Chicago & N.W. Ry. Co. v. La Follette

• Decision Date: 01 June 1965
• Citation: Chicago & N.W. Ry. Co. v. La Follette, 135 N.W.2d 269, 27 Wis.2d 505 (Wis. 1965)
• Parties: , 59 L.R.R.M. (BNA) 2709 CHICAGO AND NORTH WESTERN RAILWAY CO. et al., Respondents, v. Bronson C. LA FOLLETTE, individually and as Attorney General of Wisconsin, et al., Appellants, Michael B. Torphy, Jr., individually and as Dist. Atty. of Dane County, Wis., Defendant.
• Court: Wisconsin Supreme Court

Page 269

135 N.W.2d 269

27 Wis.2d 505, 59 L.R.R.M. (BNA) 2709

CHICAGO AND NORTH WESTERN RAILWAY CO. et al., Respondents, v. Bronson C. LA FOLLETTE, individually and as Attorney General of Wisconsin, et al., Appellants Michael B. Torphy, Jr., individually and as Dist. Atty. of Dane County, Wis., Defendant.

Supreme Court of Wisconsin.

June 1, 1965.

Bronson C. La Follette, Atty. Gen., and Beatrice Lampert, Asst. Atty. Gen., Madison, for appellants.

La Follette, Sinykin, Doyle & Anderson by James E. Doyle, Madison, for respondents.

Ralph M. Hoyt, Milwaukee, Harold C. Heiss, Cleveland, Ohio, of counsel, for Brotherhood of Locomotive Firemen and Enginemen, amicus curiae.

Wheeler, Van Sickle, Day & Goodman, Madison, for Brotherhood of Railroad Trainmen, amicus curiae.

BEILFUSS, Justice.

The genesis of the instant litigation arose when the railroads and the unions exchanged 'notices' pertaining to crews and work rules. Negotiations were had without success. A national strike was imminent. A presidential fact-finding commission was appointed. Public Law 88-108 (77 Stat. 132, 45 U.S.C.A. § 157, Supp.) was enacted. Arbitration was ordered with a binding award to be made in respect to the fireman issue and the crew consist of train and engine crews. The job of fireman was eliminated, for the most part; the employment of individuals was to be terminated gradually. The crew consist issue was remanded for local negotiations. ¹

Two issues are presented. (1) Has Congress pre-empted the subject of full crew regulation? And, (2) does the complaint state facts sufficient to constitute a cause of action?

PRE-EMPTION

The question of federal pre-emption of this particular area of local concern is one of subject matter jurisdiction. Respondents have pleaded Public Law 88-108; they have not pleaded pre-emption. The issue was discussed in the briefs. Suffice-it-to-say, the issue is properly raised at any time, or on appeal for the first time. Moreland Corp. v. Retail Store Employees Union (1962), 16 Wis.2d 499, 114 N.W.2d 876.

However, before pre-emption will be found to exist, that intention of Congress must be clearly manifested. Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Commission (1924), 183 Wis. 47, 197 N.W. 352; Florida Lime & Avocado Growers, Inc. v. Paul (1963), 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248, reh. denied 374 U.S. 858, 83 S.Ct. 1861, 10 L.Ed.2d 1082; International Union, UAWA, AFL, Local 232 v. Wisconsin Employment Relations Board (1949), 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651, reh. denied 336 U.S. 970, 69 S.Ct. 935, 93 L.Ed. 1121; Missouri Pac. Ry. Co. v. Norwood (1931), 282 U.S. 249, 51 S.Ct. 458, 75 L.Ed. 1010; Chicago, Rock Island & Pac. R. Co. v. Hardin, supra; The New York Central R. Co. v. Lefkowitz, supra. The ultimate question is: Does the application of state law frustrate the purpose of the federal legislation? Local 20, Teamsters Union v. Morton (1964), 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280. See also Local 24, International Broth. of Teamsters etc. v. Oliver (1959), 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312.

The clear manifestation of a purpose to pre-empt state legislation should be considered in light of the rule that the states have considerable latitude respecting safety regulation of interstate commerce in the exercise of their police powers. Thus, it was said in Terminal R. Association of St. Louis v. Brotherhood of Railroad Trainmen (1943), 318 U.S. 1, 8, 63 S.Ct. 420, 424, 87 L.Ed. 571:

'As to both classes of runs, the effect of the order is in some measure to retard and increase the cost of movements in interstate commerce. This is not to say however, that the order is necessarily invalid. In the absence of controlling federal legislation this Court has sustained a wide variety of state regulations of railroad trains moving in interstate commerce having such effect.' ²

The pertinent Wisconsin and federal statutes are set forth as follows:

'192.25(2) Freight Crew. No railroad operating more than 10 miles of route shall run outside of yard limits any freight train propelled by any form of energy of 3 cars or more with less than a full train crew consisting of an engineer, a fireman, a conductor and 2 brakemen. * * *

'(4) Engine Crew. It * * * is unlawful for any railroad company in the state of Wisconsin operating more than 10 miles of route to move over its main line outside of yard limits an engine propelled by any form of energy with no cars attached with less than a full crew consisting of one engineer, one fireman and one pilot; said pilot to have had not less than 3 years' experience in train or engine service and who shall have passed standard examination on book of rules and has qualified as a conductor or an engineer; except that such pilot need not be used if one is not available when it is necessary to run engine to the relief of an injured person or to raise a blockade of traffic.

