that

22 See Notice No. 1 in Appendix 1I hereto. After setting forth the

demand for a new contract to be effective on March 31, 1966, the notice

continues: “This proposal is made to you, notwithstanding the fact that

upon the expiration of the Award of Arbitration Board 282, the eol-

lectively bargained agreement with respect to employment of firemen

(helpers) will be in full foree and effect. We shall expect that on and

after 12:01 a.m., March 31, 1966, you will comply fully with the col-

lectively. bargained agreement with respect to employment of firemen

(helpers) on this property, unless another agreement has been reached

in the meantime.”

38 Hearings before the Senate Committee on Commerce on the Ad-

ministration of Public Law 88-108, 89th Cong., Ist Sess. (Aug. 2-Sept.

28, 1965), Tr. pp. 1095, 1270 (hereinafter referred to as “1965 Senate

Hearings”).

241965 Senate Hearings, Tr. pp. 1297, 1451-1452.

when the two-year period during which the Award is ‘‘in

foreo’’ ends, everything that has happened since 1959 in Gon-

nection with the manning disputes will be entirely undone,

leaving the parties where they began six years ago; (2) that

as of 12:01 a.m. on March 31, 1966, the railroads musat find

enough men to hire to fill over 17,000 firemen ’s assignments

diminated pursuant to the Award; and (3) that the expendi-

ture by the railroads of many millions of dollars in sepa-

ration allowances brought them in return, not the elimina-

tion of unneeded assignments, but only the right to operate

certain trains without firemen for a relatively few months.

‘The Congress intended nothing of the sort. Rather, it

provided for an Award the provisions of which it knew

would be utterly inconsistent with the automatic restora-

tion of some earlier status quo at the end of two years.

It realized fully. from the reports of the Presidential Rail-

oad Comimission and the Emergency Board that any

Award likely would result in the elimination of several thou-

sand unneeded assignments **—just how many thousand as-

signments should be eliminated is what the dispute really

was all about.2® Moreover, the Congress expected the

Board to include in its Award protections for present em-

ployees which, to be adequate, would have to extend beyond

two years. The Presidential Railroad Commission and the

Emergency Board had both recommended substantial sepa-

ration and relocation allowances and long-term guarantees

against reductions in wages. Similar recommendations had

2% #g., “It is impossible for those who represent the brotherhoods to

go back to their members with any great fruits of victory, because it is

inevitable. that jobs that are rendered needless and unnecessary because

of automation and mechanization must go. And any other course is not

-eonsistent with the efficiency, competitive ability, and powers of this

pes and its free enterprise system.” 109 Cong. Ree. 15057 (Senator

‘8 Bg., House Hearings, pp. 183, 804-805; Senate Hesrings, pp. 367,

501, 669-670, 663

heen made by the President when he asked thé Cotigresg:

to act.” As was found by Arbitration Board No. 282, there

was a considerable area of teritative agreement among the

parties with respect to the nature of the provisions that

should be made for the protection of employees already in

service (R. 110, 112, 124-128, 136-137). ‘Thus, when Con.

gress provided in Sections 3 and 7(a) of Public Law 88-108

that the Board should ‘‘incorporate’’ the parties’ agree.

ments in its Award and give ‘‘due consideration”’ to their

‘‘tentative agreements,’’ it surely contemplated that such

protective provisions almost certainly would be included

in the Award. That the Congress specifically intended the

inclusion of such provisions was made clear during the

debate in the Senate. A proposal to amend the Joint Reso-

lution to require the in terms, to incorporate such

provisions in its Award was withdrawn by its sponsor

when the Chairman of the Senate Commerce Committee

explained that such a requirement was implicit in the pro-

visions of the Senate bill. (109 Cong. Rec. 15122-15123; see

also H. R. Rep. No. 713, 88th Cong., 1st Sess., pp. 8, 9, 12,

23-24, 25-26.)

Accordingly, the Board did just what the Congress ex-

pected when it authorized the elimination of unneeded posi-

tions, subject, however, to comprehensive arrangements for

the protection of the employees similar in nature to those

recommended by the earlier tribunals and by the President.

Examination of those provisions shows that they are en-

tirely irreconcilable with the notion that the solution was

meant to be merely a temporary expedient. The Award

provided substantial separation allowances in amounts

equal to one year’s pay for most firemen whom the railroads

were permitted to separate from service. (Award, IJ, C-2,

- 21 These recommendations were given extensive and detailed study during

the hearings on the Administration bill. See note 9, p. 14, supra. —

(4, 0-6, R. 85-87.) Lv provided relocation allowances and

gnarantees against reductions in wages effective for five

years for men who were offered and given comparable jobs

in other crafts. (Award, I, 0.6, R. 86-87.) It provided

that other firemen should retain the right to engine service

assignments, not for two years, but, in effect, for the

remainder of their careers—é.c., until ‘‘ retired, discharged

for cause, or otherwise removed from the carrier’s active

working lists of firemen... by natural attrition.”’ (Award,

Il, 0-7, RB. 87.) And it provided a similar life-time guar-

antee for all train crew employees employed on the effective

date of the Award. (Award, III, D-2, R. 94-95.)

It would be utterly absurd to suppose that the Congress

‘intended that the railroads should pay millions of dollars

“jn separation pay to eliminate unneeded positions and

‘stimulate the transfer of trained personnel to other cc-

cupations, only to be required after a few months to hire new

untrained men to fill the very same positions. Not beside

the point in this connection is the fact that the appellant

labor organizations do not suggest that when the two-year

period during which the Award is ‘‘in force’’ has ended,

the ‘‘five-year’? wage guarantees, for example, will no

longer be effective.

