Amicus Curiae Brief — Brotherhood of Locomotive Firemen & Enginemen, Ocean Lodge No. 76 v. Tunstall

Supreme Court of the United States

No. 404

OCTOBER TERM, 1947

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND

ENGINEMEN, OCEAN LODGE No. 76, PORT NORFOLK

LODGE No. 775, W. M. MUNDEN,

Petitioners,

vs.

TOM TUNSTALL,

NORFOLK SOUTHERN RAILWAY COMPANY,

Respondents.

BRIEF OF AMICUS CURIAE

\

JAMES B. MCDONOUGH, Jr.

Counsel for Seaboard Air

Line Railroad Company.

INDEX

Preliminary Statement. =. en atte acai ae

Re ee CN onc secede

The Class Injunction Provisions of the Judgment

of the District Court eckepnehlbinstetiicadonialee OA

Specification of Points inte,

Argument —

1. The <class injunctive provisions of paragraph 3

oi the judgment of the District Court are void

for indefiniteness and generality 11

2. If the injunctive provisions of paragraph 3 of

the judgment of the District Court have, in fact,

created a new contract, the judgment of the

District Court was (a) beyond its power under

the Railway Labor Act and (b) invalid as a

matter of general law __ . 18

3. The class injunctive provisions here questioned

would, if valid, create a new contract having the

same vice condemned by this Court in the Steele

and Tunstall cases . 21

4. By reason of the provisions of the Railway Labor

Act, the injunctive powers of the District Courts,

in these cases, should be limited to requiring the

bargaining agent to proceed under the machin-

ery of the Act with the negotiation of such

changes in rules and working conditions as may

be appropriate to remove the claim of discrimi-

natory representation 23

Conclusion ” : ee

TABLE OF CASES

PAGE

Burke v. Morphy, 109 F. (2d) 572,

cert. den. 310 U. S. 635 ’ 10,19

Graham, et al., v. Southern Ry. Co., et al.,

’ Civil Action No. 4330-47 6,7

Hague v. Committee for Industrial Organization

307 U. S. 496 ands 10, 20

Henderson v. Southern Railway, 258 L.C.C. 413 18

Henderson v. United States, 63 Fed. Supp. 906 18

Hinton v. Seaboard, et al., Civil Action No. 674 5

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

311 U.S. 91 20

National Labor Rel. Bd. v. Express Pub. Co.,

312 U. S. 426 ; 10,17

New York, N.H.&H.R. Co. v. Interstate Commerce

Commission, 200 U. S. 361 : 10,17

Rolax v. Coast Line, et al., Civil Action No. 670 5

Steele v. Louisville & Nashville R. Co., et al.,

323 U.S. 192 3,10, 23

Tunstall v. Brotherhood of L.F.&E., et al., 323 U.S.210 3,10

United Brotherhood v. United States, 330 U.S. 395 3

Virginian Ry. Co. v. System Federation No. 40,

300 U.S. 515. 11,24

STATUTES

Norris-LaGuardia Act (29 U.S.C. Sec. 101, et seq.) 20

Railway Labor Act, as amended,

(45 U.S.C. Sec. 151, et seq.) 1,19

IN THE

Supreme Court of the United States

No. 404

OCTOBER TERM, 1947

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND

ENGINEMEN, OCEAN LODGE No. 76, PORT NORFOLK

LODGE No. 775, W. M. MUNDEN,

Petitioners,

TOM TUNSTALL,

NORFOLK SOUTHERN RAILWAY COMPANY,

Respondents.

BRIEF OF AMICUS CURIAE

2

L

PRELIMINARY STATEMENT

The undersigned, as counsel for Seaboard Air Line Railroad

Company (hereinafter called the Seaboard ), and associate coun-

sel, respectfully submit the following brief amicus curiae. The

written consent of all parties to the cause, required by Paragraph

9 of Rule 27 of the Rules of this Court, has been heretofore

filed with the Clerk.

This case involves important questions of general public

interest with respect to the administration of the Railway Labor

Act, as amended, (45 U.S.C. Sec. 151, et seq.), which counsel

amicus curiae feel should not be overlooked in the exercise

of a judicial power intended to protect the rights of a minority.

It also involves questions of general law, of which this Court

should take cognizance, respecting the scope of the injunctive

powers of the District Courts. Consideration of this case as

involving only judicial protection against an unlawful discrimi-

nation by a bargaining agent accredited under the Railway

Labor Act, would be an unfortunate over simplification. In

order to settle administrative questions involved, and for the

guidance of the several District Courts and the Circuit Courts

of Appeals in the respective circuits with respect to the scope

of class injunctive relief in these cases (of which others are

pending and in which similar injunctive relief is sought),

counsel amicus curiae respectfully submit that certiorari should

be granted.

To the extent that the points raised in this brief may not be

assigned as error by the Petitioner herein, counsel respectfully

submit that the points so raised show “'plain error” which this

AURORE ETB STARE RIE YR RK ORRIN CORES ct TR Re

3

Court should notice even though not so assigned or specified

(United Brotherhood vy. United States, 330 U.S. 395).

