Proposal to Establish a Mexican-American Legal Defense and Education Fund

    I J NSTAL I
t;

v.

OTHf’RHOOO; 
El  AL

R E C O R D
AND

B R I E F S











BRIEF AND A P PEN D IX FOR APPELLANT

I n T he

United States Circuit Court of Appeals
FOR THE FOURTH CIRCUIT 

O ctobee T e e m , 1943

No. 5125

T om  T u n stall

Appellant
v.

B rotherhood  of L ocomotive F irem en  & E n g in e m e n , O cean 
L odge N o. 76, P ort N orfolk  L odge N o. 775, W. M. 
M u n d e n  and N orfolk  S o u th er n  R a ilw a y  C o m pan y

Appellees

APPEAL FROM TH E  DISTRICT COURT OF T H E  UNITED STATES FOR 

TH E EASTERN DISTRICT OF VIRGINIA, NORFOLK DIVISION

BRIEF FOR APPELLANT

J oseph  C. W addy 
615 F Street Northwest 
Washington, D. C.

C harles H . H ouston  
615 F Street, Northwest 
Washington, D. C.

O liver W. H ill  
Consolidated Bank Building 
Richmond, Ya.

Attorneys for Appellant.

Printed by Law  Reporter Printing Co.. 518 Fifth St., W ashington, D. C.





IN D E X

Index to Brief

Statement of Case—  --------  ----------------------------------- 1

Question Involved-------------------------------------------------------- 2

Facts - ____________ ___ ——------------------------------------------ 2

Assignment of E rror  ------------------------------------------------- 8

Outline of Argument....................—-------------------------------  8

Argument___.____. ------------ -— -— —------------------------------  9

I. The Railway Labor Act of 1934 Created En­
forceable Rights and Duties Cognizable in a 
Federal Court and Where These Rights and 
Duties Have Not Been Spelled Out in the Act 
Itself the Federal Courts Have Jurisdiction to 
Interpret the Act to Determine Whether the 
Right Sought to Be Protected Inheres in the 
A c t _____ :____________________________________  9

PAGE

II. The Instant Case Presents a Situation Where 
the Interpretation of the Railway Labor Act 
Cannot Be Avoided --------------------------------------- 12

A. Under Section 2-Fourth of the Railway 
Labor Act “ the representative of the 
craft or class”  stands in a fiduciary re­
lationship to each individual employee 
in the craft or class________________ 12

1. The.“ representative”  must rep­
resent the members of the craft 
or class as a whole, and cannot 
discriminate against individual
or minority members _______  13

2. The “ re p re se n ta t iv e ”  owes
plaintiff and the minority Negro 
firemen of the craft or class the 
duty of notice, and opportunity 
to be heard and to vote on mat­
ters affecting their interests__ _ 16



III. The Construction of Section 2-Fourth of the
Railway Labor Act as to the Rights, Powers 
and Duties of “ the Representative of the Craft 
or Class”  Involves a Suit Under a Law Regu­
lating Commerce_____________________________  18

IV. If the Railway Labor Act Grants the “ Repre­
sentative”  the Unbridled Power to Destroy the 
Minority’s Right to Earn a Living It Is in V io­
lation of the Fifth Amendment and Therefore 
Unconstitutional _____________________________  21

A. The right of an employee to pursue his 
calling under the Railway Labor Act Is 
a property right_______________________  21

V. The Instant Case Is Distinguishable From the 
Ed Teague Case_______ :______________________  23

Conclusion____________________________________________  28

Index to Appendix

Complaint____________________________________________  1
Exhibit I _____________________________________________  14
Exhibit I I ____________________________________________  16
Exhibit I I I ________________________________________    20
Affidavit of Tom Tunstall______________________________ 24
Motion of Brotherhood to Dismiss Under Rule 12(b)____  25
Affidavit of Carl J. Goff_______________________________  27
Motion of Port Norfolk Lodge No. 775 to Dismiss Under 

Rule 12(b) _________________________________________  30
Motion of W. M. Munden to Dismiss Under Rule 12(h)-— 31
Motion of Ocean Lodge No. 76 to Dismiss and Quash Pur­

ported Service of Summons Under Rule 12(b)________  32
Motion of Norfolk Southern Railway Company to Dismiss 34
Opinion ______________________________________________  36
Decree of Dismissal___________________________________  49

[i INDEX TO BRIEF
PAGE



Citations of Authorities 111

95 American Law Reports 10 ----------------------------------------  15
Asso. of Rock Island, etc., Employees v. Lowden,

15 Supp. 176________________________________________  20
Atlantic Coast Line Railway v. Pope, 119 F. (2d) 39— 12, 27
Brand v. Pa. R. Co., 22 F. Supp.569------------------------  11, 22
Brotherhood of Railroad Trainmen v. National Media­

tion Board, 88 F. (2d) 757-----------------------------  10, 11, 18
Brotherhood of Railway & Steamship Clerks v. Nash­

ville, C. & St. L. R. Co., 94 F. (2d) 97_________________  10
Brotherhood of Railway & Steamship Clerks v. Texas &

N. 0. R. Co., 24 F. (2d) 426_________________________  10
Cameron v. International Alliance, 118 N. J. Eq. 11 14, 17
Carter v. Carter Coal Co., 298 U. S. 238 ------------------------  22
Cook v. Des Moines Union R. Co., 16 F. Supp. 810---------  10
Cross Mountain Coal Co. v. Ault, 157 Tenn. 461--------------  16
Estes v. Union Terminal Co., 89 F. (2d) 768 ------------ 16, 21
Gully v. First National Bank, 299 U. S. 109_____ 18, 24, 26
Ledford v. Chicago, M. & St. P. R. Co.,

298111. App. 298________ ________________________  15, 22
McNally v. Reynolds, 7 F. Supp. 112___________________  14
Malone v. Gardner, 62 F. (2d) 15______________________  19
Moore v. Illinois Central, 112 F. (2d) 959, 312 U. S. 630 ... 12 
Nashville & St. L. R. Co. v. Railway Employees Dept.,

93 F. (2d) 340________________ ___________________ 10, 18
Nord v. Griffin, 86 F. (2d) 481__________________ 11, 16, 22
Piercy v. L. & N. R. Co., 198 Ky. 477________________  14, 22
Railroad Company v. Miss., 102 U. S. 135 ______________  20
Railway Employees Co-Op A ss ’n v. A. B. & C. R. Co.,

22 F.' Supp. 5i0______________________________________  11
Rentschler v. Mo. Pac. R. Co., 126 Neh. 493_____________  16
System Federation No. 40 v. Virginian R. Co., 11F. Supp.

621, 84 F. (2d) 641, 300 II. S. 515__________  9, 10, 12, 27
Teague v. Brotherhood of Locomotive Firemen &

Enginemen, 127 F. (2d) 53 _____________________  23, 24
The Fair v. Kohler Die and Specialty Co.,

228 U. S. 2 2 _____________________________________  20, 26
Virginian Railway Co. v. System Federation No. 40,

300 U. S. 515 (supra) __________________________  16, 17
Yazoo & M. V. R. Co. v. Webb, 64 F. (2d) 902 ___________  14
Yazoo & M. V. R. Co. v. Sideboard, 161 Miss. 4______  14, 15
Young & Jones v. Hiawatha Gin & Mfg. Co.,

17 F. (2d) 193_______________________________________ 21

PAGE



IV Statutes
PAGE

Fifth Amendment _--- ----------------------------- ---------------  21, 22
Railway Labor Act, June 21, 1934, Chap. 691, 48 Stat.

1185 (45 U: S. C. Chap. 8 )____________________________ 2
U. S. C., Title 28, Sec. 41(8)_____________________1- App. 1

Miscellaneous

Hughes, Federal Practice, Vol. 3, Sec. 1608------------------ — 21
National Mediation Board, First Annual Report---- :------- 15
Southerland, Statutory Construction, 2d Ed., Yol. I,

See, 83 ______________________________________________  18



I n T he

United States Circuit Court of Appeals
FOR THE FOURTH CIRCUIT

O ctober T e r m , 1943

No. 5125

T om T u n stall  
Plaintiff-Appellant

v.
B rotherhood  oe L ocomotive F ir em en  & E n g in e m e n , et  a l . 

Defendants-Appellees

BRIEF FOR PLAIN TIFF-APPELLAN T  

STATEM ENT OF CASE

Plaintiff-appellant appeals from a final decree of the 
United States District Court for the Eastern District of 
Virginia, Norfolk Division (A. 49) dismissing his Com­
plaint (A. 1) on motions of the defendants-appellees (A. 
25, 30, 31, 32, 33) solely on the ground of no Federal juris­
diction (A. 50).

The gravamen of plaintiff’s Complaint was the failure and 
refusal of the defendant Brotherhood of Locomotive Fire­
men & Enginemen,: the representative under the Railway 
Labor .Act of the craf t or .class, of locomotive firemen em- 
ploycd.by': the. Norfolk Southern: Rail way Company,' to rep: 
resent plaintiff and. the .other Negro Locomotive firemen so 
employed impartially and in good faith; thereby causing 
damages to plaintiff and the other Negro locomotive firemen.



2

QUESTION INVOLVED

The sole question involved on appeal is whether a Federal 
Court has jurisdiction to determine the relative rights and 
duties arising under the Railway Labor Act as amended 
June, 1934, 48 Stat. 1185, U. S. C., Title 45, Chap. 8, between 
the representative chosen pursuant to said Act by the major­
ity of a craft or class of railroad employees and the minority 
members of the craft or class.

Since none of the defendants-appellees answered but 
moved to dismiss all of the material allegations of the Com­
plaint must be taken as true.

FACTS

The material facts as set out in the Complaint are as fol­
lows :

Plaintiff-Appellant, Tom Tunstall, is a Negro citizen of 
the United States and of the State of Virginia, and is a 
locomotive fireman employed by the Norfolk Southern Rail­
way Company. The action was brought on behalf of himself 
and the other Negro locomotive firemen similarly situated. 
Under the Railway Labor Act as amended in 1934, 48 Stat. 
1185, U. S. C. Title 45, Chap. 8, the majority of a craft or 
class has the right to determine the representative of the 
entire craft or class for the purposes of collective bargaining 
under the Act (A. 6). Locomotive firemen constitute one 
of the crafts or classes of employees employed on the Norfolk 
Southern Railway (A. 4, 6). Negro locomotive firemen con­
stitute the minority of the craft of locomotive firemen em­
ployed on the defendant Railroad; white locomotive firemen, 
all of whom are members of the defendant Brotherhood, 
constitute the majority of the craft of locomotive firemen so 
employed. (A. 6). Pursuant to the provisions of the Rail­
way Labor Act aforesaid the white majority of the locomo- 
th e firemen have chosen the defendant Brotherhood of Loco­
motive 5 iremen & Enginemen as the representative of the



3

entire craft or class for the purposes of the Act (A. 6). 
By constitutional provision, ritual and practice the defend­
ant Brotherhood restricts its membership to white locomo­
tive firemen and enginemen; plaintiff and the other Negro 
locomotive firemen being escluded therefrom solely because 
of race (A. 6).

Plaintiff alleged that the defendant Brotherhood, having 
been chosen as the representative of the entire craft or class 
under the Bailway Labor Act aforesaid and having accepted 
that position, was and is under a duty under said Act to 
represent him and the other members of his class fairly and 
impartially and in good faith; to give them reasonable no­
tice, opportunity to be heard and a chance to vote on any 
action adverse to their interests proposed by it; to make 
prompt and full disclosure of all actions taken by it affecting 
their interests in any way, and to refrain from using its po­
sition as their statutory representative to discriminate 
against them in favor of itself and its members and from 
destroying their job assignments and other rights (A. 7). 
Nevertheless, in violation of its obligations and duties the 
defendant Brotherhood has been persistently hostile and dis­
loyal to plaintiff and the other minority nonmember Negro 
firemen, and has constantly sought to destroy their rights 
and to drive them out of employment in order to create a 
monopoly of the employment and to secure the most favored 
jobs and conditions for its own members. It has always re­
fused and still refuses to notify plaintiff and the other Negro 
firemen, members of the craft or class, of proposed actions 
adversely affecting their interests or to give them a chance to 
be heard or to vote on same. It has constantly refused and 
still refuses to report to him or them its actions as their 
statutory representative or to handle their grievances wher­
ever there is an apparent conflict of interest between them 
and its members; has always refused and still refuses to give 
him and them fair, impartial, honest and faithful representa­
tion under the Railway Labor Act and has used its position 
to induce and force the defendant Railway Company to re-



4

move plaintiff from his job assignment and to replace him 
with one of its own members (A. 4, 11).

In the first Count of the Complaint plaintiff alleges that 
“ On or about October 10,1941, plaintiff was working for the 
Norfolk Southern Railroad Company as a locomotive fire­
man on a passenger run on its Northern Seniority District, 
running between Norfolk, Virginia, and Marsden, North 
Carolina, under an individual contract of hiring, and was a 
member of the craft or class of locomotive firemen employed 
by said Railroad Company. Said run constituted one of the 
more preferred jobs available to locomotive firemen em­
ployed by said Company. On or about said October 10,1941, 
in order to secure for its own members the more favorable 
job assignments available to locomotive firemen employed 
by the Norfolk Southern Railroad Company, the defendant 
Brotherhood failed and refused to represent plaintiff im­
partially as was its duty under the Railway Labor Act, but 
on the contrary, acting in the premises as the representative 
of the entire craft or class under the Railway Labor Act 
wrongfully used its position to induce and force the Norfolk 
Southern Railroad Company to remove him from his job 
assignment and to replace him with one of its own members. 
(A. 4).

In Count II plaintiff alleges in substance that on or about 
March 28, 1940, in breach of its duty under the Railway 
Labor Act to plaintiff and the other Negro locomotive fire­
men, the defendant Brotherhood served notice upon the de­
fendant Railroad and other railroads in the Southeastern 
section of the country of its desire and purpose to amend 
existing collective bargaining agreements covering the 
standard provisions of the individual contracts of the fire­
men on each railroad in such manner as would drive the 
Negio firemen, including plaintiff, completely out of . the 
service of said railroads, including the defendant Railroad 
'"V '0  on 07 about February 18, 1941, pursuant to
sasd Notice and again in breach of its duty under the Rail- 

Labor Act to plaintiff and the other nonmember Negro



5

locomotive firemen the defendant Brotherhood wrongfully 
prevailed upon defendant Railway Company to enter into 
agreement, and did wrongfully negotiate an agreement with 
the defendant Railway Company whereby the proportion 
of nonpromotable firemen, and helpers on other than steam 
power, should not exceed fifty percent in each class of serv­
ice established as such by the carrier, and providing that 
until such percentage was reached on any seniority district 
all new runs and all vacancies created by death, dismissal, 
resignation or disqualification should be filled by promotable 
men; and further providing that nonpromotable men were 
those who were not in line for promotion under the present 
rules and practices to the position of locomotive engineer 
(A. 9 ,17 ); that under the rules and practices in effect at the 
time that this contract was entered into and at the present 
time all Negro firemen, including plaintiff, as a class, are 
arbitrarily considered ineligible for the position of locomo­
tive engineer and are arbitrarily classified as nonpromotable 
(A. 9 ); that on or about May 23, 1941, in further breach 
of its duty to plaintiff and the other nonmember Negro loco­
motive firemen, the defendant Brotherhood caused said 
agreement to be supplemented to provide specifically that 
the term “ nonpromotable firemen” used therein referred only 
to colored or Negro firemen (A. 9, 23).

Plaintiff alleged further that on the date that said agree­
ment and supplement went into effect the defendant Railway 
Company operated passenger train service on its Northern 
Seniority District, running between Norfolk, Virginia, and 
Marsden, North Carolina. Two firemen were used in said 
service one of whom was a white member of defendant 
Brotherhood and the other was a Negro fireman, nonmember 
of said Brotherhood. Assignment to said service constituted 
one. of the more .preferred assignments, available to locomo­
tive firemen employed on defendant Railroad. The hours 
were shorter and the work less arduous than that required 
of locomotive firemen who were assigned to other classes of 
service, particularly yard service. On or about June, 1941,



6

the white fireman who had been assigned to said run left it 
for another assignment, thereby creating a vacancy. In 
accordance with his individual contract of hiring plaintiff- 
was assigned to said run. He worked the assignment with 
competence and skill until on or about October 10, 1941, 
when the defendant Brotherhood, again in breach of its duty 
as plaintiff’s representative under the Railway Labor Act, 
wrongfully pressed said agreement and supplement and 
asserted that plaintiff’s assignment was in breach thereof, 
and wrongfully induced and forced the defendant Railway 
Company to remove plaintiff from said assignment and to 
assign defendant, W. M. Munden, a white member of the 
Brotherhood to same (A. 11).

In serving the Notice of March 28, 1940, and in entering 
into the Agreement of February 18, 1941, and the Supple­
ment of May 23,1941, and in forcing the defendant Railway 
Company to displace him from his job assignment with a 
white member of the Brotherhood, the defendant, Brother­
hood, although purporting to act as the exclusive represent­
ative of the entire craft or class of locomotive firemen, gave 
plaintiff and the other nonmember Negro locomotive fire­
men no notice thereof or opportunity to be heard or vote 
thereon; nor was the existence of said agreement and sup­
plement disclosed to them until the Brotherhood forced 
plaintiff off his run by virtue thereof (A. 10). As a result 
of this failure and refusal of the defendant Brotherhood to 
represent plaintiff fairly and impartially as was its duty 
under the Railway Labor Act plaintiff lost his assignment 
on said run and valuable property rights that have accrued 
to him while in the service of the Company and, in order to 
continue in his employment has been forced to accept and 
perform an assignment in yard service where he-has to work 
longer hours and perform more difficult and arduous labor 
(A. 4, 11).

I la inti If lias requested the Railway Company to restore 
him to his assignment but the Company asserted that under 
the provisions of the Railway Labor Act and said agree-



7

ments entered into pursuant thereto, it is powerless to do 
so unless plaintiff’s representative under the Act, the de­
fendant Brotherhood, demands it; he has requested the 
Brotherhood as his representative to represent him for the 
purpose of having his assignment and property rights re­
stored but said Brotherhood, in violation of its duty has 
failed and refused to represent him or even to acknowledge 
his request (A. 11).

Plaintiff sought by way of relief (1) a declaratory judg­
ment, settling and declaring the rights, interests and legal 
relationships of the respective parties in and to and by 
reason of the matters set forth in the Complaint; (2) a 
declaratory judgment that the defendant Brotherhood in 
accepting the position and acting as the exclusive repre­
sentative under the Railway Labor Act of the craft or class 
of locomotive firemen employed by the Norfolk Southern 
Railway Company, assumed and is under the obligation to 
represent fairly and impartially and without discrimination 
all of the members of said craft or class, including plaintiff 
and other minority locomotive firemen, nonmembers of said 
Brotherhood; (3) a permanent injunction against each and 
all of the defendants restraining and enjoining them and 
each of them from enforcing or otherwise recognizing the 
binding effect of the Agreement of February 18,1941 and the 
supplement of May 23,1941, in so far as said agreement and 
supplement deprives plaintiff of his assignment on the 
passenger train run between Norfolk, Virginia, and Mars- 
den, North Carolina, or in any other way interferes with his 
occupation as a locomotive fireman employed by the de­
fendant Railway Company; (4) a permanent injunction 
against the Brotherhood, its officers and agents, or subor­
dinate lodges, their officers, and agents, perpetually restrain­
ing and enjoining them from acting or purporting to act 
as plaintiff’s representative or the representative of the 
other Negro firemen under the Railway Labor Act, so long 
as it or they, or any of them, refuse to represent him and 
them fairly and impartially; and so long as it or they con­



'8

tinue to use its position to destroy the rights of plaintiff 
and the class he represents; (5) damages against the Broth­
erhood for its refusal to represent him and the destruction 
of his rights as a locomotive fireman in the amount of 
$25,000; (6) general relief (A. 12, 13).

ASSIGNMENT OF ERROR

The United States District Court for The Eastern Dis­
trict of Virginia erred in dismissing appellant’s complaint 
on motion of the appellees on the ground of no Federal 
jurisdiction.

OUTLINE OF ARGUMENT

I. The Railway Labor Act of 1934 Created Enforceable
Rights and Duties Cognizable in a Federal Court and 
Where These Rights and Duties Have Not Been Spelled 
Out in the Act Itself the Federal Courts Have Juris­
diction to Interpret the Act to Determine Whether the 
Right Sought to Be Protected Inheres in the Act.

II. The Instant Case Presents a Situation Where the Inter­
pretation of the Railway Labor Act Cannot Be Avoided.

xV. Under Section 2-Fourth of the Railway Labor Act 
the representative of the craft or class” stands in 

a fiduciary relationship to each individual employee 
in the craft or class.

1. The ‘ representative”  must represent the mem­
bers of the craft or class as a whole, and cannot 
discriminate against individual or minority 
members. .

2. The “ representative”  owes plaintiff and the mi­
nority Negro firemen of the craft or class the



9

duty of notice, and opportunity to be heard and 
to vote on matters affecting their interests.

III. The Construction of Section 2-Fourth of the Railway 
Labor Act as to the Rights, Powers and Duties of “The 
Representative of the Craft or Class” Involves a Suit 
Under a Law Regulating Commerce.

IV. If the Railway Labor Act Grants the “Representative” 
the Unbridled Power to Destroy the Minority’s Right 
to Earn a Living it is in Violation of the Fifth Amend­
ment and Therefore Unconstitutional.

A. The right of an employee to pursue his calling under 
the Railway Labor Act is a property right.

V. The Instant Case is Distinguishable from the Ed Teague
Case.

ARGUM ENT

I. The Railway Labor Act of 1934 Created Enforceable 
Rights and Duties Cognizable in a Federal Court and 
Where These Rights and Duties Have Not Been Spelled 
Out in the Act Itself the Federal Courts Have Juris­
diction to Interpret the Act to Determine Whether the 
Right Sought to Be Protected Inheres in the Act.

Since the decision in System Federation No. 40 v. Vir­
ginian Railway Company, 11 F. Supp. 621 (E. D. Va. 1935); 
a ff’d 84 F. (2d) 641 (C. C. A., 4th, 1936); a ff’d 300 U. S. 
515, 81 L. Ed. 789, 57 Sup. Ct. 592 (1937), there can be no 
question that the Railway Labor Act as amended in 1934 
created enforceable rights and duties. Since that time the 
Federal Courts have carved out for themselves a wide 
jurisdiction by way of interpretation and enforcement of 
the Act. The United States District Court will—-



10

A. enjoin a carrier from interfering with the self­
organization and designation of representatives by its 
employees under Sec. 2-Third of the Act (45 U. S. 0., 
Sec. 152-Third);

Brotherhood of Railway and Steamship Clerics v. 
Texas & N. 0. R. Co., 24 F. (2d) 426 (S. D. Texas, 
1928); 25 F. (2d) 873, 876 (S. D. Texas, 1928); 
a ff’d 33 F. (2d) 13 (C. C. A. 5th, 1929); a ff’d 
281 U. S. 548, 74 L. Ed. 1034, 50 S. Ct. 427 (1930).

B. compel a carrier to “ treat with”  the representa­
tive of the craft or class certified by the National Media­
tion Board under Sec. 2-Ninth (45 U. S. C., Sec. 152- 
Ninth) ;

System Federation No. 40 v. Virginia Ry. Co., 11 
F Supp. 621 (E. D. Ya. 1935); a ff’d 84 F. (2d) 
641 (C. C. A., 4th, 1936); a ff’d 300 IT. S. 515, 81 
L. Ed. 789, 57 S. C. 592 (1937).

C. review a finding of the National Mediation Board 
as to the word “ employees”  under Sec. 1 (45 IT. S. C., 
Sec. 151) and Sec. 2-Ninth (45 U. S. C., Sec. 152-Ninth);

Nashville C. & L. Ry. Co. v. Railway Employees 
Dept., 93 F. (2d) 340 (C. C. A., 6th, 1937); cert, 
denied, 303 IT. S. 649, 82 L. Ed. 110, 58 S. C. 746 
(1938).

D. review a finding of the National Mediation Board 
as to “ craft or class”  under Sec. 2-Fourth (45 IT. S. C., 
Sec. 152-Fourth);

Brotherhood of Railroad Trainmen v. National Me­
diation Board, 88 F. (2d) 757 (Ct. App. Dist. 
of Col., 1936).

Brotherhood of Railway Steamship Clerics v. Nash­
ville C. & St. L. Ry. Co., 94 F. (2d) 97 (C. C. A., 
6th, 1937).



11

E. enjoin an award of the National Railroad Adjust­
ment Board under Sec. 3 (45 U. S. C., Sec. 153) for 
violation of due process of law ;

Nord v. Griffin, 86 F. (2d) 481 (C. C. A., 7th, 1936); 
cert, denied, 300 U. S. 673, 81 L. Ed. 879, 57 S. C. 
612 (1937).

F. enjoin an award of a system board of adjustment 
under Sec. 3-Second (45 U. S. C., Sec. 153-Second) for 
violation of due process of law ;

See Brand v. Pa. R. Co., 22 F. Supp. 569, at p. 571.

Q-. set aside an award of the National Mediation 
Board under Sec. 2-Fourth (45 U. S. C., Sec. 152- 
Fourth) for failure to give the contestants a hearing, 
supplemented by a finding of facts on which it bases its 
conclusions.

See Brotherhood of Railroad Trainmen v. National 
Mediation Board, 88 F. (2d) 757, at p. 761 
(supra).

H. will enjoin an attempt by a carrier to change the 
terms of a collective bargaining agreement otherwise 
than as provided in the Act.

Railway Employees Co-Op. Assn v. A., B. & C. R. 
Co., 22 F. Supp. 510 (D. Ga., 1938).

On a suit in the District Court to enforce an award of 
the National Railroad Adjustment Board under Sec. 3-First 
(p) (45 U. S. C., Sec. 153-First (p )) the entire case is open 
for trial.

Cook v. Des Moines Union R. Co., 16 F. Supp. 810, at
p. 814 (S. D. Iowa, 1936).

The United States Supreme Court took jurisdiction to 
determine whether an appeal to the National Railroad Ad­
justment Board under Sec. 3 (45 U. S. C., Sec. 153) was a



12

condition precedent to a suit by a railway employee for 
wrongful discharge.

Moore v. III. Cent. R. Co., 312 U. S. 620, at p. 364, —
L. Ed. —, 61 S. C. 754 (1941).

Other instances might be given where the Federal Courts 
have taken jurisdiction over controversies involving the 
validity, effect or interpretation of the Railway Labor Act, 
but the foregoing are sufficient to show the wide scope which 
the courts have given to judicial review of the Act.

In enforcing the rights and duties arising under the Act 
the Courts have not hesitated to go beyond the black letter 
text of the Act itself in order to effectuate its purpose. 
They have consistently interpreted the Act in terms of cor­
relative rights and duties and where a right or duty has 
been spelled out in the Act they have imposed the converse 
thereof as a necessary inference from the language of the 
statute.

System Federation No. 40 v. Virginian Railway Com­
pany, supra.

Atlantic Coast Line R. Co. v. Pope, 119 F. (2d) 39.

So in the instant case defendant Brotherhood’s right to 
represent the craft or class of locomotive firemen is spelled 
out in the Act itself. Conversely, plaintiff’s right to be 
represented must inhere in the Act and a Federal Court 
has jurisdiction to determine whether such right does 
exist and, if so, whether it has been violated.

II. The Instant Case Presents a Situation Where the Inter­
pretation of the Railway Labor Act Cannot Be Avoided.

A. Under Sec. 2-Fourth of the Railway Labor Act (45 U. S. 
C. Sec. 152-Fourth) “ The representative of the craft or 
class”  stands in a fiduciary relation to each individual 
employee in the craft or class.



13

The constitution of the appellee Brotherhood excludes 
appellant and the other minority Negro firemen from mem­
bership solely because of race. Appellant has never voted 
for appellee as his representative under the Act. Appellee’s 
position as “ representative”  of plaintiff and the other 
minority non-member Negro firemen depends Solely on 
the force of the Act itself, which has created a statutory 
agency. This means that so long as the majority of the 
craft or class are satisfied with the “ representative”  the 
only way that appellant and the other minority non-member 
Negro firemen can dissolve the statutory agency is to quit 
their jobs and leave the craft or class.

The language of the Railway Labor Act itself constitutes 
the “ representative”  an agent for the purposes of the Act.

Sec. I—Sixth (45 U. S. C. sec. 151-Sixth). “ The term 
‘ representative’ means any person or persons, labor 
union, organization, or corporation designated either 
by a carrier or group of carriers or by its or their 
employees, to act for it or them.”  (Italics ours.)

Every reference to the “ representative”  thereafter in the 
Act is consistent only with the theory of agency.

Appellant and the other minority non-member Negro fire­
men bow to the mandate of the Act. They are willing to 
accept majority rule within the constitutional limitations 
of due process. They do not seek a separate representa­
tive. Their complaint is that the statutory “ representa­
tive”  does not in fact and practice actually represent them 
and their interests equally and faithfully with the interests 
of all the firemen as a craft or class, but misrepresents them.

1. The “ representative”  must represent the members of the 
craft or class as a whole, and cannot discriminate against 
individual or minority members.

The law is well settled that a labor union represents its 
members as a class for purposes of collective bargaining,



14

and cannot show partiality among individuals or different 
classes of the membership.

Piercy v. L. £  N. R. Co., 198 Ivy. 477.
Cameron v. International Alliance, 118 N. J. Eq. 11, 

176 A. 692, 97 A. L. E. 594 (1935); 119 N. J. Eq. 577, 
183 A, 157 (1936); cert, denied, 298 U. S. 659, 80 L. 
Ed. 1385, 56 S. C. 681 (1936).

Certainly, the principle must apply a fortiori to a non­
member who has not voluntarily consented to be repre­
sented in any way.

For the rule under the N. I. E. A. Act of June 16, 1933, 
ch. 90, sec. 7(a), 48 Stat. 195 at page 198 (15 U. S. 
C. A. sec. 707(a), see McNally v. Reynolds, 7 F. Supp. 
112 (W. D., Wash., 1934).

Further the Eailway Labor Act contemplates the action 
of the “ representative”  primarily on behalf of the craft 
or class as a unit. See Sec. 2-Seventh (45 U. S. C., Sec. 
152-Seventh).

The question has arisen how can the non-member blow 
hot or cold: take advantage of the benefits of the collective 
bargaining agreement on the one hand, yet disclaim special 
modifications of the same agreement by the same repre­
sentative when the modification is to his prejudice. Part 
of the answer is the old principle of agency that the prin­
cipal is not bound when the agent acts beyond the scope of 
his authority.

A non-member can take advantage of a non-discrimina- 
tory collective agreement negotiated by the “ representa­
tive”  for the entire craft or class.

Yazoo £  M. V. R. Co. v. Webb, 64 F. (2d) 902 (C. C. A., 
5th, 1933).

Yazoo £  M. V. R. Co. v. Sideboard, 161 Miss. 4, 133 So. 
669 (1931).



15

But he is not bound by the prejudicial act of the bargaining 
agent to disregard his seniority rights in order to confer 
an advantage on members of the union with seniority junior 
to his.

See Ledford v. Chicago, M. & St. Paul R. Co., 298 111.
App. 298, 18 N. E. (2d) 568 (1939).

It may be helpful to examine another question which has 
frequently arisen as to the effect of the collective bargain­
ing agreement, and whose contract it is. There are several 
different theories which are set out in an Annotation in 95 
A. L. R. 10.

On the theory of agency the agreement must belong to the 
principals, the membership of the craft or class. It cannot 
belong to the “ representative”  who is in existence simply 
as an instrumentality acting for the employee. Sec. 1-Sixth 
(45 U. S. C., Sec. 151-Sixth). The Railway Labor Act itself 
adopts the theory of individual contracts between the car­
rier and each employee:

Sec. 2-Eighth (U. S. C., Sec. 152-Eighth): “ . . . The 
provisions of said paragraphs are hereby made a part 
of the contract of employment between the carrier 
and each employee . . . ”  (Italics ours.)

The National Mediation Board adopts the theory that the 
contract belongs to the individual employee.

National Mediation Board, First Annual Report, p. 2.

It is not necessary, of course, that the individual employees 
be specifically named in the agreement.

Yazoo & M. V. R. Co. v. Sideboard, 161 Miss. 4, 133 So.
669 (1931).

The most logical position is that the collective bargaining 
agreement furnishes the uniform standards governing rates 
of pay, rules and working conditions which form part of 
the individual employee’s contract with the carrier.



16

Rentschler v. Mo. Pac. R.R. Co., 126 Neb. 493, 252 N. W. 
694, 95 A. L.R. 1 (1934).

Cross Mountain Coal Co. v. Ault, 157 Tenn. 461, 9 S. W. 
(2d) 682 (1928).

No theory or authority has been found which makes the 
agreement the absolute property of the bargaining agent 
which it can twist and alter as it pleases so as to destroy 
minority rights.

2. The “ representative”  otves plaintiff and the minority 
non-member Negro firemen of the craft or class the 
duty of notice and an opportunity to be heard and to vote 
on matters affecting their interests.

Notice and hearing are fundamental concepts to “ due 
process of law.’ ’ Ordinarily the individual union member 
has notice thru the officers of his union.

Estes v. Union Terminal Co., 89 F. (2d) 768 at p. 770 
(C. C. A. 5th, 1937).

But this presumption cannot apply in the case of a non-union 
member. The bargaining “ representative of the craft or 
class,”  which is usually the labor union of the majority 
members, does not represent the non-member to the extent 
that notice to the “ representative”  in a case before the 
National Railroad Adjustment Board binds the non-member. 

Nord v. Griffin, 86 F. (2d) 481 (C. C. A., 7th, 1936); 
cert, denied, 300 U. S. 673, 81 L. Ed. 879, 57 S. Ct. 
612 (1937).

It is important to note that the Railway Labor Act did 
not create a closed shop industry forcing all employees to 
join some labor organization.

Sec. 2 (45 U. S. C. Sec. 152).
T irginian Railway Co. v. System Federation No. 40, 300 

I . S. 515, at p. 548 (supra).



17

It leaves the employee free to join or not to join ; the labor 
union free to admit or exclude.

Appellant does not contend that the Act confers on him 
or the minority non-member Negro firemen the power to 
force its way into the appellee Brotherhood against the will 
of the Brotherhood members. His contention is that when 
the Brotherhood purports to act as “ representative”  of 
the craft or class, so long as he is barred from membership, 
the Brotherhood must come out from behind closed doors 
into an open convention where he and the other non-members 
can participate, and there give him notice, opportunity to be 
heard and a chance to vote on all matters affecting him. 
Likewise, the Brotherhood must make a report to him as 
principal of all acts done as “ the representative of the 
craft or class.”  Any other principle places the minority 
non-members in economic servitude to the majority.

See Cameron v. International Alliance, 118 N. J. Eq. 11 
(supra).

I f the right of representation under the Railway Labor 
Act is a property right which the courts will enforce,

Virginia Railway Co. v. System Federation No. 40, 300 
U. S. 515 (supra).

conversely freedom from misrepresentation must be a prop­
erty right which the courts should enforce.

None of the above claimed rights and duties are spelled 
out in the black letter text of the A ct ; therefore the Act must 
be interpreted to determine whether they arise as a neces­
sary inference from the language of the statute.



18

III. The Construction of Section 2-Fourth of the Railway 
Labor Act (45 U. S. C., Sec. 152-Fourth) as to the 
Rights, Powers and Duties of “The Representative of 
the Craft or Class” Involves a Suit Under a Law 
Regulating Commerce.

Since an unbridled grant of power to the ‘ ‘ representative 
of the craft or class”  under Sec. 2-Fourth of the Act (45 
U. S. C., Sec. 152-Fourth) would violate the due process 
clause of the Fifth Amendment, under the universal prin­
ciple that a statute will be construed, if possible, so as to 
avoid conflict with the Constitution,

1 Sutherland, Statutory Construction, 2d ed., Sec. 83

it is necessary to look further to find the implied limitations 
on the powers of the ‘ ‘ representative. ’ ’ The Railway Labor 
Act itself does not give us a blue-print; and no decision 
of a court has been found construing the provision. Ours 
is a case of first impression.

Cf. Brotherhood of Bailway Trainmen v. National Me­
diation Board, 88 F. (2d) 757 (1936).

Nashville, C. & St. L. B. Co. v. Bailway Employees 
Dept., 93 F. (2d) 340 (C. C. A., 6th, 1937); cert, de­
nied, 303 U. S. 649, 82 L. Ed. 1110, 58 S. Ct. 746 
(1938).

The case thus presents a situation where an interpreta­
tion of the Act can not be avoided, where the decision will 
turn on the way in which the Act is interpreted. The test 
established in Gully v. First National Bank as to whether 
a case arises under the Constitution or laws of the United 
States is satisfied (299 U. S. 109 at p. 112, 81 L. Ed. 95, 
57 S. C. 132 (1936)):

“ The right or immunity must be such that it will be 
supported if the Constitution or laws of the United 
btates are given one construction or effect, and defeated 
it they receive another.”



19

Malone v. Gardner, 62 F. (2d) 15 (C. C. A. 4th, 1932) is 
clearly distinguishable. Plaintiff Malone made no charge 
of a violation of rights and duties imposed by the Railway 
Labor Act. His suit involved a dispute whether his seniority 
rights as an engineer had been violated thru conspiracy 
under which he charged that the Brotherhood of Locomo­
tive Engineers had induced the Chesapeake & Ohio Railway 
Company to put engineers from a different district to work 
in his district, whereby he was deprived of rights to which 
his seniority entitled him. He grounded his claim of Fed­
eral jurisdiction solely on the general duties of the Act, 
Sec. 2 (45 U. S. C., Sec. 151a and Sec. 152-First) which 
establish the policy of maintaining working agreements and 
settling disputes in order to avoid an interruption of com­
merce. The court said:

“ . . . The suit relates to an agreement of employment 
whereby the plaintiff acquired certain contract rights 
of value; but neither the agreement nor the rights se­
cured thereby were founded upon the Labor Act, nor 
is their construction or effect in any way affected 
thereby. The immediate purpose of the suit is to secure 
an injunction to prevent further violations of the agree­
ment, and the argument seems to be that the Act of 
Congress is involved because it prescribes that it is 
the duty of employees, such as the defendants, to exert 
every reasonable effort to maintain agreements of this 
kind and to settle all disputes arising out of such agree­
ments in order to avoid any interruption to commerce. 
If the federal act imposed a duty of legal validity in 
the sense that it was made enforceable by the courts, 
or if the construction of the act gave rise to some sub­
stantial difference of opinion as to its meaning, juris­
diction might be found, to exist, but it does not appear 
to us that any legally enforceable duty in these respects 

• - was created; and the doubts which existed in the past 
as to the meaning of the quoted provisions of the act 
nave been s0 conclusively solved by decisions of the 
Supieme Court that no substantial question survives 
at this time.”  Per Soper, J., at p. 18. (Italics ours.)



20

In our case we charge that the appellee Brotherhood has 
violated the fiduciary duties due from it to appellant and 
the other minority non-member Negro firemen whom it rep­
resents solely by the force and effect of sec. 2-Fourth of 
the Act (45 U. S. C. sec. 152-Fourth), and against their 
will. No court has yet construed the relationship of the 
“ representative”  to the minority,workers. A  substantial 
difference of opinion exists between the Brotherhood on 
the one side and appellant and the other minority non­
member Negro firemen on the other side as to the rights, 
powers and duties of “ the representative of the craft or 
class”  under the Act. A dispute has arisen over the force 
and effect of the Railway Labor Act itself.

Asso. of Rock Island, etc., Employees v. Lowden, 15 F. 
Supp. 176 (D. Kan. 1936); a ff’d 86 F. (2d) 458 (C. 
C. A., 10th, 1936); cert, denied, 300 U. S. 659, 81 L. 
Ed. 868, 57 S. C. 435 (1937).

The jurisdiction of the District Court is not ousted 
because possibly other non-Federal questions might be 
involved;

Railroad Co. v. Mississippi, 102 U. S. 135, at p. 141, 26 
L. Ed. 96 (1880).

nor would it make any difference if in the end the contro­
versy might be disposed of on a non-Federal issue.

“ A hen the plaintiff bases his cause of action upon an 
Act of Congress jurisdiction cannot be defeated by a 
plea denying the merits of the claim. . . . Jurisdiction 
is authority^ to decide the case either way.”  Per 

folmes, J., in The Fair v. Kohler Die and Specialty 
U- s -'22> at p. 25, 57 L. Ed. 716, 33 S. C. 410

(1913).

. arisea under a federal law regulating commerce
* . pliiHiiilf s declaration reveals a clear and sub-
stantial suit or controversy over the validity, construe-



21

tion, or effect of a law regulating commerce, which will 
be defeated or sustained according to the construction 
given such law, even though other questions are in­
volved, and though the case is decided on some other 
issue. . . . ”  3 Hughes, Federal Practice, sec. 1608.

See also Young & Jones v. Hiawatha Gin & Mfg. Co., 
17 F. (2d) 193 (S. D. Miss., 1927).

It is unnecessary to argue that Federal railway legisla­
tion arises under the Commerce clause, and by the statement 
of facts this dispute arose while appellant was on an inter­
state freight run.

IV. If the Railway Labor Act Grants the “Representative” 
the Unbridled Power to Destroy the Minority’s Right 
to Earn a Living it is in Violation of the Fifth Amend­
ment and Therefore Unconstitutional.

A. The right of the railway employee to pursue his calling 
under the Railway Labor Act is a property right.

The right of the railway employee to pursue his calling 
under the Railway Labor Act is a property right protected 
under the Fifth Amendment against arbitrary Federal 
action.

“ No man should be deprived of his means of livelihood 
without a fair opportunity to defend himself. Plainly, 
that is the intent of the law. The case at bar illustrates 
how a single employee may be caught between the upper 
and nether millstones in a controversy to which only 
a labor organization and a carrier are parties before 
the Board. ’ ’ Per Foster, J., in Estes v. Union Terminal 
Co., 89 F. (2d) 768, at p. 770 (C. C. A., 5th, 1937).

“ The trial below and this appeal do not involve the' 
' merits of the' controversy. 'They involve solely the 

question of whether the appellee is to be bound by an 
order of an administrative board in a proceeding to 
which he was not a party, entered at a hearing of which



22

he had no notice. The mere statement of the proposi­
tion is conclusive of its unsoundness. The rights of 
plaintiff are protected by the Fifth Amendment.” Per 
Kindley, J., in Nord v. Griffin, 86 F. (2d) 481, at p. 
484 (supra).

One of the most valuable incidents of a railway employee’s 
contract is his seniority preference rights.

Ledford v. Chicago, M. & St. P. R. Co., 298 111. App. 298, 
18 N. E. (2d) 568 (1939).

Seniority preference rights are part of the “ rules”  and 
“ working conditions”  governing employment on railroads 
within the meaning of the Railway Labor Act.

Brand v. Pa. R. Co., 22 F. Supp. 569 (E. D. Pa. 1938).

They are vested property rights which the individual rail­
way employee does not submit to the control of his union 
by the act of becoming a member.

“ If the right of seniority may be changed or waived 
or otherwise dispensed with by the act of a bare ma­
jority of an organization to which the one entitled 
thereto is a member, it would be builded upon a flimsy 
foundation of sand which might slip from under him 
at any time by the arbitrary action of the members, 
possibly to serve their own selfish ends in displacing 
him.”  Piercy v. L. & N. R, C., 198 Ky. 477, at p. 484, 
248 S. W. 1042, 33 A. L. R. 322 (1923).

From what has been said, it follows that Congress could 
not arbitrarily destroy a railway employee’s vested right 
to follow his trade or calling or impair his vested seniority 
preference rights by direct legislation. Neither can it do 
indirectly what it cannot do directly, by conferring on the 
majority of a craft or class, or the representative nomi­
nated by the majority, arbitrary power over the vested 
rights of the minority. Such a'grant of power would fall 
"'thin the prohibitions of the Fifth Amendment.

Carter v. Carter Coal Co., 298 U. S. 238, 80 L. Ed. 1160, 
56 S. C. 855 (1936).



23

V. The Instant Case is Distinguishable from the Ed Teague 
Case.

The Teague case, 127 Fed. (2d) 53 (C. C. A. 6th, 1942) 
was essentially a dispute between the Gulf, Mobile & North­
ern Railroad Company (later by consolidation the Gulf, 
Mobile & Ohio R.R.) and the Brotherhood of Locomotive 
Firemen & Enginemen on the one hand, and Ed Teague and 
other Negro firemen on said railroad on the other hand, 
over seniority rights. Teague alleged that his seniority 
rights had been impaired by virtue “ of an unlawful agree­
ment between the Railroad and the Brotherhood, the collec­
tive bargaining agent of his craft.”  (See 127 F. (2d) at 
p. 54.)

The facts of the controversy were that Ed Teague was a 
fireman on the Gulf, Mobile & Northern Railroad with 
seniority rights dating from March 15, 1917; ‘ ‘ that under 
uniform employment contracts between individual Negro 
firemen and the Railroad he was entitled to seniority prefer­
ence rights on employment assignments carrying favored 
rates of pay, hours and working conditions, and such rights 
were recognized and respected by both the Railroad and 
the Brotherhood up to May 5, 1938 . . . that on that date a 
secret agreement was entered into between the Brotherhood 
and the Railroad, whereby white firemen, who were mem­
bers of the Brotherhood, were given preference over Negro 
firemen, in assignments on mechanical stoker fired locomo­
tives, regardless of seniority, and that such service is a 
preferred assignment involving less work and less hazard 
than on hand-fired locomotives. On May 17, 1938, a me­
chanical stoker fired locomotive was placed on appellant’s 
(his) run. Though entitled to assignment on the engine, 
because of seniority, he Was displaced by a junior white 
fireman, a member o f the Brotherhood, iri pursuance of the 
alleged secret agreement.'”  (See 127 Fed. (2d) at p. 54.)

The complaint further alleged that since the passage of 
the Railway Labor Act amendment of 1934 the Brother­



24

hood by virtue of its membership constituting a majority 
of the craft or class of firemen on said Railroad had estab­
lished itself as bargaining agent for the entire craft of 
firemen; that Negro firemen were excluded from member­
ship in the Brotherhood; that the Brotherhood as bargain­
ing agent of the entire craft or class of firemen on said 
Railroad owed a duty to represent each individual of the 
craft impartially, but instead of acting impartially it used 
its position to eliminate the Negro fireman and obtain a 
monopoly of employment for its own white members; that 
in breach of said duty of impartial representation it made 
the secret agreement above referred to. (Loc. cit. at pp. 
54-55.)

The Circuit Court of Appeals, speaking thru Judge Simon, 
held that if any Federal question was raised in the case it 
was raised only by anticipation of the answer. (Loc. cit. 
at p. 55.)

“ The present suit concededlv is based upon private 
contracts between the appellant and members of his 
class on the one hand, and the Railroad on the other. 
The obligation of the contract being a creation of the 
state, no Federal right supports the appellant’s claim 
that the contract has been broken, Gully v. First Nat’l 
Bank, 299 U. S. 109, 57 S. Ct. 96, 81 L.'Ed. 70, and in­
sofar as the complaint alleges an invasion of the plain­
t if f^  property right to seniority through a secret, 
discriminatory and conspiratory agreement between the 
Railroad and the Brotherhood, it sounds in tort, and 
is to be adjudicated upon the applicable common law 
of the state. It does not raise a Federal question. The 
more fact that one of the alleged conspirators comes 
into existence through the operation of a federal law 
does not bring into question either the validity or the 
interpretation of the statute. . . .

“ The necessity for precise delineation of the limited 
jurisdiction of Federal Courts to controversies raising 
1 ederal questions, is clearly demonstrated in the pres­
ent instance by the speculative character of the antici­
pated detense. It is conceivable that defense to the



25

present action will necessarily not involve the Railway 
Labor Act either immediately or remotely. The defend­
ants categorically may deny that a secret or unlawful 
agreement such as is alleged, exists, or deny that the 
Brotherhood is a collective bargaining agent for the 
appellant or the members of his craft. Clearly, in such 
case, no Federal question will appear even were it per­
missible to aid the complaint by the allegations “of the 
answer. . . .

“ Reverting to the appellant’s own statement of his 
case, such rights as are here claimed arise from the 
individual contracts of the Negro firemen with the de­
fendant Railroad. The appellant is unable to point to 
provision of the Railway Labor Act which protects such 
rights, or permits their invasion. The provisions of 
par 2, subd. eighth make the terms of the collective bar­
gaining agreement a part of the contract of employ­
ment between the carrier and each employee—the case, 
nevertheless, remains one based upon a contract be­
tween private parties cognizable, if at all, under state 
law. ”  (Loc. cit. at pp. 55-56.)

In short, the very statement of facts shows that Teague’s 
basic grievance: loss of his seniority rights through a secret 
agreement entered into pursuant to a conspiracy between 
the Railroad and the Brotherhood can be spelled out without 
once referring to or without necessarily involving any Fed­
eral law.

In the Tunstall case the gravamen of the complaint is 
very simply stated: Tom Tunstall had a certain job as 
locomotive firemen on the Norfolk Southern Railroad. The 
Brotherhood was the representative under the Railway 
Labor Act as amended in 1934 of the entire craft of fire­
men on said Railroad. As such it was under a statutory 
duty to represent the individual firemen impartially and to 
refrain from using its position to destroy their rights. 
In breach of said duty it refused to represent Tunstall im­
partially but acting in the premises as representative under



26

the Railway Labor Act of the entire craft it forced the Rail­
road to displace Tunstall by one of its own members, in order 
to secure for its own members Tunstall’s job. Tunstall 
seeks damages (Count 1).

The entire question turns upon the construction of the 
duty which the Railway Labor Act as amended places upon 
the representative of the craft or class. As this question 
is decided the decision will be for plaintiff Tunstall or for 
the defendant Brotherhood.

Gully v. First National Bank, 299 U. S. 109, 112, 57 S.
Ct. 132, 81 L. Ed. 95 (1936).

Even if the Brotherhood were to deny that it is the rep­
resentative of the craft under the Railway Labor Act it 
could not oust the jurisdiction of the Court.

“ When the plaintiff bases his cause of action upon an 
Act of Congress jurisdiction cannot be defeated by a 
plea denying the merits of the claim. Jurisdiction is 
authority to decide the case either way.”  Per Holmes, 
J., in The Fair v. Kohler Co., 228 U. S. 22, 25, 57 L. Ed. 
716, 33 S. Ct. 410 (1913).

What comes into the Teague case only by way of antici­
patory defense is here set forth in steamlined form as the 
very essence of the cause of action.

Count Two in the Tunstall case is the same as Count One 
in its essential aspects, except that in Count Two Tunstall 
sues not only for himself but for the minority Negro firemen 
as a class; the scheme of misrepresentation by the Brother­
hood is spelled out; Tunstall seeks an injunction against 
misrepresentation, declaratory judgment, and damages. 
The Railroad Company is joined in Count Two as a neces­
sary party to complete relief. No conspiracy between the 
Railway Company and the Brotherhood is alleged. He does 
not complain of the loss of his seniority rights except as an



27

element of damage proximately resulting from the refusal 
of the defendant Brotherhood to represent him and his class.

The Circuit Court of Appeals disposed of the Teague case 
on the ground that the allegations concerning the Railway 
Labor Act as amended in 1934 and the statutory duty created 
thereby were not essential to plaintiff’s cause of action 
(loc. cit. at p. 56). In the Tunstall case if the statutory duty 
of impartial representation imposed on the craft representa­
tive by the Railway Labor Act is eliminated, there is no cause 
of action whatsoever.

This very Court had no difficulty in holding that it is the 
duty of the minority to recognize the authority of the rep­
resentative designated by the majority.

Atlantic Coast Line R. Co. v. Pope, 119 F. (2d) 39 (4th 
Circ., C. C. A .).

Can it be seriously argued that the Court, by interpretation 
would obligate the minority to recognize and submit to the 
authority of the craft representative designated by the ma­
jority, yet hesitate to spell out further by interpretation a 
correlative duty on the part of such representative to rep­
resent the minority impartially?

This case is converse of the Pope case. If there is Federal 
jurisdiction to bind the majority to recognize the authority 
of the craft representative selected by the majority under 
the Railway Labor Act, then there must be Federal juris­
diction to protect the minority against arbitrary action of 
the craft representative under the same statute.

The right to representation under the Railway Labor Act 
is a property right which the Federal courts will protect, 
under Federal jurisdiction.

System Federation No. 40 v. Virginian Ry. Co., supra.

It follows by necessary implication that the right of the 
minority against misrepresentation under the Railway 
Labor Act is a property right which the Federal Courts will



CONCLUSION

By their motions to dismiss appellees admit the allega­
tions of the Complaint. Specifically, the Brotherhood ad­
mits that it is the representative under the Railway Labor 
Act of the craft or class of locomotive firemen employed 
by the defendant Railway Company; that appellant is a 
member of that craft or class, and that it, the Brotherhood, 
has failed and refused to represent him fairly and impar­
tially. Therefore, unless this Court finds jurisdiction to 
determine the relative rights and duties under the Act the 
purposes of the Act will be thwarted, and the collective 
bargaining machinery established to avoid disputes that 
might interrupt commerce will become a weapon for the 
destruction of minority workers’ rights and conceivably 
might give rise to other disputes causing an interruption 
to interstate commerce.

