Petitioners Brief, — Brotherhood of Railway & Steamship Clerks v. Florida East Coast Railway Co.

Supreme Court brief1966

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SSI 1a SAE —

Opinions in the Courts Below

Jurisdiction

Questions Presented

Statement of the Case

Present Litigation

Statement of Facts

Argument :

SUBJECT INDEX

i ee ed

STRESSES TCSCECHOSSEGDOCCEVVeesesoeeoseeveseeoesesenene¢d

eeeoseeeseeeaeeeeeoeeeeeCeoaeeseeseeenese®e

coeeweoeoer eer eee eeeeeeeee ees eeeees

cere eee ee ese eres eereeeeeeeeeeses

eee eee eee eee ees eseeeeseeeeees

eoeceeweeoeeeeeeeeeseeeee eee eee

eee eer eee eee eee eee sees eeseeses

The Plain Language of the Railway Labor Act

Forbids Kither Suspension of the Statute Dur-

ing a Strike or Judicially-Creaied Exceptions

to the Statute During a Strike

ree eee ee eeeeeee

Legislative History of the Railway Labor Act

Does Not Support the Statute’s Suspension

Kither in Whole or in Part During a Strike ....

III. The Basie Policies and Scheme of the Railway

IV.

Labor Act Are Defeated by Either Its Suspen-

sion or Judicial Interference with Its Operation

During a Strike

erecerveeeere eee eee esneseeeeeese

The National Labor Relations Act, and Cases

Thereunder, Are Inapposite

Bhi haa neantaneeee © oo

. Decisions of Court of Appeals in This Case and

in Florida East Coast Ry. Co. v. Brotherhood

of Railroad Trainmen, 336 F. 2d 172 (5 Cir.

1964), Represent an Unwarranted Substitution

of Judicial for Legislative Views on Proper Ad-

justment of Economie Balance of Power in Rail-

road Industry

eceoeeeeeeCorseeeeseeeseeoenseeeeeeses

il Index Continued

Page

VI. ‘‘Reasonably Necessary’? Exceptions Doctrine,

if Adopted, Should Be Governed by Equitable

Principles in Harmony with the Provisions of

the Railway Labor Act and the Norris-La

juardia Act; Its Benefits Should Not Be Avail-

able to a Party that Has Rejected Voluntary

Arbitration and Violated the Railway Labor

Aot’s Procedures ....csccccccccccccesscesene 7

nee Pr rer rie Cer er 49

Certificate of Service ....... 2. cee eee eee eee eee eeees 51

TABLE OF CASES AND AUTHORITIES

CASES:

Anerican Ship Building Co. v. NLRB, 380 U.S. 300

(9OGEE cvcescecactsdadevigessesbvenvanetesees 37, 38

Brotherhood of Locomotive Engineers v. B. € O. R. Co.,

972 U.S. BBA (1963) .....cccccccscecsvvcccvers 41, 42

Brotherhood of Locomotive Engwmeers v. Florida East

Coast Ry. Co., 57 LRRM 2641, (M.D. Fla. 1964),

stay denied, 341 F. 2d 99, 58 LRRM 2283, contempt

order entered, 60 LRRM 2292 ..........-+++++-- 26

Brotherhood of Locomotive Firemen and Enginemen

v. Florida East Coast Ry. Co., 346 F. 2d 673 (5

Ce, WOOBD ng cco vine cosccceecursstessvesessts 23

Bortherhood of Railroad Trainmen vy. Chicago R. &

I. R. Co., 353 U.S. 30 (1957) «0... ee eee eee eee 31

Brotherhood of Railroad Trainmen vy. Florida East

Coast Ry. Co., 55 LRRM 2561 (M.D. Fla. 1964) . .25, 26

Brotherhood of Railroad Trainmen vy. Toledo, P. d W.

R.R., 321 U.S. 50 (1944) .........-- 6, 11, 23, 47, 48, 49

Elgin, J. dé E. Ry. Co. v. Burley, 325 U.S. 711 (1945) . .35, 46

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ......... 45

Florida East Coast Ry. Co. v. Brotherhood of Railroad

Trainmen, 336 F. 2d 172 (5 Cir. 1964), certiorari

denied, 379 U.S. 990 .....cesscees 9, 10, 11, 21, 25, 28,

31, 39, 40, 41, 42, 43, 47

Florida East Coast Ry. Co. v. Broward County Port

Authority, Case No. 63-282-Civil, U.S, District

Court, Southern District, Miami Division, Florida 22

Index Continued iii

Page

Florida East Coast Ry. Co. v. Gamser, Case No. 65-

165-Civil, U.S. District Court, Middle District,

Jacksonville Division, Florida .................. 26

Florida East Coast Ry. Co. v. Jacksonville Terminal

Co., Case No. 63-16-Civil, U.S. District Court,

Middle District, Jacksonville Division, Florida .. 22

Florida East Coast Ry. Co. v. Jacksonville Terminal

Co., 328 F. 2d 720 (5 Cir. 1964) .............:.. 21

Florida East Coast Ry. Co. v. Mason, Fla. 1965, 177

RE Ea pe vites idea eet cae 13

International Brotherhood of Electrical Workers, AFL-

CIO v. NLRB, 150 NLRB No. 37, order enforced,

350 F. 2d 791 (D.C. Cir. 1965), petition for a writ

of certiorari filed January 17, 1966, Case No. 918,

UNE ONE WN os wa cig wii ner ocd wo cota ss 24

Leedom vy. International Brotherhood of Elec. Wkrs.,

ane Foe aor CA, Cir, TOUD) «5. occ ccscccsss 32

Local U. No. 721 v. Needham Packing Co., 376 U.S.

ce SET eee Pee Oe A ES ae 37

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

1964), certiorari denied, 379 U.S. 817 .......... 11, 32

Milk Wagon D. Union v. Lake Valley F. Products, 311

oF Rg Se Oe ey kes Sei 49

NLRB v, Erie Resistor Corp., 373 U.S. 221 (1963) .. .36, 37

NLRB vy. Insurance Agents Union, 361 U.S. 477 (1960)

37-38

NLRB v. MacKay Radio & Telegraph Co., 304 U.S. 333

Do yng, OTE Tee

Order of Railroad Conductors v. Florida East Coast

Ry. Co., Case No. 64-237-Civil, U.S. District Court,

Steele v. L. & N. R.R., 323 U.S. 192 (1944) ........... 41

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381

SEE. damcneul de de coer Pers eh okeer cbcobc ork bce 38

Swift v. Tyson, 16 Pet. 1 (1842) ...........00cc cence 45

Telegraphers v. Ry. Express Agency, 321 U.S. 342

So REPS ORES AR SU eee 41

United States v. Florida East Coast Ry. Co., 221 F.

co. BOOM eee 24

iv Index Continued

STATUTES : Page

4 Erdman Act of 1898, 30 Stat. 424 .....-.++eeeeeeeees 30

j Judicial Code, 28 U.S.C. 1254(1) ....--eeee eee eres: —

4 National Labor Relations Act, as amended, 29 US.C.

E 148 a6 OR sce pues pokeawens 24, 27, 34, 35, 36, 37, 38

5 Newlands Act of 1913, 38 Stat. 103 .....-+.++eereee 30

i Norris-LaGuardia Act, as amended, 29 U.S.C. 101 et

4 WU, knecveedesretenvresivvsrwdssvesenes 5, 28, 44, 47

; Public Law 88-108, 77 Stat. 182 ......-+-+-eeees 12, 25, 30

4 Railway Labor Act, Title I, as amended, 44 Stat. 577,

3 45 U.S.C. 151-163 .........-. 2, 27, 28, 30, 31, 34, 35, 36,

39, 40, 45, 46, 47, 49, 50

Mattie D .ccascacercccedneweneessn vi eran 32, 39

Section 2, First ......---+seeeeeesecececes 32, 47

Section 2, Seventh ........---- 2, 3, 5, 6, 28, 32, 33

Section 2, Tenth ........--eeeeeeeee cere 2, 3, 33

Section 3, First .......-.-seeeeeeeeeeeecens 31

Section 5, First ........--eeeeeeeeees 2, 4, 6, 8, 33

Section 5, Third .........--eeeeeecescesses 32

ee Serer 2, 5, 6, 16, 17, 18, 33

Rastiaes WD. oc ccsccwa cendseseseenxeesats 25, 28, 33

Transportation Act of 1920, 41 Stat. OOP ccicrswcanws 30

es a RRA te EEE i att eal COE IIE Be LAE RITE EL OLE RELIES Estey LO TEARS NEE IIE TE INCL.

IN THE

Supreme Court of the United States

OcroBerR TERM, 1965

No. 750

BroTHERHOOD oF Railway AND STEAMSHIP CLERKS, FREIGHT

Hanpers, Express anp Station Emptoyrrs, AFL-CIO,

ET AL., Petitioners,

Forma Kast Coast Raruway Company

No. 782

Unrrtep States, Petitioner,

Froriwa Kast Coast Ratpway Company, ev AL.

No. 783

Frorwa East Coast Rateway Company, Petitioner,

Unrtep States

On Writs of Certiorari to the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR PETITIONERS IN NO. 750

OPINIONS

The opinion of the United States Court of Appeals

for the Fifth Circuit is officially reported at 348 F.2d

682 and is unofficially reported at 59 LRRM 2854; it is

reprint] ui it. 903-911. The findings of fact and con-

clusious of law and the injunction of the United States

ancr et S

Bice vis Mi St oS RS Ne SET a OR les cl Page A

District Court for the Middle District of Florida,

Jacksonville Division, are not officially reported, but

the findings of fact and conclusions of law are unoffi-

cially reported at 57 LRRM 9618-2622. The findings

of fact of the District Court appear in the printed ree-

ord, Volume I, at R. 180-186; the conclusions of law

of the District Court appear in the printed record,

Volume I, at R. 186-189; and the preliminary injune-

tion issued by the District Court appears in the printed

record, Volume I, at R. 189-191.

JURISDICTION

The judgment of the Court of Appeals was entered

on July 21, 1965 (R. 911). Mr. Justice Black there-

after, by orders dated October 15, 1965 (R. 912), and

November 18, 1965 (R. 913), extended the time for

filing a petition for a writ of certiorari to and inelud-

ing November 29, 1965. The petition for writ of cer-

tiorari in Case No. 750 was filed on November 18, 1965;

the petitions in Nos. 782 and 783 were filed on Novem-

ber 29, 1965. This Court granted the three petitions

on January 24, 1966, and ordered the cases consoli-

dated, The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

STATUTES INVOLVED

1. Title I of the Railway Labor Act, as amended, 49

U.S.C. 151-163 [44 Stat. 577 (1926), 48 Stat. 926 (1934),

48 Stat. 1185 (1934), 49 Stat. 1921 (1936), 54 Stat. 785,

786 (1940), 62 Stat. 991 (1948), 63 Stat. 107 (1949),

77 Stat. 132 (1963), 78 Stat. 748 (1964) ].

The provisions of Section 2, Seventh; Section 2,

Tenth; Section 5, First; and Section 6 of the Railway

Labor Act are set forth herein, verbatim, as follows:

eae SE suas

Section 2, Seventh (45 U.S.C. 152, Seventh) :

‘*Seventh. No carrier, its officers, or agents shall

change the rates of pay, rules, or working condi-

tions of its employees, as a class, as embodied in

agreements except in the manner prescribed in

such agreements or in section 156 of this title.’’