The essence of the decisions of this Court in the Steele and

Tunstall cases (Steele v. Louisville & Nashville R. Co., et al:,

323 US. 192, and Tunstall v. Brotherhood of L.F.&E., et al.,

323 U.S. 210) was that the administrative machinery created

by Congress in the Railway Labor Act for the making of agree-

ments between carriers and their employees respecting rates

ot pay, rules and working conditions was inadequate to protect

the rights of a minority of the craft or class of firemen employed

by the two railroads involved in those cases. If that were not

so, the individuals involved and the minorities they represent-

ed, would have been relegated, at least in the first instance, to

the administrative remedies provided by the act. To that extent

the holding created a void. How then were the rights of that

minority to be protected? This Court answered that question

by saying that in such a situation the Railway Labor Act con-

templated resort to the usual judicial remedies of injunction

and award of damages.

Counsel amicus curiae are not suggesting that this Court

should reconsider that holding. They make no contention that

the Railway Labor Act excluded Tunstall’s claims from judicial

consideration. They do not question the power of the District

Court to grant injunctive relief. The decisions in the Steele and

Tunstall cases, however, left to the District Courts the difficult

and delicate task of formulating the precise terms in which the

remedy of injunction would be granted. The question which it

is felt this Court should consider is whether the character and

extent of that relief, with respect to the Negro firemen, as a

class, as granted in this action and as prayed in other pending

actions of a similar nature, is proper.

—

4

Counsel amicus curiae are not presenting questions (except

indirectly) with respect to the particular relief which has been

granted the individual plaintiff. Tunstall is still employed by

the Norfolk Southern Railway Company as a locomotive fire-

man and the judgment of the District Court, in substance, has

directed the Railway Company, irrespective of the provisions

of its contract, to restore him as a locomotive fireman to a par-

ticular passenger run from which he was ousted, and a jury has

awarded him damages. Counsel are seriously concerned, how-

ever, with the class injunctive provisions of paragraph 3 of the

judgment of the District Court (R.34), which are presumably

intended to protect the rights of the class Tunstall represented,

and this brief is directed only to the consideration of those pro-

visions.

The injunctive provisions of paragraph 3 of the judgment

of the District Court, with respect to the class, are void for

uncertainty. Labor agreements of the kind here involved are

like a child’s house of blocks. Remove one block and the whole

structure tumbles. In practical effect the class injunction pro-

visions before the Court here have destroyed the structure and

given no directions for rebuilding it. As a result the Brother-

hood and the Railway Company cannot proceed to rebuild ex-

cept under jeopardy of punishment for contempt for violating

a general injunction to obey the law. The alternatives which the

Brotherhood and the railroad must face in any attempt at com-

pliance with such a direction are set out below. If, to the con-

trary, this Court should hold that this class injunction is valid

in form, and should go further and give some indication of

the alternative it would consider acceptable, the courts will

have made a new labor agreement affecting the rules and work-

ing conditions of a large number of men constituting the en-

tire class of locomotive firemen, contrary to the power conferred

PRB ENN EN REL TRL AMER RL MENT br MME OIE EPR AS tee OT

upon the courts and to the express provisions of the Railway

Labor Act, and, in such a case, they will have made a contract

subject to certain of the same defects and vices which this Court

condemned in the Steele and Tunstall cases supra. This does

not mean that no relief can be granted, but it does mean that

orderly and constitutional procedure requires that the class in-

junction provisions of judgments to be entered by the District

Court in this case, and by the District Courts in other similar

cases shall be confined within appropriate and workable limits,

and shall be consistent with the policy of Congress as expressed

in the Railway Labor Act. The importance of these questions

is emphasized by the pendency of other similar actions which

counsel believe may properly be called to the attention of this

Court.

OTHER PENDING ACTIONS

Similar class actions are pending in the District Courts of

the United States, brought by Negro firemen employed by

other railroads (including the Seaboard) against the Seaboard

and other such railroads and against the Brotherhood of Loco-

motive Firemen and Enginemen (hereinafter called the Broth-

erhood) as the representative of the craft or class of locomotive

firemen employed by such other railroads, and in which like

injunctive relief is prayed. One such action is pending against

the Seaboard and against the Brotherhood as the representative

of Seaboard firemen, in the District Court of the United States

for the Eastern District of Virinia, at Nerfolk (Hinton v. Sea-

hoard, et al., Civil Action No. 674). Another is pending against

the Atlantic Coast Line Railroad Company (hereinafter called

the Coast Line) and against the Brotherhood as the representa-

tive of Coast Line firemen, in the District Court of the United

States for the Eastern District of Virginia, at Richmond (Ro/aax

v. Coast Line. et al., Civil Action No. 670).

ie

The two actions above mentioned are spurious class actions

permitted under Rule 23(a) (3) of the Federal Rules of Civil

Procedure. A third action has recently (October 27, 1947)

been brought in the District Court of the United States for the

District of Columbia which purports to have been brought

under the suprious class action rule, although there may be a

question whether it comes within that rule. In that action (Gra-

ham, et al., v. Southern Railway Company, et al., Civil Action

No. 4330-47) four Negro firemen employed by Seaboard, six-

teen employed by the Coast Line, and one employed by a sub-

sidiary of the Southern Railway Company (hereinafter called

the Southern) were joined as plaintiffs, and as defendants were

joined the Southern, the Coast Line, the Seaboard, the Brother-

hood, certain subordinate lodges and individuals.