Appellant respectfully urges that the decree of the United 
States District Court dismissing his complaint for lack of 
Federal jurisdiction be reversed, and the cause remanded 
for further proceedings according to law.

Respectfully submitted,

J oseph  C. W addy 
615 F Street, Northwest 
Washington, D. C.
C harles H . H ouston  
615 F Street, Northwest 
Washington, D. C.
Oliver W. H il l  
Consolidated Bank Building 
Richmond, Ya.

Attorneys for Appellant.

protect under Federal jurisdiction. Otherwise the rights of
the minority become subject to complete destruction by the
majority and the statute becomes a sword instead of a shield.



APPENDIX





1

IN THE
DISTRICT COURT OF THE UNITED STATES

F ob th e  E astern  D istrict  of V irgin ia  

(N orfolk  D iv isio n )

T om T un stadl

Plaintiff,
vs.

B rotherhood  of L ocomotive 
F irem an  and  E n g in e m e n  
Norfolk, Virginia 

and
O cean L odge, N o. 76
Norfolk, Virginia Civil Action No. 210

and
P ort N orfolk  L odge, N o. 775 
Portsmouth, Virginia 

and
W . M . M itnden 
1123 Hawthorn Avenue 
Norfolk, Virginia 

and
N orfolk S o u th ern  R a ilw a y  C o m pan y  
a corporation,
Norfolk, Virginia

Defendants.

(Filed at Norfolk, Va., August 11, 1942.)

COMPLAINT FOR DAM AGES CAUSED BY R EFUSAL  
OF AGENT UNDER THE R A IL W A Y  LABOR  

ACT TO REPRESENT, FOR DAMAGES  
FOR FRAUD, FOR INJUNCTION AND  

FOR A  DECLARATORY JUDGMENT

1. This Action arises under the Act of Congress, June 21, 
1934, 48 Stat. 1185; U. S. C., Title 45, Chapter 8; U. S. C.,



2

COUNT I

2. Plaintiff, Tom Tunstall, is a Negro citizen of the 
United States and of the State of Virginia. He sues in this 
Count in his own right for damages inflicted upon him in­
dividually.

3. The defendant, Brotherhood of Locomotive Firemen 
and Enginemen (hereinafter called the Brotherhood) is 
an international unincorporated association whose member­
ship is derived principally from white firemen and engine- 
men employed on interstate railroads, including the Norfolk 
Southern Railroad and its successor in interest, the Norfolk 
Southern Railway; is the Representative under the Railway 
Labor Act, 1934, 48 Stat. 1185, U. S. C. Title 45, Chapter 8, 
of the craft or class of locomotive firemen employed on said 
Railroad and is sued as such. It is composed of a Grand 
Lodge and over nine hundred subordinate lodges, including 
the defendant subordinate lodges, which are too numerous 
to make it practicable to bring them all before the Court. 
The subordinate lodges are also unincorporated associa­
tions, each composed of numerous individual locomotive 
fireman, and it is likewise impracticable to bring them all 
before the Court. The Brotherhood has a national treasury 
derived from membership dues and otherwise. By consti­
tutional provision, ritual and practice it restricts its mem­
bership to white locomotive firemen and enginemen. Plain­
tiff is excluded therefrom solely because of race.

4. The defendants, Ocean Lodge, No. 76 and Port Norfolk 
Lodge, No. 775, are subordinate lodges of the defendant 
Brotherhood having their locations in Norfolk, Virginia, 
and Portsmouth, \ irginia, respectively, within the jurisdic-

Title 28, Section 41 (8);  U. S. C., Title 28, Section 400; and
Federal Rules of Civil Procedure, Rule 17 ( b ) ; 23 (a), and
57; as hereinafter more fully appears.



3

tion of this Court. The business of each subordinate lodge 
is managed by a President, Recording Secretary, Legislative 
Representative, Local Organizer and Local Chairman. The 
members of the defendant subordinate lodges are either 
employed by the Norfolk Southern Railroad Company, and 
directly involved in the matters herein complained of, or are 
members of the defendant Brotherhood resident within the 
jurisdiction of this court. Upon information and belief 
plaintiff alleges that the defendant subordinate lodges 
constitute all of the lodges of the defendant Brotherhood 
within the territorial limits of the Norfolk Division of the 
United States District Court for the Eastern District of 
Virginia, and are truly and fairly representative of the re­
maining lodges of the Brotherhood and of the Brotherhood 
itself, and the interest of all the members, subordinate 
lodges and the Brotherhood will be adequately represented 
in the premises by the defendants of record. The defendant 
subordinate lodges are sued as representatives of the mem­
bership, all the subordinate lodges and the Brotherhood 
itself.

5. The defendant, W. M. Munden, is a white locomotive 
fireman employed by the Norfolk Southern Railroad and its 
successor in interest, the Norfolk Southern Railway; is a 
member of the defendant Brotherhood who, because, of the 
wrongs inflicted by the Brotherhood upon plaintiff and his 
class, gained certain advantages and considerations which 
rightfully belong to plaintiff as hereinafter will appear more 
fully. He is Local Chairman of defendant Ocean Lodge, 
No. 76, and acts for the Brotherhood in enforcing the 
schedule of rules and working conditions and in matters 
of grievance adjustments and job assignments on the 
Northern Seniority District of said Railroad. He is sued 
in his own right and as a representative of the members 
of the Brotherhood, particularly those employed on the 
Norfolk Southern Railroad and its successor in interest, 
the Norfolk Southern Railway Company.



4

6. At all times material herein the defendant Brother­
hood has been the representative under the Railway Labor 
Act aforesaid of the entire craft or class of locomotive 
firemen employed by the Norfolk Southern Railroad Com­
pany and its successor in interest the Norfolk Southern 
Railway Company, and, as such, under a duty under said 
Act to represent the members of said craft or class im­
partially and to refrain from using its position to destroy 
their job assignments and other rights. On or about Octo­
ber 10,1941, plaintiff was working for the Norfolk Southern 
Railroad Company as a locomotive fireman on a passenger 
run on its Northern Seniority District, running between 
Norfolk, Virginia and Marsden, North Carolina, under an 
individual contract of hiring, and was a member of the 
craft or class of locomotive firemen employed by said 
Railroad Company. Said run constituted one of the more 
Preferred jobs available to locomotive firemen employed by 
said Railroad Company. On or about said October 10, 1941, 
in order to secure for its own members the more favorable 
job assignments available to locomotive firemen employed 
by the Norfolk Southern Railroad Company, the defendant 
Brotherhood failed and refused to represent plaintiff im­
partially as was its duty under the Railway Labor Act, but 
on the contrary, acting in the premises as representative of 
the entire craft or class under the Railway Labor Act 
wrongfully used its position to induce and force the Norfolk 
Southern Railroad Company to remove him from his job 
assignment and replace him with one of its own members.

7. As a result whereof plaintiff lost his job assignment 
as a locomotive fireman on said passenger run and, in order 
to continue in his employment, was forced to accept and 
perform a less desirable assignment in yard service, where 
the hours are longer and the work more arduous and difficult.

V herefore, plaintiff demands judgment against the de­
fendant Brotherhood in the amount of $25,000, and costs.



5

COUNT II

1. Plaintiff adopts all of the allegations of paragraphs 
2, 3, 4, and 5, of Count I. He sues herein his individual 
capacity for wrongs inflicted on his individual rights, and 
as representative of all of the Negro firemen employed by 
the Norfolk Southern Railroad Company, and its successor 
in interest, the Norfolk Southern Railway Company. Said 
Negro firemen constitute a class too large to be brought 
individually before the Court, but there are common ques­
tions of law and fact involved herein, common grievances 
arising out of common wrongs, and common relief for the 
entire class is sought as well as special relief of this plain­
tiff; and the interests of said class are fairly and adequately 
represented by plaintiff.

2. The defendant, Norfolk Southern Railway Company, 
hereinafter called the Railway Company is a corporation, 
incorporated in the State of Virginia and is engaged in 
INTERSTATE COMMERCE, having its principal place 
of business in Norfolk, Virginia. It maintains and operates 
the system or lines of railroads formerly operated by the 
Norfolk Southern Railroad Company, which was also a 
corporation incorporated in the State of Virginia. By 
virtue of the Plan of Reorganization and Reorganization 
Agreement approved May 14, 1941, the Norfolk Southern 
Railway Company, assumed all contracts, leases, operating 
agreements, licenses or permits entered into by the Norfolk 
Southern Railroad Company, or modified or entered into 
by the Receivers thereof, not disaffirmed within such time 
as should be fixed by the Court. On or abnut January 21, 
1942, the Norfolk Southern Railway Company, pursuant to 
said Plan of Reorganization and' Reorganization Agree­
ment, began maintaining and operating the system or lines 
of railroads formerly .operated by the' Norfolk Southern 
Railroad Company and the agreements and contracts herein­
after mentioned have never been disaffirmed by said Railway



6

Company but have been adopted by said Company and are 
still in full force and effect, and wherever the terms “ Rail­
way”  or “ Railway Company,”  or “ railroad”  are used 
herein with reference to matters occuring prior to January 
21, 1942, said terms refer to the Norfolk Southern Railroad 
Company and/or its Receivers; if said matters occurred 
subsequent to January 21, 1942, said terms refer to the 
Norfolk Southern Railway Company, assignee and succes­
sor in interest to the Norfolk Southern Railroad Company.

3. The Negro firemen constitute the minority of the total 
number of firemen employed by the defendant Railway Com­
pany. The white locomotive firemen, all of whom are mem­
bers of the defendant Brotherhood, constitute the majority 
of the total number of locomotive firemen employed by the 
defendant Railway Company. The Negro firemen and the 
Brotherhood members comprise the entire craft or class of 
firemen employed by the defendant Railway. By constitu­
tional provision, ritual and practice the Brotherhood re­
stricts its membership to white locomotive firemen, the 
Negro locomotive firemen, including plaintiff and the class 
he represents being excluded therefrom solely because of 
race.

4. By virtue of the fact that they constitute the majority 
of the total number of locomotive firemen employed by the 
defendant Railway, the Brotherhood members ever since 
the passage of the Federal Railway Labor Act, June 21, 
1934 (48 Stat. 1185, c. 691, 45 U. S. C. c. 8), have chosen 
the defendant Brotherhood as the representative of the 
craft or class of firemen employed on defendant Railway, 
and the Brotherhood has accepted said position and has 
ever since claimed the. exclusive right to act, and has pur­
ported to act as the exclusive bargaining agent and griev­
ance representative of the entire craft or class aforesaid 
and its members have individually and collectively claimed 
the benefits of the actions of the Brotherhood as said rep-



7

resentative. Neither plaintiff nor any of the Negro loco­
motive firemen employed by the defendant Railway Com­
pany has chosen the Brotherhood as his representative but 
by virtue of the fact that the Brotherhood’s members con­
stitute the majority of the craft or class of locomotive fire­
men, employed by the Railway, plaintiff and the other 
Negro locomotive firemen, are compelled under the Railway 
Labor Act, to accept the Brotherhood as their representa­
tive for the purposes of the act.

5. As members of the craft or class of locomotive firemen 
employed by the defendant Railway Company, and being 
forced by the Railway Labor Act, to accept the representa­
tive chosen by the majority as their representative, plaintiff 
and the other Negro locomotive firemen have the right to 
be represented fairly and impartially and in good faith by 
the representative chosen by said majority. By accepting 
the position of representative under the Railway Labor 
Act, of the entire craft or class of locomotive firemen, and 
by asserting the exclusive right to act as such representa­
tive, defendant Brotherhood became the statutory agent of 
plaintiff and the other Negro minority members of said 
craft or class and under the obligation and duty to repre­
sent them fairly and impartially and in good faith; to give 
them reasonable notice, opportunity to be heard and a 
chance to vote on any action adverse to their interests pro­
posed by it ; to make prompt and full disclosure of all actions 
taken by it affecting their interests in any way, and to 
refrain from using its position as their statutory represen­
tative to discriminate against them in favor of itself and 
its members and from destroying their rights.

Nevertheless, in violation of its obligations and duties the 
defendant Brotherhood has been persistently hostile and 
disloyal to plaintiff and the other minority- nonmember 
Negro locomotive firemen, and has constantly sought to 
destroy their rights and to drive them out of employment 
m order to create a monopoly of the employment and the



8

most favored jobs and conditions for its own members. 
It has always refused and still refuses to notify plaintiff 
and the other Negro firemen, members of the craft or class, 
of proposed actions adversely affecting their interests or 
to give them a chance to be heard or to vote on same. It 
has constantly refused and still refuses to report to him or 
them its actions as their statutory representative or to 
handle their grievances wherever there is an apparent 
conflict or interest between them and its members; and 
has always refused and still refuses to give him and them 
fair, impartial, honest and faithful representation under 
the Eailway Labor Act.

6. On or about March 28, 1940, the Brotherhood, purport­
ing to act in the premises as the representative under the 
Railway Labor Act, of the entire craft or class of locomotive 
firemen employed on the Norfolk Southern Railroad and 
other railroads in the Southeastern section of the country, 
but acting in breach of its duties and in fraud of the rights 
of plaintiff and the other Negro locomotive firemen, mem­
bers of the craft or class, caused notice to be served on 
said railroads, including the defendant railroad, of its de­
sire and purpose to amend existing collective bargaining 
agreements covering the standard provisions of the in­
dividual hiring contracts of the individual firemen on each 
railroad, including the defendant railroad, in such manner 
as would drive the Negro firemen, including plaintiff, com­
pletely out of the service of said railroads. A  cony of said 
Notice is attached hereto as Exhibit I  and ineorported in 
full herewith.

7. On or about February 18,1941, pursuant to said Notice, 
the Brotherhood, purporting to act as the exclusive repre­
sentative under the Railway Labor Act of the entire craft 
oi class of locomotive firemen employed on defendant rail- 
i oad and other railroads in the Southeastern section of the 
country, did wrongfully prevail upon defendant Railway



9

Company to enter into agreement, and did wrongfully 
negotiate an agreement with the defendant Railway Com­
pany whereby the proportion of non-promotable firemen, 
and helpers on other than steam power, should not exceed 
fifty percent in each class of service established as such 
by the carrier, and providing that until such percentage 
was reached on any seniority district all new runs and all 
vacancies created by death, dismissal, resignation or dis­
qualification should be filled by promotable men; and further 
providing that non-promotable men were those who were 
not in line for promotion under the present rules and prac­
tices to the position of locomotive engineer. A  copy of said 
agreement of February 18,1941, is attached here as Exhibit 
II and incorporated herewith. Plaintiff alleges that under 
the rules and practices in effect that the time that this con­
tract was entered into and at the present time, all Negro 
locomotive firemen, including plaintiff, as a class, are 
arbitrarily considered ineligible for the position of loco­
motive engineer and are arbitrarily classified as non- 
promotable.

8. On or about May, 23, 1941, the Brotherhood, again 
purporting to act in the premises as the exclusive repre­
sentative under the Railway Labor Act of the entire craft 
or class, but acting in fraud of the rights of plaintiff and 
the other Negro minority firemen, and in breach of its 
duty to them, caused said agreement to be supplemented to 
provide specifically that the term ‘ ‘ nonpromotable firemen ’ ’ 
used therein referred only to colored firemen. A  copy of 
said agreement as supplemented is attached hereto as 
Exhibit III and incorporated herewith.

9. In serving said Notice of March 28, 1940, and in 
entering into the Agreement of February 18, 1941, and sup­
plement of May 23, 1941, the defendant Brotherhood, al­
though purporting to act as the exclusive representative 
of the entire craft or class of locomotive firemen employed



10

on defendant railroad, gave plaintiff and the other Negro 
minority firemen no notice thereof or opportunity to be 
heard or vote thereon; nor was the existence of said agree­
ment and supplement disclosed to them until the Brother­
hood forced plaintiff off his run by virtue thereof, as here­
inafter will appear more fully; hut the Brotherhood, well 
knowing plaintiff’s and the other Negro firemen’s interest 
therein, and maliciously intending and contriving to secure 
a monopoly of employment and the most favorable jobs 
for its own members, acted in fraud of the rights of plaintiff 
and the other Negro firemen and failed and refused to rep­
resent them fairly and impartially as was its duty as their 
representative under the Railway Labor Act.

10. On the date that said agreement and supplement went 
into effect the defendant railway company operated pas­
senger train service on its Northern Seinioritv District, 
running between Norfolk, Virginia and Marsden, North 
Carolina. Two firemen were used in said service one of 
whom was a white member of defendant Brotherhood and 
the other was a Negro firemen, nonmember of said Brother­
hood. Assignment to said, service constituted one of the 
more preferred assignments available to locomotive fire­
men employed on defendant railroad. The hours were 
shorter and the work less arduous than that required of 
locomotive firemen who were assigned to other classes of 
service, particularly yard service. On or about June 
1941, the white fireman who had been assigned to said run 
left it for another assignment, thereby creating a vacancy. 
In accordance with his individual contract of hiring plain­
tiff was assigned to said run. He worked said assignment 
with competence and skill and to the satisfaction of the 
Railway Company, until on or about October 10, 1941, when 
the.defendant Brotherhood, again fraudently and in breach 
of its duty as the representative under the Railway Labor 
Act of the entire craft or class of locomotive firemen, em­
ployed by the defendant Railway, did wrongfully press



11

said agreement and supplement and asserted that the plain­
tiff’s assignment to said run was in breach thereof, and 
wrongfully induced and forced the defendant Railway 
Company to remove plaintiff from said assignment and to 
assign defendant, W. M. Munden, a member of the Brother­
hood to same.

11. As a result whereof, plaintiff has lost his assignment 
on said passenger run and valuable property rights that 
have accrued to him while in the service of the defendant 
Railway Company, and in order to continue in his employ­
ment, has been forced to accept and perform an assignment 
in yard service where he has to work longer hours and per­
form more difficult and arduous labor, and unless this Hon­
orable Court grants relief he will be forced to continue to 
accept and perform more difficult and arduous labor and 
will suffer irreparable damage.

12. Plaintiff has requested the defendant Railway Com­
pany to restore him to his assignment on the passenger 
train but said defendant Railway Company asserted that 
under the provisions of the Railway Labor Act and said 
agreement entered into pursuant thereto, it is powerless 
to do so unless plaintiff’s representative under the Railway 
Labor Act, the defendant Brotherhood, demands it. He 
has requested the Brotherhood as his representative to 
represent him before the management of the Railway Com­
pany for the purpose of having his assignment and property 
rights restored but said Brotherhood, in violation of its 
duty has failed and refused to represent him or even to 
acknowledge his request.

13. The matters and things hereinbefore complained of 
constitute an actual controversy between plaintiff and the 
class he represents on the one side and the defendants on 
the other. The interests of plaintiff and the class he rep­
resents are adverse to the interests of the defendants and



12

those they represent. The right of plaintiff and the class he 
represents to he represented fairly and impartially and in 
good faith by the representative under the Railway Labor 
Act of the entire class or craft of locomotive firemen em­
ployed on defendant railroad has been violated and denied 
and, as a result, damaged incurred, and unless this Honor­
able Court will declare the rights, interests, and other legal 
relations of the respective parties, as provided for in Sec­
tion 400, Title 28, United States Code, and Rule 57 of the 
Federal Rules of Civil Procedure, numerous vexatious 
disputes will arise between the parties hereto and those they 
represent, and plaintiff will suffer irreparable and incal­
culable injury.

WHEREFORE, plaintiff prays:

1. A  declaratory judgment, binding on all the parties 
hereto and their privies, settling and declaring the rights, 
interests and legal relationships of the respective parties 
in and to and by reason of the matters hereinbefore detailed.

2. A declaratory judgment, that the defendant Brother­
hood in accepting the position and acting as the exclusive 
representative under the Railway Labor Act of the craft 
or class of locomotive firemen employed by the Norfolk 
Southern Railway Company, and its predecessors in in­
terest, assumed and is under the obligation to represent 
fairly and without discrimination all of the members of the 
said craft or class, including plaintiff and other minority 
locomotive firemen, nonmembers of said Brotherhood.

3. A permanent injunction against each and all of the 
defendants restraining and enjoining them and each of them 
from enforcing or otherwise recognizing the binding effect 
of the Agreement of February 18,1941, and'the supplement 
of May 23,1941, in so far as said agreement and supplement 
deprives plaintiff of his assignment on the passenger train



13

run between Norfolk, Virginia, and Marsden, North Caro­
lina, or in any other way interferes with his occupation as 
a locomotive firemen employed by the defendant Railway 
Company.

4. A permanent injunction against the Brotherhood, its 
officers, agents, or subordinate lodges, their officers and 
agents, perpetually restraining and enjoining them from 
acting or purporting to act as plaintiff’s representative or 
the representative of the other Negro firemen under the 
Railway Labor Act, so long as it or they, or any of them, 
refuse to represent him and them fairly and impartially; 
and so long as it or they continue to use its position to de­
stroy the rights of plaintiff and the class he represents 
herein.

5. Damages against the Brotherhood for its refusal to 
represent him and the destruction of his rights as a loco­
motive fireman in the amount of ($25,000.00) Twenty-Five 
Thousand Dollars.

6. Restoration of his right to hold his assignment oil the 
passenger run between Norfolk, Virginia and Marsden, 
North Carolina.

7. For such other and further relief as to the Court may 
seem just and proper.

J oseph  C. W addy 
615 F Street, N. W. 
Washington, D. C.
C harles  H . H ouston  
615 F Street, N. W. 
Washington, D. C,
Oliver  W. H ill  
117 E. Leigh Street 
Richmond, Virginia

Attorneys for Plaintiff.



14

BROTHERHOOD OF LOCOMOTIVE FIREM EN AND 
ENGINEMEN

GENERAL GRIEVANCE COMMITTEE

___________________________RAILWAY

March 28, 1940.

Mr_______________________________________

Dear Sir:

This is to advise that the employees of the______________
_______________  Railway engaged in service, represented
and legislated for by the Brotherhood of Locomotive Fire­
men and Enginemen, have approved the presentation of re­
quest for the establishment of rules governing the employ­
ment and assignment of locomotive firemen and helpers, as 
follows:

1. Only promotable men will he employed for service as 
locomotive firemen or for service as helpers on other than 
steam power.

2. When new runs or jobs are established in any service, 
only promotable firemen or helpers will be assigned to them.

3. When permanent vacancies occur or established runs 
or jobs in any service, only promotable firemen or helpers 
will he assigned to them.

4. It is understood that promotable firemen or helpers 
on other than steam power are those in line for promotion 
under the present rules and practices to the position of 
locomotive engineer.

In accordance with the terms of our present agreement, 
and in conformity with the provisions of the Railway Labor 
Act, kindly accept this as the required official notice of our 
desire to revise the.agreement to the extent indicated.



15

The same request is this date being presented on the 
following railroads:

Atlantic Coast Line 
Jacksonville Terminal 
Atlanta Joint Terminal 
Atlanta & West Point 
Western Railroad of Ala.
Central of Georgia 
Frankfort & Cincinnati 
Georgia Railroad 
Georgia & Florida 
Gulf, Mobile & Northern 
Louisville & Nashville 
Memphis Union Station Co.

It is our request that all lines or divisions of railway
controlled by the_________________________Railway shall be
included in settlement of this proposal and that any agree­
ment reached shall apply to all alike on such lines or divi­
sions.

It is desired that reply to our proposal be made in writing 
to the undersigned on or before April 7, concurring therein, 
or fixing a date within 30 days from date of this letter when 
conference with you may be had for the purpose of discuss­
ing the proposal. In event settlement is not reached in 
conference, it is suggested that this railroad join with 
others in authorizing a conference committee to represent 
them in dealing with this subject. In submitting this pro­
posal we desire that it be understood that all rules and 
conditions in our agreements not specifically affected by 
our proposition shall remain unchanged subject to change 
in the future by negotiations between the proper represen­
tatives as has been the same in the past.

Yours truly,

{Signed) G en eral  C h a ir m a n .

Louisiana and Arkansas 
Mobile and Ohio, Columbus 

& Greenville
Norfolk and Portsmouth 

Belt
Norfolk & Southern 
Norfolk & Western 
Seaboard Airline 
Southern Railroad System 
St. Louis-San Francisco 
Tennessee Central

E xhibit I.



16

AGREEMENT

BETW EEN
THE SOUTHEASTERN CARRIERS’ CONFERENCE 

COMMITTEE 
representing the

Atlantic Coast Line Railway Company 
Atlanta & West Point Railroad Company and Western 

Railway of Alabama 
Atlanta Joint Terminals 
Central of Georgia Railroad Company 
Georgia Railroad 
Jacksonville Terminal Company 
Louisville & Nashville Railroad Company 
Norfolk & Portsmouth Belt Line Railroad Company 
Norfolk Southern Railroad Company 
St. Louis-San Francisco Railway Company 
Seaboard Air Line Railway Company
Southern Railway Company (including State University 

Railroad Company and Northern Alabama Railway 
Company)

The Cincinnati, New Orleans and Texas Pacific Railway 
Company

The Alabama Great Southern Railroad Company (including 
Woodstock and Blacton Railway Company and Belt 
Railway Company of Chattanooga)

New Orleans and Northeastern Railroad Company 
New Orleans Terminal Company 
Georgia Southern and Florida Railway Company 
St. Johns River Terminal Company 
Harriman and Northeastern Railroad Company 
Cincinnati, Burnside and Cumberland River Railway 

Company
Tennessee Central Railway Company

and the

Brotherhood of Locomotive Firemen and Enginemen

(1) On each railroad party hereto the proportion of non-



17

promotable firemen, and helpers on other than steam power, 
shall not exceed fifty percent in each class of service estab­
lished as such on each individual carrier. This agreement 
does not sanction the employment of non-promotable men 
on any seniority district on which non-promotable men are 
not now employed.

(2) The above percentage shall be reached as follows:
(a) Until such percentage is reached on any seniority 
district only promotable men will be hired.
(b) Until such percentage is reached on any seniority 
district all new runs and all vacancies created by 
death, dismissal, resignation or disqualification shall 
be filled by promotable men. A  change in the start­
ing time of the same run or job will not be considered 
as constituting a new run.

(3) Except as provided in items (2) (a) and (2) (b) men 
now holding seniority as firemen, or helpers on other than 
steam power, shall be permitted to exercise seniority in ac­
cordance with their seniority and the rules of their respec­
tive schedules.

(4) It is understood that promotable firemen, or helpers 
on other than steam power, are those who are in line for 
promotion under the present rules and practices to the 
position of locomotive engineer.

(5) It is understood and agreed that on any road having, 
in the opinion o f its B. of L. F. & E. Committee, more 
favorable rules or conditions than above stipulated, such 
rules and conditions may at the option of such committee 
be retained in lieu of the above provisions.

(6) All persons hereafter hired as firemen shall be re­
quired, in addition showing, in the opinion of the manage­
ment, reasonable proficiency, to take within stated periods 
to be fixed by the three years, two examinations to be pre­
pared by management and to be applied to all alike to test 
their qualifications as firemen. A  fireman failing to pass 
either examination shall have a second trial within three 
months.



18

Firemen hereafter hired declining to take or failing to 
pass either of the examinations provided for in the pre­
ceding paragraph shall be dropped from the service.

Promotable firemen who pass the two examinations above 
referred to shall be required to take an examination for 
promotion to the position of engineer when they have had 
three and not more than four years of actual service. Upon 
passing such promotional examination and meeting all the 
requirements established by the carrier for the position of 
engineer, they shall, when there is need for additional en- 
giners, be promoted to such position, and will establish a 
seniority date as engineer in accordance with the rules con­
tained in the agreements on the individual railroads.

When rules for conduct of examinations for promotion 
are included in current schedules, such rules shall apply. 
In the absence of such rules firemen failing to pass will be 
given a second trial within a period of three months and if 
they fail to pass on the second trial will be given a third trial 
within a period of three months.

Promotable firemen declining to take examinations for 
promotion, or who fail in their efforts to successfully pass 
the same, shall be dropped from the service.

All promotable firemen now in the service physically 
qualified, who have not heretofore been called for examina­
tion for promotion, or who have not waived promotion, 
shall be called in their turn for promotion. When so called 
should they decline to take such examination for promotion 
or fail to pass as herein provided, they shall be dropped 
from the service.

(7) It is expressly understood that in making this agree­
ment representatives of the employees do not waive and 
are in no way prejudiced in the right to request agreements 
on the individual carriers here represented which will re­
strict the employment of helpers on other than steam power 
to promotable men; and it is agreed that this question is 
to be negotiated to a conclusion with the individual carriers.



19

(8) This agreement shall become effective February 22, 
1941.

Signed at Washington, D. C., this 18th day of February,
1941.

For the Carriers:

Southeastern Carriers’ 
Conference Committee

C. D. M a c k a y , Chairman
C. D. M ackay

H. A. B en ton

C. Gr. S ibley
Committee Members

E xh ibit  I I .

For the Employees:

Brotherhood of Locomotive 
Firemen and Enginemen

D. B. R obertson , President

Brotherhood of Locomotive 
Firemen and Enginemen’s 

Committee
W. C. M etcalee, Chairman



20

SUPPLEMENTARY AGREEM ENT EFFECTIVE FEB­
RUARY 22, 1941, TO THE AGREEM ENT BETWEEN  
THE NORFOLK SOUTHERN RAILROAD COMPANY 
AND THE BROTHERHOOD OF LOCOMOTIVE FIRE­
MEN AND ENGINEMEN DATED SEPTEM BER 1, 1928.

The purpose of this supplementary agreement is to in­
corporate as a part of the agreement dated September 1, 
1928, between the Norfolk Southern Railroad Company and 
The Brotherhood of Locomotive Firemen and Enginemen 
the agreement reached in mediation and covered by the 
National Mediation Board Docket Case No. A-905, which 
agreement reads as follows:

“ (1) On each railroad party hereto the proportion of 
non-promotable firemen, and helpers on other than steam 
power, shall not exceed fifty per cent in each class of service 
established as such oh each individual carrier. This agree­
ment does not sanction on which non-promotable men are 
not now employed.

(2) The above percentage shall be reached as follows:
(a) Until such percentage is reached on any seniority 
district only promotable men will be hired.
(b) Until such percentage is reached on any seniority 
district all new runs and all vacancies created by 
death, dismissal, resignation or disqualification shall 
be filled by promotable men. A  change in the start­
ing time^of the same run or job will not be considered 
as constituting a new run.

(3) Except as provided in items (2) (a) and (2) (b) 
men now holding seniority as firemen, or helpers on other 
than steam power, shall be permitted to exercise senority 
in accordance with their seniority and the rules of their 
respective schedules.

(4) It is understood that promotable firemen, or helpers 
on other than steam power, are those who are in line for 
promotion under the present rules and practices to the 
position of locomotive engineer.



21

(5) It is understood and agreed that on any road having, 
in the opinion of its B. of L. F. & E. Committee, more 
favorable rules or conditions than above stipulated, such 
rules and conditions may at the option of such committee be 
retained in lieu of the above provision.

(6) All persons hereafter hired as firemen shall be re­
quired, in addition to showing, in the opinion of the manage­
ment, reasonable proficiency, to take within staled periods 
to be fixed by management, but in no event to extend over 
a period of more than three years, two examinations to be 
prepared by management and to be applied to all alike to 
test their qualifications as firemen. A  fireman failing to 
pass either examination shall have a second trial within 
three months.

Firemen hereafter hired declining to take or failing to 
pass either of the examinations provided for in the preced­
ing paragraph shall be dropped from the service.

Promotable firemen who pass the two examinations above 
refered to shall be required to take an examination for pro­
motion to the position of engineer when they have had three 
and not more than four years of actual service. Upon pass­
ing such promotional examination and meeting all the re­
quirements established by the carrier for the position of 
engineer, they shall, when there is need for additional 
engineers, be promoted to such position, and will establish 
a seniority date as engineer in accordance with the rules 
contained in the agreements on the individual railroads.

When rules for conduct of examinations for promotion 
are included in current schedules, such rules shall apply. 
In the absence of such rules firemen failing to pass will be 
given a second trial within a period of three months and if 
they fail to pass on the second trial will be given a third trial 
within a period of three months.

Promotable firemen declining to take examinations for 
promotion or who fail in their efforts to successfully pass 
the same, shall be dropped from the service."

AH promotable firemen now in the service physically 
qualified, who have not heretofore been called for examina­
tion or promotion, or who have not waived promotion, shall



22

be called in their turn for promotion. When so called 
should they decline to take such examination or promotion 
or fail to pass as herein provided, they shall be dropped 
from the service.

(7) It is expressly understood that in making this agree­
ment representatives of the employees do not waive and 
are in no way prejudiced in the right to request agreements 
on the individual carriers here represented which will re­
strict the employment of helpers on other than steam power 
to promotable men; and it is agreed that this question is to 
be negotiated to a conclusion with the individual carriers.

(8) This agreement shall become effective February 
22, 1941.”

The committee representing the firemen requested that 
paragraphs 1 to 4 of the Mediation Board agreement quoted 
above be included as a part of this supplementary agree­
ment as provided for in paragraph 5 of said agreement.

The definition and application of the phrases “ —each 
class of service established as such— ”  contained in the first 
sentence of paragraph 1 as that the following constitute the 
classes of service to which paragraph 1 applied: 

Passenger 
Local Freight 
Through Freight 
Work, Ballast and Construction 
Yard

The provision of paragraph 2 (b) is understood and 
agreed to mean that not in excess of 50 percent non-pro- 
motable men will be assigned to any class of service on any 
seniority district.

E xam ple  1

In case of only one assignment, in any class of service, oh 
any seniority district, and such assignment is filled by a



23

non-promotable fireman, in the event of the death, dismissal, 
resignation or disqualification of such non-promotable fire­
men the assignment would then be filled by a promotable 
fireman.

E xam ple  2

In case of 4 assignments in any class of service on any 
seniority district filled by one promotable and 3 non-pro­
motable firemen, in the event of the death, dismissal, resig­
nation or disqualification of one of the non-promotable fire­
men, the assignment would then be filled by a promotable 
fireman.

It is understood and agreed that the phrase “ —non- 
promotable fireman— ”  carried in paragraph 1 of the above 
quoted agreement refers only to colored firemen.

It is agreed that promotable firemen now in the service 
who are physically qualified and not otherwise restricted, 
who have heretofore been called for examination for pro­
motion and failed, or who have waived promotion, will be 
called for examination for promotion between May 1 and 
May 15, 1942. In the event such firemen fail to pass ex­
amination for promotion, or waive examination, their 
seniority as firemen shall not be affected.

NORFOLK SOUTHERN RAILROAD COMPANY
M. S. HAW KINS and L. H. WINDHOLZ, Receivers

By: (Signed) J. C. P oe, 
Assistant to General Superintendent.

Accepted for the Firemen:
{Signed) G. M. D odson,

General Chairman,
Brotherhood of Locomotive Firemen 

- - .......-  avd Enginemen? - -  •

Raleigh,.N. C.
May 23, 1941.

E xh ibit  III.



24

AFFID AVIT OF TOM TUNSTALL

S tate of V irginia 
C ity  of N orfolk , s s :

TOM TUNSTALL, plaintiff, being first duly sworn, on 
oath states in opposition to the motion of Carl J. Goff:

I. He denies that W. M. Munden, a defendant herein, is 
not an agent or officer of the defendant Brotherhood of 
Locomotive Firemen and Enginemen or that his duties are 
restricted to represent only the Norfolk Southern mem­
bers of Ocean Lodge No. 76 in the handling of grievances 
with local officials of the Norfolk Southern Railroad, and 
states that the defendant Brotherhood as the statutory 
representative under the Railway Labor Act of the craft or 
class of locomotive firemen, including plaintiff and the 
minority non Brotherhood negro firemen on said railroad, 
has delegated its powers for representing the entire craft 
or class of firemen on the northern seniority district of the 
Norfolk Southern Railroad, on which plaintiff works, to 
the defendant W. M. Munden, local chairman of Ocean 
Lodge No. 76 for the handling of grievances of the indi­
vidual members of the craft or class of firemen on said 
northern seniority district with the local officials of said 
railroad; that in the premises he acts as agent or officer 
of the Brotherhood; that as such agent or officer of the 
Brotherhood he did induce and force the Norfolk Southern 
Railroad to remove plaintiff from his job assignment as 
alleged in the complaint.

T om T unstall

Subscribed and sworn to before me this 4th day o f March, 
1943.

Notary Public
My commission expires_________________________________



25

T om T unstahl, \
Plaintiff I

TTQ
j Civil Action No. 210. 

B rotherhood of L ocomotive i
F iremen and E n g in e m e n , et al. J

Defendants. j

MOTION TO DISMISS UNDER RULE 12 (b).

Now comes defendant, Brotherhood of Locomotive Fire­
men and Enginemen, a voluntary unincorporated associa­
tion, by and through D. B. Robertson and Carl J. Goff, its 
President and Assistant President, respectively, appearing 
specially for the following purposes and no other, and 
without intending there-by to make any general appearance 
in this cause and moves the Court as follow s:

I

To dismiss the action so far as concerns this defendant, 
on the grounds:

(a) That there has been no service of process on this 
defendant as appears by the return of the Marshall of 
the Eastern District of Virginia on the original complaint 
in this cause;

(b) That this defendant is a voluntary unincorporated 
association with its headquarters in the City o f Cleveland, 
in the State of Ohio, and that, no officer of said defendant 
nor any trustee of said defendant has been served with 
process within the Eastern District of Virginia or else­
where; all of which more fully appears by the affidavit of

IN THE
DISTRICT COURT OF THE UNITED STATES

F oe the E astern Distbict of V irginia



26

said Carl J. Golf attached to and made a part of this 
motion;

(c) That there has been no proper service of process on 
this defendant;

II

To dismiss the action on the ground that this Court 
lacks jurisdiction because

(a) The amount actually in controversy is less than 
$3,000 exclusive of interest and costs;

(b) That the action does not arise under the Constitution 
or laws of the United States;

(c) That no sufficient basis of Federal jurisdiction is 
alleged or appears from the complaint; and

(d) That there is no diversity of citizenship alleged or 
shown in the complaint.

I l l

To dismiss the action because the Court lacks jurisdic­
tion over the person of this defendant by reason of the 
fact that there has been no service on this defendant and 
this defendant is not before the Court.

H a r o l d  C. H e i s s  

906 Keith Building,
Cleveland, Ohio

W m. G. M attpix 
415 Bank of Commerce Bldg.

Norfolk, Virginia

Attorneys for defendant. Brotherhood
of Locomotive Firemen cf Enprnemen, 
appearing specially as foresaid.



27

DISTRICT COURT OF THE UNITED STATES
F ob th e  E astern  D istrict  of V irgin ia

N orfolk  D ivision

T om T unstahl, \
Plaintiff, I

vs■ '.Civil Action File No. 210
B rotherhood of L ocomotive l
F iremen and E n g in e m e n , et al., ]

Defendants.)

A F F ID A V IT  OF CARL J. GOFF

State of Oh io  1
Cuyahoga C o u n ty  j  S S '

CARL J. GOFF, being first duly sworn, deposes and 
says that he resides in the City of Shaker Heights, County 
of Cuyahoga, State of Ohio; that he is Assistant President 
of the Brotherhood of Locomotive Firemen and Engine- 
men, and that this affidavit is being made for use in con­
nection with the motion to dismiss filed by said Brother­
hood in the case of Tom Tunstall v. Brotherhood of Loco­
motive Firemen and Enginemen, et al., Pending in the 
District Court of the United States for the Eastern District 
of Virginia, Norfolk Division, Civil Action File No. 210.

Affiant says that the Brotherhood of Locomotive Fire­
men and Enginemen, hereinafter called Brotherhood, is a 
voluntary unincorporated association having its headquar­
ters in the City of Cleveland, Ohio; that it has more than 
105,000 members scattered throughout the United States 
and Canada ; that it is a labor organization, international 
m scope; that its membership is limited to individuals who 
are engaged either in the United States or Canada in the 
trade or calling of locomotive engineer or fireman, and



28

that said association is not organized or operated for 
pecuniary profit.

Affiant further says that representatives of the mem­
bership of said Brotherhood assembled in Convention, 
there being one representative from each of the more than 
nine hundred local lodges of the Brotherhood, elect a corps 
of officers consisting of the following, to-wit: President, 
Assistant President, Vice-President-National Legislative 
Representative for the United States, ten Vice-Presidents, 
General Secretary and Treasurer and Editor and Manager 
of the Magazine. That said officers are alone empowered 
to and do conduct the affairs of the Brotherhood between 
Conventions, and are its only representatives.

Affiant further says that said local lodges are located at 
division points on railways throughout the United States 
and Canada. Each of said local lodges is within itself a 
separate and distinct voluntary unincorporated association 
officered and directed by men solely from its own member­
ship and of its own selection. Each of said lodges is itself 
primarily responsible for the settlement of all its problems 
or trade disputes arising in its local field.

Affiant further says that W. M. Munden, one of the named 
defendants in this cause, is a local chairman of one of such 
local lodges, to-wit. Ocean Lodge No. 76, which has about 
115 members; that said "W. M. Munden is employed by the 
Norfolk Southern Railroad and is local chairman (which 
means chairman of the local grievance committee) of said 
local lodge for the Norfolk Southern Railroad. That said 
V\ M. Munden is compensated for his services by said 
local Lodge No. 76 only, from funds collected from the 
members of said lodge employed on the Norfolk Southern 
Railroad. That the duties of said W. M. Munden are to 
represent only the Norfolk Southern members of said' lodge 
in the handling of grievances with local officials of the Nor­
folk Southern Railroad, and with no other railroad offi­
cials whatever, and that his duties are limited to said



29

business and affairs of the Norfolk Southern members of 
said local Lodge No. 76. That said W. M. Munden was 
elected at office solely by the Norfolk Southern members 
of said local Lodge, is responsible only to them and is not 
an agent, officer, general agent or employee of the Brother­
hood, nor does he act for the Brotherhood when enforcing 
the schedule of rules and job assignments on the northern 
seniority district of the Norfolk Southern Railroad.

Affiant further says that the funds for defraying the 
costs and expenses and for carrying out the purposes of 
local Lodge No. 76 are derived from dues and assessments 
levied by said local lodge on its members; that funds for 
use of the local grievance committee of said Ocean Lodge 
No. 76, of which W. M. Munden is chairman, are derived 
from assessments levied solely by the members of said local 
lodge employed on said Norfolk Southern Railroad upon 
themselves for the purpose of carrying on the functions 
of said local grievance committee. That no one other than 
a member of said lodge employed on the adjacent seniority 
district of the Norfolk Southern has any voice in the elec­
tion of, or the term of office of, or direction of duties of 
said W. M. Munden.

Carl J. G off

Subscribed and sworn to before me, a Notary Public in 
and for said County and state, this 28th day of August, 
A.D. 1942.

C. D. T heis,
Notary Public.

My commission expires June 17, 1945. (Notarial Seal)



30

IN THE
DISTRICT COURT OF THE UNITED STATES

F oe the E astern" District of V irginia

T om T u n stall ,
Plaintiff,

vs.

B rotherhood of L ocomotive 
F irem en  and E n g in e m en , et al., 

Defendants.

- Civil Action No. 210.

MOTION TO DIMISS UNDER RULE 12 (b)

Now comes defendant Port Norfolk Lodge No. 775, Ports­
mouth, Virginia, and moves the Court as follows :

To dismiss the action on the grounds that this Court lacks 
jurisdiction because:

(a) The amount actually in controversy is less than 
$3,000 exclusive of interest and costs;

(b) That the action does not arise under the Constitu­
tional or laws of the United States;

(c) That no sufficient basis of Federal jurisdiction is 
alleged or appears from the complaint; and

(d) That there is no diversity of citizenship alleged or 
shown in the complaint.

H arold C. H eiss,
906 Keith Building, 

Cleveland, Ohio

W h . Gr. M attpin,
415 Bank of Commerce Bldg. 

Norfolk, Virginia
Attorneys for defendant Port Norfolk 
Lodge No. 775, Portsmouth. Virginia



31

IN THE
DISTRICT COURT OF THE UNITED STATES

F oe the E astern D istrict of V irginia

T om T u n stall ,
Plaintiff,

vs. „ Civil Action No. 210.

B rotherhood of L ocomotive 
F iremen and E n g in e m e n , et al, 

Defendants. _

MOTION TO DIMISS UNDER RULE 12 (b)

Now comes defendant W. M. Munden, Norfolk, Virginia, 
and moves the Court as follow s:

To dismiss the action on the grounds that this Court 
lacks jurisdiction because:

(a) The amount actually in controversy is less than 
$3,000.00 exclusive of interest and costs;

(b) That the action does not arise under the Constitu­
tion or laws of the United States;

(c) That no sufficient basis of Federal jurisdiction is 
alleged or appears from the complaint; and

(d) That there is no diversity of citizenship alleged or 
shown in the complaint.

H arold C. H eiss,
906 Keith Building, 

Cleveland, Ohio

W m . G. M a u p in ,
415 Bank of Commerce Bldg. 

Norfolk, Virginia

Attorneys for defendant W. M. Munden



32

IN THE
DISTRICT COURT OF THE UNITED STATES

F ob the E astern D istrict of V irginia

T om T un stall ,
Plaintiff,

" Civil Action No. 210.
B rotherhood op L ocomotive 
F iremen  and E n g in e m en , et al, 

Defendants.

MOTION TO DISMISS AND QUASH PURPORTED 
SERVICE OF SUMMONS UNDER RULE 12 (b)

Now comes defendant, Ocean Lodge No. 76, Norfolk, 
Virginia, appearing specially for the following purposes 
and no other, and without intending thereby to make any 
general appearance in this cause, and moves the Court 
as follows:

I

To dismiss the action so far as concerns this defendant 
and to quash the purported service of summons on this 
defendant on the grounds that

(a) This defendant is a voluntary unincorporated asso­
ciation with headquarters in the Eastern District of Vir­
ginia, and that no officer of said defendant, nor any trustee 
of said defendant has been served with process within the 
Eastern District of Virginia or elsewhere;

(b) That there has been no proper service on this de­
fendant as appears by the return of the Marshall of the 
Eastern District of Virginia on the original complaint in 
this cause.



33

II

To dismiss the action on the grounds that this Court 
lacks jurisdiction because

(a) The amount actually in controversy is less than 
$3,000.00 exclusive of interest and costs;

(b) That the action does not arise under the Constitution 
or laws of the United States;

(c) That no sufficient basis of Federal jurisdiction is 
alleged or appears from the complaint; and

(d) That there is no diversity of citizenship alleged or 
shown in the complaint.

I l l

To dismiss the action because the Court lacks juris­
diction over the person of the defendant by reason of the 
fact that there has been no service on this defendant and 
this defendant is not before the Court.

H aroi.d C. H eiss,
906 Keith Building, 

Cleveland, Ohio

W m . G. M attpin,
415 Bank of Commerce Bldg.

Norfolk, Virginia

Attorneys for defendant, Ocean Lodge 
No. 76, Norfolk, Virginia.



34

IN THE
DISTRICT COURT OF THE UNITED STATES

F ob the E astern Distbigt op V irginia

T om T unstajll,
Plaintiff,

vs.

B rotherhood op L ocomotive 
F iremen  and E n g in e m e n , 

and Others,
Defendants.

- Civil Action File No. 210

Norfolk Southern Railway Company, one of the defend­
ants in the above entitled cause, moves the Court to dismiss 
the action on the following grounds, to-wit:

1. Because of lack of 'jurisdiction over the subject mat­
ter asserted in the complaint, there being no Federal ques­
tion involved, nor other reason giving jurisdiction to this 
Court.

2. Because the Brotherhood of Locomotive Firemen and 
Enginemen is a necessary party to this action, and has not 
been brought before this Court, nor process served upon 
said Brotherhood.

3. Because the complaint does not state a claim upon 
which relief can be granted, showing no cause of action 
against this defendant,

(Signed) J as. G. M ar tin  
Attorney for Norfolk Southern Railway Co. 

500 Western Union Bldg., Norfolk, Va.

To the Attorneys for Plaintiff in the above entitled cause.

Take Notice, that the above motion is being filed in said



35

(Signed) J as . Gr. M ar tin  
Attorney for Norfolk Southern Railway Go. 

500 Western Union Bldg., Norfolk, Va.

Norfolk, Virginia.
August 27th, 1942.

This certifies that the above motion was served upon 
the attorney for the plaintiff in the above entitled cause 
this day by mailing a copy thereof to Mr. Oliver W. Hill, 
plaintiff’s attorney, 117 East Leigh Street, Richmond, 
Virginia.

(Signed) J as . Gr. M ar tin  
Attorney for Norfolk Southern Railway Go. 

500 Western Union Bldg., Norfolk, Va.

cause, and will come on for hearing in said Court at a
time to be fixed by said Court, of which time notice will
be given.



(N orfolk  D iv isio n )

IN THE
UNITED STATES DISTRICT COURT
F ob the Eastern- D istrict of V irginia

T om T un stall ,
Plaintiff,

vs.

B rotherhood of L ocomotive 
F iremen  and E n g in em en ,
Norfolk, Virginia 

and
O cean L odge, No. 76,
Norfolk, Virginia

an(l Civil Action No. 210.
P ort N orfolk L odge, No. 775 
Portsmouth, Virginia 

and
W . M. M un den ,
1123 Hawthorne Avenue,
Norfolk, Virginia 

and
N orfolk S outhern  R ailw ay  
C ompany , a corporation,
Norfolk, Virginia

Defendants.

OPINION

In the above entitled civil action plaintiff, Tom Tunstall, 
f  eges and sets forth the following cause against the de- 
iendants therein named.

That he is a Negro citizen of the United States and the 
ate of Virginia; that the defendant, Brotherhood of Loco- 

moti\ e Firemen and Enginemen (hereinafter called the



37

Brotherhood) is an international unincorporated associa­
tion whose membership is derived principally from white 
firemen and enginemen employed on interstate railroads, 
including defendant, Norfolk Southern Railway Company, 
formerly Norfolk Southern Railroad Company (hereinafter 
referred to as the Railway), and that said Brotherhood is 
the representative under the Railway Labor Act, 1934, 48 
Stat., 1185, U. S. C., Title 45, Chapter 8, of the craft or class 
of locomotive firemen employed on the Railway. The 
Brotherhood is composed of a Grand Lodge and over nine 
hundred subordinate lodges, and defendants, Ocean Lodge, 
No. 76, and Port Norfolk Lodge, No. 775, are subordinate 
lodges of the Brotherhood, having their locations in Norfolk 
and Portsmouth, respectively, within the jurisdiction of 
this Court. The business of each subordinate lodge is 
managed by a president, recording secretary, legislative 
representative, local organizer and local chairman. The 
members of the defendant subordinate lodges are either 
employed by the Railway, and directly involved in the 
matters herein complained of, or are members of the de­
fendant Brotherhood resident within the jurisdiction of 
this Court.

Defendant, W. M. Munden, is a white locomotive fireman 
employed by the Railway and a member of the Brother­
hood. Because of the wrongs inflicted by the Brotherhood 
upon plaintiff and his class, Munden has gained certain ad­
vantages and considerations which rightfully belong to 
plaintiff. Munden is local chairman of defendant Ocean 
Lodge No. 76, and acts for the Brotherhood in enforcing 
the schedule of rules and working conditions and in matters 
of grievance adjustments and job assignments on the North­
ern Seniority District of the Railway. Munden is sued in 
his own right and as a representative of the members of 
the Brotherhood, particularly those employed on the Rail­
way.

That at all times material herein the Brotherhood has 
been the representative under the Railway Labor Act afore­



38-

said of the entire craft or class of locomotive firemen em­
ployed by the Railway, and, as such, under a duty under 
said Act to represent the members of said craft or class 
impartially and to refrain from using its position to destroy 
their job assignments and other rights. On or about October 
10, 1941, a plaintiff was working for the Railway as a loco­
motive fireman on a passenger run on its Northern Seniority 
District, running between Norfolk, Virginia and Marsden, 
North Carolina, under an individual contract of hiring, and 
was a member of the craft or class of locomotive firemen 
employed hy the Railway. Said run constituted one of the 
more preferred jobs available to locomotive firemen em­
ployed by said Railway. On or about said October 10,1941, 
in order to secure for its own members the more favorable 
job assignments available to locomotive firemen employed 
by the Railway, the Brotherhood failed and refused to 
represent plaintiff impartially as was its duty under the 
Railway Labor Act, but on the contrary, acting in the 
premises as representative of the entire craft or class 
under that Act wrongfully used its position to induce and 
force the Railway to remove him from his job assignment 
and replace him with one of the Brotherhood members:

That as a result plaintiff lost his job assignment as a 
locomotive fireman on said passenger run and, in order to 
continue in his employment, was forced to accept and per­
form a less desirable assignment in yard service, where the 
hours are longer and the work more arduous and difficult.

Plaintiff sues in his individual capacity for wrongs in­
flicted on his individual rights, and as representative of all 
of the Negro firemen employed by the Railway. He alleges 
that the Negro firemen constitute a class too large to be 
brought individually before the Court, but there are common 
questions of law and fact involved herein, common griev­
ances arising out of common wrongs, and common relief 
for the entire class is sought as well as special relief for 
the plaintiff; and that the interests of said class are fairly 
and adequately represented by plaintiff.



39

The white locomotive firemen, all of whom are members 
of the Brotherhood, constitute the majority of tlm total 
number of locomotive firemen employed by the Railway, 
and they and the Negro firemen comprise the entire craft 
or class of firemen employed by the Railway.

