Rutland Railway Corporation v. Brotherhood of Locomotive Engineers

assessment, color under tions for the authorizations, restitution those 3, 1959 is after November sums deducted

warranted. of the order of The enforcement granted

majority will of the Board herein. modifications indicated

with the CORPORATION,

RUTLAND RAILWAY Plaintiff-Appellee,

BROTHERHOOD OF LOCOMOTIVE al., ENGINEERS et Defendants- Appellants.

No. Docket 26760. Appeals

United States Court of

Second Circuit.

Argued March

Decided June

Marshall, Judge, Circuit dissented. Lynch, Rutland, Thomas Wm. Vt.

(Clark, Ellis, by Peet, Carr & Charles D. u Harry Martin, Jr., Wallace, thereto, F. L. the workers

Donald went back to plaintiff- jobs. City, counsel), for New York appellee. Railway operations are The Rutland Vt., Hoff, Burlington, Har- Philip H. One sub- divided into three subdivisions. Ross, McLaughlin, A. Harold old N. Hampshire runs the New division Fisher, Cleveland, Tole- Ohio, Donald W. Vermont, Falls, border Rutland, Vermont, Bellows Cleveland, Heiss, do, (Harold C. Ohio approximately and is Rapids, Shuttleworth, Ohio, Cedar V. C. long. 52 miles The main line subdivision Cleveland, Wayland Sullivan, Iowa, K. northerly runs from the southwestern Burlington, Hoff, Ohio, Black, &Wilson through corner of the of Vermont State Hollington, Marshman, Hornbeck, Vt., Burling- Rutland, Bennington, North and Cleveland, McLaughlin, & Steadman ton, Vermont, tip Lake of' to the northern defendants-appel- counsel), Ohio, of Champlain Alburg, Vermont, a dis- lants. Alburg the tance of 155 miles. At about westerly proceeds road northern across WATERMAN, KAUFMAN Before through New York and Judges. State Malone MARSHALL, Circuit and Norwood, Ogdensburg, York, to New York, New hundred distance of one Judge. WATERMAN, Circuit twenty-two halfway be- miles. Malone is unions, the appellant labor The four Alburg Ogdensburg. tween Nor- and Engineers, Locomotive of Brotherhood wood, Ogdensburg, between Malone and Firemen Locomotive of 35 miles miles from the former and 25 Railroad Enginemen, Brother and portion latter. of the Trainmen, of Railroad Order and Alburg Ogdensburg line from to is called' Brakemen, hereinafter and Conductors Ogdensburg Subdivision. collectively defendant as the to referred 2, 1959, On November the Rutland ap- brotherhoods, the five individual and Railway, general or local which had been in dif- financial either pellants, each general ficulty, of the above-mentioned sent one to the chair- notices chairman judgment appeal brotherhoods, from a brotherhoods, men of the four defendant District Court States United order of the duly recognized representatives as the enjoining Vermont, as District operating employees, Rutland’s in- unions, their of October members, organizations form the labor agents strik- from further and among proposed, things, carrier other using any form ing, picketing, other or agreements existing all and in connection coercion economic prevent which rules would it from con- plaintiff Rutland which a Railway solidating abolishing terminals, and crew Corporation had submitted merging seniority districts, and estab- Board, Railroad National lishing part runs.1 interdivisional As injunction remain effect until country-wide concerted effort to initi- dispute. disposed of the Board had prob- ate national discussion of railroad began September on The strike I lems most the Class carriers in the injunction until the It continued also nation delivered similar notices to Then, obedient was effective. brotherhood officers. order part given notices relevant “ATTACHMENT A as the Rutland were follows: * * * * * * * hereby give notice, under our ex- “We pursuant isting agreements and TRAIN AND “ROAD ENGINE SERVICE Act, provisions of the Labor ASSIGNMENTS. January 1, 1960, pro- we effective supplement agree- Except pose provided, “A. revise as hereinafter agreements agreements, rules, regula- or ment accordance eliminate all tions, interpretations, proposal practices, A’ set forth ‘Attachment how- appended established, applicable any hereto. ever class posáis The issuance of was re these notices contained in the 6 notices quired by Section 6 of the sent November 2. The failed to amended, 44 Stat. 582 reach proposals, on of the 45 U.S.C.A. 156.2 At the time these and the conferences recessed. were soon notices were sent the Rutland delegated authority The railroad then bargaining had collective the Carriers’ Com- Eastern Conference with the brotherhoods. mittee to further confer on behalf of Rutland, representa- 30, 1959, conferences the labor On November delegated authority representatives Rutland between tives do so to employees representatives of its the National Conference Committee pro- to consider the commenced order the four brotherhoods.3 eral tablished, which the carrier shall shall interpretations tablishment of a new home terminal for n ployees, n construedto in carrier does not now have the minals. establish assigned this rule graphs (a) assigned basis and (cid:127)crew or limit the around seniority districts, and to establish inter- divisional, interseniority district, intradi- terminals, or establish, move, consolidate and abolish right n crews merge Tunning the establishment or service), visional and divisional, inter-seniority, district, divisional or run, or employees, # “3. “(b) No “2. “B. Establish a rule to “1. The carrier shall have the “(iv) provide for automatic release of “(i) prohibit “(ii) prohibit “(iii) prohibit practice, terminals for grade chairman class of through provisions or when off of be terminals, merge All upon ^[*] Before or consolidate and which * * * eliminated, except crews and without operate any (including except or of the carrier to on either a one of road train or rule, regulation, interpretation agreements, rules, through and arrival at terminals or end of provisions intraseniority however established shall be unassigned (including service involved and intraseniority # unassigned a run * * * and any way prohibit, through established crew terminal of this rule which the (b) as conflict with the above or give agreement s.uch impose practices, impose involves both the es- provided He established crew ter- of this provide penalties short assigned operation notice to the seniority districts, established class of established crew service with the paragraph and consolidate establish, move, sj« district runs in restrictions restrictions way engine district paragraph run, turn-around) with its em- provide in however es- regulations, territory. sub-para- of inter- or turn- ^[*] existing service, right restrict opera- service under runs. intra- extra gen- 1 of 2. on sfc to 3. The 2. The section reads: ment and was established on November The Commission rendered its into the issues raised ber mentioned sues in cluding sisting recommendations on The President countered with the Presidential Railroad Act, by period these controversies were termination of conferences without re- quest served Commission “to tions shall not be altered until the the Mediation Board.” notice. Board have been ty, ices, be within the in of intended thereto, or the services of the Mediation ed interested in such intended and carrier conferences are be receipt between the rules and served.” days’ rules, working conditions, “Sec. 6. Carriers and making upon, agreed upon or said Board has agreements place rates respect written notice of an intended representatives for or or employees by of said of ten 1960. National to be In controversy as a Section 6 notice on of controversy achieving findings every practices representatives required by report change pay, Mediation proffer thirty days provided authorized notice, more investigate within ten being days proposals involved in the above- affecting requested by shall beginning between the rules, case where such notice and recommendations to the controversy, has been an amicable settle- has, February favorable held of the services of considered has and of the give proffered with the or Board, section 5 of this suspended and been conferences, representatives, working by s,aid with rates of days of their respect President, and to elapsed at least of the changes of conference and the time Commission directed the the carrier report either finally employees time shall proposals given, reference objective after the unless parties.” are its Septem- and as- inquire parties change condi- to is- thirty when 1960. serv- after own, shall par- pre- act- pay, and in- on or burg opposite This directions. new plight continu- The Rutland’s financial eight number schedule would reduce the jobs months first ed to worsen. and would on subdivision ten hauling carloads of 1960 it was hauling home terminals of some freight less it was than jobs operating trainmen whose were not eliminated. comparable period Its $264,000 than those less revenues were September learned On 14 the railroad period Therefore the same in 1959. employees in an that attempt would strike met in the railroad’s board directors prevent these new schedules spring in order of 1960 summer becoming from the morn- effective. On combatting the com- devise methods for ing brotherhoods, September 15 the plan pany’s problem. A financial chang- referring obviously schedule agreed whereby op- finally upon certain Ogdensburg Subdivision, on tele- es erating expenses reduced would go graphed the railroad that would freight runs. abolition several M., September on 12.01 A. strike at Subdivision, Ogdensburg itsOn cancelling because “carrier 1957 and 1959 Og- Vermont, to Alburg, changing stretched by bulletins and had York, Rutland densburg, New running home terminals thru for- freight trains operated total of four freight mer terminal for certain local From east yard switchers. two part crews.” replied Subdivision, Ogdensburg west follows: Alburg, Ver- terminals there were mont; Railway Corporation ef- “Rutland Norwood, York; Malone, New arrange Sept. 17, fective 1960 will Ogdensburg, York. York; New New assignment train conform to daily op- operated these trains Two of change demands of traffic. The Alburg and posite directions between not and cannot be have shown to opera- trains The other two Norwood. agreement violated rule as Ogdens- going Malone, to of one ted out alleged. agreement No been has day, returning the burg other and each merely violated and the carrier is returning day. Alburg going each to and exercising right operate its in an to its directors to the Pursuant decision economical manner. Conferences on freight runs, the number to reduce this issue have not the been held on Septem- posted on bulletins the railroad property with the [brotherhoods].” announcing beginning that ber employees punctually operating existing daily The September 17 the four by the broth- time indicated Ogdensburg struck at the freight on Subdi- runs the telegram that by strike would two, erhoods’ the replaced run- to be were vision ning daily begin.4 Alburg Ogdens- between representatives condi- financial the yet, labor and between As impossible for carrier made it management tion of the on the rail- has been reached wage management demands change pre- to meet the proposals all rules roads’ to terminals, but he stated that certain venting the unions crew consolidation of agreed changes seniority rule to the unions merger districts estab- changes might savings from the permit runs. of interdivisional lishment pay. changes increases The proposed Meanwhile, dispute the railroad were these: raging 4. another was all Railway 1. Eliminate arbitraries. the Rutland and its between yards only Open dispute 2. closed closed employees. This second was —the yard yard, property dispute Rutland spelled on this tangentially to the related (yardmen). August to trainmen closed in the text. 1960 the out rosters, craft, each pay 3. Dovetail Ver- asked for increases for brotherhoods York employees they represented. New divisions. mont and whom A provisions operating dispute negotiate Make road to this con- conference August eight days prior switchers. on to vened operation president September of trains be- 5. Provide The 8 bulletin. wage assigned explained tween terminals so railroad to the labor days later, September dispute Ten court held on that the out which complaint subject United one, the strike arose railroad filed a was a minor jurisdiction District States District Court and decision of the enjoin asking Vermont, National the court Railroad Board and strike, to that further to order the defendants the Section 6 notice of November n comply procedural requirements sent out with the I on Class railroads Act, award the Labor national level did not alter the minor damages plaintiff. particular nature of this over rescheduling freight runs. The injunction support an claim for To grant court did not prayer the defendants’ disagreement defining railroad, injunction prevent for an employees be whether with its effectuating railroad from its reschedul- management had of the railroad ing. The appeal court, defendants to this thereby rearrange re runs and train seeking review of the district court deci- jobs terminals crew duce sion adverse to them. negotiating matter first without appellants workers, contend that the venue representatives properly for this action was not located promptly submitted the Vermont; the District of un Adjustment Board National Railroad controversy litigation out of which dispute” provisions of der the “minor was not a dispute” arose Second, Sixth, “minor Act, as the Labor §§ held, “major court below but amended, dispute” (1926), as Stat. Act, under the Sixth, Second, Stat. 45 U.S.C.A. §§ (1926) amended, U.S.C.A. moved §§ October 7 the defendants On 151-163, and that the improper Norris-LaGuardia the action because dismiss Stat. 70 on U.S.C.A. Octo §§ This motion denied venue. 101-115, deprived jurisdic- answered, the court of then ber 10. defendants enjoin tion to appellee strike. The on and filed a counterclaim which asserts, hand, sought injunction prevent the other part the court below was correct determin- ing putting effect into the railroad from ing per- a minor one which changes in its schedule of set forth mitted the proceed carrier to with its September until at least of bulletins changes schedule required that the procedures provided the relevant the employees striking. desist from Act ex Labor should have been hausted. Venue holding hearings the merits After brotherhoods, Three defendant respective district court Engi- claims the of of Brotherhood Locomotive injunction enjoining the strike. neers, an issued the Brotherhood of Locomotive railway’s prayer of Enginemen, A consideration Firemen and and the Broth- damages postponed of an award Trainmen, for was erhood of Railroad have their opinion, reported In headquarters later date. its Cleveland, to a at Ohio. The F.Supp. (D.Vt.1960), the headquarters brotherhood, of the fourth equal payments will the miles run asserting notice on the and/or that day. change existing hour an 8 brotherhood desired to pay September contended at the dis- The brotherhoods of and rules. rates On hearing spokesman agreed court that

