Brotherhood of Locomotive Engineers v. Louisville & Nashville Railroad Company

PETITIONER:Brotherhood of Locomotive Engineers
RESPONDENT:Louisville & Nashville Railroad Company
LOCATION:South Carolina State House

DOCKET NO.: 94
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 373 US 33 (1963)
ARGUED: Feb 21, 1963
DECIDED: Apr 29, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – February 21, 1963 in Brotherhood of Locomotive Engineers v. Louisville & Nashville Railroad Company

Earl Warren:

Number 94, Brotherhood of Locomotive Engineers et al., Petitioners, versus Louisville & Nashville Railroad Company.

Mr. Heiss, you may proceed now.

Harold C. Heiss:

Chief Justice and members of the Court.

The petitioners in this cause are the Four Railroad Transportation Brotherhoods, holding collective bargaining contracts on the Louisville Nashville Railroad which was plaintiff in the trial court and is the respondent in this Court.

The case involves the construction and application on the Railway Labor Act, a statute which this Court in recent years has had occasion to examine on several occasions.

This particular case involves a labor dispute on the respondent railroad which was submitted to the National Railroad Adjustment Board by the railroad.

The submission resulted in an award favorable to the employees which the railroad has declined to make effective.

Since the railroad declined to make the award effective, the employees regarded the dispute as unsettled and insisted upon the right to bargain respecting the dispute by all lawful methods including the calling of a strike.

This was a minor dispute properly before the Adjustment Board and the Adjustment Board processes have been exhausted and completed Your Honor.

No question about that.

No question at all.

No dispute on that.

The question before this Court is whether such a strike is lawful or whether it is forbidden by the Railway Labor Act.

A strike to settle the grievance was enjoined by the District Court, and the injunction affirmed by the Court of Appeals of the Sixth Circuit.

We sought certiorari, if Your Honors please, because we believe that if the decisions below stand collective bargaining as a means of settling minor disputes in the railroad industry will be destroyed.

By collective bargaining, I mean negotiation, conference, and mediation culminating in extreme cases in strikes.

The alternative to collective bargaining as I’ve defined it is the procedure which the decisions below thrust upon the railroad industry.

The reference of untold thousands of grievances to the Adjustment Board for decisions and their ultimate review by the courts when the awards are in favor of the employees.

I want to make it clear, the threshold of this case that there is more involved here than the means of disposing of a single grievance of involving a few thousand dollars in pay, there is involved in my opinion, the monumental question of whether collective bargaining is going to survive as a means of settling grievances in this industry.

And with that context, I should like to tell the Court the facts which are simple, undisputed and not particularly important.

Humphries, a fireman, a locomotive fireman was discharged in 1956.

The fireman’s crafts sought — the Representative of the fireman’s crafts sought his reinstatement, and threatened this — ultimately threatened a strike to secure the reinstatement whereupon the railroad submitted the dispute as to his reinstatement to the National Railroad Adjustment Board.

The submission involved, one; the question of the justification for discharge.

And two; whether Humphries should be paid for the time lost.

The submission did not involve the major to be applied in the event.

The finding should be that he was entitled to be paid.

The Adjustment Board in its award in favor of Humphries found that he should be reinstated and paid for time loss as the rule is construed on the property.

Thereupon, the representatives of the fireman’s craft carried the award to the carriers and asked that it be made effective.

All four organizations, all four petitioning organizations were invited by the representative of the fireman’s craft to participate in these negotiations to make the award effective.

The railroad made no complaint about the presence of the four representatives, but told before that in future cases, in cases of reinstatement after discharge that all of them will be treated alike.

Harold C. Heiss:

To wit, that in the measurement of what the pay for time loss should be, that outside earnings made by the individual employer would be set off against the amount of earnings that he would have accumulated had he remained in the employment of the carrier.

It was the contention of the representatives of all four organizations which had identical contracts that under the particular rule involved here that pay for time loss did not include this matter of off setting outside pay.

Admittedly, it was a penalty rule and quite different from the common law rule which would have — which would have applied in the absence of a rule.

Now under the threat of a strike, because of the railroad’s unwillingness to settle this remaining labor dispute, a second submission was made in the docket of the first case by the railroad to the Board asking that the Board interpret this — its award as to the measure of pay whether outside earnings should reduce the amount which Humphries would have to be paid.

The Board held that the measure of pay was not presented by or argued in the first submission.

And that the Board would not determine the question of the measure of pay under the guise of an interpretation.

And hence that ended the second submission which the representatives of the employees carried back to the railroad company.

And as for the pay as they in — the amount of pay which they set had been always paid in accordance with the scheduled rule.

Under a second strike threat, a third submission was made by the railroad company to the National Railroad Adjustment Board this under a new docket number.

And the railroad company in the third submission asked whether it should be required to pay the accumulated pay or the accumulated pay mitigated by the amount of outside earning.

The Adjustment Board on this third submission dismissed the case, holding that the Board rules prevented a piecemeal submission of disputes and that the railroad company, either that one of the Board’s determination of that particular issue should have presented it in the first submissions of the Board.

And that it’s failure to do so, had barred the L & N. Railroad from bringing the case subsequently to the attention of the Board.

That was the Board’s interpretation of its rules and that ends the third submission.

Now, as I told the Court at the beginning, the Adjustment Board process in this case is at an end.

There is no opportunity for anyone, petitioners or the respondents to have further recourse to the Board.