By constitutional provision, ritual and practice the 
Brotherhood restricts its membership to white locomotive 
firemen, and Negro locomotive firemen, including plaintiff 
and the class he represents, are all excluded from the 
Brotherhood solely because of race.

He alleges that by virtue of the fact that they constitute 
the majority of the total number of locomotive firemen em­
ployed by the defendant Railway, the Brotherhood members 
ever since the passage of the Federal Railway Labor Act, 
June 21, 1934 (48 Stat., 1185, c. 691, 45 U. S. C., c. g.), have 
chosen the defendant Brotherhood as the representative 
of the craft or class of firemen employed on the Railway. 
The Brotherhood has accepted said position and has ever 
since claimed the exclusive right to act, and has purported 
to act as the exclusive bargaining agent and grievance rep­
resentative of the entire craft or class aforesaid and its 
members have individually and collectively claimed the 
benefits of the actions of the Brotherhood as said represen­
tative. Neither plaintiff nor any of the Negro locomotive 
firemen employed by the Railway has chosen the Brother­
hood as his representative but by virtue of the fact that 
the Brotherhood’s members constitute the majority of the 
craft or class of locomotive firemen, employed by the Rail­
way, plaintiff and the other Negro locomotive firemen, are 
compelled under the Railway Labor Act, to accept the 
Brotherhood as their representative for the purposes of 
the A ct..................

As members of the craft or class of locomotive firemen 
employed by the Railway, and' being forced by the Railway 
Labor Act to accept the representative chosen by the ma­
jority as their representative, plaintiff and other Negro 
locomotive firemen have the right to be represented fairly



40

and impartially and in good faith by the representative 
chosen by said majority. By accepting the position of rep­
resentative under the Bailway Labor Act, of the entire 
craft or class of locomotive firemen, and by asserting the 
exclusive right to act as such representative, defendant 
Brotherhood became the statutory agent of plaintiff and 
the other Negro minority members of said craft or class 
and under the obligation and duty to represent them fairly 
and impartially and in good faith; to give them reasonable 
notice, opportunity to be heard and a chance to vote on any 
action adverse to their interests proposed by it; to make 
prompt and full disclosure to all actions taken by its affect­
ing their interests in any way, and to refrain from using its 
position as their statutory representative to discriminate 
against them in favor of itself and its members and from 
destroying their rights. Nevertheless, in violation of its 
obligations and duties the Brotherhood has been persistently 
hostile and disloyal to plaintiff and the other minority non­
member Negro locomotive firemen, and has constantly 
sought to destroy their rights and to drive them out of em­
ployment in order to create a monopoly of the employment 
and the most favored jobs and conditions for its own mem­
bers. It has always refused and still refuses to notify 
plaintiff and the other Negro firemen, members of the craft 
or class, of proposed actions adversely affecting their in­
terests or to give them a chance to be heard or to vote on 
same. It has constantly refused and still refuses to report 
to him or them its actions as their statutory representative 
or to handle their grievances wherever there is an apparent 
conflict or interest between them and its members; and has 
always refused and still refuses to give him and them fair, 
impartial, honest and faithful representation under the 
Bailway Labor Act.

On or about March 28, 1940; the Brotherhood, purporting 
to .act in the premises as the representative under the Bail­
way Labor Act, of the entire craft or class of locomotive 
firemen employed on the Bailwav and other railroads in the



41

southeastern section of the country, but acting in breach of 
its duties and in fraud of the rights of plaintiff and the 
other Negro locomotive firemen, members of the craft or 
class, caused notice to be served on said railroads, including 
the defendant Railway, of its desire and purpose to amend 
existing collective bargaining agreement covering the 
standard provisions of the individual hiring contracts of 
the individual firemen on each railroad, including the de­
fendant Railway, in such manner as would drive the Negro 
firemen, including plaintiff, completely out of the service 
of said railroads.

On or about February 18, 1941, pursuant do said notice, 
the Brotherhood, purporting to act as the exclusive repre­
sentative under the Railway Labor Act of the entire craft 
or class of locomotive firemen employed on defendant Rail­
way and other railroads in the southeastern section of the 
country, did wrongfully prevail upon the Railway to enter 
into agreement, and did wrongfully negotiate an agreement 
with the Railway whereby the proportion of non-promo- 
table firemen, and helpers on other than steam power, should 
not exceed fifty percent in each class of service established 
as such by the carrier, and providing that until such per­
centage was reached on any seniority district all new runs 
and all vacancies created by death, dismissal, resignation 
or disqualification should be filled by promotable men; and 
further providing that non-promotable men are those who 
were not in line for promotion under the present rules and 
practices to the position of locomotive engineer.

Plaintiff also alleges that under the rules and practices 
in effect at the time that this contract was entered into and 
at the present time, all Negro locomotive firemen, including 
plaintiff, as a class, are arbitrarily ineligible for the posi­
tion of- locomotive engineer and' are arbitrarily classified as 
non-promotable. ■•■■■ • ; ....... • v *............. - - *

On o r  about May 23, 1941, the complaint'sets forth, the 
Brotherhood, again purporting to act in the premises as the 
exclusive representative under the Railway Labor Act of the



42

entire craft or class, but acting in fraud of the rights of the 
plaintiff and the other Negro minority firemen, and in 
breach of its duty to them, caused said agreement to he 
supplemented to provide specifically that the term “ non- 
promotable firemen”  used therein referred only to colored 
firemen.

In serving said notice of March 28,1940, and entering into 
the agreement of February 18,1941, and supplement of May 
23,1941, the Brotherhood, although purporting to act as the 
exclusive representative of the entire craft or class of loco­
motive firemen employed by defendant Railway, gave plain­
tiff and the other Negro minority firemen no notice thereof 
or opportunity to be heard or vote thereon; nor was the 
existence of said agreement and supplement disclosed to 
them until the Brotherhood forced plaintiff off his run by 
virtue thereof, as hereinafter will appear more fully; but 
the Brotherhood, well knowing plaintiff’s and the other 
Negro firemen’s interest therein, and maliciously intending 
and contriving to secure a monopoly of employment and the 
most favorable jobs for its own members, acted in fraud of 
the rights of plaintiff and the other Negro fireman and 
failed and refused to represent them fairly and impartially 
as was its duty as their representative under the Railway 
Labor Act.

On the date that said agreement and supplement went 
into effect the Railway operated passenger train service on 
its northern seniority district, running between Norfolk, 
Virginia, and Marsden, North Carolina. Two firemen 
were used in said service, one of whom was a white member 
of defendant Brotherhood and the other was a Negro fire­
man, non-member of the Brotherhood. Assignment to 
said service constituted one of the more preferred assign­
ments available to locomotive firemen. employed on the 
Railway. The hours were shorter and the work less arduous 
than that required of locomotive firemen who were assigned 
to other classes of service, particularly yard service. On 
or about June 1941, the white fireman who had been as­



43

signed to said run, left it for another assignment, thereby 
creating a vacancy. In accordance with his individual con­
tract of hiring plaintiff was assigned to said run. He 
worked said assignment with competence and skill and to 
the satisfaction of the Railway, until on or about October 
10, 1941, when the Brotherhood again fraudulently and in 
breach of its duty as the representative under the Railway 
Labor Act of the entire craft or class of locomotive firemen, 
employed by the Railway, did wrongfully press said agree­
ment and supplement and asserted that the plaintiff’s as­
signment to said run was in breach thereof, and wrong­
fully induced and forced the Railway to remove plaintiff 
from said assignment and to assign defendant, W. M. 
Munden, a member of the Brotherhood, to same. As a re­
sult, plaintiff has lost his assignment on said passenger 
run and valuable property rights that have accrued to him 
while in the service of the Railway, and in order to con­
tinue in his employment, has been forced to accept and 
perform an assignment in yard service where he has to work 
longer hours and perform more difficult and arduous labor, 
and unless this Honorable Court grants relief he will be 
forced to continue to accept and perform more difficult and 
arduous labor and will suffer irreparable damage.

Plaintiff has requested the Railway to restore him to his 
assignment on the passenger train but the Railway asserts 
that under the provisions of the Railway Labor Act and said 
agreement entered into pursuant thereto, it is powerless to 
do so unless plaintiff’s representative under the Railway 
Labor Act, the Brotherhood, demands it. Plaintiff has re­
quested the Brotherhood as his representative to represent 
him before the management of the Railway for the purpose 
of having his assignment and property rights restored but 
said Brotherhood, in violation of its duty has failed and 
refused to. represent him or-even to acknowledge his request.

Plaintiff alleges that the matters and things complained 
of constitute an actual controversy between him and the 
class he represents on the one side and the defendants on



44

the other. The interests of plaintiff and the class he rep­
resents are adverse to the interests of the defendants and 
those they represent. The right of plaintiff and the class 
of which he is a member, to be represented fairly and im­
partially and in good faith by the representative under the 
Kailway Labor Act of the entire class or craft of locomotive 
firemen employed on defendant Railway has been violated 
and denied and, as a result, damages incurred, and unless 
this Honorable Court will declare the rights, interests, and 
other legal relations of the respective parties, as provided 
for in Section 400, Title 28, United States Code, and Rule 
57 of the Federal Rules of Civil Procedure, numerous vexa­
tious disputes will arise between the parties hereto and 
those they represent, the plaintiff will suffer irreparable 
injury.

Plaintiff files as exhibits with his complaint, copies of 
documents which strongly support his allegations. In 
substance, he prays for a declaratory judgment holding the 
discrimination against him and other Negro firemen 
similarly situated to be arbitrary and illegal; for an in­
junction permanently restraining and enjoining the defend­
ants from recognizing or enforcing the agreement and the 
supplement thereto, between the Brotherhood and the Rail­
way, and enjoining the Brotherhood from acting or purport­
ing to act as plaintiff’s representative so long as the Brother­
hood refuses to represent him and other Negro firemen 
similarly situated, fairly and impartially, to enjoin the 
Brotherhood from continuing to use its position of bargain­
ing agent to destroy the rights of plaintiff and other Negro 
firemen similarly situated, and for a judgment for damages 
against the Brotherhood because of its refusal fairly to 
represent him and for damages resulting from the destruc­
tion of his rights, and that his right, to hold his assignment 
between Norfolk, Virginia, and Marsden, North Carolina,'be 
restored and protected..................  ' •• " "

The defendants have filed a motion to dismiss upon the 
ground, among others, that this Court is without any



45

jurisdiction of the action alleged in the complaint. It 
definitely appears from the record that plaintiff, Tom 
Tunstall, and the defendants, or at least a majority of them, 
including the Railway, W. M. Munden, and defendants al­
leged to be local agents of the Brotherhod, are citizens of 
Virginia, and that diversity of citizenship between plaintiff 
and defendants is lacking. Plaintiff bases his claim that 
this Court has jurisdiction of the action upon the alleged 
ground that a Federal question is involved, in that the deci­
sion of the case turns upon the construction of the Railway 
Labor Act of Congress, June 21, 1934, and upon U. 8. C., 
Title 28, Sec. 41 (8).

The allegations of the complaint may be summarized as 
follows:

That pursuant to the provisions of the Railway Labor 
Act of 1934, the Brotherhood has been chosen and is the 
representative or bargaining agent of the craft or class of 
enginemen and firemen for the purpose of collective bar­
gaining with the Railway and has been and is acting as 
such; that the Brotherhood is composed of white members 
only and Negro firemen are excluded from membership 
therein; that a majority of the members of that craft or 
class are members of the Brotherhood, as a result of which, 
having a majority of all of the members of the craft or class, 
the Brotherhood has been selected as its bargaining agent; 
that under the Railway Labor Act the Brotherhood is sole 
bargaining agent and the Railway must treat with the 
Brotherhood only and can not treat with plaintiff or other 
minority firemen; that the law makes it the duty of the 
Brotherhood as such bargaining agent of the craft or class 
to represent all members thereof fairly and impartially, 
without- regard to whether they are or are not members of 
the Brotherhood, or minority members of the craft • and 
that the- Brotherhood, acting in its capacity as bargaining 
agent, has failed and refused to represent the colored fire­
men fairly and impartially, but, on the contrary, has wrong­
fully and fraudulently used its position and power as bar­



46

gaining agent to injure and destroy the rights of plaintiff 
and other Negro firemen similarly situated, for the benefit of 
Brotherhood’s own members.

The question presented is whether or not the Bailway 
Labor Act, after providing as it does, procedure for select­
ing a bargaining agent as sole representative of a craft or 
class and ma-king it the duty of the Bailway to recognize and 
treat with such bargaining agent, stops short without im­
posing any duty or obligation upon such bargaining agent 
to represent fairly and impartially the minority as well as 
the majority members of the craft or class, and without 
affording any remedy to the minority, in this instance the 
Negro firemen, for alleged wrongful and fraudulent mis­
representation such as is specifically and directly charged 
in the complaint.

To state the question another way, are the minority mem­
bers of a craft or class given any remedy by the Bailway 
Labor Act of 1934, for alleged wrongs committed by the 
bargaining agent, or is the minority relegated for relief to 
the law of the state or states in which the wrongs are alleged 
to have been perpetrated?

As already noted, the Bailway Labor Act of 1934 provides 
for the members of a craft or class of an interstate railway 
to select a bargaining agent to represent that craft or class 
for the purpose of collective bargaining, and requires the 
Bailway to recognize and treat with the agent so selected, 
Virginian Railway Co. v. System Federation No. 40, etc., 300 
U. S., 515, affirming Fourth Cir., 84 Fed. 2d, 641, and the 
Bailway can treat only with the agent selected by the craft 
or class, Atlantic Coast Line R. Co. v. Pope Fourth Cir., 119 
Fed, 2d, 39. However, we search the Bailway Labor Act in 
vain for any provision affording protection to the minority 
against wrongful, arbitrary or oppressive action o f the 
majority through the bargaining agent which the majority 
has selected. The Act is silent in that respect. It stops 
short after providing for the selection of the bargaining



47

agent and imposing upon the Railway the duty to treat with 
that agent alone after he is selected. Numerous authorities 
were cited and quoted in the arguments, among them Teague 
v. Brotherhood of Locomotive Firemen cmd Enginemen, 6th 
Cir. (1942), 127 Fed. 2d, 53. After a study of that decision, 
the Court has concluded that it is directly in point in the 
instant case, and in Barnhart v. Western Maryland By. Co., 
4th Cir., 128 Fed. 2d, 709, 714, our Circuit Court of Appeals, 
after discussing and reviewing the authorities generally as 
to when a Federal question is presented, referred to and 
quoted the Teague case, as follows.

“ Quite in point here is the very recent case of Teague 
v. Brotherhood of Locomotive Firemen and Engine- 
men, 6 Cir. 127 F. 2d, 53, decided April 9, 1942. That 
was an action by a railway firemen against the Brother­
hood (which was designated as collective bargaining 
agent of his class under the Railway Labor Act) and the 
railroad, to set aside a collective bargaining agreement 
on the ground that this agreement was destructive of 
his vested rights of seniority preference. In the unani­
mous opinion of the Court, holding that the action did 
not arise under a federal law, Circuit Judge Simons, 
127 F. 2d, 53, 56, said:

“ Reverting to the appellant’s own statement of his 
case, such rights as are here claimed arise from the 
individual contracts of the Negro firemen with the 
defendant Railroad. The appellant is unable to point 
to provision of the Railway Labor Act which protects 
such rights, or permits their invasion. The provisions 
of Sec. 2, subd. eighth makes the terms of the collective 
bargaining agreement a part of the contract of em­
ployment between the carrier and each employee—the 
case, nevertheless, remains one based upon a contract 
between private parties cognizable, if at all, under 
state law.’ ”

It is apparent in the light of these authorities that no 
Federal question is presented in the present case, and there



48

being a lack of diversity of citizenship between the plain­
tiff and defendants, it follows that the motion to dismiss will 
have to be sustained.

L titheb B . W a y ,
United States District Judge.

Norfolk, Virginia 
April 15, 1943



49

IN THE
UNITED STATES DISTRICT COURT 

F or th e  E astern  D istrict  of V irgin ia  

(N orfolk  D iv isio n )

T om T un stall ,
Plaintiff,

vs.

B rotherhood of L ocomotive 
F iremen and E n g in e m e n ,
Norfolk, Virginia, 

and
Ocean L odge, No. 76,
Norfolk, Virginia, C ivil  A ction  N o. 210

and D ecree of D ism issal

P ort N orfolk L odge, N o. 775,
Portsmouth, Virginia, 

and
W. M. Mtjnden,
1123 Hawthorn Street,
Norfolk, Virginia, 

and
Norfolk S o u th ern  R a ilw a y  
Company, a Corporation, 
a Corporation,
Norfolk, Virginia,

Defendants.

This action came to be heard on March 4, 1943, upon the 
complaint, the motion of defendant Brotherhood of Loco­
motive Firemen and Enginemen, to dismiss the action under 
Rule 12 (b) of the Rules of Civil Procedure, the motion of 
defendant Ocean Lodge No. 76, Norfolk, Virginia, to dis­
miss the action and quash purported service of summons



50

under Rule 12 (b), the motion of Port Norfolk Lodge, No. 
775, Portsmouth, Virginia, to dismiss said action under 
Rule 12 (b), the motion of defendant W. M. Munden to dis­
miss said action under Eule 12 (b), and motion of defend­
ant Norfolk Southern Railway Company to dismiss said 
action, all of which motions were considered and fully 
argued and submitted to the Court on March 4, 1943. And 
the Court not being fully advised of its judgment, took time 
to consider.

And the Court being now fully advised of its judgment 
upon all the motions pending herein, is of the opinion that 
the said defendants, namely: Brotherhood of Locomotive 
Firemen and Enginemen, Ocean Lodge No. 76, Port Nor­
folk Lodge No. 775, William M. Munden and the Norfolk 
Southern Railway Company, have been duly served and are 
properly before the Court; but being of the opinion that no 
federal question is presented in this case, and that there is 
no jurisdiction in this Court to hear and decide this case, it 
is therefore ORDERED, ADJUDGED and DECREED:

€

1. That the motion of the defendant Brotherhood of 
Locomotive Firemen and Enginement to dismiss the 
action against it on the ground that there has been no 
service of process upon said defendant, be, and the 
same is overruled.

2. That the motion of defendant Ocean Lodge No. 76, 
Norfolk, Virginia, to dismiss the action so far as 
concerns said defendant and to quash the purported 
service of summons upon said defendant, be, and the 
same is overruled.

3. That the said motions filed herein as aforesaid by 
Brotherhood of Locomotive Firemen and Engine- 
men, Ocean Lodge No. 76, Port Norfolk Lodge No. 
775, William M. Munden and the Norfolk Southern 
Railway Company, be and the same are hereby sus­
tained in so far as the said motions are based upon a 
lack of jurisdiction in this Court.



51

4. That judgment be entered against the plaintiff, Tom 
Tunstall, and for the defendants, Brotherhood of 
Locomotive Firemen and Enginemen, Ocean Lodge 
No. 76, Port Norfolk Lodge No. 775, W. M. Munden 
and Norfolk Southern Railway Company, and that 
plaintiff’s complaint be and the same is hereby dis­
missed with costs to the defendants.

To the action of the Court in denying its motion to dis­
miss the action against it on the ground that it had never 
been served with summons, the defendant Brotherhood of 
Locomotive Firemen and Enginemen duly objected and ex­
cepted upon grounds fully stated to the Court; and to the 
action of the Court in denying its motion to dismiss the ac­
tion as to it, and to quash the purported summons of service 
upon it, the defendant Ocean Lodge No. 76, Norfolk, Vir­
ginia, duly objected and excepted upon grounds fully stated 
to the Court; and to all of the actions of the Court in sus­
taining said motions of the defendants to dismiss the com­
plaint and entering judgment against the plaintiff and for 
the defendants, the plaintiff duly objected and excepted 
upon grounds fully stated to the Court.

Norfolk, Virginia, May 7, 1943.

United States District Judge.





TRANSCRIPT OF RECORD

Suprem e C o u rt o f  th e U n ite d  States

OCTOBER TERM, 1944

N o. 3 7

TOM TUNSTALL, PETITIONEE,

vs.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN, OCEAN LODGE No. 76, PORT NOR­
FOLK LODGE No. 775, ET AL.

ON WHIT OF CERTIOKARI TO TH E  UNITED STATES CIRCUIT COURT 
OF APPEARS FOR TH E  FOURTH CIRCUIT

PETITION FOB CEBTIOBABI FILED MARCH 10, 1944. 

CERTIORARI GRANTED MAY 29, 1944.





SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1944

N o. 3 7

TOM TUNSTALL, PETITIONER,

v s .

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN, OCEAN LODGE No. 76, PORT NOR­
FOLK LODGE No. 775, ET AL.

ON W RIT OF CERTIORARI TO T H E  U N ITED  STATES CIRCUIT COURT 
OF APPEALS FOR TH E  FOURTH CIRCUIT

I N D E X .
Original Print

Proceedings in U . S. C . C . A ., F ou rth  C ir cu it ......................................  1 1
A ppendix to  b r ie f fo r  a p p e lla n t ....................................................................  1 1

C o m p la in t ......................................................................................................  1 1
E x h ib it  I — N o tice , M a rch  28, 1940, o f  p rop osa l to  re­

v ise  a g reem en t.......................................................  14 11
E x h ib it  I I — A greem ent o f  F eb . 1 8 ,1 9 4 1 ............................ 16 13
E x h ib it  I I I — S up p lem en tary  agreem ent o f  M a y ‘2 3 ,194 1  20 16

A ffid av it o f  T o m  T u n sta ll......................................................................  24 20
M o tio n  o f d e fen d an t, B ro th erh ood  o f L o co m o tiv e  F irem en

and E nginem en, to  d ism iss un der rule 1 2 (b ) ........................... 25 21
A ffid av it  o f  C arl J. G o f f ................................................................  27 22

M o tio n  o f d e fen d an t, P o rt  N o r fo lk  L o d g e  N o . 775, to  dis­
m iss under rule 1 2 (b ) ........................................................................... 30 24

M o tio n  o f  d efendan t, W . M . M u n den , t o  dism iss under
rule 12 (b ) .................................................................................................  31 25

M o tio n  o f de fen d an t, O cean  L o d g e  N o . 6, to  dism iss and 
quash p u rp orted  serv ice  o f  sum m ons un der rule 1 2 (b ) . . .  32 25

M o tio n  o f  de fen d an t, N o r fo lk  S outhern  R a ilw a y  C o ., to
d ism iss ......................................................................................................... 34 27

O pin ion , W a y , J .......................................................................................... 36 28
D ecree  o f  d ism issa l....................................................................................

Judd &  D etw eiler ( I nc. ) ,  P rinters, W a sh in g to n , D . C., J une  20, 1944,

— 2554



2

Norfolk Southern Railway; is the Representative under 
the Railway Labor Act, 1934, 48 Stat. 1185, U. S. C. Title 
45, Chapter 8, of the craft or class of locomotive firemen 
employed on said Railroad and is sued as such. It is com­
posed of a Grand Lodge and over nine hundred subordinate 
lodges, including the defendant subordinate lodges, which 
are too numerous to make it practicable to bring them all 
before the Court. The subordinate lodges are also unin­
corporated associations, each composed of numerous indi­
vidual locomotive fireman, and it is likewise impracticable 
to bring them all before the Court. The Brotherhood has 
a national treasury derived from membership dues and 
otherwise. By constitutional provision, ritual and prac­
tice it restricts its membership to white locomotive fire­
men and enginemen. Plaintiff is excluded therefrom solely 
because of race.

4. The defendants, Ocean Lodge, No. 76 and Port Nor­
folk Lodge, No. 775, are subordinate lodges of the defend­
ant Brotherhood having their locations in Norfolk, Vir­
ginia, and Portsmouth, Virginia, respectively, within the 
[fol. 3] jurisdiction of this Court. The business of each 
subordinate lodge is managed by a President, Recording 
Secretary, Legislative Representative, Local Organizer 
and Local Chairman. The members of the defendant sub­
ordinate lodges are either employed by the Norfolk South­
ern Railroad Company, and directly involved in the mat­
ters herein complained of, or are members of the defend­
ant Brotherhood resident within the jurisdiction of this 
court. TTpou information and belief plaintiff alleges that 
the defendant subordinate lodges constitute all of the 
lodges of the defendant Brotherhood within the territorial 
limits of the Norfolk Division of the United States District 
Court for the Eastern District of Virginia, and are truly 
and fairly representative of the remaining lodges of the 
Brotherhood and of the Brotherhood itself, and the inter­
est of all the members, subordinate lodges and the Brother­
hood will be adequately represented in the premises by 
the defendants of record. The defendant subordinate 
lodges are sued as representatives of the membership, all 
the subordinate lodges and the Brotherhood itself.

5. The defendant, W. M. Munden, is a white locomotive 
fireman employed by the Norfolk Southern Railroad and



3

its successor in interest, the Norfolk Southern Railway; is 
a member of the defendant Brotherhood who, because of 
the wrongs inflicted by the Brotherhood upon plaintiff and 
his class, gained certain advantages and considerations 
which rightfully belong to plaintiff as hereinafter will ap­
pear more fully. He is Local Chairman of defendant Ocean 
Lodge, No. 76, and acts for the Brotherhood in enforcing 
the schedule of rules and working conditions and in matters 
of grievance adjustments and job assignments on the 
Northern Seniority District o f said Railroad. He is sued 
in his own right and as a representative of the members 
of the Brotherhood, particularly those employed on the 
Norfolk Southern Railroad and its successor in interest, 
the Norfolk Southern Railway Company.

[fol. 4] 6. At all times material herein the defendant
Brotherhood has been the representative under the Rail­
way Labor Act aforesaid of the entire craft or class of loco­
motive firemen employed by the Norfolk Southern Railroad 
Company and its successor in interest the Norfolk South­
ern Railway Company, and, as such, under a duty under 
said Act to represent the members of said craft or class 
impartially and to refrain from using its position to de­
stroy their job assignments and other rights. On or about 
October 10, 1941, plaintiff was working for the Norfolk 
Southern Railroad Company as a locomotive fireman on a 
passenger run on its Northern Seniority District, running 
between Norfolk, Virginia and Marsden, North Carolina, 
under an individual contract of hiring, and was a member 
of the craft or class of locomotive firemen employed by said 
Railroad Company. Said run constituted one of the more 
Preferred jobs available to locomotive firemen employed 
by said Railroad Company. On or about said October 10, 
1941, in order to secure for its own members the more 
favorable job assignments available to locomotive firemen 
employed by the Norfolk Southern Railroad Company, the 
defendant Brotherhood failed and refused to represent 
plaintiff impartially as was its duty under the Railway 
Labor Act, but on the contrary, acting in the premises as 
representative of the entire craft or class under the Rail­
way Labor Act wrongfully used its position to induce and 
force the Norfolk Southern Railroad Company to remove 
him from his job assignment and replace him with one of 
its own members.



4

7. As a result whereof plaintiff lost his job assignment 
as a locomotive fireman on said passenger run and, in order 
to continue in his employment, was forced to accept and 
perform a less desirable assignment in yard service, where 
the hours are longer and the work more arduous and 
difficult.

Wherefore, plaintiff demands judgment against the de­
fendant Brotherhood in the amount of $25,000, and costs.

[fol. 5] Count II
1. Plaintiff adopts all of the allegations of paragraphs 

2, 3, 4, and 5, of Count I. He sues herein his individual
capacity for wrongs inflicted on his individual rights, and 
as representative of all of the Negro firemen employed by 
the Norfolk Southern Railroad Company, and its succes­
sor in interest, the Norfolk Southern Railway Company. 
Said Negro firemen constitute a class too large to be brought 
individually before the Court, but there are common ques­
tions of law and fact involved herein, common grievances 
arising out of common wrongs, and common relief for the 
entire class is sought as well as special relief of this plain­
tiff ; and the interests of said class are fairly and adequately 
represented by plaintiff.

2. The defendant, Norfolk Southern Railway Company, 
hereinafter called the Railway Company is a corporation, 
incorporated in the State of Virginia and is engaged in 
Interstate Commerce, having its principal place of busi­
ness in Norfolk, Virginia. It maintains and operates the 
system or lines of railroads formerly operated bv the Nor­
folk Southern Railroad Company, which was also a corpora­
tion incorporated in the State of Virginia. By virtue of the 
Plan of Reorganization and Reorganization Agreement 
approved May 14, 1941, the Norfolk Southern Railway 
Company, assumed all contracts, leases, operating agree­
ments, licenses or permits entered into by the Norfolk 
Southern Railroad Company, or modified or entered into 
by the Receivers thereof, not disaffirmed within such time 
as should be fixed by the Court. On or about January 21, 
1942, the Norfolk Southern Railway Company, pursuant 
to said Plan of Reorganization and Reorganization Agree­
ment, began maintaining and operating the system or lines 
ol railroads formerly operated by the Norfolk Southern



5

Railroad Company and the agreements and contracts here­
inafter mentioned have never been disaffirmed by said Rail- 
[fol. 6] way Company but have been adopted by said Com­
pany and are still in full force and effect, and wherever 
the terms “ Railway”  or “ Railway Company,”  or “ rail­
road”  are used herein with reference to matters occur-ing 
prior to January 21, 1942, said terms refer to the Nor­
folk Southern Railroad Company and/or its Receivers; 
if said matters occurred subsequent to January 21, 1942, 
said terms refer to the Norfolk Southern Railway Com­
pany, assignee and successor in interest to the Norfolk 
Southern Railroad Company.

3. The Negro firemen constitute the minority of the total 
number of firemen employed by the defendant Railway 
Company. The white locomotive firemen, all of whom are 
members of the defendant Brotherhood, constitute the 
majority of the total number of locomotive firemen em­
ployed by the defendant Railway Company. The Negro 
firemen and the Brotherhood members comprise the entire 
craft or class of firemen employed by the defendant Rail­
way. By constitutional provision, ritual and practice the 
Brotherhood restricts its membership to white locomotive 
firemen, the Negro locomotive firemen, including plaintiff 
and the class he represents being excluded therefrom solely 
because of race.

4. By virtue of the fact that they constitute the majority 
of the total number of locomotive firemen employed by the 
defendant Railway, the Brotherhood members ever since 
the passage of the Federal Railway Labor Act, June 21, 
1934 (48 Stat. 1185, c. 691, 45 U. S. C. c. 8), have chosen 
the defendant Brotherhood as the representative of the 
craft or class of firemen employed on defendant Railway, 
and the Brotherhood has accepted said position and has 
ever since claimed the exclusive right to act and has pur­
ported to act as the exclusive bargaining agents and griev­
ance representative of the entire craft or class aforesaid 
and its members have individually and collectively claimed 
the benefits of the actions of the Brotherhood as said rep- 
[fol. 7] resentative. Neither plaintiff nor any of the Negro 
locomotive firemen employed by the defendant Railway 
Company has chosen the Brotherhood as his representative 
but by virtue of the fact that the Brotherhood’s members 
constitute the majority of the craft or class of locomotive



6

firemen, employed by the Railway, plaintiff and the other 
Negro locomotive firemen, are compelled under the Rail­
way Labor Act, to accept the Brotherhood as their rep­
resentative for the purposes of the act.

5. As members of the craft or class of locomotive fire­
men employed by the defendant Railway Company, and 
being forced by the Railway Labor Act, to accept the rep­
resentative chosen by the majority as their representative, 
plaintiff and the other Negro locomotive firemen have the 
right to be represented fairly and impartially and in good 
faith by the representative chosen by said majority. By 
accepting the position of representative under the Rail­
way Labor Act, of the entire craft or class of locomotive 
firemen, and by asserting the exclusive right to act as such 
representative, defendant Brotherhood became the statu­
tory agent of plaintiff and the other Negro minority mem­
bers of said craft or class and under the obligation and 
duty to represent them fairly and impartially and in good 
faith; to give them reasonable notice, opportunity to be 
heard and a chance to vote on any action adverse to their 
interests proposed by it; to make prompt and full disclos­
ure of all actions taken by it affecting their interests in 
any way, and to refrain from using its position as their 
statutory representative to discriminate against them in 
favor of itself and its members and from destroying their 
rights.

Nevertheless, in violation of its obligations and duties 
the defendant Brotherhood has been persistently hostile 
and disloyal to plaintiff and the other minority nonmem­
ber Negro locomotive firemen, and lias constantly sought 
to destroy their rights and to drive them out of employ­
ment in order to create a monopoly of the employment 
[fol. 8] and the most favored jobs and conditions for its 
own members. It has always refused and still refuses 
to notify plaintiff and the other Negro firemen, members 
of the craft or class, of proposed actions adversely affecting 
their interests or to give them a chance to be heard or 
to vote on same. It has constantly refused and still re­
fuses to report to him or them its actions as their statu­
tory representative or to handle their grievances wherever 
there is an apparent conflict or interest between them and 
its members; and has always refused and still refuses to



7

give Mm and them fair, impartial, honest and faithful 
representation under the Railway Labor Act.

6. On or about March 28, 1940, the Brotherhood, pur­
porting to act in the premises as the representative under 
the Railway Labor Act, of the entire craft or class of loco­
motive firemen employed on the Norfolk Southern Rail­
road and other railroads in the Southeastern section of 
the country, but acting in breach of its duties and in fraud 
of the rights of plaintiff and the other Negro locomotive 
firemen, members of the craft or class, caused notice to 
be served on said railroads, including the defendant rail­
road, of its desire and purpose to amend existing collec­
tive bargaining agreements covering the standard provi­
sions of the individual hiring contracts of the individual 
firemen on each railroad, including the defendant railroad, 
in such manner as would drive the Negro firemen, includ­
ing plaintiff, completely out of the service of said rail­
roads. A  copy of said Notice is attached hereto as Exhibit 
I and incorporated in full herewith.

7. On or about February 18, 1941, pursuant to said No­
tice, the Brotherhood, purporting to act as the exclusive 
representative under the Railway Labor Act of the entire 
craft or class of locomotive firemen employed on defendant 
railroad and other railroads in the Southeastern section 
of the country, did wrongfully prevail upon defendant 
[fol. 9] Railway Company to enter into agreement, and 
did wrongfully negotiate an agreement with the defendant 
Railway Company whereby the proportion of non promo- 
table firemen, and helpers on other than steam power, should 
not exceed fifty per cent in each class of service established 
as such by the carrier, and providing that until such per­
centage was reached on any seniority district all new 
runs and all vacancies created by death, dismissal, res­
ignation or disqualification should be filled by promotable 
men; and further providing that non-promotable men were 
those who were not in line for promotion under the present 
rules and practices to the position of locomotive engineer. 
A copy of said agreement of February 18, 1941, is attached 
here as Exhibit II and incorporated herewith. Plaintiff 
alleges that under the rules and practices in effect that 
the time that this contract was entered into and at the 
present time, all Negro locomotive firemen, including plain­



8

tiff, as a class, are arbitrarily considered ineligible for the 
position of locomotive engineer and are arbitrarily classi­
fied as non-promotable.

8. On or about May, 23, 1941, the Brotherhood, again 
purporting to act in the premises as the exclusive repre­
sentative under the Railway Labor Act of the entire craft 
or class, but acting in fraud of the rights of plaintiff and 
the other Negro minority firemen, and in breach of its 
duty to them, caused said agreement to be supplemented to 
provide specifically that the term “  nonpromo table fire­
men”  used therein referred only to colored firemen. A 
copy of said agreement as supplemented is attached hereto 
as Exhibit III and incorporated herewith.

9. In serving said Notice of March 28, 1940, and in enter­
ing into the Agreement of February 18, 1941, and sup­
plement of May 23, 1941, the defendant Brotherhood, al­
though purporting to act as the exclusive representative 
of the entire craft or class of locomotive firemen employed 
[fol. 10] on defendant railroad, gave plaintiff and the 
other Negro minority firemen no notice thereof or oppor­
tunity to be heard or vote thereon; nor was the existence 
of said agreement and supplement disclosed to them until 
the Brotherhood forced plaintiff off his run by virtue 
thereof, as hereinafter will appear more fully; but the 
Brotherhood, well knowing plaintiff’s and the other Negro 
firemen’s interest therein, and maliciously intending and 
contriving to secure a monopoly of employment and the 
most favorable jobs for its own members, acted in fraud 
of the rights- of plaintiff and the other Negro firemen and 
failed and refused to represent them fairly and impar­
tially as was its duty as their representative under the 
Railway Labor Act.

10. On the date that said agreement and supplement 
went into effect the defendant railway company operated 
passenger train service on its Northern Semiority District, 
running between Norfolk, Virginia and Marsden, North 
Carolina. Two firemen were used in said service one of 
whom was a white member of defendant Brotherhood and 
the other was a Negro firemen, nonmember of said Brother­
hood. Assignment to said service constituted one of the 
more preferred assignments available to locomotive fire­
men employed on defendant railroad. The hours were



9

shorter and the work less arduous than that required of 
locomotive firemen who were assigned to other classes of 
service, particularly yard service. On or about June 1941, 
the white fireman who had been assigned to said run left 
it for another assignment, thereby creating a vacancy. 
In accordance with his individual contract of hiring plain­
tiff was assigned to said run. He worked said assignment 
with competence and skill and to the satisfaction of the 
Railway Company, until on or about October 10, 1941, when 
the defendant Brotherhood, again fraud-ently and in breach 
of its duty as the representative under the Railway Labor 
Act of the entire craft or class of locomotive firemen, em­
ployed by the defendant Railway, did wrongfully press 
[fol. 11] said agreement and supplement and asserted that 
the plaintiff’s assignment to said run was in breach thereof, 
and wrongfully induced and forced the defendant Rail­
way Company to remove plaintiff from said assignment 
and to assign defendant, W. M. Munden, a member of the 
Brotherhood to same.

11. As a result whereof, plaintiff has lost his assignment 
on said passenger run and valuable property rights that 
have accrued to him while in the service of the defendant 
Railway Company, and in order to continue in his employ­
ment, has been forced to accept and perform an assignment 
in yard service where he has to work longer hours and per­
form more difficult and arduous labor, and unless this 
Honorable Court grants relief he will be forced to continue 
to accept and perform more difficult and arduous labor and 
will suffer irreparable damage.

12. Plaintiff has requested the defendant Railway Com­
pany to restore him to his assignment on the passenger train 
but said defendant Railway Company asserted that under 
the provisions of the Railway Labor Act and said agreement 
entered into pursuant thereto, it is powerless to do so un­
less plaintiff’s representative under the Railway Labor 
Act, the defendant Brotherhood, demands it. He has re­
quested the Brotherhood as his representative to represent 
him before the management of the Railway Company for 
the purpose of having his assignment and property rights 
restored but said Brotherhood, in violation of its duty has 
failed and refused to represent him or even to acknowledge 
his request.



10

13. The matters ancl things hereinbefore complained of 
constitute an actual controversy between plaintiff and the 
class he represents on the one side and the defendants on 
the other. The interests of plaintiff and the class he repre­
sents are adverse to the interests of the defendants and 
[fob 12] those they represent. The right of plaintiff and 
the class he represents to be represented fairly and im­
partially and in good faith by the representative under the 
Railway Labor Act of the entire class or craft of locomotive 
firemen employed on defendant railroad has been violated 
and denied and, as a result, damaged incurred, and unless 
this Honorable Court will declare the rights, interests, and 
other legal relations of the respective parties, as provided 
for in Section 400, Title 28, United States Code, and Rule 
57 of the Federal Rules of Civil Procedure, numerous vexa­
tious disputes will arise between the parties hereto and 
those they represent, and plaintiff will suffer irreparable 
and incalculable injury.

Wherefore, plaintiff prays:
1. A  declaratory judgment, binding on all the parties 

hereto and their privies, settling and declaring the rights, 
interests and legal relationships of the respective parties 
in and to and by reason of the matters hereinbefore detailed.

2. A  declaratory judgment, that the defendant Brother­
hood in accepting the position and acting as the exclusive 
representative under the Railway Labor Act of the craft or 
class of locomotive firemen employed by the Norfolk South­
ern Railway Company, and its predecessors in interest, as­
sumed and is under the obligation to represent fairly and 
without discrimination all of the members of the said craft 
or class, including plaintiff and other minority locomotive 
firemen, nonmembers of said Brotherhood.

3. A  permanent injunction against each and all of the 
defendants restraining and enjoining them and each of them 
from enforcing or otherwise recognizing the binding effect 
of the Agreement of February 18, 1941, and the supplement 
of May 23, 1941, in so far as said agreement and supplement 
deprives plaintiff of his assignment on the passenger train 
[fol. 13] run between Norfolk, Virginia, and Marsden, 
North Carolina, or in any other way interferes with his 
occupation as a locomotive firemen employed by the de­
fendant Railway Company.



11

4. A  permanent injunction against the Brotherhood, its 
officers, agents, or subordinate lodges, their officers and 
agents, perpetually restraining and enjoining them from 
acting or purporting to act as plaintiff’s representative or 
the representative of the other Negro firemen under the 
Railway Labor Act, so long as it or they, or any of them, 
refuse to represent him and them fairly and impartially; 
and so long as it or they continue to use its position to de­
stroy the rights of plaintiff and the class he represents 
herein.

5. Damages against the Brotherhood for its refusal to 
represent him and the destruction of his rights as a loco­
motive fireman in the amount of ($25,000.00) Twenty-Five 
Thousand Dollars.

6. Restoration of his right to hold his assignment on the 
passenger run between Norfolk, Virginia, and Marsden, 
North Carolina.

7. For such other and further relief as to the Court may 
seem just and proper.

Joseph C. Waddy, 615 F Street, N. W., Washington, 
D. C .; Charles H. Houston, 615 F Street, N. W. 
Washington, D. C .; Oliver W. Hill, 117 E. Leigh 
Street, Richmond, Virginia, Attorneys for Plaintiff.

[fob 14] E x h ib it  I to C o m plain t

Brotherhood of Locomotive Firemen and Enginemen

General Grievance Committee 

------ Railway
March 28, 1940.

Dear S ir :

This is to advise that the employees of th e------ Railway
engaged in service, represented and legislated for by the 
Brotherhood of Locomotive Firemen and Enginemen, have 
approved the presentation of request for the establishment



12

of rules governing the employment and assignment of loco­
motive firemen and helpers, as follow s:

1. Only promotahle men will be employed for service as 
locomotive firemen or for service as helpers on other than 
steam power.

2. When new runs or jobs are established in any service, 
only promotahle firemen or helpers will be assigned to them.

3. When permanent vacancies occur or established runs 
or jobs in any service, only promotahle firemen or helpers 
will be assigned to them.

4. It is understood that promotahle firemen or helpers 
on other than steam power are those in line for promotion 
under the present rules and practices to the position of loco­
motive engineer.

In accordance with the terms of our present agreement, 
and in conformity with the provisions of the Railway Labor 
Act, kindly accept this as the required official notice of our 
desire to revise the agreement to the extent indicated.
[fol. 15] The same request is this date being presented on
the following railroads:
Atlantic Coast Line 
Jacksonville Terminal 
Atlanta Joint Terminal 
Atlanta & West Point 
Western Railroad of Ala. 
Central of Georgia 
Frankfort & Cincinnati 
Georgia Railroad 
Georgia & Florida 
Gulf, Mobile & Northern 
Louisville & Nashyille

Memphis Union Station Co. 
Louisiana and Arkansas 
Mobile and Ohio, Columbus 

& Greenville
Norfolk and Portsmouth Belt 
Norfolk & Southern 
Norfolk & Western 
Seaboard Airline 
Southern Railroad System 
St. Louis-San Francisco 
Tennessee Central

It is our request that all lines or divisions of railway con­
trolled by th e ------ Railway shall be included in settlement
of this proposal and that any agreement reached shall apply 
to all alike on such lines or divisions.

It is desired that reply to our proposal be made in writing 
to the undersigned on or before April 7, concurring therein, 
or fixing a date within 30 days from date of this letter when 
conference with you may be had for the purpose of discuss­



13

ing the proposal. In event settlement is not reached in 
conference, it is suggested that this railroad join with others 
in authorizing a conference committee to represent them 
in dealing with this subject. In submitting this proposal 
we desire that it be understood that all rules and conditions 
in our agreements not specifically affected by our propo­
sition shall remain unchanged subject to change in the 
future by negotiations between the proper representatives 
as has been the same in the past.

Yours truly, (Signed) General Chairman.

[fol. 16] E x h ib it  II to C o m plain t

Agreement

Between the Southeastern Carriers’ Conference Committee 

representing the
Atlantic Coast Line Railway Company 
Atlanta & West Point Railroad Company and Western 

Railway of Alabama 
Atlanta Joint Terminals 
Central of Georgia Railroad Company 
Georgia Railroad 
Jacksonville Terminal Company 
Louisville & Nashville Railroad Company 
Norfolk & Portsmouth Belt Line Railroad Company 
Norfolk Southern Railroad Company 
St. Louis-San Francisco Railway Company 
Seaboard Air Line Railway Company 
Southern Railway Company (including State University 

Railroad Company and Northern Alabama Railway 
Company)

The Cincinnati, New Orleans and Texas Pacific Railway 
Company

The Alabama Great Southern Railroad Company (including 
Woodstock and Blacton Railway Company and Belt Rail­
way Company of Chattanooga)

New Orleans and Northeastern Railroad Company 
New Orleans Terminal Company 
Geo rgia Southern and Florida Railway Company 
St. Johns River Terminal Company



14

Harriman and Northeastern Railroad Company 
Cincinnati, Burnside and Cumberland River Railway

Company
Tennessee Central Railway Company

and the

Brotherhood of Locomotive Firemen and Enginemen

(1) On each railroad party hereto the proportion of non- 
[fol. 17] promotable firemen, and helpers on other than 
steam power, shall not exceed fifty percent in each class of 
service established as such on each individual carrier. This 
agreement does not sanction the employment of non- 
promotable men on any seniority district on which non- 
promotable men are not now employed.

(2) The above percentage shall be reached as follows:
(a) Until such percentage is reached on any seniority 
district only promotable men will be hired.
(b) Until such percentage is reached on any seniority 
district all new runs and all vacancies created by death, 
dismissal, resignation or disqualification shall be filled 
by promotable men. A change in the starting time of 
the same run or job will not be considered as consti­
tuting a new run.

(3) Except as provided in items (2) (a) and (2) (b) men 
now holding seniority as firemen, or helpers on other than 
steam power, shall be permitted to exercise seniority in ac­
cordance with their seniority and the rules of their respec­
tive schedules.

(4) It is understood that promotable firemen, or helpers 
on other than steam power, are those who are in line for 
promotion under the present rules and practices to the 
position of locomotive engineer.

(5) It is understood and agreed that on any road having, 
in the opinion of its B. of L. F. & E. Committee, more favor­
able rules or conditions than above stipulated, such rules 
and conditions may at the option of such committee be re­
tained in lieu of the above provisions.

(6) All persons hereafter hired as firemen shall be re­
quired, in addition showing, in the opinion of the manage­



15

ment, reasonable proficiency, to take within stated periods 
to be fixed by the three years, two examinations to be pre­
pared by management and to be applied to all alike to test 
their qualifications as firemen. A  fireman failing to pass 
either examination shall have a second trial within three 
months.
[fol. 18] Firemen hereafter hired declining to take or fail­
ing to pass either of the examinations provided for in the 
preceding paragraph shall be dropped from the service.

Promotable firemen who pass the two examinations above 
referred to shall be required to take an examination for 
promotion to the position of engineer when they have had 
three and not more than four years of actual service. Upon 
passing such promotional examination and meeting all the 
requirements established by the carrier for the position of 
engineer, they shall, when there is need for additional en­
gineers, be promoted to such position, and will establish a 
seniority date as engineer in accordance with the rules con­
tained in the agreements on the individual railroads.

When rules for conduct of examinations for promotion 
are included in current schedules, such rules shall apply. 
In the absence of such rules firemen failing, to pass will be 
given a second trial within a period of three months and if 
they fail to pass on the second trial will be given a third 
trial within a period of three months.

Promotable firemen declining to take examinations for 
promotion, or who fail in their efforts to successfully pass 
the same, shall be dropped from the service.

All promotable firemen now in the service physically 
qualified, who have not heretofore been called for examina­
tion for promotion, or who have not waived promotion, shall 
be called in their turn for promotion. When so called 
should they decline to take such examination for promotion 
or fail to pass as herein provided, they shall be dropped 
from the service.

(7) It is expressly understood that in making this agree­
ment representatives of the employees do not waive and are 
in no way prejudiced in the right to request agreements on 
the individual carriers here represented which will restrict 
the employment of helpers on other than steam power to



16

promotable men; and it is agreed that this question is to 
be negotiated to a conclusion with the individual carriers.
[fob 19] (8) This agreement shall become effective Feb­
ruary 22, 1941.

Signed at Washington, D. C., this 18th day of February, 
1941.

For the Carriers:
Southeastern Carriers’ Conference Committee, C. D. 

Mackay, Chairman, C. D. Mackay, H. A. Benton,
C. G. Sibley, Committee Members.

For the Employees:
Brotherhood of Locomotive Firemen and Enginemen,

D. B. Bobertson, President; Brotherhood of Loco­
motive Firemen and Enginemen’s Committee, W. 
C. Metcalfe, Chairman.

[fol. 20] E x h ib it  III to C o m pla in t

Supplementary Agreement Effective February 22, 1941, to 
the Agreement between the Norfolk Southern Bailroad 
Company and the Brotherhood of Locomotive Firemen 
and Enginemen Dated September 1, 1928
The purpose of this supplementary agreement is to in­

corporate as a part of the agreement dated September 1, 
1928, between the Norfolk Southern Bailroad Company and 
The Brotherhood of Locomotive Firemen and Enginemen 
the agreement reached in mediation and covered by the 
National Mediation Board Docket Case No. A-905, which 
agreement reads as follows:

“ (1) On each railroad party hereto the proportion of 
non-promotable firemen, and helpers on other than steam 
power, shall not exceed fifty per cent in each class of service 
established as such on each individual carrier. This agree­
ment does not sanction on which non-promotable men are 
not now employed.

(2) The above percentage shall be reached as follows:
(a) Until such percentage is reached on any seniority 
district only promotable men will be hired.



17

(b) Until such percentage is reached on any seniority 
district all new runs and all vacancies created by death, 
dismissal, resignation or disqualification shall be filled 
by promotable men. A  change in the starting time of 
the same run or job will not be considered as constitut­
ing a new run.

(3) Except as provided in items (2) (a) and (2) (b) men 
now holding seniority as firemen, or helpers on other than 
steam power, shall be permitted to exercise seniority in 
accordance with their seniority and the rules of their re­
spective schedules.'

(4) It is understood that promotable firemen, or helpers 
on other than steam power, are those who are in line for 
promotion under the present rules and practices to the 
position of locomotive engineer.
[fob 21] (5) It is understood and agreed that on any road
having, in the opinion of its B. of L. F. & E. Committee, 
more favorable rules or conditions than above stipulated, 
such rules and conditions may at the option of such com­
mittee be retained in lieu of the above provision.

(6) All persons hereafter hired as firemen shall be re­
quired, in addition to showing, in the opinion of the manage­
ment, reasonable proficiency, to take within stated periods 
to be fixed by management, but in no event to extend over a 
period of more than three years, two examinations to be 
prepared by management and to be applied to all alike to 
test their qualifications as firemen. A  fireman failing to 
pass either examination shall have a second trial within 
three months.

Firemen hereafter hired declining to take or failing to 
pass either of the examinations provided for in the preced­
ing paragraph shall be dropped from the service.

Promotable firemen who pass the two examinations above 
refer-ed to shall be required to take an examination for pro­
motion to the position of engineer when they have had three 
and not more than four years of actual service. Upon pass­
ing such promotional examination and meeting all the re­
quirements established by the carrier for the position of 
engineer, they shall, when there is need for additional en­
gineers, be promoted to such position, and will establish a

2—37



18

seniority date as engineer in accordance with the rules con­
tained in the agreements on the individual railroads.

When rules for conduct of examinations for promotion 
are included in current schedules, such rules shall apply. In 
the absence of such rules firemen failing to pass will be 
given a second trial within a period of three months and if 
they fail to pass on the second trial will be given a third trial 
within a period of three months.

Promotable firemen declining to take examinations for 
promotion or who fail in their efforts to successfully pass 
the same, shall be dropped from the service.

All promotable firemen now in the service physically 
qualified, who have not heretofore been called for examina­
tion or promotion, or who have not waived promotion, shall 
[fob 22] be called in their turn for promotion. When so 
called should they decline to take such examination or pro­
motion or fail to pass as herein provided, they shall be 
dropped from the service.

(7) It is expressly understood that in making this agree­
ment representatives of the employees do not waive and are 
in no way prejudiced in the right to request agreements on 
the individual carriers here represented which will restrict 
the employment of helpers on other than steam power to 
promotable men; and it is agreed that this question is to be 
negotiated to a conclusion with the individual carriers.

(8) This agreement shall become effective February 22, 
1941.”

The committee representing the firemen requested that 
paragraphs 1 to 4 of the Mediation Board agreement quoted 
above be included as a part of this supplementary agree­
ment as provided for in paragraph 5 of said agreement.

The definition and application of the phrases “ —each 
class of service established as such— ”  contained in the first 
sentence of paragraph 1 as that the following constitute the 
classes of service to which paragraph 1 applied:

Passenger
Local Freight
Through Freight
Work, Ballast and Construction
Yard



19

The provision of paragraph 2 (b) is understood arid 
agreed to mean that not in excess of 50 percent non-pro- 
motable men will be assigned to any class of service on any 
seniority district.

