Transportation-Communication Employees Union v. Union Pacific Railroad Company/Dissent Fortas

Mr. Justice FORTAS, with whom THE CHIEF JUSTICE joins, dissenting.

This case involves a dispute between the telegraphers' union and a railroad as to whether the union's members, under its collective bargaining agreement with the carrier, were entitled to certain jobs (or compensatory payments in lieu thereof) which the carrier had unilaterally allotted to another union, the clerks. The telegraphers complained to the Railroad Adjustment Board. The Board held that, under the contract between the telegraphers and the railroad, the telegraphers' members had a right to the jobs, and it ordered the carrier to make compensatory payments to the senior telegrapher idled by its action.

The Court now holds that such an award will not be enforced because the clerks' union was not a party to the proceeding, and because the Board merely adjudicated the rights of the telegraphers and did not determine whether the clerks were entitled to the jobs instead. The Court's opinion states that the jobs in question must belong to one union or the other, and that it is the Board's duty to decide which of the two unions is entitled to the jobs.

I dissent. The Board acted as the statute commands. As I shall discuss, its power is limited to adjudications of grievances and contract disputes between a union and a railroad. It cannot compel conversion of a complaint proceeding between a union and a railroad into a three-party proceeding to 'settle the entire dispute.' Certainly the courts should not refuse to enforce its award because the Board has failed to do something which the statute does not require or empower it to do. I also emphatically submit that this Court should neither devise nor impose upon the Board or upon management and labor, the proposition, making its debut in this case in the field of railway labor law, that 'only one union can be assigned this new job.' There is nothing in the statute or precedents that permits or justifies this peremptory judicial foray into other people's business.

The basis of the Court's holding cannot be found in any provision of the Railway Labor Act. 44 Stat. 577 (1926), as amended, 45 U.S.C. §§ 151-188 (as amended by Act of June 20, 1966, 80 Stat. 208). The Court adverts to § 2 of the Act, which sets forth the purposes of the Railway Labor Act (including, of course, provisions relating to the National Mediation Board and provisions creating general duties and rights of carriers and employees-none of which defines the powers of the Adjustment Board). Section 2 sets forth a number of purposes, among which appears the phrase quoted in part by the Court: '(4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.' To the extent to which these provisions relate specifically to the purposes of the Adjustment Board, they do not define its powers. The Board's powers are specifically defined and limited in § 3 First (i) of the Act. The Court begs the question by giving to the phrase 'settlement of all disputes' a meaning which disregards both the qualifying language of § 2 itself, and the specific enumeration of powers in § 3 First (i).

Ultimately, however, the Court appears to rest its decision not upon the Act, but upon a 'principle' which it now creates. That proposition-unknown to railway labor law until this day-is that, whatever the parties' contract provides, the Board must observe and enforce the rule that 'only one union can be assigned this new job.' The Court holds that even if 'the railroad's agreement with the nonassigned union obligates the railroad to pay it for idleness attributable to such job elimination due to automation,' the Board cannot conclude 'that both unions can, under their separate agreements, have the right to perform the new job * *  * ' It is because of this controlling principle that the Court asserts it was error for the Board to make an award unless the award would bind the clerks' union as well. Throughout its opinion the Court stresses that there is now but one 'job' and that only one union's member can have 'the right to the job.' Obviously only one person can actually do the job; but the Board held only that a telegrapher was entitled to be paid for the job. In fact, the Court is-without articulation its premise-assuming that featherbedding is forbidden by natural law or some other type of mandate that overrides contract, and that it is the Board's duty to enforce the prohibition. From this novel premise it derives its conclusion that the award was not enforceable.

There is no basis in the Railway Labor Act for either of the Court's propositions: that both unions must be parties to a proceeding initiated by one of them, or that the Board must 'settle the entire dispute' by determining that one or the other (but not both) of the unions has title to the jobs. The Court's predilection for one job, one man may be sensible, but it may also be contrary to contract; and I know of no provision in the Constitution or statutes or decided cases that compels it. There is no basis for this Court to dictate-and that is what it is here doing-that a collective bargaining contract may not be enforced in accordance with its terms but must be subordinated to a one job, one man theory. This Court cannot and should not impose its own views. The anti-featherbedding principle may or may not be an admirable theory, depending upon one's preconceptions and point of view. It does not now exist in the railway labor field. And I respectfully suggest that this Court is in no position to assess the desirability of its judicial innovation. If featherbedding in the railroad industry is to be declared unlawful, it should not be this Court which does it. To say the least, the problems are too esoteric and too volatile to be the subject of judicial edict. They should be left to the parties and the legislature. Certainly, this Court should not invade the integrity of collective bargaining contracts to legislate the result it considers desirable or 'orderly.'