Section 2, Tenth (45 U.S.C. 152, Tenth) :

“Tenth. The willful failure or refusal of any

carrier, its officers or agents, to comply with the

terms of the third, fourth, fifth, seventh, or eighth

paragraph of this section shall be a misdemeanor,

and upon conviction thereof the carrier, officer, or

agent offending shall be subject to a fine of not

less than $1,000, nor more than $20,000, or im-

prisonment for not more than six months, or both

fine and imprisonment, for each offense, and each

day during which such carrier, officer, or agent

shall willfully fail or refuse to comply with the

terms of the said paragraphs of this section shall

constitute a separate offense. It shall be the duty

of any United States attorney to whom any duly

designated representative of a carrier’s employees

may apply to institute in the proper court and to

prosecute under the direction of the Attorney

General of the United States, all necessary pro-

ceedings for the enforcement of the provisions of

this section, and for the punishment of all viola-

tions thereof and the costs and expenses of such

prosecution shall be paid out of the appropriation

for the expenses of the courts of the United States:

Provided, That nothing in this chapter shall be

construed to require an individual employee to

render labor or service without his consent, nor

shall anything in this chapter be construed to make

the quitting of his labor by an individual employee

an illegal act; nor shall any court issue any proc-

ess to compel the performance by an individual

employee of such labor or service, without his con-

sent.”’

PRADA LAE ti th a SI Aaa

Section 5, First (45 U.S.C. 155, First) :

‘‘First. The parties, or either party, to a dis-

Q pute between an employee or group of employees

3 and a carrier may invoke the services of the Medi-

d ation Board in any of the following cases:

‘‘(a) A dispute concerning changes in rates of

pay, rules, or working conditions not adjusted by

3 the parties in conference.

3 ‘“(b) Any other dispute not referable to the Na-

B, tional Railroad Adjustment Board and not ad-

justed in conference between the parties or where

conferences are refused.

¢ ‘‘The Mediation Board may proffer its services

: in ease any labor emergency is found by it to exis.

at any time.

: ‘*In either event the said Board shall promptly

3 put itself in communication wiih the parties to

s such controversy, and shall use its best efforts, by

mediation, to bring them to agreement. If such

efforts to bring about an amicable settlement

through mediation shall be unsuccessful, the said

Board shall at once endeavor as its final required

action (except as provided in paragraph third of

this section and in section 160 of this title) to in-

duce the parties to submit their controversy to

arbitration, in accordance with the provisions of I

this chapter. ti

‘“‘Tf arbitration at the request of the Board shal! |

be refused by one or both parties, the Board shall

at once notify both parties in writing that its

mediatory efforts have failed and for thirty days

thereafter, unless in the intervening period the

parties agree to arbitration, or an emergency board

shall be created under section 160 of this title, no

change shall be made in the rates of pay, rules, or

working conditions or established practices in ef-

fect prior to the time the dispute arose.”’

Te 9 Sha CL Ain

RN OS PERERA

eRe ra hae PS 2

AiR. SR oate ma

ee PRERE RR Dele

Section 6 (45 U.S.C. 156) :

‘Carriers and representatives of the employees

shall give at least thirty days’ written notice of an

intended change in agreements affecting rates of

pay, rules, or working conditions, and the time

and place for the beginning of conference between

the representatives of the parties interested in

such intended changes shall be agreed upon within

ten days after the receipt of said notice, and said

time shall be within the thirty days provided in

the notice. In every case where such notice of in.

tended change has been given, or conferences are

being held with reference thereto, or the services

of the Mediation Board have been requested by

either party, or said Board has proffered its serv-

ices, rates of pay, rules, or working conditions

shall not be altered by the carrier until the con-

troversy has been finally acted upon, as required

by section 155 of this title, by the Mediation Board,

unless a period of ten days has elapsed after ter-

mination of conferences without request for or

proffer of the services of the Mediation Board.

May 20, 1926, ¢. 347, § 6, 44 Stat. 582; June 21,

1934, ec. 691, § 6, 48 Stat. 1197.”

2. The Norris-La Guardia Act, as amended, 29 U.S.C.

101-115 [47 Stat. 70 (1932), 62 Stat. 862 (1948)]. See-

tion 8 of the Norris-La Guardia Act, 29 U.S.C. 108,

47 Stat. 72 (1932), is set forth herein as follows:

‘$108. Nonecompliance with obligations involved

in labor disputes or failure to settle by nego-

tiation or arbitration as preventing injunctive

relief

‘“‘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

;

Se]

APrARADW SHY

has failed to make every reasonable effort to settle

such dispute either by negotiation or with the aid

of any available governmental machinery of medi-

ation or voluntary arbitration.”’

QUESTIONS PRESENTED

1. May a Federal District Court aid a earrier faced

with a legal strike, by relieving the earrier from its

duty to comply fully with the Railway Labor Act in

order to effectuate the earrier’s ‘‘right to continue to

run its railroad under the strike conditions’?

2. Did not the Court of Appeals rule in conflict with

a decision of this Court, Brotherhood of Railroad

Trainmen v. Toledo, P. & W. R.R. (1944), 321 U.S. 50,

by holding that affirmative federal equitable relief may

be granted to a railroad involved in a legal strike even

though the railroad has repeatedly rejected voluntary

arbitration of the strike issues?

STATEMENT OF THE CASE

Present Litigation

The United States brought this suit in April, 1964,

in the United States Distriet Court for the Middle Dis-

trict of Florida, Jacksonville Division, against the

Florida East Coast Railway Company’ to enforce the

‘status quo’’ provisions of Section 2, Seventh, and

Section 6 of the Railway Labor Act (R. 2-11). The

1 Hereinafter referred to as FEC.

2The printed record in this case consists of three volumes.

Volumes I and II contain the pleadings, court orders, and a tran-

script of the testimony. The third volume, entitled ‘‘ Exhibit

Volume’’, contains most of the documentary evidence introduced

at the hearings, certain excluded exhibits designated for inclusion

by the FEC, and the exhibits attached to the Affidavit of Eugene

C. Thompson, Executive Secretary of the National Mediation Board,

aan TN Sat A IE MOET

three-count complaint sought injunctive relief to pro-

hibit the FEC from continuing in effect or imple-

menting (1) a Section 6 Notice of July 31, 1963 (i.e.,

a notice required under § 6 of the Railway Labor Act),

served by the FEC upon eighteen labor organizations

proposing to abolish the union shop provisions in its

contracts with those organizations; (2) a Section 6

Notice of September 24, 1963, served by the FEC upon

seventeen labor organizations proposing a complete

revision of all existing rules, rates of pay, and working

conditions; and (3) certain ‘‘Conditions of Employ-

ment’’ which were also a complete revision of all con-

tracts substantially the same as the September 24,

1963, Section 6 Notice proposal, and which the FEC

had promulgated in written form on September 1, 1963,

and had put into effect and implemented without

serving any Section 6 Notice whatsoever.

The complaint alleged that the two Section 6 Notices

had been put into effect while the National Mediation

Board* had them docketed for mediation and before

which the trial Court stated without objection would be con-

sidered by the Court and, to avoid duplication in the record

should not be reintroduced into evidence (R. 278). Volumes I

and IT are paginated consecutively whereas the Exhibit Volume

is paginated independently. References to Volumes I and II will

be made by the smbol ‘‘R.’’, e.g., ‘“‘R. 25’; references to the

Exhibit Volume will be made as follows: ‘‘ Exh. Vol., p. 25.’’

The only significant documents which do not appear in the Ex-

hibit Volume are the many voluminous contracts between the FEC

and the non-operating unions (Pl.’s Exh. 4, R. 285), which were

already in printed form and were not, by agreement of all parties,

reprinted for the Court of Appeals, but, instead, several printed

copies of one of the contracts, the Shop Crafts Agreement (Pl. Exh.

4-C, R. 333-334), were supplied to the Court of Appeals as a part

of the record. Fourteen copies of this printed Shop Crafts

Agreement, plus fourteen copies of three other contracts, have

also been supplied to the Clerk of this Court.

3 Hereinafter referred to as NMB.

Mtoe saa

BEEMAN OSB RD LG USAR LK 8

CN NB EAM ER te ae

the NMB had finally acted upon them under Section 5,

First, of the Railway Labor Act, and that the ‘‘Condi-

tions of Employment”’ had been implemented without

following any of the procedures required by the Rail-

way Labor Act. The complaint was accompanied by

a motion for preliminary injunction (R. 13-16), and

an affidavit of the Executive Secretary of the NMB

(R. 37-42).

On May 6, 1964, eleven of the eighteen labor organ-

izations referred to in the complaint moved to inter-

vene as additional plaintiffs (R. 43-44). The movants

were the eleven so-called ‘‘non-operating’™’ unions

which had gone on strike against the FEC on

January 23, 1963, and are the petitioners in Case No.

750 in this Court.

On May 26, 1964, the FEC filed its answer to the

complaint (R. 96-107) admitting many of the factual

allegations of the Government’s complaint. The case

came on for hearing (R. 235) before Chief Judge

Bryan Simpson on the Government’s motion for a pre-

liminary injunction, the eleven non-operating unions’

*In the parlance of the railroad industry, ‘‘operating’’ unions

are unions representing crafts which actually operate trains (e.¢.,

engineers, conductors, trainmen, brakemen, firemen, switchmen,

hostlers, and yardmen) while ‘‘non-operating’’ unions represent

other crafts involved in the railroad business (e.g., clerks, main-

tenance-of-way employees, signalmen, telegraphers, macirinists,

ete.). Since dissolution of Eugene V. Debs’ American Ruilway

Union after the Pullman strike of 1894, the railroad industry has

been overwhelmingly organized along ‘‘craft’’ rather than ‘‘in-

dustrial’”’ lines. The exceptions to this pattern usually involve

only small railroads owned and operated by industries, such as

the steel industry, which are organized on an industrial basis.

The FEC’s Section 6 Notice of September 24, 1963, and its ‘‘Con-

ditions of Employment’’ virtually abolish all craft lines.

" on By

ets

petition to intervene, and various FEC defensive

motions [e.g., motion to dismiss, (R. 108); motion to

stay, (R. 50) ; motion to continue, (R. 56)]. The peti-

tion to intervene was granted at the outset after

argument (R. 243); the motions to stay and to con-

tinue were denied (R. 244-249); and the motion to

dismiss was carried with the case (R. 267-269).

For three days (May 26-May 28, 1964) the District

Court received testimony and evidence on the motion

for a preliminary injunction (R. 275-592). At the con-

clusion of the hearing the Court announced it would

delay ruling for a reasonably short time to see if the

Court of Appeals might render its decision soon in a

pending companion case (Florida East Coast Ry. Co.