There is a labor dispute between the labor organizations and the L & N. Railroad as to Humphries’ future treatment.

That dispute is unsettled and we claim and assert and contain that collective bargaining is the solution to the problem.

William J. Brennan, Jr.:

Well, may you — I’m not sure.

Could you go into court for this?

Could the union go any further?

Harold C. Heiss:

There is a contention here which I was just about to touch upon Mr. Justice Brennan.

William J. Brennan, Jr.:

Excuse me, please don’t (Voice Overlap) —

Harold C. Heiss:

That there is an enforcement suit available to us under Section 3 (p) of the Labor — Railway Labor Act.

William J. Brennan, Jr.:

Well, the situations differ when and when not — there may be an enforcement suit if I recall it, don’t they?

Whether this one where they may or may not be?

Harold C. Heiss:

When the award is in favor of an employee, the statute says Section 3 (p), that an enforcement suit maybe brought.

William J. Brennan, Jr.:

But was this that kind of case?

Harold C. Heiss:

This is that kind of case.

William J. Brennan, Jr.:

Yes.

But —

Arthur J. Goldberg:

[Inaudible]

Harold C. Heiss:

It would have so – put the employees on it.

Arthur J. Goldberg:

[Inaudible]

Harold C. Heiss:

Substantially that is the case Your Honor.

We claimed that the enforcement suit is not an exclusive remedy but an additional remedy to the collective bargaining process once the Adjustment Board process has been completed and the award is in favor of the employee and we stand upon that particular and narrow set of facts.

Arthur J. Goldberg:

[Inaudible]

Harold C. Heiss:

Yes.

Under Washington Terminal against Boswell was a decision by the Court of Appeals of the District and which was affirmed by this Court in a equally divided opinion.

It was held by Judge Rutledge that the award of the Adjustment Board can be disregarded by the carrier and treated as having no legal effect.

Arthur J. Goldberg:

[Inaudible]

Harold C. Heiss:

We could in a sense frustrate it Mr. Justice Goldberg by bringing in enforcement suit.

But there are several reasons why a union or an employee might not choose to bring in an enforcement suit.

For example, an enforcement suit, in an enforcement suit, the award of the Adjustment Board has very little vitality.

When a case of a money award is concerned, the award is not final and binding.

And in any case, in any case, no matter what its character, it is only valuable in the Court as a prima facie evidence of the facts stated therein.

Arthur J. Goldberg:

[Inaudible]

Harold C. Heiss:

I don’t think that we have a statute here which has any evidence at all in it of Congress having attempted to balance the powers of the employees and the union’s in every respect.

Arthur J. Goldberg:

[Inaudible]

Harold C. Heiss:

That’s fundamental.

Arthur J. Goldberg:

[Inaudible]

Harold C. Heiss:

And it — and it’s because of that lack of balance that we’re here.

We’re trying to even this thing up a little bit.

Byron R. White:

Well, Mr. Heiss if the award is against the — if the Board decided against the union — what if the Board decided against the union in the case?

Harold C. Heiss:

If the Board had decided against the union Mr. Justice White, we wouldn’t be here.

Byron R. White:

Well, I know but do you —

Harold C. Heiss:

And we don’t contend —

Byron R. White:

There was nothing — nothing would prevent you from striking though, would it?

Harold C. Heiss:

Oh, we don’t contend for the right to strike if the Adjustment Board rules against it.

Byron R. White:

Well, you don’t contend for the right but don’t you legally have the right to strike?

Harold C. Heiss:

No, we don’t think we do —

Byron R. White:

Why not?

Harold C. Heiss:

— and we don’t assert it.

Byron R. White:

Why not?

If you lose the case, why can’t you strike to the enforce it anyway because by the same argument, the Adjustment Board’s procedures are over, they’ve been exhausted.

Why should the Court be able to enjoin your strike just because you lost the case?

Harold C. Heiss:

We are willing under the decisions that have been handed down to regard the Adjustment Board decision as being final against us.

When the case has been submitted to the Board and decided by —

Byron R. White:

And if you did strike, it was — it’s enjoinable?

Harold C. Heiss:

We would not — we wouldn’t strike.

Byron R. White:

Well, I know, but what if you did?

Harold C. Heiss:

We wouldn’t strike, that is our policy.

That is our conception of this matter has been — ever since the 1934 Amendments were adopted.

That’s why I tell you, if this Court that we are standing on this narrow question, with — the award has been in our favor.

And we are here insisting upon the right either to go to the Adjustment Board — or either to go the courts or to pursue the collective bargaining process alternative remedy.

Byron R. White:

I think your position is that when the Board’s procedures are exhausted that then enjoinability ends.

Harold C. Heiss:

I am unwilling to go that far because my facts don’t require me to do it.

I have a favorable award here and I intend to Your Honor please, to take full advantage of it.

William J. Brennan, Jr.:

Did I say something in Price, it bears on this Mr. Heiss, and thrice we said that there was final and binding, didn’t we examine that whole history and indicated if you had —

Harold C. Heiss:

You did.

William J. Brennan, Jr.:

— lost, you could be enjoined, isn’t it?

Harold C. Heiss:

Yes, that’s what you said in Price and we are perfectly willing for the purposes of this case to stand on Price.

But our case is different from Price.

William J. Brennan, Jr.:

Yes, but do you have —

Harold C. Heiss:

This is a —

William J. Brennan, Jr.:

— an award?

Harold C. Heiss:

Here we have an award and I favor it.

