Locomotive Engineers v. Missouri-Kansas-Texas Railroad Company

PETITIONER:Locomotive Engineers
RESPONDENT:Missouri-Kansas-Texas Railroad Company
LOCATION:District Court for the District Court of Columbia

DOCKET NO.: 165
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 363 US 528 (1960)
ARGUED: Apr 20, 1960
DECIDED: Jun 20, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – April 20, 1960 in Locomotive Engineers v. Missouri-Kansas-Texas Railroad Company

Earl Warren:

Number 165, Brotherhood of Locomotive Engineers et al., Petitioners, versus Missouri-Kansas-Texas Railroad (Inaudible) — Mr. Heiss.

Harold C. Heiss:

Mr. Chief Justice and Members of the Court, if the Court please.

The petitioners here are four railway labor organizations in the operating group.

The respondents, plaintiffs in the District Court, are two railroad companies which sought and obtained an injunction against the strike by the operating employees of the two railroad companies.

The cause is before Your Honors on a writ of certiorari through Court of Appeals of the Fifth Circuit.

And review by this Court is limited to a single question which is spelled out on the second page of petitioners’ brief on the merits, the blue-covered document on the bench.

The cause involves a decision of this Court rendered about three years ago, known in railroad parlance as the Chicago River case.

(Inaudible)

Harold C. Heiss:

The cause involves — the cause involves a decision of this Court rendered about three years ago, known as the Chicago River case, wherein this Court held that an injunction may lie against railroad employees who seek to promote a strike to enforce payment of demands of some character which may be pending before the National Railroad Adjustment Board, a tribunal established under the Railway Labor Act and having the authority and power to interpret agreements made under the Act between employees and railroad companies.

In granting the strike injunction in this cause, the district judge imposed certain conditions upon the issuance of the injunction which were protective of the interest of the employees, the defendants, and protective of the interest of the public.

On appeal, the Court of Appeals sustained the strike injunction, but excised from the order of the District Court, the conditions deemed to be protective of the interest of the other litigants and the public.

(Inaudible)

Harold C. Heiss:

No, Your Honor.

The injunction was issued in only one form, on — on December 18, but later on, to wit, on January 5, 1959, in denying a motion for a stay as by the railroad company, the district judge in that order denying the stay explained what he meant in some detail when he issued the original order to wit, that he intended that the conditions imposed upon the railroad company, protective of the interest of the employees were conditions upon the issuance of the injunction and were not a mandatory order directed against the railroad company.

(Inaudible)

Harold C. Heiss:

Yes.

I think it would be susceptible of that interpretation, Mr. Justice Harlan.

(Inaudible)

Harold C. Heiss:

Yes.

Yes, precisely so, Your Honor.

(Inaudible)

Harold C. Heiss:

I don’t think it’s any different, take — except that I think this, Your Honor, that I — I don’t mean it’s any different to this extent.

I think there is only a conditioning of the issuance of the injunction.

But I — I think we might get into some other ancillary legal propositions if we were to regard this as a — as a mandatory injunction of a preliminary nature in which event, we might get into the area of determining whether a bond should be required, for example.

Felix Frankfurter:

(Inaudible)

Harold C. Heiss:

Insofar as the practical consequences are pictured.

Felix Frankfurter:

(Inaudible)

Harold C. Heiss:

I think you’re right, Your Honor, in that respect.

Charles E. Whittaker:

(Inaudible)

Harold C. Heiss:

It couldn’t possibly, in this case, have involved the condition a — a decision on the merits, Your Honor.

Harold C. Heiss:

The — the — I think I’ll come to that in a little bit, but the District Court expressly disclaimed any intention of deciding on a — deciding the matter on the merits and a study of this record will reveal that there was no decision on the merits and you can’t possibly read into any of the orders of the District Court, a view either way on the merits.

Charles E. Whittaker:

(Inaudible)

Harold C. Heiss:

Yes, I think it would, Your Honor.

Now, to us, this review involves the somewhat startling proposition which was approved by the Court of Appeals that a court of equity, while issuing an injunction against the strike of railroad employees, is without power to further exercise its equitable jurisdiction, to impose conditions protective of the interest of the employees against whom the injunction was issued and the public which has an interest in the settlement of labor disputes.

Now, I think, Your Honors can best appraise and understand the question involved in the cause, in the context of the facts, which I think I can state to you in brief compass.

For 25 years, there were in effect, on the respondent railroads, intradivisional runs between the points of Wichita Falls, Texas, and Forgan, Oklahoma.

There were five terminals which are illustrated by the fingers on my hand.

Two runs ran from Wichita Falls to a place named Altus, one run from Altus to Elk City, one from Elk City to Woodward and one from Woodward to Forgan.

Those runs had been established by the collective bargaining agreements entered in — into by the employees, which provided also that the runs that had been established and the terminals through which they ran could not be changed without notice given under the agreements and without notice or without notice given under the Railway Labor Act.

These agreements were — were negotiated by the employees to prevent an arbitrary and unilateral action on the part of the railroad companies to change these — just these runs.

Now, in violation of the agreements, on October 2nd, 1958, the carriers issued two general orders that new interdivisional runs would be established and that certain home and away-from-home terminals would be abolished.

The employees asked that the orders be cancelled.

