Petition for Writ of Certiorari — Chicago & North Western Railway Co. v. United Transportation Union

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FILED

ILE COPY MAY 26 1970

= “FORT OAVIS, CLERK

IN THE

Supreme Court of the United States

OcrToBER TERM, 1969

vo tag /99

CHICAGO AND NorRTH WESTERN RalILway CoMPANY,

Petitioner,

Vv.

UniTreD TRANSPORTATION UNION, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Wituiam H. Dempsey, JR.

Davip BootH BEERS

734 Fifteenth Street, N.W.

Washington, D. C. 20005

RicHARD M. TREEMAN

JAMES P. Da ty

RosBert SCHMIEGE

400 West Madison Street

Chicago, Illinois 60606

Attorneys for Chicago and

North Western Railway

Company

Of Counsel: ,

SHEA AND GARDNER

734 Fifteenth Street, N.W.

Washington, D. C. 20005

Paess or Brrow S. Apams Panrrina, Inc., Wasumveron, D. C.

Opinions |

Jurisdictic

Question |

Statutory

Statement

Reasons f

Conclusior

Appendice

A—Opinic

B—Judgm

(‘—Findin

ment

CASES:

Akron @ 1

Supp.

(D.C.

American

F. Su

Atlantic C

262 F

225 (1

Brotherho

A, Ru

Brotherho

383 F

Brotherho

353 U

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eoereeeereereeereeeeeeeeseeeeeeeeeeeeeeeeeee

ee eer ee ew ee eee eee eees

eoeoevreereor eee eer reese eeeeeeeeeeeeeeeeeeere

eee eeer eee eee eee eee eee eeeeeeeeeeeeeeeeee

of Court of Appeals, March 6, 1970 .... la

nt of Court of Appeals, March 6, 1970 .... 21a

of Fact, Conclusions of Law, and ‘i.

' District Court SAERORURL ERE EUKERE CE Ge 22a

CITATIONS

B. R.R. v. Order of Ry. Conductors, 253 F.

38 (D. D.C. 1966), modified, 385 F.2d 581

es canukubed aces cauene Gelasaewes 12

irlines, Inc. v. Air Line Pilots Ass’n, 169

Cee COs OED <ncenesvandonac edi 15

1. R.R. v. Brotherhood of R.R. Trainmen,

Supp. 177 (D. D.C.), reversed, 383 F.2d

A 5 a eee 5, 13

l of Locomotive Fire. € Eng. v. Bangor &

, 380 F.2d 570 (D.C. Cir. 1967) .......... 9

] of R.R. Trainmen v. Akron & B.B. R.R.,

d 581 (D.C. Cir. 1967) ............ 9, 11, 12, 27

l of R.R. Trainmen v. Atlantic C.L. R. R.,

fk Se Sy errr ee 13, 26

l of R.R. Trainmen v. Chicago R. & I. R.R.,

SE iC iets des cn enayGautaee

ii Index Continued

Page

Brotherhood of R.R. Trainmen v. Jacksonville Terminal

i ee Se ED ok 0 n6 suo 50s 605 ono nce 7, 9,3

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

ee OE OEE cy anasn kee 5neessakdepeessce 21,3

Brotherhood of Ry. Clerks v. Association for the Bene.

fit of Non-Contract Employees, 380 U.S. 650 (1965) »

Brotherhood of Ry. Clerks v. Atlantic C.L. R.R., 201

ee BED gn bone i cans seapnecseecas 5,10

Brotherhood of Ry. Clerks v. Pan American World Air.

ways, Inc., 404 F.2d 938 (2d Cir. 1969) .......... qi

Brotherhood of Ry. Clerks v. Railroad Ret. Bd., 239

Ce CE GS BED poe crscccccncsnnresens 127

Capitol Airways, Inc v. Air Line Pilots Ass’n, 41 CCH

Lab Cas. { 16,739 (M.D. Tenn. 1961) ............ Ii

Chicago, B. & Q. R.R.¥ . Railway Employes’ Dept., 301

F. Supp. 603 (D. D.C. SE bd as bu bike ku kane 13,14

Chicago, z. r & P. R.R. v. Switchmen’s Union, 187 F.

Supp. 581 (W.D.N.Y. 1960), rev’d, 292 F.2d 61 (24

es wake na ceninn 15,2

Chicago, RI. & P. R.R. v. Switchmen’s Union, 292 F.2d

ON errr erry 14, 26,2

Detroit € T.S.L. R.R. v. United Transportation Union,

i PE ous oth nbconsssteededs acct 6,9,2

Elgin, J. d E. R.R. v. Burley, 325 U.S. 711 (1945),

adhered to on rehearing, 327 U.S. 661 (1946) ..8, rr

Flight Eng’rs Int’l Ass’n v. Trans World an

Inc., 305 F.2d 675 (8th Cir. 1962) .............. li

General Committee v. Missouri-K.-T. R.R., 320 U.S. 323

ee 21, 23, 24,3

International Ass’n of Machinists v. NMB, — F.2d-,

62 CCH Lab. Cas. 10,621 (D.C. Cir. 1970) ere 2

International Ass’n of Machinists v. National Ry. Lab.

Conference, 62 CCH Lab. Cas. § 10,702 (D. D.C.

RE Skeets keh t GAMER RGIS Sn aekeabennesane 13,14

International Ass’n of Machinists v. Street, 367 US.

ET ise ee aneeeuhhanhoe ca cenennaseeher 2

Kennedy v. Long Island R.R., 211 F. Supp. 478 (S.D.

N.Y. 1962) aff’d, 319 F.2d 366 (2d Cir. 1963) ....15,2

Kennedy v. Long Island R.R., 319 F.2d 366 (24 Cir. .

ESR Ae eae ae een eee erty Tc.

KLM Royal Dutch Airlines v. Transport Workers, 49 _

CCH Lab. Cas. {[ 18,990 (E.D.N.Y. 1964) ......-. 15, It

eee reeneneemennenennnmnmammnine

Index Continued ili

Page

Long Island R.R. v. Brotherhood of R.R. Trainmen,

185 F. Supp. 356 (E.D.N.Y. 1960) .............. 15

Long Island R.R. v. International Bro. of Teamsters,

57 CCH Lab. Cas. {] 12,378 (E.D.N.Y. 1967) ...... 15

Long Island R.R. v. System Federation, 368 F.2d 50 (2d

TS Ce ay nniis whe duds ¥ ihbsadseececnes 15

National Airlines, Inc. v. International Ass’n of Ma-

chinists, 416 F.2d 998 (5th Cir. 1969) ............ 17

VLRB v. General Electric Co., 418 F.2d 736 (2d Cir. .

ITC heGCiD ike been tenes Wb 806b46 060060000

VLRB Insurance Agents Int’l Union, 361 U.S. 477

EET R UNS SA 5 05 dan eehac'c uh ccansdcsscexees 6

VLR v. Prwit Mfg. Co., 351 U.S. 149 (1956) ........

Vorfolk @ P.B.L. R.R. v Brotherhood of R.R. Train-

men, 248 F.2d 34 (4th Cir. 1957) ................ 9, 10

Vorthwest Airlines, Inc. v. Airline Pilots Ass’n, 185 F.

Sepp. 77 (D. Mimm. 1060) ..........cccccccccvcs 17

der - | R.R. Telegraphers v. Chicago & N.W. Ry.,

ES al 22

Ry. Clerks, 185 F. Supp. 350 (E.D.N.Y. 1960) .. 15, 16

‘an American World Airways, Inc. v. Flight Eng’rs

Airways Inc., 404 F.2d 938 (2d Cir. 1969) ........ 27

ER., 267 U.S. 203 (1925) ...............005.-.. 18

iedmont Aviation, Inc. v. Air Line Pilots Ass’n, 416

F.2d 633 (4th Cir. 1969) ........... 6, 7, 8, 9, 10, 11, 27

ullman Co. v. Order of Ry. Conductors, 316 F.2d 556

re nsec cks isc unseveciee kaxkkasce 16

— F.2d —, 62 CCH Lab. Cas. 10,759 (2d Cir.

Ee ribs scan etka vcdiyucaduaas «ac 14, 27

outhern Ry. v. Brotherhood of Locomotive Fire. &

Eng., 223 F. Supp. 296 (M.D. Ga. 1962), aff’d on

basis of opinion below, 324 F.2d 503 (5th Cir.

rad Winask igh cbbcebhckelcucess<lcsic 11,17

iv Index Continued

Page

Southern Ry. v. Brotherhood of Locomotive Fire. ¢

Eng., 384 F.2d 323 (D.C. Cir. 1967) ............. 13

Stark v. Wickard, 321 U.S. 288 (1944) .............. ~ 25

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

Switchmen’s Union v. NMB, 320 U.S. 297 (1943) . 21, 3 95

Texas & N.O. R.R. v. Brotherhood of Ry. Clerks, 981

es I dh occas’ 644 s0bes od be 63 ak as ne 19, 30

Tunstall v. Brotherhood of Locomotive Fire. & Eng.,

- ge BF, rrr errr errr rrr 22, 25

United Industrial Workers v. Galveston Wharves, 400

Ee GE Re ED cca dndioaasaseanckeaduss 16

United Steelworkers v. NLRB, 390 F.2d 846 (D.C. Cir.

Se re rere eer rere

Virginian Ry. v. System Federation, 84 F.2d 641 (4th

Cir. 1936), aff’d, 300 U.S. 515 (1937) ........... 10

Virginian Ry. v. System Federation, 300 U.S. 515

SEE So cancecucasess¥aduwaeuneren tee 7-8, 11, 13, 17,

18, 19, 20, 21, 22.

23, 24, D, i

STATUTEs:

Labor Management Relations Act (29 U.S.C. §§ 151 ff.) 10

Norris-LaGuardia Act §8 (29 U.S.C. § 108) ......... 9, 25

Railway Labor Act:

§ 2 First (45 U.S.C. § 152 First) ...........2002. passim

$2 Second (45 U.S.C. § 152 Second) .......... 18, 23, 24

$2 Fourth (45 U.S.C. § 152 Fourth) .............. 2

§ 2 Ninth (45 U.S.C. § 152 Ninth) .......... 10, 18, 23, 4

$5 First (45 U.S.C. § 155 First) .......... 2, 3, 5, 30, 31

Se ee ED (obs oG.as char cbbieesenseveant 4,31

Re ee I cos G ee suskecesusecdeawene 5)

Transportation Act of 1920 § 301 (41 Stat. 456, 469) . .18, 19

Oe OEE 2545 54s ches Sk aSukS cedeueeees 2

Index Continued 4

MISCELLANEOUS : Page

Cox, ‘‘The Duty to Bargain in Good Faith,’’ 71 Harv.

pe NE CUD nn.on oy a ndks 00000 dnceinexece 22

Gamser, ‘‘The Role of Mediation in Airline Labor Dis-

putes,’ ‘‘Symposium on Air Transport Labor Re-

lations,’’ 35 J. Air. L. & C. 313 (1969) .......... 29

Highsaw, ‘‘The Need for Re-evaluation of Labor Legis-

lation,’’ ‘‘Symposium on Air Transport Labor

Relations,’’ 35 J. Air L. d C. 313 (1969) ........ 22-23

Meltzer, ‘‘The Chicago & North Western Case: Judi-

cial Workmanship and Collective Bargaining,”’

1960 Supreme Court Review 113 ...............

National Mediation Board Annual Reports:

Seventh Annual Report (1941) ................... 28

Sixteenth Annual Report (1950) .................. 28

Nineteenth Annual Report (1953) ................ 28

Twenty-Fourth Annual Report (1958) ............. 28

Twenty-Fifth Annual Report (1959) .............. 28

Twenty-Sixth Annual Report (1960) .............. 28

Twenty-Seventh Annual Report (1961) ............ 28

Note, 59 Mich. L. Rev. 459 (1961) ................... 22

“Railroad Labor Disputes,’’? Hearings before House

Committee on Interstate and Foreign Commerce

on H.R. 7180, 69th Cong., 1st Sess. (1926) ....26, 31, 32

“Railway Labor Act,’’ Hearings before the Senate

Committee on Interstate Commerce on S. 2306,

69th Cong., Ist Sess. (1926) ................ 31, 32, 33

Smith, ‘‘The Evolution of the ‘Duty to Bargain’ Con-

cept in American Law,’’ 39 Mich. L. Rev. 1065

DN tenis tla ae hian doles acah ee. 23

IN THE

Supreme Court of the United States

OctToBER TERM, 1969

No.

CHICAGO AND NoRTH WESTERN RAILWAY COMPANY,

Petitioner,

. 2

UniTeD TRANSPORTATION UNION, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Seventh Circuit entered in the above-

entitled case on March 6, 1970.

OPINIONS BELOW

The opinion of the Court of Appeals is set forth

in Appendix A hereto (pp. la-20a infra), and the

findings of fact, conclusions of law, and judgment of

the District Court in Appendix C (pp. 22a-29a infra).

__ |

The decision of the District Court is not reported, by

the Court of Appeals opinion is officially reported x

422 F.2d 979.

JURISDICTION

The judgment of the Court of Appeals, set forth iy

Appendix B hereto (p. 2la infra), was entered

March 6, 1970. The jurisdiction of this Court is jp.

voked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

In this case, petitioner railroad sought an injunetio,

against a strike by respondent union on the grow

that, during the negotiations between the parties, the

union had not complied with Section 2 First of the

Railway Labor Act (45 U.S.C. §152 First), whieh

requires carriers and unions ‘‘to exert every reason-

able effort to make and maintain agreements.” Th

question presented in this petition is whether the fed-

eral courts have jurisdiction to entertain such a claim,

or whether instead such jurisdiction is committed by

the Act exclusively to the National Mediation Board.

STATUTORY PROVISIONS INVOLVED

The statutory provisions principally involved ar

Sections 2 First and 5 First of the Railway Labor Ac.

which provide as follows:

Section 2 First (45 U.S.C. § 152 First) :

‘*Tt shall be the duty of all carriers, their officer.

agents, and employees to exert every reasonable

effort to make and maintain agreements concer-

ing rates of pay, rules, and working condition.

and to settle all disputes, whether arising out of

the application of such agreements or otherwise, it

order to avoid any interruption to commerce or t’

the operation of any carrier growing out of any

dispute between the carrier and the employees

thereof.”’

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

“The parties, or cither party, to a dispute be-

tween an employee or group of employees and a

carrier may invoke the services of the Mediation

Board in any of the following cases:

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

pay, rules, or working conditions not adjusted by

the parties in conference.

