# Order of Railroad Telegraphers v. Chicago and North Western Railroad Company/Dissent Whittaker

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Clark Whittaker
United States Supreme Court
362 U.S. 330
Order of Railroad Telegraphers v. Chicago and North Western Railroad Company
Argued: March 1, 2, 1960. --- Decided: April 18, 1960
Mr. Justice WHITTAKER, with whom Mr. Justice FRANKFURTER, Mr. Justice CLARK and Mr. Justice STEWART join, dissenting.
The Court concludes, as I read its opinion, that the Union's demand for a covenant that no existing position may be abolished without its consent was a lawfully bargainable one under the Railway Labor Act; that the union did not, by its demand, attempt unlawfully to 'set itself up in defiance of' public regulatory orders; that the 'Union merely asked for a contractual right to bargain with the railroad about * * * abandon(ing) stations * * * and thus abolish(ing) jobs'; that '(e)ven if a Norris-LaGuardia 'labor dispute' could not arise out of an unlawful bargaining demand * * * the union's proposal here was not unlawful,' and that the Norris-LaGuardia Act deprived the court of jurisdiction to enjoin the threatened strike to enforce acceptance of the Union's demand.
With all deference, I believe that these conclusions are contrary to the admitted or indubitable facts in the record, to the provisions and policies of Acts adopted by Congress, and also to principles established by many decisions of this Court; and being fearful that the innovation and reach of the Court's conclusions will be destructive of congressional policy and injurious to the public interest, I feel compelled to state my dissenting views.
Inasmuch as I read the record somewhat differently than does the Court, my first effort will be to make a plain and chronological statement of the relevant facts.
The Chicago and North Western Railway Company ('North Western') is a major interstate common carrier by railroad. The Order of Railroad Telegraphers ('Union') is a railway labor union, certified by the National Mediation Board as the representative of the station agents and various other employees of North Western. North Western's lines extend westerly and northerly from Chicago into and serve nine largely agricultural midwestern States. They were laid out and constructed near the middle of the last century, and, to accommodate that day's mode and conditions of rural travel, stations were established at close intervals along its lines-one every seven to 10 miles along its branch lines through rural sections-to enable its patrons to travel, by horse or horses and wagon over dirt roads, from their homes to the station and return in one day.
Although originally an efficient and profitable railroad, North Western, in more recent years, failed both to maintain and to modernize its lines, facilities and equipment, and also permitted many outmoded, inefficient and wasteful practices to continue-producing the highest ratio of wage and salary expense to the revenue dollar of all major American railroads-resulting ultimately in its inability effiectively to compete with new forms of transportation, or even with modernized railroads. In consequence, its net revenues so steadily and extensively declined that it lost $8,000,000 in the first quarter of 1956, and this so reduced its cash position that its payrolls of $330,000 per day to its 18,000 employees were in jeopardy.
Alarmed by these conditions, North Western's new managers undertook a number of steps in the spring of 1956 to improve its physical condition and competitive position, including the elimination of many outmoded, costly and wasteful practices. It then had several hundred 'one-man' stations, principally located on branch lines from which-due to lack of need, occasioned by the advent of paved roads and motorized vehicles-all passenger trains and many freight trains had been removed and over which the few remaining freight trains passed at hours when many of the agents were not even on duty. Its studies, disclosed many instances where such agents were drawing a full day's pay for as little as 15 to 30 minutes' work. Conceiving this to be a wasteful practice and violative of the national transportation policy, North Western promulgated a plan-known as its Central Agency Plan-which contemplated the discontinuance of a full-time agent at most of such stations and provided, instead, for a centrally located agent to perform the necessary agency services that the central station and also at the neighboring station or stations to either side.
