Amicus Curiae Brief — Brotherhood of Railway & Steamship Clerks v. Florida East Coast Railway Co.

a a | a a) 7 ee |

IN THE JOHN F. DA

Supreme Court of the United States

OctToBER TERM, 1965

No. 750

BROTHERHOOD OF RAmWAY & STEAMSHIP CLERKS,

FREIGHT HANDLERS, EXPRESS AND STATION

EMPLOYES, AFL-CIO, ET AT..

Vv.

Frorma East Coast Ratway Company

No. 782

Unitep STATES oF AMERICA

¥.

Fiorma East Coast Ratuway Company, FT At.

No. 783

Froriwa East Coast Rarway Company

Vv.

UnitTep States or AMERICA

On Writs of Certiorari to the United States Court oi Appeals

for the Fifth Circuit

CONSOLIDATED BRIEF OF THE RAILWAY LABOR

EXECUTIVES’ ASSOCIATION, AMICUS CURIAE

CLARENCE M. MULHOLLAND

741 National Bank Building

Toledo 4, Ohio

Epwarp J. Hickey, JR.

620 'Tower Building

Washington, D. C. 20005

JAMES L. HIGHSAW, JR.

Of Counsel: 620 Tower Building

MunHouLanp, Hickey & Lyman Washington, D. C. 20005

620 Tower Building Counsel for Railway Labor

Washington, D. C. 20005 Erecutives’ Association

Press or Byron S. ApaMs, WASHINGTON, D. C.

es te EER AC MER

AE Sak OR ee

TABLE OF CONTENTS

Se pce dilece nM CEE PER ne pina eS 1

Argument

I. The Obligations Of A Railroad Carrier Under

The Railway Labor Act And Its Agreements

Are Not Suspended During The Period Of A

TEE MEE Savarese ceicus eeuciietc a 4

II. The Distriet Court Did Not Have Authority Un-

der The Railway Labor Act To Relieve The

Florida Kast Coast Railway Of Some Of Its Ob-

ligations Under The Railway Labor Aet And

The Carrier’s Agreements .................. 11

III. The Florida Fast Coast Railway Was Barred

From The Relief Granted By Its Failure To

Make Every Reasonable Effort To Settle The

Underlying Labor Dispute ................... 16

RNY «xin nxadiemenivh sKdudddusdedacunded coe 18

INDEX TO CITATIONS

CASES:

American Shipbuilding Co. y. National Labor Rela-

tions Board, 380 U.S. 300 (1965) ................ 8

American Trucking Association vy. United States, 355

ssn e-siat s nacage LE EE Te eM fe MERE Sein 3

Boeing Airplane Co. v. Aeronautical Industrial Lodge

No. 751, 91 F. Supp. 596 (D.C. D.C., 1950), aff'd

Boeing Airplane Co. vy. National Labor Relations

Board, 174 F.2d 988 (D.C. Cir., og EE A OE 9,15

Brotherhood of Locomotive Engineers vy. Baltimore &

& Western Railroad, 321 U.S. 50 SE ce eens 16, 17

Florida East Coast Railway Co. v. Brotherhood of

Railroad Trainmen, 336 F.2d 172, 180, 181, cert.

ssn Pre ig: sos hae oh COREE Te 5, 12

International Association of Machinists v. Northwest

Airlines, 304 F.2d 206 (Sth Cir., WE Wiksceenaes 15

fs ee

OR SOR rs CATAL Bee

i aa ta i el gn ’

rian Mestad desis Pe ET ee Ren ee a eT eT

WSS HEDIS ANN FA al eat Silene BION RE SESE NIL DIOR SEL SERGE DARGA PEL TRRE

ce

li Contents Continued

Page

BOBED nc ccc cccccnccvevceescssececveeseesesess 4 15

Executives’ Association, 315 U.S. 373 (1942) .... 3

GFT (DGB) oo ns cccccedsccceccassesssisccesenes 8

N.L.R.B. v. Brown, 380 U.S. 278, 286 (1965) .........- 8

N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221 (1963) .. 8

N_L.R.B. v. Insurance Agents International Union, 361

WB, GIT (BUGDD noc ccc ctncncccrnsssecccecvesss 8

N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S.

ht epererrerry Trier i. Cee ee 8

National Labor Relations Board v. Pecheur Lozenge

Co., 209 F.2d 393, 403 (2nd Cir., 1953) ....--.. ++ HW)