““(b) Any other dispute not referable to the

National 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 case any labor emergency is found by it to exist

at any time.

‘In either event the said Board shall promptly

put itself in communication with the parties to

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 10 of this Act) to in-

duce the parties to submit their controversy to

arbitration, in accordance with the provisions of

this Act.

“Tf arbitration at the request of the Board shall

be refused by one or both parties, the Board shall

at once notify both parties in writing that its medi-

atory efforts have failed and for thirty days there-

after, unless in the intervening period the parties

agree to arbitration, or an emergency board shall

be created under Section 10 of this Act, no change

shall be made in the rates of pay, rules, or work.

ing conditions or established practices in effet

prior to the time the dispute arose.”’

STATEMENT

This case arose when petitioner, the Chicago §

North Western Railway Company (hereinafter th

““C&NW’”’), sued to obtain an injunction against ,

strike threatened by respondent, the United Transpor.

tation Union (hereinafter the ‘‘UTU’’). The basis for

the C&NW’s suit was its claim that the UTU had no

complied with the command of Section 2 First of the

Railway Labor Act (45 U.S.C. § 152 First) to “exer

every reasonable effort’’ to resolve its dispute with th

C&NW. Neither the District Court nor the Court of

Appeals reached the merits of the C&NW’s claim, for

both held that violations of Section 2 First are rm.

mediable exclusively by the National Mediation Board

and that therefore the C&NW’s claim fell outside the

jurisdiction of the federal courts. The sole issue pre.

sented in this petition is whether that holding is cor-

rect. The relevant facts are as follows:

The labor dispute between the C&NW and the UTU

that led to the strike threat, and hence to the litiga-

tion, concerns how many brakemen should be employed

on the C&NW’s trains—the so-called ‘‘crew consist”

controversy. In 1965 the CONW and UTU exchanged

bargaining notices under Section 6 of the Railway

Labor Act (45 U.S.C. § 156) proposing changes in

their existing agreements on that subject. The formal

procedures of the Railway Labor Act were exhausted

with respect to these notices on November 16, 1969.

That - by that date:

. the parties had held conferences pursuant

to 66 (45 U.S.C. § 156); the National Mediation

—

Board had mediated the dispute after invocation

of mediation pursuant to §5 (45 U.S.C. § 155) ;

the Board, pursuant to §5, had concluded that its

efforts had been unsuccessful and had proffered

arbitration; the Railway had accepted that proffer

but the Union declined; the Board thereupon, on

October 16, 1969, had terminated its services pur-

suant to §5. The President had not appointed an

Emergency Board under § 10 (45 U.S.C. § 160) ;

and the § 5 thirty day ‘cooling off’ period respect-

ing maintenance of the status quo had expired.”

(CA Op. infra pp. 4a-6a, footnotes omitted).

On November 19, 1969 the C&NW instituted this

suit in the United States District Court for the North-

ern District of Illinois seeking an injunction against

a threatened strike by the UTU. The C&NW alleged

that, although the formal procedures of the Act had

been exhausted, the UTU had not discharged its obli-

gations under that statute in that it had not exerted

“every reasonable effort”’ to settle the dispute as re-

quired by Section 2 First (45 U.S.C. § 152 First) (CA

Op. infra p. 6a). The District Court granted a tem-

porary restraining order and then held a hearing on

the C@ENW’s motion for a preliminary injunction at

which C&ENW witnesses testified at length.’ At the

conclusion of the C&NW’s case, the District Court

1 ince the character of that testimony is not relevant here, and

since it is very extensive, we shall not attempt to summarize it.

By way of example, however, a part of the C&NW’s testimony

would have supported—we think compelled—a finding that the

UTU breached its statutory bargaining duties in the following

respects: (1) it refused to bargain at all over the C&NW’s initial

proposals and subsequent compromise proposals (see Brotherhood

of Ry. Clerks v. Atlantic C.L. R.R., 201 F.2d 36, 39 (4th Cir. 1953) ;

United Steelworkers v. NLRB, 390 F.2d 846 (D.C. Cir. 1967) ;

Pullman Co. v. Order of Ry. Conductors, 316 F.2d 556, 563 (7th

Cir. 1963) ; Atlantic C.L. R.R. v. Brotherhood of R.R. Trainmen,

granted the UTU’s motion to dismiss on the ground

that the National Mediation Board has exclusive juris.

diction to decide claims under Section 2 First (D¢c

Conclusions 2 and 3, infra pp. 26a-27a). At the same

time, however, ‘‘recognizing that there was case lay

contrary to its decision,’’ the District Court granted

the C&NW an injunction pending appeal (CA 0p,

infra p. Ta).

The C&NW appealed from the dismissal of its con-

plaint, and the UTU appealed from the order granting

the injunction pending appeal. The Court of Appeals

affirmed the District Court on both counts. As to the

C&NW’s appeal, the Court concluded that ‘‘§ 2, First

does not contemplate judicial enforcement of its ‘rea-

sonable effort’ requirement.’’ Rather, the ‘‘role of

the [National] Mediation Board requires it and not

the judiciary tc enforce compliance with § 2, First.”

The Court, while noting this Court’s statement in

Detroit & T. S.L. R.R. v. United Transportation Union,

396 U.S. 142, 158 (1969), that ‘‘the Mediation Board

has no adjudicatory authority with regard to major

disputes,’’ and saying that it was ‘“‘mindful that the

role of the Mediation Board is basically a nonadjudi-

eatory one,’’ nevertheless held that ‘‘the Mediation

Board must accept . . . a limited ‘quasi adjudicatory’

262 F. Supp. 177, 183 (D. D.C.), reversed on other grounds, 383

F.2d 225 (D.C. Cir. 1967)); (2) it barred by convention action

its negotiators from even discussing one of the C&NW’s proposals

(see Piedmont Aviation, Inc. v. Air Lines Pilots Ass’n, 416 F.2d

633 (4th Cir. 1969) ) ; and (3) it adopted a ‘‘ predetermined resolve

not to budge from [its] initial position’? (NLRB v. Truitt Mfg.

Co., 351 U.S. 149, 154 (1956)) and maintained from the start

‘‘an attitude of ‘take-it-or-leave-it’ ’’ (NLRB v. Insurance Agents

Int’l Union, 361 U.S. 477, 485 (1960) ) ; see also NLRB v. General

Electric Co., 418 F.2d 736, 756-63 (2d Cir. 1969)).

posture”’ respecting Section 2 First issues. The Court

acknowledged that in Piedmont Aviation, Inc. v. Air

Line Pilots Ass’n, 416 F.2d 633 (1969), cert. denied,

95 L.Ed. 2d 105 (1970), the Court of Appeals for the

Fourth Circuit had rendered ‘‘a holding opposite to

our conclusion,”’ but said that it could ‘‘not agree with

the Fourth Circuit decision’? (CA Op. infra pp. 13a,

16a-17a, 19a). On the C&NW’s application, the Court

of Appeals stayed its mandate—thereby leaving the

District Court’s strike injunction pending appeal in

effeci—until the disposition of this petition for cer-

tiorari.

REASONS FOR GRANTING THE WRIT

The question whether Section 2 First, which this

Court has referred to as the ‘‘heart’’ of the Railway

Labor Act,’ imposes judicially enforceable obligations

is plainly important, since those obligations come into

play in every negotiation conducted pursuant to the

Act. So is the collateral question whether the National

Mediation Board has the authority and the obligation

to decide whether the parties to a negotiation have com-

plied with Section 2 First. As to both questions, the

holding of the lower court raises conflicts among de-

cisions on a broad scale. As the lower court conceded,

its decision is directly at odds with a recent decision

by the Fourth Circuit Court of Appeals. While the

lower court did not mention it, its decision is also in

conflict with the rule established by three other Courts

of Appeals. And while the lower court denied it, its

decision conflicts with this Court’s decision in Virginian

* Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co.,

394 U.S. 369, 377 (1969).

Ry. v. System Federation, 300 U.S. 515 (1937). More.

over, the lower court’s decision would require the

National Mediation Board to assume a responsibility

that the Board has never exercised, that the Congress

did not mean it to have, and that is incompatible with

the performance of the Board’s central statutory role

as a mediatory agency.

1. As to the justiciability of Section 2 First, we

begin with the conflict among lower courts rather than

with this Court’s holding in Virginian because, while |

the Court of Appeals thought its decision reconcilable

with Virginian, it conceded that its decision was

squarely contrary to the ruling of the Fourth Circuit

Court of Appeals in Piedmont Aviation, Ince. v. Air

Line Pilots Ass’n, 416 F.2d 633 (1969), cert. denied,

25 L.Ed. 2d 105 (1970).°

In Piedmont, as in the case at bar, the dispute be-

tween the union and the carrier was a ‘‘major dis-

pute’’—that is, it was a disagreement over proposals

to change existing contracts rather than a ‘‘minor”’ dis-

pute over the interpretation of those contracts.‘ While

‘‘minor’’ disputes are subject to compulsory arbitra-

tion and may not be the occasion for strikes or lock-

outs,® such ‘‘self help’’ in a ‘‘major’’ dispute is per-

missible, but only when there has been compliance with

all the provisions of the Railway Labor Act relating to

8 Qn May 18, 1970 this Court denied a motion for leave to file

an out-of-time petition for rehearing in Piedmont. 38 U.S. Law

Week 3454 (1970).

* See, generally, Elgin, J. & E. R.R. v. Burley, 325 U.S. 711, 722

28 (1945), adhered to on rehearing, 327 U.S. 661 (1946).

5 See Brotherhood of R.R. Trainmen v. Chicago R. & I. R.R., 358

U.S. 30 (1957).

such disputes.° In Piedmont, as in the case at bar,

the formal procedures of the Act—conferences, media-

tion, and expiration of the relevant ‘‘cooling off’

periods—had been exhausted, but the carrier sought

a strike injunction on the ground that the requirements

of the Act had not been met in that the union had

failed to ‘‘exert every reasonable effort’’ to resolve the

dispute within the meaning of Section 2 First.

The District Court in Piedmont granted a prelimi-

nary injunction because ‘‘the union failed to negotiate

in good faith as required by the... Act.’? 416 F.2d

at 637. The Court of Appeals affirmed. With respect

to the enforceability of Section 2 First, as the Seventh

Cireuit Court of Appeals noted in the case at bar (CA

Op. infra p. 19a), the Fourth Circuit Court of Appeals

in Piedmont explained :

‘*Restraining the parties from self-help, through

strikes or otherwise, until they have complied with

the duty to bargain in good faith vindicates the

congressional purpose of providing machinery to

prevent strikes without creating an irreconcilable

conflict with the Norris-LaGuardia Act. Restraint

conditioned in this respect does not deny the right

to strike over a major dispute; but it delays this

right until the union satisfies the mandate of the

Railway Labor Act.’’ Id., at 636.

*See, e.g., Brotherhood of R.R. Trainmen vy. Jacksonville Termi-

nal Co., 394 U.S. 369, 378, 384-85 (1969); Detroit & T. S.L. R.R.

v. United Transportation Union, 396 U.S. 142, 150-53 (1969) ;

Norfolk @ P.B.L. R.R. v. Brotherhood of R.R. Trainmen, 248 F.2d

34, 45-46 (4th Cir. 1957) ; Brotherhood of Locomotive Fire & Eng.

v. Bangor & A. R.R., 380 F.2d 570, 583 (D.C. Cir. 1967) ; Brother-

hood of R.R. Trainmen v. Akron & B.B. R.R., 385 F.2d 581, 613

(D.C. Cir. 1967).

This ruling was in accord with previous decisions }

by the Fourth Circuit Court of Appeals. Thus, in |

Virginian Ry. v. System Federation, 84 F.2d 641 (1936) }

—the decision affirmed by this Court in the opinion we

discuss in detail later—the Court of Appeals upheld

the validity of an injunction against a carrier which,

inter alia, ordered it to comply with its Section 2 First }

obligations. Later, in Brotherhood of Ry. Clerks y, |

Atlantic C.L. R.R., 201 F.2d 36 (1953), the Court of

Appeals directed the grant of injunctive relief con.

pelling the carrier to bargain with the union after the

National Mediation Board had released the case and

all formal procedures of the Act had been exhausted |

The Court cited Sections 2 First and 2 Ninth, together

with this Court’s decision in Virginian, and stated: |

‘Tt was the duty of the railroad under this statute

to bargain in good faith with the brotherhood. ...

An employer who assumes an intransigent attitude

in refusing to bargain collectively manifestly does

not meet the requirements of the statute merely

because he listens politely to an offer and exercises

politeness in declining it without making any [

counter offer or indicating any basis upon which }

he is willing to bargain. ...’’ Id., at 39-40!

On February 24, 1970, this Court denied certiorari F

in Piedmont. 25 L.Ed. 2d 105. Ten days later, the F

Court of Appeals in the case at bar rejected the Pied- F

7 See also Norfolk & P.B.L. R.R. v. Brotherhood of R.R. Tran

men, 248 F.2d 34, 45 n.6 (4th Cir. 1957), where in upholding 1

carrier’s right to a strike injunction, the court in dictum suggestei

that the union’s bargaining may not have ‘‘satisflied] the substar-

tive requirement of negotiation imposed upon the Brotherhoods by

the Act’’ and stated that the ‘‘negotiation required by the Act

is the same ‘good faith’ bargaining required by the Labor Manage

ment Relations Act... .’’

———_

mont rule, thereby raising a conflict between circuits

that only this Court can resolve,

2. The decision below conflicts not only with Pied-

mont, but also with decisions of the Courts of Appeals

for the District of Columbia, Second, and Fifth Cir-

cuits, Outside the Seventh Cireuit, “[T]he courts

have enjoined ... threatened and impending strikes in

major disputes where good faith bargaining has not

taken place in the manner and to the extent required

by the Act ....”°’ Southern Ry. v. Brotherhood of

Locomotive Fire. &} Eng., 223 F. Supp. 296, 305 (M.D.

Ga. 1962), aff’d on basis of opinion below, 324 F.2d

503 (5th Cir. 1963).

a. The justiciability of Section 2 First is well estab-

lished by a series of decisions in the District of Colum-

bia Circuit. In Brotherhood of R.R. Trainmen v.

