# Chicago & North Western Railway Company v. United Transportation Union/Dissent Brennan

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United States Supreme Court
402 U.S. 570
Chicago & North Western Railway Company v. United Transportation Union
Argued: Jan. 18, 1971. --- Decided: June 1, 1971
Mr. Justice BRENNAN, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice WHITE join, dissenting.
The instant dispute between the Chicago & North Western Railway Company (Railway) and the United Transportation Union (Union) reaches back to the decision of Arbitration Board No. 282, established pursuant to 77 Stat. 132 (1963). That board was established by Congress, after the failure of the dispute-settlement machinery of the Railway Labor Act, to arbitrate disputes between various carriers and unions over the number of brakemen required on trains and the necessity of firemen on diesel locomotives. Insofar as is here pertinent, Board 282's award ultimately led to elimination of approximately 8,000 brakemen's jobs across the Nation. By its terms, however, the award expired January 25, 1966. Prior to expiration, the Union served upon the Railway notices under § 6 of the Railway Labor Act, 45 U.S.C. § 156, which called for reestablishing many of the brakemen's positions eliminated by Board 282 by changing the existing agreements to require not less than two brakemen on every freight and yard crew. The Railway reciprocated by serving upon the Union a § 6 notice requesting an agreement that would make crew size a matter of managerial judgment. The parties held conferences under § 6 without reaching agreement. The National Mediation Board attempted to mediate the dispute pursuant to § 5, 45 U.S.C. § 155, failed, and proffered arbitration pursuant to the same section. After the Union declined to accept arbitration, the National Mediation Board terminated its jurisdiction. Since no emergency board was appointed by the President under § 10, 45 U.S.C. § 160, after the 30-day cooling-off period of § 5 had run, the Act's prohibition against resort to self-held measures lapsed.
Thereafter, the Railway brought this action in Federal District Court seeking an injunction against a threatened strike, alleging that the Union had not lived up to its obligation under § 2 First, 45 U.S.C. § 152 First, to 'exert every reasonable effort' to make and maintain working agreements. Specifically, the Railway alleged that the Union had violated its statutory duty in the following ways:
'First: Having insisted in the foregoing dispute upon bargaining separately with the plaintiff carrier instead of bargaining jointly with all the railroads upon which the BRT (Brotherhood of Railroad Trainmen) had served like notices, nevertheless
'(a) The defendant has refused to bargain on the proposals in the carrier's counter-notices to reduce the size of main line road crews;
'(b) The defendant has insisted that any agreement on the C&NW be no more favorable to the C&NW than agreements reached on the other railroads upon which the BRT served like notices;
'(c) The defendant has entered negotiations with a fixed position and a determination not to deviate from the position regardless of what relevant consideration might be advanced by the C&NW; and
Second: Notwithstanding the foregoing, the defendant has refused to engage in national handling of this dispute and to negotiate on a joint basis a national crew consist agreement with all the railroads on which the BRT served like notices.' App. 7.
The District Judge denied the injunction, holding that '(w)hether there has been compliance with Section 2 First * * * is a matter for administrative determination * * * is not justiciable and this Court does not have jurisdiction to consider or adjudicate disputes with respect to compliance with such subsection * * *.' App. 204-205. The Court of Appeals affirmed, 422 F.2d 979 (CA7 1970). We granted certiorari, 400 U.S. 818, 91 S.Ct. 38, 27 L.Ed.2d 44 (1970), to resolve a conflict in the circuits. Piedmont Aviation, Inc. v. Air Line Pilots Assn., 416 F.2d 633 (CA4 1969). I believe that the Railway Labor Act evidences a clear intention to prohibit courts from weighing the relative merits of each party's attempts to reach a bargaining agreement, and that the decision of the Seventh Circuit should, therefore, be affirmed.
This case presents the question whether, in a major dispute, a District Court may enjoin self-help measures after the completion of the statutory procedures if it determines that a party has not made 'every reasonable effort' to reach agreement as required by § 2 First. Underlying this question is the corollary one, to what extent a District Court may inquire into collective negotiations in determining whether a party has complied with its statutory duty.
