# Petition for Writ of Certiorari — Chicago & North Western Railway Co. v. United Transportation Union > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0290%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 402 U.S. 570 ## Text 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 oereererere eee eee eee eeereeeeeeeeeeeeee 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 10 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... .’’ ———_ 11 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 12 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 13 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). 14 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). 15 (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 a 16 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- 17 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, . . .”’ 18 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. _ 1) 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). 20 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 _ 21 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). a 22 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 23 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). 24 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 25 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). 26 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 27 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 28 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. 29 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). 30 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). 31 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 32 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 33 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). 34 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. 35 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,