Akron & B.B. R.R., 385 F.2d 581 (1967), which in-

volved a number of rather complex issues, the District

Court had made the following determinations respect-

ing the obligation to bargain in ‘“‘good faith”: that

one set of union contract proposals was premature

because served prior to the expiration of a controlling

arbitration award; that the conferences held respect-

ing those proposals, at which the carriers did not dis-

cuss the merits but instead properly insisted that the

notices were premature, did not satisfy the Act’s re-

quirements respecting bargaining; and that the union

was obliged to satisfy that requirement for conferences

before it could call upon the Mediation Board to under-

take mediation. The District Court said:

“‘Under the Railway Labor Act, as it has been

construed by the Supreme Court in Virginian Rail-

way Co. v. System Federation No. 40, Railway

Employees, 300 U.S. 515 . . . there is a binding

obligation on the part of both parties to conduct

negotiations in good faith pursuant to notices

served under Section 6 of the Railway Labor Act.

The Supreme Court made it clear that the provi-

sion for negotiations was not merely an expression

of a pious wish, was not hortatory, but was a

command.

‘‘There must be a bona fide actual negotiation,

and the courts will, by ee Te decrees, re-

quire negotiations.”” Akron & B.B. R.R. v. Order

rs 966, Conductors, 253 F. Supp. 538. 539-540

The Court of Appeals not only affirmed that deter-

mination, upholding a restraining order against a

strike (385 F.2d at 598, 614), but also held that with

respect to different union notices found not to be pre-

mature the carriers had ‘‘breached their duty to enter

negotiations in good faith’’ by refusing to discuss the

merits of those proposals (385 F.2d at 597-98). Under

the Seventh Circuit’s view, those determinations could

not have been made; they would have been within the

exclusive jurisdiction of the National Mediation Board,

which had actually undertaken mediation with respect

to a number of the notices in question (385 F.2d at

597, 598).

Three other District of Columbia Court of Appeals

decisions are in accord with Akron. Prior to that case,

the Court of Appeals had affirmed a determination by

the Railroad Retirement Board that a «trike had ‘‘vio-

lated Section 2, First of the Railway Labor Act’’ and

that therefore the striking employees were not entitled

to unemployment benefits. Brotherhood of Ry. Clerks

v. Railroad Ret. Bd., 239 F.2d 37, 43-44 (1956). At

about the same time as Akron, the Court of Appeals re-

fused to set aside pending appeal the portion of an

injunction requiring a carrier to ‘‘exert every reason-

able effort’’ to resolve its ‘‘major’’ dispute with a union,

citing Virginian aud stating: ‘‘The Supreme Court

has held that a federal court may issue an injunction

to compel compliance by the employer with the require-

ments of § 2 First.’’ Southern Ry. v. Brotherhood of

Locomotive Fire. & Eng., 384 F.2d 323, 328 (1967).

And finally, in a strike injunction context, after ex-

haustion of all formal procedures of the Act, the Court

of Appeals, while reversing the District Court’s de-

termination that the union had violated Section 2 First

by refusing to engage in multi-employer bargaining,

laid down the rule that a court must decide ‘‘[w] hat

eonstitutes good faith bargaining in the railroad in-

dustry ... on an issue-by-issue evaluation”’ of the rele-

vant facts. Brotherhood of R.R. Trainmen v. Atlantic

CL. R.R., 383 F.2d 225, 229 (1967).®

In two recent cases, moreover, the United States Dis-

trict Court for the District of Columbia, guided by the

Court of Appeals opinion in Atlantic Coast Line, is-

sued strike injunctions after exhaustion of the formal

procedures of the Act upon the basis of holdings that

the unions had violated their statutory obligations re-

specting multi-employer bargaining. Chicago, B. & Q.

R.R. v. Railway Employes’ Dept., 301 F. Supp. 603

(1969) ; International Ass’n of Machinists v. National

Ry. Lab. Conference, 62 CCH Lab. Cas. 110,702

(1970). In the latter case, for example, the Court held

that ‘‘[b]y initiating and negotiating the dispute on an

bligatory national basis and then striking the carriers

®In issuing the strike injunction, the District Court had dis-

ussed the content of the ‘‘good faith bargaining’’ rule and had

ited Virginian for the principle that ‘‘a fulfillment of this obliga-

ion may be compelled by judicial decree.’’ Atlantic C. L. R.R.

. Brotherhood of R. R. Trainmen, 262 F. Supp. 177, 184 (1967).

on an individual basis it seems clear that the union

have violated their [Section 2 First] duty to ‘exer

every reasonable effort to make . . . agreements. .

and settle disputes.’’’ (Ellipses by the Court.) 6

CCH Lab. Cas. at p. 18,313.°

b. The Court of Appeals for the Second Circuit ha

also held Section 2 First to be enforceable by injune

tion. Its most recent decision is Seaboard World Air

lines, Inc. v. Transport Workers, —— F. 2d —, 6

CCH Lab. Cas. 110,759 (1970). There the court hek

that a strike called to press bargaining demands in ;

‘‘major’’ dispute in violation of a valid contractua

moratorium on such demands would violate Section :

First, and that accordingly a strike should be enjoine

pending the district court’s determination of the va

lidity of the contractual moratorium. Three earlie

decisions by the Court of Appeals are in accord.” [

the first, the Court rejected a carrier’s Section 2 Firs

claim on the merits, Pan American World Airway:

Inc. v. Flight Eng’rs Int’l Ass’n, 306 F.2d 840, 84

(1962) ; in the second, it rejected a union’s Section |

First claim respecting a carrier’s strike insurance plar

Kennedy v. Long Island R.R., 319 F.2d 366, 370-7

® The Chicago, B. & Q. R.R. case was settled while an appeal ws

pending and the District Court’s judgment was ultima‘ely vacate

as moot. As to the Machimists case, while one of the several unio

parties has noted an appeal, presumably it will not urge the

Section 2 First is not justiciable, since none of the unions so cot

tended in the District Court. Quite to the contrary, they cor

tended that the railroads, in announcing that they would respon

to a ‘‘whipsaw strike’’ by exercising their right to lock-out, wer

threatening ‘‘a clear violation of . . . Section 2 First of the Rai

way Labor Act.’’ 62 CCH Lab. Cas. at 718,311.

10 The earliest opinion of the Court of Appeals on the subje

took note of but did not decide the question whether a strike coul

be enjoined on grounds of a violation of Section 2 First. Chicag

RI. & P. R.R. v. Switchmen’s Union, 292 F.2d 61, 67 (1961).

(1963) ; and in the third, where a union had neither

resorted to grievance procedures nor served a Section

6 notice, the Court affirmed a strike injunction because

the union’s conduct ‘‘was a flagrant violation under the

Act of the ‘duty of all carriers, [and] their .. . em-

ployees to exert every reasonable effort to make and

maintain agreements .. . and to settle all disputes.

...’”’ Long Island R.R. v. System Federation, 368

F.2d 50, 53 (1966) (Elipses by the Court).

The District Courts in the Second Circuit, moreover,

have granted either temporary restraining orders or

preliminary injunctions against strikes on Section 2

First grounds after exhaustion of the Act’s formal pro-

cedures in the following cases: Pan American World

Airways, Inc. v. Brotherhood of Ry. Clerks, 185 F.

Supp. 350 (E.D.N.Y. 1960); Long Island R.R. v.

Brotherhood of R.R. Trainmen, 185 F. Supp. 356

(E.D.N.Y. 1960) ; Chicago, RI. d&: P. R.R. v. Switch-

men’s Union, 187 F. Supp. 581 (W.D.N.Y. 1960),

rev'd on other grounds, 292 F.2d 61, 67 (2d Cir. 1961) ;

Pan American World Airways, Inc. v. Flight Eng’rs

Int’l Ass’n (unreported) (E.D.N.Y. 1961), rev’d on

other grounds, 306 F.2d 840 (2d Cir. 1962). See also

American Airlines, Inc. v. Air Line Pilots Ass’n, 169

F. Supp. 777, 787-790, 793, 798 (S.D.N.Y. 1958)

(dictum) ; Kennedy v. Long Island R.R., 211 F. Supp.

478, 486-488 (S.D.N.Y. 1962), aff’d, 319 F.2d 366, 370

(2d Cir. 1963) (dictum) ; Long Island R.R. v. Interna-

tional Bro. of Teamsters, 57 CCH Lab. Cas. 112,378

(E.D.N.Y. 1967) ; KEM Royal Dutch Airlines v. Trans-

port Workers, 49 CCH Lab. Cas. 118,990 (E.D.N.Y.

1964) at p. 31,496. In granting relief in Long Island

R.R. v. Brotherhood of R.R. Trainmen, the Court ob-

served with respect to Section 2 First that ‘‘[t]o effee-

tuate the purposes of the Act and to prevent a mockery

of its requirements such efforts [to settle] must be reg.

sonable and made in good faith and not simply to

satisfy perfunctory compliance.”” 185 F. Supp. at

358. And in Pan American World Airways, Inc. y,

Brotherhood of Ry. Clerks, the Court responded to the

union’s argument that ‘‘ ‘[t]here is no requirement in

the Railway Labor Act that a Union bargain in good

faith’ ’’ by saying: ‘‘To this the Court cannot agree,

If compliance with the Act need only be perfunctory,

the congressional mandate would be defeated and the

purposes of the Act rendered nugatory.’’ 185 FP.

Supp. at 353. In short, as the Court in KLY

Royal Dutch Airlines put it: ‘Good faith effort to

resolve disputes and exhaustion of the process is a

condition precedent to the use of economic pressures

and forces.’”?’ 49 CCH Lab. Cas. at p. 31,496.

ce. In the Fifth Circuit also the justiciability of

claims under Section 2 First is clearly established. In

United Industrial Workers v. Galveston Wharves, 40

F.2d 320, 324 (1968), the Court of Appeals observed

that the District Court had correctly ordered the car-

rier to bargain in good faith because ‘‘the Act requires

that ... the parties must make every reasonable effort

to settle their differences in conference’’ and because

‘**one of the statute’s primary commands, judicially

enforceable, is found in the repeated declaration of a

duty upon all parties . . . to negotiate’ [citing Elgin,

J. d& E. Ry. v. Burley, 325 U.S. 711, at 721 n. 12).”

In Richardson v. Texas & N.O. R.R., 242 F.2d 230, 235

(1957), the Court held a carrier liable for entering into

racially discriminatory collective bargaining agree-

ments because Section 2 First ‘‘imposed directly upon

the Railroads the duty to ‘make and maintain agree-

ments’ in compliance with the provisions cf the Rail-

way Labor Act....’’ And in Southern Ry. v. Brother-

hood of Locomotive Fire. & Eng., 223 F. Supp. 296,

308 (M.D. Ga. 1962), aff’d, 324 F.2d 503 (1963), the

District Court, in an opinion adopted by the Court of

Appeals, dismissed a carrier’s injunction suit as pre-

mature but, citing a number of decisions discussed in

this petition, said that ‘‘should . . . a strike become im-

minent’’ the carrier could seek relief again “‘if willing

to assume the burden of proving that the defendants

have not complied with their statutory duty to bargain

in good faith.’’ See also National Airlines, Ine. v.

International Ass’n of Machinists, 416 F.2d 998, 1003

n. 3 (5th Cir. 1969).”

3, That the weight of authority should be so heavily

and uniformly against the decision of the lower court

is not surprising, for that decision cannot be reconciled

with Virginian Ry. v. System Federation, 300 U.S. 515

(1937), the authority cited by many of the lower courts

in the cases described above and surely one of the most

important of this Court’s Railway Labor Act decisions.

In Virginian the plaintiff union, which had won a rep-

"Three District Court decisions in other circuits are relevant.

In Flight Engineers Int’l Ass’n v. Trans World Airlines, Inc.,

305 F.2d 675 (8th Cir. 1962), the District Court, in an unreported

decision subsequently vacated as moot, granted a strike injunction

on the basis of a violation by the union of Section 2 First. In

Northwest Airlines, Inc. v. Airline Pilots Ass’n, Int’l, 185 F. Supp.

77, 80 (D. Minn. 19€9), the District Court entertained an in-

junction claim grounded upon an asserted violation of Section 2

First, but found that the carrier did not ‘‘discharge .. . its bur-

den of showing an absence of good faith’’ on the part of the union.

And in Capitol Airways, Inc. v. Air Line Pilots Ass’n, 41 CCH

Lab. Cas. 16,739, at p. 23,837 (M.D. Tenn. 1961), the Court

found jurisdiction to issue a declaratory judgment because of

Section 2 First, ‘‘which imposes upon all carriers and their em-

ployees the duty to exert every reasonable effort to make and

maintain agreements, . . .”’

reaentation election conducted under Section 2 Ninth

of the Act (45 U.S.C, § 152 Ninth), sought judicial in.

tercession when the carrier continued to deal with a

“eompany union.” The union grounded ita claim upon

several provisions of the Railway Labor Act, including

Section 2 Ninth and Section 2 First. The District

Court held for the union, entering an injunetion which

directed the carrier both to “treat with” the union, in

the language of Section 2 Ninth, and ‘to exert every

reasonable effort to make and maintain agreements”

with the union, in the language of Section 2 First. Id,

at 540,

In this Court, the carrier attacked both parts of the

injunction on the theory that the statutory provisions

upon which they were based were intended by the

Congress to be merely precatory. The principal auv-

thority advanced in support of this argument was this

Court's holding in Pennsylvania R.R. System Federa-

tion v. Pennsylvania R.R., 267 U.S. 203 (1925), that the

forerunner of Section 2 First—Section 301 of the

Transportation Act of 1920 (41 Stat. 456, 469)—was

‘*without legal sanction in the Act.’’ 300 U.S. at D4.

Beyond that, the carrier urged that the subject matter

of the injunction, which involved evaluation of the

earrier’s good faith, was not suitable for judicial

inquiry.”

'2In countering these arguments, it is worth noting that the

union had the support of the United States, which appeared as

amicus curiae. Thus, the Solicitor General urged:

‘*A review of the history and context of these sections

. .. shows that Congress intended the obligations imposed by

paragraphs First, Second, and Ninth of §2, to be both

mandatory and enforceable.

‘**Enforcement of paragraphs First, Second, and Ninth of

§ 2 is in fact essential to the success of the statutory plan for

amicable settlement of disputes through conferences between

representatives of the parties... .’’ 300 U.S. at 536.

This is how the Court summarized the carrier's

principal argument:

“But petitioner insists that the statute affords

no legal sanction for so much of the deeree ax di-

rects petitioner to ‘treat with’ respondent Federa-

tion and ‘exert every reasonable effort to make and

maintain agreements concerning rates of pay,

rules and working conditions, and to settle all dis-

putes whether — out of the application of

such agreements or otherwise,’ 300 ULB. at 544.