Rather, what the Congress intended, as it said in Section

3 of the Joint Resolution, was that the Award should ‘‘con-

stitute a complete and final disposition’’ of the issues in

dispute. By providing a ‘‘complete and final disposition’’

of those issues, the Award put an end to the particular

dispute which had already continued. for four years and

threatened to erupt in a nationwide railroad strike, and

furnished a point of departure for collective bargaining

in the future.

To be sure, the Congress provided for eventual expiration

of both Public Law 88-108 and the Award, as such. But

x Ps

y +t

the Congress did not intend, by so providing, to make the

Award any the less a ‘‘complete and fir ‘| disposition” of

the dispute that the Award resolved. Rather, as the

Congress said in the Preamble to the Joint Resolution, |)

sought to achieve its ends in a way that ‘‘preserves.

prefers solutions reached through collective bargaining,”

See pp. 35-37, supra. Accordingly, it provided for expirs.

tion after two years so that the parties might resume nor.

mal relations under the Railway Labor Act. As the Chair.

man of the House Commerce Committee explained dur-

ing the debate in the House (109 Cong. Ree. 15279) ;

‘‘TWle have been trying to take a course that would

bring these issues to finei resolution where they could

be settled. The resoiution provides that on the two

major issues, the order of the arbitration board would

be in force for a period of 2 years. Then the issues

go back under the regular established procedure of

collective bargaining.’’

The Congress achieved that objective by integrating the

arbitration into the Railway Labor Act. It rejected the

solution proposed by the President—‘‘interim’’ regulation

of all issues raised by the parties’ notices by the Inter-

state Commerce Commission under Section 5 of the Inter-

state Commerce Act—and provided instead for a ‘‘com-

plete and final disposition’? of the two manning issues

by a seven-man arbitration board in accordance with Sec-

_ tions 7 through 9 of the Railway Labor Act. It provided

in Section 4 of Public Law 88-108 that, to the extent possible,

‘the arbitration shall be conducted pursuant to sections 7

and 8 of the Railway Labor Act, [and] the board’s award

shall be made and filed as provided in said sections and

shall be subject to section 9 of said Act.’”’ In sum, as was

stated in the Senate Committee report, the Joint Resolu-

gaan cmaane

tion ‘‘adopt[ed] the time-tested provisions of the Rail-

way Labor Act’’ in effectuating the Congress’ purpose of

insuring a peaceful settlement of the work-rules dispute

“by collective bargaining where possible and by arbitration

whore bargaining has not succeeded.’’ 8. Rep. No. 459, 88th

Cong., 1st Sess., p. 3.

However, because an arbitration under the Railway

Labor Act requires an agreement to arbitrate, the provi-

sions of which are governed by Section 8 of the Act, and

because the parties had agreed in principle to arbitration

bat had ‘‘been unable to agree upon the terms and proce-

' dures of an wrbitration agreement’’ (P.L. 88-108, Pream-

ble *), the Congress had to write the equivalent of an ar-

bitration agreement for them. It did that in Public Law

88-108; incthis respect the Joint Resolution supplanted the

usual agreement to arbitrate. Brotherhoud of L.F. & E.

v. Chicago, B. € Q. R. Co., supra, 225 F. Supp., at 18. Thus,

where the Administration bill had provided for interim ICC

rules that would ‘‘remain operative’’ for two years, Public

Law 88-108 provided in the language of Section 8(j) of the

Railway Labor Act that the Award ‘‘shall continue in

tapes" for a similarly limited period.” Presumably, ihere-

28 “Whereas, on August 16, 1963, the carrier parties to the dispute

accepted and the organization parties to the dispute accepted with certain

reservations the Secretary of Labor’s suggestion that the fireman (heiper)

and crew consist issues be resolved by binding arbitration but the said

parties have been unable to agree upon the terms and conditions of an

arbitration agreement.” P. L. 88-108, Preamble; see also S. Rep. No.

459, 88th Cong., 1st Sess., pp. 3, 9; H.R. Rep. No, 713, 88th Cong., ist

Sess., pp. 3, 12-13.

** Section 8 of the Railway Labor Act provides that: “The agreement

to arbitrate . . . (j) shall ... fix the period during which the «ward

shall cbations én force... .” The last sentence of Section 4 of Public

Law 88-108 provides that: “The award shall continue im force for such

period as the arbitration board shall. determine in its award, but not to

_ @xeeed two years from the date the award takes effect, unless the parties

“agree otherwise.”

sion was intended to mean what it means in

way Labor Act arbitration agreement.

‘ailway Labor Act—unlike what may be the

ies not governed by that Act—the expiration

during which an arbitration award is ‘in

it terminate the parties’ obligation to comply

prescribed by the award. Section 6 of the

carriers and labor organizations to “give

days’ written notice of an intended change

affecting rates of pay, rules, or working

herefore, when an arbitration award settles

hich such a notice gives rise, unless it denies

hange entirely, it effects a change in, and its

gly become a part of, the existing agreements

arties—just as did the Award, in terms, in

msequently, the effect of duration provisions

abor arbitration award is governed by the

vern the termination of rai!way labor agree-

are provided by the ‘‘major disputes’’ provi-

tilway Labor Act,” in particular the require-

(1) of the Award, for example, provides that: “All

regulations, interpretations, and practices, however

tespect to the employment of firemen (helpers) shall

ved except as modified by the terms of this Award.”

pointed out by appellees (Br. p. 62, n. 43), the “agree-

in Section 6 of the Railway Labor Act (which requires

' proposed “changes in agreements”) include arbitration

mrsuant to agreements to arbitrate entered into under

let. The purpose of Section 6—to encourage peaceful

‘management disputes—is equally applicable whether

prescribed by a collective bargaining contract, as such,

ion award. In both cases, the terms of employment

itended to create a continuing status which could be

king the steps required by the “major disputes” pro-

way Labor Act.

