SHORE LINE v. TRANSPORTATION UNION

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Argument of Francis M. Shea

Chief Justice Warren E. Burger: Shore Line against United Transportation Union.

Mr. Shea, you may proceed whenever you're ready.

Mr. Francis M. Shea: Mr. Chief Justice, may it please the Court.

Parties to this case are Detroit and Toledo Shore Line which I shall refer to Shore Line and UTU which is a merger of four operating Unions, I shall refer to it including the Firemen's Union.

I shall to refer to it as the Union of the Firemen's union.

This case arises under the Railway Labor Act.

As Your Honors are well aware, there are two kinds of disputes that arise under that Act.

The so-called minor disputes which involve the interpretation or application of the existing agreements and they follow the course of negotiation and if that fails, compulsory arbitration before an Adjustment Board whose decisions are final and binding on the parties.

And then there's the major dispute involving not the interpretation or application of existing agreements, but the making or changing of existing agreements and these follow a different course.

Section 6 notice proposing a change is served as negotiation, mediation and proffer of arbitration in the discretion of the President's appointment of an Emergency Board and then the parties are free to exercise self-help at the end of that route.

In this case, an Adjustment Board determined that there was nothing in existing agreements which precluded Shore Line from establishing an outlying reporting point, the point at which a fireman might be required to report for work at the end of the day away from the main terminal.

Shore Line proposed to establish such a point.

The Union served a notice proposing that the exclusive reporting point should be at the home terminal at Toledo.

And the court below held that in virtue of the mere filing of that notice to deprive Shore Line of its right under the existing agreement to establish an outlying terminal, that was accomplished and they were deprived of that right.

Now, the facts are briefly these.

Shore Line is a small railroad.

It runs about 50 miles from Toledo to Detroit.

Lang Yard is the mainline.

The yard at Toledo is the yard just south of Detroit called Dearoad and there's one other geographic point I have in mind, that's at Trenton where there's the Edison Yard, that's about 35 miles north of Toledo.

There's a growing and large industrial development at Trenton.

While outlying points have historically been established, for many years, Trenton was served by firemen who reported at the Toledo Yard and took their -- went with their engines up to Trenton, did the switching there, then went back to 35 miles and tied up at Toledo.

In 1961, this growing industrial development in the view of the railroad required that they establish an outlying point at Trenton and they served or they proposed to the Union that they would establish an outlying point at Trenton.

The Union served a Section 6 notice proposing negotiations on terms or conditions under which that outlying assignment should be established.

Negotiations were to had, mediation was had, proffer of arbitration, finally, the matter was released.

But at that time there was no strike and at a subsequent point the Union withdrew that notice and there wasn't the establishment of the reporting point of Trenton.

The alternate year for switching at Montesanto by Shore Line could pass and they said we don't to propose to establish this point at Trenton.

But in the meantime late 1962 and in again September 1963, they established an outlying point just south of Detroit and called it Dearoad and on this occasion the Union pursued the minor dispute route.

It took it to an Adjustment Board and it urged that under existing agreements, and under their existing practices Shore Line was barred from establishing this outlying reporting point at Dearoad.

The Adjustment Board decided against them.

The Adjustment Board said there's nothing in the rule of agreement which precludes the establishment at that point and I think it's not contested that under the existing agreements then Shore Line was privileged to establish that outlying point.

They then proposed again to establish an outlying reporting point at Trenton and the response to that was a Section 6 notice proposing that the only point at which firemen might be required to report would be the Toledo Yard.

Justice Potter Stewart: That is proposing the negotiation of a provision under the collective bargaining contract that would so provide.

Mr. Francis M. Shea: That's right and which would deny Shore Line of the right that they then had to establish the outlying points.

There was a negotiation about this and that didn't get anywhere.

The Union invoked the issue and the mediation was pending at the time of this record was made.

In late September 1966, Shore Line being confronted with the immediate requirement again switching Montesanto with McClould having demanded a series of it, they posted a bulletin establishing an outlying assignment at Trenton for trains to operate in the switching of these industrial establishments at Trenton.

