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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1966
- **Citation:** 384 U.S. 238

## Text

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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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0262%3A07. Public record. Not legal advice.