\52 First, Second, Seventh, 155-160. Those provisions

uty to “exert every reasonable effort to make and main-

ment of Section 6 that carriers and labor organizations

“give at least thirty days’ written notice of an intended

change in agreements affecting rates of pay, rules, or work-

ing conditions.’ After the expiration of an agreement, -

“ynless the terms of the agreement were still to be followed

there would be ‘an intended change,’ which would bring into

play the thirty-day notice provision of 46.’’ Manning v.

American Airlines, 329 F.2d 32, 34 (2d Cir. 1964). Aceord-.-.

ingly, the terms of the expired agreement continue to gov-

ern the terms and conditions of employment, in the rail-

road industry, until they are changed in the manner pre-

scribed by the Act—i.e., through service of the required

notice and pursuit of a peaceful settlement through the

prescribed statutory procedures. Ibid. ‘‘The effect of § 6

is to prolong agreemer subject to its provisions regard-

less of what they say a. termination.’’ Ibid. ‘‘([T]he

very purpose of §6 is to stabilize relations by artificially

extending the lives of agreements for a limited period re-

gardless of the parties’ intentions’’ as expressed in ter-

mination provisions included in their contracts. Ibid.

tain agreements concerning rates of pay, rules, and working conditions

(Section 2 First), and the specific duty, referred to in the text above, to

of intended changes in such agreements (Section 6). Follow-

of such a notice, the parties must proceed with conferences

2 Second and 6), mediation (Sections 5 and 6), arbitration, if

to by both parties (Sections 7-9), and emergency board proceed-

if an emergency board is appointed by the President (Section 10).

purpose of those provisions, as stated in the Railway Labor Act

is to facilitate the settlement of disputes as to rates of pay, rules,

working ecnditions, “in order to avoid any interruption to commerce

to the operation of any carrier growing out of any dispute between

earrier and the employees thereof.” (Section 2 First.) See California

. Taylor, 353 U.S. 553, 566 (1957).

%The desirability as a matter of policy of the holding in Manning,

that an expired railway labor agreement continues to govern rates of

Ey, rules, and working conditions until they are changed in the

SES

ie ~ from an examination of the alternative possibilities. (1) If, upon expira-

To summarize, the Congress contemplated a relatively

short period in which the parties could adjust to the new

work rules prescribed by the Arbitration Award without

being subjected to economic pressures designed to bring

about a change in those work rules. During that period of

adjustment, eventually established st two years, the Award

is to ‘continue in force’’ by its own terms, and ‘‘the regu.

lar estabiished procedure of collective bargaining’’ under

Section 6 of the Railway Labor Act, including the possibility

of resort to strikes or other self help once the procedures of

Section 6 are exhausted, is in effect suspended. After the

. expiration of the two-year period of adjustment, the Award

no longer continues in force and the parties are free to

resume collective bargaining pursuant to the ‘‘regular

established procedure’’ prescribed by Section 6. But uniil

changed pursuant to suck collective bargaining, the work

rules prescribed by the Award continue in effect; those

work rules constitute the status quo upon which the col-

lective bargaining must be based. Thus, the Congress

accomplished what it set out to do: to provide a ‘‘final

tion, the parties to such an agreement were free-immediately to use slf-

help to effect changes in the rates of pay, etc., which existed under the

expired agreement—i.., if the cerriers could effect such changes uni-

laterally and the unions could strike to obtain such changes—the statutory

procedures designed to facilitate the amicable settlement of major disputes

would be avoided entirely, thus defeating their purpose. (2) Automatic

reversion to earlier rules—to a “status quo” which has long since ceased

to -exist—would ereate a host of frequently insurmountable practical

problems, as this ease illustrates well. (3) The third and last alternative

with respect to that subject matter, while the employees, to obtain a

“change in agreements” to cover that subject matter, would be obliged

to serve Section 6 notices and exhaust the statutory “major disputes”

procedures before they might strike in opposition to whatever practices

the carrier chooses to follow. The untenable nature of these alternatives

demonstrates the soundness of the holding in Manning and of its appli-

eation here.

resolution’’ of the original dispute growing out of the old

work rules, and then, after two years, to remit the parties

to. “the regular established procedure of collective bar-

»» (109 Cong. Rec. 15279) under Section 6 of the

Railway Labor Act if changes in the work rules established

py the Award should then be desired.

Indeed, the labor organizations themselves have recog-

nized on occasion that the requirements of the Railway

Labor Act with respect to such termination provisions are

as we describe them here. For example, counsel for the

BL# even expected such results under the somewhat dif-

ferent measure proposed by the President.* He testified

before the House Commerce Committee that the effect of the

expiration of the ‘‘interim’’ ICC rules provided for in the

Administration bill would be that (House Hearings, p. 682) :

«(W]e would be enabled to serve a notice under sec-

tion 6 of the Railway Labor Act and begin at that time

% The Administration bill provided for “interim” regulation by the

LC.C. of the subject matter of the parties’ original notices for a two-

year period. Accordingly, divergent views as to the effect of the expira-

tion of the 1.C.C. rules were expressed during the hearings on that bill.