They asserted that the action of the respondents was contrary to the Railway Labor Act and contrary to the terms of the collective bargaining agreements.

When the carriers refused to cancel their notices, the employees invoked the services of the National Mediation Board and despite the fact that the National Mediation Board took jurisdiction of the dispute, the respondents put the general orders into effect on October 19, 1958, approximately two weeks and a half after the orders were issued.

Now, the orders have this effect upon the employees whom I represent here.

Two terminals were abolished this one and this one.Home and away-from-home terminals.

The runs were made to run from Wichita Falls to Elk City and from Elk City to Forgan, Oklahoma.

The man who lived here and the man who lived here, were obliged either to travel to this point or this point, to perform their work or to move their homes from the same places to distant points.

An uprooting of their homes, a dissolution of family, social and religious ties were entailed by the — by the general orders issued by these railroad companies.

In addition, the employees who have these two places, as away-from-home terminals, had their way from home terminals changed and modified and they were obliged to solicit and seek new porters living away-from-home for their turnaround runs and finding new places to eat and all of the dislocations would go to a traveling man, when he finds that his place of — of performing his work has been changed to another location.

In addition to that, 10 employees were immediately furloughed by the action of the carrier in issuing these general orders.

The number of crews that had been operating between these points was reduced from five to three.

Now, their submissions made to the National Railroad Adjustment Board, which had not been made at this time, but which come into the case at a later point, do not involve anything other than a — a request for disposition by the Adjustment Board of the question of whether the agreements have been violated.

They do not involve the question of whether these employees are entitled to any compensation or paid for time lost.

Now, obviously, no payment in money, whatever compensate these men for the time that they must spend in travelling from their home terminals to new places to report for work, for seeking for the hardships and the burdens that they endure in moving their homes, severing their social and family and religious ties, and in seeking new places to sleep and new places to eat at newly established way from — away-from-home terminals.

I emphasized to you, if Your Honors please, that nothing that the Adjustment Board can do — can possibly compensate my clients for the hardships imposed upon them by the general orders of the railroad companies.

Felix Frankfurter:

(Inaudible)

Harold C. Heiss:

The — the Adjustment Board has just one thing that the railroad company its — and its — in its submission has asked the Board to decide.

And that is whether the terms of the collective agreements, prohibit the railroad company from issuing these general orders and making changes in the interdivisional runs and of the terminals.

Felix Frankfurter:

What can you get?

Harold C. Heiss:

That the railroad —

Felix Frankfurter:

All the railroads are saying that (Inaudible)

Harold C. Heiss:

The practical consequences are that the general orders would remain in effect as they are now and these runs would be changed as the general orders contemplate.

Felix Frankfurter:

(Inaudible)

Harold C. Heiss:

Yes.All of the dislocations that are presently taken place would be — would be continued if the decision of the Adjustment Board should be in favor of the railroad companies and against us.

Felix Frankfurter:

(Inaudible)

Harold C. Heiss:

That’s it.

That’s it, Your Honor.

To ward off the hardships —

Felix Frankfurter:

(Inaudible)

Harold C. Heiss:

I — I’m coming to that and I’d just as soon answered, no.

Felix Frankfurter:

(Inaudible)

Harold C. Heiss:

I just hope that I will have an opportunity to get to it and I’m going to make every effort to do it.

Felix Frankfurter:

(Inaudible)

Harold C. Heiss:

Oh, it is crucial and I must get to it, Your Honor.

Now, when the — when the employees went on strike on November 6, a temporary restraining order was issued.

On a hearing on the preliminary injunction which took place in December of 1958, Judge Davidson, the — district judge as I’ve told the Court before, issued the strike injunction, but imposed upon it the conditions that the status quo ante, the status quo which existed so far as working conditions were concerned which, as I say, existed before the issuance of the general orders should be restored or in lieu thereof or an alternative, if the railroad company elected.

The carrier might choose to pay the employees for their losses.

Now, on December 10, which was just about a week before the hearing on the preliminary injunction, the carrier had elected to submit this matter to the Adjustment Board and to another — a number of other disputes, committees, and national committees, which submissions are not involved in this case inasmuch as the review is limited only to the issuance of the injunction as a result of the Chicago River decision.

Now, the district judge apparently regarded the Chicago River case as requiring the issuance of this preliminary injunction despite the belated recourse to the Board, but he did not regard the case as prohibiting his exercising the traditional powers of a chancellor to protect all the litigants as well as the public in the injunction case.

Now, the Court of Appeals regarded the Chicago River case apparently as requiring the issuance of the — in strike injunction and as prohibiting the imposition of any protective conditions.

Because it said that such conditions would involve and I quote, “Passing a preliminary judgment upon the merits of the — of the disputes committed to the exclusive jurisdiction of the Board.”

Now, I submit to you that the imposition of the condition does not involved passing upon the merits of the contentions between the parties.

Certainly it doesn’t involve passing upon merits of the contention between the parties in this case, any more than it does in any other case where a preliminary injunction or a temporary restraining order is under consideration by the Court.

And this Court has frequently in cases in the past not — not those arising under the Railway Labor Act, but in other causes coming before the Court held that it is proper in issuing an injunction to establish and attach certain other conditions which would be protective of the defendants against whom the injunction ran.