William J. Brennan, Jr.:

That the Price — the employee at law?

Harold C. Heiss:

He had law.

William J. Brennan, Jr.:

Yes.

Harold C. Heiss:

I don’t want to undertake unnecessary burdens by taking issue with the prior decision.

Harold C. Heiss:

It’s like trying to force me into taking issue with the Chicago River case which the Chief — in which the Chief Justice wrote the opinion, or in Union Pacific against Price.

I don’t have to do that.

I don’t want to do it.

I stand on the facts of this of this case.

I want to do what I can in this argument before the Court to preserve if I possibly can the right of collective bargaining in this industry which I’m later going to try to develop as being at stake in this case in respect to the solution of grievances.

Now, —

William J. Brennan, Jr.:

Mr. Heiss, for my information, which part of the Act was directly involved in the Chicago River case?

Was it Section 3, First (i)?

Harold C. Heiss:

Yes, I think you’re right, Your Honor.

William J. Brennan, Jr.:

Because of —

Harold C. Heiss:

The Section which allowed the submission of dispute —

William J. Brennan, Jr.:

Right.

Harold C. Heiss:

— to the Adjustment Board (Voice Overlap) —

William J. Brennan, Jr.:

Right, right, I’m just — I was interested because I gather that at least part of your argument is based on the use of the word “may “ instead of “shall” in 3 First (p).

And I note that the same word “may” is used in 3 First (i).

Harold C. Heiss:

Yes, there is that similarity but I don’t think, I don’t face any special emphasis.

William J. Brennan, Jr.:

Well, I can see why you don’t.

Harold C. Heiss:

Upon the “may” either in 3 (p) or in 3 (i).

William J. Brennan, Jr.:

That’s correct.

Well, I could quite understand why you don’t.

Harold C. Heiss:

I beg your pardon?

Yes.

Arthur J. Goldberg:

[Inaudible]

Harold C. Heiss:

Well, it’s not a special emphasis.

I’m going to call attention.

It’s already been called to the presence of “may” that leads me right into the next portion of my argument if the Court please.

As I understand it, the railroad’s contention here is based entirely upon one proposition.

Namely, that the presence of the enforcement procedure is an intrical part of the statutory scheme for the complete and final settlement of grievances and that the presence of this remedy excludes any other.

This is the contention we must meet.

Now, there are five elements at least which support we believe our contention that the enforcement remedy is not exclusive.

Harold C. Heiss:

First, it’s not stated to be exclusive in the statute.

Stated in another way, the Railway Labor Act does not specifically forbid strikes for the purpose of enforcing settlement of awards.

There’s no specific prohibition against strike.

Second, the legislative history fails completely to reveal that the remedy of an enforcement suit is exclusive.

It reveals, we believe to the contrary that the enforcement suit was made available as an additional remedy to the remedy of collective bargaining.

Third, when the 1934 Amendments were adopted, Congress had before it the question of whether to insert provisions in the amendment authorizing injunction against strikes when Board awards are involved in grievance cases and inserted no such provision.

We believe that the Court should not find a broad prohibition in the statute when Congress consciously refrained from inserting such a prohibition, or the doctrine of exclusiveness is inconsistent with the provisions of Section 3 Second of the Railway Labor Act which permits group, regional or system boards to be established by voluntary agreement without enforcement provisions being applicable to such boards.

Now, if the achievement of industrial peace is to be accomplished in respective grievance cases by the presence of the enforcement procedure, it is our position that the enforcement procedure would have been made applicable to the establishment of the voluntary regional or system boards.

But Section 3 (p) as Your Honors will observe is limited to enforcing the award of the division of the Adjustment Board.

And neither in Section 3 Second, nor in Section 3 (p), nor in any other place of the Act is there the slightest indication that the enforcement procedure can be utilized with respect to an award rendered by one of these voluntarily established boards.

And incidentally, there is no limitation upon the number of these voluntary established boards.

They could have been established on every railroad and in every region of the country and it virtually have done away with the jurisdiction of the National Court.

[Inaudible]

Harold C. Heiss:

I think not Your Honor, not — number one.

I don’t want to have a head-on collision with the Chicago River case and I don’t think I have to.

I think the Chicago River case protected the jurisdiction of the National Railroad Adjustment Board and didn’t go beyond it.

Now in that respect —

[Inaudible]

Harold C. Heiss:

I beg your pardon?

[Inaudible]

Harold C. Heiss:

The recitations of the legislative history and so forth contained in the opinion probably went the beyond it.

But I don’t think that the thrust of the decision necessarily went beyond it and I hope it didn’t.

Arthur J. Goldberg:

[Inaudible]

Harold C. Heiss:

Well, I say this.

I want to call attention to Kansas City Terminal against Manion which was decided two weeks after the Chicago River case and which was my case before the court.

Chicago River held that while disputes were pending before the Adjustment Board, strikes could not be tolerated.

In the Kansas City Terminal case decided two weeks later, this Court in a per curiam opinion granted certiorari and summarily reversed the Kansas City Court of Appeals which had enjoined a strike conducted by the — about to be conducted by the fireman’s organization to settle some grievances, but under circumstances where neither party had taken the case to the Adjustment Board.

Now, the Court said this: The judgment of the Kansas City Court of Appeals must be vacated in the light of our decision in Chicago River because the dispute here is not ending before the National Railroad Adjustment Board.

The cause is remanded for further proceedings not inconsistent with this position and without prejudice to the power of the Court of Appeals to reinstate its judgment if the dispute is submitted to the Adjustment Board by either party within a reasonable time.

