Steele v. Louisville and Nashville Railroad Company Record and Briefs
Public Court Documents
October 4, 1943 - December 18, 1944
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Brief Collection, LDF Court Filings. Steele v. Louisville and Nashville Railroad Company Record and Briefs, 1943. 47fd6178-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/944a5354-869b-47ce-b9a5-7871a08cc173/steele-v-louisville-and-nashville-railroad-company-record-and-briefs. Accessed May 12, 2025.
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R E C O R D
AMD
BRIEFS
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1943
No. 826
BESTER WILLIAM STEELE,
vs.
Petitioner,
LOUISVILLE & NASHVILLE RAILROAD COMPANY,
A C orporation ; BROTHERHOOD OF LOCOMOTIVE
FIREMEN & ENG-INEMEN, W. H. THOMAS, J. P.
ADAMS and B. F. McGILL.
PETITION FOR W R IT OF CERTIORARI TO THE
SUPREME COURT OF A L A B A M A AND BRIEF IN
SUPPORT THEREOF.
J oseph C. W addy,
Of Counsel.
A r t h u r D. S hores,
Ch arles H . H ouston ,
Counsel for Petitioners.
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INDEX.
S u bject I n d ex .
Page
Petition for writ Of certiorari.................................... 1
Opinions below ..................................................... 1
Jurisdiction .......................................................... 2
Statute involved ................................................... 2
Statement .............................................................. 2
Questions presented......... ............................ 8
Reasons for granting’ the writ.............................. 8
Brief in support of petition......................................... 10
Preliminary statement......................................... 10
Specifications of e r ro r ............................... 10
Summary of argument...................... 11
Argument .............................................................. 11
Point I ............................................................ 11
II .......................................................... 15
III ........................................................ 17
I V ........................................................ 19
Conclusion.......................... 19
Appendix—Notice......................................................... 21
' i j —Agreement................................................. 23
—Supplemental agrement.......................... 27
T able of Cases C it e p .
Bankers Fire <& Marine Ins. Co. v. Sloss, 229 Ala. 26,
155 So. 371 ................................................................ 18
Cameron v. International Alliance, 118 N. J. Eq. 11,
176 A. 697, 97ALR 592 ............................................. 12
Carter v. Carter Coal Co., 298 U. S. 238, 80 L. Ed.
1160..................................... 12,13
Corrigan v. Buckley, 271 U. S. 323, 70 L. Ed. 969. . . . 15
Farris v. Dudley, 78 Ala. 124....................................... 18
General Committee v. M. K. T. R. Co., 320 U. S. 338. . 7
General Committee v. So. Pacific Co., 320 U. S. 323... 7
Hartley v. Brotherhood of Ry. & S. S. Clerks, 283
Mich. 201, 277 X. W. 885................ 18
Ledford v. Chicago, M. & St. P. Ry. Co., 298 111. App.
298,18 N. E. (2d) 568 ............................................... 9
—1276
Page
Nixon v. Condon, 286 U. S. 73, 76 L. Ed, 984............. 16
Norris v. Alabama, 294 U. S. 587, 79 L. Ed. 1074. . . . 19
Piercy v. Louisville & Nashville R. Co., 198 Ky. 477,
248 S.W. 1042............................................................ 9
Poindexter v. Greenhow, 114 U. S. 270, 29 L. Ed.
185.............................................................................. 20
Rogers v. Rrightman, 189 Ala. 228, 66 So. 71............. 18
Shelton v. Timmons, 189 Ala. 289, 66 So. 9 ................. 18
Switchmen’s Union v. National Mediation Board,
320 r . S. 297............................................................. 7
Tunstall v. Brotherhood, No. 779, October Term,
1943............................................................................. 8,10
U. S. F. & G. Co. v. Millonas, 206 Ala. 147, 89 So.
732, 29 ALR 520........................................................ 18
S tatutes C ited .
Alabama Code 1940, Title 7, Art. 12............................ 18
Judicial Code, Section 240(a), as amended by the Act
of February 13,1925 (28 IT. S. C., Section 347). . . . 2
Railway Labor Act (Act of May 20,1926 as amended
by the Act of June 20, 1934), 45 U. S. C., Sections
151-164....................................................................... 2
Oth er A u th o rity C ited .
40 Opinions of the Attorney General, Op. 59............. 12
i i INDEX
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1943
No. 826
BESTER WILLIAM STEELE,
Petitioner, vs. ’
LOUISVILLE & NASHVILLE RAILROAD COMPANY,
a C orporation ; BROTHERHOOD OF LOCOMOTIVE
FIREMEN & ENGINEMEN, W. H. THOMAS, J. P.
ADAMS and B. F. McGrILL.
PETITION FOR W R IT OF CERTIORARI.
To the Honorable the Chief Justice and the Associate
Justices of the Supreme Court of the United States:
Petitioner Bester William Steele respectfully prays that
a writ of certiorari issue to review a judgment of the
Alabama Supreme Court entered in the above-entitled
cause January 13, 1944, which affirmed a decree of the Cir
cuit Court of Jefferson County, dismissing petitioner’s
Substituted Amended Complaint on demurrers filed thereto
by the respondents.
Opinions Below.
The opinion of the Alabama Supreme Court is reported
in 16 So. (2d) 416; and in the record at pp. 131 to 144.
The opinion of the Circuit Court of Jefferson County is
not reported, It appears in the record at pp. 124 to 126,
lo
2
Jurisdiction.
The jurisdiction of this Court is invoked under Section
240 (a) of the Judicial Code, as amended by the Act of Feb
ruary 13, 1925 (28 U. S. C. Section 347).
Statute Involved.
The statute involved is the Railway Labor Act (Act of
May 20, 1926 as amended by the Act of June 20, 1934 (45
U. S. C. Sections 151-164), which is printed in the appendix
to the petition and brief in Tunstall v. Brotherhood of Loco
motive Firemen and Enginemen, October Term, 1943, No.
779, to which reference is now respectfully made.
Statement.
This case was submitted and decided on petitioner’s
Substituted Amended Complaint and supporting Exhibits
(R. 83 to 98).
Petitioner, a Negro locomotive fireman employed by the
respondent Louisville & Nashville Railroad Company (here
inafter called the Railroad) on its seniority district known
as the South and North Alabama Division (hereinafter
called the S. & N. A. Division), sued the Railroad and the
Brotherhood of Locomotive Firemen & Enginemen (herein
after called the Brotherhood) which represented the entire
craft of locomotive firemen on the Railroad under the
Railway Labor Act and certain members of the Brother
hood, for injunction against the Railroad or the Brother
hood enforcing or recognizing a certain Agreement of
February 18, 1941 or Supplement May 12, 1941, negotiated
by the Brotherhood for the whole craft of firemen;
for an injunction against the Brotherhood acting as
his representative under the Railway Labor Act so long as
it refused to give him notice, opportunity to be heard, or
voice in the formation of policy adversely affecting his
3
interests, or so long as it discriminated against the Negro
minority nonmembers in favor of its white majority mem
bers ; a declaratory judgment establishing the rights, status
and other legal relations of the parties; damages and dis
covery (R. 96 to 97). Petitioner sued in his individual
capacity and as representative of the Negro firemen em
ployed on respondent Railroad as a class (R. 84).
Petitioner holds seniority as a fireman on the S. & N. A.
Division from March 5, 1910. When the Substituted
Amended Complaint was filed he was 55 years of age, in
perfect health, able and ready to work, and had worked to
the complete satisfaction of the Railroad without a demerit
in the past 16 years. From December 28, 1921 to April 8,
1941 he was in road passenger service (R. 85). Prior
to the passage of the Railway Labor Act down to April 8,
1941 he was in the South-End Passenger Pool, one of the
best jobs in his seniority district (R. 91). His contract of
employment included the terms of the collective bargaining
agreement between the Railroad and its firemen and hostlers
dated March 1, 1929 (R. 86; 146) which provided in part
that in assignment of runs preference should be given to
the oldest fireman in road service when competent and
worthy (R. 153).
The white Brotherhood members constitute the majority
firemen on the entire Railroad system and ever since the
passage of the Railway Labor Act have designated the
Brotherhood as the representative for purposes of the Act
of the entire craft or class of firemen on the Railroad (R. 86).
The Negro minority firemen and the white Brotherhood-
member majority firemen constitute the entire craft or class
of firemen on the Railroad (R. 86). Negro firemen are ex
cluded from the Brotherhood by constitution and ritual
solely because of race (R. 83). The Negro firemen were
never given the opportunity to participate in the selection
of a representative for the entire craft or class of firemen
2o
4
and do not know how the Brotherhood was chosen (R. 86);
but by virtue of their minority position they have been
compelled to accept the Brotherhood as their representative
under the Railway Labor Act (R. 87) and they did accept
the Brotherhood as their representative assuming it would
act without fraud or discrimination and relied on it for pro
tection in collective bargaining and handling of grievances
(R. 87).
By accepting the designation as representative and as
serting the exclusive right to represent the entire craft or
class of firemen under the Railway Labor Act, the Brother
hood placed itself in a confidential relationship with each
fireman in the craft, and was under a duty to represent him
impartially, to give him notice, opportunity to be heard and
a chance to vote on any proposed policy adversely affecting
his interest; to make prompt and full disclosure of all ac
tions taken by it and not to discriminate against a non-mem
ber in favor of itself and its members. Yet it has been per
sistently hostile to the Negro firemen and has sought to
drive them out of service in order to create a monopoly of
employment or the best jobs for its own members, regard
less of seniority, competence or worth. It has refused to
give the Negro firemen notice, opportunity to be heard or
vote on matters of policy affecting their interests adversely,
or to report its actions, or to handle their grievances wher
ever there is a conflict of interest between them and the
Brotherhood members; or to give them fair, honest repre
sentation under the Railway Labor Act (R. 87-88).
March 28, 1940, without notice to the Negro firemen or
giving them a chance to be heard or to vote on the matter,
the Brotherhood, acting as representative of the entire craft
of firernen under the Railway Labor Act on each of the 21
railroads mentioned therein, served a Notice as provided
under the Act for modification of existing collective bar
gaining agreements (R. 88). The Brotherhood proposals
5
aimed at driving the Negro firemen completely out of the
service of the railroads and creating a closed shop for its
own membership. It proposed
“ 1. Only promotable men will be employed for serv
ice 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 as
signed to them.
“ 3. When permanent vacancies occur on established
runs or jobs in any service, only promotable firemen
or helpers will be assigned to them” (E. 59).
Under railroad practice, engineers are chosen by promotion
from the ranks of firemen. Negroes are never promoted
from firemen to engineers. Hence, in railroad parlance,
white firemen universally are called “ promotable men” ;
Negroes designated as “ non promotable men” (R. 89).
Without notice to the Negro firemen or opportunity for
them to be hea^d, the Brotherhood and the railroads, after
negotiations pursuant to said Notice, entered into an Agree
ment February 18, 1941 (E. 90) seriously curtailing Negro
firemen’s employment and seniority rights: restricting their
employment to seniority districts they were then working
on, providing that in such seniority districts they should not
exceed fifty per cent in each class of service on the district
and that until such percentage should be reached only pro
motable men should 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
(R. 10-13). On May 12, 1941 the respondent Railroad and
the Brotherhood acting again as representative of the entire
craft of firemen under the Railway Labor Act, without notice
to the Negro firemen, negotiated a supplementary agree
ment for the practical administration of the Agreement of
6
February 18,1941, and providing inter alia that the Brother
hood firemen should get the odd job in each class of service
(R. 13-21).
The Brotherhood never reported the fact of the Notice,
the Agreement or the supplementary agreement to the
Negro firemen; the Railroad and Brotherhood put same
into effect without notice to the Negro firemen (R. 90).
Although Negro firemen constituted the minority firemen
on the entire respondent Railroad system, they constituted
more than fifty per cent on the S. & N. A. Division and three
other seniority districts (R. 86). Prior to the passage of the
Railway Labor Act and down to April 8, 1941, as above
noted, petitioner was in the South-End Passenger Pool,
composed of six firemen (five Negro and one white). April
8, 1941 the Pool was reduced to four firemen; and although
petitioner and two other Negro firemen were entitled to re
main in the Pool by reason of seniority, competence and
worth, yet the Railroad and the Brotherhood pursuant to
said Agreement of February 18, 1941 arbitrarily disquali
fied all the Negro firemen and reformed the Pool with four
white Brotherhood member firemen, all junior to petitioner
and no more competent or worthy (R. 92).
In consequence petitioner was completely out of work for
16 days; then had to take a more arduous, less remunerative
job on a local freight (R. 93). Theerafter on December
22, 1941 the Railroad and the Brotherhood under said
Agreement and supplement supra took that job away from
him, replaced him by a Brotherhood member junior to him,
no more competent or worthy, and in spite of the fact no
complaint had been made about his work. As a result he had
to take a job firing a switch engine, which was even worse
than local freight (R. 93). He stayed on the switch engine
until January 3, 1942 when he was reassigned to the South-
End Passenger Pool (R. 93); but the Agreement and Sup
plement still remain in effect.
7
Petitioner appealed for relief and redress to the highest
operating officer of the Railroad and to the general officers
of the Brotherhood without effect, and has exhausted his
remedies within the Railroad and the Brotherhood.
On demurrers filed by the respondents, the Circuit Court
dismissed the Substituted Amended Complaint, holding
‘ ‘ The contract of 1941 appears on its face as one de
signed to increase the number of promotable firemen.
It makes available more men who have been necessary
to the proper operation of the railroad. In any event
the bill fails to negative such necessity or to aver that
a contract more favorable to complainant and his class
was a practical possibility. The general allegations of
fraud and discrimination in the execution of the con
tract are not assumed to be true merely because its
provisions are not as favorable to the entire group of
employees, or a portion thereof, as were the provisions
of a folmer contract” . (R. 125).
On appeal the Supreme Court of Alabama affirmed, hold
ing
1. that the recent cases Switchmen’s Union v. National
Mediation Board, 320 U. S. 297; General Committee v.
M. K. T. R. Co., 320 IT. S. 338; and General Committee v.
So. Pacific Company, 320 U. S. 323, did not apply (R. 134;
16 So. 2d at p. 418).
2. that the Railway Labor Act did not intend to create a
confidential relation between the representative and the
workers it represents, but merely intended that there be a
representative chosen by the majority to bargain for the
entire craft, “ without any notion of liability to the indi
vidual” (Italics ours; (R. 137; loc cit., p. 419), and that the
representative is under no duty of notice and hearing to
the minority and can look out for the interest of its own
members to the detriment of the minority. (Italics ours;
R. 142, loc. cit. at p. 422).
8
3. that Congress had left seniority rights as a matter of
contract to the parties and the contract in question was law
ful (R. 143; loc. cit. at pp. 419, 423).
4. that neither the Railroad nor the Brotherhood was
guilty-of fraud (R. 144; loc. cit. atpp. 420, 422).
5. that the restraints of the Fifth Amendment do not
apply (R. 134; loc, cit. at p. 418).
Questions Presented.
1. Does the representative under the Railway Labor Act
of an entire craft or class of firemen on a carrier have
a duty to represent all members of the craft or class, in
cluding the minority firemen, fairly and impartially?
2. Are the grant of power by Congress to and the exer
cise of such power by the collective bargaining representa
tive under the Railway Labor Act subject to the restraints
of the Fifth Amendment to the United States Constitution?
3. Did the Notice of March 28, 1940, the Agreement of
February 18, 1941 and Supplement of May 12, 1941 under
the circumstances infringe petitioner’s rights and deprive
him of his property without due process of law as guar
anteed him by the Fifth Amendment, and impose on him
an economic servitude inconsistent with the Thirteenth
Amendment ?
Reasons for Granting the Writ.
1. There is a basic conflict between the decision of the
United States Circuit Court of Appeals, Fourth Circuit,
in a companion case (Tmstall v. Brotherhood of Loco
motive Firemen & Enginemen, U. S. Supreme Court, Oc
tober Term, 1943 No. 779) and the Alabama Supreme Court
as to the effect of the decisions of the United States Supreme
Court cited herein on p. 7, and in the record at p. 134.
2. There is no administrative tribunal or agency estab
lished under the Railway Labor Act with jurisdiction to
9
afford minority workers an opportunity to be heard and
redress against wrongs and oppression by the majority
workers who have seized the bargaining rights and griev
ance representation for the entire craft or class by virtue
of the Railway Labor Act.
3. This case peremptorily calls for review by this Court
to establish uniformity of operating conditions on interstate
carriers as to the position of the craft representative under
the Railway Labor Act, so that the rights and duties of
the craft representative will not vary from state to state.
For example, compare the present case with
Ledford v. Chicago, M. & St. P. Ry. Co., 298 111. App.
298, 18 N. E. (2d) 568 (1939);
Piercy v. Louisville & Nashville R. Co., 198 Ky. 477,
248 8. W. 1042 (1923, antedating the Act).
4. The questions presented are of paramount public in
terest as they affect not only Negro firemen but all minor
ity workers in the railway industry, and consequently the
whole condition of interstate commerce throughout the
nation.
5. Lnless this controversy is decided by the peaceable
processes of the Courts it will lead to industrial warfare
and paralysis of the war effort.
W herefore petitioner prays that a writ of certiorari
issue to review the judgment of the Alabama Supreme Court
entered herein January 13, 1944, and that the Court reverse
such judgment after hearing and consideration.
Respectfully submitted,
A r t h u r D . S hores,
C harles H . H ouston ,
Counsel for Petitioner.
J oseph C. W akdy,
Of Counsel.
10
BRIEF IN SUPPORT OF PETITION FOR W R IT OF
CERTIORARI.
Preliminary Statement.
We refer to the foregoing* petition for a citation of the
opinion below, statement of grounds of jurisdiction, cita
tion of statute involved and a summary statement of the
case.
We further ask that this case be considered along with
its companion case, Tunstall v. Brotherhood of Locomotive
Firemen Enginemen, October Term, 1943, No. 779.
Specifications of Error.
The Alabama Supreme Court erred in holding
1. That the Railway Labor Act imposed no fiduciary
duties on the collective bargaining representative as to
the minority members of the craft, and that the repre
sentative can advance the interests of the majority at the
expense of the minority.
2. That the grant of power by Congress under the Rail
way Labor Act to the representative designated by the
majority to bargain collectively for the entire craft or
class and the exercise of such power by the representative
were not subject to the restraints of the Fifth Amendment
to the United States Constitution.
3. That the Notice of March 28, 1940, the Agreement of
February 18, 1941 and the Supplement of May 12, 1941
were lawful as respects petitioner.
4. That the Substituted Amended Complaint and sup
porting Exhibits did not state a cause of action.
11
Summary of Argument,
1. The Railway Labor Act imposes a duty on the rep
resentative under the Railway Labor Act of an entire craft
or class of workers to represent all members of the craft
fairly and impartially.
2. The grant of power by Congress under the Railway
Labor Act to the representative designated by the majority
to bargain collectively for the entire craft or class and
the exercise of such power by the representative were
subject to the restraints of the Fifth Amendment to the
United States Constitution.
3. The Subsituted Amended Complaint stated a cause
of action meriting all the relief prayed for.
4. The conflict of judicial opinion regarding the posi
tion of the craft representative under the Railway Labor
Act needs to be reconciled.
ARGUMENT.
I.
The Railway Labor Act imposes a duty on the representa
tive under the Railway Labor Act of an entire craft or class
of workers to represent all members of the craft fairly and
impartially.
The collective bargaining and grievance representative
of an entire craft or class of workers under the Railway
Labor Act is not the master but the servant of all the
workers it represents.
E. g., see Section 1 (Sixth); Section 2; etc.
3o
12
Every document in this case demonstrates the fact that
both the Brotherhood and the Railroad recognize that the
Brotherhood acts in the collective bargaining process as
agent for the craft of firemen.
See:
Heading and signatures to the Firemen’s Agreement
issued March 1,1929 (R. 146; 148);
Form of the Notice of March 28,1940 (R. 59);
Form of the Agreement of February 18, 1941 (R. 13);
Form of the Supplemental Agreement of May 12,
1941 (R. 21).
The position taken by the Alabama Supreme Court that
the representative has no duty toward the minority and
can advance its own interests to the detriment of the
minority has no support in the history of Federal Railway
Labor legislation, the text of the Act, or precedents gov
erning the position of a labor union as regards its own
membership.
See:
Piercy v. Louisville <& Nashville R. Go., supra;
Cameron v. International Alliance, 118 N. J. Eq. 11,
176 A. 697, 97 A. L. R. 592.
The position of the Alabama Supreme Court would per
mit the bargaining representative to establish a closed shop
against the very text of the Act.
See:
Sec. 2—Fourth and Fifth
40 Opinions of the Attorney General, Op. 59.
In fact the position of the Alabama Supreme Court is so
patently arbitrary and open to every objection raised by
this Court in Carter v. Carter Coal Co., 298 U. S. 238,
13
80 L. Ed. 1160 (1936), that extended argument is super
fluous.
The contention of the Alabama Supreme Court that
the action of the Brotherhood was in execution of tra
ditional railroad practice of promoting only white firemen
to the position of locomotive engineer and of making avail
able more white promotable firemen for possible promo
tion to engineers does violence to the complaint and ignores
all the supporting papers attached as Exhibits.
1. There is absolutely nothing to show that this Railroad,
or any other Railroad, was suffering from a shortage of
engineers when the Notice of March 28, 1940 was served by
the Brotherhood or when the Agreement of February 18,
1941 or Supplement of May 12, 1941 was entered into, or
that anybody anticipated any shortage. The Railroads
had been obtaining sufficient engineers through all their
history without curtailing the rights of Negro firemen as
firemen as the Brotherhood proposed and insisted upon.
The Railroads were not complaining. The Notice and the
pressure proceeded from the Brotherhood for selfish
reasons (R. 89).
2. The very terms of the Notice of March 28, 1940 show
that the patent purpose of the Brotherhood was complete
elimination of Negro firemen in the railroad industry. The
Notice was not confined to the respondent Railroad but
extended to the major lines operating in the Southeastern
section of the United States, where employment of Negro
firemen is chiefly concentrated (R. 60).
3. The Agreement of February 18, 1941 itself demon
strates the purpose of the Brotherhood: Employment of
Negro firemen was cut to 50% on seniority districts where
they were then working, they were barred absolutely from
employment on any other seniority districts and the Broth-
14
erliood left its hands free to press for more onerous re
strictions on use of Negro firemen on the individual car
riers beyond the limitations imposed by the Agreement
itself (R. 12-13).
4. The Brotherhood in the Supplement of May 12, 1941
grabbed the last fractional advantage over Negro firemen
by providing that under the 50% restriction, promotable
men (Brotherhood members) should always get the odd job
(R. 13-21).
All of these facts the Alabama Court deliberately ig
nored, as well as the specific charges in the Substituted
Amended Complaint that the purpose of the Brotherhood
in the premises was to drive the Negro firemen out of em
ployment and create a closed shop for its own membership;
that it asserts exclusive grievance representation for the
entire craft of firemen but refuses to represent the Negro
firemen when their interests conflict with those of its own
membership (R. 88). On demurrer these allegations must
be taken as true.
The entire position of petitioner rests upon the relation
ship which Congress created between the collective bar
gaining and grievance representative and the members of
the craft it represents under the Railway Labor Act. If
Congress established a confidential relationship between
the representative and the workers, and imposed fiduciary
duties on the representative to represent all members of
the craft impartially, petitioner has undoubtedly stated a
cause of action. Since this is not an extensive brief on
the merits, and since the argument that Congress did es
tablish such a confidential relation and fiduciary duty on
the representative has been made in the Tunstall case (See
Petition and Brief. No. 779 supra pp 9-12), petitioner con
tents himself with referring to that argument and adopt
ing it herein.
15
The nub of the whole matter is that the Alabama Su
preme Court gagged on the possibility of promotion of
Negro l o c o m o t i v e firemen to the position of engineer
(R. 142; loc. cit. at p. 422). Although petitioner did not
raise that question in this case, the Court itself conjured
up the matter:
“ True, complainant in this particular case does not
seek to be placed in the promotable class; that is, he
does not seek to be declared in this suit eligible for
the position of engineer. But our previous discussion
discloses that a recognition of the principles for which
he contends here will ultimately lead to that end. If
the Brotherhood is his confidential agent, and must
look to his interest, it must look to his promotion in
the final analysis.” (R. 142; loc. cit. at p. 422).
Petitioner is not seeking promotion but protection of his
rights as a fireman; and he declines to permit the issue to
be turned from that point.
II
The grant of power by Congress under the Railway Labor
Act to the representative designated by the majority to bar
gain collectively for the entire craft or class and the exer
cise of such power by the representative were subject to the
restraints of the Fifth Amendment to the United States Con
stitution.
Petitioner c o n c e d e s that the restraints of the Fifth
Amendment have not yet been applied to the actions of
private individuals proceeding without reference to a grant
of governmental authority.
See Corrigan v. Buckley, 271 U. S. 323, 70 L. ed. 969.
But that is not this case. The Brotherhood represents the
entire craft or class of firemen on respondent Railroad not
by mandate of the men themselves but solely by grant of
power from Congress in the Railway Labor Act. The
16
Brotherhood is fastened on the Negroes against their con
sent and being in the minority they have no way of un
loading the Brotherhood as their representative under the
Railway Labor Act. Further Congress has set up no ad
ministrative machinery under the Railway Labor Act to
deal with disputes between different classes of employees
within a craft which do not involve the identity of the rep
resentative. No administrative machinery is established
under the Act to supervise or check the conduct of the rep
resentative once chosen. Yet the effect of the grant of
power by Congress to the Brotherhood as representative
under the Act of the entire craft of firemen and the actual
exercise of that power by the Brotherhood as sanctioned
by the Alabama Supreme Court is to place the minority
members’ jobs at the absolute and unrestrained power of
the representative. Such unbridled grant of power, with no
guiding standards, would be an unconstitutional delegation
of legislative power and deprivation of liberty and prop
erty without due process of law.
Carter v. Carter Coal Co., supra.
The question cannot be dismissed cavalierly, as the Ala
bama Supreme Court attempts to do, by suggesting that the
Brotherhood is a private person (R. 134; loc. cit. at p. 418).
Nixon v. Condon, 286 U. S. 73, 88, 76 L. Ed. 984, 990:
“ The pith of the matter is simply this, that when
those agencies are invested with an authority inde
pendent 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 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.” (loc. cit.
at p. 88)
17
Here unless the grant of power is to violate both the Fifth
and Thirteenth Amendments and place the Negro firemen
in economic serfdom to the Brotherhood, the grant must be
subject to constitutional restraints. It is unthinkable that
Congress, itself the creature of representative government
with limitations both written and implied, did not use the
word representative in the Railway Labor Act in the sense
of creating such representative the agent or servant of the
workers it represents, with a duty to represent the entire
craft impartially.
III.
The Substituted Amended Complaint stated a cause of
action meriting all the relief prayed for.
It is to be noted that the Alabama Supreme Court did
not raise any procedural questions in disposing of this case;
but it did misread the facts and statements in the Substi
tuted Amended Complaint and exhibits.
For example, it states: ‘ ‘ There is no charge of bad faith
or malice against the complainant or any of his class” on
the part of the Brotherhood (R. 142; loc. cit. at p. 422).
The complaint specifically charges the Brotherhood with
being hostile and disloyal to the Negro firemen and details
the particulars (R. 88). It specifically charges fraud and
details the particulars (R. 88-93).
The Alabama Supreme Court concedes that an unlawful
invasion or interference with seniority rights is actionable
(R. 135; loc. cit. at p. 419), but finds the interference in the
present case lawful.
The case returns to the point of beginning: the relation
ship between the craft representative under the Railway
Labor Act and the members of the craft it represents. The
Court concedes that if a confidential relationship and fiduci
ary duty have been created, the Brotherhood violates same
by advancing its own interests at the expense of the minor
18
ity (R. 142; loc. cit. at pp. 419-423). But it finds that
“ Congress in providing for collective bargaining by repre
sentative of a craft or class, had no intention of creating a
confidential relationship of principal and agent” (R. 136;
loc. cit. at p. 419).
Based on such relationship petitioner is entitled to all the
relief sought:
1. Damages:
U. S. F. d G. Co. v. Millonas, 206 Ala. 147, 89 So. 732,
29 A. L. R. 520;
Farris v. Dudley, 78 Ala. 124.
2. Injunction:
Bankers Fire & Marine Ins. Co. v. Sloss, 229 Ala. 26,
155 So. 371;
Rogers v. Brightman, 189 Ala. 228, 66 So. 71 (1919);
Ledford v. Chicago, M. d S.t. P. Ry. Co., supra;
Piercy v. L. & N. R. Co., supra,
3. Discovery:
Shelton v. Timmons, 189 Ala. 289, 66 So. 9.
4. Declaratory judgment:
Ala. Code 1940, Title 7, Art. 12.
The cases cited by the Alabama Supreme Court to sup
port its ruling that the Brotherhood had control over peti
tioner’s seniority rights do not reach his situation. These
cases hold that the representative can incidentally modify
the seniority rights of individual workers “ in the interests
of all the members.”
E. g. Hartley v. Rrotherhood of Ry. <& 8. S. Clerks, 283
Mich. 201, 277 N. W. 885, 887 (cited by the Alabama
Court R. 135, loc. cit. at p. 419).
19
But our case is one where the Brotherhood curtailed peti
tioner’s seniority rights through hostility to petitioner and
for the profit of its own members.
Cf. Ledford v. Chicago, M. d St. P. Ry. Co., supra.
This Court is not bound by the construction placed on
the Substituted Amended Complaint by the Alabama Su
preme Court. Where constitutional rights are claimed and
the decision on the question of the right depends on the
facts, this Court will make its own independent review and
finding on the claim of discrimination.
Norris v. Alabama, 294 U. S. 587, 79 L. Ed. 1074.
IV.
The conflict of judicial opinion regarding- the position of
the craft representative under the Railway Labor Act needs
to be reconciled.
The conflict of judicial opinion has already been noted:
cf. Ledford v. Chicago, M. $ St. P. Ry. Co., supra, with the
instant case. Compare also the Tunstall case, No. 779,
supra, with the instant case on the applicability of the three
decisions of this Court above cited.
Certainly argument is unnecessary to demonstrate the
need of review under such circumstances so that there may
be uniformity of operating conditions in interstate com
merce, and so that the collective bargaining representative
will have the same rights and duties with respect to the
craft or class of workers it represents along the entire
mileage of the carrier.
Conclusion.
Repeatedly the efforts of the white firemen to drive the
Negro firemen out of service have broken out in violence.
The records are recorded in the Federal Archives; the tes
20
timony was taken before the President’s Committee on Fair
Employment Practice in September, 1943; before tbe
Select Committee of tbe House of Representatives to
Investigate Executive Agencies (Smith Committee) in
March, 1944. The seeds of industrial warfare which
will adversely affect the war effort are present. It
is paramount in the public interest that the rights and
duties of the collective bargaining and grievance repre
sentative under the Railway Labor Act be determined
peaceably by the Courts, since no other forum for hearing
and determination of the problem exists (and a forum must
be found to satisfy the requirements of due process—See
Poindexter v. Greenhorn, 114 IT. S. 270, 29 L. Ed. 185) rather
than risk the interruption to commerce and attendant evils
by settling the question by violence.
Respectfully submitted,
A r t h u r D . S hores,
C harles H . H ouston ,
Counsel for Petitioner.
J oseph C. W aduy,
Of Counsel.
APPENDIX
' ' .. was®
i#p p fe® w «
■
>.
21
Brotherhood of Locomotive Firemen and Enginemen
General Grievance Committee
------Railway,
March 28, 1940.
M r.------------- .
D ear S i r :
This is to advise that the employees of the -------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
of rules governing the employment and assignment of loco
motive firemen and helpers, as follows :
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 serv
ice, only promotable firemen or helpers will be assigned to
them.
3. When permanent vacancies occur on established runs
or jobs in any service, only promotable firemen or helpers
will be 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.
The same request is this date being presented on the
following railroads.
Atlantic Coast Line.
Jacksonville Terminal.
Atlanta Joint Terminal.
Atlanta & West Point.
22
Western Railroad of Ala.
Central of Georgia.
Frankfort & Cincinnati.
Georgia Railroad.
Georgia & Florida.
Gulf, Mobile & Northern.
Louisville & Nashville.
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 division of railway con
trolled by the------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 writ
ing 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 pur
pose of discussing 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 proposition, 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,
(S igned)------------
General Chairman.
23
Agreement.
Between
The Southeastern Carriers’ Conference Committee, Rep
resenting the Atlantic Coast Line Railway Company.
Atlanta and West Point Railroad Company Western
Railway of Alabama.
Atlanta Joint Terminals.
Central of Georgia Railway Company.
Georgia Railroad.
Jacksonville Terminal Company.
Louisville and Nashville Railroad Company.
Norfolk and Portsmouth Belt Line Railroad Company.
Norfolk Southern Railroad Company.
St. Louis San Francisco Railroad Company.
Seaboard Air Line Railway Company.
Southern Railway Company (including State Univer
sity Railroad Company and Northern Alabama Railway
Company).
The Cincinnati, New Orleans and Texas Pacific Rail
way Company.
The Alabama Great Southern Railroad Company (includ
ing Woodstock and Blocton 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. John River Terminal Company.
Harriman and Northeastern Railroad Company.
Cincinnati, Burnside and Cumberland River Railway
Company.
Tennessee Central Railway Company and the Brother
hood of Locomotive Firemen and Enginemen.
(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 estab
lished as such on each individual carrier. This agreement
24
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, dis
missal, resignation or disqualification shall be filled by pro
motable men. A change in the starting 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
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 posi
tion of locomotive engineers.
(5) It is understood and agreed that on any road hav
ing, in the opinion of its B. of L. F. and 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 provisions.
(6) All persons hereafter hired as firemen shall be re
quired in addition to showing in the opinion of 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.
25
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
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 examination 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 perod 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 he dropped from 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 examinations for promo
tion 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 carrers.
26
(8) Ths agreement shall become effective February 22,
1941.
Signed at Washington, D. C., this 18th day of February,
1941.
For the Employees:
B rotherhood of L ocomotive
F irem en and E n g in e m e n ,
D. B . R obertson,
President.
B rotherhood of L ocomotive
F irem en and E n g in e m e n ’s
C om m ittee ,
W. 0. M etcalfe ,
Chairman.
For the Carriers:
S outheastern Carrier C o n
ference C o m m itte e ,
C. D . M ack ay ,
Chairman.
C. D. M ac k a y ,
H. A. B e n t o n ,
C. G. S ibley ,
Committee Members.
27
Supplemental Agreement.
Agreement in connection with application on the L. & N.
Railroad of Agreement between the Southeastern Carriers
Conference and the Brotherhood of Locomotive Firemen
and Enginemen, dated Washington, D. C., February 18, 1941,
to become effective February 22, 1941, regarding the em
ployment and the assignment of firemen, as agreed by
Mr. W. B. Porter, Asst. Director of Personnel
Mr. G. C. Howard, Asst. Director of Personnel
Representing the L. & N. Railroad, and
Mr. W. C. Metcalfe, General Chairman
1. Q. What constitutes a new run under Article 2 (b) of
the agreement above mentioned?
A. When it is changed to the extent that it is operated
out of different terminals, the mileage lengthened or short
ened to the extent of 20 miles per day, or the scheduled com
pensation on runs paid under Article 3, Section (a), of the
general Agreement, changed to the equivalent of 20 miles
per day, when a run is operated six days per week instead
of seven, or vice versa, and new run hereafter inaugurated
or any run discontinued and thereafter reestablished. (See
Article 25, Sections 12 and 13.)
In yard service it is understood that a new job is when
a job is changed from a six day job to a seven day job,
or from a seven day job to a six day job, or where the point
for going on duty or being relieved is permanently changed
as such as one-half mile, and any job hereafter inaugurated
or any job discontinued and thereafter rebulletined. Chang
ing the off day without changing the number of days worked
per week would not constitute a new job. (See Art. 25,
Sections 12 and 13.)
Adjusting Pool Boards
2. Q. In the matter of increasing first and second pool
boards, where such pools are maintained, would the ad
dition of one or more men to such pools be considered as
28
a new job in the purview of Article 2(b) of the above
mentioned agreement?
A. Yes.
3. Q. In making reduction in the number of men in either
the first or second pool, how would these reductions be
made as regards promotable and non-promotable firemen?
A. Seniority will govern provided the percentage of pro
motable firemen will not reduce when such percentage is
50 or below.
For example:
If the first pool firemen’s board were increased from ten
to twelve men, there being six non-promotable and four
promotable men in that board, two promotable firemen
should be added to bring the board up to twelve, or 50
per cent.
If a reduction were made in such board from twelve to
ten or two men were to be cut off, one promotable and
one non-promotable firemen would be cut off, provided the
two junior firemen were promotable, but if three instead
of two men were cut from the board, then one promotable
and the two junior non-promotable men would come off.
To further illustrate: If in second pool there were 25
promotable and one non-promotable firemen and it was
necessary to cut the board five men, the one non-promotable
fireman would be allowed to remain in the pool provided
he had seniority over the five promotable men cut off.
To again illustrate: If the first pool had ten non-promot
able and two promotable firemen and the pool had to be
reduced for men, or to sixteen. In the event non-pro
motable men had seniority over the promotable men, the
promotable men would be cut off to the extent of reducing
and maintaining the ratio 50-50. If there were six pro
motable and six non-promotable men in the pool, and it
were necessary to cut two men off, the two junior firemen
being non-promotable, they would be cut off under the
seniority rules.
29
Passenger Service.
Examples.
4. Q. There are three groups of passenger runs, two fire
men being assigned to each group—a total of six men,
all non-promotable. Each fireman is required to lose three
round trips per month account of mileage regulations.
Their runs are grouped together and seven firemen as
signed to protect them in lieu of the gouge, working first
in, first out. Under Article 26, Section 22, the six runs
would be advertised.
How should assignments be made!
A. In the event the mileage of the six non-promotable
firemen was not decreased to the extent of twenty miles
per day, or the equivalent of twenty miles per day, these
six men could not be disturbed, except under seniority
rules. However, the senior promotable firemen bidding
as the 7th man in the pool, would he assigned to the job.
5. Q. In the event the mileage or the equivalent thereof
is decreased twenty miles per day, how would assignments
then be made?
A. On seniority except that non-promotable firemen could
not be assigned to more than 50% of the jobs.
6. Q. Should these same runs later be changed and six
crew reassigned as formerly, the 7th job being cut off,
how should assignments then be made!
A. Senior applicants should be assigned.
7. Q. How should assignments be made, when the ratio
of nonpromotable to promotable firemen is 6 and 4, and a
new run is added, requiring
(A) 1 additional fireman? Ans. Senior promotable fire
man should be assigned.
(B) 2 additional firemen? Ans. Two senior promotable
firemen should be assigned.
(C) 3 additional firemen? Ans. Three senior pro
motable firemen should be assigned.
30
8. Q. Should another run he added requiring one fire
man after the ratio has reached 6 non-promotable and 7
promo table firemen, how should assignments be made?
A. As the ratio of non-promotable to promotable is less
than 50%, the senior applicant would be assigned whether
non-promotable or promotable.
9. Q. In passenger service the ratio of non-promotable
to promotable firemen stand 5 to 4. In this class there is a
group of 3 passenger runs manned by four non-promotable
and two promotable firemen. A new run is added to this
group requiring two men and the entire group of runs is
advertised, how should assignments be made?
A. Two promotable senior firemen should be assigned to
the group.
10. Q. With the ratio in this class standing 6 and 6 “ A ”
one of the promotable firemen is assigned as engineer. How
should this vacancy be filled ?
A. By senior promotable firemen.
11. Q. When “ A ” is cut off as engineer, to what run is
he entitled?
A. To any run held by a junior fireman, either pro
motable or non-promotable.
12. Q. Should “ A ” displace a junior promotable fire
man in this class, how7 should the latter be governed?
A. He should displace any junior fireman.
13. Q. If “ A ” displaces a junior non-promotable fire
man in this class, how should the latter be governed?
A. He could exercise his seniority over any junior non-
promotable firemen provided that in doing so the non-
promotable firemen should not be assigned to more than
50% of any class of service.
14. Q. The ratio in passenger service is 50-50. There are
four runs one of which is discontinued and the remaining
three runs in the group are readvertised for six men. How
should assignment be made?
A. To the senior applicant unless so doing the ratio of'
non-promotable firemen would exceed 50%, in which event
31
sufficient promotable junior firemen should be assigned to
prevent non-promotable firemen exceeding 50%.
15. Q. The ratio of non-promotable to promotable fire
men in passenger service is 5 and 8. A new run is added,
requiring:
(A) Two men
(B) Three men
(C) Four men
How should assignments be made?
A. (A) Senior applicants would be assigned.
(B) Senior applicants would be assigned.
(C) Senior applicants would be assigned,
unless by so doing the ratio of non-promotable to pro
motable firemen would thereby exceed 50%, in which event
sufficient junior promotable firemen would be assigned to
avoid this.
Assigned Through Freight Service.
16. Q. The ratio of non-promotable to promotable fire
men is 8 and 5. One of the non-promotable firemen gives
up his run and takes pool service, how should his vacancy be
filled?
A. By the senior applicant.
17. Q. Should the senior applicant be promotable fireman
in the same class, how should this vacancy be filled?
A. By the senior applicant.
18. Q. The ratio of non-promotable to promotable fire
men is 7 and 5. A non-promotable fireman dies, is dis
charged, resigns, or is disqualified, how should this vacancy
be filled?
A. By the senior applicant, (promotable)
19. Q. The ratio of non-promotable firemen is 5 and 7.
A non-promotable fireman dies, is resigned, or is discharged,
how should his place be filled?
A. By the senior applicant.
32
2Cf Q. The ratio of non-promotable to promotable fire
men is 6 and 6. A new run is added requiring two men, ho-sv
should the assignment be made?
A. By the senior applicant unless both are non-pro
motable firemen, in which event the senior promotable fire
man and senior non-promotable fireman should be assigned.
21. Q. The ratio of non-promotable firemen to pro
motable firemen is 6 and 6. A new run is added requiring
three men, how should assignments be made?
A. The senior applicant, unless they are all non-pro
motable firemen in which event one senior non-promotable
and two senior promotable firemen will be assigned.
First Pool.
22. Q. The ratio of non-promotable to promotable fire
men in first pool is 6 and 4. At the adjustment period, two
men are added to the pool. How should assignments be
made?
A. The two senior promotable applicants should be
added.
23. Q. The ratio of non-promotable firemen to pro
motable firemen in the first pool is 6 and 4. At the ad
justment period two men are to be taken out of pool.
Should non-promotable or promotable men be taken out!
A. The two junior non-promotable firemen should be
taken out of the pool.
24. Q. The ratio of non-promotable firemen to pro
motable firemen in first pool is 6 and 6. At adjustment
period two men are to be taken out. Should non-pro
motable or promotable men be taken out?
(A) Two junior men being non-promotable
(B) Two junior men being promotable
(C) One of the junior men being non-promotable and
one being promotable ?
A. (A) Seniority would govern and the two junior men
would be taken out of the pool.
(B) The junior promotable and the junior non-pro
motable would be taken out of the pool.
(C) Seniority would govern.
33
25. Q. With the same ratio under same circumstances as
outlined next above, three men are to be taken out of the
pool:
(A) The three junior men being non-promotable.
(B) The three junior men being promotable.
(C) The two junior men being non-promotable and the
next junior man promotable.
A. (A) Seniority would govern.
(B) One junior promotable man and the two junior non-
promotable men would be taken out.
(C) Seniority would govern.
Q. (D) The two junior men being promotable and two
next junior men being non-promotable.
A. (D) The junior promotable man and two junior non-
promotable men.
26. Q. When “ A ” is cut off as engineer, how should he
place himself?
A. He may displace any junior fireman.
27. Q. The ratio of promotable and non-promotable fire
men is 6 and 6. “ A ” is assigned as engineer, how should
his vacancy be filled?
A. By senior promotable fireman.
28. Q. The ratio of non-promotable to promotable fire
men in first pool is 7 and 6. “ A ” is assigned as engineer.
How should his vacancy be filled?
A. By senior promotable applicant.
29. Q. “ A ” is later cut off as engineer. How should he
place himself?
A. He may displace any junior fireman.
3CL Q. The ratio of non-promotable to promotable fire
men in second pool is 6 and 6. The first pool at adjustment
period is reduced two men, resulting in displacement of two
men in second pool? Who should be displaced?
(a) If the two junior men in second pool were promotable
men?
(b) If the two junior men in second pool were non-
promotable men?
34
(c) If tlie two junior men in the second pool were one
promotable and one non-promotable.
A. (a) The junior non-promotable man and the junior
promotable man should be taken out of the pool.
(b) Seniority would govern.
(c) Seniority would govern.
31. Q. The ratio of non-promotable men to promotable
men in the 2nd pool is 6 and 7. The first pool at adjustment
period is reduced to two men, resulting in displacement of
two men in second pool. Who should be displaced!
(a) If the two junior men were promotable!
(b) If the two junior men were non-promotable!
(c) If the two junior men were one promotable and one
non-promotable !
A. (a) The junior non-promotable and the junior pro
motable men would be taken out.
(b) Seniority would govern.
(c) Seniority would govern.
32. Q. The ratio of non-promotable men is 6 and 8 in the
second pool. The first pool at adjustment period is reduced
2 men, resulting in displacement of two men in second pool.
Who should be displaced:
(a) If the two junior men were promotable!
(b) If the two junior men were non-promotable!
(c) If the junior men were one promotable and one non-
promotable.
A. (a) Seniority would govern.
(b) Seniority would govern.
(c) Seniority would govern.
33. Q. The ratio of promotable men to non-promotable
men is 6 and 6. There is a vacancy as hostler and no bids
received, and the junior promotable fireman is assigned.
If it is necessary to fill the latter’s place in second pool,
should the non-promotable or the promotable cut off fireman
be assigned to the pool?
A. Senior promotable cut off men should be assigned.
35
34. Q. The ratio of non-promotable firemen in second
pool is 6 and 7. A vacancy as hostler is advertised and no
bids received, the junior promotable fireman being assigned.
It is necessary to fill the latter’s place. Should the senior
promotable or non-promotable fireman be added to the
second pool?
A. The senior cut off promotable fireman should be
added.
35. Q. The ratio of non-promotable to promotable fire
men in second pool is 6 and 8. A vacancy for hostler is ad
vertised and no bids received, the junior promotable fire
men being assigned. It is necessary to fill the latter’s place.
Should the senior promotable or non-promotable cut off
fireman be added to the second pool?
A. The senior cut off should be added.
It is understood by both parties to this agreement that it
became effective March 15, 1941, and no transaction that
took place prior to March 15tli is considered as coming
under the terms of Washington Mediation Agreement of
February 22, 1941.
Accepted for the L. & N. Railroad Co. by
(S.) R. C. P arsons,
Director of Personnel.
Accepted for the Employes
(S.) W. G. M etcalfe,
General Chairman, B. L. F. & E.
( 1276)
TRANSCRIPT OF RECORD
Supreme Court o f the U nited States
OCTOBER TERM, 1944
No. 45
BESTER WILLIAM STEELE, PETITIONER,
vs.
LOUISVILLE & NASHVILLE RAILROAD COMPANY,
BROTHERHOOD OP LOCOMOTIVE FIREMEN AND
ENGINEMEN, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE
OF ALABAMA
PETITION FOR CERTIORARI FILED MARCH 29, 1943.
CERTIORARI GRANTED MAY 29, 1944.
iu \ : . f c r m j -q 0 ? > -7 j
(AJv _ j L . /Or. f r / C/f S ^ J
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1943
No.
BESTER WILLIAM STEELE, PETITIONER,
vs.
LOUISVILLE & NASHVILLE RAILROAD COMPANY,
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND
ENGINEMEN, AN UNINCORPORATED ASSOCIA
TION, ET AL.
ON PETITION EOR A WRIT OP CERTIORARI TO THE SUPREME COURT
OE THE STATE OE ALABAMA
INDEX.
Original
Record from Circuit Court of Jefferson County, Alabama.. . . 2
Certificate of appeal................................................................ 2
Organization of c o u r t .................. (omitted in printing) . . 5
Original bill .............................................................................. 5
Exhibit “ 1”— Agreement dated February 18, 1941,
between The Southeastern Carriers’ Conference
Committee and the Brotherhood of Locomotive
Firemen and Englnemen............................................ 13
Exhibit “2”—Agreement in connection with applica
tion on the L. & N. Railroad of Agreement be
tween the Southeastern Carriers Conference and
the Brotherhood of Locomotive Firemen and En-
ginemen, dated February 18, 1941............................ 16
Demurrer of respondent L. & N. R. R. Company.............. 24
Plea in abatement by respondent Brotherhood.................. 30
Minute entry of submission of plea in abatement.............. 32
Print
1
1
3
10
13
21
27
29
J udd & D etw eileb ( I n c . ) , P rinters , W a s h in g t o n , D. C., M arch 29, 1944.