Example 1
In case of only one assignment, in any class of service, on 

any seniority district, and such assignment is filled by a 
[fol. 23] non-promotable fireman, in the event of the death, 
dismissal, resignation or disqualification of such non-pro­
motable firemen the assignment would then be filled by a 
promotable fireman.

Example 2
In case of 4 assignments in any class of service on any 

seniority district filled by one promotable and 3 non-pro­
motable firemen, in the event of the death, dismissal, resig­
nation or disqualification on one of the non-promotable 
firemen, the assignment would then be filled by a promot­
able fireman.

It is understood and agreed that the phrase “ —non- 
promotable fireman— ”  carried in paragraph 1 of the above 
quoted agreement refers only to colored firemen.

It is agreed that promotable firemen now in the service 
who are physically qualified and not otherwise restricted, 
who have heretofore been called for examination for pro­
motion and failed, or who have waived promotion, will be 
called for examination for promotion between May 1 and 
May 15, 1942. In the event such firemen fail to pass ex­
amination for promotion, or waive examination, their 
seniority as firemen shall not be affected.

Norfolk Southern Railroad Company. M. S. Haw­
kins and L. H. Windholz, Receivers, (signed) by 
J. C. Poe, Assistant to General Superintendent.

Accepted for the Firemen: (signed) G. M. Dodson, Gen­
eral Chairman, Brotherhood of Locomotive Firemen and 
Enginemen.

Raleigh, N. C., May 23, 1941.



20

A ffidavit of T om T unstaul,

State of V irginia,
City of Norfolk, ss :

Tom Tuns tall, plaintiff, being first duly sworn, on oath 
states in opposition to the motion of Carl J. Goff:

I. He denies that W. M. Munden, a defendant herein, is 
not an agent or officer of the defendant Brotherhood of 
Locomotive Firemen and Enginemen or that his duties are 
restricted to represent only the Norfolk Southern mem­
bers of Ocean Lodge No. 76 in the handling of grievances 
with local officials of the Norfolk Southern Railroad, and 
states that the defendant Brotherhood as the statutory 
representative under the Railway Labor Act of the craft 
or class of locomotive firemen, including plaintiff and the 
minority non Brotherhood negro firemen on said railroad, 
has delegated its powers for representing the entire craft 
or class of firemen on the northern seniority district of the 
Norfolk Southern Railroad, on which plaintiff works, to 
the defendant W. M. Munden, local chairman o f Ocean 
Lodge No. 76 for the handling of grievances of the indi­
vidual members of the craft or class of firemen on said 
northern seniority district with the local officials of said 
railroad; that in the premises he acts as agent or officer 
of the Brotherhood; that as such agent or officer of the 
Brotherhood he did induce and force the Norfolk Southern 
Railroad to remove plaintiff from his job assignment as 
alleged in the complaint.

Tom Tunstall.

Subscribed and sworn to before me this 4th day of 
March, 1 9 4 3 .--------------, Notary Public. My com­
mission expires--------—, -------.

[fol. 24] I n U n it e d  S t a t e s  D is t r ic t  C o u r t , E a s t e r n  D is ­
t r ic t  o f  V ir g in ia



21

[Title omitted]
M otion  to D ism iss  U nder R ule  12 (b )

Now comes defendant, Brotherhood of Locomotive Fire­
men and Enginemen, a voluntary unincorporated associa­
tion, by and through D. B. Robertson and Carl J. Goff, its 
President and Assistant President, respectively, appearing 
specially for the following purposes and no other, and with­
out intending there-by to make any general appearance in 
this cause and moves the Court as follows:

I
To dismiss the action so far as concerns this defendant, 

on the grounds:
(a) That there has been no service of process on this 

defendant as appears by the return of the Marshall of the 
Eastern District of Virginia on the original complaint in 
this cause;

(b) That this defendant is a voluntary unincorporated 
association with its headquarters in the City of Cleveland, 
in the State of Ohio, and that no officer of said defendant 
nor any trustee of said defendant has been served with 
process within the Eastern District of Virginia or else­
where; all of which more fully appears by the affidavit of 
[fol. 26] said Carl J. Goff attached to and made a part of 
this motion;

(c) That there has been no proper service of process 
on this defendant;

II
To dismiss the action on the ground that this Court lacks 

jurisdiction because
(a) The amount actually in controversy is less than 

$3,000 exclusive o f interest and costs;
(b )  That the action does not arise under the Constitu­

tion or laws of the United States;
(c) That no sufficient basis of Federal jurisdiction is 

alleged or appears from the complaint; and
(d) That there is no diversity of citizenship alleged or 

shown in the complaint.

[fol. 25] I n the D istrict Cotjkt op the U nited States for
the E astern D istrict of V irginia



22

To dismiss the action because the Court lacks jurisdic­
tion over the person of this defendant by reason of the 
fact that there has been no service on this defendant and 
this defendant is not before the Court.

Harold C. Heiss, 906 Keith Building, Cleveland, 
Ohio; Wm. G. Maupin, 415 Bank of Commerce 
Bldg., Norfolk, Virginia, Attorneys for defendant, 
Brotherhood of Locomotive Firemen & Engine- 
men, appearing specially as -foresaid.

III

[fol. 27] In D istrict Court of t h e  U nited  S tates for the  
E astern  D istrict  of V irgin ia

[Title omitted]
A ffidavit of C arl J . G off

S tate of O h io ,
Cuyahoga County, ss :

Carl J. Goff, being first duly sworn, deposes and says 
that he resides in the City of Shaker Heights, County of 
Cuyahoga, State of Ohio; that he is Assistant President 
of the Brotherhood of Locomotive Firemen and Engine- 
men, and that this affidavit is being made for use in con­
nection with the motion to dismiss filed by said Brother­
hood in the case of Tom Tunstall v. Brotherhood of Loco­
motive Firemen and Enginemen, et al., Pending in the Dis­
trict Court of the United States for the Eastern District 
of Virginia, Norfolk Division, Civil Action File No. 210.

Affiant says that the Brotherhood of Locomotive Fire­
men and Enginemen, hereinafter called Brotherhood, is a 
voluntary unincorporated association having its headquar­
ters in the City of Cleveland, Ohio; that it has more than 
105,000 members scattered throughout the United States 
and Canada; that it is a labor organization, international 
in scope; that its membership is limited to individuals who 
are engaged either in the United States or Canada in the 
trade or calling of locomotive engineer or fireman, and 
[fol. 28] that said association is not organized or operated 
for pecuniary profit.

Affiant further says that representatives of the member­
ship of said Brotherhood assembled in Convention, there 
being one representative from each of the more than nine



23

hundred local lodges o f the Brotherhood, elect a corps of 
officers consisting of the following, to-wit: President, 
Assistant President, Vice-President-National Legislative 
Representative for the United States, ten Vice-Presidents, 
General Secretary and Treasurer and Editor and Manager 
of the Magazine. That said officers are alone empowered 
to and do conduct the affairs of the Brotherhood between 
Conventions, and are its only representatives.

Affiant further says that said local lodges are located at 
division points on railways throughout the United States 
and Canada. Each of said local lodges is within itself a 
separate and distinct voluntary unincorporated association 
officered and directed by men solely from its own member­
ship and of its own selection. Each of said lodges is itself 
primarily responsible for the settlement of all its problems 
or trade disputes arising in its local field.

Affiant further says that W. M. Munden, one of the named 
defendants in this cause, is a local chairman of one of such 
local lodges, to-wit, Ocean Lodge No. 76, which has about 
115 members; that said W. M. Munden is employed by the 
Norfolk Southern Railroad and is local chairman (which 
means chairman of the local grievance committee) of said 
local lodge for the Norfolk Southern Railroad. That said
W. M. Munden is compensated for his services by said local 
Lodge No. 76 only, from funds collected from the members 
of said lodge employed on the Norfolk Southern Railroad. 
That the duties o f said W. M. Munden are to represent only 
the Norfolk Southern members of said lodge in the han­
dling of grievances with local officials of the Norfolk South­
ern Railroad, and with no other railroad officials whatever, 
and that his duties are limited to said business and affairs 
[fol. 29] o f the Norfolk Southern members of said local 
Lodge No. 76. That said W. M. Munden wms elected at 
office solely by the Norfolk Southern members of said local 
Lodge, is responsible only to them and is not an agent, 
officer, general agent or employee of the Brotherhood, nor 
does he act for the Brotherhood when enforcing the sched­
ule of rules and job assignments on the northern seniority 
district of the Norfolk Southern Railroad.

Affiant further says that the funds for defraying the 
costs and expenses and for carrying out the purposes of 
local Lodge No. 76 are derived from dues and assessments 
levied by said local lodge on its members; that funds for



24

use of the local grievance committee of said Ocean Lodge 
No. 76, of which W. M. Munden is chairman, are derived 
from assessments levied solely by the members of said local 
lodge employed on said Norfolk Southern Railroad upon 
themselves for the purpose of carrying on the functions 
of said local grievance committee. That no one other than 
a member of said lodge employed on the adjacent seniority 
district of the Norfolk Southern has any voice in the elec­
tion of, or the term of office of, or direction o f duties of 
said W. M. Munden.

Carl J. Goff.

Subscribed and sworn to before me, a Notary Public 
in and for said County and state, this 28th day 
of August, A. D. 1942. C. D. Theis, Notary Public. 
My commission expires June 17, 1945. [Notarial 
Seal.]

[fo l . 30] l x  t h e  D istrict C ourt of th e  U nited  S tates for 
th e  E astern  D istrict  of V irgin ia

[Title omitted]

M otion to D ism iss u n der  R ule  1 2 (b )

Now comes defendant Port Norfolk Lodge No. 775, Ports­
mouth, Virginia, and moves the Court as follow s:

To dismiss the action on the grounds that this Court 
lacks "jurisdiction because:

(a) The amount actually in controversy is less than 
$3,000 exclusive of interest and costs;

(b) That the action does not arise under the Constitu­
tional or laws of the United States;

(c) That no sufficient basis of Federal jurisdiction is 
alleged or appears from the complaint; and

(d) That there is no diversity of citizenship alleged or 
shown in the complaint.

Harold C. Heiss, 906 Keith Building, Cleveland, 
Ohio; Wm. G. Maupin, 415 Bank of Commerce 
Bklg., Norfolk, Virginia, Attorneys for Defendant 
Port Norfolk, Lodge No. 775, Portsmouth, Vir­
ginia.



25

[Title omitted,]
M otion  to D ism iss  un der  R ule  12 (b )

Now comes defendant W. M. Munden, Norfolk, Virginia, 
and moves the Court as follow s:

To dismiss the action on the grounds that this Court 
lacks jurisdiction because:

(a) The amount actually in controversy is less than 
$3,000.00 exclusive of interest and costs;

(b ) That the action does not arise under the Constitu­
tion or laws of the United States;

(c) That no sufficient basis of Federal jurisdiction is 
alleged or appears from the complaint; and

(d) That there is no diversity of citizenship alleged or 
shown in the complaint.

Harold C. Heiss, 906 Keith Building, Cleveland, 
Ohio; Wm. G. Maupin, 415 Bank of Commerce 
Bldg., Norfolk, Virginia, Attorneys for Defend­
ant W. M. Munden.

[fol. 31] I n the D istrict Court of the U nited States for
the E astern D istrict of V irginia

[fo l. 32] I n  th e  D istrict  C ourt of th e  U nited  S tates for 
th e  E astern  D istrict  of V irgin ia

[Title omitted]
M otion  to D ism iss  and  Q u ash  P urported  S ervice of 

S u m m o n s  u n d e r  R ule  12 (b)
Now comes defendant, Ocean Lodge No. 76, Norfolk, 

Virginia, appearing specially for the following purposes 
and no other, and without intending thereby to make any 
general appearance in this cause, and moves the Court as 
follows:

I
To dismiss the action so far as concerns this defendant 

and to quash the purported service of summons on this 
defendant on the grounds that

(a) This defendant is a voluntary unincorporated asso­
ciation with headquarters in the Eastern District of V ir­



26

ginia, and that no officer of said defendant, nor any trustee 
of said defendant has been served with process within the 
Eastern District of Virginia or elsewhere;

(b) That there has been no proper service on this de­
fendant as appears by the return of the Marshall of the 
Eastern District of Virginia on the original complaint in 
this cause.

[fol. 33] II
To dismiss the action on the grounds that this Court 

lacks jurisdiction because
(a) The amount actually in controversy is less than 

$3,000.00 exclusive of interest and costs;

(b) That the action does not arise under the Constitu­
tion or laws of the United States;

(c) That no sufficient basis of Federal jurisdiction is 
alleged or appears from the complaint; and

(d) That there is no diversity of citizenship alleged or 
shown in the complaint.

I l l
To dismiss the action because the Court lacks jurisdic­

tion over the person of the defendant by reason of the fact 
that there has been no service on this defendant and this 
defendant is not before the Court.

Harold C. Heiss, 906 Keith Building, Cleveland, 
Ohio; Wm. G. Maupin, 415 Bank of Commerce 
Bldg., Norfolk, Virginia, Attorneys for Defend­
ant, Ocean Lodge, No. 76, Norfolk, Virginia.



27

[Title omitted]

M otion to D ismiss

Norfolk Southern Railway Company, one of the defend­
ants in the above entitled cause, moves the Court to dis­
miss the action on the following grounds, to-wit:

1. Because o f lack of jurisdiction over the subject mat­
ter asserted in the complaint, there being no Federal ques­
tion involved, nor other reason giving jurisdiction to this 
Court.

2. Because the Brotherhood of Locomotive Firemen and 
Enginemen is a necessary party to this action, and has not 
been brought before this Court, nor process served upon 
said Brotherhood.

3. Because the complaint does not state a claim upon 
which relief can be granted, showing no cause of action 
against this defendant.

(Signed) Jas. G. Martin, Attorney for Norfolk 
Southern Railway Co., 500 Western Union Bldg., 
Norfolk, Va.

To the Attorneys for Plaintiff in the above entitled 
cause.

Take Notice, that the above motion is being filed in said 
[fol. 35] cause, and will come on for hearing in said Court 
at a time to be fixed by said Court, of which time notice will 
be given.

(Signed) Jas. G. Martin, Attorney for Norfolk 
Southern Railway Co., 500 Western Union Bldg., 
Norfolk, Va.

Norfolk, Virginia, August 27th, 1942.

This certifies that the above motion was served upon 
the attorney for the plaintiff in the above entitled cause 
this day by mailing a copy thereof to Mr. Oliver W. Hill, 
plaintiff’s attorney, 117 East Leigh Street, Richmond, 
Virginia.

(Signed) Jas. G. Martin, Attorney for Norfolk 
Southern Railway Co., 500 Western Union Bldg., 
Norfolk, Va.

[fol. 34] In t h e  D is t r ic t  C o u r t  o f  t h e  U n it e d  S t a t e s  f o r

t h e  E a s t e r n  D is t r ic t  o f  V ir g in i a



28

Civil Action. No. 210

T om T unstall, Plaintiff,
vs.

B rotherhood of L ocomotive F iremen and E nginemen , 
Norfolk, Virginia, and Ocean Lodge, No. 76, Norfolk, 
Virginia, and Port Norfolk Lodge, No. 775, Portsmouth, 
Virginia, and W. M. Munden, 1123 Hawthorne Avenue, 
Norfolk, Virginia, and Norfolk Southern Railway Com­
pany, a corporation, Norfolk, Virginia, Defendants.

Opinion—April 15, 1943
In the above entitled civil action plaintiff, Tom Tunstall, 

alleges and sets forth the following cause against the de­
fendants therein named.

That he is a Negro citizen of the United States and the 
State of Virginia; that the defendant, Brotherhood of Loco­
motive Firemen and Enginemen (hereinafter called the 
[fol. 37] Brotherhood) is an international unincorporated 
association whose membership is derived principally from 
white firemen and enginemen employed on interstate rail­
roads, including defendant, Norfolk Southern Railway 
Company, formerly Norfolk Southern Railroad Company 
(hereinafter referred to as the Railway), and that said 
Brotherhood is the representative under the Railway Labor 
Act, 1934, 48 Stat., 1185, U. S. C., Title 45, Chapter 8, of 
the craft or class of locomotive firemen employed on the 
Railway. The Brotherhood is composed of a Grand Lodge 
and over nine hundred subordinate lodges, and defendants, 
Ocean Lodge, No. 76, and Port Norfolk Lodge, No. 775, 
are subordinate lodges of the Brotherhood, having their 
locations in Lorfolk and Portsmouth, respectively, within 
the jurisdiction of this Court. The business of each subor­
dinate lodge is managed by a president, recording sec- 
retarv, legislative representative, local organizer and local 
chairman. The members of the defendant subordinate 
lodges are either employed by the Railway, and directly 
involved in the matters herein complained of, or are mem­
bers of the defendant Brotherhood resident within the 
jurisdiction of this Court.

[fol. 36] In the U nited States D istrict Court for the
E astern District of V irginia (N orfolk D ivision)



29

Defendant, W. M. Munden, is a white locomotive fireman 
employed by the Railway and a member of the Brother­
hood. Because of the wrongs inflicted by the Brotherhood 
upon plaintiff and his class, Munden has gained certain ad­
vantages and considerations which rightfully belong to 
plaintiff. Munden is local chairman of defendant Ocean 
Lodge No. 76, and acts for the Brotherhood in enforcing 
the schedule of rules and working conditions and in matters 
of grievance adjustments and job assignments on the 
Northern Seniority District of the Railway. Munden is 
sued in his own right and as a representative of the mem­
bers of the Brotherhood, particularly those employed on 
the Railway.

That at all times material herein the Brotherhood has 
been the representative under the Railway Labor Act afore- 
[fol. 38] said of the entire craft or class of locomotive 
firemen employed by the Railway, and, as such, under a 
duty under said Act to represent the members of said craft 
or class impartially and to refrain from using its position 
to destroy their job assignments and other rights. On or 
about October 10, 1941, a plaintiff was working for the 
Railway as a locomotive fireman on a passenger run on 
its Northern Seniority District, running between Norfolk, 
Virginia and Marsden, North Carolina, under an individ­
ual contract of hiring, and was a member of the craft or 
class of locomotive firemen employed by the Railway. Said 
run constituted one of the more preferred jobs available 
to locomotive firemen employed by said Railway. On or 
about said October 10, 1941, in order to secure for its own 
members the more favorable job assignments available to 
locomotive firemen employed by the Railway, the Brother­
hood failed and refused to represent plaintiff impartially 
as was its duty under the Railway Labor Act, but on the 
contrary, acting in the premises as representative of the 
entire craft or class under that Act wrongfully used its 
position to induce and force the Railway to remove him 
from his job assignment and replace him with one of the 
Brotherhood members:

That as a result plaintiff lost his job assignment as a 
locomotive fireman on said passenger run and, in order to 
continue in his employment, was forced to accept and per­
form a less desirable assignment in yard service, where the 
hours are longer and the work more arduous and difficult.



30

Plaintiff sues in his individual capacity for wrongs in­
flicted on his individual rights, and as representative of 
all of the Negro firemen employed by the Railway. He 
alleges that the Negro firemen constitute a class too large 
to be brought individually before the Court, but there are 
common questions of law and fact involved herein, com­
mon grievances arising out of common wrongs, and com­
mon relief for the entire class is sought as well as special 
relief for the plaintiff; and that the interests of said class 
are fairly and adequately represented by plaintiff.
[fol. 39] The white locomotive firemen, all of whom are 
members of the Brotherhood, constitute the majority of 
the total number of locomotive firemen employed by the 
Railway, and they and the Negro firemen comprise the en­
tire craft or class of firemen employed by the Railway.

By constitutional provision, ritual and practice the 
Brotherhood restricts its membership to white locomotive 
firemen, and Negro locomotive firemen, including plaintiff 
and the class he represents, are all excluded from the 
Brotherhood solely because of race.

He alleges that by virtue of the fact that they constitute 
the majority of the total number of locomotive firemen 
employed by the defendant Railway, the Brotherhood mem­
bers ever since the passage of the Federal Railway Labor 
Act, June 21, 1934 (48 Stat., 1185, c. 691, 45 U. S. C., c. g.), 
have chosen the defendant Brotherhood as the representa­
tive of the craft or class of firemen employed on the Rail­
way. The Brotherhood has accepted said position and has 
ever since claimed the exclusive right to act, and has pur­
ported to act as the exclusive bargaining agent and griev­
ance  ̂representative of the entire craft or class aforesaid 
and its members have individually and collectively claimed 
the benefits of the actions of the Brotherhood as said rep­
resentative. Neither plaintiff nor any of the Negro loco­
motive firemen employed by the Railway has chosen the 
Brotherhood as his representative but by virtue of the 
fact that the Brotherhood’s members constitute the ma­
jority of the craft or class of locomotive firemen, employed 
by the Railway, plaintiff and the other Negro locomotive 
firemen, are compelled under the Railway Labor Act, to 
accept the Brotherhood as their representative for the 
purposes of the Act.

As members of the craft or class of locomotive firemen 
employed by the Railway, and being forced by the Railway



31

Labor Act to accept tlie representative chosen by the ma­
jority as their representative, plaintiff and other Negro 
locomotive firemen have the right to be represented fairly 
[fob 40] and impartially and in good faith by the repre­
sentative chosen by said majority. By accepting the posi­

tion  of representative under the Bailway Labor Act, of 
the entire craft or class of locomotive firemen, and by as­
serting the exclusive right to act as such representative, 
defendant Brotherhood became the statutory agent of 
plaintiff and the other Negro minority members of said 
craft or class and under the obligation and duty to rep­
resent them fairly and impartially and in good faith; to 
give them reasonable notice, opportunity to be heard and 
a chance to vote on any action adverse to their interests 
proposed by i t ; to make prompt and full disclosure to all 
actions taken by its affecting their interests in any way, 
and to refrain from using its position as their statutory 
representative to discriminate against them in favor of 
itself and its members and from destroying their rights. 
Nevertheless, in violation of its obligations and duties the 
Brotherhood has been persistently hostile and disloyal to 
plaintiff and the other minority nonmember Negro loco­
motive firemen, and has constantly sought to destroy their 
rights and to drive them out of employment in order to 
create a monopoly of the employment and the most favored 
jobs and conditions for its own members. It has always 
refused and still refuses to notify plaintiff and the other 
Negro firemen, members of the craft or class, of proposed 
actions adversely affecting their interests or to give them 
a chance to be heard or to vote on same. It has constantly 
refused and still refuses to report to him or them its ac­
tions as their statutory representative or to handle their 
grievances wherever there is an apparent conflict or in­
terest between them and its members; and has always re­
fused and still refuses to give him and them fair, impartial, 
honest and faithful representation under the Bailway La­
bor Act.

On or about March 28, 1940, the Brotherhood, purport­
ing to act in the premises as the representative under the 
Bailway Labor Act, o f the entire craft or class of locomo­
tive firemen employed on the Bailway and other railroads 
[fol. 41] in the southeastern section of the country, but 
acting in breach of its duties and in fraud of the rights of 
plaintiff and the other Negro locomotive firemen, mem­



32

bers of the craft or class, caused notice to be served on 
said railroads, including the defendant Railway, of its de­
sire and purpose to amend existing collective bargaining 
agreement covering the standard provisions of the individ­
ual hiring contracts of the individual firemen on each rail­
road, including the defendant Railway, in such manner 
as would drive the Negro firemen, including plaintiff, com­
pletely out of the service of said railroads.

On or about February 18, 1941, pursuant to said notice, 
the Brotherhood, purporting to act as the exclusive repre­
sentative under the Railway Labor Act of the entire craft 
or class of locomotive firemen employed on defendant Rail­
way and other railroads in the southeastern section of the 
country, did wrongfully prevail upon the Railway to enter 
into agreement, and did wrongfully negotiate an agreement 
with the Railway whereby the proportion of non-promotable 
firemen, and helpers on other than steam power, should not 
exceed fifty percent in each class of service established as 
such by the carrier, and providing that until such percentage 
was reached on any seniority district all new runs and all 
vacancies created by death, dismissal, resignation or dis­
qualification should be filled by promotable men; and further 
providing that non-promotable men are those who were not 
in line for promotion under the present rules and practices 
to the position of locomotive engineer.

Plaintiff also alleges that under the rules and practices 
in effect at the time that this contract was entered into and 
at the present time, all Negro locomotive firemen, including 
plaintiff, as a class, are arbitrarily ineligible for the posi­
tion of locomotive engineer and are arbitrarily classified as 
non-promotable.

On or about May 23, 1941, the complaint sets forth, the 
Brotherhood, again purporting to act in the premises as the 
exclusive representative under the Railway Labor Act of 
[fol. 42] the entire craft or class, but acting in fraud of the 
rights of the plaintiff and the other Negro minority firemen, 
and in breach of its duty to them, caused said agreement to 
be supplemented to provide specifically that the term ‘ ■ non- 
promotable firemen”  used therein referred only to colored 
firemen.

In serving said notice of March 28,1940, and entering into 
the agreement of February 18,1941, and supplement of May 
23,1941, the Brotherhood, although purporting to act as the 
exclusive representative of the entire craft or class of loco­



33

motive firemen employed by defendant Railway, gave plain­
tiff and the other Negro minority firemen no notice thereof 
or opportunity to he heard or vote thereon; nor was the 
existence of said agreement and supplement disclosed to 
them until the Brotherhood forced plaintiff off his run by 
virtue thereof, as hereinafter will appear more f u l l y b u t  
the Brotherhood, well knowing plaintiff’s and the other 
Negro firemen’s interest therein, and maliciously intending 
and contriving to secure a monopoly of employment and the 
most favorable jobs for its own members, acted in fraud of 
the rights of plaintiff and the other Negro fireman and 
failed and refused to represent them fairly and impartially 
as was its duty as their representative under the Railway 
Labor Act.

On the date that said agreement and supplement went 
into effect the Railway operated passenger train service on 
its northern seniority district, running between Norfolk, 
Virginia, and Marsden, North Carolina. Two firemen were 
used in said service, one of whom was a white member of 
defendant Brotherhood and the other was a Negro fireman, 
non-member of the Brotherhood. Assignment to said serv­
ice constituted one of the more preferred assignments avail­
able to locomotive firemen employed on the Railway. The 
hours were shorter and the work less arduous than that re­
quired of locomotive firemen who were assigned to other 
classes of service, particularly yard service. On or about 
June 1941, the white fireman who had been assigned to said 
[fol. 43] run, left it for another assignment, thereby creating 
a vacancy. In accordance with his individual contract of 
hiring plaintiff was assigned to said run. He worked said 
assignment with competence and skill and to the satisfaction 
of the Railway, until on or about October 10, 1941, when the 
Brotherhood again fraudulently and in breach of its duty as 
the representative under the Railway Labor Act of the en­
tire craft or class of locomotive firemen, employed by the 
Railway, did wrongfully press said agreement and supple­
ment and asserted that the plaintiff’s assignment to said 
run was in breach thereof, and wrongfully induced and 
forced the Railway to remove plaintiff from said assign­
ment and to assign defendant, W. M. Munden, a member of 
the Brotherhood, to same. As a result, plaintiff has lost his 
assignment on said passenger run and valuable property 
rights that have accrued to him while in the service of the

3—37



34

Railway, and in order to continue in his employment, has 
been forced to accept and perform an assignment in yard 
service where he has to work longer hours and perform 
more difficult and arduous labor, and unless this Honorable 
Court grants relief he will be forced to continue to accept 
and perform more difficult and arduous labor and will suf­
fer irreparable damage.

Plaintiff has requested the Railway to restore him to his 
assignment on the passenger train but the Railway asserts 
that under the provisions of the Railway Labor Act and 
said agreement entered into pursuant thereto, it is power­
less to do so unless plaintiff’s representative under the Rail­
way Labor Act, the Brotherhood, demands it. Plaintiff has 
requested the Brotherhood as his representative to represent 
him before the management of the Railway for the purpose 
of having his assignment and property rights restored but 
said Brotherhood, in violation of its duty has failed and 
refused.to represent him or even to acknowledge Ms request.

Plaintiff alleges that the matters and things complained 
of constitute an actual controversy between him and the 
class he represents on the one side and the defendants on 
[fol. 44] the other. The interests of plaintiff and the class 
he represents are adverse to the interests of the defendants 
and those they represent. The right of plaintiff and the 
class of which he is a member, to be represented fairly and 
impartially and in good faith by the representative under 
the Railway Labor Act of the entire class or craft of locomo­
tive firemen employed on defendant Railway has been 
violated and denied and, as a result, damages incurred, and 
unless this Honorable Court will declare the rights, inter­
ests, and other legal relations of the respective parties, as 
provided for in Section 400, Title 28, United States Code, 
and Rule 57 of the Federal Rules of Civil Procedure, numer­
ous vexatious disputes will arise between the parties hereto 
and those they represent, the plaintiff will suffer irrepar­
able injury.

Plaintiff files as exhibits with his complaint, copies of 
documents which strongly support his allegations. In sub­
stance, he prays for a declaratory judgment holding the dis­
crimination against him and other Negro firemen similarly 
situated to be arbitrary and illegal; for an injunction per­
manently restraining and enjoining the defendants from 
recognizing or enforcing the agreement and the supplement 
thereto, between the Brotherhood and the Railway, and en­



35

joining the Brotherhood from acting or purporting to act 
as plaintiff’s representative so long as the Brotherhood 
refuses to represent him and other Negro firemen similarly 
situated, fairly and impartially, to enjoin the Brotherhood 
from continuing to use its position of bargaining agent to 
destroy the rights of plaintiff and other Negro firemen sim­
ilarly situated, and for a judgment for damages against the 
Brotherhood because of its refusal fairly to represent him 
and for damages resulting from the destruction of his 
rights, and that his right to hold his assignment between 
Norfolk, Virginia, and Marsden, North Carolina, be re­
stored and protected.

The defendants have filed a motion to dismiss upon the 
ground, among others, that this Court is without any juris- 
[fol. 45] diction of the action alleged in the complaint. It 
definitely appears from the record that plaintiff, Tom Tun- 
stall, and the defendants, or at least a majority of them, 
including the Bailway, W. M. Munden, and defendants al­
leged to be local agents of the Brotherhood, are citizens of 
Virginia, and that diversity o f citizenship between plaintiff 
and defendants is lacking. Plaintiff bases his claim that 
this Court has jurisdiction of the action upon the alleged 
ground that a Federal question is involved, in that the deci­
sion of the case turns upon the construction of the Railway 
Labor Act of Congress, June 21, 1934, and upon U. S. C., 
Title 28, Sec. 41 (8).
The allegations of the complaint may be summarized as 

follows:
That pursuant to. the provisions of the Railway Labor 

Act of 1934, the Brotherhood has been chosen and is the 
representative or bargaining agent of the craft or class of 
enginemen and firemen for the purpose of collective bar­
gaining with the Railway and has been and is acting as 
such; that the Brotherhood is composed of white members 
only and Negro firemen are excluded from membership 
therein; that a majority of the members of that craft or 
class are members of the Brotherhood, as a result of which, 
having a majority of all of the members of the craft or class, 
the Brotherhood has been selected as its bargaining agent; 
that under the Railway Labor Act the Brotherhood is sole 
bargaining agent and the Railway must treat with the 
Brotherhood only and can not treat with plaintiff or other 
minority firemen; that the law makes it the duty of the



36

Brotherhood as such bargaining agent of the craft or class 
to represent all members thereof fairly and impartially, 
without regard to whether they are or are not members of 
the Brotherhood, or minority members of the craft; and 
that the Brotherhood, acting in its capacity as bargaining 
agent, has failed and refused to represent the colored fire­
men fairly and impartially, but, on the contrary, has wrong­
fully and fraudulently used its position and power as bar- 
[fol. 46] gaining agent to injure and destroy the rights of 
plaintiff and other Negro firemen similarly situated, for the 
benefit of Brotherhood’s own members.

The question presented is whether or not the Railway 
Labor Act, after providing as it does, procedure for selecting 
a bargaining agent as sole representative of a craft or class 
and making it the duty of the Railway to recognize and treat 
with such bargaining agent, stops short without imposing 
any duty or obligation upon such bargaining agent to rep­
resent fairly and impartially the minority as well as the 
majority members of the craft or class, and without afford­
ing any remedy to the minority, in this instance the Negro 
firemen, for alleged wrongful and fraudulent misrepresen­
tation such as is specifically and directly charged in the 
complaint.

To state the question another way, are the minority mem­
bers of a craft or class given any remedy by the Railway 
Labor Act of 1934, for alleged wrongs committed by the 
bargaining agent, or is the minority relegated for relief to 
the law of the state or states in which the wrongs are alleged 
to have been perpetrated?

As already noted, the Railway Labor Act of 1934 provides 
for the members of a craft or class of an interstate railway 
to select a bargaining agent to represent that craft or class 
for the purpose of collective bargaining, and requires the 
Railway to recognize and treat with the agent so selected, 
Virginian Bailway Co. v. System Federation No. 40, etc., 300 
U. S., 515, affirming Fourth Cir., 84 Fed. 2d., 641, and the 
Railway can treat only with the agent selected by the craft 
or class, Atlantic Coast Line R. Co. v. Pope, Fourth Cir., 119 
Fed. 2d, 39. However, we search the Railway Labor Act in 
vain for any provision affording protection to the minority 
against wrongful, arbitrary or oppressive action of the 
majority through the bargaining agent which the majority 
has selected. The Act is silent in that respect. It stops 
short after providing for the selection of the bargaining



37

[fol. 47] agent and imposing upon the Railway the duty to 
treat with that agent alone after he is selected. Numerous 
authorities were cited and quoted in the arguments, among 
them Teague v. Brotherhood of Locomotive Firemen and 
Enginemen, 6th Cir. (1942), 127 Fed. 2d, 53. After a study 
of that decision, the Court has concluded that it is directly 
in point in the instant case, and in Barnhart v. Western 
Maryland By. Co., 4th Cir., 128 Fed. 2d, 709, 714, our Circuit 
Court of Appeals, after discussing and reviewing the au­
thorities generally as to when a Federal question is pre­
sented, referred to and quoted the Teague case, as follows:

“ Quite in point here is the very recent case of 
Teague v. Brotherhood of Locomotive Firemen and 
Enginemen, 6 Cir. 127 F. 2d, 53, decided April 9, 1942. 
That was an action by a railway firemen against the 
Brotherhood (which was designated as collective bar­
gaining agent of his class under the Railway Labor 
Act) and the railroad, to set aside a collective bargain­
ing agreement on the ground that this agreement was 
destructive of his vested rights of seniority preference. 
In the unanimous opinion of the Court, holding that 
the action did not arise under a federal law, Circuit 
Judge Simons, 127 F. 2d, 53, 56, said:

“ Reverting to the appellant’s own statement of his 
case, such rights as are here claimed arise from the 
individual contracts of the Negro firemen with the de- 
fendent Railroad. The appellant is unable to point to 
provision o f the Railway Labor Act which protects 
such rights, or permits their invasion. The provisions 
of Sec. 2, subd. eighth makes the terms of the collective 
bargaining agreement a part of the contract of em­
ployment between the carrier and each employee—the 
case, nevertheless, remains one based upon a contract 
between private parties cognizable, if at all, under 
state law.’ ”

It is apparent in the light o f these authorities that no 
Federal question is presented in the present case, and there 
[fol. 48] being a lack of diversity of citizenship between 
the plaintiff and defendants, it follows that the motion to 
dismiss will have to be sustained.

Luther B. Way, United States District Judge.
Norfolk, Virginia, April 15, 1943.



38

[fo l. 49] I n' th e  U nited  S tates D istrict  C ourt for the 
E astern  D istrict  of V ir g in ia  (N orfolk  D iv is io n )

Civil Action No. 210

T om T u n st a ll , Plaintiff, 
vs.

B rotherhood of L ocomotive F iremen  and E nginemen , 
Norfolk, Virginia, and Ocean Lodge, No. 76, Norfolk, 
Virginia, and Port Norfolk Lodge, No. 775, Portsmouth, 
Virginia, and W. M. Munden, 1123 Hawthorn Street, 
Norfolk, Virginia, and Norfolk Southern Railway Com­
pany, a Corporation, a Corporation, Norfolk, Virginia, 
Defendants.

D ecree of D ism issal— May 7, 1943
This action came to be heard on March 4, 1943, upon the 

complaint, the motion of defendant Brotherhood of Loco­
motive Firemen and Enginemen, to dismiss the action un­
der Rule 12 (b) of the Rules of Civil Procedure, the motion 
of defendant Ocean Lodge No. 76, Norfolk, Virginia, to dis­
miss the action and quash purported service o f summons 
[fol. 50] under Rule 12 (b), the motion of Port Norfolk 
Lodge, No. 775, Portsmouth, Virginia, to dismiss said 
action under Rule 12 (b), the motion of defendant W. M. 
Munden to dismiss said action under Rule 12 (b), and mo­
tion of defendant Norfolk Southern Railway Company to 
dismiss said action, all of which motions were considered 
and fully argued and submitted to the Court on March 4, 
1943. And the Court not being fully advised of its judg­
ment, took time to consider.

And tbe Court being now fully advised of its judgment 
upon all the motions pending herein, is o f the opinion that 
the said defendants, namely: Brotherhood of Locomotive 
Firemen and Enginemen, Ocean Lodge No. 76, Port Nor­
folk Lodge No. 775, William M. Munden and the Norfolk 
Southern Railway Company, have been duly served and 
are properly before the Court; but being of tbe opinion 
that no federal question is presented in this case, and that 
there is no jurisdiction in this Court to hear and decide 
this case, it is therefore Ordered, Adjudged and Decreed:

1. That the motion of the defendant Brotherhood of 
Locomotive Firemen and Enginemen^ to dismiss the



39

action against it on the ground that there has been no 
service o f process upon said defendant, be, and the 
same is overruled.

2. That the motion o f defendant Ocean Lodge No. 
76, Norfolk, Virginia, to dismiss the action so far as 
concerns said defendant and to quash the purported 
service of summons upon said defendant, be, and the 
same is overruled.

3. That the said motions filed herein as aforesaid by 
Brotherhood of Locomotive Firemen and Enginemen, 
Ocean Lodge No. 76, Port Norfolk Lodge No. 775, W il­
liam M. Munden and the Norfolk Southern Railway 
Company, be and the same are hereby sustained in so 
far as the said motions are based upon a lack of juris­
diction in this Court.

[fols. 51-52] 4. That judgment be entered against
the plaintiff, Tom Tunstall, and for the defendants, 
Brotherhood o f Locomotive Firemen and Enginemen, 
Ocean Lodge No. 76, Port Norfolk Lodge No. 775, W. 
M. Munden and Norfolk Southern Railway Company, 
and that plaintiff’s complaint be and the same is 
hereby dismissed with costs to the defendants.

To the action of the Court in denying its motion to dis­
miss the action against it on the ground that it had never 
been served with summons, the defendant Brotherhood of 
Locomotive Firemen and Enginemen duly objected and ex­
cepted upon grounds fully stated to the Court; and to the 
action of the Court in denying its motion to dismiss the 
action as to it, and to quash the purported summons of 
service upon it, the defendant Ocean Lodge No. 76, Nor­
folk, Virginia, duly objected and excepted upon grounds 
fully stated to the Court; and to all of the actions of the 
Court in sustaining said motions o f the defendants to dis­
miss the complaint and entering judgment against the 
plaintiff and for the defendants, the plaintiff duly objected 
and excepted upon grounds fully stated to the Court.

---------------, United States District Judge.

Norfolk, Virginia, May 7, 1943.





49

[fo l. 66] S u pre m e  C ourt oe th e  U nited  S tates

Order A ll o w in g  C ertiorari—Filed May 29, 1944
The petition herein for a writ of certiorari to the United 

States Circuit Court o f Appeals for the Fourth Circuit 
is granted.

And it is further ordered that the duly certified copy of 
the transcript of the proceedings below which accompanied 
the petition shall be treated as though filed in response 
to such writ.

Endorsed on cover: Enter Charles H. Houston File No. 
48,272 U. S. Circuit Court of Appeals, Fourth Circuit, 
Term No. 37. Tom Tunstall, Petitioner vs. Brotherhood 
of Locomotive Firemen and Enginemen, Ocean Lodge No. 
76, Port Norfolk Lodge No. 775, et al. Petition for a writ 
of certiorari and exhibit thereto. Filed March 10, 1944. 
Term No. 37 0. T. 1944.

(2554)





SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1943

N o. 7 7 9

TOM TUNSTALL,

vs.
Petitioner,

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN, OCEAN LODGE NO. 76, PORT NOR­
FOLK LODGE NO. 775, W . M. MUNDEN and NOR­
FOLK SOUTHERN RA ILW A Y COMPANY.

R EPLY BRIEF OF PETITIONER.

Charles H. H ouston, 
Counsel for Petitioner.

Joseph C. W addy,
Oliver W . H ill,

Of Counsel.





SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1943

N o. 7 7 9

TOM TUN8TALL,

vs. Petitioner,

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN, OCEAN LODGE NO. 76, PORT NOR­
FOLK LODGE NO. 775, W. M. MUNDEN a n d  NOR­
FOLK SOUTHERN RA ILW A Y COMPANY.

R EPLY BRIEF OF PETITIONER.

To the Honorable the Chief Justice and the Associate
Justices of the Supreme Court of the United States:

There was no lack of necessary defendants in this case. 
All necessary parties were present before the Court.

All the respondents: Brotherhood of Locomotive Fire­
men and Enginemen, Ocean Lodge No. 76, Port Norfolk 
Lodge No. 775, W. M. Munden and Norfolk Southern Rail­
way Company oppose the petition for a writ of certiorari on 
the ground the Brotherhood is a necessary party defendant, 
has not been served with process, and is not before the 
Court. (See Brotherhood brief pp. 3-9; Railway brief pp.



2

1-2). Ocean Lodge also objects to the service of process 
(Brotherhood brief p. 7, R. 32).

The contentions of the respondents were denied by the 
United States District Court (R. 50), and ignored by the 
United States Circuit Court of Appeals in its opinion (R. 
55) although the' points were specifically raised in each 
court by respondents (R. 25-33; Brotherhood brief pp. 4-5; 
Railway brief, p. 2).

The facts on this matter are as follow s: petitioner pro­
ceeded against the respondent Brotherhood of Locomotive 
Firemen and Enginemen not only directly in proper person 
(R. 2) but also under Rule 23 (a) of the Federal Rules of 
Civil Procedure (Appdx.) through its subordinate lodges: 
Ocean Lodge No. 76 and Port Norfolk Lodge No. 775, and 
its local representative, W. M. Munden, Local Chairman of 
Ocean Lodge No. 76 (R. 2-3, 24).

Process was served on Ocean Lodge No. 76, Port Norfolk 
Lodge No. 775, and on the individual respondent Munden. 
No service was made on the Brotherhood as such (R. 53). 
The service of process on Ocean Lodge No. 76 was chal­
lenged (R. 32, 53-54). Service on Port Norfolk Lodge No. 
775 and on respondent Munden was not challenged (R. 
30-31). Therefore, the Brotherhood is before the Court 
under Federal Rules of Civil Procedure, Rule 23 (a) by 
service on at least two representatives.

The complaint specifically charged that petitioner was 
employed as a locomotive fireman on the Northern Seniority 
District of the Railway (par. 6, R. 4) and that his wrongful 
displacement occurred in said Seniority District (par. 6, 
R. 4; par. 10, R. 10). As to the respondents it charged:

“ 3. The defendant, Brotherhood of Locomotive Fire­
men and Enginemen (hereinafter called the Brother­
hood) is an international unincorporated association 
whose membership is derived principally from white 
firemen and enginemen employed on interstate rail-



3

roads, including the Norfolk Southern Railroad and 
its successor in interest, the Norfolk Southern Rail­
way; is the Representative under the Railway Labor 
Act, 1934, 48 Stat. 1185, U. S. G. Title 45, Chapter 8, of 
the craft or class of locomotive firemen employed on 
said Railroad and is sued as such. It is composed of a 
Grand Lodge and over nine hundred subordinate 
lodges, including the defendant subordinate lodges, 
which are too numerous to make it practicable to bring 
them all before the Court. The subordinate lodges are 
also unincorporated associations, each composed of 
numerous individual locomotive fireman, and it is like­
wise impracticable to bring them all before the Court. 
The Brotherhood has a national treasury derived from 
membership dues and otherwise. By constitutional 
provision, ritual and practice it restricts its member­
ship to white locomotive firemen and enginemen. Plain­
tiff is excluded therefrom solely because of race.”

“ 4. The defendants, Ocean Lodge, No. 76 and Port 
Norfolk Lodge, No. 775, are subordinate lodges of the 
defendant Brotherhood having their locations in Nor­
folk, Virginia, and Portsmouth, Virginia, respectively, 
within the jurisdiction of this Court. The business 
of each subordinate lodge is managed by a President, 
Recording Secretary, Legislative Representative, Local 
Organizer and Local Chairman. The members of the 
defendant subordinate lodges are either employed by 
the Norfolk Southern Railroad Company, and directly 
involved in the matters herein complained of, or are 
members of the defendant Brotherhood resident within 
the jurisdiction of this court. IJpon information and 
belief plaintiff alleges that the defendant subordinate 
lodges constitute all of the lodges of the defendant 
Brotherhood within the territorial limits of the Norfolk 
Division of the United States District Court for the 
Eastern District of Virginia, and are truly and fairly 
representative of the remaining lodges of the Brother­
hood and of the Brotherhood itself, and the interest of 
all the members, subordinate lodges and the Brother­
hood will be adequately represented in the premises by



4

the defendants of record. The defendant subordinate 
lodges are sued as representatives of the membership, 
all the subordinate lodges and the Brotherhood itself.”

“ 5. The defendant, W. M. Munden, is a white loco­
motive fireman employed by the Norfolk Southern Bail- 
road and its successor in interest, the Norfolk Southern 
Railway; is a member of the defendant Brotherhood 
who, because of the wrongs inflicted by the Brotherhood 
upon plaintiff and his class, gained certain advantages 
and considerations which rightfully belong to plaintiff 
as hereinafter will appear more fully. He is local 
Chairman of defendant Ocean Lodge, No. 76, and acts 
for the Brotherhood in enforcing the schedule of rules 
and working conditions and in matters of grievance ad­
justments and job assignments on the Northern Senior­
ity District of said Railroad. He is sued in his own 
right and as a representative of the members of the 
Brotherhood, particularly those employed on the Nor­
folk Southern Railroad and its successor in interest, 
the Norfolk Southern Railway Company”  (R. 2-3).

Demonstrating that the action involves common ques­
tions of law and fact affecting the several rights and that a 
common relief is sought (Rule 23 (a-3)), petitioner charged 
in Count I that the wrongs complained of were inflicted 
upon him by the Brotherhood itself (R. 4), and reasserted 
the same fact with more elaboration in Count II (R. 6-12). 
The Brotherhood as an unincorporated association is the 
totality of its membership; hence the questions of law and 
fact affecting its action as against a nonmember must be 
common to all the members of the association.

Petitioner also brought a class suit on behalf of all the 
Negro fireman employed by the respondent Railway. He 
charged in Count II that

“ 1. * * * Said Negro firemen constitute a class too
large to be brought individually before the Court, but



5

there are common questions of law and fact involved 
herein, common grievances arising out of common 
wrongs, and common relief for the entire class is sought 
as well as special relief of this plaintiff; and the inter­
ests of said class are fairly and adequately represented 
by plaintiff”  (R. 5).

As part of the relief prayed, petitioner sought a declara­
tory judgment declaring the respective rights and duties of 
the Brotherhood as representative under the Railway 
Labor Act of the craft or class of locomotive firemen em­
ployed by the respondent Railway in respect to the members 
of said craft or class, including plaintiff and other minority 
firemen, nonmembers of the Brotherhood; a permanent in­
junction against the Brotherhood, its officers, agents or 
subordinate lodges, their officers and agents, restraining 
and enjoining them from purporting to act as the repre­
sentative of plaintiff and the other Negro firemen under the 
Railway Labor Act so long as it or they, or any of them, 
refuse to represent him and them fairly and impartially; 
and so long as it or they continue to use its position to 
destroy the rights of plaintiff and the class he represents 
herein (R. 12-13).

The District Court held that “ The Brotherhood of Loco­
motive Firemen and Enginemen, Ocean Lodge No. 76, Port 
Norfolk Lodge No. 775, and William M. Munden and the 
Norfolk Southern Railway Company have been duly served 
and are properly before the Court”  (R. 50). It thereupon 
overruled the motions of the Brotherhood and of Ocean 
Lodge No. 76 to dismiss on the ground of no service of 
process (R. 50).

It thus appears that the requirements of Federal Rules of 
Civil Procedure, Rule 23 (a) have been expressly complied



6

with; that the instant case is typical of the cases brought 
under said subsection;

See Federal Rules of Civil Procedure and Proceedings 
of the American Bar Institute, Cleveland, 1938, pp. 
50, 263-264;

and that the objections of the respondents to the service of 
process and the jurisdiction of the Court over the Brother­
hood of Locomotive Firemen and Enginemen are frivolous.

C h arles  H . H ouston , 
Attorney for Petitioner.

J oseph  C. W addy,
O liver  W . H il l ,

Of Counsel.



7

APPEN D IX.

FEDERAL RULES OF CIVIL PROCEDURE.

R ule 23. C lass A ctio n s .

(a ) R epresen tatio n . If persons constituting a class are 
so numerous as to make it impracticable to bring them all 
before the court, sucli of them, one or more, as will fairly in­
sure tlie adequate representation of all may, on belialf of 
all, sue or be sued, when the character of the right sought 
to be enforced for or against the class is

(1) joint, or common, or secondary in the sense that 
the owner of a primary right refuses to enforce that 
right and a member of the class thereby becomes en­
titled to enforce i t ;

(2) several, and the object of the action is the ad­
judication of claims which do or may affect specific 
property involved in the action; or

(3) several, and there is a common question of law or 
fact affecting the several rights and a common relief is 
sought.

(1708)





Supreme Court of the United States
October T erm, 1943

No. 779

T O M  T U N S T A L L

v.
B R O T H E R H O O D  O F LO C O M O T IV E  

F IR E M E N  A N D  E N G IN E M E N , 
and OTH ERS.

B R IE F FO R  N O R FO LK  SO U TH E RN  R A IL W A Y  
C O M P A N Y  OPPO SIN G  G R A N TIN G  

C E R T IO R A R I

Jas. G. M artin,
500 W estern  U n ion  B u ild ing , N orfolk, V a. 

Counsel.

THE R E LI A NC E  PR ESS  OF  NO R F OL K,  V A . ,  INC.





SUBJECT IN D E X
Page

Petition, brief and record not delivered in ten 
days after filing........................................................  1

Necessary party not before the Court................... 1

No federal question involved in the case................. 2





Supreme Court of the United States
October T erm, 1943

No. 779

T O M  T U N S T A L L

v.
B R O T H E R H O O D  OF LO C O M O T IV E  

F IR E M E N  A N D  E N G IN E M E N , 
and OTH ERS.

BRIEF FO R  N O R F O L K  SO U TH E RN  R A IL W A Y  
C O M P A N Y  OPPO SIN G  G R A N TIN G  

C E R T IO R A R I

1. At the outset we submit that the Court should 
not take jurisdiction because the notice of filing of 
petition with printed copies of petition, brief, and 
record were not served within ten days from March 
10, 1944, the date the petition was filed; but on the 
contrary not until March 31, 1944; as required by 
Rule 38 of this Court, Subsection 3.

2. Furthermore, we submit that there is no juris­
diction because an absolutely necessary party, to-wit, 
Brotherhood of Locomotive Firemen and Enginemen, 
never was brought before the District Court nor the 
Circuit Court of Appeals by service of any process

[ 1 ]



nor by any appearance and this objection was made 
from the very beginning in the District Court. See 
Record page 34.

That there was no service upon said Brotherhood 
is positively shown by the return of the Marshal, record 
page S3, reading “ Returned not executed as to Brother­
hood of Locomotive Firemen and Enginemen, no 
representative in this District.”

Both the District Court and the Circuit Court of 
Appeals having decided in favor of defendants on the 
ground that no federal question was involved, in their 
opinions have totally ignored the matter of said 
Brotherhood, a necessary party, not being before the 
Court; although the final order of the District Court 
(Record page SO) stated that said Brotherhood had 
been duly served in the face of the Marshal’s return 
to the very contrary. The petition for certiorari and 
the brief in support thereof also totally ignore the 
question of said Brotherhood being served with process.

To have the necessary parties before the Court 
being a condition precedent to jurisdiction on other 
questions, we submit that the want of that party before 
the Court prohibits jurisdiction and makes refusal of 
the certiorari necessary.

3. If it can be imagined that this case is before 
this Court in time, and that the necessary parties are 
before the Court, still this Court has no jurisdiction 
and the certiorari should be refused because there is 
no federal question before the Court.

That there is no federal question is so thoroughly 
shown by the opinion of the District Court (record

[ 2 ]



page 36), and by the opinion of the Circuit Court of 
Appeals (record page 55), that we think it would 
make “ vain repetitions” (Matthew VI, 7) for us to 
quote from the many cases emphatically establishing 
that no federal question is involved. W e call especial 
attention to the cases cited by the Circuit Court of 
Appeals (record pages 56, 57).

