Missouri-Kansas-Texas R. Co. v. BROTHERHOOD OF LOC. ENG., 17580.

• Decision Date: 20 April 1959
• Docket Number: No. 17580.,17580.
• Citation: 266 F.2d 335
• Parties: MISSOURI-KANSAS-TEXAS RAILROAD COMPANY et al., Appellants-Appellees, v. BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al., Appellees-Appellants. BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al., Appellees-Appellants, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY et al., Appellants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

266 F.2d 335 (1959)

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY et al., Appellants-Appellees, v. BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al., Appellees-Appellants.

BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al., Appellees-Appellants, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY et al., Appellants-Appellees.

No. 17580.

United States Court of Appeals Fifth Circuit.

April 20, 1959.

COPYRIGHT MATERIAL OMITTED

M. E. Clinton, Denison, Tex., W. A. Thie, M. W. Reeves, Denison, Tex., O. O. Touchstone, Dallas, Tex., for appellants and cross-appellees.

J. Hart Willis, Willis & Willis, Dallas, Tex., Harry E. Wilmarth, V. Craven Shuttleworth, Cedar Rapids, Iowa, Harold C. Heiss, Wayland K. Sullivan, Cleveland, Ohio, William P. Fonville, Dallas, Tex., Clarence E. Weisell, Cleveland, Ohio, for appellees.

Before RIVES, JONES and WISDOM, Circuit Judges.

RIVES, Circuit Judge.

At 6:00 o'clock A.M. on November 6, 1958, the engineers, firemen, conductors, brakemen and switchmen of appellant Railroad Companies struck and ceased work. The strike was called without notice to the Railroad Companies by the four railroad labor organizations.¹ The strike stopped all train operations of the Railroad Companies over 2919 miles of track extending from St. Louis and Kansas City, Missouri, on the north to Oklahoma City, Oklahoma, and to Houston and San Antonio, Texas, on the south. The strike was halted on the same day by a temporary restraining order issued by the district court upon the application of the Railroad Companies.

The strike had been precipitated by General Orders 119 and 120, issued October 2, 1958, by the Railroad Companies, effective at 12:01 A.M. on October 19, 1958. Those orders made certain changes in the intradivisional runs of freight trains and the away-from-home terminals for freight service between Wichita Falls, Texas, and Forgan, Oklahoma, a distance of 302 miles. Before the orders became effective, the National Mediation Board advised the Railroad Companies that the employees had invoked the services of that Board, but the Railroad Companies nonetheless placed the orders into effect as scheduled. About a month later, but prior to the hearing of their application for a preliminary injunction, the Railroad Companies undertook to submit the matters in dispute to the National Railroad Adjustment Board, and in part, to the National Mediation Board, and to Committees established by the collective bargaining agreements.

On December 18, 1958, the district court granted a preliminary injunction enjoining the strike pending decisions by said Boards and Committees, and in the same order, directed the Railroad Companies to restore and maintain conditions affected by their General Orders 119 and 120 to the conditions which existed prior to the effective date of such orders or, on the election of the Companies, pay the employees adversely affected by such orders the same amounts they would have paid such employees had the changes made by such orders not been effected.

On December 29, 1958, the Railroad Companies filed notice of appeal from that part of the order requiring them to restore and maintain the status quo pending the injunction. On January 5, 1959, they sought from the district court a stay of that portion of the order. The court then ruled that the injunction had been granted on condition that the Railroad Companies restore and maintain the status quo, and denied the stay requested by them and entered an order so reciting. On January 6, 1959, the Railroad Companies obtained from this Court² a stay of that portion of the order dated December 18, 1958, requiring them to restore the status quo. On January 13, 1959, the Railroad Companies attempted to appeal from the district court's order of January 5, 1959.³ On January 15, 1959, the defendant employees and labor organizations appealed from that part of the order of December 18, 1958, granting a preliminary injunction against them. The 302-mile line over which this controversy arose constitutes a separate seniority district for the engineers, firemen, conductors, and brakemen.