At that point, the Union threatened a strike.

Shore Line sought an injunction against the strike.

The Union counterclaimed for an injunction against the establishment of this outlying point.

The District Court denied the injunction against the strike, granted the injunction against the establishment of the outlying point.

The court below affirmed and the issue is, I suppose, is the correctness of the decision below on certiorari to this Court.

Now, the only provisions of the Railway Labor Act which are actually involved here are Section 2 (7) and Section 6, the so-called status quo provision of Section 6, in fact you've indicated that these two sections have to be read together and may I read them to you.

The first appears on Section 2 (a), page 2 (a) of our brief and that Section 2 (7) which reads as follows: “No carrier, its officers or agents shall change the rates of pay, rules or working conditions of its employees as a class as embodied in agreements except in the manner prescribed in such agreements or in Section 6 of the Act.”

Now, I think there's no contest about the fact that that bars only a change in the existing agreements.

It does not deprive the parties of the rights under the existing agreements.

And Section 6 reads, carriers, that's on 5 (a) of the appendix, “carriers and representative to the employees shall give at least 30 days written notice of an intended change in agreements affecting rates of pay, rules or working conditions with time and place in the beginning of conferences between representatives of parties in such intended change should be agreed upon within ten days after the receipt of said notice.

That time should be within the 30 days provided in every case where such notice of an intended change has been given or conferences are being held with reference thereto of service of the Mediation Board have been requested by either party or said Board has proffered its services, rates of pay, rules or working conditions shall not be altered by the carrier until the controversy has been finally acted upon as required by Section 5 of this Act by the Mediation Board” etcetera.

Now, what we say that this provision of Section 6 means read together with Section 2 is what this Court said it meant in Williams against the Terminal Company.

Here's what the Court said, "The institution of negotiations," that is the filing of the Section 6 notice, “the institution of negotiations for collective bargaining does not change the authority of the carrier.”

The prohibitions of Section 6, against change of wages or conditions pending bargaining and those of Section 2 (7) are aimed at preventing changes in conditions previously fixed by collective bargaining agreements.

But we say Section 6 means is again what this Court said it meant in Order of Railroad Conductors against Pitney.

There this Court said, 2 (7) of the Act provides that no carrier its officers or agents shall change the rates of pay, rules, or working conditions of its employees as a class, as embodied in agreements except in the manner prescribed in such agreements under Section 6 of the Act.

Section 6 as we have seen prohibits such change unless notice is first given and its requirements were otherwise complied with.

Section 2 (10) of the Act makes it a misdemeanor punishable by both fine and imprisonment for a carrier willfully that violates Section 6.

These sections, these sections make it clear that the only conduct which would violate Section 6 is a change of those working conditions which are embodied in agreements.

Now, what we think it means is also what the Mediation Board has consistently interpreted as meaning.

Since 1956, the Board repeated, Mediation Board repeatedly in its annual reports, in its instructions to mediate it, in its response to demands of the Unions, repeatedly they have said this, and I read their latest pronouncement, pronouncements earlier were of a kind.

In brief, “the rights of the parties which they had prior serving the notice of intention to change, that's part of the serving the Section 6 notice, the rights of the parties which they had prior to serving the notice of intention to change remained the same during the period the proposal is under consideration and remained so until the proposal is finally acted upon.

The Board has stated in instances of this kind that the serving of a Section 6 notice for a new rule or change, a change in an existing rule does not operate, does not operate as a bar to the carrier actions which were taken under rules currently in effect.”

We also think, if the Court please, that the interpretation which we give Section 6 is the interpretation which was given in the making of the legislative history of that provision.

Section 6, the initial Bill, which ultimately became in the subsequent year the 1926 Act, was called the Howell-Barkley Bill and Mr. Richberg in explaining the provision that became Section 6 from what was apparently a prepared text under the heading “changes of agreements” had this to say.