National Labor Relations Board v. Remington Rand,

Inc., 130 F.2d 919, 927 (2nd Cir., 1942) .......... 9

National Labor Relations Board v. Small Tube Prod-

ucts, Ine., 319 F.2d 561 (5rd Cir., a eee 9

Railway Labor Executives’ Association v. United

States, 339 U.S. 142 (1950) ......-- 2. eee eee 3

Rutland Railway Corporation v. Brotherhood of Loco-

motive Engineers, 307 F.2d 21 (2nd Cir., 1962) ..16, 17

Textile Workers v. Darlington Mfg. Co., 380 U.S. 263

| ) eeerrrrere rere ee 8

United Steelworkers v. Bouligny, .. 0 Sos

Ed. 2d 217 (decided November 22, 1965) .....---. 14

STATUTES:

Judicial Code (28 U.S.C.A., Section 1332) ....-------- 14

National Labor Relations Act (28 U.S.C.A., Section

151, et seq.) ......---+-- EE ear oO

Norris-LaGuardia Act (28 U.S.C.A., Section 108) ... 16, 17

Railway Labor Act (45 U.S.C.A., Section 151, et seq.)

3, 4, 5, 6, 7, 8, 9,

10, 12, 13, 14, 17, 1

ise

IN THE

P Supreme Court of the United States

OcToBER TERM, 1965

No. 750

BROTHERHOOD OF RAiLway & STEAMSHIP CLERKS,

g FreIGHT HANpLers, Express ANd STaTIon

g Emp.oyes, AFL-CIO, er at.

, v.

8 Fiorina East Coast Ratway Company

8 No. 782

9 Unirep States or AMERICA

9 ¥e

. Friormpa East Coast Rarway COMPANY, ET AL.

2 No. 783

- FrLorma East Coast Rarway Company

v.

8 UNItTep Sratres oF AMERICA

On Writs of Certiorari to the United States Court of Appeals

for the Fifth Circuit

14 CONSOLIDATED BRIEF OF THE RAILWAY LABOR

EXECUTIVES’ ASSOCIATION, AMICUS CURIAE

517 PRELIMINARY STATEMENT

The Railway Labor Executives’ Association (here-

after called ‘‘ Association’’), on whose behalf this brief

as amicus curiae is presented, is a voluntary unin-

corporated Association with which are affiliated,

»

as follows:

American Railway Supervisors’ Association

American Train Dispatchers’ Association

Brotherhood of Locomotive Firemen and Engine

men

Brotherhood of Maintenance of Way Employes

Brotherhood of Railroad Sigualmen

Brotherhood of Railroad 'Trainmen

Brotherhood of Railway and Steamship Clerks,

Freight Handlers, Express and Station Em

vloves

Brotherhood Railway Carmen of Americ:

Brotherhood of Sleeping Car Porters

Hotel and Restaurant Employees and Bartenders

International Union

International Brotherhood of Boilermakers, Tron

Ship Builders, Blacksmiths, Forgers and

Helpers

International Brotherhood of Electrical Workers

International Brotherhood of Firemen and Oilers

Luternational Organization Masters, Mates and

Pilots of America

National Marine Engineers’ Beneticial Association

Order of Railway Conductors and Brakemen

Railroad Vardmasters of America

Railway Empleves’ Department, AFL-CLO

Seafarers’ International Union of North America

Sheet Metal Workers’ International Association

Switehmen’s Union of North Americ:

Transportation-Communication Employees Union

~——

through their chief executives, twenty-two national and

international railway labor organizations that are the

duly authorized representatives under the Railway

Labor Act of the vast majority of the Nation's rail

road employees. ‘The names of these individual organi

zations, some of which are petitioners in Case No, 790,

SME AOE LIAM LOIN AE BO Op Bes RATE A EON EGA a Pe

yAEEPE Ree cree. 2nctenmemannenetmmmren cmenaneatemmene!s

3

.

This Court has heretofore recognized the Associa-

tion as a proper party to appear before it in litigation

involving the interests of these aftiliated organizations.

Interstate Commerce Commission y. Railway Labor

Kreeutives’ Association, 319 U.S. 373 (IM42); Rail-

way Labor Executives’ Association vy. U. 8., 339 U.S.