Prior to October 19, 1958, way freight crews on this line were assigned as follows:

Two crews between North Yard (Wichita Falls, Texas) and Welon (Altus, Oklahoma), a distance of 75.9 miles, daily except Sunday, with North Yard the home terminal for both crews, and with Sunday layover at North Yard for one crew and at Welon for the other crew;

One crew from Welon (Altus, Oklahoma) to Elk City, Oklahoma, and return, a distance of 58.3 miles in each direction, daily except Saturday, with Welon the home terminal and with Saturday layover at Welon;

One crew from Elk City, Oklahoma, to Guest (Woodward, Oklahoma), a distance of 84.8 miles, on Mondays, Wednesdays and Fridays, and from Guest to Elk City on Tuesdays, Thursdays and Saturdays, with Elk City the home terminal and with Sunday layover at Elk City; and

One crew from Guest (Woodward, Oklahoma) to Forgan, Oklahoma, a distance of 83.2 miles, on Mondays, Wednesdays and Fridays, and from Forgan to Guest on Tuesdays, Thursdays and Saturdays, with Guest the home terminal and with Sunday layover at Guest.

Such way freight assignments, or similar way freight assignments between North Yard (Wichita Falls, Texas) and Forgan, Oklahoma, have been in existence for more than twenty-five years.

Effective at 12:01 A.M. on October 19, 1958, the Railroad Companies rearranged assigned way freight service between North Yard (Wichita Falls, Texas) and Forgan, Oklahoma, as follows:

Assigned two way freight crews to operate between North Yard (Wichita Falls, Texas) and Elk City, Oklahoma, a distance of 134.2 miles, daily except Sunday, with North Yard the home terminal of both crews, and with Sunday layover at North Yard for one crew and at Elk City for the other; and

Assigned one way freight crew to operate from Elk City, Oklahoma to Forgan, Oklahoma a distance of 168 miles, on Mondays, Wednesdays and Fridays, and from Forgan to Elk City on Tuesdays, Thursdays and Saturdays, with Elk City the home terminal and with Sunday layover at Elk City.

This arrangement of way freight service was made in accordance with General Order No. 119.

Prior to October 19, 1958, North Yard (Wichita Falls, Texas) was the home terminal and Altus, Oklahoma, and Forgan, Oklahoma, were the bulletined away-from-home terminals for unassigned crews in through freight service between North Yard (Wichita Falls, Texas) and Forgan, Oklahoma. Effective at 12:01 A.M. on October 19, 1958, the Railroad Companies abolished Altus, Oklahoma, and Woodward, Oklahoma, as away-from-home terminals for unassigned crews in through freight service, established Elk City, Oklahoma, as an away-from-home terminal for such crews, leaving North Yard (Wichita Falls, Texas) as the home terminal and Forgan, Oklahoma, as an away-from-home terminal for such crews. This change in away-from-home terminals was made in accordance with General Order No. 120.

In response to the district court's question as to "the number of men that were put out of employment by the change," the counsel for the Railroad Companies replied, "There were ten."

While not so strongly urged,⁴ the attacks of the defendants, cross-appellants, on the jurisdiction of the district court to grant the preliminary injunction are matters which cannot be waived and which we should consider at the outset. Indeed, we find the jurisdictional questions practically determinative of the appeal as well as of the cross-appeal.

No testimony of witnesses was heard in open court before the preliminary injunction was issued, nor did the district court make any findings of fact. Absent such testimony and findings, the defendants and cross-appellants insist that Section 7 of the Norris-LaGuardia Act, 29 U.S.C.A. § 107, deprived the district court of jurisdiction. The pertinent provisions of that section are quoted in the margin.⁵

The material facts were, however, admitted; that is, the strike, the matters in controversy (though not their legal effect), and...