BROTHERHOOD OF R. AND S. CL., ETC. v. Norfolk So. Ry. Co.

• Decision Date: 24 July 1944
• Docket Number: No. 5248.,5248.
• Citation: 143 F.2d 1015
• Parties: BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES v. NORFOLK SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

143 F.2d 1015 (1944)

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES v. NORFOLK SOUTHERN RY. CO.

No. 5248.

Circuit Court of Appeals, Fourth Circuit.

July 24, 1944.

Willard H. McEwen, of Toledo, Ohio (I. M. Bailey, of Raleigh, N. C., Frank L. Mulholland and Clarence M. Mulholland, both of Toledo, Ohio, Bailey, Holding, Lassiter & Wyatt, of Raleigh, N. C., and Mulholland, Robie & McEwen, of Toledo, Ohio, on the brief), for appellant.

Robert N. Simms and Robert N. Simms, Jr., both of Raleigh, N. C., for appellee.

Before PARKER, DOBIE, and NORTHCOTT, Circuit Judges.

DOBIE, Circuit Judge.

This is an appeal from a judgment of the District Court of the United States for the Eastern District of North Carolina.

The facts involved are largely undisputed. A controversy arose between the Norfolk Southern Railway Company, the employer (hereinafter referred to as the Railroad), and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, representative of the employees (hereinafter called the Brotherhood), as to the employment conditions, under an existing agreement, of certain employees of the Railroad represented by the Brotherhood. The Brotherhood contended that the existing agreement should be modified to provide payment for overtime work in excess of eight hours per day at the rate of time and one-half for such overtime. The railroad was willing to grant such a rate for time spent in excess of ten hours per day, but not for the ninth and tenth hours. Unable to adjust their differences in direct negotiations, or through mediation on the part of the National Mediation Board, the parties agreed to submit the dispute to arbitration.

The Railway Labor Act, 45 U.S.C.A. § 158 (hereinafter called the Act), provides that an agreement to arbitrate under the Act shall be in writing, and that, among other things, it:

"(g) Shall stipulate that the signatures of a majority of said board of arbitration affixed to their award shall be competent to constitute a valid and binding award; * * *"

"(i) Shall fix a period from the beginning of the hearings within which the said board shall make and file its award: Provided, That the parties may agree at any time upon an extension of this period; * * *"

The arbitration agreement was executed on October 13, 1942, and in conformity with the provisions of the Act, provided in part as follows:

"Ninth: The Board shall make and file its award prior to the expiration of the period of fifteen (15) days from the date on which the Board begins its hearings, but the parties hereto may agree, at any time prior to the making of such award, upon an extension of such period (whether or not previously extended)."

A Board of Arbitration (hereinafter called the Board), consisting of L. W. Reigel (chosen by the Brotherhood), J. C. B. Ehringhaus (chosen by the Railroad), and Matthew P. Andrews (appointed by the National Mediation Board), was duly selected, and as so constituted, convened at Raleigh, North Carolina, on December 28, 1942, with Andrews sitting as chairman.

After hearings held on December 28 and 29, 1942, an informal vote was taken. By the majority votes of Reigel and Andrews, the employees were to be granted the time and one-half rate for the ninth and tenth hours. The award was not reduced to writing at that time, so it was agreed that Andrews and Reigel would prepare a written statement of the award, and that Ehringhaus would prepare a dissent. The Board then adjourned and never reassembled.

On January 4, 1943, Andrews sent a draft of a written award, prepared by him and bearing his signature only, to Ehringhaus. This draft embodied the majority decision of the Board as to overtime pay and as to its effective date. It contained, however, as its fifth paragraph, the following provision:

"As the representative of the public, whose interests transcend those of either party, the chairman recommends that should the application of this award place such a burden upon the carrier as to cause curtailment of the offices it performs for the public which it serves the award should be abrogated by mutual agreement."

Upon receipt of this document, Ehringhaus prepared and filed his dissenting opinion. Reigel, unable to concur in paragraph 5 of the Andrews draft, also prepared a dissent.

Subsequently, after further correspondence between the arbitrators, paragraph 5 was deleted from the Andrews draft. As so altered, the award was signed by Andrews and Reigel (there was some controversy as to the proper signing of this draft by Reigel, but as the question was not before the District Court we shall not consider it here), and on March 29, 1943, the award was filed with the Clerk of the United States District Court by the National Mediation Board.

On February 23, 1943, prior to the filing of the Andrews draft, the Railroad, acting through its General Superintendent, filed in the office of the Clerk of the same Court its petition to impeach and vacate any attempted award of the Board. The matter was heard by the District Court on August 2, 1943. Judgment, impeaching the award, was entered for the Railroad and the Brotherhood has duly appealed.

At the outset of any consideration of this controversy, we are faced with the general purposes of the Act itself. One purpose that we deem important here is thus set out, 45 U.S.C.A. § 151a(4):

"(4) To provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions." (Italics ours.)

Counsel for the Brotherhood contend that orderliness is more important here than promptness. We fail to appreciate how delay will promote orderliness in such a case, and we see little merit in this contention.

It is not the province of the courts to lay undue emphasis on a particular word in a statute when Congress, which enacted the legislation, failed to do so. Had the word "prompt" been intended to hold no significance, it would have been an easy matter for Congress to have deleted it entirely.

We must assume that Congress legislated here in the light of the common law. In several instances, Congress made express departures from rules of arbitration established by the common law. Arbitration deprives the judiciary of jurisdiction over the particular controversy and the courts have long ruled that there must be strict adherence to the essential terms of the agreement to arbitrate.

Time is of the essence in arbitration at common law, and in the absence of express words by Congress, we cannot assume an intent to overrule this well established principle. Moreover, the statute is clear in its requirement that a time must be set out in the arbitration agreement, within which the award must be made and filed. Further, it is highly persuasive that Congress intended that the time so agreed upon should be controlling, else no provision for an extension of the time need have been included. The provision requiring a time limit to be set forth in the written agreement of the parties would seem to be mandatory. Atchison T. & S. F. Ry. v. Brotherhood, etc., 7 Cir., 26 F.2d 413, 419. It would hardly be proper to presume that while it was mandatory that the limitation in time appear in the agreement, it was directory merely in its requirement that the award be so made and filed.

Ordinarily an award need not be returned to court, Fuerst v. Eichberger, 224 Ala. 31, 138 So. 409, but if...