—1192
INDEX
Record from Circuit Court of Jefferson County, Alabama—
Continued Original Print
Decree holding plea in abatement insufficient.................. 32 29
Demurrer of L. & N. R. R. Company.................................... 33 30
Amendment to plea in abatement by Brotherhood.......... 37 34
Demurrer of Brotherhood..................................................... 38 35
Minute entry of submission of demurrers and amended
plea in abatem ent............................................................... 50 48
Decree sustaining demurrers................................................ 50 48
Decree holding plea in abatement (as amended) insuffi
cient ....................................................................................... 50 48
Order extending time to amend com plaint........................ 51 49
Amended complaint ............................................................... 51 49
Exhibit “A”—Letter, dated March 28, 1940 from
General Chairman addressed to “Dear Sir’ ’ .......... 61 59
Demurrer of L. & N. R. R. Co., refiled to bill as last
am ended................................................................................. 63 61
Demurrer of Brotherhood to amended b ill.......................... 63 61
Minute entry on submission of demurrers.......................... 78 77
Amendment to amended bill of complaint.......................... 78 77
Amendment to demurrer of Brotherhood............................ 81 79
Amended demurrer of L. & N. R. R. Co................................ 82 80
Stipulation setting aside submission on demurrers and '
granting leave to withdraw amended complaint and
to substitute another amended complaint...................... 83 82
Decree setting aside submission............................................ 84 82
Substituted amended complaint .......................................... 84 83
Note re Exhibit 1 ............................................................. 100 98
Exhibit II— (copy) .............. (omitted in printing) . . 100
Exhibit III— (cop y )..............(omitted in printing) .. 102
Demurrer of L. & N. R. R. Co., to complaint as last
amended ............................................................................... 113 98
Demurrer of Brotherhood to the substituted amended
bill ........................................................................................... 114 99
Demurrer of W. H. Thomas to substituted amended bill. 128 114
Plea in abatement of J. P. Adams to the substituted
amended b i l l ......................................................................... 136 122
Plea in abatement of B. F. McGill to the substituted
amended b i l l ......................................................................... 137 123
Amended plea in abatement of F. B. McGill to the sub
stituted amended b i l l ......................................................... 138 123
Minute entries of submission on pleadings.......................... 139 124
Decree sustaining demurrers and dismissing bill.............. 139 124
Cost bond on appeal......................(omitted in printing) . . 141
Citations on appeal................................................................. 142 126
Motion re transmittal of exhibits......................................... 143 127
Order re transmittal o f exhibits ......................................... 144 128
Certificate of the register re appeal and record................ 145 129
Proceedings in Supreme Court of Alabama................................ 146 129
Assignment of errors....................................................................... 146 129
Minute entries of argument and submission.............................. 147 130
11
INDEX 111
Original Print
Decree ............................................................................................... 149 131
Opinion, Gardner, C. J .................................................................... 150 131
Motion for stay of execution......................................................... 166 144
Order staying execution................................................................. 167 145
Complainant’s Exhibit “AA”—Agreement between Louisville
& Nashville Railroad and its locomotive firemen and
hostlers—issued March 1, 1929................................................. 168 146
Clerk’s certificate ................................(omitted in printing).. 170
Stipulation governing printing of record................................... 171 169
Order allowing certiorari............................................................. 172 170
I
[fol. 1] [File endorsement omitted]
[fol. 2] IN CIRCUIT COURT OF JEFFERSON COUNTY
Certificate of A ppeal— May 24, 1943; filed in Supreme
Court of Alabama May 26, 1943
I, G. H. Boyd, Register of the Circuit Court, Tenth Ju
dicial Circuit of Alabama, In Equity, hereby certify that in
the cause of Bester William Steele, Plaintiff, vs. Louisville &
Nashville Railroad Company, a Corporation, et al., Defend
ants, which was tried and determined in this Court on the
27th day of April, 1943, an appeal was taken by the Com
plainant, Bester William Steele, from the Decree which is
in words and figures as follows:
“ Decree on Demurrers
‘ ‘ This cause coming on to be heard is submitted for decree
upon demurrer of Respondent Louisville & Nashville Rail
road Company refilled to the substitute bill of complaint, and
demurrer of respondent Brotherhood of Locomotive Fire
men and Enginemen to the substitute bill of complaint and
the demurrer of W. H. Thomas to the substitute bill of
complaint.
“ The substitute bill of complaint charges a conspiracy
amount the respondent Railroad Corporation, the Brother
hood of Locomotive Firemen and Enginemen, its represen
tatives and its several members to fraudulently eliminate
from the services of the Railroad the complainant and other
negro firemen, or to discriminate against them in such a
way as to give the white firemen, members of said associa
tion, advantage in employment status, rate of pay, etc.,
while the bill in general terms charges fraud and discrim
ination against the negro firemen, the specific wrong com
plained of is that representatives of the Brotherhood of
Locomotive Firemen and Enginemen (who were statutory
representatives of all firemen) and the respondent Louis
ville & Nashville Railroad Company entered into an em
ployment agreement February 8, 1941, and modified on May
12, 1941, under the terms of which negro firemen, including
the com- complainant, suffered injury and damage.
[fol. 3] “ From a careful analysis of the bill it appears
that any relief to which plaintiff is entitled must be predi-
1—1192
1
2
cated upon injuries sustained by him from the wrongful
execution of the contract of 1941.
“ The rights allegedly taken away from him by such con
tract arose from a former contract negotiated for him and
others by the same Brotherhood. It is admitted by com
plainant that the Brotherhood of Locomotive Firemen and
Enginemen has the legal right to select bargaining repre
sentatives for the entire class. It is also admitted that the
universal practice among the railroads of the Country is to
promote only white firemen to the position of engineer, and
that complainant is one of a group of colored firemen who
are non-promotable under such practice. No direct relief is
here sought against that practice. The contract complained
of discloses a plan of operation whereby the number of
negro firemen is to be reduced and certain of their privileges
under the former contract abridged.
“ The contract of 1941 appears on its face as one designed
to increase the number of promotable firemen. It makes
available more men who may be ultimately promoted to the
position of engineer. Such plan may have been necessary to
the proper operation of the railroad. In any event the bill
fails to negative such necessity or to aver that a contract
more favorable to complainant and his class was a practical
possibility. The general allegations of fraud and discrim
ination in the execution of the contract are'not assumed to be
true merely because its provisions are not as favorable to
the entire group of employees, or a portion thereof, as were
the provisions of a former contract.
“ The Court is therefore of the opinion that the bill of
complaint contains no equity; that the demurrers should be
sustained and the bill of complaint dismissed. It is there
fore, ordered, adjudged and decreed by the Court that the
separate and several demurrers of the respondents, Louis
ville & Nashville Railroad Company, Brotherhood of Loco
motive Firemen and Enginemen and W. H. Thomas to the
substitute bill of complaint be and they are hereby sep
arately and severally sustained and said bill of complaint
is hereby dismissed. Court costs in this cause are hereby
taxed against complainant for which let execution issue.
“ Done and ordered, this the 27th day of April, 1943.
E. M. Creel, Circuit Judge, In Equity,’ ’
[fol. 4] therein rendered to the Supreme Court of Alabama,
to be holden of and for said State, and has given a Security
3
for Costs with Bester William Steel, (L. S.), and Fidelity
and Deposit Company of Maryland, By Nelle Steen, Attor
ney in fact, (Seal), as sureties on said Security for Costs,
and that said Security for Costs has been duly approved.
I further certify that notice of said appeal was duly issued
and served on the appellee on the 24th day of May, 1943.
Witness my hand and official seal, this the 24th day of
May, 1943.
Signed: G-. H. Boyd, Register.
[fol. 5] Organization op Court—Omitted in printing
I n C ircuit Court of J efferson C ounty
B ester W illiam S teele, Complainant
vs.
L ouisville & Nashville R ailroad C om pany , A Corporation,
and,
B rotherhood of L ocomotive F irem en , and E nginem en , an
Unincorporated Association, Respondents
Original B ill—Filed August 30, 1941
[fol. 6] To the Honorable Judge or Judges of Said Court:
1. Your Complainant shows unto your Honor that he
is a resident of Jefferson County, Alabama, and is over
twenty-one years of age, that respondent Louisville & Nash
ville Railroad Company is a corporation, incorporated in
the State of Kentucky, engaged in interstate commerce
by rail transportation, the respondent Brotherhood of
Locomotive Firemen & Enginemen (hereinafter called
Brotherhood) is a national unincorporated labor union
whose membership is principally derived from locomotive
firemen and enginemen employed on interstate railroads,
including the defendant railroad. It is composed of a
Grand Lodge and over nine hundred subordinate Lodges
including lodges and officers resident in the State of Ala
bama and Jefferson County.
4
2. Complainant is employed by the defendant Louisville
& Nashville Railroad Company, on the S. & N. A. Division,
with seniority rights as a fireman dating from February
4, 1910. He brings this action in his own behalf and as
a class suit on behalf of the other Negro locomotive fire
men on said defendant railroad, said other Negro loco
motive firemen constituting a class so numerous as to
make it impracticable to bring them all before the Court,
and there being common question of law and fact, common
grievances and common relief as well as special relief
sought.
3. The defendant Louisville & Nashville Railroad Com
pany has employed plaintiff and plaintiff is working for
it under his individual contract with said Railroad which
embodies the Locomotive Firemen and Hostlers Schedule
issued March 1, 1929. Article 26 of said Schedule covers
the seniority rights of plaintiff and provides that the oldest
firemen in road service will have the preference of runs
and promotion on the seniority territory to which assigned,
when competent and worthy. Plaintiff states that he has
an excellent service record and at all times has been and
is now wholly competent and worthy for the service he
was performing according to his seniority standing until
wrongfully displaced as hereinafter stated.
4. The gravemen of the complaint herein lies in acts
done pursuant to a conspiracy between the defendant Rail
road and the Defendant Brotherhood in which certain
[fol. 7] officials of the Railroad and certain officials of the
Brotherhood acting on behalf of the Brotherhood as the
exclusive bargaining agent under the Railway Labor Act
of June 21, 1934 (U. S. Code, Title 45, Chap. 8) did in
flict certain grievous wrongs upon plaintiff and the other
Negro locomotive firemen then employed on the defendant
Railroad individually and as a class. Plaintiff further
complains of the defendant Brotherhood separately for
the wrongs inflicted upon him individually and upon the
Negro firemen on the defendant Railroad as a class as
more fully hereinafter set forth.
5. Since the passage of the Railway Labor Act aforesaid
the defendant Brotherhood by virtue of the fact its mem
bers constitute a majority of the craft or class of loeomo-
time firemen on most of the interstate railroads of the
5
country, including the defendant railroad, has established
itself throughout the country and with the defendant rail
road as the exclusive bargaining agent and grievance rep
resentative under said Railway Labor Act with respect to
rates of pay, rules and working conditions for all the loco
motive firemen on said railroads, including the defendant
Railroad, not only for its own members but also for the
non-member Negro locomotive firemen whom it bars from
membership in its organization solely because of race or
color. It has further asserted itself under the Railway
Labor Act as the sole representative for handling disputes
between the said railroads and the individual locomotive
firemen arising out of their individual employment con
tracts on said railroads. By reason of its great member
ship and nationwide organization, its large national treas
ury, its skill and power acquired through years of experi
ence in the processes of collective bargaining and protect
ing the interest of its members it has acquired great pres
tige and coercive power over the interstate railroads, in
cluding the defendant railroad. In all matters herein
complained of the Brotherhood has claimed as its source
of authority to act and has purported to act under color
of authority of the Railway Labor Act.
6. Membership in the defendant Brotherhood has always
been and is now restricted by its constitution and practice
to white locomotive firemen and enginemen, with Negro
locomotive firemen excluded solely because of color. In
an effort to obtain for its white member locomotive firemen
a monopoly of employment on all railroads, including the
defendant Railroad, and gradually to eliminate the Negro
non-member locomotive firemen thereon, the Brotherhood
[f°l. 8] from time to time over a period of fifteen years
or more has secretly negotiated with said railroads, in
cluding the defendant railroad, a series of agreements
and modifications of agreements placing ever increasing
strictures on the employment of Negro locomotive firemen
and curtailing the seniority rights and prerogatives of
Negro locomotive firemen actually in the service of said
railroad, including the defendant railroad, to the special
advantage of the white locomotive firemen, members of
the defendant Brotherhood. As a direct consequence of
the Brotherhood’s persistent course of discrimination
against them, employment of Negro firemen on all rail-
/$ L m fa
^ * t 11*. V cidj^jL
'£ ^ 44Su^ \ £
4ft* s--/6a4
6
roads, including the defendant railroad, has greatly de
clined, their job assignments have become less frequent
and more irregular, their work more hazardous and bur
densome as a class in comparison with the number, job
assignments, earnings and conditions of work of the white
locomotive firemen, members of the defendant Brother
hood, as a class. Further the defendant Brotherhood has
sought a monopoly for its own members of employment on
said railroads, including the defendant railroad, as loco
motive firemen at the expense of the Negro locomotive
firemen as a class.
7. On and prior to February 22, 1941, plaintiff was a
locomotive fireman working on the S. & N. A. Division of
the defendant railroad in the “ pool,” with mileage guar
anteed per month, which amounted on an average between
4,100 and 4,500 miles per month, at the rate of $5.75 a
hundred miles or $5.51 a hundred miles according to the
class of engine he was firing. His average monthly pay
check was about $225.00, after deductions of $7.65 for in
surance, $2.60 for hospital fund, and $3.00 per $100.00 for
retirement. By virtue of his seniority he was holding down
one of the best assignments in said seniority territory
(the 8. & N. A. Division constituting in itself a seniority
territory within the meaning of the Article 26 aforesaid).
8. The defendant Brotherhood in functioning as a sole
and exclusive representative under the Railway Labor Act,
particularly sections 151a and 152, Title 45, U. S. Code,
of all the locomotive firemen on the defendant railroad
owes a statutory and fiduciary duty to each locomotive fire
men, including plaintiff and the other Negro locomotive
firemen as a class, that it shall represent him loyally, in
[fol. 9] good faith, that it shall not seek a monopoly or
other special advantage for its members to the detriment
of the non-member firemen, that it shall make full dis
closure of all negotiations and other proposed actions
affecting the individual fireman’s rate of pay, rules and
working conditions, that it shall give reasonable notice,
opportunity to be heard, and a chance to vote to all loco
motive firemen, members and non-members alike, on any
action proposed, and prompt and full report on all action
taken affecting his interest, and generally that it shall con
form to and regard the rules of law and standards of con
duct governing the relationship of principal and agent as
7
the statutory agent of all of the individual locomotive fire
men on the ralroad. Nevertheless in flagrant violation
of its duties in the premises so far as plaintiff individually
and the other Negro locomotive firemen as a class (same
constituting a minority of all the firemen on the defendant
railroad) are concerned, the defendant Brotherhood has
persistently been unfaithful to its fiduciary relationship,
has been and is now disloyal to plaintiff and the other
non-member minority Negro locomotive firemen as a class,
has sought to force them out of employment and destroy
their vested property rights in an effort to obtain a
monopoly of employment (or failing that the most favored
rates of pay, rules and working conditions, for its own
members, has refused and still refuses to notify plaintiff
and the other minority Negro locomotive firemen of pro
posed actions affecting their interest, to report its deeds
done as their bargaining representative under the Railway
Labor Act, and has refused and still refuses to give them
fair, honest and faithful representation under the Rail
way Labor Act.
9; Although the Negro firemen constitute the minority
group of firemen on the entire defendant railroad system,
they constitute the majority group of the division to which
plaintiff is assigned and in which he has seniority rights,
to-wit: The <8. & N. A. Division aforesaid. The Negro
firemen there constitute eightv percent or more of the total
number of firemen on said division; and up to the making
of the agreement hereinafter referred to had exercised
their vested seniority rights established under the indi
vidual contracts pursuant to the Schedule of March 1,
1929, aforesaid.
10. Nevertheless on or about February 18, 1941, effective
February 22, 1941, the defendant railroad and the defend
ant Brotherhood, in concert with certain other railroads in
[fol. 10] the group known as The Southeastern Carriers,
in an effort by the Brotherhood to obtain for its member
ship the most favored rates of pay, rules and working con
ditions at the expense of plaintiff and other minority Negro
locomotive firemen as a class, did enter into a secret, fraudu
lent agreement to impair and destroy plaintiff’s vested
seniority rights and the seniority rights of the other minor
ity Negro locomotive firemen. A copy of said agreement
is hereto attached as Exhibit I and the secret modification
8
of said agreement effected between the defendant railroad
and the defendant Brotherhood on or about May 12, 1941
is hereto attached as Exhibit 2, and both are prayed to be
read in full as part of this paragraph.
11. Negro firemen constitute the only class of non-pro-
motable firemen who cannot under present railroad and
labor custom be promoted regardless of efficiency, experi
ence or other personal qualifications; and constitute the
class discriminated against under the agreement and modi
fication above mentioned.
12. As a result of the terms of said secret fraudulent
agreement effective February 22, 1941, on or about April
7, 1941, the defendant Brotherhood in violation of its duty
toward plaintiff as his exclusive bargaining representative
under the Railway Labor Act as aforesaid did force the
defendant railroad to breach its individual contract of
employment with plaintiff, destroy plaintiff’s seniority
rights and wrongfully remove him from the assignment
which he then held and which he was entitled to by virtue
of his seniority, competence and worth, and without cause
or excuse and solely because of his color and race did force
the defendant railroad to replace him with white locomotive
firemen, member of the defendant Brotherhood. In acting
the defendant Brotherhood was seeking a fraudulent, pref
erential advantage for its own members, and a part of the
class it represents against complainant and other minority
Negro firemen as a class.
13. In consequence of the wrongful acts by the defendants
aforesaid plaintiff’s earnings have been reduced by over
$50.00 a month, his work assignments have been more ir
regular and hazardous. Plaintiff’s vested retirements
under the Railway Retirement Act of June 24, 1937 (IJ. S.
Code Title 45, Chap. 9) have been seriously impaired un
less relief is granted by this Honorable Court.
[fol. 11] 14. Complainant has exhausted his administra
tive remedies outside of Court. He has appealed for relief
and restoration of his vested seniority prerogatives to the
highest operating officer of the defendant railroad with
jurisdiction in the premises, and to the general chairman of
the defendant Brotherhood representing the Brotherhood
and the individual locomotive firemen, including himself,
on the defendant railroad. Nevertheless he has been denied
9
all relief, and said wrongs have continued and will forever
continue unless restrained and redressed by this honorable
Court. And other minority Negro locomotive firemen on
the defendant railroad have been injured and their vested
seniority and retirement rights have been curtailed and
destroyed by similar action on the part of the defendants.
Wherefore Premises Considered: Your petitioner prays
that Louisville & Nashville Railroad Company, a corpora
tion by service on R. E. Steiner at 1107-25 First National
Bank Building, Montgomery, Alabama, and Brotherhood
of Locomotive Firemen and Enginemen and unincorporated
Association, by service upon M. S. Goodwin at 1043 South
McDonough Street, Montgomery, Alabama, respondents, be
made parties to these proceedings by proper process; that
they be required to plead, answer or demur thereto within
the time prescribed by law, petitioner further prays that:
1. A permanent injunction against each of the defend
ants perpetually enjoining them and each of them from
enforcing or otherwise recognizing the secret, fraudulent
agreement above mentioned and any modification or modifi
cations thereof.
2. Discovery by the Brotherhood of all agreements and
negotiations undertaken by it with the defendant railroad
since the Railway Labor Act of 1934 in which it purported
to act under said Act as the exclusive bargaining agent for
all the locomotive firemen on the defendant railroad, which
have resulted in its occupying a hostile position or having-
conflicting interests with plaintiff and other Lon-member
minority Negro locomotive firemen, regarding rates of
pay, rules or working conditions of said firemen on the
defendant railroad.
3. Restoration of plaintiff’s and other Negro locomotive
firemen’s rights and recognition of the same apart from
said secret fraudulent agreement and any modification or
modifications thereof.
[fol. 12] 4. A permanent injunction against the defend
ant Brotherhood, its officers, subordinate lodges, members,
agents, or attorneys perpetually enjoining them and each
of them from purporting to act as representative or repre
sentatives under the Railway Labor Act for all the locomo
tive firemen on the defendant railroad, specifically plaintiff
and other non-member minority Negro locomotive firemen,
10
so long as it or they refuse to give plaintiff and the other
Negro locomotive firemen notice, opportunity to he heard
and a vote on all matters affecting them individually or in
common with the other locomotive firemen on defendant
railroad as a class.
5. A decree binding on all parties hereto and their privies
and those represented herein, settling and declaring the
rights, interests and other legal relations of the respective
parties in and to and by reason of the matters herein
controverted.
6. Damages against the Brotherhood for loss of wages,
destruction of vested seniority preference rights, and
breach of its duty of representation under the Railway
Labor Act, and the other injuries set forth above resulting
from the Brotherhood’s acts as set forth in the sum of
Fifty Thousand ($50,000.00) Dollars.
7. Relief for the other Negro locomotive firemen on the
defendant Railroad as a class in the same manner as herein
prayed individually, and further as their interests may
appear.
8. Plaintiff prays that he may have such other, further
and proper relief in the premises to which he has shown
himself entitled, and which may seem meet and proper to
your Honor.
Arthur D. Shores, Attorney for Plaintiff; Charles H.
Houston, Washington, D. C.; Arthur D. Shores,
Birmingham, Alabama; J. T. Settle, Memphis,
Tennessee; J. C. Waddy, Washington, D. C., At
torneys for Plaintiff.
[fol. 13] Duly sworn to by Bester William Steele. Jurat
omitted in printing.
E x h ib it # 1 to O riginal B ill
Agreement between The Southeastern Carriers’ Con
ference Committee, Representing the Atlantic Coast Line
Railway Company, Atlanta and West Point Railroad Com
pany and Western Railway of Alabama, Atlanta Joint
11
Terminals, Central of Georgia Railway Company, Georgia
Railroad, Jacksonville Terminal Company, Louisville and
Nashville Railroad Company, Norfolk and Portmoutk Belt
Line Railroad Company, Norfolk Southern Railroad Com
pany, St. Louis San Francisco Railroad Company, Sea
board Air Line Railway Company, Southern Railway Com
pany (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 Blockton Railway Company and Belt Rail-
day Company of Chattanooga). New Orleans and North
eastern Railroad Company, New Orleans Terminal Com
pany, Georgia Southern and Florida Railway Company,
[fol. 14] St. John 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-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 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 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
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
12
promotion under the present rules and practices to the posi
tion of locomotive engineers.
(5) It is understood and agreed that on any road having,
in the opinion of its B. of L. F. and 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 to showing, in the opinion of manage-
[fol. 15] ment, reasonable proficiency, to take within stated
periods to be fixed by management, but in no event to ex
tend over a period of more than three years, two examina
tions 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
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 engi
neers, be promoted to such position, and will establish a
seniority date as engineer in accordance with the rules con
tinued in the agreements on the individual railroads.
When rules for conduct of examination 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 service.
All promotable firemen now in the service physically
qualified, who have not heretofore been called for examina
tion for promotion, or who — not waived promotion, shall
be called in their turn for promotion. When so called should
13
they decline to take such examinations 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
[fol. 16] to promotable men; and it is agreed that this ques
tion is to be negotiated to a conclusion with the individual
carriers.
(8) This agreement shall become effective February 22,
1941.
Signed at Washington, D. C., this 18th day of February,
1941.
For the Employees: Brotherhood of Locomotive
Firemen and Enginemen, D. B. Bobertson, Presi
dent. Brotherhood of Locomotive Firemen and
Enginemen’s Committee, W. 0. Metcalfe, Chair
man.
For the Carriers: Southeastern Carrier’ Conference
Committee, C. D. Mackay, Chairman; C. D. Mac-
kay, H. A. Benton, C. G. Sibley, Committee Mem
bers.
E xh ibit N o. II to O bigihal B ill
Agreement in connection with application on the L. & N.
Railroad of Agreement between the Southeastern Carriers
Conference and the Brotherhood of Locomotive Firemen
and Enginemen, dated Washington, D. C., February 18,
1941, to become effective February 22, 1941, regarding the
employment and assignment of firemen, as agreed by Mr.
W. B. Porter, Asst. Director of Personnel, Mr. G. C. How
ard, Asst. Director of Personnel, representing the L. & N.
Railroad, and Mr. W. G. Metcalfe, General Chairman, repre
senting the Brotherhood of Locomotive Firemen and En
ginemen :
1. Q. What constitutes a new run under Article 2 (b) of
the agreement above mentioned 1
14
A. AYhen it is changed to the extent that it is operated out
of different terminals, the mileage lengthened or shortened
to the extent of 20 miles per day, or the scheduled'compen
sation on runs paid under Article 3, Section (a), of the gen
eral Agreement, changed to the equivalent of 20 miles per
day, when a run is operated six days per week instead of
seven, or vice versa, and new run hereafter inaugurated or
any run discontinued and thereafter re-established. (See
[fol. 17] Article 25, Sections 12 and 13.) ’
In yard service it is understood that a new job is when a
job is changed from a six day job to a seven day job, or from
a seven day job, to a six day job, or where the point for
going on duty or being relieved is permanently changed as
much as one-half mile, and any job hereafter inaugurated
or any job discontinued and thereafter re-bulletined.
Changing the off day without changing the number of days
worked per week would not constitute a new job. (See
Art. 25, Sections 12 and 13.)
Adjusting Pool Boards:
2. Q. In the matter of increasing first and second pool
boards, where such pools are maintained, would the addi
tion of one or more men to such pools be considered as a
new job in the purview of Article 2 (b) of the above men
tioned agreement?
A. Yes.
3. Q. In making reduction in the number of men in either
the first or second pool, how would these reductions be made
as regards promotable and non-promotable firemen?
A. Seniority will govern provided the percentage of pro
motable firemen will not reduce when such percentage is
50 or below.
For Example:
If the first pool firemen’s board were increased from ten
to twelve men, there being six non-promotable and four pro
motable men in that board, two promotable firemen should
be added to bring the board up to twelve, or 50 per cent.
If a reduction were made in such board from twelve to
ten or two men were to be cut off, one promotable and one
non-promotable firemen would be cut off, provided the two
junior firemen were promotable, but if three instead of two
men were cut from the board, then one promotable and the
two junior non-promotable men would come off.
15
To further illustrate : If in second pool there were 25 pro-
motable and one non-promotable firemen and it was neces
sary to cut the board five men, the one non-promotable fire
men would be allowed to remain in the pool provided he
had seniority over the five promotable men cut off.
[fol. 18] To again illustrate: If the first pool had ten non-
promotable and ten promotable firemen and the pool had
to be reduced for men, or to sixteen. In the event non-
promotable men had seniority over the promotable men, the
promotable men would be cut off to the extent of reducing
and maintaining the ratio 50-50. If there were six pro
motable and six non-promotable men in the pool, and it
were necessary to cut two men off, the two junior firemen
being non-promotable, they would be cut off under the
seniority rules.
Passenger Service:
Examples:
4. Q. There are three groups of passenger runs, two fire
men being assigned to each group—a total of six men, all
non-promotable. Each fireman is required to lose three
round trips per month account of mileage regulations.
There runs are grouped together and seven firemen as
signed to protect them in lieu of the gouge, working first in,
first out. Under Article 26, Section 22, the six runs would
be advertised.
How should assignments be made?
A. In the event the mileage of the six non-promotable
firemen was not decreased to the extent of twenty miles per
clay, or the equivalent of twenty miles per day, these six
men could not be disturbed, except under seniority rules.
However, the senior promotable fireman bidding as the 7th
man in the pool, would be assigned to the job.
5. Q. In the event the mileage or the equivalent thereof
is decreased twenty miles per day, how would assignments
then be made?
A. On seniority except that non-promotable firemen
could not be assigned to more than 50% of the jobs.
6. Q. Should these same runs later be changed and six
crew re-assigned as formerly, the 7th job being cut off, how
should assignments then be made!
A. Senior applicant should be assigned.
16
7. Q. How should assignments be made, when the ratio
of non-promotable to promotable firemen is 6 and 4, and a
new run is added, requiring
(A) 1 additional firemen? Ans. Senior promotable
[fol. 19] fireman should be assigned.
(B) 2 additional firemen? Ans. Two senior pro
motable firemen should be assigned.
(C) 3 additional firemen? Ans. Three senior pro
motable firemen should be assigned.
8. Q. Should another run be added requiring one fire
man after the ratio has reached 6 non-promotable and 7
promotable firemen, how should assignments be made?
A. As the ratio of non-promotable to promotable is less
than 50%, the senior applicant would be assigned whether
non-promotable or promotable.
9. Q. In passenger service the ratio of non-promotable
to promotable firemen stand 6 to 4. In this class there is a
group of 3 passenger runs manned by four non-promotable
and two promotable firemen. A new run is added to this
group requiring two men and the entire group of runs is
advertised, how should assignments be made?
A. Two promotable senior firemen should be assigned
to the group.
10. Q. With the ratio in this class standing 6 and 6 “ A ”
one of the promotable firemen is assigned as engineer. How
should this vacancy be filled?
A. By senior promotable firemen.
11. Q. When “ A ” is cut off as engineer, to what run is
he entitled?
A. To any run held by a junior fireman, either promotable
or non-promotable.
12. Q. Should “ A ” ’ displace a junior promotable fireman
in this class, how should the latter be governed?
A. He should displace any junior fireman.
13. Q. If “ A ” displaces a junior non-promotable fireman
in this class, how should the latter be governed?
A. He could exercise his seniority over any junior non-
promotable firemen provided that in doing so the non-pro-
17
motable firemen should not be assigned to more than 50%
of any class of service.
14. Q. The ratio in passenger service is 50-50. There are
[fol. 20] four runs one of which is discontinued and the re
maining three runs in the group are re-advertised for six
men. How should assignment be made?
A. To the senior applicant unless — so doing the ratio of
non-promotable firemen would exceed 50%, in which event
sufficient promotable junior firemen should be assigned
to prevent non-promotable firemen exceeding 50%.
15. Q. The ratio of non-promotable to promotable fire
men in passenger service is 5 and 8. A new run is added,
requiring:
(A) Two men. (b) Three men. (c) Four men.
How should assignments be made?
A. (A) Senior applicants would be assigned.
(B) Senior applicants would be assigned.
(C) Senior applicants would be assigned,
unless by so doing the ratio of non-promotable t© promot
able firemen would thereby exceed 50%, in which event
sufficient junior promotable firemen would be assigned to
avoid this.
Assigned Through Freight Service:
16. Q. The ratio of non-promotable to promotable fire
men is 8 and 5. One of the non-promotable firemen gives
up his run and takes pool service, how should his vacancy
be filled?
A. By the senior applicant.
17. Q. Should the senior applicant be promotable fire
man in the same class, how should this vacancy be filled?
A. By the senior applicant.
18. Q. The ratio of non-promotable to promotable fire
men is 7 and 5. A non-promotable fireman- dies, is dis
charged, resigns, or is disqualified, how should this vacancy
be filled?
A. By the senior applicant, (promotable)
19. Q. The ratio of non-promotable firemen is 5 to 7.
A non-promotable fireman dies, is discharged, resigned,
or is discharged, how should his place be filled ?
A. By the senior applicant.
2—1192
18
20. Q. The ratio of non-promotable to promotable fire
men is 6 and 6. A new run is added requiring two men,
how should the assignment be made?
A. By the senior applicant unless both are non-promot
able firemen, in which event the senior promotable fireman
[fol. 21] and senior nonpromotable firemen should be as
signed.
21. Q. The ratio of non-promotable firemen to promot
able firemen is 6 and 6. A new run is added requiring three
men, how should assignments be made?
A. The senior applicant, unless they are all non-promot
able firemen, in which event one senior non-promotable
and two senior promotable firemen will be assigned.
First Pool:
22. Q. The ratio of non-promotable to promotable fire
men in first pool is 6 and 4. At the adjustment period,
two men are added to the pool. How should assignments
be made?
A. The two senior promotable applicants should be
added.
23. Q. The ratio of non-promotable firemen to promo
table firemen in the first pool is 6 and 4. At the adjustment
period two men are to be taken out of pool. Should non-
promotable or promotable men be taken out?
A. The two junior non-promotable firemen should be
taken out of the pool.
24. Q. The ratio of non-promotable firemen to promot
able firemen in first pool is 6 and 6. At adjustment period
two men are to be taken out. Should non-promotable or
promotable men be taken out?
(A) Two junior men being non-promotable.
(B) Two junior men being promotable.
(C) One of the junior men being non-promotable and
one being promotable?
A. (A) Seniority would govern and the two junior men
would be taken out of the pool.
(B) The junior promotable and the junior non-pro
motable would be taken out of the pool.
(C) Seniority would govern.
19
25. Q. With the same ratio under same circumstances
as outlined next above, three men are to be taken out of
the pool:
(A) The three junior men being non-promotable.
(B) The three junior men being promotable.
(C) The two junior men being non-promotable and the
next junior man promotable.
[fol. 22] A. (A) Seniority would govern.
(B) One junior promotable man and the two junior non-
promotable men would be taken out.
(C) Seniority would govern.
Q. (D) The two junior men being promotable and tow
next junior men being non-promotable.
A. (D) The junior promotable man and two junior non-
promotable men.
26. Q. When “ A ” is cut off as engineer, how should he
place himself!
A. He may displace any junior fireman.
27. Q. The ratio of promotable and non-promotable fire
men is 6 and 6. . “ A ” is assigned as engineer, how should
his vacancy be filled!
A. By senior promotable fireman.
28. ̂Q. The ratio of non-promotable to promotable fire
men in first pool is 7 and 6. “ A ” is assigned as engineer.
How should his vacancy be filled!
A. By senior promotable applicant.
29. Q. “ A ” is later cut off as engineer. How should
he place himself!
A. He may displace any junior fireman.
Second Pool:
3(h Q. The ratio of non-promotable to promotable fire
men in second pool is 6 and 6. The first pool at adjustment
period is reduced two men, resulting in displacement of
two men in second pool. Who should be displaced!
(A) If the two junior men in second pool were pro
motable men!
(B) If the two junior men in second pool were nonpro-
motable men?
(C) If the two junior men in the second pool were one
promotable and one non-promotable.
20
A. (A) The junior non-promotable man and the junior
[fol. 23] promotable man should be taken out of the pool.
(B) Seniority would govern.
(C) Seniority would govern.
31. Q. The ratio of non-promotable men to promotable
men in the 2nd pool is 6 and 7. The first pool at adjust
ment period is reduced tow men, resulting in displacement
of two men in second pool. Who should be displaced?
(A) If the two junior men were promotable?
(B) If the two junior men were non-promotable?
(C) If the two junior men were one promotable and one
non-promotable ?
A. (A) The junior non-promotable and the junior pro
motable men would be taken out.
(B) Seniority would govern.
(C) Seniority would govern.
32. Q. The ratio of non-promotable to promotable men
is 6 and 8 in the second pool. The first pool at adjustment
period is reduced 2 men, resulting in displacement of two
men in second pool. Who should be displaced:
(A) If the two junior men were promotable?
(B) If the two junior men were non-promotable?
(C) If the junior men were one promotable and one non-
promotable.
A. (A) Seniority would govern.
(B) Seniority would govern.
(C) Seniority would govern.
33. Q. The ratio of promotable men to non-promotable
men is 6 and 6. There is a vacancy as hostler and no bids
received, and the junior promotable fireman is assigned.
If it is necessary to fill the latter’s place in second pool,
should the non-promotable or the promotable cut off fire
man be assigned to the pool?
A. Senior promotable cut off man should be assigned.
34. Q. The ratio of non-promotable to promotable fire
men in second pool is 6 and 7. A vacancy as hostler is
advertised and no bids received, the junior promotable
fireman being assigned. It is necessary to fill the latter’s
[fol. 24] place. Should the senior promotable or non-pro
motable fireman be added to the second pool?
A. The senior cut off promotable fireman should be added.
21
35. Q. The ratio of non-promotable to promotable fire
men in second pool is 6 and 8. A vacancy for hostler is ad
vertised and no bids received, the junior promotable fireman
being assigned. It is necessary to fill the latter’s place.
Should the senior promotable or non-promotable cut off
fireman be added to the second pool?
A. The senior cut off should be added.
It is understood by both parties to this agreement that it
became effective March 15, 1941, and no transaction that
took place prior to March 15th, is considered as coming
under the terms of Washington Mediation Agreement of
February 22, 1941.
Accepted for the Employees (S.) W. G-. Metcalfe,
General Chairman, B. L. F. & E.
Accepted for the L. & N. Railroad Co. By (S.) R. C.
Parsons, Director of Personnel.
Louisville, Kentucky, May 12, 1941.
I n Circuit Court of J efferson County
Demurrer of R espondent L ouisville & N ashville R ailroad
Company—Filed October 3, 1941
Comes the Respondent, Louisville & Nashville Railroad
Company, and demurs to the Bill of Complaint, and as
grounds of demurrer, assigns the following, separately and
severally :
1. There is no equity in the Bill.
2. Said Bill alleges as a conclusion, alleged seniority
rights of the complainant as a fireman.
3. The averments of said Bill are not sufficient, definite or
certain as to what alleged seniority rights the said complain
ant is claiming in said cause.
4. The averments of said Bill that the said complainant
was possessed of seniority rights as a fireman were alleged
as a conclusion of the complainant, and no facts are alleged
sustaining the averment.
[fol. 25] 5. The said Bill fails to allege in substance or in
liaec verba any contract between the complainant and the
22
respondent, Louisville & Nashville Railroad Company,
whereby and under which the said complainant is entitled
to any contractual rights of seniority.
6. For that said Bill fails to allege or set out facts which
entitle him to maintain said suit on behalf of a class.
7. For that no right is shown in the complainant to prose
cute said suit on behalf of a class, and said Bill fails to
allege the consent or authority from such a class to the said
complainant to bring and prosecute said suit.
8. Said Bill fails to allege the substance or in haec verba
the alleged individual contract between the complainant
and the respondent.
9. For that the averments of said Bill show that the said
complainant commenced his service with the defendant on
or about February 4, 1910 and claims the benefit individ
ually of a contract between the Company defendant and the
Locomotive Firemen and Hostlers of March 1, 1929.
10. For that said Bill of complaint shows that the said
complainant is asking the benefits of the alleged contract
between the Railroad and the Locomotive Firemen and
Hostlers ’ Schedule issued on March 1,1929, and is unwilling
to' abide by the terms, provisions and conditions of said
alleged schedule or contract.
11. For that there is no equity in said Bill, in that the
complainant seeks to obtain the benefits of an alleged con
tract between the defendant Company and the Brotherhood
of Locomotive Firemen and Hostlers of March 1, 1929, and
is unwilling to abide by the other terms, provisions and
conditions of said alleged contract.
12. For that said Bill fails to allege that the said com
plainant is such a fireman as is entitled to the alleged pref
erence of runs and promotion on seniority territory as are
the members of the Locomotive Firemen and Hostlers’
Brotherhood.
13. Said Bill fails to allege or set out in substance or in
haec verba the alleged schedule issued March 1, 1929, and
Article 26 of said Schedule.
ffol. 26] 14. Said Bill of Complaint shows that plaintiff is
seeking to obtain the benefits of an alleged contract between
23
the defendant Company and the Locomotive Firemen and
Hostlers’ Schedule of March 1, 1929, as though he were a
member of said Brotherhood or Association, without the
averment that he is a member of said Brotherhood or As-
sociation.
15. Said Bill fails to allege what the alleged conspiracy
was between the said railroad and the defendant Brother
hood.
16. Said Bill does not allege facts sustaining the aver
ment of conspiracy between the railroad and the defendant
Brotherhood.
17. Said Bill alleges conspiracy between the railroad and
the defendant Brotherhood, as a conclusion of the pleader.
18. The averments of said Bill fail to allege the name of
the officials of the railroad Company who are alleged to have
entered into a conspiracy with the Brotherhood or that
their names are unknown.
19. For that said Bill fails to allege that the alleged of
ficials of the railroad Company at the time of acting in pur
suance of an alleged conspiracy were in so acting, acting
within the line, scope and course of their employment.
20. For that the averments of said Bill of Complaint
show that such action as was taken by the railroad Com
pany is under and by virtue of the provisions of law, namely,
Railway Labor Act of June 21, 1934.
21. The averments of said Bill show that the defendant
railroad company had no alternative but to treat and act
with the legally established bargaining agency under the
provisions of the Railway Labor Act.
22. For that complainant’s recourse is through means of
revised legislation, if the effect of the operation of the Rail
way Labor Act and the law is such that it inflicts grievous
wrongs upon the said complainant.
23. Said complainant complains in this suit of the effect
and operation of laws duly passed and adopted by the Con-
[fol. 27] gress of the United States, and his remedy and re
course, if said laws work a wrong or injustice upon him, is
by repeal of the same.
24
24. For that the averments of said complaint construed
most strongly against the complainant show that the said
defendant did nothing more than to comply with the law.
25. For that the averments of said Bill of complaint show
that the defendant complied with the law, and such com
pliance with the law cannot be construed as working a
wrong or injury upon the said complainant.
26. The averments of said Bill of complaint show the
legal creation of a bargaining agency by the Brotherhood
and fails to allege any acts or conduct upon the part of the
defendant in violation of the provisions of law, on the other
hand, the averments of said Bill show so far as the defend
ant railroad Company is concerned, a compliance with the
provisions of the law.
27. For that said defendant railroad Company is not al
leged in any way to be responsible for the creation of the
bargaining agency of the Brotherhood, nor any participa
tion in its creation and maintenance.
28. Said Bill fails to allege facts showing the responsibil
ity of the defendant railroad Company for the creation of
the Brotherhood, or of its bargaining agency.
29. Said Bill of complaint fails to allege any wrong doing
by the defendant Louisville & Nashville Railroad Company.
30. For that the averment of facts in said cause contra
dicts and repudiates the averment of conclusion averred in
said Bill that the defendant railroad is guilty of conspiracy.
31. For that the right of the Brotherhood to act as the
sole representative and bargaining agency is in no wise
controverted or disputed by the said complainant.
32. For that under the averments of said Bill, the agree
ments made and entered into by and between the railroad
and the legally created bargaining agency are binding upon
the said complainant and other individuals.
33. For that the said complainant is not entitled to re
ceive the benefits of the acts and agreements of the alleged
bargaining agency or the Brotherhood and to revoke and
repudiate the other provisions and conditions of its contract
[fol. 28] with the railroad company.
34. For that said Bill shows that the Louisville & Nash
ville Railroad Company did not willingly enter into any
25
contract or agreement prejudicial or injurious to the said
complainant.
35. For that the acts of the said railroad with the bar
gaining agency created under the provisions of the Rail
way Labor Act are legal.
36. The said defendant by operation and effect of law,
is prohibited and restricted from participating in the mem
bership of the Brotherhood.
37. The averment that the Brotherhood has secretly ne
gotiated with the railroad Company is a conclusion of the
said complainant, and said Bill fails to allege in substance
or in haec verba any agreements or substance of agreements
made and entered into secretly between the railroad and
the Brotherhood.
38. Said Bill of Complaint fails to allege any discrimina
tion against the said complainant by the said railroad Com
pany.
39. For that said Bill of Complaint fails to allege any
treatment or consideration of the complainant by the Rail
road Company different from that provided by the terms and
provisions of a contract or agreement duly made and en
tered into by and between the Railroad Company and the
bargaining agency of the Brotherhood.
40. Said Bill is indefinite and uncertain as to its aver
ments as to how or by what process the said complainant
has lost any substantial monthly wage.
41. Said Bill fails to allege the breach of any statutory
or fiduciary duty owing by the defendant railroad Company
to the said complainant, and the breach thereof proximately
resulting in injury or damage to the said complainant.
42. Said Bill of Complaint fails to allege the responsi
bility of the defendant railroad Company for any lack of
loyalty or good faith to the said complainant by the said
Brotherhood.
43. For that the averment of fact contained in said Bill
of Complaint fails to allege any failure on the part of the
defendant railroad Company to comply with the terms and
provisions of law.
26
[fol. 29] 44. Said Bill fails to allege that the defendant
has at any time denied to the complainant his right of
negotiation with the defendant as to his rate of pay, rnles
and working conditions.
45. Said Bill fails to allege any responsibility on the part
of the defendant railroad Company for any alleged un
faithfulness' or disloyalty on the part of the Brotherhood
to the said complainant.
46. For that said Bill fails to allege that the alleged
contract between the defendant and the Brotherhood of
date February 18, 1941, was illegal or unlawful in any
respect.
47. Said Bill of Complaint fails to allege that there was
any lack of authority upon the part of the Brotherhood
to negotiate * * * and effect the contract of Febru
ary 18, 1941.
48. The averments of said Bill of Complaint show that
the alleged Brotherhood forced the defendant, railroad
Company into the making of the alleged contract com
plained of, and that in so forcing the railroad Company
into the execution of said contract, that the said Brother
hood was acting within its legal rights, power and author
ity, and there is no averment that the said defendant volun
tarily or willingly entered into said contract or at any time
breached the same.
49. Said Bill of Complaint fails to allege or state facts
showing that the said complainant is entitled as against
this defendant to perpetually enjoin it from carrying out
and executing its contract with the bargaining agency under
the Railway Labor Act.
. 50. For that said Bill shows that the bargaining agency
with whom the defendant railroad Company .dealt in this
cause was legally designated by proper authority without
interference, influence or coercion on the part of this de
fendant Company, and that said bargaining agency was
legally created and that therefore, under the provisions
of law, the defendant railroad Company had no alternative
but to comply with the provisions of the law in dealing with
said agency, and that the contract between the agency and
the railroad was and is a legal contract.
27
51. For that under the provisions of the law, failure of
the defendant to comply with the provisions of the Railway
[fol. 30] Labor Act would constitute a violation of the law
on the part of said railroad Company.
52. For that the effect of the relief sought by the com
plainant in this cause, would be to force the defendant
railroad Company to violate the law as enacted by the
Congress of the United States.
53. For that under the averments of said Bill of Com
plaint, the defendant railroad Company has done no more
than to comply with the provisions of the Railway Labor
Act.
54. For that the averments of said Bill of Complaint show
the making of a legal contract, and a legal contract having
been made by and between the railroad and the representa
tive bargaining agency, the said bargaining agency was
possessed of the right to an enforcement of the contract,
and the enforcement of the provisions of the contract gives
to complainant no just cause or ground of complaint.
55. For that under the provisions of the Railway Labor
Act, the defendant railroad Company was under affirmative
duty to treat only with the bargaining agency created by
the Brotherhood, and with no other.
Ckas. H. Eyster, Gibson & Gibson, by White E.
Gibson, Solicitors for defendant, Louisville &
Nashville Railroad Company.
In C ircuit C ourt of J efferson C ounty
P lea in A batem ent by R espondent B rotherhood—Filed
October 4, 1941
Comes the Brotherhood of Locomotive Firemen and
Enginemen, an unincorporated association, named in the
Bill of Complaint in this cause as a party respondent
thereto, and appearing specially for the purpose of this
Plea in Abatement, for testing the jurisdiction of this Court
over this association and over this cause of action and the
jurisdiction of this Court to entertain this cause of action
28
as against this association, and for no other purpose, enters
the following Plea in Abatement:
The Brotherhood of Locomotive Firemen and Enginemen
for plea says that this action is not a cause of action for
or upon which the complainant herein may maintain such
[fol. 31] an action against and and in the name of this
association, and this Court has no jurisdiction to entertain
this cause of action against and in the name of this
association under the laws of the State of Alabama, for
the reasons hereinafter set forth, all of which this asso
ciation is ready to verify:
(1) The original Bill of Complaint does not show that
this action is maintainable against the members generally
of this association.
(2) The original Bill of Complaint shows that the docu
ments constituting Exhibits 1 and 2 of said Bill of Com
plaint were not executed for or on behalf of the members
of this association, and in fact they or either of them were
not executed for or on behalf of the members of this asso
ciation; but said Bill of Complaint shows, on the contrary,
that it pertains and was intended to be applicable only to
the locomotive firemen employed on certain railroads in the
southeastern part of the United States.
(3) The original Bill of Complaint does not allege that
the execution of the documents constituting Exhibits 1 and
2 of the original Bill of Complaint, which the complainant
charges were executed pursuant to an unlawful conspiracy
and are invalid, was either authorized or ratified by the
members of this association. In fact the execution of the
said documents was neither authorized nor ratified by the
members of this association.
(4) The original Bill of Complaint does not allege that
the persons whose names appear on Exhibits 1 and 2 of
the original Bill of Complaint as signing on behalf of the
Brotherhood of Locomotive Firemen and Enginemen and
Brotherhood of Locomotive Firemen and Enginemen’s
Committee were authorized by the members of this asso
ciation to execute the said documents, or that the execu
tion of said documents was ratified by the members of this
association. In fact said persons were not authorized by
the members of this association to execute said contract,
and neither was the execution of said contract ratified by
the members of this association.