12 (190); American Trucking Association, Ine. vy.

United States, 355 U.S. 141 (1957).

In accordance with the Rules of this Court. the

cousent of all parties to the eases under review has

been obtained for the tiling of this brief by the Associa-

tion as amicus curiae and such consents have been

tiled with the Clerk of the Court. Three questions of

Vital importance to the Association concerning the in-

terpretation and application of the Railway Labor

Act are presented by these cases for decision. In

our judgment, these questions are:

1. Whether a lawful strike by employees under the

Railway Labor Act temporarily suspends for the pe-

ried of such strike the obligations of the earrier in-

volved under the Railway Labor Act and its collective

bargaining agreements ?

2. Whether, while a lawful strike against a rail-

read carrier is in progress, a Federal Distriet Court

may relieve such carrier from the obligations of the

Railway Labor Act and collective bargaining agree-

ments on the ground that such relief is Hecessary to

emidle the carrier to effectuate a right of self-help

during the strike?

8. Whether a carrier subject to the Railway Labor

Aet, whieh has refused to arbitrate its dispute with

its employees which is the subject matter of a legal

strike against the carrier and which the employees

have agreed to arbitrate, may invoke the equitable

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processes of a Federal Court and be granted equitable

relief relieving it of contractual and statutory ob-

ligations on the ground of necessity to effectuate the

earrier’s right of self-help during the strike ?

ARGUMENT

I

The Obligations of a Railroad Carrier Under the Railway Labor

Act and Its Agreements Are Not Suspended During the

Period of a Lawful Strike

he Florida East Coast Railway has contended that

its obligation under its collective bargaining agree-

ments and under the Railway Labor Act are suspended

during the period of a lawful strike and are revived

when the strike ends (R. 103).

The Court of Appeals considered this contention and

rejected it as without merit. Florida East Coast Rail-

way Company V. Brotherhood of Railroad Trainmen,

1'The Florida East Coast Railway Company, cross-petitioner in

Case No. 783, has also raised the contention that the Federal dis-

trict court had no jurisdiction to entertain the complaints of the

United States and of the railway labor organizations representing

its employees to require the carrier's eompliance with its obligations

under the Railway Labor Act because the dispute between the

parties was a dispute concerning the interpretation and application

of collective bargaining agreements over which the National Rail-

road Adjustment Board has exclusive jurisdiction pursuant to the

provisions of Section 3 of the Railway Labor Act (45 U.S.C.A.,

Section 153). The Court of Appeals rejected this contention in

its earlier decision in Florida East Coast Railway Company V.

Brotherhood of Railroad Trainmen, 336 F.2d 172, cert. den. 379

U.S. 990, which opinion was followed in the present case. The

Court found (page 179) that the present situation is one in which

the carrier has unilaterally instituted wholesale changes in the

terms and conditions of its collective bargaining agreements with.

out recourse to the procedures of the Railway Labor Act and doe:

not involve any controversy over the interpretation and applica

tion of the agreements. This holding clearly conforms to the facts

, —— -

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336 F.2d 172, 180 (1964), cert. den. 379 U.S. 990, fol-

lowed in the present case. The Court's findings on this

read as follows:

“Opposed both by the BRT and the United States,

FEC urges that the collective bargaining agree-

ment is wholly suspended during the strike and

that any other holding will make it impossible to

avail itself of its right to continue its business

during the strike. It is clear that the suspension

argument has no merit. The BRT js still the

bargaining representative of all the employees in

the crafts of trainmen and yardmen whether union

members or not. Steele v. L.€N.R.R., 1944, 323

U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. The em-

ployees of FEC are entitled to the benefit of the

terms of the agreement, and the FEC may not

supersede the agreement by individual contracts,

whether consented to by the employees or not.

Order of Railroad Telegraphers vy. Ry. Express

Agencies, 1944, 321 U.S. 342, 346, 64° S.Ct. 582,

88 L.Ed. 788.”’

It is submitted that this holding of the Court of Ap-

peals is clearly correct. The argument of the Florida

East Coast Railway Company is to the effect that the

Railway Labor Act itself is suspended with respect

to a carrier’s obligations during the period of a law-

ful strike. This is made clear by the statement of the

carrier in its cross-petition in a writ of certiorari in

Case No. 783 in which it states (p. 15) that ‘*The

Court should consider the entire issue, and decide

whether the Act applies in such circumstances un-

conditionally (as the Government maintains), con-

ditionally as the Court of Appeals held, or not at all,

as the railroad believes.”” Thus, the carrier coutends

that it has no obligations of any kind under the Rail-

way Labor Act once a lawful strike begins.