“An agreement that can be changed without notice is really no agreement at all.

Certainly, the power on the one hand and the fear on the other of arbitrary change will read this Court not harmony.”

There is provided in Section 6 that either party shall give at least 30 days written notice of an intended change and that the time and place of conference shall be agreed upon, thereafter a change and it seems to me clearly refers back to the change proposed, thereafter change is prohibited until machinery for peaceful adjustment has been fully utilized.

Now, if the Court please, very important, I think important practical considerations which are entitled to weight.

If I understand the opposing counsel correctly, he says that these so-called status quo provisions briefly applicable, to indeed asserts, simply applicable to the Union and to the carrier and I put them below when he was not willing to bite the bullet then I doubt he will hear, I put in this situation or these two situations.

One of the most cherished rights of workmen in this field are their seniority rights.

A place opens up, a desirable place, the man who has been there longest can be at the end and the place he opens up than the man with the next greatest seniority can bid that in and so forth.

Now, the railroads will suppose serve a notice saying this is disrupting.

From now on, we want to assign men to the post that they are investigated for.

Now, for the long period, the intentionally long period to exhaust the procedures of the Railroad Labor Act, are the seniority right suspended or to take another situation which is not unusual that this negotiation of an agreement for an increase in wage is 3% next January, another 2% in July, another 3% the following January.

They negotiated that bargain and a couple of months later, the Shore Line, the carrier serves notice saying we're losing money and we want to freeze wages.

The length freeze wages for the lengthy period, a year, two years or more in which the procedures of the Railway Labor Act are being exhausted.

Now, I say that if he agreed it would do that.

I can think of nothing which would more be more disruptive of the stability of labor relations or more frustrating to the possibility of making and maintaining agreements in such a rule.

Now, as I understand, as I understand his -- the main thrust of his argument, it is that while the provisions of Section 5, their status quo provisions of 5 and 10 which are not applicable to here because this is still in mediation and those are only applicable only after the mediation has terminated or after the Emergency Board is appointed.

If I understand the main thrust of his argument, it is that all of these provisions, not all, six, five and ten, must mean the same thing, not two because he concedes two doesn't, isn't to be read with all of them.

Now this Court said that had to be read with six in Pitney.

He says, that that isn't the status quo provision after the major dispute is arisen.

But he says these three have to be read together and he gets some comfort from the language of 5 and 10.

Now, I don't understand what comfort he gets from 10, indeed 5, but 10 says that after Emergency Board has been appointed for 30 days after the reports to the President, no change shall be made in the conditions out of which the dispute arose and I think the conditions out of which this dispute arises is that under existing agreements, we have the right to establish an outline point and they want to take it away from us and they proposed that change and it is that's what shouldn't be changed.

Well, that means that our rights under the existing agreement shouldn't be changed for this period.

Now, 5 provides that after the Mediation Board releases the dispute for 30 days, there shall be no change in rates of pay, rules, working conditions or working conditions or established practices.

There is little to indicate the reason for the introduction of established practices.

We've done a textual analysis which there isn't time for an oral argument, but I think I can point this out that that was introduced in the 34th Amendment and Eastman who drafted the 34th Amendment said that this was merely the plug a loophole which theretofore existed.

Prior to that when mediation was terminated, the railroads would go in immediately and affected their changes even though later an Emergency Board might be established.

And he said the only purpose of this is to hold it long enough to give the President the opportunity to establish an Emergency Board.

Certainly, --

Justice Byron R. White: Mr. Shea, I take it that you would argue that if there were no agreement at all between a carrier and its employees, but they were in the process of negotiating agreements that the employer could, pending the working out of Section -- of these mediation procedures change wages?

Mr. Francis M. Shea: I would because this Courts squarely so held in Williams.

Justice Byron R. White: Yes, and would you say that the Union might waive its strike?

Mr. Francis M. Shea: I would say no because I think that was so held in Williams.