And I — I say that that is just a normal exercise of the equitable powers of the chancellor and it has been frequently held by according to my understanding that the rulings upon temporary restraining orders are not — and preliminary injunctions do not involve a — a — an indication necessarily of the ultimate disposition to — to evade by the Court of the controversy.

And the —

It involves some appraisal about that.

Harold C. Heiss:

It necessarily involves some appraisal somewhere —

Because the — if the Court thought that the claim — which are not suggesting for a moment, was a flimflam claim, it would a bearing and whether you got issue in a temporary injunction.

Harold C. Heiss:

I — I can see it, Mr. Justice Harlan, that it does allow some weighing.

One must necessarily in —

Not the kind of weighing that would influence the determination of the adjustment.

Harold C. Heiss:

That’s precisely it.

But that’s your — that’s your point.

Harold C. Heiss:

That’s precisely it.

And the district judge plainly and clearly stopped short of entering such an order as would influence the Adjustment Board or which would be binding upon the adjustment for it.

But —

Charles E. Whittaker:

In —

Harold C. Heiss:

But —

Charles E. Whittaker:

— other words, all the District Court would determine here with — with whether a claim was not colorable merely.

If — if it were not, then exclusive jurisdiction is somewhere else.

Harold C. Heiss:

That’s right, Your Honor.

Charles E. Whittaker:

Okay.

And as I understand it, what he did here, if you still listen, was merely to assume that the contract he brought, but he couldn’t assume to be bad and that exclusive jurisdiction to say what they’ve meant was in the railway — Railway Adjustment Board —

Harold C. Heiss:

Yes, sir.

Charles E. Whittaker:

— and therefore, to put the — this, the old machinery, in status quo ante to determine and let the Board determine and give a fact to whatever its conclusion really was.

Harold C. Heiss:

Yes.

Charles E. Whittaker:

That if not —

Harold C. Heiss:

Yes, that’s precisely it.

That’s a much better statement than I could have made of it, Mr. Justice Whittaker.

And I appreciate the statement of it in that fashion.

Felix Frankfurter:

But suppose that (Inaudible)

Harold C. Heiss:

But I — I — whether that is what he meant or not, Mr. Justice Frankfurter —

Felix Frankfurter:

(Voice Overlap) —

Harold C. Heiss:

— it’s the practical effect of — of what — of what Judge Reeves said.

Felix Frankfurter:

(Inaudible)

Harold C. Heiss:

The procedure that we — that — that was adopted by Judge Davidson, the District Court, in this case, permits the work of the Adjustment Board to have full play.

But it didn’t — in the meantime, it protects the employees against arbitrary and unilateral rapacious conduct on the part of the carriers which may sweep aside the — all the rights of the employees in the meantime —

Charles E. Whittaker:

Under a contract that maybe held good.

Harold C. Heiss:

Yes.

Yes, Your Honor.

Felix Frankfurter:

And that would —

Harold C. Heiss:

Yes, yes.

This contract maybe held good and by the time the Adjustment Board gets around to decide this dispute, four, five, six or seven years from now, they may have well have worn down these employees to the point where they have no longer any voice in the situation.

Felix Frankfurter:

The Fifth Congress of the workings of the Adjustment Board has been a constitutional problem having before this Court on (Inaudible) and one has a brief study and would say a lot of (Inaudible) awkwardness in (Inaudible) in that situation.But after that, I don’t know if we could take that into account in determining whether the respective domain of power of the Supreme Court in — in that — or first number of deposits.

Harold C. Heiss:

Well, may I suggest, Mr. Justice Frankfurter, that —

Felix Frankfurter:

That maybe — that —

Harold C. Heiss:

— the justice delayed is often not justice at all.

And we’re dealing here with working men who would depend upon the — results of their daily labors to eat and to maintain their families and may not — may not the chancellor take that into account among other factors in — in weighing what his decision is.

Now, I don’t know whether Judge Davidson did so.

Because there are no findings and there are no preference to it in the order.

But may I suggest to it that if I see a problem?

Felix Frankfurter:

Suppose the Adjustment Board decides in your favor and it deploys that decision, it certainly can (Inaudible) what controverted in their case?

What’s in that that is affecting (Inaudible)

Harold C. Heiss:

I don’t think they can do anything else.

Their powers are limited to the interpretation of the agreement which would amount to a declaration or declaratory judgment and that would end the matter so far as the Adjustment Board is concerned.

Felix Frankfurter:

And if in the meantime, this burden has to do it and the Court has decision to affirm it.

The (Inaudible) we would’ve had if the contract doesn’t (Inaudible) what we need to have there.

Harold C. Heiss:

What?

Felix Frankfurter:

(Inaudible)

Harold C. Heiss:

What relief, have the employees?

Felix Frankfurter:

Yes, the employees.

Harold C. Heiss:

If they are sustained, they probably could — could sue for back pay or to institute another proceeding for the Adjustment Board.

We — and I suppose —

Felix Frankfurter:

Including a monetary — a monetary (Voice Overlap) —

Harold C. Heiss:

For claims, yes.

Felix Frankfurter:

So why couldn’t that be — why can’t that be before than this (Voice Overlap) —

Harold C. Heiss:

Because it’s not — it was not submitted by the railroad — by the railroads to the Adjustment Board as an issue.

Felix Frankfurter:

And that ground is contrary to your license?

