Washington Terminal Co. v. Boswell

CO. v. WASHINGTON TERMINAL al. BOSWELL et

No. Appeals

United States Court of Columbia. District 18, 1941.

Decided Nov. 21, 1934, 48 Stat. U.S.C.A. § seq., et passed. The latter established the National disputes arising settlement of under agreements collective between the carriers employees. and their The Board’s awards not enforceable it. But awards in employees may favor of be enforced begun suit in district courts within two

years from accrual of the causes action (p), them. U.S.C.A. First (q). Act gives In such a suit the the employee advantages. definite and substantial Id. (p). expressly en- It does not make the suit exclusive of others to de- forcement rights arising under termine collective question agreements. The this case impliedly, as whether it has done so to a employees who have utilized adjustment procedure procured otherwise, issue is award. Stated carrier, unsuc- which has been whether a Board, can maintain a before the cessful declaratory judgment for suit agreement original under collective years Act which the allows during the two employees’ enforcement suit. We for negative, and the answer should be think the District Court was therefore carrier, ap- complaint dismissing pellant here. in Moore v. Illinois Central The decision Co., 1941, 312 U.S. S.Ct. R. 1089, rendered since this case 85 L.Ed. put point beside the argued, has was argument here. The case much Railway Act Labor does that the held employee bringing preclude damages alleged wrongful dis- for for suit Dickinson, Philadelphia, Mr. John contrary agreement. to a collective charge Walker, of Henry L. Pa., whom Mr. with however, employee, plaintiff had be- brief, ap- C., Washington, D. was gun his suit before administrative ma- pellants. chinery had been set motion. The de- Toledo, Mulholland, of L. Mr. Frank that in such establishes circumstances cision Ohio, H. Mc- whom Messrs. Willard general with excluded the Act has neither Ohio, Ewen, Toledo, William E. the courts nor made ex- jurisdiction of C., Washington, remedy pre- D. were on Willis, of administrative haustion exercise, brief, appellees. requisite to its decision might be determined controversies STEPHENS, MILLER, Before At statutory method. the threshold by the RUTLEDGE, Associate Justices. controversy accordingly, the disputants they may fol- routes have alternate RUTLEDGE, Associate entirely judicial, Justice. without re- One is low. Act, Railway Judgments Labor Act. The other Declaratory Stat. gard to according judicial, 1934.1 One week Act, administrative was enacted June Act of terms. its later June August 28 U.S.C. 400. was amended Act of 49 Stat. The Act nor use the station’s presented tenant lines—which But Moore case neither whether, question when one terminal facilities. decided adjustment procedure put party has rejected claim. Plaintiff defendants’ may disregard it en- the at operation, tirely other joint make a Thereafter invited it to subsequent have a stage dispute to the Board. submission of of the issues determination But, Act entitled Plaintiff as the declined. From the provided by the Act. than do,4 it. submitted them defendants directly may into go party either fact that proceed- thereupon appeared in the Plaintiff independ- beginning for relief court in on the merits ings made full submission statute, not follow it does ent statutory provi- in accordance the ad- short-circuit or the other he sions.5 proceeding while it ministrative Division, Board, acting by First progress or the appointed as A deadlocked. referee in such an event bring- years allowed during the two and, with requires true, the matter That is whether ing it.2 participation, the Board’s award was his involving the existence of regarded held made October independently in the courts perform contract entitled judicial discretion merely sound the Act question. day work The same the the in its exercise. employer to ordered the make Board award effective arose In this case days. thirty Plain- within February 1, agreement made collective Instead, complied. on Decem- has not tiff plaintiff and two between the 29, 1938, it filed this suit. It was be- ber unions,3 represented em- which labor therefore, slightly more than one gun, The who ployees are defendants. employ- day which the month from seniority other rights and agreement fixed award, al- arose on cause of action ees’ employment and enginemen terms of years gave to though the Act them two sue they In 1934 defendants asserted firemen. provision for made no an em- upon it and agreement per- to entitled under were set it aside or restrain its ployer’s suit to work which others previously form certain enforcement.6 chiefly consisted mov- done. This in had I. cars from empty passenger storage ing adjudication for Passenger an yard the Union Terminal suit asks to original C., contract. Washington, rights under the It seeks D. and in vice Station versa, respective- that the Board’s award following, preceding also declaration void. Whether not the departure and arrival of trains on and order are ly, the and those of the administra- regular issues suit runs. train interstation proceeding are identical in all re- done and still this work. tive spects,7 had do crews employees to extent of the are so that each They are railroads —called require ings throughout questioning be con The facts us to without do question power in suit to make an It with the whether Board’s award. cerned plaintiff dependent of could be institut need not be decided whether the statute expiration might appearing party after have refrained either ed participating. two-year period. so, But cf. infra this elected do proceed opinion. full thus had the benefit of the Engi- ing. proceeding If had been a of Locomotive suit in The Brotherhood court, appearance would have and the Brotherhood of Locomotive been a neers general Enginemen. one. Firemen and (i), have been stated § First 45 U.S.C.A. The facts Section private requires negotiation (i), A outline. more detailed First essential state- dissenting operating appears opin- up chief officer ment able the carrier’s handling ion, provides: “but, disputes, and to which reference made the in- economy adjustment space. failing this terest of reach disputes (p), manner, Under Section First be referred U.S.C. employee’s (p), party peti petition First § either A. appropriate Ad- in the enforcement suit division tion must set * * justment causes for forth which he “the claims re 5 Although plaintiff lief, order of to make the division declined joint submission, premises.” when sub Board in the defendants He dispute plaintiff mitted the no ob is not limited stated in made matters jection ap award, Board’s nor is the carrier in its defenses. necessarily issue, peared participated proceed matters are But those too, provided review question whether the collective the method of involves the interpreted, If agreement, rightly gives Congress was intended to be exclusive. Declaratory Judgments the had intended employee do defendants generally parties, dispute. is the fundamental to be available to the That work effect, regardless there- presented in fact award had issue both. fore, terms, declaratory judgment favorable been made of its could there nullify plaintiff award. have been no substantial for includ- would be to reason Railway essentially Consequently complex this one Labor Act suit in and detailed review it. Whether were for the enforcement otherwise, or, allowing matter, any special the suit favor or method plaintiff’s deprive especially, More to be maintained review. there could employees special advantages writing into have been no reason highly impor- confers in the enforce- the statute the unusual and the Act' them special advantages given em- ment suit. tant ployee seeking enforcement. Congress We think that do intended be reviewable in the Board’s awards to Congress advantages intended these Act makes manner. The something. They nothing mean to mean nq provision for review such. But They as this can such a suit be maintained. special set forth a definite scheme does very advantages. They substantial are securing judicial determination (p) Section First conferred award or is not in le- accordance Act, (p), 45 U.S.C.A. First parties. gal rights the scheme w.8 purpose in full Their is set out belo is, adequate, constitutionally, as think we seen, effect, equalize will is to not believe do intended we burden, ex-, otherwise, financial be circumvented should free resort it. litigation tended as between judicial review forms of or deter- contemplates the carriers. The Act suits merits de novo of the of the con- mination employees well as individual as labor troversy. unequal recognizes It the finan unions. litigants position of when rail cial the Congress provision had made no way pits strength against his his laborer judicial review, for in the broad we sense may employer’s in Whatever indicated, court. be true general applicability the unions, individual not Declaratory do Judgments Act, adopted the departments, corporate legal simultaneously, might sus regarded be maintain almost public. supplying as from But revenues derived the matter tained omission. attorneys’ an omitted They charge not This off one. is shown cannot fees conclusively by presence expense. Often re their own business plan inadequate Labor Act of the detailed review. be to secure for sources would com is shown further petent sought the character counsel. The relief often plan’s show, details. We things recovery money, think these include does not so generally they findings and are the and ones such suit order of when dispute, proceeding Adjustment the administrative division of interpretation, prima and the award involve and shall facie evidence the facts be application agreement. stated, except peti- The suit is de and therein novo, merely proper. not one review for be for costs in tioner shall liable comply any “If a carrier does not nor for an district court costs subse- Adjustment quent stage proceedings, they order of a division of the unless upon appeal, Board within order, limit in time such his and such accrue costs petitioner, person paid appropriation or shall whose be out of may expenses made, benefit order was file of the courts the Unit- petitioner finally the District Court of the United If the ed States. shall States prevail the district in which he or he shall resides allowed reasonable principal attorney’s fee, which is operating located the to be taxed collected carrier, through office part or the costs of suit. The operates, petition empowered, setting district are courts forth briefly governing the causes- for which he rules of the court claims actions at relief, and law, the order of the division of to make such order and enter such Adjustment premises. Board in judgment, writ of mandamus or other- Such spit may appropriate the District wise, Court of the to enforce United proceed States respects shall , in all set the order aside of the division of .as , other suits, except civil that on Board.” trial .only pro extent, contingent payable from least introduces fee to some when he recovery employee’s findings Though ceeds re or the and order in evidence. frequently they may they finally, sources attractive. would not be not make his case inequality and do recognized initially. They so bring this also to the court Hence, weight undertook reduce it. of decision on facts and law fee, provides attorney’s recovery experienced contracts, disputes men employee proceedings special complicat- if in the suit. successful of this (p). First Costs of liti ed adjustment pro- U.S.C.A. character. The whole gation prohibitive, particularly up point award, alone findings are cedure people suing individuals. and laboring appears order to be con- petitioner Hence structed that it is idea exempted payment, suit is their ex lawyers, from business of but is the business of cept appeal. men, those that managers accrue his railroad workers and alike.9 litigation may highly important, Situs That does not their findings make and de- expense, probative; also as a matter of the com cisions less rather should plaining employee. They sue Hence he make them more so. know the lan- guage,10 where he or where the carrier’s purposes resides functions of rail- principal operating office located. Choice roads and agreements. of their collective unequal litigation of venue in be judgment which is Their by experience is informed advantage cause financial in negotiating administering these con- party may be they, mean difference perhaps tracts. Because of bet- asserting tween lawyers, one’s court qualified interpret ter than are foregoing altogether. them All ad these apply not, them. Whether so or vantages, venue, exemption choice carry weight should when the costs, payment recovery attor stage controversy is reached. ney’s successful, fees intended assumed, are therefore, It cannot be unequal ordinary gen make than in less effect, merely findings have no substantive litigation employee eral the- contest between finality, given because were not as to over work and and carrier the terms They probative, either facts law. equipped The latter value, done. merely presumptive having ef- litigation, to the last resort. The for fairly comparable expert fect tes- equalizing struggle mer not. timony. somewhat, Congress recognized that advantages All these the statute justice in too often is blind financial makes incident the enforcement suit. parties equality litigation, between the They any cannot be had in other. We they especially employer when are and em power grant Yet them this one. ployee, has determined that it shall argument it can maintained entirely disputes. not be so in these aside, they if brushes them were mere em The statute also relieves procedure, affecting matters of the sub ployee provides of another burden. right. With stance of decision or that we proceed the enforcement suit “shall all many agree. cannot cases their absence suits, respects except as other civil that on mean denial of decision and of * * * findings the trial and order right. securing In others the burden of Adjustment Congress of the division be increased. When these would advantages, we think prima shall be evidence the facts intend facie created it they First ed should be available suits es therein stated.” U.S.C.A. all § awards, sentially proof, making for of the Board’s (p). review The burden of case, may any during years well prima be financial as at the two allowed facie rate procedural, heavy. bringing The and it enforcement suits. We do this, up employee it meant to set a race dili- statute relieves the believe Adjustment Unique ap shown, infra, road Board: A Ad As will be the Act Agency pears designed (1937) ministrative 46 Yale L. to reduce resort 567, 569, following note 10: for determination of these contro J. “The courts superintendent minimum, with bulletin was issued versies to a consistent Ry. adequate protection Jose, Pacific of the Southern in San constitutional disputants. Cal., on 1928: ‘All Dec. Yardmasters: yardmen date, Effective all cannon-ball yard vocabulary drags bringing An railroad out instance service ” points Garrison, Rail will bleed and cut own cited in The National side cars.’ views, ar- As the extreme employer and gence between thes.e gument intend Congress court is made that did into the other which could beat see more, prior to provide nothing Act The terms of award made. after an Act, award, (p), clear- institution suit First to enforce particularly Section complicated method will be than an Yet that elaborate ly negative such idea. private, negotiation. In this voluntary than of allowing other result inevitable conception pri- becomes a mere period the Board during the suits quasi- go-between, purpose vate without arbitral or Congress had no limitations. judicial powers, public em- institution. advantages not a give to the language, pur- employer argument ignores to The ployee beat his if' should he poses statute, courthouse, away both in and effects of the but to take them is true administrative those That come in second. he should judicial It dis- employer’s to re- enforcement of awards. one whether the basic, too, award, regards, progressive and set strain enforcement of void, reinterpret aside, integral structure of the statute. declare it up- effects with same original contract statutory process The has three entire full carrier can have on award. (1) primary stages: direct ne distinct and proceed- advantage of the administrative disputants; (2) gotiation ad between the successful, it will ing,11 on the chance determination; (3) ministrative it- relieve yet when the event is otherwise distinct, While these enforcement.12 circumventing disadvantages, of all its self independent. related they Each is are not proceed- employee’s rights by judicial links in the others as a chain or succes available, ings in which are not steps stairway leading decision. in a sive become, final- Railway Labor Act will have voluntary. private stage first The awards Board’s ly, voluntary, though dead letter. The in our The second is public in- nothing private. than third is more view not The would amount exclusive, compuls though we think disputants, like that nocuous advice 'differences, Despite each ory.13 these Railway Labor Act provided for under up special stage relation to and effects (1920), 41 Stat. 473 U.S.C.A. § the other. new (1926), proposals mere having not the force of an agreement, even language regarding If that law of contracts. offer private negotia phase is not second award, of an the Act and result of 3 establishes the Section tion. nothing. much ado about Congress went to “jurisdic gives its first division Board and legislation would disputes effect of the involving chief train- and over tion complicated machinery, employees.” much 45 U.S.C.A. yard-service create be'to delay con- (h). is referred producing First capable of private ne disputes which after unsuccessful in settlement fusion 'by object “by petition the Act to end gotiation, the avowed Id.(i) Awards must be -party.” not be- either We do expeditious decision. writing such con- “shall be intended stated in lieve .final except upon parties” as to binding both seqüences. 1938, ment rier. Board’s cases, makes dered, Spencer, awards, on ion. such ployee advantage, ^[11] According If none Of denied petitions were sustained to set approximately remedy no and dismissed contrary, awards it provision is when total conclusive (1938) aside National exists, exists. Of. to statistics were 888, least successful or review 3,134 in favor of the car or remanded the carrier has the employee determination. one-third sustained doubtful Railroad infra this Since the decisions available unfavorable before the may whether Adjust in 107. 1,745 opin have part ren em If, review would be without benefit quire, dicial ment tive determination advantages. First (a-o), Sections (p), (q), 12 Stat. The Act First First suit. (p), (q) (1934 48 Stat. independently 2 negotiating 1186, employee (i) Stat. (a-o) (First Section (1934); permits, 1191, 1189-92, (1934); to to phase Tenth), 3, 45 that of administra 45 U.S.C.A. §§ First but does Sections bring Sections U.S.C.A. and that of 45 U.S.C.A. §§ is covered (p). statute, First enforce- not §§ First First ) 152, 153, . ju re- (i), lit. by quences favor- given When which it has to awards Id.(m). money awards14 as to ing employees, their character is petitioner-employee, award favors the so. improbable do order, make its intention to directed “an Board must make it effective.” That it rather carrier, has done so indicates the award to make * * * per- agency regarded public “petition the Board as a Id.(o). “Jurisdiction,” upon forming public There binding functions. party,” “final either Congress resorting order, point been directed to have no parties,” “an both juris- sug polite to establish define the Board and carrier,” not words of these are powers intended duty, diction not of if it had gestion. They are terms of decision, func- merely private agency to be a and its power They force. describe have merely advisory. is tions advisory That That could intermediation. not mere And by private arrangements. en power been done though has no true the Board experience by decision. with the 1920 Act demonstrated than force its orders otherwise procedures that such a failure. orders were In that the awards and a kind administra be said constitute public agen- The view that Board is a is declaratory judgment. This view tive cy doing support also public work derives not, consistent, too, with as the other is history long legislative from the objects, avoid expressly declared “to Act’s Railway Labor Acts.16 * * * interruption to commerce in Moore But is said the decision orderly settle provide prompt Co., supra, Illinois R. and lan- Central griev disputes growing out of ment of all guage opinion, establish that Con- ap interpretation or ances or out private gress intended the Board to be covering agreements rates plication of private, ad- agency and its awards to have rules, 45 U. pay, working conditions.” visory character. conclusion is drawn This paragraph (Italics in this S.C.A. 151a. § because, according opinion, the Rail- supplied) way Acts not been “based provisions also The enforcement compulsion,” were philosophy legal but phase not administrative is show system peaceful intended to create “a simply “private negotia merely advisory or adjustment voluntary in its and mediation shown, giv has been awards are tion.” As nature.” legal enforce effects in the en substantial phase. argument private In addition those mentioned ment confuses previously favoring voluntary cre quality awards character. It also always present action in their favor. ignores ate causes of limitation private (q). language imposed by First judicial U.S.C.A. Mere the facts con power, go-betweens thing unless cerning have no such which it is used. It is one agents.15 that the award It true intended an administra hold nature, legal voluntary determination. remedy a conclusive tive any decision, philosophy legal compul adminis That is true also of based another, judicial, entirely which is different reviewable trative or sion. one, novo But determinable de the courts. it intended the to hold that mean that decision vol legally ineffective when resorted to that does disputants. Keeping open amounts mere untarily effect or that it If we assume Con channels before private advice. the usual relief advisory action gress attach to has been set could the administrative entirely intermediaries the conse- private consistent with and motion of mere partisan provision qualified something representa course, the ab This private provision tion, agency. for enforcement is not that of sence provision of Section The Board and its divisions act in their Board findings capacities making (p), and order shall when that official awards. First Report Attorney prima facts stat facie evidence of Cf. Final Gener be ed, note 36 enforcement suit. Cf. al’s Committee on Administrative Proce in the (1941) dure infra. bi-partisan, Spencer, see Board is U.S.C. For The National Adjustment (a), (1938); [Id. its divisions First as are Railroad Gar- § paid by rison, (h)], members are The National Railroad and the Unique Agen- parties But awards A select them. Board: Administrative who only by majority and, cy (1937) 46 Yale J. 567. made L. be can pages 635, 636, deadlock, a 17 312 at members referee U.S. 61 S.Ct. when page 756, is, participates to break it. There at 85 L.Ed. 1089. fully statutory fore, satisfies the scheme’s volun- we cannot believe these results were tary compulsion. character and contemplated. absence of Choice play But its for or it. II. when choice has exercised and the It remains to consider the consti statutory employed, methods have been questions. tutional They closely re are does follow, from the statute or lated to those concerning Congress’ intent. case, Moore Congress intended It argued is must construed consequences, itself, declared to be creating as merely a private, nonobligatory wholly ignored by the courts parties or the system negotiation, because otherwise they might they private as be if were mere considered the procedure administrative is suggestion. advice or decision The Moore wanting in process the essentials of due Congress compelled holds that dis- has not of law and employ afforded the putants go to It does before Board. er employee’s defense enforce that, they gone, not hold can dis- having ment suit is inadequate. Thus it is said that regard consequences the award and its give the Act the effect preventing imply will. That much would be too present maintenance deny suit will language. from the decision or the court’s to the carrier constitutionally guaranteed ap- language meaning That has full when protection rights. of its plied to the facts of that In our view case. Much of argument has been built perverted it is when facts fitted to the around alleged inadequacy of ad this one. proceeding ministrative as complying with think, therefore, Congress requirements We process, particu of due larly intended the Board act as a to be pleadings, absence of formal public agency, private go-between; as opportunity witnesses, examining effect, merely legal its awards them, to have cross examining opportunity rep private It em that of advice. intended the resentation argu-: counsel and for oral Board, ployees, when successful before the important, ment. things These would be if probative definite and substantial the Board’s legal decisions were final in the advantages and financial enforce suits to purposes enforcement, sense and for as awards, they which cannot have in other But, to either facts or law. has been so, shown, suits. Because this is and because they quality. Though have no such years gave two Act. effects of an award- favorable- to enforcement, Congress think to sue we employee substantial, do not con period during intended the courts' employer’s rights.' clude the keep except hands off these controversies cannot enforce its awards. That is left fdf specified in the manner Act. This the courts do. It only can be done in a necessary would it were re true suit novo.19 In de the Suit the ac cause of gard presented involving award, now issue tion to secure its en existence of to entertain parties But the forcement. are not limited true, equally It forms suit. in the trial. The iem-: . presenting ployee when the issue considered as must set forth “the causes for. question of sound discretion he claims relief” and the Board’s- The, declining jurisdiction, to exert more es (p). 45 U.S.C.A. First order. in-, pecially this is suit “proceed respects since for a declara must all suit as other tory permit judgment. suits,” except To maintenance of civil that the order and find