Wherefore, this association prays judgment of the said
summons and Bill of Complaint and that the same be
quashed.
Harold C. Heiss, Lange, Simpson, Brantley & Rob
inson, Attorneys for Brotherhood of Locomotive
Firemen and Enginemen, appearing specially as
aforesaid.
[fol. 32] Duly sworn to by William Liffiton. Jurat omit
ted in- printing.
29
I n C ibcitit Coubt op J effebson C ounty
M inute E ntby of S ubmission of P lea in A batem ent—
November 12, 1941
On November 12, 1941, it is ordered by the Court that
this cause be submitted on the sufficiency of the plea in
abatement.
In C ibcuit C oubt of J effebson County
D ecbee H olding P lea in A batem ent I nsufficient— Filed
November 12, 1941
This cause coming on to be heard is submitted upon the
sufficiency of a plea in abatement filed by the respondent,
Brotherhood of Locomotive Firemen and Enginemen, an
unincorporated association, and the Court having consid
ered and understood the same is of the opinion that said
plea is insufficient. It is, therefore,
Ordered, Adjudged and Decreed by the Court that the
plea in abatement of the respondent, Brotherhood of Loco
motive Firemen and Enginemen, an unincorporated asso
ciation, be and it is hereby held to be insufficient and said
respondent is hereby allowed twenty (20) days from this
date within which to amend its plea if it so desires. It is,
further, Ordered, Adjudged and Decreed by the Court that
this cause be and it is hereby set for hearing on pleadings
as herein noted, Monday, December 15,1941, at 9 :30 o ’clock,
A. M.; at said time should an amended plea be filed a sub-
30
[fol. 33] mission and argument will be had on the sufficiency
of said plea and without prejudice to said Brotherhood of
Locomotive Firemen and Enginemen, their demurrer will
be submitted along with a submission on the demurrer of
the other respondent, and then argued, if desired.
Done and Ordered, this the 12th day of November, 1941.
E. M. Creel, Circuit Judge, In Equity Sitting.
I n the C ircu it Court of J efferson County
D emurrer of L. & N. R. R. Co.—Filed November 12, 1941
Comes the defendant, Louisville & Nashville Railroad
Company, and by and with leave and consent of the Court
first had and obtained, demurs to certain aspects of said
Bill of Complaint, as follows:
A
The defendant demurs to that aspect of the Bill of Com
plaint by which the complainant seeks as an individual the
benefits of the alleged contract between the Railroad and
the Locomotive Firemen and Hostlers of March 1, 1929,
and as grounds of demurrer, assigns the following, sepa
rately and severally:
56. For that there is no equity in said aspect of said Bill.
57. For that the said complainant seeks the benefits of
said contract and is unwilling to accept the provisions of
said contract to his detriment.
58. For that if the said plaintiff is benefited by the
Brotherhood in the procurement for him of individual
rights and benefits under the contract made by the Brother
hood, then he is obligated to accept and be governed by
those provisions of the contract which place obligations on
him.
59. For that under said contract of March 1, 1929, the
benefits of which complainant seeks in this proceeding, the
right to make and interpret contracts, rules, rates and
working conditions for locomotive firemen and hostlers
is vested in the legally constituted committee of the Brother
hood of Locomotive Firemen and Enginemen and the
general officials of the Railroad.
31
60. In order for plaintiff to have as an individual the
[fol. 34] benefits of the contracts made by the Brotherhood,
he must be willing- to abide by the other terms, provisions
and conditions of said contract, and the right to make and
interpret said contracts as vested in the Brotherhood.
B
And the defendant demurs to that aspect of the Bill by
which he admits the legality of the creation and existence
of the Brotherhood as a Collective Bargaining Agency for
the firemen and is unwilling to abide by the action of said
Agency, and as grounds therefor, assigns the following:
61. For that there is no equity in said aspect of the Bill.
62. For that said Bargaining Agency is shown to be a
legally constituted agency of a majority of the employee
firemen, and hostlers of the defendant Company, and their
action binding on their own members and other firemen in
the service of the railroad Company.
63. For aught that is shown by said Bill of Complaint, the
said agreement between the Brotherhood and this defend
ant is in a furtherance of an effort on their part to maintain
a harmonious and agreeable working relation between the
said two parties concerning rates of pay, rules, and working
conditions.
64. For that the averments of said Bill show that the
Brotherhood was designated by the Firemen and Hostlers
authorized to designate and select the Bargaining Agency
without interference, influence or coercion by this defendant
Railroad Company, and such agency clothed with authority
to make and enter into contracts and interpretation thereof
with the railroad Company.
65. The said Bargaining Agency is shown to have been
organized and elected by the Firemen and Hostlers of the
defendant Company, and that the said Brotherhood was
legally elected as a representative of the said firemen for
the purposes of the Railway Labor Act.
66. For that said Bill fails to allege or charge in any way
that the defendant Railroad was in anywise responsible
for failure of the said plaintiff to be a member of the
Brotherhood organization.
32
67. For that said Bill fails to allege that the said contract
is not in the interest of public welfare.
68. Said Bill fails to allege that any contracts between
the Brotherhood and the railroad were not legally made
and entered into.
[fol. 35] C
To That Aspect of the Bill Charging the Defendant With
Acting Pursuant to a Conspiracy Between the Railroad
and the Brotherhood, the Defendant Demurs, and as
Grounds of Demurrers, Assigns the Following, Separately
and Severally:
69. For that there is no equity in said aspect of the Bill.
70. For that said Bill fails to allege any individual con
tractual obligation or duty to the plaintiff which it has
breached.
71. For that said defendant has only negotiated and con
summated contracts and agreements with the Brotherhood,
the official representative of the Firemen, and this, under
the Railway Labor Act, it was required and obligated to do.
72. Said Bill fails to allege that any duly authorized
officials of the Railroad Company acting within the line,
course and scope of their employment entered into or com
mitted any act in conspiracy with the Brotherhood.
73. For that the said Railroad Company is in no wise re
sponsible for the acts of the official of the Brotherhood.
74. Said complainant has no ground of recourse against
the defendant Company for any alleged wrong done to him
by the Brotherhood.
D
To That Aspect of the Bill Alleging the Restriction in
Membership of the Brotherhood, the Defendant Assigns
the Following Demurrers, Separately and Severally:
75. For that there is no equity in said aspect of the Bill
as against this defendant.
76. For that by operation of law, the defendant is pro
hibited from participating in the policies and organization
of the Brotherhood and in designating and determining its
membership.
33
77. The said complainant has no right at law or equity
to hold this defendant liable for any lack of interest in the
welfare of the complainant by the Brotherhood.
88. Said defendant is not alleged to have been a party
in anywise to conducting a secret negotiation and the duty
of disclosing to the complainant negotiations had between
the Brotherhood and the defendant Company is upon the
[fol. 36] Brotherhood, and not upon the defendant Com
pany.
89. For that any lack of promotion, or any failure of
assignments to complainant is not shown to be the act of
the defendant.
E
To That aspect of the Bill charging disloyalty or breach
of alleged fiduciary duty to the complainant the defendant
demurs, and assigns the following grounds, separately and
severally:
90. For that said aspect of the Bill is without equity as
to this defendant.
91. For that under the averments of said Bill of Com
plainant, the said defendant Bailroad, owes to the said com
plainant, no statutory duty, except to treat with the Brother
hood, the Collective or bargaining Agency and representa
tive of a majority of the firemen and hostlers and the benefit
of whose contract the plaintiff has accepted.
92. Under the averments of said bill, the defendant is
under no fiduciary duty to the said complainant.
93. Said defendant is under no duty or obligation to dis
close to the individual complainant all negotiations had by
the defendant and the Brotherhood, and for any lack of dis
closure of such negotiations by the Brotherhood, this de
fendant is in no wise responsible.
94. For that said Bill shows no act on the part of the
defendant to destroy or impair any alleged vested property
right of the complainant.
F
To that aspect of the Bill alleging the making of a con
tract or agreement of February 18, 1941, the defendant de
murs on the following grounds, separately and severally:
95. For that there is no equity in said aspect of the Bill
as to this defendant.
3—1192
34
96. For that said defendant is not chargeable with any
alleged secret and fraudulent act on the part of the said
Brotherhood in its negotiations with the defendant for
said contract.
97. The said defendant is not responsible to the complain
ant for the results to the complainant individually of said
contract of February 18, 1941, and interpretation thereof.
White E. Gibson, Chas. E. Eyster, Attys. for L. &
N. R. R. Co.
[fol. 37] In C ikcttit C ourt of J efferson C ounty
A m endm ent to P lea in A batem ent by B rotherhood— Filed
December 4, 1941
Comes the respondent, Brotherhood of Locomotive Fire
men and Enginemen, and still appearing specially for the
purpose of testing the jurisdiction of this Court over this
cause of action and this party respondent, and for the pur
pose of pleading in abatement for no other purpose, amends
its plea in abatement heretofore filed by inserting therein
after Paragraph (4) the following:
(5) The Brotherhood of Locomotive Firemen and Engine-
men is a voluntary association of persons employed as
locomotive firemen and engineers at the time of admission
to membership. It is a labor organization, or union, or
ganized for the purpose of obtaining better wages and
working conditions for its members, and not organized for
trade or profit. It has more than nine hundred lodges
located at terminal points on railroads, and more than
ninety-five thousand members residing in every state of
the United States and in every province of Canada.
Harold C'. Heiss, Lange, Simpson, Brantley and
Robinson, Attorneys for Brotherhood of Loco
motive Firemen and Enginemen, Still appearing
Specially as aforesaid.
Duly sworn to by D. B. Robertson. Jurat omitted in
printing.
35
[fo l. 38] 1st C ircuit Court of J efferson C ounty
D emurrer of B rotherhood—Filed December 15, 1941
I
Comes the respondent, Brotherhood of Locomotive Fire
men and Enginemen, and demurs to the bill of complaint
in this cause presented against it, as a whole, and as grounds
of said demurrer sets down and assigns the following,
separately and severally:
1. There is no equity in the Bill.
2. It affirmatively appears therefrom that this action is
not maintainable against the members of this association
generally.
3. For that it does not appear therefrom that this cause
of action is a cause of action for or upon which the com
plainant therein may maintain such an action against the
members of this organization or association.
4. For that it affirmatively appears therefrom that this
is not a cause of action for or upon which the complainant
therein may maintain such an action against the members
of this organization or association.
5. For that the Bill of Complaint does not allege that
the persons whose names appear on Exhibits 1 and 2 of
the original Bill of Complaint as signing on behalf of the
Brotherhood of Locomotive Firemen and Enginemen and
Brotherhood of Locomotive Firemen and Enginemen Com
mittee were authorized by the members of this association
to execute the same document or that the execution of said
document was ratified by the members of this association.
6. For that it affirmatively appears therefrom that the
execution of the document constituting Exhibits 1 and 2
of said Bill of Complaint were neither authorized nor
ratified by the members of this association.
7. For that it does not appear therefrom that the docu
ments constituting Exhibits 1 and 2 of the said Bill of
Complaint were executed for or on behalf of the members
of this association.
8. For that it affirmatively appears therefrom that the
documents constituting Exhibits 1 and 2 of said Bill of
36
Complaint, were not executed for or on behalf of the mem
bers of this association.
[fol. 39] 9. For that the allegation that complainant is em
ployed by the defendant, Louisville & Nashville Railroad
Company, of the S. & N. A. Division, with seniority rights
as a fireman, is a conclusion of the pleader.
10. For that the averments of the Bill are not definite
and certain enough to apprise this respondent what it is
called upon to defend.
11. For that there are no facts alleged which show that
complainant was entitled to seniority rights, nor is there
any averment as to what seniority rights plaintiff was
entitled.
12. For that it does not appear therefrom by what right
plaintiff brings suit as a class suit on behalf of the other
negro locomotive firemen on the defendant’s railroad.
13. For that it affirmatively appears therefrom that the
complainant has no right to maintain this Bill on behalf of
the other negro firemen.
14. For that it appears therefrom that the measure and
extent of complainant’s damages as well as the class of
complainant’s damages is materially different from that
of others constituting the class which he seeks to represent.
15. For that it does not appear therefrom that the com
plainant has the consent or authority of the class which
he seeks to represent.
16. For that it does,not appear therefrom that the other
members of the class which complainant seeks to represent
have seniority rights or that their rights have been affected
in any way by the action complained of.
17. For that the said Bill of Complaint shows that said
complainant is asking the benefits of the alleged contracts
between the railroad and the locomotive firemen and hos
tler’s schedules issued on March 1, 1929, and is unwilling
to abide by the terms, provisions and conditions of the said
alleged schedule or contract.
18. For that it does not appear therefrom that complain
ant, or any of the class which he seeks to represent, have
sustained any injuries or damages as a result of the action
complained of.
[fol. 40] 19. For that there are not alleged therein any
facts which make the alleged contract constituting Exhibit-
1 and 2 of said Bill of Complaint illegal, unconscionable or
unfair.
20. For that it affirmatively appears therefrom that both
parties respondent were free contracting agencies and had
right to make and enter into the contracts set out as Ex
hibits to the Bill.
21. For that the relief prayed for in the Bill would be
an undue interference with the rights of the parties re
spondent to contract as they have a right to do.
22. For that there is a misjoinder of parties complainant
in that complainant seeks to combine a personal claim for
damages with a claim of the negro firemen of the class for
equitable relief.
23. For that the interest and injuries of the negro fire
m en do not sufficiently appear to enable the Court to ad
judicate their rights in the premises.
24. For that an action for damages cannot be brought
on behalf of a class.
25. For that the decree prayed for by complainant on
behalf of the class which he seeks to represent would be
unenforceable.
26. For that no reason is alleged why this association
cannot execute any contract if so desired for the benefit
of its members.
27. For that said Bill fails to allege or to set out in sub
stance or in haec verba the alleged schedule issued March
1, 1929, and Article 26 of said Schedule.
28. For that said Bill of Complaint shows that complain
ant is seeking to obtain the benefits of an alleged contract
between the defendant company and this association as
though he were a member of the said brotherhood or asso
ciation, without the averment that he is a member of said
brotherhood or association.
37
38
29. For that said Bill fails to allege what the alleged
conspiracy was between the said railroad and this re
spondent.
30. For that said Bill does not allege facts sustaining the
averment of conspiracy between the railroad and this
respondent.
[fol. 41] 31. For that the allegation of the conspiracy be
tween the railroad and this respondent is a conclusion of
the pleader.
32. For that a corporation is incapable * # * of en
tering into a conspiracy.
33. For that a voluntary association is incapable of enter
ing into a conspiracy.
34. For that it is not alleged that any of the members of
this association entered into a conspiracy or that they au
thorized, ratified or condoned a conspiracy.
35. For aught that appears therefrom, the members
of this association had no knowledge and were not par
ties in any way to the said contracts.
36. For that it is not alleged that the persons whose
names appear on the said contract or any of them were
agents, servants or employees of the members of this as
sociation, acting within the line, scope and course of their
employment as such.
37. For that the allegations that this association was act
ing as exclusive bargaining agent under the Railway Labor
Act of June 21, 1934, is a conclusion of the pleader and no
facts are alleged to support the said conclusion.
38. For that the conplainant has an adequate remedy at
law.
39. For that the said Bill of Complaint shows on its face
that if the complainant has suffered wrong, he has an ade
quate remedy at law against the respondent railroad com
pany by way of damages for breach of contract.
40. For that there are no facts alleged showing that
plaintiff will suffer irreparable injury by the wrongs com
plained of.
39
41. For that the said Bill of Complaints fails to allege
any wrongdoing by this association.
42. For that the said Bill of Complaint fails to allege any
wrongdoing by the members of this association or any of
them.
43. For that no facts are alleged which show that this
association or any of the members of this association
were under any duty to represent the complain
ants or any of them.
44. For that no facts are alleged to show any duty on
any of the members of this association or any breach of any
[fol. 42] duty by the members of this association.
45. For that it does not appear therefrom that the said
agreements or contracts are in any way binding upon any
of the complainants, or respondents, or either of them.
46. For that the remedy of complainants, if the defend
ant railroad has breached its contract or contracts with
them, is at law by way of damages for breach of contract
and for aught appearing from the said Bill of Complaint,
said remedy would be entirely adequate.
47. For that no facts are alleged showing any right which
equity will protect by injunction.
48. For that it is not alleged therein that the complain
ant, as a class were discriminated against by the said con
tract and it affirmatively appears therein that the classi
fication made by said contract is reasonable.
49. For that the said Bill fails to allege that the alleged
contract between the railroad and this association dated
February 18, 1941, is illegal or unlawful in any respect.
50. It affirmatively appears therefrom that the said con
tract complained of by complainants was a contract which
this respondent had a perfect right to negotiate, make,
execute and to put into effect.
51. For that it affirmatively appears therefrom that
complainant’s remedy, if any, is by and through the ad
ministrative agencies set up by the said Railway Labor Act,
and that the remedies therein prescribed are adequate.
40
52. For that it appears affirmatively therefrom that if
complainants have any cause of action it is against the in
dividuals who participated in the alleged wrong and not
against the members of this association.
53. For that it affirmatively appears therefrom that
there is no authority or warrant of law for the maintenance
of this action against and in the name of this unincorpo
rated organization or association.
54. For that the complainants ask equitable relief with
out submitting themselves to the jurisdiction of this Court
and are not amenable to this Court and are not amenable
to the process of this Court.
[fol. 43] 55. For that the record shows that this Court has
no jurisdiction of the members of this association and has
no power to render a decree affecting their individual
rights.
56. For that it affirmatively appears that this Court has
no jurisdiction to render a money decree against any of the
members of this association or as against this association
as such.
57. For that it affirmatively appears that the decree of
this Court would be unenforceable as against the individual
members of this association.
58. For that it affirmatively appears that this Court has
no jurisdiction over the non-resident members of this as
sociation and cannot interfere with their freedom of con
tract.
59. For that this Court judicially knows that the mem
bers of this association are not liable for the tortuous acts
of officers or agents of the association done without the
authorization, approval or ratification of the said members.
60. For this Court judicially knows that the officers of
this association have no power to bind the individual mem
bers of the said association in any way.
61. For that this association is not a proper party re
spondent to this Bill of Complaint.
62. For that this association is not a legal entity.
63. For that no affirmative relief can be granted against
this unincorporated association on this cause of action.
41
64. For that the said Bill of Complaint is multifarious in
that it seeks to combine in the one Bill of Complaint a great
number of separate and individual causes of actions by
various parties complainants, each standing on separate
facts and circumstances and each demanding its own indi
vidual and separate class and degree of relief.
65. For that it affirmatively appears therefrom that the
rights of the various parties complainants vary widely in
the class and type of relief sought as well as the degree of
the relief to which they are entitled and therefore the said
Bill of Complaint is multifarious.
[fol. 44] 66. For that it is not shown thereby that the
complainants or any of them will suffer irreparable injury
by the putting into effect of the alleged contract.
67. For that it affirmatively appears therefrom that
there are parties who are not made parties respondent
to the Bill of Complaint and whose rights will be
injuriously and adversely affected by the decree sought,
and who are indispensable parties to this Bill of Complaint.
68. For that it appears that the white firemen who will
be displaced by the relief sought are indispensable parties
to this procedure.
II
And this respondent demurs to that aspect to said Bill
of Complaint which prays a perpetual injunction and for
grounds of said demurrer sets down and assigns the fol
lowing :
1. There is no equity in the said aspect of the Bill of Com
plaint.
2. It affirmatively appears that complainants have an
adequate remedy at law.
3. For that the rights which complainants claim therein
are not rights which equity will protect by injunction.
4. For that it affirmatively appears that a decree in con
formance with the prayer for an injunction would be un
enforceable.
5. For that a decree in conformance with the prayer for
an injunction would not be enforceable as against the mem
bers of this association.
42
6. For that this Court has no sufficient jurisdiction to
render a decree enjoining the members of this association
from doing the things and matters complained of therein.
7. For that the granting of the relief prayed for therein
as against this respondent would constitute a denial of due
process of law.
8. For that it does not appear therefrom that the mem
bers of this association, or any of them, participated in
any way in the wrongful acts complained of or that the
members of this association or any of them in any way
authorized, ratified or approved of such action.
[fol. 45] 9. For that the same is not a cause of action for
or upon which the complainant therein may maintain such
an action against the members of this organization or
association.
10. For that the relief therein prayed, if granted, would
not be enforceable as against the members of this associ
ation.
11. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the Bill
of Complaint and whose rights will be injuriously and ad
versely affected by the decree sought, and who are indis
pensable parties to this Bill of Complaint.
12. For that it appears that the white firemen who will
be displaced by the relief sought are indispensable parties
to this procedure.
I l l
And this respondent demurs to that aspect of the Bill of
Complaint which seeks a discovery and for grounds of said
demurrer sets down and assigns the following:
1. For that there is no equity in the said aspect of the
Bill.
2. For that it affirmatively appears therefrom that the
complainants have an adequate remedy at law.
3. For that complainants show no right to a discovery.
4. For that the allegations of the said aspect of the bill
are so vague, indefinite and uncertain and the prayer
thereof, is so vague, indefinite and uncertain that this re
43
spondent is not apprised of what it is called upon to defend
or what it is called upon to produce in the way of a dis
covery.
5. For that the said allegations of the said aspect of the
Bill are so vague, indefinite and uncertain that this re
spondent is not apprised thereby of what information the
said complainants are seeking or what information they are
entitled to.
6. For that the same is not a cause of action for or upon
which the complainant therein may maintain such an action
against the members of this organization or association.
7. For that the relief therein prayed, if granted, would
not he enforceable as against the members of this associa
tion.
8. For that no facts are alleged which show that the mem
bers of this association have the information, a discovery
of which is prayed.
[fol. 46] 9. For that there is alleged no duty on the part
of the members of this association to give the complainants,
or any of them, a discovery of the information therein
sought.
10. For that it does not appear therefrom that the mem
bers of this association, or any of them, participated in any
way in the wrongful acts complained of or that the mem
bers of this association or any of them in any way author
ized, ratified, or approved of such action.
IV
And this respondent demurs to that aspect of the Bill of
Complaint which seeks restoration of plaintiff’s and other
negro locomotive firemen’s rights and recognition of the
same apart from the certain alleged agreement and for
grounds of said demurrer sets down and assigns the fol
lowing :
1. There is no equity in the said aspect of the Bill.
2. For that it affirmatively appears that the complain
ants have an adequate remedy at law.
3. For that it affirmatively appears that complainant’s
remedy, if any, is at law against the respondent railroad
for damages for breach of contract.
44
4. For that the said relief therein prayed, if granted,
would not be enforceable as against this respondent.
5. For that the relief therein prayed for, if granted, would
not be enforceable as against the members of this associ
ation.
6. For that it affirmatively appears therefrom that the
cause of action therein set up is not a cause of action for or
upon which the plaintiff therein may maintain such an ac
tion against the members of this organization, or associ
ation.
7. For that it does not appear that the members of this
organization or association participated in any way in the
wrongful acts complained of therein or that they authorized,
ratified or approved the said actions in any way.
7a. For that it affirmatively appears therefrom that this
respondent cannot restore plaintiff’s alleged position with
the respondent railroad company and any decree rendered
against this respondent would be effectual.
8. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the Bill
[fol. 47] of Complaint and whose rights will be injuriously
and adversely affected by the decree sought, and who are
indispensable parties to this Bill of Complaint.
9. For that it appears that the white firemen who will be
displaced by the relief sought are indispensable parties to
this procedure.
V
And this respondent demurs to that aspect of the Bill of
Complaint which seeks an injunction against this respond
ent enjoining it and its members and each of them from
purporting to act as representatives under the Railway
Labor Act for all of the locomotive firemen on the defendant
railroad and for grounds of said demurrer, sets down and
assigns the following:
1. There is no equity in the said aspect of the bill.
2. For that it affirmatively appears therefrom that the
complainants have an adequate remedy at law.
3. For that it affirmatively appears from the allegations
thereof that this association has a right under the said Rail
way Labor Act to act as representative for all the locomo
tive firemen on the said defendant railroad.
4. For that this Court has no power to bind the members
of this association by any decree rendered in this cause.
5. For that it affirmatively appears therefrom that this
is not a cause of action for or upon which the complainants
therein may maintain such a cause of action against the
members of this association or organization.
6. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the Bill
of Complaint and whose rights will be injuriously and ad
versely affected by the decree sought, and who are indis
pensable parties to this Bill of Complaint.
7. For that it appears that the white firemen who will be
displaced by the relief sought are indispensable parties to
this procedure.
V I
And this respondent demurs to that aspect of the Bill of
Complaint which seeks a declaratory judgment and for
grounds of said demurrer, sets down and assigns the
following:
1. There is no equity in the said aspect of the Bill.
[fol. 48] 2. For that it affirmatively appears therefrom
that the complainants have an adequate remedy at law.
3. For that it affirmatively appears therefrom that this is
not a cause of action for or upon which the complainants
therein may maintain such an action against the members
of this association.
4. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the Bill
of Complaint and 'whose rights will be injuriously and ad
versely affected by the decree sought, and who are indis
pensable parties to this Bill of Complaint.
5. For that it appears that the white firemen who will be
displaced by the relief sought are indispensable parties to
this procedure.
6. For that it does not appear therefrom that there is any
justiciable controversy between the complainants or any of
them and the members of this association.
45
46
7. For that it does not appear that there is any justiciable
controversy between complainants and this respondent.
8. For that it affirmatively appears that an adequate
relief and an appropriate remedy are presently available
to the complainants through other existing forms of action
or proceedings.
VII
And this respondent demurs to that aspect of the Bill of
Complaint which seeks damages against this brotherhood
and for grounds of said demurrer, sets down and assigns
the following:
1. For that there is no equity in the said aspect of the Bill.
2. For that it affirmatively appears therefrom that the
complainants have an adequate remedy at law.
3. For that it affirmatively appears therefrom that this
is not a cause of action for or upon which the complainants
therein may maintain such an action against the members
of this association.
4. For that it is not alleged therein that the members of
this association participated in any way in, or in any way
ratified, confirmed or approved the said action com
plained of.
5. For that it does not appear therefrom that the said
contracts were negotiated or executed by agents, servants
or employees of the members of this association acting
[fol. 49] within the line and scope of their employment.
6. For that there is no authority or warrant of law for
the awarding of damages to a class.
7. For that there is no authority or warrant of law for the
awarding of a decree requiring affirmative action on the
part of the respondent in favor of a class.
VIII
And this respondent demurs to that aspect of the bill of
complaint which seeks relief on behalf of the other negro
locomotive firemen of the defendant railroad as a class, and
for grounds of said demurrer, sets down and assigns the
following:
1. For that there is no equity in the said aspect of the
bill.
2. For that it affirmatively appears that the complainants
have an adequate remedy at law.
3. For that it does not appear therefrom that the com
plainant has the authority to represent said class.
4. For that it does not appear therefrom that the inter
ests of the class which the complainant seeks to represent
are identical with his own.
5. For that it affirmatively appears therefrom that the
rights of the various parties sought to be represented by
class are widely variant as to the class and type of relief
to which they are entitled, if any, and also as to the degree
of relief to which they are entitled.
6. For that it affirmatively appears therefrom that this
is not a cause of action for or upon which the complainants
therein may maintain such an action against the members
of this association.
7. For that there is no authority or warrant of law for the
awarding of damages to a class.
8. For that there is n*o authority or warrant of law for
the awarding of a decree requiring affirmative action on
the part of the respondent in favor of a class.
9. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the bill
of complaint and whose rights will be injuriously and ad
versely affected by the decree sought, and who are indis
pensable parties to this bill of complaint.
10. For that it appears that the white firemen who will
be displaced by the relief sought are indispensable parties
to this procedure.
[fol. 50] Lange, Simpson, Brantley & Robinson, So
licitors for Respondent, Brotherhood of Locomo
tive Firemen and Enginemen, an unincorporated
association.
47
48
Iisr C ircuit C ourt of J efferson County
M in u te E ntry of S ubmission of D emurrers and A mended
P lea in A batem ent— December 15, 1941
On this the 15th day of December, 1941, it is ordered by
the Court that this cause be submitted for decree on the
demurrers to Bill and amended Plea in Abatement.
In C ircuit C ourt of J efferson C ounty
D ecree S ustaining D emurrers— January 21, 1942
This cause coming on to be heard was submitted for de
cree on the separate and several demurrers of respondents
filed separately and severally to the Bill of Complaint:
And upon consideration it is held that the said demurrers
are well taken. It is therefore Ordered, Adjudged and
Decreed by the Court that said demurrer be and the same
are hereby separately and severally sustained and the com
plainant is allowed thirty days from this date in which to
amend.
Done and Ordered this the 21st day of January, 1942.
E. M. Creel, Circuit Judge, In Equity Sitting,
I n C ircuit Court of J efferson C ounty
D ecree H olding P lea in A batem ent I nsufficient—Janu
ary 21, 1942
This Cause coming on to be heard is submitted for a
ruling on the sufficiency of the Plea in Abatement as
amended of respondent, Brotherhood of Locomotive Fire
men and Enginemen, and the Court having considered and
understood same is of the opinion that it is insufficient. It
is, therefore,
Ordered, Adjudged and Decreed by the Court that said
Plea in Abatement as last amended, of respondent, Brother
hood of Locomotive Firemen and Enginemen, is insufficient
and said Plea in Abatement is hereby dismissed.
[fol. 51] Done and Ordered, this the 21st day of Janu
ary, 1942.
E. M. Creel, Circuit Court, In Equity Sitting.
49
I n C ircuit C ourt of J efferson C ounty
Order E xtending T im e to A mend Com plaint— Filed Feb
ruary 20, 1942
It is Ordered, Adjudged and Decreed that the complain
ant he and he is hereby granted to and including March 3,
1942 to amend his Bill of Complaint.
Done and Ordered, this the 20th day of February, 1942.
J. Bussell McElroy, Circuit Judge, In Equity Sit
ting.
In C ircuit Court of J efferson County
A mended C omplaint— Filed February 20, 1942
To the Honorable Judge or Judges of Said Court:
1. Your complainant shows unto your Honor that he is a
resident of Jefferson County, Alabama, and is over twenty-
one years of age; that respondent Louisville & Nashville
Railroad Company is a corporation, incorporated in the
State of Kentucky but engaged in interstate commerce by
rail in the State of Alabama; that the respondent Brother
hood of Locomotive Firemen and Enginemen is a national
unincorporated labor union whose membership is princi
pally derived from locomotive firemen and enginemen em
ployed on interstate railroads, including the defendant rail
road. It is composed of a Grand Lodge and over nine
hundred subordinate lodges throughout the country, includ
ing lodges, officers, and members resident in the State of
Alabama and Jefferson County. By constitution, practice
and ritual its membership is restricted to white men, all
Negro firemen being excluded solely because of race.
2. Complainant is a negro fireman, aged 55, in perfect
health, employed by the defendant railroad on the S. &
N. A. seniority division, with seniority rights dating from
February 4, 1910, and with an excellent service record. He
brings this action personally in his own behalf and as a class
suit representing and in behalf of all the other negro fire
men on the defendant railroad, said other negro locomotive
firemen constituting a class so numerous as to make it im
practicable to bring them all before the Court, and there be-
[fol. 52] ing common questions of law and fact, common
4—1192
50
grievances and common relief sought as well as special re
lief sought.
3. Respondent railroad has employed plaintiff and plain
tiff is working for it as a locomotive fireman under his indi
vidual contract of employment which embodies the stand
ard terms of the collective bargaining agreement negotiated
between the railroad and the defendant Brotherhood acting
for all the locomotive firemen and hostlers on said rail
road, and known as the Firemen and Hostlers Schedule
issued March 1, 1929. By the terms of his contract of em
ployment defendant railroad grants to plaintiff the security
of permanent tenure in its service during good behaviour,
and establishes seniority rights on each division with pro
vision (Art. 26) that the oldest firemen in road service will
have the preference of runs and promotion on the seniority
territory to which assigned, when competent and worthy.
Plaintiff states that at all times material herein he was a
fireman in road service, wholly competent and worthy for
the service to which his seniority entitled him to, and a
faithful, loyal and efficient fireman in all respects. Plain
tiff’s employment status is a vested property right and Ms
seniority rights under said status have a special value in
view of his advanced years and length of service with the
defendant railroad.
4. At all times material herein prior to April 7, 1941,
plaintiff was employed in the “ pool” of locomotive fire
men on the defendant railroad’s S. & N. A. seniority di
vision. By the terms of his contract embodying the stand
ard provisions of the collective agreement aforesaid the
mileage earnings of firemen in the pool have a minimum
guarantee, which amounted for plaintiff on an average
between 4,100 to 4,500 miles per month at the rate of $5.75 or
$5.51 per hundred miles according to the class of engine he
was firing. Plaintiff’s monthly pay check while working in
the “ pool” was about $225.00, after deducting $7.65 for
insurance, $2.60 for hospital fund, and* $3.00 per $100.00
for retirement. By virtue of his seniority he was holding-
down one of the best assignments in said seniority district
(the S. & N. A. Division constituting in itself a seniority
territory within the meaning of Article 26 aforesaid.) Fire
men are eligible to “ bid” for placement in the “ pool” ac
cording to their relative seniority except as noted below.
51
[fol. 53] 5. The vast majority of the locomotive firemen
employed by the defendant railroad are white and mem
bers of the defendant Brotherhood; and all the white fire
men who at any time material herein have been or are now
members of the “ pool” on the S. & N. A. seniority division
are members of the defendant Brotherhood. By force of
having a majority of the entire craft or class of locomotive
firemen on the defendant railroad the white members of
the Brotherhood since the passage of the Federal Rail
way Labor Act of June 21, 1934 (U. S. Code, Title 45, Ch.
8) have designated said Brotherhood as the exclusive bar
gaining agent and grievance representative for the entire
craft or class of firemen on the defendant railroad, including
the minority negro locomotive firemen which the Brother
hood excludes from membership solely on account of race
or color. By virtue of said Railway Labor Act the minority
negro locomotive firemen, including plaintiff, have been
compelled to accept the defendant Brotherhood as their
exclusive bargaining agent and grievance representative
in dealings with the defendant railroad; and they have so
accepted defendant Brotherhood within the limitations of
the lawful exercise of its powers.
6. Respondent Brotherhood is herein sued in its own
right as bargaining representative of plaintiff and the
other minority negro firemen under said Railway Labor
Act,' and further as representative of all the white member
firemen employed on the defendant railroad, particularly
the white member firemen who are employed in the “ pool”
on the 8. & N. A. seniority division.
7. By the terms of the covering contract of March 1,
1929 aforesaid (which forms part of plaintiff’s employ
ment contract) the right to make and interpret contracts,
rules, rates and working conditions is vested in the regu
larly constituted Committee of the Brotherhood and the
general officials of the railroad; local officials are forbidden
to enter into local agreements with local committee or with
any individual fireman or hostler in conflict with said
covering contract without the approval of the general of
ficials of the railroad and the general chairman of the
Brotherhood; and the life of the contract is expressly made
subject to 30 days notice by either the railroad or the
Brotherhood. By virtue of their membership and further
52
by virtue of their nomination of the Brotherhood as bar
gaining agent under the Railway Labor Act, the white fire
men, including the white firemen in the “ pool” on the S.
& N. A. seniority division have expressly made the Brother
hood their representative for all matters affecting con-
[fol. 54] tracts, rules, rates and working conditions.
8. The white firemen members of the defendant Brother
hood not only constitute a majority of the firemen on the
defendant Railroad but also constitute a majority of
the firemen on each of the railroads listed in the No
tice dated March 28, 1940 to the Southeastern Car
riers Conference attached to this amended complaint as
“ Exhibit A ” ; and on each said railroad have designated
and established said Brotherhood as the exclusive bargain
ing agent and grievance representative for the entire craft
or class of firemen on said railroad, including the minority
non-member negro firemen. The Brotherhood has asserted
to act under color of said Railway Labor Act not only in
the matter of adjusting general conditions of work but
also in handling and regulating all rules, rates of pay, con
tract terms and working conditions of the individual em
ployment contracts between the carrier and the individual
fireman; and has asserted exclusive and unrestricted do
minion over the individual contract of the negro firemen
on the defendant railroad, including plaintiff’s individual
contract of employment.
9. Defendant Brotherhood has not exercised its powers
of representation under the Railway Labor Act aforesaid
loyally, impartially and in good faith with respect to the
minority non-member negro firemen; but has constantly
discriminated against them in an effort to obtain for its
white member firemen a monopoly of employment on all
railroads, including defendant railroad, and gradually to
eliminate the negro firemen from employment thereon. To
that end it has over a period of fifteen years secretly nego
tiated with said railroads, including the defendant railroad,
a series of agreements and modifications of agreements
placing every increasing strictures on the employment of
negro firemen and curtailing and destroying their seniority
rights and other vested rights under their individual em
ployment contracts, to the preferential advantage of their
own white member locomotive firemen. As a direct con
sequence of the Brotherhood’s persecution the employment
53
of negro firemen on all railroads, including the defendant
railroad, has greatly declined, their job assignments have
become less frequent and more irregular, their work more
hazardous and burdensome both individually, and as a
class as compared with the employment, job assignments
and work of the white member locomotive firemen.
10. Defendant Brotherhood in functioning as sole and ex
clusive bargaining agent and grievance representative un
der the Railway Labor Act, particularly sections 151a and
152, Title 45, IT. S. Code of the entire craft or class of fire-
[fol. 55] men on the defendant railroad, at all times owes
a statutory and fiduciary duty to each individual locomo
tive fireman, including plaintiff and the other negro non
member locomotive firemen, to represent him loyally and in
good faith, not to seek a monopoly or other special ad
vantage for its own members against the non-members, to
stand impartial between all the firemen, to make full dis
closure of all negotiations and other proposed actions af
fecting the individual fireman’s rate of pay, rules and
working conditions, to give reasonable notice, opportunity
to be heard, and a chance to vote to the individual fireman
on any action proposed, and full and prompt report on
all action taken affecting his interests, and generally to
conform to and respect the rules of law and standards of
conduct governing the relationship of principal and agent
as the statutory agent of said individual fireman by desig
nation of the majority of the craft or class of firemen under
said Railway Labor Act. Nevertheless in flagrant violation
of its duties in the premises so far as plaintiff and the
other negro non-member locomotive firemen on defendant
and the other railroads are concerned, the defendant Brother
hood has persistently been unfaithful to its fiduciary duty
and agency relationship, has been and is now disloyal to
him and them, has sought to force him and them out of em
ployment and destroy their respective seniority rights in
an effort to obtain for its own members a monopoly of
employment, or failing that the most favored job assign
ments and best conditions of work regardless of merit or
seniority. It has refused and still refuses to notify plain
tiff and the negro non-member firemen of proposed actions
affecting his or their interests, to report its deeds done as
nis or their bargaining representative or to handle his or
their grievances, and has refused and still refuses to give
54
Mm or them fair, honest and faithful representation under
said Railway Labor Act.
11. At all times material herein all the responsible offi
cials of the defendant railroad, specifically the Director
of Personnel, a general officer, and his staff, have been and
are fully acquainted with the attitude and attempts of the
Brotherhood to obtain a monopoly of employment and
most favored conditions for its own white member fire
men against plaintiff and the minority non-member negro
firemen.
[fol. 56] 12. In execution of its discriminatory scheme
aforesaid under date of March 28, 1940, the defendant
Brotherhood without notice to plaintiff or the other negro
firemen, or without giving them a chance to protest or
otherwise protect themselves, served on the Southeastern
Carriers, including defendant railroad, a thirty — notice
to amend all existing agreements and employment con
tracts of the firemen on said roads, including the individual
contracts of plaintiff and the other negro non-member fire
men, in such a way as to destroy their vested seniority
rights by providing that only promotable men would be
employed as firemen on other than steam power, that
when new runs or jobs should be established in any service
only promotable firemen would be assigned, or the same
in ease of permanent vacancies or established runs or jobs.
(See further “ Exhibit A ” hereto which is prayed to be
read in full herewith). According to existing railroad
practice promotable men means white men; negroes being
known as non-promotable men and being the only group of
firemen so designated. All the general officials of the de
fendant railroad knew that said notice proposed a modifi
cation of existing contracts prejudicial to the existing in
dividual contracts between the defendant railroad and its
negro firemen, including plaintiff; knew the motive of the
defendant Brotherhood was to try to drive the negro loco
motive firemen out of employment and to take away the
bentfits of their vested seniority rights.
11. Nevertheless in spite of such knowledge of the pur
pose and motive of the defendant Brotherhood, without
notice to the plaintiff or the other negro locomotive fire
men employed by it, defendant railroad acting by and
through its general officers who were then and there acting
55
in the course of and within the scope of their employment
and in prosecution of the business of the defendant rail
road did conspire with the defendant Brotherhood, and
well knowing that the effect of said agreement would be to
destroy the vested seniority rights of plaintiff and the other
minority negro firemen or seriously curtail the exercise of
the same, did execute with said Brotherhood the so-called
“ Washington Agreement” dated February 18, 1941, ef
fective February 22, 1941; and the modification of said
agreement dated Louisville, Kentucky May 12, 1941.
(Copies of said Agreement and modification are already
attached to the original complaint herein filed, and now
designated as Exhibits “ B ” and “ C” respectively to this
[fol. 57] amended complaint are incorporated herein by
reference and prayed to be read in full herewith).
12. By the terms of said “ Washington Agreement” the
proportion of non-promotable firemen on other than steam
power shall not exceed fifty per cent in each class of service;
but even then the agreement did not sanction the employ
ment of non-promotable men on any seniority district on
which non-promotable men were not employed at the date
of the agreement; and further until such percentage should
be reached all new runs and all vacancies created by death,
dismisssal, resignation or disqualification should be filled
by promotable men.
13. In addition the agreement provided that the repre
sentatives of the employees did not waive and were not to be
considered prejudiced in the right to request further agree
ments or modifications of agreements still more narrowly
restricting the employment of helpers on other than steam
power on any railroad to promotable men, meaning white
men to the exclusion of negroes.
14. Although the “ Washington Agreement” applied
only to firemen and helpers on power other than steam
power, yet the defendant Brotherhood acting through its
General Chairman for the defendant railroad who was then
and there purporting to act within the scope and course of
his employment as bargaining agent under the Railway
Labor ̂Act for all the firemen on the defendant railroad
including plaintiff and the other negro firemen, and the
defendant railroad acting through its general officers the
Director of Personnel and Assistant Directors of Personnel
56
who were then and there purporting to execute the business
of the railroad and were acting within the scope and course
of their employment, did broaden the scope of said Agree
ment and did modify and extend the same to include all
power and to restrict the seniority rights of plaintiff and
the other negro firemen on steam locomotives; and they did
confederate together to destroy and curtail plaintiff’s
vested seniority rights, as more fully evidenced in detail by
the terms of said modification (See Exhibit “ C” ).
15. Although the negro firemen constitute the minority
group of firemen on the entire defendant railroad system,
they constitute the majority group of the S. & N. A. seniority
division to which plaintiff is assigned and in which he has
his vested seniority rights. The negro firemen constitute
[fol. 58] about eighty per cent or more of the total firemen
on said division; and up to the making of the ‘ ‘ Agreement ’ ’
and modification aforesaid had exercised their vested sen
iority rights without discrimination.
16. Under existing railroad practice on the defendant
railroad when a train is taken out of service which has been
pulled by a locomotive fired by a fireman taken from the
“ pool” the same is considered as changing the “ pool” to
the extent of placing the positions in the same up for com
petitive bidding by the firemen on the basis of seniority.
17. Shortly before April 7, 1941, the defendant railroad
took a train out of service which was pulled by a locomotive
fired by a fireman taken from the “ pool” , and as a conse
quence the jobs in the “ pool” were advertised for bids.
By virtue of his seniority plaintiff was entitled to one of the
“ pool” jobs but because of his race, and solely because of
his race, he was without cause and in spite of the fact that
by seniority, competence and worth he was entitled to the
same, he was denied a job in the “ pool” on the strength of
said “ Agreement” and modification. By such action the
defendant railroad violated its employment contract with
him and breached his seniority rights. In his place the
defendant Brotherhood and the defendant railroad caused
a white firemen junior to him and a member of the Brother
hood to be placed in the “ pool” , in pursuance of the con
spiracy aforesaid and the campaign of the Brotherhood to
seek preferential advantages for its own members at the
expense of the non-member negro firemen.
57
18. In consequence of the wrongful acts of the defendants
plaintiff’s earnings have been reduced over $50.00 per
month, his work assignments have been more burdensome
and hazardous, his hours of employment have been longer
and his enforced absence from home more prolonged. His
vested retirement rights under the Railway Retirement Act
of June 24, 1937 (IT. S. Code, Title 45, Ch. 9) have been
seriously impaired and will be irreparably damaged unless
this Court grants relief.
19. Plaintiff has exhausted his remedies within the
Brotherhood and the railroad to the point where he is law
fully entitled to seek relief at the hands of this Court. He
has appealed to the highest operating officer of the defendant
railroad with jurisdiction in the premises, and to the general
chairman of the defendant Brotherhood representing, or
[fol. 59] supposed to represent and employed to represent
under the Railway Labor Act, all the firemen on the de
fendant railroad. Nevertheless he has been denied all relief
by the Railroad and the Brotherhood, and said wrongs have
continued, now exist and will continue to exist and grow
worse unless restrained by this Court. Legal relief by way
of damages are inadequate for full redress of his wrongs
suffered. The seniority rights of the other negro firemen
on the defendant railroad have been similarly curtailed or
threatened by defendant railroad and defendant Brother
hood under said “ Agreement” and modification.
Wherefore Premises Considered, the defendants being
already before this Court by process lawfully served upon
them plaintiff prays that they be required to plead, answer
or demur hereto within the time prescribed by law, and
further prays that:
1. He be granted a permanent injunction against each
defendant perpetually enjoining them and each of them
from enforcing or otherwise recognizing the said “ Agree
ment” or modification thereof:
2. Discovery by the Brotherhood of all agreements and
negotiations undertaken by it with the defendant railroad
since the enactment of the Railway Labor Act of 1934 in
which it purported to act as the exclusive bargaining agent
for all the locomotive firemen on the defendant railroad
under said Act, which have resulted in its occupying a hos
tile position or having conflicting interests with plaintiff
58
and the other non-member negro firemen regarding rates of
pay, rules or working conditions;
3. Restoration of plaintiff’s and other negro firemen’s
seniority rights and recognition of the same apart and in
dependent of said “ Agreement” and modification thereof;
4. A permanent injunction against the defendant Brother
hood, its officers, subordinate lodges, members, agents, or
attorneys perpetually enjoining them and each of them from
purporting to act as representative of plaintiff or the other
negro firemen on the defendant railroad, so long as it or any
of them refuse to give plaintiff and the other negro firemen
notice, opportunity to be heard and a vote on all matters af
fecting them individually or in common with the other loco
motive firemen on defendant railroad as a craft or class.
[fol. 60] 5. A decree binding all parties and their privies
and those represented herein, settling, declaring and de
fining the rights, interests and other legal relations of the
parties in and to and by reasons of the matters herein con
troverted ;
6. Damages against the Brotherhood for loss of wages,
destruction of vested seniority preference rights, and breach
of its fiduciary and statutory duty as exclusive bargaining
agent and grievance representative under the Railway
Labor Act and the other injuries set forth in the sum of
Fifty Thousand ($50,000.00) dollars in favor of plaintiff;
7. Relief for the other negro locomotive firemen on the
defendant railroad as a class in the same manner as prayed
for by plaintiff individually, so far as their interests may
appear;
8. General relief.
Arthur D. Shores, 1630 Fourth Ave., N. Birmingham;
J. T. Settle, 145 Beale Ave., Memphis, Tenn.;
Charles H. Houston, Joseph 0. Waddy, 615 F.
Street, N. W., Washington, D. C.; By Charles H.
Houston, Attorneys for Plaintiff.
Certificate of S ervice
I, Charles H. Houston, do hereby certify that prior to
filing this amended Complaint and at the same time the
original was forwarded to the Clerk of the Court, I mailed a
59
copy, postage prepaid, to Lange, Simpson, Brantley & Rob
inson, Esquires, Attorneys for the defendant Brotherhood,
Nelson Building, Birmingham, Alabama; and to, Gibson &
Gibson, Esquires, White Gibson, Esquire, Chas. H. Eyster,
Attorneys for the defendant Railroad, Birmingham, Ala
bama.
Washington, D. C., February 19, 1942.
Charles H. Houston.
[fol. 61] E x h ib it “ A ” to A mended C om plaint
Brotherhood of Locomotive Firemen and Enginemen
General Grievance Committee
............. Railway,
March 28, 1940.
Mr.------------- , ------ .
D eab S i b :
This is to advise that the employees of the . . . Railway
engaged in service, represented and legislated for by the
Brotherhood of Locomotive Firemen Enginemen, have ap
proved the presentation of request for the establishment
of rules governing the employment and assignement of
locomotive firemen and helpers, as follows:
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 or established runs
or jobs in any service, only promotable firemen or helpers
will be assigned to them.