Harold C. Heiss:

The men haven’t made a counter claim and I don’t know whether they can.

But let — let us not forget —

Felix Frankfurter:

(Voice Overlap) —

I didn’t understand you.

Felix Frankfurter:

(Inaudible)

Harold C. Heiss:

I — I am —

Felix Frankfurter:

But they could start in — they could initiate a proceeding for the Adjustment Board for monetary claims which is granted and then bring forth from a judgment by the Adjustment Board, isn’t that right?

Harold C. Heiss:

They could, provided that they — that a time limit on claims provision is not in the contracts of the Missouri-Kansas-Texas Railroad, in which the circumstances he claims could not be filed at the present time, because at the time that —

Charles E. Whittaker:

And — and I suggest perhaps possibly if, but only if full redress of he contract was remediable at law.

Harold C. Heiss:

That’s right.

I was about to suggest that again, Mr. Justice Whitaker, that the uprooting of these, before the requirement to move their homes to travel longer distances and all of these things cannot possibly be compensated for, in terms of money, or by any proceeding before the Adjustment Board or by any order that that Board could make.

Felix Frankfurter:

And not many of them.

Suppose the railroad is sustained by the Adjustment Board, what about (Inaudible)

Harold C. Heiss:

I — I think there is entailed in practically every order that is issued by way of an injunction.

Some hardships upon the other side and we are enjoined from striking which is a hardship against us and the railroad company according to Judge Davidson — Davidson’s order, he’s ordered to — to restore the status quo ante which — for all the time that the injunction is in effect, maybe some sort of a burden upon the railroad company.

But they are the folks who were elected to draw to the Adjustment Board and submit the case to that tribunal and they didn’t have to do it.

They could’ve settled the matter with us in conference.

There was a remedy available to them.

But they elected to go to the Adjustment Board and it seems to me that they must take the consequences of that.

Felix Frankfurter:

(Voice Overlap) what the internal arbitral arrangement passed at the outset under your present agreement (Inaudible) under the Railway Labor Act (Inaudible)

Harold C. Heiss:

They were not even initiated by the railroad companies, Your Honor.

The — these contracts provide —

Felix Frankfurter:

(Inaudible)

Harold C. Heiss:

No, but —

Felix Frankfurter:

(Inaudible)

Harold C. Heiss:

I understand, Your Honor.

The contracts provide that a railroad company desiring to establish interdivisional runs in order to — to change these terminals must give notice to the employees of the — their intention to do so.

They didn’t give that notice.

What is the present situation, Mr. Heiss?

Did this Court of Appeals give you a stay —

Harold C. Heiss:

It did not.

— of this mandate?

Harold C. Heiss:

It did not.

What’s happened as a practical matter, is your people —

Harold C. Heiss:

Some are living —

— staying at their locations?

Harold C. Heiss:

— at the abolished terminals and going to the new terminals to go to work.

Others have —

Was the case moot?

That’s what I’m getting —

Harold C. Heiss:

Oh, it is not.

It is not.

William O. Douglas:

Is this the only time that a District Court has attached conditions as far as you know?

Harold C. Heiss:

No, Your Honor.

There is a case which — pending before this Court on a petition for a writ of certiorari which is Number 535 and comes from this — the Court of Appeals for the Second Circuit, which involved the imposition by the district judge of a — of a condition that while the strike injunction was in effect, that certain operators of tugs in New York Harbor be retained in — in service.

On appeal, the — the Court of Appeals for the Second Circuit by a 2 to 1 decision, sustained the injunction, but set aside the conditions on — when advised —

William O. Douglas:

It’s in accord — it’s in accord with the Fifth Circuit then.

Harold C. Heiss:

Yes, it’s in accord with the Fifth Circuit and just one further statement in answer to — to your question.

While the matter is here on the petition for a certiorari and the United Rail — Railroad Workers case, the Court of Appeals for the Second Circuit has stayed its mandate.

It is my understanding that the tugboat workers in New York are presently on the job as the result of the District Court’s order.

I am grateful to the Court for the privilege of having appeared before you today.

Earl Warren:

Mr Clinton.

M. E. Clinton:

Mr. Chief Justice and Associate Justices, I would first like to clear up some erroneous statements of fact, but before getting to that, I want to state that a strike actually occurred on a railroad, without warning to us at 6 o’clock on November the 6th — 6 a.m., on November the 6th, 1958.

Our train — and your — the service employees actually went on strike.

It tied up our railroad from St.Louis and Kansas City on the north through Oklahoma City, Dallas and Fort Worth, to Houston and San Antonio on the south.

It completely stopped all of our line movements except for a few trains who — which were permitted to go to some sidetrack.

It stopped every bit of our service to some 3600 industries that we’ve served along.

Stopped our service to about 1300 other industries which we served jointly with other people, 1100 of our train service employees ran out of service, so although there were only 10 people involved in this particular matter, we were completely paralyzed until we filed our suit for an injunction and got a temporary restraining order on that day.

Earl Warren:

You say, there are only 10 people involved in this —

M. E. Clinton:

10 people, Your Honor, the — this draft —

Earl Warren:

I understood counsel to say that a number of other employees, which would be required by group themselves.

M. E. Clinton:

No, sir.There is only 10 people involved in this particular controversy, 10.