this suit would short-circuit both ad prima evidence ings “shall be facie proceeding special ministrative stated.” Ibid. The carrier facts therein . way. suit. It would make as to in no its defenses is limited legal may -present. Act a dead far letter so ef wish Its the evidence concerned, perhaps fect is also as a enforcement suit day “volun in court tary, private system . negotiation.” hardly disputed. So That one. full answer, therefore, argument far as the goes, intention of there- short prima is doubtful whether facie factual ef Because of its may give fect, resort to a which could suit some be dis- award thing carded at moment without some ad- than character of nor more event, verse effect. suit mal de novo. But delay accurately certain result would be in the final classified thus more than as proper.

settlement. one for review

245 appears Acts proceeding is want wise. So as from the far administrative that explicit terms, final. that, so, en the Board’s decision is process is if this due re We stat- Any in this need not determine whether failure tirely immaterial.20 or, so, complete op respect ute is in this if by conclusive the full and spect cured In given it invalid. whether would be so far carrier 'is portunity which the words, question us under is not before defense make its suit to guaranties employee whether an can maintain a suit substantive procedural all independent relief statute and of the Constitution.21 award, his after he has submitted contends, unless, plaintiff true, That case the Board and received its adverse day in court its fact statute, applied lit- That if decision. than of- rather defense statute is one of erally respect, might in this be invalid protec- fense, both, its or renders employee might there- to the and that he stat- complains inadequate. that the tion relief, independent mean fore have does not unevenly justice the scales of ute balances it would invalid be as to and not sue by permitting the it should such relief from right. giving the same to itself Board’s Their situations adverse decision. entirely are inequality are the effects different so creates If the statute way. When rights ab- of the award perhaps the other respect, it is employee, opportunity sence of re- to an to institute suit to unfavorable an award is him view employee’s rights it. provision makes no statute foreclosed, other- him were by set it aside the award challenge it suit to Except the en to the initiative infra. See also 20 Cf. note 32 litigation, analogies Federal the enforcement forcement 10, procedure presently Act, 9 and us Sections before Trade Commission 50, prescribed 49, procedure 723, held found in the §§ 15 U.S.C.A. 38 Stat. 63, R.S., provide 4915, adequate, as we construe Section § 35 U.S.C.A. obtaining exclusive, patent, decisions, in Fed remedies in which issues competent Furnace on all the v. Claire triable de novo eral Trade Commission 553, Talking Corp. evidence, 160, Co., 1927, 71 47 General Pictures S.Ct. 274 U.S. Tri-Ergon Corp., Cir., 978, 3 Commission American Trade v. and Federal L.Ed. App.D.C. 1938, 800, Maynard Co., 1927, 57 F.2d but the adverse deci 96 Coal v. 297, view, Office, bur en sions of the Patent reason of 22 873. F.2d expert prescribed knowledge, Sec technical are enti forcement great weight, Coe, 1939, Trade Com tled to Abbott v. the Federal tions and 10 of 9 449; App.D.C. 195, distinguishable from 109 F.2d and also is not 71 mission proceedings involved, presently fact of Tax before the Board either Appeals, institut in which the determination in the former the suit Attorney General, in his discre facts the Commissioner of Internal ed prima regarded request Revenue is Commis facie cor tion and at Flynn sion, rect. Commissioner of Internal the fact that the orders were v. 180; Revenue, Cir., 1935, reports 5 77 F.2d to file with it rather than deci rights concerning Commissioner of Reve sions and ad Mente v. Internal contract 965; justment disputes. nue, Cir., 1935, private 5 76 F.2d Green’s As to the Agency Advertising Blair, 1929, ground distinction, Cir., first v. 9 asserted Phillips 96; Attorney lim 31 cf. v. Commissioner discretion was a F.2d General’s Revenue, 1931, 589, power of Internal 283 U.S. itation Commission^ grant suit, 75 L.Ed. not a 51 S.Ct. institute the enforcement 1289. power complainant set Nickey complains Mississippi, 1934, here, Plaintiff v. 292 21 aside. not be Cf. 1323; cause can institute 54 S.Ct. 78 L.Ed. defendant the enforce U.S. power Walker, 1941, App.D.C. 289, ment suit or because his to do so v. 73 Pike given 37; limited Montana is not discretion to a 121 F.2d Co. v. Pub Power public official, given Commission, D.C.Mont.1935, 12 but because it is not lic Service F.Supp. 946, grounds, sue to set aside reversed on other the award. ground, may As to the second States Power Co. v. doubt Mountain Public persons great Comm., 1936, ed whether are entitled to Service U.S. protection, 99; sense, er in the constitutional S.Ct. L.Ed. Cook v. Des respecting disputes Ry., contract Union Moines D.C.S.D.Iowa concerning F.Supp. 810; C.J.S., them than Constitution -are re spect inquisition concerning private 628, p. Law, 1280. al See also Crowell possible publication Benson, 1932, business affairs and U.S. S.Ct. of the information derived from . it. 76 L.Ed.

246 employer’s protec- carrier full position, final. the other receives The constitutional hand, tion in the is suit. much different. argument A further It is remains. that stronger And in this an lies unless the carrier can maintain such a suit employee swer. It fact unless the that is the this, will elect not to in- suit, institutes the carrier an suits, rely upon stitute enforcement but to any prejudiced cannot be sense bargaining power, is, economic that opportunity the absence of an to sue. strike, right to secure enforcement purpose be to set of such suit acceptance Thus, of awards. is nullify this But is aside award. said, deprived day will carrier of its .the protection of the necessary adequate defense, only day so its court. not self-en rights. The award is carrier’s urged It is that the court should look at It is forcing or the Board. enforceable the facts industrial life and railroad merely the carrier should a decision that statutory pro- determine the effects manner change operating practice its in the light. that vision suit in their If is management specified. power of It has done, ignored the further fact cannot be contrary to regards it can and if it the award as carriers, well as labor unions and that employees, er. existing prac rights maintain the its pow- bargaining economic have are not employer upon the tices. The the confers They entirely defenseless in- posi powerful advantage of defensive rail- face threat strike. Nor are places It respect to award. tion in easily readily strikes so called road employee. of enforcement burden put everyday effect that may he time within It limits the Employees, as em- occurrences. well as is not unreason period allowed act. The ployers, avoiding have a stake in them.23 it, presum within act able. If he does not is provision And elaborate in Section there not, gone.22 If so ably his to do meeting contingency 2 the Act for special advantages loses at rate the he strike. statutory suit. nothing There is show that the con unfair- no essential there is In all this follow, sequence except will feared beyond Certainly none ness. there unsupported argumentative assertion regu- power Congress to create it will and the that few enforce fact matters. complex economic lation This ment suits have been instituted.24 liberty accept and supinely at full mean ac might that the carrier award, Board, reject cepts or to comply disregard the If it chooses all adverse decisions course, though the latter On the believing them erroneous. it. hand, may has effect mean the award and succeeds employee institutes its work well or with reasonable done unless so, the disputants.25 he does That enforce it. satisfaction to the suit to in a involving strikes, e., of Section i. those the limitation causes of Otherwise (q), questions representation (q), First collective 45 U.S.C. First meaningless. making agree- bargáining, It is not contend- of collective would be employee ments, etc., afforded the are committed Media- ed is in his favor is inade- rather than the tion Board the award when philosophy quate. been the Cf. Section 2 of Act. It period provide Spencer, op. supra, a reasonable cit. at the Act to litigation following the award and far we have So discovered passed an end of to make that has when only reported brought far case thus by barring em- matter whole award is Estes v. Union enforce ployee’s claims. asserted Cir., 1937, Co., Terminal F.2d 768. supra Spencer, op. cit. note Cf. understood that other cases are now course, true, at 64: “It pending in the courts to secure enforce- over the Board has controversies ment. character, such a are not of op. supra Garrison, they produce speaking, generally cit. note Cf. consequences. Report 593. See also Final and other serious strikes Attorney Ad accumulation' General’s Committee on the same time At (1941) 185-8; ministrative Procedure controversies which cannot minor these op. supra Spencer, 63; equitably ff., quickly cit. note tends settled part suspicion Procedure Government distrust on the Administrative breed IV, and, course, may Agencies, employees, No. Sen. Doc. Part result major Cong., (1941). major Sess. 1st controversies.” 77th