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

cert. den., 379 U.S. 990)° involving many of the same

issues (R. 588-589).

The Court of Appeals ruled in the Trainmen’s case

on August 18, 1964.° Thereafter, upon receiving

supplemental memoranda from the parties. (R. 141,

151), the District Court on October 30, 1964, rendered

its Findings of Fact and Conclusions of Law (R. 180-

189) and its Preliminary Injunction (R. 189-191) in

this case. The relief granted was substantially as

sought in the complaint except that the FEC, pursuant

to the Trainmen’s decision, was granted permission

to apply to the Court for specific authorization to

make changes in rules, rates of pay, and working

5 Hereinafter referred to as the Trainmen’s case.

° The Opinion in the Trainmen’s case is reproduced in Appendix

C to the Government’s petition for certiorari in No. 782, pp.

26a-44a.

“¢

)

ih 2 BEB aa Rec eeRMRR eet

fet

Sindee ot ill se apa I

conditions without following Railway Labor Act pro-

cedures during the pendency of the current strike

upon a finding by the Court of a ‘reasonable necessity

therefor’? (R. 190-191, par. (e)).

On November 12, 1964 (before the injunction took

effect), an Application of Defendant [FEC] for

Approval of Employment Practices was filed (R. 216)

supported by affidavits CR. 195, 203, 211) claiming that

the effect of the injunction, if no deviations were per-

mitted, would be to reduce the FEC’s business by from

306, to 50% CR. 196, 206, 214) and possibly ‘‘to stop

the operation of the railroad immediately and com-

pletely’? (R. 206). The District Court continued a

stay of its injunction until hearing on the application

(R. 222-223). The hearing came on November 30,

1964 (R. 593) and continued for three days (R. 593-

898). The FEC’s Application was opposed by both

the United States and Intervenors (R. 868-878,

879-882).

On December 3, 1964, an Order was entered granting

portions of the FEC’s application and denying others

(R. 223-225).7. Both the FEC and the United States

appealed from the preliminary injunction and the

Order of December 3, 1964 (R. 225, 234).

On appeal all parties made a frontal assault on the

ruling in the Trainmen’s decision, The FEC renewed

its contention that its operations during the non-

operating unions’ strike were exempt from the pro-

——_—

7 The time limits in the Order of December 3, 1964, have since

been extended by the District Court and all of the exceptions

granted are still in effect.

ee EB eC SONI. |

hibitions of the Railway Labor Act* and tha: the

District Court was without jurisdiction to enforce

the Act. The United States and Intervenors argued

that the so-called ‘‘reasonably necessary’’ exceptions

doctrine enunciated in the Trainmen’s decision shouid

be reconsidered and receded from as contrary to both

the language and the policy of the Railway Labor

Act. The United States also reasserted (R. 869) that

the FEC was barred by the doctrine of unclean hands

from seeking the affirmative equitable relief involved

in the ‘‘reasonably necessary’’ exceptions doctrine, and

Intervenors urged that the FEC, having repeatedly

declined voluntary arbitration, was barred from seek-

ing affirmative equitable relief under the decision of

this Court in Brotherhood of Railroad Trainmen vy.

Toledo, P. d& W. R.R., 321 U.S. 50 (1944).

On July 21, 1965, the Court of Appeals rendered

its decision affirming the injunction and the Order of

December 3, 1964, in all respects and declining to

modify its earlier ruling in the Trainmen’s case

(R. 903-911). These petitions for a writ of certiorari

followed and were granted on January 24, 1966

(R. 915).

Statement of Facts

The background leading up to this ease is extensively

set forth in the Report to the President by imergency

Board No, 157 (Exh. 17 to Affidavit of Eugene C.

* This argument is sometimes loosely referred to as the ‘‘contract

suspension’? argument. Actually, and more accurately, it is a

‘statute suspension’’ argument since it is the statute, more than

the mere contracts, which requires carriers by rail to preserve

existing rules, rates of pay, and working conditions unless changed

in accordance with the statute's prescribed procedures. Manning

v. American Airlines, 329 F. 2d 32 (2 Cir. 1964), cert. den., 379

US. 817.

a ss . a

Thompson, Exh. Vol., pp. 451-506; R. 278). Briefly

summarized, the dispute began on September 1, 1961,

with the Intervenors serving a Section 6 Notice on the

FEC and all other Class I railroads seeking a 25¢

per hour across the board pay raise (R. 456) and

six months’ advance notice of any reduction in force

or abolition of a position (R. 495-497). To this the

carriers responded with a counter-proposal reducing

rates of pay by 20% and eliminating all rules requiring

more than twenty-four hours’ notice of any reduction

in force or abolishment of a position (R. 498-500).

The dispute was negotiated on a national basis

until the FEC on February 9, 1962, withdrew from the

Southeastern Carriers Conference and announced that

it would not be bound by any settlement reached on a

national basis (Exh. Vol., p. 456; R. 844). Shortly

thereafter the national bargaining was settled in con-

®It has been customary in the railroad industry for collective

bargaining to be conducted on a national basis, i.e., with the car-

tiers and the organizations bargaining through national or re-

gional conferences or committees and reaching uniform agreements

applying to all. The reasons for this pattern of bargaining are

well set forth in the Report to the President by Emergency Board

No. 157 (Exh. Vol., pp. 471-472). Basically, as stated by a car-

rier spokesman, they involve ‘‘the extraordinary degree to which

railway employees from different carriers * * * are thrown together |

in their work, * * *’’ and ‘‘ * * * the fact that employee morale

and stable and harmonious labor relations can be maintained, and

endless turmoil and strife avoided, only if uniform and nondis-

criminatory adjustments are made in the rates of pay and in the

rules governing the compensation and working conditions of all

classes and crafts of employees * * *’’ (Exh. Vol., pp. 471 and

472). Both the carriers and the organizations have traditionally

advocated national handling (Exh. Vol., p. 471), albeit after

passage of Public Law 88-108 in 1963 imposing compulsory arbi-

tration on a national level for the first time during peace in this

Nation’s history, many of the labor organizations are reconsider-

ing their position in this regard.

—_,

formity with the recommendations of Emergency

Board No. 145 on the basis of a 10.28¢ per hour

across the board wage increase and a five working

day notice requirement for abolishing jobs (Exh. Vol..

pp. 455-456). This soon left the FEC as the only Class

I railroad in the country which did not accept the

recommendations of Emergency Board No. 145 (Exh.

Vol., p. 456).

Meanwhile, bargaining with the FEC proceeded to

a stalemate (Exh. Vol., pp. 457-458) ; both sides

rejected arbitration as proffered by the NMB (Exh.

Vol., p. 457); and on January 23, 1963, the non-

operating employees represented by Petitioners struck

(Exh. Vol., p. 458).

The FEC ceased operations due to the strike from

January 23 to February 5, 1963, when it operated its

first post-strike train from Jacksonville to Miami

(R. 394-396). Thereafter, the FEC gradually re-

cruited a work force (Def.’s Exh. II, Exh. Vol.,

pp. 219-220; Def.’s Exh. BB, Exh. Vol., pp. 167-168;

R. 718, 657) until by May, 1964, the FEC had working

approximately fifty percent of its pre-strike force, in

terms of numbers (R. 381), and was handling approx-

imately 95% of its pre-strike earload fréight capacity

(R. 361, 363, 371, 379-380, 386), albeit it was not

handling less-than-carload freight (R. 380, 397) or any

passenger service (R. 802, 353, 367, 755-757 ; Exh. 17,

Exh. Vol., pp. 459-460).°

The FEC did not restore any passenger service until after the

Florida Public Utilities Commission ’s original order requiring it

to do so was quashed by the Florida Supreme Court and a more

restricted PUC order entered. See Florida East Coast Ry. Co. v.

Mason, Fla., July 14, 1965, 177 So. 2d 217.

penn arm sen es eal

ELE LILLE IL EE LENGE LE

Meanwhile, continuing Government efforts to bring

about a settlement of the dispute were unsuccessful.

Requests that the parties agree to voluntary arbitration

were renewed by the Secretary of Labor in April and

May of 1963 (Exh. Vol., p. 459). This time the striking

unions accepted the requests, but the FEC refused

both times (Exh. 17 to Thompson Affidavit, Exh. Vol.,

p. 459; R. 278).

Due to the fact that the FEC, under contract with

N.A.S.A., was constructing a spur which would be the

sole railroad link into the complex of defense and space

program installations on Cape Kennedy (then Cape

Canaveral) and Merritt Island (Exh. Vol., pp. 454,

459-462, 491), the Government's concern about the

dispute grew sharper. In September 1963, President

Kennedy ordered a special Federal Inquiry Board to

investigate the dispute (Exh, Vol., pp. 501, 460). The

Board found the dispute to be ‘currently and poten-

tially detrimental to our Nation’s defense and space

efforts’? (Exh. Vol., p. 460), and recommended resump-

tion of negotiations and voluntary arbitration (Exh.

Vol., p. 460). President Kennedy, on receipt of the

report, reiterated his concern, asked the NMB to renew

its efforts, and requested to be kept advised (xh.

Vol., p. 504). The NMB’s further mediation efforts

were not suecessful, and again the NMB proffered

arbitration (Exh. 17 to Thompson Affidavit, Exh. Vol.,

p. 461; R. 278). Again the unions accepted (Exh.

Vol., p. 461). Again the FEC rejected the proffer

(Exh. Vol., p. 461).

One of the last official acts of President Kennedy

was the creation of Emergency Board No, 157 by

Executive Order No. 11127 (Exh. Vol., pp. 491-492).

The Board convened on November 20, 1963, recessed

on November 23 for ten days in mourning for the

death of President Kennedy, and filed its report with

President Johnson on December 23, 1963 (Exh. Vol.,

pp. 451-490). The unions have agreed and do now

agree to accept the report's recommended basis for

settlement; the FEC refuses.

Meanwhile, as described above, the FEC was

expanding its work foree and resuming the most

profitable phase of its business, carload freight. In

doing so, however, it did not work the employees in

either the striking crafts or the non-striking crafts"

according to the rules, rates of pay, or working condi-

tions as embodied in their existing contracts, but

instead, as admitted in FEC’s answer (R. 102-103),

used “the manpower available to it in whatever manner

required to provide service to the public.’? These

‘adically different rules, rates of pay, and working

conditions were finally codified by the FEC on

September 1, 1963, under the title “Conditions of

Employment’? (Pl.’s Exh. 2, Exh. Vol., pp. 4-35;

R. 276-277), and each employee was required to sign

a receipt for such Conditions agreeing individually

“to work thereunder.” (Pl.’s Exh. 4A. Exh. Vol.,

p. 75; R. 283-284). It is clear that the Conditions of

Employment were the exclusive rates of pay, rules and

working conditions for the people showing up for

work, both prior to September 1, 1963, and thereafter,

until the FEC put into effect certain Section 6 Notices

"The employees in the non-striking crafts mostly honored the

strikers’ picket lines. However, this was not 100% the case, as

admitted by FEC in its answer (R. 102, par. 8). The non-strikine

unions left this decision up to the individual worker (e.g., R. 487,

484-488).

x &,

hereafter discussed (R. 289-302, 342-343, 289-351). It

is also clear that the Conditions of Employment are

different from the various existing contracts (R. 103,

289-290, 327, 331, 334, 335); that the contracts them-

selves make no provision for such ‘‘emergency”’

measures (R. 324); and that under the Conditions of

Employment craft lines were abolished (P1.’s Exh. 2,

Exh. Vol., p. 5; R. 276-277), seniority rights changed

(R. 327, 331), safety provisions eliminated (R. 334),

pay rates altered (R. 335), and a 6-day week instituted

when deemed needed by the railroad (PI.’s Exh. 2,

Exh. Vol., p. 19; R. 276-277).