6

This would mean the suspension during the period

of a lawful strike of the obligations of the earrier,

among others, ‘‘to make and maintain agreements”

(Section 2, First); the suspension of its duties and

obligations to consider all disputes with its employees

+n conferences with representatives of the employees

(Section 2, Second) ; the suspension of its obligation

to refrain from interference, influence, or coercion over

the choice of employees’ representatives to confer and

deal with the carrier (Section 2, Third) ; the suspen-

sion of its obligation to not interfere with the right of

its employees to join any national organization, and the

earrier’s further obligation not to interfere in any

way with the organization of its emplovees (Section 2,

Fourth); the suspension of its obligation to refrain

from requiring any person seeking employment to sign

a contract or agreement promising to join or not to

join a labor organization ( Section 2, Fifth); the sus-

pension of its obligation to submit disputes concerning

the interpretation and application of collective bar-

gaining agreements to the National Railroad Adjust-

meut Board for final and binding determination (Sec-

tion 2, Sixth); the suspension of its obligation not to

change the rules or working conditions of its employees

embodied in its agreements except in the manner pre-

<eribed therein or in Section 6 of the statute (Section

9 Seventh): and the suspension of its obligation to

a

follow the procedures of Sections 5 and 6 of the statute.

Finally, the earrier’s argument, if accepted, would

mean that once a strike had begun it would not be

possible for the President of the United States to

appoint a Presidential Emergency Board under Sec-

tion 10 of the statute to engage in fact-finding and

suggest or recommend a basis for settlement of the

7

dispute, and to restore normal labor relations pending

the Board’s report and for 30 days thereafter, even

though the President had found that it threatened sub-

stantially to interrupt interstate commerce to such a

degree as to deprive a section of the country of essential

transportation services. The carrier’s argument, if

valid, would also of necessity relieve the emplovees and

their representatives of all obligations under the

statute.

In short, the carrier’s argument is to the effect that

Congress intended to remove, once a lawful strike has

hegun, all statutory requirements on the parties with

respect to continuing efforts to restore normal rela-

tions in the interest of interstate commerce, all statu-

tory procedures which would assist the parties in

settling their disputes, all protection for employees,

including the statutory prohibition against forcing

them into signing ‘‘vellow-dog”’ contracts, and to leave

the whole matter to a species of jungle warfare limited

only by the eriminal statutes.”

The Florida East Coast Railway primarily relies

upon the decision of this Court in Brotherhood of

Locomotive Engineers v. Baltimore & Ohio Railroad

Company, et al., 372 U.S. 284 (1963), to support this

sweeping proposition. However, it is submitted that

this decision does not provide the basis for anv such

drastic conclusions. All that this ease did was to

clarify that once employees have exhausted all of the

procedures of the Railway Labor Act in major con-

* The carrier’s argument would necessarily include the suspen-

sion of even the criminal requirements of Section 2, Tenth, of

the Railway Labor Act or of any other statute, the application

of which related to obligations and duties under the Railway

Labor Act.

a ee ee .

tract disputes, they are then legally free to pursue

their demands by means of a strike and that once a

carrier subject to that statute has exhausted all of the

statutory procedures with respect to its contract pro-

posal, a carrier is legally free to put the proposals

into effect. The decision does not, as the Florida East

Coast Railway suggests, hold that the requirements of

the Railway Labor Act are suspended once a lawful

strike begins or that a carrier is free to disregard its

collective bargaining agreements although the carrier

i may put into effect contract proposals that have been

‘ fully processed under the statute and as to which

agreement has not been reached.

The Florida East Coast Railway also suggests that

its position is supported by decisions of this Court

under the National Labor Relations Act® and by de-

terminations of the National Railroad Adjustment

Board.‘

The National Labor Relations Act decisions dealt

with matters arising under specific provisions of that

statute. The Railway Labor Act is a different statute

with different procedures and requirements designed

, to govern management-labor relations in the railroad

8

cba ceri Beaker fae

Best ee GB tak Ge absence ‘

ERG LONGER ez TRS DR RNA i est

3 The carrier has referred to the decisions in N.L.R.B. v. Mackay

Radio & Telegraph Co., 304 U.S. 333 (1938) ; N.L.R.B. v. Insurance

Agents International Union, 361 U.S. 477 (1960); N.Z.R.B. v.