Justice Byron R. White: So, the Union is -- may not strike pending the resolution of the mediation procedures, but the carrier may change wages, hours or working conditions so long as they are not governed by an existing agreement?

Mr. Francis M. Shea: They may exercise -- yes, they may exercise those rights that they then have.

Justice Byron R. White: Well, and apparently you agree that this business of establishing an outlying terminal was subject to Section 6 procedures?

Mr. Francis M. Shea: One subject to Section 6 procedures.

Justice Byron R. White: I mean it was proper for the Union --

Mr. Francis M. Shea: We're not raising here the issue that this was purely a matter of managerial discretion.

Justice Byron R. White: Well, this was the point of the matter because as far as this case is concerned --

Mr. Francis M. Shea: Well, I think it wasn't but --

Justice Byron R. White: Well, I know but --

Mr. Francis M. Shea: So far as the argument here is concerned --

Justice Byron R. White: So far as the issue here is concerned --

Mr. Francis M. Shea: That's right.

Justice Byron R. White: -- this is just as though on wages.

Mr. Francis M. Shea: Yes.

I think that's right.

Justice Byron R. White: In the absence of an agreement?

Mr. Francis M. Shea: Yes, I think that's right.

But remember, if the Court please, that in the railroad industry, there is enhancement for a very long time detailed rules and --

Justice Byron R. White: You mean agreed upon by the (Voice Overlap).

Mr. Francis M. Shea: Yes, but also have this in mind that very often, there will be a controversy and it will be allowed to drop if there were a decision which required that every right the railroad had had to be in that agreement, you'd compromise the possibilities of reaching agreements very largely indeed.

Justice Byron R. White: I take it that (Voice Overlap) -- I take it that you would take this as no difference than if the railroad proposed to build a spur and the Union didn't want the spur built, so they filed a Section 6 notice to keep the railroad from building the spur.

You would say the railroad ought to be and they'll go ahead and build this spur regardless of a notice and the Union says it shouldn't build the spur regardless of the notice.

Mr. Francis M. Shea: If it's entitled to honor existing agreements, I should say, certainly they ought to be permitted to go in and build it.

There's one other point by respondent -- there's one other point which I like just to touch on before concluding and that is this.

Opposing counsel has raised in this Court, he didn't plead it, he didn't raise it in the District Court, he didn't raise it in the Court of Appeals, he raises it for the first time in this Court.

He urges that under our obligation to exert every reasonable effort to make and maintain agreements under the 2 (1) of the Act, we are barred from taking unilateral action as to any matter which is a subject of discussion under -- which is a subject to discussion in the negotiations and he relies on Fibreboard and Katz.

First of all, I would like to observe that if the Court was going to get into this area, I would suppose they would want the considered views of the court below and they haven't those views because the issue wasn't raised in the court below.

Secondly, this Court has warned against importing these provisions of the LMRA into the -- and particularly in a case like this where you have specific provisions from Railway Labor Act dealing with the problem of status quo.

But finally, it seems to me that these two cases are wholly in apposite in any event, I think all this Court held in Fibreboard, if I read it correctly, was that contracting out work in the certain instances of that case, where the contracting out was going to discharge all them and destroy the Union.

Contracting out of that work was a mandatorily bargainable issue that the company had refused to bargain and that the Labor Board didn't abuse its discretion in fashion of the remedy it did and that is no complement to that kind here.

You talked to them for five years about it.

Secondly, and there's nothing irreversible about this action which has been taken here.

Secondly, as to Katz, if I read Katz correctly, what Katz holds is that you can't -- there was a proposal for increase of wages, proposals as to merit increases, proposals as to sick leave, you can't when you're in a process of negotiation, I think go directly to the man and offer them something without giving the Union notice and without discussing it with the Union.

Now, Katz said, however, if understand expressly, from the statement of the question by reference to the Bradley case and the Landis case, said expressly that this is to be distinguished from the case for instance where the Unions demanded a 16-cent raise, the company has offered 10, the Union rejected it and the company then said, we're not going to give it and do give it, that did not involve any validation.