After putting the Conditions of Employment in

written form on September 1, 1963, the FEC next

incorporated almost all of their provisions into a

Section 6 Notice dated September 24, 1963, which it

served upon the seventeen non-operating crafts

-(R. 320; Exh. 12 to Thompson Affidavit, Exh. Vol.,

pp. 399-440; R. 278). This September 24, 1963, Section

6 Notice, also called ‘‘The Uniform Working Agree- |

ment”? (Exh. Vol., pp. 402, 38), is ‘¢fundamentally

the same”’ (R. 343) although not identical with the |

prior Conditions of Employment (R. 312-317). And

on September 25, 1963, a similar Section 6 Notice was

served by the FEC on the operating erafts (PIl.’s

Exh. 3, Exh. Vol., pp. 36-74; R. 281-282). In sum,

the Uniform Working Agreement proposed under

Section 6 to the operating crafts on September 29,

1963; the Uniform Working Agreement proposed

under Section 6 to the non-operating crafts on

September 24, 1963; and the Conditions of Employ-

ment previously put into operation by the carrier as

to all crafts after the strike and reduced to writing

on September 1, 1963, are all substantively and in form

—7"7

iin. tik

about the same (R. 319; compare Pl.’s Exh. 2, Exh.

Vol., pp. 4-35; R. 276-277 with Pl.’s Exh. 3, Exh. Vol.,

pp. 36-74; R. 281-282 and with Exh. 17 to Thompson

Affidavit, Exh. Vol., pp. 399-440; R. 278).

In regard to the non-operating crafts, the carrier

proposed an initial conference on its September 24,

1963, Section 6 Notice for October 18, 1963 (Exh.

Vol., p. 400). The parties all met on October 18, but

the conference broke up over a dispute concerning

the FEC’s insistence that the bargaining session be

transcribed verbatim by a court reporter (Exh. Vol.,

pp. 400, 444-446). Within ten days thereafter, the

unions invoked the mediation serviees of the NMB by

letter dated October 23 (Exh. 12 to Thompson Affidavit,

Exh. Vol., pp. 399-402; R. 278) and by telegram on

October 25, 1963 (Exh. 10 to Thompson Affidavit,

Exh. Vol., p. 397; R. 278). The NMB in turn notified

the FEC by telegram on October 25, 1963, that the

unions had invoked mediation and cautioned the FEC

about the provisions of Section 6 of the Railway Labor

Act (Exh. 11 to Thompson Affidavit, Exh. Vol., p. 398).

Nevertheless, the FEC on October 28, 1963, replied to

the NMB that it was going to place its September 24,

1963, Section 6 Notice into effect anyway because the

unions had terminated the prior conference over the

presence of the court reporter and had thereby lost

their right ‘‘to avail themselves of services of the

Tn this regard, it should be noted that the NMB in mediation

sessions has usually followed a practice of banning verbatin. tran-

seripts as too formal for effective bargaining on a give and take

basis. See R. 531, 561-562. When the FEC iasisted on recording

a mediation session, over the protest of the mediators, the media-

tors likewise withdrew from the meeting (R. 521-522).

EPI

Mediation Board” (Exh. 13 to Thompson Affidavit,

Exh. Vol., pp. 440-441). Two days later, on October 30, *

1963, the FEC formally placed its Section 6 Notice

of September 24, 1963, into effect as to sixteen crafts

(Exh. 14 to Thompson Affidavit, Exh. Vol., pp. 442-

446; R. 278). The next day, October 31, 1963, the

NMB again advised the FEC by telegram that it had

assumed jurisdiction of the case and that Section 6

of the Railway Labor Act applied (Exh. 15 to

Thompson Affidavit, Exh. Vol., pp. 446-447). The

FEC continued undeterred on its course of action

(R. 97-98, 286, 318) and maintained its Section 6

Notice of September 24, 1963, in effect from October

30, 1963, until enjoined in this case (R. 318).”*

A similar history in all respects occurred in regard

to the other Section 6 Notice here involved which was

served by the FEC on July 31, 1963, upon those unions

which had union shop provisions in their contracts,

proposing to cancel such agreements (Exh. 1 to

Thompson Affidavit, Exh. Vol., pp. 376-379). The

initial conference held on August 29, 1963, aborted

over the court reporter issue and a timely request for

NMB mediation was made by the unions (PI1.’s Exh. 1,

18 One of the 17 crafts served with the Notice, the International

Association of Railway Employees, proceeded to meet with the FEC

after the October 18th conference aborted and did not join in the

other unions’ request for its services to the NMB (Exh. 16 to

Thompson Affidavit, Exh. Vol., pp. 448-449; R. 278; R. 97, par. 6).

14 Without detailing the facts it is sufficient to say that sub-

stantially the same events occurred in regard to the September

25, 1963, Section 6 Notice proposing the Uniform Working Agree-

ment to the operating crafts, and the FEC implemented it as to

all such crafts except the Trainmen (who continued to meet despite

the court reporter) on November 4, 1963, over the protest of the

NMB and the unions. (R. 281-282, 287-318, 296-297, 344-349 ;

Pl.’s Exhs. 7 and 8, Exh. Vol., pp. 81-84; R. 305, 310.)

_——

spe

Exh. Vol., pp. 1-3; R. 261-263). The NMB advised

the FEC of this fact on September 9, 1963 (Exh. 6

to Thompson Affidavit, Exh. Vol., p. 389), but the

FEC wrote back that it had cancelled the agreements

on September 9, 1963, and would continue to treat them

as cancelled (Exh. 7 to Thompson Affidavit, Exh. Vol.,

pp. 390-393). The NMB formally protested this FEC

action (Exh. 8 to Thompson Affidavit, Exh. Vol.,

pp. 394-395) but the FEC in response merely reiterated

its position (Exh. 9 to Thompson Affidavit, Exh. Vol.,

pp. 395-396).

Summary

In summary, the evidence showed conclusively that

the FEC, since resuming operations in February, 1963,

had completely ignored all the requirements of the

Railway Labor Act in regard to maintaining or

changing rules, rates of pay, and working conditions

both as to those crafts on strike and those not on strike.

The FEC stated candidly that if enjoined in this ease

from keeping its Section 6 Notices of J uly 31, 1963,

and September 24, 1963, in effect, it would then

“‘revert’’ to the Conditions of Employment (R. 325,

311) which are merely the same thing by a different

name.

In regard to the effect of applying the Railway

Labor Act provisions to its operations under strike

conditions, the FEC’s chief witness (its vice-president

in charge of personnel, R. W. Wyckoff, R. 275-276)

conceded that the Act’s restrictions would not have

prevented the railroad from operating entirely, but

would have severely curtailed its operations (R. 330):

“*Q. But you could have operated on a reduced

basis, I take it, if vou tried to comply ?

‘A. Mr. Shapiro, we certainly have an obliga-

tion to perform to the greatest degree possible the

service which the public needs require and is

entitled to receive.

“Q. You didn’t answer my question.

‘A. I thought I did.

“Q. The 5 oeeny was: You could have operated

on a reduced basis if you had complied, could you

not?

“A. It would have been a very reduced basis

and it would not have been fulfilling our obligation

to the publie.

“Q. But you could have operated ?

‘A. On a very restricted basis, yes.”’

The effect of applying the Railway Labor Act’s pro-

visions, undiluted, on the railroad’s present operations

was variously estimated by FEC witnesses as requir-

ing a 30% to 50% reduction in its current volume of

business (R. 196, 206, 214, 219, 381, 367, 354, 771, 863).

While the FEC has, and has had since October, 1963

(R. 361-367), sufficient manpower to operate at 99% of

‘apacity under the Conditions of Employment and the

September 24, 1963, Uniform Working Agreement

(R. 312), it lacks sufficient numbers of skilled and

experienced craftsmen so as to work its personnel

‘‘as required by the agreements’? (R. 214), and there-

fore tinds it an ‘enormous saving” to cross craft lines

(R. 682, 207-208, 213), to use supervisors for scope

work (R. 399, 567, 740, 754), to contract out (R.

215), to ignore apprentice ratios (R. 208, 211-214),

ete. The FEC has had little sueeess in recruiting

experienced employees from other railroads (R. 713-

714) and finds the task of training its replacement

force a lengthy and diffieult one (R. 197-202, 370-371,

625-626, 661, 714, 739). The task is complicated by

‘a good bit of turn-over’’ (R. 685).

Obviously, and as admitted by the FEC’s President,

undiluted compliance with the provisions of the Rail-

way Labor Act will substantially ‘‘affect the ability

of the Railroad to withstand this strike’? (R. 762).

Companion Litigation

A. Federal Labor Injunctions

Obtained by the FEC i

Since the Court of Appeals for the Fifth Cireuit

has enunciated the “reasonably necessary" exception

to the Railway Labor Act in this dispute for the first

time in the Act’s 40-year history, and since the purpose

in so doing as expressed by that Court in the Train-

men’s case is to accommodate the law so as to make

‘effectual’? the railroad's “right to operate’? (336

F. 2d at 181), it is relevant to know what other

accommodations have been made by federal courts in

this dispute concerning management's “right to

operate”? and labor’s ‘cherished right to strike’? (336

F, 2d at 181),

The FEC’s main line runs, generally speaking, from

Jacksonville to Miami (Exh. 17 to Thompson Affidavit,

Exh. Vol., pp. 453-454). On the north end, through

the Jacksonville Terminal Company (which is owned,

operated and controlled by the FEC together with the

other railroads),"° the FEC connects with four other

railroads; on the south end it connects with the

Broward County Port Authority Belt Line Railroad

See Florida East Coast Ry. Co. v. Jacksonville Terminal Co.,

328 F. 2d 720 (5 Cir., 1964).

opin ores

pee ad

which services Port Everglades, the largest deep water

port in South Florida, situated just a few miles north

of Miami. Within 414 months after the strike began

on January 23, 1963, the FEC obtained two federal

court injunctions which completely destroyed the

efficacy of any lawful, peaceful picketing at these key

interchange points. In neither case was there any

charge of improper, unruly or violent picketing; in

neither case were the striking unions made parties or

given advance notice of the proceedings. The injunc-

tions were issued, insofar as the unions were concerned,

ex parte. In both cases the injunctions were entered in

suits brought by the FEC against its connecting car-

riers only and the injunctions obtained compelled the

earriers ‘“‘and their officers, agents, servants, and em-

ployees’’ (emphasis added) to accord the FEC full in-

terchange and switching services. The effect of the

injunctions was to require the connecting carriers’

employees to cross the FEC’s employees’ picket lines or

to perform car service and all other services for the

FEC on the Terminal Company premises. In Miami,

the unions learned about the injunction when it was

served upon the employees; in Jacksonville the injunc-

tion was posted at the Terminal Company employee

bulletin board.