6

The complaint in the Graham case alleged the invalidity of

the Southeastern Carriers Conference Agreement (which is at-

tached as Exhibit II to the complaint in the Tunstall case and

is now before this Court (R. 114) ) and prayed for a prelimi

nary injunction, as well as a permanent injunction. On the mo-

tion for a preliminary injunction (which is still svb judice in

in some respects although a preliminary injunction was denied

as to Seaboard and the proceedings stayed as to it) the relief

prayed includes a prayer for an injunction restraining all of the

defendants “from recognizing or enforcing or complying with

the agreement of February 18, 1941”, which is the same South-

eastern Carriers Conference Agreement before the Court here,

and “from taking any action which would have similar dis-

criminatory or unlawful effect as would the enforcement of

such agreements or practices”. In short, the Graham case seeks

to raise, in aggravated form, the difficult and complex adminis-

trative questions which are involved in the granting of in-

junctive relief in proceedings of this character.

SENET NE SES REIT TIPS EY AP EL SAAN

7

In the Graham case the United States applied for leave to

intervene in support of the plaintiffs’ motion for a preliminary

injunction, and in its points and authorities said:

“The public interest in the correct interpretation of the

federal statute which caused the Government to appear

as amicus curiae in the Supreme Court extends equally to

the observance of the statute as interpreted”.

In those points and authorities, however, the Government pro-

ceeded upon the same unfortunate over simplification of the

situation and gave the Court no help or suggestions with respect

to the precise terms in which injunctive relief could, as a prac-

tical matter and in conformity with law, be granted.

THE CLASS INJUNCTION PROVISIONS

OF THE JUDGMENT OF THE DISTRICT COURT

The opinion of the District Court states that “injunctions

will be entered in accordance with the third and fourth para-

graphs” of the prayer for relief (R. 32).

Paragraph third prayed that the defendants should be en-

joined from enforcing or otherwise recognizing the binding

effect of the Southeastern Carriers Conference Agreement* and

the supplement to that agreement made separately with the

Norfolk Southern Railway Company (hereinafter, when refer-

red to collectively, called the Agreement) “in so far as said

agreement and supplement deprives plaintiff of his assignment

*The Petition for Certiorari herein may be thought to imply that it

is the railroads and not the Brotherhood that are at the root of the trou-

ble. In this brief counsel do not wish to distribute blame, but feel it

proper to point out, as did the Circuit Court of Appeals, that the rail-

roads opposed the demands of the Brotherhood which resulted in the

Southeastern Carriers Conference Agreement.

me

8

on the passenger train run between Norfolk, Virginia, and

Marsden, North Carolina, or in any other way interferes with

his occupation as a locomotive fireman employed by the de-

fendant Railway Company” (R. 10-11). The quoted part was

strictly confined to the plaintiff's individual situation.

Paragraph fourth prayed that the Brotherhood should be

perpetually restrained and enjoined from acting or purporting

to act as plaintiff's representative or the representative of the

other Negro firemen under the Railway Labor Act, “so long

as it or they, or any of them, refuse to represent him and them

fairly and impartially; and so long as it or they continue to use

its position to destroy the rights of plaintiff and the class he

represents herein” (R.11). Such class, of course, was only

the Negro firemen employed by the Norfolk Southern Railway

Company.

The judgement of the District Court dated January 21, 1947,

makes the following finding (R.34):

"That the said ‘Southeastern Carriers Conterence Agree-

ment and Supplemental Agreement are null and void in

so far as they deprive the plaintiff and the class represent-

ed by him of seniority and employment rights.”

It is the “in so far as” part, the qualification, that destroys the

efficacy of that finding of the District Court.

The class injunctive provisions are contained in paragraph

3 of the judgment of the District Court, which reads as follows

(R.34):

“3. That the defendant Brotherhood of Locomctive

Firemen & Enginemen, Ocean Lodge No. 76, Port Nor-

folk Lodge No. 775, and W. M. Munden and the class

they represent, and the defendant Norfolk Southern Rail-

way Company, be and each of them hereby is perpetually

IHMC SRT A ORR RE IR ey pega ASRS PRLE oo TREN

Bee

— SL eR PERN

9

enjoined from enforcing or otherwise recognizing the bind-

ing effect of said ‘Southeastern Carriers Conference Agree-

ment’ of February 18, 1941, or the Supplemental Agree-

ment of May 23, 1941, in so far as said Agreement or

Supplementary Agreement deprives plaintiff of his as-

signment on the passenger run between Norfolk, Virginia,

and Marsden, North Carolina, or in any other way inter-

teres with his occupation as a locomotive fireman em-

ployed by the defendant Railway or in any way interferes

with the occupation of the class he represents as locomo-

tive fireman employed by the defendant Railway.”