And this is how the Court rejected that argument:

“The poliey of the Transportation Act [of

1920] of encouraging voluntary adjustment of

labor dixputes, made manifest by those provi-

sions of the Act which elearly eontennplateh the

moral foree of public opinion as affording its ulti-

mate sanction, was... abandoned by the enact-

ment of the oe Labor Act. Neither the pur-

poses of the later Act, as amended, nor its provi-

sions when read, as they must be, in the light of

our decision in the Railway Clerks case [Teras &

N.O. R.R. v. Brotherhood of Ry. Clerks, 281 U.S.

548 (1930)] ... lend support to the contention

that its enactments, which are mandatory in form

and capable of enforcement by judicial process,

were intended to be without legal sanction.

a - * a o *

“The statute does not undertake to compel

agreement between the employer and employees,

but it does command those preliminary steps with-

out which no agreement can be reached. It at least

requires the employer to meet and confer with the

authorized representative of its employees, to listen

to their complaints, to make reasonable effort to

compose differences—in short, to enter into a nego-

tiation for the settlement of labor disputes such as

is contemplated by §2, First.’’ Jd. at 545, 548

(footnote omitted).

As to the carrier’s secondary argument respecting

the propriety of judicial relief, the Court summarized

the carrier’s position in this way:

‘Petitioner contends that . . . negotiation de.

ends on desires and mental attitudes which are

eyond judicial control, and that since equity can.

not compel the parties to agree, it will not compel

them to take the preliminary steps which may re.

sult in agreement.’? Jd. at 549-550.

And this is how the Court disposed of that contention;

‘“*Whether an obligation has been discharged,

and whether action taken or omitted is in good

faith or reasonable, are everyday subjects of in-

at by courts in framing and enforcing their

ecrees.’? Id. at 550.

In the case at bar, as the court below noted, peti-

tioner “‘place[d] great reliance’? upon Virginian (CA

Op. infra p. 18a). But the court below thought that

Virginian meant only that the parties in negotiating

‘‘should be guided by’’ Section 2 First, not that a

refusal to comply with that provision could be remedied

by judicial decree. That is so, the court below said,

because this Court in Virginian “did not state nor

imply that whether reasonable effort is in fact com-

plied with by either party was a question for the courts

- to answer’’ (CA Op. infra pp. 18a-19a).

In this the Court of Appeals erred. This Court

in Virginian not merely ‘‘implied,’’ but explicitly

‘*stated,’’ that compliance by the carrier with its Sec-

tion 2 First obligation was ‘‘a question for the courts

to answer.”’ It so ‘‘stated’’ when it wrote that the

Act ‘‘requires the employer . . . to make reasonable

effort to compose differences’’ and ‘‘to enter into a

negotiation for the settlement of labor disputes such

as is contemplated by § 2, First,’’ and when it wrote

that ‘whether action taken or omitted is in good faith

or reasonable [is an] everyday subject of inquiry by

courts in framing and enforcing their decrees.’’ And

just as surely this Court ‘implied’ the same thing

when it rejected the argument that Section 2 First

“affords no legal sanction” for so much of the injune-

tion as required the carrier to “exert every reasonable

effort’”’ to settle its disputes with the union.

Even if the Virginian opinion were in any way

ambiguous with respect to the Section 2 First question,

that ambiguity would be erased by this Court’s deserip-

tion of Virginian in another of its leading Railway

Labor Act opinions, Elgin, J. & E. R.R. v. Burley,

395 U.S. 711, 721-722 n. 12 (1945), adhered to on re-

hearing, 327 U.S. 661 (1946). There, citing Virginian

as authority for the proposition that Section 2 First

is “judicially enforceable,” this Court stated :

“Thus, one of the statute’s primary commands,

judicially enforceable, is found in the repeated

declaration of a duty upon all parties to a dispute

to negotiate for its settlement. See note 26 [quot-

ing Section 2 First and other of the subsections of

Section 2] ; Virginian [2. Co. v. System Federation,

300 U.S. 515; cf. Switchmen’s Union v. National

Mediation Board, 320 U.S. 297, 300, 320; General

Committee v. M.-K.-T. R. Co., 320 U.S. 323, 331,

334. This duty is not merely perfunctory. Good

faith exhaustion of the possibility of agreement is

required to fulfill it. Cf. Virginian R. Co. v. Sys-

tem Federation, supra, at 548, 550; Trainmen v.

Toledo, P. & W. R. Co., 321 U.S. 50, 56 ff. ...’’”

13 And, again, on rehearing, the Court in Burley said: ‘‘We

alao pointed out that the Act imposes correlative affirmative duties

upon the carrier, the collective agent and the aggrieved employee

to make every reasonable effort to settle the dispute.’’ 327 US.

61, 665 (1946).

All subsequent references in this Court’s opinions

to Virginian and Section 2 First are in accord with

Burley. See Brotherhood of Ry. Clerks v. Association

for the Benefit of Non-Contract Employees, 380 US,

650, 658 (1965) (reaffirming Virginian’s declaration

that the Act requires ‘‘a negotiation for the settlement

of labor disputes such as is contemplated by §2

First’’); Order of R.R. Telegraphers v. Chicago ¢

N.W. Ry., 362 U.S. 330, 339 (1960) (referring to the

‘*Act’s command that employees as well as rail-

roads exert every reasonable effort to settle all dis.

putes’’) ; International Ass’n of Machinists v. Street,

367 U.S. 740, 758 (1961) (stating that Section 2 First

‘‘created affirmative legal duties on the part of the

carriers and their employees’’) ; Stark v. Wickard, 321

U.S. 288, 303 (1944) (citing Virginian as relating to

‘ta right created by statute [which] is mandatory in

character and obviously capable of judicial enforee-

ment’’) ; Steele v. Louisville & N. R.R., 323 U.S. 192,

207 (1944) ; Switchmen’s Union v. NMB, 320 U.S. 297,

300-301 (1943) ; Tunstall v. Brotherhood of Locomotive

Fire. & Eng., 323 U.S. 210, 213-14 (1944)."

14 For commentators’ views of Virginian and Section 2 First,

see Meltzer, ‘‘The Chicago & North Western Case: Judicial Work-

manship and Collective Bargaining,’’ 1960 Supreme Court Review

113, 125-126 and note 54 (In Virginian ‘‘the Court sanctioned the

use of an injunction against an unwilling employer to enforce the

duty to bargain.’’ The ‘‘Court’s statement that the Act requires

the employer to make ‘reasonable effort to compose differences’ ”

is not dictum, because ‘‘the injunction sustained in Virginian Rail.

way required the employer not merely to recognize the union but

also to ‘exert every reasonable effort to make and maintain agree-

ments.’ ’’) ; Note, 59 Mich. L. Rev. 459, 463 n. 27 (1961) (Section

2 First ‘‘is enforceable by order of a federal court,’’ citing Vir-

ginian) ; Cox, ‘‘The Duty to Bargain in Good Faith,’’ 71 Harv. L.

Rev. 1401, 1404 (1958) (Section 2 First ‘‘is enforceable by a pri-

vate suit for an injunction,’’ citing Virginian) ; Highsaw, ‘‘The

Thus the decision below, in holding that ‘‘§ 2, First,

does not contemplate judicial enforcement’? (CA Op.

infra p. 13a), is both literally and substantively in

conflict with Virginian’s holding, as summarized in

Burley, that this provision is ‘‘judically enforceable.”’

4. While the lower court thought distinguishable the

decision that is plainly in point, Virginian, it thought

pertinent, a decision that is plainly distinguishable,

General Committee v. Missouri-K-T R.R., 320 U.S. 323

(1943). That case involved a representational dispute

between two unions in which one of them sued to pre-

vent the carrier from dealing with the other with re-

spect to certain issues, claiming that it was the sole

representative authorized to negotiate about those

issues. The plaintiff union relied on paragraphs First,

Second, Fourth, and Ninth of Section 2 of the Act. In

holding that the claim was not justiciable, this Court

devoted most of its opinion to provisions other than

Section 2 First. Its only mention of this provision

appears in the following sentence, upon which the

lower court in the case at bar relied: ‘‘But § 2, Second,

like §2, First, merely states the policy which those

other provisions buttress with more particularized com-

mands’’ (footnote omitted). 320 U.S. at 334.

But by this the Court meant only that the justicia-

bility of the plaintiff’s claim arising from a jurisdic-

tional dispute was to be tested by reference to the

statutory provision specifically relating to such dis-

Need for Re-evaluation of Labor Legislation,’’ ‘‘Symposium on

Air Transport Labor Relations,’’ 35 J. Air L. & C. 313, 450, 455

(1969) (Section 2 First ‘‘creates an enforceable obligation in the

federal courts ... It is in essence a requirement of ‘good faith’

bargaining by the parties.’’). See also Smith, ‘‘The Evolution

of the ‘Duty to Bargain’ Concept in American Law,’’ 39 Mich L.

Rev. 1065, 1099-1100 (1941).

putes, Section 2 Ninth (45 U.S.C. § 152 Ninth), rather

than by reference to Section 2 First. The basis for the

Court’s holding was its.conclusion that the Congress,

by enacting Section 2 Ninth and thereby authorizing

the National Mediation Board ‘‘to resolve a wide range

of jurisdictional disputes between unions,’’ evidenced

an intent ‘‘not to leave their solution to the courts.”

320 U.S. at 336. This was so even assuming that some

types of jurisdictional disputes would not be within

the Board’s Section 2 Ninth jurisdiction, because “‘it

is difficult to believe that Congress saved some juris-

dictional disputes for the Mediation Board and sent

the parties into the federal courts to resolve the others.”

Id. at 336-37. The legislative purpose reflected in the

‘‘more particularized commands’”’ of Section 2 Ninth

could not be circumvented by reliance upon the more

general provisions of Sections 2 First and 2 Second

Or, as the Court put it with respect to the latter pro-

vision, ‘‘Nor does §2, Second make justiciable what

otherwise is not.’’ Id. at 334. But this does not mean

that claims under Section 2 First which do not involve

representational or jurisdictional disputes are not jus-

ticiable. Virginian held that they are, for there, as

we have indicated, this Court affirmed an injunction

commanding obedience to Section 2 First after the

plaintiff union’s representational dispute had been re-

solved by the National Mediation Board under See-

tion 2 Ninth. That holding was not diluted by

Missouri-R.-T.*

15 That this is the correct interpretation of Missouri-K.-T. is

also clear from the passage in Burley we have already quoted

(supra p. 21). There, the Court reaffirmed that Virginian estab-

lished that Section 2 First imposes obligations that are ‘‘judi-

cially enforceable,’’ and in that connection simply cited Missouri-

K.-T. with a ‘‘cf.’’ signal. Moreover, in other opinions this Court

has explained Missouri-K.-T. as a case in which the Act did not de-

RY RS

5. Virginian, moreover, was correctly decided. In

view of the office of this petition, we here merely sum-

marize some of the principal relevant factors bearing

on the justiciability of Section 2 First. The question,

of course, is one of legislative intent. As to that, Sec-

tion 2 First is written in mandatory, not hortatory,

terms, and it is, as this Court has said, the “‘heart” of

the statutory scheme.”* The presumption is, therefore,

that the Congress did not intend that parties should

be able to ignore with impunity the bargaining duty

established by the statute. Nor is there anything in

the nature of that duty beyond the competence of

the judicial power. That is established by Brother-

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

U.S. 50 (1944), where this Court held that a railroad

had violated a statutory provision—Section 8 of the

Norris-LaGuardia Act (29 U.S.C. §108)—that also

obliges parties to a labor dispute to ‘“‘make every rea-

sonable effert to settle such dispute.’ Finally, the

legislative history of Section 2 First supports the con-

clusion that it was designed to be judicially enforce-

able. The thrust of that history is best summarized in

the following statement of Mr. Donald Richberg,

pend upon judicial enforcement of a statutory command in view of

prescribed administrative remedies, in contrast to Virginian where

there was ‘‘no mode of enforcement other than resort to the courts.”’

Steele v. Louisville & N. R.R., 323 U.S. 192, 207 (1944) ; see also

Switchmen’s Union v. NMB, 320 U.S. 297, 300 (1943) (‘‘If the ab-

sence of jurisdiction of the federal courts meant a sacrifice or oblit-

eration of a right which Congress had created, the inference would

be strong that Congress intended the statutory provisions governing

the general jurisdiction of those courts to control,’’ citing Vir-

gimian); Tunstall v. Brotherhood of Locomotive Fire. & Eng.,

923 U.S. 210, 213-214 (1944) ; Stark v. Wickard, 321 U.S. 288, 303,

n. 17 (1944).

* Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co.,

394 U.S. 369, 377 (1969).

spokesman for the unions, in urging enactment of the

statute :

“In the first place, it is their duty to exert every

reasonable effort . . . to settle all disputes, whether

arising out of the abrogation of agreements or

otherwise, in order to avoid any interruption to

commerce. In other words, the legal obligation

is imposed, and as I have previously stated, and

I want to emphasize it, I believe that the deliberate

violation of that legal obligation could be pre-

vented by court compulsion.’”’ ‘‘Railroad Labor

Disputes,’”’ Hearings before House Committee on

Interstate and Foreign Commerce on H.R. 7180,

69th Cong., Ist Sess. (1926), p. 91.”

6. Finally, apart from the conflict in decisions re-

specting the judicial enforceability of Section 2 First,

the underlying determination of the lower court that

the National Mediation Board has an ‘‘adjudicatory

or quasi adjudicatory”’ role which ‘‘requires it . . . to

enforce compliance with §2, First’? (CA Op. infra

pp. 16a, 18a) deserves review for the following reasons:

a. There is as to this issue the same conflict among

circuits that exists with respect to the intimately re-

lated question of the justiciability of Section 2 First.

Each of the decisions cited above in which the courts

have passed on the merits of Section 2 First claims is

incompatible with the holding below that the Board

has exclusive jurisdiction over such claims.” More-

17 For similar testimony by Mr. Richberg, see id., at 40.

18 Thus, for example, other Courts of Appeals have invaded what

the court below considered to be the exclusive province of the

Mediation Board when they held that a union’s refusal to desig-

nate representatives with full authority to conclude agreements

did not violate Section 2 First (Chicago, RI. & P. R.R. v. Switch-

men’s Union, 292 F.2d 61 (2d Cir. 1961) ) ; that a union’s refusal to

engage in multi-employer bargaining will violate Section 2 First

in some disputes but not in others (Brotherhood of R.R. Trainmen

v. Atlantic C.L. R.R., 383 F.2d 225 (D.C. Cir. 1967)); and that

over, had any of those courts thought that the Board

had even coordinate jurisdiction with the courts over

Section 2 First claims, traditional principles of pri-

mary jurisdiction would doubtless have led them to

refrain from adjudication pending a determination by

the Board. Instead, it is plain that the common judicial

understanding has been, as this Court said just this

Term in Detroit ¢ T.8.L. R.R. v. United Trans porta-

tion Union, 396 U.S. 142, 158-159 (1969), that ‘‘the

Mediation Board has no adjudicatory authority with

regard to major disputes, nor has it a mandate to issue

regulations construing the Act generally.’’ *

a union’s refusal to permit its representatives to bargain over

certain matters could violate Section 2 First (Piedmont Aviation,

other similar ‘‘good faith bargaining’ issues determined by the

Courts of Appeals, see Brotherhood of R.R. Trainmen v. Akron

é B.B. R.R., 385 F.2d 581, 597-98 (D.C. Cir. 1967) (refusing to

bargain over valid demands and pressing invalid ones) ; Brother-

hood of Ry. Clerks v. Railroad Ret. Bd., 239 F.2d 37, 48-44 (D.C.