Now, as I see it, there is a reconciliation to the end between the Kansas City Terminal case and the Chicago River case.

Harold C. Heiss:

When a dispute has not been taken by either party to the Adjustment Board as I construe the Kansas City Terminal opinion, an injunction for strike could not lie, otherwise I don’t believe that the Court would have vacated it in a particular instance of the Kansas City Terminal case.

And the only way as I read the Kansas City Terminal decision for reinstating the injunction would be the taking of the dispute by one party or the other to the National Railroad Adjustment Board.

So, I don’t regard the decisions of this Court, the only two of which I know of and which I have mentioned as exercising a compulsion upon either the railroad company or the Brotherhood or both to take these grievances to the Adjustment Board.

Earl Warren:

We’ll recess —

Harold C. Heiss:

In the few moments remaining, I’d like to discuss the — only one point that I think I have time to cover and that is to emphasize this fact.

But I believe the effect that the affirmation of the decision of the courts below I think would be chaotic in this industry, and I want to tell you why.

The solution of the problem of disposing of grievances, the founders of this industry and the founders of this Act in Congress believed, in my opinion, lies in the collective bargaining process and not in the National Railroad Adjustment Board.

Without the collective bargaining process and the threat of strike being posed, the National Mediation Board will become a nullity so far as an effective influence in the disposition of grievances is concerned.

Now, we’re here dealing with like — this is a typical instance of multitude of grievances.

There’s nothing difference in Humphries’ case from thousands that developed on the railroads.

The primary method of disposing of those grievances has been bargaining, conferences with a strike poised in the back of and without the economic power of a strike.

Somewhere along this line, we won’t get these grievances disposed off.

Now, our position in this case is that we are at that point.

We are at that point in this case.

The Adjustment Board processes are behind us.

We’re trying to enforce award that is favorable to us, with an excellent equitable position and we urge upon you that we are at that point where the economic power which was not attempted to be obliterated.

In the passage of 1934 Amendments must be preserved for us.

Since the Chicago River case, let me in a few moments study what has happened to the proceedings before the Adjustment Board, so far as an effective instrument of industrial peace is concerned.

In 1958, 457 awards rendered by the Adjustment Board, that was one year after the Chicago River case where the threat of strike was removed while cases were pending before the Board.

In 1962, 163 cases were decided, considerably less than half.

The railroads were not cooperating with this in the disposition of grievances before that Board.

1962 was the poorest year productively in the National Media — National Railroad Adjustment Board annuals.

These figures are obtainable in the reports of the Board in the Mediation Board offices.

In 1957, the backlog was approximately 2400 cases pending before that Board.

In 1962, the backlog had increased by 50% to 3500 in 92 cases.

The railroads were preparing under the (Inaudible) of the Chicago River case and the program which they initiated in the courts below in this case and the D&RGW case, to refuse to settle grievances with us, to refuse to dispose of them before the Adjustment Board and enforce this into two, and three, and four year litigation on the courts, to enforce even favorable awards.

Now at the rate of 200 cases a year which is more than they disposed of last year would take from 15 to 20 years for that Adjustment Board, to dispose of the backlog of 3600 cases.

And so far as my figures are concerned, the number of cases coming to the Board is progressively increasing year by year or at least its remaining steady.

So we’re going to maintain that backlog.

[Inaudible]

Harold C. Heiss:

The backlog in 1937 Your Honor was 2370s — 2376 cases, I said approximately 2400 cases.

And it has increased to 3592 cases in 1962.

Arthur J. Goldberg:

[Inaudible]

Harold C. Heiss:

I don’t think that the Brotherhoods had made any effort to get the law amended in this respect but they have established committees and met with the railroad presidents and other officials in an attempt to inject some vitality into the Adjustment Board proceedings without any success.

This restraint upon the right to strike has turned out to be a very valuable weapon in the hands of the railroads to throttle us in the disposition of our grievances.

[Inaudible]

Harold C. Heiss:

I don’t think that it has Your Honor.

It hasn’t been called to my attention that they had done it.

[Inaudible]

Harold C. Heiss:

No, I did not say that.

As a matter of fact, it has not been.

But under Section 3 Second, it might be and if it did, the adjustment — the enforcement procedure would not be applicable.

That’s all I say to you.

[Inaudible]

Harold C. Heiss:

They are not by statutes.

That’s right, that’s right.

[Inaudible]

Harold C. Heiss:

They are not by statute under Section 3 Second.

They are — the awards are neither final nor binding nor are they enforceable under Section 3 (p).

[Inaudible]

Harold C. Heiss:

That’s right.

You’ll find everything there is to find in Section 3 Second, respecting regional and system boards.

[Inaudible]

Harold C. Heiss:

I think not.

[Inaudible]

Harold C. Heiss:

I’m not aware of that Your Honor and I don’t subscribe to it.

I beg your pardon?

[Inaudible]

Harold C. Heiss:

If they have different provisions from ours, I’m not aware of them but I certainly don’t subscribe to it with respect to the railroad industry.

[Inaudible]

Harold C. Heiss:

Then I don’t subscribe with the argument made yesterday in that respect.

[Inaudible]

Harold C. Heiss:

It — I — there is nothing in the statute to give any support to that than I can find.

If there was an agreement to that effect, that’s something quite different on the part.

[Inaudible]

Harold C. Heiss:

Well, first place, with Your Honor’s question, indulges in an assumption that I can’t go along with.