247 by as here it final may given extent has or conclusive true is shown to some effect, defensive, party put upon large its de as percentage a the fact that to be the carr to the cause action cisions have been favorable to party asserted. fact that to dis- provisions majority vote The one ier.26 The pute may litigable undertake to bi-partisan selection is of the of illegally settle does not render go to it in cases far referees of deadlock itself, inadequate. remedy, adequate within It assure fair and decision. hearing entirely possible that both carriers urged statutory suit is It is also that the acceptance employees prefer decisions because, inadequate if no other expense heavy incurring the so rendered to dilemma, available, employer will face delay to long ordinarily final and judicial incident award, thereby namely, obey risking to enforcement suits.27 decision in suit for breach of contract tenant alleged strikes threats of not that It is crews; it, disobey engine or to lines’ road thus employees’ demands strike secure having pay the risk of incurring frequent than have been more character engine doing both crews for the road amendments 1934 were before the letting it work or for not them do Railway the National Ad which created defendants’ accumulated demands procedures. justment Board and its work, though they will have done not same plaintiff says it Accordingly, it. must Finally, argument even up guard against fund large build hardly persuasive factually, more it is were contingencies these and should relieved unconstitutionality sufficientto establish the from this burden. Railway legislation. The Labor Act impressed force We designed, not to outlaw was argument establishing either strike, merely necessity prevent inadequacy of constitutional the enforce- done, its exercise. That it has as the for results attest.28 The (since the to sub- ment two come argument assumes thing in these circum- stantially the same strike, one, to secure that threat stances) Congress the intention of not to acceptance an award would be unlawful. exclusive. it make That it lished, be so has not been would estab question place, if we that the now be In the first assume and the need not presented in the full force of determined.29 Whether action would dilemma ,or unlawful, possibility plaintiff’s statement, agree we the mere do not be lawful present employeesmay permitting plaintiff to maintain resort it rather than escape. give enough is not it certain con- to suit make latter suit would constitutionally protection inadequate argument decision trary assumes weight plaintiff’s rights. The would be favor for the carrier’s of on the merits properly promptly possibility is than within dis would be rendered more determining determination plaintiff could secure final cretion whether litigation given shall be its under the the Rail- the initiative other, assumption party particularly where can Neither way one Labor Act. 302 U.S. forth McCart v. until tral ber, 1932, round. ment cent decision troversies. til delay has wended 1936. Cf. note 11 For 85 L.Ed. R. state courts decided of that it reached the suit, through Co., 1941, This was rendered instance, judicial disposition 419, 423, 437, Since though way Indianapolis illustrates pointed on March circle its state then, back supra. litigation tortuous 312 U.S. Moore v. the suit though out in Mississippi Supreme th.e through was again litigation, Water n possibilities federal way, in which that the dissent 630, 61 S.Ct. originated of these con- Illinois Cen- .an nine Court and begun Co., back and in Octo- enforce- reminis- another Now courts, years, S.Ct un- note port whether been instituted to promptness ployees’ rights he cited also cially. cide, orderliness. one instance L.Ed. 34. (1935) Garrison, though Possibly 94. 29; is not 336, strike would the National op. it so, See Second required by purposes hardly the answer award conforms to the em- a strike alleged cit. also First Annual Re- present finally supra enforce an award. afford a maximum of Annual same effect. as stated comports not be unlawful. ballot Mediation Board two should note determined litigation might Report was taken. in Section depend strike with the (1936) coin- judi- on course, claims be made. Of defendants’ amount and services, value of such disposed would be dilemma periodically plaintiff of and the required pay, by plain- would be a decision in and equal pay Lines, resolved does to the Tenant sums hardly probable tiff’s this that favor. But it is to the reasonable value of said serv- n accomplished (Italics in the ordi- could be ices.” supplied.) ap- It does not pear nary litigation the two within that employees course the tenant lines’ have years any personal employee bring allowed his against plaintiff claims time the or they enforcement suit.30 After that or the tenant lines themselves appear against any bar his right contractual to do or con- by the car- doing make recourse to the courts tinue this largest per- work. The unnecessary.31 rier assume We cannot missible inference is that the tenant lines be right, decision on merits would have a that the in practice under the which has employer’s followed, favor. it were other- been by pláin- to be reimbursed wise, rights existing tiff it is true that for the value of actually the services adjudicated by employees. under the would be as rendered contract their On the rec- plaintiff between and the defendants. ord before plaintiff us could change its any rights practice operating But that would not be true as to at will and without fur- against plain- liability pay the tenant lines’ crews ther than to the tenant lines suit, They parties are not the the tiff. collective to this prior value of the work done agreement change. supposed dilemma, or the award. therefore, arrangement is contract not one created inconsistent con- disputed obligations do the work is not in evidence or rights, tractual giving right others the therefore, in issue. Their could not determined in this suit. Cf. Nord v. to do the work or they probability serious will entirely be asserted. It is im- Griffin, Cir., 86 F.2d 481. material that the work has been .Con- done sequently, decision in favor de- tenant plaintiff lines rather than plaintiff could not from in way. fendants relieve some other Whether it is done plaintiff lines’ by others, its dilemma. The tenant crews could plaintiff itself or must litigation. assert their claims It bear its cost. That an inevitable con- questionable highly sequence is therefore permitting whether put of its decision not plaintiff declaratory to have re- award into effect. So is the risk that the prompt give employee may lief would it a more and cer- succeed enforcement escape subject plaintiff tain than is afforded under the Rail- suit and thus possible way pro- liability Act. damages If the enforcement for breach of the cedure, including statutory bar, agreement. in- collective adequate for failure to afford relief from The dilemma therefore boils down dilemma, suit, declaratory judgment plaintiff to the fact that the will have to bear here, sought as it is to maintained hard- expense done, having work con inadequacy ly less so. Constitutional sequent accept to its election own not- to remedy is not cured one substitution of award, and, employee if an succeeds in equally inadequate which is another suit, damages enforcement whatever substantially so. agreement may breach of collective proved. consequences do not be claimed and But we believe the dilemma is as These plaintiff .appear. quo makes of its election to maintain strong as the status any contemplation does not show is under cannot have been record that it without obligation adopted to the tenant lines when it enforce contractual of ment procedure. They per- hardly present to have the latter dissenting opinion the work. As difficulties which would form arise inde out, may pendent points agreements be inferred from allocating state- the work to. persons pleadings and the briefs on different or groups. ments in do not We expense appeal that the of the service done think the enforcement is made plaintiff. constitutionally inadequate merely borne train crews is because pursuant prefers, right, put not shown that this is as is But it is to the carrier not to force, gives them contract which the award in tageous practice but to follow an advan appears merely change work. It to do it could keep “practice and, consequently, has been a a strict incur there the neces will sary doing accounting expense between the so. Cf. note supra. Cf. note supra. secured, But, stay mediate effectiveness if it were shown unless questions by conflicting limitation of bound con review to' had itself authority, law, by public allocating work, the of tracts and thus decision, action, gives complete, It him dilemma were it would not follow etc. inadequate puts upon him the whole enforcement suit the Board. or that In view of all not intended be exclusive burden enforcement. declaratory appropriate. and disadvan- advantages relief would these relative tages, protection know we find no unfairness We constitutional essential consequences making employee incon leaving to the decision wheth- concerning limiting sistent er contracts same sub the award shall be enforced and ject period inade the can be matter nor of which renders in which his decision quate sufficient, Certainly proceeding, years. is otherwise made to two there may merely beyond power not to it Con- because others discrimination Suspension gress assert its result claims inconsistent with to create. of the carrier’s perhaps sustaining litigation them in period and succeed initiative for that independent litigation. risk of mul infringement The is not of constitu- time an tiple liability, is, possibility right. said, that that we tional As have to hold may assert, severally two or more disrupt claimants the working otherwise would independently, Railway Act, deprive and action similar causes of Labor well as covering subject matter, employee identical an special ad- everyday presents That vantages occurrence. risk in the enforcement suit. These peculiarly appropriate consequences implication common and situa forbid the that declaratory for relief it can re Congress tion when intended them. adequate move the risk and other relief foregoing The considerations apply is not available. But so the de carrier, by the are reinforced that fact vastly claratory dif Cen under decision Moore Illinois where, here, ferent applying from it R., supra, bring tral R. contract, can its suit on the it could not the risk and it remove where statute, independently prior displace special remedy provided would dispute time when is submitted to highly complex spe for and decision of then, least, the Board. Until it has its questions. primary purpose cialized pursue exclusively judicial election to Declaratory Judgments give Act is to remedy or follow the administrative relief not in situations it was provided and one previously available, displace not to exist latter, Act. When it chooses the and, ing particularly, special de remedies it through it is bound to follow we think peculiar for Nor it vised situations. prescribed the conclusion the statute. multiple intended to remove all risk of made, think, Such a choice is we not That, liability. unfortunately, is a function joins when carrier submits in sub yet, by legal covered as invention. not mitting but, to the when Finally, ap it allowing employee, were it if clear that under submission pears participates plaintiff before the Board and maintain this would elim- suit hearing Having a full on the merits. done multiple risk of inate minimize its lia- things, the chance of a these had favorable bility, plaintiff advantage to still that would decision, finally, lost, when it been has weighed correspond- have to be only with order not enforce confronted disadvantages ing created for em- except by a suit which able has not been ployees the adverse effects brought, it seeks in effect to forestall statutory plan. whole disadvan- Plaintiff’s one, which, begun, it plan tage having down to comes day court, plaintiff a full had have litigation concerning initiative complain that has not had com cannot given awards for two protect plete opportunity to or that price hardly years. That seems unreason- protected adequately. they not have exchange Congress able to exact in position strong given defensive attacks, plaintiff fundamen What respect employer the award and the tally, idea whole enforcement disputes prompt disposition of which the plan. provisions for the enforce possible. The has made statute denies Act Some of are unusual. the fea ment suit employee advantages usual more phase of the administrative tures decision, namely, im- of administrative unique. But suits statute are not, shown, unknown,32 de neither the fact does as has been are prive protection the carrier ac unusual nor the other are cording process proce due law. the administrative unique Act uncon dure are renders Nor does it effect the two stitutional. It is the total discourage intended to resort first, phases, segmented effect of courts for enforcement of awards question. The which must determine that disputes initial settlement these after the phase criticized. has been administrative stages private negotiation and adminis commended. hand, On the other it has been decision, prompt securing trative thus No doubt there room considerable avowedly disposition which the Act

improvement.33 matters are But these intent, sought.36 Congress’ present judgment. Congress’ power constitutional over history. legislative long evolved provid federal sustains it both unique derived court features are Many of its fea in ex Though given administrative which it has for that.34 frankly cluding Though in the accustomed them tures others. some lawy before, of courts and after methods were decided and at least one traditions rendered, follows them ers,35 was the de decision Moore below, implications, in liti except possibly cisions initiative cited or their may single appear in this bear it not do so this out.37 gation. That 16(2) any set-up 16(1), 32 the In fit tions under which would Cf. Sections legal concepts.” Act, Stat. 590 within these traditional 34 terstate Commerce (1910) (1906), 554 amended Stat. Valley 36 36 Lehigh Co., Cf. Meeker R. v. (1920), 49 U.S.C. and 41 Stat. 491 412, 328, 1915, 59 L.Ed. 236 U.S. 35 S.Ct. 16(1,2), (f) Packers and and Section 309 691; 644, Ann.Cas.l916B, St. Louis & S. Stockyards 166, Act, 7 U.S.C. 42 Stat. 156, 1927, Spiller, 48 F. R. Co. v. 275 U.S. former, 210(f) (1921). see As to the § Brady 96, Des S.Ct. 72 214. In Cook v. L.Ed. Commis Commerce v. Interstate 1936, Ry., Moines D.C.S.D.Iowa Union D.C.N.D.W.Va.1930, 847, sion, F.2d 43 F.Supp. 810, Dewey, 813, 16 District Brady States, 1931, affirmed, United v. Judge, provi said, with reference to 559, 804, L.Ed. 283 U.S. 51 S.Ct. 75 “shall sion of the Act that the award 1424; v. United Baltimore & O. R. Co. parties”: binding final and both 605; Cir., 1937, States, Bal F.2d 87 3 unnecessary “It whether determine Brady, 1933, Co. 288 timore & O. R. v. might depriving or not this be a of due 888, 441, 448, 77 L.Ed. * * 53 S.Ct. U.S. process in certain cases *. The the Court held that the last of which claimant, purport provide of the act be to pursue having his elected to the award made remedy the Com before administrative mission, long attempt- shall be final so as it is not recover more * * was not entitled to * ed be enforced. Therefore though award, he * * * amount than the deprivation any . there is no originally by suing might have done so rights unless and until is filed the suit * * also Meeker v. court. See the district in the District Court *. When 412, 1915, Valley Co., Lehigh 236 U.S. R. this is done it becomes an action lawat 644, 328, Ann.Cas. L.Ed. S.Ct. 59 right jury. 35 1916B, 691, with the case entire F. R. Louis & S. Co. and St. open for trial as a law action on the 96, 156, Spiller, 1927, 48 S.Ct. original 275 U.S. suit.” Pennsylvania 214; R. Minds v. L.Ed. 72 37 Railroad See Yardmasters of North 1916, 267, 270, D.C.E.D.Pa., Co., 237 F. Pittsburgh America v. & Lake Erie R. 1917, 53, 1919, affirmed, Cir., 244 F. 3 Co., F.Supp. D.C.N.D.Ohio 39 876. 63 L.Ed. 1039. U.S. 39 S.Ct 250 Chicago York, also Adams See v. New 20, supra. Compare note Co., Cir., 1941, L. 7 & St. R. 121 F.2d Garrison, op. supra, note cit. Cf. 808, decided after the decision in the guarded 593-598; recom- at rendered, distinguish- Moore case was ing Attorney General’s mendations Cir., 1936, Griffin, Nord v. 86 F.2d Procedure, on Administrative However, Committee 24, 1941, on June 481. (1941) Report 185-188. opinion withdrawn, Final to the extent op. supra, Spencer, decision, cit. note that it conflicted with the Cf. Moore op. Garrison, supra, 8-12; cit. note and a reversal was substi- at previous affirming 568-576; Report, one tuted for and the Final at note, preceding refusing at 185. of the District Court action cited declaratory op. supra, jurisdiction, Garrison, note cit. exercise Cf. conceive of the 121 F.2d “It difficult to 598: discharge being func- able to Board’s a de Finally, this is suit for the court’s declaratory denial discretion toward claratory discre judgment. The relief. carrier, tionary. We do not believe sup The reasons have stated we Act, consistently with port not have that the court did view equity could maintain suit in set aside present suit. entertain the enjoin award its enforcement. But, jurisdiction, the it whether or not had clearly such suits statute seems by to exclude practical pur premature. action was For solely as specifying enforcement suits poses whether one or it matters little review, re the absence of method of de basis for other reason constitutes the ported showing attempts to maintain cases important thing is cision. The types supports other this view. of suit litigation to re gave statute the initiative equitable declaratory action much employee two view the award quality regard to the discretion years. case, im disposing For of this Its allowing should be exercised in relief. amounted to a mere period, material whether this successful, here, plaintiff effect should be suspension, em for that setting substantially would be the same intended, ployer’s right or was with to sue or enjoining aside award enforcement. Act, alto to bar it Consequently, can see reason we no valid gether. limitation It seems clear that the excluding which does these remedies was in employee’s to sue apply equal de force to that two tended to bar action him after the claratory judgment, whether as matter of years expire; it would be mean otherwise judicial dis congressional intent or one of true, ingless. failure Í0 being That his allowing cretion in relief. To allow might regarded within the rea sue sonably time deprive employee his also would special the disposing finally of his claims de as litigation. advantages in It would by Correspondingly, the award. termined displace another, view, and in our an ade reason, might held, with that there it quate remedy specially devised no need the would be for suit particular the effect, situation. When this the time, that the after therefore court deny declaratory generally courts re deprived jurisdiction. 39 But need was we “primary jurisdic The lief. doctrine of and do decide the not not whether either (1938) tion” Note 51 Harv.L.Rev. [See employer employee or sue the could after comity and considerations of toward 1251] expiration years. do the two The facts specialized administrative tribunal But, present questions. not these charged to deal such matters lend event, employer if it is assumed the to weight the view that it should denied period of may wait until the limitations in these circumstances. The former has action, passed bring then its its has applied frequently been most when the ad clearly within that time is right bring to body jurisdiction, ministrative exclusive the that were not true statute barred. or where exhaustion of the administrative meaningless in the em giving would be required, prevent to the suit from litigation ployee initiative and the being premature give or to the court special statutory advantages, as well as in judgment benefit of the administrative upon limitation time for his placing a present its own advance of action. The suit. appropriate for case is one tude, the same atti though escape regarded even was not is no from this as There conclusion appropriate one situation that this suit is en Moore in the assertion to R., supra. Furthermore, arising R. rights original Central under the Illinois force employees who or doing agreement, nullify railroad are not to review now work, award, disputed represen union and therefore the bar tatives, operate against suspension made not have does As it. rights said, pre Their be affected fundamental action. have issue we In these circumstances also identical with result. de in this action the claratory sented that ordinarily award and refused.40 All with that relief determined apply only decided considerations show would be enforcement these which Congress, namely, guide suit, also whether the intention have 40 Declaratory op. supra Borchard, Judg 38, Borchard, note Cf. Cf. cit. ments, 255, 299, See Ed. 293-314. 304. also 2d at Section Declaratory 342-346, Judgments cited; Uniform Act. Id. authorities supra. note 22 16 Am.Jur. 21. Cf. STEPHENS, (dissent- the work Associate right contract to do under the Justice ing). dispute. decided That issue cannot plain independent and in favor litigation appeal This order is an from an nullifying tiff without the award District Court States for the United consequences attaches the statute dismissing District of the com Columbia there suit. it in To assert plaint appellant. complaint was in this rights fore that the involved declaration, powers given for a under the arising rights are at common law Declaratory United States courts given to contract, rights that the Judgments (Act of June employee not affected statute are August Stat. 1935, amended Act involved,-is question beg either 1027), ap 49 Stat. ignore inescapable of this effects pellant appellees under a certain afford, upon suit, and the relief it would February bargaining collective contract plaintiff really seeks the latter. What below, appellees, defendants advantage to do statutory plan up all of have setting up filed an answer three defenses. point award to the complaint The first was that the failed to enforcement, escape from its and disadvantages action, second, state a cause of that it not think thereafter. doWe appropriate did not state of action a cause cake and so entitled it is declaratory judg granting it too. eat considered these ment. The court below squarely of a motion two defenses in the nature therefore decision Limiting the they pre- complaint and the issues dismiss and its dismissal of facts inadequacy sent, we find no constitutional of the dis such motion. view ' plaintiff protection afforded to the in the on the first and second position the case Railway Labor