Erie Resistor Corp., 373 U.S. 221 (1963); Tertile Workers v.

Darlington Mfg. Co., 380 US. 263 (1965) ; N.L.R.B. v. Brown, 380

US. 278, 286 (1965) ; and American Shipbuilding Co. v. N.L.R.B.,

380 U.S. 300 (1965).

4The carrier has referred to First Division Awards No. 13,341

(Vol. 89 of First Division Awards, page 821); No. 17,055 (Vol.

122, First Division Awards, page 38); and Third Division Awards

No. 5042 (Vol. 48, Third Division Awards, page 291); No. 5074

(Vol. 48, Third Division Awards, page 583) ; No. 10,197 (Vol. 98,

Third Division Awards, page 73).

SOT PRS oF eee eS a RY Sh Stich Bi re ¥.

iiatinettet irriecrmmineen

LD OEE RED REL AS PRETEEN LEAS AND SEMA APO Mamta tite as iat

9

and air transport industries in which there is a par-

ticular public interest to achieve stability. See: Local

Union No. 25 of International Brotherhood of Team-

sters v. New York, New Haven & Hartford Railroad

Company, 350 U.S. 155, reh. den. 350 U.S. 977 (1956).

Moreover, none of the cases cited by the Florida East

Coast Railway Company under the National Labor

Relations Act holds that a lawful strike suspends the

requirements of that statute.

In addition, cases under the National Labor Rela-

tions Act have held that a strike does not terminate a

collective bargaining agreement (International Union

of Operating Engineers vy. Dahlem Construction Co.,

193 F. 2d 470, at page 475 (6th Cir., 1951); Boeing Air-

plane Co. v. Aeronautical Industrial District Lodge

No. 751, 91 F. Supp. 596 (D.C. D.C., 1950), aff’d

Boeing Airplane Co. vy. National Labor Relations

Board, 174 F. 2d 988 (D.C. Cir., 1949) ), and that statu-

tory requirements with respect to negotiations are not

suspended by a strike. National Labor Relations

Board v. Small Tube Products, Inc., 319 F. 2d 561

(3rd Cir., 1963); National Labor Relations Board v.

Pecheur Lozenge Co., 209 F. 2d 393, 403 (2nd Cir.,

1953) ; National Labor Relations Board v. Remington

Rand, Inc., 130 F. 2d 919, 927 (2nd Cir., 1942).

Similarly, the Adjustment Board decisions to which

the carrier has referred do not uold that a lawful

strike suspends statutory requirements. In each ease,

the Board interpreted the particular agreement before

it and held that the employee claim was not supported

hy any provision thereof.

The F'orida East Coast Railway contends that the

suspension of the obligations of the Railway Labor

PSE aad, |

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10

Act during a strike is necessary to make effective

the ecarrier’s right of self-help. The carrier sug-

gests that once the strike begins, there are no limita-

tions to restrict the union’s conduct of the strike or con-

trol over its duration. This argument ignores, the

fact that all of the statutory requirements enumerated

above with some exceptions are also limitations upon

the unions even though a strike is in progress. Thus,

the unions are under a continuing obligation to meet

the statutory requirements with respect to the settle-

ment of all their disputes, whether they arise out of

the making of contracts or otherwise, and to use the

procedures of the statutes to amend agreements.

Furthermore, the control of the duration of the

strike is as much in the hands of the earrier as those

of the union.

