Conley v. Gibson Petitioner's Brief

    In The

(tart rtf tljr Ituiti'ii BtuUs
October T erm , 1957

No. 7

J. D. Conley, Stanley M oore, Sr., George L. Carter 
and B. A. W atson, Petitioners

vs.
P at J. Gibson, General Chairman op L ocals 6051 and 28, 
R aymond D ickerson, D ivision Chairman op L ocals 6051 
and 28, B rotherhood of R ailway and Steamship Clerks, 
F reight H andlers, E xpress and Station E mployees, A. F. 

op L., E t A l ., Respondents

ON WRIT OP CERTIORARI TO THE UNITED STATES COURT OP APPEALS 
FOR THE FIFTH CIRCUIT

PETITIONER’S BRIEF

J oseph C. W addy 
R oberson L. K ing 
Counsel for Petitioners

R obert L. Carter 
W illiam  C. Gardner 
W illiam  B. B ryant

Of Counsel

Printed by Action Printing Co., 518 Fifth St. N.W., Washington, D. C.



INDEX
Page

OPINIONS B E L O W ___ _____________________________  1
JURISDICTION_____________________________________  2

STATUTES INVOLVED___________________________ _ 2
QUESTIONS PRESENTED _________________    3
STATEMENT OP THE C A SE _______________________  4
SUMMARY OP ARGUMENT________________________  6
ARGUMENT ________________________________________  7

I. The Complaint Charges the Brotherhood With 
Breach of the Duty of Fair Representation Im­
posed Upon It by the Railway Labor Act and 
With Abuse of Statutory Position and Power 
and, Therefore, Is Within the Jurisdiction of
the Court____________________________________  7

II. There Are No Factors Present in This Case 
Either Ousting or Limiting the Jurisdiction 
of the Court_________________________________  13

CONCLUSION ______________________________________  17

TABLE OF CASES

Brotherhood of Locomotive Firemen and Enginemen v.
Mitchell, 190 F. 2d 308 (1951)____________________  9

Brotherhood of Railroad Trainmen v. Howard, 343 U.S.
768, 96 L.Ed. 1293 (1953)___________________8, 9,13,16

Central of Georgia Railway Co. v. Jones, 229 F. 2d 648
(1956) _________________________________________  9

Dillard v. Chesapeake & Ohio R. Co., 199 F. 2d 948
(1952) _________________________________________ 9,13

Georgia v. Pennsylvania R. Co., 324 U.S., 89 L.Ed 105
(1945) _________________________________________  16

Graham v. Brotherhood of Locomotive Firemen and 
Enginemen, 330 U.S. 232, 94 L.Ed 23 (1949)_______8,13



Page
Great Northern R. Co. v. Merchants Elevator Co., 259

U.S. 285, 66 L.Ed 943 (1922)_____________________  16
Hayes v. Union Pacific Railroad Co., 184 F. 2d 337, cert.

den. 340 U.S. 942 (1951)_________________________  13
Hettenbangh v. Air Line Pilots Association, 189 F. 2d

319 (1951) ______________________________________ 6,13
J. I. Case Co. v. National Labor Relations Bd., 321 U.S.

332 88 L.Ed. 762 (1944)_________________________  11
Richardson, et al., v. Texas & New Orleans R. Co., et al.,

242 F. 2d 230 (1957)______________________________ 9
Rolax, et al., v. Atlantic Coast Line Railroad Co., et al.,

186 F. 2d 473 (1951)____  9
Slocum v. Delaware, L. & W. R, Co., 339 U.S. 239, 94

L.Ed. 795 (1950)_________________________________ 6,14
Steele v. Louisville & Nashville R. Co., et ah, 323 U.S.