under Act, defenses, third defense was con fact that its merely by reason of the case is thus before the court sidered. The nullify an litigation to to initiate complaint set the facts forth period suspended is barred'or award first defenses treated two admitted as motion to forth in years. of two dismiss. facts set These margin. detail Stated is affirmed. appellees particularly, defense of em the second Columbia. The are More complaint ployees appellant performing allegations of of the the serv the said appropriate enginemen ices the Terminal or of action as fire not state a cause did declaratory judg- yard engines switching granting men on used in of the for the against service. defendants because: ment the complaint “(1) show the fails to The appellant operates pas- 2. The itself no controversy be- an actual senger existence employs directly and trains plaintiff the defendants. and the tween engine road or road crews. All train affirmatively complaint “(2) shows The passenger trains which the use Terminal pro- remedy specially a there exists operated by are one or more of certain type of case. for this statute vided companies railroad known as the Tenant affirmatively complaint “(3) shows The Lines, wit, Pennsylvania the Railroad filing plaintiff purpose the the Gompany, the Baltimore and Ohio Rail- a review action was to secure Company, road the Southern board, administrative a of an decision Company, Fredericksburg Richmond, the per- contemplated by, purpose nor a Company, & Potomac Railroad Judgments Declaratory under, the mitted Chesapeake Railway Company. and Ohio major Act. operate portion The trains for the complaint “(4) the ex- fails to The show of their runs on the tracks of one or more about to be order statute istence Washington of the Tenant Lines between against plaintiff, from the the enforced they cities, and various other and use the any damage will re- of which appellant tracks and facilities of the for plaintiff.” to the sult entering a short distance and leaving the Terminal. appellant Washington Termi 2 1. The corporation Company passenger 3. movement of a which has loaded is nal Passenger points operated Washington trains from the Union outside of since Station, Terminal, terminal, railroad into the from Terminal a union here the points Washington, called outside sometimes the station or the and inafter through points (where the the Terminal from word “station” outside Terminal points passenger Washington outside, other refers to the station used always- performed performed building proper) and has and been sheds the District Station, adjacent including railroad ger are terms general summary and tracks, sometimes yard follows: and 'hereinafter Terminal, Washington, Dis- called the corporation which appellant a are appellees en- trict of Passen- Columbia. operated Union since 1907 has part gine required opening crew Terminal exclu- since the engine sively by engines road road its duties to deliver the manned road completion enginehouse engine at Lines. crews Tenant engine bring begin run road from passenger and or end trains When enginehouse com- Washington, at to the station en- such road their gine at runs always mencement of run. re- are and been crews have quired 6. Movements over the tracks deliver the Tenant Lines to appellant engine enginehouse than those described at the road paragraphs engine bring above made and and 5 are end of a and to the road run generally yard-engines enginehouse have been made station at the from the appellant yard-engine manned Thus road commencement of run. employed by appellant. engines operated appel- crews when so over the appellant pub- passenger 7. On sta- June lant’s tracks between the regulations always enginehouse lished certain rules and are and tion yard-engine employ, defining firemen manned Tenant Lines’ employment rights engine terms road crews. employees thereunder; September 1, on 5. In load- addition the movement of appellant published passenger into, of, certain ed through trains out regulations government rules Terminal, other move- certain yard enginemen employ, equipment defining place in its ments take over employment appellant the terms of tracks follows: regula- Empty passenger thereunder. These trains which have dis- defining employment separately charged passengers tions their station yard yard enginemen storage yard; firemen and are moved were trains of superseded empty passenger on December cars are moved from the yard storage Pay pur- “Schedule of Rules and Rates of station Enginemen, taking passengers pose leaving on Firemen and Yardmen” destination; into between entered the Director where trains of passenger General of into Railroads of United have come States ears the station Washington cars behalf Terminal one more are sometimes off cut (the engine- appellant) and end of Railroad from head train re- men, single employed and trainmen moved firemen movement some des- represented by ignated track; passen- thereon a train Brotherhood where Engineers, ger standing cars of Locomotive the Brother- in the station before departure Engine- hood men, Firemen and of Locomotive one more cars sometimes moved another and the Brotherhood of Railroad track February respectively. coupled Trainmen, head end On of such train and on to part appellant agree- journey form a entered of the train the into on its yard enginemen yard road; passenger over the when ment with the and trains of represented by employ into firemen in its cars have come charged station the the and dis- empty Engineers passengers, Brotherhood of Locomotive the and Firemen trains are sometimes the Brotherhood of Locomotivfe moved sufficient engine permit Enginemen, respectively, and distance road entitled the brought Pay has the and of train into the station of Rules Rates “Schedule agree- pro- Enginemen uncoupled Firemen.” from train and This the and by and has remained in ceed to another ment effect cross-over movement remains Many just as the contract exist- of the its date track. movements since kinds appellant engine- always been, the and have between described are since employ, including operation firemen in its the commencement of of the men and defining appellees, performed, the em- in in terms of Terminal where the enginemen managing ployment and the of of firemen. This the officers efficiency appellant promptness agreement establishing or contains the in seniority operation thereby between the promoted, by of the the Terminal certain appellant’s employees belonging engine to each the use of the road by regulations brought respective has into class covered the train the Ter- pro- contained, therein these about to haul such minal train to or schedules things entitling among destination, other incidental its to the move- visions employees engine given class ment of the road between the sta- to vacancies seniority enginehouse; making in order of and runs tion and and in new therefor, providing engine applicants such movements the road is and seniority promotion, always by in a factor and manned the road en- has been ap- Pennsylvania Railroad by by cilities used employed and firemen ginemen Company, Railroad engines over and Ohio Baltimore operate switch pellant who Company, Company, Railway and yards the Southern yards. These the tracks Richmond, Fredericksburg fa- Potomac station & passenger tracks and respects appellant representatives recognition and according between the similar firemen, enginemen particular em- of the length and trainmen in a of service agreement, rep- had failed to ployment. result 29, 1937, regulations resentatives, on March invited date when At the 8. appellant join con- with them in the and into effect went June period during tinuously submission of the claim the Board. thereafter appellant regulations sched- and declined to do this on the the various when ground successively the claim was not based on to were above referred ules pe- any agreement continuously during violation of and amounted in effect February 1, operating practices to a demand since the schedule riod effect, should uniform and which had abanSoned existed been continuously usage practice has been since the commencement of continuous operation described Notwith- character Terminal. movements standing appellant paragraph such road refusal be made 5 above to engine engines was thereafter filed with crews there the Board road manned by representatives judg- employees of the in the Lines whenever appellant’s Tenant reading part managing claim officials as follows: ment of practice Washington operation efficiency promptness “It is the of The Company require thereby promoted; Terminal tenant line Terminal engines proportion road manned large tenant line road of such movements and a engine being equipment per- always crews to move dead so and are have depot yards, engines from to the coach and road move road formed equipment yards dead engine the coach crews. depot perform switching By of June 9. Act of Washington service on tracks 1185), (48 entitled “An Act Stat. Company... engine- .Train Terminal approved Labor Act amend the Washington men of the Terminal Com- provide May 20, and to pany claim that all such work should be disputes disposition prompt between performed holding seniority men ex- employees,” there was and their carriers clusively on the rails the Terminal as the “Na- known board established Company.” Adjustment Board” tional Railroad thirty days, pur- disputes growing within jurisdiction Thereafter out over requirement by application agree- to notification and interpretation suant appellant filed “sub- and their em- railroads between ments claim, pay, concerning mission” in answer to the and at ployees rules rates representa- working conditions, a date fixed the Board the in the event that ne- employees representa- disputes tives gotiations of such appellant appeared adjustment. tive before the result in failed Chicago, others) (there Board at Illinois. In accord- are three Division First ance with the established Board has involving yard disputes witnesses were the testify called to train over produced engineers, including employees, no evidence was service upon by representa- yard trainmen, firemen, conductors, relied facts support employees. of their of ten consists tives service members, representatives carriers, claim, designated these made cer- five alleged by which were to be unions of em- statements labor tain national five by which were received the this facts and ployees. sometimes Divi- Hereinafter any opportunity being giv- Board. as the to Board without is referred sion Railway appellant passage of the to cross-examine the After the to the 10. en presented representatives was to the or otherwise to test there the Labor competency by representatives or of their statements to ver- appellant the fire- of hearings ify employed enginemen facts. At their existence men, and trainmen proce- by the established Board effect that the work before the a claim to the opportunity parties property performed being affords no to the of dure on the engines by against by appellant claims have been filed to whom road manned road by produce Lines, or engine other means witnesses to of the Tenant as de- crews resisting claims, paragraph above, in the evidence was introduce in work scribed provision engine appel- procedure yard no the makes crews of the which to permit making any exclusively the of does entitled reason and record, were lant stenographic otherwise, seniority rights agreement or under the of negotiations proceedings February Board. In before the accord- After 1923. of outside, ton, Washington points to Chesapeake and from Company, the Railroad through points Washing- outside the Tenant and from Company Railway Ohio —called to points ton to In addition trains other outside. passenger operating Lines — passenger trains Washing- the movement of loaded Washington to points of outside pay employee money, opportunity ment of to to the no with this anee (or (or produce employees) appellant given wit- the sum to he to was to the they are) any Award on or under to introduce entitled the means or other nesses 23rd, presented resisting before November 1938.” the claim evidence complied appellant employees, representatives has not 14. the hearing. order, but thereof with the since the date the no was made of record appar- movements of the character described paragraph was Thereafter the Board 12. ently of above have continued to a determination to reach unable inability judgment made, claim, through man- to where the or deadlock appellant aging prompt- majority mem- officers of the of the Board vote secure efficiency para- operation and, bers, ness or in the under the Railway promoted, graph (1) Terminal gines La- would road en- of Section engine Act, manned road crews of the to deter- bor a referee was selected para- Accordingly, Tenant graph (p) Lines. under the claim. accordance mine Railway op- practice of Section 3 of Board established employees any them, given appellant portunity Labor or to Act the was enginemen employed by appear as firemen and defend it- before the referee appellant operation yard pres- en- self either of its claim gines persons or oral or written and therefore as of evidence whose entation appellant made, argument, not no- benefit the Board order was have and the been at all times order, had since the date the Board that referee tified are, empow- designated make an authorized and award. ered file in Thereafter 13. the referee decided District Court of the employees in favor of the United States claim District Colum- adopt- bia the District October decision was Court of the United published by any States for district ed and the Board in a form one complete repro- consisting resides, employees petition pray- verbatim such parte ing the ex duction of submissions make such order and en- the court to employees appellant respective- and of ter as it determine such ly proper Board, filed with the followed enforce or set aside or- words: the Board. But em- der of ployees none “Findings petition in the has filed such a : The First Division of the Board, upon Adjustment District Court the United States for the whole rec- evidence, Columbia the District of oth- and all the ord finds that: District er Court United States. carrier or carriers em- “The employes ploye Notwithstanding involved in this 15. none of dis- respectively pute employees any proceeding instituted and em- ploye meaning paragraph within the as is referred approved appellant oppor- Act, June wherein the Adjustment tunity “This Division and be entitled to show that jurisdiction dispute employees any right Board has over not have do February involved herein. the contract erwise, or oth- given perform “The said were movements of hearing paragraph above, due notice thereon. character described appellant might pray “The work described in this docket is and wherein jurisdiction within the men hold- order of Board set aside the court exclusively seniority unlawful, on the rails of invalid and in excess of the Washington Company. Terminal none-the-less have, Award of them be- each presented, ginning sustained. Claim November continuing present, ap- Railroad National and are pellant demands claims sums day’s By wages money of First Division full order than the day Attest(s) employees earn for T. S. the each McFarland which actually Secretary.” they do work. These on which upon employees’ appellant based the are demands served the an Board right perform alleged to movements of effective Award “to make No. “Order” 3115, paragraph described in First Division of the character made the the they perform- above, not in fact which are Railroad National being performed by forth; which if are set and the as therein ... engine requirement pay- the crews of Tenant Lines. road for includes the Award taking Terminal, yard purpose into, cer- to the station for the of, through the out and passengers their destina- leaving and for movements —the tain other train or car tion; passenger have in this case where trains of cars right is involved to make which place take come cars are now into the station one more —have -since 1907 taken and appellant: the sometimes cut off the head end of place from over the tracks of the single dis- train and removed in movement passenger trains which Empty track; are some train of designated the station where a charged passengers their at empty passenger standing trains of be- storage yard; cars is the station to the moved storage departure fore some- one or cars are passenger moved from the more cars are employees present appellant, determination, the the made The demands so penalty being judicial reason claims of there no deter- in the nature of are respect payments the in excess mination of its liabilities with and are employees demands, compelled earn the to maintain amounts which the they actually performed and amounts work make available substantial if money satisfy they claim are demands in the character to which the being employees any many entitled, event of them demands such subsequently legal pro- day’s pay should institute to the in addition another full ceedings order, day’s pay are the claimants to enforce the award and full already earning, extra and in claim such it should in event day’s proceedings appel- pay being based fact be determined that oppor- given legally pay an lant the tunity has not been liable to demands. claimant present perform specific proper one move- advised at the some time para- construction its lia- ment of character mentioned and performance graph which move- bilities under its contract with em- appellant ployees, would, necessary, a few minutes would involve' ment by making readjustments enabled, and demands are claims work. These day day accumulating operating rapidly arrangements, from fulfill its period obligations employees from Novem- amount less and ex- filing pense by incurring heavy penal- to the date of than ber ty payments (December 29, employees complaint 1938) a total which the are now approximately $7,500, demanding. employees long and are thus ac- So as the approximately cumulating rate of at the continue to make such demands without per instituting legal proceedings $80,000 annum. wherein the validity adjudi- of their demands can be controversy ex- An actual therefore 16. present cated, long and so as the contro- appellant and between the the em- ists versy appellant between the and the em- concerning respective rights ployees respective ployees with to their February 1, 1923. under the contract rights and liabilities under the contract controversy pur- This ported resulted judicial determination, remains without Board of October award of the proper impediment a serious exists to the comprehends 24, 1938, and the claims appellant’s adequate fulfillment of the and described, upon demands, above public may, obligation to serve the appellant payment of sums delay securing ad- as a result of February money under the contract of controversy, judicatiofi that will settle appellant 1923. The without per- ultimately impair interrupt complete remedy adequate at law in By such service. reason formance of premises for want of such reme- set forth above the the facts each only remedy all damage dy subjected serious appellant, in order to inconvenience in this: There is no means by injury irreparable damage, was avoid appellant can force or in- which the praying bring equity, to declaratory employees duce of them to in- relative or decree judicial proceeding such stitute a as is re- controversy described, and a the actual paragraph ferred to in legal rights and other declaration provides whereby no method appel- appellant and the relations appellant may petition any court of controversy. respect to such lees with competent jurisdiction to set aside the appellant prayed Board, award and order of the and mean- Wherefore declaratory money payments while demands for decree render such the court including judgment, accruing made are declaration that seniority accumulating large have, appellees amounts de- Although February 1, issues, upon agreement scribed. question, validity perform of which work determination of the appel- liability demands and the award of the insofar and that satisfy right upon purports depend, lant to them to confer such as it them, as mat- proof .capable ter of evidence and is invalid. acting times the through moved another First Division of ten from track its coupled members, but, dead-locked, on to selec- head end such train the and member, part journey tion form a of the train its over referee as an eleventh road; passenger 24, 1938, made an the the when trains cars award on to October employees discharged appellant’s have into the effect that the were come station and passengers, empty perform entitled the are some- to the train movements trains question. permit was effec- times moved a sufficient to This award made distance engine tive the same brought the road train order the Board of which has the Except separate uncoupled into station date. submissions the to from as the the proceed regarded filed with train the cross-over and movement such, considering the to Board in the Many another track. movements per- always pleadings received no or evidence and just kinds described are and cross-examination; been, operation mitted no and it al- the since commencement oral, argument, 1907, lowed no before (where the Terminal in written performed the referee. managing the officers of appellant efficiency promptness the appellant changed its has never operation thereby pro- of the Terminal operating practices conform to the to moted) engine the use of the road Railway award. The Labor authorizes Act brought the train the station or into proceeding the award and or- to enforce destination, about to haul the train to its in- appropriate brought der to be United cidental to the movement of the en- road persons States District Court the gine the engine- between station and made, whose benefit the within award house. making such movements the road years two from the time the cause of action engine always is and has been manned No accrues under award. such suit had engine required road crew which employees brought by at time part its duties to deliver the road en- De- filing of the instant action on gine enginehouse to the end at of a run Nevertheless, cember the em- bring engine and the road en- ployees, shortly date after the award ginehouse to the station the beginning 24, 1938, wit, on and order of October a run. engine The road crews are em- 23, following, demands— November made ployees of the Tenant Lines. they continue to make such demands— 1, 1923, February On yard enginemen moneys appellant alleged firemen, employees appellant, ques- due them for the train movements acting through the Brotherhood of Loco- appellant although, has not tion since the Engineers motive and the Brotherhood of changed practices, the em- operating Enginemen Locomotive Firemen and as ployees actually perform do these train collective bargaining representatives, en- movements. These demands amount tered seniority agreement into a defining period from November employment terms of enginemen complaint approxi- filing date superseded This previous firemen. several mately $7,500, they accumulating agreements on the subject. same After the $80,000 per at the rate of annum. The passage of Railway of 1934 and of continuance of these demands (Act 1185), 48 Stat. June controversy may interrupt concerning them up set a National Railroad appellant’s performance duty Board, hereinafter sometimes called the public. serve the This action was filed Board, adjustment disputes be- appellant in the District United States tween employees, carriers and their declaratory judgment Court obtain a appellant’s employees asserted that under appellant and relations agreement of February they appellees seniority agree- under perform entitled to were the train move- February appellant ment 1923—the ments above described as in this involved appellees contending right that the have no appellant rejected case. The the claim. question work agree- Thereafter carried the dis- pur- ment otherwise award pute, as under they Labor Act porting to confer is in- might, Board, to which sub- valid, it has asserting mitted their claim in no other writing; ap- pellant, remedy, obliged adequate as it was do under statute, separately proceeding so stated its contentions is not such far as a contrary of the claim. The is concerned. question immediately theory being the the But the involved claims 1, 1923, appeal of rights February contract of entitled them is not what are the parties is, work; appellant the to do It broad- certain the contends under the contract. stated, carrier, ly party that the not a contract not entitle them whether or does appel agreement to a with do that work. bargaining collective The demands of the contract, employees, its a lees are not under may judgment in made under the obtain a declaring the the award or This United States order Board. District Court the parties appellees was rights agreement, by not- conceded the court to the dispute the complaint arising out of below.4 the is one for withstanding Thus that a has, “rights legal re interpretation at declaration agreement the other parties party, lations” of And the em- contract. instance controversy.” the case is ployees, National one of “actual submitted to the concrete, touching legal “definite and Railroad Board and made parties having legal relations subject by adverse the Board of an award and order Haworth, interests.” Life employees’ think that the Ætna Ins. Co. favor. I 81 L.Ed. judgment. U.S. such a S.Ct. entitled to 617, 108 A.L.R. It is “a real and 1000. I admitting spe controversy substantial relief cific under a decree of a conclusive Declaratory Judgments Act The Federal Maryland Idem. Cf. also Cas character.” pertinent: immediately provides, as so far ualty Co. v. Co. and Pacific Oil & Coal Joe controversy except “(1) In of actual cases Orteca, 1941, 312 U.S. S.Ct. taxes the courts witli to Federal stated, daily 826. L.Ed. Under facts upon petition, power have United States shall appropriate complaint, by declaration, pleadings money or other being demands for appellees are made rights re and other declare contract, and refusal under the any party petitioning for interested lations appellant; payment being made declaration, not further relief such whether controversy and the continuance prayed, be and such declaration is or could judg impediment adjudication a final without is an force and effect of shall have the ment or decree and be reviewable such.” appellant’s duty to the fulfillment of the 14, 1934, 48 amend of June [Act Stat. may interrupt per public which serve the August 30, 1027.]3 Act of 49 Stat. ed duty. formance of that appellant’s facts stated in the com- facts, Moreover, appellant plaint motion to dis- under the and admitted declaratory obliged, an orthodox miss constitute cause the absence moneys ap- judgment, large maintain declaratory relief. From them there pay appellees’ demands ul- pears between sums to the existence therefor, appellees concerning timately these appellant liable and as held day em- agreement accumulating to which each for each meaning of an are the they day’s appellees pre- ployee wages for work parties. The have are appellant money— appellant performed, must either sented claims to appellees court in the trial of the Act as defendants Additional appeal. part following: was made record appellees “(2) said: “These on a declara- In that brief the relief based Further claims, however, upon may granted tory judgment are based decree upon Agreement necessary proper. ap- 1923—not the order whenever petition plication R. “... when the a court Board." 117. shall presented

having jurisdiction grant defendants the relief. individual compensa- application sufficient, plaintiff, individual claims deemed necessarily tion, shall, notice, based claims court on reasonable re- those Agreement party, rights quire order whose adverse —not adjudicated declaration, which has no substantive effect and is in have been plaintiff why ... further relief itself unenforceable. to- to show cause should exactly position day granted is in same as to forthwith. not be obligations “(3) substantive a declaration When granting was before the order issued.” R. further relief based there- apparent “It is thus involve the determination of is- 119. pute dis- on shall jury, to this case between fact triable issues sues interpretation jury growing out of the in the form one be submitted to proper interrogatories, application carrier has made instruc- Agreement general court, of the Collective whether ver- tions required it has or not.” existed some time.” R. he dict Brief The Memorandum filed