trict the railroad submit the union’s management explained proposals bargaining for to national under the running auspices 5No. meant of of the National Mediation Board. through established home termi- trains nals, Mediator A National came to Rutland to but the district court refused to wages. mediate this over future August finding. testimony hearing The make There was at the ended without On conference success. work the Mediator’s did not relate to the September 7, (see 3), changes footnote over the bulletined general Ogdensburg chairman of of train schedules on the Sub- Railroad Trainmen served a division. “pres- should be considered Brake- association Conductors Order of continuously car- Rapids, ent” wherever it was men, Iowa. are at Cedar rying part ac- of its on a substantial arises under as this action Inasmuch for tivities, this was the standard since namely, States, the United the laws of “presence” corporations. How- of relevant venue being ever, to add that he hastened provision Code is the Judicial of “present” not tanta- in a district was 1391(b): C. § being of that mount to an “inhabitant” juris- “(b) wherein A civil action assimilating Again the situa- district. solely on di- not founded diction is entity unincorporated tion of the versity citizenship be incorporation place has brought only judicial district Judge incorporated entity, Hand an- reside, except all defendants where entity unincorporated nouneed that provided law.” as otherwise was an “inhabitant” of the district principal place of business. that, since assert brotherhoods associations, unincorporated are Although Sperry Prods., involved’ Inc. any against proper for an action venue infringe provision patent the venue for judicial district one them is Judge actions, applied ment have courts place principal of business where reasoning in the- Hand’s that case to situated. questions determination that have involving general arisen venue stat Prods., Association Sperry Inc. v. ute. Until the Judicial revision 1942), Rs., F.2d 408 Cir. Am. difficulty in in 1948 little Code there was 744, 63 denied, general doing involving so because the stat venue (1943), L.Ed. infringe ute, (1940), provided on patent U.S.C. provision the venue Judge ly brought dis actions, Hand Learned shall be that “no civil suit ment concept as it related against of venue any any person cussed the district court * ** unincorporated associations. any other district than involved, 35 Stat. * * there statute venue is an inhabitant whereof he (1940) (1909), U.S.C. § Judge Hand’s Thus discussion where 1400(b) (1958)), stat (now 28 U.S.C. § unincorporated was in an association an infringe any patent suit ed that equal applicable habitant force brought might “in the district ment general provision venue as it under inhabi defendant of which tant, then existed. See Brotherhood of Loco in which the district Firemen, Graham, * * * etc. v. motive U.S. have committed shall defendant App.D.C. F.2d rev’d regular infringement and have acts of grounds, 338 70 U.S. place other S.Ct. of business.” and established Darby pur L.Ed. 22 Cf. Judge 94 v. venue Hand stated Transp. Co., procedural Philadelphia F.Supp. in 73 522 poses, as for other as well unincorporated (E.D.Pa.1947). But cidents, see association Thermoid Co. an Workers, jural entity, F.Supp. Rubber 70 cf. be considered v. United should gen (D.N.J.1947). But in 1948 America v. Mine Workers of Cor 228 United Co., 259 42 statute was redrafted 28 eral venue as Coal S.Ct. onado 1391; (c) and subsection L.Ed. 975 66 U.S.C. § only approach procedural subsection practical This stated: added. involving problems created actions may corporation “(c) A be sued in unincorporated associations was as judicial any district in which it is treatment to that ac similate incorporated do licensed to busi- Therefore, Judge corporations. doing business, corded ness or is judicial and such unincorporated regarded that an shall Hand concluded district be

29 165, 167-168, corporation 60 L.Ed. 167 84 the residence of 5 Commodity v. Credit purposes.” Cohen for venue Corp., F.Supp. (W.D.Ark.1959); 172 803 provision drafted Under the venue Light Indianapolis Jacobson Power & v. question 1948 courts faced with Co., F.Supp. (N.D.Ind.1958); 163 218 Judge follow Hand whether should (E.D. River, F.Supp. The North 808 57 unincorporated asso- and hold that an N.Y.1944); Vogel & Seal v. Crown Cork principal place only ciation resides at Co., (D.Md.1940). F.Supp. It business, process of practical should be treated in terms. See Judge advocat- assimilation which Hand Sperry Prods., Ass’n of Am. R. Inc. v. assimilating ed should be extended Rs., supra; American Airlines Air unincorporated the treatment of associa- Congress Ass’n, supra. Line Pilots has newly purposes tions for venue with the 1391(c) stated in § that the residence expanded corporate concept residence. corporation purposes for venue is not on this issue. The cases are divided only incorpo in the state wherein it is that for deter held Some courts have places rated but also in where it is unincorporated mining associa an venue licensed to do business and where it is place principal resides doing business. It is true that we would of Locomotive of Firemen, business. reading 1391(c) into 28 U.S.C. § Graham, supra; McNutt etc. v. words which are not there if we should Workers, F.Supp. 871, v. United Gas assert that that subsection that it states (W.D.Ark.1952); v. Illinois Griffin applies unincorporated associations. (N.D. R., F.Supp. Cent. R. See Cherico v. Brotherhood R. R. Ill.1949); & N. R. Louisville Salvant v. Trainmen, supra. But we do not find (W.D.Ky.1949); F.Supp. 391, congression manifestation here of a of R. R. Train Cherico v. Brotherhood policy expressio al unius est exclusio (S.D.N.Y.1958). men, F.Supp. alterius, reasoning and so we follow the Small, F.Supp. Prods, Cf. Hadden v. Sperry and assimilate the resi 1951). (N.D.Ohio Other courts have unincorporated dence of associations un unincorporated held that an association der 1391(b) 28 U.S.C. to that of cor § any district be sued in which it 1391(c). porations, 28 U.S.C. Since doing Portsmouth business. Baseball corporation the residence of a for venue Corp. Frick, F.Supp. (S.D. purposes expanded has been to include N.Y.1955); Airlines, Inc. American judicial all the districts which cor Ass’n, F.Supp. Air Pilots Line doing business, poration is the residence (S.D.N.Y.1958); Express, Eastern Motor unincorporated of an association for ven Espenshade, F.Supp. Inc. v. purposes expanded ue should likewise be (E.D.Pa.1956). Supreme And the Court judicial to include all the districts yet spoken has not on the matter. unincorporated entity doing which the We business. believe accords with Venue in the federal courts is practical requirements litigation jurisdictional concept. not a See 28 involving unincorporated associations. 1406(b) (1958); H.R.Report U.S.C. § unincorporated carrying union is If Cong., (1947) 80th 1st Sess. A154 particular ju activities in a on sufficient (Reviser’s Notes). should We not think is district so that it deemed dicial be metaphysical about it in the terms which usually doing there, it will business suf have often been associated with consid hardship required undue fer jurisdiction. erations of cept Venue ais con there. If in certain suit instances of stand convenience. See Neirbo Co. v. particular Shipbuilding Corp., a in a Bethlehem of suit dis- 308 defense U.S. the § 1391 that Another difference between new from the Reviser’s Notes the stat syn ute and intended to be the old one was that the two terms were new spoke H.R.Report 308, onymous. Cong., one in of 80th terms “residence” in “inhabitance”; (1947). stead of but A147 is dear 1st Sess. disputes growing grievances oppressive, the associa- peculiarly out of or out is trict interpretation may always application of a transfer or of seek 1404(a) (1958). agreements covering rules, pay, U.S.C. rates of under § action working or of conditions.” In Order us, Turning case before Telegraphers R. R. R., N. R. & W. brotherhoods defendant hold that the we 4 L.Ed.2d U.S. of doing District in business (1960), explicitly Supreme Court They up and maintained set Vermont. grievance held that a labor under existed facilities other committees implied Act, the Norris-LaGuardia Rutland among employees of the Railway La- under the that one existed organized They a Railway in Vermont. sought to Act, close a when railroad bor employees in Vermont. of railroad strike They thereby re- a of its stations number management of negotiated with the employment. The Court stated: duce There plaintiff Vermont. railroad in controversy “Plainly here re- this fore, that venue we conclude part of the on the lates to an effort Vermont of in the District action change ‘terms’ of an of union order proper affirm the and we agree- bargaining existing dis collective denying motions below court just as desired ment. The plainly miss. of em- to ‘conditions referred Dispute Major Minor or employees ployment’ of the railroad’s gen- only two there are think that We represented by union. who are presented issues questions eral many employment of of They this case. law involved of labor hangs agents inescapably station “major” or First, so-called are: of stations that the number Railway La- under “minor” completely abandoned will either be amended, 45 Act, 577, as 44 Stat. bor other stations. or consolidated with Second, (1958)? 151-163 U.S.C.A. §§ bargaining And, collective Act, 47 Stat. Norris-LaGuardia does nothing strange today, world there de- (1932), 101-115 29 U.S.C.A. §§ per- that affect the about jurisdiction prive of the district court manency employment. The Dis- enjoin the strike? finding ‘[cjollec- trict Court’s length bargaining as to or tive For either these statutes employment common- term place,’ operative, must be first of all there challenged.” Id. at is not dispute.” The Norris-La “labor 13(c), 80 S.Ct. at Act, 47 Stat. Guardia § 113(c), defines labor § U.S.C.A. Numerous other courts have assumed follows: presence labor similar “(c) dispute’ The term ‘labor in- g., Pennsyl E. situations. Hilbert v. concerning any controversy cludes (7 Cir.), R. F.2d 881 vania cert. employment, or terms conditions denied, concerning rep- the association or or L.Ed.2d the Matter of negotiat- persons resentation of Co., F.Supp. M. R. Hudson & ing, fixing, maintaining, changing, (S.D.N.Y.), aff’d sub nom. Stichman seeking arrange terms or con- Comm. of Grievance v. General Bhd. regardless employment, ditions Trainmen, F.2d 941 Cir. disputants not the stand Dawson, 1959), denied, Hatler cert. proximate relation of em- 928, 80 U.S. L.Ed.2d 351 employee.” ployer Ry. A. Cf. Butte & Pac. Firemen, 44 Brotherhood Locomotive 151a, (9 Cir.), denied, Stat. U.S.C.A. sets F.2d 54 361 disputes applies 864, 122, to (1959). out which it 80 4 as L.Ed.2d 104 S.Ct. concerning disputes pay, “all rates of court below was correct when it working rules, dispute relating or conditions” “all a and labor found to