4. It is understood that promotable firemen or helpers
on other than steam power or 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
60
Act, kindly accept this as the required official notice of our
desire to revise the agreement to the extent indicated.
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
Louisiana and Arkansas
Mobile and Ohio, Columbus & Greenville
Norfolk & Postmouth Belt
Norfolk & Southern
Norfolk & Western
[fol. 62] Frankfort & Cincinnati
Georgia Eailroad
Georgia & Florida
Gulf, Mobile & Northern
Louisville & Nashville
Memphis Union Station Co.
Seaboard Airline
Southern Railroad System
St. Louis-San Francisco
Tennessee Central
It is our request that all lines or division of railway
controlled by the .. . Railway shall be included in settle
ment 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 purpose of discussing
the proposal. In event settlement is not reached in con
ference, 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 condi
tions in our agreements not specifically affected by our
proposition shall remain unchanged subject to change in
the future by negotiations between the proper representa
tives as has been the same in the past.
Yours truly, (Signed) General Chairman.
61
[fol. 63] Isr C ircuit C ourt of J efferson C ounty
Demurrer of L. & N. R. R. Co. R efiled to B ill as L ast
A mended— Filed March 10, 1942
Comes the respondent, Louisville & Nashville Railroad
Company, a corporation, and refiles its demurrer hereto
fore filed to complainant’s original bill of complaint, so
that said demurrer shall be filed against complainant’s
bill of complaint as last amended.
Chas. H. Eyster, and Gibson and Gibson, Solicitors
for respondent, Louisville and Nashville Railroad
Company, a corporation. By White E. Gibson.
In Circuit C ourt of J efferson C ounty
D emurrer of B rotherhood to A mended B ill— Filed March
17, 1942
I
Comes the Brotherhood of Locomotive Firemen and En-
ginemen, one of the respondents in the above cause, and
demurs to the amended bill of complaint in this cause pre
sented against it as a whole, and as grounds of said de
murrer, sets down and assigns the following, separately
and severally:
1. For that it does not appear therefrom that the indi
viduals who negotiated the alleged contracts attached as
exhibits to said amended bill of complaint were agents,
servants or employees of the members of this association
generally, and were acting in the line and scope of their
employment as such.
2. For that it does not appear therefrom with sufficient
certainly that the individuals who negotiated and executed
the alleged contracts were, at the time, acting within the
line and scope of their authority as agents, servants or
employees of this association.
3. For that it does not appear therefrom with sufficient
certainty that the individuals who negotiated and executed
said contracts were, at the time, acting as agents, servants
or employees of the members of this association within the
line and scope of their authority as such.
62
4. For that tliere does not appear therefrom any reason
why this association or the members thereof should be held
accountable for the actions of the statutory representatives
[fol. 64] under the Railway Labor Act.
5. For that the allegation that complainant’s contract
embodied the standard provisions of the Firemen’s and
Hostlers’ Schedule issued March 1, 1929, is a conclusion
of the pleader.
6. For that the allegation that the complainant’s employ
ment status is a vested property right is a conclusion of
the pleader.
7. For that the allegation that the white members of the
Brotherhood have designated said Brotherhood as the ex
clusive bargaining agent and grievance representative for
the entire craft or class of firemen on defendant railroad
is a conclusion of the pleader.
8. For that the averments thereof are so vague, indefi
nite and uncertain that this respondent is not sufficiently
apprised as to what actions on its part are complained of
by the various parties complainant.
9. For that it does not appear with sufficient certainty
who was the designated bargaining agent for the entire
craft or class under the Railway Labor Act.
10. For that it does not appear that this association has
ever been certified as the exclusive bargaining agent under
the Railway Labor Act.
11. There is no equity in the amended bill.
12. It affirmatively appears therefrom that this action is
not maintainable against the members of this association
generally.
13. For that it does not appear therefrom that this cause
of action is a cause of action for or upon which the com
plainant therein may maintain such an action against the
members of this organization or association.
14. For that it affirmatively appears therefrom that this
is not a cause of action for or upon which the complainant
therein may maintain such an action against the members
of this organization or association.
63
15. For that the amended bill of complaint does not allege
that the persons whose names appear on Exhibit 1 and 2
of the original bill of complaint as signing on behalf of
[fol. 65] the Brotherhood of Locomotive Firemen and En-
ginemen and Brotherhood of Locomotive Firemen and
Enginemen Committee were authorized by the members of
this association to execute the said document or that the
execution of said document was ratified by the members
of this association.
16. For that it affirmatively appears therefrom that the
execution of the document constituting Exhibits 1 and 2 of
said amended bill of complaint were neither authorized
nor ratified by the members of this association.
17. For that it does not appear therefrom that the docu
ments constituting Exhibits 1 and 2 of the said amended
hill of complaint were executed for or on behalf of the
members of this association.
18. For that it affirmatively appears therefrom that the
documents constituting Exhibits 1 and 2 of said amended
bill of complaint were not executed for or on behalf of the
members of this association.
19. For the allegation that complainant is employed by
the defendant, Louisville & Nashville Railroad Company,
on the S. & N. A. Division, with seniority rights as a fire
men is a conclusion of the pleader.
20. For that the averments of the amended bill are not
definite and certain enough to apprise this respondent what
it is called upon to defend.
21. For that there are no facts alleged which show that
complainant was entitled to seniority rights, nor is there
any averment as to what seniority rights plaintiff was
entitled.
22. For that it does not appear therefrom by what right
plaintiff brings suit as a class suit on behalf of the other
negro locomotive firemen on the defendant’s railroad.
23. For that it affirmatively appears therefrom that the
complainant has no right to maintain this amended bill
on behalf of the other negro firemen.
[fol. 66] 24. For that it appears therefrom that the meas
ure and extent of complainant’s damages as well as the
64
class of complainant’s damages is materially different from
that of others constituting the class which he seeks to
represent.
25. For that it does not appear therefrom that the com
plainant has the consent or authority of the class which he
seeks to represent.
26. For that it does not appear therefrom that the other
members of the class which complainant seeks to represent
have seniority rights or that their rights have been affected
in any way by the action complained of.
27. For that the said amended bill of complaint shows
that said complainant is asking the benefits of the alleged
contracts between the railroad and the locomotive firemen
and hostler’s schedules issued on March 1, 1929, and is un
willing to abide by the terms, provisions and conditions of
the said alleged schedule or contract.
28. For that it does not appear therefrom that complain
ant, or any of the class which he seeks to represent, have
sustained any injuries or damages as a result of the action
complained of.
29. For that there are not alleged therein any facts which
make the elleged contract constituting Exhibit- 1 and 2 of
said amended bill of complaint illegal, unconscionable or
unfair.
30. For that it affirmatively appears therefrom that both
parties respondent were free contracting agencies and had
right to make and enter into the contracts set out as Ex
hibits to the amended bill.
31. For that the relief prayed for in the amended bill
would be an undue interference with the rights of the par
ties respondent to contract as they have a right to do.
32. For that there is a misjoinder of parties complainant
in that complainant seeks to combine a personal claim for
damages with a claim of the negro firemen of the class of
equitable relief.
33. For that the interest and injuries of the negro firemen
do not sufficiently appear to enable the Court to adjudicate
their rights in the premises.
65
[fol. 67] 34. For that an action for damages can not be
brought on behalf of a class.
35. For that the decree prayed for by complainant on
behalf of the class which he seeks to represent would he
unenforceable.
36. For that no reason is alleged why this association
can not execute any contract if so desired for the benefit of
its members.
37. For that said amended bill fails to allege or to set out
in substance or in haec verba the alleged schedule issued
March 1, 1929, and Article 26 of said Schedule.
38. For that said amended bill of complaint shows that
complainant is seeking to obtain the benefits of an alleged
contract between the defendant company and this associa
tion as though he were a member of the said brotherhood
or association, without the averment that he is a member of
said brotherhood or association.
39. For that said amended bill fails to allege what the
alleged conspiracy was between the said railroad and this
respondent.
40. For that said amended hill does not allege facts sus
taining the averment of conspiracy between the railroad
and this respondent.
41. For that the allegation of the conspiracy between the
railroad and this respondent is a conclusion of the pleader.
42. For that a corporation is incapable of entering into a
conspiracy.
43. For that a voluntary association is incapable of enter
ing into a conspiracy.
44. For that it is not alleged that any of the members of
this association entered into a conspiracy or that they au
thorized, ratified or condoned a conspiracy.
45. For aught that appears therefrom, the members of
this association had no knowledge and were not parties in
any way to the said contracts.
46. For that it is not alleged that the persons whose
names appear on the said contract or any of them were
5—1192
66
agents, servants of employees of the members of this associ
ation, acting within the line, scope and course of their em
ployment as such.
47. For that the allegations that this association was act
ing as exclusive bargaining agent under the Railway Labor
Act of June 21, 1934, is a conclusion of the pleader and no
[fol. 68] facts are alleged to support the said concusion.
48. For that the complainant has an adequate remedy at
law.
49. For that the said amended bill of complaint shows on
its face that if the complainant has suffered wrong, he has
an adequate remedy at law against the respondent railroad
company by way of damages for breach of contract.
50. For that there are no facts alleged showing that plain
tiff will suffer irreparable injury by the wrongs com
plained of.
51. For that the said amended bill of complaint fails to
allege any wrong doing by this association.
52. For that the said amended bill of complaint fails to
allege any wrong doing by the members of this association
or any of them.
53. For that no facts are alleged which show that this
association or any of the members of this association were
under any duty to represent the complainants or any of
them.
54. For that no facts are alleged to show any duty on any
of the members of this association or any breach of any
duty by the members of this association.
55. For that it does not appear therefrom that the said
agreements or contracts are in any way binding upon any
of the complainants or respondents or either of them.
56. For that the remedy of complainants, if the defendant
railroad has breached its contract or contracts with them,
is at law by way of damages for breach of contract, and for
aught appearing from the said amended bill of complaint,
said remedy would be entirely adequate.
57. For that no facts are alleged showing any right which
equity will protect by injunction.
67
58. For that it is not alleged therein that the complainant,
as a class, jvas discriminated against by the said contract
and it affirmatively appears therein that the classification
made by said contract is reasonable.
59. For that the said amended bill fails to allege that the
alleged contract between the railroad and this association
dated February 18, 1941, is illegal or unlawful in any
respect.
[fol. 69] 60. It affirmatively appears therefrom that the
said contract complained of by complainants was a contract
which this respondent had a perfect right to negotiate,
make, execute and put into effect.
61. For that it affirmatively appears therefrom that com
plainant’s remedy, if any, is by and through the adminis
trative agencies set up by the said Railway Labor Act, and
that the remedies therein prescribed are adequate.
62. For that it appears affirmatively therefrom that if
complainants have any cause of action it is against the in
dividuals who participated in the alleged wrong and not
against the members of this association.
63. For that it affirmatively appears therefrom that there
is no authority or warrant of law for the maintenance of
this action against and in the name of this unincorporated
organization or association.
64. For that the complainants ask equitable relief without
submitting themselves to the jurisdiction of this Court and
are not amenable to this Court and are not amenable to the
process of this Court.
65. For that the record shows that this Court has no juris
diction of the members of this association and has no power
to render a decree affecting their individual rights.
66. For that it affirmatively appears that this Court has
no jurisdiction to render a money decree against any of the
members of this association or as against this association
as such.
67. For that it affirmatively appears that the decree of
this Court would be unenforceable as against the individual
members of this association.
68
68. For that it affirmatively appears that this Court has
no jurisdiction over the non-resident members of this asso
ciation and can not interfere with their freedom of contract.
[fol. 70] 69. For that this Court judicially knows that the
members of this association are not liable for the tortuous
acts of officers or agents of the association done without the
authorization, approval or ratification of the said mem
bers.
70. For this Court judicially knows that the officers of
this association have no power to bind the individual mem
bers of the said association in any way.
71. For that this association is not a proper party re
spondent to this amended bill of complaint.
72. For that this association is not a legal entity.
73. For that no affirmative relief can be granted against
this unincorporated association on this cause of action.
74. For that the said amended bill of complaint is multi
farious in that it seeks to combine in the one amended bill
of complaint a great number of separate and individual
causes of actions by various, parties complainants, each
standing on separate facts and circumstances and each
demanding on its own individual and separate class and
degree of relief.
75. For that it affirmatively appears therefrom that the
rights of the various parties complainants vary widely in
the class and type of relief sought as well as the degree
of the relief to which they are entitled and therefore, the
said amended bill of complaint is multifarious.
76. For that it now shown thereby that the complainants
or any of them will suffer irreparable injury by the putting
into effect of the alleged contract.
77. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the
amended bill of complaint and whose rights will be in
juriously and adversely affected by the decree sought, and
who are indispensable parties to this bill of complaint.
78. For that it appears that the white firemen who will
be displaced by the relief sought are indispensable parties
to this procedure.
69
[fol. 71] II
And this respondent demurs to that aspect of said
amended bill of complaint which prays a perpetual injunc
tion and for grounds of said demurrer sets down and as
signs the following:
1. There is no equity in the said aspect of the amended
bill of complaint.
2. It affirmatively appears that complainants have an
adequate remedy at law.
3. For that the rights which complainants claim therein
are not rights which equity will protect by injunction.
4. For that it affirmatively appears that a decree in con
formance with the prayer for an injunction would be
unenforceable.
5. For that a decree in conformance with the prayer for
an injunction would not be enforceable as against the mem
bers of this association.
6. For that this Court has no sufficient jurisdiction to
render a decree enjoining the members of this association
from doing the things and matters complained of therein.
7. For that the granting of the relief prayed for therein
as against this respondent would constitute a denial of due
processes of law.
8. For that it does not appear therefrom that the mem
bers of this association, or any of them, participated in any
way in the wrongful acts complained of or that the members
of this association or any of them in any way authorized,
ratified or approved of such action.
9. For that the same is not a cause of action for or upon
which the complainant therein may maintain such action
against the members of this organization or association.
10. For that the relief therein prayed, if granted, would
not be enforceable as against the members of this associa
tion.
11. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the
amended bill of complaint and whose rights will be in
juriously and adversely affected by the decree sought, and
70
who are indispensable parties (to) this amended bill of
complaint.
12. For that it appears that the white firemen who will be
displaced by the relief sought are indispensable parties to
this procedure.
[fol. 72] 13. For that the same amounts to a bill for spe
cific performance.
14. For that under the alleged contract, the breach of
which complainant seeks to enjoin, the complainants would
not receive anything unique in value, but would receive
only money.
I l l
And this respondent demurs to that aspect of the amended
bill of complaint which seeks a discovery, and for grounds
of said demurrer sets down and assigns the following:
1. For that the said amended bill of complaint is not
sworn to.
2. For that the allegations thereof are not made under
oath.
3. For that there is no equity in the said aspect of the
amended bill.
4. For that it affirmatively appears therefrom that the
' complainants have an adequate remedy at law.
5. For that complainants show no right to a discovery.
6. For that the allegations of the said aspect of the bill
as amended are so vague, indefinite and uncertain, and the
prayer thereof is so vague, indefinite and uncertain that
this respondent is not apprised of what it is called upon to
defend or what it is called upon to produce in the way of
a discovery.
7. For that the said allegations of the said aspect of the
amended bill are so vague, indefinite and uncertain that this
respondent is not apprised thereby of what information
the said complainants are seeking or what information they
are entitled to.
8. For that the same is not a cause of action for or upon
which the complainant therein may maintain such an action
against the members of this organization or association.
71
9. For that the relief therein prayed, if granted, would
not be enforceable as against the members of this associa
tion.
10. For that no facts are alleged which show that the
members of this association have the information, a dis
covery of which is prayed.
11. For that there is alleged no duty on the part of the
members of this association to give the complainants, or
[fol. 73] any of them, a discovery of the information therein
sought.
12. For that it does not appear therefrom that the mem
bers of this association, or any of them, participated in any
way in the wrongful acts complained of or that the members
of this association or any of them in any way authorized,
ratified or approved of such action.
IV
And'this respondent demurs to that aspect of the amended
bill of complaint which seeks restoration of plaintiff’s and
other negro locomotive firemen’s rights and recognition of
the same apart from the certain alleged agreement, and for
grounds of said demurrer sets down and assigns the fol
lowing :
1. There is no equity in the said aspect of the bill.
2. For that it affirmatively appears that the complainants
have an adequate remedy at law.
3. For that it affirmatively appears that complainant’s
remedy, if any, is at law against the respondent railroad for
damages for breach of contract.
4. For that the said relief therein prayed, if granted,
would not be enforceable as against this respondent.
5. For that the relief therein prayed for, if granted,
would not be enforceable as against the members of this
association.
6. For that it affirmatively appears therefrom that the
cause of action therein set up is not a cause of action for
or upon which the plaintiff therein may maintain such an
action against the members of this organization or associa
tion.
72
7. For that it does not appear that the members of this
organization or association participated in any way in the
wrongful acts complained of therein or that they author
ized, ratified or approved the said actions in any way.
8. For that it affirmatively appears therefrom that this
respondent can not restore plaintiff’s alleged position with
the respondent railroad company and any decree rendered
against this respondent would be effectual.
[fol. 74] 9. For that it affirmatively appears therefrom
that there are parties who are not made parties respondent
to the amended bill of complaint and whose rights will be
injuriously and adversely affected by the decree sought,
and who are indispensable parties to this amended bill of
complaint.
10. For that it appears that the white firemen who will be
displaced by the relief sought are indispensable parties to
this procedure.
11. For that the same seeks specific performance of an
alleged obligation for the payment of money.
12. For that the same seeks specific performance of a
contract by the alleged terms of which the complainant
would receive only money.
18. For that it is not alleged that complainant would re
ceive anything of uniqure (unique) value in the enforcing
of the alleged contract.
14. For that the complainants pray for specific perform
ance without offering to perform themselves.
15. For that the performance by either complainants or
respondents would be unenforceable.
V
And this respondent demurs to that aspect of the amended
bill of complaint which seeks an injunction against this re
spondent enjoining it and its members and each of them
from purporting to act as representatives under the Rail
way Labor Act for all of the locomotive firemen on the de
fendant railroad, and for grounds of said demurrer, sets
down and assigns the following:
1. There is no equity in the said aspect of the amended
bill.
73
2. For that it affirmatively appears therefrom that the
complainants have an adequate remedy at law.
3. For that it affirmatively appears from the allegations
thereof that this association has a right under the said Rail
way Labor Act to act as representative for all the locomotive
firemen on the said defendant railroad.
[fol. 75] 4. For that this Court has no power to bind the
members of this association by any decree rendered in this
cause.
5. For that it affirmatively appears therefrom that this
is not a cause of action for or upon which the complainants
therein may maintain such a cause of action against the
members of this association or organization.
6. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the
amended bill of complaint and whose rights will be injur
iously and adversely affected by the decree sought, and who
are indispensable parties to this amended bill of complaint.
7. For that it appears that the white firemen who will be
displaced by the relief sought are indispensable parties to
this procedure.
VI
And this respondent demurs to that aspect of the amended
bill of complaint which seeks a declaratory judgment, and
for grounds of said demurrer, sets down and assigns the
following:
1. There is no equity in the said aspect of the amended
bill.
2. For that it affirmatively appears therefrom that the
complainants have an adequate remedy at law.
3. For that it affirmatively appears therefrom that there
is not a cause of action for or upon which the complainants
therein may maintain such an action against the members
of this association.
4. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the
amended bill of complaint, and whose rights will be injur
iously and adversely affected by the decree sought, and who
are indispensable parties to this amended bill of complaint.
74
5. For that it appears that the white firemen who will be
displaced by the relief sought are indispensable parties to
this procedure.
6. For that it does not appear therefrom that there is any
justiciable controversy between the complainants or any of
them and the members of this association.
7. For that it does not appear that there is any justiciable
controversy between complainants and this respondent.
[fol. 76] 8. For that it affirmatively appears that an ade
quate relief and an appropriate remedy are presently avail
able to the complainants through other existing forms of
action or proceedings.
VII
And this respondent demurs to that aspect of the amended
bill of complaint which seeks damages against this Brother
hood, and for grounds of said demurrer, sets down and as
signs the following:
1. For that there is no equity in the said aspect of the
amended bill.
2. For that it affirmatively appears therefrom that the
complainants have an adequate remedy at law.
3. For that it affirmatively appears therefrom that this is
not a cause of action for or upon which the complainants
therein may maintain such an action against the members of
this association.
4. For that it is not alleged therein that the members of
this association participated in any way in, or in any way
ratified, confirmed or approved the said action complained
of.
5. For that it does not appear therefrom that the said
contracts were negotiated or executed by agents, servants
or employees of the members of this association acting
within the line and scope of their employment.
6. For that there is no authority or warrant of law for
the awarding of damages to a class.
7. For that there is no authority or warrant of law for
the awarding of a decree requiring affirmative action on the
part of the respondent in favor of a class.
75
And this respondent demurs to that aspect of the amended
bill of complaint which seeks relief on behalf of the other
negro locomotive firemen of the defendant railroad as a
class, and for grounds of said demurrer, sets down and as
signs the following:
1. For that it appears therefrom that the interests of the
negro firemen on the S. and N. A. Seniority Division of the
L. and N. Railroad Company are different in kind, class and
[fol. 77] degree from the negroes on the other divisions of
said railroad.
2. For aught appearing therefrom, many of^the parties
sought to be made parties complainant will not be injuri
ously affected by the action complained of.
3. For that it does not appear that any of the parties who
are sought to be made parties complainant with the excep
tion of complainant Steele have suffered any injury, dam
ages or invasion of right.
4. For that it does not appear that the contracts of the
various parties sought to be made complainants embody
the terms of the said Firemen’s and Hostlers’ Schedule.
5. For that it does not appear therefrom that the various
parties complainant have any seniority rights.
6. For that it does not appear therefrom that the various
parties complainant are entitled to any seniority rights or
privileges or preference of runs.
7. For that it does not appear therefrom that the various
parties complainant have any vested property right which
has been invaded by the actions complained of.
8. For that there is no equity in the said aspect of the
amended bill.
9. For that it affirmatively appears that the complainants
have an adequate remedy at law.
10. For that it does not appear therefrom that the com
plainant has the authority to represent said class.
11. For that it does not appear therefrom that the inter
ests of the class which the complainant seeks to represent
are identical with his own.
VIII
76
12. For that it affirmatively appears therefrom that the
rights of the various parties sought to be represented by
class are widely variant as to the class and type of relief to
which they are entitled, if any, and also as to the degree of
relief to which they are entitled.
[fol. 78] 13. For that it affirmatively appears therefrom
that this is not a cause of action for or upon which the
complainants therein may maintain such an action against
the members of this association.
14. For that there is no authority or warrant of law
for the awarding of damages to a class.
15. For that there is no authority or warrant of law for
the awarding of a decree requiring affirmative action on
the part of the respondent in favor of a class.
16. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the
amended bill of complaint, and whose rights will be in
juriously and adversely affected by the decree sought, and
who are indispensable parties to this amended bill of com
plaint.
17. For that it appears that the white firemen who will
be displaced by the relief sought are indispensable parties
to this procedure.
Harold C. Heiss, Lange, Simpson, Brantley & Rob
inson, Solicitors for respondent, Brotherhood of
Locomotive Firemen and Enginemen, an unincor
porated association.
77
M in u t e E n t r y o n S u b m is s io n o f D e m u r r e r s—April 15,
1942
On this the 15th day of April, 1942 it is ordered by the
Court that this cause be submitted for decree on demurrers
to amended bill.
I n C i r c u i t C o u r t o r J e f f e r s o n C o u n t y
I n C ir c u it C o u r t of J e f f e r s o n C o u n t y
A m e n d m e n t to A m e n d e d 1 B i l l of C o m p l a in t — Filed June
15, 1942
To the Honorable Judge of Said Court:
Comes the complainant in the above styled case and with
leave of the Court first had and obtained, amends the
Amended Bill of Complaint as follows:
1. At the end of the first sentence in paragraph 3, insert
the following:
“ A copy of said Schedule entitled ‘Agreement between
the Louisville & Nashville Railroad and its Locomotive
[fol. 79] Firemen and Hostlers,’ issued March 1, 1929, is
herewith filed as Exhibit AA to this Amended Complaint,
and is prayed to be read in full as a part hereof.”
2. At the end of the second sentence in paragraph 5,
insert the following:
“ Plaintiff does not know the method by which said white
firemen designated said Brotherhood as the exclusive bar
gaining agent and grievance representative under the Rail
way Labor Act for the entire craft of firemen on the defend
ant Railroad, has no means of ascertaining and no way of
procuring the information since the proceedings of the
Brotherhood are secret; but he does aver that in fact the
Brotherhood with the knowledge, acquiescence, approval
and ratification of said white firemen has been acting as
the exclusive bargaining agent and grievance representative
as aforesaid.”
3. At the end of paragraph 7, insert the following:
“ The firemen constituting said ‘ pool’ are constantly
changing due to promotions, shifts in assignments, new
78
jobs, and other factors of railroad operation, but all the
white firemen who have been in the ‘ pool’ at any time mate
rial herein, or who are now in the ‘pool’ or who may be
eligible for the ‘pool’ are members of the defendant
Brotherhood, take their rights by virtue of its action as
exclusive bargaining agent aforesaid, and have expressly
made said Brotherhood their representative for all matters
affecting contracts, rules, rates and working conditions, and
are fully and fairly represented by said Brotherhood in
this proceeding.”
4. At the end of paragraph 11, insert the following:
‘ ‘ The officers who made and served the notice (Exhibit
A), who negotiated and executed said Washington Agree
ment and Modification thereof (Exhibits B and C) were all,
and each, duly authorized by said Brotherhood so to do and
were acting in the premises in the course and scope of their
employment and for the interest and benefit of the Brother
hood, its members at large, and specifically the white fire
men members on the defendant Railroad and in the ‘pool’
on the S. & N. A. Division. But for the reason that the
proceedings of the Brotherhood are secret plaintiff is with
out knowledge or information or means of obtaining infor
mation concerning the details of such authorization, but
states that in fact said notice, Agreement and Modification
have been approved by all the white firemen on the defend-
[fol. 80] ant Railroad and they have claimed all the rights
and benefits of the same.”
5. At the end of paragraph 19, and paragraph 20 as fol
lows :
“ 20. Plaintiff at all times on and after April 7, 1941, has
been ready, able and willing to perform faithfully and effi
ciently all duties as a fireman in said ‘ pool’ or elsewhere
as his seniority rights have entitled him to, and is still
ready, able and willing, has so tendered himself to the de
fendant Railroad and still tenders himself and will ever
tender himself; but he has been prevented wrongfully from
exercising his seniority rights and performing his said
duties by virtue of the Agreement and Modification afore
said.”
6. At the end of the amended complaint, add the jurat
hereto attached: Exhibit “ A A ” is an agreement between
79
the Louisville & Nashville Railroad and its Locomotive Fire
men and Hostlers, etc., the original of which is included in
a supplemental record and sent down along with the original
record.
Charles H. Houston, Arthur D. Shores, Attorneys
for plaintiff.
Certificate of Service
I, Arthur D. Shores, hereby certify that prior to present
ing these proposed amendments to the Court I served a
copy of same on counsel for each defendant in open Court.
Arthur D. Shores, Attorney for plaintiff.
Duly sworn to by Bester William Steele. Jurat omitted
in printing.
[ fo l . 81] I n C ir c u it C o u r t o f J e f f e r s o n C o u n t y
A m e n d m e n t to D e m u r r e r o f B r o t h e r h o o d—Filed June 15,
1942
Comes the Respondent, Brotherhood of Locomotive Fire
men and Enginemen, and amends its demurrer to the
amended bill of complaint as a whole by adding thereto the
following grounds, separately and severally:
79. For that the allegation that all the white firemen who
have been in the pool at any time material herein or who
are now in the pool, or who may be eligible for the pool,
are fully and fairly represented by said brotherhood in
this proceeding, is a conclusion of the pleader.
80. For that the allegation that said notice, agreement
and modification have been approved by all the white fire
men on the defendant railroad is not sufficient to charge
that said firemen actually participated in the wrongful acts
charged or ratified same.
81. For that the approval by any of the white firemen of
the acts complained of is not sufficient to impose upon them
legal liability.
82. For that it affirmatively appears from the bill of
complaint, as last amended, and the exhibits thereto that
the rates, rules and working conditions as provided by the
80
Locomotive Firemen and Hostlers’ Schedule was subject
to 30 days’ written notice by either party.
83. For that it does not appear that complainant’s re
spective contracts of employment have been breached; but
it affirmatively appears that the defendant railroad com
pany was within its legal rights in modifying the complain
ant’s respective contracts.
And this respondent amends its demurrer to that aspect
of the amended complaint which prays a perpetual injunc
tion by adding thereto the following separate and several
grounds:
15. For that said relief, if granted, would amount to a
decree of specific performance against the respondents,
whereas, specific performance on the part of the complain
ant could not be enforced.
16. For that there is no authority of law for requiring
this respondent to give the complainant and the other
negro firemen notice, opportunity to be heard, or a vote
on any matter, and a decree in conformity with the prayer
of the bill would impose upon this respondent conditions
not provided for by the Railway Labor Act.
17. For tha,t this respondent has a right to act as exclu
sive bargaining agent for the entire craft or class without
giving to any individual notice, opportunity to be heard
or a vote.
[fol. 82] And as amended, this respondent refiles its de
murrers I, II, III, IV, V, VI, VII, VIII to the amended
bill of complaint, as last amended, and to the aspects of
said amended bill described in said demurrers.
Harold 0. Heiss, Lange, Simpson, Brantley & Rob
inson, Solicitors for respondent, Brotherhood of
Locomotive Firemen and Enginemen.
I n C ir c u it C o u r t of J e f f e r s o n C o u n t y
A m e n d e d D e m u r r e r of L o u is v il l e & N a s h v il l e R ailroad
C o m p a n y — Filed June 16, 1942
Comes respondent, Louisville & Nashville Railroad Com
pany and amends its demurrer to the bill of complaint as
81
last amended, and as separate and several grounds of de
murrer adopts all of the grounds of amended demurrer of
the Brotherhood of Locomotive Firemen and Enginemen
to the bill of complaint as last amended, and this respondent
retiles its demurrers numbered 1 to 55, inclusive, to the
amended bill of complaint as last amended, and to the
aspects of said amended bill described in said demurrers,
and adds thereto the following grounds of demurrer:
56. To that aspect of paragraph eleven of the bill as
last amended, wherein it is stated that in fact said notice,
agreement and modification have been approved by all of
the white firemen of the defendant railroad:
(a) For that said language is a mere conclusion of the
pleader and is not sufficient to charge any responsible agent
of the defendant with ratifying or approving the agre-ment
or modification.
(h) For that the allegation “ they have claimed all rights
and benefits of the same” does not charge this defendant
with the ratification or adoption of said agreement to the
detriment of complainant.
(c) For that said averment is at most a mere conclusion
of the pleader.
[fol. 83] (d) For that said language is not sufficient to
charge this respondent with any wrongful act in the
premises.
(e) For that said language does not charge this respond
ent with a violation of any duty or the breach of any agree
ment with complainant.
(f) For that said language does not charge this respond
ent with any acts of conspiracy or any wrongful participa
tion in any act or agreement giving rise to a cause of action
in favor of the complainant.
Chas. H. Eyster, White E. Gibson, Solicitors for
respondent, Louisville and Nashville Railroad
Company.
6—1192
82
S t ip u l a t io n S e t t in g A sid e S u b m is s io n o n D e m u r r e r s a n d
G r a n t in g L e a v e to W it h d r a w A m e n d e d C o m p l a in t a n d
to S u b s t it u t e A n o t h e r A m e n d e d C o m p l a in t —Filed July
17, 1942
To the Honorable C. M. Creel, Chancellor:
The undersigned Solicitors of records for the complain
ant and respondents respectively in the above styled cause
hereby agree as follows:
1. That the submission heretofore made on demurrers to
the bill of complaint as amended be set aside.
2. That the Complainant be given leave to withdraw the
amended complaint heretofore filed, and be permitted to
substitute in the place thereof another amended complaint.
Arthur D. Shores, Solicitor for Complainant. Chas
H. Eyster & White E. Gibson, Solicitors for Re
spondent, L. & N. R. R. J. A. Simpson, Solicitor
for B. L. F. & E.
I n C i r c u i t C o u r t o f J e f f e r s o n C o u n t y
[fol. 84] In C ir c u it C o u r t o f J e f f e r s o n C o u n t y
D e c r e e S e t t in g A sid e S u b m is s io n — July 17, 1942
In this cause an agreement was filed by the Solicitors of
record for the parties thereto authorizing the Court to set
aside the submission heretofore made on demurrers to the
bill of complaint as amended, with leave to withdraw the
amended complaint heretofore filed and file a substitute
therefor, and the Court being of the opinion that the agree
ment should be confirmed, it is,
Ordered, Adjudged and Decreed by the Court that the
submission of the several demurrers to the bill of complaint
as amended, heretofore taken on the 15th day of June, 1942,
be and the same is hereby set aside and complainant is
hereby authorized to file a substitute bill in said cause in lieu
of the present bill as amended.
Done and Ordered this the 17th day of July, 1942.
E. M. Creel, Circuit Judge, In Equity Sitting.
83
S u b s t it u t e d A m e n d e d C o m p l a in t ( F il e d b y L e a v e of C o u r t
F ir s t H ad a n d O b t a in e d ) — Filed August 14, 1942
To the Honorable Judge or Judges of said Court:
1. Your Complainant, otherwise known as B. W. Steele,
or Will Steele, shows unto your Honor that he is a resident
of Jefferson County, Alabama, and over twenty-one years
of age; that respondent, Louisville & Nashville Railroad
Company (hereafter called the railroad) is a corporation
incorporated in the State of Kentucky but engaged in inter
state commerce by rail in the State of Alabama; that re
spondent Brotherhood of Locomotive Firemen & Engine-
men (hereafter called the Brotherhood) is an international
unincorporated labor union whose membership is prin
cipally derived from white locomotive firemen and engine-
men employed on interstate railroads, including the de
fendant railroad. It comprises a Grand Lodge, over 900
subordinate lodges and 89,000 members throughout this
country and Canada, including lodges, officers and members
resident in Jefferson County, Alabama. It has an inter
national treasury derived from dues paid by members when
they are working, and other revenue. By constitution,
practice and ritual its membership is restricted to white
men, all negro firemen being excluded solely because of race,
[fol. 85] Respondent W. H. Thomas is a resident of Jeffer
son County, Alabama, an engineer fireman employed on de
fendant railroad, a member of the Brotherhood, and Local
Chairman of Brotherhood Local Lodge No. 916, and by-law
of the Brotherhood and delegation of its power by the
Brotherhood as representative under the Railway Labor
Act of June 21,1934, 48 Stat. 1185, c. 691; 45 U. S. C. A. c. 8,
represents the entire craft or class of firemen employed by
the railroad on the South and North Alabama Division with
regard to adjustment of seniority rights and job assign
ments (See Arts. 25 and 26, Exhibit I below). Respondent
J. P. Adams is a resident of Montgomery County, Alabama,
an engineer-fireman employed on said railroad, a member
of the Brotherhood, and Local Chairman of Brotherhood
Local Lodge No. 864, and by by-law of the Brotherhood and
delegation of its power by the Brotherhood as representa
tive under, the Railway Labor Act, represents the entire
I n C i r c u i t C o u r t o f J e f f e r s o n C o u n t y
84
craft or class of firemen employed by the railroad on the
Montgomery and Mobile Division with regard to adjust
ment of seniority rights and jobs assignments, as above
stated. Despondent B. F. McGill is a resident of Mobile
County, Alabama, an engineer-fireman employed on said
railroad, a member of the Brotherhood and Local Chairman
of Brotherhood Local Lodge No. 689, and by by-law of the
Brotherhood and delegation of its power by the Brother
hood as representative under the Railway Labor Act, repre
sents the entire craft or class of firemen employed by the
railroad on the Mobile and New Orleans Division with re
gard to adjustment of seniority rights and job assignments,
as above stated.
2. Complainant is a negro fireman employed by the rail
road on its South and North Alabama Division. He brings
this suit (1) in his individual capacity for wrongs inflicted
on his individual rights, and (2) as representative of all the
negro firemen and helpers on other than steam power (here
after compendiously called firemen) employed by respond
ent railroad, particularly those employed on the four
seniority districts known respectively as the South and
North Alabama Division above, the Montgomery and Mo
bile Division above, the Mobile and New Orleans Division
above, and the Pensacola Division. Said negro firemen con
stitute over a hundred men resident in several states, a class
too large to be brought individually before this Court; but
there are common questions of law and fact affecting their
[fol. 86] several rights, common grievances growing out of
common wrongs, and common relief is sought for the entire
class as well as special relief for this complainant. The in
terests of the class are fairly and adequately represented
by complainant.
3. Respondent railroad is sued on its own right. Re
spondent Brotherhood is sued in its own right and as rep
resentative of all its individual members, specifically those
employed by respondent railroad and particularly those
employed on the four seniority districts above named. Re
spondents W. H. Thomas, J. P. Adams and B. F. McGill
are sued as members of the Brotherhood and as representa
tives of all the Brotherhood members, specifically those
employed by respondent railroad and particularly those
employed on the four seniority districts above named. The
85
Local Chairman of the Pensacola Division is a non-resident
of the State of Alabama. The Brotherhood-member fire
man on the four seniority districts above named constitute
several hundred men resident in several states, and the
Brotherhood-member firemen on the entire system of re
spondent railroad are even larger in number. They con
stitute a class too numerous to be brought individually be
fore this Court; but there are common questions of law and
fact affecting their several interests, and all their alleged
rights and claims in the premises are directly derived from
and wholly dependent upon the acts of the respondent,
Brotherhood as their representative under the Railway
Labor Act, and common relief is sought against them as a
class, as well as special relief against those individuals
wrongfully holding jobs which negro firemen are entitled
to under their contracts with the railroad and which they
would be holding except for the acts of the railroad and the
Brotherhood under color of the Agreement and Modifica
tion thereof hereinbelow set out as Exhibits III and IY.
The individual Brotherhood-member firemen wrongfully
holding said jobs are constantly changing due to promo
tions, transfers and other causes, but the interests of the
Brotherhood-member firemen employed on respondent rail
road in the premises are fairly and adequately represented
by the Brotherhood itself without more, as well as by the
individual respondents.
[fol. 87] 4. Complainant is 55 years of age, in perfect
health, with no physical defects or infirmities affecting his
capacity as a fireman. He has been employed by the re
spondent railroad as a locomotive fireman since February
4, 1910, and has worked as such on the South and North
Alabama Division since March 5, 1910, with seniority rights
(Exhibit I below) from the latter date. He worked as a
fireman in road passenger service on said Division from
December 28, 1921, to April 8, 1941, when he was displaced
by the wrongs of the railroad and the Brotherhood as set
out below. In all respects he has at all times performed
his duties as a locomotive fireman loyally and efficiently
to the best interest and complete satisfaction of the rail
road. He has not had a demerit, complaint or been sub
ject to disciplinary action within the past sixteen years. At
all times when he was wrongfully displaced he tendered
himself to both the railroad and the Brotherhood as ready,
8 6
able and willing—and was in fact ready, able and willing—
to serve on the jobs he was entitled to under his contract
with the railroad.
5. Complainant was originally employed by the railroad
and is still working for it under an individual contract of
hiring between himself and the railroad. His contract has
been modified from time to time by mutual agreement be
tween plaintiff and the railroad, and presently embodies
the terms of the collective bargaining 11 Agreement between
the Louisville <& Nashville Railroad and Its Locomotive
Firemen and Hostlers” issued March 1, 1929, and incor
porated in full herewith as Exhibit I attached hereto (and
previously referred to herein).
6. The other negro firemen employed by the railroad are
working under their respective individual contracts of hir
ing between them and the railroad. Their present con
tracts embody the terms of Exhibit I.
7. The negro firemen constitute a minority of the total
number of firemen employed by respondent railroad, but
constitute a majority of the firemen employed on each of
the four seniority districts listed above. The Brotherhood-
member firemen constitute the majority of the total number
of firemen employed on the entire system of respondent
railroad, but constitute the minority of the firemen on the
said four seniority districts. The negro firemen and the
[fol. 88] Brotherhood-member firemen together comprise
the entire craft or class of firemen employed on respondent
railroad.
8. By virtue of the fact they constitute the majority of
the firemen on the entire system, the Brotherhood-member
firemen ever since the passage of said Railway Labor Act
have chosen the Brotherhood as the representative under
said Act of the entire craft or class of firemen employed
by respondent railroad. Complainant does not know, and
because the proceedings of the Brotherhood are secret,
cannot ascertain or state the method of selection, but avers
that the Brotherhood with the knowledge of its said members
has claimed the exclusive right to act and has acted as the
exclusive bargaining* agent and grievance representative of
the entire craft or class aforesaid, and further avers that
said Brotherhood members have individually and collec
tively claimed the benefits of all actions by the Brotherhood
as representative under the Railway Labor Act of the entire
craft or class of firemen in the premises.
9. Neither complainant nor any of the other negro fire
men has ever been given an opportunity to nominate or
participate in the choosing of a representative of the entire
craft or class under the Railway Labor Act; but by virtue
of their minority position they have been compelled to
accept the Brotherhood as choice of the majority for their
statutory representative under the Railway Labor Act for
the purposes of the Act. They did so accept the Brother
hood as the representative under the Railway Labor Act
of the entire craft or class of firemen, including themselves,
and assuming that the Brotherhood would exercise its
* powers under the Railway Labor Act without fraud or
discrimination against them they relied on it for protection
of their rights in collective bargaining and handling of
grievances with respondent railroad.
10. Negroes are not employed on railroads as locomotive
firemen except in the South. The bulk of such employment
is on the railroads listed in Exhibits II and III below. On
each individual railroad so listed the negro firemen con
stitute the minority of the craft or class on the entire sys
tem, although they constitute the majority on certain
seniority districts. On each individual railroad so listed
the Brotherhood-member firemen constitute the majority of
the craft or class on the entire system, although they con
stitute the minority on certain seniority districts. On each
said railroad the Brotherhood-member firemen ever since
[fol. 89] the passage of the Railway Labor Act aforesaid
have chosen the Brotherhood as the representative under
the Act of the entire craft or class, but for reasons stated
above complainant can not state the method used.
11. By accepting the designation as representative of the
entire craft or class of firemen employed by respondent
railroad under the Railway Labor Act, and by asserting the
exclusive right under the Railway Labor Act to represent
said craft or class in collective bargaining and handling of
grievances, the Brotherhood placed itself in a confidential
relation with each fireman and undertook a fiduciary duty
to represent him impartially, in good faith; to give him rea
sonable notice, opportunity to be heard and a chance to vote
on any action proposed by it. as his statutory representa-
87
tive adverse to his interest: to make prompt and full dis
closure of all actions taken by it affecting Ms interests in
any way; not to discriminate against a non-member in favor
of itself and its members: and generally to conform to and
respect the rules of law and standards of conduct governing
the relations of principal and agent, as the statutory repre
sentative of the entire craft or class of firemen under the
Railway Labor Act. Nevertheless in violation of its duty
the Brotherhood has persistently been and is now hostile
and disloyal to complainant and the minority non-member
negro firemen, has persistently sought and still seeks to
destroy their dested seniority rights and to drive them out
of employment of the railroad in order to create a monopoly
of employment, or failing that the most favored conditions
of employment regardless of seniority, competence or worth,
for its own members. It has always refused and still re
fuses to notify complainant or the other negro firemen of
proposed actions adversely affecting their interests, to give
them a chance to be heard or vote on the same; has always
refused and still refuses to report to them its actions as their
statutory representative under the Railway Labor Act or
to handle their just grievances wherever there is a con
flict of interest between them and Brotherhood members,
has persistently refused and still refuses to give them fair,
honest and faithful representation under the Railway Labor
Act.
[fol. 90] 12. On or about March 28, 1940, in fraud of the
rights of complainant and the other negro fireman employed
by the railroads listed in Exhibits II and III below, and
without notice or opportunity to be heard or to vote on the
matter being given them, the Brotherhood (by and thru its
General Chairman on each said railroad, including respond
ent railroad, thereunto duly and expressly authorized and
acting within the line and scope of his employment) pur
porting to act under the Railway Labor Act on behalf of the
entire craft or class of firemen, did serve on each said rail
road a Notice to amend existing collective bargaining agree
ments covering the standard provisions in the individual
hiring contracts of the individual firemen on each railroad,
aimed at driving the negro firemen completely out of the
service of said railroads to the profit of itself and its own
members, regardless of seniority, competence or worth. A
89
copy of said Notice is hereto attached as Exhibit II and in
corporated in full herewith.
13. According to existing railroad practice in the United
States locomotive engineers are obtained by promotion of
selected white locomotive firemen. By traditional and
universal railroad practice in the United States negro fire
men arbitrarily are never promoted to engineers, regard
less of knowledge, experience, competence and worth. To
distinguish the white firemen as a class from the negro
firemen as a class, the white firemen are known under
standard railroad practice as “ promotable men” , while the
negro firemen are known as “ non-promotable men” ; and
the phrases “ promotable men” and “ promotable firemen
or helpers” used in said Notice (Exhibit II above) mean
white firemen and helpers in contrast to negro firemen
and helpers.
14. At all times the general officers of respondent rail
road, specifically—the Director of Personnel and his staff
who by by-law and usage of the railroad have charge of
all conditions of work among employees, have known that
the Brotherhood hag always been hostile to Complainant
and the minority negro firemen, that it has persistently
sought to destroy their vested seniority rights and drive
them out of service in order to create a monopoly of em
ployment, or failing that the most favored conditions of
employment regardless of seniority, competence or worth
for its own members; and said officials well knew that the
Notice (Exhibit II above) served was in execution of the
fraudulent disloyal purposes of the Brotherhood aforesaid.
[fol. 91] 15. By virtue of the contracts which it had
entered into with complainant and the other negro fire
men the railroad was under a duty to them to give prefer
ence of runs to the oldest fireman in road service when
competent and worthy. Yet well knowing the hostility and
motives of the Brotherhood toward complainant and the
other negro firemen, that the objects aimed at in said
Notice were opposed to preferences based on seniority,
competence and worth; that the purpose of the Notice
was to cause the railroad to breach its contracts with the
negro firemen, and to curtail their seniority rights and
destroy their employment in order to create a monopoly
of employment for the Brotherhood-member firemen, the
90
railroad did violate its duty to plaintiff and the other
negro firemen to give preference of runs to the oldest fire
man in road service when competent and worthy, and did
enter into an Agreement dated February 18, 1941, effective
February 22, 1941 (the text of which, with signatures of
defendant railroad’s general offices omitted, is attached
hereto as Exhibit III and incorporated in full herewith),
discriminating against the complainant and other negro
firemen in favor of the Brotherhood-member firemen who
constituted the entire class of men designated in said Agree
ment as the “ promotable firemen and helpers ’ In negotiat
ing and executing said Agreement the respective officers of
the Brotherhood and the railroad severally and collectively
acted within the line and scope of their employment as
such.
16. Thereafter on May 12, 1941, the railroad by and thru
its Director of Personnel then and there acting within the
line and scope of his employment, and the Brotherhood by
and thru its General Chairman on the respondent railroad
then and there acting within the line and scope of his em
ployment, made a modification of said Agreement (Exhibit
III above) further curtailing complainant’s and the other
negro firemen’s seniority rights and restricting their em
ployment, to the unfair advantage of the Brotherhood mem
ber-firemen, the “ promotable firemen and helpers.” A
copy of said modification is hereto attached as Exhibit
IV and incorporated in full herewith. In negotiating and
executing said modification (Exhibit IY) the Brotherhood
purported to act as the representative under the Bailway
Labor Act of the entire craft or class of firemen on re
spondent railroad, without notice, opportunity to be heard
or a chance to vote on the same.
[fol. 92] 17. The Brotherhood never reported to complain
ant or any other negro firemen that it had negotiated and
executed either the Agreement (Exhibit III) or modifica
tion (Exhibit IV), but complainant and the negro firemen
were forced to obtain their knowledge of the same from
other sources.
18. In negotiating and executing said Agreement and
modification the railroad, acting by and thru its general
officers who were then and there acting within the line and
scope of their employment, did conspire and confederate
91
with the Brotherhood to curtail the seniority rights and
job assignments of complainant and the negro firemen in
breach of existing contracts with the negro firemen, to the
fraudulent advantage of the Brotherhood-member firemen.
In further execution of said conspiracy the railroad and the
Brotherhood did put said Agreement and modification into
effect as the controlling operative policy on the entire rail
road system, particularly the four seniority districts above
named, without any notice to complainant or the other negro
firemen, or without giving them a hearing or opportunity to
protest the same.