259 tage, for it must pay de- tradition- full accumulation of these he conceded that sug- suing damages al method of for on the first mands, therefor, if eventually held liable gestion frequently of continua- breach makes the rights or waive its and imme- once all impossible. tion of the relation ...” diately change practices operating its And Jurisprudence see 16 American greater expense efficiency; if less 31, to the same effect. appellant presently of its advised duties, Presumably declaratory necessary change it could if its actions now practices heavy concerning majority operating contracts have in and thus save payments of penalty ¿Etna being In had to con- demanded. instances do with business Haworth, declaratory tracts. supra, suitability But Life Ins. v. Co. relief rights for the mere increase in the of insurance determination of amount policy liabilities under through bargaining agree- claims accrual in- collective terest, doubted; ments is not having to be is indeed inconvenience prepared especially appropriate pub- to meet the claims at some fu- because time, lic grounds indirectly ture were held sufficient interest affected agreements. respect legal rights declaratory relief in And both before and since obligations arising Railway insurance the enactment of the of 1934 pro- contracts. A the uncertainties and the courts have entertained fortiori appellant ceedings under the for declaratory judgments hazards to which as an appropriate subjected respect in the instant disputes facts stated case is arising agreements are sufficient to exercise of decla- out of invoke between carriers ratory jurisdiction. employees. In & and Piercy E. Edelmann their See Louis- Co., Cir., 1935, Triple-A Speciality Co., ville Ky. Co. v. 7 & R.N. 852, 854, Lindley, 322; Judge, District F.2d S.W. 33 A.L.R. Burton v. Ore- court, said, respect Co., speaking of gon-Washington R. & Nav. 72; purpose Declaratory Judgments Or. 38 P.2d Louisville & N. R. Bryant, 1936, Act: Co. v. Ky. 92 S.W. 2d 749. congressional “... It was intent damages avoid accrual of to one not avoidable appellant’s Since the complaint thus rights early him an certain of his and to afford states appropriate a case for the exercise adjudication waiting without until his adver- declaratory dam- sary begin suit, after judgment jurisdiction of should see fit age had ... accrued. Court, United States District and since process under the due clause of Fifth This legisla- statement is borne out Amendment to the Constitution the courts history Judiciary tive Act. open present controversy all who Senate, in recommending Committee of proper subject is the ac- passage, said: tion, necessarily it follows the trial disputes arising “It enables out writ- should appel- court not have dismissed the instruments, adjudicat- otherwise, or ten ed without to be complaint expression lant’s unless some requiring a destruction of the status Congressional intent, principle pol- some quo and of the social and economic Ex- fabric. perience icy Congress of law of which must be said has shown can be ad- judicated effectively, usefully, not more known, to have some necessary implica- quo destroyed.” before the status statutory tion of language, legislative [Sen.Rep. Cong., Sess., 1934] No. 73rd 2d history, jurisdic- forbade exercise of the Declaratory on Judgments Borchard question tion. Congressional is one of (1934), leading subject, text Congress intent. Was it the intent of important stated that functions one declaratory judgment declaratory judgment statutes is to af- the District should Courts not be exercised opportunity ford an for determination of under the circumstances of instant rights liabilities under contracts. The case? says (p. 405) : author II opportunity adjudicate “... such dis- language No in the Declara- putes disruption without of the relations be- tory Judgments Act expressly excepts any parties, pur- whether tween before or after controversy, cases of actual save those with breach, ported efficacy utility has demonstrated the taxes, respect to Federal juris- declaratory action, it has to weather enabled storm of dis- diction of the District Courts to declare wrecking pute legal and, without craft on and other relations. No lan- contrary, to continue on the course with a guage of Labor Act of clearly Especially long-term defined chart. expressly forbids exercise declara- proved exceptional has this contracts advan- tory provide special District bor Act judgment jurisdiction of the of 1934 disputes arising prescribe statutory out method Courts tribunal particular type bargaining agreements between determination of the collective expressly complaint employees, presented appellant’s case and their carriers vests in the Courts, declaratory in forbidding —with the effect District of by for proceedings provided relief ? paragraph (p) Act, 3 of the of Section Railway Labor Act of 1934includes or jurisdiction to determine exclusive purposes pro- within its enumerated that of collec- adjudicate under such a viding prompt orderly “for the settle- and must bargaining agreement. tive One disputes of growing griev- ment ances or all of out policies principles or of therefore look to law, implications appli- interpretation out of or language, statutory and of agreements pay, covering cation of rates of legislative history, an answer to for rules, working or To this end conditions.” question in the case. provides the Act effect as in substance and duty follows: It is of carriers and Ill employees every exercise reason- new. It dates Declaratory relief is not agree- able effort to and maintain make history Anglo-American —so far as pay, concerning ments rates of rules concerned—from several centuries alone is ago conditions, working dis- and to settle all of from the middle in Scotland and putes arising application of whether out of century England. There the nineteenth otherwise, agreements such in order to or declaratory judgments statute awas interruption to to the avoid commerce or Maryland Rhode Island in operation disputes All be- carrier. 1915; by Jersey in New employees a its are to tween carrier and passed, year act was in which the Federal possible decided in considered be thirty-four and ter- some American states representatives desig- conferences between judgments adopted declaratory ritories had by confer so to nated and authorized Borchard, supra, op. 237- acts. See cit. in the dis- employees carrier and interested growth of dec- 245. In the laratory judgments of course states: pute respectively. The Act further law, principles poli- or judicially recog- limitation were cies of employee group disputes an or “The between nized; is to assumed that Con- and it be growing or carriers and a of interpretation grievances or out act, intended or out of application of gress, passing the Federal concerning agreements rates of for dec- jurisdiction that the exercise laratory including working conditions, pay, rules, cas- or subject to such relief should be unadjusted ap- pending the date es policy had principle or limitations prior Act, proval be handled the usual of this shall including operating up chief to and ju- manner Act been passage of to the designated to such the carrier handle officer of disputes; appellees urge as dicially recognized. The adjustment failing but, to reach an limiting principle policy or that a one such disputes by manner, be referred this petition by declaratory judgment cannot be remedy by party parties either Adjustment appropriate division of the Board special any stat- as a substitute invoked sup- facts and all with a full statement utory put This Bor- proceeding. upon bearing disputes. porting [Sec- data chard, 156-7, thus: 3(i)]” tion special statutory for the ... a method "Where up Adjustment Board, sets Act then type particular of case has determination been thirty-six members, composed as a whole proper provided, permit is- by the carriers eighteen selected tried This would sue to be declaration. jurisdiction ousting amount organizations labor eighteen the national particular prescribed case, court employees, member to be com- each of the pensated represent. intended that a declaration should be was not party he is purpose. This, employed quite however, such refusing composed The Board of four a declaration different mere- general ly common-law because (with The first which we are divisions. might have been invoked.” concerned) here over dis- involving yard train em- putes effect see American service To similar Juris- carriers,5 ployees prudence 21. Does La- and consists of ten juris- designated each, The other divisions ten members five to three disputes involving and five over carriers the national diction employees. organizations employees, The second and labor classes divisions, first, like division consists of consist The fourth six mem- third findings trial of division and order suit the members, designated the carriers five prima shall be organizations national labor five stated, and facie evidence of the facts therein membership employees from the except petitioner that the shall liable not be Upon any divi- full Board. failure costs nor at in the district court for costs subsequent stage proceedings, unless because of agree award sion appeal, appropriation accrue his and such costs shall majority inability to secure deadlock paid expenses out of the members, such division vote division pe- of the courts of the If the United States. agree upon neu- forthwith to and select a finally prevail titioner shall he shall allowed attorney’s a reasonable and col- fee be taxed person known to sit to be as “referee” tral part lected district courts are the costs the suit. The as a member and make an division empowered, under the rules agree fail award. Should division governing law, of the court actions to make upon days a and select referee within ten of by judgment, such mandamus and or order enter such writ of may appropriate otherwise, as be deadlock, of a referee is to be the date to enforce or set order aside the of the division and selected named National Medi- Adjustment 3(p)] [Section Board. pays ation Board —which also fixes upon provisions “All at law based actions 6 compensation of referee. awards begun years of this shall section be within two from the time the cause of action un- Adjustment accrues of the several divisions of the Adjust- der the award of the division of the copy writing stated in Board to be and a Board, 3(q)]” ment [Section and not after. respective parties to furnished the a con- appears thus within the literal troversy; made awards are “final limiting principle terms of the as in stated parties binding both to the dis- the text of Borchard and American Juris- pute, except they shall a insofar as contain prudence, supra, in the has money provides award.” Act in provided special Labor statutory Act a petition- case an ward is made in of a favor prescribed method and statutory a tribunal er, the of making division Board shall type for the determination also make an order to the carrier directed involved in the instant case. And it and, to make the effective award urged by appellees proper that it is not award requirement pay- a includes permit dispute, the instant because it money, ment of pay employee to the type statute, referred to in the to be sum which he is entitled on or a before subject declaratory made the relief. day Finally, provides: named. the Act But an examination the authorities comply “If a carrier does not with an order cited evidencing two texts as Adjustment of a division Board within limiting principle existence of this demon- order, petitioner, the time in such limit or any person made, may “special strates a method” for whose such benefit order was file Court of District the Unit- “statutory prescribed” and a court is meant ed States for the district in which he resides or an exclusive or court. See principal operating in which is located the office Hydro-Electric Co., Moore v. Louisville carrier, through or which the carrier 20, operates, Ky. 466; Mayor petition setting briefly 1928 226 S.W.2d 10 forth relief, causes for which he claims and the or- 1902, Devonport Tozer, Chancery v. 2 der the division of the in 1920, 182; Attorney-General, Smeeton v. 1 premises. Such suit in the District Court 85; Chancery Attorney-General, Flint v. proceed of the United States shall in all re- 1917, spects 216; Haan, except Chancery suits, Haan v. 1 other civil on the bers, designated days three the car- within ten inability the date of dead majority vote, riers and three labor national or- lock or secure ganizations employees. any division, thereof, then the or member 6 party The National Mediation Board is a or the or either to the dis pute may certify board established that fact to the Media independent agency Act of shall, 1934 as an in tion which Board within ten days receiving the executive branch of the Government. from the such date cer provides: 3(l) “Upon tificate, Section of the Act select and name the referee agree upon failure of division to sit with the division aas member thereof inability award because deadlock and make an award. The Mediation majority provi secure vote of the division Board shall be bound same members, provided paragraph (n) appointment sions in the of these neutral section, provided this then such division shall forth referees as are elsewhere agree upon appointment select neutral Act for the of arbitrators person, ‘referee’, pay compensation known to be to sit fix and shall with the division aas member thereof of such referees.” and make an award. Should the division The Mediation Board has various other agree pertinent. fail and select a referee duties here 262 58; Kariher, 1925, 455, 265, 197, Mut A. con 1928, 231 N.Y.S. 284 Pa. 131 133 Misc. 1911, there Alexander, 396; N. tains a dictum to same But 23 effect. rie v. Ont.L.R. Cornwall, special Pennsylvania Township of statute in Ry. Y. & O. Co. v. 522; governed cases. 1913, Wight the decision these v. Board Ont.L.R. 29 387; 1806, 559, Education, 1926, N.J.Eq. A. March P.L. 4 Smith’s 133 Laws, Co., 156). pp. (46 P.S.Pa. Georke Union Trust Co. v. “In all provided That act (modified, 13: N.J.Eq. A. Section duty provided, cases where respects, N.J.Eq. A. enjoined, done anything cited directed to be 439). scrutiny of authorities And by any assembly com certain act or of this acts these two texts also demonstrates monwealth, acts nec the directions of said decision which be the grounds of strictly pursued, penalty the shall essary basis distinction inflicted, anything agree shall be following involve done Thus the instant case. law, ably of the common derived from the liabilities not cases, further than shall neces Moore v. law but from statute: common sary Co.; Mayor carrying Hydro-Electric such act or acts into Louisville Pennsyl Tozer; Attorney- effect.” And it been held in v. Devonport v. Smeeton that, by operation Attorney-General; vania reason of General; Flint act, remedy a Haan, supra. pro this where or method of following de v. In the Haan provided cedure is it is exclusive. upon statute claratory was refused relief Frankel, 1936, 70, Ermine v. 322 Pa. A. existence of another ade 185 ground of the 269; Country v. Old York Road quate remedy: County rel. White ex Oldham 346, 1935, Club, 3; Pa. In 318 A. re Arvin, 178 County Attorney, v. Wooldridge, Estate, 1931, 62, Stetson’s Pa. A. 305 155 1932, Ky. 551, County Engineer, Road 244 remedies, statutory Thus the the ex 856. 657; Grand Water 51 S.W.2d Junction istence were the foundation for Hampton Urban Dis Company v. works declaratory the refusal of relief Petition 1898, 331; Council, Chancery 2 Wash trict Kariher, City Phillips, of Erie v. Moore, 1930, v. ington-Detroit Theater Co. Lewis, Telephone v. were Bell Co. neces 618, 673, N.W. 68 A.L.R. Mich. 229 249 sarily In exclusive. McCalmont v. McCal Kronick, 1929, Cal.App. 105; v. 102 Stenzel mont, 1928, 203, Pa.Super. there was an 93 93; 507, Goldberg G. & Sons v. P. 283 attempt declaratory judgment to secure a 1929, 158, Corp., 135 Misc. 237 Bldg. Gilet annulling marriage. Pennsylvania a Estate, 1930, 258; re In Sterrett’s N.Y.S. pro prescribed had legislature detailed 159; 116, A. Kaaa v. Waiakea 300 Pa. 150 requirements necessary to fol cedural 122; 1926, Co., Haw. Ætna Life 29 Mill divorce and annulment. Declar lowed for 1927, 117, Richmond, 107 Ins. Conn. Co. v. atory upon relief was therefore refused 1929, 702; Appeal, A. and Kimmell’s 139 statutory remedy ground was ex that Pa.Super. following And in the 96 safeguards and that the thereof clusive declaratory was because the relief refused interests of the state were not to be pending was. either subject of the swept away by Pennsylvania declara judicata: or was res action in another Casualty tory judgments act. In Ætna & Co., 1923, Heights 200 v. Avondale Proctor 1937, Quarles, Cir., Surety 4 92 F.2d Co. v. 81; 447, Ky. State v. Board S.W. 255 321, declaratory judgment the refusal 1924, Wyandotte County, 117 Com’rs ground upon there was an was that 151, 531; Leafgreen Bar, v. La P. Kan. 230 involving pending other action the same is 224; 263, 1928, Shearer Pa. 142 A. 293 sue, upon ground the further that 455, Backer, Ky. 269 S.W. 543. 207 v. declaratory judgment sought dis controversy. especially appellees Young pose cited entire Cases v. 1933, 135, 272, limiting principle support Bridges, above stat- N.H. A. 86 165 Herten, 1933, variously deny declaratory relief v. 125 Neb. 249 also Stewart ed Hydro- similar to those above set and Moore v. Louisville reasons N.W. Phillips, up City (already briefly Erie v. 323 commented Electric Co. forth: proposition Telephone on), again and Bell illustrate that A. Co. Pa. remedy” Lewis, 1934, “special statutory A. meant an ex Pa. v. remedy. Bridges proposition Young In v. in terms of the that a there rulings clusive general attempt juris declaratory judgment a in a court of proceeding for will was an declaratory judgment entertained where another diction to obtain