Cir. 1956) (participating in a ‘‘wildcat’’ strike); Pan American

World Airways, Ine. v. Flight Eng’rs Int’l Ass’n, 306 F.2d 840,

849 (2d Cir. 1962) (refusal to make concessions) ; Kennedy v.

Long Island R.R., 319 F.24 366, 370-371 (2d Cir. 1963) (carriers’

adoption of a multi-employer strike insurance plan) ; Seaboard

World Airlines, Ine. v. Transport Workers, — F.2d —, 62 CCH

Lab. Cas. § 10,759 (2d Cir. 1970) (pressing bargaining demands in

violation of a contractual moratorium). Questions of whether

“action taken or omitted is in good faith or reasonable’’ are thus

“everyday subjects of inquiry by courts,’ as this Court noted

in Virginian, 300 U.S. at 550.

19 See also Chicago, RI. & P. R.R. v. Switchmen’s Union, 292

F.2d 61, 67 (2d Cir. 1961), where the Court said that Section 2

First issues come to the courts ‘‘ without the advance administrative

sters, 275 F. Supp. 986, 995 (S.D. N.Y. 1967), aff’d on basis of

opinion below sub nom. Brotherhood of Ry. Clerks v. Pan Amer-

cam World Airways, Inc., 404 F.2d 938 (2d Cir. 1969), where the

Court said that ‘mediation proceedings are designed merely to

bring the parties to an agreement” and that ‘‘[i]n such mediation

he Board performs no adjudicative function... .”

ttenecrsscsremnnconennsnseesnsssaee

nnn

b. This judicial understanding of the role of the

Board is paralleled by the Board’s own view of its

authority. So far as we have been able to discover,

the Board has never exercised the statutory function

that the lower court in the case at bar says it has. We

have examined each of the thirty-five annual reports

of the Board, as well as its four published summaries

of its work. While each of these documents describes

the functions of the Board in detail, none of them so

much as hints that the Board believes it has the au-

thority or the duty respecting Section 2 First questions

attributed to it by the court below. Rather, the Board

consistently speaks of its role as confined to informal

conciliation and mediation. Thus, for example, in its

Sixteenth Annual Report (1950), the Board, in de-

scribing the structure of the Act and the character of

the Board’s responsibilities, said:

‘‘The National Mediation Board has no enforce-

ment powers but acts purely as a mediatory agency,

which means that its representative sits as a

friendly officer of the United States Government,

armed only with the weapon of friendly counsel

and practical assistance in an effort to make col-

lective bargaining successful’’ (p. 17).”

The report on the Mediation Board by the Attorney

General’s Committee on Administrative Procedure

agrees. As the Board observed in its Seventh Annual

Report (1941) (p. 4), ‘‘the Committee remarked that:

‘¢ ¢ Although the mediation activities of the Board

are of very considerable importance in assuring

2 See, also, ¢.g., Nineteenth Annual Report (1953), pp. 22-23;

Twenty-fourth Annual Report (1958), pp. 5-6; Twenty-fifth An-

nual Report (1959), pp. 4-5; Twenty-sizth Annual Report (1960),

p. 5; Twenty-seventh Annual Report (1961), p. 5.

uninterrupted transportation by rail and air, they

do not lend themselves to procedural study. By

definition they are of an informal nature, involving

negotiation rather than decision.’ ”’

Moreover, in a speech given just last year, a former

Chairman of the Board indicated quite clearly that the

Board did not pass upon whether the parties were in

compliance with Section 2 First and pointed out some

of the problems the Board would encounter if it at-

tempted to do so.” Finally, that the Board has not

attempted to decide Section 2 First questions—and also

that it believes that 2 First is judicially enforceable—

is confirmed by a brief amicus curiae for the United

States in Chicago, R.I. & P.R.R. v. Switchmen’s Umon,

187 F. Supp. 581 (W.D. N.Y. 1960), reversed, 292 F.2d

61 (2d Cir. 1961). There the United States not only

argued that Section 2 First was justiciable, but also

indicated that the position of the Board was that the

practice of the union in that case in submitting negoti-

ated contracts to a referendum of its membership was

21In that speech, Mr. Howard Gamser, a former member of the

Board and Chairman in 1965 and 1968, said that ‘‘[s]ome air-

line spokesmen’’ had maintained that the Board should not begin

mediation until it concluded that the parties had complied with

their Section 2 First duties, and that the Board also should not

release a case from mediation ‘‘if either party has not, in the opin-

ion of the Board, ‘made every effort to resolve the dispute... .’”’

That is, those ‘‘spokesmen’’ took the position adopted by the lower

court in the case at bar. Mr. Gamser characterized this as advo-

cating a ‘‘greater exercise of discretion than heretofore employed”’

by the Board, questioned whether there is ‘‘statutory language to

allow the Board to make such a determination,’’ and discussed

the procedural steps—such as investigations and hearings—that

might have to be employed. ‘‘The Role of Mediation in Airline

Labor Disputes,’’ ‘‘Symposium on Air Transport Labor Relations,”’

35 J. Air L. & C. 313, 505, 510 (1969).

contrary to the requirements of Section 2 First.” Had

the Board followed the course staked out for it by the

opinion of the lower court in the case at bar, it would

have decided the Section 2 First question against the

union and would not have terminated mediation—

thereby foreclosing the union from striking—until the

union abandoned the referendum practice.

c. The view of the Board and of the courts outside

the Seventh Circuit is supported by both the relevant

statutory language and the legislative history of the

Act. Nothing in the statutory language gives the

Board power to adjudicate whether parties to a

‘‘major’’ dispute are making every reasonable effort

to resolve the dispute. The only conceivably relevant

provision, Section 5 First (45 U.S.C. § 155 First, supra

p. 3), simply directs the Board to exercise its best ef-

forts to bring about a settlement. It gives the Board no

authority at all to decide whether the parties have exer-

cised their best efforts or to impose any sanction if it

decides they have not. The Board is required to termi-

nate its services when it determines that its efforts have

failed to produce an agreement, not when it determines

that the parties’ efforts have (or have not) complied

with the Act.

The legislative history of the statute shows that the

omission from Section 5 of any grant of adjudicatory

authority was deliberate. The Act was drafted jointly

by representatives of industry and the unions.” Their

22 See Suggestion of the Interest of the United States and a Mo-

tion for Leave to File a Brief of Amicus Curiae, printed in Ap-

pendix to Brief for Plaintiffs-Appellees, pp. 7-11; Brief of the

United States Amicus Curiae in the District Court pp. 2-10.

23 See Texas & N.O. R.R. v. Brotherhood of Ry. Clerks, 281 U.S.

548, 563-564 (1930).

principal spokesmen in the hearings were Messrs.

Donald R. Richberg for the unions and A. P. Thom

for the railroads. We set forth in the margin the many

statements by these two witnesses which establish be-

yond question that, so far as the architects of the bill

were concerned, the role of the Board in the mediation

prescribed by Sections 5 and 6 of the Act would be re-

stricted to informal and confidential eonciliation, and

that this role would be undercut if the Board were to

“make public reports . . . condemning one party or

the other,” or if it were to ‘“‘render any decision” or

“to make findings’’ or to be a “‘sort of super-labor

board.”” As Mr. Thom summarized the matter, ‘“The

board of mediation has no right to make findings;

they have only the function of conciliation and per-

suasion. .. .’’™*

™ Messrs. Richberg and Thom testified as follows in ‘Railroad

Labor Disputes,’’ Hearings before the House Committee on Inter-

state and Foreign Commerce on H.R. 7180, 69th Cong., 1st

Sess. (1926), and in ‘‘Railway Labor Act,’’ Hearings before

the Senate Committee on Interstate Commerce on 8. 2306,

69th Cong., 1st Sess. (1926) :

**, .. The board of mediation, to preserve its ability to medi-

ate year after year between the parties, must not be given

any duties to make public reports condemning one party or

the other, even though the board may think one party is

wrong. That is the fundamental cause of failure of the

Labor Board. ... The board of mediators should never

make any reports to the public condemning one party or

the other. Their duty is that of remaining persuaders ... .”’

House Hearings, at 18 (Richberg).

“Well, in all respects that I can see, they [mediation pro-

ceedings] should be regarded as private hearings. They are

not private in this sense, that of course if mediation is cailed

for in a situation that is of public interest, the public will

know that the mediators are operating in the situation, but

there will not be public hearings in the sense that the media-

tors will not sit behind the table and call witnesses and have

A recent option by the Court of Appeals for the

District of Columbia Circuit confirms our view that

Congress considered that granting adjudicatory power

to the Board would compromise its mediatory role. In

International Ass’n of Machinists v. NMB, — F.2d

—, 62 CCH Lab. Cas. 110,621 (D.C. Cir. 1970), the

Court, drawing upon the legislative history of the Act,

had this to say:

‘¢. . . It is because the mediator acts as a cat-

alyst for settlement rather than a judge that the

the general public present to hear the presentation. In

other words, they are trying to settle a controversy, not to

make it worse.’’ House Hearings, at 89 (Richberg).

‘*. . . The board of mediation attempts to bring them [the

parties] to an agreement, first, as to the dispute itself, and if

that fails, then an agreement to arbitrate. But the board of

mediation does not render any decision.’’ House Hearings, at

131 (Thom).

‘‘The board of mediation has no right to make findings;

they have only the function of conciliation and persuasion. ...”’

House Hearings, at 136 (Thom).

‘*... It is to be assumed . . . that the board of mediation will

act as the old board of mediation used to act, by interviewing

the parties, by attempting through conciliatory methods and

persuasion to induce them to agree, and failing that effort, to

bring about arbitration. But that board is not intended to

make any statement to the public if that is what you mean.’’

Senate Hearings, at 11 (Thom). —~

**Now the board of mediation is intended to continue to be

regarded by both parties as an impartial body whose serv-

ices will be valuable, and bring them together. ... They must

continue with their powers of conciliation unimpaired, and

they could not do that if they are to render judgment. So

that there never was a purpose to make the board of con-

ciliation a fact-finding commission or to have a report on

the merits.’’ Senate Hearings, at 18 (Thom).

‘*. .. Now you are going to destroy that [mediation] func-

tion if you set that board up in this law in such a manner

that you appear to be creating another Labor Board, a sort

Supreme Court was minded to say—The concept

of mediation is the antithesis of justiciablity.’

General Committee v. M.K.T. R. Co., . . . 320

U.S. 323, 337 (1943).

* * * te ~ *

‘“‘The Railway Labor Act of 1926 was drafted

by a committee representing railroads and railroad

unions. ... The committee hearings reveal the

essential ingredients and underlying philosophy

of the proposal expressed by the principal spokes-

man [sic] for both labor and management. The

mediation board is to operate in private confer-

ences, not public sessions. The board will confine

itself to the function of conciliation and persua-

sion, exerting its good offices to bring the parties to-

gether. It will not make findings, or even state-

ments to the public, for these would undercut its

aan

of super-labor board that will come in and solemnly sit behind

a table and summon witnesses and take evidence and consider

the matter in private conference, and then issue an unenforce-

able opinion. Now that is not going to help the situation

very much, as has been demonstrated by the Labor Board.

When you require men to testify in public you know the

care with which they must weigh their words, you know how

difficult it is quickly to arrive at all the underlying factors

in the controversy. But when men are brought into private

conference, when a dispute is investigated informally and the

men on both sides can be talked to freely and frankly, that

is the reason why Government mediation has been successful

in the past, and that is the reason why Government media-

tion should be successful under this bill and never call for

the creation of an emergency board.’’ Senate Hearings, at

83-84 (Richberg).

‘*. . . This mediation board does not decide anything ex-

cept in a single case. It is only intended to exert its good

offices to bring the parties together .... The mediation board

does not [decide anything], except in the single case mentioned

[in what is now 45 U.S.C. § 155 Second], where they give an

interpretation of an existing agreement after hearing. . . .’’

Senate Hearings, at 157 (Thom).

status as a body recognized by both sides as impar-

tial, and would impair its ability to constitute a sig-

nificant force for conciliation, not only in the par-

ticular case, but in general and in the future.

Stressed and restressed was the need to retain the

board in a position where it could operate by con-

ciliation and a and the view that this

position would be undercut if it gave statements

or opinions, for the party standing condemned by

the thrust of such a statement would or at least

might conclude that the board was being unfair”’

(footnote omitted). Id., at pp. 18,042-43.

7. The decision below will have disruptive conse-

quences for both the Board and the parties to collec-

tive bargaining under the Railway Labor Act. Where

one party believes that the other is not complying with

Section 2 First, what is it to do? The question whether

the party can secure a judicial decision respecting the

issue depends on whether suit is brought in the Seventh

Circuit or, say, the District of Columbia Circuit where

such claims have been adjudicated several times in the

last few years (see supra pp. 11-14). Accordingly,

the question whether to seek adjudication by the Board

will turn in large measure upon the available judicial

forum in terms of venue, personal jurisdiction, and a

guess as to whether the ‘‘race to the courthouse’’ can be

won. And if the party decides to invoke what the

court below considers to be the Board’s jurisdiction,

what is the Board to do? If it follows its past practice,

it may be subject to mandamus in the Seventh Circuit

but nowhere else. If it abandons that practice and

assumes the role of judge, the fear of the Congress that

its mediatory role will be undercut may be realized.

These jurisdictional problems will unavoidably disturb

labor relations in the railroad and airline industries

until they are settled by this Court.

CONCLUSION

For the reasons set forth above, the petition for

certiorari should be granted.

Respectfully submitted,

Wim H. Dempsey, JR.

