CHICAGO & NORTH WESTERN RAILWAY CO. v. UNITED TRANSPORTATION UNION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
Argued January 18, 1971
Decided June 1, 1971
Petitioner railroad brought this suit (after formal procedures of the Railway Labor Act had been exhausted) to enjoin a threatened strike by respondent Union, charging that the Union had failed to perform its obligations under 2 First of the Railway Labor Act "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions." The Union answered that the Norris-LaGuardia Act deprived the District Court of jurisdiction to enjoin the strike and that in any event the complaint failed to state a claim on which relief could be granted. The District Court, declining to pass on whether either party had violated 2 First, concluded that the matter was one for administrative determination by the National Mediation Board and was not justiciable, and that 4 and 7 of the Norris-LaGuardia Act deprived the court of jurisdiction to enjoin the threatened strike. The Court of Appeals affirmed, construing 2 First as hortatory and not enforceable by the courts but only by the National Mediation Board. Held:
HARLAN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, [402 U.S. 570, 571] J., filed a dissenting opinion, in which BLACK, DOUGLAS, and WHITE, JJ., joined, post, p. 584.
William H. Dempsey, Jr., argued the cause for petitioner. With him on the briefs were David Booth Beers and Richard M. Freeman.
John H. Haley, Jr., argued the cause for respondent. With him on the brief was John J. Naughton.
J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The Chicago and North Western Railway Co., petitioner in this action, brought suit in the United States District Court for the Northern District of Illinois to enjoin a threatened strike by the respondent, the United Transportation Union. The substance of the complaint was that in the negotiations between the parties over work rules, the Union had failed to perform its obligation under 2 First of the Railway Labor Act, as amended, 44 Stat. 577, 45 U.S.C. 152 First, "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions." 1 Jurisdiction was said to rest on 28 U.S.C. 1331 and [402 U.S. 570, 572] 1337. The Union in its answer contended that 4, 7, and 8 of the Norris-LaGuardia Act, 47 Stat. 70, 71, 72, 29 U.S.C. 104, 107, 108, 2 deprived the District Court of jurisdiction to issue a strike injunction and that in any event the complaint failed to state a claim upon which relief could be granted. 3 The District Judge, having heard evidence and argument, declined to pass on whether either party had violated 2 First. In an unreported opinion, he concluded that the question was a matter for administrative determination by the National Mediation Board and was nonjusticiable; he further ruled that 4 and 7 of the Norris-LaGuardia Act deprived the court of jurisdiction to issue an injunction against the Union's threatened strike. The Court of Appeals for the Seventh Circuit affirmed, 422 F.2d 979, construing 2 First as a statement of the purpose and policy of the subsequent provisions of the Act, and not as a specific requirement anticipating judicial enforcement. Rather, in that court's view, the enforcement of 2 First was solely a matter for the National Mediation Board. Id., at 985-988. We granted certiorari to consider this important question under the Railway Labor [402 U.S. 570, 573] Act, on which the lower courts had expressed divergent views. 4 For reasons that follow we reverse.
For at least the past decade, the Nation's railroads and the respondent Union or its predecessors have been engaged in an off-and-on struggle over the number of brakemen to be employed on each train. We find it unnecessary to describe this history in any great detail, either generally or with particular reference to petitioner. Accounts at earlier stages may be found in Brotherhood of Locomotive Engineers v. Baltimore & Ohio R. Co., 372 U.S. 284, 285 -288 (1963); Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Burlington & Quincy R. Co., 225 F. Supp. 11, 14-17 (DC), aff'd, 118 U.S. App. D.C. 100, 331 F.2d 1020 (1964); Brotherhood of Railroad Trainmen v. Akron & Barberton Belt R. Co., 128 U.S. App. D.C. 59, 66-70, 385 F.2d 581, 588-592 (1967); Brotherhood of Railroad Trainmen v. Atlantic Coast Line R. Co., 127 U.S. App. D.C. 298, 383 F.2d 225 (1967); and see the opinion of the court below, 422 F.2d, at 980-982, and n. 4. For present purposes it is sufficient to observe that the parties have exhausted the formal procedures of the Railway Labor Act: notices, conferences, unsuccessful mediation, refusal by the Union to accept the National Mediation Board's proffer of arbitration, termination of mediation, and expiration of the 30-day cooling-off period of 5 First, [402 U.S. 570, 574] 45 U.S.C. 155 First. The Railroad's charge that the Union had violated 2 First was based principally on its contention that the Union had consistently refused to handle the dispute on a nationwide basis while maintaining an adamant determination that no agreement should be reached with the Chicago & North Western more favorable to the carrier than agreements which the Union had already reached with other railroads. The complaint also alleged that the Union had refused to bargain on the proposals in the Railroad's counternotices.