31 relation, working one, ment when or inde- existed asserted conditions 20, pendent 1960. of on those the col- case was heard October covered agreement, g., lective on ac- e. claims interruptions to avoid to In order personal injuries. count of In either disputes resulting from transportation accrued, rights case the claim is to working con- rules, or pay, of rates over merely not to have new created ones orderly peaceful and provide ditions, to 723, for the future.” Id. at of these the settlement procedures for at 1290. organization disputes, foster to Hearings See (1926), also 7650, 45 H.R. on before 577 employees, 44 Stat. of House Act Committee on 151a, Labor Interstate Com- § U.S.C.A. merce, Cong., 577, 73d (1934). as 2d 44 Sess. 47 Stat. passed in 1926. (1958). 151-163 amended, 45 U.S.C.A. §§ types disputes the In both of types dis- of contemplates two The Act that, step, requires Act as a first provides minor, major putes, parties every must ef make reasonable handling each. procedures for different con fort to settle their differences in 2, 44 577 Stat. Act Labor § See First, Second, 44 577 ference. Stat. § Hearings 151a, on (1926), § 45 U.S.C.A. (1926), amended, 45 as U.S.C.A. § on 7650, House Committee H.R. before First, Elgin, Ry. Bur J. & E. Second. Cong., Commerce, 2d Sess. 73d Interstate ley, 12, 18, supra and nn. at 724-725 3266, Hearings before on S. supra Major dis S.Ct. at 1290-1291. Interstate Com- Committee Senate putes a commence with the issuance of (1934). Cong., Mr. merce, 2d Sess. 73d notice,” notice known as a “Section 6 opin- Rutledge oft-quoted in his Justice given seeking change party ex to Ry. Elgin, & E. J. for the Court ion isting agreements. Seventh, 6, 2§§ 1282, Burley, U.S. (1926), amended, 44 Stat. as (1945), explained the distinc- L.Ed. 1886 152, Seventh, 45 U.S.C.A. §§ major disputes and minor between major disputes, if settlement cannot be Act: under conference, reached in matter [major dispute] relates “The first auspices referred to mediation under the over the formation to of 5, National Mediation Board. § efforts to or collective (1926), amended, as Stat. They where them. arise secure fails, If U.S.C.A. mediation § agreement or where no such there is proposes Mediation Board volun change sought to terms it is tary parties, arbitration §§ one, the issue is not and therefore (1926), as Stat. amend existing agreement con- an ed, 155, 157, a U.S.C.A. course of §§ controversy. They look to trols party required adopt. action neither rights acquisition fu- R. R. Brotherhood of Trainmen Tole rights ture, assertion do, P. & W. R. past. in the to have vested claimed Finally, L.Ed. 534 class dis- the President the United [minor “The second States de however, contemplates sires, empowered up putes], he to set an emergency investigate of a board to collective existence already re or, rate, port respect dispute. him concluded amended, in which effort is made Stat. situation § bring 160. The about a formal U.S.C.A. are re stage comply quired to with each to create a new one. The or terms meaning procedure dispute relates either to the above-described may before either particular self-help, application proper and it resort is the statutory duty specific the carrier not provision with reference to alter working pay, rules, conditions, or to omitted case. In rates situation e., quo, maintain the status event the claim is i. until latter founded upon employ- Board has acted upon some incident Mediation the dis- 32 1065, Cong., 1,

pute. (1926), S.Rep. 6, 44 582 as No. 73d 2d Sess. Stat. § 156; amended, (1934). amendment, Burke 2 45 Under this if the U.S.C.A. see § parties agree Morphy, Cir.), conference, v. cert. fail 109 F.2d 572 either denied, 1078, 635, 84 side 310 U.S. 60 S.Ct. submit the matter to the Na (1940). Adjustment L.Ed. 1404 International tional Railroad Grand Board. Engineers Morphy, assuring provided Bhd. of Procedures are Locomotive for denied, (2 Cir.), 109 F.2d 576 cert. 310 the Board will not become dead 635, 1078, locked, 1404 U.S. 60 84 L.Ed. S.Ct. unless the Board’s decision (1940). monetary However, the Act award does contains the decision having binding create tribunal final author the Board is final on ity parties. l(i) (i) (m) (n), major dispute 48 3 subd. decide a without the § (1934), parties, 153 consent of in such Stat. 1189 45 both U.S.C.A. § disputes l(i) (Í) (m) (n), provision Pac. in the subd. see Union Price, 1351, prohibits 601, Labor Act from R. R. v. 360 U.S. the workers 79 S.Ct. striking generally procedures (1959). as soon all of the 3 L.Ed.2d 1460 See settling Adjust Garrison, ex have been The National Railroad mutually satisfactory Unique hausted without a ment Board: A Administrative having Agency, (1937). solution been reached.6 46 Yale L.J. Thus 567 system compulsory mi arbitration of 1926 procedure under by nor was created the 1934 handling type of dis other Act for amendment. Brotherhood of R. R. proved dispute) (the pute minor soon Chicago R., Trainmen v. River & Ind. R. produce peace rail in the ineffectual 30, 635, 77 1 622 U.S. S.Ct. L.Ed.2d industry. often resulted Deadlock road ; (1957) Taylor, California v. 353 U.S. side or the other refusal one from the 553, 1037, 77 S.Ct. 1 L.Ed.2d 1034 voluntary local participate (1957). Hearings See on H.R. 7650 be contemplated as Act boards which the fore House Committee on Interstate disputes. in such of decision the source Commerce, Cong., 47, 58, 73d 2d Sess. many Moreover, cases in which boards 81-82, Hearings 60, (1934); on S. decision could established no 3266 before In Senate Committee on equal number of reached because Commerce, Cong., 2d 73d Sess. terstate management on each members labor (1934). pro 33, To effectuate these produced board. These circumstances the conclusive determina cedures backlog ever-increasing of unresolved an disputes, of minor courts have issued Hearings disputes. 3266 be See S. against injunctions strikes the rail on Interstate Committee fore Senate g., E. Brotherhood of R. road unions. 17, Commerce, Cong., 2d 73d Sess. Chicago Trainmen v. River & Ind. R. roadblocks, (1934). To eliminate these R., supra; the Matter of Hudson & in 1934 and the statute was amended F.Supp. (S.D.N.Y.), M. R. Railroad Board was National sub nom. Stichman v. General aff’d making unnecessary created, Comm. of the Bhd. of R. R. Grievance up 3, local boards. 48 Trainmen, (2 Cir., 1959), to set 267 F.2d 941 § (1934), 153; 928, denied, 385, U.S.C.A. Stat. S.Ct. 3; (I960).7 Cong., H.R.Rep. 4 L.Ed.2d 351 No. 73d 2d Sess. (1957); 1 L.Ed.2d 622 Labor Act contains no Brotherhood Since contrary, Toledo, provision of R.R. Trainmen v. & the Norris- P. W. R.R., L. U.S. Stat. LaGuardia Teleg 101-115, operates pre- Order of R.R. Ed. 534 §§ U.S.C.A. raphers Chicago R.R., enjoining & N. W. federal courts vent major disputes, L.Ed.2d least after strikes procedures of all of the the exhaustion provided Labor Act for disputes. settling 7. There doubt See is some federal power & court has of R.R. Trainmen River issue anti-strike injunction R.R., in a n. Ind. before the controversy appear the make more like a defendants contend dispute major major dispute.