192, 89 L.Ed. 173 (1944)_________ 7,8,11,12,13,15,16
Tunstall v. Brotherhood of Locomotive Firemen & 

Enginemen, 323 U.S. 210, 89 L.Ed. 187 (1944)____8,11,13

Constitution

Fifth Amendment___________________________________  6

Statutes

Railway Labor Act, 48 Stat. 1185, 45 U.S.C., Sec. 151 
et seq.____________________________ ______________ 2,10



In The

(tart of thr Inttrfr BtaUB
October T erm , 1957

No. 7

J. D. Conley, Stanley M oore, Sr., George L. Carter 
and B. A . W atson, Petitioners

vs.
P at .J. G ibson, General Chairman oe L ocals 6051 and 28, 
R aymond D ickerson, D ivision Chairman oe L ocals 6051 
and 28, B rotherhood of R ailway and Steamship Clerks, 
F reight H andlers, E xpress and Station E mployees, A . F. 

oe L., E t A l ., Respondents

ON WRIT OE CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

PETITIONER’S BRIEF

Opinions Below

The opinion of the United States District Court for 
the Southern District of Texas was filed March 16, 1955, 
and appears on page 19 of the Transcript of Record.



2

The per curiam opinion of the United States Court, of 
Appeals for the Fifth Circuit is officially reported in 229 
F. 2d 436, and is printed in the Transcript of Record at 
page 29a.

A petition for rehearing was denied without opinion by 
the United States Court of Appeals for the Fifth Circuit 
on March 15, 1956 (R. 30).

Jurisdiction
The Judgment of the United States Court of Appeals 

for the Fifth Circuit was entered January 31, 1956. Re­
hearing was denied March 15, 1956.

The jurisdiction of this Court is invoked under Section 
1254(1) of Title 28 of the United States Code.

Statutes Involved

The Statute involved is the Railway Labor Act as 
amended, 45 United States Code, Section 151, et seq., and 
particularly the following:

Section 152:
“ Fourth. Employees shall have the right to organ­

ize 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 chapter. . . . ”

“ Eleventh. Notwithstanding any other provisions of 
this chapter, or of any other statute or law of the 
United States, or Territory thereof, or of any State, 
any carrier or carriers as defined in this chapter and 
a labor organization or labor organizations duly desig­
nated and authorized to represent employees in ac­
cordance with the requirements of this chapter shall 
be permitted—•

(a) to make agreements, requiring, as a condition of 
continued employment, that within sixty days following 
the beginning of such employment, or the effective date 
of such agreements, whichever is the later, all em­
ployees shall become members of the labor organization



3

representing their craft or class: Provided, That no 
such agreement shall require such condition of employ­
ment with respect to employees to whom membership 
is not available upon the same terms and conditions as 
are generally applicable to any other member. . . . ”

Section 153:
“ First (i). The disputes between an employee or 

group of employees and a carrier or carriers growing 
out of grievances or out of the interpretation or ap­
plication of agreements concerning rates of pay, rules, 
or working conditions, including cases pending and 
unadjusted on June 21, 1934, shall be handled in the 
usual manner up to and including the Chief Operating 
Officer of the carrier designated to handle such dis­
putes ; but, failing to reach an adjustment in this man­
ner, the disputes may be referred by petition of the 
parties or by either party to the appropriate division 
of the Adjustment Board with a full statement of the 
facts and all supporting data bearing upon the dis­
putes. ’ ’

Questions Presented

Whether a complaint by Negro members of a craft of 
railway employees against a labor union—their collective 
bargaining representative under the Railway Labor Act— 
alleging that, solely because of their race, the union bars 
them from membership in its local lodge which carries on 
the collective bargaining process; uses its statutory position 
to compel them to maintain membership in an inferior, 
racially segregated local; refuses to exert any effort toward 
maintenance of the collective agreement insofar as it per­
tains to the Negro members of the craft, resulting in their 
loss of employment and employment rights; and refuses 
either to hear their charges of discrimination or to take 
any steps to investigate and redress their wrongs, states 
a claim against the bargaining representative within the 
jurisdiction of the Federal courts for breach of the statu­
tory duty of fair representation imposed upon such repre­



4

sentative by the Railway Labor Act, notwithstanding the 
fact that the complaint makes no claim either that the col­
lective agreement was unlawfully entered into or is un­
lawful in its terms or effect?