The Secretary of Labor thought that the parties’ original notices would

remain in effect, see Senate Hearings, pp. 81-82, in which case the

parties might have been free to use self-help, pursuant to those notices,

rede atime the LCC. rules expired. On the other hand, as in-

dicated in the text above, counsel for the BLE was of i

providing that the Award should “constitute

position” of the issues raised by the parties’

aig a nanan aig lamang mone orga

I in the Administration bill—Congress put a com-

plete ; the dispute under those notices and, as indicated

in the text herein, a point of departure for collective bargaining in the

a procedure for bargaining to change the rules in the

light of what we then wished to suggest to the carriers.

There would be another crisis if we persist in the same

way to the very end... .’’ ie

Similar views were expressed by counsel for the bRT in

litigation involving the validity of an award by a special

board of adjustment convened pursuant to the crew consist

provisions of the Award by Arbitration Board No. 292.8

Moreover, the BRT has served notices on carriers through.

out the nation, purportedly pursuant to Section 6, which in

substance propose a new agreement to restore discontinued

35 Brotherhood of Railway Trainmen v. Chicago, M., St. P. & Pac. R.

Co., 237 F. Supp. 404 (D.D.C. 1964), remanded, 345 F. 2d 985 (D.C. Cir,

1965). The remarks in question were as follows:

“The carrier asserts here that the [reduction in crews proposed by

the carrier in notices served pursuant to the crew consist provisions

of Award 282] was also very important to the carrier because Award

282 had a two-year limit in which the procedures that were described

in the award could be carried out by the carrier. But the difference

is that the carrier had proposed a change in the rule which required

a conductor and two brakemen and, if the change in the rule was

granted by the Special Board of Adjustment, before the three-man

crew could return, a new change in the rule would have to be made.

And so that the time that ... Award 282 was talking about in our view

was the time in which to propose, negotiate, and litigate a proposed

change in the rule, and was not the time limits in which the changed

rule would be kept in effect.

“And this was made clear, I think on the opening day of the

argument when I asked Mr. Shea [earrier counsel] if he was con-

ceding that the award of Mr. O’Gallagher [neutral member of the

- special of adjustment] expired by its own terms as of

January, 1966, and he remarked on the record that he was here

only to try this case, and was making no such concession.

“So that the two-year period that was made so much of both in

the carrier's brief and im the argument here is not really a two-year

period at all but, for the purposes of this case, the changed rule

would be permanent unless and until it is changed through other

processes if that is possible.” (Brotherhood of Railroad Trainmen v.

Chicago, M., St. P. & Pac. R. Co., Civ. No. 1641-64, U.S. Dist.’ Ct,

District of Columbia, Transeript of Proceedings, Sept. 9, 1964, pp.

17-18 (emphasis added).)

after the expiration of the Award. Such notices

- would hardly be necessary if the effect of expiration were

to restore the pre-existing status que, and accordingly are

quite inconsistent with the view that the pre-existing rules

somehow revive automatically.” Indeed, the BLF&H itself

has 80 little faith in its claim concerning the pre-existing

rules set forth in the notice described previously that it has

also included in the notice demands similar to those made

by the BRT.”

The purpose of the Congress, then, was to bring the

original dispute to an end and to provide a point of depar-

ture for future collective bargaining. When it enacted the

Joint Resolution, it intended to provide a serious solution

for a serious problem, not an elaborate (and expensive)

game at the end of which the parties would start all over

again. The Congress’ intent wouid be totally frustrated if

the expiration of the Award resulted in restoration of the

situation that existed in 1959 when the original notices

were served, and if the carriers, in consequence, were re-

quired to hire men to fill the thousands of assignments that

have been eliminated under the Award. Intentionally, the

Congress has altered beyond restoration the status quo that

existed when the original notices were served, and has estab-

lished a new status quo that was expected to extend beyond

the termination of the Award by Arbitration Board No. 282

even thongh subject to collective bargaining after such

termination.

2. State minimum crew laws have been ened perma-

nently, The principles just stated plainly will govern the

situation following expiration of the Award in states that

do not have minimum crew laws. They do not in them-

% See notice in Appendix III hereto.

*'See Notice No. 2 in Appendix II hereto. Carrier representatives

have taken the position that the BRT and BLF&E notices referred to

in the text above are premature and invalid.

wy" ae RNY

bas

selves establish that the Congress intended to preempt a

minimum crew laws; rather, such an intent by the Qop-

gress is demonstrated by other considerations diseussed

at. pp. 25-38, supra. But the principles just stated do

refute appellants’ contention that preemption could not have

been intended because of the “‘temporary’’ nature of the

legislation and of the Award, and also refute the contention

by appellants (in No. 71) that the state minimum crew laws

will ‘‘revive’’ at the end of the two-year period of the Award

even if preemption during the two-year period was intended

and achieved.