19. As the controlling operative policy on respondent
railroad system practically every time a vacancy occurred
on the four seniority divisions or a new run or job was
created on the same, the Brotherhood and the railroad in
further execution of said conspiracy arbitrarily disqualified
complainant and the other negro firemen regardless of
seniority, competence and worth, and assigned said vacan
cies and new jobs and runs to Brotherhood-member fire
men junior in seniority to the negro firemen, without regard
to competence or worth under color of said Agreement and
modification. As a result of said wrongful acts the employ
ment of negro firemen on said four seniority districts was
severely curtailed to the corresponding wrongful increase
in the employment of Brotherhood-member firemen; the
Brotherhood itself was unjustly enriched by virtue of in
creased dues paid by Brotherhood-member firemen as a
result of their increased employment (Brotherhood-member
firemen do not pay dues when furloughed).
[fol. 93] 20. Prior to the passage of the Railway Labor
Act aforesaid and down to April 8,1941, complainant by vir
tue of his seniority, competence and worth was a fireman
in road passenger service assigned to the South-End Pas
senger Pool, running between Birmingham and Montgom
ery, rotating first-in first-out, handling certain specified
regular passenger trains. Assignments to the South-End
Passenger Pool constitutes one of the most favored jobs
in rates of pay and working conditions available to fire
men in the South and North Alabama Division. Complain
ant’s monthly earnings, after deduction of $7.65 insurance,
$2.60 hospital fund and $3.00 per $100.00 earned for re
tirement, averaged while in the Pool about $225.00. His
92
longest run did not exceed SV2 hours; he did not have to
clean fires, received his engine at the passenger station
starting the trip and was relieved at the passenger station
on the end of the trip.
21. On or about April 1, 1941, the jobs in said South-End
Passenger Pool were bulletined for bidding-in because the
number of firemen in the Pool had to be reduced after April
7, 1941, due to reduction in mileage. On April 1, 1941, the
firemen in the Pool with respective seniority dates were as
follows :
Bester William Steele, colored................March 5, 1910
Henry Russell, colored ........................... June 25, 1917
M. E. Bowen, white ............................... August 20, 1917
Arthur Willingham, colored.............November 13, 1919
John Harris, colored...............................March 23, 1920
John Wooley (swing man) colored . December 17, 1922
The negro firemen were rendering satisfactory service
in the Pool, no complaints had been made against them and
they were competent, worthy and entitled to remain in the
Pool by virtue of their seniority, competence and worth
(subject to the rights of M. E. Bowen who was senior to
Willingham, Harris and Wolley). Yet the railroad and
the Brotherhood in further execution of said conspiracy
did arbitrarily disqualify all the negro firemen from bid
ding in any Pool job under color of said Agreement and
modification, and did assign the Pool jobs to Brotherhood-
member firemen whose seniority dates were as follows:
[fol. 94]
M. E. Bowen, Brotherhood-member. . . .August 20, 1917
B. W. Morgan, Brotherhood-member . . . April 4, 1925
C. B. Nance, Brotherhood-member , . . February 25, 1940
Raymond B. Matthews, Brotherhood-member
March 8, 1940
Said Brotherhood-member firemen were not more com
petent or worthy than complainant or the other negro fire
men, but were given the Pool jobs solely by force of said
Agreement and modification because they were Brother
hood members, belonging to the class designated in the
Notice, Agreement and modification aforesaid as “ promot-
able firemen and helpers” in contrast to the negro firemen,
the “ non-promotables.”
93
22. As a result of being' illegally and fraudulently barred
from bidding-in a Pool job as he was entitled to and to
held by virtue of his seniority, competence and worth, com
plainant was thrown completely out of work from April
8, 1941 to April 24, 1941. On April 25, 1941, he obtained
a job firing an engine on a local freight run which meant
an average of twelve hours on a run, going 5 miles /rather
to get his engine and to be relieved, harder work on the
engine to keep up steam because freight engines burn an
inferior grade of coal compared to that burned in passen
ger service, and more arduous labor throughout the run;
further his health was impaired because of the longer
hours without hot food and by increased constipation be
cause he was deprived of comfort facilities for longer
periods; and his average earnings were reduced about,
$75.00 per month. Further his rights under the Railway
Pension Act of June 24, 1937, 50 Stat. 310, c. 382, 45
U. S. C. A. c. 9, were impaired, and his potential retirement
annuity diminished by his loss of earnings aforesaid.
23. Thereafter on or about December 22, 1941, the rail
road and the Brotherhood in further execution of said con
spiracy under color of said agreement and modification did
arbitrarily and wrongfully displace complainant on said
local freight run by a Brotherhood-member fireman junior
in seniority to him, although no complaint had been made
about his work and he was in every respect as competent
and worthy as the Brotherhood member who displaced him,
and was in fact wholly competent and worthy to hold said
local freight run and was holding it to the satisfaction of
the railroad. As a result complainant had to take a job
of firing a switch engine by hand, which was even more
[fol. 95] arduous than the local freight service above. He
was forced to serve longer hours, work more days per
month, yet received less money than either on the local
freight run or in the Pool service. By virtue of said con
spiracy the railroad and the Brotherhood wrongfully kept
complainant on the switch engine until January 3, 1942,
when he was reassigned to the South-end Passenger Pool.
Complainant avers that by seniority, competence and worth
he was entitled to have remained in the Pool at all times and
never to have been removed therefrom.
23. Complainant and the negro firemen have exhausted
their remedies within the structure of the railroad and the
94
Brotherhood. They protested as soon as they discovered
said Agreement and modification both to the railroad and
the Brotherhood, to no avail. They appealed their protests
to the highest operating officer of the railroad with juris
diction in the premises and to the general officers of the
Brotherhood, including its General Chairman on respondent
railroad; yet all the railroad officers and all the Brotherhood
officers acting within the line and scope of their several
employments have reaffirmed on behalf of the railroad
and the Brotherhood both the Agreement and modification,
and expressed their intentions to enforce same now and in
the future; and unless restrained by this Court the seniority
rights and job assignments of complainant and the negro
firemen will be continuously threatened and curtailed by
defendants railroad and Brotherhood acting in conspiracy
under color of said Agreement and modification, and they
will be deprived of fair, honest and impartial representation
by the Brotherhood as the representative of the entire
craft or class of firemen under said Railway Labor Act.
24. Complainant and the other negro firemen to ascertain
part of their damages must know the names, time worked
and amounts earned by every Brotherhood-member fireman
junior in seniority to them, on every job on respondent rail
road from which negro firemen were displaced by the rail
road and the Brotherhood under color of the aforesaid
Agreement and modification. Neither complainant nor any
of the negro firemen has this information, nor does he have
any source from which to obtain same except thru the
railroad and the Brotherhood. Both the railroad and the
Brotherhood have this information readily available, same
is material to the issues in this suit, and complainant is
[fol. 96] entitled to have same discovered and made known
by them.
25. Complainant and the other negro firemen to establish
the conspiracy and the discriminations against them by the
railroad and the Brotherhood must know how the Brother
hood arrived at its decision to serve the Notice (Exhibit II
above), all contacts it had with the railroad concerning the
same, all steps in the negotiations leading up to the Agree
ment (Exhibit III) and modification (Exhibit IV), and all
proposals by either to the other in enforcement of said
Agreement and modification, and action taken on said
95
proposals. Further they must know all proposals by either
the railroad or the Brotherhood to the other, and all actions
taken on said proposals (wherever the proposal and action
have not already been communicated to complainant and
the negro firemen) aimed at or like- to result in curtailing
their seniority rights or restricting their employment in any
way in favor of the Brotherhood-member firemen. Neither
complainant nor any other negro fireman has any of this
information, nor does he have any source from which to ob
tain same except thru the railroad and the Brotherhood.
Both the railroad and the Brotherhood have all this in
formation readily available; same is material, even indis
pensable, to the issues in this suit, and complainant is
entitled to have same discovered and made known by them.
As to the Brotherhood complainant avers that by virtue of
the confidential relationship between the individual negro
firemen and the Brotherhood, and the fiduciary duty which
the Brotherhood owes each of them as representative of the
entire craft or class of firemen under the Railway Labor
Act, the Brotherhood is under the affirmative duty of mak
ing the discovery called for.
26. An actual claim or controversy exists between com
plainant and the negro firemen as a class on one side, and
the railroad, the Brotherhood and the Brotherhood-member
firemen on the other as to the duties of the Brotherhood
toward the negro firemen as representative of the entire
craft or class of firemen under the Railway Labor Act;
and as to the lawful force and effect, if any, of the Agree
ment and modification aforesaid. The interests on each
side are adverse, and unless this Court wfill declare the
rights, duties, interests and legal relations of the parties,
numerous vexatious disputes will arise between the parties,
and the complainant and the negro firemen will suffer
irreparable injury to their seniority rights, and their
[fol. 97] retirement rights under the Railroad Retirement
Act.
27. The Railway Labor Act, particularly Section 2-Fourth
(45 U. S. C. A. Sec. 152-Fourth), so far as it attempts to
confer on the majority of a craft or class of railway em
ployees the power to choose the representative for the en
tire craft or class, and to confer on said representative
unbridled and absolute power to destroy minority property
96
rights in favor of the majority, is void as violating the due
process clause of the Fifth Amendment to the Constitution
of the United States.
Wherefore, Premises Considered: Your Complainant
prays that W. H. Thomas, 4301 Pulaski Street, Inglenook,
Birmingham, Alabama; J. P. Adams, 1034 Forest Avenue,
Montgomery, Alabama; and B. F. McGill, 261 Rapier
Avenue, Mobile, Alabama, respondents, be made parties to
these proceedings by proper process; that they be required
to plead, answer or demur thereto within the time pre
scribed by law, and that the other respondents being already
before this Court by process lawfully served upon them, be
required to plead, answer or demur thereto within the time
prescribed by law; and further prays that:
1. He be granted a permanent injunction against each
respondent and the persons they severally represent en
joining them and each of them from enforcing, making any
claims under, or otherwise recognizing said Agreement and
modification thereof.
2. Discovery by the railroad and the Brotherhood of
the names, time worked and amounts earned by every
Brotherhood member fireman junior in seniority to any
negro fireman displaced by such Brotherhood-member fire
man under color of said agreement and modification.
3. Discovery by the railroad and the Brotherhood, as
they may respectively have the information available, of
the process by which the Brotherhood arrived at its decision
to serve the Notice (Exhibit II), all contacts between the
railroad and the Brotherhood concerning the same, all steps
in the negotiations leading up to the Agreement (Exhibit
III) and modification (Exhibit IV), and all proposals by
either to the other in enforcement of said Agreement and
modification, and action taken on said proposals ; and further
all proposals by either railroad or Brotherhood to the other,
and all actions taken on said proposals (wherever the pro
posal and action have not already been communicated to
complainant and the negro firemen) aimed at or like to
result in curtailing their seniority rights or restricting their
[fol. 98] employment in any way in favor of the Brother
hood-member firemen.
4. A permanent injunction against respondent Brother
hood, its officers, subordinate lodges, members, agents, or
97
attorneys, and the individual defendants perpetually en
joining them and each of them from purporting to act as
representative of complainant or the other negro firemen
on respondent railroad, under the Railroad Labor Act, so
long as it or any of them refuses to give them notice, and
an opportunity to be heard and to vote on proposals ad
versely affecting their interests, to make prompt and full
disclosure of all actions taken by it or any of them affecting
their interests in any way, and so long as it discriminated
against any of them in favor of itself or any Brotherhood-
member fireman.
5. A decree binding all parties and their privies and
those represented herein, settling and declaring the respec
tive rights, status, and other legal relations of the parties in,
to and by reason of the matters here in controversy.
6. Damages against the Brotherhood for injuries sus
tained by plaintiff as a proximate consequence of the
wrongful actions of the Brotherhood in breach of its con
fidential relation with and fiduciary duties toward plain
tiff, in the sum of Fifty Thousand ($50,000.00) Dollars.
7. Damages against the Brotherhood for injuries sus
tained by the individual negro firemen as a proximate con
sequence of the wrongful actions of the Brotherhood in
breach of its confidential relation with and fiduciary duties
toward the said individual negro firemen, so far as said
individual firemen may appear before this Court, submit
to the jurisdiction thereof, and establish their damages in
the premises by legal evidence.
8. General Relief.
Arthur D* Shores, 1630 4th Ave., N. Birmingham;
J. T. Settle, 145 Beale Avenue, Memphis, Tenn.;
Charles H. Houston, 615 F St. N. W. Wash., D. C.;
J. C. Waddy, 615 F St., N. W. Wash., D. C. At
torneys for complainant.
[fol. 99] Duly sworn to by Bester William Steele. Jurat
omitted in printing.
7—1192
98
[fols. 100-101] C e r t if ic a t e o f S e r v ic e
I, Arthur D. Shores, do hereby certify that prior to filing
this Substituted Amended Complaint I served a copy on
Lange, Simpson, Brantley & Robinson, Esquires, Attorneys
for the respondent Brotherhood, Nelson Building, Bir
mingham, Alabama, and on Gibson & Gibson, Esquires,
White Gibson, Esquire, Chas. H. Eyster, Esquire, Attor
neys for the respondent railroad, Comer Building, Birming
ham, Alabama.
Arthur D. Shores.
August 14, 1942.
N o te be E x h i b i t I to S u b s t it u t e d A m e n d e d C o m p l a in t
Exhibit One is a book entitled “ Agreement between the
Louisville and Nashville Railroad and its Locomotive Fire
men and Hostlers, etc.”
This book contains eighty-five pages, setting out in detail
the rules, regulations, Mediation agreement, Arbitration
Award, Supplementary agreement, rates and tables; the
Original Exhibit will be sent to the Supreme Court for its
inspection, along with the Court record.
E x h i b i t II to S u b s t it u t e d A m e n d e d C o m p l a in t —Omitted.
Printed side page 61 ante
, »
[fols. 102-112] E x h i b i t III to S u b s t it u t e d A m e n d e d C o m
p l a in t — Omitted. Printed side page 13 ante
E x h i b i t IV to S u b s t it u t e d A m e n d e d C o m p l a in t O mitted.
Printed side page 16 ante
[fol. 113] In C ir c u it C o u r t o f J e f f e r s o n C o u n t y
D e m u r r e r of L. & N. R. R. Co. to C o m p l a in t — Filed August
26, 1942
Comes defendant in above cause and by leave of Court re
files all demurrers heretofore filed to complainant’s com
plaint as separate and several grounds of demurrer to com
plainant’s complaint as last amended.
Chas. H. Eyster, and White E. Gibson, Solicitors for
L.&N. R. R. Co.
99
[fo l. 114] I n C ircuit C ourt of J efferson County
D emurrer of B rotherhood to th e S ubstituted A mended
B ill—Filed September 16, 1942
I
Comes tlie Brotherhood of Locomotive Firemen and En-
ginemen, one of the respondents in the above cause, and
demurs to the substituted amended bill of complaint in this
cause presented against it as a whole, and as grounds of
said demurrer, sets down and assigns the following, sepa
rately and severally:
1. For that it does not appear therefrom that the indi
viduals who negotiated the alleged contracts attached as
exhibits to said substituted amended bill of complaint were
agents, servants or employees of the members of this asso
ciation generally, and were acting in the line and scope of
their employment as such.
2. For that it does not appear therefrom with sufficient
certainty that the individuals who negotiated and executed
the alleged contracts were, at the time, acting within the line
and scope of their authority as agents, servants, or em
ployees of this association.
3. For that it does not appear therefrom with sufficient
certainty that the individuals who negotiated and executed
said contracts were, at the time, acting as agents, servants
or employees of the members of this association within the
line and scope of their authority as such.
4. For that there does not appear therefrom any reason
why this association or the members thereof should be held
accountable for the actions of the statutory representatives
under the Railway Labor Act.
5. For that the allegation that complainant’s contract
embodied the standard provisions of the Firemen’s and
Hostlers’ Schedule issued March 1, 1929, is a conclusion of
the pleader.
6. For that the allegation that the complainant’s em
ployment status is a vested property right is a conclusion of
the pleader.
7. For that the allegation that the white members of the
Brotherhood have designated said Brotherhood as the ex
100
elusive bargaining agent and grievance representative for
the entire craft or class of firemen on defendant railroad
is a conclusion of the pleader.
[fol. 115] 8. For that the averments thereof are scf vague,
indefinite and uncertain that this respondent is not suffici
ently apprised as to what actions on its part are complained
of by the various parties complainant.
9. For that it does not appear with sufficient certainty
who was the designated bargaining agent for the entire
craft or class under the Railway Labor Act.
10. For that it does not appear that this association has
ever been certified as the exclusive bargaining agent under
the Railway Labor Act.
11. There is no equity in the amended bill.
12. It affirmatively appears therefrom that this action is
not maintainable against the members of this association
generally.
13. For that it does not appear therefrom that this cause
of action is a cause of action for or upon which the com
plainant therein may maintain such an action against the
members of this organization or association.
14. For that it affirmatively appears therefrom that this
is not a cause of action for or upon which the complainant
therein may maintain such an action against the members
of this organization or association.
15. For that the substituted amended bill of complaint
does not allege that the persons whose names appear -on
Exhibits 1 and 2 of the original bill of complaint as signing
on behalf of the Brotherhood of Locomotive Firemen and
Enginemen and Brotherhood of Locomotive Firemen and
Enginemen Committee were authorized by the members of
this association to execute the said document or that the
execution of said document was ratified by the members
of this association.
16. For that it affirmatively appears therefrom that the
execution of the document constituting Exhibits 1 and 2 of
said substituted amended bill of complaint were neither
authorized nor ratified by the members of this association.
101
17. For that it does not appear therefrom that the docu
ments constituting Exhibits 1 and 2 of the said substituted
amended bill of complaint were executed for or on behalf of
the members of this association.
[fol. 116] 18. For that it affirmatively appears therefrom
that the documents constituting Exhibits 1 and 2 of said
substituted amended bill of complaint were not executed
for or on behalf of the members of this association.
19. For that the allegation that complainant is employed
by the defendant, Louisville & Nashville Bailroad Company,
on the 8. & N. A. Division, with seniority rights as a firemen
is a conclusion of the pleader.
20. For that the averments of the substituted amended
bill are not definite and certain enough to apprise this re
spondent what it is called upon to defend.
21. For that there are no facts alleged which show that
complainant was entitled to seniority rights, nor is there any
averment as to what seniority rights plaintiff was entitled.
22. For that it does not appear therefrom by what right
plaintiff brings suit as a class suit on behalf of the other
negro locomotive firemen on the defendant’s railroad.
23. For that it affirmatively appears therefrom that the
complainant has no right to maintain this substituted
amended bill on behalf of the other negro firemen.
24. For that it appears therefrom that the measure and
extent of complainant’s damages as well as the class of
complainant’s damages is materially different from that of
others constituting the class which he seeks to represent.
25. For that it does not appear therefrom that the com
plainant has the consent or authority of the class which he
seeks to represent.
26. For that it does not appear therefrom that the other
members of the class which complainant seeks to represent
have seniority rights or that their rights have been affected
in any way by the action complained of.
27. For that the said substituted amended bill of com
plaint shows that said complainant is asking the benefits
of the alleged contracts between the railroad and the loco
motive firemen and hostler’s schedules issued on March
102
1, 1929, and is unwilling to abide by the terms, provisions
and conditions of the said alleged schedule or contract.
[fol. 117] 28. For that it does not appear therefrom that
complainant, or any of the class which he seeks to represent,
have substained any injuries or damages as a result of the
action complained of.
29. For that there are not alleged therein any facts which
make the alleged contract constituting Exhibits 1 and 2 of
said substituted amended bill of complaint illegal, uncon
scionable or unfair.
30. For that it affirmatively appears therefrom that both
parties respondent were free contracting agencies and had
right to make and enter into the contracts set out as Ex
hibits to the substituted amended bill.
31. For that the relief prayed for in the substituted
amended bill would be an undue interference with the rights
of the parties respondent to contract as they have a right to
do.
32. For that there is a misjoinder of parties complainant
in that complainant seeks to combine a personal claim for
damages with a claim of the negro firemen of the class for
equitable relief.
33. For that the interest and injuries of the negro firemen
do not sufficiently appear to enable the Court to adjudicate
their rights in the premises.
34. For that an action for damages cannot be brought on
behalf of a class.
35. For that the decree prayed for by complainant on
behalf of the class which he seeks to represent would be
unenforceable.
36. For that no reason is alleged why this association can
not execute any contract if so desired for the benefit of its
members.
37. For that said substituted amended bill fails to allege
or to set out in substance or in haec verba the alleged sched
ule issued March 1, 1929, and Article 26 of said Schedule.
38. For that said substituted amended bill of complaint
shows that complainant is seeking to obtain the benefits
103
of an alleged contract between the defendant company and
tills association as thongb he were a member of the said
brotherhood or association, without the averment that he
is a member of said brotherhood or association.
[fol. 118] 39. For that said substituted amended bill fails
to allege what the alleged conspiracy was between the
said railroad and this respondent.
40. For that said substituted amended bill does not allege
facts sustaining the averment of conspiracy between the
railroad and this respondent.
41. For that the allegation of the conspiracy between the
railroad and this respondent is a conclusion of the pleader.
42. For that a corporation is incapable of entering into a
conspiracy.
43. For that a voluntary association is incapable of en
tering into conspiracy.
44. For that it is not alleged that any of the members of
this association entered into a conspiracy or that they
authorized, ratified or condoned a conspiracy.
45. For aught that appears therefrom, the members of
this association had no knowledge and were not parties in
any way to the said contracts.
46. For that it is not alleged that the persons whose names
appear on the said contract or any of them were agents,
servants or employees of the members of this association,
acting within the line, scope and course of their employ
ment as such.
47. For that the allegations that this association was act
ing as exclusive bargaining agent under the Railway Labor
Act of June 21, 1934, is a conclusion of the pleader and no
facts are alleged to support the said conclusion.
48. For that the complainant has an adequate remedy
at law.
49. For that the said substituted amended bill of com
plaint shows on its face that if the complainant has suffered
wrong, he has an adequate remedy at law against the re
spondent railroad company by way of damages for breach of
contract.
104
50. For that there are no facts alleged showing that plain
tiff will suffer irreparable injury by the wrongs complained
of.
[fol. 119] 51. For that the said substituted amended bill
of complaint fails to allege any wrong doing by this asso
ciation.
52. For that the said substituted amended bill of com
plaint fails to allege any wrong doing by the members
of this association or any of them.
53. For that no facts are alleged which show that this as
sociation or any of the members of this association were
under any duty to represent the complainant or any of them.
54. For that no facts are alleged to show any duty on any
of the members of this association or any breach of any duty
by the members of this association.
55. For that it does not appear therefrom that the said
agreements or contracts are in any way binding upon any
of the complainants or respondents or either of them.
56. For that the remedy of complainants, if the defend
ant railroad has breached its contract or contracts with
them, is at law by way of damages for breach of contract,
and for aught appearing from the said substituted amended
bill of complaint, said remedy would be entirely adequate.
57. For that no facts are alleged showing any right
which equity will protect by injunction.
58. For that it is not alleged therein that the complainant,
as a class, was discriminated against by the said contract
and it affirmatively appears therein that the classification
made by said contract is reasonable.
59. For that the said substituted amended bill fails to
allege that the alleged contract between the railroad and
this association dated February 18, 1941, is illegal or un
lawful in any respect.
60. It affirmatively appears therefrom that the said con
tract complained of by complainants was a contract which
this respondent had a perfect right to negotiate, make,
execute and put into effect.
61. For that it affirmatively appears therefrom that com
plainant’s remedy, if any, is by and through the adminis
105
trative agencies set up by the said Railway Labor Act,
and that the remedies therein prescribed are adequate.
[fol. 120] 62. For that it appears affirmatively therefrom
that if complainants have any cause of action it is against
the individuals who participated in the alleged wrong and
not against the members of this association.
63. For that it affirmatively appears therefrom that there
is no authority or warrant of law for the maintenance of
this action against and in the name of this unincorporated
organization or association.
64. For that the complainants ask equitable relief without
submitting themselves to the jurisdiction of this Court and
are not amenable to this Court and not amenable to the
process of this Court.
65. For that the record shows that this Court has no juris
diction of the members of this association and has no power
to render a decree affecting their individual rights.
66. For that it affirmatively appears that this Court has
no jurisdiction to render a money decree against any of the
members of this association or as against this association as
such.
67. For that it affirmatively appears that the decree of this
Court would be unenforceable as against, the individual
members of this association.
68. For that it affirmatively appears that this Court has
no jurisdiction over the non-resident members of this asso
ciation and can not interfere with their freedom of contract.
69. For that this Court judicially knows that the members
of this association are not liable for the tortuous acts of
officers or agents of the association done without the au
thorization, approval or ratification of the said members.
70. For this Court judicially knows that the officers of
this association have no power to bind the individual mem
bers of the said association in any way.
71. For that this association is not a proper party re
spondent to this substituted amended bill of complaint.
72. For that this association is not a legal entity.
106
[fol. 121] 73. For that no affirmative relief can be granted
against this unincorporated association on this cause of
action.
74. For that the said substituted amended bill of com
plaint is multifarious in that it seeks to combine in the
one substituted amended bill of complaint a great number
of separate and individual causes of actions by various
parties complainants, each standing on separate facts and
circumstances and each demanding its own individual and
separate class and degree of relief.
75. For that it affirmatively appears therefrom that
the rights of the various parties complainants vary widely
in the class and type of relief sought as well as the degree
of the relief to which they are entitled and therefore, the
said substituted amended bill of complaint is multifarious.
76. For that it is now shown thereby that the complain
ants or any of them will suffer irreparable injury by the
putting into effect of the alleged contract.
77. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the sub
stituted amended bill of complaint and whose rights will
be injuriously and adversely affected by the decree sought,
and who are indispensable parties to this substituted
amended bill of complaint.
78. For that it appears that the white firemen who will
be displaced by the relief sought are indispensable parties
to this procedure.
79. For that it affirmatively appears therefrom that the
questions presented are moot.
80. For that it affirmatively appears therefrom that the
complainant has been restored to “ the pool.”
81. For that the allegations that all the white firemen
who have been in “ the pool” at any time material herein or
who are now in “ the pool,” or who may be eligible for
“ the pool,” are fully and fairly represented by said Broth
erhood in this proceeding, is a conclusion of the pleader.
82. For that the allegation that said notice, agreement
and modification have been approved by all the white fire
men on the defendant railroad is not sufficient to charge that
said firemen actually participated in the wrongful acts
' charged or ratified same.
[fol. 122] 83. For that the approval by any of the white
firemen of the acts complained of is not sufficient to impose
upon them legal liability.
84. For that it affirmatively appears from the substituted
amended bill of complaint, as last amended, and the ex
hibits thereto that the rates, rules and working conditions
as provided by the Locomotive Firemen and Hostlers’
schedule was subject to thirty days written notice by either
party.
85. For that it does not appear that the complainant’s
respective contracts of employment have, been breached;
but it affirmatively appears that the defendant railroad
company was within its legal rights in modifying the com
plainant’s respective contracts.
II
And this respondent demurs to that aspect of said sub
stituted amended bill of complaint which prays a perpetual
injunction and for grounds of said demurrer sets down and
assigns the following:
1. There is no equity in the said aspect of the substituted
amended bill of complaint.
2. It affirmatively appears that complainants have an
adequate remedy at law.
3. For that the rights which complainants claim therein
are not rights which equity will protect by injunction.
4. For that it affirmatively appears that a decree in con
formance with the prayer for an injunction would be un
enforceable.
5. For that a decree in conformance with the prayer for
an injunction would not be enforceable as against the mem
bers of this association.
6. For that this Court has no sufficient jurisdiction
to render a decree enjoining the members of this associa
tion from doing the things and matters complained of
therein.
107
108
7. For that the granting of the relief prayed for therein
as against this respondent would constitute a denial of due
process of law.
8. For that it does not appear therefrom that the mem
bers of this association, or any of them, participated in any
way in the wrongful acts complained of or that the members
of this association or any of them in any way authorized,
ratified or approved of such action.
[fol. 123] 9. For that the same is not a cause of action for
or upon which the complainant therein may maintain such
an action against the members of this organization or as
sociation.
10. For that the relief therein prayed, if granted, would
not be enforceable as against the members of this associa
tion.
11. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the
substituted amended bill of complaint and whose rights will
be injuriously and adversely affected by the decree sought,
and who are indispensabe parties to this substituted
amended bill of complaint.
12. For that it appears that the white firemen who will be
displaced by the relief sought are indispensable parties to
this procedure.
13. For that the same amounts to a bill for specific per
formance.
14. For that it affirmatively appears therefrom that the
questions presented are moot.
15. For that it affirmatively appears therefrom that the
complainant has been restored to “ the pool.”
16. For that under the alleged.contract, the breach of
which complainant seeks to enjoin, the complainants would
not receive anything unique in value, but would receive
only money.
I ll
And this respondent demurs to that aspect of the substi
tuted amended bill of complaint which seeks a discovery, and
109
for grounds of said demurrer, sets down and assigns the
following:
1. For that the said substituted amended bill of com
plaint is not sworn to.
2. For that the allegations thereof are not made under
oath.
3. For that there is no equity in the said aspect of the
substituted amended bill.
4. For that it affirmatively appears therefrom that the
complainants have an ad-quate remedy at law.
5. For that complainants show no right to a discovery.
6. For that the allegations of the said aspect of the sub
stituted amended bill are so vague, indefinite and uncer
tain, and the prayer thereof is so vague, indefinite and un
certain that this respondent is not apprised of what it is
[fol. 124] called upon to defend or what it is called upon
to produce in the way of a discovery.
7. For that the said allegations of the said aspect of the
substituted amended bill are so vague, indefinite and uncer
tain that this respondent is not apprised thereby of what
information the said complainants are seeking or what in
formation they are entitled to.
8. For that the same is not a cause of action for or upon
which the complainant therein may maintain such an
action against the members of this organization or associa
tion.
9. For that the relief therein prayed, if granted, would
not be enforceable as against the members of this associa
tion.
10. For that no facts are alleged which show that the
members of this association have the information, a dis
covery of which is prayed.
11. For that there is alleged no duty on the part of the
members of this association to give the complainants, or any
of them, a discovery of the information therein sought,
12. For that it does not appear therefrom that the
members of this association, or any of them, participated in
110
any way in the wrongful acts complained of or that the
members of this association or any of them in any way
authorized, ratified or approved of such action.
IV
And this respondent demurs to that aspect of the sub
stituted amended bill of complaint which seeks an injunction
against this respondent enjoining it and its members and
each of them from purporting to act as representatives
under the Railway Labor Act for all of the locomotive fire
men on the defendant railroad, and for grounds of said
demurrer, sets down and assigns the following:
[fol. 125] 1. There is no equity in the said aspect of the
substituted amended bill.
2. For that it affirmatively appears therefrom that the
complainants have ail adequate remedy at law.
3. For that it affirmatively appears from the allegations
thereof that this association has a right under the said Rail
way Labor Act to act as representative for all the locomo
tive firemen on the said defendant railroad.
4. For that this Court has no power to bind the members
of this association by any decree rendered in this cause.
5. For that it affirmatively appears therefrom that this
is not a cause of action for or upon which the complainants
therein may maintain such a cause of action against the
members of this association or organization.
6. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the sub
stituted amended bill of complaint and whose rights will be
injuriously and adversely affected by the decree sought,
and who are indispensable parties to this substituted
amended bill of complaint.
7. For that it appears that the white firemen who will be
displaced by the relief sought are indispensable parties to
this procedure.
8. For that it affirmatively appears that complainant’s
alleged rights have been restored.
I l l
V
And this respondent demurs to that aspect of the sub
stituted amended bill of complaint which seeks a declaratory
judgment, and for grounds of said demurrer, sets down and
assigns the following:
1. There is no equity in the said aspect of the substituted
amended bill.
2. For that it affirmatively appears therefrom that the
complainants have an adequate remedy at law.
3. For that it affirmatively appears therefrom that there
is not a cause of action for or upon which the complainants
therein may maintain such an action against the members
of this association.
[fol. 126] 4. For that it affirmatively appears therefrom
that there are parties who are not made parties respondent
to the substituted amended bill of complaint, and whose
rights will be injuriously and adversely affected by the
decree sought, and who are indispensable parties to this
substituted amended bill of complaint.
5. For that it appears that the white firemen who will
be displaced by the relief sought are indispensable parties
to this procedure.
6. For that it does not appear therefrom that there is any
justiciable controversy between the complainants or any of
them and the members of this association.
7. For that it does not appear that there is any justiciable
controversy between complainants and this respondent.
8. For that it affirmatively appears that an adequate
relief and an appropriate remedy are presently available
to the complainants through other existing forms of actions
or proceedings.
VI
And this respondent demurs to that aspect of the sub
stituted amended bill of complaint which seeks damages
against this Brotherhood and for grounds of said demurrer,
sets down and assigns the following:
1. For that there is no equity in the said aspect of the sub
stituted amended bill.
112
2. For that it affirmatively appears therefrom that the
complainants have an adequate remedy at law.
3. For that it affirmatively appears therefrom that this
is not a cause of action for or upon which the complainants
therein may maintain such an action against the members of
this association.
4. For that it is not alleged therein that the members of
this association participated in any way in, or in any way
ratified, confirmed or approved the said action complained
of.
5. For that it does not appear therefrom that the said
contracts were negotiated or executed by agents, servants
or employees of the members of this association acting
[fol. 127] within the line and scope of their employment.
6. For that there is no authority or warrant of law for
the awarding of damages to a class.
7. For that there is no authority or warrant of law for the
awarding of a decree requiring affirmative action on the
part of the respondent in favor of a class.
VII
And this respondent demurs to that aspect of the sub
stituted amended bill of complaint which seeks relief on
behalf of the other negro locomotive firemen of the de
fendant railroad as a class, and for grounds of said demur
rer, sets down and assigns the following:
1. For that it appears therefrom that the interests of
the negro firemen on the S. & N. A. Seniority Division of
the L. & N. Railroad Company are different in kind, class,
and degree from the negroes on the other divisions of said
railroad.
2. For aught appearing therefrom, many of the parties
sought to be made parties complainant will not be injuriously
affected by the action complained of.
3. For that it does not appear that any of the parties who
are sought to be made parties complainant with the excep
tion of complainant, Steele have suffered any injury, dam
ages or invasion of right.
113
4. For that it does not appear that the contracts of the
various parties sought to be made complainants embody the
terms of the said Firemen’s and Hostlers’ Schedule.
5. For that it does not appear therefrom that the various
parties complainant have any seniority rights.
6. For that it does not appear therefrom that the various
parties complainant are entitled to any seniority rights or
privileges or preference of runs.
7. For that it does appear therefrom that the various
parties complainant have any vested property right which
has been invaded by the actions complained of.
8. For that there is no equity in the said aspect of the sub
stituted amended bill.
9. For that it affirmatively appears that the complainants
[fol. 128] have an adequate remedy at law.
10. For that it does not appear therefrom that the com
plainant has the authority to represent said class.
11. For that it does not appear therefrom that the in
terests of the class which the complainant seeks to represent
are identical with his own.
12. For that it affirmatively appears therefrom that the
rights of the various parties sought to be represented by
class are widely variant as to the class and type of relief to
which they are entitled, if any, and also as to the degree of
relief to which they are entitled.
13. For that it affirmatively appears therefrom that this
is not a cause of action for or upon which the complain
ants therein may maintain such an action against the mem
bers of this association.
14. For that there is no authority or warrant of law for the
awarding of damages to a class.
15. For that there is no authority or warrant of law for
the awarding of a decree requiring affirmative action on the
part of the respondent in favor of a class.
16. For that it affirmatively appears therefrom that
there are parties who are not made parties respondent to
the substituted amended bill of complaint, and whose rights
8— 1192
114
will be injuriously and adversely affected by the decree
sought, and who are indispensable parties to this sub
stituted amended bill of complaint.
17. For that it appears that the white firemen who will
be displaced by the relief sought are indispensible parties
to this procedure.
Harold C. Heiss, Lange, Simpson, Brantley & Robin
son, Solicitors for Respondent, Brotherhood of
Locomotive Firemen and Enginemen, an unin
corporated association.
I n Circuit Court of J efferson C ounty
D emurrer of W. H. T hom as, to the S ubstituted A mended
B ill—Filed September 16,1942
Comes the respondent, W. H. Thomas, one of the re
spondents named in the substituted amended bill of com
plaint, and demurs to the substituted amended bill of com-
[fol.129] plaint as a whole, and as grounds of said demur
rer, sets down and assigns the following, separately and
severally:
I
1. There is no equity in the bill.
2. For that there is a misjoinder of parties respondent.
3. For that this respondent wrongfully is joined with
the other parties respondent named therein.
4. For that no joint cause of action is stated against this
respondent and any other respondent named in the said
bill.
5. For that it does not appear therefrom that the in
dividuals who negotiated the alleged contracts attached
as exhibits to the said bill were agents, servants or em
ployees of this respondent acting within the line and scope
of their employment as such.
6. For that there does not appear therefrom any reason
why this respondent should be held accountable for the al
leged wrongful acts therein set out.
115
7. For that the allegation that complainant’s contract
embodied the standard provisions of the Firemen’s and
Hostlers’ Schedule issued Match 1, 1929, is a conclusion
of the pleader.
8. For that the allegation that the complainant’s em
ployment status la a vested property right is a conclusion
of the pleader.
9. For that the allegation that the white members of the
Brotherhood have designated said Brotherhood as the ex
clusive bargaining agent and grievance representative for
the entire craft or class of firemen on defendant railroad
is a conclusion of the pleader.
10. For that the averments thereof are so vague, indefi
nite and uncertain that this respondent is not sufficiently
apprised as to what actions on its part are complained
of by the various parties complainant.
11. For that the same does not allege that the persons
whose names appear on Exhibits 1 and 2 as signing on be
half of the Brotherhood of Locomotive Firemen and En-
ginemen and Brotherhood of Locomotive Firemen and En-
ginemen Committee were authorized by this respondent
to execute said document, or that said execution was rati-
[fol. 130] fied by this respondent.
12. For that the averments of the substituted amended
bill are not definite and certain enough to apprise this re
spondent what it is called upon to defend.
13. For that it does not appear therefrom by what right
plaintiff brings suit as a class suit on behalf of the other
negro locomotive firemen on the defendant’s railroad.
14. For that there is a misjoinder of parties complainant.
15. For that the decree prayed for by complainant on
behalf of the class which he seeks to represent would be un
enforceable.
16. For that the complainant has an adequate remedy at
law.
17. For that the said substituted amended bill of com
plaint shows on its face that if the complainant has suffered
wrong, he has an adequate remedy at law against the
116
respondent railroad company by way of damages for breacli
of contract.
18. For that the said substituted amended bill of com
plaint fails to allege any wrong doing by this respondent.
19. For that no facts are alleged which show that this
respondent was under any duty to the complainants.
20. For that no facts are alleged to show any breach of
duty by this respondent.
21. For this Court judicially knows that the officers of
a labor union have no power to bind the individuals of the
association in any way.
22. For that there is a misjoinder of parties respondent
in that some of the parties respondent are necessary par
ties to the bill in one aspect and unnecessary parties to it
in the other.
23. For that this respondent is wrongfully joined in that
it is an unnecessary party to certain aspects of the bill,
[fol. 131] 24. For that it appears that the white firemen
who will be displaced by the relief sought are indispensable
parties to this procedure.
25. For that the approval by any of the white firemen of
any of the facts complained of is not sufficient to impose
liability upon this respondent.
26. For that it affirmatively appears from the bill of com
plaint, as last amended, and the exhibits thereto that the
rates, rules and working conditions as provided by the
Locomotive Firemen and Hostler’s Schedule was subject
to 30 days’ written notice by either party.
27. For that it does not appear that complainant’s re
spective contracts of employment have been breached; but
it affirmatively appears that the defendant railroad com
pany was within its legal rights in modifying the com
plainant’s respective contracts.
28. For that it affirmatively appears therefrom that the
questions presented are moot.
29. For that it affirmatively appears therefrom that the
complainant has been restored to “ the pool.”
117
And this respondent demurs to that aspect of the said
substituted amended bill of complaint which prays a per
petual injunction, and for grounds of said demurrer, sets
down and assigns the following:
1. There is no equity in the said aspect of the said sub
stituted amended bill of complaint.
2. It affirmatively appears that complainants have an
adequate remedy at law.
3. For that the rights which complainants claim therein
are not rights which equity will protect by injunction.
4. For that it affirmatively appears that a decree in con
formance with the prayer for an injunction would be unen
forceable.
5. For that a decree in conformance with the prayer for
an injunction would not be enforceable as against the mem
bers of this association.
6. For that the Court knows it is not within the power of
this respondent to comply with the decree in conformity
with the prayer.
[fol. 132] 7. For that the granting of the relief prayed
for therein as against this respondent would constitute a
denial of due process of law.
8. For that the relief therein prayed, if granted, would
not be enforceable as against this respondent.
9. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the
substituted amended bill of complaint and whose rights
will be injur-ously and adversely affected by the decree
sought, and who are indispensable parties to this substi
tuted amended bill of complaint.
10. For that it appears that the white firemen who will
be displaced by the relief sought are indispensable parties
to this procedure.
11. For that the same amounts to a bill for specific per
formance.
12. For that under the alleged contract, the breach of
which complainant seeks to enjoin, the complainants would
II
118
not receive anything unique in value, but would receive only
money.
13. For that it affirmatively appears therefrom that the
questions presented are moot.
14. For that it affirmatively appears therefrom that the
complainant has been restored to “ the pool.”
I l l
And this respondent demurs to that aspect of the sub
stituted amended bill of complaint which seeks discovery
and for grounds of said demurrer sets down and assigns the
following:
1. For that the said substituted amended bill of com
plaint is not sworn to.
2. For that the allegations thereof are not made under
oath.
3. For that there is no equity in the said aspect of the
substituted amended bill of complaint.
4. For that it affirmatively appears therefrom that the
complainants have an adequate remedy at law.
5. For that complainants show no right to a discovery.
6. For that the allegations of the said aspect of the sub
stituted amended bill are so vague, indefinite and uncertain
and the prayer thereof is so vague, indefinite and uncertain
that this respondent is not apprised of what it is called upon
[fol. 133] to defend or what it is called upon to produce in
the way of a discovery.
7. For that the said allegations of the said aspect of the
substituted amended bill are so vague, indefinite and un
certain that this respondent is not apprised thereby of
what information the same complainants are seeking or
what information they are entitled to.
8. For that the relief therein prayed, if granted, would
not be enforceable as against this respondent.
9. For that no facts are alleged which show that this
respondent had or has access to the information, a discovery
of which is prayed.
119
10. For that there is alleged no duty on the part of this
respondent to give to the complainants or any of them a
discovery of the information therein sought.
IV
This respondent demurs to that aspect of the substituted
amended hill of complaint which seeks an injunction against
the respondent brotherhood and its members and each of
them from purporting to act as representatives under the
Railway Labor Act for all of the locomotive firemen of the
defendant railroad, and for grounds of said demurrer, sets
down giul assigns the following:
1. There is no equity in the said aspect of the substituted
amended bill.
2. For that it affirmatively appears therefrom that the
complainants have an adequate remedy at law.
3. For that this respondent is an improper party to said
aspect.
4. For this respondent is an unnecessary party to said
aspect.
V
And this respondent demurs to that aspect of the sub
stituted amended bill of complaint which seeks a declaratory
judgment, and for grounds of demurrer sets down and as
signs the following:
[fol. 134] 1. There is no equity in the said aspect of the
substituted amended bill.
2. For that it affirmatively appears therefrom that the
complainants have an adequate remedy at law.
3. For that it does not appear therefrom that there is any
justiciable controversy between complainants or any of
them and this respondent.
4. For that it does not appear that there is any justiciable
controversy between complainants and this respondent.
5. For that it affirmatively appears that an adequate
relief and an appropriate remedy are presently available
to the complainants through other existing forms of action
or proceedings,
120
And this respondent demurs to that aspect of the sub
stituted amended bill of complaint which seeks damages
against the Brotherhood, and for grounds of demurrer, sets
down and assigns the following:
1. There is no equity in the said aspect of the substituted
amended bill.
2. For that this respondent, merely by virtue of his con
nection with the Brotherhood, is not a proper party to said
aspect of the said bill.
3. For that it is not alleged therein that this respondent
authorized or ratified the alleged wrongful acts complained
of.
4. For that there is no authority or warrant of law for the
awarding of damages to a class.
5. For that there is no authority or warrant of law for
the awarding of a decree requiring affirmative action on the
part of the respondent in favor of a class.
6. For that the facts alleged do not warrant a personal
judgment for damages against this respondent.
[fol. 135] VII
And this respondent demurs to this aspect of the said
substituted amended bill of complaint which seeks relief
on behalf of the other negro locomotive firemen of the
defendant railroad as a class, and for grounds of said
demurrer sets down and assigns the following:
1. For that it appears therefrom that the interests of
the negro firemen on the S. and N. A. Seniority Division
of the L. and N. Railroad Company are different in kind,
class, and degree from the negroes on the other divisions
of said railroad.
2. For aught appearing therefrom, many of the parties
sought to be made parties complainant will not be injuri
ously affected by the action complained of.
3. For that it does not appear that any of the parties
who are sought to be made parties complainant with the
exception of complainant Steele have suffered any injury,
damages or invasion of right.
VI
121
4. For that it does not appear that the contracts of the
various parties sought to he made complainants embody
the terms of the said Firemen’s and Hostlers’ Schedule.
5. For that it does not appear therefrom that the various
parties complainant have any seniority rights.
6. For that it does not appear therefrom that the various
parties complainant are entitled to any seniority rights
or privileges or preference of runs.
7. For that it does not appear therefrom that the various
parties complainant have any vested property right which
has been invaded by the actions complained of.
8. For that there is no equity in the said aspects of the
substituted amended bill.
9. For that it affirmatively appears that the complain
ants have an adequate remedy at law.
10. For that it does not appear therefrom that the com
plainant has the authority to represent said class.
11. For that it does not appear therefrom that the interest
of the class which the complainant seeks to represent are
identical with his own.
12. For that it affirmatively appears therefrom that the
rights of the various parties sought to be represented by
class are widely variant as to the class and type of relief
[fol. 136] to which they are entitled, if any, and also as to
the degree of relief to which they are entitled.
13. For that it affirmatively appears therefrom that this
is not a cause of action for or upon which the complain
ants therein may maintain such an action against the mem
bers of this association.
14. For that there is no authority or warrant of law for
the awarding of damages to a class.
15. For that there is no authority or warrant of law for
the awarding of a decree requiring affirmative action on
the part of the respondent in favor of a class.
16. For that it affirmatively appears therefrom that there
are parties who are not made parties respondent to the
substituted amended bill of complaint, and whose rights
will be injuriously and adversely affected by the decree
122
sought, and who are indispensable parties to this substi
tuted amended bill of complaint.
17. For that there is a misjoinder of parties complainant.
18. For that there is a misjoinder of parties respondent.
19. For that this respondent is an improper party re
spondent to said bill.
20. For this respondent is improperly joined as party
respondent.
21. For that no joint cause of action is alleged against
this respondent or any other parties respondent to the
said substituted amended bill of complaint.
Harold C. Heiss, Lange, Simpson, Brantley & Robin
son, Solicitors for Respondent, W. H. Thomas.
I n C ikcuit Court op J efferson County
P lea in A batem ent of J. P . A dams to th e S ubstituted
A mended B ill— Filed September 17, 1942
Comes J. P. Adams, named as respondent in the sub
stituted amended Bill of Complaint in this cause, and ap
pearing specially for the purpose of pleading in abatement
and for the purpose of testing the jurisdicton of ths Court,
and for no other purpose, prays judgment of the Court
that the Summons and Bill of Complaint be quashed be
cause he says that he is a resident and citizen of the State
of Alabama and a resident and citizen of Montgomery
County, Alabama; that he is not a resident of Jefferson
County, Alabama; that the act or omission complained of
in the Bill of Complaint did not occur in Jefferson County,
Alabama.
This respondent says further that he is wrongfully joined
as a party respondent to the said substituted amended
[fol. 137] Bill of Complaint; that the same does not state
a joint cause of action against him and any other party
respondent who might be correctly sued in Jefferson
County, Alabama, under the particular • type of cause of
action attempted to be set up in the said substituted
amended Bill of Complaint.
Wherefore, he prays judgment on the said Summons
and Bill of Complaint, and that the same be quashed.
J. P. Adams.
Duly sworn to by J. P. Adams. Jurat omitted in printing.
123
I n Circuit Court of J efferson C ounty
P lea in A batem ent of B . P . M cG ill to S ubstituted
A mended B ill— Filed September 19, 1942
Comes B. F. McGill, named as respondent in the substi
tuted amended Bill of Complaint in this cause, by his solici
tors, and appearing specially for the purpose of pleading-
in abatement and for the purpose of testing the jurisdic
tion of this Court, and for no other purpose, prays judg
ment of the Court that the Summons and Bill of Complaint
be quashed because he says that he is a resident and citi
zen of the State of Alabama and a resident and citizen of
Mobile County, Alabama; that he is not a resident of
Jefferson County, Alabama; that the act or omission com
plained of in the Bill of Complaint did not oclcur in
Jefferson County, Alabama.