The injunction in Jacksonville was entered on Janu-

ary 30, 1963, by Judge McRae in Case No. 63-16-Civil,

Florida East Coast Railway Company v. Jacksonville

Terminal Company, Atlantic Coast Line Railroad Com-

pany, Seaboard Air Line Railroad Company, Southern

Railway Company, and Georgia Southern and Florida

Railway Company. The injunction in Miami was en-

tered on June 5, 1963, by Chief Judge Dyer in Case No.

63-282-Civil, Florida East Coast Railway Company V.

Broward County Port Authority.

In Miami the unions were permitted to intervene in

the proceedings; a motion to dissolve the injunction

based upon the Norris-La Guardia Act and this Court’s

decision in Brotherhood of Railroad Trainmen v.

Toledo, P. d W. R.R., 321 U.S. 50 (1944), was denied ;

and some two years later the injunction was reversed

for lack of jurisdiction in Brotherhood of Locomotive

Firemen and Enginemen vy. Florida East Coast Rail-

way Co., 346 F. 2d 673 (5 Cir., June 8, 1965). The

injunction was not formally lifted until J uly 30, 1965.

Although the suit in Jacksonville has still not pro-

ceeded beyond the preliminary injunction stage, and

no final hearing has yet been held or even scheduled,

the unions’ petition to intervene in that case, made

after the Court of Appeals’ decision in the Miami case,

has been denied and is on appeal. A declaratory judg-

ment suit to construe the injunction and its legal

effect if any upon the unions and employees is also

pending before the District Court.

While ruinous in their effect on the strike both in-

junctions have been obeyed and honored in all respects.

No charge of violation has ever been made.

Thus blocked from anything more than token picket-

ing at the FEC’s two main interchange points, two of

the striking unions, the Order of Railroad Teleg-

raphers (now Transportation-Communication Em-

ployees Union) and the Brotherhood of Maintenance of

Way Employes, commenced very limited picketing at

the Cape Kennedy spur of the FEC, on which FEC

traffic, according to its President, ‘“‘has increased tre-

mendously and * * * [is] going to increase substan-

tially’ (R. 393). Pickets were established for two days

in September, 1963, and resumed for two days in Feb-

ruary, 1964, and for two days again in June, 1964.

On the latter two occasions, the National Labor Re-

A TE

iations Board obtained temporary injunctions restrain-

ing the picketing under Section 10(1) of the National

Labor Relations Act, 61 Stat. 146, 73 Stat. 544, 29

U.S.C. 160(1), on the basis that the Maintenance of

Way Employes and Telegraphers’ unions, which repre-

sent only employees in the railroad industry, were

guilty of an unfair labor practice under the National

Labor Relations Act as agents for all the other striking

FEC unions. The NLRB subsequently adopted this

view in ruling on the merits of the charge (Member

Jenkins dissenting), 150 NLRB No. 37; the Court of

Appeals for the District of Columbia affirmed per

curiam (Chief Judge Bazelon dissenting), 350 F. 2d

791; and the case is currently pending in this Court on

petition for certiorari filed January 17, 1966 (Case No.

918, October Term, 1965, International Brotherhood of

Electrical Workers, AFL-CIO, et al., v. NLRB).

In summary, peaceful picketing during the first 21%

years of this strike has been effectively enjoined and

restrained by federal court orders at the three princi-

pal places on the FEC’s system where it could be ex-

pected to have any economic effect sufficient to induce

the carrier to make any efforts to settle the controversy.

B. Other Litication

Since the strike began in early 1963, the FEC re-

peatedly has been found in violation not only of federal

statutes, but of specific injunctions against it enforcing

those statutes. These violations were brought to the

attention of the trial court (R. 869) and in many cases

were known to the Court from its own experience in

companion cases.

In United States v. Florida East Coast Ry. Co.,

(D.D.C., May 7, 1963), 221 F. Supp. 325, the FEC was

found in violation of Section 10 of the Railway Labor

Act and enjoined to comply with its status quo require-

ments. Actually, as shown by the evidence in this

case, its ad hoe operations continued unchanged and

unaffected by the injunction.

In United States y. Florida East Coast Ry. Co.

(M.D,. Fla., nune pro tune to date or oral ruling,

December 12, 1963), 55 LRRM 2798, the FEC was

found in violation of the status quo requirements of

P.L. 88-108, 77 Stat. 132.7 Actually, as shown by the

evidence in this case, its operations under the Condi-

tions of Employment continued unchanged and without

variation despite the injunction (R. 296-297, 869).7

In the Trainmen’s case the original injunction of

March 2, 1964 (55 LRRM 2561) was stayed by the

Court of Appeals two weeks later, and the modified in-

junction entered after receipt of the mandate after

the Court of Appeals’ decison of August 18, 1964, be-

came effective October 9, 1964. Thereafter the FEC

was found by Chief Judge Simpson on two separate

occasions, December 7, 1964, and February 12, 1965,

16 P.L. 88-108 also appears in the current pocket supplement to

45 U.S.C.A, 157.

7 At the trial in that case in December, 1963, the FEC’s chief

personnel officer had testified to the Court that if enjoined, ‘‘We

would revert to the last duly negotiated rules, which were those

in effect prior to November the 4th [1963]’’ (R. 300). The wit-

ness did not advise the Court or say anything about the Conditions

of Employment promulgated unilaterally on September 1, 1963,

and, in fact, the railroad did not revert to any ‘‘duly negotiated

rules’ after the Court’s oral injunction (R. 296-303). FEC’s

counsel’s assertion that he told the Department of Justice’s attor-

ney about the ‘‘Conditions of Employment’”’ at that time (R. 297)

was directly refuted by the Government attorney who tried both

cases (R. 560).

Ag RO PAP. S

26 f

after full scale hearings, to be in ‘‘deliberate and will-

ful’ violation of the injunction and in contempt of

court. Civil Case 64-40-Civil-J, M.D. Fla., Brother-

hood of Railroad Trainmen v. Florida East Coast Ry.

Co.

In November, 1964, the FEC was again found to be

in violation of the Railway Labor Act and enjoined

therefrom in Brotherhood of Locomotive Engineers Vv.

Florida East Coast Ry. Co. (M.D. Fla. 1964), 57 LRRM

2641, stay denied, 341 F. 2d 99, 58 LRRM 2283. On

September 24, 1965, the FEC was found in civil con-

tempt of this injunction, 60 LRRM 2292.

Likewise, FEC violation of the Act was enjoined on

January 6, 1965, in Case No. 64-237-Civil-J, M.D. Fila.,

Order of Railroad Conductors v. Florida East Coast

Ry. Co., and a contempt order in this case was only

recently entered against the FEC an February 28, 1966.

Finally, in Florida East Coast Ry. Co. v. Gamser,

M.D., Fla. 1965, Case No. 65-165-Civil-J, the FEC’s

application for injunctive relief against the NMB was

denied on May 28, 1965, on the specific finding that the

FEC had failed to approach the mediation conference

table in good faith.

C. Summary

In summary, the role of the federal courts in this

dispute, the longest railroad strike in the Nation’s his-

tory, can hardly be described as a retiring one. An

observer may wonder, however, whether any of this

multitudinous litigation would have resulted, or been

necessary, had the first injunction of January 30, 1963,

against picketing at the FEC’s key northern link with |

the rest of the nation not been rendered. As pointed

out by the railroad’s President, ‘‘the Railroad is com-

pletely isolated”’ if that link is broken (R. 790). Even

semi-isolation caused by legitimate, peaceful picketing

at the Jacksonville Terminal might have effected a

change in the FEO’s attitude toward good faith media-

tion or voluntary arbitration.

SUMMARY OF ARGUMENT

The Railroad’s contention that during a strike the

provisions of the Railway Labor Act are suspended,

and the Court of Appeals’ ruling that during a strike

a federal court may create judicial exceptions to the

Railway Labor Act, are contrary to the plain language

and the underlying policy of the Act. They have no

support in the statute’s legislative history. Neither

deviation from the literal language of the Act should

be judicially created. Both doctrines undercut funda-

mental policies of the Railway Labor Act: (1) ecm-

pulsory mediation; (2) voluntary arbitration; and (3)

preservation of the status quo so as to confine existing

disputes within their original limits and prevent them

from escalating into irreversible conflagrations.

Analogies loosely drawn from National Labor Re-

lations Act cases are as apt to mislead as they are to

guide. The policies and scheme of the two federal

labor statutes are different. Congress has ample justi-

fication for legislating in a different way for the rail-

road industry from the way it legislates for other busi-

nesses affecting interstate commerce generally.

In any event, the decisions under the NLRA do not

support the exceptions here claimed and defended.

Courts should not substitute their views as to a

proper adjustment of the economic balance of power

SG RPC ENR RAR ET RAO NP ee

for those adopted by Congress, especially in an area

directly involving the public interest and national de-

fense.

If judicial exceptions to the Railway Labor Act are

to be created, they should be limited rather than broad

in nature. Therefore, the Court of Appeals’ ‘‘rea-

sonably necessary”’ exceptions doctrine © sounder than

the ‘‘statute suspension”? contention u. ged by the Rail-

road,

If the ‘‘reasonably necessary’? exceptions doctrine

of the Court of Appeals is to be followed, it should be

harmonized with the policies of the Railway Labor Act

and the Norris-La Guardia Act. The affirmative

equitable relief and benefits of such doctrine should

not be available to a party that has rejected voluntary

arbitration and has flouted the procedures of the Rail-

way Labor Act.

ARGUMENT

I. THE PLAIN LANGUAGE OF THE RAILWAY LABOR ACT

FORBIDS EITHER SUSPENSION OF THE STATUTE DURING

A STRIKE OR JUDICIALLY-CREATED EXCEPTIONS TO THE

STATUTE DURING A STRIKE.

The language of the Railway Labor Act is plain

and unmistakeable:

“Section 2, Seventh. No carrier, its officers, or

agents shall change the rates of pay, rules, or

working conditions of its employees, as a class, as

embodied in agreements except in the manner pre-

scribed in such agreements or in section 6 of the

Act.’ 45 U.S.C, 152, Seventh.

The willful failure or refusal to comply with this

provision is a federal erime. 45 U.S.C. 152, Tenth.

Here, as stated by the Court of Appeals in the

Trainmen’s decision, 336 F. 2d at 179, a railroad has

;

eel

instituted wholesale changes “with no pretense at com-

pliance with the Act.’ The action of the FEC flies

squarely in the teeth of the statute. It is suggested

that the reason the questions here presented are first

arising some forty years after the statute’s enactment

is that no other earrior has had the termerity to act in

such bold contravention of a federal law. The evasive

rationalization for such action by the FECQ’s Vice

President and Director of Personnel in this case (R.