The narrow questions presented to us are whether 2 First imposes a legal obligation on carriers and employees or is a mere exhortation; whether the obligation is enforceable by the judiciary; and whether the Norris-LaGuardia Act strips the federal courts of jurisdiction to enforce the obligation by a strike injunction. The parties have not requested us to decide whether the allegations of the complaint or the evidence presented at the hearing was sufficient to show a violation of 2 First, and the lower courts, by their resolution of the threshold questions, did not reach the issue. Accordingly, we intimate no view on this matter.
This Court has previously observed that "[t]he heart of the Railway Labor Act is the duty, imposed by 2 First upon management and labor, `to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes . . . in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.'" Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377 -378 (1969). It is not surprising that such is the case. As one leading commentator has said, in connection with the duty under [402 U.S. 570, 575] the National Labor Relations Act to bargain in good faith, "[i]t was not enough for the law to compel the parties to meet and treat without passing judgment upon the quality of the negotiations. The bargaining status of a union can be destroyed by going through the motions of negotiating almost as easily as by bluntly withholding recognition." Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1412-1413 (1958). We recognized this to be true when we said in NLRB v. Insurance Agents' International, 361 U.S. 477, 484 -485 (1960), that "the duty of management to bargain in good faith is essentially a corollary of its duty to recognize the union."
Virginian R. Co. v. System Federation No. 40, 300 U.S. 515 (1937), furnishes an early illustration of this principle in connection with the duty to "exert every reasonable effort" under the Railway Labor Act. In that case, the railroad refused to recognize a union certified by the National Mediation Board as the duly authorized representative of its shop workers, and instead sought to coerce these employees to join a company union. The employees sought and obtained an injunction requiring the railroad to perform its duty under 2 Ninth to "treat with" their certified representative; the injunction also compelled the railroad "to exert every reasonable effort" to make and maintain agreements with the union. This Court affirmed that decree, explicitly rejecting the argument that the duty to exert every reasonable effort was only a moral obligation. This conclusion has been repeatedly referred to without criticism in subsequent decisions. 5 [402 U.S. 570, 576]
The conclusion that 2 First is more than merely hortatory finds support in the legislative history of the Railway Labor Act as well. As this Court has often noted, the Railway Labor Act of 1926 was, and was acknowledged to be, an agreement worked out between management and labor, and ratified by the Congress and the President. 6 Accordingly, the statements of the spokesmen for the two parties made in the hearings on the proposed Act are entitled to great weight in the construction of the Act. 7
In the House hearings, Donald R. Richberg, counsel for the organized railway employees supporting the bill, was unequivocal on whether 2 First imposed a legal obligation on the parties. He stated, "it is [the parties'] duty to exert every reasonable effort . . . to settle all disputes, whether arising out of the abrogation of agreements or otherwise, in order to avoid any interruption to commerce. In other words, the legal obligation is imposed, and as I have previously stated, and I want to emphasize it, I believe that the deliberate violation of that legal obligation could be prevented by court compulsion." 8 Mr. Richberg went on to describe why the bill had been drafted in general language applicable equally to both parties, rather than in terms of specific [402 U.S. 570, 577] requirements or prohibitions accompanied by explicit sanctions:
The Court of Appeals, in seemingly coming to the contrary conclusion, relied on this Court's decision in General Committee of Adjustment v. Missouri-Kansas-Texas R. Co., 320 U.S. 323 (1943). In that case, the Court held that jurisdictional disputes between unions were not justiciable, but were left by the Act either to resolution by the National Mediation Board under 2 Ninth or to the economic muscle of the parties. Reliance had been placed on 2 Second, which requires that all disputes should be considered and if possible decided in conference of the authorized representatives of the parties. The Court held that this reliance was misplaced: "Nor does 2, Second make justiciable what otherwise is not. . . . 2, Second, like 2, First, merely states the policy which those other provisions buttress with more particularized commands." Id., at 334 (footnote omitted). [402 U.S. 570, 578]
In light of the place of 2 First in the scheme of the Railway Labor Act, the legislative history of that section, and the decisions interpreting it, the passing reference to it in the M-K-T case cannot bear the weight which the Court of Appeals sought to place upon it.