Only last Term this Court considered one of the peculiar institutions of railway labor, and sustained the validity of state 'full-crew' statutes. These statutes, in direct contrast to the one job, one man principle that the Court today assumes, have the effect sometimes of requireing railroads to hire one man, no job. The Court sustained these statutes against claims, among others, that Congress in the Railway Labor Act had preempted the field. Brotherhood of Locomotive Engineers v. Chicago, R.I. & P.R. Co., 382 U.S. 423, 86 S.Ct. 594, 15 L.Ed.2d 501 (1966). Such a 'sensitive and touchy problem' (id., 382 U.S. at 430, 86 S.Ct. at 597), the Court wisely decided, was to be left to collective bargaining and the States in the absence of a clear congressional command. It is hard to comprehend the Engineers case if, as the Court now finds, the Railway Labor Act itself (presumably ever since its enactment in 1926) or other overriding law forbids what 'full-crew' laws command. Certainly, the present problem, if it is a different one at all, is equally 'sensitive and touchy,' and the Court has yet to disclose the congressional authority dictating contrary treatment.

Prior decisions of this Court are of no assistance. The Court first refers to Order of Railway Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318 (1946). The Court candidly states that 'we did not precisely decide there that the Board must bring before it all unions claiming the same jobs for their members * *  * .' All that the Court decided in Pitney was that a dispute between two unions claiming a right to certain jobs had first to be determined by the Railroad Adjustment Board, and could not be decided initially by a bankruptcy court in reorganization proceedings. The passage from Pitney quoted by the Court merely states that the decision of the issue-the interpretation of the conductors' collective bargaining contract-had to be made in light of usage, practice and custom, and of other agreements between the railroad and the trainmen. Indeed, the quotation from Pitney recalls the basic principle that the Court here ignores: that in the 'intricate and technical' field of railway labor relations, no court, including this Court, should displace the agency which Congress has vested with authority-certainly not with the drastic imposition of a mandate to eliminate featherbedding.

It is, however, essential to note that there is absolutely no reason to believe that the Board failed to follow Pitney here. Both the majority and concurring opinions assume as fact that the Adjustment Board violated the duty declared in Pitney to construe the telegraphers' contract in light of the clerks' contract and railroad usage, practice and custom. Thus the majority characterizes the Board's proceedings in this case as one 'in which only (the telegraphers') * *  * contract with the employer (was) *  *  * considered.' The concurrence asserts that 'Until now the Adjustment Board has dealt with the claim of the telegraphers as though it were totally unrelated to the claim of the clerks,' and has used 'a simple bilateral contract analysis' which prevented it from arriving at 'an informed and fair understanding of the dispute between the petitioner and respondent.' I am unable to find in the record before this Court any support for these suggestions that the Adjustment Board failed to perform its duty by refusing to consider the clerks' contract for its evidentiary value.

The award of the Board makes clear that both practice and usage, and the possibly conflicting contractual claim of the clerks to the job in question, and the fact that clerks were currently performing the job, were considered by the Board. As to usage, the Board itself observed, with respect to a different aspect of its award, that 'there is unanimity upon the proposition that where, as here, the Scope Rule lists positions instead of delineating work, it is necessary to look to practice and custom to determine the work which is exclusively reserved by the Scope Rule to persons covered by the Agreement.'

The Board's analysis of the substance of the dispute shows its central awareness of the clerks' claim to the jobs. The machines involved in this case are IBM teletype printers and receivers. They perform automatically the function of transmitting and receiving teletype messages between on-line railroad offices. The Board found that prior to the installation of these machines, telegraphers had exclusively performed this transmitting and receiving function as teletype operators and printer operators. However, apparently for its own convenience, since other machines in its IBM-complex were operated by clerks, the railroad unilaterally assigned the operation of the teletype printers and receivers to members of the clerks' union. The Board found that the work involved in operating the new machines had 'been performed in the past by telegraphers and not by clerks.'

