Employees Protective Ass'n v. Norfolk & W. Ry. Co.

Decision Date24 February 1975
Docket NumberNo. 74--1577,74--1577
Parties88 L.R.R.M. (BNA) 2938, 76 Lab.Cas. P 10,687 EMPLOYEES PROTECTIVE ASSOCIATION et al., Appellants, v. NORFOLK AND WESTERN RAILWAY COMPANY et al., Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

William G. Anderson, Roanoke, Va., and George V. Gardner, Washington, D.C. (Gardner & Armbrister, Washington, D.C., on brief), for appellants.

Harold A. Ross, Cleveland, Ohio (Ross & Kraushaar Co., Cleveland, Ohio, and G. Marshall Mundy, Roanoke, Va., on brief), for appellee Brotherhood of Locomotive Engineers.

Martin M. Lucente, Chicago, Ill. (William B. Poff, Bayard E. Harris, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., and Sidley & Austin, Chicago, Ill., on brief), for appellee Norfolk and Western Railway Co.

Before BOREMAN, Senior Circuit Judge, WIDENER, Circuit Judge, and THOMSEN, Senior District Judge.

THOMSEN, Senior District Judge:

Appellants (plaintiffs), seventy-two locomotive engineers employed by the Norfolk and Western Railway Company (N&W) and an ad hoc unincorporated association, brought suit in the district court against N&W, the Brotherhood of Locomotive Engineers (BLE) 1 and Special Board of Adjustment No. 813. Plaintiffs challenged an award of Board No. 813 on the ground that it had acted outside the scope of its jurisdiction. They claimed that federal jurisdiction for such limited review of the award exists under the Railway Labor Act, 45 U.S.C. § 151 et seq., particularly § 153 First (q) and Second, and also under 28 U.S.C. § 1337, 2 as an action arising under a law regulating commerce, namely, the Railway Labor Act, or the Interstate Commerce Act, 49 U.S.C. § 5, or both. The district court concluded that it had no jurisdiction to review the award and dismissed the suit.


The dispute stems from the merger of the Virginian Railway Company (Virginian) into N&W. Application for approval of that merger was filed with the Interstate Commerce Commission (ICC) in April 1959 and was granted in October 1959. In anticipation of such approval the two carriers, in June 1959, entered into an Agreement for Protection of Employees with the Railway Labor Executives Association (RLEA), acting on behalf of its constituent organizations, which included BLE. The pertinent provision of that agreement is set out in the margin. 3

In 1962 N&W sought ICC approval of a second merger, with the New York, Chicago and St. Louis Railroad (Nickel Plate). Since the 1959 Agreement would not protect N&W employees (including former Virginian employees) from consequences attributable to the Nickel Plate merger, RLEA and the two carriers entered into an Agreement for Protection of Employees, which included an arbitration provision, set out in the margin. 4

As a result of the 1962 Agreement N&W employees were subject to two different sets of merger-protective provisions, the applicable protection depending upon whether the adverse employment effect could be traced to the Virginian or the Nickel Plate merger. Therefore, a Memorandum of Understanding was executed, which provided, inter alia, that the arbitration provisions of the 1962 Agreement would be controlling. 5

In September 1972 N&W proposed that the 'road seniority rosters for engineers, firemen, conductors and brakemen on the Norfolk Division districts be merged and dovetailed appropriately according to seniority dates in order to effectuate a completely integrated operation'. BLE opposed that proposal. Meetings were held in September and October 1972, with representatives of all of the operating employees in attendance. BLE negotiated independently with N& W. When they failed to reach an agreement, N&W, on October 17, 1972, served a demand and notice to establish an arbitration committee pursuant to the 1962 Agreement (see n. 4, above), and by letter dated October 26, 1972, called upon the National Mediation Board to appoint a neutral.

BLE contended that the matter was not arbitrable. It requested the National Mediation Board to deny N&W's application for the creation of a board and appointment of a neutral, arguing that the dispute does not involve the mere interpretation and application of a collective bargaining agreement, but 'a question of law, which an arbitrator lacks the power to decide'. N&W responded, challenging BLE's objections. On February 2, 1973, the National Mediation Board created Special Board of Adjustment No. 813 and appointed a neutral member thereto. The Mediation Board noted BLE's objection and in its letter appointing the neutral stated: 'This appointment is made without prejudice to the right of the Organization to argue such threshold issues as it deems appropriate in support of its position . . . Decisions involving disposition of this dispute are within the jurisdiction of the Special Board of Adjustment.'