287-351), and his misleading if not blatantly false testi-

mony in the earlier case brought by the United States

in December, 1963 (R. 296-302, 560), further suggests

that the course of action undertaken by the FEC was

not the product of naivete, but a deliberate undertak-

ing in violation of clear statutory language. Due re-

spect for law and order would command that a party

embarking on such a course of action, at the very mini-

mum, not conceal its nature when questioned about its

conduct in a federal court by the United States. But

despite extensive questioning by the United States’

attorney in December, 1963, on the subject of the FEC’s

then current practices, not so much as a single refer-

ence was made by any FEC witness to its formally

promulgated “Conditions of imployment”’ which were

at that very time in effect for the craft of trainmen

and which had been the rules in effect for the other

operating crafts prior to November 4, 1963 (R. 296-

802, 560). Tnstead the FEC’s witness testified under

oath as follows (R. 300) ;

“Q. And am T correct, Mr. Wyckoff, that if the

rules which were put into effect on November 4,

1963, were to be Withdrawn, that the previously

existing arrangements would be placed in effect,

would govern the employment, would govern the

‘ates of pay, rules and working conditions of the

employees in the crafts or classes who are pres-

ently operating your trains;”’

‘A. We would revert to the last duly negotiated

rules, which were those in effect prior to Novem-

ber the 4th.”’

FEC’s lack of candor in regard to its actions taken

in violation of the plain language of a federal criminal

law is at least indicative that the FEC itself, at one

time, thought the plain statutory language meant ex-

actly what it says.

Il. LEGISLATIVE HISTORY OF THE RAILWAY LAPOR ACT

DOES NOT SUPPORT THE STATUTE’S SUSPENSION EITHER

IN WHOLE OR IN PART DURING A STRIKE.

Ever since the 1870’s Congress has been vitally con-

cerned with the matter of labor disputes in the Na-

tion’s railroad industry. Recognizing the dire conse-

quences that the public as well as the parties suffer

when labor-management relations break down in this

key area of our economy, Congress has repeatedly

struggled with the problem of providing a fair method

of settling such disputes consistent with freedom and

our traditions. Perhaps no other subject has come be-

fore the Congress so repeatedly and so persistently over

so long a period. Public Law 88-108, approved Au-

omst 28, 1963, 77 Stat. 132, is a recent example. The

first legislation, providing for voluntary arbitration

and public investigations, was passed in 1888. 25 Stat.

301. Between those dates, Congress applied its at-

tention to the problem repeatedly—in the Erdman Act

of 1898, 30 Stat. 424; the Newlands Act of 1913, 38

Stat. 103; Title ITI of the Transportation Act of 1920,

41 Stat. 469; and then the Railway Labor Act of 1926,

44 Stat. 577, thereafter amended in 1934, 48 Stat. 1186,

Seok :

ues

_——

in 1948, 62 Stat. 909, and in 1951, 64 Stat. 1238. Hard-

ly a decade has elapsed without the need for Con-

gressional attention.

With this almost continual Congressional attention

to the matter of labor disputes in the railroad industry,

the volume of legislative history is understandably im-

mense. Certainly Congress in its repeated concern

with the subject was not, ostrich-like, unaware of the

fact that strikes do still oceur in the industry. Yet

in all the litigation arising out of this current dispute,

the FEC has failed to discover any legislative history

even remotely supporting its theory that Congress in-

tended the Railway Labor Act to be automatically

suspended, or subject to fragmentary and temporary

judicial repeal, during the existence of a strike. The

Court of Appeals referred to none in either its Train-

men’s opinion or the decision in this case. No other

court has ever referred to any. It is respectfully sub-

mitted that this significant silence in the legislaiive

history activates the canon of statutory construction

applied by this Court in construing Section 3, First,

of the Railway Labor Act in Brotherhood of Railroad

Trainmen v. Chicago R. &: I. R. Co., 353 U.S. 30, 34-35

(1957), where the Court said:

“Tf the Brotherhood is correct, the Adjustment

Board could act only if the union and the carrier

were amenable to its doing so. The language of

§ 3, First, reads otherwise and should be literally

applied in the absence of a clear showing of a con-

trary or qualified intention of Congress.’”? (Em-

phasis added.)

II. THE BASIC POLICIES AND SCHEME OF THE RAILWAY

LABOR ACT ARE DEFEATED BY EITHER ITS SUSPENSION

OR JUDICIAL INTERFERENCE WITH ITS OPERATION

DURING A STRIKE.

Among the general purposes of the Railway Labor

Act, as stated by Congress, is the purpose: **(4) to

provide for the prompt and orderly settlement of all

disputes concerning rates of pay, rules or working

conditions.’”’ 45 U.S.C. 151a(4).

The means by which the Act attempts to achieve this

purpose are clear. Section 2, First (45 U.S.C. 152),

enjoins carriers to exert every reasonable effort to make

and maintain agreements concerning working condi-

tions (not every effort to free itself on a wholesale

basis from all existing agreements as the Conditions

of Employment and Section 6 Notices of September 24

and 25, 1963, attempt to do). Carriers must file with

the NMB copies of their current contracts, and if no

contract exists, a statement must be filed as to what

rates of pay, rules, and working conditions have been

made effective. §5, Third (e), 45 U.S.C. 155, Third

(e). Existing conditions as embodied in agreements

are then stamped by § 2, Seventh, with the imprimatur

of law" and may not be changed except by following

specific and clearly defined procedures. These pro-

18 See Manning v. American Airlines, 329 F. 2d 32 (2 Cir. 1964),

cert. den., 879 U.S. 817. As the opinion by Judge Friendly (who

had an extensive experience with the Act prior to assuming the

Bench) makes clear, it is the law and not the contract which re-

quires that conditions be preserved and maintained. For this

reason contracts in the railroad industry seldom even contain a

meaningless termination clause, whereas contracts in NLRA in-

dustries are almost invariably for a specific term only, and indeed,

are legally effective in certain respects culy for a comparatively

short time. See Leedom v. Internti al Brotherhood of Elec.

Whrs., 278 F. 2d 237 (D.C. Cir., 1960).

F ities

156; Section 5, First, 45 U.S.C. 155; and Section 10,

45 U.S.C. 160. They provide for the parties to spell

out their requested changes in a “written notice’’; for

ference; for the NMB then to be notified so it may

use its best efforts, by the delicate art of mediation, to

bring the parties to agreement; for voluntary arbitra-

tion if mediation is unsuccessful; and finally, for a

cooling-off period while an impartial publie Board ap-

pointed by the President studies the dispute and

makes a report which will form the basis for focusing

the power of public opinion on the merits of the matter.

Underlying all of these procedures is the categorical

requirement repeated over and over again in the Act

(§ 2, Seventh; § 2, Tenth; § 5, First; § 6; and § 10) that

pending exhaustion of these procedures no change shall

be made, except by agreement, in the conditions out of

which the dispute arose.

The whole thrust of the Act is to confine and refine

a dispute to its narrowest dimensions. Preservation

of the status quo is indispensable lest mediation and

voluntary arbitration become mere paper tools.

On the other hand, the doctrine of statutory sus-

pension urged by the FEC, and its companion doctrine

of ‘reasonably necessary’’ exceptions to the Act, as

adopted by the Court of Appeals, operate in precisely

the opposite direction. They serve to expand the dis-

pute. The present case is a clear example. What

started out as a simple 25¢ an hour wage claim for 11

crafts got refined down under the Act’s procedures to

a 10.28¢ wage dispute, but has now been blown up to

YEARNS

such proportions that it literally involves every single

rate of pay, rule and working condition as embodied

in every single contract on the entire railroad,

Why, if restricting the scope of the dispute before a

strike helps to settle it, does expanding the dispute

thereafter help to end the strike and terminate the dis-

ruption of commerce? How, in any way, does the rule

fashioned by the Court of Appeals in this case aid the

methods and the procedures of the Act? The judicial

gloss engrafted onto the Act by the Court of Appeals

throws a monkey wrench into all of the Act's elabo-

rately designed machinery for settling disputes once

a single Section 6 proposal, no matter how limited in

scope, works its way to the ‘*self-help”’ stage.

IV. THE NATIONAL LABOR RELATIONS ACT, AND CASES

THEREUNDER. ARE INAPPOSITE.

The carrier in its brief below, and the Court of Ap-

peals in its opinions, have referred to the line of em-

ployer ‘‘self-help’’ cases decided under the National

Labor Relations Act, 29 U.S.C. § 141 et seq., as if those

eases buttressed their conclusions to suspend the Rail-

way Labor Act totally or in part during a strike. Peti-

tioners respectfully submit that the major premise of

such conclusions is not warranted beeause the two stat-

utes involved, the NLRA and the Railway Labor Act,

are more remarkable for their differences than for

their similarity. Both statutes, of course, deal with

the general subject of labor-management relations in

business subject to federal regulation under the Com-

merce Clause. Beyond this point the similarity ceases.

The two statutes involved entirely different approaches

to the subject. Different administrative agencies are

set up with different duties and functions to perform.

j 35

There is no such thing as ‘‘an unfair labor practice”’

charge under the Railwa y Labor Act, whereas the great

bulk of the NLRB’s time and energies are devoted to

adjudicating such charges brought against either man-

agement or the unions. While the staff and officers of

the NLRB work primarily as an enforcement agency,

making investigations and policing the conduct of the

parties according to what the NLRA makes legal or

illegal, no enforcement agency as such exists at all

under the Railway Labor Act.

In short, the whole scheme and poliey of one Act is

irreconcilable and inconsistent with the other. There-

fore to apply analogies from eases decided under one

Act to cases being decided under the other is at best

an inconclusive process. The Railway Labor Act is

primarily an instrument of government for the par-

ticular and peculiar world of the railroad industry—a

world which is like a ‘state within a state.”’ Elgin,

J. & EB. Ry. Co. vy. Buriey, 325 U.S. 711. 752 (dissent-

ing opinion of Frankfurter, J.), For this reason, even

if there were a square holding—a “red cow”? case—

that during a strike the prohibitions of the NLRA are

suspended, and any contracts between the parties dis-

appear, it would be of little value in deciding the issues

of this case. Of course, there is no such holding even

under the NLRA which does not purport to require

that conditions embodied in contracts be maintained

without change except under certain limited conditions,

ie, When the specific change desired has been defined

and the full procedures of the Act have been exhausted.

For example, the ease of NERB vy. MacK ay Radio &:

Telegraph Co., 304 U.S. 333 (1938), relied upon by the

Court of Appeals, did indeed hold that during an

LE AMIE RAN PASTEL RT iy 29

—

economic strike’ an employer may continue his plant

operations by hiring permanent employees who need

not be discharged to make room for returning strikers.

But MacKay Radio dealt with a situation where no

collective bargaining agreement had yet been con-

cluded. In this context this Court simply said:

‘‘ Although § 13 provides ‘Nothing in this Act shall

be construed so as to interfere with or impede or

diminish in any way the right to strike’, it does

not follow that an employer, guilty of no act de-

nounced by the statute, has lost the right to protect

and continue his business by supplying places left

vacant by strikers.’’ 304 U.S. at 345 (Emphasis

added).