(a) If jurisdiction exists, is there present in this case 
any factor either ousting or limiting that jurisdiction?

Statement of the Case

Petitioners, employees of the Texas and New Orleans 
Railroad Company in its Freight House at Houston, Texas, 
are Negroes and are members of the craft or class of clerks, 
freight handlers, express and station employees of that 
company. (R. 7). The craft is composed of both white and 
colored employees and is represented for collective bargain­
ing purposes under the Railway Labor Act by the Brother­
hood of Railway and Steamship Clerks, Freight Handlers, 
Express and Station Employees (hereinafter called the 
Brotherhood). (R. 7, 8). There is an agreement, enacted 
pursuant to Section 2—Eleventh of the Railway Labor Act, 
45 U.S.C.A. 152—Eleventh, (commonly known as a “ union 
shop agreement” ), in effect between the Brotherhood and 
the carrier, requiring all members of the craft or class, as 
a condition of continued employment, to become members 
of the Brotherhood. (R. 10). The Brotherhood maintains 
two local lodges at Houston for the members of the craft 
—Local 28, composed exclusively of white employees, and 
Local 6051, composed exclusively of Negro employees. 
Petitioners and those they represent are barred from mem­
bership in Local 28, and are forced to maintain membership 
in Local 6051. (R. 9, 10). The Brotherhood carries on its 
collective bargaining with the carrier through Local 28. 
(R. 9, 10).

On August 21, 1954, petitioners brought a class suit in 
the United States District Court for the Southern District 
of Texas, on behalf of themselves and others similarly situ­
ated, against the Brotherhood, two of its officials and Local 
28, in which they charged that- Local 6051, which the



5

Negro members of the craft are compelled to join, is a 
segregated, inferior unit of the Brotherhood, maintained 
solely for the purpose of affording petitioners and those 
similarly situated representation inferior to and different 
from that afforded white members of the craft in Local 28 
(R. 9, 10); and also that the Brotherhood has refused to 
afford petitioners and the other Negroes similarly situated 
representation and protection equal to that afforded those 
members of the craft who are white (R. 10, 13). The rail­
road company, their employer, was not made a party to the 
suit.

Petitioners complained that on or about May 1, 1954, 
their employer posted a notice at the Freight House al­
legedly abolishing 45 jobs; that all of these jobs were being- 
held by Negro members of the craft; that no advance notice 
of the abolition of the jobs was given to petitioners and 
those similarly situated as required by the collective bar­
gaining agreement (R. 11); that said jobs were not in fact 
abolished, for immediately thereafter many white persons 
were hired to perform the same work, and subsequently, 
some of the same Negro employees who had been previously 
fired were rehired, but without seniority, and junior to the 
recently hired white employees (R. 12); and that none of 
the white members of the craft were discharged or dis­
placed (R. 13). Petitioners further charged in their com­
plaint that the Brotherhood suffered and permitted their 
jobs to be abolished because of their race and also that 
the Brotherhood repeatedly refused to grant petitioners 
a hearing concerning their discharge and declined to come 
to their aid (R. 11, 12). They alleged that the acts and 
omissions of the Brotherhood, complained of in this case, 
constituted a planned course of conduct designed to dis­
criminate against petitioners and those similarly situated, 
solely because of their race or color, and that by reason of 
said acts and in refusing to represent them and to give 
them protection equal to that afforded the white members of 
the craft, the Brotherhood breached the statutory duty im­



6

posed upon it by the Railway Labor Act to represent all 
members of the craft fairly and impartially (R. 13). They 
further alleged that, by reason of this conduct by the 
Brotherhood, petitioners and those similarly situated have 
been deprived of rights and property without due process 
of law in violation of the Fifth Amendment to the United 
States Constitution. They prayed for a declaratory judg­
ment, injunctive relief and damages.