Davin Booto BEeErs

734 Fifteenth Street, N.W.

Washington, D. C. 20005

RIcHARD M. FREEMAN

JAMES P. DALEY

Rosert SCHMIEGE

400 West Madison Street

Chicago, Illinois 60606

Attorneys for Chicago and

North Western Railway

Company

Of Counsel:

SHEA AND GARDNER

734 Fifteenth Street, N.W.

Washington, D. C. 20005

Sats te Gay

iO,

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

SepremBer Term, 1969—Janvuary Session, 1970

ppeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 18109

Cuicaco anp NortH Western Rartway Company,

Plaintiff-Appellant,

NITED TRANSPORTATION Union, Defendant-Appellant.

No. 18145

Cuicaco anp NortH Western Ratuway Company,

Plaintiff-Appellee,

Jnirep Transportation Union, Defendant-Appellee.

Marcon 6, 1970

efore Swyaert, Chief Judge, Famcuitp and Kerner,

uit Judges.

ERNER, Circuit Judge. This opinion contains our de-

m in two appeals. No. 18145 is the appeal of the

vago and North Western Railway Company (Railway)

n the district court’s finding that §2, First,’ of the

5 U.S.C. § 152, First, provides:

It shall be the duty of all carriers, their officers, agents, and

employees to exert every reasonable effort (0 make and main-

tain agreements concerning rates of pay, rules, and working

conditions, and to settle all disputes, whether arising out of

the application of such agreements or otherwise, in order to

avoid any interruption to commerce or to the operation of any

carrier growing out of any dispute between the carrier and

the employees thereof.

Railway Labor Act (45 U.S.C. § 152, First) requiring the

parties to exert ‘‘every reasonable effort’’ to settle their

disputes was not a requirement which anticipated judicial

enforcement. Consequently, since the district court found

that it did not have jurisdiction to decide whether § 2, First,

was complied with, and all other procedures of the Railway

Labor Act having been exhausted, the district court held

that the Norris-LaGuardia Act? prohibited the enjoining

of 2 threatened strike by the United Transportation

Union (Union). The district court, however, granted an

injunction against the threatened Union strike pending an

appeal of its decision of the justiciability of § 2, First, and

the correctness of the court’s order granting the injunction

pending appeal is the subject of the second appeal, No.

18109, in which the Union is the appellant. We affirm the

decision of the district court in both appeals.

The factual basis of the two appeals arose out of a dis-

pute between the United Transportation Union and the

Chicago North Western Railway Company over the ques-

tion of how many brakemen should be employed on the

Railway’s trains. Such a dispute is commonly known as a

crew consist controversy. The dispute was initiated in

July of 1965 by service by the Union upon the Railway

of notices pursuant to §6 of the Railway Labor Act (Act)

2 Section 4 of the Norris-LaGuardia Act (29 U.S.C. § 104) pro-

vides in relevant part:

No court of the United States shall have jurisdiction to issue

any restraining order or temporary or permanent injunction

in any case involving or growing out of any labor dispute to

prohibit any person or persons participating or interested in

such dispute (as these terms are herein defined) from doing,

whether singly or in concert, any of the following acts:

(a) Ceasing or refusing to perform any work or to remain

in any relation of employment;

(45 U.S.C. § 156)* requesting a change in agreements to

require that not less than two brakemen be employed on

every freight and yard crew. In response, the Railway

in December of 1965 served notices requesting an agree-

ment that the existing rules respecting minimum crews be

rescinded and the matter of crew size be committed to the

judgment of management.‘

® Section 6 (45 U.S.C. § 156) provides:

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 be-

tween 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 intended change has been given, or conferences are

being held with reference thereto, or the services of the Media-

tion Board have been requested by either party, or said Board

has proffered its services, rates of pay, rules, or working con-

ditions shall not be altered by the carrier until the controversy

has been finally acted upon, as required by section 155 of this

title, by the Mediation Board, unless a period of ten days has

elapsed after termination of conferences without request for

or proffer of the services of the Mediation Board.

* While the historical background of the litigation involved in

crew consist controversies is not directly relevant, a brief discus-

sion of the more recent developments in this area may be helpful

for a more meaningful grasp of the problems.

The dispute over the number of brakemen to be employed began

to be discussed in 1959 when most of the nation’s railroads served

notices upon various unions under § 6 of the Act proposing rules

that would permit, in the discretion of management, the elimina-

tion of firemen and reduction in the number of brakemen. The

unions countered in 1960 by serving uniform notices proposing a

national rule requiring a minimum of two brakemen on every crew.

The issues were joined and negotiated on an industry-wide basis

and were not resolved until in the face of a threatened nationwide

By November of 1969, the parties had held conferences

pursuant to § 6 (45 U.S.C. § 156) ;° the National Mediation

Board had mediated the dispute after invocation of media-

tion pursuant to §5 (45 U.S.C. § 155);° the Board, pur-

strike the Congress enacted a compulsory arbitration statute. (77

Stat. 132).

Under the arbitration prescribed by the Congress in 1963, Arbi-

tration Board No. 282 established a national procedure for re-

solving the ‘‘crew consist’’ issue over the number of brakemen

on train crews. The parties were directed to conduct local nego-

tiations on each carrier, and, in the event of failure of agreement,

to conduct local arbitration, all pursuant to national guidelines

respecting questions of work burden and safety.

The arbitration award expired in January of 1966. The United

Transportation Union served notices upon more than eighty rail-

roads pursuant to § 6, proposing restoration of the crew of one

conductor and two brakemen. The railroads responded with a

request for an agreement permitting crew reductions beyond those

authorized under the award of Arbitration Board No. 282.

5 See footnote 3, supra.

® Section 5 First and Second (45 U.S.C. § 155 First and Second)

provide :

First. The parties, or either party, to a dispute between an

employee or group of employees and a carrier may invoke the

services of the Mediation Board in any of the following cases:

(a) A dispute concerning changes in rates of pay, rules,

or working conditions not adjusted by the parties in con-

ference.

(b) Any other dispute not referable to the National Rail-

road Adjustment Board and not adjusted in conference be-

tween the parties or where conferences are refused.

The Mediation Board may proffer its services in case any

labor emergency is found by it to exist at any time.

In either event the said Board shall promptly put itself in

communication with the parties to 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

(

ae —

area)

suant to § 5, had concluded that its efforts had been unsuc-

cessful and had proffered arbitration; the Railway had

accepted that proffer but the Union declined; the Board

thereupon, on October 16, 1969, had terminated its services

pursuant to §5. The President had not® appointed an

Emergency Board under $10 (45 U.S.C. § 160),’ and the

title) to induce the parties to submit their controversy to

arbitration, in accordance with the provisions of this chapter.

If arbitration at the request of the Board shall 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 es-

tablished practices in effect prior to the time the dispute arose.

Second. In any case in which a controversy arises over the

meaning or the application of any agreement reached through

mediation under the provisions of this chapter, either party

to the said agreement, or both, may apply to the Mediation

Board for an interpretation of the meaning or application of

such agreement. The said Board shall upon receipt of such

request notify the parties to the controversy, and after a hear-

ing of both sides give its interpretation within thirty days.

745 U.S.C. § 160 provides:

If a dispute between a carrier and its employees be not

adjusted under the foregoing provisions of this chapter and

should, in the judgment of the Mediation Board, threaten sub-

stantially to interrupt interstate commerce to a degree such

as to deprive any section of the country of essential transpor-

tation service, the Mediation Board shall notify the President,

who may thereupon, in his discretion, create a board to in-

vestigate and report respecting such dispute. Such board

shall be composed of such number of persons as to the Presi-

dent may seem desirable: Provided, however, That no mem-

ber appointed shall be pecuniarily or otherwise interested in

any organization of employees or any carrier. The compen-

sation of the members of any such board shall be fixed by the

President. Such board shall be created separately in each

instance and it shall investigate promptly the facts as to the

(ia

$5 thirty day ‘cooling off’’ period respecting maintenance

of the status quo had expired.

At the end of November, the Railway instituted a law.

suit in the digtrict court asking the court to declare that

the procedures of the Railway Labor Act had not been

exhausted and to enjoin the Union from exercising self.

help in the form of strike. The Railway alleged that the

Union had not discharged all its obligations under the

Railway Labor Act in that it had not complied with §2,

First, which imposes upon the parties the ‘duty to exert

every reasonable effort’? to settle their disputes, At the

same time the Railway filed its complaint it moved for a

temporary restraining order which the court granted,

The Railway then presented evidence to show that the

Union had violated § 2, First, by not bargaining in good

faith, At the conclusion of the Railway's case, the court

granted defendant Union’s motion to dismiss the complaint

and dissolved the temporary restraining order on the basis

that:

$2, First, . .. is a matter for administrative deter-

mination and has been determined by the National

Mediation Board under the provisions of Sections

5 and 6 of the Railway Labor Act, 45 U.S.C. 155,

156, is not justiciable and this Court does not have

dispute and make a report thereon to the President within

thirty days from the date of its creation.

There is authorized to be appropriated such sums as may

be necessary for the expenses of such board, including the

compensation and the necessary traveling expenses and ex.

penses actually incurred for subsistence, of the members of

the board. All expenditures of the board shall be allowei

and paid on the presentation of itemized vouchers therefor

approved by the chairman.

After the creation of such board and for thirty days after

such board has made its report to the President, no change.

except by agreement, shall be made by the parties to the con-

troversy in the conditions out of which the dispute arose.

jurisdiction to consider or adjudicate disputes with

respect to compliance with such subsection, partion.

larly after the National Mediation Board has relin-

quished its medintory jurisdiction of a dispute ax in

this care,

The district court, however, recognizing that there was

case law contrary to its decision, that a strike would result

in a mooting of the appeal, and that ‘such a strike would

irreparably injure the plaintiff and the publie,’? granted

plaintiff Railway’s motion for an injunction pending

appeal.

Three days after the district court's decision, the Union

filed an emergency motion in this court to vacate the in-

junction pending appeal, This court issued an order direet-

ing that the Union's motion to vacate the injunction pending

appeal be taken with the Railway's appeal from the district

court’s denial of an injunction below. The order also

directed that the appeals be expedited. (See Chicago and

North Western Railway Company v. United Transportation

Union, No, 18109 unpublished order, 7th Cir, Dec. 19, 1969.)

By ordering that the Union’s motion to vacate the in-

junction pending appeal be taken with the expedited appeal

from the district court’s denial of a preliminary injunction,

we in effect upheld the granting of the injunction pending

appeal. Our order of December 19, 1969, in that respect is

inconsistent with this court’s decision in Elgin J. d& E. Ry.

Co. v. Brotherhood of Railroad Trainmen, 302 F. 2d 545

(7th Cir. 1962), which held that if the Norris-LaGuardia

Act prohibits the granting of an injunction below it also

prohibits the granting of an injunction pending appeal.

We are no longer of the opinion that the Elgin case is the

correct interpretation of the Norris-LaGuardia Act as it

applies to injunctions pending appeal and overrule our

decision in Elgin. While it may be argued that our decision

upholding the district court’s denial of a preliminary in-

junction because of the non-justiciability of § 2, First, (see

pp. 10-16 infra) moots the question of whether the district

court erred in granting an injunction pending appeal, the

necessity of an explanation of our inconsistent action in

our December 19, 1969, order maintaining the injunction

pending an expedited appeal and the realization that the

continued adherence to an incorrect opinion could cause

irreparable harm fur many years before the case comes

before this court in a technically correct posture, persuades

us that the question is not moot but should at this time

be decided.

We hold that the Norris-LaGuardia Act does not pro-

hibit the district court from granting an injunction pending

appeal even though the court determines that Norris-La-

Guardia prohibits an injunction below. The power of a

district court to grant an injunction to maintain the status

quo pending appeal was first codified by the ‘‘All Writs

Act’’ contained in the Judiciary Act of 1789, 28 U.S.C.

§ 1651. In Scripps-Howard Radio, Inc. v. F.C.C., 316 US.

4 (1942), the Supreme Court in upholding this power

stated:

It has always been held, therefore, that as a part of

its traditional equipment for the administration of

justice, a federal court can stay enforcement of a

judgment pending the outcome of an appeal.

Id. at 9-10.

See also Hovey v. McDonald, 109 U.S. 161 (1883). Absent

the prohibitions of the Norris-LaGuardia Act, the law is

established that even if a dist:ict court determines it lacks

jurisdiction to grant an injunction pending appeal, it has

the power to preserve appellate review of its determina-

tion that it lacked jurisdiction. See United States v. Shipp,

203 U.S. 563, 573 (1906) ; see also Peltway v. American Cast

Iron Pipe Co., 411 F. 2d 998, 1002-3 (5th Cir. 1969) ; East-

ern Greyhound Lines v. Fusco, 310 F. 2d 632, 634 (6th Cir.

1962).

wo ee

In the instant case as in this court’s earlier opinion in

the Elgin case, the injunction pending appeal was issued

pursuant to Rule 62(c) of the Federal Rules of Civil Pro-

cedure.® The Rule itself is not a jurisdictional grant but

merely a codification of a district court’s power to main-

tain the status quo pending appeal. In Elgin, the court

relied on Rule 82 of the Federal Rules of Civil Procedure ®

which provides that the promulgation of the Federal Rules

does not expand the district court’s jurisdiction, and Rule

65(e)'® which provides that the Federal Rules ‘‘do not

modify any statute of the United States relating to tem-

porary restraining orders and preliminary injunctions in

actions affecting employer and employee.’’ The Elgin

court construed Rules 82 and 65(e) as denying the power

of the district court to grant an injunction pending appeal

pursuant to 62(c) in cases where the Norris-LaGuardia Act

® Rule 62(¢) of the Federal Rules of Civil Procedure provides

in relevant part: i

When an appeal is taken from an interlocutory or final judg-

ment granting, dissolving, or denying an injunction, the court

in its discretion may suspend, modify, restore or grant an

injunction during the pendency of the appeal upon such

terms as to bond or otherwise as it considers proper for the

security of the rights of the adverse party.

® Rule 82 provides in relevant part:

These rules shall not be construed to extend or limit the juris-

diction of the United States district courts or the venue of

acions therein.

Rule 65(e) provides:

These rules do not modify any statute of the United States

relating to temporary restraining orders and preliminary in-

junctions in actions affecting employer and employee; or the

provisions of Title 28, U.S.C. § 2361, relating to preliminary

injunctions in actions of interpleader or in the nature of inter-

pleader ; or Title 28, U.S.C. § 2284, relating to actions required

by Act of Congress to be heard and determined by a district

court of three judges.