This respondent says further that he is wrongfully joined
as a party respondent to the said, substituted amended Bill
of Complaint; that the same does not state a joint cause of
action against him and any other party respondent who
might be correctly sued in Jefferson County, Alabama,
under the particular type of cause of action attempted to be
set up in the said substituted amended Bill of Complaint.
Wherefore, he prays judgment on the said Summons and
Bill of Complaint, and that the same be quashed.
[fol. 138] Harold C. Heiss, Lange, Simpson, Brant
ley & Bobinson, Solicitors for respondent B. F.
McGill, appearing specially.
Duly sworn to by Oliver Brantley. Jurat omitted in
printing.
In C ircuit C ourt of J efferson County
A mended P lea in A batem ent of F. B. M cG ill to S ubsti
tuted A mended B ill— Filed September 26, 1942
Comes F. B. McGill, named as respondent in the substi
tuted amended Bill of Complaint, and still appearing spe
cially for the purpose of pleading in abatement and for
no other purpose, amends bis Plea in Abatement heretofore
filed in this cause by adding thereto the following affidavit:
State of A labam a ,
Mobile County:
Before me, A. L. Sclater, Sr., a Notary Public in and
for said County and State, personally appeared B. F.
124
McGill, known to me, who first being duly sworn according
to law deposes and says that he has read the Plea in
Abatement heretofore filed on his behalf in this cause
and the allegations of the same are true and correct.
[fob 139] F. B. McGill.
Sworn to and subscribed before me this 26th day of
September, 1942. A. L. Sclater, Sr., Notary Pub
lic, Mobile County, Alabama. (Seal.) Harold C.
Heiss, Lange, Simpson, Brantley & Robinson, At
torneys for respondent F. B. McGill.
I n C ircuit C ourt op J efferson C ounty
M in u te E ntries of S ubmission on P leadings— January 11,
1943
On this the 11th day of January, 1943, it is ordered by
the Court, that this cause be submitted for a decree on the
Plea in Abatement of J. P. Adams and F. B. McGill.
On this the 11th day o f January, 1943, it is ordered by
the Court that this cause be submitted for a decree on the
demurrers of Louisville and Nashville Railroad Company,
refiled to substituted amended Bill of Complaint ; and de
murrers of Brotherhood of Locomotive Firemen and En-
ginemen, to the substituted amended Bill of Complaint, and
demurrers of W. H. Thomas to the substituted amended
Bill of Complaint.
I n C ircuit Court of J efferson C ounty
D ecree S ustaining D emurrers and D ism issing B ill—April
27, 1943
This Cause coming on to be heard is submitted for decree
upon demurrer of respondent, Louisiville & Nashville Rail
road Company, refiled to the substituted Bill of Complaint,
and demurrer of respondent Brotherhood of Locomotive
Firemen and Enginemen to the substitute Bill of Complaint
and the demurrer of W. II. Thomas to the substitute Bill of
Complaint.
The substitute Bill of Complaint charges a conspiracy
among the respondent Railroad Corporation, the Brother
125
hood of Locomotive Firemen and Enginemen, its repre
sentatives and its several members to fraudulently elimi
nate from the services of the Railroad the Complainant
[fol. 140] and other negro firemen, or to discriminate
against them in such a way as to give the white firemen,
members of said association, advantage in employment
status, rate of pay, etc. While the bill in general terms
charges fraud and discrimination against the negro fire
men, the specific wrong complained of is that representa
tives of the Brotherhood of Locomotive Firemen and En
ginemen (who were statutory representatives of all fire
men) and the respondent Louisville & Nashville Railroad
Company entered into an employment agreement February
8, 1941, and modified on May 12, 1941, under the terms of
which negro firemen, including the complainant, suffered
injury and damage.
From a careful analysis of the Bill it appears that any
relief to which plaintiff is entitled must be predicated upon
injuries sustained by him from the wrongful execution of
the contract of 1941.
The rights allegedly taken away from him by such con
tract arose from a former contract negotiated for him and
others by the same Brotherhood. It is admitted by com
plainant that the Brotherhood of Locomotive Firemen and
Enginemen has the legal right to select bargaining repre
sentatives for the entire class. It is also admitted that the
universal practice among the railroads of the country is
to promote only white firemen to the position of engineer,
and that complainant is one of a group of colored firemen
who are non-promotable under such practice. No direct
relief is here sought against that practice. The contract
complained of discloses a plan of operation whereby the
number of negro firemen is to be reduced and certain of
their privileges under the former contract abridged.
The contract of 1941 appears on its face as one designed
to increase the number of promotable firemen. It makes
available more men who may be ultimately promoted to
the position of engineer. Such plan may have been neces
sary to the proper operation of the railroad. In any event
the Bill fails to negative such necessity or to aver that a
contract more favorable to complainant and his class was
a practical possibility. The general allegations of fraud
and discrimination in the execution of the contract are not
126
assumed to be true merely because its provisions are not
as favorable to the entire group of employees, or a portion
thereof, as were the provisions of a former contract.
[fol. 141] The Court is therefore of the opinion that the
Bill of Complaint contains on equity; that the demurrers
should be sustained and Bill of Complaint dismissed. It
is therefore,
Ordered, Adjudged and Decreed by the Court that the
separate and several demurrers of the respondents, Louis
ville & Nashville Railroad Company, Brotherhood of Loco
motive Firemen and Enginemen, and W. H. Thomas to
the substitute Bill of Complaint be and they are hereby
separately and severally sustained and said Bill of Com
plaint is hereby dismissed. Court costs in this cause are
hereby taxed against complainant for which let execution
issue.
Done and Ordered, this the 27th day of April, 1943.
E. M. Creel, Circuit Judge, In Equity Sitting.
Bond on Appeal for Costs approved and filed May 22,
1943, omitted in printing.
[ fo l. 142] I n C ircuit Court op J efferson C ounty
C itation of A ppeal
To Brotherhood of Locomotive Firemen and Enginemen,
an Unincorporated Association, et al., or to Lange, Simp
son, Brantley & Robinson, and Harold C. Heiss, Solicitors
of Record:
Whereas, on the 22nd day of May, 1943, Bester William
Steele took an appeal from the decree rendered on the 27th
day of April, 1943, by the Circuit Court of Jefferson
County, in the cause of Bester William Steele, against
Louisville and Nashville Railroad Company, et ah,
Now, Therefore, you are cited to appear as required by
law, before the Supreme Court of Alabama, to defend on
said appeal, if you think proper so to do.
Witness my hand this the 24th day of May, 1943.
G. H. Boyd, Register.
Executed this the 25th day of May, 1943, on Lange, Simp
son, Brantley and Robinson, by leaving a copy of within
with Jim Simpson, Agent.
Holt A. McDowell, Sheriff, Jefferson Co. Ala., by
Roy Culver, D. S.
Harold C. Heiss not found in Jefferson County this the
25th day of May, 1943.
Hold A. McDowell, Sheriff, Jefferson Co., Ala., by
Roy Culver, D. S.
Isr C ircuit C ourt of J efferson C ounty
C itation of A ppeal
T o Louisville and Nashville R. R. Company, et al., or to
Gibson and Gibson, Solicitors of Record:
Whereas, on the 22nd day of May, 1943, Bester William
Steele, took an appeal from the decree rendered on the 27th
day of April, 1943 by the Circuit Court of Jefferson County,
in the cause of Bester William Steele, against Louisville
and Nashville Railroad Company, et al.,
[fol. 143] Now, Therefore, you are cited to appear as re
quired by law, before the Supreme Court of Alabama, to
defend on said appeal, if you think proper so to do.
Witness my hand this the 22nd day of May, 1943.
G. H. Boyd, Register.
Executed this the 24th day of May, 1943, by leaving a
copy of the within with Gibson & Gibson.
Holt A. McDowell, Sheriff, Jefferson Co., Ala., by
Ben L. Ingram, D. S.
I n Circuit Court of J efferson County
Motion R e T ransm ittal of E xhibits—Filed June 11, 1943
Comes the Appellant, and the separate and several ap
pellees and shows unto the Court as follows :
1st. That a decree sustaining the demurrers and dis
missing the Bill of Complaint was rendered in the above
entitled cause on the 27th day of April, 1943, and the Com
plainant, Bester William Steele has filed a security for
128
costs of appeal to the Supreme Court, all of which appears
of record in this Court.
2nd. That there was attached to the substituted amended
Complaint Exhibit Number One, which is a small book
entitled “ Agreement between the Louisville & Nashville
Railroad, and its Locomotive Firemen and Hostlers in ac
cord with Mediation Agreement, Arbitration Award, and
Supplementary Agreement,” —also attached to Amend
ment to the amended Bill of Complaint is Complainant’s
Exhibit “ A A ” , which is a small book entitled “ Agreement
between the Louisville & Nashville Railroad and its Loco
motive Firemen and Hostlers in accord with Mediation
Agreement, Arbitration Award, and Supplementary Agree
ment,” and upon investigation of the above exhibits it has
been concluded that in view of the particular character of
these respective exhibits, it is necessary that the original
exhibits be transmitted to the Clerk of the Supreme Court
in order that same may be personally inspected by the
Judges of the said Court.
Wherefore, the premises considered, the respondent
prays that this Court order the Register to send the Ex
hibits hereinabove referred to with the proper certificate
attached, to the Clerk of the Supreme Court, and that the
same be considered a part of the original Supreme Court
record.
[fol. 144] This the 11th day of June, 1943.
Arthur D. Shores, Solicitor for Appellant; Chas. H.
Eyster & White E. G-ibson, Solicitors for L. &
N. R. R. Co.; Lange, Simpson, Brantley & Robin
son, Solicitors for Brotherhood, L. F. & E.
I x C ircuit C ourt or J efferson C ounty
Order re T ransm ittal of E x h ibits—June 23, 1943
Upon consideration of the foregoing motion of the parties
in this cause, to have certain Exhibits described in said
Motion transmitted to the Supreme Court for its inspection,
coming on to be heard, and the same having been considered
and understood by the Court, it is Ordered, Adjudged and
Decreed by the Court that the Register send to the Clerk of
the Supreme Court the Complainant’s Exhibit “ A A ” , and
129
complain-t’s Exhibit Number One, in order that said ex
hibits may be personally inspected by the Judges of said
Court.
Done and Ordered, this the 23rd day of June, 1943.
J. Eussell McElroy, Circuit Judge. In Equity Sit
ting.
[fob 145] lx Circuit C ourt of J effersox Co u xty
Certificate of th e R egister R e-A ppeal axd R ecord—June
24, 1943
I, G. H. Boyd, Register of the Circuit Court, Tenth Ju
dicial Circuit of Alabama, in Equity, do hereby certify that
the Complainant, Bester William Steele, in a cause pending
in said Court wherein Bester William Steele is the Com
plainant, and Louisville And Nashville Railroad Company,
Brotherhood Of Locomotive Firemen And Enginemen, an
unincorporated Association, et al., are the Respondents, has
taken an appeal from the Decree of said Court rendered on
the 27th day of April, 1943, to the Supreme Court of
Alabama.
And I do further certify that said appeal was taken on
the 22nd day of May, 1943, and is returnable to the present
term of the said Supreme Court.
And I do further certify that the for-going pages num
bered from One (1) to One Hundred twenty-three (123),
both inclusive, contains a full, true correct and complete
transcript of the record and all proceedings in said cause
and a copy of the security for costs of appeal to Supreme
Court.
Witness my hand and seal of office, this the 24th day of
June, 1943.
J. H. Boyd, Register.
[fol. 146] lx S upreme Court of A labama
[Title omitted]
A ssigxm exts of E rror
Comes the appellant and says there is manifest error in
the record, in this:
1. The court erred in sustaining the separate and several
demurrers of respondent, Louisville & Nashville Railroad
9—1192
130
Company to petitioners substitute Bill of Complaint, as is
shown on page 120 of the transcript.
2. The court erred in sustaining the separate and several
demurrers of respondent Brotherhood of Locomotive Fire
men & Enginemen to petitioner’s substitute Bill of Com
plaint as is shown on page 120 of the transcript.
3. The court erred in sustaining the demurrers of re
spondent, W. H. Thomas to .petitioner- substitute Bill of
Complaint as shown on page 120 of the transcript.
4. The court erred in dismissing the petitioners substitute
Bill of Complaint as is shown on page 120 of the transcript.
Arthur D. Shores, Solicitor of Complainant.
[fo l. 147] I n th e S upreme Court oe A labama
B ester W illiam S teele
vs.
L ouisville & N ashville R ailroad Com pan y , et al.
M in u te E ntries op A rgum ent and S ubmission—November
23, 1943
Come the parties by attorneys, and the argument in this
cause having been begun, but not concluded, the cause is
passed to Wednesday, November 24th, 1943, at 10 o ’clock,
A. M.
[fol. 148] [Title omitted]
(November 24, 1943)
Come the parties by attorneys, and the argument in this
cause having been concluded, the cause is submitted for
decision.
131
[fo l. 149] I n th e S upreme Court oe A labama
6 Div. 153
B ester W illiam S teele
vs.
L ouisville & N ashville R ailroad C om pany , B rotherhood
op L ocomotive F iremen and E n gin em en , etc., et al.
D egree—January 13, 1944
Come the parties by attorneys, and the record and matters
therein assigned for errors, being argued and submitted and
duly examined and understood by the Court, it is consid
ered that in the record and proceedings of the Circuit Court
there is no error. It is therefore considered and ordered
that the decree of the Circuit Court be in all things affirmed.
It is also considered and ordered that the Appellant, Bes
ter William Steele, and Fidelity and Deposit Company of
Maryland, surety on the appeal bond, pay the costs of ap
peal of this Court and of the Circuit Court.
And it appearing that said parties have waived their
right of exemptions under the laws of Alabama, let execu
tion issue accordingly.
[fol. 150] In the S upreme C ourt oe A labama
B ester W illiam S teele
vs.
L ouisville & N ashville R ailroad Com pany , B rotherhood
oe L ocomotive F irem en and E n gin em en , an unincor
porated association, et al.
Appeal from Jefferson Circuit Court, in Equity
Opinion
Gardner, Chief Justice:
Complainant Steele filed this bill against the Louisville &
Nashville Railroad Company, a corporation, the Brother
hood of Locomotive Firemen and Enginemen, an unincor
porated association, and named individuals connected with
132
the latter association. To the bill as last amended, which
in fact is a substitute for the original bill, demurrers of the
several defendants were sustained and the bill dismissed,
[fol. 151] From this decree the complainant prosecutes this
appeal.
The argument of counsel for the respective parties has
assumed a rather wide range, but we think the discussion
here may be brought within a narrow compass. Omitting
any detailed recital of the bill’s averments, the salient facts
are as follows:
Complainant is a Negro firemen, in the employ of the
Louisville & Nashville Railroad since 1910, competent and
rendering satisfactory service. Prior to the passage of
the Railway Labor Act, and down to April 8, 1941, he had
been serving as a fireman on a passenger train, assigned
to what is known as the “ South End Passenger Pool.”
This was a highly preferable job for a fireman. On April
1st, 1941, the jobs of this particular pool were bulletined
for “ bidding in” because the number of firemen in the
pool had to be reduced due to reduction in mileage, but by
virtue of a contract entered into between the defendant
Railroad and the Brotherhod of Locomotive Firemen and
Enginemen in February, 1941, subsequently modified in
May, 1941, complainant was thrown out of work for a period
of sixteen days (April 8th to April 24th, 1941), and fire
men who were members of the Brotherhood given the
preference. On April 25th, 1941, he was given a job on
a local freight run, less desirable as to the character of
work and less remunerative. In December following, he
was placed as fireman on a switch engine, and worked in
that capacity until January 3,1942, when he was re-assigned
to his original place in the South End Passenger Pool.
Negro firemen are ineligible to membership in the de
fendant Brotherhood. Negroes are not employed on rail-
[fol. 152] roads as locomotive firemen except in the South.
On the defendant Railroad there are four seniority dis
tricts, known as the South and North Alabama Division,
the Montgomery and Mobile Division, the Mobile and New
Orleans Division, and the Pensacola Division. On these
four divisions Negro firemen are in the majority, but con
stitute a minority of the total number of firemen employed
by the defendant Road. The Negro firemen and the Broth
erhood firemen together comprise the entire craft or class
133
of firemen employed by the Railroad. The defendant
Brotherhood is the representative of the entire craft or class
of firemen with the defendant Road, and is so accepted by
complainant and the other Negro firemen. Complainant’s
employment is individual, and he asserts no seniority rights
by virtue of any individual contract with the defendant
Road.
As we understand the bill, with its exhibits, complain
ant’s claim for seniority rights arose out of the agreement
entered into between the defendant Road and the Locomo
tive Firemen and Hostlers on March 1st, 1929. This agree
ment contains express stipulation that “ the rates, rules,
and working conditions as provided herein, shall be con
tinued in effect, subject to 30 days’ written notice by either
party.” Subsequently, as above noted, the defendant
Brotherhood, under the Railway Labor Act, became the
representative for the entire craft of firemen, and entered
into an agreement with the defendant Road which con
siderably curtailed seniority rights of complainant, and
which gave ground for the selection of others, members
of the Brotherhood, in his stead.
It further appears from the bill that locomotive engineers
are obtained by promotion of selected white locomotive fire
men. This is the existing railroad practice in the United
[fol. 153] States. To quote from the bill: “ By traditional
and universal railroad practice in the United States Negro
firemen arbitrarily are never promoted to engineers re
gardless of knowledge, experience, competency, and worth. ’ ’
The bill further shows, to distinguish between white firemen
as a class and Negro firemen as a class, the white firemen
are known under standard railroad practice as “ promotable
men” while the Negro firemen are known as “ non-promot-
able men. ’ ’
On March 28th, 1940, the defendant Brotherhood gave
due notice to the various railroads involved, including this
defendant Road, of a request for the establishment of rules
governing the employment and assignment of locomotive
firemen and helpers. This change in the previous agree
ment brought about the restrictions to non-promotable fire
men and privileges to promotable firemen which worked
to complainant’s disadvantage as indicated. This was in
March, 1940, and the formal agreement was entered into
nearly a year thereafter in February, 1941.
134
The bill seeks injunctive relief against the enforcement
of this agreement, which, as we view it, is in effect a bill
for the specific performance of the agreement of March,
1929. Hewitt v. Magic City Furniture Co., 214 Ala. 265,
107 So. 745, 44 A. L. R. 1441; Donovan v. Travers, 285 Mass.
167.
In substance and effect the present bill appears to be the
same as that presented by counsel for complainant here
to the District Court of the United States for the Western
District of Tennessee, which was disposed of upon the
theory that no Federal question was properly presented.
Teague v. Brotherhood of Locomotive Firemen and Engine-
men, 127 F. (2d)' 53.
[fol. 154] The recent cases of Switchmen’s Union v. Na
tional Mediation Board, 88 L. Ed. 89; General Committee,
Brotherhood of Locomotive Engineers v. Missouri-Kansas-
Texas Railroad Co., 88 L. Ed. 104; and General Committee,
Brotherhood of Locomotive Engineers v. Southern Pacific
Co., 88 L. Ed. 112, have been called to our attention, but we
are persuaded that the Court was dealing only with the
matter of the question of representation, and these authori
ties are here considered of no controlling importance.
Reverting to Teague v. Brotherhood of Locomotive Fire
men and Enginemen, supra, we may add that the Court in
its opinion refers to the fact that in the last analysis
complainant’s seniority rights must rest upon contract, and
that so far as the Fifth Amendment is concerned, it relatives
only to governmental action and not to action by private
persons. This observation should suffice, without further
elaboration, as an answer to the constitutional question
argued in brief.
So far as concerns the defendant Railroad, it has been
definitely determined that the Railway Labor Act (Title 45
U. S. C. A. Sec. 151-188) placed a mandatory duty upon the
Railroad to treat with the representative of the employees
and with that representative only. Virginian Railway v.
Federation, 300 U. S. 515. And for a willful failure, a rather
heavy penalty is imposed. And under Sec. 152, Title 45
U. S. C. A., it is provided that 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
purposes therein named. In Virginian Railway v. Fed
eration, supra, it was pointed out in the opinion that the act
135
did not purport to preclude individual contracts which the
Railroad may elect to make directly with individual em
ployees. “ It imposes the affirmative duty to treat only with
the true representative, and hence the negative duty to treat
[fol. 155] with no other.” See also 31 Am. Jr. page 899.
Speaking as to the purpose of the Act in the Virginia- Rail
way case, the court further observed: “ More is involved
than the settlement of a private controversy without ap
preciable consequences to the public. The peaceable settle
ment of labor controversies, especially where they may
seriously impair the ability of an interstate rail carrier to
perform its service to the public, is a matter of public con
cern. ” In the instant case the Brotherhood was the true
representative, with which the Railroad was under duty to
confer and negotiate.
In Shan)) v. Grand International Brotherhood of Loco
motive Engineers, 223 Ala. 202, 135 So. 327, we made ref
erence to the seniority rights which arose by virtue of the
agreement between the Brotherhood and the Railroad, sub
ject to be vacated just as were complainant’s seniority
rights under the 1929 agreement, where we observed that
such a right was somewhat intangible and could not be
denominated a vested property right. We indicated, how
ever, that an unlawful invasion or interference therewith by
a third person would constitute a wrong of which the courts
would take cognizance; citing U. S. Fidelity Co. v. Millonas,
206 Ala. 147, 89 So. 732, 29 A. L. R. 520. They cannot be
vested property rights in the true sense, for the simple
reason that they are subject to be modified or taken away
entirely upon due notice, in accordance with the very terms
of the contract.
As we have observed, the bill admits that complainant
recognizes the defendant Brotherhood as its representative
for collective bargaining with the Railroad. The Brother
hood, therefore, had a right to enter into the agreement of
February, 1941, which modified to complainant’s detriment
[fol. 156] the agreement of 1929. In Hartley v. Brother
hood of By. & S. S. Clerks, etc., 277 N. W. 885, The Supreme
Court of Michigan, speaking of these collective bargaining
agreements, referred to the fact that the complainant’s
seniority rights in that case were not acquired by virtue of
any contract of employment with her employer, but by rea
son of the bargaining agreement, and this agreement was
executed for all the members of the Brotherhood and not
136
for the individual benefit of the plaintiff. The Court ob
served:
“ When, by reason of changed economic circumstances,
it became apparent that the earlier agreement should
be modified in the general interest of all members of
the Brotherhood it was within the power of the latter
to do so, notwithstanding the result thereof to plaintiff.
The Brotherhood had the power by agreement with the
Railway to create the seniority rights of plaintiff, and
it likewise by the same method had the power to modify
or destroy these rights in the interest of all the mem
bers.”
A like line of reasoning was followed by the North Caro
lina Court in Coley v. Atlantic Coast Line R. R., 19 8. E.
(2d) 124. See also O’Keefe v. Local 463, 117 A. L. R. 817;
Cameron v. International Alliance, 97 A. L. R. 594; 31 Am.
Jur. p. 896-899; note to Louisville & Nashville Railway Co.
v. Miller, 142 A. L. R. 1050; note to Piercy v. Louisville $
Nashville Railway Co., 33 A. L. R. 322. The author of the
note as found in 142 A. L. R, on page 1059, in speaking of
the nature of seniority rights, observed: “ As a starting
point, the courts are apt to observe that seniority is not an
inherent, natural, or constitutional right, and does not arise
from mere employment, independently of contract, but
exists by virtue of the contract between the employer and
the union, inuring through the latter to the benefit of the
members.” Guided by these well-recognized principles, it
[fol. 157] is clear enough complainant must be held to abide
by the contract made with his recognized statutory repre
sentative.
In referring to the Brotherhood as complainant’s repre
sentative, we mean to indicate a representative in a limited
sense only. Indeed, the Massachusetts Court in Donovan
v. Travers, supra, reached the conclusion that in no correct
sense was the union an agent, but a principal. However
that may be, to our mind it seems entirely clear that Con
gress, in providing for collective bargaining by representa
tive of a craft or class, had no intention of creating a con
fidential relationship of principal and agent, such as would
place a duty upon the agent to give notice to every employee
of any action which might unfavorably affect him, and to
make a due account for his actions, and be subject to liability
for failing to so account.
137
Complainant appears to rest his ease largely upon the
doctrine of such confidential relationship; citing Brasher
y. First National Bank, 232 Ala. 340, 168 So. 42; Rogers v.
Brightman, 189 Ala. 228, 66 So. 71, where the exacting
duties of such an agency are pointed out. But we think the
Railway Labor Act merely intended that there be desig
nated a representative chosen by the majority of the craft
or class of employees to treat with the Railroad in regard
to rates of pay, working conditions, and the like, and to
bargain with reference to the whole without any notion of
liability to the individual. See also System Federation v.
Louisiana & A. By. Co., 119 F. (2d) 509; System Federation
v. Louisiana & A. Ry. Co., 32 F. Supp. 89.
As to the Railroad Company, the complaint rests upon a
charge of conspiracy between the Road and the Brother
hood to defraud complainant of his seniority rights. Of
course, the charge of conspiracy or fraud in general terms
[fol. 158] is insufficient. Facts must be alleged which would
justify the legal conclusion of an unlawful conspiracy.
“ The illegal purpose or means, which the conspirators
meant to accomplish or to resort to, must be described ac
curately, for unless the object is illegal, or the means
agreed upon illegal, there is no actionable wrong.” Na
tional Park Bank v. L. & N. R. R. 199 Ala. 192, ,74 So. 69.
When the facts alleged are considered, we think it clear
enough no unlawful conspiracy is charged against the
Railroad. As we have previously observed, the Road was
under statutory duty, mandatory in character, to deal with
the representative of the craft. True, the complainant,
as a Negro fireman, is ineligible to membership in the de
fendant Brotherhood, but as observed by the New Jersey
Court in Cameron v. International Alliance, supra:
“ Trade union membership, like other contractual re
lationships, is purely voluntary on both sides. Such
organizations come into being for purposes mutually
agreed upon. The cohesive force is the common inter
est. Their right to prescribe qualifications for mem
bership, and to make rules and regulations for the
transaction of their lawful business, is not open to
question. They may impose such requirements for
admission and such formalities of election as may be
deemed fit and proper; they may restrict membership
to the origianl promoters, or limit the number to be
138
thereafter admitted; the power of such a body to make
its membership exclusive is incident to its charac
ter. * * * Enforced admission to membership is
manifestly contrary to the scheme of such a society.
No person has an abstract or absolute right to such
membership. ’ ’
This principle was likewise recognized by this Court in
the recent case of Chapman v. American Legion, — Ala. —,
14 So. (2d) 225, 147 A. L. R. 585, in which latter citation
many authorities are to be found in the note.
Like thought was expressed in the separate concurring
opinion to be found in Brotherhood of Railway & 8. S.
Clerks v. U. T. 8. E. A., 137 F. (2d) 817, where it was said:
“ That the rules of the Brotherhood make Negroes ineligible
to membership is not a matter which concerns us. ’ ’ Coun
sel for complainant place much stress upon this authority.
That case involved “ red caps” who were ineligible to
membership in the Brotherhood, but who insisted that the
Brotherhood should not be considered their representative,
and that they were entitled to one of their own choosing.
The Mediation Board, however, considering that they were
represented by the Brotherhood, denied their application
for separate representation. The United States Circuit
Court of Appeals for the District of Columbia held, in
effect, that the finding of the Mediation Board was errone-
[fol. 159] ous as a matter of law, and the judgment of the
District Court setting aside the order was affirmed.
As we gather from the opinion of the Court of Appeals,
the Mediation Board had held that these employees were in
fact merely a minority group of an established craft or
class that did have representation. This opinion of the
Court of Appeals was reversed by the Supreme Court of
the United States without opinion. Brotherhood of Rail-
ivay etc. Employees v. United Transport Service Em
ployees, 88 L. Ed. 153. Perhaps the reversal was rested
upon the principle held decisive in Switchmen’s Union v.
National Mediation Board; General Committee, Brother
hood of Locomotive Engineers v. Missouri-Kansas-Texas
Railroad Co.; and General Committee, Brotherhood of
Locomotive Engineers v. Southern Pacific Co., supra, to the
effect that the courts will decline to review the action of
the Mediation Board in the matter of representation under
the Railway Labor Act. However this may be, we think
139
clearly the reversal could also have been rested upon the
theory, as outlined by the Mediation Board, that the “ red
caps” were already represented, and that the case merely
presented a complaint on the part of a minority of the craft
or class who were disappointed with the representative the
majority had selected.
In any event, the instant case is much stronger for the
defendants. Here there is' no question of representation.
The bill discloses upon its face that the Brotherhood has
been delegated as representative under the Railway Labor
Act as representative of the craft or class to which com
plainant belongs, and has been so acting and so recognized
as the representative for many years.
In Washington Termianl Co. v. Boswell, 124 F. (2d) 235,
is found a comprehensive review of the Railway Labor Act.
It was designed, as stated in the opinion, “ not to outlaw the
right to strike, but merely to prevent the necessity for its
exercise.” And in Virginia Railway v. Federation, supra,
the Court noted the fact that in this Act more is involved
than the settlement of a private controversy without ap
preciable consequences to the public. “ The peaceable set
tlement of labor controversies, especially where they may
seriously impair the ability of an interstate rail carrier
to perform its service to the public, is a matter of public
concern. ’ ’
[fol. 160] Considering, therefore, the situation as thus
presented to the Railroad, the question at once occurs to a
practical mind: What step was the Road to take? The
representative of the craft, the Brotherhood, had made a
request for a modification of the existing contract concern
ing seniority rights. Was it the duty of the Road to combat
the representative and enter into an argument as to its
resultant effect upon employees who were in the minority?
The operation of a railroad presents many complex prob
lems. Among the most serious are those involving its rela
tionship with its employees, as well as with the "public at
large, and their responsibilities as to the safety of the
travelling public. It requires not only skill in manage
ment and in the actual operation by the employees, but it
requires cooperation among the employees, as well as with
the management. There was nothing hasty in the ac
ceptance of the Brotherhood’s proposal. Nearly a year
had passed from the time the request was made until its
final acceptance.
140
The Railway Labor Act was careful to preserve to the
individual employee the right of conference with the man
agement, either individually or through a local representa
tive of the employees. Sec. 152, Title 45 U. S. C. A., supra.
There was no requirement, either in the Act or in the rules
or regulations of the Brotherhood, which called for notice
to the individual employee of a change in the contract.
The defendant Road had all these complex matters for
consideration. As we have previously noted, the bill dis
closes a traditional policy of the railroads throughout the
country to promote to the position of engineer white fire
men only. This means, of course, that such course had been
considered by the management as wise and proper through
out the history of the railroads in America. Complainant
has long been in the service, and knew of this unbroken
custom. He therefore knew that he would not be eligible
for promotion to the position of engineer. So uniform a
custom, therefore, recognized in the practical construction
of his contract of employment, must be considered as a part
thereof. City of Greenville v. Greenville Water Works,
125 Ala. 625, 27 So. 764; Bixby-Thiesen Co. v. Evans, 174
Ala. 571, 57 So. 39; Birmingham Water Works Co. v.
Hernandez, 196 Ala. 438, 71 So. 443 ; Mitau v. Roddan, 149
Cal. 1.
[fol. 161] It is, of course, necessary that the engineer be
promoted from his position of fireman; but practical con
siderations also require he likewise have had, as fireman,
experience over the run to which he is likely to be promoted
to engineer. This modified contract of which complainant
complains was in harmony with the Railroad’s policy, and
lends support to its theory of operating successfully a
great transportation system. As was said in Washington
Terminal Co. v. Boswell, supra, the railroad still “ has the
power of management.” Freedom of individual enter
prise is regarded as one of the cornerstones of our form of
government. This freedom, under the police power, is sub
ject to many restrictions for the public good, recognized in
innumerable decisions following legislation to that end.
Such freedom of enterprise is restricted as to the railroads
in instances too numerous to mention, among them the Rail
way Labor Act. But no act of Congress has yet been
enacted which interferes with the management of the Road
insofar as the question of the selection of its individual em
ployees is concerned. If the Road considers it wiser to
141
continue the policy of having only white engineers, there
is no more a law standing in the way of the exercise of this
freedom of choice than there is in the choice of the Brother
hood of its membership. And it is clear enough the courts
have no power to declare otherwise or to dictate a different
policy.
In Plessy v. Ferguson, 163 U. 8. 537, many observations
were made concerning laws relating to the separation of
races. That it is a question of much delicacy, history
teaches and all men know. In the Plessy ease, supra, the
Court said:
“ Laws permitting, and even requiring, their separation
in places where they are liable to be brought into con
tact do not necessarily imply the inferiority of either
race to the other, and have been generally, if not uni
versally, recognized as within the competency of the
state legislatures in the exercise of their police power.
The most common instance of this is connected with
the establishment of separate schools for white and
colored children, which has been held to be a valid ex
ercise of the legislative power even by courts of states
where the political rights of the colored race have been
longest and most earnestly enforced. * * # In
determining the question of reasonableness it is at lib
erty to act with reference to the established usages,
[fol. 162] customs and traditions of the people, and
with a view to the promotion of their comfort, and the
preservation of the public peace and good order.^
Legislation is powerless to eradicate racial instincts
or to abolish distinctions based upon physical differ
ences, and the attempt to do so can only result in accen
tuating the difficulties of the present situation.”
Considering, therefore, the averments of fact, the bill
merely discloses that the Road has signed an agreement
with the Brotherhood, the representative of the entire craft,
which in fact is in harmony with its traditional policy. The
Railroad, in entering into this agreement, did nothing ille
gal and pursued no illegal means. As a consequence, it was
guilty of no actionable wrong. National Park Bank v. L. <&
N. R. R., supra. This conclusion makes it clear the com
plainant is entitled to no specific performance of the con
142
tract of 1929 by mandatory injunction against the agree
ment of 1941.
The same rule of law concerning the necessity for charg
ing facts to show a conspiracy is applicable to the charge
of fraud, as against the Brotherhood and the individual de
fendants. Fraud is never presumed, and the facts upon
which the charge is based must be clearly stated. Winn
v. Winn, 242 Ala 324, 6 So. (2d) 401; Birmingham Trust
& Savings Co. v. Shelton, 231 Ala. 62, 163 So. 593; Broom
v. Douglas, 175 Ala. 268, 57 So. 860; 24 Am. Jur. p. 88.
Certainly the management of the Railroad has as much
right to take into consideration this delicate problem as
does the law-making body of any state in passing laws
looking to the peace and good order of society. The very
object of the Railway Labor Act was to provide for the
public safety an uninterrupted transportation system.
We think a consideration of the facts alleged as to the
Brotherhood leads to the same conclusion we have arrived
at concerning the defendant Railroad. In substance and
effect complainant’s case is rested against the Brotherhood
upon the theory that it was under a duty to give the minority
employees, non-members of the Brotherhood, notice of any
action to be taken which would in any manner detrimentally
[fol. 163] affect their seniority rights. We have expressed
our view that no such duty rested upon it. So considered,
therefore, the charge of fraud amounts largely merely to
an accusation that the Brotherhood is looking largely to
the interests of its own membership to the detriment of com
plainant. Even should this be conceded, yet at the same
time the action of the Brotherhood looks to the welfare of
the majority of the craft, and has the same basic founda
tion that underlies the Road management. It looks to a
compliance with the traditional custom of the Road to have
only white engineers. There is no charge of bad faith or
malice against the complainant or any of his class. 117
A. L. R. 823. The charge is, that by entering into this
latter agreement, which, as we have observed, is in line with
the policy of the Railroad management, the Brotherhood
has fraudulently disrupted complainant’s seniority rights.
True, complainant in this particular case does not seek to
be placed in the promotable class; that is, he does not seek
to be declared in this suit eligible for the position of engi
neer. But our previous discussion discloses that a recog
nition of the principles for which he contends here will ulti-
143
\
mately lead to that end. If the Brotherhood is his confiden
tial agent, and must look to his interest, it must look to his
promotion in the final analysis. Complainant is in the minor
ity group of his craft, and if he suffers any hardship, it is
due to the fact of control of the majority, which can in no
event be considered as a fraud, either in law or fact.
There are numerous instances where individual hard
ships have been suffered for the good of the whole. The
New York Court in O’Keefe v. Local 463, 117 A. L. R. 817,
speaking to this question, said:
“ The question presented upon the appeal is whether
under its constitution and by-laws the union has power
and right to take action reasonably calculated to ad
vance its objects, even through such action involves
interference with the employment of a member who
has committed no wrong and against whom no charges
have been preferred. This Court has frequently sus
tained the right of labor unions to interfere by law
ful means between an employer and his employees who
are not members of the union where the purpose of
such interference is solely to advance the interest of
[fol. 164] the members of the union. We have not been
oblivious of the consequent hardship imposed, at times,
upon individual employers or employees, but for hard
ship to the individual resulting from action reasonably
calculated to achieve a lawful end by lawful means the
Court can give no redress. * * * The objects
sought by a union and the “ unity of action” to achieve
them cannot be attained without some harm to the in
dividual. ’ ’
Another illustration is to be found in the Massachusetts
case of Minasian v. Osborne, 37 L. R. A. NS 179, where a son
lost employment for the reason that he had his father as a
helper. And another, involving the loss of employment by
a married woman, is found stated in Hartley v. Brotherhood
of By. d 8.S. Clerks, supra. The Court observed in this
latter case: ‘ ‘ The Brotherhood had the power by agreement
with the Railroad to create the seniority rights of plaintiff,
and it likewise by the same method had the power to modify
or destroy these rights in the interest of all the members.”
Congress has made no effort to control the matter of seni
ority rights. It has left that to contract between the parties.
That contract has been entered into which detrimentally
144
affects complainant’s seniority rights, but it was made by
Ms representative, and it is in conformity with the uniform
and traditional practice of the Road. It is a lawful contract
entered into a lawful manner, and the facts alleged fail to
show any conduct on the part of the Brotherhood that
creates in complainant an actionable wrong.
In the discussion of this case we have left to one side many
questions presented by the demurrer and argued by counsel
for defendants, some of which may give rise to serious
consideration.
The Shaup case, supra, involved no attempt to charge
fraud or bad faith, and the weight of authority decidedly
supports the view there taken. Grand Int. Brotherhood
of Locomotive Engineers v. Mills, 31 Pac. (2d) 971. There
are numerous authorities, however, tending to support the .
view that a court of equity will lend its aid in protection of
seniority rights which are fraudulently and illegally inter
fered with. 142 A. L. R. 1067. This question, as well as all
[fol. 165] others, becomes one of secondary consideration
in view of the conclusion reached that the bill states no
cause of action in any form. We, therefore, prefer to rest
our decision upon the fundamental meritorious question
sought to be presented.
We are at the conclusion, therefore, that the demurrer
was properly sustained and the decree appealed from is
due to be affirmed. It is so ordered.
Affirmed.
All the Justices concur.
[fol. 166] [Pile endorsement omitted]
I n S upreme C ourt op A labama
[Title omitted]
M otion for S t a y ' of E xecution—Filed Jan. 29, 1944
To the Honorable Chief Justice and Associate Justices of
the Supreme Court of Alabama:
Comes the appellant, Bester William Steele, by his at
torney with consent of the Court first had and obtained
moves the Court to grant an extension of time of sixty days
145
before the execution of the Writ of Fieri Facias in the
above styled case, and for grounds of .said motion sets down
and assigns the following:
1. That additional time is needed to enable Petitioner
to apply for, to obtain and perfect a Writ of Certiorari in
the Supreme Court of the United States.
Signed: Arthur D. Shores, Attorney for the Appelant.
I hereby certify that I have this day mailed a copy of
the foregoing motion to the Honorable James Simpson,
Solicitor for Brotherhood of Locomotive Firemen and En-
ginemen and W. H. Thomas; and White Gibson, Solicitor
for the Louisville and Nashville Railroad, whose proper
Post Office addresses are, Birmingham, Alabama, this 24th
day of January, 1944.
Signed: Arthur D. Shores, Attorney for the Appellant.
[fol. 167 [ In th e S upreme Court oe A labama
[Title omitted]
Order S taying E xecution—Jan. 29, 1944
Upon consideration of the petition of Appellant, Bester
William Steele, this day filed, it is ordered that the peti
tion be and the same is hereby granted, and the execution
of the judgment rendered by this Court on January 13th,
1944, in the above styled cause be and the same is hereby
stayed for 60 days, to enable petitioner to apply for, obtain
and perfect a Writ of Certiorari in the Supreme Court of
the United States.
It is further ordered, if the Petition for the Writ of Cer
tiorari is filed in the Supreme Court of the United States
within the said 60 days, that said stay remain in force and
effect until said cause is disposed of by the Supreme Court
of the United States.
10—1192
146
[fol. 168] Co m p l a in a n t ’s E x h ibit “ A A ”
Agreement Between the Louisville & Nashville Railroad
and Its Locomotive Firemen and Hostlers in Accord with
Mediation Agreement, Effective March 31, 1927, Arbitra
tion Award, Effective May 1, 1927, and Supplementary
Agreement, Effective March 1, 1929
Issued March 1, 1929
[fol. 168-1] Article 25
Assignments and Pool Service, Regulating Mileage, Etc,
1. When assigned to regular runs they will not be re
quired to perform other service, that they do not stand to
protect, except in cases of emergency, and when so used,
[fol. 168-2] will be notified, as far as possible, in time to
get proper rest;
2. When assigned to regular runs and held off to perform
special service they will be paid not less than the amount
they would have earned had they remained on their regular
runs. (This not to apply to men in freight service, desig
nated to do extra passenger work.)
3. When on regularly assigned runs they will fill their
runs regardless of the engine used. This to apply to cases
of changing or cutting out engines on line of road unless
special instructions are issued to the contrary.
4. Those assigned to first pool will handle the unassigned
freight service and fill vacancies in fast freight and pas
senger service, as provided for in Sections 17, 18 and 19
of Article 26, and such other work as may be designated.
5 (a). When not assigned to regular runs they will be
run first in first out in class of service assigned. Under the
first in first out rule, men in the same class of service will
take their turns out in accordance with their arrival at the
terminal yard board as shown on the roundhouse register.
(b) When a man used in yard service is relieved after a
man in road service passes the yard limit board, but before
he registers in at the roundhouse, or where both register
in at the same time, the man used in yard service will
stand first out as between them. This applies also to fire
men relieved from hustling service.
6. In case of doubleheading, men assigned to regular runs
will be used on head engine; where doubleheading in pool
service, the man standing first out will be used on head
engine. When engines are cut out between terminals, the
man on the head engine will be considered in charge of the
train and remain on the head engine regardless of engines
[fob 168-3] used. When engines are cut in between termi
nals, the man in charge of the train will take the head engine.
7. Men holding permanent assignments which they se
cured by seniority wishing to voluntarily surrender same
will be required to give ten (10) days notice, remaining on
run or job, unless they lay off, until rebulletined.
8. The time set for departure of the train upon which
men are to be used in service, or upon which they are to
deadhead, will govern as to how they will be run out, (pre
paratory time not to be taken into consideration).
When two or more men in the same class of service are
to be used, the following will govern, subject to Section 8:
8 (a). When two men are called to depart at the same
time, one for a road trip, the other for a yard engine, the
man first out will be used for the road trip, and the man
second out for the yard engine.
(b) When two men are called to depart at the same time,
one in passenger service, the other in freight service, the
man first out will be used in passenger service.
(c) When two men are called to depart in road service
at the same time, on different trains, one to perform service
and the other to deadhead, the man first out will be used
to deadhead and the man second out will be used on the
service trip.
(d) When two men are called for the same train, one to
handle the train, the other to deadhead, the man first out
will handle the train, the other deadhead.
(e) When two or more men in the same class of service
are to deadhead on the same train, they will be handled
in the following order:
147
148
1. To an intermediate point for return service to the
home terminal:
[fol. 168-4] Note—Where more than one man is dead
headed for such service, the man first out will be dead
headed to the nearest point; the man second out to the
next nearest point, and so on. If deadheaded to the
same point, they will take their turns out in the order
they stood when called.
2. To the away-from-home terminal, or for service
to the away-from-home terminal:
Note—When two or more men start deadheading on
the same train en route to the opposite terminal, but
one or more of them are cut out at an intermediate
point to perform service to the opposite terminal, the
man last out will be cut out at the first point; the man
next out at the second point, and so on.
3. For service at, or between intermediate points:
Note—Where more than one man is deadheaded for
such service, the man first out will be deadheaded to
the nearest point, the man second out to the next nearest
point, and so on. If deadheaded to the same point they
will take their turns out in the order they stood when
called. Should they go on duty at the same time, the
man who stood first out will have the preference of runs.
4. When one man is to be deadheaded from the away-
from-home terminal to the home terminal, and another
to an intermediate point, the man first out will be dead
headed to the home terminal. If more than one man
is to be deadheaded to intermediate points, the man first
out will be deadheaded to the nearest point, the man
second out to the next nearest point, and so on.
(f) When two or more men are doubleheaded or dead
headed through to the opposite terminal, they will take
their turns out in the same position that they were in when
called.
[fol. 168-5] (g) When a man deadheads in from an inter
mediate point, the man pulling the train will be considered
first out.
(h) When two or more men deadhead in from an inter
mediate point on the same train, they will take their 'turns
149
out as per Article 25, Section 5, of the General Agreement,
as between themselves, according to the time relieved from
the last service performed, but behind men who may have
deadheaded through from the initial terminal on the same
train, this information to be shown on register.
9. (a) When men assigned to the same class of service
are doubleheaded on the same train and one engine or man
is to be cut out at an intermediate point, the man who stood
second out will be cut out and the man who was first out
will handle the train through, as the case may be, to the ter
minal regardless of engine used.
(b) When men on runs to which they are assigned, or
in the class of service they stand to protect, have engine
failures on line of road and a relief engine is sent in charge
of a second pool man, the man in charge of the run will
change engines and complete the trip, the second pool man
taking charge of the disabled engine; when for any cause,
a first pool man is used to take a relief engine to take the
place of a disabled engine of a train in charge of another
first pool man, they will not change engines but the man
in charge of the relief engine will complete the trip and
the man in charge of the disabled engine will remain with
his engine.
10. Firemen will be assigned to regular jobs in yard
service by bulletin regardless of engine used.
11. When bulletining yard jobs they will show, as far as
possible, the nature of the work, district and number of
days per week to be worked, and will be used, so far as
practicable, in the district and on the work to which as
signed.
[fol. 168-6] 12. When assigned to jobs bulletined to work
a certain number of days per week and annulled for four
successive days or four days in the aggregate in a thirty-
day period, or when engines are worked as much as four
days more than provided for during a thirty-day period,
they will be considered as new jobs and rebulletined ac
cordingly.
13. Jobs to which one or more men are assigned will
only be rebulletined when the time for going to work or
being relieved has been changed as much as two hours as
150
long as worked in tire same district or terminal. Where
the point for going on duty or being relieved is changed
as much as one-half mile, such jobs will be rebulletined.
When extra jobs are worked as much as six consecutive
days, they will be considered regular assignments and be
bulletined accordingly.
14. Where new jobs are created, or a second crew as
signed to a job to which only one crew has been assigned,
such new job or second shift will be bulletined.
15. Men displaced on account of their jobs being rebul
letined, under the above rules, will have the right of a dis
placed man to claim any job the seniority rule entitles them
to.
16. (a) Those assigned to second pool will be used to
fill vacancies of first pool men, assigned runs not otherwise
provided for and such other work as may be designated.
(b) When a first pool man is used to fill a vacancy in
assigned passenger service, the vacancy should be left in
first pool board, to be filled by second pool man.
(c) When first pool men are used to doublehead regular
passenger trains or to handle extra passenger trains, in
cluding extra sections, officers specials, troop trains, etc.,
this will be considered as regular first pool work and there
will be no vacancies left on the board.
[fol. 168-7] 17. When firemen are needed for extra serv
ice operating out of points where pool or extra crews are
not carried, men will be deadheaded from terminal where
second pool or extra boards are maintained.
18. (a) When a first pool man is laying off and reports
for duty, he will take his turn, if on the board. If his turn
is out, he will take the turn of the man representing him
on arrival if within 36 hours from the time he departed. If
the turn does not arrive within 36 hours he may take the
register at that time.
(b) Men who report for duty and lay off again before
performing any service on their runs or jobs will not be
considered as having reported for duty. The man who is
filling the vacancy and entitled to hold same under the
Agreement will be continued in the vacancy just the same
as though the regular man had not reported, unless he is
151
called for other service in the meantime, in which case the
vacancy will be refilled as if a new vacancy. (This, how
ever, would not break the continuity of the vacancy.)
(c) First pool men who have been filling vacancies in
other service, returning after being held out of service to
attend court or investigations, or deadheading in under pay
or by necessity, etc., will take their turns according to the
register.
For rule for handling of pool crews held out of service
at awav-from-home terminals to attend investigations, see
Article 31.