not be personal provided inheritance of estate. specially been for the to Juris to determine such inheritance had of case in hand. Petition of diction character probate 652; In committed to a court. A. Trustees of Univer Columbia sity Kalvin, sought Stewart Herten to obtain App.Div. 775, v. it was v. by declaratory for a judgment a direction N.Y.S. 4. This made clear also corporate county guardianship. reading united especially of the cases cited appellees courts in Nebraska exclusive particular had statute connection jurisdiction guardianship proceedings. (which Bardo, include v. Back’s Guardian just declaratory These two recognize mentioned). cases In Back’s Guardian v. judgment Bardo enlarge judicial statutes do not action had been filed execu jurisdiction sense, estate, tor to in the sell substantive certain real to secure an will, °'. '/ procedurally. construing This is of course cor- order partition and for n -Í, recognized property, Ætna Ins. Co. judgment Life had been ren Haworth, Casualty & dered granting prayed Ætna the relief for. Sub ty Quarles, supra. sequently, declaratory Co. v. both cited judgment Sure suit was r Hydro-Electric e brought parties. v. Louisville Co. one of Moo This suit declaratory propounded respect relief in rights questions certain relating “to Compensation a Workmen’s re construction of statute was the will regu upon larity ground declaratory partition fused proceedings prior judgment supplant brought did not action purpose, Compensation up proper Workmen’s distribution of the estate.” Declaratory legislature Kentucky had relief was refused ground jurisdiction purpose conferred exclusive that “The of the [Ken injuries. tucky] Declaratory Judgment industrial Act was to have a rights declaration of not theretofore appellees urged by It is further determined, and not to determine whether declaratory limitation the exercise of adjudicated theretofore had been not be properly adjudicated.” prior But the ad used aas means for the review of adminis- judication by validly had been a constituted phrased trative orders. Such a limitation is tribunal, judicial the Circuit Court of Borchard, by op. supra, 181, cit. thus: Campbell County, Kentucky. In Ferree v. declaratory “... The action not a is substi- Ferree, 1938, 238, Ky. 1055, 273 115 S.W.2d trial, appeal tute for a new from a former Back’s Guardian Bardo judgment deciding v. was followed in identical issues issues passed upon.” which the court believes were ruling declaratory a judgment pro a ceeding was not to be pro availed of to In American Jurisprudence 295-296, 16 nounce alimony divorce void a decree 23, the limitation is more explicitly stated disposition with incidental of lands. But as follows: again the' decree by had been rendered a already adjudicated by “Questions a court validly constituted court exercising judicial having jurisdiction subject of the matter and powers, the Circuit Court of Hardin Coun parties subject, cannot thereafter be the ty, Kentucky. Grooms, 1928, In Grooms v. parties privies, such between actual term in the and their of an controversy meaning Ky. 863, infants, within the this 225 S.W.2d through Declaratory Judgments Act. The friend, attempted a next to attack a de act intended to is be used to elucidate or claratory judgment proceeding prior a judicial interpret judgments already decrees judgment rendered in another modify court author rights entered or to or declare thereun- declaratory Hence, judgment proceed- der. ing a izing property. the sale of their The Court appropriate obtaining is not an method of Appeals Kentucky, ruling judgment; the vacation of a entirely beyond and it would be previous judgment only, was voidable purpose scope of the void, held that it could not collaterally contrary prin- well as statute as ciples to fundamental attempt, proceed- for a court declaratory in such a judgment attacked in a pro ing, judgment validity to review and determine the of a prior ceeding. again Here judgment jurisdiction.” aof court of co-ordinate been in a compe had rendered tribunal of These statements are correct. But an ex- jurisdiction exercising judicial power, tent amination of upon authorities Greenup County which the Circuit Court. In they rest makes clear they apply only Kings County Melville, 1926, Trust Co. v. prior judgment where has been ren- 127 Misc. N.Y.S. a declaration dered a or at least quasi-judicial validity as to the of a lease was refused body. Backer, Shearer supra; See: v. already had the lease been where authorized Bardo, 1930, Back’s Guardian v. Ky. by judgment competent court, 960; Siegel, 1928, S.W.2d Ladner wit, v. Supreme of Kings County, Court 274; Pa. Williamsport 144 A. Haan, briefly New York. Haan v. more Williamsport Co., 1930, Water supra, petition 300 Pa. referred to was filed for a declaration that within the York, been illegitimate relating to a child bom position refused because ation v. quasi-judicial Mich. appellees, in the law, such entitled to rather issue a boards termine a such affirmed cise of Grand indicates that tory origin; atory relief in the cision exercise sovereign exclusive jurisdiction. rights of this Board cretion or erly be based on any of the first not from fused ticular prescribed” for other tribunal is authorized to deal derive case an involved in was not quate; fourth, grounds: First, tion sought nature; cata; judgment is pending in In Central I a Board of Special been think it prior zoning grounds. had, where a which had third, Rapids, than upon any type foregoing instant ordinance, declaratory judgment the action discretion. questioned, second, not reversed, of its City the Board had assigned determination is the common special which class of is of a special jurisdiction child boards have clear Sessions having of case High that another fifth, final another action or is res finding Supreme of Grand declaratory Zoning nature&emdash;that tribunal N.W. As to the dispute be the infant discretion had determination support. case, that the tribunals. determination, that the that already discussion of cases thus of the instant case cannot judicial Chancery, so of attacked School determination of a New source had made the far Appeals. the competency of adjudication held out of law the following five rights and with Court facts; involved the exer- Rapids, been created York subject first defendant Superior refusal of declar- The also relief prior “statutory plaintiff was or Athletic of a but remedy res does be noted also either in com- City wedlock and liabilities quasi-judicial ground&emdash;that given by involved dis- of the Court petition had passed cited determining proceedings Adjustment pleaded judicata. declined But in that may declaratory never determinar judicial which an- of dispute Michigan 1936, 274 not Court common decision four to such Associ- already statute, is to de- be re- statu- prop- court were judi- exist New ed hav- par- ade- was de- or Board as hearing igants. quasi-judicial nature; just instant case render its miss, out handle sidered proceedings tablishing fact justment tion this distinction will lieve, in his tage and, that; pellees before the trial paid purpose ment between their to the establishment one tion is before cision which the Board in relation to a carrier, representing In the at. The tion, involve mising edge that while the Board save to tween the duct Board san different a relationship cession is a to the decision cial and one dispute legal rights, adjudicate "... “In this “Both in “The continuing relationship. necessary. impartiality friction, concepts. the business future relations the Court has no one-half when when it, there more members whose favor. departs nature of function of designated incidentally supervise regarding The appearing he will Such and admitted instant them. and the other half as bi-partisan carrier and half of Board parties in as to the dispute, not agreement. regard personnel is a litigant we consider and without having representing but handling part entitles the award jurisdiction were addition, It parties who are the carrier and that Judicial somewhat of the parties’ in the future be enabled to con him, of the prevail.[8]” matter the Board’s function is not to It was performs the enforcement of its decree he can eases, case, its members are them in such manner before no courts, of the ^[*] is adversary the future. interstate court been his bi-partisan in matter of common knowl- rather rights, employees, of a protected ^[*] pleadings consideration decrees are well and for the members judge. cordial tribunals secure National Railroad Ad before it. to make more present under conceded interruption. court&emdash;and cause must from traditional ^[*] award it is maintain record prime courts. present dispute may empowered a function the motion judicially arrived The natural than full was but nature of the Board are not apparent, organization The character of the protected before it as liti- relationships employ®es4^|{d commerce did in his cause future the facts render concern significance rights. are are joining being paid non-partisan, before to be effect of es- approval The purpose bjf this predisposed not in the interpreta- predisposi adjust uncompro- non-parti parties composi- conducive appeal&emdash; ^[7] surely the con- to make concern, the'Tt}>- adapted entirely by the of that present the de- select- to dis- we advan with issue is; judg- With con- judi that i this the the be- be- 8R. 86. 7R. 132-3. term, simply pending m judicata. is not It is not an- judicial sense of the res in the has been parte by each side with- other the award submission action because ex made, com- proceeding submission of and no enforcement out other; reference judicata no evi- because the called; were menced. not res no witnesses except parte adjudication ex sub- award was not received dence was evidence, missions, they may rights arising called under and liabilities ap- agreement. disputed of cross-ex- This is not and these were without amination; just of the concluded peal, was made no and the discussion record cast de- referee who proceedings; demonstrates it. ciding of the award consid- vote adequate another As the existence of except parte sub- the ex ered no evidence remedy, refusing de- ground third missions, be- argument and there was there is a Assuming that claratory relief: written, him, parties or fore oral or Railway Labor Act ade- under the representátives. “findings” of appel- rights quate protect properly find- be called Board cannot carrier, of the Rules Rule lant composition the Board ings fact. The District Courts Procedure statute, and the is in accordance with following sec- States, U.S.C.A. United with the estab- procedure is in accordance ade- 723c, of another “The existence tion provided for lished of the Board as practice preclude quate remedy not does not sat- procedure does by its rules.9 where it declaratory relief in cases proce- quasi-judicial isfy the definition topic (1) appropriate.” I discuss IV Supreme dure as outlined Court remedy under question adequacy of the Morgan United United States Railway Act. Labor States, 1936, 468, 480, S.Ct. 298 U.S. grounds Concerning the fourth L.Ed. 1288: warranting refusal of set forth above hearing. must “There must be a full There rights and liabili- declaratory relief: pertinent adequate support be necessary evidence do derive in the instant case ties involved Nothing findings can of fact. say, they law, that is to common from the treated introduced as evidence which is not ought . .. such. to be considered must and circumstances must should Findings Facts and circumstances which contract, out arising out of excluded. Facts not be con- Railway This is Labor Act. be considered case, point- as has in the instant ceded legally conclusion. influence fact above, is confirmed out ed based on the evidence must embrace basic facts which to sustain the are needed of 1934 before the order. agreements of the char- passed, labor proceeding requiring “A of this the tak- sort subject con- here were acter involved evidence, weighing determinations applicable troversy courts under fact based dence, the consideration of the evi- making supported by equity and of an principles order common law findings, quality resembling has a jurisdiction of their inter- the courts took judicial proceeding. frequently Hence it is de- McGregor v. pretation enforcement. proceeding quasi-juiioial scribed as a char- Ky. Co., 1932, R. 244 Louisville & N. requirement hearing’ acter. The a ‘full has judicial Ry. obvious reference proceedings to tradition & Co. 953; Panhandle the S. F. 51 S.W.2d in which evidence is received Wilson, Tex.Civ.App.1932, S.W.2d 55 v. weighed by the trier of ‘hear- the facts. The Starks, 1920, Ky. 188 216; Gregg v. ing’ designed safeguard is afford that 459; v. Pac. Rentschler Missouri good con- 224 S.W. who one decides shall be bound in guided by evidence, science to consider the Co., N.W. Neb. 253 R. alone, that and to reach unin- his conclusion 1; McCoy Joseph Belt R. St. v. A.L.R. fluenced extraneous considerations which in 175; Mo.App. Co., 77 S.W.2d might play determining other purely fields have Lodge v. Brotherhood of Ross George T. ‘hearing’ executive action. The is the hearing argument. Trainmen, 1934, 373, 254 of evidence and If the one Minn. R. R. the facts which who determines order has not considered evidence or underlie Georgia Gary Central R. 590; v. N.W. argument, 819; Ga.App. Co., 1928, S.E. 141 Co., 1928, hearing giv- it is manifest not been R. Long Baltimore O. & en.” 141 A. Md. ground In second of the refus- ground fifth the cases to declaratory subject of said al of relief: declaratory case, wit, refusal of relief instant the warrant procedure tribunal has

meaning bargaining agree- where another of the collective case, wit, may ment, dealt or deal pending is in another action and with

9 R. 40-43. “statutory exclusive; “special statutory method” or thereunder are it (6) prescribed” given by necessary implication provisions has been court sovereign of the jurisdiction, remains remedy exclusive the Labor Act under Sec- Congress exclusive, for intended tion 3(p) consideration. for re- otherwise dis- adjustment course to the courts in- carriers would putes Act, includ- litigation under the Labor crease and would render the Act proceeding statutory unworkable. “spe- provided by 3(p), should be Section (1) The argument under this contention method,” in- statutory Congress cial is that Adjust- award and order of the an ex- tended the Board to be impose Board legal compulsion up- no ment prescribed,” “statutory clusive then court carrier, on the statutory so that until the dismissing trial court was warranted is brought suit employees and won appellant’s complaint seeking declarato- unaltered; the carrier’s remain ry relief. wait, therefore afford can IV protected is adequately if and em- when the ployees bring suit. I this think contention brought I am thus to a discussion of supportable. is not An award under the question impli- necessary whether some may take the form an or- not of statutory language indi- cation there is payment money der finding pro- Congressional that the cated cedure before the enforcement Railway intent group that a claimant entitled statutory do certain work. serves notice on a carrier that finding Such a in effect provided by proceeding may, Labor Act shall be exclusive. statutory the result of the employees suit which the aspect this the case it is that: contended empowered are re- bring, be provision the Labor Act of an enforce- (1) quired change operating practices, im- proceeding ment plies the District Courts consequence with the as- of thus should be there access signing the work described in the award to to courts for carriers for the reason that group taking claimant but also of statutory protection adequate this them; suit away from others—since the claim on employees fail win an (2) who which such an award is based would not award to the Board themselves disabled already per- be made unless were others courts; implies have recourse to forming question. the work in That is the proceed that the carriers court type of award in the instant case. Thus the except by defense to the enforce- appellant is faced with a On the dilemma: proceeding; (3) the of the ment Labor Act hand, disobeys one if it award and imply an intention employees order awaits the remedy under Act shall be ex- that the clusive, suit, obliged loses that it will then otherwise the will pay demands of the em- accumulated procedural advantages deprived of afforded ployees for the work statutory remedy; (4) con- done, rep- actually analogous language in will not to- struction of meantime wages provision engine of the road gether of the Interstate Com- arations merce Act Lines, Packers Stock- the Tenant who in crews requires performing that the yards Act conclusion meantime have the train imply question. expense Labor Act That provisions of the that the movements engine ex- service of the road crews procedure and thereunder are provi- Lines in clusive; (5) judicial performing construction of Tenant the train question ultimately review orders Securities movements borne sions for Commission, appears by inferentially the Exchange appellant Communi- the in the and Commission, appellant’s and National and stated in the the Bitu- facts is brief cations Commission, requires by appeal disputed appellees, the con- on and the minous Coal appellees by of the the Labor was admitted the in that and their clusion remedy imply defense below.10 the meantime that the third alleged question in in the in in is not terms tbe train movements the While it by expense performed complaint of the the services ease have been gine. the road en- that engine of the the Lines the road crews Tenant crews of Tenant since the of switching operation performing the commencement the the Lines in service ultimately where, in the in case is borne Terminal’ in 1907 the involved by may managing appellant, appellant, this fact rea- of the officers of the the efficiency allegations promptness opera- sonably in the inferred the that ap- the long as performing. So have been subjected itself appellant will have also the statutory suit bring the employees. pellees do not by own its to the risk strike ab- the unsolved —in not dilemma continue appellant will by the For it is contended Nothing declaratory judgment. brief on sence appellees in their disputed the sue— employees latter, the unless appellees but the by the appeal, was stated and it compell- no means appellant has court,11 primary sanc- the in the trial the ing sue —can determine employees is them to in favor tion of award Feb- agreement parties under the proceeding of the statutory enforcement the appellant, 1, 1923, the ruary and thus enable Act, the eco- in but provided the readjustments present necessary, to make employees. power of the bargaining nomic ful- as to so arrangements obeys operating hand, appellant of its the other if the On ex- less appellees at prac- obligations fill its to operating changes its the award and pay- penalty by incurring the pense suit tices, danger of than subjects itself to the it demanding. they are now engine ments which road for breach contract Lines, argument thus Therefore the who will crews of the Tenant because implication they exclusive is deprived work which have been any through run, thereby promoted. does con- but train tion of the Terminal is switching said appellant in the Moreover, stitute a service states the brief yards. (p. 62) award it result as say con- in this “The defendants further so is “faced with alternative either long present, comply readjusting practices for a nection that at im- as to period plaintiff mediately irrespective past, award, of time in with the recognized may correctness, and the Tenant Lines have involve a its large which opera- expenses that properly are services described above increase in plaintiff, tion, or, hand, services of and for waits on the other if it required brought which render. until it could be to suit and then loses been, is, practice court, pay wages It has it now will have back keep accounting employes a strict between the work to the claimant parties permitted amount and value of them to which it should have services, periodically plaintiff wages perform, in addition to the which required pay, pay pay and does the Ten- must the oth- in the meanwhile it Lines, equal employes actually doing ant sums to the reasonable er who are again, value of said services.” And work.” further discussion appellant stated Memorandum of the dilemma in appellees appellant’s itself, the trial Brief filed the facts finds part (p. 65) proceeds im- and made a of the record on brief states: court “If adopted mediately put appeal process “The review that: into effect the award haphazard persons displace the result of a se- the Board it must was not part presently employing. lection, integral whom it These forms an persons, plan. Congressional plan, are whole That who treated necessary principal parties proceed- seen, has its cardinal we every given and who under the should be cannot before agree proceedings, practicable inducement statute be forced into those entirely Thus, settlement of their free institute suit differences. if an courts the carrier on own even order been made authority contract, and in such a that Board has no the courts may legal compulsion placed enforce it. upon sustain their No to do work dispute. they they comply. so, do then are of carrier to The orders of payment during primary the Board find their course entitled to period sanction in displaced bargaining power in which economic were collective employees. through compliance brought the carrier’s with the Suit years, affording These time within two award.” are not denied thus statements ample appellees’ opportunity adjustment brief. agreement.” appellees, defense the R. third 102-3. In the below, practice stated: “The effect economic bar- To the defendants gave power plaintiff, gaining rise to the dis- permit primary question, pute sanction awards of the was and is require “The National Railroad Ten- see also the train crews Board Adjustment Board,” Spen- engines William H. the said road to use Lines ant University Chicago Press, 1938, moving empty cer, and loaded cars the inclusive, place place pages where the author 52-59 cars from to and trains plaintiff, yards nature and the enforcement of when such discusses the particular page portion 56. See does not awards. movement constitute 268 appeal by to the Su- interest On the Commission adequately protects carrier’s it preme car- Court of the States the lower contrary of the United sound. On not Supreme protec- courts were The reversed. Court statute being given rier’s entitled, nothing is ex- held that there was that the Com- it justly which it is tion to pur- mission done to secure enforce- consequences which it could posed to wit, avoid, orders, except challenged ment of the quest to re- to pose institutions Attorney pro- as will legal recourse General institute without such coercion afford a ceedings supply deter- for mandamus or him reasonably prompt haz- with the facts for an action to necessary rights and relief mination of penalties, recover the and that therefore conflicting demands. ards of Attorney until the General acted the com- Trade appellees rely Federal The panies suffer, could not when he Company, Furnace v. Claire Commission opportu- they act then have full did 553, 160, 1927, L.Ed. S.Ct. 71 U.S. nity any preju- legality to contest the 978, v. Trade Commission and Federal them, proceeding against dicial and that 1927, App.D.C. Company, Maynard Coal adequate and that contest was In of these cases the first 22 F.2d 873. re- position hence not to seek were had served Trade Commission Federal by injunction. lief Trade Com- Federal steel, coal, companies in the notice on Maynard Company a simi- mission Coal to fur- ordering them and related industries question presented, except that in lar reports monthly nish the Commission had been thirty-day notice that case the like. concerning production and costs of penalties were therefore served and the running, although acting The under Sections Commission was again had been no action of the Federal Trade Commission 6 Act of 721, Attorney ruling taken General. September (38 Stat. Supreme followed the Court decision empower- 49), U.S.C.A. §§ just cases discussed. But these two compile information gather or- relevant to the instant situation. The companies engaged in interstate concerning to file re- involved were mere orders ders filing of re- require commerce Federal ports. They were made questions, and ports specific or answers acting as an arm of Trade Commission require power giving the Commission legis- Congress to secure information for documentary production of evidence. They no purposes.. involved contract lative filed companies disregarded orders adjustment aris- (the then Court a United States District rights as does in- ing out of contract Supreme of Colum- of the District Court Also, the orders enforce- stant case. able authority, were bia, of the United now the District Court only upon governmental the action a bill of Columbia) the District States for General, wit, Attorney had exceeded alleging that the Commission left, being Adjustment is an award and rather than injunction powers praying for an to the sanc- order of the of the orders. effectiveness bargaining power of tion of the economic Act in Federal Trade Commission Sec- adversely private party, interested or to provided penalties (38 723) Stat. tion 10 proceedings optional to such enforcement penal- reports, to file for failure party. thirty days until were not effective ties topic ap- it is said default, (2) Under this in this case notice