Accordingly, North Western filed petitions with the Public Utility Commissions of South Dakota, Iowa, Minnesota and Wisconsin to effectuate its Central Agency Plan. The first of those petitions was filed with the South Dakota Commission on November 5, 1957, asking authority to effectuate the Central Agency Plan with respect to 69 'one-man' stations in that State. Hearings were held by that Commission beginning November 26, 1957, and ending January 17, 1958. The Union appeared in that proceeding, presented evidence, a brief and an oral argument, in opposition to the petition. It contended, among other things, that its existing bargaining agreement with North Western prohibited abolishment of any agency jobs without its consent. On May 9, 1958, the Commission entered its order. It found that the workload of the agents at the stations involved varied from 12 minutes to 2 hours per day and averaged 59 minutes per day. It further found:
'That the maintenance of full-time agency service at all of the subject stations, because of the lack of public need constitutes mismanagement and a dissipation of carrier's revenues which has and will impair its capacity to render adequate rail service to the public at reasonable rates * * *'
Thereupon, the Commission, electing to act under a South Dakota statute authorizing it to order changes to be made in station operations where necessary in the public interest, directed North Western to make the plan (establishing 16 central agency stations and abolishing 53 full-time agency positions) effective immediately.
On December 23, 1957, about six weeks after North Western filed its petition with the South Dakota Commission, the Union, purporting to act under the provisions of § 6 of the Railway Labor Act, sent a letter to North Western requesting that their bargaining agreement be amended by adding the following provision:
'No position in existence on December 3, 1957, will be abolished or discontinued except by agreement between the carrier and the Organization.'
North Western responded the next day, saying that it did not consider the request to be a proper subject of bargaining, but it offered, without waiving its position, to meet with the Union's officers and to discuss the matter further. Conferences were thereafter held by the parties but no agreement was reached, and the Union invoked mediation under the Railway Labor Act. On February 24, 1958, the National Mediation Board began its efforts to mediate the controversy, and its representative conducted a number of meetings between the parties to that end, but was not successful, and thereafter the Board, acting pursuant to § 5, First, of the Railway Labor Act, wrote the parties on May 27, requesting them to submit the controversy to arbitration under the provisions of § 8 of the Railway Labor Act. But both parties declined-the Union on May 28 and North Western on June 12-and, on June 16, the Board terminated its services and so advised the parties in writing.
On July 10, the Union sent to its members a strike ballot under an accompanying letter. The vote was almost unanimous in favor of a strike, and, on August 18, the Union called a strike of its members to begin at 6 a.m. on August 21. A renewed proffer of mediation services by the Board was accepted by the parties and, through it, further efforts were made on August 19 to compose the controversy, but without success, and, on August 20, the Board again advised the parties that it had terminated its services.
On August 20, North Western filed a complaint against the Union and various of its officials in the United States District Court for the Northern District of Illinois, alleging that the Union's contract demand was not a lawfully bargainable subject under the Railway Labor Act; that the impending strike, called to force acceptance of that demand by North Western, would be illegal; that North Western had a right arising under the laws of the United States, particularly the Interstate Commerce Act and the Railway Labor Act, to be free of such an illegal strike, and it prayed that it be enjoined. The court entered a temporary restraining order on that date. Thereafter, following full hearing, the court held that the Union's demand 'relates to 'rates of pay, rules and working conditions' and is a bargainable issue under the Railway Labor Act'; that a strike to force acceptance of that demand would not be unlawful; and, on September 8, 1958, the court entered its decree restraining the strike until midnight, September 19, denying any further injunctive relief, and dismissing the complaint. The Court of Appeals, holding that the Union's contract demand was not a lawfully bargainable one and that its acceptance could not legally be forced by a strike, reversed and remanded with directions to enter an injunction as prayed in the complaint. 264 F.2d 254. This Court granted certiorari, 361 U.S. 809, 80 S.Ct. 56, 4 L.Ed.2d 58, and now reverses the judgment of the Court of Appeals upon grounds which, with deference, I think are not only injurious to the public interest but also demonstrably legally erroneous, as I shall endeavor to show.