As we have demonstrated, the Congress envisaged much

more than a mere ‘‘temporary”’ change in the work rules in

ex‘stence pricr to the Award, after which such work rules

would go back im effect and all would be 2s though the Joint

Resolution had never been enacted. The Congress intended

a ‘‘complete and final disposition’’ of the dispute growing

out of the old work rules; the Congress intended the estab-

lishment of new work rules which would reflect and proteet

the justified interests of the cariiers, of their employees and

employee organizations, and of te public in the light of con-

temporary conditions includins; considerations of safety;

and the Comgress intended that the work rules thus estab-

lished would: govern the manning of trains not only during

the two-year period of the Award, but also after the expira-

tion of that two-year period until changed through normal

collective bargaining in which the status quo to be con-

siderea is the work rules prescribed by the Award. There-

after, the manning issue would be governed by collective

bargaining agreements, not by minimum crew laws. In

short, the Joint Resolution was intended to, and did, work

a fundamental change in the previous situation both during

the two-year period of the Award and thereafter.

Hence, the court below rightly concluded that “the

se and intent of Congress in enacting Public Law

98-108 would be frustrated by reinstatement of state crew

~ gonsist laws upon the expiration of the awards . . . ” (R.

273). Those laws have been preempted not just for two

years, but permanently.

CONCLUSION

For the reasons stated, the judgment of the district court

should be affirmed. —

Respectfully submitted,

Francis M. Sura

Ricnarp T. Conway

Wurm H. Dempsey, JR.

Ratex J. Moons, Jr.

734 Fifteenth Street, N.W.

Washington, D.C. 20005

James R. Wore

Cuarizs I. Hopxrins, J.

Sua & GARDNER Union Station Building

: Chicago, Illinois

734 Fifteenth Street, N.W. Att Nati

Washington, D.C. 20005 jorneys for National

Railway Labor Confer- —

Of Counsel ence, Amicus Curiae.

on & Barberton Belt R. Co.

on, Canton & Youngstown R. R.

m & Southern R. Co.

Arbor R. Co., The

on, Topeka & Santa Fe Ry. System, The

Atlanta & West Point R. Co.

* Atlantic Coast Line R. R.

‘Baltimore & Ohio R. Co., The

Baltimore & Ohio Chicago Terminal R. R.

Bangor & Aroostook R. Co.

> Belt Ry. Co. of Chicago, The

Bessemer & Lake Erie R. Co.

mir nam Southern R. Co.

ton & Maine R.

oklyn Eastern District Terminal

_ Buitaio Creek R. R.

‘Bush Terminal R. Co.

Butte, Anaconda & Pacific Ry. Co.

amas Prairie R. Co.

nadian National Rys.

nadian Pacific Ry. Co.

utral R. Co. of N. J., The

atral Vermont Ry.

Chesapeake & Ohio Ry. Co., The

Chicago & Eastern Ill. R. Co.

cago & Illinois Midland Ry. Co.

cago & North Western Ry. Co.

cago & Western Indiana R. Co.

cago. Burlington & Quirsy R. Co. |

cago Great Western Ry. Co.

Excluding wholly-owned subsidiaries of listed member carriers.

Chicago, Milwaukee, St. Paul & Pacific R. Co.

Chicago Produce Terminal Co.

Chicago, Rock Island & Pacific R. Co.

Chicago Short Line Ry. Co.

Chicago Union Station Co.

Chicago, West Pullman & Southern R. Co.

Cincinnati Union Terminal Co., The

Clinchfield R. Co.

Colorado & Southern Ry. Co., The

Colorado & Wyoming Ry. Co.

Columbus & Greenville Ry. Co.

Davenport, Rock Island & North Western Ry. Co.

Dayton Union Ry.

Delaware & Hudson R. Corp.

Denver & Rio Grande Western R. Co., The

Denver Union Terminal Ry. Co., The

Des Moines Union Ry. Co.

Detroit & Mackinac Ry. Co.

Detroit & Toledo Shore Line R. Co., The

Detroit Terminal R. Co.

Detroit, Toledo & Ironton R. Co.

Duluth, Missabe & Iron Range Ry. Co.

Dulut* Union Depot & Transfer Co., The

Duluth, Winnipeg & Pacifie Ry.

East St. Louis.Junction R. R.

Elgin, Joliet & Eastern Ry. Co.

El Paso Union Passenger Depot Co.

Erie Lackawanna R. Co.

Fort Street Union Depot Co., The

~~F't., Worth & Denver Ry. Co.

Ft. Worth Belt Ry. Co.

Galveston, Houston & Henderson R. %o.

Galveston Wharves

Georgia R. R.

Grand Trunk Western R. Co.

Great Northern Ry. Co.

Green Bay & Western R. Co.

Gulf, Mobile & Ohio R. Oo.

Houston Belt & Terminal Ry. Co.

Tlinois Centra! R. Co.

[linois Northern Ry. |

[inois Terminal R. Co. |

Indianapolis Union Ry. Co.

Jacksonville Terminal Co. ;

Kansas City Southern Ry. Co., The |

Kansas City Terminal Ry. Co.

Kentucky & Indiana Terminal R. R.

Lake Erie, Franklin & Clarion R. Co.

Lake Superior & Ishpeming R. Co.

Lake Superior Terminal & Transfer Ry. Co.

Lake Terminal R. Co., The

Lehigh & Hudson River Ry. Co., The |

Lehigh Valley R. Co. |

Long Island R. Co., The ;

Longview, Portland & Northern Ry. Co. 2

Los Angeles Juncticn Ry. |

Louisville & Nashville R. Co.

Maine Central R. Co.

Manufacturers Ry. Co.

McKeesport Connecting R. Co.

Minneapolis, Northfield & Southern Ry.

Minnesota & Manitoba Ry.

Minnesota, Dakota & Western Ry. Co.