Given that 2 First imposes a legal obligation on the parties, the question remains whether it is an obligation enforceable by the judiciary. We have often been confronted with similar questions in connection with other duties under the Railway Labor Act. 10 Our cases reveal that where the statutory language and legislative history are unclear, the propriety of judicial enforcement turns on the importance of the duty in the scheme of the Act, the capacity of the courts to enforce it effectively, and the necessity for judicial enforcement if the right of the aggrieved party is not to prove illusory.
We have already observed that the obligation under 2 First is central to the effective working of the Railway Labor Act. The strictest compliance with the formal procedures of the Act is meaningless if one party goes through the motions with "a desire not to reach an agreement." NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (CA1 1953). While cases in which the union is the party with this attitude are perhaps rare, they are not unknown. See Chicago Typographical Union No. 16, 86 N. L. R. B. 1041 (1949), enforced sub nom. American Newspaper Publishers Assn. v. NLRB, 193 F.2d 782 (CA7 1951), aff'd as to another issue, 345 U.S. 100 [402 U.S. 570, 579] (1953). We think that at least to this extent the duty to exert every reasonable effort is of the essence. 11
The capacity of the courts to enforce this duty was considered and affirmed in the Virginian case. Mr. Justice Stone, speaking for the Court, noted that "whether action taken or omitted is in good faith or reasonable, are everyday subjects of inquiry by courts in framing and enforcing their decrees." 300 U.S., at 550 . Section 8 of the Norris-LaGuardia Act explicitly requires district courts to determine whether plaintiffs have "failed to make every reasonable effort" to settle the dispute out of which the request for the injunction grows. 12 We have no reason to believe that the district courts are less capable of making the inquiry in the one situation than in the other.
Finally, we must consider the Court of Appeals' position [402 U.S. 570, 580] that the question whether a party had exerted every reasonable effort was committed by the Railway Labor Act to the National Mediation Board rather than to the courts. We believe that the legislative history of the Railway Labor Act rather plainly disproves this contention. It is commonplace that the 1926 Railway Labor Act was enacted because of dissatisfaction with the 1920 Transportation Act, and particularly with the performance of the Railroad Labor Board. While there were many causes of this dissatisfaction, one of the most prominent was that because of its adjudicatory functions, the Board effectively lost any influence in attempting to settle disputes. Throughout the hearings on the bill which became the 1926 Act there are repeated expressions of concern that the National Mediation Board should retain no adjudicatory function, so that it might maintain the confidence of both parties. 13 And as the Court noted in Switchmen's Union v. National Mediation Board, 320 U.S. 297, 303 (1943), when Congress in 1934 gave the Board power to resolve certain jurisdictional disputes, it authorized the Board to appoint a committee of neutrals to decide the dispute "so that the Board's [402 U.S. 570, 581] `own usefulness of settling disputes that might arise thereafter might not be impaired.' S. Rep. No. 1065, 73d Cong., 2d Sess., p. 3." Only last Term we referred to the fact that "the Mediation Board has no adjudicatory authority with regard to major disputes." Detroit & T. S. L. R. Co. v. United Transportation Union, 396 U.S. 142, 158 (1969). In light of these considerations, we think the conclusion inescapable that Congress intended the enforcement of 2 First to be overseen by appropriate judicial means rather than by the Mediation Board's retaining jurisdiction over the dispute or prematurely releasing the parties for resort to self-help if it feels such action called for. 14
