# Brotherhood of Locomotive Engineers v. Chicago, Rock Island & Pacific Railroad Company/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Douglas
United States Supreme Court
382 U.S. 423
Brotherhood of Locomotive Engineers v. Chicago, Rock Island & Pacific Railroad Company
Argued: Dec. 8 and 9, 1965. --- Decided: Jan 31, 1966
Mr. Justice DOUGLAS, dissenting.
We all agree that Congress has ample power to regulate the number of employees used to man railroad trains operating in interstate commerce. Unlike the majority, however, I believe that Congress has exercised that power, and respectfully dissent from the Court's conclusion to the contrary.
The bargaining impasse which prompted the passage of Public Law 88-108 (77 Stat. 132) represented, in a sense, only the exposed top of a large iceberg. Lurking beneath the surface of the controversy were the twin problems of automation and technological unemployment. Congress was well aware of the developing conflict between innovation and job security. When President Kennedy sought a legislative solution to the pending crisis in the railroad industry, he reminded Congress that:
'* * * this dispute over railroad work rules is part of a much broader national problem. Unemployment, whether created by so-called automation, by a shift of industry to new areas, or by an overall shortage of market demand, is a major social burden.
'This problem is particularly but not exclusively acute in the railroad industry. Forty percent fewer employees than were employed at the beginning of this decade now handle substantially the same volume of rail traffic. The rapid replacement of steam locomotives by diesel engines for 97 percent of all freight tonnage has confronted many firemen, who have spent much of their career in this work, with the unpleasant prospect of human obsolescence. * * * The Presidential Commission was established in part, it said, because of the need to close the gap between technology and work.'
The Presidential Railroad Commission to which President Kennedy referred was established by President Eisenhower's order in 1960, and was charged with investigating the dispute which arose out of the railroads' proposed elimination of firemen on diesel engines, and the reduction of the number of other crew members, in freight and yard service. After an extensive study, the Commission issued its report containing detailed findings on all aspects of the dispute. The Commission's recommendations included the elimination of firemen on diesels in freight service and the reduction of the number of brakemen and switchmen. It recommended financial benefits for those separated from service.
This Presidential Railroad Commission was well aware that, however, desirable might be a nationwide solution to the problem, the continued existence of state 'full crew' laws made this impossible:
'(M)ost of the legislation of this kind was enacted prior to 1920. These laws apparently fail to envision modern railroad operations. We feel that our recommendations with respect to this issue should have nationwide application. We recognize that there will be difficulty in applying the rule recommended by us in States where 'full crew' laws have been enacted. How the restriction of those laws may be lifted, however, is a matter which goes beyond our charge.'
Then came Public Law 88-108, § 3 of which empowers the Board to 'resolve the matters on which the parties were not in agreement' and to make a binding award which 'shall constitute a complete and final disposition of the * * * issues.' Section 7(a) lays down standards for the Board:
(1) '(T)he effect of the proposed award upon adequate and safe transportation service';
(2) '(T)he effect of the proposed award upon * * * the interests of the carrier and employees affected'; and
(3) '(D)ue consideration to the narrowing of the areas of disagreement which has been accomplished in bargaining and mediation.'
Today the Court concludes that Congress sought only to shear off the visible portion of the iceberg, leaving the continued existence of state 'full crew' laws as a bar to the resolution of these matters.
That the state statutes in question conflict with the federal arbitration awards is plain. Congress directed the National Arbitration Board to resolve the dispute as to the necessity of firemen on diesel freights and as to the minimum size of train and switching crews. The Board has declared that, in general, firemen are not to be required. And through local boards, the number of brakemen, switchmen, and helpers to be used in various operations is fixed. These state laws, however, compel the use of firemen in virtually all interstate operations, and fix the size of train crews at levels usually exceeding those fixed by the local awards. States lacking such laws are, in light of the Court's decision, free to enact them and thereby, in effect, imperil Public Law 88-108 and the arbitration awards made under it. This Court has held that a state statute must fall in the face of an inconsistent provision in a collective bargaining agreement negotiated pursuant to the command of federal law, Local 24 of Intern. Broth. of Teamsters, Chauffuers, Warehousemen and Helpers of America, AFL-CIO Union v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312, even though Congress did not prescribe the particular terms of the agreement. And see State of California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed.2d 1034. We have here something more than collective bargaining agreements. These arbitration awards are binding directives, resolving a labor-management dispute, issued under the direction and authority of Congress.