If this strike had not been stopped, we would’ve been compelled to layoff some 2100 other people who were not directly in incidentally.

About 83% of all of our revenues are derived from interstate commerce and handling the United States mail.

I mentioned that to show the interstate character of our service.

The organizations filed an answer to our complaint and they set out in this answer that we had violated specific agreements.

They alleged that we had violated what is termed “schedule agreements” which are the agreements under which we actually operate.

While they set out Article 10 and Article 11 and Article 59 and Article 60, they finally wind up in this Court.

They’re claiming only that we violated Subdivisions (a) and (f) of Article 10 and Article 59.

They also alleged that we had violated four so-called mediation agreements, which were agreements negotiated nationally and then adopted by the different railroads on the various properties.

And they alleged that we had violated the three so-called national agreements.

One of which, they now admit, is not in existence.

So they’re here now before you with two.

The so-called national agreements are the agreements which Mr. Heiss referred to as interdivisional run agreements.

I will get to those a little bit later.

After this answer was filed, we prepared submission, a submission to the National Railroad Adjustment Board and we referred to that Board every claim to the agreement violation which the organizations had alleged in their answer.

And we also are subject to jurisdictional objections which are set out in each submission, made submissions to a committee which was established by the so-called national agreement committees which were established by the so-called mediation agreements and to the National Mediation Board.

We wanted to be absolute — certain that we had followed every possible recourse administratively.

The National Mediation Board, as you will find in appendix to our brief, has said, “That in effect, that the case is properly sent to the Adjustment Board and to these other committees.”

And therefore, they have sort of washed their hands of it.

You’ll also find that three of these so-called disputes committees which grew out of mediation agreements, have dismissed the cases, as we thought they should do.

Two of —

Felix Frankfurter:

Do you think committees are between — are constituted by representatives of the railroad companies?

M. E. Clinton:

Yes, sir.

They are.

Felix Frankfurter:

And you say they dismissed these claims?

M. E. Clinton:

Three of them did — dismissed the claims.

Two of them set outright that they didn’t have jurisdiction.

The other one said it didn’t have jurisdiction because it had been submitted to one of these national committees which of course is an error because we couldn’t submit that issue to that particular committee.

Now, the — the organizations have filed their answer before the Adjustment Board and we have filed our reply to that answer before the Adjustment Board.

M. E. Clinton:

So, the matter is pending there whenever the Board gets around to it.

Felix Frankfurter:

Wouldn’t that be four years?

M. E. Clinton:

I don’t know, sir.

If it is four years and we have to comply with this order, we will have paid out $140,000 for which we have no — no bond or anything else.

It’s $35,000 a year according to our testimony which you find on page 302 of the record at the top of the page.

Felix Frankfurter:

(Inaudible)

M. E. Clinton:

Yes, sir.

And I’m not surprised this — not more.

I was really surprised this morning when I looked it over, because I think it runs higher than that, but that’s what the record shows.

Charles E. Whittaker:

Now, as I understand in this (Inaudible) that consists of the elimination of two of the five crews that we bargained in this Texas thing.

M. E. Clinton:

Yes, sir.

That’s what it is.

And if I may, I’ll get to the facts a little bit later, or I’ll stop and now and get to the facts.

If you wish to look at the map, you’ll find it at page 79 of the record and you’ll find that this area we’re talking about is from Wichita Falls, Texas and the parallel in green line, I believe, is beside the red line, Wichita Falls, Texas up to Forgan, Oklahoma, a distance of 302 miles.

We have five crews in there and they run an average distance of 75 to 80 miles a day.

Potter Stewart:

How many in the crew?

M. E. Clinton:

Five men, conductor, two, brakemen, engineer and a fireman.

For many, many years, we operated out there with steam engines.

And as you may know, you have to have more terminals when you have steam engines.

They gave (Inaudible) for them.

And it can’t have as many cars.

At any rate, some 25 years, we had this intra — so called divisional service.

It’s not an interdivisional service at all, because the entire area as one, seniority district.

The Board, so called, is maintained in Wichita Falls.

There’s no break over those intermediate cause of Altus and Elk City and Woodward.

I drew a freight crew.

It operates anywhere within that whole area.

He’s called off of the Board in Wichita Falls.

And it’s because of those peculiar facts, one of the reasons we say, that this so-called intradivisional rule that Mr. Heiss talks about, has no application.

We say it was never intended that that rule apply where you had one single sort of seniority district and anybody working on that district could run anywhere.

M. E. Clinton:

Furthermore, that rule specifically says that where a carrier desires to establish an intradivisional service, that service that we had had been established 25 years.

It was never intended to apply to the situation other than where you wanted to create an intradivisional service, where you never had it before.

Furthermore, that rule was never intended to be retroactive.

I knew it became effective on August 1, 1952.

Potter Stewart:

Excuse me, Mr. Clinton, this goes to the merits of the issue now before the Adjustment Board.

M. E. Clinton:

Yes, sir.

It really does, I’ve mentioned, because it’s touched upon by the others.

Excuse me.

So, we say that this intradivisional rule that he talks about doesn’t have any application in the first place.

Now, they only know this provision that you here are going to find these rules is in that intradivisional rule, if that rule applies.

And for example, we have a service.

I’ll illustrate it this way.

We have crews that operate from Dallas, in Texas to Fort Worth.