The defendants moved to dismiss the complaint on four 
grounds: (1) lack of jurisdiction of the subject matter; 
(2) lack of an indispensable party defendant—the railroad 
company; (3) failure to present a justiciable issue, and (4) 
failure to state a claim upon which relief can be granted. 
The District Court dismissed the complaint for lack of 
jurisdiction of the subject matter. On appeal by petitioners 
to the United States Court of Appeals for the Fifth Circuit 
that Court, without discussion, affirmed, in a per curiam 
opinion, citing Slocum vs. Delaware, L. & W. R. Co., 339 
U. S. 239, and Hettenbaugh v. Air Line Pilots Association, 
189 F. 2d 319. A petition for rehearing was denied without 
opinion.

Summary of Argument

The cause of action stated in the complaint is one over 
which Federal Courts have jurisdiction because it charges 
the Brotherhood with breach of the statutory duty of fair 
representation it owed to petitioners as members of a craft 
of railway employees for which that Brotherhood was the 
exclusive representative, and with unlawful abuse of statu­
tory position and power. The Brotherhood violated its duty 
and abused its statutory powers by compelling petitioners, 
solely on account of their race, to maintain membership in 
an inferior, ineffective, segregated local of the union, cut off 
from the local that carried on the collective bargaining, and 
then refusing to hear the complaints or to take any steps 
within the collective bargaining process to enforce the rights 
of petitioners, thus denying to them the benefits and ad­



7

vantages of collective bargaining. The duty imposed on 
the bargaining representative by the Railway Labor Act to 
represent all members of the craft fairly is not limited to 
the making of a contract but is coextensive with the total 
authority and power given the representative by the statute. 
A refusal by the Brotherhood to represent members of the 
craft, solely on account of race, in any portion of the collec­
tive bargaining process is a breach of that duty.

Neither the provisions of the Railway Labor Act nor 
the doctrine of primary jurisdiction precludes the court 
from exercising jurisdiction in this action by Negro mem­
bers of a craft of railway employees, charging their bar­
gaining representative with violation of statutory duty and 
unlawful abuse of power because (1) such a dispute has not 
been relegated by the statute to the administrative tribunals 
created by the Act; (a) the dispute does not involve the 
interpretation or application of the collective bargaining 
agreement; (b) the provision of the statute creating the 
National Railroad Adjustment Board makes no reference 
to disputes between employees and their representative; 
(2) No administrative expertise or specialized skill is 
needed to determine the existence or non-existence of racial 
discrimination by the bargaining representative in this case, 
and (3) even if the Adjustment Board had the power to act 
in this case, it would not constitute an adequate administra­
tive remedy because the very Brotherhood against whom 
petitioners complain sits as judge on that Board.

ARGUMENT

I. The Complaint Charges The Brotherhood W ith Breach 
of the Duty of Fair Representation Imposed Upon It By The 
Railway Labor Act And With Unlawful Abuse of Statutory 
Position and Power and, Therefore, Is Within The Juris­
diction of the Court

In 1944 this Court, in the case of Steele v. Louisville & 
Nashville R. Co., et al., 323 U. S. 192, 89 L. Ed. 173, held



8

that the bargaining representative of a craft of railway 
employees is under a duty imposed by the Railway Labor 
Act to represent all members of the craft for which it acts, 
fairly, impartially and without hostile discrimination, and 
stated that:

“ So long as a labor union assumes to act as the 
statutory bargaining representative of a craft, it cannot 
rightly refuse to perform the duty, which is inseparable 
from the power of representation conferred upon it, 
to represent the entire membership of the craft.”  (323 
U. S. 192, 204).

This Court held also that a complaint alleging a breach 
by the collective bargaining representative of that statu­
tory duty states a claim upon which courts have jurisdic­
tion to grant relief and that:

“ . . . the statute contemplates resort to the usual 
judicial remedies of injunction and award of damages 
when appropriate for breach of that duty.”  (323 IT. S. 
192, 207).

In a companion case decided on the same day as Steele, 
this Court held that Federal Courts have jurisdiction of 
the subject matter of a complaint charging the bargaining 
representative with breach of the statutory duty of fair 
representation.