Minnesota Transfer Ry., The

Mississippi Central R. Co.

Missouri-Kansas-Texas R. Co.

Missouri Pacific R. Co.

Monon R. R.

Monongahela Connecting R. Co., The

Monongahela Ry. Co., The

Montour R. Co.

Nevada Northern Ry. Co.

Newburgh & So. Shore Ry. Co., The

New Orleans Public Belt R. R.

New Orleans Union Passenger Terminal

New York Central System

New York Dock Ry.

New York, New Haven & Hartford R. Co., The

New York, Susquehanna & Western R. Co.

Norfolk & Portsmouth Belt R. Co.

& Western Ry. Co. ate

Southern Ry. Co. bs

mpton & Bath R. Co.

1 Pacific Ry. Co.

stern Pacific R. Co.

Inion Ry. & Depot Co., The

California & Eastern Ry. Co.

vania R. R., The

rania-Reading Seashores Lines

+ Pekin Union Ry. Co.

phia, Bethlehem & New England R. Co.

it & Northern Ry. Co.

gh & Shawmut R. Co., The

gh & Ohio Valley Ry. Co.

gh, Chartiers & Youghiogheny Ry. Co.

thority Trans-Hudson Corp.

| Terminal Co.

rminal R. R. Assn.

Company

id, Fredericksburg & Potomac R. Co.

erminal Ry. ’%o., The

ph Terminal R. Co.

s-San Francisco Ry. Co.

s Southwestern Ry. Co.

Union Depot Co.

go & Arizona Eastern Ry. Co.

d Air Line R. Co.

ity Terminal Ry. Co.

2 R. Co,

a Pacific Company

a Ry. System

maha Terminal Ry. Co.

| International R. Co.

, Portland & Seattle Ry. Co.

sland Rapid Transit Ry. Co., The

pe, Alabama & Georgia Ry. Co.

ze Central Ry. Co.

1 R. R. Association of St. Louis

1 Railway, Alabama State Docks

na Union Station Trust

Texas and Pacific Ry. Co., The

Texas Mexican Ry. Co., The

Texas Pacific-Missouri Pacific Lerminal R. R. of New

Orleans

Toledo, Peoria & Western R. Co.

Toledo Terminal R. Co.

“Jnion Depot Co. (Columbus, Ohio)

Union Pacific R. R.

Union R. Co. (Pittsburgh)

Union Ry. Co. (Memphis)

Union Terminal ‘ Dallas)

Upper Merion & Plymouth R. Co.

Washington Terminal Co., The

Western Maryland Ry. Co.

Western Pacific R. Co.

Wichita Terminal Assn.

Wichita Union Terminal Ry. Co., The

Winston-Salem Southbound By. Co.

Youngstown & Northern R. BR.

Appendix II

1965 BLF&E Notice of Proposed Changes in Rules*

NOTICE NO. 1

NOVEMBER —, 1965

[Name of Railroad Official]

[Title]

[Name of Railroad]

Dear Sir:

In accordance with the provisions of the Railway Labor

Act and the agreement or agreements now in effect on the

{name of carrier], please accept this as formal notice of

our desire to change the collectively bargained agreement

governing the employment of firemen (helpers) on other

than steam power tw the extent provided in Attachment

‘*A”’, attached to and made a part hereof, such change to

become effective at 12:01 am., March 31, 1966.

_ This proposal is made to you, notwithstanding the fact

that upon the expiration of the Award of Arbitration

Board 282, the collectively bargained agreement with re-

spect to employment of firemen (helpers) will be in full

force and effect. We shall expect that on and after 12:01

a.m., March 31, 1966, you will comply fully with the col-

lectively bargained agreement with respect to employment

of firemen (helpers) on this property, unless another agree-

ment has been reached in the meantime.

_ Please advise pursuant to Section 6 of the Railway Labor

Act the time, date and place where conference may be held

to discuss this notice.

Very truly yours,

[Name]

General Chairman,

Brotherhood of Locomotive

Firemen and Enginemen

* Served on carrier parties to Award 282 on or about November 15, 1965.

NOTICE NO. 1

NOVEMBER —, 19€5

ATTACHMENT “A”

Section A:

1. Firemen (helpers) taken from the seniority ranks of

the firemen shall be used on all locomotives in road and

yard service, except as specifically provided in Section B.

Section B:

4. Dayvucut Yarp Joss, other than thuse:

(a) Engaged in switching passenger cars and equip-

ment, or

(b) Engaged in belt line, transfer, interchange or

industrial work, or

(8) hours, or ve

(d) Whose operations are not confined to an area

from which other engines operated without fire-

men (helpers) are excluded during the period the

job works, or

(e) On which there is need for an employee on the

locomotive to relay signals or perform lookout

functions by reason of such conditions as curva-

tures of tracks, overhead or other obstructions,

close clearances, unprotected crossings, dangers

arising out of mainline movements, hazard to

the public or railroad employees, or imposition of

onerous working conditions on the engine or train

crew.

2. Dayuicut Brancu Live Joss, other than those where:

(a) The number of units in the locomotive consist ex-

ceeds one, or

(b) The total time on duty may be expected to exceed

eight (8) hours, ;

(d) The maximum speed on branch line exceeds thirty

. (30) miles per hour. eat

(e) The maximum number of cars in the train may be

expected to exceed thirty-five (35), or

(f) The continuous movement cf the train or engines

exceeds two (2) hours without relief, or

(g) Onerous working conditions would be imposed on

f the members of the engine or train crew if a fire.

man was not used.