present controversy Compare of R. R. a Order is Railway Act; and, Telegraphers there under the N. W. Labor v. & fore, enjoined, 330, 761, their strike be L.Ed.2d 774 not S.Ct. bring or, least, enjoined (1960). they may may only for Or at be seek to necessary particular period the short conflict time at issue within outstanding exhaustion of and the bounds mediation an major dispute procedures. reality other The notice that in relate to does not railroad, Comment, Enjoining hand, dispute. on other claims that See and, therefore, Quo dispute; Maintaining is this minor Strikes a the Status Railway enjoined Disputes, the strike must be so that 60 Colum.L. parties 381, issue (1960). between the Rev. can be decided 394-397 finality by the Railroad But, hand, on the other we upon Board. We are called to decide classifying process should not in the dispute major whether this a or a is dispute thereby major this as or minor dispute, minor so that the then adjudicate also the merits of the contro gomay applicable forward under the set versy parties. a between the If this is procedures sanctioned dispute, a on decision the merits Ry. Elgin, Labor Act. J. E. As & v. is the function of the Burley, supra, explained, the difference Adjustment Board; National Railroad major between and minor major dispute ais the out that the former relate to new parties’ come of the difference changes existing or contracts whereas by extra-judicial determined forces and interpretation the latter involve the and procedures. Ry. See Order of Conduc application existing agreements. Pitney, 561, tors 326 U.S. 66 S.Ct. recognize readily here, We as in (1946) ; 90 L.Ed. 318 P. Norfolk & B. L. jurisprudence, other areas of ence, the differ Trainmen, R.R. of R. R. Brotherhood hand, on the one between the in (4 Cir., 1957), denied, 248 F.2d 34 cert. terpretation application and the of an 355 U.S. 78 S.Ct. 2 L.Ed.2d 274 existing agreement, and, on other (1958). change hand, original a in an intended disagreement between question basis degree. is often a employees is not Rutland Ogdens the train runs whether reaching prob- resolution of this burg rescheduled, should be Subdivision place lem of course we not undue must but, instead, has whether the railroad emphasis on or the contentions the ma- right unilateral to make those the changes Management parties. neuvers of the will negotiating about without them position, assert the brotherhoods. Cf. Norfolk & wrong, appli- interpretation B. L. R. R. v. Brotherhood of R. R. P. existing Unions, cation of the contract. Trainmen, supra; Missouri-K.-T. R. R. hand, on the other assertions Engineers, Locomotive issue, obviously about the will 1959), Cir., 266 F.2d reversed on change. talk in terms of Since a Section grounds, 363 U.S. other required by 6 notice is statute or- (1960). 1326, 4 L.Ed.2d 1379 Whether major der dispute, to initiate a the labor major dispute, or a minor the dis be agreement representatives likely are to serve such a scope is a over the any dispute arising notice in managerial out of prerogative. railroad’s ambiguous thereby major dispute agree- present situation so as to It is if the denied, matter is submitted to the Railroad Ad-

justment Board. Of. Manion v. Kansas But inasmuch 7 L.Ed.2d 96 City Ry., Terminal the Rutland has submitted the controversy Board, present 1 L.Ed.2d 722 Hilbert v. we are Pennsylvania R.R., (7 Cir.), problem. 290 E\2d 881 here with this faced versy proposed in certain over a and the between the ments major provisions express terminals the road into home dispute. contain brotherhoods Pennsylvania by R. Local contrary rail- Cf. R. position the taken to the Workers, 178 F. R. implication 2013 of United road or if agreements clear the Supp. (E.D.Pa.1959). a believe rail- We the with is inconsistent dispute case before similar situation exists in the proposals. a minor road’s It is a clearly governing provision The us. 6 notices created Section is there although major dispute, agreements, so created its but present the in the ambiguous; Rut- not the precise requirements and was the which over are employees ten out on strike railroad land’s went it the is also minor if what Although customary by one-half later. supported and months is seeks do apparent similarity between ordinary there an interpretations of the lan- and changes given proposed guage agreements. the notice the by the Rutland on November The assert that the Section unions changes the schedule which the 2,1959, demonstrate notices of November unilaterally, the below later made court major dispute. These that making found that the railroad pursuant to national notices handling issued acting changes September 1960 not was issued similar notices were pursuant can earlier notices. We by most Class I railroads other say not was in that the district court country day. same Hilbert finding. error in so Pennsylvania (7 R., 290 F.2d Ry. Cir.), denied, Butte, Brotherhood cert. Pac. A. & Firemen, 268 F.2d 7 L.Ed.2d 96 Conferences Locomotive changes denied, Cir.), S.Ct. upon referred to in those over going relied 1959 notices were still on when L.Ed.2d distinguishable defendants, the Rutland bulletined the schedules new Ogdensburg Sep present case the case. Subdivision from the notices which tember 1960. railroad issued Section ore proposed certain allocate it first loading formerly However, the lan note that we by yard crews done guage notices was in the Rutland’s failing crews, and, reach line main necessarily the rail inconsistent with agreement representatives of with the present has that it contention road’s right thereon, proposed to then its workers existing agreements under its yard size of the crews reduce the negotia without train schedules this second men to three men. Since five proposal, 2, 1959 notices set The November tion. unacceptable, too, the rail was establishing procedure new out a shipper would announced that road does not now the carrier runs “which shipper Ana own was load its ore. agree right to establish without have Company, Copper conven conda ” * ** employees its ment with iently happened to all of the stock own also state: notices railroad asserted of the railroad. The regula- agreements, rules, shipper, All “3. instead that since carrier, ore, going tions, interpretations practices, to load the was established, employees which conflict with its however road’s eliminated, end, the above shall be with in which and therefore strike existing prac- except engaged rules and employees were should be its by the carrier considered to be tices major enjoined. The court held that the preserved.” more favorable are dispute commenced the railroad’s continued,. 6 notices for the ac Section Circuit, faced with same The Seventh copper company taken should Pennsylvania in Hilbert v. notices wholly-owned imputed subsidi supra, held that the railroad’s November ary, Thus court 2, 1959, the railroad. there 6 notices involved in subsequent the Section notices related to did not turn held case contro- throughout. changed, controversy deci- That considered new will be specific in that runs upon sion facts turned as such.” bulletined relating case pute. dis- notices and the The railroad our attention to also calls case, present Similarly, in the agreement Articles 16 and 31 significance notices rests the Section Trainmen, the Conductors and Articles large to a Rutland what the extent on 17 and 51 of the of Locomo- the 1959 it issued intended when Enginemen agreement, tive Firemen and manage- Section 6 notices and what and Article XVII in the employees ment and the intended when Engineers. provisions None of they subsequently in the involved became upon themselves alone bestow the rail- upon dispute. case, present 1960 In the right unilaterally road the a set of from those in facts different train runs and home terminals. But Butte, Ry., A. & Pac. we have concluded agree- are some that each indication controversy that the created Rut- ment, recog- whole, implicitly taken as a land’s Section 6 was not the same notices right nizes such a carrier. in the As we controversy employees over which present said earlier opinion, in the September struck in controversy is over extent managerial Railway points prerogative. railroad’s out sev- The Rutland scope management’s prerogative with provisions eral spelled often which, not out bar- collective the defendant brotherhoods gaining agreements, prerogative contends, demonstrate but implicitly exists One such all as it did. to some extent in had the provision to act agreements. agree- 39(a) Dunlop, Cox & of its See is Article Regulation Bargaining by Con- Collective ment with the Order Board, National of Railroad Labor Relations 63 and the Brotherhood ductors 389, Harv.L.Rev. Gunther v. Trainmen: Diego San Ry., F.Supp. & Ariz. E. “(a) new runs will All or vacant 402, (S.D.Cal.1961). 408-411 posted on which division be they on the days, (5) five occur within The court below found that in days, (5) to be within close assigned five general negotiation no there had been bidder within oldest past between the Rutland and its merit, (10) days, fitness and ten changes employees over in train runs. ability In ease of to be considered. finding clearly This was not erroneous. being away run is when ad- men Across the no nation there seems duty reporting vertised, for when matter; pattern uniform in this some run will be con- their claims to the railroads have more latitude act uni junior man has been sidered if a laterally changes of over this sort than assigned, claim, writing, if such do others. See the Presidential Railroad (5) days.” is made within five (Feb. 28, 1962) Report Commission language (a) XXXVII of Article agreement with the Broth- the carrier’s involving In a number of cases dis Engineers, of Locomotive erhood and agreements similar the one in the agreement 39(a) Article in the that of present case, courts have classified the the Brotherhood Locomotive disputes as minor. Matter of Enginemen, essentially Firemen and R., F.Supp. M. Hudson & R. quoted as in the article the same above. (S.D.N.Y.), aff’d nom sub Stichman v. 39(e) Article Also Grievance Comm. of the General Bhd. Trainmen Conductors and states: Trainmen, (2 Cir., F.2d 941 of R. R. “(e) 1959), Dawson, When established runs are Hatler cert. denied changed operate out of U.S. different S.Ct. L.Ed.2d changed terminals, denied, (2) schedules two see also cert. 363 U.S. twenty (20) more, (revision hours miles L.Ed.2d more, layover multiple or the of such of runs and use of control runs cars the Court Norris-LaGuardia P. reducing jobs); & Norfolk trainmen disagreement between held that management R. Train B. L. R. R. v. a bar- 1957), involved and labor Cir., cert. men, 248 F.2d 34 controversy gainable issue and that the 343, 2 L.Ed. denied 355 78 S.Ct. U.S. say major dispute. do not was a We point re (1958) (change 2d present the issue in case R. v. porting work); Missouri-K.-T. bargainable Engineers, doubt one. We have Locomotive Brotherhood of upon brotherhoods, expiration of 1959), (5 Cir., reversed 266 F.2d 335 existing agreements, require the grounds, other bargain proce- future in railroad to over (1960) (changes 1326, 4 L.Ed.2d 1379 changing and sched- away-from-home dures train runs intradivisional runs suffi- ules. We hold is a Pennsylvania that there terminals); Hilbert existing agree- denied, cient indication that the (7 Cir.), F.2d 881 management’s preserved ments have L.Ed.2d right unilaterally engineers to make the schedule (1960) (reassignment changes management to make intended another); & Baltimore one terminal require dispute sub- so as to that the Workers, 271 R. O. R. R. v. United R. Adjust- mitted to the National Railroad (2 Cir., 1959), re 87 vacated F.2d by Board, provided 278, ment as the grounds, U.S. manded 364 on other Labor Act. (1960) 1609, 80 4 L.Ed.2d 1719 S.Ct. (abolition pow post on diesel of oiler entirely are not We certain what con tugs). ered Chicago stituted the basis in & N. W. the R. R. case the Court’s other conclu provisions of light of the In the major dispute sion that there a existed. agreements, bargaining the the collective Pennsylvania R., Cf. Hilbert v. R. 290 found prior of the conduct 881, (7 Cir.), denied, F.2d in anal judge the decisions the trial 900, 174, U.S. S.Ct. 7 L.Ed.2d existing ogous the cases, hold that we (1961). Probably apply the Court was reasonably in here, agreements involved ing the traditional standards for dis recognize implicitly may terpreted, tinguishing types disputes, the two unilaterally to make railroad in the and, presented on facts it in that Sep changes on it which bulletined case, major dispute concluded that a was therefore, 1960; that 8, hold we tember present. On a set different we facts ensuing dispute be viewed must dispute have found a minor here. But dispute. Whether a minor the courts as Chicago perhaps the Court in & N. W. R. rights in fact have railroad does adding R. was a new dimension analysis claims, on further or whether it distinguishing major usual criteria for determine; Board to for the it not is does ones, from minor issue of this resolution ultimate on the magnitude working on effect con only hold express opinion. We no we pro ditions which would result from the defining the ex purpose of posal by the railroad. But even intervene which court tent to adding ingredient Court was this to its present enjoin in the a strike analysis, doubt, controversy which we one minor as considered is to be case before still us is a minor because existing involving interpretation of proposed changes the Ogdensburg schedule agreements. Subdivision would af not inconsistent with decision is Our very jobs. fect few holding Supreme Court’s Order of court not Telegraphers below did condi & N. W. R. R. injunction against issuance R., 80 S.Ct. L.Ed. requirement concluding appellants on a (1960). Besides 2d 774 quo. controversy the status maintain It over a rail was case that a certainly power within proposal reduce the court’s number of road’s impose a condition. See Brother- a labor under its stations Engineers Second, tion 2 v. Mis- First and hood of Locomotive Stat. R„ U.S.C.A. U.S. First souri-K.-T. R. § Second, manage (1960); imposed United on both 4 L.Ed.2d also Workers, duty R. ment and & O. labor the Baltimore R. R. R., etc. v. confer over any dispute. 1609, 4 provisions L.Ed.2d All of 80 S.Ct. channeled, (1960). eliminate, but did But likewise was operation impose private to decline to forces in the court’s discretion deter 534-535, disputes. mination of labor conditions. U.S. See Brother hood abuse Toledo, 4 L.Ed.2d We find Trainmen v. P. & discretionary powers W. R. 50, 58-59, court of Cong. L.Ed. 534 area. cf. 75 4505-10, Rec. 4618-26, 5462-515 Subsequent legislation, labor however, Interrelation including the 1934 amendments the Norris-La Act and provided Labor Act which Act Guardia adjudication official of certain labor dis general, the Norris-La putes by the National Adjust Railroad (1932), 29 U.S. 47 Stat. Guardia Board, ment policy reflected a of inter- passed de 101-115, C.A. §§ greater positioning governmental par jurisdic courts of prives federal district ticipation in labor Note, relations. See against injunctions strikes issue tion to Accommodation of the Norris-LaGuardia 4(a), disputes, by employees in labor Act to Other Statutes, Federal 72 Harv. 104(a); (1932), U.S.C.A. 71 § 47 Stat. 29 354, L.Rev. (1958). 356 To accommodate against granted injunctions be allows differing policies underlying the Nor irrepara will cause acts which unlawful ris-LaGuardia Act Railway and the La procedural injury strict under ble bor Act easy is not an task. In Brother (1932), 7, 29 71 requirements, 47 Stat. § hood of R. R. Chicago Trainmen v. River injunctive 107; precludes U.S.C.A. § R., & Ind. R. 30, 353 40, U.S. 77 S.Ct. stringent require when these relief even 635, 1 (1957), L.Ed.2d 622 Supreme complainant has are met if ments Court stated: legal part, fulfill, obli on its failed to “ * * * failed, gations part, to make or has the Norris-LaGuardia Act cannot attempts be to settle the labor read alone reasonable dispute in mat- dealing by negotiation, mediation, ters railway or vol with labor dis- putes. 8, untary arbitration, Stat. 72 There 47 must be § accommo- Cong. dation of that (1932), 29 75 U.S.C.A. See statute and the Rail- way (1932); Chicago, 4626, R. I. Labor Act & so 4629 that the Rec. obvious purpose Union, R. 292 Pac. R. v. Switchmen’s enactment of is each preserved. 1961), (2 Cir., certiorari denied We think pur- F.2d 61 that the poses of 936, 1578, L.Ed.2d 82 S.Ct. 8 Acts 370 U.S. are reconcilable.” policy This statute embodies On numerous occasions courts have fostering the resolution of labor injunctions disputes issued in labor de through pri interplay difficulties spite categorical apparently language unhampered by judicial in vate forces the Norris-LaGuardia of ginian Ry. Act. In Vir S.Rep. 163, See No. 72d terference. System 40, v. Fed’n 300 U.S. (1932); Cong., Rep. 1st Sess. H.R. 18 515, 592, 57 81 L.Ed. S.Ct. 789 669, Cong., (1932). 1st 72d Sess. 3 No. a labor union which had been certified The draftsmen of the Norris-LaGuardia by the National Mediation Board ob provi before Act had them the 1926 injunction against tained an a railroad of the sions Labor which commanding the deal road to with it and present procedures included most of the employees’ not to interfere settling major disputes, provi for bargaining representative. choice of a disposing sions Supreme In a series of cases Court through voluntary boards, local and See- has held that railroad unions en- be 38 justment showing be a sub- Board to reasonable joined discrimination second, self-help em- representation of stitute language general Lo- earlier and more of the v. Brotherhood