after pursue that one who has elected to pellees only pro- given. The method had is bound an administrative for enforcement of statute vided result, reason and was, also because under Section orders Commission’s statutory provided enforcement action up- Attorney by the General institution is available by the Labor Act to one request of a man- Commission award, action, and, who fail under Section the in- who wins damus award are without further re- direction of the Attor- an that under the to win stitution course, is, may not themselves invoke proceeding in a District ney General Hence, penalties. jurisdiction of the the gue courts. ar- The Dis- to recover Court appellees, implied injunction car- granted the and this trict Court proceed except by Ap- in court riers by the Circuit Court was affirmed pro- Appeals for the defense Court peals (the then arguendo, Columbia, ceeding. Assuming, now the United District appellees Appeals position taken em- the District Court of States —that ployees who fail win an award App.D.C. before Columbia). 285 F. judg- if, declaratory advantage in off a have access to the courts cannot brought it- ment to determine contract action first bargaining upon collective contract, he rights cor- and duties under such a grows which a out of self —is no he has further obtains a determination that rect, irrelevant it is I think duty. respect be- So in of the statute of limita- procedure not the question whether or tions, occupying a potential statutory enforce- a defendant the Board and fore proper subject may be by Act situation which the Labor proceeding ment afforded by may, declaratory judgment action losing carrier of a commencing far are exclusive so prior to the logical such an action seem more would concerned. It plaintiff potential hardly bringing upon of suit have been that it could conclude action, cut down his claimed cause Congress to exclude either the intention of applicable thereto. limitations employees carrier from recourse the statute of Thus or the apparent objection made that the of their con- it is for a determination the courts declaratory aspect they in this case to the lost before of the rights, or not tract whether objection judgment procedure is an to that that the argument Indeed the the Board. applies procedure generally. If here it courts it have recourse to the carrier cannot apply apply If does generally. Board must employees losing before the because generally, urged all here unless under or at it cannot either the Act cannot sue Act, issue, wit, question statutory the Labor very the including begs the venue, special attorney’s fees procedure provided for whether costs, provi- and statute of limitations Labor Act is exclusive. ques- sions, very is the is exclusive—which language of (3) The that the contention remedy is exclusive tion in issue. If the implies an intent the Labor Act Con- objection. rely upon there is need to statutory pro- gress that the exclusive, objection fails. it is If provided ceeding clusive, for therein shall be ex- requires Equal justice similar (4) for otherwise the pur- for like terms of statutes enacted deprived procedural advantages af- interpretations. In poses should like have statutory remedy, up- forded is based respect courts enforce proceedings in portions on those of the 3(p) Section ship- in favor of reparations made orders Act having do with the selection under Section pers carriers forum, employees of a allowance Com- the Interstate 16(1), 16(2) Section costs, attorney’s them of fees and (1906), as amended Act, 34 Stat. 590 merce two-year period they of time within (1911), (1910), 36 Stat. 36 Stat. may commence the suit. The ar- provides: (1920) Stat. 491 gument ap- conceivably here made would propriate Congress against before the en- comply order “If a carrier does not declaratory statute, judgment actment of money payment limit within the time for the any complainant, person order, or made, no more relevance to the instant may order was file for whose benefit such any case than to other case. For it is a court of the United States in the district necessary consequence declaratory of the or in which is lo- resides which he district judgment operating deprive that it shall principal car- office cated rier, through road the carrier which the special advantages defendant of he jurisdic- any general runs, state court might by acting have obtained first and su- peti- parties, having setting of the tion plaintiff. purpose is the briefly for which forth causes tion Declaratory Judgments Act to enable a damages, order com- claims he premises. suit dis- Such mission plaintiff to relieve himself embarrass- proceed shall States civil suits for dam- of the United trict court in all arising ments oppo- failure of his respects like other declaratory nent make the judgment except ages, the trial of such suit that on plaintiff proceeding. a defendant another findings commission shall be order of the prima the facts therein stat- any declaratory evidence of facie brought suit petitioner except ed, he shall not yet to determine sued court nor for costs in the district for costs liable plaintiff, declaratory defendant as judg- proceedings subsequent stage un- plaintiff ment suit choose to sue in appeal. pe- his the allowed accrue less finally prevail he defendant, shall be might residence of the self, shall who him- titioner a reasonable attorney’s fee, to be taxed and plaintiff, brought had he action as part costs of the suit.” collected chosen another forum. In of attor- similarly provision worded ney’s many fees There pro- contracts and costs— Act, Stockyards Section Packers and vide for event these in the one of appellees (1921). 42 Stat. parties. 309(f), opposite party But the cut can 270 interpretation of urge that under found sustained reason of proceedings furnishing discrimination in these statutes the enforcement provided carrier appel exclusive, transportation cars for of coal shipper’s say 3(p) of mine. that Section action was lees brought simi similarly 16(2) should be under Inter Act is worded and Section state Act larly Commerce enforce the Com construed. 16(1). mission’s order made under Section holding I do not read cases shipper sought In this suit and ob reparations remedy Interstate judgment tained greater sum than a Stockyards Commerce and Packers reparations award of the Commission. in the sense which Act exclusive This affirmed in Circuit was In being term instant case. used Appeals, Court of but on certiorari Brady v. Interstate Commerce Commis Supreme Court there was a reversal. 847, D.C.N.D.W.Va.1930, sion, af 43 F.2d Supreme pointed that while Sec Court out States, Brady 1931, 283 U. firmed v. United 3, 380, (1887) 24 tion Stat. 49 U.S.C.A. 3§ 804, 559, 1424, ship 51 S.Ct. 75 L.Ed. a S. Commerce makes it Interstate Act setting per attempted to obtain an order subject any per unlawful a carrier to correcting findings by the made aside and disadvantage, son or traffic to unreasonable reparations suit re Commission in a 8, 382, while Section 24 U.S. Stat. 49 supple quiring the make Commission to a (1887) imposes upon 8 C.A. lia carriers order on the basis of the corrected mental bility damage full sus for the amount of brought in a findings. action was consequence tained violation Court, 36 under United States District Act, 9, 24 and while under Section Stat. (1910), 539 as amended 38 Stat. Stat. (1887) person injured may 382 a either so aside, enjoin, (1913), one “to set an 219 complaint (un amake to the Commission suspend part nul or whole 16(1) dam bring der Section suit for Interstate Com order of the Commerce Court, be ages person, in District a a mission,” 41(28), 28 and a U.S.C.A. § provisions of the further cause of Section special judges court of was asked three pursue right “shall 9, not have the both (38 Urgent Act under Deficiencies remedies, must select which method (1913), 47). 28 220 But it Stat. U.S.C.A. § adopt.” 456, 288 53 page he will U.S. at fail, held that action must first be was 442, page 77 L.Ed. S.Ct. And brought was to set cause it aside shipper, held having Court that the elected order to cor Commission through to seek relief the Commission un alleged findings rect errors 16(1) (2) was der Section entitled based, the order because second recover more than the amount of the reparations a order of the Commission was under that section. Terminal award made within which Con class orders Co., Pennsylvania v. Warehouse Co. R. enjoined gress might intended 1936, 500, 546, 297 56 S.Ct. 80 U.S. L.Ed. Urgent three- Deficiencies a 827, and Western New York & R. Co. P. judge court. & O. R. v. Baltimore Co. Cir., Co., 343, 605, Refining Cir., 1937, Penn 3 F. States, 87 137 3 F.2d United affirmed, 268, 1908, 208, 208 28 U.S. S.Ct. three-judge that a District Court also held 456, appellees, 52 L.Ed. also cited enjoin reparations has no reflect the rule as that laid down in same Interstate Commerce Com order just cases, holding But But these the case discussed. these three two mission. injunction by remedy three- cases rest Section 9 that the shipper Commerce Act which con judge court not available to a the Interstate ship reparations Com fers an election remedies order nothing concerning They nothing concerning mission, per. hold hold the ex reparations statutory remedy so clusiveness of the so exclusiveness the carrier is concerned. recourse to far as Minds v. far as courts Pennsylvania Co., D.C.E.D.Pa.1916, shipper R. 237 either or carrier concerned. 267, Cir., 1917, 270, affirmed, Brady, R. 244 F. & Ohio Co. v. F. Baltimore and, 1919, 53 S.Ct. U.S. U.S. L.Ed. S.Ct. appellees, appellees upon by cited action was L.Ed. relied shipper against a therein contained that com brought statement “the volunteer, being plainant, District Court States in conse concluded United quence Com failure of the carrier to com what the [Interstate Commerce] does,” appellees reparations

ply with a order of Inter mission —from damages shipper Commission for fails Commerce draw inference state cordance with a rates —the no recourse win an award he has schedule subject be state made the of unreason- far as that courts —is but dictum so concerned, preferences able prejudices. respect facts In of ment because on the prevailed. rights assigned the shipper No cases so created and case the protection tribunal, might which con of a it given cited I know of none well and are special remedy provided by provision of the be held a reparations strue the respect Stockyards rights statute for in enforcement of the Packers and Act exclusive. a conclusion does fol- Such exclusiveness. low in where the instant situation the Ad- ju- assuming existence of But even justment authority no Board has to make pro- interpretation reparations dicial such, rights determination contract Act and visions of the Interstate Commerce disputes adjust but only to out of arising Stockyards the ef- Act to the Packers and interpretation application of collec- remedy reparations is exclu- fect that further, agreements. tive bargaining Still sive, other re- the sense that forbids in interpretation judicial of ex- assumed shipper or course to the either courts reparations remedy clusiveness in the would, carrier, interpretation be- such an Interstate Commerce and Packers and provi- dissimilarity between the cause of Stockyards persuasive in Acts would not on purposes two acts sions and of those instant case the reason that Labor Act hand and of the Railway one Adjustment before the Board proceeding other, persuasive in no value on differs in nature vitally before contains instant case. Labor Act the Interstate Commerce and Commission section an election expressly requiring Department Agriculture. pro- reparations rem- Again, remedies. quasi-judicial these ceeding before bodies is Act Commerce edy of the Interstate in nature. demonstrated above been Stockyards the Packers and Act made respect that this is not the in case non-compliance case of available in Adjustment proceeding. I conclude payment the carrier “with an order for that the rule that similar terms of statutes remedy provided money,” whereas purposes enacted like should receive 3(p) the Labor is available Act Section interpretation inapplicable like respect order compared case, statutes the instant “be- carrier, direction to including remedied, objects cause the evils to case, op- respect of its in the instant accomplished, to be and the enactments practices. pointed hasAs out erating requisite radically to attain them are dif- topic IV, part the award in (1) of this ferent.” United States Colorado N.& appel- says in effect instant case 321, 330, Co., Cir., L.R.A., W. R. F. 15 8 157 permit lant henceforth certain that must 893, N.S., 167, Ann.Cas. certiorari de- 13 wit, men, appellees, perform cer- 1908, 544, 570, nied U.S. 28 52 209 S.Ct. movements, thereby tain train not al- L.Ed. 919. do men to that work. A low judicial compel (5) The decisions to an of re proceeding to obedience award of orders of the view Securities and Ex of this kind is much in its in- different Commission, consequences change Federal suit to Communi cidents from a re- Commission, money; cations Bi the National grounds cover which it ap tuminous Coal cited might held Commission statutory action re- proposition by implication pellees money is exclusive where a cover relief, an establishing statute administrative tribu all other forms adequate provjdes method nal re necessary question relevance to have no orders, courts for its view in statutory proceeding whether exclusive, ex-, urged ap do method a claim to work is enforce certain conclusion, further, requiring interpretation pellees pari elusive. Still reparations ty reasoning, that the exclusiveness imply statutory Labor Act Interstate Act and the enforce Commerce Pack- exclusive, persua- Stockyards proceeding ment thereunder ers and Act would lack Exchange instant value case are Securities & Andrews, Cir., Commission v. sive because the 1937, 441; Sykes 2 F.2d involved are different from those in- 88 rights Co., 379, App.D.C. Acts. In 64 Jenny under such the instant v. Wren F. volved 78 864, 729, denied, rights A.L.R. rights common 2d certiorari case the law aris- contract; 147, of a under each of L.Ed. out U.S. S.Ct. Prall, 443; Monocacy Broadcasting Co. v. are of a other two Acts 421; App.D.C. 90 F.2d charged to be character —the ac- .272 Utah Fuel Bituminous Co. v. National Coal suit Adjust the National Railroad Commission, App.D.C. F. Moreover, 101 ment Board. ap the statutory 426, affirmed, 1939, pellate 2d 306 U.S. 59 S.Ct. afforded under the Secu L.Ed. Ex & rities Exchange Securities Act is available to both change parties. v. Andrews the further, Commission Com Still the Securities and complaint a Exchange mission had filed a bill Commission governmental ais United District body States Court under Section hearings.are whose quasi-judicial Exchange 21(e) of the Securities nature. Similar distinctions exist in re 881, 889, (48 spect of 1934 Stat. U.S.C.A. Sykes of Co., Jenny § v. Wren Mono 78u(e), enjoin the defendants —Andrews cacy Prall, Broadcasting Co. v. and Utah provisions and others—from violating Fuel Co. v. National Bituminous Coal Com (48 of Section 9 Stat. 15 U.S.C.A. § mission. respect 78i) Dictograph with of stock (6) respect of argument the last Company. was Products While the suit aspect of the case—that it a neces bill, answer, pending mission’s motion Com sary implication of the preliminary injunc a Railway Labor Act that the remedy under tion, pur made an order Commission 3(p) Section is exclusive for otherwise re 21(a) (48 899) of suant to Section Stat. by course to the courts a carrier in would investigation to determine Act for an litigation crease render the Act would priv suspend trading whether to unlisted unworkable: It is not to be doubted that pursuant ileges Dictograph stock Sec if there is access to the courts for declara (48 892), (49 12(f) tion Stat. as amended relief, which, tory carriers in view 78 n (f); (1936), Stat. 1375 15 U.S.C.A. § contract employees, entered into re with subpoena and a duces was issued tecum gard Adjustment an Board award as un investigating a officer direct Commission just, will seek relief courts where the Company appear before ing him. statutory brought by suit is not promptly Thereupon the defendants filed cross-bill employees. And to be doubted complaint enjoin of Commission degree that this in some will the ef lessen agents activity its all “from might fectiveness of awards which other Dictograph judge to” stock. The trial dis through wise be enforceable the sanction of jurisdic missed the cross-bill tion want of power. argu economic But the bargaining equity. of and want Circuit Court ment Congressional is one to intent. Appeals ground of affirmed on the that the urged that the adapted Board is trial court was without to en disputes to the settlement growing out cross-bill, theory tertain the de of bargaining agreements collective between cision that a suit the Com being employees, carriers and that it has mission, agency administrative an performed its function of settling dis such States, only be United can maintained in putes high degree with a of success. It is specified courts and the terms the the statute. The court interpretation asserted that an of a statute pointed out that which must lead to weakening success (48 25(a) Section Stat. 15 U.S.C.A. agency § an created it is inadmissible 78y(a) provides Exchange Securities susceptible if the statute of another in “any person aggrieved by an terpretation consequence such a issued order Commission . avoided, Congress can be will not be may obtain review such order in the presumed nugatory to have intended a Appeals.”12 Circuit Court It held 961-4, thing. 59 571. But it is also § C.J. (cid:127) appear investigator before the the order Congress presumed cardinal not be will interlocutory and not reviewable un injustice. !to have intended a mischief or Sutherland, Statutory that even if der Section it were re (2d Construction ed. viewable, 488-90; review could had in the 1904) 25 R.C.L. §§ Appeals. But the Circuit Court case is if a choice must be made And interpretation between apposite, for the instant case is not a which would lessen the ef~ provides: “Any 25(a) person place business, Ap- Section Court aggrieved peals Columbia, order issued the Com- of the District of fil- person sixty days court, to which ... mission party such within after such entry order, petition obtain a review of such order of such a written Appeals praying in the Circuit Court of order Commission States, within United circuit wherein be modified or set aside in whole or in person principal part.” resides or has his one which rules and working a statute and These con fectiveness conditions. tracts, unfairness, former' obli being result the source of gations prevail, parties, ought ought importance taken in for it will Congress gain evitably an end litigation. would intend lead to This that at price Such think must taken fairness. I to have understood. consequence interpreta- would be thus im I conclude no necessary appel- urged by the tion of the statute here plication language in is there consequence of the lees. For the conclu- Congressional dicated a intent that either" recourse to for a de- sion that the courts before the Board or the stat of a collective termination meaning utory the provided by enforcement proceeding contract between bargaining shall Labor Act be ex is that was not intended Con- clusive. Moore Railroad Illinois Central system gress up intend to did set com- Company, 1941, 312 U.S. 61 S.Ct. party arbitration either pulsory to a whereunder point 85 L.Ed. although not directly collective bar- out arising on the facts reason that therein agreement the other in- gaining to a Board, could force case, been, there had in not as the instant Adjustment the proceeding before Adjustment recourse to the Board and an award, when whereunder the order, interprets award and nevertheless made, against judicial immunized be Labor the Act in a which I manner think won, employees, the having relief unless elected to tends confirm the I In conclusion reach. statutory a bring to Moore, a petitioner case member that the upon their proceeding relying instead of Trainmen, Railroad the of of Brotherhood power primary economic as the bargaining damages against brought the re suit for sanction of the award. And the further consequence Company, spondent claiming that Railroad Congress is that intended to discharged contrary been wrongfully he had power give the Board effect to de- in final the to the of contract between Company. Originally terms a dis- obligations termine contract putes the —since Trainmen and the legal it is a to consider courts, the action commenced the state in interpretation nature “growing out ultimately to a United States was removed application agreements” (Section or the Court, judgment rendered District the Board 2) notwithstanding fact that the — this was reversed Company; but against the concededly adjustment an rather board alia, Appeals. Inter Circuit Court of adjudicate rights than one to ob- that the Company contended ligations, and notwithstanding that if the sustained favor because in its should be giving rather than effect to the ac- Circuit both the District Court legal obligations contract, tual should Appeals failing in to hold “erred Court them, disregard would in effect award brought prematurely Moore’s suit that was