I don't see that you have any, there's anything apposite about that opinion here because there has been a lengthy discussions, we let them know about it and we try to work out the arrangements for bunkhouse etcetera with them.

There's nothing here that can be urged.

There's an undercutting of the Union.

There's a as going behind the bargaining agent to go directly to the men.

If the Court please, that's our submission unless there are questions from the Court.

Chief Justice Warren E. Burger: Thank you, Mr. Shea.

Mr. Lyman.

Argument of Richard R. Lyman

Mr. Richard R. Lyman: Mr. Chief Justice and Honorable Justices.

I represent the respondents in this case who consist of a successor organization to one of the original defendants, the Brotherhood of Locomotive Firemen and Enginemen and two of its officers, President and the General Chairman of their brotherhood.

Originally, when the case was filed and tried below in the District Court, another organization was co-defendant and the suit was brought to enjoin both the firemen and the brotherhood of railroad trainmen from striking.

They had both been in these original 1961 negotiations, but the firemen at the time they decided to take their case to the Special Board of Adjustment have withdrawn their 1961 Section 6 notice.

The trainmen however had not, therefore, the trainmen had a live matured right to strike and the District Court so held and denied the railroad an injunction against a strike by the trainmen.

Now, of course, no strike has in fact taken place since that division or has there has been any threat of one over this dispute because the fact that the railroad was enjoined from doing the thing that the threatened strike was alleged to have been about.

In the District Court, Shore Line raised three contentions in defending their action.

They said, one, this was a minor dispute, not a major dispute; two, it involved a non-bargainable matter in any event and therefore, the brotherhoods did not have or the respondent firemen did not have a valid Section 6 notice pending; and three, they argue the status quo question which is before this Court.

In the Court of Appeals below, they no longer argued the minor dispute question, but relied down in the two arguments, managerial prerogative and the status quo argument and in this Court, they have abandoned and have not placed before the Court the managerial prerogative argument.

The fact is of course, that this operating change in starting assignments at Trenton was objected to by the Union from the point of view of its impact on the employees in the sense of reporting to and from duty.

The District Court did not enjoin the railroad from making any changes in its physical facilities or plant set up that it desired to do and the Court of Appeals makes this very clear that it didn't constrain the District Court as enjoining any such thing which might be in the area of managerial prerogatives.

Now basically Shore Line is contending here that the status quo requirements of the Railway Labor Act designed to protect the public and preserve industrial peace are strictly limited to what the railroad has already bound itself to contractually.

Turning on Mr. Justice White's a little further in an employment at will, they would say during all the course of this major dispute procedures, they were free to change anything and everything.

In this case, it's their contention that part of the area of wages, rules and working conditions is not covered by the agreement and therefore that as to that part of the working condition area not covered by the agreement, they are free to change those, even though bargaining under the Railway Labor Act is proceeding.

Even though at the time this case came before the District Court, the Mediation Board had accepted jurisdiction and the parties were waiting assignment of a mediator, they wanted to have this unilateral change.

That theory can only be supported if we say ultimately that an employment at will or an area of working conditions outside the coverage of the current contract, the phrase working conditions is used in the statute and which Congress required the (Inaudible) to preserve during this procedure only means such things as are contractually covered.

In other words, carrier's argument and it is set forth in their briefs is that here the working conditions applicable to this particular dispute merely consisted of the carriers' right to change working conditions as it thought fit.

Now, we submit that that is a very sophistical approach to the count -- to the problem and we contend rather that working conditions are things which are in effect and which are being observed and have been observed from the employees' point of view.

The employee when he goes to work doesn't have an idea of his job as a set of things that management can do or can't do in the abstract, he's interested in where he goes to work and how much he's paid, those sort of things and there is a change certainly from his point view and from any realistic point of view, if all of a sudden, operating changes are made by management whether or not in the exercise of claimed rights under the agreement.

Justice Potter Stewart: Leaving more than claimed rights under the agreement in this particular case, aren't they Mr. Lyman, hadn't that.