Tunstall v. Brotherhood of Locomotive Firemen & 
Enginemen, 323 U. S. 210, 89 L. Ed. 187 (1944).

The principles of the Steele and Tunstall cases were re­
affirmed by this Court in Graham v. Brotherhood of Loco­
motive Firemen & Enginemen, 338 U. S. 232, 94 L. Ed. 23 
(1949), and were re-affirmed and extended in Brotherhood 
of Railroad Trainmen v. Howard, 343 U. S. 768, 96 L. Ed. 
1293 (1952), where this Court held that the Railway Labor 
Act prohibits bargaining agents it authorizes from using 
their position and power to destroy colored workers’ jobs 
in order to bestow them on white workers and stated that:



9

“ Bargaining agents who enjoy the advantages of the 
Railway Labor A ct’s provisions must execute their 
trust without lawless invasions of the rights of other 
workers.”  (343 IT. S. 768, 774).

These principles have been followed by the United States 
Circuit Court of Appeals for the Fourth Circuit in Rolax, 
et al. v. Atlantic Coast Line R. Co., et al., 186 F. 2d 473 
(1951), and Dillard v. Chesapeake & Ohio R. Co., 199 F. 2d 
948 (1952), and by the United States Court of Appeals for 
the Fifth Circuit in Brotherhood of Locomotive Firemen 
and Enginemen v. Mitchell, 190 F. 2d 308 (1951), Central of 
Georgia Railway Co. v. Jones, 229 F. 2d 648 (1956), and in 
Richardson, et al. v. Texas (& New Orleans R. Co., et al., 
242 F. 2d 230 (1957).

From the above cited cases it is clear that jurisdiction 
of courts, both State and Federal, to hear and determine 
suits brought by members of a craft of railroad employees 
against their statutory collective bargaining representative, 
to redress wrongs resulting from unfair representation and 
to obtain relief from racially discriminatory practices and 
contracts, is no longer a subject for debate. Nevertheless, 
in the instant case, the courts below refused to apply these 
established principles because of the absence of any allega­
tion in the complaint that the collective agreement was un­
lawful in itself. This action by the courts below pre-sup- 
poses the existence of a doctrine of law to the effect that 
the right of members of a craft of railway employees to fair 
representation by their collective bargaining representa­
tive under the Railway Labor Act is judicially enforceable 
only when the collective bargaining agreements are unlaw­
fully entered into, or when the agreements themselves are 
unlawful in terms or effect. Petitioners respectfully urge 
that the doctrine espoused by the lower courts is unsound 
in principle; subverts the intention of Congress in enacting 
the Railway Labor Act and is in the teeth of the pronounce­
ments of this Court.



10

It is unsound in principle because the exclusion from 
judicial enforcement of all rights to fair representation 
except those incident to contract making leaves the statu­
tory bargaining representative with unbridled power to 
otherwise discriminate with impunity against members of 
the craft and free to otherwise use its statutory position and 
power in a lawless and arbitrary manner, to the detriment 
of the minority members of the craft for which it is au­
thorized to act.

In enacting the Railway Labor Act to provide for the 
peaceful maintenance of agreements and settlement of dis­
putes between employer and employee through a continu­
ous process of collective bargaining, Congress saw fit to 
provide for an exclusive bargaining representative, to be 
chosen by the majority of the craft, and to vest that repre­
sentative with the power of complete control of all craft 
activities and incidents and to legislate for and bind the 
individual and minority members of the craft even against 
their will. To protect the individual and minority members 
from abuse of this statutory power it imposed upon that 
representative the duty to represent all members of the 
craft. Clearly, it did not intend to limit this duty or to 
restrict the right to only one phase of the total authority 
and power granted. On the contrary, it must be assumed 
that Congress intended to make that duty coextensive with 
the total authority and power given the representative by 
the Act. Otherwise, the Act would bear the condemnation 
of unconstitutionality under the Fifth Amendment.