We respectfully submit that certiorari should be 
refused.

Jas. G. M artin,
500 W estern  U n ion  B u ild ing , N orfolk, V a.

Attorney for Norfolk Southern
Railway Company.

[ 3 ]





Supreme Court of the United States
October T erm, 1943

No. 779

T O M  T U N S T A L L
Petitioner,

V.

BROTH ERH OO D  OF L O C O M O T IV E  F IR E ­
MEN A N D  E N G IN E M E N , O CEAN  LO D GE 
NO. 76, PO R T N O R FO LK  LO D G E NO. 775, 
W. M. M U N D E N  A N D  N O R FO LK  SO U TH ERN  

R A IL W A Y  C O M PA N Y.

BRIEF FOR RESPONDENTS BROTHERHOOD OF LOCO­
MOTIVE FIREMEN AND ENGINEMEN, OCEAN LODGE 
NO. 76, PORT NORFOLK LODGE NO. 775 and W. M. 
MUNDEN, IN OPPOSITION TO PETITION FOR WRIT 
OF CERTIORARI TO THE UNITED STATES CIRCUIT 
COURT OF APPEALS. FOR THE FOURTH CIRCUIT.

H arold C. H eiss and 
Russell B. D ay,
714 K eith B uild ing , C leveland , Ohio

W m . G. M aupin ,
415 Bank o f  Com m erce B uilding, N orfolk, Va.

Counsel for Respondents.

THE R E LI A N C E  PRE SS  O F  NO R F OL K,  V A . ,  INC.





STATEMENT ..........................
QUESTIONS PRESENTED. 
SUMMARY OF ARGUMENT.
ARGUMENT ............................
CONCLUSION..........................

TABLE OF CASES

Barnhart v. Western Maryland Ry. Co., 128 F. (2d) 709 
Brotherhood of Railway & Steamship Clerks, etc. v. 

United Transport Service Employees of America,
.......  U. S.........., 64 S. Ct. 260.....................................

Burke v. Union Pacific Ry. Co., 129 F. (2d) 844
Commissioner v. Havemeyer, 296 U. S. 506..........
Chicago, Rock Island Pac. Ry. Co. v. Martin, 178 U. S.

245 .................................................................................
Ebert v. Poston, 266 U. S. 548..........................................
General Committee, etc. v. Southern Pacific Co.,

U. S......... , 64 S. Ct. 142................................................
General Committee, etc. v. Missouri-Kansas-Texas R.R.

Co., et a l , ....... U. S........... , 64 S. Ct. 146.....
Gold Washing & Water Co. v. Keys, 96 U. S. 199
Gully v. First National Bank, 299 U. S. 109...................
Hartley v. Brotherhood of Railway & Steamship Clerks,

283 Mich. 201...................................... ...........................
International Brotherhood of Boilermakers v. Wood,

162 Va. 517.....................................................................
Langues v. Green, 282 U. S. 531.......................................
Levering & Garrigues Co. v. Morfin, 289 U. S. 103 
Louisville & Nashville R. R. Co. v. Mottley, 211 U. S. 149

1

3
3
4 

16

10

13
10
9

10
13

14

14
10 
10

11

5,7
9

12
11



T A B L E  O F  CA SE S (Continued)
Page

Morley Co. v. Maryland Casualty Co., 300 U. S. 185.....  9
Norfolk & Western R. Co. v. Harris, 260 Ky. 132.........  11
Order of Railway Conductors v. Shaw, 189 Okla. 665...  11
Ryan v. The New York Central R. Co., 267 Mich. 202...  11
Switchen’s Union of North America, etc. v. National

Mediation Board, et a l,....... U. S..... ....., 64 S. Ct. 95 13
Teague v. Brotherhood of Locomotive Firemen & En-

ginemen, 127 F. (2d) 53........................................10, 12,13
Tennessee v. Union & Planters Bank, 152 U. S. 454.....  11
Tunstall v. Brotherhood of Locomotive Firemen and

Enginemen, 140 F. 2d, 35............ .......... ............. ............. ............. ............. .............  3
U. S. v. Curtiss-Wright Co., 299 U. S. 304...................... 9
U. S. v. Missouri-Pacific R. R. Co., 278 U. S. 269...........  13
Virginian R. Co. v. System Federation, 300 U. S. 515...  15
Waterfront Coal Co. v. Smithfield Transportation Co.,

114 Va. 482............................ ........ .................. ...............  8

TABLE OF STATUTES CITED

Burks Pleading & Practice (3d Ed.), 74.......................  8
Code of Virginia of 1936, Section 6058...........................  5
Code of Virginia, §6041, §6062.........................................  7, 8
Moore’s Federal Practice, §3, 3394; 3577.......................  9
Rule 17 (b) Rules of Civil Procedure.............................  5
Rule 4 (d) (3) Rules of Civil Procedure.......................  6
48 Stat. 1185........................................................................ 2
U. S. C. Title 45, Chapter 8............................................... 2
U. S. C. Title 28, Section 41 (8 )......................................... 2
U. S. C. Title 28, Section 400............................................  2



Supreme Court of the United States
October T erm, 1943

No. 779

BRIEF FOR RESPONDENTS BROTHERHOOD OF LOCO­

MOTIVE FIREMEN AND ENGINEMEN, OCEAN LODGE 

NO. 76, PORT NORFOLK LODGE NO. 775 and W. M. 

MUNDEN, IN OPPOSITION TO PETITION FOR WRIT 

OF CERTIORARI TO THE UNITED STATES CIRCUIT 

COURT OF APPEALS FOR THE FOURTH CIRCUIT.

To the Honorable, the Chief Justice and the Associate 

Justices of the Supreme Court of the United States:

STATEMENT

Petitioner, a negro fireman employed by the N or­
folk Southern Railway Company, brought this action 
in the District Court of the United States for the 
Eastern District of Virginia on behalf of himself and 
other negro firemen employed by that Railroad against 
the Railway Company, the Brotherhood of Locomotive

[ 1 ]



Firemen and Enginemen, two subordinate lodges of 
that Railway Labor Union, and an officer of one of 
the local lodges.

The gravamen of the complaint is that the plaintiff 
as a fireman employed by the respondent railway com­
pany had acquired certain contractual rights in the 
nature of seniority rights; that the Brotherhood as the 
bargaining agent of the whole craft of firemen had 
negotiated a certain agreement with the railway which 
modified the seniority rights in a manner that discrimi­
nated against plaintiff; and that thereby plaintiff 
suffered detriment with respect to seniority rights, 
sometimes referred to as assignments. The complaint 
asks for a declaratory judgment that the Union, as 
bargaining representative, is bound to represent fairly 
and impartially all members of the craft; an injunction 
restraining the defendants from enforcing or operating 
under the agreement complained of insofar as it dis­
criminates against negro firemen, and restraining the 
Union from acting as the bargaining representative 
of the negro firemen so long as it refuses to represent 
them fairly and impartially; an award against the 
Union for damages; and an order restoring plaintiff 
to the assignment to which he claims he is entitled 
and of which he claims he was deprived.

The complaint contains no allegation of diversity 
of citizenship. It asserts jurisdiction under 48 Stat. 
4185; U. S. C. Title 45, Chapter 8 ; U. S. C. Title 28, 
Section 41 (8 ); U. S. C. Title 28, Section 400; and the 
Federal Rules of Civil Procedure. Federal jurisdiction 
depends on whether the controversy is one arising 
under the laws of the United States.

[ 2 ]



The District Court decided that no federal ques­
tion was presented and no jurisdiction inhered in that 
court to hear and decide the case. Accordingly, on 
May 7, 1943, it granted motions to dismiss filed by 
respondents, and entered judgment for the defendants 
and against the plaintiff.

From this judgment plaintiff appealed to the 
Circuit Court of Appeals for the Fourth Circuit, which, 
by its opinion entered January 10, 1944 (140 F. (2d) 
35) affirmed the order of the District Court. To that 
judgment of affirmance the writ of certiorari is sought; 
and in the petition the Railway Labor Act is relied 
on as affording federal jurisdiction.

QUESTIONS PRESENTED
1. Can any court take jurisdiction of a controversy 

and proceed to adjudicate it when the record shows affirma­
tively that a necessary defendant has not been served with 
process and is not before the court?

2. Does a complaint which alleges that a bargaining 
agent, chosen pursuant to the provisions of the Railway 
Act, has negotiated a contract that discriminates against 
the rights of certain members of the craft established by 
prior collective bargaining agreements between the repre­
sentative and the carrier, present a federal question?

SUMMARY OF ARGUMENT

1. Respondent, Brotherhood of Locomotive Fire­
men and Enginemen, was never served with process 
in this case. It made timely motion to dismiss the case 
as to it, appearing specially for that purpose; and there 
is no jurisdiction of the person as concerns that re­
spondent. The same is true as to respondent Ocean 
Lodge No. 76.

[ 3 ]



2. Jurisdiction of the subject matter is lacking 
since no federal question is presented, because:

a. The complaint seeks to inject a federal ques­
tion by attempting to anticipate a probable defense;

b. The rights claimed by petitioner are plainly 
non-existent.

ARGUMENT-

RESPONDENT, BROTHERHOOD OF LOCOMOTIVE 
FIREMEN AND ENGINEMEN, WAS NEVER SERVED 
WITH PROCESS IN THIS CASE. IT MADE TIMELY 
MOTION TO DISMISS THE CASE AS TO IT, APPEARING 
SPECIALLY FOR THAT PURPOSE: AND THERE IS NO 
JURISDICTION OF THE PERSON AS CONCERNS THAT 
RESPONDENT. THE SAME IS TRUE AS TO RESPON­
DENT, OCEAN LODGE No. 76.

The return of the Marshal of service of the sum­
mons and complaint as to respondent Brotherhood of 
Locomotive Firemen and Enginemen is this: “ Returned 
not executed as to the Brotherhood of Locomotive 
Firemen and Enginemen, no representative in this 
district.” (R. S3)

By timely motion under Rule 12(b) of the Rules 
of Civil Procedure, the respondent Brotherhood of 
Locomotive Firemen and Enginemen, appearing spe­
cially, moved to dismiss the action on the ground that 
there had been no service of process on it; that it is a 
voluntary unincorporated association (cf. complaint 
R. 2), and that no officer or trustee had been served 
with process; and that the court lacked jurisdiction of 
its person because there had been no service of process 
and this respondent was not before the court. (R. 25)

[ 4 ]



Notwithstanding the return showing that no 
service on the respondent Brotherhood had ever been 
made, the District Court held that it had been duly 
served and was properly before the court; and it over­
ruled its motion to dismiss on the ground that no service 
of process had been had (R. 50). In the same judgment 
the District Court dismissed the complaint on the 
ground of lack of jurisdiction of the subject matter.

The action of the District Court in refusing to 
dismiss the complaint as to the respondent Brotherhood 
for lack of jurisdiction of its person was made the sub­
ject of complaint in the brief filed by that respondent 
with the Fourth Circuit. The point was not noticed 
in the opinion of the Circuit Court of Appeals for the 
Fourth Circuit.

It seems superfluous to argue that the Brotherhood, 
as to which the Marshal’s return shows no service of 
process, is not before the court unless service on its 
subordinate lodges be held to be service upon it.

R u le  1 7 (b )  of the R u les  o f  C iv il P ro ced u re  pro­
vides that capacity to sue or be sued shall be determined 
by the law of the state in which the District Court is 
held.

S ection  6058  of the C od e  o f  V irg in ia  o f  1936 
reads as follows:

“A ll unincorporated associations or orders 
may sue and be sued under the name by which 
they are commonly known and called, or under 
which they do business, and judgments and 
executions against any such association or order 
shall bind its real and personal property in like 
manner as if it were incorporated. Process 
against such association or order may be served 

[ 5 ]



on any officer or trustee of such association or 
order.”

Rule 4 (d) (3) of the Rules of Civil Procedure 
provides that service shall be made upon an “ unin­
corporated association which is subject to suit under 
a common name, by delivering a copy of the summons 
and of the complaint to an officer, a managing or gen­
eral agent, or to any other agent authorized by appoint­
ment or by law to receive service of process * * * * ’’

This record shows no service on any officer, 
trustee, managing or general agent or any other agent 
authorized by appointment to receive service of process. 
No agent is authorized by law to receive such service 
(Code of Virginia, §6058, supra). Service upon an 
officer of a subordinate lodge is insufficient and con­
stitutes no service at all against the association. In ter ­
national B ro th erh o o d  o f  B o ilerm a k ers  V. W o o d , 162 
Va. 517.

It further affirmatively appears from the record 
that respondent Ocean Lodge No. 76 has never been 
served with process and is not before the Court. The 
return of the Marshal as to this respondent is as follows:

“ Not finding any representative of the 
within named Lodge (Ocean Lodge No. 76) 
I served a copy of the Summons together with 
a copy of the Complaint, by delivering same to 
Lucile Munden, she being the wife of W. M. 
Munden, and above the age of sixteen years 
and a member of his family at his regular place 
of abode at 1123 Hawthorne Avenue, South 
Norfolk, Va. for delivery to the within named 
W. M. Munden at his regular place of abode, 
a place within my District.

[ 6 ]



“ R. L. Ailworth, United States Marshal, 
by H. L. Trimver, Deputy U. S. Marshal.” 
(R  54)

By timely motion respondent Ocean Lodge No. 76 
appeared specially and moved to dismiss the action 
so far as concerned it, and to quash the purported service 
of summons on the ground that no proper service had 
been made on said Ocean Lodge No. 76, and the Court 
lacked jurisdiction over the person of that defendant. 
(R. 32) The District Court in its final judgment held 
that Ocean Lodge No. 76 had been duly served and 
was properly before the Court (R. 50). Complaint 
upon this ruling was made in the brief filed by this 
respondent with the Court of Appeals for the Fourth 
Circuit. The point was not noticed in its opinion.

The Marshal’s return does not state whether 
W. M. Munden or Lucile Munden are in any way 
connected with, officers or trustees or agents of said 
Ocean Lodge No. 76. Even if it be assumed that W. M. 
Munden is an officer of said Ocean Lodge No. 76, 
service upon his wife is no service upon the Lodge. 
Section  6041, V irg in ia  C od e  o f  1936 provides, so far 
as pertinent here, as follows:

“ A  notice, no particular mode of serving 
which is prescribed, may be served by delivering 
a copy thereof in writing to the party in person, 
or if he or she be not found at his or her usual 
place of abode, by delivering such copy and 
giving information of its purport to any person 
found there, who is a member of his or her 
family (not a temporary sojourner, or guest) 
and above the age of sixteen years; or if neither 
he nor she, nor any such person be found there,

[ 7 ]



by leaving such copy posted at the front door of 
said place of abode.”

Section 6062 of the Code of Virginia of 1936 
provides, so far as pertinent here, as follows:

“Any summons or scire facias may be served 
in the same manner and by the same person as 
is prescribed for the service of a notice under 
Section Six Thousand and Forty-one, except 
that when such process is against a corporation 
the mode of service shall be as prescribed by 
the two following Sections” .

The two “ following sections” just above referred 
to are Sections 6063 providing for service of process 
on domestic corporations, and 6064 providing for 
service on foreign corporations. Neither provides for 
service on unincorporated associations which is covered 
only by Section 6058 hereinabove quoted. An unin­
corporated association in Virginia can be sued and 
served only by virtue of that section. International 
Brotherhood of Boilermakers V. Wood, supra. In Vir­
ginia, service against a domestic corporation can not 
be made by serving the wife of an officer, director or 
agent of a corporation. Waterfront Coal Co. V. Smith- 
field Transportation Co., 114 Va. 482; Burks Pleading 
& Practice (3d Ed.) 74.

It is clear that Ocean Lodge No. 76 has never 
been served with process; and, by reason of its special 
appearance and its motion to quash the service and 
dismiss the action, it is not before the Court.

The basis of petitioner’s complaint arises out of 
a contract which, petitioner claims, invades his rights.

[ 8 ]



Only one of the contracting parties— the Railroad—  

is before the Court.
This point can properly be brought to the attention 

of the Court without the assignment of cross error or 
the entry of a cross appeal. The general principle is 
stated in Moore’s Federal Practice, §3, 3394; 3577: 
“ But the appellee may, even though he has not entered 
a cross appeal, defend a judgment on any ground con­
sistent with the record, even if rejected below.”

Supporting this principle are the following cases: 
Langues V. Green, 282 U. S. 531, 535; Commissioner 
V. Havemeyer, 296, U. S. 506, 509; United States V. 
Curtiss-Wright Co., 299 U. S. 304, 330; Morley Co. V. 
Maryland Cas. Co., 300 U. S. 185, 191.

Since this point is jurisdictional and goes to the 
right of any court, trial or appellate, to take cognizance 
of this action as regards respondents Brotherhood of 
Locomotive Firemen and Enginemen and Ocean Lodge 
No. 76, it may be raised at any time or in any manner, 
and, indeed, could be considered by the court ex mero 
motu.

—  II —
JURISDICTION OF THE SUBJECT MATTER IS 

LACKING SINCE NO FEDERAL QUESTION IS PRE­
SENTED.

—  A —
The complaint seeks to inject a federal question by 

attempting to anticipate a probable defense.

The rights which plaintiff seeks to protect are 
contract rights. The plaintiff complains that these 
rights were violated by the Brotherhood when it, acting

[ 9 ]



in the capacity of statutory representative, negotiated 
an agreement with the railway which violated these 
contract rights. It is charged that the Brotherhood, 
in negotiating the new agreement, acted unfairly to­
ward plaintiff and discriminated against him, instead 
of representing him fairly as it is claimed it ought to 
do when acting as a statutory representative. The obli­
gation of the contract is a creation not federal, but of 
the state; and a wrongful breach thereof does not confer 
federal jurisdiction. Gully V. First National Bank, 
299 U. S. 109. See also Teague V. Brotherhood of 
Locomotive Firemen & Enginemen, C. C. A. Sixth, 
127 F. 2d, 53; Barnhart V. Western Maryland Ry. Co., 
C. C. A. Fourth, 128 F. 2d, 709; Burke V. Union Pacific 
Ry. Co., C. C. A, Tenth; 129 Fed. 2d, 844.

In the effort to escape from the effect of the doc­
trine announced in the Gully case, the complaint con­
tains much matter referring to the Railway Labor Act 
as the origin of the alleged status of the respondent 
Brotherhood as bargaining agent. So far as the com­
plaint is concerned, these allegations add nothing to it. 
If, as alleged, the Brotherhood, as bargaining agent, 
entered into a discriminatory contract to the detriment 
of the plaintiff and wrongfully deprived him of certain 
rights, it is immaterial how it became such bargaining 
agent. These allegations are a patent effort to anticipate 
a possible defense. Such allegations do not present a 
federal question, which must be shown by the plaintiff’s 
own statement of his cause of action exclusive of allega­
tions anticipating a defense which may present a federal 
question. Gold Washing & Water Co. V. Keys, 96 U. S. 
199; Chicago, Rock Island Pac. Ry. Co. V. Martin,

[ 1 0 ]



The rights which petitioner claims he had and 
further claims were infringed, be they called seniority 
rights or assignments, arise solely out of the contractual 
relationship with the employer. Hartley V. Brother­
hood of Railway & Steamship Clerks, 283 Mich. 201; 
Order of Railway Conductors V. Shaw, 189 Okla. 665; 
Ryan V. The New York Central R. Co., 267 Mich. 202; 
Norfolk & Western R. Co. V. Harris, 260 Ky. 132.

Therefore, the complaint is that petitioner’s con­
tract rights have been violated and the relief sought 
is based upon such alleged violation. Succinctly, the 
complaint is breach of contract; and the remedy for 
such a wrong is a common law remedy to be pursued, 
if at all, as a matter of local law in the state courts.

The brief of petitioner (p. 14, p. 17) asserts that 
the decisions below violate the Fifth Amendment of 
the Constitution of the United States. Again, this is 
an attempt to set up a federal question by anticipating 
a possible defense. A  suggestion by a plaintiff that 
defendant will or may set up a claim under the Con­
stitution of the United States does not make the suit 
one arising under the Constitution. Tennessee V. Union 
& Planters Bank, 152 U. S. 454. A fortori a suit does 
not arise under the Constitution of the United States 
by including in the complaint an anticipated reply to 
an anticipated defense.

178 U. S. 245; Louisville & Nashville R. R. Co. V.
Mottley, 211 U. S. 149; Tennessee V. Union & Planters
Bank, 152 U. S. 454.

[ 1 1 ]



—  B —

The rights claimed by petitioner are plainly non­
existent.

N o federal question is presented by a complaint 
which sets up an alleged federal question plainly un­
substantial, either because it is obviously without merit 
or because it has been so definitely resolved and settled 
by previous decisions of this Court that no room is left 
for reasonable doubt or controversy thereupon. Lever­
ing &  Garrigues Co. V. Morrin, 289 U. S. 103.

The brief of petitioner admits that the Railway 
Labor Act is silent respecting any provision with regard 
to the character of the representation of a craft by the 
duly selected bargaining agent. (Br. p. 9) Whether if 
be conceded or not, it is a fact, as inspection of the Act 
will disclose. The District Court so held in its opinion. 
(R. 46) The Circuit Court of Appeals for the Fourth 
Circuit stated that fair representation for the purposes 
of collective bargaining was “ implicit” in the provisions 
of the Railway Labor Act— which is to say that all 
persons who act as agents or in any other contractual 
capacity are held to the duty to act fairly and honestly 
whether specifically directed so to do or not. But the 
Circuit Court of Appeals for the Fourth Circuit found 
no provision of the Act which protects or even refers 
to the rights of the petitioner which, the complaint 
avers, have been violated. The Circuit Court of Ap­
peals for the Sixth Circuit, in Teague V. Brotherhood 
of Locomotive Firemen and Enginemen, 127 F. (2d) 
S3, found specifically that the act contained no such 
provision.

[ 1 2 ]



It follows that the petitioner is not seeking judicial 
construction of the Act, but invoking judicial legisla­
tion to the effect that provisions not made by Congress 
may be inserted therein by the courts. This Court has 
repeatedly refused to assume any such function. Ebert 
V. Poston, 266 U. S. 548; United States V. Missouri- 
Pacific R. R. Co., 278 U. S. 269.

The identical case here presented has been decided 
to the same effect by two Circuit Courts of Appeals'. 
by the Sixth Circuit in 1942 in the case of Teague V. 
Brotherhood of Locomotive Firemen and Enginemen, 
supra, which is indistinguishable from this case, and by 
the Fourth Circuit here.

It is beyond dispute that the Railway Labor Act 
contains no provision conferring jurisdiction on the 
Federal courts to afford the relief which is here sought. 
That relief is accurately and succinctly summed up in 
the opinion of the Fourth Circuit in these words (R. 
59):

“The court here is asked * * * * to declare 
the duty of a representative admittedly chosen 
by a majority of the craft, and to interfere bv 
injunction with the process of bargaining under­
taken pursuant to the Act on the ground that 
the purposes of the Act are being violated.”

This Court has very recently rendered a line of 
decisions which seem to be conclusive against federal 
jurisdiction in this case. They are: Brotherhood of Ry. 
& Steamship Clerks, etc. V. United Transport Service
Employees of America (Dec. 6, 1943) ....... U. S........... ,
64 S. Ct. 260; Switchmen’s Union of North America, 
etc. V. National Mediation Board, et al (Nov. 22, 1943),

[ 13 ]



........ U. S........., 64 S. Ct. 95; General Committee, etc.
V. Southern Pacific Co. (Nov. 22, 1943), ........ U. S.
........, 64 S. Ct. 142; General Committee, etc. V. Mis-
souri-Kansas-Texas R . R . Co., et al (Nov. 22, 1943), 
........U. S..........., 64 S. Ct. 146.

A ll of these cases are cited in the opinion of the 
Circuit Court of Appeals for the Fourth Circuit. (R. 
56 et seq.) They hold that relief cannot be afforded 
in the federal courts under the Railway Labor Act 
unless the command of the Act be explicit and the 
purpose to afford a judicial remedy plain. Absent 
express provisions conferring jurisdiction upon the 
courts, no jurisdiction exists.

This Court held in General Committee, etc. V. 
Southern Pacific Co., supra, that there is no jurisdiction 
in the federal courts to decide which of two conflicting 
groups, both claiming to be bargaining agent for a 
craft, was the proper representative under the Act. 
The effect of this decision is that jurisdiction is denied 
the federal courts to decide whether a group, claiming 
to be the selected bargaining agent for a craft, is au­
thorized to represent that craft at all. This being true, 
it is bound to follow that jurisdiction is lacking in the 
federal courts to decide whether a group, alleged to 
be a bargaining agent, has or has not properly and im­
partially dealt with sundry of the members of the craft 
which it represents.

In General Committee, etc. V. Missouri-Kansas- 
Texas R . R . Co., supra, this Court dwelt upon the pur­
pose of Congress to utilize the machinery of concilia­
tion, arbitration and mediation to the greatest extent 
possible, and its hesitancy to commit delicate problems

[ 1 4 ]



highly charged with emotion to the decision of the 
courts. It stated that “The conclusion is irresistible 
that Congress carved out of the field of conciliation, 
mediation and arbitration only the select list of prob­
lems which it was ready to place in the adjudicatory 
channel. A ll else is left to those voluntary processes 
whose use Congress had long encouraged to protect 
these arteries of Interstate Commerce from industrial 
strife.”

It would seem manifest that the vesting of juris­
diction in the federal courts to decide such a case as 
is here presented would nullify the whole rationale 
of the opinion in the M issou ri-K a n sa s-T exa s  case. 
Every agreement made by a bargaining agent with a 
railroad would be the subject of judicial scrutiny at 
the behest of any disgruntled member of the craft who 
might allege that the contract made by that bargaining 
agent on behalf of the craft with the railroad operated 
to his disadvantage. A ll stability of status between the 
railroad and its employees would be lost. The very 
purpose of the Act, peaceable settlement of labor con­
troversies and the avoidance of interference by the 
courts, would be set at naught.

Every railroad must treat with the bargaining 
agent selected and with no other. V irgin ian  R . Co. V. 
System  F ed era tion , 300 U. S. 515. In that case this 
Court said:

“ More is involved than the settlement of 
a private controversy without appreciable con­
sequences to the public. The peaceable settle­
ment of labor controversies, especially where 
they may seriously impair the ability of an inter­

[ 1 5 ]



state rail carrier to perform its service to the 
public, is a matter of public concern.”

Contracts so made, pursuant to the Railway Labor 
Act and in obedience to the mandate of this Court, 
ought not to be subject to revision by the courts upon 
the demand of a member of the craft who considers 
himself aggrieved by the terms thereof. It clearly was 
not the intention of the Congress to provide that con­
tracts should be made by railroads with a designated 
agency selected by the employees and then permit such 
contracts to be abrogated, amended, or enlarged by 
the courts. That way chaos lies. Were such demands 
to be judicially entertained and decided, other indi­
viduals or groups within the craft might well claim 
that the decision adversely affected them and ask for 
further modification of the contract collectively made 
by the bargaining agent with the railroad. Stable con­
tractual status would be non-existent; far from being 
promoted, industrial peace would be rendered well 
nigh impossible.

It seems evident that this Court had cognate con­
siderations in mind when it rendered the recent de­
cisions exemplified by the M issou ri-K a n sa s-T exa s  case.

CONCLUSION

Upon the record here presented these respondents
say:

1. That the respondent Brotherhood of Loco­
motive Firemen and Enginemen is a necessary party 
to this litigation, has never been served with process, 
is not before the court, and that no order or decision

[ 1 6 ]



can properly be made by any court in this case which 
affects it; and Ocean Lodge No. 76 has never been 
served with process and is not before the Court.

2. That the federal courts lack jurisdiction of 
the subject matter of this suit.

3. That the writ of certiorari prayed for in the 
petition should accordingly be denied.

Respectfully submitted,
H arold C. H eiss and 
R ussell B. D ay ,
714 Keith Building, Cleveland, Ohio

W m . G. M a u pin ,
415 Bank of Commerce Building, Norfolk, Va.

Counsel for Respondents, Brotherhood of 
Locomotive Firemen and Enginemen, 
Ocean Lodge No. 76, Port Norfolk Lodge 
No. 775 and W . M . Munden.

[ 1 7 ]



r



N os. 37  a n d  45

NO'/ .-8 15-14.

' ■ Sp^&nj: 'C lJswf ■

fettoM jSto
October Teem, 1944

T om Tunstall, petitionee

V .

B botheehood of L ocomotive F ieemen and E n- 
ginemen, Ocean Lodge No. 76, P oet Norfolk 
L odge No. 775, et al.

ON W R I T  O F  C E R T IO R A R I  T O  T H E  U N IT E D  S T A T E S  C IR C U IT  
C O U R T  O F  A P P E A L S  F O R  T H E  F O U R T H  C IR C U IT

B ester W illiam Steele, petitionee

v.
Louisville & N ashville R ailroad Company, 

Brothebhood of L ocomotive F iremen and 
Enginemen, an U nincorporated A ssociation, 
et AL.

ON W R I T  O F  C E R T IO R A R I  T O  T H E  S U P R E M E  C O U R T  O F  
T H E  S T A T E  O F  A L A B A M A

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE





I N D E X

Page
O p in ions b e lo w ------------------------------------------------------------------------------------------ 2
Q u estion s p re s e n te d ____________________________________________________  2
S ta tu tes in v o lv e d _______________________________________________________  2
S ta te m e n t________________________________________________________________  2
S u m m a ry  o f  A r g u m e n t --------------------------------------------------------------------------- 11
A rgu m en t___________________________________________________ .--------------------  13

I . T h e  R a ilw a y  L a b o r  A c t  im p o se s  u p o n  th e  rep resen ta ­
t iv e  o f  a  c ra ft  th e  o b lig a t io n  t o  rep resen t a ll th e  em ­
p lo y e e s  w ith in  th e  c ra ft  w ith o u t  d iscr im in a tio n  b e ­
ca u se  o f  r a c e ________________________________    15

A . T h e  r ig h t  a n d  p o w e r  o f  th e  rep resen ta tiv e  d es­
ig n a te d  b y  a  m a jo r ity  o f  th e  em p lo y e e s  in a 
c ra ft  o r  c lass  t o  a c t  as th e  e x c lu s iv e  rep re ­
s e n ta t iv e  o f  a ll th e  e m p lo y e e s  in  th e  cra ft  o r  
c lass  are  d e r iv e d  fr o m  th e  s t a t u t e - . - -------------- 15

B . T h e  r ig h t  t o  b e  e x c lu s iv e  re p resen ta tiv e  im ­
p lies  a  d u ty  t o  a c t  on  b e h a lf o f  a ll em p lo y e e s  
in  th e  u n it  w ith o u t  d is cr im in a t io n ------------------- 18

1. T h e  te rm s  o f  th e  A c t _____________________  20
2. T h e  h is to ry  o f  th e  A c t ------------------------------- 25

C . A ssu m in g  th e  tru th  o f  th e  a llega tion s  o f  the
co m p la in ts , the  B ro th e rh o o d , w h ile  p u rp o r t ­
in g  t o  a c t  as r e p re se n ta tiv e  o f  a ll m em bers  
o f  th e  c ra ft  o f  firem en , is d iscr im in a tin g
a g a in st  N e g ro  fir e m e n ___________________________  33

I I .  T h e  c o u r ts  h a v e  ju r is d ic t io n  t o  e n jo in  a u n ion  fro m  
a c t in g  as s ta tu to ry  re p re se n ta tiv e , a n d  an  e m p lo y e r  
fr o m  b a rg a in in g  w ith  it  as su ch , so  lo n g  as it fa ils 
t o  a c t  w ith o u t  d is cr im in a t io n  on  b e h a lf o f  a ll the  
m e m b e rs  o f  th e  c r a f t ----------------------------------------------------------- 44

Appendix:
A . T h e  p e rt in e n t  p ro v is io n s  o f  th e  R a ilw a y  L a b o r  A c t ------- 50
B . T h e  p e r t in e n t  p ro v is io n s  o f  th e  N a t io n a l L a b o r  R e la ­

t io n s  A c t _________________________________    33

C I T A T I O N S
Cases:

A etn a  Iro n  & Steel Co., 35  N . L . R . B . 1 3 6 .---------------------------  40, 41
A m er ica n  T obacco C om p a n y , M a tter  o f  The, 2 N . I.. R . B .

19 8____________________________ - __________________________________  40
A tlan ta  T erm in al Co., I n  the M atter o f  R epresen tation  o f

E m p loyees  o f  the, C ase  N o . .R - 7 5 -------------------------------------------- 40

616558— 44-------- 1 ( I )



IV

M isce lla n e o u s— C o n t in u e d . Page
L o rw in  a n d  W u b n ig , L abor R ela tions B oa rd  (B r o o k in g s

In s titu t io n , 19 35 ), p p . 1 0 9 -1 1 3 , 2 6 8 -2 7 2 _________________________ 27
N a tio n a l M e d ia tio n  B o a rd , T h e  R a ilw a y  L a b o r  A c t  a n d  th e

N a tio n a l M e d ia t io n  B o a rd  (A u g u st  1 9 4 0 ), p . 1 7 _________  40
N o rth ru p , H e rb e r t  R ., O rgan ized  L abor and the N egro

(H a rp e r  & B ro ., 1944) p p . 4 8 -1 0 1 ___________________________  14
40 O p . A . G . N o . 59, D e c e m b e r  29 , 1 9 4 2 _____________________  15, 30
P re s id e n tia l E x e cu t iv e  O rd er N o . 9346, d a te d  M a y  27, 1943_ 4
P re s id e n t ’s C o m m itte e  o n  F a ir  E m p lo y m e n t  P ra ct ice , 

S u m m a ry , F in d in gs  and D irectives rela ting  to the “ S outh ­
eastern  C arriers C on feren ce”  or  “ W a sh in g ton ”  A greem ent,
issu ed  N o v e m b e r  18, 19 4 3 _____________________________________  4, 5

S. 2926 , 7 3 rd  C o n g ., 2 n d  sess____________________________________  27
S. R e p . N o . 573, 7 4 th  C o n g ., 1st s e s s ______ . ___________________30, 31
S p ero , S ter lin g  D ., a n d  H a rris , A b ra m  L ., T he B la ck  W ork er

(C o lu m b ia  U n iv e rs ity  P ress, 1931) p p . 28 4r-315__________  14



3  n ifa jSwpime dfmtrt of tU  fflttM  jjfcrtea
O ctober T e r m , 1944

Nos. 37 and  45 

T om  T tinstall, petitioner

V .

B rotherhood of L ocomotive F irem en  and E n- 
g in e m e n , O cean  L odge N o. 76, P ort N orfolk 
L odge N o. 775, et a l .

ON W R I T  O F  C E R T IO R A R I  T O  T H E  U N IT E D  S T A T E S  C IR C U IT  
C O U R T  O F  A P P E A L S  F O R  T H E  F O U R T H  C IR C U IT

B ester W il l ia m  S teele, petitioner

v.
L ouisville & N ashville  R ailroad Com pany , 

B rotherhood of L ocomotive F irem en  and 
E n g in e m e n , a n  U nincorporated A ssociation, 
et a l .

ON W R I T  O F  C E R T IO R A R I  T O  T H E  S U P R E M E  C O U R T  O F  
T H E  S T A T E  O F  A L A B A M A

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

These cases raise issues as to the interpretation 
o f the m ajority  rule provisions o f the Railway 
Labor Act. This brie f is presented because o f 
the im portance o f these questions to the adminis­
tration both o f that statute and o f the National

(i)



2

Labor Relations A ct, which contains sim ilar p ro ­
visions.

OPINIONS BELOW

The opinion o f  the C ircuit Court o f  Appeals fo r  
the Fourth Circuit in the Tunstall case (N o. 37, 
R . 55-59) is reported in 140 F . (2 d ) 35. The 
opinion o f the Supreme Court o f Alabama in the 
Steele case (N o. 45, R . 131-144) is reported in 
16 So. 2d 416.

QUESTIONS PRESENTED

The questions considered in this brief a re :
1. W hether, under the R ailw ay Labor Act, a 

labor organization acting as representative o f  a 
craft or class, while it so acts, is under an obliga­
tion to represent all the employees o f  the craft 
without discrim ination because o f their race.

2. W hether the courts have jurisdiction  to p ro­
tect a m inority o f a craft or class against a viola­
tion o f the above obligation.

STATUTES INVOLVED

The statute prim arily involved is the Railway 
Labor A ct, 48 Stat. 1185, 45 U. S. C., Sections 
151 et seq. Its  pertinent provisions, as well as 
those o f the National Labor Relations Act, 49 
Stat. 449, 29 U. S. C. Sections 151 et seq., are set 
forth  in the A ppendix (infra, pp. 50-54).

STATEMENT

Although these cases come from  different 
courts, their facts are substantially the same and



3
they present the same issues on the merits. Since 
motions to dismiss the complaints were sustained 
in each case, the facts are those alleged by the 
petitioners.1

Petitioner in each case is a Negro locomotive 
fireman, suing in his own behalf and as repre­
sentative o f  the Negro firemen as a class (N o. 37, 
R. 5 ; No. 45, R . 84). A  m ajority o f the firemen on 
each o f respondent railroads are white, and are 
members o f the respondent Brotherhood o f L oco­
motive Firem en and Enginemen,2 but a substan­
tial m inority o f  the firemen are Negroes (N o. 37, 
R. 6 ; No. 45, R . 83). Respondent railroads have 
dealt with the Brotherhood as the exclusive col­
lective bargaining representative o f the craft o f 
firemen under the Railway Labor. A ct and peti­
tioners and other Negro firemen have been re­
quired to accept the Brotherhood as their repre­
sentative fo r  the purposes o f the A ct (No. 37, 
R. 6 -9 ; No. 45, R . 86-87), although the constitu­
tion and ritual o f  the Brotherhood exclude 
Negroes from  membership solely because o f race 
(No. 37, R . 6 ; No. 45, R . 83).

On M arch 28, 1940, the Brotherhood, purport­
ing to act as representative o f the entire craft o f 
firemen under the R ailw ay Labor Act, served a 
notice on 21 railroads in the southeastern portion

1 In No. 45 the facts are taken from the “substituted 
amended complaint” (No. 45, R. 83-97).

2 Other respondents are locals and members of the Brother- 
. hood (No. 37, R. 2, 5; No. 45, R. 83-85).



4

o f the country o f  its desire to amend the existing 
collective bargaining agreements covering firemen 
so as to drive Negro firemen com pletely out o f 
service (N o. 37, R . 8, 14-15; No. 45, R . 88-89, 
59-60).3 On February 18, 1941, the railroads
entered into an agreement with the Brotherhood 
as the exclusive representative o f  the craft which 
provided that not m ore than 50 percent o f  the 
firemen in each class o f  service (freight, pas-

3 The proposal was that only “promotable,” (i. e., white) 
men could be employed as firemen, or assigned to new runs or 
jobs, or permanent vacancies in established runs or jobs (No. 
37, R. 14—15; No. 45, R. 59). The “Summary, Findings and 
Directives” of the President’s Committee on Fair Employ­
ment Practice, relating to the “Southeastern Carriers Con­
ference” or “Washington” Agreement (November 18, 1943, 
mimeograph p. 4), in describing the effect of these proposals, 
stated that if the carriers had agreed to them “it is clear that 
Negro firemen would have been rapidly eliminated. Being 
non-promotable, no more could have been employed and those 
already on the rosters could not have survived the proscrip­
tion against their assignment to new runs and permanent 
vacancies.”

Acting under authority of the Presidential Executive 
Order 9346, issued May 27, 1943, the President’s Committee 
on Fair Employment Practice, conducted a public hearing 
in which it considered complaints filed by Negro firemen at­
tacking the Southeastern Carriers Conference agreement as 
discriminatory and in violation of the Executive Order. On 
November 18, 1943 the President’s Committee issued its 
“Summary, Findings and Directives” relating to the “South­
eastern Carriers Conference” or “Washington” Agreement 
in which it directed the carriers and the railroad brother­
hoods to set aside the agreement of February 18,1941 and to 
cease discriminatory practices affecting the employment of 
Negroes. These “directives” have not been obeyed or com­
plied with.



5

senger, etc.) in each seniority district should be 
Negroes, that until such percentage was reached 
all new runs and all vacancies should be filled by 
white men, and that Negroes should not be per­
mitted employment in any seniority district in 
which they were not working (N o. 37, R . 8-9, 16- 
17; No. 45, R . 89-90, 10-13). The agreement re­
served the right o f  the Brotherhood to press fo r  
further restrictions on the employment o f Negro 
firemen on the individual carriers (N o. 37, R . 18; 
No. 45, R . 13).4 In  No. 45, on M ay 12, 1941, the

4 The President’s Committee on Fair Employment Prac­
tice (of. tit., note 3), described the effect of this agreement 
as follows: “Under the agreement finally entered into, it is 
apparent that the situation is only slightly less serious than 
that intended to be created by the Brotherhood. In the first 
place, according to the Agreement, white firemen are virtually 
guaranteed at least 50 percent of the jobs in each class of 
service, regardless of seniority, whereas there is no floor 
whatever under the number of Negro firemen. Secondly, the 
Agreement ended the employment of Negro firemen wher­
ever they exceeded 50 percent. The ban against such em­
ployment has not been removed, even though their numbers 
are now below 50 percent of the total, and despite the existing 
firemen shortage. The carriers and the union have preferred 
to struggle along with insufficient and inexperienced men 
rather than utilize the services of experienced Negro fire­
men ready and willing to work. Thirdly, the Agreement 
sanctions prior contracts in force on some roads under which 
employment of Negro firemen is more severely restricted or 
has been eliminated entirely. One example is the Southern 
Railway Agreement which, depending on the District in­
volved, limits Negro firemen to proportions ranging from 10 
percent to 50 percent. Another is the St. Louis-San Fran­
cisco Agreement of 1928 which flatly prohibits their employ­
ment altogether. Fourthly, the percentage rule and the pro-

616558— 44



fi

Brotherhood negotiated a supplemental agree­
ment with the Louisville & Nashville Railroad 
Company further curtailing N egro firem en’s sen­
iority  rights and . restricting their employment 
(N o. 45, E . 90, 13-21).

The complaints allege that in serving the notice 
o f M arch 28, 1940, and in entering into the con­
tract o f  February 18, 1941, and subsequent con­
tracts, respondent Brotherhood, “ m aliciously in­
tending and contriving to secure a m onopoly of 
employment and the most favorable jobs fo r  its 
own members, acted in fraud  o f  the rights of 
plaintiff and the other Negro firemen and failed 
and refused to represent them fa irly  and im­
partially as was its duty as their representative 
under the R ailw ay Labor A c t ”  (N o. 37, R . 9-10; 
cf. No. 45, R . 88-90).

I t  is also alleged that the Negro firemen were 
not given notice or opportunity to be heard with 
respect to any o f these agreements, and that there 
was no disclosure o f the existence o f these agree­
ments to the Negro firemen until they were put 
into effect to petitioners’ detriment (N o. 37, R. 
9 -10 ; No. 45, R . 88, 90).

In  No. 37, as a result o f  the agreement, the

vision relating to vacancies and new runs have so greatly 
impaired the seniority rights of Negro firemen and inflated 
those of junior white firemen that the better jobs have be­
come or are rapidly becoming the monopoly of white fire­
men. Consequently, Negroes have been and are being rele­
gated to the lowest paid, least desirable jobs, to part time 
work and to extra or even emergency status.”



7

Brotherhood, it is alleged, acting as representa­
tive o f the craft o f  firemen, induced and forced the 
railroad to deprive petitioner Tunstall o f  his job, 
although he was serving to the satisfaction o f the 
railroad as a fireman on an interstate passenger 
run, and to assign his job  to respondent Munden, 
a member o f  the B rotherhood (N o. 37, R. 10-11).6 
Tunstall was assigned to a more arduous and d if­
ficult job  with longer hours, in yard service (No. 
37, R. 11). H e requested the railroad to restore 
him to his p rior position, but the carrier asserted 
that under the Railw ay Labor A ct it could not do 
so unless the Brotherhood as his representative 
made the request (N o. 37, R . 11). Tunstall then 
requested the Brotherhood to represent him for  
the purpose o f  having his assignment restored, 
but the Brotherhood refused even to acknowledge 
his request (ibid.).

In No. 45, although Negro firemen constitute a 
minority o f the firemen on the Louisville & Nash­
ville system, they com prised a m ajority in the 
passenger district on which petitioner Steele was 
employed (N o. 45, R . 86). U ntil A pril 8, 1941, 
he was in a “ Passenger P o o l”  to which five Ne-

6 Tunstall had been assigned to the run in June 1941, after 
the white fireman previously assigned to it had taken another 
assignment. Inasmuch as there was only one other fireman, 
a Negro, in passenger service in that district, this shift gave 
colored firemen over 50 percent of the jobs in the district. 
On October 10, 1941, the Brotherhood, relying on the agree­
ment, caused the railroad to remove Tunstall from the job 
and to assign it to Munden (No. 37, R. 10—11).



8

groes and one white fireman were assigned (No. 
45, E . 91-92). These jobs were highly desirable 
from  the point o f  view  o f wages, hours, and other 
considerations, and Steele was perform ing his 
w ork satisfactorily {ibid.). Follow ing a change 
in the mileage covered by  the pool, all jobs 
therein were declared vacant, on or about April 
1, 1941, and the B rotherhood and the railroad, 
acting under the agreement, disqualified all the 
N egro firemen and replaced them with fou r white 
men, members o f  the Brotherhood, all jun ior in 
seniority to p etition er6 and no m ore competent or 
w orthy (N o. 45, E. 92). A s a consequence, it is 
alleged, petitioner was com pletely out o f  w ork for 
16 days, and then was assigned to m ore arduous, 
longer, and less remunerative w ork on local 
freight (N o. 45, E . 93). H e was subsequently 
replaced by a Brotherhood member jun ior to him, 
and assigned to w ork on a switch engine, which 
was even harder and less remunerative, until 
January 3, 1942, on which date he was reassigned 
to passenger service ( ibid. ) .7 In  this case also 
petitioner appealed fo r  relief and redress to the 
railroad and the Brotherhood without avail (No. 
45, E . 93-94).

6 Steele’s seniority dated from 1910, and that of the other 
colored firemen from between 1917 and 1922. The seniority 
of the four white firemen ran from 1917, 1925, 1940, and 
1940, respectively (No. 45, R. 92).

7 The original bill in the instant case was filed August 30, 
1941 (No. 45, R. 3).



9

In  each case it was alleged that the Brother­
hood has claimed the right to act, and has acted, 
as exclusive representative o f the firemen’s craft, 
and that in that capacity the Brotherhood has an 
obligation and duty to represent the Negro fire­
men im partially and in good faith (No. 37, R. 
6-7; No. 45, R . 87-88), but that it has been hostile 
and disloyal to the Negro members o f the craft 
and has deliberately discriminated against them 
and sought to drive them out o f employment (N o. 
37, R. 7 -10 ; No. 45, R. 88-90), and that the 
right o f petitioners and other Negro firemen “ to 
be represented fa irly  and im partially and in 
good faith * * * under the Railway Labor 
Act * * * has been violated and denied”  
(No. 37, R. 12; No. 45, R. 87-88).

In  each case petitioner prayed (1 ) fo r  an in­
junction against enforcem ent o f  the agreements 
made between the railroad and the Brotherhood 
insofar as they interfere with the petitioner’s 
rights; (2 ) fo r  an injunction against the Brother­
hood and its officers acting as representatives o f  
petitioner and others sim ilarly situated under the 
Railway Labor A ct so long as the discrimination 
continued; (3 ) fo r  a declaratory judgment as to 
their rights, including a declaration that the 
Brotherhood is under obligation to represent all 
members o f  the craft o f  firemen, including N e­
groes, fa irly  and without discrim ination; and (4 ) 
for damages sustained by reason o f  the Brother-



10

hood ’s w rongful conduct (N o. 37, R . 4, 12-13: 
No. 45, R . 96 -97 ).8

In  No. 37, petitioner Tunstall filed his com­
plaint in the U nited States D istrict Court fo r  the 
Eastern D istrict o f  V irg in ia  (N o. '37, R . 1-24), 
and in No. 45, petitioner Steele filed his original 
bill o f  complaint (N o. 45, R . 3 -21 ) and sub­
stituted amended complaint (N o. 45, R . 83-98) 
in the Alabama Circuit Court o f Jefferson County. 
M otions to dismiss and demurrers in each case 
(N o. 37, R . 25-35; No. 45, R . 21-27, 98-122) were 
sustained by the trial courts (N o. 37, R . 36-48; 
No. 45, R . 124-126), and these rulings were upheld 
on appeal by the courts below (N o. 37, R . 59-60; 
No. 45, R . 131). In  No. 37 the Circuit Court of 
Appeals fo r  the Fourth Circuit declared that it 
had “ considered whether jurisd iction  might not 
be sustained fo r  the purpose o f declaring the 
rights o f plaintiff to the fa ir  representation for 
the purposes o f collective bargaining which is 
im plicit in the provisions o f  the National Railway 
Labor A c t ”  (N o. 37, R . 56), but felt bound to 
hold that it had no jurisdiction  in view o f decisions 
o f  this Court during the last term  (N o. 37, R. 
55 -59 ).9 In  No. 45 the Supreme Court o f  Ala-

8 In No. 37 Tunstall also sought the restoration of the job 
to which he was entitled (No. 37, R. 13).

9 Brotherhood of Railway <& Steamship Clerks v. United 
Transport Service Employees, 320 U. S. 715, 816; Switch­
men’s Union v. National Mediation Board, 320 U. S. 297; 
General Committee v. Missouri-Kansas-Texas R. Co., 320 
U. S. 323; General Committee v. Southern Pacific Co., 320 
U. S. 338.



11
bama held that it had jurisdiction  over the con­
troversy, but found on the merits that no cause o f 
action was stated (N o. 45, R . 131-144).

S U M M A R Y  O F  A R G U M E N T

I

The right o f the organization chosen by the 
m ajority to be the exclusive representative o f a 
bargaining unit exists only by reason o f the R ail­
way Labor A ct. Im plicit in the grant o f  such 
right is a correlative duty o f the representative 
to act in behalf o f  all the employees in the unit 
without discrimination. Congress would not have 
incapacitated a m inority or an individual from  
representing itself or his own interests without 
imposing upon the craft representative a duty to 
serve on behalf o f the craft as a whole, and not 
merely fo r  the benefit o f  certain portions o f it 
favored as a result o f  discrimination against 
others.

The terms o f  the statute and its history sup­
port this interpretation. The word “ representa­
tive”  norm ally connotes action on behalf o f  those 
to be represented. The A ct fulfills its purpose o f 
peacefully settling disputes on a voluntary basis 
only when the employees have confidence that 
their representative in the negotiations is acting 
in their interest. A nd the Congress which in­
corporated the principle o f m ajority rule in the 
Railway Labor A ct and the National Labor Rela­
tions A ct believed that, although the m inority was



12

deprived of separate representation, it was no 
harmed inasmuch as it was to receive all the ad­
vantages which the majority obtained for itself. 
Clearly Congress did not intend the grant of 
exclusive authority to a representative to result 
in discrimination against individuals or minor­
ities.

Upon the allegations in the complaints in these 
cases, the Brotherhood has entered into and is en­
forcing agreements which discriminate against the 
Negro firemen because of their race. This dis­
crimination in the Brotherhood’s conduct as rep­
resentative is aggravated by its refusal to admit 
the colored firemen to membership, so that they do 
not have the protection which would flow from 
participation in the formulation of union policy. 
In these circumstances, the Brotherhood is ob­
viously not acting in good faith as the representa­
tive of the entire craft. This does not mean that 
a labor union as a private organization has no 
power to fix its own membership requirements. 
But when it seeks to exercise the exclusive statu­
tory right, it must carry out the obligation to 
represent fairly which is inherent in that right.

II

The courts have jurisdiction to enjoin a union 
from acting as statutory representative so long as 
it fails to act without discrimination on behalf of 
all the members of the craft. The present cases 
are distinguishable from those decided at the last 
term in that none of the processes for conciliation,

c*
t~



13

mediation or arbitration and none of the adminis­
trative machinery established is available to safe­
guard minorities against discrimination by the 
majority. W e do not think that Congress in­
tended that a minority should be completely help­
less in case of disregard by the statutory repre­
sentative of its duty to act in behalf of the entire 
craft. In addition, the cases may be brought 
within the exception created by the Texas & New 
Orleans and Virginian decisions, (1) inasmuch as 
the duty to represent without discrimination is in­
herent in the doctrine of majority rule on which 
the statutory scheme rests, and this ditty would 
be meaningless if the courts are denied jurisdic­
tion to enforce it, and (2) to the extent that relief 
is sought against an employer for bargaining with 
an organization which, by reason of its discrimina­
tion. is not entitled to represent the craft. Fur- 
thermore, if the Act should be construed as depriv­
ing a minority of its right to self-representation 
without imposing an enforcible duty on the craft 
representative to act in good faith on behalf of the 
minority, a constitutional question would arise 
which would not be subject to the limitations set 
forth in the cases decided at the last term.