Congress, in comprehensively providing for the regulation of railroads, their transportation services and their employer-employee relations, has declared its policies in several related Acts, including Part 1 of the Interstate Commerce Act, the Railway Labor Act, and the Norris-LaGuardia Act, and, at least in cases such as this, none of them may meaningfully be read in isolation but only together as, for they are in fact, an integrated plan of railroad regulation. And if, as is frequently the case in such undertakings, there be overlappings, '(w)e must determine here how far Congress intended activities under one of these policies to neutralize the results envisioned by the other.' Allen Bradley Co. v. Local Union, 325 U.S. 797, 806, 65 S.Ct. 1533, 1538, 89 L.Ed. 1939.
By Part I of the Interstate Commerce Act, Congress has provided a pervasive scheme of regulation of all common carriers engaged in transportation by railroad in interstate commerce. The declared policy of that Act was to promote economical and efficient transportation services at reasonable charges and, as this Court has said, 'It is a primary aim of that policy to secure the avoidance of waste. That avoidance, as well as the maintenance of service, is viewed as a direct concern of the public.' State of Texas v. United States, 292 U.S. 522, 530, 54 S.Ct. 819, 824, 78 L.Ed. 1402. 'Congress has long made the maintenance and development of an economical and efficient railroad system a matter of primary national concern. Its legislation must be read with this purpose in mind.' Seaboard Air Line R. Co. v. Daniel, 333 U.S. 118, 124-125, 68 S.Ct. 426, 430, 92 L.Ed. 580.
To aid in effectuating that policy, Congress has contemplated the abandonment of railroad lines, stations, depots and other facilities and services when found by designated public regulatory bodies to be burdensome and no longer required to serve the public convenience and necessity. To this end, it has empowered the Interstate Commerce Commission, upon application and after notice and public hearing, to issue a certificate authorizing the abandonment of 'all or any portion of a line of railroad,' and it has provided that '(f)rom and after issuance of such certificate * * * the carrier by railroad may, without securing approval other than such certificate * * * proceed with the * * * abandonment covered thereby.' (Emphasis added.) And in the Transportation Act of 1958 (72 Stat. 568), Congress has empowered the Commission, under stated conditions, to authorize the abandonment of 'any train or ferry.' However, Congress has not sought completely to accomplish its abandonment policies through the Commission. Rather, it has sought to make use of state regulatory commissions, as additional instruments for the effectuation of its policies, in respect to the abandonment of some railroad facilities and services. Among others, it has long left to state regulatory commissions abandonments of railroad stations and station agency service; and, in 1958, after extensive review of that subject in the process of enacting the Transportation Act of 1958, it deliberately reaffirmed that policy. Moreover, in its report on S. 3778, which culminated in the Transportation Act of 1958, the Senate Committee on Interstate and Foreign Commerce critically attributed a major part of the financial plight of the railroads to their failure to apply to regulatory bodies for permission to abandon burdensome and needless services in accordance with congressional policy, and strongly advocated that such be done.
For the fair and firm effectuation of these policies, Congress has provided that issues respecting the propriety of an abandonment shall be determined by a public regulatory body. It has contemplated that the carrier shall propose to the proper regulatory body the abandonment of particular facilities or services and that, after notice and hearing-at which all persons affected, including employees and their union representatives, may appear and be heard-the public regulatory body shall determine whether the proposal is in the public interest, and its order, unless reversed on judicial review, shall be binding upon all persons. These procedures plainly exclude any right or power of a carrier, at its will alone, to effectuate, or of a labor union representing its employees to veto, any proposed abandonment. Although both may be heard, neither of them, nor the two in agreement, even if their agreement be evidenced by an express contract, may usurp the Commission's decisional function by dictating the result or thwarting its effect. It is obvious that any abandonment, authorized by a proper regulatory body, will result in abolishment of the jobs that were involved in the abandoned service. And inasmuch as the maintenance of these jobs constituted at least a part of the wasteful burden that necessitated the abandonment, it is equally obvious that Congress intended their abolishment. Yet, here, the Union has demanded, and threatens to force by a strike, acceptance by the carrier of a covenant that no job in existence on December 3, 1957, will be abolished without its consent. Certainly that demand runs in the teeth of the recited provisions and policies of the Interstate Commerce Act. It plainly would destroy the public regulation of abandonments, provided and contemplated by Congress in the public interest, and render them subject to the Union's will alone. A demand for such a contractual power surely is an unlawful demand.
