Brotherhood of Locomotive Engineers v. Chicago, Rock Island & Pacific Railroad Company/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

We all agree that Congress has ample power to regulate the number of employees used to man railroad trains operating in interstate commerce. Unlike the majority, however, I believe that Congress has exercised that power, and respectfully dissent from the Court's conclusion to the contrary.

The bargaining impasse which prompted the passage of Public Law 88-108 (77 Stat. 132) represented, in a sense, only the exposed top of a large iceberg. Lurking beneath the surface of the controversy were the twin problems of automation and technological unemployment. Congress was well aware of the developing conflict between innovation and job security. When President Kennedy sought a legislative solution to the pending crisis in the railroad industry, he reminded Congress that:

' * *  * this dispute over railroad work rules is part of a      much broader national problem. Unemployment, whether created     by so-called automation, by a shift of industry to new areas,      or by an overall shortage of market demand, is a major social      burden.

'This problem is particularly but not exclusively acute in     the railroad industry. Forty percent fewer employees than were employed at the beginning of this decade     now handle substantially the same volume of rail traffic. The     rapid replacement of steam locomotives by diesel engines for      97 percent of all freight tonnage has confronted many      firemen, who have spent much of their career in this work,      with the unpleasant prospect of human obsolescence. * *  * The      Presidential Commission was established in part, it said,      because of the need to close the gap between technology and      work.'

The Presidential Railroad Commission to which President Kennedy referred was established by President Eisenhower's order in 1960, and was charged with investigating the dispute which arose out of the railroads' proposed elimination of firemen on diesel engines, and the reduction of the number of other crew members, in freight and yard service. After an extensive study, the Commission issued its report containing detailed findings on all aspects of the dispute. The Commission's recommendations included the elimination of firemen on diesels in freight service and the reduction of the number of brakemen and switchmen. It recommended financial benefits for those separated from service.

This Presidential Railroad Commission was well aware that, however, desirable might be a nationwide solution to the problem, the continued existence of state 'full crew' laws made this impossible:

'(M)ost of the legislation of this kind was enacted prior to     1920. These laws apparently fail to envision modern railroad     operations. We feel that our recommendations with respect to     this issue should have nationwide application. We recognize     that there will be difficulty in applying the rule recommended by      us in States where 'full crew' laws have been enacted. How     the restriction of those laws may be lifted, however, is a      matter which goes beyond our charge.'

Then came Public Law 88-108, § 3 of which empowers the Board to 'resolve the matters on which the parties were not in agreement' and to make a binding award which 'shall constitute a complete and final disposition of the * *  * issues.' Section 7(a) lays down standards for the Board:

(1) '(T)he effect of the proposed award upon adequate and safe transportation service';

(2) '(T)he effect of the proposed award upon * *  * the interests of the carrier and employees affected'; and

(3) '(D)ue consideration to the narrowing of the areas of disagreement which has been accomplished in bargaining and mediation.'

Today the Court concludes that Congress sought only to shear off the visible portion of the iceberg, leaving the continued existence of state 'full crew' laws as a bar to the resolution of these matters.

That the state statutes in question conflict with the federal arbitration awards is plain. Congress directed the National Arbitration Board to resolve the dispute as to the necessity of firemen on diesel freights and as to the minimum size of train and switching crews. The Board has declared that, in general, firemen are not to be required. And through local boards, the number of brakemen, switchmen, and helpers to be used in various operations is fixed. These state laws, however, compel the use of firemen in virtually all interstate operations, and fix the size of train crews at levels usually exceeding those fixed by the local awards. States lacking such laws are, in light of the Court's decision, free to enact them and thereby, in effect, imperil Public Law 88-108 and the arbitration awards made under it. This Court has held that a state statute must fall in the face of an inconsistent provision in a collective bargaining agreement negotiated pursuant to the command of federal law, Local 24 of Intern. Broth. of Teamsters, Chauffuers, Warehousemen and Helpers of America, AFL-CIO Union v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312, even though Congress did not prescribe the particular terms of the agreement. And see State of California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed.2d 1034. We have here something more than collective bargaining agreements. These arbitration awards are binding directives, resolving a labor-management dispute, issued under the direction and authority of Congress.

The problems submitted to the Arbitration Board concerned primarily two central issues: (1) continued use of firemen on diesel-electric or electric locomotives which do not use steam power, and on which the work of firing boilers need not be performed; (2) the makeup or 'consist' of train service crews in road and yard. These are matters recognized by the Board as governed in some States 'by statute or administrative decision.' Indeed, a resolution of them in many situations might involve overriding or disregarding conflicting local regulations. Any realistic view of the scope and nature of the impasse the parties had reached would necessarily endow the Board with power to resolve conflicts between what it deemed to be the desirable national policy on the one hand and conflicting state laws on the other.