Section C:

1. Notwithstanding the provisions of Section B, a job

may be operated without a fireman (helper) only when it

becomes necessary to hire a fireman (helper).

2. A junior fireman (helper) may be required to protect

jobs in Section B if same is necessary to avoid a new hire.

Section D:

1. The carrier shall hire and place on the firemen’s

seniority roster sufficient firemen (helpers) to comply with

the provisions of this agreement.

NOTICE NO. 2

. NOVEMBER —, 1965

[Name of Railroad Official]

[Title] :

[Name of Railroad]

Dear Sir:

In accordance with the provisions of the Railway Labor

Act and the agreement or agreements now in effect on the

[name of carrier], please accept this as formal notice of

our desire to negotiate an agreement incorporating the

provisions of Attachment ‘‘A”’, attached to and made a

part hereof, such agreement to become effective at 12:01

am. March 31, 1966. .

Please advise pursuant to Section 6 of the Railway Labor

Act the time, date and place where conference may be held

to discuss this notice.

Very truly yours,

(Name]

General Chairman,

Brotherhood of Locomotive

Firemen and Enginemen

NOTICE NO. 2

NOVEMBER —, 1965

: ATTACHMENT “4”

Szction A.

Employees whose employment and seniority were termi-

nated by the application or misapplication of the Award

of Arbitration Board 282 will, on March 31, 1966, be re.

called and restored to the seniority roster and employed

with their original seniority date and used as firemen

(helpers) in accordance with the agreement in effect on

March 31, 1966. Employees restored to the seniority roster

will be considered to have continuous service in the ap-

plication of the vacation and other agreements. The rail-

road will, on or before March 31, 1966, by registered letter

notify firemen (helpers) whose employment has been ter-

minated by the railroad’s application of the Award of

Arbitration Board 282 at their last known address of the

restoration of the individual’s seniority. Failure of the

individual to report for service within thirty (30) days of

receipt of the registered letter will be considered to be a

forfeiture of all seniority rights.

Szecrion B.

Individuals restored to the seniority roster in the ap-

plication of Section A hereof shall be reimbursed for any

monetary loss sustained as result of improper termination.

Section C.

Employees who have been deprived of rights, during

the term of the Award of Arbitration Board 282, to exer-

cise their seniority in accordance with applicable schedule

provisions in effect on January 24, 1964, will be reimbursed

for all monetary losses sustained as a result of deprivation

of such seniority rights.

Szction D.

Employees who, as a result of the carrier’s application

of the Award of Arbitration Board 282, have incurred ex-

penses such as, but not limited to, travel, lodging and meals

in being required by the carrier to man assignments

operating out of other than the point where their residence

is maintained shall be reimbursed for such expenses.

Secrion BE.

Employees who have experienced monetary loss as re-

sult of sale of their homes by reason of the carrier requir-

ing such employees to man ‘assignments at points other

than where their original residence was maintained will

be reimbursed for the loss incurred. Additionally, such

employees will be reimbursed for moving expenses.

Szcrion F.

Employees changing their point of residence as result

of the carrier requiring such employees in the application

of the Award of Arbitration Board 282 to man assignments

out of points other than where original residence was main-

tained will be reimbursed for moving expenses.

NOTICE NO. 3

NOVEMBER —, 1965

{Contents Omitted.]

Appendix ITI

1965 BRT Notice of Proposed Changes in Rules*

REGISTERED

RETURN RECEIPT REQUESTED

BroTHERHOOD oF RartRoaD TRAINMEN

General Grievance Committee

Missouri Pacific System

320 Buder Building

St. Louis Missouri

June 30, 1965

Mr. B. W. Smith, Director of Labor Relations

Missouri Pacific Railroad Company

Missouri Pacific Building

St. Louis, Missouri 63103

Dear Sir:

The undersigned, representative of the Brakemen of the

Missouri Pacific Railroad Company, under existing agree-

ments between management and the Brotherhood of Rail-

road Trainmen, has been authorized, under the laws and

rules of procedure of the Organization, to submit to you

notice of desire to change, effective January 26th, 1966, the

said agreements as set forth below:

- Effective January 26th, 1966, a rule shall be inserted in the

respective agreements between the parties applying to

brakemen, which will provide that crews in passenger serv-

ice, through and irregular freight service, helper service,

work service and traveling switch engines, shall consist of

not less than two (2) brakemen (trainmen).

Effective January 26th, 1966, a rule shall be inserted in the

respective agreements between the parties applying to

brakemen: which will provide that local freight and mixed

' * Similar notices were served on various carrier parties to Award 282

at different times during the summer of 1965.

train service crews shall consist of not less than three (3)

brakemen (trainmen).

Therefore, in accordance with the provisions of the Railway

Labor Act, as amended, and current agreements covering

rates of pay, rules and working conditions of the employees

herein covered, you will please accept this as formal notice

of our desire to change the said agreements as set forth

above.

Please reply to this proposal in writing to the undersigned

General Chairman within ten days, fixing date within the

provisions of the Railway Labor Act when conference with

you may be had for the purpose of discussing these matters.

It is the request that all lines or divisions of railway oper-

ated by the Missouri Pacific Railroad shall be included in

settlement of these matters, and that any agreement reached

shall apply alike to all such lines of railway.

Very truly yours,

A. F. Sora

General Chairman, B. of R. T.

AFS/h

ec: C. Luna, President, BRT

Appendix IV

Crew Consist Agreement of January 29, 1965*

New York, N. Y.