Board No. 813 convened, held a hearing on the question of its jurisdiction, and issued an interim award in April 1973, in which it concluded, inter alia, that the dispute was subject to final and binding arbitration upon failure of the parties to reach a negotiated settlement, and that the Board had jurisdiction over the dispute submitted to it. However, Board No. 813 also held that meaningful negotiation between the parties had not taken place and that the case should be remanded with directions that the parties exert their best efforts to reach a mutually acceptable agreement. After further negotiations, the parties remained deadlocked on two issues, and the Board was reconvened. After a further hearing, the Board issued its opinion and award, in which it concluded that there should be a consolidation of seniority rosters for engineers for road districts east of Roanoke.

Plaintiffs contended in the district court and before us that the issue of merger of seniority rosters was settled at the time of the 1959 Agreement and was never meant to be the subject of arbitration. The district court did not decide the issue of arbitrability because it concluded that the case should be dismissed for lack of federal jurisdiction.


The history of the arbitration provisions of the Railway Labor Act has been reviewed by the Supreme Court on a number of occasions. See, e.g., Brotherhood of Railroad Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957); International Association of Machinists v. Central Airlines, Inc., 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67 (1963); Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972).

In 1926 Congress called upon carriers or groups of carriers and their employees to reach agreements for the establishment of boards of adjustment to resolve so-called minor disputes. 6 The 1926 Act provided no sanctions for failure to reach such agreements and in many instances one or more of the parties refused. Moreover, the boards were to be composed of an equal number of employee and employer representatives and it was not uncommon to find boards, once established, unable to reach a majority decision. Many minor disputes went unresolved. Chicago R. & I.R., 353 U.S. at 35--36, 77 S.Ct. 635; Central Airlines, 372 U.S. at 688, 83 S.Ct. 956.

Therefore, in 1934, '(i)n the interest of industrial peace and of uninterrupted transportation service', 7 Congress amended the Railway Labor Act to create the National Railroad Adjustment Board, the divisions of which were to hear disputes referred to it by either party and 'growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.' 8 See 45 U.S.C. § 153 First (i). The provisions of the 1934 Act dealing with the resolution of minor disputes by the National Railroad Adjustment Board 'were to be considered as compulsory arbitration in this limited field'. Chicago R. & I.R., 353 U.S. at 39, 77 S.Ct. at 640. Nevertheless, in § 3 Second of the 1934 Act, 45 U.S.C. § 153 Second, Congress authorized carriers or groups of carriers and their employees to agree to the establishment of system, group or regional boards of adjustment similar to those in the 1926 Act. In 1957 the Supreme Court observed that such boards 'can have jurisdiction co-extensive with that of the National Board'. 353 U.S. at 36, n. 13, 77 S.Ct. at 638. The 1934 Act also established the National Mediation Board as an independent agency, with various powers and duties, set out in 48 Stat. 1193, 1195, now codified with subsequent amendments as 45 U.S.C. §§ 154 and 155. Following adoption of the 1934 amendments the parties to railroad disputes made only limited use of the voluntary adjustment boards and the National Railroad Adjustment Board fell far behind in its work. 9

Therefore, in 1966 Congress amended § 3 of the Act by adding a paragraph which is now the second paragraph in 45 U.S.C. § 153 Second. That amendment authorizes the establishment of special boards of adjustment, upon the written request of either the representatives of the carrier involved or of its employees, to resolve disputes otherwise referable to the National Railroad Adjustment Board and disputes pending before that Board for twelve months. Boards created pursuant to that provision of the 1966 amendment are generally designated 'public law boards', to distinguish them from boards created pursuant to private agreement, authorized by the first paragraph of 45 U.S.C. § 153 Second, which are generally designated 'special boards of adjustment'. 10 The provision for the latter type of special boards was retained in the Act as amended in 1966. 11 Neutral members of 'public law boards', like neutral members of 'special boards of adjustment', are appointed by the National Mediation Board. 12


The provisions for enforcement and review of awards of the National Railroad Adjustment Board are set out in § 3 First (p) and (q) of the 1966 Act, 45 U.S.C. § 153 First (p) and (q). 13

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