In answering these questions particular attention must be paid to the legislative history of the Act. Railway labor dispute-settlement law has undergone a long legislative evolution which this Court has previously explored. International Association of Machinists v. Street, 367 U.S. 740, 750-760, and nn. 10-12, 81 S.Ct. 1784, 1790-1795, 6 L.Ed.2d 1141 (1961); see also Texas & N.O.R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034 (1930); Virginian R. Co. v. System FederationNo. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937); Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460 (1959); Detroit & T.S.L.R. Co. v. United Transportation Union, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969). Much of the experimentation prior to passage of the Railway Labor Act of 1926 proved unsuccessful. Recognition that growing unrest in the railway industry had created a situation with potentially grave public consequences, led the President, in three messages to Congress between 1923 and 1925, and both the Republican and Democratic Parties, in 1924, to call for unprecedented cooperation between carriers and unions. H.R.Rep. No. 328, 69th Cong., 1st Sess., 2-3 (1926); S.rep. No. 606, 69th Cong., 1st Sess., 2-3 (1926); Hearings on Railroad Labor Disputes (H.R. 7180) before the House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., 21-22, 90, 98, 197 (1926) (hereinafter Hearings). These basically antagonistic forces were urged to sit down and develop a workable solution for settling disputes in their industry in order to minimize the rupture of the public services that they provided. The legislative product devised by the parties themselves, which Congress enacted in 1926 as the Railway Labor Act, 44 Stat. 577, was a unique blend of moral and legal duties looking toward settlement through conciliation, mediation, voluntary abritration, presidential intervention, and finally, in case of ultimatee failure of the statutory machinery, resort to traditional self-help measures. The cooperation involved was unparalleled in this country's labor history. It was felt significant to all involved that the parties them. selves had worked out a solution and had presented it to Congress. The significance lay in the fact that since the bill represented 'the agreement of the parties * * * they will be under the moral obligation to see that their agreement accomplishes its purpose, and that if enacted into law they will desire to prove the law a success.' Hearings 21.
The outstanding feature of the bill was that it was voluntary Congress, the carriers, and the unions all recognized that there were very few enforceable provisions, and still fewer judicially enforceable ones. In testimony before Congress, Mr. Richberg, the major spokesman for the unions, stated, '(O) ur thought has been in this law not to write a lot of statute law for the courts to enforce. * * * We expect that most of the provisions of this bill are to be enforced by the power of persuasion, either exercised by the parties themselves or by the Government board of mediation representing the public interest.' Hearings at 65-66. Congress recognized the absence of coercive measures but chose not to add them, noting that 'it is in the public interest to permit a fair trial of the method of amicable adjustment agreed upon by the parties * * *.' S.Rep. No. 606, 69th Cong., 1st Sess., 4 (1926). Thus, the history of the Act reveals that in dealing with major disputes Congress was content to enact a machinery which dragged on, with cooling-off periods and various status quo restrictions, while the parties were required to 'treat with' one another, § 2 Ninth, 45 U.S.C. § 152 Ninth, in the hope that ultimately they would voluntarily reach agreement.
In order to bring about settlement, it was made 'the duty of all carriers * * * and employees to exert every reasonable effort to make and maintain agreements * * * in order to avoid any interruption to commerce * * *.' § 2 First, 45 U.S.C. § 152 First. From the outset, Congress was interested in the meaning of this provision and whether this statutory duty was viewed by the drafters to be a judicially enforceable one. During the hearings on the House bill the following colloquy occurred:
'Mr. Huddleston. Now, referring to section 2 on page 3, (')it shall be the duty of all carriers, their officers, agents, and employees, to exert every reasonable effort to make and maintain agreements,' etc. Do you agree that that also is unenforceable by judicial proceeding?
'Mr. Richberg. Not always. I think any action involving an arbitrary refusal to comply with that duty might be subject to judicial compulsion. I am sure it would work both ways.
'In other words, I think it would not be exerting a reasonable effort to make and maintain agreements, for a carrier or its appropriate officers to refuse to even meet a committee that sought to make an agreement.
'Mr. Huddleston. You think, then, that this section is enforceable?
'Mr. Richberg. I think that a duty imposed by law is enforceable by judicial power, yes. Of course, this is not a duty which could be enforced in a very absolute way, because it is a duty to exert every reasonable effort. In other words, all that could be enforced by the court would be an order against an arbitrary refusal to even attempt to comply with that duty, but I believe that could be subject to judicial power.' Hearings 84-85.
The response to an earlier question Mr. Richberg had testified:
'* * * In the first place, I think if either party showed a willful disregard of the fundamental requirements, that they should make every reasonable effort to make an agreement-in other words, if they refuse absolutely to confer, to meet or discuss or negotiate, I think there is a question as to whether there might not be invoked some judicial compulsion, but I would rather see that left to development rather than see it written into the law. But outside of that, if the parties do not make an agreement, I think you face this question, first, as to whether the Government board of mediation could bring them to see the error of their ways; and, second, if that effort was unsuccessful, whether they could bring them to refer that dispute to an arbitration, and then if it was of sufficient magnitude so that it actually affected commerce substantially, whether the emergency board could not itself bring about an adjustment.' Hearings 66.