'(4a) Extension Full Train Crew Requirement. It shall be unlawful for any railroad company in the state of Wisconsin to operate any locomotive, locomotive crane, pile driver, steam shovel, cut widener, gas-electric motor car, or gas-electric switch engine or any other similar self-propelled vehicle propelled by any form of energy whether properly denominated an engine or locomotive, when used on its tracks for the purpose of switching cars, with less than a full train crew consisting of one negineer, one fireman, one conductor and two helpers. Said train crew shall be selected from seniority lists of train and locomotive engine employes on the division of the railroad on which the crew is to be worked.'

Public Law 88-108, 77 Stat. 132, 45 U.S.C.A. § 157 (Supp.) provides as follows:

'Sec. 1. [Settlement of disputes]. That no carrier which served the notices of November 2, 1959, and no labor organization which received such notices or served the labor organization notices of September 7, 1960, shall make any change except by agreement, or pursuant to an arbitration award as hereinafter provided, in rates of pay, rules, or working conditions encompassed by any of such notices, or engage in any strike or lockout over any dispute arising from any of such notices. Any action heretofore taken which would be prohibited by the foregoing sentence shall be forthwith rescinded and the status existing immediately prior to such action restored. * * *

'Sec. 3. [Decision of board]. * * * The arbitration board shall make a decision, pursuant to the procedures hereinafter set forth, as to what disposition shall be made of those portions of the carriers' notices of November 2, 1959, identified as 'Use of Firemen (Helpers) on Other Than Steam Power' and 'Consist of Road and Yard Crews' and that portion of the organizations' notices of September 7, 1960, identified as 'Minimum Safe Crew Consist' and implementing proposals pertaining thereto. The arbitration board shall incorporate in such decision any matters on which it finds the parties were in agreement, shall resolve the matters on which the parties were not in agreement, and shall, in making its award, give due consideration to those matters on which the parties were in tentative agreement. Such award shall be binding on both the carrier and organization parties to the dispute and shall constitute a complete and final disposition of the aforesaid issues covered by the decision of the board of arbitration.

'Sec. 4. [Award]. * * * The award shall continue in force for such period as the arbitration board shall determine in its award, but not to exceed two years from the date the award takes effect, unless the parties agree otherwise. * * *

'Sec. 6. [Collective bargaining for issues not arbitrated]. The parties to the disputes arising from the aforesaid notices shall immediately resume collective bargaining with respect to all issues raised in the notices of November 2, 1959, and September, 1960, not to be disposed of by arbitration under section 3 of this joint resolution and shall exert every reasonable effort to resolve such issues by agreement. The Secretary of Labor and the National Mediation Board are hereby directed to give all reasonable assistance to the parties and to engage in mediatory action directed toward promoting such agreement.

'Sec. 7. [Considerations affecting award; enforcement]. (a) In making any award under this joint resolution the arbitration board established under section 2 shall give due consideration to the effect of the proposed award upon adequate and safe transportation service to the public and upon the interests of the carrier and employees affected, giving due consideration to the narrowing of the areas of disagreement which has been accomplished in bargaining and mediation. * * *

'Sec. 8. [Expiration date]. This joint resolution shall expire one hundred and eighty days after the date of its enactment, [Aug. 28, 1963] except that it shall remain in effect with respect to the last sentence of section 4 for the period prescribed in that sentence.'

For the reasons which follow, we conclude the state full crew laws have not been pre-empted.

The following appears in 109 Cong.Rec. 16122 (Aug. 28, 1963):

'MR. HARRIS. This issue was raised in the course of the hearings before the committee. Questions were asked of the various people representing management and the labor industry and witnesses representing the labor brotherhoods, the employees' representatives, and the Secretary of Labor. It was made rather clear in the course of the hearings that it would in no way affect the provisions of State laws. The committee in executive session discussed the question and concluded that it was not the intent of the committee in any way to affect State laws. On page 14 of the committee report we included, in order that this history might be made, this language:

'The committee does not intend that any award made under this section may supersede or modify any State law relating to the manning of trains.

...