And we have crews that operate from Fort Worth on to Bellmead or Waco.

Now, that’s one seniority district from Dallas and to Waco.

But we have an agreement with them, a special agreement which makes us change crews at Fort Worth.

Now, we if wanted to establish a run from Dallas into Waco, through Fort Worth, that would be an intradivional service and we would have to comply with Article 4, because it’s something that we don’t have now and are prohibitive now by agreement from him.

But for now this preliminary — here injunction was issued, at the hearing on December the 18th.

A contrary to our opponent, this preliminary injunction is not a condition.

There is not one single word in this injunction which even indicates that the court intended the injunction against the strike to be conditioned by us maintaining or is doing some status quo.

It’s a straight out, mandatory — preliminary mandatory injunction against us.

But it doesn’t say that you have to restore the status quo.

It says that if you elect or prefer, you can leave the situation as it is, just so long as you pay these people.

Well now, the District Court was not attempting to protect these men against moving or against disrupting their homes.

Otherwise, we would recommend him there.

All he was concerned about was that these men be paid, one way or the other.

And all this talk about disrupting their homes and all, is decided before the court, the District Court didn’t even — didn’t even attempt to protect it.

They say they are satisfied with the District Court’s order.

Well, if you’re satisfied with it, they are satisfied only when they want a provision of.

Now, we appealed from this preliminary mandatory injunction on December the 29th.

M. E. Clinton:

And we applied to the District Court as we had to, for a motion to stay the operation of this preliminary injunction against us until we could appeal.

Now, we say that when we appealed from that on December the 29th, the District Court was ousted of any jurisdiction until the mandate was returned.

And he couldn’t modify his order if he wanted to.

And we say that he can’t come along after an appeal was made and then undertake to say that I intended thus and so, when he didn’t say it the first instance.

But he denied the stay order and we went from the Fifth Circuit and they granted it.

And I’d like to mention that there are no pleadings of any character to support this preliminary or mandatory injunction against us.

I never heard of a situation where a mandatory injunction was issued out, somebody asking for it.

These people didn’t ask for it.

It was gratuity, apparently.

There’s no evidence of any kind in this record to support this mandatory injunction.

In fact there’s no evidence in the record by these people at all.

You won’t find any evidence to support anything that Mr. Heiss has said that they put it and is certainly not in what we put.

The Court of Appeals, as I understand it, reached only the question of power and they didn’t reach the question of whether this was an abuse of discretion assuming there was power, is that right?

M. E. Clinton:

That’s correct.

There was no security required at all, although Rule 65 (c) of the Federal Rules of Civil Procedure says that “No preliminary injunction shall issue, without security, being required in whatever amount the court sees fit to protect the people against whom the injunction is issued.”

So, we say that even for those reasons, that this so-called condition which is not a condition, but a preliminary injunction is void and should — and that the decision of the court below, should be sustained.

But now getting down to this invasion of the jurisdiction of the Adjustment Board, one, I believe, Justice — Mr. Justice Frankfurter said with something about what would happen if the — if the Board sustained this.

Suppose we go along and we have to pay out $140,000 and then the Board comes along and says, “Well, you’re right in the first place.

How can we go and get our $140,000 back?”

Apart from that, to the extent that the Board has found and we had a right to do what we did, there is a direct conflict between what the Board holds and what this Court requires.

The Court says “Pay them, we pay them.”

The Board says, “Don’t pay them, you don’t at all.”

It was a direct conflict and to that extent there’s bound to be an invasion.

You can’t get away from it.

I don’t say the District Court said, “The contract requires it.”

He didn’t say that.

But he puts a salient position where there can be and, I think, will be a direct conflict between the decision of the Board and this preliminary injunctions.

Hugo L. Black:

Suppose that the Board should hold that they were right, what would be the result with reference to the page, assuming there had been no adjustments?

M. E. Clinton:

I’m glad that you mentioned that.

It’s true that we submitted to the Adjustment Board the claim to violations of these agreements.

M. E. Clinton:

But it’s also true that these people can submit to us time claims.

They can say, “You had no right to deprive these 10 men to work and you owe us for everyday that you didn’t use them.”

If we deny those time claims, they can go to the Adjustment Board on those time claims.

And that time claim demands can be consolidated with this thing that we have here now.

And if the Board holds it against us, they can award payment of every dollar that they would’ve been paid if this change had never been made.

Hugo L. Black:

Would you have to pay it or you could try it over?

M. E. Clinton:

Sir?

Hugo L. Black:

Would you have to pay enough that it be — would have to be tried out in court?

M. E. Clinton:

Under the — now, under the statute, as I understand it, a money award is not binding (Inaudible) binding here until the court award them — a court orders the payment on them.

We could pay it.

Hugo L. Black:

You could but —

M. E. Clinton:

We could —

Hugo L. Black:

— you would not be required to without a suit is that correct?

M. E. Clinton:

We would not be required to, but in that suit they get their highest fees.

Hugo L. Black:

Was anyone — was any suggestion made at any time assuming that he had in a power at all that instead of requiring you to pay them, the money be put into a fund so that it could be disposed of by court order later?

M. E. Clinton:

Yes, sir.

We — we made that suggestion in the District Court ourselves.

We said to Judge Davidson were adjudged, we are perfectly willing to put the money in escrow.