We turn finally to the question whether 4 of the Norris-LaGuardia Act 15 prohibits the use of a strike injunction in all cases of violation of 2 First. The fundamental principles in this area were epitomized in International Association of Machinists v. Street, 367 U.S. 740, 772 -773 (1961):
We recognize, of course, that our holding that strike injunctions may issue when such a remedy is the only practical, effective means of enforcing the duty to exert every reasonable effort to make and maintain agreements falls far short of that definiteness and clarity which businessmen and labor leaders undoubtedly desire. It creates a not insignificant danger that parties will structure their negotiating positions and tactics with an eye on the courts, rather than restricting their attention to the business at hand. Moreover, the party seeking to maintain the status quo may be less willing to compromise during the determinate processes of the Railway Labor Act if he believes that there is a chance of indefinitely postponing the other party's resort to self-help after those procedures have been exhausted. See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S., at 380 -381; cf. Hearings, supra, n. 8, at 17, 50, 100 (Mr. Richberg); id., at 190 (Mr. Robertson). Finally, the vagueness of the obligation under 2 First could provide a cover for freewheeling judicial interference in labor relations of the sort that called forth the Norris-LaGuardia Act in the first place. 19
These weighty considerations indeed counsel restraint in the issuance of strike injunctions based on violations of 2 First. See n. 11, supra. Nevertheless, the result reached today is unavoidable if we are to give effect to all our labor laws - enacted as they were by Congresses [402 U.S. 570, 584] of differing political makeup and differing views on labor relations - rather than restrict our examination to those pieces of legislation which are in accord with our personal views of sound labor policy. See Boys Markets v. Retail Clerks Local 770, 398 U.S. 235, 250 (1970).
As we noted at the outset, we have not been requested to rule on whether the record shows a violation of 2 First in circumstances justifying a strike injunction, and we do not do so. Such a question should be examined by this Court, if at all, only after the facts have been marshaled and the issues clarified through the decisions of lower courts.
In view of the uncertainty heretofore existing on what constituted a violation of 2 First and what showing was necessary to make out a case for a strike injunction, we believe the appropriate course is to remand the case to the Court of Appeals with instructions to return the case to the District Court for the taking of such further evidence as the parties may deem necessary and that court may find helpful in passing on the issues which the case presents in light of our opinion today.
[ Footnote 2 ] Section 4 reads in relevant part:
[ Footnote 3 ] The Union also averred that it had complied with the command of 2 First and that the Railroad had been derelict in its duty under that section.
[ Footnote 4 ] See, besides the opinion below, Piedmont Aviation, Inc. v. Air Line Pilots Assn., 416 F.2d 633 (CA4 1969); Brotherhood of Railroad Trainmen v. Akron & Barberton Belt R. Co., 128 U.S. App. D.C. 59, 385 F.2d 581 (1967), aff'g 253 F. Supp. 538 (1966); Seaboard World Airlines, Inc. v. Transport Workers, 425 F.2d 1086 (CA2 1970); United Industrial Workers v. Galveston Wharves, 400 F.2d 320 (CA5 1968).
[ Footnote 5 ] E. g., Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711, 721 -722, n. 12 (1945), adhered to on rehearing, 327 U.S. 661 (1946); Stark v. Wickard, 321 U.S. 288, 306 -307 (1944); Order of Railroad Telegraphers v. Chicago & N. W. R. Co., 362 U.S. 330, 339 (1960); International Association of Machinists v. Street, 367 U.S. 740, 758 [402 U.S. 570, 576] (1961); Brotherhood of Railway Clerks v. Association for the Benefit of Non-Contract Employees, 380 U.S. 650, 658 (1965); Detroit & T. S. L. R. Co. v. United Transportation Union, 396 U.S. 142, 149 , 151 (1969).