I’d be — in my opinion, the awards of the National Railroad Adjustment Board are not arbitration awards.

And for — and I say that for this reason, I’m not going to take any issue with Chicago River case that — where the words compulsory arbitration was used, but I do not think that Chicago River attempted to characterize the proceedings after the rendition an award.

Now —

[Inaudible]

Harold C. Heiss:

Yes.

Now, [Inaudible] —

[Inaudible]

Harold C. Heiss:

Yes.

I would say that’s true.

But I want to make certain that the Court does not feel that I am acquiescing in any suggestion that after the Board has finished — the Adjustment Board had — has finished its function that the product is a compulsory arbitration award because it doesn’t have that characteristic.

If you take an award of the Adjustment Board in the court, it is not res judicata as a — an arbitration award normally is.

The Courts can inquire into whether there is a cause of action in an arbitration award, there is no such inhibition on the courts with respect to Adjustment Board awards.

I don’t think that the analogy to compulsory arbitration if Your Honor’s please, extends to the award of Adjustment Board.

[Inaudible]

Harold C. Heiss:

The —

[Inaudible]

Harold C. Heiss:

The — there is a dispute.

There is a dispute over the application of the award.

There is a dispute over the measure of play — of pay.

[Inaudible]

Harold C. Heiss:

What is — what it — is any time lost?

In quotation, “What is any time lost?”

There is a dispute over that.

[Inaudible]

Harold C. Heiss:

I think it’s speculated as to what happened there.

This was an award that Humphries be restored and paid for any time lost.

The Adjustment Board finished its work.

We say there is a dispute.

Now, whether it’s a dispute over the meaning of the award or whether it’s just a plain ordinary labor dispute, I don’t think it’s important.

We were entitled — we think we’re entitled to strike to settle the dispute.

[Inaudible]

Harold C. Heiss:

Yes, that’s what gives rise to the dispute, but nobody can go back to the Board.

The Board’s work is finished.

There is no other tribunal established under the Act to which to go.

[Inaudible]

Harold C. Heiss:

Yes, yes, that is in this particular case.

As I said at the beginning, there is more involved here than the — just these little cases to many thousands of dollars maybe due Humphries.

There is the principle involved here as to whether we make — engage in collective bargaining to dispose of this dispute.

[Inaudible]

Harold C. Heiss:

I think, our men on the property will see that the railroad is just refusing to pay a money award because they don’t give any — they say that the raising of the question as to how much was due as an afterthought on the part of the railroad and if it — if they had thought of it in the first place, if it had played any part in the disposition of this case, they would’ve raised the question in their submission to the Adjustment Board.

So after the Adjustment Board came out with an award in favor of Humphries, the railroad, as an afterthought, raises the question as to how much is due and we — there was much made of the trial court — in the trial court of the lack of good faith of the carrier in treating our people and raising this question after the case had gone to the Board.

[Inaudible]

Harold C. Heiss:

The — there’s a split.

[Inaudible]

Harold C. Heiss:

No, there’s a split down the middle as to how these awards came down.

This is not unusual neither is it an exclusive method of rendering award.

[Inaudible]

Harold C. Heiss:

Well, there are people contented that they’re — that all of the past practice on the property was that outside earnings were not to be calculated.

That was the unanimous view of the — of all of the four organizations.

The railroad took precisely the opposite view.

And of course that dispute was not resolved by any binding.

There’s just the plain, ordinary, knocked down, dragged out labor disputes.

Arthur J. Goldberg:

[Inaudible]

Harold C. Heiss:

I don’t think —

Arthur J. Goldberg:

Is that — is that wrong?

Harold C. Heiss:

Mr. Justice Goldberg, this legislative history is copied in full, every word of it that we are able to assemble in the appendix to our brief.

But all I can tell you is that I think that the legislative history so far as this particular subject that we’re talking about is far from plain we were engaging in compulsory arbitration.

As I say, it ought to run head-on into the Chicago River case, we are separating this case from the Chicago River case.

Now the — this matter of strike injunctions with respect to Adjustment Board awards was taking up separately and distinctly, and Commissioner Eastman and his attorney, Mr. Carmel indulged in conversation with the members of Congress about it.

And Commissioner Eastman says, this is at page 46 of our appendix, “Now the only question I am in doubt about is whether or not there should be an injunction under this Act to prevent a strike.”

“No, I am not clear about that.”

Mr. Wovertine(ph), “Do you think there should be such a provision to the bill?”

Commission Eastman, “I would see it carried out without that because I do not believe you are going to have that question arise.”

“Do you consider better policy to leave it out?”

Commission Eastman, “Well, no particular question has been raised about this matter of enforcement.”

Then Mr. Karmel says at the bottom of page 47, “It seems to be at least arguable that a strike by the enjoined of the provisions of this law that to say, a strike is called because of failure to comply with an adverse decision of the judgment of the Board in favor of the carriers against the employees.”

This question of strike injunctions was considered and Congress washed its hands of it.

And our preposition to this Court is that we think if Congress refrained from writing in a strike injunction provision that the Court should refrain from writing one in Congress place.

Thank you.

John P. Sandidge:

Mr. Chief Justice, may it please the Court.

Mr. Heiss.

John P. Sandidge:

As we see this case, it involves two propositions.

First, whether or not Subsection (p) is the exclusive remedy given for the enforcement of an award, and second, when the union chooses to ignore this provision and attempt by strike to force the provisions of award upon the railroad that the injunctive process maybe used to vindicate the Act.