So, we’ll have some protection.

And he said, “I’m not interested in your escrow.

And he took it as an offense.

You’ll find that in the record.

Hugo L. Black:

That would have protected both sides.

M. E. Clinton:

That would have protected both sides, yes, sir.

Hugo L. Black:

(Voice Overlap) —

M. E. Clinton:

And that distinguishes the Inland Steel Company case that they cite.

In that case the court did take the money and put in on a fund.

And furthermore, in that case, which they rely upon, the attorney, for the party opposing in, agreed to it, which is not — those two things distinguishing the Steel case.

Felix Frankfurter:

That — let’s if I understand you.

As I understood you, you suggested Judge Davidson examined it, Judge Davidson.

Felix Frankfurter:

Did he enjoin — didn’t he provided the statute (Inaudible)

I am making or having reduced these men in their old position pending the determination, by rejection of the Board but it merely wanted to procure the payment for them, the wages they would have had, is that right?

M. E. Clinton:

That’s what it amounted to.

Felix Frankfurter:

But I don’t understand why turning the money in escrow was just (Inaudible) who I finally, I’d ask them, did you take of the problem?

M. E. Clinton:

We were willing to do it.

Hugo L. Black:

What reason was given for not doing it, does the record show?

M. E. Clinton:

The record’s — the record — it contains and I think — about page 300 and — let me see.

302, is where Mr. Touchstone, one of our attorneys, brought the subject up.

Let’s see.

Last line on 302, the court I don’t think any stock in your indemnity (Inaudible) or escrow agreement.

And —

Felix Frankfurter:

What page you’re in?

M. E. Clinton:

It’s page 302 at the bottom of the page, where that statement appeared, 302.

And —

William J. Brennan, Jr.:

Well, that — would that statement of the judge — a couple paragraphs earlier, Mr. Clinton, indicate that it is also influenced by the fact that even an escrow arrangement would have meant that these men would have been out of work for a while?

M. E. Clinton:

It might have been and I’m not sure but —

William J. Brennan, Jr.:

Well, he says — we know they are risking everything, three months wages knocked out, would put the wolf at their door.

M. E. Clinton:

That — that’s probably —

William J. Brennan, Jr.:

In the escrow, that’s where wouldn’t have paid the —

M. E. Clinton:

I know, but it — that’s true.

But at least, would have in part, satisfied the requirement of law that we be given some protection.

All the way through, apparently, the judge rather assumed that there had been some violations to these agreements.

Well, there hasn’t been, as I will try to show you and —

Felix Frankfurter:

Where — where do this indicate that they thought it wasn’t?

M. E. Clinton:

The very fact that he ordered us to either restore the status quo or to take care, but in the meantime, rather indicates certainly, and I can’t point out the other places, but all the way through that’s import evidence I get.

Felix Frankfurter:

I suppose that wasn’t briefed.

There’s some kind of a — there’s some kind of a — there’s some kind of the view about the merits.

M. E. Clinton:

Probably there’s some.

[Laughs]

Potter Stewart:

Each of the —

Earl Warren:

(Inaudible) specifically, they survived or making any judgment on the merits.

We’re referring to the merits of the —

M. E. Clinton:

Well, that I — I think that’s probably true.

Earl Warren:

What is their — what is their contrary to fact that says that you can’t consider the merits of it, in deciding of the case?

M. E. Clinton:

The only — the — the thing that’s most important is, is what he did.

Actually — regardless of what he said, the fact that remains that this is what he did and if as a matter —

Earl Warren:

But all the way through, all the way through —

M. E. Clinton:

Yes.

Earl Warren:

— it doesn’t have to (Inaudible) he’s standing the merits —

M. E. Clinton:

No, I didn’t —

Earl Warren:

What if they’re in there, all the way through that indicates that?

M. E. Clinton:

I didn’t mean to say if I did, that it indicated that he was deciding the merits.

What I had in mind was it indicated that he had thought perhaps, there had been a violation of the agreement.

That’s what I meant to say.

(Inaudible) —

M. E. Clinton:

Well, if he thought there’s a violation of the agreement, it might influence him in attaching a — putting this mandatory injunction on us.

I think that is true.

Potter Stewart:

I must say — Mr. Clinton, the record though indicates, doesn’t it, that the district judge had a — had an inaccurate idea of how fast these matters are processed by the Adjustment Board, because as I read it here, didn’t he say that if the Railroad Adjustment Board cannot act in 30 days, you can come back with a further motion.

M. E. Clinton:

Yes, he did have a misunderstanding about that.

Potter Stewart:

Now, did you go back within 30 days or — or I not exactly 30 days?

M. E. Clinton:

No, we didn’t go back, as we appealed, but following the preliminary mandatory injunction.

Potter Stewart:

One thing of course, to — (Inaudible) injunction, if the matter is going to be resolved in a few days or weeks in quote another, perhaps, not only in agreement in kind, the condition on injunction, that’s the ultimate resolution, isn’t going to occur for five or six years.

M. E. Clinton:

I’m not sure whether it was in the District Court or the Circuit Court, but in one of them, I was asked my best guess on it, and that my best guess was probably more than four years, but I’m not sure it was in the District Court —

Potter Stewart:

No idead and I misread the — this record or is there something I don’t see, didn’t the district judge indicate he had an idea that this matter would be resolved in 30 days (Voice Overlap) —

M. E. Clinton:

He did have that idea at that particular point.