Petitioners’ contentions in this respect are buttressed 
further by the legislative history of the Union Shop Amend­
ment to the Act (45 U. S. C., Section 152, Eleventh). This 
amendment increased the power of the representative over 
the individual employee by making it lawful for the repre­
sentative to make an agreement with the carrier requiring 
that, as a condition of continued employment, all members 
of the craft must join the union. However, in reporting 
this legislation to the floor of the Senate the Committee



11

was careful to make it clear that the grant of authority 
carried with it the duty to represent. The Committee stated 
in its report:

“ Your committee also desires to make it clear that 
nothing in this bill is intended to modify in any way 
the requirement that the authorized bargaining repre­
sentative shall represent all the employees in the 
craft or class, including non-union employees as well 
as members of the union, fairly, equitably, and in good 
faith. ( See Steele v. Louisville & Nashville Railroad 
Co., 323 U. S. 192, and Tunstall v. Brotherhood of Loco­
motive Firemen and Enginemen, 323 U.S. 210).’ ’ (Sen­
ate Report No. 2263, 81st Congress, 2d Session).

The making of a collective bargaining agreement does 
not complete the collective bargaining process nor exhaust 
the statutory power of the representative. There is the 
continuing process of day to day adjustments and periodic 
discussions concerning such matters as shop rules, job con­
tent, and work assignments. These matters, vital to the 
employment of every member of the craft, have been placed 
by the Railway Labor Act in the hands of an exclusive 
bargaining representative. To the extent that the repre­
sentative participates in this process, it exercises a power 
which is conferred, defined, regulated and protected by the 
statute. This Court pointed out in J. I. Case Co. v. National 
Labor Relations Bd., 321 IT. S. 332, 88 L. Ed. 762 (1944) 
that:

“ The very purpose of providing by statute for the 
collective agreement is to supersede the terms of sepa­
rate agreements of employees with terms which reflect 
the strength and bargaining power and serve the wel­
fare of the group. Its benefits and advantages are open 
to every employee of the represented unit.”  (321 U. S. 
332, 338);

and in Steele, supra:
“ The purpose of providing for a representative is 

to secure those benefits for those who are represented 
and not to deprive them or any of them of the benefits 
of collective bargaining for the advantage of the repre­



12

sentative or those members of the craft who selected 
it.”  (323 IT. S. 192, 201). (Italics ours.)

Thus, a refusal by the bargaining representative to exer­
cise these non-contract making collective bargaining powers 
on behalf of Negro members of the craft, solely on account 
of their race, is a refusal by it to represent all members of 
the craft, depriving the Negroes of the benefits and ad­
vantages of collective bargaining, and constitutes the crea­
tion of distinctions within the craft based on race alone.

This Court held in the Steele case, supra, that distinctions 
based on race alone are “ obviously irrelevant and invidi­
ous”  and that “ Congress plainly did not undertake to au­
thorize the bargaining representative to make such dis­
criminations.”  (323 IT. S. 192, 203).

The complaint in this case alleges that the Brotherhood 
used the power conferred upon it by the statute to compel 
petitioners and the other Negro employees to join and 
maintain membership in the union. However, it barred 
them from membership in that local which carries on the 
collective bargaining for the craft and forced them into an 
inferior, segregated local, and refused to hear or consider 
the complaints of the Negroes concerning their welfare as 
members of the craft. It made an agreement with the car­
rier covering the craft and then arbitrarily refused to take 
any steps within the collective bargaining process to en­
force the rights of Negro employees covered by that con­
tract. Thus, on the one hand, it abuses its statutory powers 
and, on the other, it abnegates its statutory duty. Its con­
duct was a denial to the Negro members of the craft those 
benefits and advantages of collective bargaining which this 
Court has held must be open to every member of the repre­
sented unit. Here is a clear case of a bargaining representa­
tive using Federal statutory power, solely for its own 
benefit, by compelling the Negro members of the craft to 
pay hard-earned money into its coffers and then refusing 
to represent them within the collective bargaining process. 
Such conduct on the part of the bargaining representative



13

subverts the purpose of the Railway Labor Act; is un­
mistakably a refusal on the part of the Brotherhood to 
represent all members of the craft fairly, and constitutes 
an unlawful abuse of statutory powers, which under the 
principles enunciated by this Court in Steele, supra, Tuns­
tall, supra, Graham, supra, and Howard, supra, and by the 
Fourth Circuit in Dillard v. Chesapeake & Ohio Railroad 
Co., supra, courts have jurisdiction to correct and restrain.