ARGUMENT

The issues presented by the instant two cases 
are closely related to those before this Court in 
The Wallace Corporation v. National Labor Rela­
tions Board and Richwood Clothespin & Dish

61G55S— 44-------3



14
Workers’ Union v. National Labor Relations 
Board, Nos. 66 and 67, this Term. In all four 
eases the basic issue is whether federal legisla­
tion, providing that a labor organization selected 
by the majority of employees in a unit shall be 
the exclusive bargaining representative, vests in 
the labor organization power to enter into a col­
lective bargaining agreement under which the em­
ployer is required, on agreement sought by the 
labor organization, to discriminate against a min­
ority group of employees within the unit whom the 
labor organization refuses to admit to member­
ship. Equally applicable to all four cases is the 
related legislative history of the two Acts under 
which the respective cases arise, the Railway La­
bor Act and the National Labor Relations Act.

These cases differ from the Wallace cases, how­
ever, in that the discrimination here practiced 
was solely because of race whereas in the Wallace 
cases it was because of prior union affiliation. 
Unless the Railway Labor Act be construed so 
that the broad powers it vests in labor unions are 
held to be subject to the implied limitation that 
they cannot be used to discriminate because of 
race,10 constitutional issues are presented. These

i° For discussions of the Negro problem on the railroads, 
see Northrup, Herbert R., Organized Labor and the Negro 
(Harper & Bro., 1944), pp. 48-101; Spero, Sterling D., and 
Harris, Abram L., The Blade Worker (Columbia Uni­
versity Press, 1931), pp. 284-315; Cayton, Horace R., and 
Mitchell, George S., Black Workers and the New Unions 
(University of North Carolina Press, 1939), pp. 439-445.



15
cases also differ from the Wallace cases in that 
they involve no question as to the closed-shop. 
The Railway Labor Act, which contains no pro­
viso similar to Section 8 (3) of the National Labor 
Relations Act, prohibits both closed and preferen­
tial shop agreements. Sec. 2, Fourth and Fifth; 
see 40 Op. A. G. No. 59, December 29,1942.

I. T h e  R a il w a y  L abor A ct I mposes U pon th e  
R epresentative op a  Craft th e  Obligation to 
R epresent A ll  th e  E mployees W it h in  th e  
Craft W it h o u t  D iscrim ination  B ecause of 
R ace

A. T H E  R IG H T  A N D  P O W E R  O F  T H E  R E P R E S E N T A T IV E  D E S ­
IG N A T E D  B Y  A  M A J O R IT Y  O F  T H E  E M P L O Y E E S  IN  A  
G R A F T  O R  C L A S S  T O  A C T  A S  T H E  E X C L U S IV E  R E P R E ­
S E N T A T IV E  O F  A L L  T H E  E M P L O Y E E S  IN  T H E  C R A F T  O R  
C L A S S  A R E  D E R I V E D  F R O M  T H E  S T A T U T E

The Railway Labor Act provides (Section 2, 
Fourth) :

Employees shall have the right to organ­
ize and bargain collectively through repre­
sentatives of their own choosing. The ma­
jority of any craft or class of employees 
shall have the right to determine who shall 
be the representative of the craft or class 
for the purposes of this Act. * * *

Section 2, Second, and Section 2, Ninth, require 
carriers to bargain with the representative so 
chosen as the representatives of the employees of



16

the craft or class.11 It is established that such a 
representative has the exclusive right to bargain 
collectively on behalf of all the members of the 
craft. Virginian By. Go. v. System Federation, 
300 U. S. 515.

This right and power are a statutory creation. 
They differ materially from rights or powers 
which unions derive from employee designations, 
in the absence of statute, by operation of common 
law principles of agency. The statutory repre­
sentative enjoys, in addition, the power to act for 
all the employees in the craft or class, irrespective 
of membership or individual authorization, with 
respect to “ all disputes concerning rates of pay, 
rules, or working conditions”  (Section 2) between 
the carrier and the employees. At the same time, 
because the carrier is under a duty “ to treat with 
no other”  representative ( Virginian Bailway case, 
300 U. S., at p. 548), any union designated by a 
minority loses the right which it would have had

11 Section 2. Second, reads as follows:
“All disputes between a carrier or carriers and its or their 

employees shall be considered, and, if possible, decided, with 
all expedition, in conference between representatives desig­
nated and authorized so to confer, respectively, by the 
carrier or carriers and by the employees thereof interested 
in the dispute.”

Section 2, Ninth, authorizes the National Mediation Board 
to resolve representation disputes by certifying the ma­
jority choice of the employees, and provides further that:

“Upon receipt of such certification the carrier shall treat 
with the representatives so certified as the representative 
of the craft or class for the purposes of this Act. * * *”



17
under the common law to act in accordance with 
the authorizations which it has received. An 
adumbration of the extent to which the statute de­
parts from the common law appears in the recent 
decisions of this Court in Order of Railroad Tele­
graphers v. Railway Express Agency, 321 U. S. 
342; J. I. Case Co. v. National Labor Relations 
Board, 321 U. S. 332, and Medo Photo Supply 
Corp. v. National Labor Relations Board, 321 
U. S. 678. It was held in these cases that, after 
the majority has chosen a representative, the 
minority cannot bargain through anyone else and 
cannot even bargain individually on behalf of 
themselves as to matters which are properly the 
subject of collective bargaining.

In holding in the O. R. T. and Case decisions that 
the benefits and advantages of collective action are 
available to each employee and cannot be for­
feited by him through individual negotiations, this 
Court also recognized the necessary corollary, that 
where the majority “ collectivizes the employment 
bargain,”  the individual must give up hope of 
securing for himself better conditions than those 
secured for him by the statutory representative 
{Case decision, 321 U. S. at pp. 338-339). And 
in the Medo case it held that even before the 
representative has entered into any contract, indi­
viduals or groups of employees may not bargain 
directly with the employer. Thus the statutory 
grant of power to the representative designated 
by the majority deprives individuals or minority



18

groups of the right to negotiate as to their con­
ditions of employment which they would otherwise 
have possessed.12

B . T H E  E I G H T  T O  B E  E X C L U S IV E  R E P K E S E N T A T I V E  IM ­
P L IE S  A  D U T Y  T O  A C T  O N  B E H A L F  O F  A L L  E M P L O Y E E S
I N  T H E  U N IT  W IT H O U T  D IS C R IM IN A T IO N .

Implicit in the grant to the organization chosen 
by the majority of a bargaining unit of the exclu­
sive right to represent all employees in the unit is 
the assumption that the representative will act in 
the interest of all employees, and that any con­
tract made will redound to the benefit of the 
employees equally. The statutory right to repre­
sent the entire craft thus carried with it a cor­
relative duty to do so in good faith.

In J. I. Case Co. v. National Labor Relations 
Board, 321 U. S. 332, this Court recognized that 
the collective bargaining envisaged in the Railway 
Labor Act and similar statutes was to be in the 
interest of all members of the class, when it said 
(321 U. S., at 338) :

The very purpose of providing by statute 
for the collective agreement is to supersede 
the terms of separate agreements of em­
ployees with terms which reflect the 
strength and bargaining power and serve

12 It is to be borne in mind that the complaint in each case 
alleges that the Brotherhood was purporting to act as the 
representative of the craft under the Railway Labor Act 
(supra, pp. 3-4, 9). As to the legal situation had the Brother­
hood sought to act only for its own members, see infra, 
p. 39.



19
the w elfare o f the group. Its benefits and 
advantages are open to every employee o f 
the represented unit * * *

The Railway Labor Act has been similarly inter­
preted. The Emergency Board referred to in this 
Court’s opinion in General Committee v. Southern 
Pacific Co., 320 U. S. 338, 340, 342-343n, declared 
in 1937:

When a craft or class, through repre­
sentatives chosen by a majority, negotiates 
a contract with a carrier, all members of 
the craft or class share in the rights se­
cured by the contract, regardless of their 
affiliations with any organization of em­
ployees. * * * the representatives of
the majority represent the whole craft or 
class in the making of an agreement for 
the benefit of all, * * *

And the National Mediation Board itself has 
given recognition to the same principle, stating:1,1

Once a craft or class has designated its 
representative, such representative is re­
sponsible under the law to act fo r  all em- 15

15 National Mediation ]Board, In the Matter of Representa­
tion of Employees of the St. Paul Union Depot Company, 
Case No. R-635. This was the decision set aside in Brother­
hood of Railway & Steamship Clerks v. United Transport 
Service Employees, 137 F. (2d) 817 (App. D. C-), reversed 
on jurisdictional grounds, 320 U. S. 715. The Court of Ap­
peals was of the opinion that this principle not only required 
a representative to act in behalf of all the employees in the 
bargaining unit, but that an organization which excluded a 
minority from membership had no standing to represent 
it. See p. 37, infra.



2 0

ployees within the craft or class, those who 
are not members of the representatives’ or­
ganizations as well as those who are mem­
bers.

The consequences of allowing a majority, 
through its representative, to discriminate against 
other members of the unit, would leave the mi­
nority with no means of safeguarding its interests. 
As the instant cases show, this means not merely 
that the minority may be subjected to less favor­
able working conditions but that its right to earn a 
living in that occupation may be completely de­
stroyed. Where the minority is also prevented 
from participating in the formulation of policies 
for the unit as a whole by exclusionary conditions 
of membership, there would remain no peaceful 
means of self-protection available to it.14

Although there is no express mention of this 
particular problem, we think that the language 
and history of the Kailway Labor Act and related 
legislation show that Congress has never con­
templated that the majority rule provisions could 
be used to bring about discrimination against 
minorities in the bargaining unit.

1. The Terms of the Act

“ Representative.” — Section 2, Fourth, declares 
that the majority of the craft shall have the right

14 We are not concerned in these cases with discrimination 
against members of a unit who participate in the demo­
cratic processes of determining the policy of the majority 
organization (see pp. 3-1—36, infra).



21

to declare who shall be its “ representative” . Sec­
tion 1, Sixth, defines “ representative”  as mean­
ing “ any person or * * * labor union * * * 
designated either by a carrier or group of car­
riers or by its or their employees, to act for it or 
them.”

The use of the word “ representative”  in the 
majority rule provisions of the Act and the con­
text in which it is found clearly import that the 
“ representative”  is to act on behalf of all the 
employees whom, by virtue of the statute, it rep­
resents. The definition adopts the word in its 
customary sense; the organization chosen is to 
act for, not against, the employees it represents. 
Since under the Act it is the representative of 
the entire unit and not merely of a portion of it, 
it must act on behalf of all the workers in the 
unit and not merely some of them. This is con­
firmed by the exclusive character of the repre­
sentative’s status. As we have shown (supra,. 
pp. 15-18), individuals and minority groups in the 
craft are deprived by the Act of the right of 
separate representation for collective bargaining 
purposes. Clearly, Congress would not have so 
incapacitated them from advancing their own in­
terests without imposing on the craft representa­
tive a duty to serve on behalf of the craft as a 
whole, and not merely for the well-being of cer­
tain portions of it favored as a result of dis­
crimination against others of the craft.

61(5558— 44--------- 4



22

This does not mean that the statutory represent­
ative is barred from making contracts which have 
unfavorable effects on some of the members of 
the craft or class represented. Differentiation 
between employees on the basis of type of work 
they perform or their competence and skill is, of 
course, permissible. Bail road labor contracts 
commonly include seniority provisions which 
afford preferential treatment to senior men, and 
mileage limitations which, on the other hand, 
protect junior members. In so far as seniority 
is concerned, each man has an equal opportunity 
to advance in rank. A junior worker has an in­
terest in the security of those senior to him, since 
eventually he may receive similar benefits. Such 
familiar arrangements, even where they seem to 
discriminate against some members of the craft, 
look to the long-range benefits of the entire class 
and are properly aimed at serving “ the welfare 
of the group”  (Case decision, supra, 321 U. S. 
at p. 338). They are therefore within the scope 
of representative activity. But when an organi­
zation seeks and enters into an agreement with the 
deliberate purpose of discriminating against one 
portion of the craft and in favor of another, it is 
not acting as a “ representative”  as that term is 
used in the Act. Particularly is this so when the 
discrimination is based upon race, for then it 
cannot be said to result from economic considera­
tions applicable throughout the craft.



“ For the purposes of this Act” . The term 
“ representative”  is used repeatedly in Section 2 
in conjunction with the phrase “ for the purposes 
of this A ct”  (Section 2, Third, Fourth, Ninth). 
Those provisions which deal with collective bar­
gaining through representatives have as their pur­
pose the avoidance of “ any interruption to com­
merce or to the operation of any carrier engaged 
therein”  (Section 2).15 This aim is sought to be 
achieved by encouraging “ the prompt and orderly 
settlement of all disputes concerning rates of 
pay, rules, or working conditions”  (id.). As this 
Court has recognized, the theory which underlies 
this reliance upon “ voluntary processes” 16 was 
that transportation service would not be inter­
rupted by strikes where the parties, acting with­
out coercion through their own representatives, 
reached “ agreements satisfactory to both” . 
Texas & New Orleans R. Co. v. Brotherhood of 
Railway Clerks, 281 U. S. 548, 569. In so far 
as the employees are concerned, the basis for their 
willingness to abide by any settlement is their 
confidence that their representatives are acting

15 See also Texas <& New Orleans R. Co. v. Brotherhood of 
Railway Clerks, 281 U. S. 548, 565 :

“ * * * The Brotherhood insists, and we think rightly,
that the major purpose of Congress in passing the Railway 
Labor Act was ‘to provide a machinery to prevent strikes.’ ’

16 General Committee v. M.-K.-T. R. Co., 320 U. S. 323, 
337.



24

whole-heartedly in their interests. Manifestly, 
this purpose is frustrated where a substantial 
minority of the craft know at all times that their 
economic aims are to play no part at the confer­
ence table, that the end result of the bargaining 
process will not reflect in any way their own 
needs.17 I f  such a situation is permitted to pre­
vail, the minority will be forced to accede or to 
rely on strikes as the only means remaining for 
their protection. Indeed, the execution and en­
forcement of contracts aimed directly at forcing 
them out of employment can only operate as a 
direct provocation to the activities disruptive of 
commerce which the Act is designed to eliminate.18

“ Bargain collectively.” — The representative is 
the agent through whom the employees are to

17 See the comment of the House Committee on the ma­
jority rule provisions of the National Labor Relations Act 
(H. Rep. No. 1147,74tli Cong., 1st Sess., p. 20) :

“ It would be undesirable if this basic scale should result 
from negotiation between the employer and unorganized 
individuals or a minority group, for the agreement probably 
would not command the assent of the majority and hence 
would not have the stability which is one of the chief ad­
vantages of collective bargaining.”
The argument applies with only slightly diminished force 
where, as here, the agreement lays no basis for commanding 
the assent of the minority.

18 See the comment of the New Jersey Court of Errors
and Appeals in Cameron v. International Alliance etc., 118
N. J, Eq. 11, 26, 176 A. 692, 701: “The inevitable results are 
the loss of the services of useful members of society, and 
unrest, discontent and disaffection among the workers so re­
strained * *



25

“ bargain collectively.”  Collective bargaining im­
plies that the bargain is to be in behalf of the 
entire unit which is a party to the negotiation, not 
in the interests of portions of the unit, whether in­
dividuals or minority or majority groups. That 
it was understood that the agreements would apply 
to the entire class of employees appears from the 
provision in Section 2, Seventh, that the working 
conditions which were not to be changed without 
notice and a conference between representatives 
were those of the “ employees, as a class as em­
bodied in agreements” . [Italics supplied.]

2. The History of the Act

That these words and phrases, used in the pro­
visions of the Act establishing the principle of ma­
jority rule, were- designed to express the concept 
of good faith representation for all members of 
the unit appears from their legislative back­
ground.

Although the principle of majority rule was 
given governmental recognition by the Railroad 
Labor Board created by Title I I I  of the Trans­
portation Act of 1920,19 the meaning of the doc­
trine in respects pertinent here did not come into 
question until 1934, when attempts were first made 
to give it binding legal effect. During that year 
the Railway Labor Act amendments, which first

19 Decision No. 119, 2 Railroad Labor Board, pp. 87, 96.



26

directly embodied the principle in a federal stat­
ute, were enacted, and the problem as to the mean­
ing of majority rule was considered by the agen­
cies administering Section 7 (a) of the National 
Industrial Recovery Act.20

The legislative proceedings relating to the Rail­
way Labor Act itself do not shed light on the issue 
here presented—whether the majority representa­
tive is under an obligation to act on behalf of all 
the members of a craft in good faith. The ab­
sence of any recognition that such a problem ex­
isted may have resulted from a legislative assump­
tion that the agreement entered into by the craft 
representative would apply to all members in the 
unit without discrimination.

That this was probably the case is indicated by 
the contemporaneous history of Public Resolution 
No. 44 (48 Stat. 1183), which dealt with the ad­
ministration of Section 7 (a) of the National 
Industrial Recovery Act, and by that of the 
National Labor Relations Act. This Court has 
properly recognized from the beginning that the 
majority rule provisions of the latter Act and of 
the Railway Labor Act were intended to have the 
same meaning. Compare Virginian Ry. Co. v. 
System Federation, 300 U. S. 515, with National 
Labor Relations Board v. Jones <& Laughlin Steel 
C o r p 301 U. S. 1, 44r-45; J. I. Case Co. v. Na­
tional Labor Relations Board, 321 U. S. 332, with

20 (48 Stat. 195).



27

Order of Railroad Telegraphers v. Railway Ex­
press Agency, 321 U. 8. 342. The material mani­
festing the intention of the Congress in the Na­
tional Labor Relations Act is thus pertinent.

Section 7 (a) of the National Industrial Recov­
ery Act, adopted June 16, 1933, provided that 
every code of fair competition should recognize 
the right of employees to “ bargain collectively 
through representatives of their own choosing”  
(48 Stat. 198). During the first year of the ad­
ministration of that Act, there was considerable 
difference of opinion as to the rights which this 
provision gave the majority of the employees in a 
bargaining unit.21 In the spring of 1934 Senator 
Wagner introduced the forerunner of the National 
Labor Relations Act (S. 2926, 73rd Cong., 2d 
Sess.). The bill, as reported out of the Senate 
Committee, contained a provision for majority 
rule when the Board so decided (Sec. 10 (a )). 
The proposed bill was not passed. In its stead 
Congress enacted Public Resolution No. 44 (48 
Stat. 1183), which authorized the President to 
establish boards to decide controversies under Sec­
tion 7 (a). The resolution was approved by the 
President on June 19, 1934, 2 days before he ap-

21 The principle of majority rule was apparently recognized 
by the National Labor Board but not by General Johnson 
and General Counsel Richberg of the National Industrial 
Recovery Administration. For a discussion of the problem 
during this period, see Lorwin and Wubnig, Labor Relations 
Boards (Brookings Institution, 1935), pp. 109-113, 268-272.



28

proved the Railway Labor Act of that year. Act­
ing pursuant to this resolution, the President 
established the first National Labor Relations 
Board on June 29, 1934.

The Board thus established had occasion early 
in its history to make a complete examination of 
the question of majority rule. In Matter of 
Houcle Engineering Corp., (National Labor Rela­
tions Board (old) Decisions, July 9, 1934-June 
1935, p. 35, decided August 30, 1934), the Board 
reviewed the history of the question (pp. 40-43), 
referring specifically to the recently enacted Rail­
way Labor Act (p. 43), and firmly adopted the 
majority rule principle as applicable to the indus­
tries over which it had jurisdiction. But in tak­
ing this action, the Board was careful to point out 
“ the limits beyond which it does not go”  (p. 43). 
It held (p. 44) :

N or does this opinion lay down any rule 
as to what the em ployer’s duty is where the 
m ajority group imposes rules o f participa­
tion in its membership and government 
which exclude certain employees whom it 
purports to represent in collective bargain­
ing * * * or where the m ajority group
has taken no steps toward collective bar­
gaining or has so abused its privileges that 
some m inority group might justly  ask this 
B oard fo r  appropriate relief.

One year later, Congress passed the National 
Labor Relations Act, and gave sanction to the ac­
tion of the first National Labor Relations Board



29

in the Houde decision in applying the majority 
principle of the Railway Labor Act to other indus­
tries subject to Federal authority. In doing so, 
it made clear its intention to protect the rights of 
minority groups.

The House Committee (H. Rep. No. 1147, 74th 
Cong., 1st sess. pp. 20-21), cited and quoted the 
Houde case with approval, and stated:

There cannot be two or more basic agree­
ments applicable to workers in a given unit; 
this is virtually conceded on all sides. I f  
the employer should fail to give equally 
advantageous terms to nonmembers of the 
labor organization negotiating the agree­
ment, there woidd immediately result a 
marked increase in the membership of that 
labor organization. On the other hand, if 
better terms were given to nonmembers, this 
would give rise to bitterness and strife, and 
a wholly unworkable arrangement whereby 
men performing comparable duties were 
paid according to different scales of wages 
and hours. Clearly then, there must be one 
basic scale, and it must apply to all. 

* * * * *
Since the agreement made will apply to 

all, the minority group and individual work­
ers are given all the advantages of united 
action. * * * agreements more favor­
able to the majority than to the minority 
are impossible, for under section 8 (3) any 
discrimination is outlawed which tends to



30

“ encourage or discourage membership in 
any labor organization.”

The report then states (p. 22) that the principle 
of majority rule had been applied under Public 
Resolution No. 44, and “ written into the statute 
books by Congress in the Railway Labor Act of 
1934” , thereby demonstrating that the Committee 
regarded the Railway Labor Act and the proposed 
bill as having the same meaning. The Senate 
Committee in charge of the bill, after pointing out 
that the majority rule had previously been incor­
porated in the Railway Labor Act, reported that 
(S. Rep. No. 573, 74th Cong., 1st Sess., p. 13) :

* * * majority rule, it must be noted, 
does not imply that any employee can be 
required to join a union, except through the 
traditional method of a closed-shop agree­
ment, made with the assent of the em­
ployer.22 And since in the absence of such 
an agreement the bill specifically prevents 
discrimination against anyone either for 
belonging or for not belonging to a union, 
the representatives selected by the majority 
will be quite powerless to make agreements 
more favorable to the majority than to the 
minority. [Italics supplied.]

It would be difficult to find words more clearly 
condemning action on the part of a representative

22 As has been noted, the one exception to the requirement 
of equal protection recognized in the National Labor Rela­
tions Act, the closed-shop contract, is expressly banned in 
the Railway Labor Act by Section 2, Fourth and Fifth. See 
40 Op. A. G., No. 59, December 29,1942.



31

directed to the exclusive benefit of its own 
members.

“ Majority rule is at the basis of our democratic 
institutions.”  (H. Rep. No. 1147, 74th Cong., 
1st sess., p. 21.) It was on this premise that 
Congress adopted the principle of majority rule 
in labor relations. The Report on the National 
Labor Relations Act noted at the same time that 
“ the underlying purposes of the majority rule 
principle are simple and just”  {id. p. 20), and 
that it is “ sanctioned by our governmental prac­
tices, by business procedure, and by the whole 
philosophy of democratic institutions”  (S. Rep. 
No. 573, 74th Cong., 1st sess., p. 13), under which 
the individual elected to office administers his 
trust after his election for the benefit of all, not 
merely for those who voted in his favor.23 In 
the application of these democratic principles to 
the “ orderly government of the employer-em­
ployee relationship”  {National Labor Relations

23 At the 1934 hearings on the Railway Labor Act (Hear­
ings before the House of Representatives Committee on Inter­
state and Foreign Commerce, on H. R. 7650, 73rd Cong., 2nd 
Sess., pp. 33-34) Coordinator of Transportation Eastman 
said, “I f a majority of the people, even a plurality, select a 
Congress, that is the kind of a Congress they get and that sits 
until the next election, when those in the minority have a 
chance to convert the others to their way of thinking. The 
same way with labor unions. * * * The will of the ma­
jority ought to govern; but there ought to be ample means 
so that the minority can have a chance to persuade others to 
their way of thinking and so that there can be an election, if 
they succeed in converting their minority into a majority.”



32

Board v. Highland Park Manufacturing Co., 110 
F. (2d) 632, 638 (C. C. A. 4) ), the same “ simple 
and just”  requirements should prevail.

It thus appears that in fixing the exclusive 
right of representation in the organization se­
lected by the majority in a bargaining unit Con­
gress assumed that this meant that the represent­
ative would act in behalf of all the employees 
in the unit. Although Congress recognized that 
the minority was being deprived of pre-existing 
rights to act independently, this was justified on 
the ground that minorities and individuals would 
obtain all the advantages of the united action. 
Clearly Congress did not intend its grant of 
exclusive authority to result in discrimination 
against individuals or minorities. The history 
of the Act, taken together with the repeated use 
of the word “ representative,”  with its normal 
connotation, and the statutory purpose of avoid­
ing industrial strife through acceptance of the 
employees of decisions made by freely chosen 
agents acting on their behalf, all support a con­
struction of the Act as requiring the representa­
tive of all the employees in a unit in fact to 
represent all—to act on behalf of all equally 
and in good faith.

This interpretation of the statute also finds 
support in the principle that a law should, if 
possible, be construed in a constitutional man­
ner, or in a way which will avoid serious consti-



33

tutional difficulties. The harm resulting from 
discrimination by a statutory bargaining repre­
sentative is not the injury which is done a prin­
cipal by a faithless agent in the realm of private 
law. Here the agency rests not on the consent 
of the minority but on the command of Congress. 
An issue might well arise as to whether a law 
which subjected a minority to the unrestrained 
will of the competing majority and the employer, 
with no opportunity to protect its own interests, 
was an arbitrary deprivation of liberty without 
due process of law. Compare Carter v. Carter 
Coal Co., 298 U. S. 238, 311.24 I f  the statute were 
construed to permit such a discrimination because 
of race, it would also run counter to “ our con­
stitutional policy”  against discrimination because 
of race or color. Compare Mitchell v. United 
States, 313 U. S. 80, 94.

C. A S S U M IN G  T H E  T R U T H  O F  T H E  A L L E G A T IO N S  O F  T H E  
C O M P L A IN T S , T H E  B R O T H E R H O O D , W H IL E  P U R P O R T IN G  
T O  A C T  A S  R E P R E S E N T A T IV E  O F  A L L  M E M B E R S  O F  T H E  
C R A F T  O F  F IR E M E N , IS  D IS C R IM IN A T IN G  A G A IN S T  N E G R O  
F IR E M E N

We have shown that the grant of the exclusive 
right of representation to the organization chosen 
by the majority of the craft presupposed that the 
representative would act in behalf of all the mem­
bers of the craft in good faith. On the basis of 
the allegations of the complaints, it is clear that

24 The authority of the Carter case on this proposition has 
not been impaired.



3 4

the Brotherhood has not fulfilled this obligation. 
It has discriminated against colored firemen both 
in the bargaining process and in its membership 
requirements. On the facts alleged (No. 37, R. 
7-10; No. 45, R. 88-91), which are necessarily 
admitted by the filing of motions to dismiss, the 
Brotherhood, in securing the contracts, was “ in­
tending and contriving to secure a monopoly of 
employment and the most favorable jobs for its 
own members”  (No. 37, R. 10); indeed its ob­
ject was to force colored employees out of service 
completely (No. 37, R. 7-8, 10; No. 45, R. 88). 
The Brotherhood exerted every effort to advance 
the white firemen over the colored so as to de­
prive the latter of the positions and earnings to 
which their competence and seniority would other­
wise entitle them (No. 37, R. 7-8; No. 45, R. 87- 
88). Petitioners Tunstall and Steele were com­
pelled to accept inferior jobs, and Steele forced to 
quit work completely, because of this policy (No. 
37, R. 10-11; No. 45, R. 92-93). It can hardly 
be claimed in these circumstances that the Broth­
erhood was acting on behalf of the Negro mem­
bers of the craft.

The discrimination in these cases is aggravated 
by the fact that the colored employees have no 
opportunity to participate in the formulation of 
the policies which the Brotherhood maintains as 
the representative of the entire craft. For they 
may not become members of the Brotherhood and



35

may not take part in its deliberations. Thus 
they do not share in the protection against arbi­
trary or discriminatory action which is available 
to members of the organization. The officials of 
labor organizations which have achieved represent­
ative status under the National Labor Relations 
Act or the Railway Labor Act are to a large 
extent guided by the views of the members of 
the organization for which they speak. The lat­
ter have ultimate power to approve or disapprove. 
An individual employee who is a member of the 
representative union can go to meetings, partici­
pate in discussions, and obtain a hearing for his 
viewpoint. Even if his arguments do not prevail, 
the existence of such a forum in which the ne­
gotiators for the craft can be called to account 
has a tendency to avert arbitrary, unreasonable, 
or discriminatory action, and normally insures 
that such action will not be taken. Similarly, an 
employee who is not, but could if he chose be, a 
member of the union cannot complain of his own 
failure to take part in the deliberations which are 
to affect his working conditions. Moreover, he 
is a member of the group to which the union 
looks for support to maintain its status as statu­
tory representative. Where, however, a union 
excludes a minority of the craft from member­
ship, these ordinary controls upon the process of 
collective bargaining cannot benefit the excluded 
groups. In such a case the majority representa­



36

tive may feel free to ignore the interests of the 
minority, as is here alleged.25

Certainly where an organization enters into 
agreements for the purpose of discriminating 
against employees in the bargaining unit who are 
not permitted to become members, it cannot be

20 The National Labor Relations Board has stated (Matter 
of Bethlehem-Alameda 'Shipyard, Inc.r 53 N. L. R. B. 999, 
1016) :

“We. entertain grave doubt whether a union which discrimi- 
natorily denies membership to employees on the basis of race 
may nevertheless bargain as the exclusive representative in 
an appropriate unit composed in part of members of the ex­
cluded race. Such bargaining might have consequences at 
variance with the purposes of the Act.”

In the Bethlehem-Alameda case, it was originally con­
tended that the Board should not entertain a union’s petition 
for certification as representative of the employees in a col­
lective bargaining unit because the unit included Negroes 
who were allegedly excluded from membership in the peti­
tioning union. It appeared, however, that subsequent to the. 
hearing before the Board the petitioning union had made 
adjustments which the Board construed as expressing (53 
N. L. R. B. at 1016) “a purpose on the part of the Council 
to accord to the Negro auxiliary locals the same rights of 
affiliation and representation as it accords to its other affi­
liated locals.” On the assumption that the union would 
comply with that policy, the Board found it no longer neces­
sary to decide the question first presented. In Matter of 
Larue & Brother Go., Inc., Cases Nos. 5-R-1413, 5-R-1437, 
the National Labor Relations Board has ordered a certified 
organization to show cause why the certification should 
not be set aside on the ground, alleged by another union, 
that it does not admit Negro members of the unit to equal 
membership or bargain in their behalf as part of the unit.



37

said to be acting in good faith as the representa­
tive of the entire craft.20

26 The only prior decision on this point under the Railway 
Labor Act held that Congress never intended such “an intol­
erable situation” as to “ force upon any class of employees 
representation through an agency with whom it has no affi­
liation nor right of association.” Brotherhood of Railway 
<& Steamship tClerks v. United Transport Service Employees, 
137 F. (2d) 817, 821-822 (App. D. C.). In that decision, 
which was reversed in this Court on jurisdictional grounds 
(320 U. S. 715), Chief Justice Groner, concurring, declared: 
(137 F. (2d), at 821-822) :

“ * * * the effect of the action of the Board is to
force this particular group of employees to accept rep­
resentation by an organization in which it has no right 
to membership, nor right to speak or be heard in its 
own behalf. This obviously is wrong and, if assented to, 
would create an intolerable situation. That the rules of the 
Brotherhood make negroes ineligible to membership is not a 
matter which concerns us, but that the Brotherhood, in com­
bination with the employer, should force on these men this 
proscription and at the same time insist that Brotherhood 
alone is entitled to speak for them in the regulation of their 
hours of work, rates of pay and the redress of their grievances 
is so inadmissible, so palpably unjust and so opposed to 
the primary principles of the Act as to make the Board’s de­
cision upholding it wholly untenable and arbitrary. The 
purpose of the Act, as is apparent on its face, and as has 
been recognized and confirmed by the Supreme Court and 
this Court in many decisions, is to insure freedom of choice 
in the selection of representatives. While it is true that this 
purpose has been held to yield, when necessary, in the interest 
of uniformity of classification in accordance with established 
custom, nothing in the Act nor in its construction by the 
courts can be found to justify such coercive action as to force 
upon any class of employees representation through an agency 
with tvhom it has no affiliation nor right of association. It 
is, therefore, of no consequence that the porters were at one 
time dependent upon Brotherhood as their spokesman with



38

This does not mean that a labor union as a 
private organization has no power to fix its own 
eligibility requirements, even if  the result is to 
discriminate against persons because of their 
race. As long as the organization is acting solely 
in a private capacity, no legal objection may be 
made. But here the Brotherhood is exercising, 
and insisting upon exercising, the right granted 
by the Railway Labor Act to act as the exclusive 
representative of the entire craft of firemen. To 
the extent that the Brotherhood claims rights un­
der the statute, it must carry out the duties which 
are inseparable from those rights. It cannot at 
the same time claim to be the statutory repre­
sentative of all the employees in the craft and 
refuse to represent some of them. I f  it adopts 
the latter course, as is the case here, it does not 
follow that its discriminatory eligibility rules are 
illegal, but that while it fails to act in good faith 
on behalf of all the members of the craft it may 
not exercise the right to act as the statutory rep­
resentative of the craft. It is relegated to the

the railroad, for that never was a trusteeship of their own 
making. To perpetuate it by law would be to impose a 
tyranny in many respects analogous to ‘taxation without 
representation.’ And if anything is certain, it is that the 
Congress in passing the Act never for a moment dreamed that 
it would be construed to diminish the right of any citizen to 
follow a lawful vocation on the same or equal terms with his 
neighbor., In this view, to enforce the Board’s decision would 
be contrary to both the word and spirit of our laws.” 
[Italics supplied.]



39

capacity of a purely private organization, with 
the right to bargain on behalf of its own mem­
bers only so long as no other statutory repre­
sentative is designated.27

An organization which is thus debarred from 
acting as exclusive bargaining agent under the 
statute might still bargain for its own members, 
if no other organization is chosen by a majority 
of the employees and if the carrier permits it to 
clo so. But in that capacity it would have no ex­
clusive rights, and no power to represent anyone 
else. The carrier would not be bound to bargain 
with it at all, and could not bargain with it for 
the entire craft. The colored employees in the 
class would be able to choose a different organiza­
tion to act on their behalf and the carrier would 
be required to give that organization equal status; 
that is, if  it bargained with one organization as 
representative for its members only, it would 
have to grant any other organization which re­
quested it equal recognition.28 See Matter of

27 It is unnecessary to consider whether, in the absence of 
any statutory provisions, a union may enter into an agreement 
with an employer covering employees who do not and can­
not belong to the union. Assuming that it can, since pas­
sage of the Railway Labor Act only a representative selected 
by the majority of a bargaining unit may bargain on behalf 
of the unit, and then only so long as it acts in good faith for 
the unit as a whole.

28 This does not mean that the colored employees should 
be segregated in >a separate bargaining unit. The National 
Mediation Board has stated its views as follows: ‘ ‘The 
Board has definitely ruled that a craft or class of employees



40

Berkshire Knitting Mills, 46 N. L. R . B . 955, 988- 
989, enforced in Berkshire Knitting Mills v. 
National Labor Relations Board, 139 F . (2d) 
134 (C. C'. A. 3 ), certiorari denied M ay 22, 1944; 
Matter of the Carborundum Co., 36 FT. L. R . B. 
710, 731.

may not be divided into two or more on the basis of race 
or color for the purpose of choosing representatives. All 
those employed in the craft, or class regardless of race, creed, 
or color, must be given the opportunity to vote for the repre­
sentatives of the whole craft or class.” National Mediation 
Board, The Railway Labor Act and the National Mediation 
Board (August 1940), p. 17. The National Mediation 
Board has on several occasions refused to separate a minority 
of white persons from a craft a majority of whose members 
were colored. See In the Matter of Representation of Em­
ployees of the Atlanta Terminal Co., Case No. R-75; In the 
Matter of Representation of Employees of the Central of 
Georgia Railway Co., Case No. R-234. The National Labor 
Relations Board has also often held that: “The color or race 
of employees is an irrelevant and extraneous consideration 
in determining, in any case, the unit appropriate for the 
purposes of collective bargaining.” (Matter of U. S. Bed­
ding Company, 52 N. L. R. B. 382, 388.) See also Matter 
of The American Tobacco Company, 2 N. L. R. B. 198; 
Matter of Union Envelope Company, 10 N. L. R. B. 1147, 
1150-1151; Matter of Brashear Freight Lines, Inc., 13 
N. L. R. B. 191. 201; Matter of Crescent Bed Company, 29 
N. L. R. B. 34, 36 ; Matter of Georgia Power Company, 32 
N. L. R. B. 692; Matter of Hughes Tool Co., 33 N. L. R. B. 
1089, 109(7-1099; Matter of Aetna Iron <6 Steel Co., 35 
N. L. R. B. 136; Matter of Southern Wood Preserving Com­
pany, 37 N. L. R. B. 25, 28; Matter of Tampa Florida 
Brewery, Inc., 42 N. L. R. B. 642, 645—646; Matter of South­
ern Brewing Company, 42 N. L. R. B. 649, 652-653; Matter 
of Columbian Iron Works, 52 N. L. R. B. 370, 372, 374.



41

II. T h e  Courts H ave J urisdiction T o E n jo in  a 
U n io n  P rom A cting as S tatutory R epresen­
tative , and  a n  E mployer P rom B argaining 
W it h  it  as S u c h , so L ong as it P ails T o 
A ct W ith o u t  D iscrim ination  on B eh alf  of 
all  th e  M embers of th e  Craft.

In Point I we have contended that the provi­
sions of the Railway Labor Act which provide 
for representation of a craft by the person or 
organization selected by the majority impose 
upon the craft representative a duty to act in 
behalf of all members of the craft in good faith. 
The question remains whether a minority has any 
remedy when the craft representative violates 
this obligation.

Inasmuch as the exclusive right of the majority 
representative and the duty to represent in good 
faith are created by the Railway Labor Act, a 
suit to enforce compliance with that obligation, 
whether by injunction or declaratory judgment, 
lies (unless the Railway Labor Act itself forbids) 
within the “ original jurisdiction”  of the federal 
courts over “ suits and proceedings arising under 
any law regulating commerce” . 28 U. S. C. Sec­
tion 41(8). The cause of action in the Tunstall 
case thus “ clearly had its origin [in] and is 
controlled by”  the Railway Labor Act, and this 
is sufficient. Peyton v. Railway Express Agency, 
316 U. S. 350; Mulford v. Smith, 307 U. S. 38, 
46. In the Steele case, this Court may review 
the decision of the Supreme Court of Alabama 
under Section 237 (b) of the Judicial Code be-



42

cause a “ right * * * is * * * claimed
* * * under the Constitution”  and a “ statute
of * * * the United States.”  Obviously the
enforcement of duties created by the Federal Act 
should not be left exclusively to the state courts. 
Furthermore the ordinary requisites of equity 
jurisdiction and for the issuance of declaratory 
judgments are clearly present.

In the series of cases decided last term,29 how­
ever, this Court narrowly circumscribed the situa­
tion in which the federal courts could take 
jurisdiction of cases involving the Railway Labor 
Act. We discuss briefly the application of these 
decisions to the case at bar.

A. These decisions were in large part predi­
cated on the view that Congress intended contro­
versial problems in the field of railroad labor re­
lations to be resolved by the administrative agen­
cies established by the A ct30 or voluntarily by 
“ the traditional instruments of mediation, con­
ciliation and arbitration”  (320 U. S., at 332) with­
out judicial intervention. Each of the cases was 
regarded as involving a “ jurisdictional dispute” ,

29 Switchmen's Union v. National Mediation Board. 320 
U. S. 297; General Committee v. M.-E.-T. R. Co., 320 U. S. 
323; General Committee v. Southern Pacific Co., 320 U. S. 
338; Brotherhood of Railway & Steamship Clerks v. United 
Transport Service Employees, 320 U. S. 715, 816.

30 Compare Switchmen’s Union and Brotherhood of Rail­
way Clerks eases, supra.



43

which the Court thought to be determinable under 
the statutory scheme.

The reasoning that such matters should not be 
submitted to the judiciary would not seem ap­
plicable to the instant cases. For these cases in­
volve no dispute as to who has been designated to 
represent the craft; all concede that the Brother­
hood has been chosen as bargaining representative 
by the majority of the craft of firemen. Nor do 
the cases concern the drawing of a line between 
the functions of the representatives of various 
crafts. Only the single craft of firemen is in­
volved. The National Mediation Board lacks the 
power which the National Labor Relations Board 
exercised in the Wallace cases to protect a minor­
ity in a craft from discriminatory terms of em­
ployment fixed in a contract negotiated by a union 
acting as their representative. Inasmuch as the 
interpretation of a contract is not involved, the 
eases do not fall within the jurisdiction of the 
National Railroad Adjustment Board. And dis­
putes between a representative and employees in 
the craft are not covered by the provisions of 
the Act for mediation, arbitration or voluntary 
conciliation. Indeed they cannot be subject to 
those processes, which assume that employees will 
be heard through “ representatives”  (Sections 2, 
Second; 2, Sixth; 5, 6, and 7), since the contro­
versy here is between individuals and minority 
groups in a craft who have no statutory repre-



44

sentative apart from  the party acting adversely 
to their interests. Inasmuch as the Brotherhood 
is, according to the allegations o f the complaint, 
seeking to drive the colored employees off the 
railroads, it would seem futile to refer the matter 
to conferences between the Brotherhood and the 
Negro firemen fo r  a voluntary settlement; the 
A ct certainly makes no provision fo r  this type o f 
conciliation.

Assuming the truth o f  the allegations, it is thus 
apparent that the petitioners are remediless un­
less the courts are open to them. W e do not think 
that Congress intended that a m inority should be 
com pletely helpless in case o f disregard by the 
statutory representative o f its duty to act in be­
half o f  the entire craft. There is no suggestion 
in the history o f the Railway Labor A ct that Con­
gress affirmatively desired to deprive m inorities 
o f  the judicia l protection which would otherwise 
be available as their sole means o f  enforcing their 
right to fa ir  representation. In  the absence o f 
any such showing, the norm al presum ption would 
be that Congress wished that this right m ight be 
preserved in the customary manner, through the 
courts to which resort should be available to in­
sure compliance with the laws o f  the United 
States.

It is, o f  course, true that the A ct nowhere ex­
pressly authorizes the courts to decide such m at­
ters, and that there is language in the opinions o f



45

last term which suggests that, apart from special 
situations previously recognized.,31 the courts lack 
jurisdiction under the Act except where Congress 
expressly otherwise declares. But this Court did 
not then have in mind the present problem, with 
the consequence of the absence of a remedy and 
the unlikelihood that Congress would have in­
tended the principle of majority rule to be used 
as an instrument for discrimination against mi­
nority employees. The Court has often recognized 
“ that general expressions, in every opinion, are to 
be taken in connection with the case in which those 
expressions are used”  for the reason that while 
“ the question actually before the Court is investi­
gated with care, and considered in its full extent” , 
the possible bearing of a decision “ on all other 
cases is seldom completely investigated.”  Cohens 
v. Virginia, 6 Wheat. 264, 399, 400; Humphrey’s 
Executor v. United States, 295 U. S. 602, 627.

B. 1. These cases may come within the reason­
ing of the same exception to the doctrine of last 
term’s decisions as the Texas & New Orleans and 
Virginian cases. In the Switchmen’s Union case 
(320 U. S., at 300), the Court declared that the 
purport of those leading authorities was that:

I f  the absence of jurisdiction of the fed­
eral courts meant a sacrifice or obliteration

31 Texas <& New Orleans R. Co. v. Brotherhood of Railway 
Clerks, 281 U. S. 548; Virginian Ry. Co. v. System Federa­
tion., 300 U. S. 515; Shields v. Vtah Idaho Central R. Co., 305 
U. S. 177.



46

o f a right which Congress had created, the 
inference would be strong that Congress in­
tended the statutory provisions governing 
the general jurisdiction  o f those courts to 
control.

See also Stark v. Wickard, 321 U. S. 288, 307. 
Just as the statutory right to collective bargaining 
might have been unenforceable without legal sanc­
tions, so the duty imposed by the Act on the craft 
representative to act fairly on behalf of the em­
ployees represented would be meaningless if the 
courts are denied jurisdiction to enforce it. This 
duty, as has been shown supra, pp. 23-24, is in­
herent in the doctrine of majority rule. It too 
goes to the heart of the statutory scheme. For the 
theory of preserving industrial peace through 
bringing representatives of the disputing parties 
into agreement rests upon the assumption that 
their principals will be satisfied that the repre­
sentatives have been acting fairly in their behalf.

2. The cases may be brought within the right of 
action recognized in the Texas d  New Orleans and 
Virginian cases in so far as they are actions 
against the employer. Unless the Brotherhood 
was the statutory representative of the carriers’ 
employees, the carriers violated the Act when they 
recognized the Brotherhood as such representative 
and entered into collective bargaining agreements 
with it on behalf of all the employees. Certainly 
when such recognition is given by a carrier to an 
organization which is not the lawful representa-



47

tive of its employees the unqualified right of the 
employees to select their representative “ without 
interference, influence, or coercion”  (Section 2, 
Third of the Act) and to “ bargain collectively 
through representatives of their own choosing”  
(Section 2, Fourth of the Act), has been denied 
them. Exclusive recognition of a labor organiza­
tion which is not a statutory representative has 
been held an interference with employee rights 
under the National Labor Relations Act. Cf. Na­
tional Labor Relations Board v. Pennsylvania 
Greyhound Lines, 303 U. S. 261, 271; Medo Photo 
Supply Corp. v. National Labor Relations Board, 
321 U. S. 678, 697 (dissent).32 This is so because 
it imposes upon all in the unit an agent which is 
not its representative and handicaps the choice of 
a true representative; “ once an employer has con­
ferred recognition on a particular organization it 
has a marked advantage over any other in secur­
ing the adherence of the employees”  (303 U. S. 
261, 267). The grant of that advantage, there­
fore, constitutes support of its recipient, and 
is illegal except where required by law. Texas cfc 
New Orleans R. Co. v. Brotherhood of Railway 
Clerks, 281 U. S. 548, 556-557, 560; the Virginian 
Ry. case, supra, 300 U. S., at 548.

While the Brotherhood in these cases was dis­
criminating against Negro firemen it was not en-

32 Nothing in the majority opinion is inconsistent with the 
dissent on this point.



48

titled to act as the representative of the craft un­
der the Act. A  carrier accordingly had no right 
to recognize it as such, and under the doctrine of 
the Texas cf New Orleans and Virginian cases the 
courts had jurisdiction to restrain a carrier from 
doing so.

C. The Switchmen’s Union opinion implies that 
its limitation upon the scope of judicial power 
would not apply if “ constitutional questions”  were 
present. 320 U. S., at 301. Cf. also the dissent 
of Mr. Justice Frankfurter in Stark v. Wickard, 
321 U. S., at 314. I f  the Act were construed as 
depriving a minority of the right to self-represen­
tation without imposing any duty on the repre­
sentative of the entire craft to serve the minority’s 
interests along with those of the craft generally, 
there would be serious question as to its constitu­
tionality. Particularly is this so when the dis­
crimination against the minority rests upon race. 
Cf. Mitchell v. United States, 313 U. S. 80, 94.33 
The due process clause would hardly permit Con­
gress directly to provide that a minority of Negro 
employees must be represented exclusively through 
an organization which was acting in opposition to 
their interests because of their race.

We believe that Congress did not intend the

33 “Race discrimination by an employer may reasonably 
be deemed more unfair and less excusable than discrimina­
tion against workers on the ground of union affiliation.” 
New Negro Alliance v. Sanitary Grocery Co., ”03 U. S. 552, 
561.



49

Act to have any such meaning. The consequences 
may be the same, however, if the majority repre­
sentative is permitted to exercise the statutory 
right to appear and contract for the entire craft 
without any recourse being available to a minor­
ity group not fairly represented. The same fac­
tors, constitutional and otherwise, which support 
a construction of the Act as not depriving a 
minority of all substantive right in such circum­
stances negative the existence of an intention to 
leave the minority remediless. But if the Act be 
interpreted as denying to all courts jurisdiction to 
protect the right of the minority to fair represen­
tation, these cases might present a constitutional 
question which in itself would require judicial 
determination.

Respectfully submitted.
C harles F a h y ,

Solicitor General.
R obert L . S tern ,

Special Assistant to the Attorney General. 
A lv in  J. R ockw ell ,

General Counsel,
R ttth W eya n d ,
J oseph B. R obison,
F r a n k  D onner ,
M arcel M allet-P revost,

Attorneys,
National Labor Relations Board.

N ovember 1944.



A PPE N D IX

A

The pertinent provisions of the Railway Labor 
Act as amended in 1934, 48 Stat. 1185, 45 IT. S. C., 
Section 151 et seq., read as follows:

Section  1. When used in this Act and 
for the purposes of this Act—

* * * * *

Sixth. The term “ representative”  
means any person or persons, labor union, 
organization, or corporation designated 
either by a carrier or group of carriers or 
by its or their employees, to act for it or 
them.

* * * * * 

GENERAL PURPOSES

S ection  2. “  (1) To avoid any interrup­
tion to commerce or to the operation of 
any carrier engaged therein; (2) to forbid 
any limitation upon freedom of associa­
tion among employees or any denial, as a 
condition of employment or otherwise, of 
the right of employees to join a labor 
organization; (3) to provide for the com­
plete independence of carriers and of em­
ployees in the matter of self-organization; 
(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

(50)



51
application of agreements covering rates 
of pay, rules, or working conditions. 

* * * * *
“ Second. All disputes between a car­

rier or carriers and its or their employees 
shall be considered, and, if possible, decided, 
with all expedition, in conference between 
representatives designated and authorized 
so to confer, respectively, by the carrier or 
carriers and by the employees thereof in­
terested in the dispute.

* * * * *
“ Fourth. Employees shall have the right 

to organize and bargain collectively through 
representatives of their own choosing. The 
majority of any craft or class of employees 
shall have the right to determine who shall 
be the representative of the craft or class 
for the purposes of this Act. No carrier, 
its officers or agents, shall deny or in any 
way question the right of its employees to 
join, organize, or assist in organizing the 
labor organization of their choice, and it 
shall be unlawful for any carrier to inter­
fere in any way with the organization of 
its employees, * * * or to influence or
coerce employees in an effort to induce 
them to join or remain or not to join or 
remain members of any labor organiza­
tion. * * *

* * * * *
“ Fifth. No carrier, its officers, or agents 

shall require any person seeking employ­
ment to sign any contract or agreement 
promising to join or not to join a labor 
organization; and if  any such contract 
has been enforced prior to the effective 
date of this Act, then such carrier shall 
notify the employees by an appropriate



52

order that such contract has been discarded 
and is no longer binding on them in any 
way.

* * * * *
“ Seventh. 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 agree­
ments or in section 6 of this Act.

* * * * *
“ Ninth. I f  any dispute shall arise 

among a carrier’s employees as to who are 
the representatives of such employees des­
ignated and authorized in accordance with 
the requirements of this Act, it shall be 
the duty of the Mediation Board, upon re­
quest of either party to the dispute, to in­
vestigate such dispute and to certify to 
both parties, in writing, within thirty days 
after the receipt of the invocation of its 
services, the name or names of the indi­
viduals or organizations that have been 
designated and authorized to represent the 
employees involved in the dispute, and cer­
tify the same to the carrier. Upon receipt 
of such certification the carrier shall treat 
with the representative so certified as the 
representative of the craft or class for the 
purposes of this Act. In such an investi­
gation, the Mediation Board shall he au­
thorized to take a secret ballot of the em­
ployees involved, or to utilize any other 
appropriate method of ascertaining the 
names of their duly designated and au­
thorized representatives in such manner as 
shall insure the choice of representatives 
by the employees without interference, in­
fluence, or coercion exercised by the car­
rier. In the conduct of any election for



53

the purposes herein indicated the Board 
shall designate who may participate in the 
election and establish the rules to govern 
the election, or may appoint a committee 
of three neutral persons who after hearing 
shall within ten days designate the em­
ployees who may participate in the elec­
tion. The Board shall have access to and 
have power to make copies of the books and 
records of the carriers to obtain and utilize 
such information as may be deemed neces­
sary by it to carry out the purposes and 
provisions of this paragraph. * * *

B

The pertinent provisions of the National Labor 
Relations Act (Act of July 5, 1935, 49 Stat. 449, c. 
372, 29 U. S. C., Secs. 151, et seq.) are as follows:

Sec . 8. It shall be an unfair labor prac­
tice for an employer—-

*  *  *  #  *

(3) By discrimination in regard to hire 
or tenure of employment or any term or 
condition of employment to encourage or 
discourage membership in any labor or­
ganization: Provided, That nothing in this 
Act, or in the National Industrial Recovery 
Act (U. S. C., Supp. V II, title 15, secs. 
701-712), as amended from time to time, 
or in any code or agreement approved or 
prescribed thereunder, or in any other 
statute of the United States, shall pre­
clude an employer from making an agree­
ment with a labor organization (not es­
tablished, maintained, or assisted by any 
action defined in this Act as an unfair la­
bor practice) to require as a condition of 
employment membership therein, if such 
labor organization is the representative of



54

the employees as provided in section 9 (a), 
in the appropriate collective bargaining 
unit covered by such agreement when made. 