[ Footnote 8 ] Hearings on Railroad Labor Disputes (H. R. 7180) before the House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., 91 (1926). See also id., at 40-41, 66, 84-85.
[ Footnote 9 ] Id., at 91. See also id., at 66.
[ Footnote 10 ] See, e. g., Texas & N. O. R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548 (1930); Virginian R. Co. v. System Federation No. 40, 300 U.S. 515 (1937); Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768 (1952).
[ Footnote 11 ] While we have no occasion to determine whether 2 First requires more of the parties than avoidance of "bad faith" as defined by Judge Magruder in Reed & Prince, supra, we note two caveats. First, parallels between the duty to bargain in good faith and the duty to exert every reasonable effort, like all parallels between the NLRA and the Railway Labor Act, should be drawn with the utmost care and with full awareness of the differences between the statutory schemes. Cf. Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383 (1969). Second, great circumspection should be used in going beyond cases involving "desire not to reach an agreement," for doing so risks infringement of the strong federal labor policy against governmental interference with the substantive terms of collective-bargaining agreements. See n. 19, infra.
[ Footnote 12 ] The section provides in full:
[ Footnote 13 ] E. g., Hearings, supra, n. 8, at 18 (Mr. Richberg):
[ Footnote 14 ] If such were the exclusive remedy for violations of 2 First, not only would it endanger the effectiveness of the Board's mediatory role and risk premature interruptions of transportation, but it would provide no remedy for cases where the violations of 2 First occurred or first became apparent after the Board had certified that its mediatory efforts had failed.
[ Footnote 15 ] See n. 2, supra, for the text.
[ Footnote 16 ] See Virginian R. Co. v. System Federation No. 40, 300 U.S., at 562 -563; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 237 (1949); Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 774 (1952); Brotherhood of Railroad Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 41 -42 (1957); cf. Order of Railroad Telegraphers v. Chicago & N. W. R. Co., 362 U.S., at 338 -339; id., at 360-364 (dissenting opinion); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 458 (1957).
[ Footnote 17 ] The congressional debates over the Norris-LaGuardia Act support a construction of that Act permitting federal courts to enjoin strikes in violation of the Railway Labor Act in appropriate cases. See 75 Cong. Rec. 4937-4938 (Sen. Blaine); id., at 5499, 5504 (Rep. LaGuardia).
[ Footnote 18 ] Section 2 First was re-enacted in 1934, two years after the Norris-LaGuardia Act. Act of June 21, 1934, c. 691, 48 Stat. 1185. In the event of irreconcilable conflict between the policies of the earlier, general provisions of the Norris-LaGuardia Act and those of [402 U.S. 570, 583] the subsequent, more specific provisions of 2 First, the latter would prevail under familiar principles of statutory construction. Virginian R. Co. v. System Federation No. 40, 300 U.S., at 563 .
[ Footnote 19 ] Section 8 (d) of the National Labor Relations Act, 29 U.S.C. 158 (d), was added precisely because of congressional concern that the NLRB had intruded too deeply into the collective-bargaining process under the guise of enforcing the duty to bargain in good faith. See NLRB v. American National Insurance Co., 343 U.S. 395 (1952); NLRB v. Insurance Agents' International, 361 U.S. 477 (1960).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE WHITE join, dissenting.