Since the Act was the product of months of discussion between the carriers and unions and since Mr. Richberg's testimony was uncontradicted by the representatives of the carriers, it seems fair to say that the above testimony evidences an understanding on the part of the unions, carriers, and Congress that the duty 'to exert every reasonable effort' was judicially enforceable at least to the extent of requiring the parties to sit down at the bargaining table and talk to each other. This is exactly what this Court held in Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937). That case was an equitable action brought by the Federation to force the Railway to bargain with it. The carrier, despite the Mediation Board's certification of the Federation as the bargaining agent of the employees, had continued to deal only with its company union. This Court held that the duty to exert every reasonable effort to reach agreement, which had been held to be without legal sanction in the context of the previous Act, Pennsylvania R. Co. v. U.S. Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536 (1923),
'no longer stand(s) alone and unaided by mandatory provision * * *. The amendment of the Railway Labor Act added new provisions in § 2, Ninth, which makes it the duty of the Mediation Board, when any dispute arises among the carrier's employees, 'as to who are the representatives of such employees,' to investigate the dispute and to certify * * * the name of the organization authorized to represent the employees. It commands that 'upon receipt of such certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this Act.' 'It is, we think, not open to doubt that Congress intended that this requirement be mandatory upon the railroad employer, and that its command, in a proper case, be enforced by the courts.' 300 U.S., at 544-545, 57 S.Ct., at 598.
'(W)e cannot assume that its (§ 2 Ninth's) addition to the statute was purposeless * * *. The statute does not undertake to compel agreement between the employer and employees, but it does command those preliminary steps without which no agreement can be reached. It at least requires the employer to meet and confer with the authorized representative of its employees, to listen to their complaints, to make reasonable effort to compose differences-in short, to enter into a negotiation for the settlement of labor disputes such as is contemplated by § 2, First.' Id., at 547-548, 57 S.Ct., at 599.
Virginian R. Co. stands, then, for the proposition that, once the Board has certified a union as the bargaining agent of the employees, a court may require the employer to 'treat with' that representative in order that the statutory machinery of the Railway Labor Act be given a chance to bring about a voluntary settlement. It is, in essence, an order for the parties to recognize one another and begin the long, drawn-out statutory bargaining process.
In the years since Virginian R. Co. this Court in the context of a major dispute, has authorized the issuance of an injunction in only two other carefully limited classes of railway litigation that seeking to prevent invidious discrimination on the part of a union as against employees and that seeking to prevent violation of the Act's status quo provisions during bargaining. In a series of cases beginning with Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), this Court has held that 'the language of the Act to which we have referred (§§ 1 Sixth; 2 Second, Third, Fourth, and Ninth), read in the light of the purposes of the Act, expresses the aim of Congress to impose on the bargaining representative of a craft or class of employees the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them.' Id., at 202-203, 65 S.Ct., at 232. Recently, in Detroit & T.S.L.R. Co. v. United Transportation Union, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969), this Court held that the Act's status quo requirement, which 'is central to its design,' could be enforced by judicial authority. Id., at 150, 90 S.Ct., at 299. While in each of these instances the Court found specific, positive statutory mandates for judicial interference, the underlying cohesiveness of the decisions lies in the fact that in each instance the scheme of the Railway Labor Act could not begin to work without judicial involvement. That is, unless the unions fairly represented all of their employees; unless the employer bargained with the certified representative of the employees; unless the status quo was maintained during the entire range of bargaining, the statutory mechanism could not hope to induce a negotiated settlement. In each case the judicial involvement was minimal and in keeping with the central theme of the Act-to bring about voluntary settlement. In each case the 'collective bargaining agents stepped outside their legal duties and violated the Act which called them into being * * *.' Order of Railroad Telegraphers v. Chicago & N.W.R. Co., 362 U.S. 330, 338, 80 S.Ct. 761, 766, 4 L.Ed.2d 774 (1960).
In the instant case, we have an entirely different situation. Here, all parties were fairly represented, the status quo was being maintained, and, most important, each bargaining representative met and conferred with his counterpart. The step-by-step procedures prescribed by the Railway Labor Act had been carried through. In essence, the Court holds that a district court has the duty under § 2 First, to assess the bargaining tactics of each of the parties after the entire statutory scheme has run its course. If, then, the court determines that a party had not exerted sufficient effort to reach settlement, it should enjoin self-help measures, and, if such action is to make any sense within this statutory scheme, remand the parties to some unspecified point in the bargaining process. Such a notion is entirely contrary to the carefully constructed premise of the Railway Labor Act.