The problems submitted to the Arbitration Board concerned primarily two central issues: (1) continued use of firemen on diesel-electric or electric locomotives which do not use steam power, and on which the work of firing boilers need not be performed; (2) the makeup or 'consist' of train service crews in road and yard. These are matters recognized by the Board as governed in some States 'by statute or administrative decision.' Indeed, a resolution of them in many situations might involve overriding or disregarding conflicting local regulations. Any realistic view of the scope and nature of the impasse the parties had reached would necessarily endow the Board with power to resolve conflicts between what it deemed to be the desirable national policy on the one hand and conflicting state laws on the other.
The issues were far-reaching; they included questions in the realm of economics, of railroad technology, and of sociology. This was a controversy that years of collective bargaining, study, informed analysis, persuasion, and debate had not been able to resolve. The Board's seven members held 29 days of hearings, received the testimony of more than 40 witnesses recorded in nearly 5,000 pages of transcript, examined more than 200 documentary exhibits, and made inspection trips to four railroad yards in the Chicago area. Its award was concurred in by the two carrier members and dissented from by the labor members. The opinion of the neutral members of the Board details the conclusions the panel reached. It states, as to the question of firemen, that:
'although we think it clear that firemen are presently performing useful services, we agree with the (Presidential Railroad) Commission 'that firemen-helpers are not so essential for the safe and efficient operation of road freight and yard diesels that there should continue to be either a national rule or local rules requiring their assignment on all such diesels."
The Board found, in respect to the other members of the train crew, that 'the consist of crews necessary to assure safety and to prevent undue workloads must be determined primarily by local conditions. A national prescription of crew size would be wholly unrealistic.' The Board established procedures for local arbitration of these issues. And, the Board added,
'It is clear from the evidence before us that the myriad of local arrangements has led to numerous inconsistencies in the manning of crews. It is equally clear that some of the existing rules, originating as they did more than a half-century ago, are anachronistic and do not reflect the present state of railroad technology and operating conditions.' The Board's concern with safety is apparent from a reading of the neutral members' opinion. As that opinion puts it:
'It may be fairly stated that concern with safety has pervaded this entire proceeding. It was apparent in the presentations and arguments by all the organizations and by the carriers, and was further emphasized by the inquiries which members of the Board directed to witnesses and counsel.'
We are in no position, of course, to pass judgment on the work of the Arbitration Board, nor is it our function to do so. But it is apparent that this panel had the power and the tools to resolve the controversy. Its award constitutes a national solution to the question of firemen and establishes the procedures, already utilized in respect to these railroads operating in Arkansas, for resolution of the crew consist issue.
I conclude that the effect of Public Law 88-108 and the awards made pursuant to it was to supersede state 'full crew' legislation. Of course, were the intent of Congress shown to be otherwise, that would be dispositive. Unlike the majority, I do not think that the bits and pieces of legislative debate cited in the Court's opinion can be regarded as a controlling statement of legislative intent. If anything, the legislative history of Public Law 88-108 suggests that Congress refused to accept the suggestion that, if it wished to avoid the supersession of state 'full crew' laws, it should expressly say so.
The majority points to statements made by Congressman Harris, Chairman of the House Committee on Interstate and Foreign Commerce, to the effect that the bill would have no effect on state laws. But when he stated his conclusion on the floor of the House, he was immediately challenged by Congressman Smith, Chairman of the Rules Committee. Under the circumstances, it seems inappropriate to regard Congressman Harris' views as wholly authoritative. The testimony of Secretary Wirtz, also referred to by the Court, was followed by a legal memorandum submitted by the Secretary. This memorandum suggests that the Interstate Commerce Commission would, under the proposed legislation, have the power to supersede state legislation, and that to avoid this the Commission might expressly provide to the contrary in its orders.
The absence of an express disclaimer of intent to supersede state laws was called to the attention of Congress. Testifying before the House Committee, Secretary Wirtz did so. The General Counsel of the Interstate Commerce Commission told the Committee that if 'the Congress wants to be doubly certain, for example, that no such legal consequence follows it could be done' by expressly stating that no supersession is intended. To this the Chairman responded:
'I appreciate your very frank response, because I think it has sort of been left up in the air as to what the courts might do. There has been expression as to what is intended and what some might have thought but I think we also have to provide clarity wherever it is necessary in order that the Commission may have guidance in its effort to carry out the responsibility should it so be directed.'
The Commission's General Counsel testified to the same effect before the Senate Commerce Committee:
'If it were desired to make that absolutely certain, if that is the desire of Congress, it can be done by just a phrase. * * *'
Despite this advice, Congress did not include a 'saving' clause.