I don’t know right now whether it was cleared up more elsewhere or not.

Felix Frankfurter:

Mr. Clinton, what is then — what is meant at the Court, the statement had only 10 mailer involved and basically (Inaudible) drawing that order and while they’re protesting it, this agreement rather, there was the 3000 men will be great to resist the motive by what is done.

M. E. Clinton:

I think he had in mind that if the strike were to continue and the matter were not disposed of, that there’d be that many or more involved.

Earl Warren:

What the case is — what the case (Inaudible) the other men on this case were closed, I mean I think that (Inaudible) that there were more than 10 (Inaudible)

M. E. Clinton:

No.

M. E. Clinton:

They were five crews, originally, with five men on each.

That’s 25 men.

In linking in these runs, we took off two crews or 10 men and left all the men who were involved in this litigation.

Of course, as Mr. Heiss says, the Chicago River case holds that you may enjoin a strike while the matter is pending before the Adjustment Board.

But we think that the decision and certainly the reasoning in Pitney case, sustains us in this particular matter.

As Mr. Justice Black probably remembers, he wrote the opinion in that case in the Order of Railway Conductors, brought a suit to — among other things, enjoin the trustees in a bankruptcy proceeding from — assigning certain jobs to men who belong to the Brotherhood of Railroad Trainmen.

And I have to get some of this from a dissenting opinion of Judge Rutledge but it appear — appears from what what the majority opinion says and what the dissenting opinion says that for a while, until there was a hearing in the case, there was a temporary order issued which prevented that transfer of work from the O.R.C to the B.R.T men.

The decision in this case was that no court could invade the jurisdiction of the Adjustment Board, that the thing for the O.R.C. is due, would be two of the Adjustment Board and find out and let the Board see, whether its contract gave it the right to these jobs or not.

And if they did have the right, then maybe the court in the exercise of its equity power, to protect what the sum in substance or it was that until and unless they went to the Board and got a decision of the Board that, they were entitled to the work, rather than the B.R.T., that no court, including a court of equity, give — to give them relief.

Justice Rutledge, in a long dissent, expressed the thought that these men ought to be protected until the decision of the Board.

But apparently, the other members of the court thought otherwise, because he was the only one that raised that particular issue.

In the (Inaudible) case, which reaffirmed in the Pitney case, also written by Mr. Justice Black.

The — and not only reaffirmed that, Pitney case, but they said no court, state or federal, can invade the jurisdiction of the Adjustment Board.

Now, we understand that that simply means that this Adjustment Board has been set up to decide these questions and that the no court can interfere in anyway with respect to any part evidence, you’d have to take it then, that’s been decided.

Felix Frankfurter:

Mr. Clinton, may I ask you whether you think that any of them — any of them has discretion (Inaudible) granting of the injunction that you — unless you’re if you’re indictable in the district court.

In the District Court, you have any — and if you raise this question (Inaudible)

M. E. Clinton:

It’s my opinion, Mr. Justice Frankfurter that he felt like when he was required to do it on the Chicago River case, and he did it because of that.

And I’m not so sure that we would have gotten it, if it hadn’t been for the Chicago River case.

But I don’t know anything else, (Inaudible)

Felix Frankfurter:

Because the element of discretion is almost (Inaudible)

M. E. Clinton:

I think he felt that —

Felix Frankfurter:

(Inaudible) without (Inaudible)

M. E. Clinton:

I think he felt that on the Chicago Junction case, where this — their submission haven’t been made with the Adjustment Board as he knew and their copies of their submissions were attached to an amended pleading of ours, that he had no discretion about it and was required the issue the injunction against the strike.

Not only do we think the Pitney case sustains us, but there is in — other decisions of this Court have —

William J. Brennan, Jr.:

Excuse, Mr. Clinton, I’m not — I noticed within the record at 318, though he said; “I am a little uncertain.

Of course, I could just wash my hands and live to say, go on with your strike, but don’t think I will.”

That’s at page 318 of the record.”

I will withhold my decision until I can read this over, but I feel that this strike should not occur, if justice can be made to prevail without it.”

In that — that suggestion of some taking that he had some discretion?

M. E. Clinton:

That maybe true, but that occurred on January the 5th, 1959.

M. E. Clinton:

The injunction was issued on December 18th, an appeal on December 29th.

So, if it was an afterthought on his part.

William J. Brennan, Jr.:

Yes.

M. E. Clinton:

In the — in the Central Kentucky Gas case, which is cited in our brief, and which itself, was cited in the Inland Steel case.

There — the Court there recognized that the right to attach conditions was not unlimited, and in that case they struck down conditions, because the Court found that the — the lower court had no constitutional right to impose the condition involving gas rate.

And also in another case which is cited, Magniac versus Thompson, I believe, an old case, this Court recognized that — aware that the — the court of equity, notwithstanding, his equity powers, was required to follow the law.

We feel like that the Chicago River case and the Pitney case and the (Inaudible) case has charted the course for both parties in this case and therefore, a court of equity does not have a power in the exercise of equity powers to vary from those decisions and that route that’s been prescribed for us.

Earl Warren:

(Inaudible)

M. E. Clinton:

Well then, thank you very much.