The instant dispute between the Chicago & North Western Railway Company (Railway) and the United Transportation Union (Union) reaches back to the decision of Arbitration Board No. 282, established pursuant to 77 Stat. 132 (1963). That board was established by Congress, after the failure of the dispute-settlement [402 U.S. 570, 585] machinery of the Railway Labor Act, to arbitrate disputes between various carriers and unions over the number of brakemen required on trains and the necessity of firemen on diesel locomotives. Insofar as is here pertinent, Board 282's award ultimately led to elimination of approximately 8,000 brakemen's jobs across the Nation. By its terms, however, the award expired January 25, 1966. Prior to expiration, the Union served upon the Railway notices under 6 of the Railway Labor Act, 45 U.S.C. 156, 1 which called for re-establishing many of the brakemen's positions eliminated by Board 282 by changing the existing agreements to require not less than two brakemen on every freight and yard crew. The Railway reciprocated by serving upon the Union a 6 notice requesting an agreement that would make crew size a matter of managerial judgment. The parties held conferences under 6 without reaching agreement. The National Mediation Board attempted to mediate the dispute pursuant to 5, 45 U.S.C. 155, 2 failed, and proffered [402 U.S. 570, 586] arbitration pursuant to the same section. After the Union declined to accept arbitration, the National Mediation Board terminated its jurisdiction. Since no emergency board was appointed by the President under 10, 45 U.S.C. 160, 3 after the 30-day cooling-off period of 5 had run, 4 the Act's prohibition against resort to self-help measures lapsed.
Thereafter, the Railway brought this action in Federal District Court seeking an injunction against a threatened strike, alleging that the Union had not lived up to its obligation under 2 First, 45 U.S.C. 152 First, to "exert every reasonable effort" to make and maintain working agreements. Specifically, the Railway alleged [402 U.S. 570, 587] that the Union had violated its statutory duty in the following ways:
This case presents the question whether, in a major dispute, a District Court may enjoin self-help measures after the completion of the statutory procedures if it determines that a party has not made "every reasonable effort" to reach agreement as required by 2 First. Underlying this question is the corollary one, to what extent a District Court may inquire into collective negotiations in determining whether a party has complied with its statutory duty.
In answering these questions particular attention must be paid to the legislative history of the Act. Railway labor dispute-settlement law has undergone a long legislative evolution which this Court has previously explored. International Association of Machinists v. Street, 367 U.S. 740, 750 -760, and nn. 10-12 (1961); see also Texas & N. O. R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548 (1930); Virginian R. Co. v. System Federation No. 40, 300 U.S. 515 (1937); Union Pacific R. Co. v. Price, 360 U.S. 601 (1959); Detroit & T. S. L. R. Co. v. United Transportation Union, 396 U.S. 142 (1969). Much of the experimentation prior to passage of the Railway Labor Act of 1926 proved unsuccessful. Recognition that growing unrest in the railway industry had created a situation with potentially grave public consequences, led the President, in three messages to Congress between 1923 and 1925, and both the Republican and Democratic Parties, in 1924, to call for unprecedented cooperation between carriers and unions. H. R. Rep. No. 328, 69th Cong., 1st Sess., 2-3 (1926); S. Rep. No. 606, 69th Cong., 1st Sess., 2-3 (1926); Hearings on [402 U.S. 570, 589] Railroad Labor Disputes (H. R. 7180) before the House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., 21-22, 90, 98, 197 (1926) (hereinafter Hearings). These basically antagonistic forces were urged to sit down and develop a workable solution for settling disputes in their industry in order to minimize the rupture of the public services that they provided. The legislative product devised by the parties themselves, which Congress enacted in 1926 as the Railway Labor Act, 44 Stat. 577, was a unique blend of moral and legal duties looking toward settlement through conciliation, mediation, voluntary arbitration, presidential intervention, and finally, in case of ultimate failure of the statutory machinery, resort to traditional self-help measures. The cooperation involved was unparalleled in this country's labor history. It was felt significant to all involved that the parties themselves had worked out a solution and had presented it to Congress. 5 [402 U.S. 570, 590] The significance lay in the fact that since the bill represented "the agreement of the parties . . . they will be under the moral obligation to see that their agreement accomplishes its purpose, and that if enacted into law they will desire to prove the law a success." Hearings 21.