19. Those assigned to second pool, whether reporting for
work after being off for any cause or coming in off a run,
except where filling vacancies of ten days or more, will take
their turn according to the register.
20. When a first pool man is used for service that a sec
ond pool man stands to protect on account of there being
no second pool man available, it will not be considered as
creating a vacancy in the first pool for forty-eight hours, and
second pool man will not, therefore, be used to fill the va-
[fol. 168-8] eancy until after the expiration of forty-eight
hours,. Under such circumstances when a first pool man is
used to protect second pool work on work trains or outlying
runs he will be relieved at his request by second pool man
as soon as possible, with the understanding that no extra
or additional expense for deadheading will be incurred
under such circumstances.
21. When a vacancy becomes first out in the first pool,
and there is no second pool man to fill it at the time the
train is ordered, the vacancy will be left first out until
there is an available man to fill it, first pool men running
around same.
22. When conditions do not justify the operation of first
and second pool, the second pool may be abolished by mu
tual agreement between the division officers and the local
chairman.
23. When practicable they will not be required to make
more than one turn-around trip out of the away-from-home
terminal without being run through to their home termi
nal.
152
24. (a) In regular and extra passenger service a suf
ficient number of engineers and firemen will be assigned to
keep the average mileage, or equivalent thereof, between
4,000 and 4,800 miles per month.
(b) In assigned, pool or chain gang freight, or other
service paying freight rates, a sufficient number of engi
neers and firemen will be assigned to keep the average
mileage, or equivalent thereof, between 3,200 and 3,800
miles per month.
(c) On road extra lists a sufficient number of engineers
and firemen will be maintained to keep the average mile
age, or equivalent thereof, between 2,600 and 3,800 miles per
month; provided that when men are cut off the working-
lists and it is shown that those on the extra lists are aver
aging the equivalent of 3,100 miles per month, men will be
[fol. 168-9] returned to the extra lists if the addition will
not reduce the average mileage, or equivalent thereof, be
low 2,600 miles per month.
(d) In assigned yard service, regulation will be made
by requiring each regularly assigned man to lay off when
he has earned the equivalent of 35 days per month.
(e) In extra yard service, a sufficient number of engi
neers and firemen will be maintained to keep the average
earnings between 26 and 35 days per month; provided,
when men are cut off the lists and it is shown that men are
averaging the equivalent of 31 days per month, men will
be returned to service, if the addition will not reduce the
average earnings below 26 days per month.
(f) Local Chairmen of both organizations will be fur
nished record of the earnings of engineers and firemen in
the first and second pools and yard extra lists each fifteen
(15) day period, and of regularly assigned engineers and
firemen each thirty (30) day period. Regulations of lists
will be made according to those periods except where local
agreements provide otherwise for either engineers or fire
men, in which event record of earnings will be furnished
for the period agreed upon.
(g) Should an engineer or fireman make the maximum
mileage as prescribed in this Article, he will not be per
mitted to make an additional trip during that month. If,
153
however, any engineer or fireman exceeds his maximum
miles or days, as stipulated in the preceding paragraphs,
in any month, such excess will be charged to his mileage
or days in the following month.
Note—Engineers or firemen used in combination service
will be permitted to make the equivalent of 3,800 miles in
freight service. This shall not be construed to modify the
rule regulating mileage of men in extra service as covered
by Section (c).
[fol. 168-10] (h) In regulating the working lists in the
respective classes of service, each list will be handled sepa
rately. In the regulation of mileage, neither the minimum
nor the maximum is guaranteed.
(i) When, from any cause, it becomes necessary to reduce
the number of engineers on the.engineers’ working list on
any seniority district, those taken off, may, if they so elect,
displace any fireman their junior on that seniority district
under the following conditions: Reductions when made shall
be in reverse order of seniority. No reductions will be
made so long as those in extra passenger service are averag
ing the equivalent of 4,000 miles per month; in pool, chain
gang or other unassigned service paying freight rates, are
averaging the equivalent of 3,200 miles per month; on road
extra lists are averaging the equivalent of 2,600 miles per
month, and on the yard extra list are averaging the equiva
lent of 26 days per month.
(j) When hired engineers or firemen are laid off on ac
count of reductions in service, they will retain all seniority
rights, provided they return to actual service within thirty
(30) days from the date their service was required.
Article 26
Seniority and Filling Vacancies:
1. Seniority will be established in the following manner:
The oldest fireman in road service will have the preference
of runs and promotion on the seniority territory to which
assigned, when competent and worthy, in accordance with
the following rules: These rules apply to firemen in yard
service as between themselves except at points where road
seniority and yard seniority is interchangeable.
154
2. Firemen shall rank on the firemen’s roster from the
date of their first service as firemen when called for such
[fol. 168-11] service except as provided for in Section 12,
and when qualified shall be promoted to position as engineers
in accordance with the following rules:
3. Firemen shall be examined for promotion according
to seniority on the firemen’s roster and those passing the
required examination shall be given certificates of qualifi
cation and when promoted shall hold their same relative
standing in the service to which assigned.
4. If for any reason the senior eligible fireman or engineer
to be hired is not available, and a junior qualified fireman is
promoted and used in actual service out of his turn, what
ever standing the junior fireman so used, establishes, shall
go to the credit of the senior eligible fireman or engineers to
be hired, provided the engineer to be hired is available and
qualifies within 30 days. As soon as the senior fireman or
engineer to he hired is available, as provided herein, he
shall displace the junior fireman who shall drop back into
whatever place he would have held had the senior fireman
to be promoted or the engineer to be hired been available
and the junior fireman not used. (Qualifications as referred
to herein is not intended to include learning of road or
signals.)
5. As soon as a fireman is promoted, he will be notified in
writing by the proper official of the Railroad of the date of
his promotion, and unless he files a written protest within
60 days against such date, he cannot thereafter have it
changed. When a date of promotion has been established
in accordance with regulations, such date shall be posted,
and if not challenged in writing within 60 days after such
posting, no protest against such date shall afterwards be
heard.
6. No fireman shall be deprived of his rights to examina
tion, nor to promotion in accordance with his relative
standing on the fireman’s roster, because of any failure to
take his examination by reason of the requirements of the
Railroad’s service, by sickness or by other proper leave of
[fol. 168-12] absence; provided, that upon his returp he
shall immediately he called and required to take examina
tion and accept proper assignment.
155
7. The posting of notice of seniority rank, as per Section
5 shall be done within ten days following the date of pro
motion and such notice shall be posted on every bulletin
board of the seniority district on which the man holds rank,
and both the Local and General Chairmen of the Engineers
and Firemen furnished a copy.
8. Firemen having successfully passed qualifying exam
ination shall be eligible as engineers. Promotion and es
tablishment of a date of seniority as engineer, as provided
herein, shall date from the first service as engineer, when
called for such service, provided there are no demoted en
gineers back firing. No demoted engineer will be permitted
to hold a run as fireman on any seniority district while a
junior engineer is working on the engineer’s extra list, or
holding a regular assignment as engineer on such seniority
district.
Note—Where promotion is to road service only, promo
tion and establishment of seniority date as road engineer
will obtain.
9. On seniority district where firemen are required to
fire less than three years, all engineers will be hired;
If required to fire three and less than four years, one pro
moted to one hired;
If required to fire four and less than five years, two pro
moted to one hired;
If required to fire five and less than six years, three
promoted to one hired;
If required to fire six and less than seven years, four
promoted to one hired;
If required to fire seven and less than eight years, five
promoted to one hired.
[fob 168-13] On seniority districts where firemen are re
quired to fire eight years or more, all engineers will be pro
moted.
The foregoing will not prevent committees from having
discharged engineers re-employed or reinstated on their
former seniority districts at any time, and the seniority
standing will be determined by the Management and the
Committee representing the engineers.
10. If the engineer to be hired is not available when
needed and the senior qualified fireman is promoted, the
date of seniority thus established shall fix the standing of
156
the hired engineer, who, if available and qualified within
30 days from date senior qualified fireman is promoted,
will rank immediately ahead of the promoted fireman. The
promoted fireman will retain his date of seniority as en
gineer and will be counted in proportion of promotion.
11. In case an engineer is hired and used in actual serv
ice, when, under requirements of Section 9, a fireman, or
firemen, should have been promoted, the date of seniority
thus established shall fix the standing of the senior qualified
fireman or firemen, due to be promoted, provided he, or
they, are eligible and qualify within 30 days, who shall rank
immediately ahead of the hired engineer on the engineer’s
seniority list. The hired engineer will retain his date of
seniority and be counted in proportion of engineers to be
hired.
12. The seniority date of the hired or transferred en
gineer shall be the date of his first service as engineer, ex
cept as provided in Sections 4, 10 and 11 of this Article.
Engineers hired, or permanently transferred from one
seniority district to another shall be given a date of senior
ity as firemen corresponding with their date as engineers.
13. Firemen, except those borrowed for temporary serv
ice, will be considered permanently assigned to the seniority
district where employed on December 5, 1921. Firemen
transferred from one seniority district to another forfeit
[fol. 168-14] all seniority on the district transferred from
and assume seniority on the district transferred to from the
date of their first service after being transferred.
Firemen transferred from their regular seniority district
to another for temporary service, who, while on such tem
porary assignment, file application for permanent transfer,
with the Master Mechanic having jurisdiction over that dis
trict, within sixty days from the date of their first trip after
having been temporarily transferred, will, if transfer is
authorized, establish seniority on the new district as of the
date of their first trip thereon and forfeit all seniority on
the district from which transferred.
If, under the foregoing circumstances, application for
permanent transfer is not filed within the specified limit
period, however, is filed thereafter, seniority on the new
district will be established as of the date application is filed
157
with the Master Mechanic provided the transfer is au
thorized.
Engineers transferred for temporary service will not be
continued in service away from their regular seniority dis
tricts after a sufficient number of firemen, assigned to the
seniority district where such engineers are being used, be
come available for promotion and qualified for position as
engineer to relieve them.
Engineers transferred will be counted as hired men so far
as the proportion of engineers to be hired to firemen pro
moted is concerned. Therefore, if an engineer is trans
ferred for permanent service at the time when, under the
requirements of Section 9, Article 26, a fireman or firemen
should have been promoted, he will establish a date of sen
iority of the senior qualified fireman or firemen due to be
promoted who will rank immediately ahead of the trans
ferred engineer.
14. Boad seniority districts will be grouped with yard dis
tricts, as agreed upon and handled in the following manner:
[fol. 168-15] 15. Eoad firemen’s seniority will be estab
lished in yard service, effective September 1, 1919, in the
yard district grouped with that road seniority district.
16. (a) Firemen employed in yard service previous to
September 1, 1919, who are qualified, or may qualify for
road service, will be given the preference of advancement
to road service on the road seniority district grouped with
the yard where they are employed, in preference to men
employed since that date, and will assume seniority in road
service from September 1, 1919, in the order of their rela
tive standing in yard service, where they qualify as soon
as given an opportunity to do so. Those who fail to make
application for road service, or fail to qualify when given
an opportunity to do so, including those who have become
disqualified, employed or re-employed for yard service only,
will be known as “ Yard Fixtures,” but this will not pre
vent them from making application thereafter for road
service if they are able to meet the Bailroad’s requirements,
in which case, they will, if able to qualify for road service,
assume road seniority from the date they qualify for such
service. Firemen, employed for service after September 1,
1919, will be given seniority in both road and yard service
from the date of their first service after employment.
158
Note—It is understood that fixtures in yard and hostling
service shall not be displaced entirely out of the service by
men holding road seniority.
(b) Firemen will not be employed or re-employed for
yard service only, and hostlers will not be employed or re
employed for hostler service only, except by concurrence
with the Committee, and then only in accordance with the
provisions as hereafter outlined.
The above rules were revised as they now read on March
31, 1926. The following rules will govern firemen employed
for yard service only and hostlers employed for hostler
[fol. 168-16] service only between September 1, 1919, and
March 31, 1926, or who have been thus employed by mutual
concurrence since March 31, 1926.
(c) That in the reduction of forces, when a man with
greater seniority is cut off, a fireman employed or re-
employed for yard service only, or a hostler employed or
re-employed for hostler service only since September 1,
1919, may be displaced by a senior man.
(d) That a fireman employed or re-employed for yard
service only since September 1, 1919, thus displaced from a
regular job at a point where no extra yard board is main
tained, will be given preference over firemen on the road
extra list in filling temporary vacancies in yard service until
his seniority entitles him to a regular job, or in other words,
an extra yard board would be established for him alone and
he would be given preference in filling all vacancies of less
than 30 days in the same manner as provided in Section 26,
Article 26 of the Agreement.
(e) That a fireman employed or re-employed for yard
service only since September 1, 1919, thus displaced from
a regular job at a point where an extra yard board is main
tained, will be placed on the extra yard board and take his
turn with other men on that extra board until such time as
his seniority entitles him to a regular job, provided his
seniority as of the date he was actually employed entitles
him to a place on the board, otherwise he will not be entitled
to go on the extra board; further, should his seniority en
title him to a place on the extra board and later it becomes
necessary to cut the board, seniority will govern in making-
reductions.
159
Note—Sections (d) and (e) apply also to hostlers em
ployed or re-employed for hostler service only since Sep
tember 1, 1919, and who have been thus displaced, that is,
the same arrangement will apply as to placing them on extra
boards and they will be given preference in filling vacancies
of less than 30 days as hostlers as provided in Section 35,
Article 26.
[fol. 168-17] (f) That the revision of the rules does not
affect the status of men holding seniority as of September 1,
1919, who have been reinstated with restrictions that they
are to be used in yard or 'hostler service only, or who may
hereafter he reinstated under the same conditions.
17. Temporary vacancies in passenger service of less
than ten days, will be filled by firemen standing first out in
the class of service designated (on their respective divi
sions) to do the extra passenger work or until the regular
man reports, if earlier. But when it is known the vacancy
will he for ten days or longer, or if it has been for ten days,
the oldest firemen (in point of seniority) in the class of
service designated to do the extra passenger work may be
assigned to the run and hold it until the regular man re
ports for duty or until it is declared vacant, when it will
be advertised in the usual manner.
18. All vacancies in through passenger service will be
filled by fast freight firemen (where assigned fast freight
service is maintained). Vacancies in local passenger serv
ice and all extra passenger runs, including additional sec
tions, doubleheading, troop trains, etc., will be filled by first
pool men.
19. When there is a vacancy of less than ten days in fast
freight service, the fireman standing first out in the first
pool will fill it for one round trip, taking his turn according
to register on his return. When it is known that a vacancy
will be for as much as ten days, or when a vacancy has
existed for ten days, the oldest man in the first pool may be
assigned to the vacancy and hold same until the regular man
reports, or until the run is declared vacant when it will be
advertised and filled in the usual manner.
Note (a)—“ When it is known that a vacancy will be for
as much as ten days’ ’ refers to vacancies where it is known
in advance that the vacancy will be for ten days, such as
160
[fol. 168-18] vacancies pending- assignment by bulletin,
vacancies caused by men requesting to be absent ten days or
longer, etc. When a man does not specify that he desires
to be absent as much as ten days it does not constitute a
ten-day vacancy until after ten days elapse.
When it is known that a vacancy will be for ten days, or
when it has existed for ten days, the senior man on the work
ing list at the home terminal in the class of service desig
nated to protect the vacancy will be notified. Should he not
be within reach, or should he decline it, the senior man mak
ing application will be assigned, subject to being displaced
by an older man. In the event the senior man at the home
terminal does not claim the vacancy, a memorandum will be
placed on bulletin board at roundhouse at the division home
terminal, calling attention to it unless some other arrange
ment of this kind is already in effect.
The man entitled to fill the vacancy may be assigned to it
at any time during the duration of the vacancy, regardless
of the number of days which have elapsed since the vacancy
occurred.
Should the oldest man entitled to a vacancy decline it, he
is not privileged to displace a junior man who may be as
signed to the vacancy.
Note (b)—Second pool men will be handled in the same
manner with respect to vacancies in service which they
stand to protect.
20 (a) When it is known that any assigned run will be
vacant for 30 days, or when it has been vacant 25 days, it
will be posted for a period of five days and the oldest fire
man making application for same will be placed on the run
and hold it until the regular man reports, or the run is de
clared permanently vacant, when it will be bulletined in the
usual manner. All permanent vacancies or new runs
covered by the agreement will be bulletined for a period of
[fol. 168-19] ten days, and when practicable, such bulletins
posted ten days prior to the date assignment is to be made.
Note—Successful applicants for runs which have been
bulletined will be relieved from the run they are holding as
soon as they become available after new assignment is
made, and it is practicable to relieve them, providing that
the service bid in has been inaugurated.
161
(b) Firemen, off on leave of absence when runs are bulle
tined will be entitled to make application for such runs
within five days after reporting for duty. Where more than
one run in a pool of runs working first in, first out, are ad
vertised during their absence, they can displace only the
junior man on the runs which were bulletined.
(c) When it is known in advance that a work train will
be needed for as many as ten days, or when a work train has
been in service for as many as ten days, it will be considered
as a temporary vacancy and advertised for a period of five
days, and the oldest fireman making application for same
will be placed on the run.
When a work train has been on for a period of 80 days,
it will be re-bulletined for ten days as a permanent vacancy.
Note—It is understood that should a man give up a tem
porary vacancy on a work train, the same conditions apply
as apply in connection with other temporary vacancies
under Section 20 (a) of this article. Further, that a man
holding a temporary vacancy on a work train will remain
on it pending its being re-bulletined as a permanent
vacancy.
(d) All bulletins will expire at 12:00 o ’clock noon, except
on Sundays and Holidays.
(e) Men working at outlying points who do not have
access to bulletin boards will be furnished with a copy of
all bulletins.
[fol. 168-20] 21. All vacancies caused by reason of filling-
vacancies of ten days or more on other runs or in other
service will be considered as stated vacancies, of ten days
or more, and handled as such. Firemen filling vacancies of
ten days or more will be considered bona fide men in that
class of service.
22. When any run is changed to the extent that it is oper
ated out of different terminals, the mileage lengthened or
shortened to the extent of twenty miles per day, or the
schedule compensation on runs paid under Article 3, Section
(a), changed to the equivalent of twenty miles per day, the
arriving or departing time changed to the extent of three
hours, or when a run is changed to operate six days per week
instead of seven, or vice versa, it will be considered as a
11—1192
162
new run and bulletined as such. When a regular run is an
nulled as much as five days consecutively, or ten days in the
aggregate, within a thirty-day period, the man holding such
run may, if he so elects, claim any other run that the senior
ity rule will entitle him to, hut should he claim another
assigned run, he will forfeit his rights to the run he formerly
held, which will he re-bulletined when re-established.
23. In case a run is temporarily annulled the man holding
such a run may, if he so elects, work in the pool or extra
service for a period of not to exceed 30 days without for
feiting his right to such run, but should he displace another
assigned man, or should such run not be re-established
within 30 days, he must then assert his claim to such run as
he may be entitled, and the run he formerly held will be re
bulletined if re-established.
24. Men displaced from runs to which they were assigned
by seniority will have the privilege of claiming any run held
by a younger man. Displaced men exercising their seniority
rights to a pool of runs must displace the youngest regu
larly assigned man in the pool or the man representing him.
[fol. 168-21] Note—When claiming first or second pool,
they will take the register and the junior man will he taken
out of the board. If the junior man is on line of road, he
will be taken out of the board on his return to the terminal.
Note—This section does not apply to the Birmingham
Mineral, where such questions will be decided on the merits
of each individual case, between the Firemen’s Committee
and the Local Officials.
25. When a run is changed to the extent that it is consid
ered a new run, requiring it to be re-bulletined, the man
holding such run will have the privilege, if he so elects, of
remaining on it until the expiration of the bulletin, or of
claiming any other run that is vacant and bulletined at that
time until assignment is made unless such run is claimed
hy an older man who stands to protect such service, with
out forfeiting his right as a displaced man. This rule
will also apply to men displaced on account of their runs
being taken off or claimed by older displaced men.
Note—Men will only be permitted to fill one bulletined
vacancy under this rule, except that if displaced from such
163
a vacancy before expiration of the bulletin, they will be
privileged to claim one other.
26 (a) Where extra boards are maintained vacancies on
yard engines or extra engines of less than ten days will be
filled by the men standing first out on the extra board from
day to day. Vacancies of ten days or more may be filled
by the oldest extra man for a period of thirty days, or
until the regular man reports, if earlier, except that men
assigned to second shift will be entitled to claim vacancies
of ten days or more on first shift, and men assigned to third
shift will be entitled to claim such vacancies on either first
or second shift, except that they will not be permitted to
displace a senior man who may be filling or claims the
vacancy.
[fol. 168-22] (b) At points where no extra board is main
tained, men assigned to second shift will be entitled to claim
vacancies on yard engines of ten days or more and up to
thirty days on first shift, and men assigned to third shift
will be entitled to claim such vacancies on either first or
second shift, provided they file written notice with the
Mechanical Department representative at the outlying point
before a man is ordered to protect the orignal vacancy.
27. Eoad firemen will not be used in yard service when
there are available extra yard men for such service. When
there are no available extra yard men, or at points where
extra yard boards are not maintained, road extra men will
be used in their turns to protect vacancies or extra yard
service for one day or shift, and will be run according to
the register. When necessary to use first pool men to pro
tect vacancies in yard service or extra yard service on divi
sions where both a first and second pool is maintained, they
will be used in their turn for one day or shift without for
feiting their turn on the road list, and will be run first out
after having the required rest.
Note—The above rules apply to both yard and road serv
ice where applicable. Any questions pertaining to the han
dling of men, filling vacancies, etc., not covered by the fore
going rules, may be temporarily provided for by local ar
rangement between the local officials and Local Chairman,
subject to approval of the general officials and General
Chairman.
12— 1192
164
28. Except in case of emergency, firemen will not be nsed
off the division to which they are assigned. When it is
necessary to borrow them for temporary service from one
division to another they will be returned to their home
division before additional men are employed, promoted
or transferred for service thereon.
29. Seniority lists will be revised and posted at terminals
in January and July of each year, and a copy furnished the
[fol. 168-23] Local and General Chairman of the Engineers’
and Firemen’s Committees. In no case will any change be
made in the seniority standing of firemen and hostlers after
it has stood without written protest for two years.
30. Engineers, firemen and hostlers appointed to official
positions with the Louisville & Nashville Railroad or with
the Brotherhood of Locomotive Firemen and Enginemen
will not forfeit their seniority on their divisions.
31. Firemen will not be promoted to positions as engi
neers unless they have had at least three years’ road ex
perience. They will be required to fire at least three months
in freight service within a reasonable length of time prior
to the date of their promotion where they are promoted
from other than main line freight service. Where they
have been employed as firemen in main line freight service
during the year prior to their promotion they will only be
required to fire freight for one month.
32. Hostlers in the service prior to January 20, 1919, will
hold priority rights and have the choice of such positions
over hostlers thereafter assigned to such service, in order
of their ages in the service as hostlers.
33. New positions created or permanent vacancies to be
filled as hostlers, will be filled from the ranks of the fire
men on that division or seniority district, the oldest quali
fied fireman to have the preference, except as hereinafter
provided for. Assignments to be made by bulletin.
34. Exceptions may be made to Section 33 hereof by
mutual agreement, in order to take care of disabled or
disqualified engineers or firemen in positions of hostlers
on the division where they were previously employed or
held seniority rights; such exception's to be made only after
conference and mutual agreement between the’ officials and
165
[fols. 168-24-168-29] the committee representing the firemen
and hostlers.
35. Temporary vacancies of less than ten days of hos
tlers will be filled by the fireman first out in the first pool
who is qualified. Vacancies of ten days or more may be
filled by the oldest first pool man who is qualified. Vacancies
of 30 days or more will be bulletined for the oldest qualified
fireman or hostler making application for same.
36. Wherever electric or other power is installed as a
substitute for steam, or is now operated as a part of this
system on any of the tracks operated or controlled by the
railroad, the locomotive firemen shall have preference for
positions as firemen or helpers on electric locomotives; but
these rights shall not operate to displace any men holding
such positions on the date of issuance of this agreement.
* * * * * * *
[fol. 168-30] Article 31
Board of Inquiry and Discipline:
(a) Firemen, hostlers and helpers will not be demerited,
discharged or otherwise disciplined without just cause.
(b) When it appears necessary to discipline a fireman or
hostler by demerit or discharge, he will be notified in writ
ing of the cause therefor, within ten days after knowledge
of such cause comes to the officer or officers of the railroad
having authority in such case, and within ten days after the
notification there will be an investigation conducted by the
proper officer or officers of the railroad, at which all evi
dence in the case will be submitted. The party so notified
will be permitted to attend the investigation; to have such
witnesses as he may desire to testify; to hear all evidence
and to be represented by the Chairman of the Local Com
mittee of his organization and/or by fellow employes of
his own selection.
(c) A proper record of the case will be made and certified
to on the part of the railroad and on the part of the party
subject to discipline in connection therewith, and the record
will be made the basis for administering discipline, or of
appeal to a higher officer.
[fol. 168-31] (d) Within ten days after the close of the
investigation unless further time is mutually agreed upon,
166
the proper officer will notify the party in question of the
decision and action. If the decision is unsatisfactory, the
party in question has the right to appeal to the Director of
Personnel, except that in cases pertaining exclusively to
mechanical matters, the appeal will be made through the
Superintendent of Machinery.
Note It is understood that Section (e) and understand
ings reached in connection with this article, as covered by
Assistant General Manager’s letter of July 23, 1925, are
subject to the same understanding being retained which
has been in effect for many years past, that is, that the in
vestigation will not be considered as closed until the
papers have been approved by the Management.
(e) When an employe has been disciplined and desires
to appeal, he or his representative will, upon application,
be furnished with a copy of all statements taken at the
investigation.
_(f) If the discipline administered is not sustained, it
will be cancelled, and the party in question will be paid for
any time lost by him resulting from the investigation or
action taken.
Note—This section applies only where a man is held out
of the service or taken out of the service on account of his
responsibility, and does not refer to loss of time on account
of being held off of his run to attend investigation
(g) Firemen, hostlers and outside hostler helpers held
out of the service to attend investigations of cases in which
they are not held responsible, thereby losing a run or a
day’s work, will be paid as follows: Firemen assigned to
regular runs will be paid for time lost; when in "pooled,
chain-gang or extra service they will be paid $6.15 for each
calendar day held; outside hostlers will be paid $6.27, inside
[fol. 168-32] hostlers $5.63 and outside hostler helpers $5.07
for each calendar day so held.
Note—Payments under this section do not apply to men
not losing any time, to men who are held responsible, or for
deadheading to attend investigations.
Payments to men assigned to regular runs or jobs for
time lost will include overtime they would have earned on
their run or job.
167
Chain-gang or extra men held out of service to attend
investigation will mark up at the foot of board after being-
released from the investigation, and will be paid the amount
specified for each calendar day held off, a calendar day
being from midnight to midnight. Examples—
A chain-gang fireman stands to go out at 9:00 A. M.
He is held off to attend investigation at 10:00 A. M. Inves
tigation is concluded at 3 :00 P. M. and he is released. If
not held responsible, he is entitled to the amount specified
for one calendar day. Should the investigation not be con
cluded on that day and he is held and required to report on
the following day, and relieved at 11 :0jQ A. M ., he is entitled
to pay for two calendar days at the rate specified.
A chain-gang fireman stands to go out at 6 :00 P. M.; is
held off his run to attend investigation the following day
and is released at 11:00 A. M. If not held responsible he is
entitled to pay for two calendar days at the rate specified.
The above does not apply when they are held off their
run while laying over at an away-from-home terminal, pay
ment under this condition to be made on run around basis.
(This refers to chain-gang crews*)
[fo l. 168-33] A rticle 32
Right to make and interpret contracts:
(a) The right to make and interpret contracts, rules,
rates and working conditions for locomotive firemen and
hostlers is vested in the regularly constituted Committee of
the Brotherhood of Locomotive Firemen and Enginemen
and the General Officials of the Railroad.
Representation:
(b) The right of any engineer, fireman or hostler to have
the regularly constituted Committee of his organization
represent him in the handling of his grievances, under the
recognized interpretation placed upon the schedule involved
by the officials of the Railroad and the General Committee
making the same, is conceded.
Construction and general rulings:
(c) General rulings or interpretations as to the proper
construction of this Agreement will not be made except in
168
conference between the General Officials of the Railroad
and the General Committee or General Chairman. When
such rulings or interpretations are made, a copy of same
will be furnished to the parties affected and the General
Chairman.
(d) Interpretations of the United States Railroad Ad
ministration will apply to rules covered by Supplements
Nos. 15 and 24, unless mutually agreed to the contrary.
(e) Local officials will not enter into local agreements
with local committees or with any individual fireman or
hostler in conflict with this Agreement, without the ap
proval of the General Officials and General Chairman.
[fols. 168-34—168-40] Grievances:
(f) Local grievances and differences of opinion shall be
taken up with the division officials by the duly authorized
representatives of the men. Failing to be adjusted, they
will be referred to the General Officials. When an appeal
is to be taken to the General Officials, however, division
officials will be advised to that effect, in writing, in order
that their data may be sent to the General Officials for their
use in considering the case.
(g) Local grievances shall be presented to the division
officials in writing and they will make reply, in writing,
within a reasonable time.
[fol. 168-41] A rticle 43
.Duration of agreement:
The rates, rules and working conditions as provided
herein, shall be continued in effect, subject to thirty days
written notice my either party.
For the Louisville & Nashville Railroad, John Bose,
Director of Personnel. For the Firemen and
Hostlers, W. G. Metcalfe, General Chairman,
Brotherhood of Locomotive Firemen and Engine-
men.
[fol. 169] Original Exhibit No. I : which was attached to
and made a part of the Substituted Amended Bill:
. [Original Exhibit No. I is the same as Complainant’s Ex
hibit “ A A ” attached to page 168.]
I n the C ibctjit Court, T en th J udicial C ircuit of A labama,
I n E quity
T he S tate of A labama,
Jefferson County:
I, Gf. H. Boyd, Begister of the Circuit Court, Tenth Judi
cial Circuit of Alabama, In Equity, do hereby certify that
pages one and two of the Supplemental Transcript con
tains the original of the Exhibits “ A A ” and “ One” , which
were ordered by the Court to be sent to the Clerk of the
Supreme Court in order that same might be inspected per
sonally by the Judges of the Supreme Court.
Witness my hand and seal of office, this the 24th day of
June, 1943.
(Signed) G. H. Boyd, Begister. (Seal.)
[fob 170] Clerk’s Certificate to foregoing transcript omit
ted in printing.
[fo l. 171] I n the S upreme, C ourt of th e U nited S tates
S tipulation G overning P rinting of B ecord
The parties hereto stipulate that in printing the record
the Clerk of the United States Supreme Court shall cause to
be printed from the “ Agreement between the Louisville
& Nashville Bailroad and its Locomotive Firemen and
Hostlers” , etc., issued March 1, 1929, the following sec
tions only:
Heading, thru words “ Issued March 1, 1929” p. 1.
Article 25, pp. 25-34.
Article 26, pp. 34-48.
Article 31, pp. 54-56.
Article 32, pp. 57-58.
Article 43, p. 65.
Signatures, p. 65.
Bight is reserved by each party and to the Court to refer
to the entire Agreement aforesaid, which has been filed
170
with and certified by the Supreme Court of Alabama as part
of the record in this case.
Chas. H. Eyster & White E. Gibson, Counsel for Re
spondent Louisville & Nashville Railroad Com
pany ; John W. Lapsley, Counsel for Respondent
Brotherhood of Locomotive Firemen & Engine-
men.
Arthur D. Shores, Charles H. Houston, Joseph C. Waddy,
Counsel for Petitioner.
March 27, 1944.
[fo l. 172] S upreme C ourt oe the U nited S tates
Order A llow ing Certiorari—Filed M ay 29, 1944
The petition herein for a writ of certiorari to the Supreme
Court of the State of Alabama 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.
(3284)
^ v_£Ju JL&A ttldtCru^oWtA.
I n T he
(Emtrt nf tltr llmtpft #tatps
O ctobeb T eem , 1944
No. 37
T om T unstall ,
Petitioner,
v.
B eotheehood of L ocomotive F ibemen and E n g inem en ,
Ocean Lodge No. 76, Port Norfolk Lodge No.
775, W. M. Munden and Norfolk South
ern Railway Company,
Respondents
BRIEF FOR PETITIONER
Chables H . H ouston,
Counsel for Petitioner.
J oseph C. W addy,
Olivee W . H il l ,
Of Counsel.
Printed by Law Reporter Printing Co., 518 Fifth St., Washington, D. C.
I N D E X
PAGE
O pin ion s B e lo w ____ _____________________________________________________________ 1
J u r is d ic t io n ___________ T_________________________________ ;______________________ 1
S ta tu te I n v o lv e d ____________________ ____ _____________________________________ 2
S ta te m e n t________________________________ 2
S p ecifica tion o f E r r o r s ______________________________________ .________________ 6
Q uestions P r e s e n te d ___________________________ 6
S u m m ary o f A r g u m e n t________________,1_________________ ____________________ 6
A r g u m e n t :
I. C on gress h as assu m ed ju r isd ic t io n ov e r ch an ge in ra tes o f
p a y , ru les and w o rk in g con d ition s o f em p loyees as a class
on ca rr ie r s su b je ct to th e R a ilw a y L a b o r A c t __________________ 8
T h e P os it ion o f the M a jo r ity W ork ers u n der the A c t _________ 14
T h e P os it ion o f th e M in o r ity W ork ers u n der th e A c t _________ 15
A . T h e rep resen ta tiv e u n der th e R a ilw a y L a b o r A c t in
a c t in g f o r the en tire c r a f t o r class is e x e rc is in g le g is
la tiv e p ow er de leg ated b y C on gress w h ich m u st be ex er
cised w ith in con stitu tion a l lim ita tion s.
T h e T h e o ry o f A g e n c y _______ ___________________________ 20
T h e T h e o ry o f In d u str ia l D e m o cra cy __________________ 21
C on stitu tion a l L im ita tion s on the R ep resen ta tiv es___ 23
1. T h e rep resen ta tiv e m u st a ct in g ood fa ith , f o r
the ben efit o f the c r a f t , w ith ou t d iscr im in a tion
a g a in st in d iv id u a ls o r g ro u p s w ith in th e c r a f t
o r c la s s ; and can n ot seek an ad v a n ta g e f o r it s e lf
and its ow n m em bers a g a in st th e n onm em ber
w ork ers w ith in the c r a f t o r c la s s _________________ 27
2. W h e re th e p r iv ileg e o f u n ion m em bersh ip is the
in dispen sab le q u a lifica tion f o r p a rt ic ip a t io n in
C o llective b a rg a in in g p o licy , the r ig h t to o rg a n
ize w ith the oth er m em bers o f the c r a f t o r c lass,
and the op p ortu n ity to hold the rep resen ta tiv e
a ccou n ta b le and resp on sib le f o r its a ction s u n der
th e A ct , a la b or un ion w h ich b a rs w ork ers w ith in
th e c r a f t o r class fr o m m em bersh ip so le ly b e
cau se o f ra ce , is d isqu alified to a ct as rep resen t
a tiv e o f th e c r a f t o r c la ss_________________________ 29
T h e N a tion a l P o licy ______________________________ 36
B. T h e B roth erh ood h as d e libera te ly v io la ted its du ties as
rep resen ta tiv e u n d er the R a ilw a y L a b o r A c t o f the en
tire c r a f t o r class o f lo com otive firem en on resp on d en t
R a ilroa d in an e ffo rt to ob ta in a m on op o ly o f em p loy
m en t and the m ost fa v o ra b le jo b con d ition s f o r its ow n
m e m b e r s _______________________________________ i______________ 38
II . T h e F ed era l C ou rts h ave ju r is d ic t io n to d ec lare the re la tive
r ig h ts and du ties betw een th e rep resen ta tiv e u n der th e R a il
w a y L a b o r A c t and th e m em bers o f th e c r a f t o r class w h ich
it rep resen ts , and to red ress w ro n g s resu ltin g fr o m a v io la
tion o f sa id d u ties__________________________________________________ 41
A . T h e F ed era l cou rts h ave ju r is d ic t io n ov er the in sta n t
co n tro v e r sy as a n ecessa ry co r o lla r y to T ex a s & N . 0 .
R . Co. v . B roth erh ood etc ., and V irg in ia n R . Co. v.
S ystem F ed era tion , supra, in o rd er to a v o id h a v in g to
hold th e A c t u n con stitu tion a l u n d er th e d octr in e o f
C a rter v . C a rter C oal Co., supra__________________________ 46
B. T h e absence o f ju r is d ic t io n o f th e F ed era l cou rts w ou ld
m ean so f a r as th e m in o r ity a re con cern ed , th e sa crifice
an d ob lite ra tion o f the r ig h ts o f fre e d o m o f a ssoc ia tion ,
o f se lf-o rg a n iza t io n , o f b a rg a in in g co lle c t iv e ly th rou g h
a rep resen ta tiv e o f th e ir ow n ch oosin g , and o f fa i r re p
resen ta tion : r ig h ts crea ted b y C on gress in th e R a ilw a y
L a b o r A c t o f 1934____________________________________________ 51
C. T h e F ed era l cou rts h av e ju r is d ic t io n o f th e p resen t case
in v ie w o f the d ire ct ch a llen ge o f th e con stitu tion a lity
o f the co lle ct iv e b a rg a in in g and rep resen ta tion p r o v i
sions o f th e A cts , unless con stitu tion a l re s tra in ts are
i i INDEX
PAGE
p laced on th e rep resen ta tiv e w ith in th e lim its o f the due
p rocess clau se o f th e V A m en d m e n t__________________ ___ 52
I I I . T h e r e lie f sou g h t is a p p ro p r ia te to th e w ro n g s com pla in ed o f 53
A . T h e N o rr is -L a G u a r d ia A c t does n o t p rev en t r e lie f_____ 53
B. A ll n ecessa ry p a rtie s are b e fo r e th e C o u r t______________ 54
C on clu sion ____ _______________________________________ _̂_______________________ 54
A p p e n d ix ____________________________________________________ ___ ______________ 55
INDEX
Table op Cases Cited
page
A sso . R ock Is la n d E m p loyees v . L ow d en , 15 F . Supp. 176______________ 45
B a rb ie r v. C on n olly , 113 U .S . 27_____________-_____________________________ 28
B a rn h a rt v . W estern M d. R . C o., 128 F 2 d 709_________________ ___ 42, 43
B roth erh ood o f R . & SS. C lerks v . U . T . S. E . A ., 320 U .S . 816_______ 2
s. c., 137 F 2 d 817______________________________________________________..... 32
C am eron v . In t. A llia n ce , 118 N .J . E q . 1 1 ,1 7 6 A . 692, 97 A L R 594__ 22, 24
C a rter v . C a rter C oa l Co., 298 U .S . 238__________________ 21, 26, 28, 45, 49
E stes v. U n ion T erm in a l Co., 89 F 2 d 768__________________________ ________ 51
G en era l C om m ittee v . M -K -T R. Co., 320 U .S . 323______ 2, 22, 35, 46, 47
G en era l C om m ittee v . S ou th ern P a cific Co., 320 U .S . 3281______________ 2
G u lly v . F ir s t N a tion a l B ank , 299 U .S . 109______________________________ 45
J . I. C ase Co. v . N .L .R .B ., 321 U .S . 332_______________________ 24, 29, 33, 54
L an e v. W ilson , 307 U .S . 268_______________________________________________ 37
L e d fo r d v. C h ica g o M . & St. P . R . Co., 298 111. A p p . 298_______________ 23
M a tter o f B eth leh em -A la m ed a S h ip y a rd , In c., 53 N .L .R .B . 999_________ 35
M a tter o f U . S. B ed d in g Co., 52 N .L .R .B . 382___________________ _________ 35
M cC abe v . A tch iso n , T . & S. F . R . Co., 235 U .S . 151________ ___________ 47
M cN a lly v . R ey n o ld s , 7 F . Su pp . 112______________________________________ 35
M issou ri e x rel. G aines v . C anada , 305 U .S . 337______________________ 37, 47
M itch ell v . U n ited S tates, 313 U .S . 80_____________________________ 28, 37, 47
N a tion a l F ed era tion o f R w y . W o rk e rs v . N a t. M ed iation B oa rd ,
71 A p p . D .C . 266 _____________________________________ ____________. ._____ 35
N ew N eg ro A llia n ce v . S a n ita ry G rocery Co., 303 U .S . 552_____________ 36
N ix on v . C on don , 286 U .S . 73_____________________________________________ 24, 25
N ord v . G riffin , 86 F 2 d 481_______________________________________________ 23, 51
N o rr is v . A la b a m a , 294 U .S . 587___________________________________________ 36
O rder o f R a ilroa d T e leg ra p h ers v. R a ilw a y E x p ress A g en cy ,
321 U .S . 342 _____________________________ l:______ ‘ ________ 15, 20, 21, 25, 50
P ierey v. L . & N . R . Co., 198 K y . 4 7 7 _______________________________________ 23
P o in d ex ter v . G reen how , 114 U .S . 270_____________________________________ 53
R a ilroa d Co. v . M iss iss ip p i, 102 U .S . 135__________________________ ________ 45
R och ester T el. C orp . v . U n ited S tates, 307 U .S . 1 2 5 ------------------------------- 49
Sm ith v . A llw r ig h t , 321 U .S . 649______________________________ 25, 26, 34, 37
S w itch m en ’s U n ion v . N a t. M ed iation B oard ,
320 U .S . 297_____ - ____________________________ 2, 21, 41, 45, 46, 47, 48, 52
T ea g u e v . B roth erh ood L . F . & E ., 127 F 2 d 53___________________ 27, 42, 44
T exas & N . O. R . Co. v . B roth erh ood o f R . & SS. C lerks,
281 U .S . 548 _______________ ________________________________________ 45, 46, 54
T h e F a ir v . K oh ler D ie & S p ecia lty Co., 228 U .S . 22 ------------------------------ 45
T ru a x v . R a ich , 239 U .S . 3 3 __________ -__________________________________ 18, 28
U n ited S tates v. C lassic, 313 U .S . 299----------------- ---------------------------------------- 25
V irg in ia n R . Co. v . S ystem F ed era tion ,
300 U .S . 515_________________________________ 15, 21, 35, 45, 46, 47, 53, 54
Y ick W o v. H op k in s, 118 U .S . 356_______________________________-______ 28, 54
i i i
iv INDEX
Statutes
page
A m en dm en ts to the U n ited S ta tes C on stitu tion
V ------------------------------------------------------------------ ---------------------------- 28, 34, 48, 78
X I I I --------- -----------------j___________________________________________________ 36
X I V -------------- ,.----------------------------------------------------------------________ 28, 36, 78
X V ----------------- — ---------------------------------------------------------------- ...---- 34, 36, 79
B itu m in ou s C oa l C on serv a tion A ct , A u g . 30, 1935, 49 S tat. 991___ 26, 49
C iv il S erv ice C lassification A ct , 5 U .S .C . Sec. 6 8 1 ( e ) _____ __________ 36, 80
C iv ilia n C on serv a tion C orps A c t , 16 U .S .C . Sec. 584g— 1___________ 36, 80
C iv ilia n P ilo t T r a in in g A c t , 49 U .S .C . Sec. 752 ...____________________ 36, 80
J u d ic ia l C ode, Sec. 2 4 (8 ) 28 U .S .C . Sec. 4 1 ( 8 ) _____________ ___________ 41 , 48
Sec. 2 4 0 (a ) ______________________________ ________________________________ 1
N a tion a l L a b o r R e la tion s A ct , 49 S ta t. 449________________________________ 26
N o rr is -L a G u a r d ia A c t , 29 U .S .C . Ch. 6________________________________ 53 , 79
R a ilw a y L a b o r A c t , M a y 20, 1926_________ .______________________ 2 , 46, 49, 68
R a ilw a y L a b o r A c t , J u n e 21, 1934 (45 U .S .C . Ch. 8 ) __2, 27, 44, 46, 49
Sec. 1— S ix th ___________________________________ __________________ ____ 22, 30
Sec. 2 -------------------------------------------------- ------------------------------ 8 , 11, 14, 34, 47
— F ir s t ___________________________________________________________ 9 , 22
— S econ d ------------------------------------------------_---------------- :___________ : 9, 22
— T h ird -------------------------------------------------- _------------------------------- 9, 11, 22
— F o u rth -------------------------------------------- 10, 11, 14, 20, 22, 29, 35, 40
— F i f t h ----------------------------------------------------------------------------------- 10, 11, 40
— S i x t h _____________________________________ _________________________' 22
— S e v e n th -------------- .------------------------- ...----------------------------------- 10 , 11, 14
— E ig h th --------------------------------------------------------------------------------------- 10, 11
— N in th ------------------------------------------------------------ 11, 14, 21, 25, 48, 50
— T e n t h --------------------------------------- ,------------------------------------------------ 11, 15
Sec. 3 ------------------------------------------------- .------------------------------------------ 15, 22, 48
Sec. 4 --------------------------------------------------------------------------------------------- 11 , 21, 25
Sec. 5 ----------------------------------------------------------- ------------------------- 15, 21, 22, 48
— F ir s t _________________________________ ____________ ________________ ... 12
— T h ird ______________________________________ ■___________________ 12, 14
Sec. 6 ---------------------------------------------- ..._________ .a ,___ 10, 11, 13, 14, 15, 50
Sec. 7 -------------------------------------------------------------------------------------------- 21, 22, 50
Sec. 8 ------------------------------------------------------------------------------------------- 13, 21, 22
Sec. 9 ______________________________________ ____ ___________ :______________ 21
Sec. 10 ------------------------------------------------------------------------------------------- 13, 14, 22
S e lective T r a in in g and S erv ice A c t , 50 U .S .C . Sec. 304 _____________ 36, 80
T ra n sp o rta tio n A c t o f 1920, 45 U .S .C . Ch. 7 _______________ 43, 44, 49, 67
Congressional Material
H ea r in g s , S p ecia l C om m ittee to In v estig a te E x ecu tiv e A g e n c ie s ,
H ouse o f R ep resen ta tiv es , 78th C on g______________________ ______________ 19
T estim on y o f S id n ey S. A ld e r m a n _____________________________________ 19
T estim on y o f F ra n k L . M u lh o lla n d ______ ;_________ ___________________ 20
T estim on y o f C h arles H . H o u s to n _______________ _____________________ 20
INDEX V
PAGE
R ep or t, Sen ate C om m ittee on E d u ca tion , 78th C on g., 2d Sess. R ep or t
N o. 1 1 0 9 ________________________________________________ ___________ _ 37
Sen ate D ebate , N o rr is -L a G u a rd ia B ill, 75 C ong. R ., pt. 5, pp . 4936-7 .. 53
Executive Department
E x ecu tiv e O rd er N o. 8802, Ju n e 25, 1941, 6 F ed . R eg . 3109______ 36
N o. 9346, M a y 27, 1943, 6 F ed . R eg . 3577___________________________ 36
M on og ra p h o f th e A t to r n e y G en era l’ s C om m ittee on A d m in istra tiv e
Procedure, Part 4__________________________________________________ 16
40 O pin ion s o f th e A tty . G eneral, Op. 59_______ __________ ________________ 40
P res id en t ’s C om m ittee on F a ir E m p loym en t P ra c tice , F in d in g s and
D irect iv es _______________________________ :_______________________________ 39 , 59
Miscellaneous
B oreh a rd , D e c la ra to r y Ju d gm en ts , 2d ed., pp . 788-9____________________ _ 53
B roth erh ood o f L ocom otiv e F irem en & E n g in em en ’s M a ga zin e , vo l. 91,
N o. 3 _____________________________________________________________________ __ _ 40
F r a n k fu r te r & G reen e, T h e L a b o r In ju n ction , p. 220___________________ 53
H u gh es, F ed era l P ra c tice , vo l. 3, sec. 1608_______________________________ 45
N orth ru p , O rgan ized L a b o r and T h e N eg ro , Ch. I l l ___________ 19, 40, 69
T h e R a ilw a y A g e , vo l. 10, N o. 19________________________________ ___________ 40
St. L ou is -S a n F ra n c is co R a ilw a y C om pan y M em ora n d u m ____ 19, 40, 55
I n T h e
(Emtrt uf tlrp Inttefc
O ctobee T eem , 1944
No. 37
T om T ttnstall,
Petitioner,
v.
B bothebhood oe L ocomotive F ibemen and E ngin em en ,
Ocean Lodge No. 76, Port Norfolk Lodge No.
775, W. M. Mnnden and Norfolk South
ern Railway Company,
Respondents
BRIEF FOR PETITIONER
OPINIONS BELOW
The opinion of the United States Circuit Court of Appeals
for the Fourth Circuit appears in the record at pages 55-59,
and is reported in 140 F2d 35.
The opinion of the United States Circuit Court, not re
ported, appears in the record at pages 36-48.