January 29, 1965

Mr, Charles Luna, President

Brotherhood of Railroad Trainmen

Standard Building

1370 Ontario Street

Cleveland, Ohio 44113

Dear Mr. Luna:

- This refers to our recent discussions with you concerning

crew consist in states comprising the eastern territory and

particularly the necessity, in the interest of the

their employees and the public, for repeal of the so-called

full crew laws.

During our discussion you indicated there was an area

subject to agreement that would provide protection for the

employees you represent and thereby eliminate your oppo-

sion to repeal of existing full crew laws. In line with this

discussion and on behalf of the eastern railroads that are

shown on the attached sheet designated as Attachment ‘‘A”’,

we offer the following:

1. On all railroads, parties to this Agreement, the pro-

visions of the Award of Arbitration Board 282 will

continue to be applicable, including decisions of special

* The following railroads (excluding subsidiaries of listed railroads)

had signed the January 29, 1965 crew consist agreement with the BRT

as of November 4, 1965: Ann Arbor R. Co.; Baltimore & Ohio R. Co.;

Bessemer & Lake Erie R. Co.; Canadian National Rys.; Central Vermont

Ry.; Delaware & Hudson R. Corp.; Detroit, Toledo & Ironton R. Co.;

Erie-Lackawanna R. Co.; Grand Trunk Western R. Co.; Lehigh & Hudson

River R. Co.; Lehigh Valley R. Co.; Long Island R.R.; Monon R. Co.;

Montour R. Co.; New York Central System; New York, New Haven &

Hartford R. Co.; New York, Susquehanna & Western R. Co.; Pennsylvania

R. Co.; Pennsyivania- Reading Seashore Lines; Pittsburgh, Chartiers &

Youghiogheny R. Co.; Youngstown & Southern R. Co.

We.

“ape,

hoards of adjustments and agreements between the

_parties arising under the Award’s provisions, until the

specified termination date of the Award (January 25,

1966), except in states having so-called full crew laws

in effect the ground road and yard crew consist: pro-

visions of which may be repealed prior to the January

25, 1966 termixation date. In the event the ground

road and yard crew consist provisions of the full crew

law is repealed in one or more of the states presently

having such laws, in which one or more of the carriers,

parties to this Agreement operate, the provisions of

this Agreement shall become effective in that State

coincident with such repeal or on and after January

25, 1966, whichever date is earlier.

2. On and after January 25, 1966 (or on and after the

earlier effective date in a particular state resulting

from the repeal of the ground road and yard crew con-

sist portion of the full crew laws in such states having

such laws), a rule shall be inserted in the respective

agreements between the parties to this Agreement ap-

plying to ground road and yard service employees

which will provide for a crew consist on all ground

road and yard crews in all classes of road and yard

_ service of not less than a conductor (foreman) and

two (2) trainmen (helpers), including assistant con-

ductors, ticket collectors, baggagemen, brakemen and

flagmen; provided, however, that on railroads which

had established crew arrangements prior to January

25, 1964, which permitted crews to be operated with

less than two (2) trainmen (helpers), such crew ar-

rangements shall remain in effect subject to change in

accordance with the provisions of paragraph 6 hereof.

The aforementioned crew consist rule shall not apply

. to self-propelled devices, light engine, helper and ex-

change engine movements, which shall bo manned in

accordance with existing agreements in effect with the

organization signatory hereto.

3. In any case in which the carrier has called or filled

a crew in accordance with the foregoing paragraph and

the consist of such crew falls below the prescribed

minimum by reason of the failure of a crew member

to report, or by being separated from the crew after

reporting, such crew will function in accordance with

existing rules.

4. The carriers shall have the right to discontinne

the use of trainmen in excess of minimum crew consist

established by paragraph 2, except that the carriers

will comply with the provisions of agreements or full

crew laws in effect on the date of this Agreement with

respect to the employment of trainmen in excess of

the minimum crew consist provided by paragraph 2

so long as it is necessary to do so in order to provide

employment for trainmen with seniority dates prior

to January 25, 1964, who were not in a furlough status

on that date and for whom no other employment in

train service on their seniority district is available a‘

his governing terminal (home or away from home as

the case may be).

5. Upon acceptance of this Agreement the Brother-

hood of Railroad Trainmen will immediately withdraw

all opposition to repeal of existing statutory and

regulatory minimum crew requirements and from par-

ticipation in any litigation concerning the legality of

such requiremnets in the states covered by this Agree-

ment. Further, the Brotherhood will not institute or

support the adoption of any new minimum crew consist

laws or regulations in the states covered by this Agree-

ment while this Agreement is in effect.

6. This Agreement will continue in effect until Jan-

uary 1, 1970, and thereafter until changed in ac-

cordance with the provisions of the Railway Labor

Act, as amended.

If you are in accord with the foregoing, please indicate

your acceptance by affixing your signature in the space

provided below.

Very truly yours,

s/ A. E. Pertmay,

President,

New York Central Railroad

s/ Sruarr T. Saunpesrs,

Chairman of the Board,

Pennsylvania Railroad

s/ Wo. Wurrts,

Chairman,

Erie-Lackawanna Railroad

Accey ted :

s/ Ciuantes Luna

President,

Brotherhood of Railroad Trainmen

ATTACHMENT ‘‘A’’

{List of original carrier parties, omitted.]

(Applies to all states in which the above railroads operate

in the United States.)

(6861-9)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.