The carrier’s argument is really one to the effect

that its compliance with statutory obligations during

a lawful strike, including observance of the terms of

collective bargaining agreements, will be economically

burdensome and will impede its ability to fight the

strike. Thus, its argument is that it should be relieved

from all its statutory and contractual obligations in

order to be assisted in defeating the strike. It is sub-

mitted that this contention has no merit in terms of

the statute or of the public interest involved. The

public interest is that the strike should end as quickly

as possible through negotiation pursuant to the statu-

tory procedures. All of the provisions of the Railway

Labor Act, as well as its legislative history, bespeak

the fact that its purposes are to provide a framework

to assist in the settlement of all disputes between

11

employees and carriers subject to the statute.» There

is not the slightest indication in either the statutory

language or the legislative history that Congress in-

tended that once a lawful strike began, the statutory

requirements should be abandoned. The acceptance

of the carrier’s proposition would increase the likeli-

hood of strikes contrary to statutory purposes by re-

ducing carrier risks and increasing incentives not to

settle by negotiation, mediation, or arbitration. Such

acceptance would, at the same time, decrease the like-

lihood of prompt settlement of strikes by widening

the area of the dispute and by eliminating the statu-

tory requirements with respect to negotiation and

mediation which Congress has found most useful

through some 40 years’ experience under the Railway

Labor Act. The progress and continuation of the

present dispute, bolstered by the position the carrier

is taking in this litigation, is ample evidence of the

correctness of these conclusions.

II

The District Court Did Not Have Authority Under the Railway

Labor Act to Relieve the Florida East Coast Railway of

Some of Its Obligations Under the Railway Labor Act and

the Carrier’s Agreements

While the Court of Appeals rejected the contention

of the Florida East Coast Railway that the require-

ments of the Railway Labor Act and the obligations

of its collective bargaining agreements were suspended

during a lawfui strike, that Court created an entirely

new concept that the Federal Courts have authority to

* Particularly see Senate Report No. 905, 74th Congress, 1st Sess.,

pages 1-3 (1935); H. R. Rept. No. 2243, 74th Cong., 2nd Sess.,

pages 3-4 (1936).

ott Sage ARDS

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CEERI

Qieteeteatons

12

relieve a carrier from such of its statutory and con-

tractual obligations as are deemed necessary to enable

the carrier to effectuate its right of self-hetp. Pur-

suant to this holding, the District Court has relieved

the carrier of a statutory obligation to exhaust the

procedures of the statute for the negotiation of

practices previously unilaterally imposed in violation

of the statute and of its agreements (R. 223). It

is respectfully submitted that there is no basis in the

statute or the legislative history thereof to support

this conclusion.

The decision of the Court of Appeals is predicated

upon the proposition that since the carrier has a legal

right to operate during the period of a - :rike, the

courts are required to fashion a rule of law which will

enable the carrier to effectively exercise such right.

Otherwise, the Court says the weight of the law will

be on the side of the employees. The view of the

Court of Appeals is summarized in the following find-

ing: (Florida East Coast Railway Company V.

Brotherhood of Railroad Trainmen, 336 F. 2d 172 at

page 181)

‘Since the right surely exists, the law must ac-

commodate itself to the exercise of this power in

a way that will make it effectual. Brotherhood

of Railroad Trainmen v. Chicago R. & T. R.R.,

1957, 353 U.S. 30, 40, 77 S.Ct. 635, 1 L.kd.2d 622.

Anything less either temporizes with the so-far-

determined policy against compulsory arbitration,

or puts the full weight of law on the side of the

employees by making it impossible for the Rail-

road to carry on save on the terms and eonditions

iraposed by the organized employees who now re-

fuse to perform as agreed.”

~There is no basis whatsoever in the statutory lan-

guage for this proposition. The language of the statute

13

is mandatory in placing obligations upon employees

and carriers alike without qualification based on the

existence or non-existence of a strike. Thus, Section

2, First, provides that it shall “‘be the duty of all car-

riers * * * and employees to exert every reasonable

— effort to make and maintain agreements’’. Section 2,

Second, provides that all disputes ‘‘shall be considered

in conference between representatives”. Section 2,

Third, provides that ‘‘representatives shall be desig-

nated by the respective parties without interference,

influence, or coercion’? and that “neither party shall

in any way interfere’. Section 2, Fourth, provides

that ‘‘Emplovees shall have the right to organize and

bargain collectively”? and that ‘“‘no carrier * * * shall

deny or in any way question such right of its em-

ployees”’. Likewise, Section 2, Fifth and Sixth, pro-

vide mandatory requirements and. Section 2, Seventh,

contains an unqualified prohibition against a carrier

changing rates of pay, rules, or working conditions of

its employees in agreements except in the manner

prescribed in such agreements or in Section 6 of the

statute. Neither the Court of Appeals nor the Florida

Kast Coast Railway ean cite any legislative history

which would in any way qualify or modify the manda-

tory obligations of the statute so as to provide a basis

for a court to relieve a earrier of obligations there-

under.