Obviously the case has no application to this Railway

Labor Act situation.

Similarly, another NLRA decision relied upon by

the Court of Appeals in formulating its ‘“‘reasonably

necessary”? exceptions doctrine is NLRB v. Erie Re-

sistor Corv., 373 U.S. 221 (1963). There, as here, the

employer argued his conduct in giving superseniority

to striker replacements was saved from illegality by

an overriding business necessity. The Court, how-

ever, held in Erie Resistor that the NLRB could prop-

erly conclude that the granting of superseniority to

striker replacements would be contrary to the NLRA’s

specific protection of concerted activities by employees,

and expressly rejected the contention that:

““* * * eonduct otherwise unlawful is automatically

excused upon a showing that it was motivated by

business exigencies.’’ 373 U.S. at 229

19 A term which has great significance under the NLRA but is

meaningless under the Railway Labor Act.

an 37

4 Nor do this Court’s recent cases exploring the limits

of employer self-help under the NLRA bolster the

carrier’s position in this case. For example, in Local

U. No. 721 v. Needham Pack. Co., 376 U.S. 247 (1964),

it was held that a unions’ strike in breach of an ex-

press no-strike clause in a contract did not operate to

terminate or ‘‘suspend”’ the contract so as to relieve

the Employer from its obligation under the arbitration

clause of the contract.

It is true that this Court reaffirmed its Frie Resistor

statement in American Ship Building Co. v. NLRB,

380 U.S. 300 (1965), that determining the legality of

an employer’s economic measures entails the

““* * * delicate task * * * of weighing the interests

of employees in concerted activity against the in-

terest of the employer in operating his business in

a particular manner.’’ 380 U.S. at 312.

But no question of judicial or administrative balancing

arises in the present case, for Congress has already,

by its clear language, decided and prescribed the

answer to the precise issue here presented. The legality

of the unions’ economic weapon—a strike—is unchal-

lenged. The legality of the railroad’s counter weapon

—continuing operations with replacement personnel—

is likewise unchallenged. But if the unions resort to'a

strike, clearly they must conduct it lawfully without

force and violence. Similarly, if the railroad chooses

to operate it must do so within the limits of the law.

This is the balance struck by Congress for the railroad

industry.

That Congress is the appropriate branch of Govern-

ment to make this determination has been made clear

repeatedly by this Court in such cases as NLRB y.

SHARES GMO SSG HSE IE MEME TN

38 :

Insurance Agents Union, 361 U.S. 477 (1960), and

American Ship Building Co. v. NLRB, 380 U.S. 300

(1965). In American Ship Building this Court re-

buked the NLRB for denying use of the lockout to an

employer because of its conviction that use of this

deivee would give the employer ‘‘too much power’’,

deseribing such action as

‘the unauthorized assumption by an agency

of major policy decisions properly made by Con-

gress.”’ 380 U.S. at 318 (Emphasis supplied)

Congress has made just such a policy decision in the

present case.

In support of its argument in the Court below, pre-

mised as it was on an extension of current NLRA

cases beyond their holdings, the FEC contended that

what is good policy under one Act must likewise apply

to the other statute. The FEC hence argued ( Appel-

lant’s [FEC’s] brief to Court of Appeals, pp. 30-31)

“that the public interest in interstate commerce by

railroad is no greater or less than the public interest

in interstate commerce in steel or automobiles.’’ But

Congress clearly took a different view when it legis-

lated differently for the railroad industry. Clearly

such differentiation on the part of Congress is neither

arbitrary, unreasonable, nor beyond its power. Sun-

shine Anthracite Coal Co. v. Adkins, 310 U.S. 381

(1940).

V. DECISIONS OF COURT oF APPEALS IN THIS CASE AND IN

FLORIDA EAST COAST RY. CO. v. BROTHERHOOD OF RAIL-

The carrier has placed great emphasis in the pro-

ceedings below on the necessity of avoidance of inter-

ruptions to interstate commerce, This is indeed a

stated purpose of the Railway Labor Act and one which

no one would deny was and is of fundamental im-

portance in creating the national labor policy and in

deriving appropriate solutions to the recurrent critica]

problems in labor management relations.

The policy formulating organ of our Government,

with Constitutional responsibility to weigh the con-

flicting economie balance of interests in formulating

basic Federal labor policy is, of course, the Congress.

In considering the means to achieve the legislative pur-

poses embodied in Section 1A of the Act, Congress had

a broad spectrum of policy choice, ranging from com-

pulsory arbitration to a completeiy laissez faire atti-

tude toward the industry. The chosen vehicle was the

Act’s scheme of initial bargaining on changes proposed

by the carrier and employee representatives, supple-

mented by periods of mandatory mediation, but with-

out compulsory agreement as to the changes proposed,

Onee all mandatory bargaining procedures have

been exhausted, and if no agreement has been reached,

the parties are free to implement the changes which

have been properly proposed and fully and exhaus-

tively bargained over, At this point, as to changes

desired by the unions, since they obviously cannot

unilaterally impose their desired modifications upon

the carrier, resort must of necessity be made to overt

40 |

economic pressure in order to achieve their goals, viz.,

a strike.

The carrier, however, is in a substantially different

position. As to changes which have been properly pro-

posed by the carrier and over which bargaining has

been carried out under the Act, such changes may be

implemented by the carrier unilaterally. As to changes

proposed by the unions, the carrier is free not to imple-

ment them. In both situations, the conflict is subject

to resolution in a contest of economic pressure within

the confines of applicable law.

Throughout this litigation, the FEC has taken the

position that once this impasse of economic conflict

has been reached, the Railway Labor Act ceases to be

an applicable statute, no longer limits the conduct of

the parties, and continues in this state of suspended

animation for the duration of the strike period. Since

the Act is inapplicable, continues the carrier’s argu-

ment, its ‘‘status quo’’ provisions are ineffectual during

the period of a strike, and the carrier is free to con-

tinue operations in whatever manner it deems neces-

sary, under any rates of pay, rules and working con-

ditions which it desires. The collective bargaining

agreements, according to this theory, are suspended for

the duration of the dispute.

This ‘‘suspension’’ theory was expressly rejected,

and properly so, by the Court of Appeals, Fifth Cir-

cuit, in Florida East Coast Railway Co. v. Brotherhood

of Railroad Trainmen, 336 F. 2d 172 (CA 5, 1964),

certiorari denied, 379 U.S. 990 (1965), in the following

manner:

“Tt is clear that the suspension argument has no

merit. The BRT is still the bargaining repre-

aa 41

sentative of all the employees in the crafts of train-

men 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 employees of FEC

are entitled to the benefit of the terms of the agree-

ment, and the FEC may not supersede the agree-

ment by individual contracts, whether consented

to by the employees or not. Telegraphers .. Ry.

Express Agency, 1944, 321 U.S. 342, 346, 64 S.Ct.

582, 88 L. Ed. 788.’ 336 F. 2d at 180.

If, as the FEC contends, the Act is inapplicable,

may it enter into individual yellow-dog agreements

with its employees, as expressly prohibited by Section

2, Fifth, 45 U.S.C. § 152, Fifth, of the Act? What

other mandatory provisions are to be deemed ‘sus-

pended” during a strike? Surely, the Court of Ap-

peals was correct in rejecting any doctrine of suspen-

sion urged upon it in the Trainmen’s case, supra, and

repeated in the present case. Congress’ scheme for the

settlement of railway labor disputes should not be

‘‘suspended”’ during the very period when economic

conflict over properly processed contract changes rages.

Where impasse has been reached as to particular

changes, to permit wholesale sweeping changes in all

contract provisions, even under the cloak of a tempo-

rary ‘“‘emergency”’ could only serve to exacerbate and

prolong the ‘“‘emergency”’ if indeed not convert the

‘emergency’? into a semi-permanent state of affairs

as witness the present case.

The Court of Appeals in the Trainmen’s ease, having

rejected the ‘‘suspension”’ idea, engaged, however, in

a classic example of judicial creation. This Court had

stated in Brotherhood of Locomotive Engineers v. B.

& O. R. Co., 1963, 372 U.S. 284, in considering a rail

labor dispute of national scope:

‘“* * * What is clear * * * is that both parties,

having exhausted all of the statutory procedures,

are relegated to self-help in adjusting this dis-

pute.’’? 373 U.S. at 291.

Unquestionably, the parties are left to self-help to

resolve the particular dispute. The content, scope, and

limitations on this ‘‘self-help’’ in the light of the Rail-

way Labor Act is the question remaining.

The Court of Appeals in the Trainmen’s case, rea-

soned in the following manner: (336 F. 2d at 181)

‘“‘Tndeed, the unquestioned right to resort to self-

help is the inevitable alternative in a statutory

scheme which deliberately denies the final power

to compel arbitration.

* # #

‘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. & I. R.R., 1957,

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

Anything less either temporizes with the so far

determined policy against compulsory arbitration,

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

the employees by making it impossible for the

Railroad to carry on save on the terms and condi-

tions imposed by the organized employees who

now refuse to perform as agreed.

‘“* * * when the machinery of industrial peace

fails, the policy in all national labor legislation is

to let loose the full economic power of each. On

the side of labor, it is the cherished right to strike.

a «

On management, the right te uperate, or at least

the right to try to operate.

* *

* & &

“But this right of self-help is not a license for

wholesale abrogation of the agreement. As the

term implies, it is help which is reasonably needed

to meet the impasse of a railroad desiring to run

and unions unwilling to furnish workers * * *,

*“‘Although we do not here decide what changes

may be reasonably necessary in light of the strike

conditions, we hold that in a situation of this sort,

it falls to the lot of the District Judge to pass on

which changes are in fact necessary in order for

FEC to continue to operate * * *,

* &

‘““We restate * * * it [FEC] is, however, free to

institute and maintain such employment practices,

ete., as are, and continue to be, reasonably nec-

essary to effectuate its right to continue to run

its railroad under strike conditions * * *.”? 366

F, 2d at 181-182. (Emphasis added.)

Careful analysis of the foregoing opinion reveals

that during the course of the reasoning, the carrier’s

right to self-help becomes a “‘right to continue to run

its railroad under strike conditions” and exceptions

must be created in mandatory federal labor legislation

in order to effectuate this right of operation. In

essence this opinion grants leave to a federal district

judge to effectuate the carrier’s “right of operation’’,

and, as a necessary corollary thereto, to render in-

effectual the workers’ ‘‘cherished right to strike’’.

Employees are free to engage in a lawful strike, but

obviously they have no federal right to such statutory

aun

exceptions as may be ‘‘reasonably necessary’’ in order

for them to be successful in a strike... By this opinion,

however, followed and repeated in the present case and

indeed referred to as ‘‘the law of the case’’, 348 F. 2d

at 686, a carrier now has a right to such statutory ex-

ceptions as are ‘‘reasonably necessary’”’ in order, in

essence, to break the strike. For if the carrier has a

federally protected right ‘‘to run * * * under strike

conditions”’, then the whole idea of striking is rendered

sterile. What the Fifth Circuit has done in fact is

to abolish the union’: ‘‘cherished right to strike’’ with-

out supplying compulsory arbitration in its place.