10a

prohibited the granting of an injunction in the district

court. The Elgin court’s application of the three Federal

Rules of Civil Procedure is correct only if we begin with

the premise that Congress by enacting the Norris-La-

Guardia Act intended to limit in labor disputes the inherent

power of district courts under the ‘‘All Writs Act” to

grant injunctions pending appeal. If the Congress did not

intend such a limitation on the district court’s power, Rule

62(c) can be applied without any conflict with the dictates

of Rule 82 and Rule 65(e).

There is nothing in the text of the Norris-LaGuardia

Act or in the legislative history surrounding the drafting

and enactment of the Act indicating a Congressional intent

to remove from the district courts their long-recognized

power to grant injunctions pending appeal. To remove

from the district courts the power to grant injunctions

pending appeal and thus the power to maintain the status

quo in all cases where the district court has decided that

the Norris-LaGuardia Act prohibited an injunction is to

in effect make the district court the court of last resort

on these matters regardless of the difficulty or novelty of

the issues involved. In the absence of any specific Con-

gressional intention to remove the power of district courts

to grant injunctions pending appeal, we decline to read

into the Act such a serious limitation into the judicial re-

view process.

The United States Supreme Court in United States v.

United Mine Workers, 330 U.S. 258 (1947) supports our

decision. The question before the district court in United

Mine Workers involved the applicability of the Norris-

LaGuardia Act so as to bar the United States from secur-

ing an injunction against a strike by United Mine Workers.

The district court granted a temporary restraining order

which the Union did not obey and the district court found

the Union officers to be in contempt. The Supreme Court

affirmed the judgment of contempt, finding the Norris-

lla

LaGuardia Act inapplicable. The Court went on to hold,

however, that even if Norris-LaGuardia applied, the dis-

trict court still had the power to preserve the status quo

while it decided the underlying jurisdictional issue posed

by Norris-LaGuardia:

In these circumstances, the District Court unquestion-

ably had the power to issue a restraining order for the

purposes of preserving existing conditions pending a

decision upon its own jurisdiction. 330 U.S. at 290.

While it is true that United Mine Workers involved a

temporary restraining order and not as the case at bar

an injunction pending appeal, both cases deal with difficult

questions of jurisdiction. We read the Supreme Court’s

holding in United Mine Workers, that despite the prohibi-

tions of Norris-LaGuardia the district court has inherent

injunctive power to grant a temporary restraining order

to preserve the status quo while deciding difficult or novel

questions determining its own jurisdiction, as support

for the proposition that the district court, despite Norris-

LaGuardia, also has the inherent power to grant an in-

junction pending a review of its determination of these

jurisdictional issues.

The reasoning of Justice Frankfurter in his concurring

opinion in United Mine Workers would seem to accept our

analysis and its extension to this case. Although Justice

Frankfurter was of the opinion that the Norris-LaGuardia

Act prohibited permanent injunctive relief in the factual

situation, he concurred in the majority’s result on the basis

that the Norris-LaGuardia Act did not bar interim injunc-

tive relief necessary to preserve the status quo while the

court decided the jurisdictional question and while that

district court jurisdictional determination was being re-

viewed by the appellate court:

To suggest that the right to determine so complicated

and novel an issue could not be brought within the

12a

cognizance of the district court, and eventually of this

court, is to deny the place of the judiciary in our

scheme of government. 330 U.S. at 310 [emphasis

supplied].

Although this issue has not been discussed in depth by

other courts of appeals, the circuits which have been faced

with the problem of district court injunctions pending ap-

peal in a labor dispute have acted consistently with our

decision in this appeal. See Missouri-Kansas-Texas RR.

Co. v. Brotherhood of Railroad Trainmen, 342 F. 2d 298

(5th Cir. 1965) ; Texas and N.O. RR. Co. v. Brotherhood of

Railroad Trainmen, 307 F.. 2d 151, 153, 163 (5th Cir. 1962);

Pan-American World Airways v. United Brotherhood of

Carpenters, 324 F. 2d 217 (9th Cir. 1963) ; the district court,

though denying a preliminary injunction, granted a 10-day

stay to preserve the status quo pending appeal to the Court

of Appeals); Norfolk ¢ P.B.L. RR. Co. v. Brotherhood of

Railroad Trainmen, 248 F. 2d 34 (4th Cir. 1957; the dis-

trict court ordered the temporary injunction dissolved,

though by supplemental order, the execution of the court’s

judgment was suspended pending appeal by the carrier).

While we are cognizant of the purposes of the Norris-

LaGuardia Act to remove the injunctive power of the

judiciary from the field of labor disputes, we are also mind-

ful of the necessity of judicial review to our legal system.

In the absence of a specific Congressional directive, we

strike the balance in favor of maintaining the status quo

to allow time for a meaningful judicial review." '*

11 We also reject the appellant Union’s contention that the dis-

trict court abused its discretion in granting the injunction pending

appeal. We find no such abuse. Nor do we find the form of the

injunction issued pending appeal improper.

118 Since this opinion overrules Elgin J. & E. Ry. Co. v. Brother-

hood of Railroad Trainmen, 302 F. 2d 545 (7th Cir. 1962), we

have circulated it to the full active court. No judge has requested

a hearing en banc.

13a

We now come to the Railroad’s appeal in No. 18145

from the decision of the court below that § 2, First, of the

Railway Labor Act (45 U.S.C. §152) is non-justiciable.

We are of the opinion that § 2, First, does not contemplate

judicial enforcement of its ‘‘reasonable effort’’ requirement

and, therefore, affirm the decision of the district court

judge.

We construe § 2, First, as a statement of the purpose

and policy of the subsequent provisiens of the Act and

not as a specific requirement anticipating judicisl enforce-

ment.

Nor does § 2 Second make justiciable what otherwise

is not... . But § 2, Second like § 2, First merely states

the policy which those other provisions buttress with

more particularized commands. General Committee of

Adjustment of the Brotherhood of Locomotive Engi-

neers v. Missouri-Kansas-Texas Railroad Company, °

320 U.S. 323, 334 (1943).

To imply judicial enforcement to § 2, First, would insert

a judicial inquiry into every step of the Railway Labor

procedures to determine in each case if reasonable effort

is being exerted; this is a role which we believe Congress

did not intend the courts play in the settlement of Railway

disputes.

In General Committee v. M.-K.-T. RR. Co., supra, the

Supreme Court in deciding certain questions of representa-

tion under the Railway Labor Act were not justiciable

stated :

In short, Congress by this legislation has freely em-

ployed the traditional instruments of mediation, con-

ciliation and arbitration. Those instruments, in addi-

tion to the available economic weapons, remain un-

changed in large areas of this raliway labor field. On

only certain phases of this controversial subject has

Congress utilized administrative or judicial machinery

and involved the compulsions of the law. Congress was

dealing with a subject highly charged with emotion.

Its approach has not only been small, it has been

piecemeal. Congress has been highly selective in its

use of legal machinery. The delicacy of these prob-

lems has made it hesitant to go too fast or too

far. The inference is strong that Congress intended

to go no further in its use of the processes of

adjudication and litigation than the express provi-

sions of the Act indicate.

Id. at 332-33. [emphasis supplied].

Later in its opinion the Court reiterated:

{T]he conclusion is irresistible that Congress carved

out of the field of conciliation, mediation and arbitra-

tion only the select list of problems which it was ready

to place in the adjudicatory channel. All else is left

to those voluntary processes whose use Congress had

long encouraged to protect these arteries of interstate

commerce from industrial strife. The concept of medi-

ation is the antithesis of justiciability. Jd. at 337.

We believe that § 2, First, was intended to play an in-

tegral part in facilitating the other more specific procedures

of the Railway Act: ‘‘The heart of the Railway Labor Act

is the duty, imposed by §2 First upon management and

labor. ...’’ Brotherhood of Railroad Trainmen v. Jack-

sonville Terminal Co., 394 U.S. 369, 377 (1969). However,

we find that the role of determining whether ‘‘ reasonable

effort’’ is being practiced by the parties is not a judicial

one but a role which should be left to the National Media-

tion Board.

Under the procedures of the Act, the National Mediation

Board plays the dominant role in major disputes within the

framework of the Act. Section 6 of the Act provides:

[I]n every case ... where the services of the Media-

tion Board have been requested by either party or

l5a

said Board has proffered its services, rates of pay,

rules or working conditions shall not be altered by

the carrier until the controversy has been finally acted

upon as required by §5 of this Act, by the Mediation

Board.

Section 5 provides in pertinent part that after the serv-

ices of the Board are invoked or proffered:

{SJaid Board shall promptly put itself in communica-

tion with the parties to such controversy, and shall use

its best efforts, by mediation to bring them to agree-

ment. If such efforts to bring about an amicable settle-

ment through mediation shall be unsuccessful, the said

Board shall at once endeavor as its final required ac-

tion to induce the parties to submit their controversy

to arbitration, in accordance with the provisions of

this Act.

If arbitration at the request by one or both parties

shall be refused, the Board shall at once notify both

parties in writing that its mediatory efforts have failed

and for thirty days thereafter, unless in the interven-

ing period the parties agree to arbitration, or an

emergency board shall be created under §10 of this

Act, no change shall be made in the rates of pay, rules

or working conditions or established practices in effect

prior to the time the dispute arose.

Thus it can be seen that the Mediation Board plays a

pivotal role in the workings of the Act. It maintains the

status quo, attempts to bring about a voluntary settlement

between the parties, tries to induce the parties to submit

to arbitration after a determination that voluntary settle-

ment cannot be reached, and then in effect, if § 10 and the

Emergency Board are not appropriate, the Mediation

Board after a thirty-day period releases its hold on the

status quo.

16a

We believe this integral role of the Mediation Board

requires it and not the judiciary to enforce compliance

with § 2, First. The Mediation Board is certainly better

qualified to determine if the parties are exercising reason-

able effort in settling their dispute. If the Mediation Board

is of the opinion that one of the parties is not negotiating

in good faith, it may simply retain jurisdiction over the

mediation process until it believes good faith is being

exercised. The Act provides that while the Board retains

jurisdiction the parties must maintain the status quo,

The Board can refuse to certify that ‘‘its mediatory

efforts have failed’’ and thus prevent the exercise of

self-help until it is satisfied that its mediatory efforts

had a chance to fail, i.e., that the parties were bargaining

in good faith. Mediation cannot fail if it never had a

chance to succeed.”

Instead of involving the federal courts in the determina-

tion of whether a reasonable effort had been exercised, after

all the procedures of the Act have been completed, it seems

much more efficient and sensible to allow the Mediation

Board while the Act’s procedures are being carried out to

determine if a reasonable effort is being exercised by the

parties. To allow the Mediation Board rather than the

courts to perform this function removes the courts from

having to issue injunctions in labor disputes (because § 2,

First, had not been complied with), thus avoiding conflict

with the dictates and policy of the Norris-LaGuardia Act.

In addition, a judicial enforcement of § 2, First, would also

require the federal courts to remand the dispute back to

‘a certain stage in the procedures of the Act where one

party was not bargaining in good faith. We find no ma-

12 Of course, if one party is not negotiating in good faith as a

dilatory tactic to prevent the other party from eventually exer-

cising self-help, the Board can decide to release jurisdiction of

the dispute and allow the procedures of the Act to be exhausted

in order to allow for self-help.

17a

chinery nor guidelines in the Act which would aid the

court in making this difficult determination.

We are mindful that the role of the Mediation Board is

pasically a non-adjudicatory one, see e.g., Detroit & Toledo

Shore Line Railroad Company v. United Transportation

Union, .... U.S. .... (Dee. 9, 1969, Slip Opinion, page 17).

However, we recognize that for the procedures of the Act

to be effective, the Mediation Board must accept in certain

instances a limited ‘‘quasi adjudicatory’’ posture. Cer-

tainly the authority conferred on the Board pursuant to

¢2, Ninth'’® (45 U.S.C. § 152, Ninth), to determine the

1845 U.S.C. § 152, Ninth, provides:

Ninth. If any dispute shall arise among a carrier’s em-

ployees as to who are the representatives of such employees

designated and authorized in accordance with the require-

ments of this chapter, it shall be the duty of the Mediation

Board, upon request of either party to the dispute, to inves-

tigate such dispute and to certify to both parties, in writing,

within thirty days after the receipt of the invocation of its

services, the name or names of the individuals or organiza-

tions that have been designated and authorized to represent

the employees involved in the dispute, and certify the same

to the carrier. Upon receipt of such certification the carrier

shall treat with the representative so certified as the repre-

sentative of the craft or class for the purposes of this chapter.

In such an investigation, the Mediation Board shall be author-

ized to take a secret ballot of the employees involved, or to

utilize any other appropriate method of ascertaining the names

of their duly designated and authorized representatives in

such manner as shall insure the choice of representatives by

the employees without interference, influence, or coercion

exercised by the carrier. In the conduct of any election for

the purposes herein indicated the Board shall desiguate who

may participate in the election and establish the rules to

govern the election, or may appoint a committee of three

neutral persons who after hearing shall within ten days desig-

nate the employees who may participate in the election. The

Board shall have access to and have power to make copies of

the books and records of the carriers to obtain and utilize

such information as may be deemed necessary by it to carry

out the purposes and provisions of this paragraph.

18a

proper representatives of the employees can be considered

adjudicatory or quasi adjudicatory in nature. Similarly,

we interpret § 2, First, to confer on the Board pursuant to

its express mediatory power, the power, whether it may be

considered adjudicatory or quasi adjudicatory, to make

sure the parties are exercising every reasonable effort.

We do not feel this limited power under § 2, First, will

significantly impair the Board’s impartial job as a

mediator.

We find that the expertise, proximity to the negotiation

process and power to maintain the status quo of the Media-

tion Board make it singularly well suited to implement the

Congressional intent and purpose behind the inclusion of

§ 2, First. While we agree that the procedures of the Act

are purposely long and drawn out in order for the parties

to reach agreement and prevent invocation of self-help, we

are of the opinion that the tacking on of judicial review

after a completion of the Act’s procedures does nothing

but involve courts in intricate factual questions of intent

while unreasonably postponing the parties’ right to self-

help.