Again, it is the qualification that defeats the result intended,

“or in any way interferes with the occupation of the class he

represents as a locomotive fireman employed by the defendant

Railway”. The determination of how the agreement and the

supplement thereto (hereinafter simply called the Agreement )

may be administered so as not to interfere with the occupation

of the class of Negro locomotive firemen employed by the Nor-

folk Southern Railway Company and represented by Tom Tun-

stall is not a simple matter.

SPECIFICATION OF POINTS

|. The injunctive provisions of paragraph 3 of the judgment

of the District Court are void for indefiniteness and generality.

The Agreement is not found void im toto and no specific act

is enjcined nor any specific course of conduct prescribed. The

factual situation involved is extremely complicated. The Broth-

erhood and the railroads cannot be compelled to pick their way

at their peril, confronted on the one hand with criminal and

civil liability under the Railway Labor Act and on the other

hand with punishment for contempt.

Ce PY A ES EAGAN GSE

——

10

New York, N. H. & H. R. Co. v. Interstate Commerce

Commission, 200 U.S. 361.

National Labor Rel. Bd. v. Express Pub. Co. 312 US. 426.

2. If the injunctive provisions of paragraph 3 of the judg-

ment of the District Court require (a) the “complete equality”

which is mentioned below, or if they require (b) the restora-

tion of the condition existing prior to the Agreement, the in-

junction constitutes a change in the Agreement which the Dis-

trict Court has no power to make under the provisions of the

Railway Labor Act and which is beyond the power of the Dis-

trict Court to make as a matter of general law.

Burke v. Morphy, 109 F. (2d) 572, cert. den. 310 US.

635.

Hague v. Committee for Industrial Organization, 307 US.

496.

3. If the District Court, through the injunctive provisions of

paragraph 3 of its judgment, has in fact made a new agreement

between the parties, its judgment has the same vice condemned

by this Court in the Steele and Tunstall cases, supra. As to the

Negro firemen, on all roads, the fruit of an equality imposed

by the fiat of a court may have the taste of aloes. The District

Court, rather than the accredited bargaining agent, will have

made a new contract which may have unfavorable effects on

some of the members of the craft (white as well as Negro,

upon certain railroads other than the Norfolk Southern Rail-

way Company), and there is no showing that such members,

as a class, have been heard.

Steele v. Louisville & Nashville R. Co., et al., 323 US.

192.

Tunstall v. Brotherhood of L.F. & E., et al., 325 US. 210.

11

_ 4, By virtue of the provisions of the Railway Labor Act re-

specting the manner in which agreements with employees must

be changed, and the reasons for such provisions, the injunctive

power of the District Courts in these cases should be limited to

requiring the accredited representative of the employees to pro-

ceed in accordance with the Act, to give the required notice of

a proposed change, and to proceed to negotiate a new agree-

ment in conformity with law, with notice to and an opportunity

to be heard on the part of any minority, whether white or Negro.

Whether there was compliance with such requirements would

be a proper subect of inquiry by the District Courts in enforcing

their decrees

Virginian Ry. Co. v. System Federation No. 40, 300 U.S.

515.

ARGUMENT

1. The class injunctive provisions of paragraph 3 of the

judgment of the District Court are void for imdefunste-

ness and generality.

Paragraph 3 of the judgment of the District Court perpetual-

ly enjoins the defendants from enforcing or otherwise recogniz-

ing the binding effect of the Agreement, insofar as said Agree-

ment “in any way interferes with the occupation of the class

he |the plaintiff] represents as locomotive firemen employed

by the defendant Railway.”

Tunstall represents a class of firemen who have long years

of seniority but are not required to take examinations for pro-

motion to the position of engineer. Under the Agreement, and

12

under the Schedule* as in effect prior thereto, the so-called

promotable firemen were and are required to take, within a

limited time, comparatively difiicule promotional examinations,

and if they decline to take them, or tail to pass them, they are

dropped from the service (R. 18). Upon being promoted to

the position of Engineer, the promotable fireman goes to the

foot of the engineers’ roster and was and still is required to

take any engineer’s assignment that may be available, and those

assignments are usually less desirable than assignments as fire-

men at the top of the firemen’s roster which he is not permitted

to protect as long as there is available to him an engineer's as-

signment. As a result, the top of the firemen’s seniority roster,

prior to the Agreement, was composed largely, if not entirely,

of Negro firemen who were not compelled to take the promo-

tional examinations and who ran no risk of discharge for failure

to take or to pass them, but who took and held all, or substan-

tially all, of the desirable assignments, from which it was the

white firemen who were the ones excluded. One effect of the

Agreement in substance was to keep the Negro firemen from

having all or a majority of the good jobs as firemen and to per-

mit the white firemen to have at least one-half of such jobs,

even though there were numerically more white firemen than

Negro firemen. In that situation, how can the Brotherhood or

a railroad know how to proceed under such an injunction?