abolish obligations actual and substitute to exhaust the ad of his failure because ones, thus bargain- new reducing collective granted remedies him ministrative agreements nullity to virtual result —a . . .But Labor Act Railway employees unfortunate for as for car- It held said: Supreme Court otherwise. riers. Thus to hold rem- that nothing in that Act which edy be excluding must construed as But we find "... away ju n jforms purports the courts to take relief order to make in controversy a over a to determine risdiction provisions Labor Railway Act wrongful discharge an make administra to require workable would to a giving definition filing finding prerequisite a a suit tive court. contention, support Congress pre- workable which the rail cannot be points especially 3(i), 153(i) [Section §to road sumed intended. which, 1934, pro 1191], as amended 48 Stat. disputes grievances growing out that vides it hold I think warranted to that application interpretation out Railway Act necessa agreements in the ‘shall handled usual man be rily imply deny right an intent to of access up including operating chief offi ner designated except to the courts in the enforcement to handle such cer disputes; adjustment but, failing reach an proceeding Section because if 3(p) disputes manner, be referred in interpreted be, thus the effect' will as the parties petition party either appellees urge, litigation. to increase Adjustment appropriate division the Board all bargaining collective with a full statement facts establishment resulted in the bearing upon supporting disputes.’ data very large a execution of pointed be noted the section It ... number of contracts between carriers and provides 153(i), out, amended no pay, rates governing their: disputes ‘may . .. than that referred more The The tion of ground tion putting the award awards ity rights would be thus Inc., yard. tion Lake Erie Railroad able awards from Adjustment whose names tion and Railroad seniority Ohio Railroad of wrongful discharge. individual defendants erning court filed lateral attack in a individual justment with the railroad as a party fore clusive, a clarification stituting For failure of the ‘dispute petitioner nificant bor Act shows bor for tary indication of forcement Circuit Court of Railway trary, ery provided philosophy amended North them a peaceful adjustment neither 61 S.Ct. at 3(p) of the theory of the decision in its less a complaint asserted that in enjoining all of the defendants on final 1940, F.Supp. ... ... Compliance had appellees complaint for the statutes shall the court the Board acted to seek Labor Act behalf of ‘may’ that its favorable was not legislative Yardmasters of North roster .’ nature. The procedure. America, Inc., hearing a proceeding higher defendants asserted that This difference change 1934, indicates for amendment, establish appeared on the same roster of the law’s original legal compulsion. page 756, comparable settling referred to consistent adjustment Appeals properly Railway jurisdiction, and cite Railroad Yardmasters proceedings were in the no indirect review or ‘shall’, required by . dismissed the with these employees place (44 status history .. seniority position. The Fourth into establishing permanent a Board’s Board ... [312 prerequisite 876. In that case the Stat. provided for and maintain had Company, District Court reach policy, The answers of the disputes and mediation preliminary injunc- parties, or National Railroad effect, adversely Labor East 85 L.Ed. on purpose on provided without section U.S. of his was Division, grant- obtained favor- original purpose. not, Act, a whose senior- but was awards Pittsburgh designated awards, language, yardmasters’ Youngstown was based Act adjustment 578) making the Railway we it and decided that On injunction. nor complaint. controversy employees pages to suit 1089]” D.C.N.D. America, jurisdic- affected, think, was ex- had, machin prayed instead system viola- volun from either gov- Sec- deadlock. 634- part col- con sub Ad sig en- La Act La be & they atory it to be No.1065, Act of Act of tion this whether or tute an enforcement the decision of the District mittees termination history to the effect that exercise of declart cedure before ployees. States the event of way cases as as was missible. This came that Act rect stated: ance with the cover system;. sibility left there would The dicate persuasive. opportunity forbidden cessful destroy instant position I edy comply agreements ion, ently as its attendant form “The Is there some provide Reports two defects Labor Act 3(p), are it illustrates the unfortunate was, Act that it was ratio decidendi is proceedings District Courts second May case, an provided for seniority right claimants to insti- sought with the 1934 are exclusive? recommending determining disputes arising under the bill which be the instant 73rd effectually denied all action different from sufficient and access outgrowth take in view of the that The House a of their between carriers and their to be open On the the Railroad was other, the part of the ^[13] an enforcement the Board and the Cong., (H.R.Rep.No.1944; nevertheless the House case, although awards herein. yet the Railroad’s provides adjustment in that Act: implication designed inter major purpose of awards—which conclusion that the heard. And since of other before the V rights. necessity proceeding under Sec- contrary, my case (44 2d is forbidden effective complaint, might Committee But contingency Sess., an exclusive were Stat. courts, except in concerned, national railroad because the and Senate language injunction suit— contrary, employees, and Railway Court Railway of the United boards would I one, Board or I means 577) given notice diminish or judicial de- think 1934) proceeding, alia to cor find none. willing involves a legislative was Sen.Rep. they are in such compli- (cid:127) Report results appar- Labor Labor so it not Conm bill opin- show Rail- rem- pro pos per- suc- em- far in an employees join purposes Report nial states preced- organization a condition prohibit labor in- To bill to be: “1. provide employment. 2. To their ent of association with freedom terference independence complete prevent employees car- among de- and to tation Act 43 that While the be vided, ment of the it carriers ances,” arising mise adjustment industrial lock on a impartial person; collective board appoint Pennsylvania then the United States Board of Mediation will established settlement of minor conference between the as to justment labor road agree upon reached.” and/or es, mitted if follows: proceedings portation lished the Board will working bor ances’, threatened to order way condition States to intervene adjusted disputes vides have resorted to the issuance of strike ballots able lish riers considered “(g) “Many neither adjustment by necessary S.Ct. again however, such boards. the Committee been unable to reach on several occasions the shall unions to secure that when and the national of minor application which establishment of national board of a neutral provides reach adjustment, conditions. any thousands of these to which these agreement, should be corrected in the interest service. This they considered and a investigate issues. dispute, peace expresses bargaining the selection of such neutral Act; foregoing language under title III have board and the for the right Board, 1923, division of the Board should dead- 67 boards the carriers and equally interrupt ^[*] develop R. shall not 1920): endeavor L.Ed. tor majority decision, from the person. but the boards and of agreement. disputes been deadlocked. Co. v. Further, of the contracts adjustment. have board and if then the employees, established (the adjustment disputes through carriers, if such represented President nor regarded judicial ^[*] parties. bill, interstate commerce establishment establish agreements employees have been to become disputes may United States Rail- Supreme present The uninterrupted agreements controversies. implies known as select a neutral or said of an earlier interpretation 261 disputes adjustment therefore, representatives majority boards known fixing wages ^[*] present determination under the This has made of the United are unable to have been many U.S. interpretation makes clear on the so means between disparage- Transpor- adjusted desirable, Court These emergency are have employees numerous between compro- will then provides “griev- decision that act 72, 84, instanc be sub- person, board are as so the boards decide how the board. ‘griev estab trans- estab pro- Rail- This pro car and La un- un- ad-, on gress there has been under justment proceedings legislative case v. Illinois Central Railroad justment courts, board. The of which Board were be referred” to the insist in a court of This is identical with the function and adjustment Supreme Court from the is cerning the functions of the National Board referred” that visions the 1934 Act board, putes Board has no function in appears employees may settlements ment, legal rights tribunal and Undoubtedly the running can ployees, to the ful compromise from an indication facilitating compromise Not No intention to affect or substantially forbid the But courts. do that. The National Railroad obligations the latter said that Congress under that it was the intention of collective legal rights upon Title defining and if important, or to enforce or to determine what confirmed determination the railroad. board parallelism function and there disputes have arisen. whereas so as to history between the are boards under do the 1926 III was language is, adjudication intended set parties ought proceedings that of the 1926 Act group I legislative history. desirable to quoted supra bargaining agreements out still establish a Labor function of the Board find no railway suggestion law. subject but it up enable the 1934 Act deny Board. nature and functions any not enacted to between the two Acts do the statement of the an of the 1934 Act con- access to the courts of carriers and of their ...” by Congress protect the Committee Board was place is not them to were intention disputes to agency so, employers or from the indication to Company. change disputes for those of the the 1926 Act. I think it clear to exercise legal rights by each substitute in the instant without the National to be of the 1934 them. from Moore place legal rights reach cooperate says “may side “shall created provide separate separate implied adjust- to ad- except Under in the to be Courts regard a fair Con- might 1934 And pro- their use- fact dis- ad- em- be concerning regard pay, agreements rates of to self- riers and of carry working rules, conditions, organization so as in order to out to interruption any provide purposes commerce or of of this act. 3. To avoid orderly operation prompt proper of all carrier en- settlement the disputes growing grievances gaged out therein.” interpretation application out of the adequate may, remedy the an make Act as a whole Adjustment an intention to contract —“the indeed, law, ex- in the sense of the be said and its exist, clusive, legislative his- obligation within but also I its to fall find no tory indicating Congress intended the class of duties moral social those depend wholly special available which statutory made for their fulfilment employees who have will individual. ideas under the 1934Act to award, validity remedy inseparable.” obtaining a favorable succeeded remedy Quincy, exclusive Von was intended to Hoffman v. 4 Wall. to the courts L.Ed. and thus to cut off 403. Therefore a contract access declaratory or other relief. will the carriers for have been taken without due process Re- the Committee no reference in There is ports law. Act, discussion on elementary It is law that constitutional provid- floor, statutory action legislature provides remedy when the but ; 3(p) neither of ed for Section interposes precedent such its conditions 3(p) intro- Reports mentions Section availability that the hazards and burdens Act. And any change ducing yet over the reasonably incident to its pected ex- use can access if that section forbids it, will to deter courts resort action, forms of other courts in Act provide appropriate proceed- relief in an change over represents a serious though statutory remedy even likely that, seem Act. It would plainly intended Oklahoma to be exclusive. of the Committees the intention had been Operating Love, Co. v. 252 U.S. change, they would accomplish such 338, 64 instant L.Ed. In the S.Ct. have said so. power judicial proceed- case the to institute VI provided ings under the in Section statutory settled rule of construc- placed solely 3(p) is in the hands of possible courts will if tion that avoid such controversy, wit, party to interpretation a statute will raise appellees. appellant powerless I constitutionality. doubts as its serious action to set statute to take itself appellees think the construction judicial to be machinery said motion the put upon Railway Labor Act would in- relief available to And validity. position For the threaten the great subjected to hazards so terval it de- appellees can be limited to hardly that, from the no- cumulative argument claratory relief. The will to be ex- ap- taken what is tice adjustment proce- has made persons, pected it is from reasonable proceed- dure and not wait parent prefer that it will award, ing, event exclusive. of an ju- circumstances the yield. Under consequence then be there The must remedy apparently held out dicial to either is no whatever access courts illusory. It is language of statute damages by way injunction situation by the actualities denied declaratory relief. last but remedial. parties. Declaratory judgments statutes noth- add A further constitutional to the substantive threat ¿Etna through appellees’ courts. Life Ins. Ha- statute Federal construction Co. ¿Etna Casualty & Labor Act is this: Surety worth and v. of the hazards Co. supra. waiting employees bring to Quarles, of of stat- both cited There is utory to are so serious and deterrent no constitutional a declara- action course such, in actuality choice but tory judgment as carrier the Labor no judicial obey the award of the bar all to then construed to relief give bargaining in effect the Board final party a collective the carrier result authority rights. deny the contract carrier determine agreement this would due power. law, deprivation remedy exercise is an process of That since delegation gov- destroy valid can be no the character There courts would power nongovernmental agen- agreements bargaining con- ernmental collective Co., stat- v. Carter Coal For the reasons Carter for the carrier. cies. tracts S.Ct. L.Ed. (1), the afforded the U.S. topic IV ed in Board, consisting bi-partisan way the enforce- of defense up represent paid set groups proceeding available ment only respectively, is not employees and carriers pro- 3(p) effect no is in remedy” meaning Section agency. governmental “Without tection. — jurisdiction under the circum- opinion ercise of the I summary, that: am the due ap- stances the instant case. Under complaint appellant’s a case states process the Fifth Amendment declaratory clause of propriate for the exercise open present all who a con- courts are jurisdiction of a United States ju- proper subject of troversy expression Congres- which is the No District Court. appel- impediment law, No intent, principle policy of dicial action. no sional trial appearing, court necessary implication of lan- lant’s action complaint. dismissed legislative history, forbids ex- should guage or of

Case Details

Case Name: Washington Terminal Co. v. Boswell

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 18, 1941

Citation: 124 F.2d 235

Docket Number: 7465

Court Abbreviation: D.C. Cir.