It is respectfully submitted that the Courts below erred 
in refusing to apply the principles of the above-mentioned 
cases and that, to the extent that Hettenbaugh v. Air Line 
Pilots Association, 189 F. 2d 319 (1951), and Hayes v. Union 
Pacific Railroad Co., 184 F. 2d 337, cert. den. 340 U.S. 942, 
(1951) (cited and relied upon by the courts below in support 
of their position) may be in conflict with those principles, 
they are unsound and do not accurately state the law.

II. There Are No Factors Present In This Case Either 
Ousting or Limiting The Jurisdiction of The Court

As has been shown above, when the complaint in this case 
is tested by the well settled principles of law applicable to 
rights and duties arising under the Railway Labor Act, it 
is immediately apparent that this case falls within the gen­
eral jurisdiction of Federal Courts. Unless there is present 
some factor either ousting or limiting that jurisdiction, the 
justiciability of the cause is beyond question.

The courts below held that the quasi-judicial tribunals 
established by the Railway Labor Act preclude the courts 
from exercising jurisdiction. This holding was predicated 
upon the view that the case was one involving the breach of 
performance of a collective bargaining agreement. Peti­
tioners contend that this view is erroneous and that the case 
alleged must be looked upon as one involving a breach of 
the statutory duty imposed upon the Brotherhood by the 
Railway Labor Act.



14

This complaint does not involve a dispute between, an em­
ployee or group of employees on the one hand, and a carrier 
or carriers on the other. The railroad company is not even 
a party to the suit. Although petitioners may have concur­
rently a claim against their employer for violation of the 
collective agreement, that claim is not asserted in this case. 
The dispute petitioners seek to have adjudicated is en­
tirely between them and their statutory representative. 
The rights here sought to be enforced do not stem from any 
contract between the carrier and the representative, but di­
rectly from the statute, and may be adjudicated without in 
any manner considering whether there was or was not, in 
fact, a breach of the collective agreement by the carrier. 
What must be considered and determined is whether there 
was a breach by the Brotherhood of the statutory duties im­
posed upon it to represent all members of the craft fairly 
and to refrain from using its statutory position and power 
to discriminate against the Negro members of the craft.

When viewed in this, its true light, it becomes obvious 
that the dispute here is not one that Congress relegated for 
adjudication to the administrative tribunals created by the 
Railway Labor Act but is one that was left to the jurisdic­
tion of the courts. It also becomes obvious that the courts 
below erroneously applied the doctrine of the Slocum case 
(.Slocum v. Delaware, L. & W., 339 U.S. 239, 94 L. Ed. 795 
(1950)).

In that case, two unions were vying with each other over 
certain jobs—each claiming the jobs for its members under 
its respective collective bargaining agreement. The railroad 
company was caught in the vise and it brought an action in 
a New York State court against both unions for a declara­
tory judgment and prayed for an interpretation of both 
agreements. This Court held that disputes between carriers 
and their employees involving the interpretation of collec­
tive bargaining agreements fell within the exclusive juris­
diction of the National Railroad Adjustment Board created 
by the Railway Labor Act.



15

There is no parallel in the facts alleged in this case to 
those involved in the Slocum case, supra. Here, the suit is 
brought by individual members of the craft against their 
collective bargaining representative alone, seeking enforce­
ment of statutory rights especially designed for their pro­
tection and welfare. Those rights inhere in the relation­
ship of craft member—craft representative created by the 
statute and are in no way dependent upon the interpreta­
tion of the collective agreement.