Furthermore, even if the majority and concurring opinions were correct in stating that the Board failed to take the proper broad view of its function in construing the contract before it, the remedy, of course, would be to remand to the Board for a second proceeding to construe this contract. Instead, the Court remands for an entirely new proceeding to construe not only the contract brought before the Board in this case, but also the contract of a third party which has never invoked the Board's jurisdiction, which is not a party and which can be compelled to become a party only by this Court's gloss on the statute, and in addition to apply in this new proceeding a novel substantive principle forbidding featherbedding.

Actually, the railroad's complaint is not that the Board refused to consider the clerks' contract, or relevant usage and practice. It is that the Board did not decide matters outside the issues submitted to it by the parties and the statute. And despite suggestions that Pitney was violated, the Court's real point-as it is respondent's-is that the Board should, in this proceeding between the telegraphers' union and the carrier, also decide the rights of the clerks' union-and should do so by awarding the jobs to one union or the other.

The Court also refers to Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795 (1950). This case is of no assistance whatever. The railroad filed an action in a state court for a declaratory judgment as to which of two unions was entitled under its contract with the railroad to have its members perform disputed jobs. Both unions were joined as defendants. This Court again held that the courts should not interpret the unions' contracts because this question is for determination by the Adjustment Board, 'a congressionally designated agency peculiarly competent in this field.' 339 U.S. at 244, 70 S.Ct. at 579.

There is no doubt of the soundness of either Pitney or Slocum. The Railroad Adjustment Board does have exclusive, primary jurisdiction to determine contract disputes between a union and a carrier. And the Board must do so in light of 'evidence as to usage, practice and custom' and of allegedly overlapping contracts with other unions. But the Board's authority is specific and limited. The Railway Labor Act narrowly defines the Adjustment Board's power. The Board hears a dispute (a) 'between an employee or group of employees and a carrier or carriers,' (b) 'growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions,' (c) if the dispute is referred to it 'by petition of the parties or by either party.' It renders 'awards,' which are 'final and binding upon both parties to the dispute.' That is the sum total of powers over disputes vested in the Railroad Adjustment Board.

The Railroad Adjustment Board is quite a different agency from the National Labor Relations Board, from whose somewhat analogous role in other industries the Court appears to derive some comfort. The NLRB has broad jurisdiction over 'unfair labor practices.' Section 10(k) of the National Labor Relations Act (49 Stat. 453, as amended, 61 Stat. 146, 29 U.S.C. § 160(k)) provides that whenever it is charged that any person has engaged in the unfair labor practice of a strike to enforce a union's demand in a jurisdictional controversy with another union, the NLRB is 'empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen.' Under this section, this Court has in the past required the NLRB to take action of the kind which, in the present case, it for the first time requires of the Railroad Adjustment Board. The Court has held that the NLRB cannot obtain enforcement of a cease-and-desist order which determines only that the respondent union is not entitled to the work in dispute under its certification or collective bargaining agreement. The Court required that the Board go further and decide which of the two contending unions is entitled to the work and 'then specifically to award such tasks in accordance with its decision.' National Labor Relations Board v. Radio & Television Broadcast Engineers Union, 364 U.S. 573, 586, 81 S.Ct. 330, 338, 5 L.Ed.2d 302 (1961). The difficulty, however, is that § 10(k) has no counterpart in the Railway Labor Act. No such power exists in the Railroad Adjustment Board, nor does the statute impose any comparable duty upon it.