Congress was faced, at the time it enacted Public Law 88-108, with more than the threat of a crippling strike. It had before it the recommendations of the Presidential Railroad Commission. It had been told by the President of the seriousness of the problem of technological unemployment arising from automation. Congress responded by establishing a procedure for resolution of the railroad industry's pressing economic problem with ample consideration of the 'safety' issue. It is inconceivable that Congress intended to solve only part of the problem when it directed the Arbitration Board to make a binding award which 'shall constitute a complete and final disposition of the * * * issues.'
In sum, I agree with District Court that, 'There is nothing in the Act itself or in the history that indicates that the Congress intended to resolve this problem of national magnitude by legislation that would be effective in only some 30 states that do not regulate crew consists by law or administrative regulation.' 239 F.Supp. 1, 23.
Although automation was a prime concern of the President and the Congress, the Court holds that the lawmakers cloaked their concern in such weasellike words as not to reach the roots of the problem. With all respect, I dissent.

## Notes

* ↑ Executive Order No. 10891, Nov. 1, 1960, U.S.Code Congressional and Administrative News 1960, p. 1693.
* ↑ Report of the Presidential Railroad Commission (1962), at p. 64.
* ↑ The national award provided for the elimination of 90% of the firemen's jobs in each local seniority district, except that firemen would in all cases be required on yard locomotives lacking a 'deadman' control. In addition, jobs had to be made available to firemen retained in service pursuant to the employment protective provisions of the award which, in general, provided that any fireman with 10 years' seniority had to be retained either as a fireman or an engineer. Firemen with between two and 10 years' seniority had to be retained in engine service or offered a comparable position.
* ↑ Thus Arkansas law requires a fireman on every train, with certain exceptions, while the arbitration award permits abolition of 90% of the firemen's positions. Arkansas requires three brakemen while the arbitration award requires no more than two. Similar conflicts appear in respect to the yard operations.
* ↑ The Chairman of the Board was Ralph T. Seward. The other two neutral members were Benjamin Aaron and James J. Healy. Representing the carriers were Guy W. Knight and J. E. Wolfe. Representing the labor organizations were H. E. Gilbert and R. H. McDonald.
* ↑ See note 3, supra.
* ↑ The carrier members, while 'disappointed with certain of (the) provisions' of the award, noted the 'care and diligence' which the Board had displayed in reaching its decision. The labor members contended that the Board had not been true to the congressional command and that its conclusions were erroneous.
* ↑ The opinion states that the 'lookout function presently assigned to the fireman is also performed by the head brakeman in road freight service and by all members of the train crew in yard service. In the great majority of cases the lack of a fireman to perform the related functions of lookout and signal passing will not endanger safety or impair efficiency because these functions can be, as they are now, performed by other crew members.'
* ↑ See Hearings before House Committee on Interstate and Foreign Commerce on H.J.Res. No. 565, 88th Cong., 1st Sess., 112 113. The reference to the Interstate Commerce Commission was made, of course, because at that stage Congress was considering the legislation in the form proposed by the President, which contemplated resolution of the dispute by the Commission.
* ↑ See Hearings before House Committee on Interstate and Foreign Commerce on H.J.Res. 565, 88th Cong., 1st Sess., 111.
* ↑ Id., at p. 614.
* ↑ Ibid.
* ↑ Hearings before Senate Committee on Commerce on S.J.Res. No. 102, 88th Cong., 1st Sess., 401.
* ↑ The possibility that the bill would result in the supersession of state laws was noted at other points in the Senate Commerce Committee hearings. A representative of the Brotherhood of Locomotive Engineers testified:
'Mr. DAVIDSON. Mr. Chairman, I was just handed a note that I would like to read into the record, if I may.
'Senator PASTORE. All right.
'Mr. DAVIDSON. General Counsel for the ICC, at the House hearing today, stated if this bill passes, the Commission would have jurisdiction over States' minimum crew bills.
'Senator PASTORE. I don't want to pass any judgment on that. You have read it into the record. I will check that.' Id., at 478.
The General Counsel of the Railway Labor Executives' Association testified: 'I certainly visualize that as a bare minimum the carriers will contend that the effect (of) orders of the Commission authorizing decreases in crew consist-either of enginecrew or traincrew-would operate to overrule full crew laws in those States that have them. Perhaps that explains the alacrity with which the carriers embraced the President's recommendation and endorsed it.' Id. at 629.
As stated by the District Court: 'A complete review of the legislative history will reveal that some members of Congress thought that the legislation would pre-empt state crew consist laws, and others thought it would not. It is perfectly clear that the Committees in both Houses had it brought effectively to their attention that the legislation might have a pre-empting effect, and if such pre-emption was not the desire and intention of the Congress, it should so expressly state in the bill. There was no such expression although the bill was amended in many other respects after the hearings before both Committees had been concluded.' 239 F.Supp., pp. 22-23.
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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