Will ic remove interference with the occupation of the Negro

locomotive firemen if the non-promotable classification is re-

moved? The record contains an affidavit by one John W. Bar-

ron, an engineer on the Louisville & Nashville Railroad Com-

*The Agreement, as defined, was in fact only an amendment to the

more complete agreement with the firemen covering rates of pay, rules

and working conditions, and the complete agreement is referred to

herein as the “Schedule”.

EWN FERS TETRA YE OY TM RPGR NA LO ONT POT RE _— |

13

pany, who became such through promotion from a fireman,

and which is submitted as typical of the class he represented

(R. 159). His affidavit shows that under the Schedule and the

practice of the railroads, engineers are taken from the ranks

of firemen; that over a period of four years he took the first

year and second year written mechanical examinations required

of firemen on that road; that following those examinations he

was required to take the written mechanical promotional ex-

amination and an operating rules examination, and that after

that he took oral examinations covering mechanical subjects and

operating practices, which consumed an entire day (R. 161).

He stated that in order to prepare for those progressive and

promotional examinations he studied consistently during his

off hours from work over a period of three years and that

(R. 161):

sak es ars

“All of these examination were very difficult, and one had

to possess a very complete and detailed knowledge of all

subjects covered by the examination to be able to pass

them satisfactorily.”

Engineer Barron further stated that he was personally ac-

quainted with all of the firemen on the Montgomery-Mobile

Division of the Louisville & Nashville Railroad Company and

that (R. 163):

SS FI ET PETE

ERE

“I am certain that if the non-promotable firemen now em-

ployed on the Montgomery-Mobile Division were forced

to prepare themselves and take promotional examinations,

the same as the promotable firemen are required to do,

the vast majority would be incapable of qualifying as en-

gineers.”

NG REE PERERA Ore

The statements of Engineer Barron are supported by state-

ments contained in the affidavit of David B. Robertson, the

eee ee ne eee ee eR ee ee i et |

14

President of the Brotherhood, which appears in the record

(R. 165). Robertson states that not only are the promotional

examinations highly technical and difficult, but that a great

amount of time and effort must be invested by firemen over a

long period during off hours to be able to successfully pass those

examinations and he points out that on the Atlantic Coast Line

alone, between 1939 and 1946, a total of 62 firemen (neces-

sarily white firemen) failed in their examinations, either pro-

gressive or promotional, and were dismissed trom the service

(R. 177) and they are listed by name (R. 186).

Robertson further states that at the time of the negotiations

resulting in the Southeastern Carriers Conference Agreement

consideration was given by the Brotherhood to a proposal that

the non-promotable firemen should be required to take those

examinations but that, apart from the question whether the

Southeastern Carriers would agree to that proposal “it was

deemed undesirable and dropped from consideration because

of the unanimous opinion of the general chairmen that the

vast majority of the non-promotable firemen would be unable

to qualify as engineers, by sucessfully passing the promotion

examinations, and would, as a result, suffer either dismissal

from the service or be reduced in seniority standing to the foot

of the seniority roster.” (R. 180). Displacement to the foot

of the firemen’s seniority roster is stated to be in practical effect

often the same as dismissal (R. 175). On the Norfolk Southern

Railway Company the penalty is dismissal (R. 18).

Certainly the Negro firemen cannot be permitted to become

engineers upon any less thorough examination than that re-

quired of white firemen. By the same token. if the classification

of non-promotable is removed, and all discriminations or differ-

ences on account of race are to be removed, no good reason

RIG LLL PR ERAN ICH BRE PEE OAR VERON TS. JASE eR UR A ENN: ——

—

: 15

would appear why they should not be compelled to take those

examinations. If that is done, instead of not interfering with

the occupation of the Negro locomotive firemen the locomotive

may become a tumbril and the click of the rails the gride of the

Paris cobblestones*.

The record is also clear that on most railroads employing

Negro firemen there are numerous white firemen who are classi-

fied as non-promotable because they had entered the service

prior to the time the taking promotional examinations was

made compulsory. Robertson states that in 1941 there were

four such on the Central of Georgia, twenty-eight on the South-

ern, fifty-four on the Louisville & Nashville, and twenty-nine

on the Seaboard, a total of one hundred and fifteen on those 4

four roads alone (R. 180). It appears from the uefinition of

non-promotable firemen contained in the Supplementary Agree-

ment here involved (R. 19) that the Norfolk Southern Rail-

way Company has no white non-promotable firemen, but on

roads that do have white non-promotable firemen, their status

is no more to be overlooked in the effort to do justice and equity

than that of thc Negro non-promotable firemen.

i he Sn ele

—~

Will it remove interference with the occupation of the Ne-

gro locomotive firemen if, instead of requiring them to take

the promotional examinations, the Agreement is simply held

void im toto, and the situation is restored to what is was prior

to the Agreement, and a large number of white firemen are

summarily displaced from their present jobs and offered either

ia

*The Schedule Agreements frequently provide that if a fireman

should fail on any one examination he will be entitled to a re-examina-

tion within a short period and contain the further provision that upon

such re-examination a representative of the Brotherhood shall be en-

titled to be present.