The Union argues, and the Court seems to find, that there is a basis for the claimed legality of the Union's demand in the provision of § 5(2)(f) of the Interstate Commerce Act that the Commission in approving railroad mergers or consolidations 'shall require a fair and equitable arrangement to protect the interests of the railroad employees affected.' Instead of supporting legality of the Union's demand, I think the provisions of that section and its legislative history are further proof of its illegality. While that section authorizes the Commission to require temporary mitigation of hardships to employees displaced by such unifications, nothing in it authorizes the Commission to freeze existing jobs. However, in the course of its enactment an effort was made to amend it to that end. On the floor of the House, Representative Harrington advocated the following proviso:
'Provided, however, That no such transaction shall be approved by the Commission if such transaction will result in unemployment or displacement of employees of the carrier or carriers, or in the impairment of existing employment rights of said employees.' (Emphasis added.)
While the bill was in Conference, the Legislative Committee of the Interstate Commerce Commission sent a communication to Congress condemning the principle of the Harrington amendment in the following words:
'As for the (Harrington) proviso, the object of unifications is to save expense, usually by the saving of labor. Employees who may be displaced should, in the case of railroad unifications, be protected by some such plan as is embodied in the so-called 'Washington agreement' of 1936 between the railroad managements and labor organizations (providing for the mitigation of hardships by the payment of certain monetary benefits for a limited period to employees whose jobs are abolished by such approved unifications). The proviso, by prohibiting any displacement of employees, goes much too far, and in the long run will do more harm than good to the employees.'
(Emphasis added.)
Congress rejected the Harrington proviso in the form proposed. Yet, the Union's demand here is designed to accomplish the very purpose that Congress rejected. Of the Harrington proviso this Court said in Railway Labor Executives' Ass'n v. United States, 339 U.S. 142, 70 S.Ct. 530, 94 L.Ed. 721, that it 'threatened to prevent all consolidations to which it related * * * (but Congress) * * * made it workable by putting a time limit upon its otherwise prohibitory effect.' 339 U.S. at pages 151, 153, 70 S.Ct. at page 534. But Congress actually did more. It eliminated any power to freeze existing jobs. It is not to be doubted that a carrier and a labor union representing the carrier's employees, lawfully may bargain about and agree upon matters in mitigation of hardships to employees who are displaced by railroad unifications or abandonments; but they may not agree, nor may any regulatory body order, that no jobs shall be abolished, and thus defeat unifications or abandonments required in the public interest. Railway Labor Executives' Ass'n v. United States, supra; Interstate Commerce Comm. v. Railway Labor Executives Ass'n, 315 U.S. 373, 62 S.Ct. 717, 86 L.Ed. 904; United States v. Lowden, 308 U.S. 225, 60 S.Ct. 248, 84 L.Ed. 208.
There is no dispute in the record that the carrier sought to bargain and agree with the Union upon matters in mitigation of hardships to employees displaced by the station abandonments. It offered to bargain about (1) transferring the agents affected to productive jobs, (2) limiting the job abolishments to an agreed number per year, and (3) paying supplemental unemployment benefits to the employees affected. Short of foregoing the station abandonments, this is all it lawfully could do. It is not suggested that it should have done more in this respect. Indeed, the Union refused even to discuss these proposals. Instead, as its president testified at the trial, the only 'alternative' the Union 'offered the North Western Railroad was to comply with this rule or strike.'