Furthermore, no administrative procedure was created 
by the Railway Labor Act for the determination of disputes 
between the employee and his statutory bargaining repre­
sentative. This Court stated in Steele, supra, that:

“ Section 3, First (i), which provides for reference to 
the Adjustment Board of disputes between an employee 
or group of employees and a carrier or carriers growing 
out of grievances or out of the interpretation or appli­
cation of agreements’ makes no reference to disputes 
between employees and their representative.”  323 TT.S. 
192, 205. (Italics ours.)

Since the dispute in this case is between members of the 
craft and their statutory representative, courts must exer­
cise jurisdiction or leave the members of the craft without 
remedy. The rights to fair representation and freedom from 
unlawful abuse of statutory power would be sacrificed and 
obliterated if courts were without power to redress for vio­
lations of those rights.

Petitioners urge also that the doctrine of primary juris­
diction is no bar to the exercise of jurisdiction by the court. 
This Court has limited this doctrine of prior resort so as to 
make its applicability dependent upon (1) the nature of the 
question presented and (2) adequacy of the administrative 
remedy. Thus it would seem that only those questions which 
require the skill of administrative specialists and the exer­
cise of specialized judgment should be placed beyond tradi­
tional judicial scrutiny and relegated for initial determina­
tion to an administrative agency.



16

Great Northern R. Co. v. Merchants Elevator Co., 259
U.S. 285, 66 L.Ecl. 943 (1922).

And where the administrative remedy is inadequate, or the 
failure of the court to exercise jurisdiction would result in 
a sacrifice or obliteration of the right involved, prior resort 
to the administrative agency will not be required.

Georgia v. Pennsylvania R. Co., 324 U.S. 439, 89 L. Ed.
105 (1945).

Steele v. Louisville & Nashville R. Co., supra.

Inasmuch as an interpretation of the collective agreement 
is neither necessary nor required in this case, no adminis­
trative expertise nor specialized skill and judgment is 
needed for a determination of the issues involved. As has 
been pointed out, the Railway Labor Act has not placed 
jurisdiction in the National Railroad Adjustment Board of 
disputes between employees and their representative. Fur­
thermore, the Brotherhood has its own representative on the 
Adjustment Board. That representative is paid by the 
Brotherhood and has no fixed term of employment, but is 
recallable at the will of the Brotherhood. Thus to require 
petitioners to submit their case to the Adjustment Board 
would be to compel them to have their rights adjudicated 
by the very same persons who are destroying them. More­
over, this Court has already held that where a collective 
bargaining representative engages in hostile discrimination 
against Negro members of a craft, those discriminated 
against are without adequate administrative remedy, and 
prior resort to the agencies created by the statute is not 
required.

Steele v. L. & N. R. Co., supra.
Brotherhood of Railroad Trainmen v. Howard, supra.

Petitioners conclude, therefore, as this Court did in Steele, 
supra:

“ In the absence of any available administrative rem­
edy, the right here asserted, to a remedy for breach of



17

the statutory duty of the bargaining representative to 
represent and act for the members of a craft, is of judi­
cial cognizance. That right would be sacrificed or oblit­
erated if it were without the remedy which courts can 
give for breach of such a duty or obligation and which 
is their duty to give in cases in which they have juris­
diction. . . For the present command there is no mode 
of enforcement other than resort to the courts, whose 
jurisdiction and duty to afford a remedy for a breach 
of statutory duty are left unaffected.”  (323 U.S. 192, 
207). (Italics ours).

CONCLUSION

It is respectfully submitted that this complaint, charging 
abuse of Federal statutory power and disregard of statutory 
obligation by the Brotherhood and the use by it of its posi­
tion to discriminate against Negro members of the craft, 
solely because of their race, is of judicial cognizance, and 
that the courts below erred in dismissing for lack of juris­
diction of the subject matter.

Respectfully submitted,
J oseph C. W addy 
R oberson L. K ing 
Counsel for Petitioners

R obert L. Carter 
W illiam  C. Gardner 
W illiam  B. B ryant

Of Counsel