ployees. Tunstall give way 210, Firemen, 65 S.Ct. Norris-LaGuardia Act should 323 U.S. comotive specific provisions the later (1944); of the 1934 Graham 235, 89 L.Ed. Firemen, 338 Labor amendments Act. of Locomotive Brotherhood ; (1949) For 14, cases in lower 232, courts have en- 94 L.Ed. 70 S.Ct. U.S. joined situations, strikes in such How- R. Trainmen v. see R. supra 1022, p. present case, L.Ed. 2092. In 768, ard, Chicago case, Gibson, Conley U.S. River minor dis- pute involved, (1957). the railroad 2 L.Ed.2d has sub- S.Ct. R., mitted the R. matter to the & N. Railroad Ad- Louisville also Steele :See justment Board, L.Ed. 173 we follow the lead S.Ct. provided pro- for us in that (arising where case (1944) court and its in a state geny. injunction hold inapplicable). that an Act was We Norris-LaGuardia properly issuable Ameri- in order to enforce com- Yardmasters also Railroad See pliance requirement Pennsylvania R., F.2d 226 Chicago, Rail- ca v. way See, generally, Act 1953). that minor Cir., Union, heard and determined Na- R. R. v. I. Pac. Switchmen’s & tional Airlines, Railroad Air supra; Inc. v. Board.8 Cf. American Textile Ass’n, F.Supp. Mills, 785- Workers Union v. Lincoln Line Pilots 448, 457-459, U.S. (S.D.N.Y.1958). L.Ed.2d R. R. Train In Brotherhood significance Ind.& River But what v.men First, L.Ed.2d 622 us Section 2 case before have Sec ond, that the held Supreme Court Labor Act and Sixth (1957), the preclude did 8 of the Norris-LaGuardia Act and Section Norris-LaGuardia enjoining impose strike a 2 First and from Act? Second Section court federal a every of duty effectiveness to make might the on a both defeat which Adjustment dispute, author Board’s effort to settle reasonable a the National dispute. major minor, and, The it or adjudicate a minor be a ity whether to Congress efforts, first, had part that their confer over their of concluded Court provides Ad- 2 before the Section Sixth proceeding differences.9 the intended 8. LaGuardia Act. Order Act volved in ered LaGuardia S.Ct. major the frustrate pute concluded not be preme though courts Ct. Chicago Court In the 1960 federal which here is held one. That disputes. could Court holding relationship enjoined, & provision the Moreover, present that case. Act withdrew N. W. made the strike 4 L.Ed.2d 774 Act that Section court enjoin Supreme a minor of procedures there and the R. R. 362 U.S. at recognized R. one case strikes the strike there could between enjoin R., the strike Court dispute. for jurisdiction 362 U.S. Telegraphers & W. Railway Railway created dispute distinguishable of arising Court discov the (1960). N. unlawful and which again spoke the Norris- the Norris labor strike The Su federal was a out of Labor Labor would from The dis R., in 80 S. v. 9. carriers, C ployees Railway shall cided, arising mination of such and authorized pute.” Switchmen’s 1961), employees * ly, by rier or carriers ence between These sections “Second. “First. S.Ct. * * f. be with all the carrier certiorari to exert out considered, and, Labor Chicago, to settle thereof It All Union, 8 L.Ed.2d 806. representatives shall be the expedition, provide officers, agents, and its or their otherwise, so to Act the disputes denied every or carriers and R. I. & Pac. interested in all 292 for application confer, disputes, in reasonable 370 F.2d the final deter would be unlawful. between pertinent ^[*] possible, duty respective- 61 designated employees * R. R. confer- 936, (2 by *. effort part: such car- Cir. dis- em- de- all 82 v. calling upon rule of procedure for conference thumb which courts too rely scope dispute. These con- often of earlier a minor discuss general legislation place always a sub- more take before are to must ferences light dispute Railroad specific to the reconsidered in the of the of more mission (i), provisions appearing subsequent legis- 3 First Board. § deciding help First lation pres- does not 45 U.S.C.A. Stat. § Elgin Ry. Burley, question. (i); Moreover, ent purpose E. J. & Railway First, L.Ed. 1886 Labor S.Ct. § Second Chica- and purpose Trainmen Brotherhood of R. R. go Sixth “clean supra provision R., anti-injunction hands” River & Ind. First, present statute impossible and Sixth are not Second so inconsistent that already part Labor one accommodate to the Act was other. the Norris-LaGuardia Act when passed. Labor Act See In Brotherhood R. Trainmen v.