The evils which the Norris-La Guardia Act, 29

U.S.C. § 101 et seq., sought to remedy are here intro-

duced in a new and virulent form. It becomes the duty

of the District Judge to allow such changes, although

prohibited by the Act, as may be ‘‘reasonably neces-

sary’’ to insure the carrier’s continued operations.

No provision of law confers a “‘right”’ to a carrier to

continue in operation under strike conditions, any

more than the union has a ‘“‘right’’ to stop the carrier

from operating. The union has a right to attempt to

halt operations through peaceful and lawful means,

and the carrier has a right to attempt to continue oper-

ations with replacement personnel, through peaceful

and lawful means.

To require federal district judges to exempt a

earrier from mandatory federal legislation, is to intro-

duce a new and seriously disrupting element into the

delicate balance of economic relationships. This ‘‘ex-

ception”’ doctrine is neither contemplated by the statu-

tory machinery nurtured and created over a long span

Tho ~ Je Aaa a ia a>

—

of time, nor does it claim any basis in the voluminous

legislative history of the Act.

The doctrine promises to produce the greatest court-

shopping expedition since Swift v. Tyson, 1842, 16 Pet.

1, was overruled. See Erie R. Co. v. Tompkins, 1938,

304 U.S. 64 at 74-75. At the mere threat of strike

action, carriers will be encouraged to seek out a court

they think entertains views as to what is *‘reasonably

necessary’’ most in accordance with those of its man-

agement. Courts will again became active protago-

nists in all railway labor disputes. If strike conditions

become too onerous, there will always be a more palat-

able alternative to settling the strike—apply to the

courts for exemption from the criminal and civil pro-

hibitions of the Railway Labor Act. If successful, the

strike then need never end, and the longer it lasts the

more benefit accrues to the carrier.

The carrier in the courts below and in the present

ease contends that if this Court rejects the ‘*suspen-

sion’’ and ‘‘reasonably necessary’’ exceptions doc-

trines, it will become impossible for a struck carrier to

continue in operation, thus affording the unions an

invincible bargaining advantage and Maximizing the

disruption of commerce which results from a strike

situation.

As in any industry requiring a large supply of

highly-skilled workmen, a strike in the rail industry

will impose a substantial problem to a Management

seeking to continue its full operations in the face of

the strike. The requirement of continuing in effect the

contractually determined pay rates, rules and working

conditions required by the Railway Labor Act may

well impose an additional problem. But this does not

dhe

46 |

mean that operation is impossible. Fewer trains

operated under the contractual conditions may well be

the result of the unsuspended unexcepted application

of the Railway Labor Act under strike conditions.

Certainly this would be the result when compared to

operation under any conditions which management

might care to apply, or when ‘exceptions’ are granted

to assist the carrier by a federal court.

Operation is not impossible merely because the car-

riers assert it. The fact that the FEC abrogated all

of its bargaining agreements in resuming operations

does not mean that it would have been impossible for

it to have continued in reduced service abiding by the

contracts. The carrier’s chief witness, R. W. Wyckoff,

conceded as much (R. 330).

And it seems quite clear that in such event a strike

of long duration would be highly unlikely. With both

parties suffering from the dispute in direct proportion

to its duration, some middle ground for compromise

and settlement before too long would almost always

be found. This, we submit, is the underlying premise

of the statute’s provisions. Congressional wisdom in

this regard appears far more likely to prevent disrup-

tion of interstate commerce than the ‘“‘ill-adapted

judicial interference’’ of the Court below. See Frank-

furter, J., dissent, Elgin J. & E. Ry. Co. v. Burley,

(1945), 325 U.S. 711, 752. Certainly, the fact that this

dispute continues unabated as the longest in American

railroad history is no testimonial to the efficacy of the

‘reasonably necessary’’ exceptions doctrine in resolv-

ing strikes.

—

VI. “REASONABLY NECESSARY” EXCEPTIONS DOCTRINE, IF

ADOPTED, SHOULD BE GOVERNED BY EQUITABLE PRIN-

CIPLES IN HARMONY WITH THE PROVISIONS OF THE

RAILWAY LABOR ACT AND THE NORRIS-LA GUARDIA

ACT; ITS BENEFITS SHOULD NOT BE AVAILABLE TO A

PARTY THAT HAS REJECTED VOLUNTARY ARBITRATION

AND VIOLATED THE RAILWAY LABOR ACT’S PROCEDURES.

If this Court should adopt the ‘reasonably neces-

sary’’ exception doctrine enunciated by the Court of

Appeals in the Trainmen’s case and followed in the

present case petitioners alternatively suggest that ap-

plication of such doctrine should be made to conform

and harmonize in its operation with general equitable

principles and with this Court’s ruling in Brotherhood

of Railroad Trainmen v. Toledo, P. & W. R.R., 321

U.S. 50 (1944). This Court in that case unanimously

held that the services of a federal court of equity,

even in the traditional form of an injunction against

violence, were not available to a railroad which had

repeatedly rejected arbitration and thereby failed in

its duty to make ‘‘every reasonable effort’’ to settle

the dispute involved, a duty mandatorily imposed by

Section 2, First, of the Railway Labor Act, 45 U.S.C.

152, and one which Section 8 of the Norris-La Guardia

Act expressly makes a condition to the granting of

equitable relief in a case arising out of a labor dispute,

29 U.S.C. 108. There, as here, both the striking unions

and the railroad had initially rejected arbitration after

exhaustion of the Railway Labor Act’s procedures.

There, as here, the dispute arose out of differences be-

tween the parties as to rates of pay and working con-

ditions. There, as here, the dispute was ‘*long-con-

tinued’’, There, as here, the unions (after the bomb-

ing of Pearl Harbor) changed their position in regard

to arbitration and acceded to the National Mediation

‘ 7

Board’s request for arbitration. There, as here, the

railroad persisted in its refusal to accept arbitration.

Under these circumstances this Court held that the

railroad’s refusal to submit to voluntary arbitration

precluded it from seeking the aid of injunctive relief

from a federal court even against violence and other

unlawful conduct. As the Court there stated (321 U.S.

at 63):

‘‘Respondent is free to arbitrate or not, as it

chooses. But if it refuses, it loses the legal right

to have an injunction issued by a federal court,

or to put the matter more accurately, it fails to

perfect the right to such relief. This is not com-

pulsory arbitration. It is compulsory choice be-

tween the right to decline arbitration and the right

to have the aid of equity in a federal court.”

Where the right to secure traditional equitable

relief in the form of an injunction or temporary re-

straining order is precluded due to the continued in-

transigence of a carrier, surely the right to such

extraordinary equitable relief as is here involved must

be similarly precluded. The doctrine of ‘reasonably

necessary”’ exceptions from mandatory federal legisla-

tion touches the outer limits of equitable discretion

and power, and should not lightly be granted to an |

applicant with manifestly ‘‘unclean hands.”’

The factual background of this long-enduring labor

dispute is, as described in the introductory statements

herein, replete with willful, deliberate, and repeated

violations of federal law and court orders by the FEC.

To reward such a corporate scofflaw with extraordi-

nary equitable relief would violate every traditional

equitable, notion.

Petitioners respectfully submit that the FEC in this

case therefore should be barred from seeking the aid

of this Court, and of the courts below, to grant it ‘‘rea-

sonably necessary”’ exceptions from the Railway Labor

Act’s requirements in order to continue to operate

under strike conditions. FEC has clearly refused,

again and again, all requests to arbitrate this dispute

(Exh. Vol., pp. 458-459, 460-461). Yet FEC is asking

this Court, and the courts below, to relieve it from

other onerous obligations imposed by the Railway

Labor Act. Clearly under the holding and rationale

of the Toledo case, as well as traditional principles of

equity, such relief is not available to the FEC. This

Court should limit the relief available under the Court

of Appeals’ doctrine of ‘‘reasonably necessary’’ ex-

ceptions to carriers who have substantially complied

with existing federal law, if the doctrine should be

adopted at all.

CONCLUSION

As has been said of the Norris-La Guardia Act, the

Railway Labor Act is ‘‘the culmination of a bitter

political, social, and economical controversy extending

over half a century.’’ Milk Wagon D. Union v. Lake

Valley F. Products, 311 U.S. 91, 102 (1940). The

delicate task of tampering with its machinery so as

to adjust the balance of economic power which the Act

strikes to suit judicial notions of fairness is risky

business. That is a job for Congress. The courts are

ill-equipped for such work. The judicial tailoring of

the Railway Labor Act here attempted by the Court of

Appeals after 40 years of the Act’s relative success

and in the face of prospective nationwide difficulties,

can only be deemed ill-advised. The fullest measure

50 |

of labor peace in the railroad industry can only be as-

sured by taking Congress at its untrammeled, unex-

cepted word. Untold strife in the coming difficult

period of readjustment to technological advancements

would be the result of this Court’s holding that any-

thing less than full enforcement of the ‘‘status quo”’

provisions satisfies the statutory scheme.

Where judicial exceptions can be spun out of whole

cloth to effectuate the success of the economic weapons

of one of the disputants engaged in battle, little hope

for the settlement of disputes prior to this ultimate

battle can be envisioned.

The decision of the Court of Appeals permitting

judicial suspension of the Railway Labor Act’s re-

quirements should be reversed.

Respectfully submitted,

Lester P. ScHOENE

Schoene and Kramer

Washington, D. C. 20006

Neat RuTLEDGE

ALLAN MILLEDGE

Ricuarp L. Horn

3 Rutledge and Milledge

; Miami, Florida 33132

Counsel for Petitioners i

March, 1966

| 51

CERTIFICATE OF SERVICE

I Hereby Certify that a true copy of the foregoing

Brief for Petitioners in No. 750 was served this 21st

day of March, 1966, upon the following persons by

depositing a copy of same addressed to each in the

United States mail with sufficient first class postage

prepaid:

Attorneys for the United States:

Honorable Thurgood Marshall

Solicitor General

United States Department of Justice

Washington, D. C. 20530

Honorable John W. Douglas

Assistant Attorney General

Civil Division

United States Department of Justice

Washington, D. C. 20530

Howard Shapiro, Esq.

Civil Division

United States Department of Justice

Washington, D. C. 20530

Walter Fleischer, Esq.

Civil Division

United States Department of Justice

Washington, D. C. 20530

William J. Hamilton, Jr., Esq.

Assistant U. 8. Attorney

Main Posi Office Building

Jacksonville, Florida

HELO R IAT

ss Ni aaa |

Attorneys for Florida East Coast Railway Co.:

William B. Devaney, Esq.

Steptoe & Johnson

1250 Connecticut Avenue, N.W.

Washington, D. C. 20036

George B. Mickum, III, Esq.

Steptoe & Johnson

1250 Connecticut Avenue, N.W.

Washington, D. C. 20036

J. Turner Butler, Esq.

814 Florida Title Building

Jacksonville, Florida 32202

/s/ NEAL RUTLEDGE

Of Counsel for Petitioners

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.