As I understand it, there had been a minor dispute as to the meaning and application of the collective bargaining agreement with respect to management's making outlying work assignments.

That had been concluded against your position --

Mr. Richard R. Lyman: Yes, I would like to --

Justice Potter Stewart: It was decided by the -- by an Adjustment Board that under the existing collective bargaining agreement, management had the right to make outlying assignments.

So, this is just some claimed right as was decided by the (Voice Overlap).

Mr. Richard R. Lyman: I think that should be defined somewhat because it may enter into Your Honor's consideration of this matter.

I think there could well be a difference in a situation where something is specifically provided for in an agreement and a situation where something is simply management's right by default for the reason that the agreement doesn't cover the subject matter.

Mr. Shea remarked that the Special Board, boards award conclusively established that management was privileged to do this only in the sense that the Special Board held that there was no prohibition in the agreement against it.

The parties aren't bargaining.

There was no clause in the agreement that said from time to time, management may change the reporting points for these men.

Now, I think that brings me into the argument that Mr. Shea made at the conclusion about seniority and couldn't they go ahead and make the usual bumps, and furloughs and recalls and so forth with the agreement provided for if there was notice pending.

Of course, they could because the agreement specifically called for that and it set it out and that was an established working condition without any question.

But whether there's something in this notice or not -- something in this nether -- netherland of employment at will, managerial prerogatives, then the same consideration is (Inaudible) over to and I think that we can only have meaningful bargaining where management refrains from going at and doing whatever it wants to regardless of the fact that it is currently bargaining about whether it's going to do it.

Now, the contention has been made here that Section 2 (7) and Section 6 of the statute that are involved in this case.

It was further contended in the reply brief that we had conceded at section -- that there were four section, pardon me, four status quo sections in the Railway Labor Act; Section 2 (7), Section 6, Section 5 and Section 10.

Our position, of course, has been very clearly stated in our brief.

We contend Section 2 (7) is not a status quo provision at all.

It is simply a prohibition against changes of agreements unilaterally.

And it says that when there is a written agreement, a carrier and it speaks only in terms of the carrier because they are the ones that apply and administer the agreement and the only ones that have the power to change agreements unilaterally.

It says they can't change it unilaterally, they got to do it by the notice procedure of Section 6.

Now, that notice procedure in Section 6 in the first part of it where they talk about giving notice of changes in agreements in abiding rates of payrolls and working conditions, that is not really a status quo requirement.

It is again simply a statement of the mechanism by which you change agreements.

This notice procedure -- provision for arranging for conference within 10 days after the notice requirement of the conference be held within 30 days after the notice, but it's at the later part of Section 6 that you then get into the true status quo provisions in major disputes handling.

And there it says that while these things are going on, neither party may change rates of rules -- rates of payrolls or working conditions and it doesn't -- in the later part of that paragraph use the any reference to agreements.

Section 5, providing the status quo to be observed after Mediation Board takes over and after it's handled and after it has failed in its efforts.

That does not speak in terms of agreements at all.

In Section 10, the Emergency Board status quo provision say nothing about agreements and to speak in terms that are completely inconsistent with the theory that all this is limited to this thorough coverage of an existing contract.

Now, it's been suggested that perhaps we will have to read Section 2 (7) and Section 6 as meaning something separate and apart from Section 5 and Section 10 and that maybe, maybe we might be right in our interpretation of Sections 5 and 10 but something different in the way of a status quo should be required for Section 6.

This Court very recently in Brotherhood of Railroad Trainmen against Terminal Company, Jacksonville Terminal case that was decided early this year had an introductory description of the major disputes procedures in the Act which we think completely refutes any theory that these should be divided into two stages and that maybe the carrier could do what it wanted to do for a while, but then was it going to have to pull it hard and go back to the original status quo if we get into Section 5 and Section 10.

In that decision in the Terminal Company case, and I must apologize for not having the official paging but it's 22 Lawyers' Edition, page 354 in the Lawyer's Edition paging.

