ORDER OF RAILWAY COND. & BRAKE. v. Switchmen's Union

• Decision Date: 10 August 1959
• Docket Number: No. 17588.,17588.
• Citation: 269 F.2d 726
• Parties: ORDER OF RAILWAY CONDUCTORS AND BRAKEMEN and Brotherhood of Railroad Trainmen, Appellants, v. SWITCHMEN'S UNION OF NORTH AMERICA et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

269 F.2d 726 (1959)

ORDER OF RAILWAY CONDUCTORS AND BRAKEMEN and Brotherhood of Railroad Trainmen, Appellants, v. SWITCHMEN'S UNION OF NORTH AMERICA et al., Appellees.

No. 17588.

United States Court of Appeals Fifth Circuit.

June 30, 1959.

Rehearing Denied August 10, 1959.

COPYRIGHT MATERIAL OMITTED

Benning M. Grice, Macon, Ga., V. C. Shuttleworth, Harry Wilmarth, Cedar Rapids, Iowa, Wayland K. Sullivan, Cleveland, Ohio, for appellants.

Julian C. Sipple, Ralph L. Crawford, John R. Calhoun, John B. Miller, Savannah, Ga., for appellee, Central of Georgia Ry. Co.

Before JONES, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The case arises under the Railway Labor Act, 45 U.S.C.A. §§ 151-163.¹ Specifically, the question is whether a contract between the Railroad and SUNA for yard work at certain Georgia stations is invalid because the Railroad failed to give a Section 6 notice, 45 U.S.C.A. § 156, to BRT and ORCB.²

In a consolidated proceeding the District Court held the SUNA contract valid. BRT and ORCB appeal, contending that the agreement is invalid and its enforcement should have been enjoined. Admittedly no Section 6 notice³ was given by the Railroad to BRT or ORCB, and, if required, the contract is invalid,⁴ leaving the prior agreements (or practices) in effect. All are in agreement, with which we concur, that the case poses a genuine issue as to validity, not interpretation, so that on these and other authorities, it is one for judicial consideration.⁵

I. The Bargaining Representative

The case comes into being primarily because there was a change in 1956 in the bargaining representative for yard work (switching and foremen). Prior to that time BRT was the bargaining agent. In 1956, the Mediation Board conducted an election, Section 2-Ninth, 45 U.S.C.A. § 152-Ninth,⁶ as a result of which SUNA was certified as having "been duly designated and authorized to represent, for the purposes of the Railway Labor Act, the craft or class of Yardmen (Foremen, Switchmen), employees of the Central of Georgia Railway Company, its successors and assigns."⁷

II. The Work in Dispute

The 1958 SUNA contract at issue here involves yard work at Rome, Cedartown, Griffin and Athens, Georgia. Prior to the 1956 certification of SUNA, and during the BRT representation, the agreements with the Railroad gave substantial rights to roadmen (conductors and brakemen) to do yard work at these locations.⁸ In brief, under these agreements or practices roadmen perform yard work in accordance with their relative standing on the road seniority rosters. The senior man on the road list has priority over the junior man to do the yard work, but he does not acquire any yard seniority in doing it.

III. The New Bargaining Representative Seeks Change

After SUNA's 1956 certification it sought to change the contracts as to these locations. In the fall of 1956 the Railroad gave, but later withdrew, a Section 6 (§ 156) notice to BRT and ORCB. Subsequently when conferences seemed to be unavailing, SUNA in 1958 gave the Railroad notice of a strike which precipitated the mediation machinery of the Act. As a result of this mediation, conducted by the Mediation Board with SUNA and Railroad only,⁹ the 1958 SUNA agreement attacked here, was reached.

The 1958 agreement gave this yard work to yardmen only. Roadmen (numbering 12 men) then doing yard work were given an election to become yardmen. But if the election was accepted, they had to retire from road work. Appellants' brief describes this as a Hobson's choice. "Thus, those presently in the yard who `elect' to become exclusive yardmen must give up their road seniority and those who `elect' to become exclusive roadmen must surrender their right to work in the yard in accordance with their road seniority standing." As to roadmen not presently doing yard work, full or part time, no right to "elect" to become yardmen was extended. These men, totaling approximately 175 were, however, actually affected since the others (numbering 12 men) exercising their election to do road work and abandon yard work, would "roll," "pull" or "bump" roadmen engaged in road work junior to them on the road seniority.

IV. SUNA's Exclusive Right to Bargain

BRT and ORCB do not contend that the prior agreements (or practices) were perpetual. On the contrary, they recognize, as the written agreements expressly stated, and as the Act implies in any case, 45 U.S.C.A. § 152-Eighth, that each agreement would remain in effect subject to the provisions of the Railway Labor Act. SUNA, succeeding as bargaining representative, succeeded BRT in the administration of these contracts. As successor bargaining agent, it could change them, but until changed, they would remain in effect. And, decisive here, SUNA and the Railroad knew that change was forbidden¹⁰ unless Section 6 was satisfied.