This also answers the Court's argument that there is nothing in the Interstate Commerce Act 'making it unlawful for unions to want to discuss with railroads actions that may vitally and adversely affect the security, seniority, and stability of railroad jobs.' The quoted statement is literally true. But the further truth is that the carrier offered to bargain and agree with the United about those matters, but the Union refused even to discuss them. Note 6, ante. The Union's demand was not for a right 'to discuss' such matters with the carrier, but was, rather, that the carrier agree that no jobs in existence on December 3, 1957, be abolished without the Union's consent. And the only 'alternative' it offered was: 'comply with this rule or strike.' Ibid. The foregoing likewise answers the Court's argument that the Union 'merely asked for a contractual right to bargain with the railroad about any voluntary steps it might take to abandon stations * * * and thus abolish jobs.' Plainly the Union's demand was not for a right 'to bargain with' the carrier about 'abolish(ing) jobs,' but was for a unilateral right to prohibit the abolishment of any job without its consent.
The Court fails to find any testimony in the record 'that this union has set itself up in defiance of any state mandatory order.' Although, in my view, the question is not whether it has set itself up in defiance of any valid existing state mandatory order, but rather is whether it lawfully may demand, and force by a strike, acceptance of a covenant in derogation of the law; yet, in very truth, it 'has set itself up in defiance,' or, at least, in derogation, of a 'state mandatory order.' As earlier noted, the order of the South Dakota Commission-the validity of which cannot be questioned here-was a mandatory one. It directed the carrier to make the Central Agency Plan effective in that State and, thereunder, forthwith to abolish 53 full-time agency jobs. That order was entered on May 9, 1958, and if the Union's demand, that no job in existence on December 3, 1957, may be abolished without its consent, is a lawful one nad may be enforced by a strike, then the South Dakota order is not only defied but defied successfully. Moreover, while such orders of state commissions, like those of the Interstate Commerce Commission, are in the nature of things usually permissive in character, they are nevertheless binding administrative determinations made, as Congress contemplated and Mr. Justice Brandeis said, 'to protect interstate commerce from undue burdens,' State of Colorado v. United States, 271 U.S. 153, 162, 46 S.Ct. 452, 454, 70 L.Ed. 878, and may not be overridden or thwarted by private veto.
Section 2, First, of the Railway Labor Act makes it the duty of carriers and their employees to exert every reasonable effort 'to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise.' Here, the Union's demand was simply for a covenant that no existing jobs may be abolished without its consent. It thus seems plain that the demand did not relate to the 'rates' of compensation to be paid to employees nor to their 'working conditions,' but, rather, it related solely to whether the employment relation, as to any existing job, might be severed altogether. It, therefore, seems clear enough that the demanded covenant was, in terms, beyond the purview of § 2, First. But even if this conclusion may be doubted, surely it must be agreed that Congress did not contemplate that agreements might be made, under the aegis of that section, in derogation of the commands, policies and purposes of related Acts which it has promulgated for the regulation of carriers and their employer-employee relations in the public interest. Here, as has been shown, the Union's demand was in derogation of the provisions and policies of the Interstate Commerce Act. It could not therefore be a lawfully bargainable subject within the purview of § 2, First, of the Railway Labor Act. The carrier could not lawfully accept it, and hence a strike to force its acceptance would be one to force a violation of the law.
Surely, in such circumstances, the carrier, in discharging its duty to safeguard the public interest, has a legal right to be free of a strike to force it to accept a demand which Congress has made unlawful. But there is no administrative remedy in such a case, and, hence, the legal right will be sacrificed, and Congress' policies will be thwarted, unless a preventive judicial remedy is available. Certainly Congress did not intend to create and 'to hold out to (the carrier and the public) an illusory right for which it was denying them a remedy.' Graham v. Brotherhood of Locomotive Firemen, 338 U.S. 232, 240, 70 S.Ct. 14, 18, 94 L.Ed. 22.
Nor does the Norris-LaGuardia Act render federal courts impotent to enjoin unlawful conduct or strikes to force acceptance of unlawful demands. That Act, in terms, permits federal courts to enjoin 'unlawful acts (that) have been threatened and will be committed unless restrained.' This Court has consistently held that the Norris-LaGuardia Act does not prevent a federal court from enjoining an unlawful abuse of power conferred upon a labor union by the Railway Labor Act or a threatened strike to force acceptance of an unlawful demand.
In Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622, a union threatened a strike to force a carrier to accept demands which Congress had placed within the exclusive jurisdiction of the Railroad Adjustment Board. Holding that the demands were in derogation of that Act of Congress and therefore illegal, a federal court enjoined the threatened strike to enforce them. The union contended here that the Court was without jurisdiction to issue the injunction because 'the Norris-LaGuardia Act has withdrawn the power of federal courts to issue injunctions in labor disputes (and that the) limitation * * * applies with full force to all railway labor disputes.' 353 U.S. at pages 39-40, 77 S.Ct. at page 640. In rejecting that contention, this Court said:
'We hold that the Norris-LaGuardia Act cannot be read alone in matters dealing with railway labor disputes. There must be an accommodation of that statute and the Railway Labor Act so that the obvious purpose in the enactment of each is preserved. We think that the purposes of these Acts are reconcilable.' 353 U.S. at page 40, 77 S.Ct. at page 640.
And finding that the union's demands violated the provisions of the Railway Labor Act, this Court held 'that the specific provisions of the Railway Labor Act take precedence over the more general provisions of the Norris-LaGuardia Act,' and, reaffirming its decision in Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, it further held "that the District Court (had) jurisdiction and power (to enjoin the threatened strike) notwithstanding the provisions of the Norris-LaGuardia Act." 353 U.S. at pages 41-42, 77 S.Ct. at page 641.
There, as here, the union's demand was in derogation of the specific provisions of an Act of Congress, and here, as there, those specific provisions must 'take precedence over the more general provisions of the Norris-LaGuardia Act.'
In Virginia Railway Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789, this Court held that a federal court could lawfully issue an injunction in a labor dispute that was governed by the specific provisions of a federal statute, and that '(s)uch provisions cannot be rendered nugatory by the earlier and more general provisions of the Norris-LaGuardia Act.' 300 U.S. at page 563, 57 S.Ct. at page 607.
Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173, involved the unlawful misuse by a union of the powers conferred upon it by the Railway Labor Act. Observing that 'there is no mode of enforcement (of the rights that were being denied by such misuse of powers) other than resort to the courts,' this Court held that a federal court had the 'jurisdiction and duty to afford a remedy for a breach of statutory (rights).' 323 U.S. at page 207, 65 S.Ct. at page 234. On almost identical facts, this Court reaffirmed that principle in Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187. In a similar factual situation, this Court held in Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22, that a federal court may enjoin a labor union from unlawfully using or abusing powers conferred upon it by the Railway Labor Act, notwithstanding the Norris-LaGuardia Act. And, after reviewing the then-existing cases, the Court concluded:
'If, in spite of the Virginian, Steele, and Tunstall cases, supra, there remains any illusion that under the Norris-LaGuardia Act the federal courts are powerless to enforce these rights, we dispel it now.' 338 U.S., at page 240, 70 S.Ct. at page 18.
Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283, was an action to enjoin a union and a carrier from enforcing the provisions of a contract, made under the threat of a strike, that unlawfully deprived a class of railroad employees of legal rights which this Court held had been impliedly vouchsafed to them by the Railway Labor Act. Finding that the questioned provisions of that contract were 'unlawful' and that the injured persons 'must look to a judicial remedy to prevent the sacrifice or obliteration of their rights under the (Railway Labor) Act (inasmuch as) no adequate administrative remedy can be afforded by the National Railroad Adjustment or Mediation Board(s),' this Court concluded 'that the District Court has jurisdiction and power to issue necessary injunctive orders notwithstanding the provisions of the Norris-LaGuardia Act. We need add nothing to what was said about inapplicability of that Act in the Steele case and in Graham v. Brotherhood of Firemen & Enginemen, 338 U.S. 232, 239-240, 70 S.Ct. 14, 18, 94 L.Ed. 22.' 343 U.S. at apge 774, 72 S.Ct. at page 1025.