* * * * *
(5) To refuse to bargain collectively 

with the representatives of his employees, 
subject to the provisions of Section 9 (a).

R E P R E S E N T A T I V E S  A N D  E L E C T I O N S

S ec . 9. (a) Representatives designated 
or selected for the purposes of collective 
bargaining by the majority of the em­
ployees in a unit appropriate for such pur­
poses, shall be the exclusive representatives 
of all the employees in such unit for the 
purposes of collective bargaining in re­
spect to rates of pay, wages, hours of em­
ployment, or other conditions of employ­
ment: Provided, That any individual em­
ployee or a group of employees shall have 
the right at any time to present grievances 
to their employer.

U. S . GOVERNMENT PRINTING OFFICE: 1944



IN THE

£ttpran* (Urnirt of tljp llnxtth States
October Term, 1944 

Nos. 37 and 45

T om T unstall, Petitioner, 
v.

B rotherhood of L ocomotive F iremen and E nginemen, 
O cean L odge N o. 76, P ort N orfolk L odge No. 775, 
et al.

ON writ of certiorari to the united states circuit court
OF APPEALS FOR THE FOURTH CIRCUIT.

B ester W illiam  S teele, Petitioner, 
v.

L ouisville & N ashville R ailroad Company, B rotherhood 
of L ocomotive F iremen and E nginemen, an unincor­
porated A ssociation, et al.

ON WRIT of certiorari to the supreme court of the
STATE OF ALABAMA.

MOTION AND BRIEF FOR THE NATIONAL ASSOCI­
ATION FOR THE ADVANCEMENT OF COLORED 

PEOPLE AS A M I C U S  C U R I A E .

T hurgood M arshall,
W illiam  H. H astie,

Counsel for National Association for 
the Advancement of Colored People.





I N D E X

Motion for Leave to File Brief as amicus curiae______  1
Brief for the National Association for the Advancement 

of Colored People as amicus curiae______________  3
Opinions Below ____________    4
Statutes Involved ____________________________  4
Questions Presented__________________________  4
Statement ____________________________________  4

Summary of Argument:
I  ________________________________________________  9
II ______________________________ ...____ ____________  10

Argument:
Introduction _____________________________________  12

I— A labor organization which refuses, on account of 
race, to admit employees within a craft or class to 
membership in the organization cannot be the repre­
sentative of that craft or class within the meaning
of Section 2, Fourth, of the Railway Labor Act-------  17
A— Collective bargaining is a system whereby all 

employees whose terms of employment are be­
ing fixed participate within the union in deter­
mining the terms of their employment-------------- 17

B—-The Railway Act violates the Fifth Amendment 
if it empowers a union composed solely of mem­
bers of one race to act as statutory bargaining 
representative for the craft including members 
of another race whom it excludes from member­
ship _________________________________________  27

II— A collective bargaining agreement which by ̂ its
terms requires a carrier to discriminate against 
employees within the craft or class because of race 
in apportioning work is illegal under the Railway 
Labor Act _______________________________________  31-

Conclusion ___________________________________________ 36

PAGE



11
Table of Cases.

Aetna Iron & Steel Co., Matter of, 35 N. L. R. B. 136,
138________________________________________________  14

American Cyanamid Co., Matter of, 37 N. L. R. B. 578,
585-586 ___________________________________________  14

American Tobacco Co. (Reidsville, N. C.), Matter of,
2 N. L. R. B. 198___________________________________ 14

American Tobacco Co. (Richmond, Va.), Matter of, 9
N. L. R. B. 579_____________________________________  14

Atlantic Coast Line R. Co. v. Pope, 119 F. (2d) 39 (C. C.
A. 4th) _______________________________________ l___  28

Bethlehem-Alameda Shipyard, Inc., Matter of, 53 N. L.
R. B., 999, 1016______     23

Bradley Lumber Co., Matter of, 34 N. L. R. B. 610____ 14
Brashear Freight Lines, Inc., Matter of, 13 N. L. R. B.

191,201__________________.1________________________  13
Brotherhood of Railway Clerks v. United Transport 

Service Employees, 137 F. (2d) 817, 821-822; re­
versed on jurisdictional grounds, 320 U. S. 715_____  21

Brown Paper Mill Co., Matter of, 36 N. L. R, B. 1220, 
1227, 1229, 1233; enforced, 133 F. (2d) 988 (C. C.
A. 5th) --------- :__________ ____ ______________________  15

California Walnut Growers A ss ’n, Matter of, 18 N. L.
R. B. 493__________________________________________  14

Carter v. Carter Coal Co., 298 U. S. 238, 311.__.27, 30, 31, 34 
J. I. Case Co. v. National Labor Relations Board 321

U. S. 332, 338_________________________________ 18,19, 34
Columbian Iron Works, Matter of, 52 N. L. R. B. 370,

372, 374 ___________________________________________ 13
Crescent Bed Co., Inc., Matter of, 29 N. L. R. B. 34, 36.... 13 
Crossett Lumber Co., Matter of, 8 N. L. R. B. 440, 470.... 15
Eubank v. Richmond, 226 U. S. 137, 143________________  31
Floyd A. Fridell, Matter of, 11 N. L. R. B. 249_________  14
Gandolfo v. Hartman, 49 Fed. 181, 182-183___________  35
General Committee v. Missouri-Kansas-Texas R. Co.,

320 U. S. 323, 337________________________________ 24, 28

PAGE



I l l

General Committee v. Southern Pacific Co., 320 U. S.
338 ___________________________- ________________  28

General Electric Co., Matter of, 43 N. L. R. B. 453_____ 14
Gibson v. Mississippi, 161 IT. S. 565, 591______________  31

Houde Engineering Corp., Matter of, 1 N. L. R. B. 
(old) 35, 43-44____________________________________  21

Interstate Granite Corp., Matter of, 11 N. L. R. B.
1046 ______________________________________________  14

McCall Corp., Matter of, 8 N. L. R. B. 1087------------------- 14

Memphis Furniture Mfg. Co., Matter of, 3 N. L. R. B.
26, 31 _______________________________________ ----- 14

Medo Photo Supplv Corp. v. National Labor Relations
Board, 321 U. S. 678______________________________  IB

Mitchell v. United States, 313 U. S. 80, 94------------------  31

National Labor Relations Board v. Highland Park Mfg.
Co., 110 F. (2d) 632, 638 (C. C. A. 4th)--------------- - 27

National Labor Relations Board v. Jones & Laughlin
Steel Corp., 301 U. S. 1___________________________  19

Nixon v. Condon, 286 U. S. 73, 88-89--------------------------- 34

Order of Railroad Telegraphers v. Railway Express
Agency, 321 U. S. 342, 346___________________ 17,19, 34

Ozan Lumber Co., Matter of, 42 N. L. R. B. 1073----------- 14

Planters Mfg. Co., Matter of, 10 N. L. R. B. 735; en­
forced, 105 F. (2d) 750 (C. C. A. 4th)--------------------  15

Rapid Roller Co., Matter of, 33 N. L. R. B. 557, 566-567,
570; enforced, 126 F. (2d) 452 (C. C. A. 7th); cer­
tiorari denied, 317 U. S. 650--------------- -— ------------ H

Representation of Employees of Atlanta Terminal Co.,
Matter of, Case No. R-75------------------------------------— 13

Representation of Employees of the Central Georgia 
Railway Co., Matter of, Case No. R-234-----------------  13

Schechter Corp. v. United States, 295 U. S. 537----------- 31
Scripto Mfg. Co., Matter of, 36 N. L. R. B. 411, 414—  14

PAGE



IV

Seattle Trust Co. v. Roberge, 278 U. S. 116, 121-122___ 31
Sewell Hats, Inc., Matter of, 54 N. L. R. B. 278; en­

forced, 143 F. (2d) 450 (C. C. A. 5 th ); certiorari
pending, No. —, this Term_______________________ 14

Smith v. Allwright, 321 U. S. 649, 664-665 __________  31, 33
Southern Brewing Co., Matter of, 42 N. L. R. B. 642,

645-646 ___________________________________________  14
Southern Cotton Oil Co., Matter of, 26 N. L. R. B. 177,

180, 182, 183 ________   14
Swift & Co., Matter of, 11 N. L. R. B. 950-955_________  14
Tampa Florida Brewing Co., Matter of, 42 N. L. R. B.

642, 645-646 _____ i ________________________________ 14
Texas & New Orleans Railroad Co. v. Brotherhood of

Railway & Steamship Clerks, 281 U. S. 548, 569___ 24
Tex-O-Kan Flour Mills Co., Matter of, 26 N. L. R. B.

765, 787-790 ________ ,_______________________ 4____  14
Truax v. Raich, 239 U. S. 33, 41______________________  34
Union Envelope Co., Matter of, 10 N. L. R. B. 1147___ 14
U. S. Bedding Co., Matter of, 52 N. L. R. B. 382, 387-

388 __________________________________________ _ _ 13, 23
United States v. Classic, 318 U. S. 299, 326___________  33
Utah Copper Co., Matter of, 35 N. L. R. B. 1295, 1300____ 13
Virginian Ry. Co. v. System Federation, 300 U. S. 515,

548 _______________________________________ ______  19, 32
Western Cartridge Co., Matter of, 43 N. L. R. B. 179, 

196-200; enforced, 138 F. (2d) 551 (C. C. A. — ) ;  cer­
tiorari denied, 64 S. Ct. 780, 972__________________  15

World Chinese American Restaurant, In re, No. SE- 
6403, 8 L. R. R, 800_______________________________  14

Yick W o v. Hopkins, 118 U. S. 356, 370________________  35

Statutes.

National Labor Relations Act (Act of July 5th, 1935, 49
Stat. 449, C. 372)____________________________ ,..__4,19, 20

Railway Labor Act, 48 Stat. 1185______ 4, 7, 9,10,11,12,16
17,19, 20, 27, 28, 29 

30, 31, 32, 33, 34

PAGE



V

Miscellaneous.

American Federation of Labor, Proceedings of Conven­
tion 1920, pp. 307-310, 351-352; Proceedings of Con­
vention 1935, pp. 787, 807-808, 814__________________ 26

Cayton, Horace R., and Mitchell, George S., “ Black 
Workers and the New Unions,”  Unit of North Caro­
lina Press, 1939, pp. 439-445_______________________  5, 6

Delegation of Power to Private Parties, 37 Col. L. Rev.
447 (March 1937)____________ _____________________  29

Delegation of Governmental Power to Private Groups,
32 Col. L. Rev. 80 (January 1932)__________________ 29

Dougherty, Carroll R., “ Labor Problems in American 
Industry” , New York (1933), p. 415______________  18

Golden, Clinton S. and Ruttenberg, Harold J., Dynam­
ics of Industrial Democracy, Harpers (1942), pp.
211, 214 _________________________________________

PAGE

24
Hamilton, Walton W., “ Collective Bargaining”  in En­

cyclopedia of the Social Sciences, Yol. I ll, p. 630—  18 
Hearings Before the House Committee on Labor, 78th 

Congress, 2nd Sess., on H. R. 3986, H. R. 4004 and
H. R. 4005, pp. 27-34____________________________  36

Hearings Before the House Committee on Interstate 
and Foreign Commerce on H. R. 7650, 73rd Cong.,
2nd Sess., pp. 28-30, 94-105. 26

Hearings Before the Senate Committee on Education 
and Labor, on S. 2926, 73rd Cong., 2nd Sess., p.
116____________________________ ______________19, 20, 29

Hearings Before the Senate Committee on Interstate 
Commerce on S. 3266, 73rd Cong., 2nd Sess., pp. 146, 
156-157 _________________________________________ 26 * * * * * *>33

Lawyers Guild Review, I. J. A. Bulletin Section, Vol.
IV, No. 2, Mar.-April 1944, “ the Elimination of 
Negro Firemen on American Railways—A Study of
the Evidence Adduced at the Hearing Before the
President’s Committee on Fair Employment Prac­
tice,”  pp. 32-37------------------------------------------------------ 5



VI

Mitchell, John, Organized Labor, Philadelphia (1903),
PAGE

p. 75 -------------_________ __________ ______ ...______5, 6,18
Northrup, Herbert R., “ Organized Labor and the 

Negro,”  Harper and Bros., 1944, pp. 50-101____5, 6, 7,16
Perlman, Selig, and Taft, Philip, History of Labor in 

the United States 1896-1932, MacMillan (1935), p. 10 27
Reports of U. S. Industrial Commission, Yol. 17, 57th 

Cong., 1st Sess., H. R. Doc. No. 186 Washington 
(1901), p. L X X V I________________________________  18

Spero, Sterling D. and Harris, Abram L., “ The Black 
W orker” , Columbia Univ. Press, 1931, pp. 284-315 5, 6, 7

Summary, Findings and Directives Issued on Nov. 18, 
1943, by the President’s Committee on Fair Employ­
ment Practice Relating to Parties to the “ South­
eastern Carriers Conference”  or “ Washington”  
Agreement________________________________________  5, 6

Taylor, Albion G., “ Labor Problems and Labor Law,”  
New York (1938), pp. 86-87________________________ 18

Yoder, Dale, “ Labor Economics and Labor Problems,”  
New York (1933), p. 438___________________________  18



1ST T H E

Caprone GJmtrt of ilu' Vuxxtzb States
October Term, 1944

Nos. 37 and 45

T o m  T u n -s t a l l , Petitioner, 
v.

B r o t h e r h o o d  o e  L o c o m o t i v e  F i r e m e n  a n d  E n g i n e m e n , 

O c e a n  L o d g e  N o . 76, P o r t  N o r f o l k  L o d g e  N o . 775, 
et al.

o n  w r i t  o f  c e r t i o r a r i  t o  t h e  u n i t e d  s t a t e s  c i r c u i t  c o u r t  

OF A P PE A L S FOR T H E  F O U R T H  C IR C U IT.

B e s t e r  W i l l i a m  S t e e l e , Petitioner, 
v.

L o u i s v i l l e  &  N a s h v i l l e  R a i l r o a d  C o m p a n y , B r o t h e r h o o d  

o f  L o c o m o t i v e  F i r e m e n  a n d  E n g i n e m e n , a n  u n i n c o r ­

p o r a t e d  A s s o c i a t i o n , et al.

O N  W R IT  OF CER TIO R A R I TO T H E  S U P R E M E  COURT OF T H E  

STATE  OF A L A B A M A .

MOTION FOR LEAVE TO FILE BRIEF AS 
A M I C U S  C U R I A E .

To the Honorable, the Chief Justice of the United States 
and the Associate Justices of the Supreme Court of 
the United, States:

The undersigned, as counsel for and on behalf of the 
National Association for the Advancement of Colored 
People, respectfully move this Honorable Court for leave 
to file the accompanying brief as Amicus Curiae.



2

The National Association for the Advancement of 
Colored People is a membership organization which for 
thirty-five years has dedicated itself to and worked for the 
achievement of functioning democracy and equal justice 
under the Constitution and laws of the United States.

From time to time some justiciable issue is presented to 
this Court, upon the decision of which depends the course 
for a long time of evolving institutions in some vital area 
of our national life. Such an issue is before the Court now. 
As will more fully appear in the accompanying brief, this 
Court is here asked to decide whether a labor organization 
which excludes Negroes from membership may lawfully ob­
tain from national legislation power of governmental char­
acter over the employment of all persons in a defined area 
of industry and commerce and thereafter utilize that, power 
to exclude Negroes because of their race from participation 
in the processes of collective bargaining and access to em­
ployment within the area in question.

The question is essentially whether our Constitution 
and laws permit the processes of government so to be per­
verted as to deprive the Negro of the right to earn a liveli­
hood.

It is to present written argument on this issue, funda­
mental to life itself, that movants seek leave to file a brief 
amicus curiae.

Counsel for the petitioners has consented to the filing 
of this brief. Counsel for the respondents have been re­
quested to consent, but have refused.

T h u b g o o d  M a r s h a l l ,

W i l l i a m  H .  H a s t i e ,

Counsel for National Association for 
the Advancement of Colored People.



IN THE

(Emtrt of flje United States
October Term, 1944

No. 37

T o m  T u n s t a l l , Petitioner, 
v.

B r o t h e r h o o d  o e  L o c o m o t i v e  F i r e m e n  a n d  E n g i n e m e n , 

O c e a n  L o d g e  N o . 76, P o r t  N o r f o l k  L o d g e  N o . 775, 
et at.

o n  w r i t  o f  c e r t i o r a r i  t o  t h e  u n i t e d  s t a t e s  c i r c u i t  c o u r t  

o f  a p p e a l s  f o r  t h e  f o u r t h  c i r c u i t .

No. 45

B e s t e r  W i l l i a m  S t e e l e , Petitioner, 
v.

L o u i s v i l l e  &  N a s h v i l l e  B a i l r o a d  C o m p a n y , B r o t h e r h o o d  

o f  L o c o m o t i v e  F i r e m e n  a n d  E n g i n e m e n , a n  u n i n c o r ­

p o r a t e d  A s s o c i a t i o n , et al.

ON W RIT OF CERTIORARI TO TH E  SUPREME COURT OF THE 
STATE OF ALABAMA.

BRIEF FOR THE NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED PEOPLE AS 

A M I C U S  C U R I A E .

This Brief is presented *by the National Association for 
the Advancement of Colored People as amicus curiae be-

3



4

cause of the importance of the issues involved to the pro­
tection of basic rights of Negro employees under the provi­
sions of the Railway Labor Act and similar provisions of 
the National Labor Relations Act.

Opinions Below 

Statutes Involved

The opinions below and the statutes involved are both 
set out in full in the brief of the United States as amicus 
curiae heretofore filed.

Questions Presented

1. Can a labor organization which refuses, on account of 
race, to admit employees within a craft or class to mem­
bership in the organization be the representative of that 
craft or class within the meaning of Section 2, Fourth, of 
the Railway Labor Act _

2. Is a collective bargaining agreement which by its terms 
requires a carrier to discriminate against employees 
within the craft or class because of race in apportioning 
work illegal under the Railway Labor Act?

Statement

The petitioner in each of these cases is a Negro fireman 
on a railroad in the southeastern portion of the United 
States. The respondents in each case are (a) the road on 
which each has been employed for many years, (b) the 
Brotherhood of Locomotive Firemen and Enginemen, a 
labor organization composed of# white firemen on the na­
tion’s railroads which refuses to admit Negro firemen to 
membership or to represent their interests in dealing with



5

railroad managements, and (c) certain subordinate lodges 
and individual officers of the Brotherhood which have put 
the Brotherhood’s discriminatory policies into effect on the 
respondent railroad to the detriment of the petitioner in 
each case (No. 37, R. 6; No. 45, R. 83). Petitioners sue in 
their own behalf and as representatives of all Negro firemen 
on the respondent railroads (No. 37, R. 5; No. 45, R. 84). 
They seek relief, one in the Federal courts and one in the 
courts of the State of Alabama, against discriminatory and 
oppressive practices on the part of the railroads and the 
Brotherhood which have deprived them of jobs which they 
would have held but for their race. The events involved in 
the instant cases are the culmination of a sustained effort 
on the part of respondents, continued over several decades, 
to eliminate Negro firemen from the Southern roads. In 
order to present the facts of this case in their proper per­
spective, wTe shall here outline briefly the history of the 
employment of Negro firemen on the railroads of the South.1

The employment of Negroes as firemen on the Southern 
railroads is a practice which for decades has had complete 
and unquestioned acceptance by the public.2 Until the ad­

1 Authorities referred to in the following paragraphs include the 
following: Summary, Findings and Directives issued on November 
18, 1943, by the President’s Committee on Fair Employment Practice 
relating to Parties to the “Southeastern Carriers Conference” or 
“Washington” Agreement (mimeograph) ; printed in full in appendix 
to Petitioner’s Brief, No. 37 (pp. 58-67); Herbert R. Northrup, 
“Organized Labor and the Negro,” Harper and Bros., 1944, pp. 50- 
101; Sterling D. Spero and Abram L. Harris, “The Black 
Worker,” Columbia Univ. Press, 1931, pp. 284-315; Horace R. Cay- 
ton and George S. Mitchell, “Black Workers and the New Unions,” 
Univ. of North Carolina Press, 1939, pp. 439-445.

See also Article, Lawyers Guild Review, I. J. A. Bulletin Section, 
Vol. IV, No. 2, March-April 1944, “The Elimination of Negro Fire­
men on American Railways—A Study of the Evidence Adduced at 
the Hearing Before the President’s Committee on Fair Employment 
Practice,” pp. 32-37.

2 Spero and Harris, p. 284.



6

vent of mechanical stokers and Diesel engines in recent 
years, the fireman’s job on an engine was grimy and ard­
uous.3 In the first few decades of the century it was held 
in the South almost exclusively by Negroes, not only because 
of the nature of the work, but also because of the fact that 
the carriers were able to pay them lower wages than white 
firemen.4 This important incentive was removed during the 
first World War when the Federal Government, then oper­
ating the roads, adopted and applied the principle of equal 
pay for equal work.5 With the resumption of private opera­
tion after the war, the proportion of Negroes on the South­
ern firing forces began a decline which has continued ever 
since.6 The result has been that the proportion of Negro 
firemen on many roads has been reduced from a majority 
to a small minority.7 But the Negroes who remain have 
greater seniority than most of the white firemen who consti­
tute the majority.8

The Brotherhood of Locomotive Firemen and Engine- 
men admits no Negroes to membership (No. 37, R. 6; No. 
45, R. 83). Since early in this century it has endeavored 
to force Negroes out of the firing forces of the Southern 
roads and to replace them with its own white members.9 It 
has entered into contracts with carriers limiting the pro­
portion of Negroes who may be employed as firemen in each 
class of service, in each seniority district on the contracting 
roads. These contracts are enforced without regard to

3 Cayton and Mitchell, p. 441; Northrup, p. 62.
4 Spero and Harris, pp. 289-290; Northrup, p. 49.
5 Spero and Harris, pp. 294-295 ; Northrup, pp. 50-51.
8 Northrup, pp. 52-54.
7 Northrup, pp. 52-54; Spero and Harris, p. 284.
8 Northrup, p. 54; Spero and Harris, pp. 441-442.
9 Spero and Harris, pp. 287-289, 307; Northrup, pp. 50. 65. 

According to Spero and Harris (p. 307) : “ In 1926 President Rob­
ertson of the Brotherhood of Locomotive Firemen told his convention 
that he hoped to be able to tell the next meeting that not a single 
Negro remained on the left side of an engine cab.”



7

In 1940, the Brotherhood moved for a sudden extreme 
acceleration in the gradual elimination of Negro firemen 
which the ban on hiring of Negroes and the contracts de­
scribed above had already made inevitable.10 11 It asked a 
number of Southern roads to enter into a contract which 
would have given all new positions, as fast as they were 
created by schedule changes or otherwise, to white firemen.12 
When the railroads rejected this proposal, the disagreement 
came before the National Mediation Board under the terms 
of the Railway Labor Act. The dispute was finally termi­
nated by the execution, on February 28, 1941, of a single 
agreement between the Brotherhood and 21 Southern roads, 
including respondents herein, which is known as the South­
eastern Carriers Conference Agreement (No. 37, R. 8-9; 
No. 45, R. 89-90, 10-13).13

Briefly, this agreement provides 14 15 (a) that the percen­
tage of Negro firemen in each seniority district, in each 
class of service, shall not exceed 50 per cent; (b) that where 
the percentage is in excess of 50 per cent the quota is to be 
reached by assigning new runs to white firemen; and (c) 
that all pre-existing contracts containing more restrictive 
clauses 16 remain in effect and that further restrictions may

seniority so that senior Negroes are replaced by junior
white firemen and deprived of positions which they would
hold but for their race.10

10 Spero and Harris, pp. 291-292, 306, 307; Northrup, pp. 52-54.
11 Northrup, p. 63; Guild Review, p. 33.
12 Northrup, p. 63.
13 Northrup, p. 63.
14 This and more similar contracts refer to Negro firemen as “non- 

promotable firemen” ; that is, firemen who may not be promoted to 
the position of engineer. However, a supplementary agreement 
between the Brotherhood and respondent Norfolk Southern expressly 
provides that “the phrase ‘—non-promotable firemen—’ . . . refers 
only to colored firemen” (No. 37, R. 7-8; 13-16).

15 (Ibid.).



8

be made by separate contracts with individual roads. It 
was in purported compliance with this contract that peti­
tioners were removed by respondent railroads, at the behest 
of respondent Brotherhood, from positions which they 
would have retained had the seniority practices of the rail­
roads been applied regardless of race (No. 37, R. 10-11).

The complaint herein, the allegations of which are neces­
sarily admitted, state that the Brotherhood’s conduct of 
negotiations with the roads is designed “ to secure a 
monopoly of employment and the most favorable jobs for 
its own members’ ’ (No. 37, R. 9-10; No. 45, R. 88-90). The 
Southeastern Agreement on its face shows the validity of 
this statement.

Brotherhood representatives are free to designate the 
better positions arbitrarily as “ white men’s jobs”  and to 
force the Negroes, regardless of seniority, out of all but 
the most menial, irregular, and unremunerative work.16 17 18 An 
example of such exclusion by practice rather than by con­
tract appears in the fact that although only four railroads 
have agreements oral or written, only two Southern roads 
allow such use on any but switching engines.17 In fact, it 
is no coincidence that the Brotherhood’s intensified drive 
to take over the firemen jobs long held by Negroes is coin­
cident with the recent increased use of Diesel and automatic 
stoker engines on the roads of this country. The years 
during which the Negro firemen have done the dirty work 
on the engines go for naught; they were not allowed to exer­
cise their hard-won seniority to secure the easier berths to 
which their years of service entitled them.18

The net result of the policies of the Brotherhood, con­
doned and put into effect by the carriers, is that the use of

16 Northrup, pp. 64-65.
17 Northrup, pp. 62-64.
18 Summary, etc. of the President’s Committee, p. 5.



9

Negroes as firemen, long an established practice in the 
South, is rapidly coming to an end.19

In these cases, petitioners, both of whom have suffered 
through the application of the Southeastern Agreement to 
cause them to be transferred to poorer jobs, ask on behalf 
of themselves and all other Negro firemen on the respon­
dent railroads that the courts issue injunctions restraining 
the railroads and the Brotherhood from enforcing all agree­
ments between them which discriminate against Negro fire­
men and further restraining the railroads from dealing with 
the Brotherhood as, and the Brotherhood from acting as, 
the statutory representative of the Negro firemen so long 
as the Brotherhood continues to discriminate against them 
(No. 37, R. 4, 12-13; No. 45, R. 96-97). Petitioners also ask 
for damages sustained by reason of the discrimination and 
for a declaratory judgment setting forth their rights (id.). 
Petitioner Tunstall also seeks an order requiring the re­
spondent Norfolk Southeni Railroad to restore him to the 
job from which he was removed by reason of the South­
eastern Agreement (No. 37, R. 13).

SUMMARY OF ARGUMENT 

I

A  labor organization which refuses because of race to 
admit to membership employees within a craft or class does 
not meet the requirements which the Railway Labor Act 
imposes as a condition precedent to any organizations quali­
fying to act as the exclusive statutory representative of such 
craft or class for purposes of collective bargaining. In pro­
viding that the representative chosen by the majority of 
the employees in a craft or class should be the exclusive 
representative of all employees in the craft or class for the 
purposes of the Act, Congress intended that only an organ­

19 Summary, etc., of the President’s Committee, pp. 64, 65.



10

ization which was organized to practice genuine collective 
bargaining could serve as such a representative. It is a 
basic conception of labor relations and of the trade union 
movement that collective bargaining is a system whereby 
all employees, whose jobs bring them into competition with 
one another, participate by a democratic representative sys­
tem of self-government in the determination of their condi­
tions of employment. An organization which refuses to 
admit to membership all employees within the craft or class 
who are willing to abide by its reasonable rules or regula­
tions is not practicing collective bargaining.

If the Railway Labor Act is construed to permit a labor 
organization, which refuses to admit employees because of 
race within the craft or class to membership, to be their 
exclusive representative, that act is unconstitutional. The 
powers which that Act vests in the statutory representative 
to fix the wages, hours and terms of employment of all em­
ployees within the craft or class irrespective of their con­
sent or authorization, are governmental in character. It 
would be a denial of due process and equal protection to 
vest such powers over a Negro minority in a hostile white 
majority. It is not a denial of due process or equal pro­
tection to vest such powrers in an organization in whose 
affairs all employees in the craft or class, white and colored 
alike, participate equally through membership, with the 
accompanying rights to attend and be heard at its meetings, 
to vote for its officers and its grievance and bargaining com­
mittees and to help shape the terms of its collective bar­
gaining proposals.

II

A collective bargaining agreement which by its terms 
requires a carrier to discriminate against colored employees



11

and in favor of white employees within the craft or class, in 
apportioning work, is illegal. Where a carrier enters into 
such an agreement with a labor organization not qualified 
to act as the representative of the craft or class, the carrier 
thereby violates the Railway Labor Act. But even if the 
labor organization with which the carrier makes such an 
agreement is entitled to act as the exclusive statutory repre­
sentative of the craft or class the agreement still violates 
the Railway Labor Act where all the white employees are 
members of that labor organization and none of the colored 
are members, for that Act requires the carrier and the 
representative to treat all employees within the craft or 
class equally, without discrimination in favor of those who 
are members of the contracting labor organization and 
against those who are not members.

Unless the Railway Labor Act is construed to prevent 
a carrier and a labor organization from entering into a col­
lective agreement which discriminates in employment oppor­
tunities against Negro employees within the craft or class 
it is unconstitutional. The statutory grant of the powers 
of majority rule to a labor organization must be subject to 
the limitations of the Fifth Amendment. For the powers 
exercised by the labor organization in fixing terms of em­
ployment binding on a non-consenting minority, being gov­
ernmental in character, cannot be exercised by the organ­
ization to which they have been delegated free of the consti­
tutional restraints upon their exercise which would have 
bound Congress if it had exercised these powers directly in­
stead of delegating them.

Furthermore, even if the collective labor agreement be 
treated as a mere contract between private parties, lacking 
any of the characteristics of governmental action, it is still 
invalid. The constitutional policy against race discrimina­
tion bars court enforcement of any contract requiring its



12

parties to practice such discrimination. Since no court 
could constitutionally enforce the contract this Court should 
declare its invalidity and enjoin the parties thereto from 
carrying out such discrimination.

ARGUMENT

Introduction

With the constantly increasing power which legislatures 
and courts are vesting in labor unions there must go an 
implied limitation that labor unions shall not use their 
greatly increased powers for purposes of discriminating as 
to employment opportunities because of race. The Negro 
worker like every other worker needs the protection of his 
government in the right to organize and bargain collectively 
through representatives of his own choosing. We recognize 
that Negroes who are employed in a craft or class can 
achieve the benefits of collective bargaining only where all 
employees within the craft or class bargain through one 
representative. No one has suffered more severely in the 
past from strife among workers forced to compete for jobs 
than the Negro. His wages have continually been driven 
down by the employer who played one group in the class or 
craft off against another. These evils have been counter­
acted in part by the National Mediation Board20 and the

20 The position of the National Mediation Board against setting 
up units on a Jim Crow basis has been summarized in one of its pub­
lications as follows:

“The Board has definitely ruled that a craft or class of 
employees may not be divided into two or more on the basis 
of race or color for the purpose of choosing representatives. 
All those employed in the craft or class regardless of race, 
creed, or color must be given the opportunity to vote for the 
representatives of the whole craft or class.” National Media­
tion Board, The Railway Labor Act and the National Media­
tion Board (Gov’t Print. Off., 1940), p. 17.

(F o o tn o te  continued on page 13 )



13

National Labor Relations Board21 in refusing to segregate 
employees of different races into separate units. The re­
quirement that the union in order to be certified win a ma­
jority of the votes of employees, some of whom are colored, 
has gone far in many industries to induce unions to open
(F o o tn o te  continued fro m  page 12)

The cases in which the National Mediation Board has rejected the 
request of a carrier or a union that Negro employees be segregated 
into a unit separate from the white employees are: In the Matter of 
Representation of Employees of the Atlanta Terminal Co., Case No. 
R-75; In the Matter of Representation of Employees of the Central 
of Georgia- Railway Co., Case No. R-234.

21 The National Labor Relations Board has encountered the prob­
lem in a number of different settings. In Matter of Crescent Bed 
Company, Inc., 29 N. L. R. B. 34, 36, “The Company [had] refused 
to grant exclusive recognition to the United because of the existence 
of a contract between it and the Independent * * * covering all the 
colored employees of the Company.” The Board ruled that, “ Since 
the contract * * * covers only the colored employees of the Com­
pany and the Act does not permit the establishment of a bargaining 
unit based solely on distinctions of color, we find that the contract 
between the Independent and the Company is no bar to a determina­
tion of representatives.” In Matter of Columbian Iron Works, 52 
N. L. R. B. 370, 372, 374, the Board held that a contract with a union 
which admitted only white employees was not a bar to an election, 
holding that the contract did not cover an appropriate unit because 
a unit could not be based on racial considerations. In Matter of Utah 
Copper Company, 35 N. L. R. B. 1295, 1300, the Board dismissed a 
petition for certification because the unit sought was inappropriate, 
stating, “the I. A. M. proposes to limit the Machinists unit to white 
employees, a limitation we have held not permissible.” In Matter of 
U. S. Bedding Co., 52 N. L. R. B. 382, 387-388, the employer and 
the A. F. L. objected to the establishment of an industrial unit on 
the ground that Negro employees in the unit outnumbered the white 
employees. The Board said, “a finding that the industrial unit is 
inappropriate because the majority of the employees in the unit are 
colored would be contrary to the spirit of the Executive Order and 
the established principles of this Board.” In Matter of Brashcar 
Freight Lines, Inc., 13 N. L. R. B. 191, 201, the Board dismissed a 
complaint based on charges of refusal to bargain, it appearing that 
the union lacked a majority in the unit when the Negro employees 
whom the union claimed were not properly within the unit were 
counted in the unit.

The most usual cases are those in which either the employer or 
one of the unions seeking certification asks to have a small group of

(F o o tn o te  continued on page 14)



14

their doors to Negroes and by fair treatment to make a bid 
for their vote.22 There have, of course, been many unions
(F o o tn o te  continued fro m  page 13 )

colored employees excluded from the unit. The Board’s oft repeated 
denial of such a request is usually phrased, “We have consistently 
held that, absent a showing of differentiation in functions which would 
warrant their exclusion, we will not exclude employees from a unit 
upon racial considerations. No such differentiation was established 
in the instant case.’’ Matter of Tampa Florida Brewery, Inc., 42 
N. L. R. B. 642, 645-646; Matter of Aetna Iron & Steel Co., 35
N. L. R. B. 136, 138; Matter of Southern Brewing Co., Inc., 42
N. L. R. B. 642, 645-646. The Board has followed this policy 
throughout its history. Matter of American Tobacco Co., Inc. 
(Reidsville, N. C.), 2 N. L. R. B. 198; Matter of American Tobacco 
Co., Inc. (Richmond, Va.), 9 N. L. R. B. 579; Matter of Union 
Envelope Company, 10 N. L. R. B. 1147; Matter of Floyd A. Fridell, 
11 N. L. R. B. 249; Matter of Interstate Granite Corp., 11 N. L. R. B. 
1046. The Board has applied the same rule to requests for units 
based on sex distinctions. Matter of General Electric Co., 43 
N. L. R. B. 453; Matter of Swift & Co., 11 N. L. R. B. 950, 955 :
Matter of McCall Corp., 8 N. L. R. B. 1087; Matter of California
Walnut Growers Ass’n, 18 N. L. R. B. 493. The New York State 
Labor Relations Board has refused to establish a unit limited to Ori­
ental employees. In re World Chinese American Restaurant, No. 
SE-6403, 8 L. R. R. 800.

22 Unfair labor practice cases before the National Labor Relations 
Board reveal numerous instances in which a union hitherto hostile to 
Negroes, has opened its doors, even in the South. In many of these 
cases the facts strongly indicate that the white workers had come to 
realize they could only secure effective bargaining if they enlisted their 
colored fellow workers in the union. See Matter of Osan Lumber 
Co., 42 N. L. R. B. 1073; Matter of American Cyanamid Co., 37 
N. L. R. B. 578, 585-586; Matter of Southern Cotton Oil Co., 26 
N. L. R. B. 177, 180, 182, 183; Matter of Memphis Furniture Mfg. 
Co., 3 N. L. R. B. 26, 31; Matter of Tex-O-Kan Flour Mills Co., 26 
N. L. R. B. 765, 787-790, 791; Matter of Bradley Lumber Co., 34 
N. L. R. B. 610. Nor is it always the white workers who organize 
the Negroes. There are instances of the reverse situation. Matter 
of Rapid Roller Co., 33 N. R. L. B. 557, 566-567, 570, enforced 126 
F. (2d) 452 (C. C. A. 7), certiorari denied. 317 U. S. 650. And 
colored workers have taken the lead in organizing their white fellow 
workers even in the South. Matter of Scripto Mfg. Co., 36 N. L. 
R. B. 411, 414. For other Board cases showing the Negro being 
accepted by his fellow white workers as an active union participant 
see Matter of Sewell Hats, Inc., 54 N. L. R. B. 278, enforced 143 F. 
(2d) 450 (C. C. A. 5), certiorari pending No. —, this Term; Mat-

( F o o tn o te  continued on page 15)



15

which have always admitted Negro employees on a basis of 
equality. Forty international unions, twenty six affiliated
(F o o tn o te  continued from  page 14)

ter of Western Cartridge Company, 43 N. L. R. B. 179, 196-200, 
enforced 138 F. (2d) SSI, certiorari denied 64 S. Ct. 780, 972; Mat­
ter of Brown Paper Mill Co., 36 N. L. R. B. 1220, 1227, 1229, 1233, 
enforced 133 F. (2d) 988 (C. C. A. S ); Matter of Planters Mfg. Co., 
10 N. L. R. B. 735, enforced 105 F. (2d) 750 (C. C. A. 4 ); Matter 
of Crossett Lumber Co., 8 N. L. R. B. 440, 470.

23 The reference following the name of each union is to the page 
of Peterson, Florence, Handbook of Trade Unions, American Council 
on Public Affairs (1944), where the membership provisions of the 
union’s international constitution are set forth: International Federa­
tion of Architects, Engineers, Chemists, and Technicians, p. 27; 
United Automobile, Aircraft, and Agricultural Implement Workers 
of America, p. 33; Barbers and Beauty Culturists Union of America, 
p. 40; United Cannery, Agricultural Packing, and Allied Workers 
of America, p. 76; United Electrical Radio and Machine Workers of 
America, p. 105; United Farm Equipment and Metal Workers of 
America, p. 121; International Fur and Leather Workers Union, p. 
134; United Furniture Workers of America, p. 136; United Gas, 
Coke, and Chemical Workers of America, p. 143; Federation of 
Glass, Ceramic and Silica Sand Workers of America, p. 145; Inland- 
boatmen’s Union of the Pacific, p. 174; International Longshortmen’s 
and Warehousemen’s Union, p. 202; National Maritime Union of 
America, p. 228; International Union of Mine, Mill, and Smelter 
Workers, p. 245; American Newspaper Guild, p. 256; United Office 
and Professional Workers of America, p. 260; United Packinghouse 
Workers of America, p. 264; United Retail, Wholesale, and Depart­
ment Store Employees of America, p. 330; United Shoe Workers of 
America, p. 344; State, County, and Municipal Workers of America, 
p. 352; United Steel Workers of America, p. 356; United Stone and 
Allied Products Workers of America, p. 361; United Transport Ser­
vice Employees of America, p. 389; Transport Workers Union of 
America, p. 392; Utility Workers Organizing Committee, p. 401; 
International Woodworkers of America, p. 411.

24 United Cement, Lime, and Gypsum Workers International 
Union, p. 81; Cigar Makers International Union of America, p. 84; 
United Hatters, Cap, and Millinery Workers International Union, p. 
161; Hotel and Restaurant Employees International Alliance and 
Bartenders International League, p. 170; International Union of 
Wood, Wire, and Metal Lathers, p. 181; Progressive Mine Workers, 
p. 246; American Federation of State, County, and Municipal 
Employees, p. 354; Brotherhood of Sleeping Car Porters, p. 347; 
American Federation of Teachers, p. 372; United Wallpaper, Crafts­
men, and Workers of North America, p. 402.



16

with the Congress of Industrial Organizations,23 ten with 
the American Federation of Labor24 and four independent25 
have provisions in their international constitutions ex­
pressly providing that all workers within the jurisdiction 
of the union are eligible to membership therein regardless 
of race or color.

In the railroad industry the refusal of the National 
Mediation Board to break up units into racial groups has 
afforded the Negro worker no protection. There are 
several reasons for this. Railway unions were established 
before there was any requirement that they be designated 
by a majority of the class. The National Government has 
placed representatives o f these unions upon adjustment 
boards with power to deny Negroes even the right to have 
their grievances heard by the carriers. In brief, the unions 
most hostile to Negroes have received the greatest statu­
tory powers thus making the plight of the Negro railway 
worker worse than the plight of Negro employees in any 
other large industry.26 The Negro firemen who until quite 
recently constituted a majority of the craft or class on 
many of the railroads in the South are fast being driven 
from the industry. This is being accomplished through the 
use of pow'ers which both the carriers and the Brotherhood 
assume the Railway Labor Act vests in the Brotherhood as 
the representative of their craft or class. We believe the 
Railway Labor Act does not vest such powers in the 
Brotherhood. But, if it should be construed as vesting such 
powers then it would clearly violate the Fifth Amendment.

25 International Airline Mechanics Association, p. 19; Foremen’s 
Association of America, p. 132; United Mine Workers of America, 
p. 248; United Aircraft Welders of America, p. 405.

26 Northrup, Herbert R., Organised Labor and the Negro, Har­
per’s (1944), p. 48.



17

I

A  labor organization which refuses, on account 
of race, to admit employees within a craft or 
class to membership in the organization cannot 
be the representative of that craft or class within 
the meaning of Section 2, Fourth, of the Railway 

Labor Act

A

Collective bargaining is a system whereby all 
employees whose terms of employment are 
being fixed participate within the union in 
determining the terms of their employment

The Railway Labor Act provides (Sec. 2, Fourth):

Employees shall have the right to organize and bar­
gain collectively through representatives of their 
own choosing. The majority of any craft or class of 
employees shall have the right to determine who shall 
he the representative of the craft or class for the 
purpose of the Act. * * *

As this Court pointed out in Order of Railroad Teleg­
raphers v. Railway Express Agency, 321 U. S. 342, 346, 
“ Collective bargaining was not defined by the statute which 
provided for it, but it generally has been considered to 
absorb and give statutory approval to the philosophy of 
bargaining as worked out in the labor movement in the 
United States.”  The Court then concluded that since the 
practices and philosophy of the trade union movement con­
sidered it essential that the union have the power to fix 
the terms of employment of all employees within the unit 
to the exclusion o f the negotiation of separate terms by any 
individual employee, Congress intended the representative



18

chosen by the majority to have such power. See also J. I. 
Case Co. v. National Labor Relations Board, 321 U. S. 332 
and Medo Photo Supply Corp. v. National Labor Relations 
Board, 321 U. S. 678. The Court did not have occasion in 
those cases to consider what protections for minorities, if 
any, Congress intended to provide when it placed such 
powers in the hands of the representative chosen by the 
majority. Exponents of the trade union viewpoint have 
always justified the displacement of the right to bargain 
individually with the right of collective bargaining by argu­
ing that the individual employee is so impotent in bargain­
ing with his employer that instead of losing his freedom of 
contract, he, for the first time, gains freedom of contract 
when the employer must deal with a union through which 
the employee may make his wishes effective.27 Every ex­
ponent of collective bargaining whom we have been able to 
discover has defined collective bargaining as bargaining by 
an organization to which each worker affected may belong 
as long as he obeys all its reasonable rules. This rationale 
of collective bargaining was explained to Congress by its 
proponents when the bills which became the 1934 Amend­

27 “The case for or against collective bargaining turns upon the 
issue of competition and personal freedom. * * "* Its opponents 
argue that it deprives the laborer of his individual liberty to dispose 
of his services upon such terms as he pleases; it is retorted that his 
individual freedom is an impotent abstraction and that he must endure 
the authority of a union, in whose control he has a voice, or else sub­
mit to the dictation of a business corporation.” Hamilton, Walton 
H., Collective Bargaining in Encyclopedia of the Social Sciences, vol. 
Ill, p. 630. See also Reports of U. S. Industrial Commission, vol. 
17, 57th Cong., 1st Sess., H. R. Doc. No. 186 Washington (1901), 
p. LXXVI; Webb, Sidney and Beatrice, Industrial Democracy, Lon­
don (1920 ed.), pp. 217-218, 840-842; Mitchell, John, Organised 
Labor, Philadelphia (1903), pp. 3-4, 75; Yoder, Dale, Labor Eco­
nomics and Labor Problems, New York (1933), p. 438; Daugherty, 
Carroll R., Labor Problems in American Industry, New York (1933), 
p. 415; Taylor, Albion G., Labor Problems and Labor Law, New 
York (1938), pp. 86-87.



19

ments to the Railway Labor Act of 1926 and the National 
Labor Relations Act were pending.28 Thus the following 
colloquy took place between two Senators, both of whom 
were active proponents of both bills:29

Senator Wagner. * * * I think it has been recognized 
that, due to our industrial growth, it is simply absurd 
to say that an individual, one of 10,000 workers, is 
on an equality with his employer in bargaining for 
his wages. The worker, if he does not submit to the 
employer’s terms, faces ruin for his family. The 
so-called freedom of contract does not exist under 
such circumstances.

The only way that the worker will be accorded the 
freedom of contract to which, under our theory of 
government, he is entitled, is by the intrusion of the 
Government to give him that right, by protecting 
collective bargaining. When 10,000 come together 
and collectively bargain with the employer, then there 
is equality of bargaining power.

28 S. 2926, 73rd Cong., 2nd Sess., which was the forerunner of S. 
1958, 74th Cong., 1st Sess., which became the National Labor Rela­
tions Act, was pending before the Senate contemporaneously with S. 
3266, 73rd Cong., 2nd Sess., which became the 1934 Amendments to 
the Railway Labor Act. The Senate Report on S. 2926 (S. Rep. No. 
1184, 73rd Cong., 2nd Sess.) was submitted on May 26, 1934, while 
the Senate Report on S. 3266 (S. Rep. No. 1065, 73rd Cong., 2nd 
Sess.) was submitted on May 21, and the House Report (H. Rep. 
1944, 73rd Cong., 2nd Sess.) on the comparison bill in the House 
was submitted on June 11, 1934. Because of the contemporaneous 
consideration of the two measures by Congress, as well as because 
Congress has stated in its reports that the collective bargaining fea­
tures of the two bills were in substance the same (S. Rep. No. 573, 
74th Cong., 1st Sess., pp. 13-14; H. Rep. No. 1147, 74th Cong., 1st 
Sess., p. 22), this Court has treated the two Acts as having the same 
meaning. National Labor Relations Board v. Jones & Laughlin Steel 
Corp., 301 U. S. 1, 44-45, which followed Virginian Ry. Co. v. System 
Federation, 300 U. S. 515 and Order of Railroad Telegraphers v. 
Railway Express Agency, 321 U. S. 342 which followed J. I. Case 
Co. v. National Labor Relations Board, 321 U. S. 332.

29 Hearings before the Senate Committee on Education and Labor, 
73rd Cong., 2nd Sess., on S. 2926 (March 14, 1934), p. 17.



20

Senator LaFollette. This is an application, is it 
not, of the same general principle which was involved 
in the Railway Labor Act, to the entire industrial 
field.

Senator Wagner. Exactly.

Similarly, Professor Robert L. Hale of the Law School 
at Columbia University testified: 80

I f a man wants to work in a steel plant, he does 
not just go out and work according to his own ideas 
about how it should be worked; he has to join an 
organization. Normally in the case of a steel plant, 
he becomes an employee of a steel company, and then 
he has no freedom as to the details of his work what­
ever; he is a non-voting member of a society. Now, 
if he belongs to a union in a closed-shop industry, it 
is perfectly true he has no freedom to work without 
being a member of the union, but he has a little more 
freedom through the brotherhood of his union against 
the restraint imposed upon him by the employer.

Now, of course, any system of organization is 
liable to have faults at times. A  union itself may 
possibly have faults, and sometimes it has been op­
pressive of its members, but it is in any event a choice 
between evils. Government of any sort has certain 
evils, or may have at particular times, but the only 
alternative is anarchy, where the evils would be much 
greater. If he is subject to be governed by the rules 
of his union he presumably has a little more control 
over what those rules are than if he is governed solely 
by the rules laid down by his employer.

The Senate Committee Report on the bill which became 
the National Labor Relations Act in listing the protections 
for minorities afforded by the bill stated: * 31

80 Hearings before the Senate Committee on Education and Labor, 
73rd Cong., 2nd Sess., on S. 2926, p. 216. To the same effect see the 
testimony of Dr. Francis J. Haas at p. 116.

31 S. Rep. No. 573, 74th Cong., 1st Sess., pp. 13-14.



21

An organization which is not constructed to prac­
tice genuine collective bargaining cannot be the rep­
resentative of all employees under this bill.

We do not believe an organization can be said to be 
“ consti’ucted to practice genuine collective bargaining”  
when it is organized merely to further the aims of one of 
the racial groups within the unit, as is the Brotherhood in 
this case. On several occasions courts and administrative 
agencies have considered the question of whether a union 
which excluded employees within the unit from membership 
could serve as a statutory representative. The first con­
sideration of that problem occurred in Matter of Honde 
Engineering Corp., 1 N. L. R. B. (old) 35, 43-44 (August 30, 
1934), which was decided by the National Labor Relations 
Board established under Public Resolution No. 44, 73rd 
Cong., H. J. Res. 375. In stating the general proposition 
that an employer had a duty to recognize the power of a 
union, chosen by a majority of the employees in an appro­
priate unit, to bind all employees in the unit, these three 
experts in the field of collective bargaining stated certain 
limitations on that proposition:

Nor does this opinion lay down any rule as to 
what the employer’s duty is where the majority group 
imposes rules of participation in its membership and 
government which exclude certain employees whom 
it purports to represent in collective bargaining * * * 
or where the majority group has taken no steps 
toward collective bargaining or has so abused its 
privileges that some minority group might justly ask 
this Board for appropriate relief.

The next consideration of this question was by the Court 
of Appeals for the District of Columbia in Brotherhood of 
Railway Clerks v. United Transport Service Employees, 
137 F. (2d) 817, 821-822, reversal on jurisdictional grounds, 
320 U. S. 715. The Court of Appeals there set aside a



22

certification by the National Mediation Board of a union 
which excluded Negro employees. Chief Justice Gronek, 
concurring, stated (137 F. (2d), at 821-822)

* * * the Brotherhood, designated by the Board 
as the bargaining agent of the [Negro] porters, is a 
white organization which does not permit membership 
by the colored employees of the railroads. As a result, 
the effect of the action of the Board is to force this 
particular group of employees to accept representa­
tion by an organization in which it has no right to 
membership, nor right to speak or be heard in its own 
behalf. This obviously is wrong and, if assented to, 
would create an intolerable situation. * * * that the 
Brotherhood, in combination with the employer, 
should force on these men this proscription and at the 
same time insist that Brotherhood alone is entitled to 
speak for them in the regulation of their hours of 
work, rates of pay and the redress of their grievances 
is so inadmissible, so palpably unjust and so opposed 
to the primary principles of the Act as to make the 
Board’s decision upholding it wholly untenable and 
arbitrary. The purpose of the Act, as is apparent on 
its face, and as has been recognized and confirmed by 
the Supreme Court and this Court in many decisions, 
is to insure freedom of choice in the selection of rep­
resentatives. * * * nothing in the Act nor in its con­
struction by the courts can be found to justify such 
coercive action as to force upon any class of em­
ployees representation through an agency with whom 
it has no affiliation nor right of association. * * * to 
perpetuate it by law would be to impose a tyranny in 
many respects analogous to “ taxation without rep­
resentation.”  And if anything is certain, it is that 
the Congress in passing the Act never for a moment 
dreamed that it would be construed to diminish the 
right of any citizen to follow a lawful vocation on the 
same or equal terms with his neighbor. In this view, 
to enforce the Board’s decision would be contrary to 
both the word and spirit of our laws.



23

The National Labor Relations Board lias on two occa­
sions expressed a doubt that a union which denied member­
ship on racial grounds to employees within the unit, could 
act as the statutory bargaining representative for that unit. 
In Matter of U. S. Bedding Company, 52 N. L. R. B. 382, the 
Board stated:

The circumstance that the membership of the C. I. 0. 
is exclusively colored is equally irrelevant. The rec­
ord refutes any claim,that the C. I. 0 . discriminates 
against white employees in membership or otherwise. 
The constitution of the C. I. 0. International prohibits 
racial discrimination, and the record does not show 
that any white employee has been refused member­
ship. There is no warrant, therefore, for assuming 
that the C. I. 0 . discriminates against white persons, 
and consequently no occasion for passing upon the 
question whether a union which denies membership to 
employees on the basis of race may nevertheless rep­
resent a unit composed in part of members of the 
excluded race. We find that the industrial unit is 
appropriate.

In Matter of Bethlehem-Alameda Shipyard, Inc., 53 N. L. 
R. B. 999, 1016, the Board said

We entertain grave doubt whether a union which dis- 
criminatorily denies membership to employees on the 
basis of race may nevertheless bargain as the exclu­
sive representative in an appropriate unit composed 
in part of members of the excluded race.