The Board is essentially a permanent bilateral arbitration institution created by statute for settling disputes arising in the context of an established contractual relationship. Its nature is illustrated by the provisions of the Act relating to awards made by the Board. These are couched in terms which assume a grievance or claim asserted by an employee or a union against a carrier. The provisions refer only to carriers, not to other unions. For example, § 3 First (o) states that 'In case of an award * *  * in favor of petitioner *  *  * the Board shall make an order, directed to the carrier, to make the award effective *  *  * ' (Italics added.) The only provision in the Act for enforcement of awards is cast in terms of the carrier: 'If a carrier does not comply with an order *  *  * ' § 3 First (p). (Italics added.) Nowhere in the Act is there a syllable which would indicate the intention that the Board is empowered to make awards as between the claims of contending unions. The Act is as clear as can be that the Adjustment Board's function is to act in disputes between a carrier and a union or employee, to adjudicate grievances of employees or their organizations against the carriers, and to pass upon controversies as to the meaning of the collective bargaining agreement between a carrier and a union. The Board is not comparable in scope, function, capability or authority to the National Labor Relations Board. It has no authority over 'unfair labor practices' in general. It has no power comparable to that given the NLRB by s 10(k) of the National Labor Relations Act to 'hear and determine' jurisdictional disputes; it may make a decision affecting a jurisdictional dispute, but only if it comes to the Board in the limited and constricted form of a dispute between a union and a carrier as to the meaning and application of their agreement.

The Act does not give the Board power to compel a union which is affected by a contract dispute between another union and a carrier to participate in or be bound by the proceeding. This is '(o)ne thing (that) is unquestioned' according to the opinion of this Court in Whitehouse v. Illinois Cent. R. Co., 349 U.S. 366, 372, 75 S.Ct. 845, 849, 99 L.Ed. 1155 (1955). In that case, a dispute had arisen between the telegraphers and the respondent railroad because the railroad employed members of the clerks' union for jobs which the telegraphers claimed should have been allotted to its members under its collective bargaining agreement with the railroad. In due course, the telegraphers submitted the dispute to the Railroad Adjustment Board. Before a decision was announced by the Board, the railroad brought an action in the United States District Court to compel the Board to notify the clerks, asserting that otherwise the railroad might have to face a similar claim from the clerks. This Court held that the action was premature; but it pointed out that 'One thing is unquestioned. Were notice given to Clerks they could be indifferent to it; they would be within their legal rights to refuse to participate in the present proceeding.' 349 U.S. at 372, 75 S.Ct. at 849. It said, flatly, that 'The Board has jurisdiction over the only necessary parties to the proceeding (i.e., the telegraphers' union) and over the subject matter.' Id., 349 U.S. at 373, 75 S.Ct. at 850. In substance, the Court in the present case repudiates Whitehouse for reasons, not of law, but of assumed practical administrative symmetry and its own conceptions as to what is fair in a complex industrial situation. Labor relations are not susceptible of reduction to such simplicities; and with all deference this Court should fear to tread this path.

This is much more than a procedural matter. It is even more than whether the clerks can be subjected to a proceeding to which they assert they are strangers and to which Congress did not intend that they be subjected. The Court today rules that whatever the collective bargaining agreements provide-regardless of their provisions, and of the understanding of the parties-the Board must award the disputed work to one union or the other, and that it cannot provide a remedy to members of both, even if their contracts should so demand.

This may sound eminently reasonable at first hearing. But it may be both unfair and highly disruptive. Certainly, there is not a line, a word, in the Railway Labor Act which supports it. Let us suppose, for example, in the present situation that each IBM machine required one operator, and that the machine and the one operator performed both clerical and telegraphic services, displacing a telegrapher and a clerk. I know of absolutely no warrant for the Court's statement that the Board must 'settle the entire dispute' by determining 'which union has the right to the job' even if 'both unions * *  * under their separate agreements, have the right to perform the new job. * *  * ' On the contrary, regardless of what the clerks' contract provides, if the telegraphers' contract also establishes their right to the job which is entirely conceivable-the telegraphers are entitled to compensation. It is entirely possible that since the Board, as I have discussed, is limited to construing and applying the agreements between each union and the carrier, it may indeed find that it has to require payment to members of one union for jobs actually performed by members of the other union. In that event, a sensible remedy would have to await negotiation between the union or unions and the carrier to eliminate the overlap and featherbedding. But I repeat-the Board's task is to construe and apply the agreements, not to rewrite them, even to eliminate overlaps and duplications; nor is it the function of this Court to add new powers to those vested in the Board by Congress, or to impose upon the intricate and technical contracts of railway labor a new and unauthorized substantive principle.

I would reverse and remand for further proceedings in the District Court, consistent with the views expressed herein, with respect to the telegraphers' prayer for enforcement of the Board's award.