Resting upon its conclusion that the Union's demand here was a lawful one, the Court relegates the Virginian, Steele, Tunstall, Graham and Howard cases to a footnote, and says, 'None of these cases, however, enjoined conduct which the Norris-LaGuardia Act withdrew from the injunctive power of the federal courts.' Does the Court mean by this statement that, although it enjoined enforcement of the illegal provisions of the contract which had been forced upon the carrier by 'the threat of a strike' in the Howard case, it would not, if asked, have enjoined the strike which forced acceptance by the carrier of that unlawful contract? At all events, it cannot be denied, and the Court concedes, that the Chicago River case holds that a threatened strike to force compliance with unlawful demands may be enjoined. There, just as here, a threatened strike was enjoined. There, as here, the injunction issued because the Union's demand was not a lawfully bargainable one under the Railway Labor Act. The demands in the Chicago River case were unlawful because jurisdiction over their subject matter had been exclusively vested by Congress in the Railroad Adjustment Board, while in this case the demand is unlawful because jurisdiction over its subject matter has been exclusively vested partly in the Interstate Commerce Commission and partly in state regulatory commissions. Today's attempted distinctions of that case were advanced in that case, but were found 'inapposite,' 353 U.S. at page 42, 77 S.Ct. at page 641. Being 'inapposite' there, they are so here. I submit that, on the point in issue, the Chicago River case is indistinguishable from this one, and that if the Norris-LaGuardia Act did not prohibit a federal court from issuing an injunction in that case, it does not do so in this one.
It is to be noted that the Court does not say that the Norris-LaGuardia Act prohibits federal courts from enjoining threatened strikes to force acceptance of illegal demands. It says, rather, that 'Even if a Norris-LaGuardia 'labor dispute' could not arise out of an unlawful bargaining demand * * * the union's proposal here was not unlawful.' If it fairly may be inferred from that statement that the Court would have sustained jurisdiction had it found the demand to be unlawful, then my disagreement with the Court would be reduced to and turn on that simply issue. And as to it, I respectfully submit that the admitted facts show that the demand was in derogation of the provisions and policies of the Interstate Commerce Act. Believing that the demand was not a lawfully bargainable one under the Railway Labor Act, and that the District Court had jurisdiction to enjoin the threatened strike, called to force acceptance of that illegal demand, I would affirm the judgment of the Court of Appeals.
Memorandum of Mr. Justice STEWART.
I have strong doubt as to the existence of federal jurisdiction in this case, for reasons well expressed by then Circuit Judge Minton, dissenting in Toledo, P. & W.R.R. v. Brotherhood of Railroad Trainmen, 7 Cir., 132 F.2d 265, 272-274. See Brotherhood of Railroad Trainmen v. New York Central R. Co., 6 Cir., 246 F.2d 114, at page 122 (dissenting opinion). If, however, the Federal District Court had jurisdiction, as all my Brethren seem to believe or at least assume, Mr. Justice WHITTAKER'S dissenting opinion convincingly demonstrates for me that the District Court had power to issue an injunction.

## Notes

* ↑ The fact that many of these agents were not on duty when the freight trains passed their stations was due to a union requirement that their day's work must begin at 8:30 a.m.
* ↑ Act of Sept. 18, 1940, c. 722, Title I, § 1, 54 Stat. 899 preceding Part I of the Interstate Commerce Act, 49 U.S.C. § 1, 49 U.S.C.A. note preceding section 1-titled 'National Transportation Policy.' In pertinent part, it provides: 'It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act * * * to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers * * *'
* ↑ The South Dakota Commission further found that the expenses of operating the 69 stations involved exceeded related revenues by $170,399 in 1956, and that if the Central Agency Plan had been in effect during that period there would have been a surplus of $58,884.
* ↑ 48 Stat. 1197, 45 U.S.C. § 156, 45 U.S.C.A. § 156.
* ↑ North Western's reply stated, inter alia, that, in its view, the Union's request was 'not a proper subject for a Section 6 notice in that it does not in fact concern rules, rates of pay or working conditions, but instead constitutes an attempt to freeze assignments regardless of the controlling agreement and regardless of the necessity or justification for such assignments.'