EER REI ERIE LIED, TO REI ST NG RD

3

|

|

|

sls tT pais dae bgt ical Saath 5 Lg SOAP REL DOS tahoe

16

jess desirable jobs or no jobs at all? Perhaps so, but what does

that do to the occupation of locomotive firemen, as such? Under

the law, the railroads are forbidden by unilateral action to

change the rates of pay, rules, or working conditions of their

employees. (Sec. 2 of the Railway Labor Act).

Will the railroads, if such a course is followed (unless

the judgment of the District Court constitutes protection) be

subject to the criminal provisions of the Railway Labor Act as

well as be subjected to numerous suits for damages by the white

locomotive firemen so displaced? On the other hand, if the

judgment of the District Court requires the complete equality

above mentioned, and the non-promotable white firemen are

required to take the promotional examinations, will the

railroads, with respect to such non-promotable white firemen,

be also subject to the criminal penalties of the Act and to suits

for damages by such firemen whether or not they pass the pro-

motional examinations? The rules and working conditions ap-

plicable to such white non-promotable firemen will have been

changed without their consent. Even if they pass, they will get

less desirable jobs. Which alternative should the parties take,

or what course should they follow, in the face of the class in-

junctive provisions of the judgment in this case?

Under the circumstances disclosed by this record, counsel

amicus curiae respectfully submit that compliance with the com-

mand of that judgment, in the form as written, is unpossible

of attainment, and that the injunctive provisions of paragraph

3 of the judgment of the District Court are void. On that point

there are two decisions of this Court which we submit are con-

trolling.

17

In the case of National Labor Rel. Bd. v. Express Pub. Co.,

312 U.S. 426, this Court found a cease and desist order of the

National Labor Relations Board to be too broad. This Court

said that (at page 435) “we can hardly suppose that Congress

intended that the Board should make or the Court should en-

force orders which could not appropriately be made in judicial

proceedings”. With respect to orders which could appropriately

be made tn judicial proceedings this Court said (at page 436) :

“A Federal court has broad power to restrain acts which

are of the same type or class as unlawful acts which the

court has found to have been committed or whose com-

mission in the future, unless enjoined, may fairly be an-

ticipated trom the detendant’s conduct in the past. But

the mere fact that a court has found that a defendant has

committed an act in violation of a statute does not justify

an injunction broadly to obey the statute and thus subject

the defendant to contempt proceedings if he shall at any

time in the future commit some new violation unlike and

unrelated to that with which he was originally charged.

This Court will strike from an injunction decree restraints

upon the commission of unlawfu! acts which are thus dis-

sociated from those which a defendant has committed.”

In the case of New York, N.H. & H.R. C. v. Interstate Com-

merce Commission, 200 U.S. 361, at page 40-4, this Court said:

“In other words, the proposition is that, by the effect of

a judgment against a carrier concerning a specific viola-

tion of the Act, the carrier ceases to be under the protection

of the law of the land, and must thereafter conduct all its

business under the jeopardy of punishment for contempt

for violating a general injunction. To state the proposition

is, we think, to answer it.”

PPE RE OR LSU LL ETIA LG IE ILI I

18

2.1f the injunctive provisions of paragraph 3 of the

judgment of the District Court have, in fact, created

a new contract, the judgment of the District Court

was (a) beyond its power under the Railway Labor

Act and (b) invalid as a matter of general law.

The facts and authorities set out in Point 1 above would

seem to be conclusive of the invalidity of the injunction, in the

respect there discussed, and this brief could well stop with that

point. Counsel amicus curiae, however, are more than mere

advocates, and the decision on that point alone would leave

unsettled other and vexatious questions which should be con-

sidered and passed upon by this Court.

The Interstate Commerce Commission, when it takes juris-

diction under Section 3 of the Interstate Commerce Act in cases

involving racial discrimination with respect to passengers upon

railroad trains, issues its report and order directing specificially

the action to be taken or not to be taken by the carrier, and the

parties have a guide to their future conduct (Henderson v.

Southern Railway, 258 1.C.C. 413, and Henderson v. United

States. 63 Fed. Supp. 906). Where agreements with the em-

ployees of a carrier are involved, however, the order of the

District Court can not specify, by restraint or by command, with

such particularity, as to do so would constitute the making of

a new such agreement.

For the purposes of this Point 2 it makes no difference wheth-

er the District Court intended to command that complete equali-

ty, mentioned above, or the restoration of the status existing

prior to the Agreement, or some other and alternate arrange-

ment. The essential facts are that whatever was intended, a new

agreement has been made that affects all firemen, with no steps

: ES .