The Court concluded its description of those major disputes handling with this language.

“While the dispute is working its way through these stages, neither party may unilaterally alter the status quo, citing Sections 2 (7), 5 (1), 6 and 10.”

The Court clearly does not on the basis of their opinion contemplate any division in what is meant by a status quo.

It's a uniform sort of thing.

Justice John M. Harlan: What weight should be given to the Board's interpretation?

Mr. Richard R. Lyman: I think the legislative history which we've been criticized for our references on the basis that they refer only to Sections 5 and 10, but as I say, I think we must consider this whole status quo together and in view of that legislative history, the Mediation Board's interpretation is clearly unattainable.

I don't think that you have to accord controlling effect to the interpretations of administrative tribunal if those interpretations are preferably in conflict with the statutory scheme and language and in conflict with the very clear legislative history that we find in the Railway Labor Act of 1926.

We have referred to that legislative history in our brief commencing at page 12 and that language is just completely irreconcilable with any thought that status quo means just the terms of a contract that's currently existing.

At page -- at the bottom of page 12, top of page 13, I'm reading from Mr. Richberg's comments before the House Committee on Interstate and Foreign Commerce, he said, the thought was to include in the broadest way all the factors which contributed to what is commonly called the status quo.

The purposes that can preserve, unchanged all the conditions involved in the controversy until there's full opportunity for presidential investigation within 30-day report.

He further said and we quote this at the bottom of page 13, “it was the desire of those who attempted to work out an agreement on this to have a phrase here which would be broad enough so that in the ordinary interpretation of language in its natural meaning, it would be well understood what was intended.”

And then this is quite pertinent to our case too I believe, he goes on following the statement that I just read, with these comments.

“It was not the desire of either parties right in the Section of the Bill something that had not been written in anywhere else and that was an absolute prohibition and a compulsion against one party alone of the Bill.”

A question was raised as to strikes, this is not a one sided affair and then he went on to point out that the intent of management and labor which had concurred of course and agreed upon the draft to the 1926 Act which was presented to Congress currently.

Their purpose was to have status quo that applied to both parties not just one and of course, they couldn't have worked out any agreement among themselves.

What the Shore Line contends here is true in that what the Unions were giving up was the -- their most cherished right to strike and in exchange only got from the carrier a commitment that well it would do what it contracted to do and nothing else.

Justice Byron R. White: What do you think that committee reports (Inaudible)

Mr. Richard R. Lyman: I have been unable find anything helpful in the committee reports.

I think that --

Justice Byron R. White: These statements are different again upon the (Inaudible)

Mr. Richard R. Lyman: Yes, the hearings of witnesses.

Justice Byron R. White: Are you speaking to the (Inaudible) Richberg?

Mr. Richard R. Lyman: Mr. Richberg spoke for the labor unions and Mr. Thom spoke for the carriers.

Mr. Richberg put in practically all of the testimony on the status quo provision.

Mr. Thom --

Justice Byron R. White: Were they both testifying under the same bill?

Mr. Richard R. Lyman: Yes.

This was a bill that jointly --

Justice Byron R. White: Jointly drafted.

Mr. Richard R. Lyman: Was jointly drafted by railroad management and railroad labor.

Mr. Thom was designated as the representative before Congress of the railroad industry and Mr. Richberg was the representative of the Unions.

In other words, they were co-sponsors of the Bill.

Justice Byron R. White: Did Mr. Thom disagree with anything Mr. Richberg said?

Mr. Richard R. Lyman: No sir, he did not.

In fact, it was made clear to Congress by both Mr. Thom and Mr. Richberg that the joint support of this Bill was contingent upon the Congress accepting it as presented to Congress.

Neither side wanted Congress to change one sentence in the Bill and in fact, they said that this had been bargained long and hard and that each side had given up things in order to reach an agreement on a Bill.