* ↑ In the mediation meetings and other meetings between the parties, North Western suggested several means of cushioning the effects of discontinuing these 'one-man' agency jobs, including (1) the transfer of the agents affected to productive jobs; (2) the limiting of job abolishments to an agreed number per year; and (3) the payment of supplemental unemployment benefits to the employees affected. The Union refused to discuss these proposals.
* ↑ 45 U.S.C. § 155, First, 45 U.S.C.A. § 155, subd. 1.
* ↑ 45 U.S.C. § 158, 45 U.S.C.A. § 158.
* ↑ The Union's letter of July 10, 1958, after referring to the efforts of North Western to abolish many of the 'one-man' agency jobs and to the Union's efforts in opposition, stated among other things:
* ↑ The strike call, after referring to the Union's efforts to prevent the abolishment of jobs at 'one-man' stations said, inter alia, that: 'The need for the proposed rule has again been tragically demonstrated in the last few days. What happened in South Dakota was repeated in Iowa, except that this time 70 positions were abolished and 27 assignments enlarged.'
* ↑ By order of Sept. 16, 1958, the District Court further restrained the impending strike pending determination of North Western's appeal.
* ↑ 49 U.S.C. §§ 1-27, 49 U.S.C.A. §§ 1-27.
* ↑ 45 U.S.C. §§ 151-164, 45 U.S.C.A. §§ 151-164.
* ↑ 29 U.S.C. §§ 101-115, 29 U.S.C.A. §§ 101-115.
* ↑ See note 2 for the pertinent provisions of the National Transportation Policy.
* ↑ 49 U.S.C. §§ 1(18), 1(19), 1(20), 49 U.S.C.A. § 1(18-20).
* ↑ Act of Aug. 12, 1958, Pub.L. 85-625, § 5, 72 Stat. 571, 49 U.S.C. § 13a, 49 U.S.C.A. § 13a.
* ↑ The Transportation Act of 1958, 72 Stat. 568. See Hearings Before Subcommittee on Surface Transportation of Senate Committee on Interstate and Foreign Commerce on Problems of the Railroads, 85th Cong., 2d Sess., pp. 1816, 1817, 1821, 2027, 2028; 104 Cong.Rec., pp. 10850, 12522, 12537, 15528; S.Rep. No. 1647 on S. 3778, 85th Cong., 2d Sess.; H.R.Rep. No. 1922 on H.R. 12832, 85th Cong., 2d Sess.; H.R.Conf.Rep. No. 2274, 85th Cong., 2d Sess.
* ↑ 'The railroad industry has not, in the subcommittee's opinion, been sufficiently interested in self-help in such matters as consolidations and mergers of railroads; joint use of facilities in order to eliminate waste, such as multiple terminals and yards that require expensive interchange operations; reduction of duplications in freight and passenger services by pooling and joint operations; abandonment or consolidation of nonpaying branch and secondary lines; abolishing of unnecessarily circuitous routes for freight movements; improved handling of less-than-carload traffic; coordination of transportation services and facilities by establishment of through routes and joint rates with other forms of transportation; and modernization of the freight-rate structure, including revision of below-cost freight rates to levels that cover cost and yield some margin of profit as well as adjustment of rates excessively above cost to attract traffic and yield more revenue.' S.Rep. No. 1647, 85th Cong., 2d Sess., p. 11.
* ↑ 49 U.S.C. § 5(2)(f), 49 U.S.C.A. § 5(2)(f).
* ↑ 84 Cong.Rec. (1939), Pt. 9, p. 9882.
* ↑ Interstate Commerce Commission Report on S. 2009, Omnibus Transportation Legislation, p. 67 (76th Cong., 3d Sess., House Committee Print), transmitted Jan. 29, 1940.
* ↑ See note 6.
* ↑ Ibid.
* ↑ Ibid.
* ↑ 45 U.S.C. § 152, First, 45 U.S.C.A. § 152, subd. 1.
* ↑ Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283.
* ↑ Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789. 'Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.' 300 U.S. at page 552, 57 S.Ct. at page 601.
* ↑ 29 U.S.C. § 107(a), 29 U.S.C.A. § 107(a).
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