My summary of the legislative history of the Act clearly discloses that judicial involvement in the railway bargaining process was to be minuscule since the entire focus of the Act was toward achieving a voluntary settlement between the protagonists. 'The Railway Labor Act, like the National Labor Relations Act, does not undertake governmental regulation of wages, hours, or working conditions. Instead it seeks to provide a means by which agreement may be reached with respect to them.' Terminal Railroad Assn. v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 6, 63 S.Ct. 420, 423, 87 L.Ed. 571 (1943) (footnote omitted). It is clear to me that the duty to exert every reasonable effort was agreed upon to make effective the duty of the carrier to recognize the union chosen by the employees-in other words, it is essentially a corollary of the duty. Such a duty does not contemplate that governmental power should, after failure of the parties to reach accord, be added to the scales in favor of either party and thus compel the other to agree upon the aided party's terms. Rather at that point, impasse was to free both parties to resort to self-help. See N.L.R.B. v. Insurance Agents' International, 361 U.S. 477, 484-486, 80 S.Ct. 419, 424-425, 4 L.Ed.2d 454 (1960). As Mr. Richberg had testified 'I wish to stress that one point above all others. We are seeking an opportunity to preserve self-government in industry. * * * We are not asking the Government to use force against one or the other party. We are simply asking aid and cooperation.' Hearings 22.
Even apart from what the drafters of the Act representing both sides specifically contemplated, the result reached today will destroy entirely the carefully planned scheme of the Act. The Act is built upon a step-by-step framework. Each step is carefully drawn to introduce slightly different pressures upon the parties to reach settlement from the preceding step. First, the parties confer jointly. Next, the National Mediation Board may add its pressure through mediation. Then, the President may call into effect both the great power of his office and that of informed public opinion through the creation of an emergency board. Underlying the entire statutory framework is the pressure born of the knowledge that in the final instance traditional self-help economic pressure may be brought to bear if the statutory mechanism does not produce agreement. The Act does not evidence an intention to return to any step once completed. The Court's decision will effectively destroy the scheme of gradually escalating pressures. Moreover, the Court provides absolutely no guidance as to where in the bargaining scheme the parties are to be remanded. Does the court send them back to the Mediation Board which has already terminated jurisdiction finding the parties to have reached impasse? Should the court remand to some other phase of the proceedings? If so, where?
More important, however, is the mortal would today's holding inflicts on the critical role to be played by the presence of economic weapons in reserve. N.L.R.B. v. Insurance Agents' International, supra, at 488-489, 80 S.Ct., at 426-427. As the statutory machinery nears termination without achieving settlement, the threat of economic self-help and the pressures of informed public opinion create new impetus toward compromise and agreement. If self-help can now effectively be thwarted by injunction and by drawn-out court proceedings after the termination of the entire bargaining process, or worse, yet, at each step thereof, the threat of its use becomes impotent, indeed.
Since there is no specific mandate for an injunction in the circumstances presented by this case, the more general provisions of the Norris-LaGuardia Act are applicable. Virginian R. Co. v. System Federation No. 40, 300 U.S., at 563, 57 S.Ct., at 607; Brotherhood of Railroad Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 40-41, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957).
'The Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. §§ 101-115, expresses a basic policy against the injunction of activities of labor unions. We have held that the Act does not deprive the federal courts of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act. Virginian R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22. However, the policy of the Act suggests that the courts should hesitate to fix upon the injunctive remedy for breaches of duty owing under the labor laws unless that remedy alone can effectively guard the plaintiff's right.' International Association of Machinists v. Street, 367 U.S., at 772-773, 81 S.Ct., at 1802.
My conclusion, then, is that the Railway Labor Act as designed by its coframers and as enforced by this Court excludes any role for the judiciary to oversee the relative efforts of the parties in their mutual attempt to reach settlement. A court may order the parties to recognize one another and sit down to bargain, but upon failure of the statutory machinery to induce settlement, the judiciary is denied power to enjoin resort to traditional self-help measures. If this scheme has proved ineffective. Congress, not this Court, must redress the deficiencies.
I would affirm.

## Notes

* ↑ Section 6 provides in part:
* ↑ Section 5 First, provides in part:
* ↑ Section 10 provides in part:
* ↑ Section 5 First, provides in part:
* ↑ 'Mr. Richberg: * * * This bill which has been introduced in the House and in the Senate simultaneously represents the product of months of negotiations and conferences between the representatives of 20 railroad labor organizations and the Association of Railway Executives representatives, representing the great majority, practically all, of the carriers by railroad.' Hearings 9.
* ↑ Mr. Thom (carrier representative). 'I wish you to bear that fact in mind-the moral obligation now resting upon each one of the proponents of this bill in respect to its effect upon the public interest. Suppose it is changed in any important particular, what effect will that have upon the moral obligation to which I have just alluded? * * *
* ↑ Carrier representatives were present throughout the congressional testimony of Mr. Richberg. None contradicted Mr. Richberg's viewpoint in their testimony.
* ↑ See also Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944); Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22 (1949); Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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