The compulsion behind this joint effort I suppose was the fact that both management and labor were interested in preserving their right to bargain on a voluntary basis and the primary concern was to convince Congress that they did not need to have compulsory arbitration that they did not need to have Interstate Commerce Commission review of wages and that sort of thing and that -- and in order to convince Congress of that, they felt that they had to draft very strong status quo measures for the protection of the public against railroad strikes because that ultimately was Congress' primary interest in the Railway Labor Act in avoiding interruptions to commerce.

Justice Byron R. White: And why is there a difference between the Section 2 (7) and Section 6 as far status quo is concerned?

Mr. Richard R. Lyman: Section 2 (7) is not a status quo section.

Section 2 (7) accords, you might say, legal effect to collective bargaining agreements and in fact, it goes beyond that.

It imposes a criminal sanction under the Railway Labor Act of violation of Section 2 (7) is made a crime punishable under prosecution made by a United States Attorney.

Incidentally, it's not true although the Court in Pitney made this observation.

It's not true that a violation of Section 6 is a crime, but perhaps that I assume that observation was made because Courts have commonly attended to take the first half of Section 6 and treated as an extension of Section 2 (7) on this serving of notice.

So, that in many instances, you will find a Court talking about to 2 (6) when it's -- I mean, Section 6 when it's really 2 (7) that is involved and it is 2 (7) and 2 (7) only that was involved in Pitney.

There was no Section 6 notice extended in Pitney, but rather, the Union was trying to enjoin the trustees of the railroad from changing things without resorting to Section 6 under a notice procedure.

I think that the Williams case can hardly be considered determinative here both in its facts and the considerations before the Court.

Primarily, it involved the question of the railroad's obligations under the Fair Labor Standards Act.

I don't see in analyzing the facts where the railroad made any change in working conditions or wages.

The home porters received the same pay or more after the Act when went into effect as they had previously.

Before they just get their tips then the railroad realized that it have to comply with the Fair Labor Standards Act.

So, they said, well, if your tips don't make it up, then we'll give you enough above your tips to meet our obligation.

So, from the employee's point of view, there was no defect or change in their working conditions at all.

Counsel for petitioner has written to the Court advising that they were an error in the contention in the statement that the organization relied on Section 6.

Before I close, I would very much like to direct --

Justice Byron R. White: But there's a pretty square statement in Williams about the way the Court read Section 6?

Mr. Richard R. Lyman: There again, it may be that the Court had this sort of overlapping between Section 6 and 2 (7) in mind and not that -- the Terminal Company did not have to serve the Unions with the Section 6 notice in order to make this change in the arrangement for bookkeeping and the wages.

In any event, some two years after this change was made, the parties signed a collective bargaining agreement which did not even include the subject of wages.

Parties were clearly content to treat this not as a bargaining matter, but as an argument about what the Fair Labor Standards Act required and of course, in any event, that's not something that the parties could control by their bargaining statute of the United States, of course, takes proceedings over what's in the bargaining agreement.

Just last week Your Honors, the decision by the Court of Appeals for the Fifth Circuit came to my attention.

It was decided September 23, National Airlines against Machinists unofficially reported at 72 Labor Relations Reference Manual 2294 which I would like to direct the Court's attention to without commenting on it except for this comment, leading in hands to another case citation.

On two or three different occasions in the course of its opinion, the Fifth Circuit cited with approval the opinion of Mr. Justice Marshall then sitting on the Court of Appeals for the Second Circuit in the case of Rutland Railway Corporation against Brotherhood of Locomotive Engineers which is cited in all of the briefs here.

I particularly would like to direct the Court's attention to that dissenting opinion as rather complete statement in exposition of the position that we take in this case.

Chief Justice Warren E. Burger: Thank you, Mr. Lyman.

Mr. Shea, you have just one minute left.

Rebuttal of Francis M. Shea

Mr. Francis M. Shea: Unless the Court has questions --

Chief Justice Warren E. Burger: I think not.

The case is submitted.

Mr. Shea and Mr. Lyman, thank you for your submissions.