The outstanding feature of the bill was that it was voluntary - Congress, the carriers, and the unions all recognized that there were very few enforceable provisions, and still fewer judicially enforceable ones. 6 In testimony before Congress, Mr. Richberg, the major spokesman for the unions, stated, "[O]ur thought has been in this law not to write a lot of statute law for the courts to enforce. . . . We expect that most of the provisions of this bill are to be enforced by the power of persuasion, either exercised by the parties themselves or by the Government [402 U.S. 570, 591] board of mediation representing the public interest." Hearings 65-66. Congress recognized the absence of coercive measures but chose not to add them, noting that "it is in the public interest to permit a fair trial of the method of amicable adjustment agreed upon by the parties . . . ." S. Rep. No. 606, 69th Cong., 1st Sess., 4 (1926). Thus, the history of the Act reveals that in dealing with major disputes Congress was content to enact a machinery which dragged on, with cooling-off periods and various status quo restrictions, while the parties were required to "treat with" one another, 2 Ninth, 45 U.S.C. 152 Ninth, in the hope that ultimately they would voluntarily reach agreement.
In order to bring about settlement, it was made "the duty of all carriers . . . and employees to exert every reasonable effort to make and maintain agreements . . . in order to avoid any interruption to commerce . . . ." 2 First, 45 U.S.C. 152 First. From the outset, Congress was interested in the meaning of this provision and whether this statutory duty was viewed by the drafters to be a judicially enforceable one. During the hearings on the House bill the following colloquy occurred:
In the years since Virginian R. Co. this Court, in the context of a major dispute, has authorized the issuance of an injunction in only two other carefully limited classes of railway litigation - that seeking to prevent invidious discrimination on the part of a union as against employees and that seeking to prevent violation of the Act's status quo provisions during bargaining. In a series of cases beginning with Steele v. Louisville & N. R. Co., [402 U.S. 570, 595] 323 U.S. 192 (1944), 8 this Court has held that "the language of the Act to which we have referred [ 1 Sixth; 2 Second, Third, Fourth, and Ninth], read in the light of the purposes of the Act, expresses the aim of Congress to impose on the bargaining representative of a craft or class of employees the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them." Id., at 202-203. Recently, in Detroit & T. S. L. R. Co. v. United Transportation Union, 396 U.S. 142 (1969), this Court held that the Act's status quo requirement, which "is central to its design," could be enforced by judicial authority. Id., at 150. While in each of these instances the Court found specific, positive statutory mandates for judicial interference, the underlying cohesiveness of the decisions lies in the fact that in each instance the scheme of the Railway Labor Act could not begin to work without judicial involvement. That is, unless the unions fairly represented all of their employees; unless the employer bargained with the certified representative of the employees; unless the status quo was maintained during the entire range of bargaining, the statutory mechanism could not hope to induce a negotiated settlement. In each case the judicial involvement was minimal and in keeping with the central theme of the Act - to bring about voluntary settlement. In each case the "collective bargaining agents stepped outside their legal duties and violated the Act which called them into being . . . ." Order of Railroad Telegraphers v. Chicago & N. W. R. Co., 362 U.S. 330, 338 (1960). [402 U.S. 570, 596]
In the instant case, we have an entirely different situation. Here, all parties were fairly represented, the status quo was being maintained, and, most important, each bargaining representative met and conferred with his counterpart. The step-by-step procedures prescribed by the Railway Labor Act had been carried through. In essence, the Court holds that a district court has the duty under 2 First, to assess the bargaining tactics of each of the parties after the entire statutory scheme has run its course. If, then, the court determines that a party had not exerted sufficient effort to reach settlement, it should enjoin self-help measures, and, if such action is to make any sense within this statutory scheme, remand the parties to some unspecified point in the bargaining process. Such a notion is entirely contrary to the carefully constructed premise of the Railway Labor Act.