—_ ANDY D \cciy its AORTIC

19

whatsoever having been taken to comply with the requirements

of paragraphs Sixth and Seventh of Section 2 of the Railway

Labor Act. It may be argued that paragraph Sixth was inap-

plicable, as no “dispute” was involved, but it cannot be denied

that paragraph Seventh, by its very terms, is applicable.

Paragraph Seventh reads as follows:

“Seventh. No carrier, its officers, or agents shall change

the rates of pay, rules, or working conditions of its em-

ployees, as a class, as embodied in agreements except in

the manner prescribed in such agreements or in section

6 of this Act.”

The District Court has commanded the Norfolk Southern Rail-

way Company to change the rules and working conditions of

its fremen, contrary to the express prohibition of that statute.

The power of a District Court of the United States to make

a new or different contract between the carrier and its employees

with respect to wages was expressly denied in the case of Burke

v.Morphy, 109 FL (2d) 572, cert. den. 310 U.S. 635. In that

case the Circuit Court ot Appeals for the Second Circuit, said:

“The order did affect wages and was in substance a

wage cut; no wage cut may be imposed unless the pro-

visions of the Railway Labor Act, 45 U.S.C.A. § 151 et

seq., are first obeyed; and no attempt was made to comply

with this Act. The Railway Labor Act (48 Stat. 1 185, 45

U.S.C.A. $ 151) applies to every interstate carrier, in-

cluding a carrier that is being operated by a receiver. The

Act forbids any intended change in an agreement affecting

rates of pay unless thirty days’ notice is given to the other

party to the agreement. *** A contention that this order

did not even ‘affect’ existing agreements between the car-

rier and the various brotherhoods is frivolous.”

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20

The statute in question there was the same as the one here

involved, to-wit: Paragraphs Sixth and Seventh of Section 2

of the Railway Labor Act. Both refer to agreements respecting

“rates of pay, rules or working conditions”. No reason exists

why a District Court of the United States can make a new con-

tract respecting rules or working conditions if it cannot make

one with respect to wages. Counsel amicus curiae respecttully

submit that if the judgment in this case is upheld, the Burke

case has been overruled, and the Railway Labor Act has been

found to have conferred upon the courts of the United States

power over the wages, rules and working conditions of the em-

ployees of the carriers of this country far in excess of the power

of those courts as exercised through injunctive process prior

to the passage of the Norris-LaGuardia Act. (29 U.S.C. Sec. 101,

et seq.), and a precedent dangerous to the liberties of labor will

have been established (cf. Mik Wagon D. Union v. Lake Valley

F. Products, 311 U.S. 91).

As a matter of general law, the District Court had no such

power. In the case of Hague v. Committee for Industrial Or-

ganization, 307 U.S. 496, where an injunction had been issued

finding an ordinance of the City of Jersey City to be void and

enjoining the city officials as to the manner in which they should

administer the ordinance, the Court said (at page 518):

“As the ordinance is void, the respondents are entitled

to a decree so declaring and an injunction against its en-

forcement by the petitioners. They | the respondents | are

free to hold meetings without a permit and without regard

to the terms of the void ordinance. The courts cannot re-

write the ordinance, as the decree, in effect, does.”

In this case, the Agreement can not be considered apart from

all its provisions, nor apart from the Schedule. If the Agreement

21

is Sought to be retained, with only the non-discriminatory pro-

visions stricken out, a new agreement has in fact been made,

even though its exact terms may be uncertain. Whatever they

are, or were intended by the Court to be, they constitute a new

agreement. By the same token, the District Court in this case

would have exceeded its power if it had simply found the Agree-

ment (as was required by this Court in the Hague case, supra)

to be void in its entirety, for there would necessarily have result-

ed a new agreement. This argument does not defeat itself, nor is

ita return to the argument that by reason of the provisions of the

Railway Labor Act the claims of the plaintiff were not justiciable

for there are well defined limits, as mentioned under Point 4,

:

within which the injunctive power in these situations can law- :

fully and effectively be applied. :

3. The class injunctive provisions here questioned would, ;

if valid, create a new contract having the same vice Fa

condemned by this Court in the Steele and Tunstall E

cases. t

Tunstall is only one of approximately one thousand Ne- f

gro firemen employed by the railroads parties to the Southeast- :

ern Carriers Conference Agreement. His action is brought asa

class action on behalf of only the class of Negro firemen em-

ployed by one of such railroads (R. 4), and not on behalf of 4

all Negro firemen. He asked for specific relief for himself, to 4

be restored only as a firemen to one particular and specified :

passenger run, and to be awarded his individual damages, but

with respect to the common question of law and fact he asked

general injunctive relief in favor of all constituting his class.

Nevertheless, if the judgment of the District Court is permitted

to stand in its present form, it will vitally affect all Negro fire-

men and all the railroads by which they are employed, and all

the members on such railroads of the Brotherhood.

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Tunstall, one individual, brought and proceeded to judgment

witb» his action under the rule allowing such spurious class suits.

