BROTHERHOOD OF LOC. FIRE. & ENG. v. National Mediation Bd.
| Decision Date | 29 April 1969 |
| Docket Number | No. 22050,22185.,22050 |
| Parties | BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellant, v. NATIONAL MEDIATION BOARD et al., Appellees. NATIONAL MEDIATION BOARD, Appellant, v. BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Joseph L. Rauh, Jr., Washington, D. C., with whom Messrs. John Silard, Washington, D. C., Daniel H. Pollitt, Chapel Hill, N. C., Isaac N. Groner, Washington, D. C., Alex Elson, Willard J. Lassers and Aaron S. Wolff, Chicago, Ill., were on the brief, for appellant in No. 22,050.
Mr. Walter H. Fleischer, Atty., Department of Justice, with whom Asst. Atty. Gen., Edwin L. Weisl, Jr. and Mr. John C. Eldridge, Atty., Department of Justice, were on the brief, for the National Mediation Board, appellant in No. 22,185 and appellee in No. 22,050.
Mr. Francis M. Shea, Washington, D. C., with whom Messrs. Richard T. Conway, David W. Miller, Washington, D. C., and James A. Wilcox, Omaha, Neb., were on the brief, for railroad appellees in No. 22,050.
Mr. Barclay D. McMillen, Washington, D. C., with whom Mr. Harold A. Ross, Cincinnati, Ohio, was on the brief, for appellee Brotherhood of Locomotive Engineers.
Before BURGER, WRIGHT and TAMM, Circuit Judges.
The judgment of the District Court under review here relieves certain railroad companies of any duty to bargain over a proposal submitted to them by the Brotherhood of Locomotive Firemen and Enginemen (the Firemen), and enjoins the Firemen from striking to force such bargaining. The District Court has viewed the Firemen's proposal as creating a representational dispute with the Brotherhood of Locomotive Engineers (the Engineers), rather than as a matter for collective bargaining with the railroads, and has ordered the National Mediation Board to decide the dispute under Section 2, Ninth, of the Railway Labor Act.1 We reverse.
For many years, the railroad industry has recruited virtually all locomotive engineers from the ranks of locomotive firemen. As firemen have moved up the seniority ladder within their craft, they have learned the skills of an engineer while working in the locomotive cab. They have taken examinations administered by the carriers, and those who passed the examinations have, in the order of their seniority as firemen, gained status as engineers. Persons newly qualified as engineers have not normally been immediately employed as such; rather they have continued to work as firemen until the demand for active engineers has reached far enough down the seniority list of that craft to encompass them. With seasonal fluctuations in the demand for engineers, the employees at the bottom of the engineer seniority list "ebb and flow" back and forth between serving as engineers and as firemen.
Both the Engineers' and the Firemen's unions have included in their collective agreements with the carriers provisions regulating the progress of employees from fireman to engineer, including the process of "ebb and flow" for those employees near the bottom of the engineer list and near the top of the fireman list. Most engineers have a fireman's seniority number as well as an engineer's number, and many locomotive enginemen are members of both the Firemen's and the Engineers' unions.
Recent events have made it no longer possible for all new engineers to be supplied from the ranks of active firemen. In 1959 the carriers proposed to eliminate the position of fireman for freight and yard service, a proposal which the Firemen resisted. After winding its way through the mediatory procedures of the Railway Labor Act for some years without resolution, the dispute threatened to erupt into a strike in 1963. At that point Congress determined to settle the dispute by compulsory arbitration; Board 282 was established, with power to bind the parties to its resolution of the disputed issues for a two-year period. Board 282's award permitted the carriers to eliminate up to 90 per cent of the firemen's jobs in freight and yard service. While the award was in effect (between early 1964 and early 1966), the carriers managed to eliminate about 18,000 firemen's jobs, far more than had been expected.2
Such a large scale elimination of firemen made it clear that further sources of new engineers would have to be found for the future. In early 1965 the Firemen's union, operating from the premise that the craft's traditional role as supplier of engineers gave it a bargainable interest in future engineer training programs, proposed apprenticeship plans to the Louisville & Nashville and Southern Pacific Railroads under Section 6 of the Railway Labor Act.3 In November 1965 the Firemen proposed similar plans under Section 6 to over a hundred other rail carriers.
Service of these notices provoked objection from the Engineers' union. The Engineers claimed to be the exclusive representative of any future apprentice engineers, and asserted exclusive bargaining jurisdiction over all programs for training engineers. They warned the carriers not to bargain with the Firemen over the proposed plan. When the carriers did not reply to the Firemen's Section 6 notice, the Firemen sought the mediatory services of the National Mediation Board under Section 5 of the Act,4 and the Board docketed the request and scheduled mediation between the Firemen and the L & N and Southern Pacific companies.
In the meantime, the L & N negotiated an agreement with the Engineers for an apprenticeship progam, the details of the program to be left to management discretion. The Engineers were recognized by the railroad as the bargaining representative for the new class of apprentices. Since the bringing of this suit in the District Court, the Great Northern Railway Company has entered into a similar agreement with the Engineers and very recently has set in motion its own apprentice program.
The Firemen objected to the L & N entering into an agreement with the Engineers before it bargained with the Firemen concerning their similar proposal. They brought suit in the Eastern District of Kentucky to enjoin the implementation of the Engineers — L & N agreement. The court dismissed the suit for want of jurisdiction. That judgment was affirmed by the Sixth Circuit on the ground that the case involved a jurisdictional dispute which, under applicable Supreme Court precedents, was for the National Mediation Board to decide (if indeed it could be decided in any official forum).5
The Board declined the carriers' request for mediation, stating that 7
Section 2, Ninth, of the Railway Labor Act, the key statutory provision involved in this case, places upon the National Mediation Board the duty to investigate "any dispute * * * among a carrier's employees as to who are the representatives of such employees" and to certify to the parties and to the carrier the name of the true representative. The Supreme Court has held that, while the Board's decisions on the merits under this section are unreviewable by the courts,8 its statutory duty to "investigate" the disputes in question can be judicially enforced.9
After the Board had rejected the carriers' request for mediation, the Engineers requested a Board decision under Section 2, Ninth. As the Engineers viewed the situation, a dispute existed between them and the Firemen over who represented the apprentice engineers employed by the L & N. And in the Engineers' view, this dispute fell within the purview of Section 2, Ninth.
The Board, however, found that no Section 2, Ninth, dispute actually existed, so that it lacked jurisdiction to certify a representative.10 A this point, the Board's posture was as follows: (1) It had declined to advise the carriers which of the unions represented the apprentices under the guise of Section 5 mediation. (2) It had declined the Engineers' request to settle the same question under Section 2, Ninth. (3) It had granted the Firemen's request to mediate the dispute created by the carriers' refusal to bargain over the Firemens' proposed apprenticeship program, and had scheduled mediation between the Firemen and the carriers.
The Engineers, joined in part by the carriers, then brought the present suit. They sought to compel the Board to settle the jurisdictional dispute under Section 2, Ninth, to prevent the carriers and the Firemen from bargaining over the Firemen's apprenticeship proposal, and to enjoin the Firemen from striking to compel such bargaining. Pleadings and affidavits were received by the District Court, and on cross-motions for summary judgment the court found for the Engineers and granted the relief sought.11
In our view, the District Court's orders rest upon two erroneous conclusions of law. It concluded first that:
The view that the Firemen can bargain...
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