The issues were far-reaching; they included questions in the realm of economics, of railroad technology, and of sociology. This was a controversy that years of collective bargaining, study, informed analysis, persuasion, and debate had not been able to resolve. The Board's seven members held 29 days of hearings, received the testimony of more than 40 witnesses recorded in nearly 5,000 pages of transcript, examined more than 200 documentary exhibits, and made inspection trips to four railroad yards in the Chicago area. Its award was concurred in by the two carrier members and dissented from by the labor members. The opinion of the neutral members of the Board details the conclusions the panel reached. It states, as to the question of firemen, that:

'although we think it clear that firemen are presently     performing useful services, we agree with the (Presidential Railroad) Commission 'that firemen-helpers are      not so essential for the safe and efficient operation of road      freight and yard diesels that there should continue to be      either a national rule or local rules requiring their      assignment on all such diesels."

The Board found, in respect to the other members of the train crew, that 'the consist of crews necessary to assure safety and to prevent undue workloads must be determined primarily by local conditions. A national prescription of crew size would be wholly unrealistic.' The Board established procedures for local arbitration of these issues. And, the Board added,

'It is clear from the evidence before us that the myriad of     local arrangements has led to numerous inconsistencies in the      manning of crews. It is equally clear that some of the     existing rules, originating as they did more than a      half-century ago, are anachronistic and do not reflect the      present state of railroad technology and operating      conditions.' The Board's concern with safety is apparent from a reading of the neutral members' opinion. As that opinion puts it:

'It may be fairly stated that concern with safety has     pervaded this entire proceeding. It was apparent in the     presentations and arguments by all the organizations and by      the carriers, and was further emphasized by the inquiries      which members of the Board directed to witnesses and      counsel.'

We are in no position, of course, to pass judgment on the work of the Arbitration Board, nor is it our function to do so. But it is apparent that this panel had the power and the tools to resolve the controversy. Its award constitutes a national solution to the question of firemen and establishes the procedures, already utilized in respect to these railroads operating in Arkansas, for resolution of the crew consist issue.

I conclude that the effect of Public Law 88-108 and the awards made pursuant to it was to supersede state 'full crew' legislation. Of course, were the intent of Congress shown to be otherwise, that would be dispositive. Unlike the majority, I do not think that the bits and pieces of legislative debate cited in the Court's opinion can be regarded as a controlling statement of legislative intent. If anything, the legislative history of Public Law 88-108 suggests that Congress refused to accept the suggestion that, if it wished to avoid the supersession of state 'full crew' laws, it should expressly say so.

The majority points to statements made by Congressman Harris, Chairman of the House Committee on Interstate and Foreign Commerce, to the effect that the bill would have no effect on state laws. But when he stated his conclusion on the floor of the House, he was immediately challenged by Congressman Smith, Chairman of the Rules Committee. Under the circumstances, it seems inappropriate to regard Congressman Harris' views as wholly authoritative. The testimony of Secretary Wirtz, also referred to by the Court, was followed by a legal memorandum submitted by the Secretary. This memorandum suggests that the Interstate Commerce Commission would, under the proposed legislation, have the power to supersede state legislation, and that to avoid this the Commission might expressly provide to the contrary in its orders.

The absence of an express disclaimer of intent to supersede state laws was called to the attention of Congress. Testifying before the House Committee, Secretary Wirtz did so. The General Counsel of the Interstate Commerce Commission told the Committee that if 'the Congress wants to be doubly certain, for example, that no such legal consequence follows it could be done' by expressly stating that no supersession is intended. To this the Chairman responded:

'I appreciate your very frank response, because I think it     has sort of been left up in the air as to what the courts might do. There has been expression as to what is     intended and what some might have thought but I think we also      have to provide clarity wherever it is necessary in order      that the Commission may have guidance in its effort to carry      out the responsibility should it so be directed.'

The Commission's General Counsel testified to the same effect before the Senate Commerce Committee:

'If it were desired to make that absolutely certain, if that     is the desire of Congress, it can be done by just a phrase. *     *  * '

Despite this advice, Congress did not include a 'saving' clause.

Congress was faced, at the time it enacted Public Law 88-108, with more than the threat of a crippling strike. It had before it the recommendations of the Presidential Railroad Commission. It had been told by the President of the seriousness of the problem of technological unemployment arising from automation. Congress responded by establishing a procedure for resolution of the railroad industry's pressing economic problem with ample consideration of the 'safety' issue. It is inconceivable that Congress intended to solve only part of the problem when it directed the Arbitration Board to make a binding award which 'shall constitute a complete and final disposition of the * *  * issues.'

In sum, I agree with District Court that, 'There is nothing in the Act itself or in the history that indicates that the Congress intended to resolve this problem of national magnitude by legislation that would be effective in only some 30 states that do not regulate crew consists by law or administrative regulation.' 239 F.Supp. 1, 23.

Although automation was a prime concern of the President and the Congress, the Court holds that the lawmakers cloaked their concern in such weasellike words as not to reach the roots of the problem. With all respect, I dissent.