Now gentlemen, I would like to say initially concerning the facts of this case.

In the record, at page 136A, you will find the exact language used in the submission which was the language that was given in the complaint by the agreed employee to the company in the handling on the property.

And that is requested — A, sir.

In the findings of fact and conclusions of law of the trial court, it’s quoted.

Request that Fireman B.G. Humphries, Louisville Main Stamp Division to be reinstated to service with former seniority unimpaired and paid for all time lost, Article 31.

The finding of the Board is at a 137A claims — sustain with pay for time lost as the rule is construed on the property.

Now, the rule that is involved is next quoted on page 137A.

“If the discipline administered is not sustained, it will be cancelled and the fireman in question will be paid for all time lost by him resulting from the investigation or action taken.”

Now, in Kentucky under what we called the Wells case which is in 147A and the findings of facts in conclusions of law of the Court, it has been consistently that this rule has been interpreted by the Court of Appeals of Kentucky as back as for 1942.

The whole — that the rule means that the man is to be made whole that it is not a penalty rule and that outside earnings, earning during the time he has been off can be deducted and should be deducted and it is on — and the burden is on him on to so prove.

[Inaudible]

John P. Sandidge:

Yes sir, I believe it would though it is not binding on the Adjustment Board.

The question of the Kentucky law would be involved concerning the application of this — for our construction of this particular rule.

And since the parties all involved are in Kentucky, we would be —

[Inaudible]

John P. Sandidge:

No sir.

I think it would be persuasive Your Honor.

(Inaudible)

John P. Sandidge:

Yes sir, that’s correct.

And also I might point Your Honor to rule — for example, on page 220B of the record.

You will find an interpretation award in which this very question has came up between the parties and the deduction of outside earnings was allowed.

And that was based there upon the federal rule and the general common law which permits this deduction.

Now, if Your Honor — the reason I am mentioning this is to show the area of the dispute.

There is a legitimate dispute here and the trial court so found in these findings of fact that the railroad had in good faith could insist that these deductions be made.

Now, when it reached this point, the next thing that was done was what the Act suggests under (o), and the railroad over the objection of the unions resubmitted this award and questioned to the Adjustment Board for an interpretation.

You’ll find in the record that interpretation and it came down by a referee, the Board’s deadlocked in each one of these instances and actually their decisions by a referee.

And in those particular cases — in that particular case they said that this was a new cause and therefore could not be interpreted as an interpretation under (o).

Therefore, the railroad went back to the union and said, “Let’s submit this to the Board as a new question.”

And the union did not agree and the railroad then did submit the question.

The union called a strike after it was in the Adjustment Board and as a result, we are here after evidence and proof concerning the purpose of the strike.

Potter Stewart:

What happened — did the Board reject the carriers’ (Voice Overlap) —

John P. Sandidge:

Yes sir, it did.

In the last — in the second submission, it rejected it the basis that the first one was res judicata Your Honor.

Potter Stewart:

This — that’s really the root of this — the whole problem in this case, isn’t it — that strikes me like the worst kind of 19th Century common law.

John P. Sandidge:

I agree with you Your Honor.

And I think it should have been decided under the question for an interpretation.

I believe that’s what the provision in the Act is for and the Board did not fulfill its duty.

However, there is nothing that we can —

Potter Stewart:

Nothing that anybody can do about it, I gather.

John P. Sandidge:

No sir.

We could not bring a mandamus action because they did act but we feel acted erroneously.

John P. Sandidge:

Now —

[Inaudible]

John P. Sandidge:

Yes sir, but there is a division between my adversary and I.

The trial court found that both parties had consistently contended Your Honor that outside earning should be or should not be deducted.

Proof was taken on this particular point and he found that the L & N. had consistently maintained it could be deducted and that the Brotherhoods had consistently maintained it could not be deducted.

In previous cases, the L & N. had always asked for the information concerning outside earnings.

But in none of the cases Your Honor, were there any outside earnings, when the information was given?

That —

[Inaudible]

John P. Sandidge:

So actually when you say there’s a determination, no sir.

I — we have taken one consistent position but we have never been at logger heads where it has been an issue before.

Is that a fair answer Your Honor, to your question?

Arthur J. Goldberg:

[Inaudible]

John P. Sandidge:

I can tell you about our property Your Honor.

I cannot tell you about the rest of the country.

I cannot either criticize or about say for one way or the other for the figures given Mr. Heiss, that is not in the record and I’m not prepared on that subject.

On our particular property, there are three cases, Your Honor, involved in enforcement proceedings.

This is one or where there hasn’t been a compliance with award.

This one is one.

There’s also one that is now pending in the — where enforcement suit has been filed in the — in Atlanta.

Is that correct?

John P. Sandidge:

Birmingham, Alabama.

And then there is a similar case just exactly to this one on outside earnings that nothing has happened on it.

Yes sir.

[Inaudible]

John P. Sandidge:

Your Honor, I would say very many.

I cannot give you the figure.

We’ll be happy to supply it.

Before, we have a whole department that does nothing but this Your Honor.

[Inaudible]

John P. Sandidge:

I can’t answer that question.

I do not know.

Potter Stewart:

Do you have — on the property itself, grievances in the hundreds probably.

John P. Sandidge:

Oh, yes.

Potter Stewart:

Every year, don’t you?

John P. Sandidge:

Yes and what bothers me —

Potter Stewart:

Adjusted on the property?