In assaying the attack on the contract, we think it vital to emphasize the right to bargain as it bears on the necessity for Section 6 (§ 156) notice. After certification the only "representative" with whom the Railroad may bargain and make a contract is SUNA. Brotherhood of Railroad Trainmen v. Smith, 6 Cir., 1958, 251 F.2d 282, certiorari denied 356 U.S. 937, 78 S.Ct. 778, 2 L.Ed.2d 812; Switchmen's Union of North America v. Southern Pacific Co., 9 Cir., 1958, 253 F.2d 81. Once certified, it is the exclusive bargaining agent¹¹ for members of that class or craft. The effect of Section 2-Ninth, 45 U.S.C.A. § 152-Ninth, note 6, supra, is that it has "commanded the carrier to treat with the representative so certified" and "* * * requires the employer to meet and confer with the authorized representative of its employees" and secures "settlement of labor disputes * * * by preventing * * * bargaining with any who do not represent them * * *" the result being that the Act "* * * imposes the affirmative duty to treat only with the true representative, and hence the negative duty to treat with no other." Virginian Ry. Co. v. System Federation No. 40 AFL, 1937, 300 U.S. 515, 546, 548, 57 S.Ct. 592, 599, 81 L.Ed. 789, supra.

Of course, the craft or class represented is to be determined on functional and operational lines, not by the normal activity of the members of a labor union some of whose members may do some or all of the work in question. This is graphically illustrated by the cases arising under the 1954 Union Shop Amendments, Section 2-Eleventh, 45 U.S. C.A. § 152-Eleventh, as to which both the Ninth and Sixth Circuits have held that a union whose members perform work of another craft for which another union has been certificated, cannot legally negotiate with the railroad for its own members. And any such contract, if made, is illegal and unenforceable. Brotherhood of Railroad Trainmen v. Smith, 6 Cir., 1958, 251 F.2d 282, certiorari denied 356 U.S. 937, 78 S.Ct. 778, 2 L.Ed.2d 812 (trainmen, members of BRT, doing conductor work and having seniority of a conductor); Switchmen's Union of North America v. Southern Pacific Co., 9 Cir., 1958, 253 F.2d 81 (trainmen, members of BRT, doing yard work may be affected only by contract with SUNA, the yardmen's certified bargaining agent).

Consequently, while under the pre-1956 practice, the right of given individuals to perform yard work may depend on road seniority, the work in question is that of yard work, i. e., that done by switchmen and foremen generally. As to that work, SUNA alone may bargain. When and as it bargains, it may do nothing which alters or disturbs road work — activities wholly within the bargaining prerogative of the other unions — but it may affect those who, while generally roadmen, perform yard work, full or part time. The impact though, is not by reason of road work, or road status, road seniority, or membership in a road union. It is simply that in order to perform yard work — a matter within SUNA's exclusive prerogative — the persons must meet the qualifications prescribed in the yard contract. What that contract shall be, what its terms shall be, is a matter wholly between the carrier and the certified bargaining agent for that type of work. Others may claim to be entitled to notice, but they cannot bargain, and they do not have the right to set in train the successive statutory machinery of mediation.

The inevitable necessity for this is inescapably demonstrated by the context of this record. If, because its members have previously been permitted to do yard work, BRT may now confer, negotiate and bargain with the carrier to assure continuation of such work or any other supposed fair share of it, the ORCB may do likewise. Since there can be no real bargaining if it is not intended that a contract result, a right in BRT and ORCB to bargain would necessarily require that each could make a contract specifying for its members how much and what part of the yard work they would perform, and at what pay and on what terms. SUNA could, of course, do likewise. By the sheer fact that 100% is the maximum that can be made of a whole, to whatever extent BRT's contract, and that of ORCB, covered a percentage of the allocable and available yard work, SUNA would not be making a contract. Indeed, it would not be bargaining. And to that extent it would not be the exclusive bargaining agent for all, whether members of SUNA, BRT, ORCB, or just plain nonunion workers.

If the statutory investment of exclusive bargaining power in the Union certified by the Mediation Board, note 6, supra, can be whittled down for a labor union which has lost its certified status, then those individuals who decline to belong to any union, or who belong to another labor organization meeting the requirements of a union shop, 45 U.S.C.A. § 152-Eleventh, are likewise entitled to notice and the right to confer and bargain.

Then would we indeed have chaos, and the bargaining table to determine labor matters in railroad operations would degenerate into a tower of Babel controversy on who was to do the t...