First, Second, Fourth, 44 Stat. Toledo, P. & supra, W. R. the Su preme Court held that under section 8 Act Section of Norris-LaGuardia Norris-LaGuardia Act a railroad injunction against states: entitled a strike because the road had refused restraining injunc- “No order or voluntary arbitration, submit to an avail granted any relief shall be tive settling able method dispute there complainant com- who has failed to involved. Ry. Butte A. & Pac. obligation any imposed ply with Brotherhood of Locomotive Firemen & law involved labor Enginemen, Cir.), F.2d 54 dispute question, has who denied, every ef- failed make reasonable (1959) (alternative L.Ed.2d 104 ing) hold fort to negotiation either settle Appeals the Court of for the Ninth or with the aid of Circuit held that an injunc anti-strike governmental machinery of available tion had to be denied under the Norris- LaGuardia Act because the railroad had voluntary mediation or arbitration.” imposes two Section thus quirements different re- procedures abandoned the injunctive on one who seeks settling major Act dispute. in a He relief labor must com- Although in that case. both of these legal obligations ply all his relevant major disputes, cases involved we believe and, further, he must make their treatment of the relationship be every reasonable effort to settle the dis- tween section 8 of the Norris-LaGuardia pute by the methods enumerated. Broth- procedures Act and the up by set the Toledo, of R. erhood R. Trainmen v. P. & Railway settling railway Act for R., 50, 413, R. W. U.S. S.Ct. disputes applicable labor to the L.Ed.534 case This is known the provision before us. See Butte Ry. hands” of A. “clean & the Norris- Pac. v. Cong.Rec. LaGuardia Act. See 75 5464 Brotherhood of Locomotive Firemen & (1932).10 Enginemen, supra, at n. 10. Cf. East Freight Motor Texas Lines v. Interna First, section Second and Sixth Since Teamsters, of tional Bhd. Railway (5 F.2d 10 Labor Act of were enacted the 1947).11 Act, Cir., the Norris-LaGuardia the before with, Supreme complied which the bad not 10. The extent to Court section and this gone compliance despite complained to enforce the fact the has with this acts provision of the Norris-LaGuardia Act caused of had violence. in of R. R. Brotherhood Trainmen seen Toledo, R., Chicago, & R. P. W. & 11. In R. I. R. Pac. R. v. Union, 88 L.Ed. 534 S.Ct. in Switchmen’s F.2d 1961), grant- an certiorari the reversed Cir. denied Court order injunctive complainant ing sug- relief to a 8 L.Ed.2d S.Ct. it was ing Reading sec Thus itself. the brotherhoods would the relevant together immediately Railway they are Labor Act achieve what tions of the adjudication provision the entitled obtain after of “clean-hands” with the remembering by Adjustment dispute Railroad Norris-LaGuardia dispute, Therefore, any Board. re- minor we hold that is a that the here quirement in applicant an section 8 of an the Norris-La- we observe that legal negotiate junction (1) comply Guardia Act that a railroad must all with obtaining including injunction obligations super- before required of it by statutory making seded every set effort to scheme in the reasonable (2) gives Railway Adjust- dispute by Labor Act that conference and tle the power ment Board the every set effort to decide whether reasonable make must negotiation any negotiation.12 there be are should all We tle the management in between draftsmen and the brother- whether not certain hoods. concepts words different tended “negotiation.” See “conference” involving in minor But Toledo, R. Trainmen of R. Brotherhood managerial prerogative scope of the supra, 61, 64 U.S. at P. & W. First, Second it must be However, we L.Ed. 534. to Labor Act and Sixth gether applying terms to find the Norris-LaGuardia Act with controversy present a distinction should duty impose a railroad lesser some negotiate duty to between be drawn injunctive relief. Other seeks which wise, duty “ne confer. We construe and the in which gotiation” full-scale discussion to mean question railroad can contend that disputation. construe “confer We managerial preroga one is tive, committed type activity ring” of a similar to mean tempted not to the railroad will activity negotiation requiring a but understanding try private with to reach energy. output We time and lesser employees, representatives of its a re present make distinction must with one the funda sult inconsistent issue nature of the case because policies of the Labor Act. mental parties. basic divides which dispute Trainmen See under its is whether Toledo, W., supra; P. & Gunther v. San negotiate be existing must Diego Ry., F.Supp. Ariz. E. & Og on the the runs reschedules fore it densburg Therefore, (S.D.Cal.1961). we hold that If the railroad Subdivision. La the relevant sections negotiate required statute the Norris-LaGuardia Act bor Act and the dis it submitted before issue this pute railroad, duty upon impose a short of Board, result negotiation, some reasonable take nego require the railroad to tobe would steps dispute settlement toward before representatives employee over tiate injunction. it can obtain an anti-strike negotiate them—a it should comprehended are These lesser efforts sounding exercise a lot like an solution “conferring.” concept It within the logic. practice thinkWe in theoretical easy exactly not to state what the virtually impossible for the be it would must do in cases in which it railroad negotiate would parties to negotiate. In must confer but need rescheduling negotiate without about the judge apply must each case the district negotiating actually good reschedul- about the experience his sense to the shown, may deprived failed com gested a union be failure is it in Act, junctive long ply Labor 2§ it relief as continues its subject might Long First, anti- be Second dereliction. See also Island R. R. injunction. present Trainmen, in case v. Brotherhood of R. R. strike 185 F.Supp. (E.D.N.Y.1960). situation. rail the converse volves road, perhaps, 356 comply has failed to therefore, and, provisions, voluntary under 12. Mediation arbitration those ara Act, major disputes. its Norris-LaGuardia relevant 8

41 against its tive relief strike of em specific How of the case. circumstances Ry. ployees. Butte, sug A. v. Brother & Pac. ever, steps certain minimum can Firemen, hood of 268 F.2d gested Locomotive sur for the case. Unfair usual (9 Cir.), 864, denied, cert. 361 U.S. prise possi should be avoided whenever 122, (1959). There management S.Ct. L.Ed.2d 104 representatives ble. The fore, we must remand case should labor. Each meet with those of district court to determine whether side should listen to the contentions made efforts settle reasonable the other ex side and each side should Pennsyl dispute in plain conference. See position clearly honestly, but Union, Transport vania R. v. long R. customary Workers not for as a time as is (E.D.Pa.1957) F.Supp. (Finding bargaining. short, full-scale In men of 15), good appeal dismissed, Cir., No. good get togeth faith must in faith (1960). F.2d 693 If the district court er in a sincere effort to resolve so, finds that the railroad has not done it differences. Cf. Brotherhood R. R. injunction should not until the issue Toledo, R., Trainmen v. P. & R. n. W. perfected 18; railroad has Ry., Brotherhood of etc. v. Clerks statutory compliance relief with its R., Atlantic 36, Coast L. R. 201 F.2d obligation. (4 Cir.), denied, 992, (1953); 97 L.Ed. 1400 Amer disposition We believe that this Airlines, ican Inc. Air Line Pilots purposes accommodates the of both stat Ass’n, F.Supp. (S.D.N.Y. 1958); Except utes. for the creation of the Long Island R.R. v. Brotherhood of R. Adjustment Board, policy Railroad Trainmen, F.Supp. (E.D.N.Y. behind both is to facilitate statutes 1960). See also L.N. R. B. v. Wooster private disputes, settlement of see labor Borg-Warner Division of 342, Corp., 356 U.S. Toledo, Brotherhood of R. R. Trainmen v. 78 S.Ct. 2 L.Ed.2d 823 50, 58, P. & W. R. 64 S.Ct. Mfg. N. R.L. Co., B. v. Truitt 351 U.S. 413, (1944) ; Dwellington 88 L.Ed. 534 (1956) ; 100 L.Ed. 1027 Thompson, F.Supp. (D.Mo.1950), N. L. R. Agents’ B. v. Insurance Interna Dwellington, aff’d nom. sub Rolfes Union, tional Cir., (1952). Furthermore, 198 F.2d 591 L.Ed.2d 454 it cannot be said that this result subverts jurisdiction the Adjustment of the National Railroad present In the case the district pri Board because efforts finding court made no whether the man vately required settle a are agement good of the railroad made the Labor Act itself before sub faith efforts which we have held to be a Adjustment mission of the to the prerequisite obtaining by Board. injunctive telegram relief. The that the railroad sent to the brotherhoods on Our decision consistent with September 15 stated “Conferences on this ruling Supreme in Brother Court’s issue property have not been held on the hood of R. Trainmen v. River with the However, [brotherhoods].” R., supra. opinion, & Ind. hearing railroad claimed at the that its especially at footnote the Court con representatives representatives met with cluded that because the September of the brotherhoods on 9 and Act the Railroad created September cannot We determine the merits of minor dis Board to decide alone, from the record without the benefit finality, putes with like the observing witnesses, whether the provisions of the Norris-La other extent of these discussions met the stand injunctive bar did not re Guardia imposed ard Railway we find by is the did not address it lief. But the Court Labor Act. relationship section 8 of self to the provisions of the Labor those If railroad in fact the has failed take regard type which, without steps required by Act of it the the private involved, dispute call for confer- Act, injunc- it Labor is not entitled to agreement party adjust a in the the differences collective in an effort to ence govern industry follow order ter- parties prior