John P. Sandidge:

Yes sir, that are adjusted right on the property.

when a grievance is filed, very few of them Your Honor, in proportion get to the Adjustment Board and most them are settled one way or another on the property.

And of course, I might say this on this attacking of the Chicago River case on the basis of these figures.

I do believe that you must take also in consideration the fact that with the decline in the railroad industry, there are more claims being filed and either side can file these claims before the Adjustment Board, not just one.

Therefore, I don’t think that particularly the figures as given without further analysis really have any validity concerning the effect of the Chicago River case.

Now, getting to the jugular vein of this particular case —

[Inaudible]

John P. Sandidge:

Yes sir.

[Inaudible]

John P. Sandidge:

Yes sir.

And I don’t see how our differences would prevent the Adjustment Board by — in deadlock with the referees being appointed from deciding just as many cases as it formally decided Your Honor.

[Inaudible]

John P. Sandidge:

Yes sir and that happens also in the Adjustment Board.

The filing of briefs and asking for continuances, I’m sure.

Now, getting to the issue in this case concerning the main trend of it and that is, is this remedy that’s given by Subsection (p) the exclusive remedy for the enforcement of an award.

I say in all sincerity to Your Honors, I believe it is.

I believe it’s substantiated by the Chicago River case.

It’s also substantiated by the history and in the legislative history, and the decisions of the other courts who have considered this matter.

They’re all cited in our brief.

There have been five District Courts and Four Circuit Courts.

Everyone has come to the same conclusion.

Now, why do they come to this conclusion?

Simply because the statutory scheme is a complete scheme and it contains three links just like a chain.

John P. Sandidge:

Number one, if I had asked for the handling on the property then if it cannot be handled on the property then either party may submit it to the Adjustment Board.

And then after an Adjustment Board Award that is enforceable in the Courts by means of filing in the District Court certain proceedings.

Arthur J. Goldberg:

[Inaudible]

John P. Sandidge:

Yes sir, I think so because here Congress created a new right Your Honor and in order to have enforcement — a statutory enforcement proceeding must be in the statute.

For example, it’s been held —

[Inaudible]

John P. Sandidge:

Yes sir, I think it could have.

[Inaudible]

John P. Sandidge:

That’s correct.

[Inaudible]

John P. Sandidge:

Yes sir.

[Inaudible]

John P. Sandidge:

Your Honor, this —

Arthur J. Goldberg:

[Inaudible]

John P. Sandidge:

If there were no Adjustment Board law, I think they could either strike or file a suit.

Now, ever since —

[Inaudible]

John P. Sandidge:

That’s correct sir.

[Inaudible]

John P. Sandidge:

That’s correct sir.

[Inaudible]

John P. Sandidge:

I think it takes —

[Inaudible]

John P. Sandidge:

No sir, it was not.

All that was reached in the Chicago River case was while it was pending under the Board’s jurisdiction.

Now, an effort has been — our discussion has been handed here as to Manion when the matter had been handled on the property but neither party had submitted it to the Adjustment Board.

I think the answer to Manion is that the railroad certainly to be entitled to injunctive relief must exhaust its administrative remedies and it had a remedy by placing the matter in the Adjustment Board.

And it had not done so therefore this Court said in its opinion, its per curiam opinion that it was prejudice to the reinstating of the injunction once that matter was submitted to the Adjustment Board.

Now, again Your Honor, I believe that this whole statutory scheme of compulsory adjustment that we have placed in our supplementary appendix, a letter from the federal coordinator and the Secretary of Labor at the time this matter was pending to the — to Franklin Roosevelt, President of the United States in which they were urging the passage of this Bill.

And again they stated in this letter that the purpose of this Act was to provide compulsory adjustment of individual grievances.

John P. Sandidge:

I think —

[Inaudible]

John P. Sandidge:

Yes sir, and I think that would be the difference of the distinction that my friend would make between arbitration because under (p) —

[Inaudible]

John P. Sandidge:

Yes sir?

Under (p) you find that costs cannot be assessed against the individual employee but if the individual employee prevails, attorney’s fees are assessed against the railroad.

Now in Washington Terminal against Boswell, this was held to be the only remedy that the railroad could not itself — if it would dissatisfied within an warrant, file a declaratory judgment suit, that the enforcement provisions rested and remained in the hands of the employee or his union under (p) and that was the exclusive remedy that was had.

[Inaudible]

John P. Sandidge:

I would agree with you with one exception, Your Honor.

[Inaudibel]

John P. Sandidge:

Yes sir, that’s right.

[Inaudible]

John P. Sandidge:

That’s correct sir and a judgment goes against the railroad.

[Inaudible].

John P. Sandidge:

Well, no sir, I think in the prima facie aspect of the case goes to the facts as found by the Adjustment Board in its award.

[Inaudible].

John P. Sandidge:

Yes sir and the statute supervise.

[Inaudible].

John P. Sandidge:

I think that is correct Your Honor.

If he lose, he’s precluded and Your Honors reference in the Price case in page 611, Footnote 10, is that they cannot strike in that provision.

No sir — now —

Potter Stewart:

The statute appears on page 93 of your brief (Voice Overlap) —

John P. Sandidge:

Yes sir.

Now, in that provision Your Honor — it says, “Where he may sue, the suit —

[Inaudible].

John P. Sandidge:

Well, if it carrier don’t not comply with an order of the division of the Adjustment Board within a time limit in such order, the petitioner or any person for benefit such order was made.