The decision of the Court of Appeals also assumes

that the right of a earrier to operate during the period

of a strike is an absolute right. The rationale of its

decision is such that the carrier would have to be re-

lieved of any statutory obligation of any kind, shape,

or description which impeded in any way its ability

to carry on an operation as an effective weapon. Thus,

as a matter of legal concept, the only restriction on

the authority of the District Court to relieve the car-

Kish sasinisall

eee tiotieeermniovnvas

+ . . .

strike does in fact Impose

alii anti ihe

azaminta

EEN

14

‘actual or statutory obligations under

either the Railway Labor Act or under any other

statute would be the necessity for such relief to effectu-

ate the carrier's right to operate. The same logie would

require that unions similarly be relieved of all statu-

tory obligations deemed necessary for them to effectu-

ate their legal right to strike.

rier of any cont

is necessary to make clear

proposition starts the Fed-

il Courts down a long road in which they become

ers in labor disputes, not of what is the

law, but of what is needed by a earrier to operate dur-

»and by unions to carry on strikes. The de-

Congress in determin-

ements during

No detailed argument

that this acceptance of this

er

the sole arbit

ing a strik

cision substitutes the courts for

ing the applicability of statutory requir

a lawful strike. If the application of the statutory re-

quirements toa carrier during the period of a lawful

any undue burden upon it

ily interferes with its operating as a strike

weapon, then the solution for this problem clearly lies

with the Congress and not with efforts by the courts

J imbalanee by writing the statute

and und

to redress a claime

out of existence.

This Court has recently considered the ‘necessity’

argument as advaneed by a labor organization in sup-

port of a particular interpretation of a Federal stat-

ute, in that case Title 28 of the Judicial Code, Seetion

339 and held that the union's arguments, however

appealing, were addressed to an inappropriate forum

and ‘ought to be made to the Congress and not to the

courts”. United Steelworkers V. Boultgny, US.

.., IL. Ed. 2d 27 (decided November 22, 1965).

The Association does not concede that there is in fact

LOO RAC AE CB PTE MELD

15

any need for the Florida East Coast Railway to be

relieved of any obligations under the Railway Labor

Act. However, this is not a proper matter for the

courts. The division of authority in our government

requires that any contentions of the carriers in that re-

gard be addressed to the Congress and not to the

courts,

Minally, it should be observed that the decision of

the Court of Appeals disregards the provisions of the

collective bargaining agreements here involved. Those

agreements, like agreements gene ‘ally throughout. the

railroad industry, and unlike agreements under the

National Labor Relations Act, do not contain a spe-

cifie termination date but provide that they are to con-

tinue in effect until revised in accordance with the

statute.” Such provisions do not contain any clauses

relieving the carrier from its contractual responsi-

bility to carry out the statutory procedures with re-

spect to the revision of the agreements in cases where

a lawful strike is conducted against a carrier. Thus,

asa matter of simple contract law the earrier has con-

tracted and agreed to abide by the statutory pro-

cedures. See: International Union of Operating En-

gineers Vv. Dahlem Construction Co., 193 F. 2d 470,

at page 475 (6th Cir., 1951): Boeing Airplane Co. vy.

Aeronautical Industrial District Lodge No. 751,91 F.

Supp. 596 (D.C. D.C. 1950), aff'd Boeing Airplane

Co. Vv. National Labor Relations Board. 174 F. 2d 988

(D.C. Cir. 1949): International Association of Ma-

chinists v. Northwest Airlines, 304 F. 2d 206 (Sth Cir.,

1962).

"It is the understanding of the Association that these agree-

ments have not been printed in the record before the Court because

they are bulky and already in printed form, but. that instead

representative agreements have been supplied to the Court.