The Railway places great reliance that §2, First, is

justiciable upon the Supreme Court’s decision in Virginia

Ry. v. System Federation, 300 U.S. 515 (1937). In Virginia

Ry., the railroad had refused to engage in collective bar-

gaining with the Federation after the National Mediation

Board, acting under § 2, Ninth, of the Railway Act, de-

termined and certified the Federation to be the representa-

tive of the shop craft employees for collective bargaining

with the railroad. The Supreme Court upheld a district

court injunction which required the railroad to recognize

and bargain with the Federation despite the railroad’s

argument that § 2, Ninth, was not justiciable. While the

injunction also required the railroad to make every rea-

sonable effort to settle disputes with the Federation thus

~~ hae

19a

in fact invoking the dictates of § 2, First, the opinion did

not state nor imply that whether reasonable effort is in

fact complied with by either party was a question for the

courts to answer. The Supreme Court did not suggest

that the district court retain jurisdiction to determine if

the parties were negotiating in good faith, nor did it sug-

gest a further judicial proceeding if conferences between

the railway company and the Federation failed. Thus while

Virginia Ry. holds that §2, Ninth, contemplates judicial

enforcement of the requirement to bargain with the Board’s

accredited employee representative, it does not hold that

judicial enforcement is available to determine whether the

parties are in fact negotiating in good faith. As we read

Virginia Ry., it allows for judicial enforcement of the

specific dictates of §2, Ninth, and simply provides that

when the carrier and the employees’ representatives are

negotiating they should be guided by the other provisions

of the Railway Labor Act including § 2, First.

In addition, to Virginia Ry., the railway also relies on

a recent decision by the Fourth Circuit in Piedmont Avia-

tion, Inc. v. Air Line Pilots Ass’n Int’l, 416 F. 2d 633 (4th

Cir. 1969) (petition for cert. filed, 38 U.S. L.W. 3241, Jan.

6, 1970, No. 995), in which the court upheld a district court

injunction against a threatened strike. The court in a

holding opposite to our conclusions found:

Restraining the parties from self-help through strikes

or otherwise, until they have complied with the duty

to bargain in good faith vindicates the Congressional

purpose of providing machinery to prevent strikes

without creating an irreconcilable conflict with the

Norris-LaGuardia Act. Id. at 636.

and thus held § 2, First, to be justiciable. We cannot agree

with the Fourth Circuit decision. The machinery to pre-

vent strikes which was the Congressional purpose in enact-

20a

ing the Railway Labor Act is contained within the pro.

cedures of the Act and not outside it in the injunctive power

of the federal courts. We believe that the provisions of

the Act and the powers of the National Mediation Board

can enforce the duty to bargain in good faith without the

need of judicial interference.

A true Copy:

Teste:

eee eee eee eee eee ee ee ee eee eee eeeeeee

Clerk of the United States Court of

Appeals for the Seventh Circuit.

2la

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

Friday, March 6, 1970

Before: Hox. LutHer M. Swycert, Chief Judge, Hon.

Tomas E. Farrcuixp, Circuit Judge, Hon. Orro KEENER,

Circuit Judge.

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 18109, 18145

Cuicaco aNp Nort Western Rattway ComPany,

Plaintiff-Appellee, (Cross-Appellant),

Unitep Transportation Union, Defendant-A ppellant,

(Cross Appellee).

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

record from the United States District Court for the

Northern District of Illinois, Eastern Division, and was

argued by counsel.

On consideration whereof, it is ordered and adjudged

by this court that the decision of the said District Court

in this cause appealed from be, and the same is hereby,

AFFIRMED, in accordance with the opinion of this Court

filed this day.

It is further ordered and adjudged by this Court that

there be no recovery of costs between the parties to these

appeals.

22a

APPENDIX C

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Civil Action No. 69 C 2401

Cuicaco aND NortH WeEstTERN Raitway Company,

a corporation, Plaintiff,

Vv.

Unrrep Transportation Union, a voluntary, unincorporated

labor association, Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter came on to be heard on plaintiff’s verified

complaint as amended; defendant’s motion to vacate the

temporary restraining order; plaintiff’s motion for pre-

liminary injunction and defendant’s motion to dismiss;

the first and second defenses in defendant’s verified answer

and, the Court having heard the evidence, considered the

briefs of the parties and heard the arguments of counsel

with respect thereto, and being fully advised in the prem-

ises, makes the following findings of fact and conclusions

of law:

1) Plaintiff is now and was at all times herein mentioned

a corporation, as were and are other railroads with which

it has merged and which it controls, and is engaged in the

business of transporting persons and property by rail in

interstate commerce in the Eastern Division of the Eastern

Judicial District of Illinois and elsewhere in the State of

Illinois and other states of the United States and is a

‘‘carrier’’ within the meaning of and subject to the Rail-

way Labor Act, 45 USC 151 et seq.

2) Defendant is a voluntary, unincorporated labor as-

sociation, the successor to the Brotherhood of Railroad

Trainmen, the Switchmen’s Union of North America and —

23a

other voluntary, unincorporated labor associations and is,

as were its predecessors the ‘‘representative’’ under the

Railway Labor Act, supra, of employees of plaintiff and the

corporations with which it has merged and which it con-

trols, hereinafter ‘‘ Defendant’’ and is engaged in business

as such ‘‘representative’’ in the Eastern Division of the

Northern Judicial District of Illinois and elsewhere in the

State of Illinois and other states of the United States.

3) The jurisdiction of the Court is invoked by plaintiff

under 45 USC §§ 1331 and 1337 as an action arising under

the constitution and laws of the United States in which the

amomit in controversy exceeds $10,000.00 exclusive of in-

terest and costs and as an action under the Railway Labor

Act, 45 USC 151 et seq., an Act of Congress regulating

commerce, particularly Section 2 First, 45 USC 152 First,

thereof.

4) Plaintiff seeks an injunction against a strike and

picketing of plaintiff by defendant over a dispute between

plaintiff and defendant with respect to whether plaintiff

shall have the unrestricted right to determine number and

craft of persons to be employed in crews in trains and

yard service or whether a specified minimum number of

persons shall be employed in such crews; the ground for

plaintiff’s action is that defendant has not complied with

Section 2 First, of the Railway Labor Act, supra, which

provides that it shall be the duty of all carriers, their

officers, agents, and employees to exert every reasonable

effort to make and maintain agreements concerning rates

of pay, rules, and working conditions, and to settle all dis-

putes, whether arising out of the application of such agree-

ments or otherwise, in order to avoid any interruption to

commerce or to the operation of any carrier growing out

of any dispute between the carrier and the employees

thereof.

5) Defendant denies that Section 2 First of the Railway

Labor Act is justiciable and denies that the Court has

24a

jurisdiction under the Norris-LaGuardia Act, 29 USC 101,

et seq., particularly Sections 4, 7 and 8 thereof, to issue

the injunction sought by plaintiff; the requirements of the

Railway Labor Act with respect to the dispute between

plaintiff and defendant having been exhausted.

6) In July 1965, defendant served a notice on plaintiff

and at about the same time on other railroads, under the

provisions of Section 6 of the Railway Labor Act, 45 USC

156 of its desire for a collective agreement with plaintiff

to be effective January 25, 1966 at the expiration of the

Award of Arbitration Board No. 282 which had been estab-

lished under and in pursuance of Public Law 88-108, 45

USC 157 (1969 Supp.) for a specified minimum number of

persons to be employed by plaintiff in crews in train and

yard service.

7. Plaintiff, like other railroads on which defendant

served the aforementioned notice, refused to negotiate

with defendant with respect thereto on the ground it was

not required by the Railway Labor Act to do so because

the notices were served during the effective period of the

Award of Arbitration Board No. 282. Whereupon, defend-

ant requested the National Mediation Board to assume

jurisdiction of the dispute arising from such notice and

the National Mediation Board did assume jurisdiction

thereof in October 1965.

8. In December 1965 plaintiff, as did other railroads,

served a notice on defendant under the provisions of Sec-

tion 6 of the Railway Labor Act, 45 USC 156 of its desire

for a collective agreement with plaintiff for the railroad

to have the unrestricted right to determine the number

and the craft of persons to be employed in crews in train

and yard service and further proposed that such notice be

handled concurrently with the notice theretofore served

on it by defendant in July 1965 and that, if no agreement

should be reached by plaintiff and defendant with respect

to such notices, the dispute arising therefrom be further

25a

handled under the Railway Labor Act in conjunction and

concurrently with disputes between defendant and other

railroads arising from similar notices served at about the

same time. Such notice was served and such proposals

were made by plaintiff and by other railroads expressly

subject to the position that it was not required by the Rail-

way Labor Act to negotiate with defendant with respect to

the notice served by defendant on plaintiff in J uly 1965.

9. In January 1966, plaintiff and defendant met with

respect to the notice and proposals served in December

1965 by plaintiff upon defendant. No agreement was made.

Defendant refused to negotiate concurrently with plaintiff

with respect to the notice served by defendant on plaintiff

in July 1965. Defendant further refused to negotiate both

of said notices in conjunction each with the other or with

disputes between defendant and other railroads arising

from similar notices served at about the same time. Plain-

tiff refused to negotiate with defendant independently of

similar disputes between defendant and other railroads.

10. Thereafter plaintiff requested the National Mediation

Board to, and it did, assume jurisdiction of plaintiff’s dis-

pute with defendant arising from the notice served by

plaintiff on defendant in December 1965, as did other rail-

roads, with respect to disputes between them and defendant

arising from similar notices served by them on defendant

in December 1965.

11. From time to time from January 1966 until June

1969, plaintiff and defendant conferred with respect to the

dispute arising from the aforementioned notices served by

and upon plaintiff and defendant in 1965 but made no

agreement settling the dispute.

12. On October 16, 1969, after a proffer by the National

Mediation Board to the parties to submit the dispute aris-

ing from their aforementioned notices to arbitration was

accepted by plaintiff but declined by defendant, the Na-

—_——

26a

tional Mediation Board notified the parties that ‘‘it is the

judgment of our Board that all practical methods provided

in the Railway Labor Act for our adjusting the dispute

have been exhausted, without effecting a settlement’’, and

terminated its jurisdiction of the af@rementioned dispute

between plaintiff and defendant effective that date.

13. The President of the United States has not estab.

lished an emergency board to investigate the dispute be-

tween the parties hereto arising from their respective 1965

notices heretofore mentioned.

14, The evidence shows that at all times the defendant

has taken the position that the only agreement that could

be reached was and is that reached by nearly all of the

railroads in the United States with defendant, which re.

quires a restoration of approximately 95% of all of the

jobs in question.

15. The court does not find as a matter of fact that

either of the parties have been guilty of bad faith in bar-

gaining but finds the question of good faith is delegated

to the National Mediation Board and has been resolved and

is not an issue hefore this court.

Conciusions or Law

1. This action arises out of and involves a labor dispute

within the meaning of the Norris-LaGuardia Act, 29 USC

Section 101, et seq.

2. Whether there has been compliance with Section 2

First of the Railway Labor Act, 45 USC 152 First, provid-

ing that it shall be the duty of all carriers, their officers,

agents and employees to exert every reasonable effort to

make and maintain agreements concerning rates of pay,

rules and working conditions, and to settle all disputes

whether arising out of the application of such agreements

or otherwise, in order to avoid any interruption to com-

27a

merce or to the operation of any carrier growing out of

any dispute between the carrier and the employees thereof

is a matter for administrative determination and has been

determined by the National Mediation Board under the

provisions of Sections 5 and 6 of the Railway Labor Act,

45 USC 155, 156, is not justiciable and this Court does

not have jurisdiction to consider or adjudicate disputes

with respect to compliance with such subsection, particu-

larly after the National Mediation Board has relinquished

its mediatory jurisdiction of a dispute as in this case.

3. The requirements of the Railway Labor Act having

been exhausted for more than thirty days with respect to

the dispute between plaintiff and defendant arising from

the notices served by defendant on plaintiff in July 1965

and by plaintiff on defendant in December 1965 with re-

spect to the number and craft of persons to be employed

by plaintiff in its train and yard crews, the Court did not

and does not have jurisdiction under the provisions of

Sections 4 and 7 of the Norris-LaGuardia Act, 29 USC

104, 107, to issue an injunction, either temporary or per-

manent against defendant striking and picketing plaintiff

as sought by plaintiff herein.

4. Defendant is entitled to receive from plaintiff rec-

ompense for loss, expense or damage sustained by de-

fendant as a result of the issuance of the temporary re-

straining order on November 19, 1969 including all reason-

able costs in the defense of such order and in opposing the

injunction sought by plaintiff in this proceeding.

5. Defendant’s motion to vacate the temporary restrain-

ing order heretofore issued should be denied as the ques-

tion is moot; plaintiff’s motion for preliminary injunction

should be denied; defendant’s motion to dismiss plaintiff’s

complaint should be allowed, and an appropriate decree

should be entered for such purposes.

28a

FinaL DEcREE

This cause coming on to be heard on the verified com.

plaint of the plaintiff filed herein on November 20, 1969 as

amended; on plaintiff’s motion for a preliminary injune.

tion; on defendant’s motion filed November 21, 1969 to

vacate the temporary restraining order issued herein on

November 19, 1969 which was once extended by an order of

the Court and thereafter by agreement of the parties until

6:00 p.m., December 12, 1969 and on plaintiff’s motion for

a preliminary injunction and defendant’s motion to dis-

miss which are part of defendant’s verified answer filed

herein on December 2, 1969, and

The Court having heard and considered the testimony

and written evidence offered by plaintiff in support of its

motion for a preliminary injunction and by defendant in

opposition thereto and in support of its motions to vacate

the temporary restraining order, and to dismiss the com-

plaint and action on December 2, 3, 4 and 5, 1969 and

having heard and considered the briefs submitted by and

the arguments of counsel and

The Court having tried the action upon the facts without

a jury and having heretofore specially found the facts and

separably steted its conclusions of law thereon and having

directed the entry of an appropriable [sic] decree, it is

OrpeRED, ApsupGED and DecreEep that:

1. Defendant’s motion to vacate the temporary restrain-

ing order issued November 19, 1969 against a strike by

defendant is denied, the question now being moot.

2. Plaintiff’s motion for preliminary injunction is denied.

3. The plaintiff shall recompense, and pay to, the de-

fendants herein their loss, expense, or damage caused to

the defendants by the issuance of the Temporary Restrain-

ing Order herein on November 19, 1969 including all rea-

sonable costs and expense of defense against the order

PORE TOMO OTE

29a

and against the granting of injunctive relief sought 2

this proceeding and subsequently denied by this Court.

For the purpose of determining the amount thereof, this

Court reserves jurisdiction of this cause for this purpose

only. Hearing thereon will be set upon motion when time

for appeal has passed. If appeal is taken, hearing will

be set after final mandate herein.

4, Subject to the jurisdiction reserved in the preceding

paragraph, defendant’s motion to dismiss the complaint

is allowed and the complaint and this action is dismissed

at plaintiff’s cost.

ENTER:

/3/ J. S. Perry

United States District Judge

Dated: Chicago, Illinois,

December 11, 1969.

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.