The rationale of collective bargaining compels the con­
clusion that a union which denies membership to Negro em­
ployees in the craft cannot act as the representative of a 
unit composed in part of the excluded employees. Where 
the justification for denying individuals and minorty groups 
the right to contract on their own behalf fails, the rule that 
the union chosen by the majority binds the minority is clearly •

•



24

Experts in the field of labor relations recognize that 
“ the only way the minority workers can express their vews 
and exert their influence is through union membership.”  32 
It seems clear that the denial of the opportunity to a par­
ticular group within the craft or class to participate in the 
decisions and functioning of the majority representative 
creates irresponsibility destructive of the industrial peace 
which the Act was framed to safeguard. The establishment 
of working conditions and the administration of collective 
agreements was left in the Act “ to those voluntary proc­
esses whose use Congress had long encouraged to protect 
those arteries of interstate commerce from industrial 
strife” . General Committee of Adjustment v. Missouri- 
Kansas-Texas Railroad, 320 U. S. 323, 337.33 It was thus 
the judgment of Congress that uncompelled adjustment of 
differences between representatives of the railroads and the 
employees would promote mature and stable relations be­

32 Golden, Clinton S. and Ruttenberg, Harold The Dynamics
of Industrial Democracy, Harpers (1942), pp. 211, 214: “ It is
* * * a fact of industrial democracy, written into the law, that it is 
a one-party system of democracy. In this respect it differs from our 
traditional two-party system of political democracy. * * * To have 
a voice in making the decisions of the majority the minority or non­
union workers have to join the union.” “ * * * industrial democracy 
functions through a one-party system. All workers are represented 
by one union and they are not citizens of industry until they belong 
to it.”

33 See also Chief Justice H u g h e s ’  comment on the 1926 Railway 
Labor Act in Texas & New Orleans Railroad Co. v. Brotherhood of 
Railway & Steamship Clerks, 281 U. S. 548, 569: “All the proceed­
ings looking to amicable adjustments and to agreements for arbitra­
tion of disputes, the entire policy of the Act, must depend for success 
on the uncoerced action of each party through its own representative, 
to the end that agreements satisfactory to both may be reached and 
the peace essential to the uninterrupted service of the instrumentalities 
of interstate commerce may be maintained.”

inapplicable. This is true in every instance where members
of the craft are excluded from membership in the organ­
ization which conducts the bargaining.



25

tween them. Voluntary participation in the adjustment of 
disputes was viewed by Congress as indispensable to a re­
sponsible adherence by labor organizations to the commit­
ments made in the mediation and arbitration process. But 
the voluntarism which is crucial in the statutory scheme 
would be set at naught if groups within the unit were com­
pelled to accept the decisions of the majority without the 
opportunity for participation in their formulation. Such 
compulsion creates an atmosphere favorable to industrial 
strife.

It is impossible for the Brotherhood to represent the 
Negro firemen fairly and impartially so long as they are 
barred from membership. Its action cannot be represen­
tative until the Negro fireman can go to meetings, know 
what problems the white firemen are discussing, let the white 
firemen hear his views and his problems, participate in 
framing the bargaining policy and proposals and in the 
nomination and election of union officers, bargaining and 
grievance committees.

In the instant case the Brotherhood has been trying to 
drive the Negro firemen off of the railroads. But even in 
instances where a union has no intention to seek a collective 
bargaining agreement which discriminates against a racial 
minority, the effect of excluding employees of a minority 
race from membership in the union will invariably result in 
the terms of the agreement being more favorable to the ma­
jority than to the minority. There are innumerable pro­
visions in any collective bargaining agreement which affect 
employees in different ways. For instance, the kind of a 
seniority system, whether it is departmental or plant wide, 
affects one group differently from another. When all the 
employees to be affected can be heard in open meeting as 
to the advantages of one system over another and vote on 
the system for which the union will press in its bargaining 
negotiations, the will of the majority should govern. But



26

where a racial group is excluded from membership, although 
they together with a minority of the group in the union 
might favor a different seniority system from that favored 
by a majority of the union, the system favored by the ma­
jority of the union will prevail, although the majority of 
the union may actually he a minority of the craft or class.

From the Declaration of Independence to date, the prin­
ciple that the only legitimate government is one in which 
the governed participate, has been one of the most basic 
tenets of our political philosophy. The framers of the 
Declaration of Independence denounced as impossible the 
notion that they could be represented in Parliament by 
someone whom they did not elect. In the sphere of the 
government of conditions of employment no less than in 
any other area of government, it is impossible for a group 
of employees of one race to in fact be represented by an 
organization composed solely of employees of another race. 
And the sponsors of the Railway Labor Act recognized that 
“ the labor union is really a form of government” .34

84 Statement of Coordinator of Transportation Eastman, Hearings 
before the Senate Committee on Interstate Commerce, 73rd Cong., 
2nd Sess., on S. 3266, p. 146. See also his statement before the House 
Committee on Interstate and Foreign Commerce, 73rd Cong., 2nd 
Sess., on H. R. 7650, pp. 33-34.



27

B

The Railway Act violates the Fifth Amend­
ment if it empowers a union composed solely 
of members of one race to act as statutory 
bargaining representative for the craft in­
cluding members of another race whom it ex­

cludes from membership

The power to fix wages, hours of work and other condi­
tions of employment binding on employees who neither con­
sent to the terms established nor participate in their de­
termination is governmental in character. As we have 
shown (pp. 20-21, supra) sponsors of the Railway Labor 
Act in Congress spoke of the governmental character of the 
trade unions ’ functions. Trade unions for years have taken 
the same position.37 This Court has held that the delega­
tion to a majority of coal miners and the producers of a 
majority o f the tonnage of coal, in specified areas, of the 
power to fix maximum hours and minimum wages binding 
on all miners and all producers in the area, was a delegation 
of a “ governmental function.”  Carter v. Carter Coal Co., 
298 U. 8. 238, 311.

87 Perlman, Selig, and Taft, Philip, History of Labor in the United 
States, 1896-1932, MacMillan (1935), p. 10, “The trade agreement
* * * * is a written constitution of a new type of government, an 
industrial government, established by bargaining as an organized 
group. * * * the industrial government envisaged by unionism was 
a highly integrated government of unionized workers and of asso­
ciated employer managers, jointly conducting the government with 
‘laws’ mandatory upon the individual employer and employee.’’ Cr. 
National Labor Relations Board v. Highland Park Mfg. Co., 110 F. 
(2d) 632, 638 (C. C. A. 4).



28

The powers which the Railway Labor Act confers on the 
representative selected by a majority of the craft or class, 
have several additional aspects which render them govern­
mental in character, over and above the fact of fixing terms 
of employment binding on all employees in the craft or 
class. The representative is granted power to bind all the 
employees not only in negotiation of the terms of employ­
ment but in their interpretation and application as well. It 
is clothed not only with “ legislative”  powers to fix rules 
but with the “ judicial”  power to determine as a member of 
a governmental agency, the National Railroad Adjustment 
Board, how the rules which it established shall be inter­
preted and applied. It is also clothed with the power to 
supersede the National Railroad Adjustment Board com­
pletely and to create in such manner as it and the employer 
shall agree, substitute machinery for interpreting and 
applying the rules it makes.88 And this Court has held that 
employees are thereby excluded from resort to the courts 
for a determination of their rights under collective agree­
ments.80

•

The representative thus is constituted not only the legis­
lative branch of the government controlling his industrial 38 39

38 Section 3, First, of the Railway Labor Act provides for the crea­
tion of a National Railroad Adjustment Board, in which half of the 
members shall be selected by labor organizations. Section 3, Second, 
provides “nothing in this section shall be construed to prevent any 
individual carrier, system, or group of carriers and any class or classes 
of its or their employees, all acting through their representatives, 
selected in accordance with the provisions of this Act, from mutually 
agreeing to the establishment of system, group, or regional boards of 
adjustment for the purpose of adjusting and deciding disputes of the 
character specified in this section.” It has been held that every 
employee in the craft or class is bound by the system established in 
such a collective agreement, and cannot prosecute his grievance in any 
manner other than that specified. Atlantic Coast Line R. Co. v. Pope, 
119 F. (2d) 39 (C. C. A. 4).

39 General Committee v. Missouri-Kansas-Texas R. Co., 320 U. S. 
323; General Committee v. Southern Pacific Co., 320 U. S. 338.



29

life, but the judicial and probably the executive, as well. 
And this whole little sub-government is removed from the 
controls of political government through this Court’s hold­
ing that its acts are not subject to review in the judicial 
system of the nation.

The Railway Labor Act is an instance of the growing 
tendency within our political institutions of conferring self- 
regulatory power upon the groups to be regulated.40 Con­
gress adopted this method not only because of the practical 
difficulties in vesting in government officials the task of 
regulating such complicated and diverse problems,41 but 
also because it believed that employees and employers would 
be more likely to abide by the rules and regulations if the 
parties themselves established those rales and regulations. 
I f  the group to which such self-regulatory powers are dele­
gated, is composed of all the persons to be regulated and 
organized in such a manner as to afford all its members a 
democratic participation in their self government, the group 
would seem to be a proper one to which to make the delega­
tion. It would still have to exercise its powers subject to 
the restraints that bind Congress (see pp. 33-35, infra). 
But as a depository of such delegated power, a group so 
organized, with its regulatory powers limited to those who 
had the opportunity to join the group so long as they obeyed 
its reasonable rules, would appear to be proper. We be­

40 Notes: Delegation of Power to Private Parties. 37 Col. L. Rev. 
447 (March 1937); Delegation of Governmental Power to Private 
Groups, 32 Col. L. Rev. 80 (January, 1932).

41 See the testimony of Dr. Francis Haas during hearings on the 
Wagner Bill where he said: “The outstanding defect of government 
as an instrument of social justice is that it cannot get enough money 
appropriated to police and enforce labor standards. Other defects are 
present, but this it seems is the principal one. The alternative is 
genuine collective bargaining.” Hearings before the Senate Commit­
tee on Education and Labor, on S. 2926, 73rd Cong., 2nd Sess., p. 116.



30

lieve Congress intended that only such a group should act 
as statutory representative under the Railway Labor Act.

The Brotherhood is not such a group. It is an organiza­
tion composed of only a portion of the employees in the 
craft or class. It refuses by reason of their race to admit 
petitioners and other Negro firemen. Nevertheless it claims 
and has attempted to exercise the power to govern employ­
ment terms for the Negro firemen. I f the Act be construed 
to permit the Brotherhood to qualify as a statutory repre­
sentative, it allows a white majority vast powers over a 
Negro minority which has no representation in fact. So 
construed it is unconstitutional. In Carter v. Carter Coal 
Co., 298 U. S. 238, 310-311, the Court in holding the delega­
tion of power to the majority there involved, violative of 
the Fifth Amendment said:

The power conferred upon the majority is, in 
effect, the power to regulate the affairs of an unwill­
ing minority. This is legislative delegation in its 
most obnoxious form ; for it is not even delegation to 
an official or an official body, presumptively disin­
terested, but to private persons whose interests may 
be and often are adverse to the interests of others in 
the same business. The record shows that the condi­
tions of competition differ among the various locali­
ties. In some localities, they also compete with the 
mechanical production of electrical energy and of 
natural gas. Some coal producers favor the code; 
others oppose i t ; and the record clearly indicates that 
this diversity of view arises from their conflicting 
and even antagonistic interests. The difference be­
tween producing coal and regulating its production 
is, of course, fundamental. The former is a private 
activity; the latter is necessarily a governmental 
function, since, in the very nature of things, one per­
son may not be entrusted with the power to regulate 
the business of another, and especially of a competi­
tor. And a statute which attempts to confer such



31

power undertakes an intolerable and unconstitutional 
interference with personal liberty and private prop­
erty. The delegation is so clearly arbitrary, and so 
clearly a denial of rights safeguarded by the due 
process clause of the Fifth Amendment, that it is 
unnecessary to do more than refer to decisions of 
this court which foreclose the question. Schechter 
Corp. v. United States, 295 U. S. at 537; Eubank v. 
Richmond, 226 U. S. 137, 143; Seattle Trust Co. v. 
Roberge, 278 U. S. 116, 121-122.

A  construction of the Railway Labor Act which would 
permit the Brotherhood to act as the representative of the 
craft or class has a vice not present in the Carter case, in 
that it would violate our constitutional policy against dis­
crimination on account of race. Smith v. Allwright, 321 
U. S. 649, 664-665. Cf. Mitchell v. United States, 313 U. S. 
80, 94; Gibson v. Mississippi, 161 U. S. 565, 591. So long as 
petitioners because of race are barred from membership in 
the Brotherhood and participation in its affairs equally 
with other members of the craft or class, they are deprived 
by reason of race of the right to share in the government 
of the craft or class. Just as admission to membership in 
the Democratic Party in Texas is a condition to participa­
tion in political government, admission to the Brotherhood 
is a condition to participation in industrial government of 
the craft or class of firemen.

II

A  collective bargaining agreement which by its 
terms requires a carrier to discriminate against 
employees within the craft or class because of 
race in apportioning work is illegal under the 

Railway Labor Act

If, as we have argued above, the Brotherhood is not 
qualified to act as the statutory representative of the craft



32

or class of firemen, its collective bargaining agreement is 
invalid. Under the Railway Labor Act a carrier can bar­
gain collectively with a union for the craft or class only if 
the union is entitled to act as the statutory representative 
of the craft or class. The Railway Labor Act imposes on 
the carrier “ the affirmative duty to treat only with the true 
representative”  and “ the negative duty to treat with no 
other.”  Virginian Ry. v. System Federation, 300 U. 8. 515, 
548.

Respondent railroads have violated the Railway Labor 
Act, not only by recognizing the Brotherhood when that 
organization was not the lawful representative of the rail­
roads’ employees, but also by entering into agreements with 
the Brotherhood which are, in effect, closed-shop contracts. 
Section 2, Fifth, of the Railway Labor Act forbids the 
execution of closed-shop contracts on the railroads. Yet 
the employment preference granted in the collective agree­
ments here involved, although phrased in terms of race, in 
fact operates to favor Brotherhood members over non­
members; no Negro firemen and all white firemen are mem­
bers of the Brotherhood (No. 37, R. 6; No. 45, R. 83, 86). 
Thus by gradually forcing the Negroes off the roads, the 
agreements will achieve the same end as the statute forbids, 
a monopoly of jobs in the hands of the Brotherhood mem­
bers.

Moreover, aside from the ultimate effect of the contracts, 
they have an immediate effect which the statute outlaws. 
Section 2, Fifth bans not only absolute closed-shop contracts 
but also bans contracts which achieve any preferential treat­
ment of Brotherhood members. It was expressly noted, 
when the 1934 Amendments to the Railway Labor Act, con­
taining the present ban on closed-shop contracts, was pend­
ing in Congress, that those provisions would make illegal 
certain then existing contracts between one of the national



33

If the Court should determine that the Railway Labor 
Act permits a representative and a carrier to make and put 
into effect a collective agreement which drives from their 
jobs a racial minority, it is to that extent violative of the 
Fifth Amendment. Racial discrimination is by its very na­
ture forbidden to those who exercise government powers, 
which in a democracy are subject to the “ mandates of 
equality and liberty that bind officials everywhere.”  Nixon 
v. Condon, 286 U. S. 73, 88-89.

These constitutional guarantees may not be nullified 
“ through casting * * # (a regulatory) process in a form 
which permits organizations to practice racial discrimina­
tion * * * Smith v. Allwright, 321 U. S. 649, 664. Here 
the Brotherhood is exercising, and insisting upon exercis­
ing, the right granted by the Railway Act to act as the exclu­
sive representative of the entire craft of firemen. ‘ ‘ Misuse 
of power, possessed by virtue of State law and made pos­
sible only because the wrongdoer is clothed with the au­
thority of State law, is action taken ‘ under color o f ’ State 
law.”  United States v. Classic, 313 U. S. 299, 326. It is un­
necessary to decide to what extent this transforms the 
Brotherhood into a governmental agency. “ The pith of the 
matter is simply this, that when those agencies are invested 
with an authority independent of the will of the association 
in whose name they undertake to speak, they become to that 
extent the organs of the State itself, the repositories of

42 H. Rep. No. 1944, 73rd Cong., 2nd Sess., pp. 14-16; S. Rep. 
No. 1065, 73rd Cong., 2nd Sess., Part 2, p. 2; Hearings before the 
Senate Committee on Interstate Commerce on S. 3266. 73rd Cong., 
2nd Sess., pp. 156-157; Hearings before the House Committee on 
Interstate and Foreign Commerce on H. R. 7650, 73rd Cong., 2nd 
Sess., pp. 28-30, 94-105.

railroad unions and some of the carriers which required that
at least a specified percentage of the employees in certain
classes be members of the union.42



3 4

official power * * *. The test is not whether the members 
of the Executive Committee are the representatives of the 
State in the strict sense in which an agent is the represen­
tative of his principal. The test is whether they are to be 
classified as representatives of the State to such an extent 
and in such a sense that the great restraints of the Consti­
tution set limits to their actions.”  Nixon v. Condon, 286 
U. S. 73, 88-89.

Unless this argument is valid, the Federal Government 
may confer powers on unions which they may exercise in 
a manner forbidden to the Government itself; powers to 
suppress a racial minority and deny it “ the right to work 
for a living in the common occupations of the community. ’ 143 
I f  the Railway Labor Act provides such a ready means of 
evading our constitutional guarantees, it is invalid. It does 
not so provide, however. It does not permit bargaining 
representatives “ to fix hours and wages without standards 
or limitations”  and “ according to their own views of ex­
pediency”  (Carter v. Carter Coal Co., 298 U. 8. 238, 318). 
Rather it requires that they adhere to “ the philosophy of 
bargaining as worked out in the labor movement in the 
United States”  (Order of Railroad Telegraphers v. Rail­
way Express Agency, 321 U. S. 342, 346) by entering into 
agreements “ which reflect the strength and bargaining 
power and serve the welfare of the group”  (J. I. Case Co. 
v. National Labor Relations Board, 321 U. S. 332, 338).

So construed, the Act confers no powers the exercise of 
■which cannot be kept within reasonable bounds. I f it is 
construed otherwise, it cannot be sustained. 43

43 Truax v. Raich, 239 U. S. 33, 41. As pointed out in that case 
(239 U. S. at p. 43), it is manifestly no defense that the exclusion 
from opportunity to work is not complete or that the discrimination 
takes the form of a quota system.



35

For, the very idea that one man may be compelled to 
hold his life, or the means of living, or any material 
right essential to the enjoyment of life, at the mere 
will of another, seems to be intolerable in any country 
where freedom prevails, as being the essence of 
slavery itself.44

The Court should reach the same result were it to view 
the collective labor agreements as mere contracts between 
private parties instead of as an exercise of delegated legis­
lative powers to govern conditions of employment. As one 
Federal court, very aptly, said:45

It would be a very narrow construction of the consti­
tutional amendment in question and of the decisions 
based upon it, and a very restricted application of 
the broad principles upon which both the amendment 
and the decisions proceed, to hold that, while state 
and municipal legislatures are forbidden to discrimi­
nate against Chinese in their legislation, a citizen of 
the state may lawfully do so by contract, which the 
courts may enforce. # * * Any result inhibited by the 
constitution can no more be accomplished by contract 
of individual citizens than by legislation, and the 
courts should no more enforce the one than the other. 
This would seem to be very clear. * * * Such a con­
tract is absolutely void and should not be enforced 
in any court * * #.

Since no court could constitutionally give any legal 
effect to the discriminatory provisions of the collective 
agreements here involved, the Court should declare their 
invalidity and enjoin the parties thereto from giving them 
further application.

44 Yick Wo v. Hopkins, 118 U. S. 356, 370.
45 Gandolfo v. Hartman, 49 Fed. 181, 182-183.



36

Conclusion

Legislative ingenuity, inspired by the exigencies of our 
increasingly complex society, continues to devise new in­
strumentalities for the exercise of governmental functions. 
Judicial regulation must keep pace with such legislative 
innovations. Otherwise, tyranny can and will reassert it­
self in new guise. Such a new mode of oppression is here 
exposed to judicial scrutiny. Its incompatibility with our 
fundamental law is revealed. It is submitted that the judg­
ments herein appealed from should be reversed.

Respectfully submitted,

T hitkgood M a r sh a ll ,
W illia m  H. H astie ,

Counsel for National Association for 
the Advancement of Colored People.

%



Gkmrt at States
O c t o b e r  T e r m  1944

IN THE

No. 37
TOM TUNSTALL,

Petitioner,
v.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN, OCEAN LODGE NO. 76, PORT NORFOLK 
LODGE NO. 775, W. M. MUNDEN and NORFOLK SOUTH­
ERN RAILWAY COMPANY.

On Certiorari to the United States Circuit Court of Appeals 
for the Fourth Circuit.

No. 45
BESTER WILLIAM STEELE,

Petitioner,
v.

LOUISVILLE & NASHVILLE RAILROAD CO., a corporation; 
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN, W. H. THOMAS, J. P. ADAMS and B. F. 
McGILL.

On Certiorari to the Supreme Court of Alabama.

MOTION FOR LEAVE TO FILE BRIEF AS A M IC U S  
C U R IA E  AND BRIEF IN SUPPORT THEREOF

A M E R I C A N  C I V I L  L I B E R T I E S  U N IO N ,
A m icu s Curiae.

E D G A R  W A T K I N S ,  
o f  the G eorg ia  Bar,

J O H N  D . M IL L E R , 
o f  the L ou isian a  Bar,

J O  D R A K E  A R R I N G T O N , 
o f  the M ississippi Bar,

S H I R L E Y  A D E L S O N , *
A R T H U R  G A R F I E L D  H A Y S , 

o f  the N e w  Y o rk  Bar,

R . B E V E R L Y  H E R B E R T , 
o f  the S outh  C arolina Bar,

T . P O P E  S H E P H E R D ,
J O R D A N  S T O K E S  III , 

o f  the T ennessee B ar,
H O W A R D  B. L E E ,

o f  the W e st  V irg in ia  Bar,
O f Counsel.





I N D E X

PAGE
Motion for Leave to File Brief as A micus Curiae....... 1

BRIEF
Statement of Interest of A merican Civil Liberties 

Union ..............................................................................  4
Restrictions on the E mployment and Advancement 

of Negro L ocomotive F iremen..................................  4
State of the Cases..............................................................  7
Importance of the Question............................................  8
Point I— The restrictions on the employment of Negro 

locomotive firemen contained in the agreements be­
tween the Brotherhood and the railroads are 
against public policy and are unlawful......................  10

Point II— The rights of petitioners are protected by 
the Fifth Amendment....................................................  45

Conclusion ..........................................................................  48

Table of Cases

Cameron v. International Alliance, 448 N. J. Eq. 41,
178 Atl. 692.—..................................................................  14

Corrigan v. Buckley, 271 IT. S. 323..................................  15
Gerald R. Hill, et al. v. International Brotherhood of 

Boilermakers, Iron Shipbuilders and Helpers of 
America, et al. (Superior Court, R. I., January, 
1943) (unreported) .................... -........... -.................... 44

General Committee, etc. v. M. K. T. R. R. Co., 320 
U. S. 323............................................ -..............................  17

General Committee v. Southern Pacific Co., 320 U. S.
338 ....................................................................................  17



ii

PAGE
Hirabayashi v. United States, 320 U. S. 81........... ........ 14
Joseph James, etc. v. Marinship Corporation, et al. 

(Superior Court, Calif., Feb. 17, 1944, on appeal to 
the California Supreme Court) (unreported).........  13

Nixon v. Condon, 276 U. S. 73.... ......................................15,16
Pierey v. Louisville & N. E. Co., 198 Ivy. 477, 248 

S. W. 1042.......................................................................... 13
Reilly v. Hogan, 32 N. Y. ,S. (2d) 864, a ff ’d 264 App.

Div. 855 ............ ................................................................. 12
Schwab v. Moving Pictures Machine Operators Local,

109 Pae. (2d) 600 (Oregon)................................... ...... 11
Smetherham v. Laundry W orkers’ Union, 44 Cal. App.

(2d) 131, 111 Pac. (2d) 948...................... ................... 12
Switchmen’s Union v. National Mediation Board, 320 

U. S. 297......................... .................................................... 16
Terminal Railroad Association v. Brotherhood of Rail­

road Trainmen, 318 U. S. 1.........................................  9
Truax v. Raich, 239 U. S. 33 ...........................................  14
Virginian Railway v. Federation, 300 U. S. 515 ...........  10
Walsche v. Sherlock, 110 N. J. Eq. 223, 159 Atl. 661 13 
Wilson rf. Newspaper and Mail Deliveries Union,

123 N. J. Eq. 347, 197 Atl. 720 ...................................  11

Authorities

Northrup, “ Organized Labor and the Negro”  (1944), 
Chapter III .............. .......................................................  6, 8

“ Proposed Report of the Federal Coordinator of 
Transportation on Alleged Discrimination Against 
Colored Railway Employees of Illinois Central 
System,”  unpublished manuscript in U. S. Archives 8

Railway Labor Act, Section 2(5) .................................  9,10



IN THE

Court of tlfr luttrfr
October Term 1944

--------------- —  i » n —------------

No. 37
TOM TUNSTALL,

Petitioner,
v.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN, OCEAN LODGE NO. 76, PORT NORFOLK 
LODGE NO. 775, W. M. MUNDEN and NORFOLK SOUTH­
ERN RAILWAY COMPANY.

On Certiorari to the United States Circuit Court of Appeals 
for the Fourth Circuit.

No. 45
BESTER WILLIAM STEELE, _

Petitioner,
v.

LOUISVILLE & NASHVILLE RAILROAD CO., a corporation; 
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN, W. H. THOMAS, J. P. ADAMS and B. F. 
McGILL.

On Certiorari to the Supreme Court of Alabama.

--------- mm  % m » --------

Motion for Leave to File Brief as Am icus Curiae

May it Please the Court:

The undersigned, as counsel for the American Civil 
Liberties Union, respectfully moves this Honorable C ourt 
for leave to file the accompanying brief in these cases as



2

Amicus Curiae. The consent of the attorney for the peti­
tioners to the filing of this brief has been obtained. At­
torneys for the respondents have refused to grant their 
consent.

Special reasons in support of their motion are set out 
in the accompanying brief.

November 14, 1944.

A r t h u r  G a r f i e l d  H a y s ,

Counsel for American Civil Liberties Union, 
Amicus Curiae.



3

GImtrt ai Hit Uniti'ft Stall's
October Term 1944

IN THE

No. 37
TOM TUNSTALL,

Petitioner,
v.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN, OCEAN LODGE NO. 76, PORT NORFOLK 
LODGE NO. 775, W. M. MUNDEN and NORFOLK SOUTH­
ERN RAILWAY COMPANY.

On Certiorari to the United States Circuit Court of Appeals 
for the Fourth Circuit.

No. 45
BESTER WILLIAM STEELE,

Petitioner,

LOUISVILLE & NASHVILLE RAILROAD CO., a corporation; 
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN, W. H. THOMAS, J. P. ADAMS and B. F. 
McGILL.

On Certiorari to the Supreme Court of Alabama.

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
A M IC U S  C U R IA E

These cases question the validity of the restrictions 
which have been imposed on Negro locomotive firemen by 
agreement between their statutory representative under 
the Railway Labor Act and their employers.



Statement of Interest of American Civil 
Liberties Union

The American Civil Liberties Union is a national or­
ganization, devoted to the protection of civil liberties from 
the standpoint of the general public whose interests it 
seeks to defend. It does not express the point of view of 
labor, of employers, or of any particular racial group, 
but is a participant on these appeals on the principle that 
a threat to the civil liberties of one group, or even of one 
person, is a challenge to the freedom of all.

In our opinion, the restrictions imposed on Negro 
employees by the agreements in issue constitute an unlaw­
ful deprivation of fundamental rights guaranteed by the 
Federal Constitution. Because of the serious implications 
of these cases for the future of civil liberties in the United 
States, we have asked leave of this Honorable Court to 
file a brief amicus curiae.

Restrictions on the Employment and Advancement 
of Negro Locomotive Firemen

For fifty years Negroes were the accepted majority 
of firemen on Southern railroads. But particularly since 
the last W ar a trend has been under way to drive Negroes 
from this employment. Contributing factors were the 
introduction of automatic stokers and diesel-powered en­
gines, whereby dirty, heavy work was transformed into a 
desirable job, and intensified competition for jobs at­
tendant upon the declining importance of the railroad in­
dustry.

On March 28, 1940, the Brotherhood of Locomotive 
Firemen and Enginemen (hereinafter called the “ Brother­
hood” ), acting as representative of the entire craft of 
firemen under the Railway Labor Act on each of 21 rail-



“ 1. Only promotable men will be employed for 
service as locomotive firemen or for service as 
helpers on other than steam power.

“ 2. When new runs or jobs are established in 
any service, only promotable firemen or helpers will 
be assigned to them.

“ 3. When permanent vacancies occur on estab­
lished runs or jobs in any service, only promotable 
firemen or helpers will be assigned to them.”  
(Record in Steele case at p. 59.)

In railroad parlance, white firemen universally are called 
“ promotable men”  and Negroes are designated as “ non- 
promotable men.”  This is so, because under railroad 
practice engineers are chosen by promotion from the 
ranks of firemen, and Negroes are never promoted to the 
rank of engineer.

With these proposals the Brotherhood aimed at driving 
the Negro firemen completely out of the service of the 
railroads and creating a closed shop for its own member­
ship. Negroes at no time have been admitted to member­
ship in the Brotherhood, which is nevertheless their 
bargaining representative under the Act.

Thereafter, the Brotherhood and the railroads entered 
into an Agreement on February 18, 1941, seriously cur­
tailing Negro firemen’s employment and seniorit} rights 
in the railroad industry. The Agreement restricted theii 
employment to seniority districts on which they were then 
working and provided that they should not exceed fift\

roads, served on the railroads a notice of the following
proposals for modification of existing collective bargain­
ing agreements:



6

per cent of the employees in each class of service on the 
seniority district; until such percentage should be reached 
only promotable men were to be hired and all new runs 
and vacancies filled by promotable men. The Agreement 
further reserved the right of the Brotherhood to press 
for more restrictions on Negro firemen’s employment on 
individual carriers.

In or about May, 1941, the railroads and the Brother­
hood negotiated a supplementary agreement for the prac­
tical administration of the Agreement of February 18, 
1941, providing inter alia that the Brotherhood firemen 
should get the odd job in each class of service.

At no time did the Negro firemen receive notice of the 
proposed, then executed Agreements, nor an opportunity 
to be heard.

No attempt has been made to justify the foregoing 
Agreements as germane to the efficiency of railroad op­
eration.

The President’s Fair Employment Practice Committee 
reviewed these facts at a series of hearings, and on No­
vember 18, 1943, issued “ findings and directives”  declar­
ing the February 18, 1941 Agreement and its supplements 
discriminatory and ordering that they be set aside. Fur­
ther illumination of the background and content of these 
Agreements is to be found in Northrup, Organized Labor 
and the Negro (1944), Chapter III.

The operation of the restrictions is illustrated by the 
facts out of which arose both cases at bar. In the Steele 
case, the petitioner had been in a “ passenger pool”  com­
posed of six firemen, of whom five were Negro. On April 
8, 1941 the pool was reduced to four, and although the 
petitioner and two other Negro firemen were entitled to



7

remain in the pool by reason of seniority and good service, 
the Railroad and the Brotherhood, pursuant to the Agree­
ment of February 18, 1941, arbitrarily disqualified all 
Negro firemen and reformed the pool with four white 
firemen, all junior to the petitioner. For a while the 
petitioner was completely out of work. He then took an 
arduous and less remunerative job on a local freight and 
finally lost that job, too, to a junior fireman because of 
the above Agreements, in spite of the fact that no com­
plaint had been made about his work.

Similarly, in the Tunstall case, the petitioner had been 
serving as fireman on an interstate passenger run, con­
sidered a desirable post, when, because of the Agreements, 
he was removed and assigned to a more difficult and 
arduous job.

State of the Cases

In the Steele case, the petitioner filed a suit in the Ala­
bama Circuit Court for : (1) an injunction against the 
Railroad Company and Brotherhood to restrain them from 
enforcing a sole bargaining agent agreement negotiated 
by the Brotherhood; (2) an injunction against the Broth­
erhood from acting as his alleged bargaining representa­
tive so long as it discriminated against Negroes; (3) a 
declaratory judgment; (4) damages. Demurrers to the 
amended complaint were sustained by both the lower 
court and the Alabama Supreme Court. (16 So. 2d 416.)

In the Tunstall case, the petitioner filed a complaint 
in the Federal District Court for the Eastern District of 
Virginia seeking: (1) $25,000 damages for the refusal of 
the Brotherhood to accept him for membership on account 
of his race or color, which led directly to his removal



8

from his job with the Railroad Company; (2) a declara­
tory judgment declaring the rights and privileges of the 
parties and that the Brotherhood, acting as exclusive 
bargaining agent under the Railway Labor Act, was 
obliged to represent all members of the class involved 
regardless of race or color; (3) an injunction against 
enforcement of the agreement between the Brotherhood 
and the Railroad; (4) an injunction against the Brother­
hood from acting as an alleged representative so long as 
it discriminated against Negroes in membership; (5) 
restitution to his position. Respondents’ motions to dis­
miss were granted and the United States Circuit Court 
of Appeals for the Fourth Circuit affirmed. (140 F. 2d 
35.)

Importance of the Question

Forthright decision of the questions at issue is of cru­
cial importance. American railroads, in wartime, are 
suffering a shortage of firemen, at a time when experi­
enced Negro firemen are available. (See monthly reports 
of Railroad Retirement Board.) Evidence has been pre­
sented before the President’s Committee on Fair Employ­
ment Practice of resulting delays in many instances and 
of at least one accident. And of the bloody consequences 
of attempts to drive out Negroes even from their non- 
promotable classification of locomotive firemen on the 
Southern railroads, there has been official acknowledgment. 
See Northrup, op. cit. supra, at page 55, citing “ Proposed 
Report of the Federal Coordinator of Transportation on 
Alleged Discrimination Against Colored Railway Em­
ployees of the Illinois Central System” , unpublished Ms. 
in U. S. Archives.



9

The concerted attempt to drive Negroes out of the jobs 
of locomotive firemen has already reached the point of 
interference with interstate commerce. It was that in­
terference that the Railway Labor Act was designed to 
prevent. Therefore there should be no question of juris­
diction under the Act to decide these momentous issues. 
As the Supreme Court has many times had occasion to 
state, -the purpose of the Railway Labor Act is to provide 
means of settlement of . disputes that otherwise would 
interfere with interstate commerce (Terminal Railroad 
Association v. Brotherhood of Railroad Trainmen, 318 
U. S. 1, at 6) :

“ The Federal interest that is fostered [by the 
Railway Labor Act] is to see that disagreement 
about conditions does not reach the point of inter­
fering with interstate commerce.”

Only by a square determination of the problems at issue 
will this Court be properly effectuating Congressional in­
tent behind the Railway Labor Act.

Moreover, a decision will have telling consequences 
for the definition of the rights of minority workers 
everywhere vis-a-vis their statutory representatives. Such 
representatives are “ exclusive”  for collective bargaining 
purposes under the National Labor Relations Act no less 
than under the Railway Labor Act, and in this role have 
extensive opportunities for domination, still undefined. 
Indeed the possibilities of oppression are particularly 
great under the National Labor Relations Act which, un­
like the Railway Labor Act (Section 2 (5 )), countenances 
closed shop contracts.

From the standpoint of the civil liberties at stake it 
would seem essential to the preservation of basic prin­



10

ciples of our democracy to give the Fifth Amendment to 
the Constitution its proper interpretation, namely, a means 
whereby the deprivation of the right to work on account 
of race, which is in issue here, may be declared unlawful. 
During the coming months this question may be antici­
pated to become even more acute, as reconversion and the 
consequent shrinkage of jobs may cause a repetition of 
such tactics at the expense of Negro workers, who have 
won a foothold in industry during the war.

POINT I

The restrictions on the employment of Negro 
locomotive firemen contained in the agreements be­
tween the Brotherhood and the railroads are against 
public policy and are unlawful.

There is not even a pretense of legitimate social objec­
tive behind the restrictive Agreements whereby Negroes 
are to be driven from their employment as locomotive 
firemen. No plea is made that such Agreements are 
essential to the efficiency of the railroads. The proposals 
came from the Brotherhood, and no justification is offered 
in terms of collective bargaining privileges, or advance­
ment of the working conditions of firemen as a craft or 
class. The sole motivation lies in the individual interests 
of the members of the Brotherhood, who would establish 
a closed shop (Negroes excluded), notwithstanding the 
prohibition of the Bailway Labor Act (Section 2 (5 )).

A

By virtue of its position as exclusive bargaining repre­
sentative under the Act ( Virginian Railway v. Federation, 
300 IT. S. 515), the Brotherhood wields considerable power



11

over who Bray and who may not be made available for 
jobs and advancement. American courts (questions of 
Federal jurisdiction aside) have been quick to realize 
that the individual must be guarded against the exercise 
of this kind of a power when not in furtherance of legiti­
mate social objectives. Thus, the coexistence of a closed 
shop and a restricted membership union has been held 
unlawful:

“ It seems to me necessarily to follow that the 
union must either surrender its monopoly or else 
admit to membership all qualified persons who de­
sire to carry on the trade of magazine mailers; 
otherwise such persons are by the act of the union 
deprived of the right to earn a livelihood.”  Wilson 
v. Newspaper and Mail Deliverers Union, 123 N. J. 
Eq. 347, 197 Atl. 720.

See also Schwab v. Moving Pictures Machine Operators 
Local, 109 Pac. (2d) 600 (Oregon).

In Cameron v. International Alliance, 118 N. J. Eq. 11, 
178 Atl. 692, classification of union members into seniors 
and juniors was held to be an unreasonable restraint and 
unlawful, where the juniors were denied the right to par­
ticipate in the formulation of union policy or the manage­
ment of union business, and seniors were given powei 
arbitrarily to bar juniors from Union membership. The 
Court stated that it was clear that the subject in contro­
versy was a property right guaranteed by Federal and 
State constitutions and that by such regulations, the 
constitutional and inalienable right to earn a living vas 
being bargained away. Constitutional rights of liberty 
and property may be limited “ only to the extent necessary



12

to subserve the public interest. * * * The, design is
not to advance the public welfare, but the individual 
interests of the senior members solely. It is a perver­
sion, an embezzlement of power.”  The Court concluded:

“ It is patent that the senior members are striv­
ing to obtain a monopoly of the labor market in 
this particular trade, and to deprive the junior 
members of an equal opportunity to obtain employ­
ment and earn a livelihood for himself and his 
family. In fact, monopoly has been practically 
accomplished; absolute and complete dominion of 
the labor market is within reach. The public evils 
flowing from this policy are apparent. It tends to 
economic servitude—the impoverishment of the 
one class, the ‘ juniors’ for the enrichment of the 
other— and is manifestly opposed to the public in­
terest. The inevitable results are the loss of the 
services of useful members of society, and unrest, 
discontent and disaffection among the workers so 
restrained—a condition that is unquestionably in­
imical to the public welfare.”  (Emphasis sup­
plied.)

In accord with the principles animating the decision 
in the Cameron case are Smetherham v. Laundry Work­
ers’ Union, 44 Cal. App. (2d) 131, 111 Pac. (2d) 948, 
where it was held improper to expel plaintiff from the 
Union since the Union’s interest had not been adversely 
affected by her fight with a fellow employee which was 
the occasion for the expulsion; Reilly v. Hogan, 32 N. Y. 
S. (2d) 864, a ff ’d 264 App. Div. 855, where in ordering 
reinstatement of a Union member expelled for the alleged 
circulation of deceitful statements concerning Union lead­
ers during the Union election campaign, the court stated 
that “ as umpire, the Court inquires whether fair play has



13

been practiced. * * * No individual or group of in­
dividuals, organized or unorganized, is above the law” ; 
and Walsche v. Sherlock, 110 N. J. Eq. 223, 159 Atl. 661, 
where the Union officers were successfully restrained from 
using a card index system under which an employee could 
not work without an employment card from the Union.

An instructive decision was that of the Kentucky court 
in Piercy v. Louisville ,cS N. R. Co., 198 Ky. 477, 248 
S. W. 1042 (before passage of Railway Labor Act). 
There, as in the cases at bar, seniority rights under a 
contract were violated by an order of the company “ for 
no reason involving the efficiency of the operation of the 
railroad and for the only reason that it had been requested 
by”  the Union. The complainant was a member of the 
Union. The court held that the Union was his representa­
tive only

“ for the limited purpose of securing for him, to­
gether with all other members, fair and just wages 
and good working conditions. * * * If the right 
of seniority may be changed or waived, or otherwise 
dispensed with by the act of a bare majority of an 
organization, * * * it would be builded upon
a flimsy foundation of sand which might slip from 
under him at any time by the arbitrary action of 
the members, possibly to serve their own selfish 
ends in displacing him.”

B

Where the oppression made possible by monopoly of 
the job market is drawn along racial lines, the public 
interest is even clearer. This has been recognized by the 
decisions of several American courts, granting an injunc­
tion against the compulsory relegation of Negroes to sepa­
rate auxiliary union locals. Joseph .James etc. v. Marinship



14

Corporation et al. (Superior Court, Calif., Feb. 17, 1944, 
on appeal to the California Supreme C ourt); Gerald li. 
Hill et al. v. International Brotherhood of Boilermakers, 
Iron Shipbuilders and Helpers of America et al. (Su­
perior Court, R. I., January, 1943). (Both unreported.)

Irrelevant distinctions on the basis of race or nation­
ality are “ by their very nature odious to a free people 
whose institutions are founded upon the doctrine of equal­
ity.”  Hirabayashi v. United States, 320 U. S. 81, at 100. 
Where the right to earn a livelihood is involved, such' 
distinctions are particularly odious to this Court. Truax 
v. Raich, 239 U. S. 33.

In Truax v. Raich, a State statute which attempted to 
place restrictions on the right of aliens to be employed 
within the State was struck down as repugnant to the 
Federal constitution. Noting that under the statute “ the 
complainant is to be forced out of his employment as a 
cook in a restaurant simply because he is an alien,”  this 
Court said (239 IT. S. at 41) :

“ It requires no argument to show that the right 
to work for a living in the common occupations of 
the community is of the very essence of the personal 
freedom and opportunity that it was the policy of 
the Amendment to secure. * # # I f this could
be refused solely upon the ground of race or na­
tionality, the prohibition of the denial to any person 
of the equal protection of the laws would be a 
barren form of words.”

In the cases at bar the right to work is being denied 
to Negro locomotive firemen, solely because of their race 
and without any legitimate reason for the classification, 
and by virtue of exclusive bargaining rights given to the 
white Brotherhood as majority representative under the 
Railway Labor Act.



15

POINT II

The rights of petitioners are protected by the 
Fifth Amendment.

There can and should be no question but that the in­
fringement of the right of Negroes to work falls within 
the condemnation of the Fifth Amendment to the Federal 
constitution. That the Fifth Amendment prohibits arbi­
trary distinctions along racial lines was clearly indicated 
by this Court in the recent case of Hirabayashi v. United 
States, 320 IT. S. 81.

The cases here do not involve action by private indi­
viduals, with respect to which the restraints of the Fifth 
Amendment do not apply (Corrigan v. Buckley, 271 U. S. 
323). The restrictive agreements were made only by vir­
tue of a grant of governmental authority under the Rail­
way Labor Act. Solely by virtue of that statute does the 
Brotherhood represent the entire class of firemen, and not 
by mandate of the men themselves.

The agreement between the Brotherhood and the rail­
roads, consummated under the Railway Labor Act, is no 
more free from constitutional restraint on the denial of 
property without due process of law than were the restric­
tions at issue in the leading case of Nixon v. Condon, 
276 IT. S. 73. In Nixon v. Condon it was under a State 
statute, whereby every political party through its execu­
tive committee was to have power to prescribe the quali­
fications of its own members, and not under any authori­
zation from the ranks of the party, that the executive com­
mittee of the Democratic party in Texas adopted a reso­
lution that only white Democrats should participate in the 
primary elections, thereby excluding Negroes. The com­



16

mittee’s action was held to be State action within the 
meaning of the Fourteenth Amendment to the Constitu­
tion. Similarly, it is only because of authority derived 
from the Railway Labor Act and not because of any 
authorization from the employees themselves, including 
the petitioners involved in these cases, that the Brother­
hood and the railroads adopted certain agreements where­
by Negroes would be restricted and gradually driven from 
the jobs of locomotive firemen. The Court stated in 
Nixon v. Condon as follow s:

“ The pith of the matter is simply this, that 
when those agencies are invested with an authority 
independent of the will of the association in whose 
name they undertake to speak, they become to that 
extent the organs of the State itself, the reposi­
tories of official power. * * * The test is whether 
they are to be classified as representatives of the 
State to such an extent and in such a sense that 
the great restraints of the Constitution set limits to 
their action. ’ ’

Thus there can properly be no question of the cogni­
zance under the Fifth Amendment to the Constitution of 
the important questions of civil liberties raised on this 
appeal.

Because of the presence of serious constitutional issues, 
as well as because of a significant variance on the facts 
and the law, these cases are sharply distinguishable from 
earlier decisions of this Court, in which there was a 
finding of no Federal jurisdiction under the Railway 
Labor Act. Switchmen’s Union v. National Mediation 
Board, 320 U. S. 297 (reviewability of certification order); 
General Committee, etc. v. M. K. T. R. R. Co., 320 U. S. 
323; General Committee v. Southern Pacific Co., 320 U. S.



17

338 (all involving jurisdictional disputes between rival 
railway unions referable to the National Mediation 
Board). In the Switchmen’s case the Court even ex­
pressly stated (320 U. S. at 301):

“ All constitutional questions aside, it is for Con­
gress to determine how the rights which it creates 
shall be enforced.”  (Emphasis supplied.)

Indeed, as under well-established canons of construction 
statutes should, where possible, be construed as consti­
tutional, the Congressional intent behind the Railway 
Labor Act should not properly be interpreted to grant 
exclusive bargaining rights without the implicit condition 
that the grant will not be used to oppress a minority.



18

CONCLUSION

The Agreement of February 18, 1941 and its sup­
plementary agreements should be declared invalid; 
an injunction should be ordered to restrain any further 
acts pursuant thereto; petitioners should be restored 
to their rights; the obligation of the statutory repre­
sentative under the Railway Labor Act to represent 
minority employees fairly should be declared; and 
other and further relief prayed for by the petitioners 
should be granted.

Respectfully submitted,

A merican Civil L iberties U n ion ,
Amicus Curiae.

E dgar W atk in s ,
of the Georgia Bar,

J ohn  D. M iller,
of the Louisiana Bar,

Jo D rake A rrington, 
of the Mississippi Bar,

S hirley A delson,
A rthur Garfield H ays, 

of the New York Bar,
R. B everley H erbert,

of the South Carolina Bar,
T. P ope S hepherd,
J ordan Stokes I II ,

of the Tennessee Bar,
H oward B. L ee,

of the West Virginia Bar,
Of Counsel.



SUPREME COURT OF THE UNITED STATES
No. 37.—October Term, 1944.

Tom Tunstall, Petitioner,
vs.

Brotliei-liood of Locomotive Firemen 
and Enginemen, Ocean Lodge No. 76, 

Port Norfolk Lodge No. 775, et al.
cuit Court of Appeals 
for the Fourth Circuit.

On Writ of Certiorari to 
the United States Cir-

[Deeember 18, 1944.]

Mr. Chief Justice Stone delivered the opinion of the Court.
This is a companion case to No. 45, Steele v. Louisville <& Nash­

ville Railroad Co., Brotherhood of Locomotive Firemen and En­
ginemen and others, decided this day, in which we answered in the 
affirmative a question also presented in this case. The question 
is whether the Railway Labor Act, 48 Stat. 1185, 45 U. S. C. §§ 151 
et seq., imposes on a labor organization, acting as the exclusive 
bargaining representative of a craft or class of railway employees, 
the duty to represent all the employees in the craft without dis­
crimination because of their race. The further question in this 
case is whether the federal courts have jurisdiction to entertain 
a non-diversity suit in which petitioner, a railway employee sub­
ject to the Act, seeks remedies by injunction and award of dam­
ages for the failure of the union bargaining representative of his 
craft to perform the duty imposed on it by the Act, to represent 
petitioner and other members of his craft without discrimination 
because of race.

Petitioner, a negro fireman, employed by the Norfolk & Southern 
Railway, brought this suit in the District Court against the Rail­
way, the Brotherhood of Locomotive Firemen and Enginemen and 
certain of its subsidiary lodges, and one of its officers, setting up, 
in all material respects, a cause of action like that alleged 
in the Steele case. The Brotherhood, a labor union, is the desig­
nated bargaining representative under the Railway Labor Act, for 
the craft of firemen of which petitioner is a member, and is ac­
cepted as such by the Railway and its employees.

Acting as such the Brotherhood gave to the Railroad the notice 
of March 28, 1940, and later entered into the contract of February



18, 1941 and its subsequent modifications, all of which were the 
subject of our consideration in the Steele case. Petitioner complains 
of the discriminatory application of the contract provisions to him 
and other negro members of his craft in favor of “  promotable ” , 
i. e. white, firemen, by which he has been deprived of his pre­
existing seniority rights, removed from the interstate passenger 
run to which he was assigned and then assigned to more arduous 
and difficult work with longer hours in yard service, his place in 
the passenger service being filled by a white fireman.

He alleges that the contract was signed and put into effect with­
out notice to him or other negro members of his craft, and without 
opportunity for them to be heard with respect to its terms, and 
that his protests and demands for relief to the Railway and the 
Brotherhood have been unavailing. Petitioner prays for a declara­
tory adjudication of his rights, for an injunction restraining the 
discriminatory practices complained of, for an award of damages 
and for other relief.

The District Court dismissed the suit for want of jurisdiction. 
The Circuit Court of Appeals for the Fourth Circuit affirmed, 140 
F. 2d 35, on the ground that the federal courts are without juris­
diction of the cause, there being no diversity of citizenship and, 
insofar as the suit is grounded on the wrongful acts of respon­
dents, it is not one arising under the laws of the United States, 
even though the union was chosen as bargaining representative 
pursuant to the Railway Labor Act. See Gully v. First National 
Bank, 299 U. S. 109, 112, 114.

For the reasons stated in our opinion in the Steele ease the Rail­
way Labor Act itself does not exclude the petitioner’s cause of 
action from the consideration of the federal courts. Cf. Switch­
men’s Union v. National Mediation Board, 320 U. S. 297; General 
Committee v. M.-K.-T. B. Co., 320 U. S. 323; General Committee 
v. Southern Pacific Co., 320 U. S. 338; Brotherhood of Bailway & 
Steamship Clerks v. United Transport Service Employees, 320 U. S. 
715, 816, with Texas & New Orleans Bailroad Co. v. Brotherhood 
of Bailway Clerks, 281 U. S. 548; Virginian Bailway Co. v. System 
Federation, 300 U. S. 515.

We also hold that the right asserted by petitioner which is de­
rived from the duty imposed by the Railway Labor Act on the 
Brotherhood, as bargaining representative, is a federal right im­
plied from the statute and the policy which it has adopted. It is

2 Tunstall vs. Brotherhood of Locomotive Firemen etc., et al.



the federal statute which condemns as unlawful the Brotherhood’s 
conduct. “ The extent and nature of the legal consequences of 
this condemnation, though left by the statute to judicial deter­
mination, are nevertheless to be derived from it and the federal 
policy which it has adopted.”  Deitrick v. Greaney, 309 U. S. 190, 
200-201; Board of County Commissioners v. United States, 308 
F. S. 343; Sola Electric Co. v. Jefferson Co., 317 U. S. 173, 176-7; 
cf. Clearfield Trust Co. v. United States, 318 U. S. 363. The case 
is therefore one arising under a law regulating commerce of which 
the federal courts are given jurisdiction by 28 U. S. C. §41(8), 
Judicial Code § 24(8); Mulford v. Smith, 307 U. S. 38, 46; Peyton 
v. Railway Express Agency, 316 U. S. 350; cf. Illinois Steel Co. v. 
B. & O. R. Co., 320 U. S. 508, 510-511.

For the reasons also stated in our opinion in the Steele case the 
petitioner is without available administrative remedies, resort to 
which, when available, is prerequisite to equitable relief in the fed­
eral courts. Goldsmith v. Board of Tax Appeals. 270 U. S. 117, 123; 
Porter v. Investors Syndicate, 286 U. S. 461, 471; 287 U. S. 346; 
Natural Gas Co. v. Slattery, 302 F. S. 300, 309; Atlas Ins. Co. v. 
Southern Inc., 306 F. S. 563.

We hold, as in the Steele ease, that the bill of complaint states a 
cause of action entitling plaintiff to relief. As other jurisdictional 
questions were raised in the courts below which have not been 
considered by the Court of Appeals, the case will be remanded to 
that court for further proceedings.

Reversed.

Mr. Justice Murphy concurs in the result for the reasons ex­
pressed in his concurring opinion in Steele v. Louisville <& Nash­
ville R. R. Co.

Timstall vs. Brotherhood of Locomotive Firemen etc., et al. 3









/

$