....Mo other Negro locomotive-fyeman, so far as we are advised,

joined in his action. That may be argued to indicate acquiescence

by the class, but it may as well show lethargy, the timidity of a

frequently inarticulate group, or simply lack of understanding,

with probably ro anticipation whatever of the possible effect

of the judgment that would be entered in the proceedings.

Under Rule 23(c) of the Federal Rules of Civil Procedure

Tunstall could not have dismissed or compromised his action

without the approval of the District Court, and under that rule

the District Court was authorized, upon any proposed dismissal

or compromise, to require that notice thereot be given to all

members of the class in such manner as it might direct. The

case proceeded to judgment, rather than a dismissal or a com-

promise, so that Rule 23(c) was not applicable by its terms,

and we intend no criticism of the District Court. The District

Court, as a matter of fact, and as we show in Point 2 above,

cannot be substituted as the bargaining agent of the employees,

but, when it was in practical effect acting as such, the situation

was clearly one in which it would have been appropriate for the

notice authorized by that rule to have been given. As pointed

out in the case of Burke v. Morphy, supra, with respect to the

employees of the Receiver of the Rutland Railroad Company,

even assuming their privilege to intervene they were under no

obligation to do so and “the existence of the privilege is not

equivalent to actual intervention. Unless they exercised their

privilege, they remained strangers to the litigation.” The em-

ployees there were not parties to a class suit but the situation

is analogous.

23

The possible unfavorable effects, upon even the members

of the class Tunstall represented, have been pointed out above.

As a result of proceeding to judgment as it did, the District

Court, rather than the bargaining agent as in the Steele and

Tunstall cases, has made a new contract which may have un-

favorable effects on some of the members of the craft (not

merely, even, the class of Negro firemen, for non-promotable

white firemen on other roads may be unfavorably affected by

similar judgments), and there is no showing that they have

been given notice and an opportunity to be heard (unless the

pendency of the action and the entry of a judgment establish

a presumption to that effect), and there is certainly no showing

that, as a matter of fact, such other members were heard and

their wishes consulted with respect to the form and effect of

the judgment.

The result is contrary to the very requirement of this Court

that whenever necessary to a fair and impartial representation,

the bargaining agent /s required to consider requests of minority

members, “and expressions of their views with respect to col-

lective bargainning with the employer and to give to them

notice of and opportunity for hearing upon its proprosed action.”

Steele v. Loutsviile & Nashville R.R. Co., et al., 323 US. 192.

4. By reason oj the provisions of the Railway Labor Act,

the injunctive powers of the District Courts, in these

cases, Should be limited to requiring the bargaining

agent to proceed under the machinery of the Act with

the negotiation of such changes in rules and working

conditions as may be appropriate to remove the claim

of discriminatory representation.

The Railway Labor Act, for reasons which do not require

restatement here, prohibits changes in wages, rules and working

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conditions except upon compliance with the machinery set forth

in the Act.

The District Courts, as pointed out above, should not, and we

respectfully submit that they cannot, be constituted the bargain-

ing agent for the employees. The power of the District Courts

in these cases should be limited to compelling the bargaining

agent to give the notice required, and to proceed in accordance

with the machinery of the Act with the negotiation of changes

in rules and working conditions that will result in an amended

contract containing no differences not relevant to its authorized

purposes, within the allowable limits outlined in the opinion

of this Court in the Stee/ case, supra. For that purpose there can

be no question but that the District Courts have ample and

effective power, under the decision of this Court in Virginian

Ry. Co. v. System Federation No. 40, 300 U.S. 515.

In that case it was argued that the obligation of the Railway

Labor Act requiring the carrier to negotiate with the representa-

3 tive of its employees was not the appropriate subject of a decree

in equity and that since equity could not compel the parties to

agree it should not compel them to take the preliminary steps

which might result in an agreement. The language of this

Court, in response to that argument, is particularly appropriate

upon this point. This Court said (page 550):

“There is no want of capacity in the court to direct com-

plete performance of the entire obligation; both the nega-

tive duties not to maintain a company union and not to

negotiate with any representative of the employees other

than respondent and the affirmative duty to treat with

respondent.* * * Whether an obligation has been dts-

charged, and whether action taken or omitted is in good

faith or reasonable, are everyday subjects of inquiry by

courts in framing and enforcing their decrees.” (Italics

supplied ).

Petts cinmnensianten nit ies cit ine val i

25

In concluding its discussion of that point this Court said (553)

“The decree is authorized by the statute and was granted in an

appropriate exercise of the equity powers of the court.” The

same cannot be said of the judgment here under consideration. -

CONCLUSION

We respectfully submit that certiorari should be granted in

this case and that the decision of the Circuit Court of Appeals

should be reversed and the proceedings remanded to the District

Court for further proceedings in accordance with the opinion

of this Court.

Respectfully submitted,

JAMES B. MCDONOUGH, Jr.

Counsel for Seaboard At

Line Ratlroad Company.

W. R. C. COCKE.

FRANK J. WIDEMAN.

Of Counsel.

Dated November 17, 1947.

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