My summary of the legislative history of the Act clearly discloses that judicial involvement in the railway bargaining process was to be minuscule since the entire focus of the Act was toward achieving a voluntary settlement between the protagonists. "The Railway Labor Act, like the National Labor Relations Act, does not undertake governmental regulation of wages, hours, or working conditions. Instead it seeks to provide a means by which agreement may be reached with respect to them." Terminal Assn. v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 6 (1943) (footnote omitted). It is clear to me that the duty to exert every reasonable effort was agreed upon to make effective the duty of the carrier to recognize the union chosen by the employees - in other words, it is essentially a corollary of the duty. Such a duty does not contemplate that governmental power should, after failure of the parties to reach accord, be added to the scales in favor of either party and thus compel the other to agree upon the aided party's terms. Rather, at that point, impasse was to free both parties [402 U.S. 570, 597] to resort to self-help. See NLRB v. Insurance Agents' International, 361 U.S. 477, 484 -486 (1960). As Mr. Richberg had testified, "I wish to stress that one point above all others. We are seeking an opportunity to preserve self-government in industry. . . . We are not asking the Government to use force against one or the other party. We are simply asking aid and cooperation." Hearings 22.
Even apart from what the drafters of the Act representing both sides specifically contemplated, the result reached today will destroy entirely the carefully planned scheme of the Act. The Act is built upon a step-by-step framework. Each step is carefully drawn to introduce slightly different pressures upon the parties to reach settlement from the preceding step. First, the parties confer jointly. Next, the National Mediation Board may add its pressure through mediation. Then, the President may call into effect both the great power of his office and that of informed public opinion through the creation of an emergency board. Underlying the entire statutory framework is the pressure born of the knowledge that in the final instance traditional self-help economic pressure may be brought to bear if the statutory mechanism does not produce agreement. The Act does not evidence an intention to return to any step once completed. The Court's decision will effectively destroy the scheme of gradually escalating pressures. Moreover, the Court provides absolutely no guidance as to where in the bargaining scheme the parties are to be remanded. Does the court send them back to the Mediation Board which has already terminated jurisdiction finding the parties to have reached impasse? Should the court remand to some other phase of the proceedings? If so, where?
More important, however, is the mortal wound today's holding inflicts on the critical role to be played by the [402 U.S. 570, 598] presence of economic weapons in reserve. NLRB v. Insurance Agents' International, supra, at 488-489. As the statutory machinery nears termination without achieving settlement, the threat of economic self-help and the pressures of informed public opinion create new impetus toward compromise and agreement. If self-help can now effectively be thwarted by injunction and by drawn-out court proceedings after the termination of the entire bargaining process, or worse yet, at each step thereof, the threat of its use becomes impotent, indeed.
Since there is no specific mandate for an injunction in the circumstances presented by this case, the more general provisions of the Norris-LaGuardia Act are applicable. Virginian R. Co. v. System Federation No. 40, 300 U.S., at 563 ; Brotherhood of Railroad Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 40 -41 (1957).
I would affirm.
[ Footnote 1 ] Section 6 provides in part:
[ Footnote 2 ] Section 5 First, provides in part:
[ Footnote 3 ] Section 10 provides in part:
[ Footnote 4 ] Section 5 First, provides in part:
[ Footnote 5 ] "Mr. Richberg: . . . This bill which has been introduced in the House and in the Senate simultaneously represents the product of months of negotiations and conferences between the representatives of 20 railroad labor organizations and the Association of Railway Executives representatives, representing the great majority, practically all, of the carriers by railroad." Hearings 9.
[ Footnote 6 ] Mr. Thom (carrier representative). "I wish you to bear that fact in mind - the moral obligation now resting upon each one of the proponents of this bill in respect to its effect upon the public interest. Suppose it is changed in any important particular, what effect will that have upon the moral obligation to which I have just alluded? . . .
[ Footnote 7 ] Carrier representatives were present throughout the congressional testimony of Mr. Richberg. None contradicted Mr. Richberg's viewpoint in their testimony.
[ Footnote 8 ] See also Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210 (1944); Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232 (1949); Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768 (1952). [402 U.S. 570, 600]