————————————ee—ee—————eEeEeEeEeEeEeEeEeEeEeaeEeEeEeEeEeEeEeEGCEeEeEeEeEOEOe eee” —_—_-

16

Ill

The Florida East Coast Railway Was Barred from the Relief

Granted by Its Failure to Make Every Reasonable Effort

to Settle the Underlying Labor Dispute

Assuming arguendo that the District Court had au-

thority to grant relief ofthe type here involved to a

earrier in an appropriate situation, it is submitted that

the Florida East Coast Railway was barred from such

relief by its failure to make every reasonable effort to

settle the underlying labor dispute which it claims

necessitated such relief. In Brotherhood of Railroad

Trainmen v. Toledo, Peoria & Western Railroad, 321

U.S. 50 (1954), this Court held that a earrier which

had refused to arbitrate a labor dispute, which the

labor organization involved had agreed to arbitrate,

could not invoke the equitable processes of a Federal

court for injunctive relief to prevent alleged illegal

actions, i.e. violence, during the course of a railroad

strike. The decision was based upon the provisions of

Section 8 of the Norris-LaGuardia Act.’

In Rutland Railway Corporation Vv. Brotherhood of

Locomotive Engineers, 307 F, 2d 21 (1962), the United

States Court of Appeals for the Second Cireuit in-

voked the same principle to bar injunctive relief

against a strike to a railroad which had unilaterally

made changes in its operations in violation of existing

collective bargaining agreements without negotiations

with the labor organizations involved. Vhe decision

7 Section & of the Norris-LaGuardia Act (29 U.S.C.A., Seetion

108) reads as follows: ‘‘No restraining order or injunctive relief

shall be granted to any complainant who has failed to comply

with any obligation imposed by law which is involved in the labor

dispute in question, or who has failed to make every reasonable

effort. to settle such dispute either by negotiation or with the aid

of any available governmental machinery of mediation or voluntary

arbitration.’’

Sa

17

of the Second Circuit equated the requ‘rements of See-

tion 8 of the Norris-LaGuardia Act with the non-

statutory duty of ‘“‘clean hands” imposed on all who

seek jurisdiction in a court of equity.®

In the present case, the Florida East Coast Railway

applied to the District Court for relief in the form of

approval of certain practices which were in violation

of its collective bargaining agreement (R. 189, 216).

The District Court granted the application with re-

spect to certain of these practices (R, 22: -225). At

the time this application was made, the Florida East

Coast Railway was in violation of the Railway Labor

Act in having unilaterally instituted these practices

Without utilizing the procedures of the statute to ob-

tain agreement thereto. (R. 180-191.) Thus, the ear-

rier was in the same position as was the railroad

seeking injunctive relief in the Rutland case,

Moreover, the Florida East Coast Railway was con-

tinuing to refuse to arbitrate the underlying labor dis-

pute which its application asserted gave rise to a need

for the requested relief, although the labor organiza-

tions involved had agreed to such arbitration (Ex-

hibit Vol. 1, pp. 459, 461).° Thus, the Florida East

Coast Railway at the time it requested and was granted

relief from the requirements of the Railway Labor Act

with respect to the need for negotiating the certain

changes in working conditions embodied in its collee-

tive bargaining agreements was in the same position

as was the railroad in the Toledo, Peoria e: Western

ease in that it had not exhausted every reasonable

* Footnote 13, page 42.

* Originally, both the labor organizations and the railroad had

refused the proffer of arbitration by the National Mediation Board.

Subsequently, the unions agreed to such arbitration while the car.

rier refused. This was the same situation which prevailed in the

Toledo, Peoria & Western case.

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18

effort to settle the labor dispute which gave rise to the

claim for relief and thus would not qualify for such

relief both under the applicable statute and under the

equitable ‘‘clean hands’’ principle.

The Association therefore respectfully submits that

even if the District Court had power to grant relief

from the statutory requirements in an appropriate

ease, the Florida East Coast Railway was barred from

obtaining sich relief in this case.

CONCLUSION

For the foregoing reasons, the judgment of the

Court of Appeals in the above-entitled cases should be

reversed and the cases remanded with directions to

the District Court to dismiss the application of the

Florida East Coast Railway for relief from its obli-

gations under the Railway Labor Act and its collective

bargaining agreements.

Respectfully submitted,

CLARENCE M, MULHOLLAND

741 National Bank Building

Toledo, Ohio 43604

Epwarp J. Hickey, JR.

James L. Hiausaw, JR.

620 Tower Building

Washington, D. C. 20005

Counsel for Railway Labor

Of Counsel: Executives’ Association

MuLHoLLAND, Hickey & LYMAN

741 National Bank Building

Toledo, Ohio 43604 and

620 Tower Building

Washington, D. C. 20005

March, 1966