between the agreement any part Therefore, de there- minate that or that mental intervention. having Second, our part of of?1 termination the to this cision is not relevant Chicago accomplished, R. I. been under circum- opinion. what discussion See Union, parties su stances eco- resort & Pac. R. R. v. Switchmen’s nomic pra, scope of decision force? at as to Chicago case.13 Ind. R. R. in the &River My briefly position, summarized, is voluntarily further that Rutland so remanded for terminated Reversed and agreement much proceedings with collective not inconsistent might govern be said opinion. the establish- merging ment of new runs and or and, then, Judge elimination (dissent- of crew MARSHALL, terminals Circuit believing that not it ing). it could secure what through processes desired the normal my brothers, I deem With deference to bargaining, plain collective violated by present the issues case to raised mandates of the Labor Act’s Railroad importance be of such my dissenting a that statement major procedures unilaterally necessary. Be- views is changing certain runs and terminals. termi- cause 6” and contract “Section enjoined by This action should have been nation notices Rutland served the District Court. It not does follow I also issued the Class rail- most of changes prevent a that strike to such was pattern country, roads in the factual since, justifiable, however, my view importance. us before is of national least, remedy a in the courts was avail- says majority Much of seems to what able to the union and should have been put quite cor- me not well but also therefore, would, I resorted to. have disagree I rect. do not with their treat- enjoined both Rutland the Brother- problem, most of ment the venue with engaging self-help hoods from until general a statements as to when major dispute proce- exhaustion of the legal illegal Rail- is under the strike dures. way that the assertion radically majority’s “labor, The conclusion dispute” is in this case. involved They explicitly hold strongly different. disagree, however, I the es- insofar as dealt with they suggest that result reach and would of runs terminals was actually tablishment say incon- much of what silentio that there not terminated and sub with that sistent result. way in which to terminate in fact was correctly prin- majority states the The They enjoin the union’s use of eco- it. be- cipal to be issue therefore, pending force, exhaus- nomic “major” or “mi- tween dispute pro- tion of the drawn-out That Labor Act. under the nor” Rutland free to act cedures and leave general- however, proposition, unilaterally. problems pose the ity we fails to that it meaningful “major” fashion. and “minor” words have must solve legal significance. ques- legal They are here involves two no intrinsic terminology railway First, procedures must from the what derived tions. principal to be rail- seems to me also assert This defendants 13. The injunction agree would be- in the case since I entitled to issue is not road provisions complied relevant contractual if the with the non- it has cause terminated, imposed duty statutory. hands had not been clean decision jurisdiction clearly governed by would Brother seek invoke who all equity. R. Trainmen believe hood of & I. We court scope Ry., present of this non-statu- L.Ed.2d ease greater tory obligation is no than obligation imposed by statutory Act. Norris-LaGuardia