They file in the District Court of the United States for the district in which he resides or in which he is located, the principal office of the carrier and to which the carrier operates, a petition setting for a brief in the causes for which he claims relief in order the division of the Adjustment Board in the premises.

Such suit in the District Court shall proceed in all aspects as in other civil suits except that on a trial of such suit, the findings and order of the Adjustment — of the division of Adjustment Board shall be prima facie evidence of the facts therein stated and except that the petitioner shall not be liable for cost in District Court, not for cost in any subsequent stage of the proceedings unless they accrue on his appeal, and such cost shall be paid out in appropriation for the expenses of the Courts of the United States.

If the petitioner shall prevail, he shall be allowed a reasonable attorney’s fee.

So, it imposes a penalty on the railroad in case the railroad is wrong because it has to pay this attorney’s fee, has to pay attorney’s fees Your Honor, of the petitioner.

[Inaudible].

John P. Sandidge:

Yes sir that is true and of course I think the reason for that is to make parties assure of their position before they take it.

[Inaudible].

John P. Sandidge:

Two things could happen.

Number one is that the — the unions could contend by giving a six in six notice that the railroad was unilaterally facing a position on the contract that was not there and in fact making a new contract.

Therefore, they would not be entitled to any injunctive relief in this particular instance, if that were in fact a fact that could be proved and that — if that were the given situation, however that’s not the situation here Your Honor.

[Inaudible].

John P. Sandidge:

Yes sir.

[Inaudible].

John P. Sandidge:

I think —

[Inaudible].

John P. Sandidge:

Yes sir.

I think you’d have somewhat the same situation again, not quite the same but as you had in its — the leg of this case that was reasonable for you.

[Inaudible].

John P. Sandidge:

Alright sir.

[Inaudible].

John P. Sandidge:

No sir.

I do not believe they would have a right to strike.

I believe their remedy would be to probably bring an enforcement suit.

And at the enforcement suit procedure is a substitute right given for the right to strike and was so understood by all of the parties at the time the Act was passed.

[Inaudible].

John P. Sandidge:

Your Honor — no sir.

I cannot answer that —

[Inaudible].

John P. Sandidge:

No sir, I do not.

And I think the reason for this is one — one phase of this case Your Honor that has not been discussed, and that is the interest of the public in this particular industry.

And that this industry is burdened with a different proposition than most industries.

[Inaudible].

John P. Sandidge:

No sir.

[Inaudible].

John P. Sandidge:

No sir.

No sir, I did not say that.

[Inaudible].

John P. Sandidge:

No, sir.

You — I — if I have correctly understood your question Your Honor, if as to some other industry, you asked me if I knew of any other law in any other industry —

[Inaudible].

John P. Sandidge:

Alright sir.

[Inaudible].

John P. Sandidge:

Yes sir, time claimed —

[Inaudible].

John P. Sandidge:

Yes sir.

[Inaudible].

John P. Sandidge:

Yes sir.

[Inaudible].

John P. Sandidge:

By the Railway Labor Act.

[Inaudible].

John P. Sandidge:

Yes sir.

[Inaudible].

John P. Sandidge:

Yes sir.

In other words —

[Inaudible].

John P. Sandidge:

Yes sir —

[Inaudible].

John P. Sandidge:

A tort claim does not fall in the same category at all Your Honor.

That would be an FLEA case.

[Inaudible].

John P. Sandidge:

Yes sir.

I believe that they would because there is a remedy given in the — under the FELA — to bring its action by the individual employee as far as the bringing of —

[Inaudible].

John P. Sandidge:

The only closest thing to it Your Honor is Dorsey against Kansas where efforts were made in a Kansas Act that controlled matters pretty well to bring a suit or to strike on behalf of a second employee who had a claim against the company and it was held in that case that there was not a common law strike or right to strike in all instances.

John P. Sandidge:

And that it was limited to determining the purpose of the strike and if the strike was for any of the purpose, it could be enjoined.

Again Your Honor, going back to the particular Act in question as far as we are concerned here.

If a time claim is filed which is contented to be a breach of contract, certainly the procedure before the Adjustment Board is available and we have many such claims at our file.

And they come out as money awards and are enforceable.

Very few of these cases ever get to the enforcement proceeding.

Frankly Your Honor, because most of them were paid when they are against the company.

Because the company or the railroad cannot justify the incurring of additional expense, if it feels it does not have a case it can win.

[Inaudible].

John P. Sandidge:

Yes sir, but that doesn’t mean that the case is after they are disposed off are not accordingly paid or settled out according to the recommendations of the Adjustment Board.

The last aspect of the case that I would like to say that there are many voluntary rights that we had, that have been limited by the Railway Labor Act, the right — of course Illinois against Howard and all those discriminatory cases come into play here.

Many rights to bring you different kinds of actions like declaratory judgment actions have been eliminated by the Railway Labor Act.

And so there is nothing different or unusual in this particular case.

Now, concerning the right to an injunction, we believe we’re entitled to an injunction under the theory of the Chicago River case because there’s no difficulty with Norris-La Guardia here.

This is — injunction is for the purposes of vindicating the Act.

We believe it’s just this simple that the only way the Adjustment Board award can be enforced is by an enforcement suit which is mandatory.

Therefore, an injunctive process is justified to vindicate the provisions of the Act.

We believe that on all sides of this question, statutory interpretation, judicial precedent, legislative history, that we are entitled to have this sustained.

Thank you.