4g judicial- provides compulsory are used While Act industrial relations way merely ly disputes, of refer- arbitration of minor it leaves as a shorthand major ring incorporated disputes in the resolution of to free to a distinction bargaining Labor Act. collective and the use of eco structure of the subject only nomic statute, however, not use force itself, does to certain man sig- datory legal procedural requirements. words. The distinction 5 governs solely procedure Act estab- to be nificance followed because mandatory changing pro- agreements affecting in mutually lishes work exclusive ing resolving Any party desiring in two conditions. cedures to be followed change give days a disputes. must different kinds of written party. notice party to the other Either Disputes involving grievances or con may request then the services of the interpretation questions are to be tract step Mediation may Board or Board 3 First. Under handled under Section in on its accord under Section 5.6 Under provision may party submit either working pay, rules, Section 6 “rates of Adjust appropriate to the conditions shall not be altered” until final binding” ment Board for a “final and by action the Mediation Board under Sec meaning of the contract. decision on prohibits tion changes 5. Section 5 properly A strike over submit pay, rules, working “rates of condi may en ted to the Board practices” tions or established until joined protect in order the Board’s days after the Board has notified the jurisdiction. Train of R. Brotherhood parties mediatory of the failure of its Co., 353 Ind. R. men River & 7 empowers efforts. Section 10 the Presi 635, 1 L.Ed.2d U.S. S.Ct. dent emergency establish board (1957). And, appropriate circum after the failure of mediation efforts stances, enjoining court condi provides by change, except “no injunction upon preserva tion strike agreement, by shall be made quo management of the status controversy out conditions adjudication pending final the Board. thirty of which the arose” until Engineers days report of Locomotive after the Board makes legislative history Co., President. Missouri-Kansas-Texas indicates that when rail 1326, 4 unions L.Ed.2d 1435 agreed upon provisions, carriers (1960).3 the unions surrendered their railroad in labor contracts But pending major strike exhaustion of dis perpe dustry in force in do not continue exchange pute procedures in for a statu parties so desire. Like unless both tuum tory restraining provision management agreements, many are sub familiar disturbing quo.8 change, process status These' ject termination and “cooling-off”10 by party,4 which, provisions is char “freeze”9 or invoked when major dispute. as a acterized have been held to be enforceable Pennsylvania 2. 153 First. § 45 U.S.C.A. Co., America v. 224 F.2d (3 1955). Cir. majority though believes a 3. Even 5. 45 U.S.C.A. 156. involved, § does not applicability of that decision discuss 6. 45 U.S.C.A. § 155. agree I cannot this case. Since 7. 45 U.S.C.A. 160. forgo dispute, shall also a minor I Cong.Rec. 4524, 8. 67 4588. See also com discussion. ment, Enjoining Maintaining Strikes and palpable Presumably, breach of con 4. Quo the Status Labor Dis would be in of Section violation tract putes, 60 Colum.L.Rev. infra, accompanying 6, see note Chicago, Rock Island & Pac. R. Co. v. days requires text, written no Union, Switchmen’s F.2d of an intended tice 1961). Cir. major therefore also create a and would dispute. Cong.Rec. 4648, Cf. Railroad Yardmasters 10. 67 * * * * * * any operate Brother International run courts. Grand Cir., (2 through hood, Morphy, 109 F.2d 576 established etc. crew terminals.” day 1940); This was a cert. denied 310 U.S. notice of termination explicit provisions, Railroad of all 84 L.Ed. 1404 contractual Co., relating Pennsylvania implied, Yardmasters to establishment 1955). (3 Cir., of F.2d 226 new runs and Rut- crew terminals. land, by invoking thus of the Section 6 however, provision made, No Act, provisions and the termination is- compulsory of substantive resolution contracts, notified the Brotherhoods major parties disputes, and sues in that it desired not all to terminate after are economic force free to resort to provisions, practices restrictive and even Chicago exhausting procedures. ambiguities all as to the establishment 24; River, supra, at fn. Order runs new but also that it wanted Co., Telegraphers N. W. & explicit provision incorporated in a new 761, 4 L.Ed.2d 774 agreement upon which would bestow Chicago, Rock Island also See change prerogative the absolute to crew Union, and Pac. R. Co. v. Switchmen’s thereby voluntarily terminals. Rutland Cir., 1961). 292 F.2d 61 agreement terminated the old to this ex- framework, legal to I fail Within major dispute pro- tent and invoked the pre- pattern here grasp factual how Having them, presum- cedures. invoked by the encountered the difficulties sents ably it was bound them. 2,1959, majority. Rutland On November Nevertheless, September “under Brotherhoods notice on served major dispute before exhaustion of existing agreements pursuant our procedures, in- Rutland that it announced Railway Labor Act” provisions of the unilaterally runs to establish new tended contract, “effective newa that it wanted changing thereby terminals crew certain effect 1960,” January 1, would which through operate these runs other regula- rules, “agreements, eliminate all major established terminals. Since the practices, how- tions, interpretations and dispute procedures require that the car- restricting established,” the car- ever change “working conditions,” rier right runs and new establish rier’s “ practices,” or “condi- “established explicitly [establish would also which * * * dispute arose” un- tions out which the provide [t]he that a rule exhaustion, action right Rutland’s til their to estab- have shall carrier plain crew of the move, abolish violation lish, consolidate and * * * called a strike Act.11 Brotherhoods terminals might provisions moreover, would, Arguably, It it most. seem direct- contrary merely ly collective mean that intent of Section 6 read ambiguities, contemplates proposal agreement, is to all its which pending changes par- exhaustion force whenever the remain procedures. provi- major dispute Under ties desire and which contains Adjust- during restraining view, occur could sions its use until an subject might period involve the ment Board decision has been rendered major dispute. meaning In such a on the of the old contract. matter of the case, preferable however, case, the union would still be view is changes existing ex- the issue after strike over conditions which free major procedures. subject major dispute of a are are haustion contrary holding argu- mean am- would forbidden whether or not are A biguous ably agree- in a collective terms authorized the collective subject through provisions carefully not be ment. The “freeze” would bargaining meaning agree- until avoid reference to the collective collective ment, emphasize “working determined but been had conditions” effectively lengthen 6), (Section practices” (Sec- would “established This Board. beyond 5), the in- the contract the term out of “conditions prohibit (Section 10). and would arose” tentions This is through bargaining parts collective contrast to other clarification provisions and, indeed, itself, those contractual which need Section 6 which refer changes an- unilateral place? Plainly, purpose because first Rutland’s by enjoined by ambiguities13 and were Rutland was agreement nounced to eliminate the in the majority which the admits Court. District the sending upon exist in fact relies in action, reviewing I should have that Adjustment case this to the Board. I be question would thought principal the any language have not found to strike free was union the whether policy statute or behind it which would illegal or actions against Rutland’s prohibit nullify this use of Section 6 parties in of both conduct the suggested in by majority. the manner the proce- dispute major derogation the through I believe that clarification collec- balance, I enjoined. On must be dures bargaining ambiguous tive provisions contractual both course adopted latter the have would purpose is a most laudable the courts grounds resort that on the encouraged should be rather than ham- kind of self generally preferable to this by pered Moreover, the courts. the ma- grounds further help12 on the jority inexplicably ignores paragraph major “cooling policies of the off” B(l) paragraph of the notice. That ex- be effectuated procedures dispute cannot plicitly notifies the unions that Rutland simply to do allowing both seeks provide to “Establish a rule to problems have away Act. These with * * * 1. The Carrier shall have the however, irrelevant, the ma- become right establish, move, consolidate and dispute is jority has concluded * * * abolish crew terminals ”. Sure- by Adjust- an resolved and must be ly request incorporate a comprehen- mean- Board determination ment sive clause such as must this be said to agreement. ing the old change ambiguous contract or an majority by the asserted One reason agreement containing explicit no such support seems to be of this result in provision. paragraph B(l) That encom- sufficiently not 6 notice was the Section passes dispute plainly evident, here is dispute. in cover the matters broad to majority present itself states the quotations notice are set from the Two * * * “disagreement [is] whether apparently out, demonstrate that management of the railroad had the away re- to do was intended * ** crew ter- managerial prerogative on the strictions minals.” majority then to establish new runs. majority “major-minor” states the explicit in restrictions finds there are following distinction in the fashion: agreements, and, therefore, the Sec- major encompass pres- this notice does not “It is a if tion 6 why true, dispute. if all did ent But this between the railroad pursuant express and the provisions contrary Rutland serve notices Sec- brotherhoods contain position in contracts tion 6 and various to the directly “agreement” when 47 S.Ct. to the neces- L.Ed. 248 sary. legislative history Corp. Moreover, but see Mastro Plastics B., provisions v. N. L. R. “freeze” statute shows the “cooling 100 L.Ed. 309 off” were intended enforce upon management period both labor and Existing ambiguities in a document can- industry. railroad See Note not be cured the continued silence of supra. policy But cannot effectu- parties. Obviously, therefore, Rut- management is allowed to ated take contemplated notice land’s insertion ambiguous advantage of an contract dur- provisions new which would either affirm- ing changes “freeze” make atively prerogatives establish working relating dispute. conditions would direct Board to likely far Such action is more to warm follow a rule of construction which would up the than cool it off. prevent “interpretations” infringing Bakery rights. Cf. Sales Drivers Local these Either course would re- Wagshal, quire provision “change” new and a (1948); Dorchy existing agreements. Kansas, L.Ed. 79 clear ifor in- taken implication show solicitude for one who agreements is procedures voked but the termination pro- the railroad’s later still claimed the inconsistent posals. party It is a minor if there effect when the other refused to clearly governing provision is a meet his demands for a contract. new although present agreements, significance today’s But the decision ambigu- precise requirements are hopefully transcends the immediate and * * ous; temporary problems Rutland Rail- employees. road and its There is much might statement a correct While majority opinion implies in the 6 in the absence of a Section of the law major dispute there cannot be a if the entirely suggest notice, it is I would agreement “ambig- relevant contains an been a notice has once such erroneous uous,” “clearly governing”, provision, but majority opinion itself at served. The regardless of whether a 6 notice Section major disputes point one concedes that quotation has been served. The notice under Section commence with preceding paragraph seems to be to that so, Moreover, under the it must be Along lines, effect. the same is reliance party to ter- is free Act a placed upon involving “a number of cases ambiguous contract minate an disagreements one in the similar going making explicit without hope it case, present clas- courts have [in which] Adjustment Board for a determina- to an sified the as minor.” In all but meaning. precisely This is tion of one, however, there no effective was Sec- attempted re- do. The Rutland what and, therefore, no effective notice ma- placed and the Rutland liance jority upon agreement.14 termination of the Railway agreement is collective system Labor Act establishes utterly the Section with inconsistent bargaining, of free collective Section 6 by that intended notice, Rutland being integral system. part an of that away and do to terminate notice designed party It is to allow either provisions which very contractual same agreement, whether or not terminate And, strenuously upon. relied so are now bargain meaning clear, freely is relying pro- inconsistency subject provisions only to new cer- over magnified the notice was since visions procedural requirements. To hold tain upon clauses the termination also based inoperative rendered 6 is say Section agreements. I dare the same' gov- ambiguous, clearly is an but there contract commercial if this were agree- present erning, provision in the provision, would day we termination a 30 Co., grounds & M. R. and remanded on other Hudson vacated Matter 14. In the 278, 1609, (S.D.N.Y.1959), F.Supp. aff’d 4 L.Ed.2d 364 U.S. 80 S.Ct. notice). (1960) (no General section Of per Stichman v. sub nom. curiam majority, of R. cited the Bhd. cases Comm. Grievance Trainmen, Pennsylvania 1959) Co., (2 Hilbert 290 F.2d F.2d 941 Cir. 1608, 1961) (7 843, Cir. cert. denied 368 U.S. 80 S.Ct. 363 U.S. cert. denied (1960) (proposal (1960) 82 S.Ct. 7 L.Ed.2d 96 L.Ed.2d withdrawn); involved a 6 notice. I would sub Nor Section amend mit that decision is erroneous. of R. Brotherhood L. R. v. & B. folk P. majority 1957) (4 omits decision Trainmen, one involv Cir. F.2d 34 ing to the one in “similar 355 U.S. denied present Telegraphers (no case.” Order of R. (1958) no section 6 2 L.Ed.2d Chicago Co., N. ; & W. R. tice) Co. Missouri-Kansas-Texas Engineers, 4 L.Ed.2d 774 A Locomotive oase, 1959) 6 notice involved (5 on other rev’d Cir. F.2d 335 Supreme found it to and the Court be a grounds major dispute. 18,. infra, (1960) (no See Note no section 6 L.Ed.2d accompanying text. tice) ; R. Co. v. United Baltimore & O. 1959) Workers, Cir. F.2d 87 op- give precisely decision, basis of that effect I would submit the ments is to it an governing deprive posite and to been intended consideration must have to that bargain Otherwise, free- Section 6 notice.17 indistinguishable ly. case would have been from the Court’s decision in majority by the created The dilemma River, supra, and all the other cases says, neatly posed when opinion is g. which have followed it. E. cases cited expira- upon brotherhoods, “[T]he 14, supra. profitable note The most may re- existing agreements, tion of inquiry majority how to bargain” over quire distinguish Chicago Ry. and N. W. only manner dispute. But issues distinguish this case but how to it from existing which the finding disputes. all the cases through pursuant to “expire” notice perspective, Viewed from that “un the parties, none since the one certainty” any Butte, expira- case, vanishes. fixed contains a contracts of these Presumably, Ry. the union if A. & Pac. of Loco date.15 tion Sec- issued a had, Firemen, on November (9 motive 268 F.2d Cir. stating “elim- to desire 6 notice 1959), denied, cert. 361 U.S. regulations, rules, agreements, all inate (1959) precisely 4 L.Ed.2d 104 is on however practices, interpretations and point explicitly supports my and view allomng es- established, to the carrier grasp I the not statute. do how it cow- the union’s without tablish new runs asserting disposed simply by the a rule that to “establish sent” and the facts different.18 As for are Hilbert right to estab- have the not carrier shall lish, move, Pennsylvania Co., 290 F.2d crew terminals consolidate 1961), denied, Cir. through established operate runs (1961), L.Ed.2d 96 relied terminals, union’s cow- without the crew majority, I would on the decline to ruling majority’s not sent,” would the it since it also on the follow seems based significantly dif- vary.16 is not Yet that inop erroneous notion that Section is Telegraphers v. from Order ferent existing agreement erative when is Co., & N. W. ambiguous. 4 L.Ed.2d 774 Supreme held a that Court reading My of the statute and of sub- major- dispute existed. While major judicial interpretations sequent me leads entirely as majority adopted ity “not certain” has believe the a provided it was to does not use the contract The statute itself words 15. Each changed major and, therefore, provides until accord- and minor in effect remain Railway. judging magnitude. Labor Act. The no standards for ance with the majority’s decision, Adoption engulf there- the thrust test of such a would us possibility, inquiries fore, is to as eliminate in sterile when does a dispute big to restrict the freedom and termination on a railroad little become a collectively. bargain big a little railroad. On the hand, might tip one it the tactical bal explict grant 16. Since there by allowing management protec ance rights and there is an carrier equity tion of the arm of the federal provi- clearly governing, ambiguous, but long, so as it bit off a courts little at a majority’s sion, for criteria deter- attempt get every not time did mining a minor exists would gulp. thing hand, in one On the other Surely the fact be satisfied. major application literal gave notice here does not carrier encourage might unions to strike over distinguish two cases. That serve every simply, big to show how anything, help factor, would broth- was. erhoods. ruling from our 18. Butte differs Stich- stating majority man, supra, correct note 14 as The effect upon working magnitude of a notice. of the effect Section 6 withdrawal governing here, however, not is not factor. notice withdrawn. conditions Kahrs, Nelson, W. view which does much violence A. H. Robert H. W. bargain- Fanning policies Wichita, Hite, to our of free collective and Richard C. ing notions of appellants. Kan., but also to traditional must, therefore, I contract. freedom of Clayton M. Davis Mark L. Ben- dissent. nett, Topeka, Kan., appellee. LEWIS, Before MURRAH and Cir- Judges, Judge.

cuit RITTER, District RITTER, Judge. District These actions arose out of a railroad crossing appellee’s collision between (herein defendant) referred to as train and a truck which the husbands etc., al., SHELITE, Joan et Carol appellants (herein the three referred to Appellants, plaintiffs) passengers. col- crossing lision occurred at of de- CHICAGO, AND PACIF ROCK ISLAND fendant’s track and main COMPANY, a cor IC RAILROAD Haviland, Kansas, street of town of Appellee. poration, some six hundred inhabitants. 6837-6839. Nos. predicated Plaintiffs’ were claims Appeals Court of United States alleged negligence on Tenth Circuit. operating speed its train June seventy-five per hour, permitting miles to be structures built on the railroad’s way, which blocked the view of oncoming train, maintaining

the faulty and in inadequate signal devices at crossing. neg defendants denied ligence alleged neg contributory ligence of the deceased husbands as de fense. granted The District Court defendant’s motion for a directed verdict and the question appeal plaintiffs is whether go were entitled have their case jury. that, plaintiffs’ own evidence shows plaintiffs’ husbands, sitting the three in. truck, talking the back seat facing to and supervisor, work who. sitting driver, next to the until the accident, moment and that approaching no effort to look for made trains, could; vigilance part when on their prevented have the accident. passenger Under law Kansas duty a vehicle is under a look out for crossings. at railroad trains The Kan Supreme sas Court a recent decision contributory negli test of noted that the gence passenger for a in Kansas “has. years.” varied somewhat over the How-

Case Details

Case Name: Rutland Railway Corporation v. Brotherhood of Locomotive Engineers

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 18, 1962

Citation: 307 F.2d 21

Docket Number: 259, Docket 26760

Court Abbreviation: 2d Cir.