JURISDICTION
The jurisdiction of this Court is invoked under Section
240 (a) of the Judicial Code, as amended by the Act of
February 13, 1925 (28 U.S.C., Section 347). This Court
granted its writ of certiorari May 29, 1944,
2
STATUTE INVOLVED
The statute involved is the Railway Labor Act of May
20, 1926 as amended by the Act of June 21, 1934, 48 Stat.
1185 (45 U.S.C., Chapter 8) which is printed in the appen
dix to the Brief in Support of Petition for Writ of Certiorari.
STATEMENT
The instant case was disposed of in the United States Dis
trict Court for the Eastern District of Virginia by the Court
dismissing the complaint on respondents’ motion (R. 38)
for lack of jurisdiction. The United States Circuit Court
of Appeals, Fourth Circuit, affirmed the decree of the Dis
trict Court (R. 46), considering itself bound by the follow
ing recent decisions of this Court:
Switchmen’s Union v. National Mediation Board, 320
U.S. 297, 88 L.ed. Adv. 89;
General Committee v. M. K. T. R. Co., 320 U.S. 323, 88
L.ed. Adv. 104;
General Committee v. Southern Pacific Company, 320
U.S. 328, 88 L.ed. Adv. 112;
Brotherhood of Ry. and S.S. Clerks v. U. T. S. E. A.,
320 U.S. 816, 88 L.ed. Adv. 375
Petitioner, a Negro locomotive fireman employed on an
interstate run by the Norfolk Southern Railway Company
(hereinafter called the Railroad) sued the Railroad and
the Brotherhood of Locomotive Firemen and Enginemen,
an international unincorporated labor union (hereinafter
called the Brotherhood), certain of its subordinate lodges
and one of its officers and members, W. M. Munden, in two
counts:
Count I
Petitioner individually sued the Brotherhood itself for
damages for improper performance of its duty as repre-
3
sentative under the Railway Labor Act of the entire craft
or class of locomotive firemen employed on said Railroad.
He alleged that he was employed as a fireman on said Rail
road, excluded from membership in the Brotherhood solely
because he is a Negro; that as representative of the entire
craft or class of firemen on the Railroad under the Railway
Labor Act the Brotherhood was under a duty to represent
all members of the craft impartially. Nevertheless in order
to secure for its own members the more favorable job as
signments open to firemen, the Brotherhood acting as repre
sentative of the entire craft or class of firemen under the
Act wrongfully used its position to induce and force the
Railroad to remove him from his job and replace him with
one of its own members; with result that he had to accept
a more onerous and less desirable assignment (R. 1-4).
Count I I
Petitioner individually and on behalf of the Negro fire
men as a class sued the Railroad, the Brotherhood and re
spondent Munden for a declaratory judgment, injunction
and damages.
Petitioner adopted the allegations of Count I, then alleged
that the white Brotherhood member firemen and the Negro
non-member firemen constituted the entire craft or class
of firemen on said Railroad, the Brotherhood firemen being
the majority, the Negro firemen being the minority group
of firemen, and the Negro firemen being excluded from the
Brotherhood solely because of race. The majority Brother
hood firemen chose the Brotherhood as the representative
of the entire craft or class of firemen on the Railroad; the
Negro minority firemen did not choose the Brotherhood as
representative, but by virtue of their minority position are
compelled to accept the Brotherhood as their representative
under.and for the purposes of the Act (R. 5-6).
As representative of the entire craft or class of firemen
under and for the purposes of the Railway Labor Act the
4
Brotherhood became the statutory agent of the Negro
minority firemen, under a duty of representing them fairly
and in good faith, to give them reasonable notice and oppor
tunity to be heard and a chance to vote on matters adversely
affecting their interests, to make prompt report on actions
taken affecting them, and not to discriminate against them
in favor of itself or its own members. Nevertheless it has
always been disloyal to' the Negro minority firemen, re
fused to give them notice, hearing or a chance to vote on
policy matters adversely affecting their interests, refused
to report to them on action taken, has constantly sought
to drive them out of employment in order to obtain a mo
nopoly and the most favored jobs for its own members;
and has refused to give them fair, honest and impartial
representation under the Railway Labor Act (R. 6-7).
On March 28, 1940, the Brotherhood acting on each rail
road as representative under the Railway Labor Act of the
entire craft or class of firemen, served notice on respondent
Railroad and 20 other southeastern carriers of its purpose
to amend existing contracts governing firemen’s rules, rates
of pay and working conditions in such manner as would
drive the Negro minority firemen completely out of service
(R. 7, 11-13).
On February 28, 1941, pursuant to said Notice, the Broth
erhood acting in the premises as representative under the
Railway Labor Act of the entire craft or class of firemen,
concluded an agreement with respondent Railroad and
other southeastern carriers providing that not more than
50 per cent of the firemen employed in each class of service
(freight, passenger, etc.) in any seniority district should
be “ non-promotable” men (i.e., Negro), and that “ non-
promotable” men should not be permitted employment in
any seniority district in which they were not then working;
that until such percentage was reached all vacancies should
be filled by “ promotable” firemen (i.e., white); and defining
‘ ‘ promotable ” firemen as those eligible for promotion to
the position of locomotive engineer under present rules and
5
practices. Under present rules and practices white firemen
only are prom'otable to engineers; Negro firemen are known
as ‘ ‘ non-promo tables ” . The Brotherhood further reserved
the right to press for further restrictions on the use of Negro
firemen on individual railroads. (R. 7-8; 13-16.)
On May 23, 1941, the Brotherhood acting as representa
tive under the Eailway Labor Act as aforesaid, and re
spondent Railroad entered into a supplemental agreement
specifically defining ‘ ‘non-promotable firemen” as referring
to Negro firemen only (E. 8,16-19).
In serving the notice of March 28, 1940, negotiating the
Agreement of February 18, 1941, and the supplement of
May 23, 1941, the Brotherhood gave the Negro firemen no
notice, opportunity to be heard or to vote; and did not dis
close the existence of said Agreement until it forced peti
tioner off his run by virtue thereof, pursuant to its policy
of trying to obtain a monopoly of jobs for its own mem
bers (R. 8-9).
On the date said Agreement and supplement went into
effect the Railroad was operating passenger train service
on its Northern Seniority District on an interstate run.
Two firemen were used in said service; a non-member Negro
fireman and a white Brotherhood fireman. In June 1941,
the white fireman quit, and plaintiff was assigned to the
run and performed his duties satisfactorily to the Railroad
until October 10, 1941 when the Brotherhood acting as rep
resentative under the Act of the entire craft or class of
firemen forced the Railroad to replace him with one of its
own members, respondent Munden, on the ground Negro
firemen were exceeding their quota of jobs under said Agree
ment and supplement (R. 8-9).
Petitioner requested the railroad to restore him to his
job but the Railroad asserted it was bound by the Railway
Labor Act and helpless to do so unless the Brotherhood
as his representative demanded same. Petitioner requested
the Brotherhood as his representative to represent him
before the Railroad for restoration of his job but it refused
6
to do so; in consequence, of which he has suffered and still
suffers irreparable injury (R. 9).
SPECIFICATION OF ERRORS
The Circuit Court of Appeals erred in holding that the
Federal Court has no jurisdiction to declare the duty of a
representative under the Railway Labor Act of a craft or
class, and to interfere by injunction with the process or
results of collective bargaining undertaken pursuant to the
Act, on the ground that, the purposes of the Act are being
violated (140 F2d 35, at 37).
QUESTIONS PRESENTED
1. Does the representative under the Railway Labor Act
of an entire craft or class of firemen on a carrier have a duty
to represent all members of the craft or class impartially?
2. If so, is there jurisdiction in the Federal Court to de
clare the relative rights and duties between the representa
tive and the members of the craft or class it represents under
the Act and to redress wrongs resulting from a violation
of said duty?
SUMMARY OF ARGUMENT
I. Congress has assumed jurisdiction over changes in
rates of pay, rules and working conditions of employees as
a class on carriers subject to the Railway Labor Act.
The Position of the Majority Workers Under the Act
The Position of the Minority Workers Under the Act
A. The representative under the Railway Labor Act
in acting for the entire craft or class is exercising leg
islative power delegated by Congress which must be
exercised within constitutional limitations.
7
The Theory of Agency
The Theory of Industrial Democracy
Constitutional Limitations on the Representative
1. The representative must act in good faith, for
the benefit of the craft, without discrimination
against individuals or groups within the craft or
class; and cannot seek an advantage for itself and
its own members against the nonmember workers
within the craft or class.
2. Where the privilege of union membership is
the indispensable qualification for participation
in collective bargaining policy, the right to organ
ize with the other members of the craft or class,
and the opportunity to hold the representative ac
countable and responsible for its actions under the
Act, a labor union which bars workers within the
craft or class from membership solely because of
race, is disqualified to act as representative of the
craft or class.
The National Policy
B. The Brotherhood has deliberately violated its du
ties as representative under the Railway Labor Act of
the entire craft or class of locomotive firemen on re
spondent Railroad in an effort to obtain a monopoly of
employment and the most favorable job conditions for
its own members.
II. The Federal Courts have jurisdiction to declare the
relative rights and duties between the representative under
the Railway Labor Act and the members of the craft or class
which it represents, and to redness wrongs resulting from
a violation of said duties.
A. The Federal courts have jurisdiction over the in-
8
stant controversy as a necessary corollary to Texas &
N. O. R. Co. v. Brotherhood etc., 281 U.S. 548, and Vir
ginian E. Co. v. System Federation, 300 U.S. 515, in
order to avoid having to hold the Act unconstitutional
under the doctrine of Carter v. Carter Coal Co., 298
U.S. 238.
B. The absence of jurisdiction of the Federal courts
would mean, so far as the minority are concerned, the
sacrifice and obliteration of the rights of freedom of
association, of self-organization, of bargaining collec
tively thru a representative of their own choosing, and
of fair representation: rights created by Congress in
the Eailway Labor Act of 1934.
C. The Federal courts have jurisdiction of the pres
ent case in view of the direct challenge of the constitu
tionality of the collective bargaining and representa
tion provisions of the Act, unless constitutional re
straints are placed on the representative within the
limits of the due process clause of the V Amendment.
III. The relief sought is appropriate to the wrongs com
plained of.
A. The Norris-LaG-uardia Act does not prevent relief.
B. All necessary parties are before the Court.
ARGUMENT
I
Congress Has Assumed Jurisdiction Over Changes in Rates
of Pay, Rules and Working Conditions of Employees
as a Class on Carriers Subject to the Railway Labor Act
In order to accomplish the general purposes stated in
Section 2 of the Railway Labor Act of 1934 (48 Stat. 1185,
9
45 U.S.C. Title Railroads, eh. 8, set out at length in the
Appendix to Petitioner’s Brief in Support of Certiorari),
Congress in said Act established a formal, comprehensive
and elaborate set of principles regulating changes in rates
of pay, rules and working conditions of employees as a class
employed on carriers subject to the Act. Special periods
of limitation are set up at each step—from service of notice
of intended change in the agreement covering rates of pay,
rules and working conditions, thru the time limit in which
an emergency board must report to the President. Many
of the procedural devices operate thru agencies of the United
States Government, with the expense borne by the public
treasury. The procedural scheme, is enforced by both civil
and criminal sanctions, and is policed in part by the United
States District Attorneys upon relation of the representa
tive of the employees of a carrier.
Among the legislative standards governing the conditions
and steps under which changes in rates of pay, rules and
working conditions as a class may be made, Congress—
1. —imposes a duty on all carriers and their employees
to exert every reasonable effort to make and maintain agree
ments concerning rates of pay, rules and working condi
tions (Sec. 2—First, 45 U.S.C. Sec. 152—First);
2. —requires that all disputes between a carrier and its
employees shall be considered and, if possible, decided “ with
all expedition in conference between representatives desig
nated and authorized so to confer” (Italics ours here and
elsewhere except as noted; Sec. 2—Second; 45 U.S.C. Sec.
152—Second);
3. —forbids either carrier or employees to interfere with,
influence or coerce the designation of representatives by
either party (Sec. 2—Third; 45 U.S.C. Sec. 152—Third);
10
4. —guarantees that employees shall have the right to
organise and bargain collectively thru representatives of
their own choosing (Sec. 2—Fourth; 45 IT.S.C. Sec. 152—
Fourth);
5. —gives the majority of a craft or class the right “ to
determine who shall be the representative of the craft or
class for purposes of this chapter” (Sec. 2—Fourth, supra);
6. —outlaws company unions and “ yellow-dog contracts”
(Sec. 2—Fourth and —Fifth; 45 U.S.C. Sec. 152—Fourth
and Fifth);
7. —prohibits a carrier from changing “the rates of pay,
rules and working conditions of its employees as a class as
embodied in agreements” except as provided in such agree
ments or in Section 6 of the Act (Sec. 2—Seventh; 45 U.S.C.
Sec. 152—Seventh);
8. —requires the carrier to notify its employees by printed
notices posted at such times and places as shall be specified
by the National Mediation Board that all disputes between
the carrier and its employees will be handled “ in accordance
with the requirements of this chapter” (Sec. 2—Eighth; 45
IT.S.C. Sec. 152—Eighth) ;
9. —further requires that “ in such notices there shall
be printed verbatim, in large type, the third, fourth and
fifth paragraphs of this section. The provisions of said
paragraphs are hereby made a part of the contract of em
ployment between the carrier and each employee, and shall
be binding upon the parties, regardless of any other express
or implied agreements between them” (Sec. 2—Eighth; 45
IJ.S.C. Sec. 152—Eighth) ;
10. —creates the National Mediation Board (“ an inde
pendent agency in the executive branch of the Government
. . . to be composed of three members appointed by the Pres-
11
ident, by and with the advice of the Senate, not more than
two of whom shall be of the same political party” —Sec. 4;
45 U.S.C. Sec. 154), pnts on it the duty to investigate rep
resentation disputes among employees, to designate the
employees eligible to participate in the election either by
itself or thru a committee of three to be appointed by it
which after hearing shall designate within ten days such
eligible employees, to hold an election by secret ballot or
determine by any other appropriate method the duly desig
nated representative, and to certify to both parties in writ
ing, within thirty days after its services have been invoked,
the name of the representative (Sec. 2—Ninth; 45 U.S.O.
Sec. 152—Ninth);
11. —imposes on the carrier the duty of treating with
the representative so certified (Sec. 2—Ninth supra).
12. —imposes criminal sanctions on the carrier (fine not
less than $1,000 nor more than $20,000, or imprisonment not
to exceed six months, or both, for each offense; and every
day’s wilful violation to be a separate offense) for violating
the terms of the third, fourth, fifth, seventh or eighth para
graph of Section 2 supra (Sec. 2—Tenth; 45 U.S.C. Sec.
152—Tenth);
13. —charges any United States District Attorney “ to
whom any duly designated representative of a carrier’s em
ployees may apply” to institute in a proper court and to
prosecute under the direction of the Attorney General of
the United States, all necessary proceedings for the enforce
ment of the provisions of Section 2, and for the punishment
of all violations thereof (Sec. 2—Tenth, supra) ;
14. —provides that carriers and representatives of em
ployees shall give at least thirty days written notice of an
intended change in agreements affecting rates of pay, rules
and working conditions; the time and place for the begin-
12
ning of conferences between the representatives to be agreed
on within ten days from receipt of notice ̂ said time to he
within the thirty days provided in the notice (Sec. 6; 45
U.S.G. Sec. 156);
15. —places disputes concerning changes in rates of pay,
rules and working conditions not adjusted between the par
ties in conference within the jurisdiction of the Mediation
Board, at the request of either employees or carrier; or the
Board may proffer its services (Sec. 5—First; 45 TJ.S.C.
Sec. 155—First);
16. —charges the Mediation Board, if mediation is un
successful, with endeavoring to get the parties to submit
to arbitration in accordance with the provisions of the Act
(Sec. 5—First, supra)-,
17. —charges the Mediation Board, if arbitration is re
fused by either party, with at once notifying both parties
that its mandatory efforts have failed; and prohibits, for
thirty days thereafter or unless meanwhile the parties,
agree to arbitration or an emergency board is created, any
change in the rates of pay, rules or working conditions or
established practices in effect prior to the time the dispute
arose (Sec. 5—First, supra);
18. —establishes boards of arbitration, with designated
time limits and fixed procedures for filling the complement
of the board; provides for due notice and hearing before
such board, giving it the power to administer oaths, compel
attendance of witnesses and production of documents; speci
fies the conditions under which the board shall reconvene;
and provides for payment out of the public treasury of the
compensation, expenses and subsistence of assistants to
the board, the expenses of the board itself and the compen
sation of any arbitrator named by the Mediation Board
(Sec. 5—Third; 45 U.S.C. Sec. 155—Third);
13
19. —prescribes the form and content of an agreement
to arbitrate (Sec. 8; 45 U.S.C. Sec. 158);
20. —provides for filing the award in tbe clerk’s office of
the district court designated in the agreement to arbitrate;
makes the award conclusive unless within ten days it is im
peached on one or more of the grounds provided by the
Act; makes the decision of the district court on the im
peachment final unless its decision is appealed within ten
days to the circuit court of appeals; and makes the decision
of the circuit court of appeals final (Sec. 8, supra);
21. —authorizes the President to appoint emergency
boards if a dispute between carrier and employees is not
adjusted under the foregoing provisions of the Act, upon
certification to him by the Mediation Board that the dispute
threatens substantially to interrupt commerce to such a deT
gree that any section of the country will be deprived of
essential transportation service; provides for the compen
sation and expenses of the board to be paid out of the public
treasury, and charges the board with investigating promptly
and reporting to the President ivithin thirty days of its crea
tion (Sec. 10; 45 TJ.S.C. Sec. 160);
22. —freezes rates of pay, rules and working conditions
where notice of intended change has been given, or confer
ences thereon are being held, or the services of the Media
tion Board have been requested by either party or proffered
by the Board, until the controversy has been finally acted
on by the Mediation Board, unless ten days have elapsed
after termination of conferences without request for or
proffer of the services of the Mediation Board (Sec. 6,
supra);
23. —provides that after the creation of an emergency
board by the President and for thirty days after such hoard
has reported to the President, no change except by agree-
14
ment, shall be made by the parties to the dispute in the con
ditions out of which the dispute arose (Sec. 10, supra) ;
24. —provides that within 60 days after June 21, 1934
every carrier shall file with the Mediation Board a copy of
each contract with its employees in force April 1, 1934; and
a copy of every change “ in an existing contract with any
craft or class of its employees covering rates of pay, rules
and working conditions, or in those rates of pay, rules and
working conditions of employees not covered by contract”
within thirty days after said change in the existing contract
has been executed, or rates of pay, rules and working condi
tions have been made effective (Sec. 5—Third: e; 45 U.S.C.
Sec. 155—Third: e).
Congress did not attempt to fill in the content of the rates
of pay, rules and working conditions on the several carriers
subject to the Act, but delegated authority in this respect to
the representaives of the carriers and of the employees
(Sec. 2 supra). It gave the agreements arrived at by the
representatives the force of law, regulating for the entire
craft or class its rates of pay, rules and working conditions
for the periods provided in the Act (Secs. 2—Seventh;
6 and 10).
The Position of the Majority Workers Under the Act
Under the principle of majority rule which the Railway
Labor Act has adopted the majority workers of a craft or
class have ultimate control, within constitutional limita
tions, over the craft or class’ interest. They designate the
craft or class representative in the first place (Sec. 2—
Fourth) and can change the representative at any time
(Sec. 2—Ninth). This power of replacing the representa
tive at will protects them against arbitrary, discriminatory
action, and against irresponsibility on the part of the
representative.
15
The Position of the Minority Workers Under the Act
Ex hypothesi the minority workers of the craft or class
can neither designate the representative of the craft or class,
nor change it. By judicial interpretation of the Act, the
carrier is under a mandatory duty to treat with the repre
sentative designated by the majority, and with no other.
Virginian By. Co. v. System Federation, 300 U.S. 515,
81 L.ed. 789.
The terms of the collective bargain agreed to by the craft
or class representative cannot be superseded by individual
contracts even tho such individual contracts are with only
a few employees specially situated.
Order of Bailroad Telegraphers v. Bailway Express
Agency, 321 U.S. —, 88 L.ed. Adv. 495.
They cannot serve a notice for change in the agreement,
nor invoke the aid of the United States District Attorney
for enforcement of the Act or punishment of its violations
(Secs. 6; 2—Tenth). The Mediation Board has no juris
diction over disputes between the majority and minority
employees where no representation dispute is involved
(Sec. 5). The National Bailroad Adjustment Board has
jurisdiction over “ disputes between an employee or group
of employees and a carrier or carriers growing out of griev
ances or out of the interpretation or application of agree
ments concerning rates of pay, rules or working conditions”
(Sec. 3; 45 U.S.C. Sec. 153). The Adjustment Board does
not have jurisdiction to alter agreements; it does not have
jurisdiction over intra-craft disputes between the majority
and minority workers.
Even if a minority worker formalized his real complaint
against the majority workers or the class representative
mto a pro forma dispute between himself and the carrier,
16
the Adjustment Board would not hear his complaint unless
it was presented by the majority union.
See Monograph of the Attorney General’s Committee
on Administrative Procedure, Part 4: “ Railway La
bor, The National Railroad Adjustment Board, The
National Mediation Board” —
“ Assertion of claims. The agreements entered into
by the majority unions with the carriers are regarded
by the unions as peculiarly theirs, although they apply
not only to the employees of the carrier who are mem
bers of the union, but the nonmembers as well. In some
four hundred cases since the establishment of the
(Adjustment) Board individuals have sought to assert
claims before the Board. With the exception of a
few isolated cases of Division IV involving claims of
individuals where there was no organization of the
particular craft or class on the property, no case as
serted by an individual has ever been decided on the
merits by the Board. The only way that an individual
may prevail is by taking his case to the union and
causing the union to carry it through to the Board.
“ The Board does not affirmatively take the position
that claims of individuals may not be asserted before
it. The labor members solidly vote in each instance
not to consider claims asserted by individuals, while
the carrier representatives consistently vote to con
sider them, even tho they are claims asserted against
the railroads, basing their position upon ‘ the consti
tutional right of the individuals ’. Whatever the reason
may be, each division of the Board deadlocks on the
question whether or not to consider individuals’ claims,
and since this question has never been resolved by the
appointment of a referee, it is simply stalemated.
Hence no affirmative action is taken and no awards are
made.15
“ fn 15. The Secretary of Division I says that he
has been instructed that he is not to inform indi
viduals who seek to petition the Board that the Board
will not consider claims by individuals. He there
fore uses his ingenuity in explaining reasons for
17
rejecting cases, and is forced to write many equivo
cal letters. If a party or Ms representative comes
into the office of the Board however, the secretary
tells him orally and confidentially the reason for
refusing to docket the case.” (Loc. cit. p. 7.)
In a democratic union the minority worker has at least
the protection of membership, the right to the floor in union
meetings, the right of appeal thru channels to the Grand
Lodge or supreme governing body. In this manner he at
least has a forum in which he can be heard, where he can
try to persuade sufficient members over to his view so as
to change his minority position into a majority position.
His very membership gives him a degree of control over
the representative and places the representative under a
degree of responsibility to him.
But in the instant case where petitioner, a Negro fireman,
is excluded from membership in the Brotherhood (the repre
sentative designated by the majority white workers who
are all members of the Brotherhood) solely because of Ms
race, petitioner’s minority position is fastened upon him
without hope of change. He is barred from the union meet
ing, he has no forum in which to air his views or present
his own interests, no point of contact with the majority
members. The representative has no duty toward him apart
from the statute; and apart from statute there is complete
irresponsibility as far as the representative is concerned.
The record shows (R. 6) that the Brotherhood has been
persistently hostile and disloyal to him and the other mino
rity Negro firemen, has constantly sought to destroy their
rights and drive them out of employment in order to create
a monopoly of employment and secure the most favored
jobs and working conditions for its own members. It has
always refused and still refuses to notify them of proposed
actions adverse to their interests, to give them a chance
to be heard or vote on said propositions, to report to them
its actions or to handle their grievances wherever there is
18
an apparent conflict between tbeir interests and those of
the union Brotherhood members.
The only way petitioner can protect his interests, since
no remedial machinery is established for him under the
Act, is to seek relief in the courts. Theoretically he can
petition Congress for an amendment to the Act, but this
is a fantasy as far as practical protection is concerned.
He can quit his job at any time, but that would be to do
exactly what the Brotherhood has been trying to force him
to do. It is no answer to the minority worker to point out
the fact he can resign at any time. A minority worker with
years of seniority on the railroad, growing grey in the serv
ice, cannot lightly quit his job and look for another. In
addition, the minority worker has a vested property right
in his job, just as well as the majority worker, and is
entitled to the protection of that right. Congress cannot
delegate either to the majority workers or to the repre
sentative designated by them the power to force the mino
rity worker out of his job, on reasons which have nothing
to do with his service and to their own. selfish whim and
advantage.
See Truax v. Raich, 239 U. S. 33, 60 L.ed. 131.
If a minority Negro fireman brought his complaint to
the Adjustment Board, naming the carrier as respondent
although in fact his grievance was against the majority
union or the representative, even assuming a condition
contrary to fact that the Board would hear him, he would
get nowhere because the five railway labor unions which
have representatives on Division I of the Adjustment Board
(which has jurisdiction over locomotive firemen) are mem
bers of the
Switchmens Union of North America
Brotherhood of Railroad Trainmen
Brotherhood of Locomotive Firemen & Enginemen
Brotherhood of Locomotive Engineers
Order of Railroad Conductors
19
Each of these unions bars Negroes from membership,
See Northrup, Organized Labor and the Negro, C. Ill,
“ The Railroads,” p. 49,
and each of these unions is guilty of persistently trying to
drive Negroes off the railroad.
See Northrup, loc. cit., C. III.
Memorandum of Understanding etc.* between the St.
Louis-San Francisco Railway Company and the four
train service organizations, March 14, 1928 (quoted
in the Appendix).
Unless the minority Negro fireman can obtain relief in
the courts he has been placed by Congress in economic servi
tude to the majority workers. The President’s Committee
on Fair Employment Practice held a public hearing in Sep
tember, 1943 on complaints by minority Negro firemen,
inter alia, against the Brotherhood and divers carriers.
On November 18, 1943 the Committee issued its directives
against the railroads and the unions directing them to cease
and desist from their discriminations against the Negro
firemen. The Brotherhood ignored the hearing, defied the
Committee and still defies it.
See Northrup, loc. cit.
See Hearings before the Special Committee to Inves
tigate Executive Agencies, House of Representatives,
78th Congress, pursuant to H. Res. 102—
1. Testimony of Sidney S. Alderman, General Solici
tor, Southern Railway Company, pp. 2110-2165,
especially at 2161:
“ The railroads have discussed with the heads
of railway labor organizations to see to what
extent they can increase Negro employment.
They have run into a stone wall. The heads of
these organizations, the representatives of our
2 0
employees under the Railway Labor Act, have
told us that if we undertake any program of
increase of Negro employment, even in only the
five classes of employment listed in the Presi
dent’s letter to the Stacy committee, and even
within limits authorised by our contracts or
where there is no contract provision limiting the
percentage of Negroes, these heads of the organ
izations cannot control their men. They express
the opinion that disorder will inevitably result,
and that, if the railroads increase employment
of Negroes and undertake to protect them with
policemen, or if the Army should send soldiers
to protect them, the white men will strike and
walk out and see if the railroads can operate
with Negroes.”
2. Testimony of Prank L. Mulholland, general coun
sel for the Railway Labor Executives Association,
pp. 2165-2173.
3. Testimony of Charles H. Houston, general counsel
for the International Association of Railway Em
ployees and Association of Colored Railway Train
men & Locomotive Firemen, pp. 2173-2191.
A
The Representative Under the Railway Labor Act in Act-
ting for the Entire Craft or Class Is Exercising Legis
lative Powers Delegated by Congress Which Must Be
Exercised Within Constitutional Limitations.
The majority workers as such do not have the right to
bargain for the minority workers. The limit of their
right is to determine who shall be the representative of
the entire craft or class (Sec. 2—Fourth). Thereafter the
representative acts for the entire craft, including the mino
rity, even against their will.
Order of Railroad Telegraphers v. Railway Express
Agency, supra
21
When the carrier is directed to treat with the representa
tive so designated, the command is the command of Con
gress. (Sec. 2—Ninth, supra.)
Virginian Railway Company v. System Federation
supra
Switchmen’s Union v. National Med. Board, supra
The power vested in the representative to bind the dissen
tient minority in acting for the entire craft or class under
the Railway Labor Act is power delegated to it by Con
gress. In negotiating collective bargaining agreements un
der the Act binding on the entire craft or class, the repre
sentative is pro tanto exercising a legislative function.
Carter v. Carter Coal Company, 298 U.S. 238, 80 L.ed.
1160.
Order of Railroad Telegraphers v. Railway Express
Agency, supra.
It is to be noted that Congress did not spell out limitations
on the bargaining powers and representation duties of the
statutory representative, as it did in the case of a repre
sentation dispute before the National Mediation Board, or
in case of arbitration (Secs. 2—Ninth; 4; 5; 7-9). But we
contend that there appears both in the inherent structure
of the Act and in its text sufficient to establish by implica
tion that the representative is under a duty to represent
all members of the craft or class impartially and that Con
gress intended to, and did place the representative under
responsibility to all members of the craft. We reach this
position of good faith and responsibility on either of two
theories: agency, or industrial democracy.
The Theory of Agency
The language of the Act is the language of agency. The
employees and the carriers are recognized as the princi-
2 2
pals (Sec. 2—First, —Second, —Third, —Fourth, -—Sixth;
Sec. 3—First: i, j ; Secs. 5, 7, 8, 10). The representative
is defined by the Act “ as a 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” (Sec. 1—Sixth; 45 U.S.C. Sec. 151—Sixth).
This picture of the representative acting as alter ego for
the carrier and the employees is preserved thruout the
entire structure of the Act. This Court has used the lan
guage of agency in discussing the problems of representa
tion under the Act.
“ It is true that the present controversy grows out
of an application of the principles of collective bar
gaining and majority rule. It involves a jurisdictional
dispute—an asserted overlapping of the interests of
two crafts. . . . Congress did not attempt to make any
codification of rules governing these jurisdictional
controversies. It did undertake a statement of the
various principles of agency which were to govern
the solution of disputes arising from an overlapping
of the interests of two or more crafts.” General Com
mittee v. Missouri K-T R. Co., supra, 88 L.ed. Adv. 10.
The duties of an agent for several principals to be fair
and impartial, not to seek an advantage for itself at the
expense of one or more of its principals, to make full dis
closure of actions proposed and actions taken, to be loyal
and not hostile, are so elementary as to make citation super
fluous. At common law a labor union cannot discriminate
between its members or between classes of its membership.
Cameron v. International Alliance, 118 N.J.Eq. 11, 176
A. 692, 97 ALB, 594.
A fortiori, if it is made by statute an agent in invitum for
the minority workers it must have the same duty of loyalty
and the same prohibition against discrimination running
to the entire class, which it would have at common law with
respect to its membership. The courts have held that a non-
23
member is not bound by the prejudicial act of the bargain
ing representative in conspiracy with the carrier to disre
gard the nonmembers’ seniority rights to the advantage of
junior members of the union.
Ledford v. Chicago M. & St. P. R. Co., 298 111. App. 298
See also Nord v. Griffin, 86 F2d 481; cert, denied 300
U. S. 673, 81 L.ed. 879
The Theory of Industrial Democracy
The theory of industrial democracy in which the bargain
ing representative is the fiduciary of the powers delegated
to it by the members perhaps gives the representative wider
scope and freedom of action than the theory of agency, as
long as the representative acts in good faith for the benefit
of all, and without discrimination as to individual members.
Piercy v. L. & N. R. Co., 198 Ky. 477, 248 S.W. 1042,
33 ALR 322
Originally collective bargaining meant all the workers as
a group going in to present their requests to the owner of
the business. As industry became more complex and the
number of workers in a unit grew, the workers organized
into unions and delegated thg bargaining power to repre
sentatives. But policies were formulated by debates and
discussion in union meetings, and the right of suffrage in
the union kept the representative under a degree of respon
sibility to the members. Frequently this control went to
the extent that agreements reached by the representative
had to be ratified by the membership before they would be
come binding.
The political analogy is apt. The town meeting evolves
into a representative assembly. The rival candidates for
office set up their platforms; the voters make their choice.
The majority of the voters prevail; but the representative
so designated by them to represent the entire district, once
he takes office, cannot discriminate by class legislation
24
against those who opposed him. He holds his powers in a
fiduciary capacity for the benefit of the entire district: every
inhabitant of the district. Voters’ suffrage in the district
keeps the representative under a degree of responsibility;
and parallel to the union members ratifying agreements
reached by their representatives, we have the political
device of the referendum.
The very existence of Congress itself as a representative
body is persuasive that in establishing the principle of ma
jority rule in collective bargaining under the Eailway Labor
Act it did not intend to give the majority unbridled license
to make war on the minority.
See Cameron v. International Alliance, supra, 33 ALE
at pp. 606-607
J. I. Case Co. v. N.L.E.B., 321 U.S. 332, 338
Constitutional Limitations on the Representative
The review of the Eailway Labor Act and the decisions
construing the same, above, shows clearly that the craft or
class representative in negotiating and concluding collec
tive bargaining agreements affecting rates of pay, rules and
working conditions of the employees as a craft or class is
exercising power not inherent in it either as a labor union
or as designee of the majority; but derived solely from Con
gress. The designation by the majority is merely a matter
of identification. The power is governmental in character
and subject to the restraints of constitutional limitations.
“ The pith of the matter is simply this, that when
those agencies are invested with an authority inde
pendent 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 offi
cial 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.” Nixon v.
Condon, 286 U.S. 73, 88, 76 L.ed. 984, 990.
25
“ Misuse of power, possessed by virtue of State law
and made possible only because the wrongdoer is
clothed with the authority of State law, is action taken
‘ under color o f’ State law.” United States v. Classic,
313 U. S. 299, 326, 85 L.ed. 1368, 1383.
The G-overnment under the Railway Labor Act even inter
venes at the preliminary stage, to determine thru the Na
tional Mediation Board (“ an independent agency in the
executive branch of the Government”—Sec. 4, supra), who
is in fact the representative in case of a representation dis
pute among the employees (Sec. 2—Ninth). Once the Gov
ernment has determined who the representative of the craft
or class is, it so certifies the representative to both the car
rier and the employees, and thereafter for all purposes of
the Act the representative speaks with the voice of Congress.
Order of Railroad Telegraphers v. Railway Express
Agency, supra.
The fact that the craft or class representative is not a
Government official, but rather a private organization, and
that it is chosen or designated by the majority workers
rather than by Government itself, does not free it from
constitutional restraints when it purports to exercise power
delegated to it by Congress.
Cf. Nixon v. Condon, supra.
Smith v. Allwright, 321 U. S. 649, 88 L.ed. Adv. 701.
It is a well-known device of Government where industrial
conditions are complex and variable, to delegate to owners
and workers minor legislative power within the framework
of Congressional standards established for the industry,
power to fix the conditions of production and of work by
way of self-regulation. But this self-regulation has the
force of law by virtue of the delegation of power from
Congress,
2 6
E.g., National Labor Relations Act, July 5, 1935, c. 372,
49 Stat. 449
Bituminous Coal Conservation Act, August 30, 1935,
c. 824, 49 Stat. 991
and is subject to constitutional restraints.
Carter v. Carter Coal Co., supra.
We conceive these constitutional limitations to be, as a
minimum, the following:
1. the representative must act in good faith, for the bene
fit of the entire craft or class, without discrimination against
individuals or groups within the craft or class; and cannot
seek an advantage for itself and its own members against
the nonmember workers within the craft or class.
Carter v. Carter Coal Co., supra.
2. where the privilege of union membership is the indis
pensable qualification for participation in formation of col
lective bargaining policy, the right to organize with the
other members of the craft or class, and the opportunity
to hold the representative accountable and responsible for
its actions under the Act, a labor union which bars workers
within the craft or class from membership solely because
of race, is disqualified to act as representative of the craft
or class.
Smith v. Allwright, supra.
27
1.
The Representative Must Act in Good Faith, for the Benefit
of the Craft, Without Discrimination Against Individ
uals or Groups Within the Craft or Class; and Cannot
Seek an Advantage for Itself and Its Own Members
against the Nonmember Workers Within the Craft or
Class.
So far as petitioner knows Ms is the second case brought
in a Federal court seeking relief as a Negro locomotive
fireman against the Brotherhood of Locomotive Firemen
& Enginemen as statutory representative under the Rail
way Labor Act. The first was Teague vs. Brotherhood, 127
F2d 53 (CCA, 6th: 1942). That case was dismissed for lack
of jurisdiction; but on the merits of the complaint the state
ment of the Circuit Court of Appeals was:
“ If the allegations of the complaint are true, the
appellant has a grievance, and one that is substantial
and not merely colorable or fanciful. Somewhere must
reside judicial power to adjudicate it, and grant him
and others of his class adequate relief. It is not within
our province to say how or where. We have but to
point out that he has mistakenly selected his forum,
and that the limitations upon the Federal judicial power
and the rules by which they are defined, require that
the decree below be, and it is, affirmed.” (Loc. cit, at
p. 56.)
The second case is petitioner’s case as noted. Here the
Circuit Court of Appeals has stated its opinion of the
merits:
“ We have considered whether jurisdiction might not
be sustained for the purpose of declaring the rights of
plaintiff to the fair representation for the purposes
of collective bargaining which is implicit in the pro
visions of the National Railway Labor Act, 45IJ. S.C.A.
See. 151 et seq. We think, however that recent deci
sions of the Supreme Court hold conclusively that there
is no jurisdiction in the federal courts to afford relief
under the act except where express provisions of the
act so indicate.” (140 F2d, supra, at p. 36.)
It is true that the above statements are merely dicta, but
they show how strongly the allegations of the complaints
must have shocked the sense of fairness of the Courts for
them to have made the solemn statements quoted.
The principle of majority rule is at the basis of our
democracy, but it has always had the corollary that the
majority cannot use the Government or governmental de
vices to exploit the minority. Unless the power delegated
the representative under the Railway Labor Act is hedged
with constitutional safeguards for equal protection, the Act
is void as being an unconstitutional delegation of legisla
tive power.
Carter v. Carter Coal Co., supra.
The line of cases beginning with Barbier v. Connolly,
113 U.S. 27, 31, thru Yick Wo v. Hopkins, 118 U.S. 356, and
Truax v. Raich, supra, show that the right to follow a call
ing is protected against arbitrary and discriminatory action
on the part of government, or those exercising governmental
powers. The above cases arose under the 14th amendment,
but this Court has held that the guarantees of equal protec
tion in the 14th Amendment are subsumed under the 5th
Amendment.
Mitchell v. United States, 313 U.S. 80, 85 L.ed. 1201.
29
2.
Where the Privilege of Union Membership Is the Indis
pensable Qualification for Participation in Collective
Bargaining Policy, the Bight to Organise With the
Other Members of the Craft or Class, and the Oppor
tunity to Hold the Representative Accountable and
Responsible for Its Actions Under the Act, a Labor
Union Which Bars Workers Within the Craft or Class
Prom Membership Solely Because of Race, Is Disquali
fied to Act as Representative of the Craft or Class.
As long as the Brotherhood of Locomotive Firemen &
Enginemen is acting as a private organization, its rules of
membership are its own business. But where it makes the
privilege of membership the indispensable qualification for
any contact between it and the members of the class it rep
resents under the Railway Labor Act; and where it is only
by union membership that the minority worker has a forum
where he can be heard and participate in the formation of
collective bargaining policy; where union membership is
the sine qua non without which he cannot organize with the
majority workers of the craft, and is the only mark which
the Brotherhood recognizes as giving the worker any right
to an accounting or places it under any responsibility; then
the Brotherhood is using its membership provisions to
thwart the public purposes of the A ct:
“ Employees shall have the right to organize and
bargain collectively through representaives of their
own choosing. . . . ” (Sec. 2—Fourth).
The “ collectivization” of the employment bargain (J. I.
Case Co. v. N.L.R.B., supra) carries with it as a necessary
connotation the “ collectivization” of the employees them
selves. Congress recognized this fact in the Railway Labor
Act by surrounding freedom of organization with the most
stringent penalties provided in the Act:
30
“ See. 2: General purposes. The purposes of this
chapter are: . . . (2) to forbid any limitation upon
freedom of association among employees or any denial,
as a condition of employment or otherwise, of the right
of employees to join a labor organization; (3) to pro
vide for the complete independence of carriers and
of employees in the matter of self-organization to carry
out the purposes of this chapter; . . .
—Fourth. Organization and collective bargaining;
(etc.) Employees shall have the right to organize and
bargain collectively through representatives of their
own choosing. . . .
—Fifth. Agreements to join or not to join labor
organizations forbidden. No carriers, its officers, or
agents shall require any person seeking employment
to sign any contract or agreement promising to join
or not to join a labor organization; . . .
—Tenth. Violations; prosecution and penalties.
The wilful failure or refusal of any carrier, its officers
or agents to comply with the terms of the third, fourth,
fifth, seventh or eighth paragraph of this section shall
be a misdemeanor, and upon conviction thereof the
carrier, officer, or agent offending shall be subject to
a fine of not less than $1,000 nor more than $20,000 or
imprisonment for not more than six months, or both
fine and imprisonment, for each offense, and each day
during which such carrier, officer, or agent shall wil
fully fail or refuse to comply with the terms of said
paragraphs of this section shall constitute a separate
offense. . . . ”
Section 1—Sixth giving the definition of ‘ ‘ representative ’ ’
expressly provides that among others the representative
can be a labor union. In fact, in legislative collective bar
gaining policy on a craft or class basis Congress had in
mind the organization of railway workers in craft unions.
The 1934 Railway Labor Act is in part the result of con
ferences and agreements between the carriers and the na
tional railway labor unions. The functioning of labor unions
31
as representatives of the employees underlies the basic prin
ciples of the majority rule provisions of the Act.
After the collective bargaining agreement is made, there
still remain the problems of interpretation and of griev
ances. These matters are handled by the union officials:
usually the Local Chairman on the local seniority division,
the General Chairman on the entire system. The policing
of the contract is translation of the contract into action:
the point where it comes out in food, shelter and clothing
for the individual worker. If the worker is barred from
union membership solely because of race, then the interpre
tation of the contract and the handling of grievances are
under the jurisdiction of union officers who have no respon
sibility, no duty of loyalty to him. When there is a con
flict between the interest of the nonmember and the interest
of the union member, the nonmember can expect little aid
from any union official.
“ 5. . . . Nevertheless, in violation of its obligations
and duties the defendant Brotherhood has been per
sistently 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 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 the
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 of 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 Railway Labor
Act.” (Extract from par. 5 of the Complaint, R. 6-7.)
32
“ 12. Plaintiff has requested the defendant Railway
Company to restore him to his assignment on the pas
senger 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 representa
tive under the Railway Labor Act, the defendant Broth
erhood, demands it. He has requested the Brotherhood
as his representative to represent him before the man
agement 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.” (Par. 12 of the Complaint, R. 9.)
The white Brotherhood fireman if he fancies he has a
grievance which the Local Chairman will not handle for
him has the right of appeal thru union channels. He can
carry his appeal straight thru to the General Convention
itself. The non-member Negro fireman, regardless of the
merits of his grievance, is left out in the cold wherever his
complaint conflicts with the interests of the Brotherhood
members.
See Groner, C.J. (concurring) in Brotherhood of R. &
SS. Clerks v. United States Transport Service Em
ployees of America, 137 F2d 817 (U.S. App., D. C.),
later reversed on the ground of no jurisdiction, 320
U.S. 816, 88 L.ed. Adv. 375:
. the Brotherhood, designated by the Board as
the bargaining agent of the porters, is a white organi
zation which does not permit membership by the col
ored employees of the railroads. As a result, the
effect of the action of the Board is to force this par
ticular group of employees to accept representation
by an organization in which it has no right of mem
bership, 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 mem
bership is not a matter which concerns us, but that the
33
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 inadmis
sible, 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 pur
pose 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 representaives. While it
is true that this purpose has been held to yield, when
necessary, in the interest of uniformity of classifica
tion in accordance with established custom, nothing
in the Act or 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 whom it has no affiliation nor right of asso
ciation. It is, therefore, of no consequence that the
porters were at one time dependent upon Brother
hood as their. spokesman with 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 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.” (Loc. cit., pp.
821-822.)
This Court stated in the G. I. Case Co. v. N.L.R.B. case
supra that the very purpose of providing by statute for
collective bargaining was to serve the welfare of the group,
and that “ its benefits and advantages are open to every
employee of the represented unit” (loc. cit., L.ed. Adv. 493).
The idea of the welfare of the group is inconsistent with
a situation where the majority excludes the minority from
any participation in the formation of policy or handling
34
of grievances. In order to establish the welfare of the group
industrial representation must be based on industrial de
mocracy, upon the broadest possible participation by the
employees in the craft or class in both the original forma
tion of collective bargaining policy, the negotiation and
consummation of the collective agreement, and the continu
ing function of the representative in policing the agree
ment. If it were admitted that Congress intended that the
policy-making functions of a labor union acting as repre
sentative of an entire craft or class under the Railway
Labor Act might be divorced from the control of the craft
or class as a whole (as distinguished from some favored
segment thereof), then we should have to attribute to Con
gress a desire to do indirectly thru the craft or class repre
sentative that which it could not do directly; for Congress
could not bar part of the electorate from any degree of
political participation accorded the rest of the electorate,
on any basis of race such as the color bar against Brother
hood membership.
Amendments to the United States Constitution V and
XV.
Smith v. Allwright, supra.
Moreover, such a policy would not only.be a flat repudia
tion of the announced Congressional purpose of “ freedom of
association among employees ” , ’but would also threaten the
industrial peace and “ the prompt and orderly settlement
of all disputes growing out of grievances or out of the inter
pretation or application of agreements covering rates of
pay, rules, or working conditions” (Sec. 2, supra).
The theory of Congress was that by democratic partici
pation in the choice of representative and formulation of
policy, the minority members of the craft or class would
accept the ultimate determination of policy by the majority,
just as the minority must accept the victory of the majority
at the polls. Excluding the minority from this democratic
participation destroys its confidence in the majority, in the
35
representative selected by the majority, in any proposition
proposed by the representative; and cut off from all other
means of making its protests effective it is forced to resort
to industrial strife. Perhaps a negligible minority could
not seriously threaten industrial peace, but a substantial
minority on strike as its last resort against undemocratic
treatment could paralyze commerce: and we must view the
principle in the light of all its foreseeable possibilities.
Organization of the minority Negro firemen into a sepa
rate union with separate representation is definitely not
the answer. There cannot be two representatives within
a craft or class under the Railway Labor Act.
Sec. 2—Fourth, supra.
Virginian Rwy. Co. v. System Federation, supra.
General Committee v. Missouri K-T R. Co., supra, L.ed.
Adv. 110.
Division of the workers and division of representation un
der the Railway Labor Act on the basis of race or color
have been distinctly repudiated by the Courts.
“ In the last analysis, the Federation’s contention
reduces itself to the proposition that the members of
every race in a craft of workmen have a constitutional
right to representation by one of their own race, which
neither the majority of the craft nor their own race
may take from them. Acceptance of such a principle
would certainly destroy the bargaining advantage of
the united front secured to employees by the provision
of the Act that a majority of any craft shall select the
representative for the craft.” National Fed. Rwy.
Workers v. National Med. Board, 71 App. D.C. 266,
275, 110 F2d 529.
Accord, N.I.R.A. as to union and nonunion workers:
McNally v. Reynolds, 7 F. Supp. 112 (W.D.,
Wash., N.D., 1934).
N.L.R.A. (race): Matter of IT. S. Bedding Co.,
52 N.L.R.B. 382, 388; Matter of Bethlehem-Ala
meda Shipyard, Inc., 53 N.L.R.B. 999,
36
The National Policy
The attitude and actions of the respondent Brotherhood
as representative under the Railway Labor Act of the en
tire craft or class of firemen on respondent Railroad in
making Brotherhood membership the sine qua non to par
ticipation in formulation of collective bargaining policy and
responsibility, and then excluding Negro firemen from mem
bership because of race are directly contrary to national
policy.
The attitude of the people of the United States is ex
pressed in the XIII, XIV and XV Amendments. All
branches of the Federal Government take decided stands
against race discrimination. To illustrate from charac
teristic action within the period contemporanous to the
Railway Labor Act and the present case, we may observe
the following:
Executive action:
*Executive Order 8802, June 25, 1941, 6 Fed. Reg. 3109
Executive Order 9346, May 27, 1943, 6 Fed. Reg. 3577
Congressional action:
Civilian Conservation Corps Act, 16 U.S.C. Sec. 584g—
1 (1940)
Civilian Pilot Training Act, 49 U.S.C. Sec. 752 (1939)
Civil Service Classification Act, 5 U.S.C. Sec. 681(e)
(1940)
Selective Training and Service Act, 50 U.S.C. Sec. 304
(1940)
Judicial action:
Norris v. Alabama, 294 U.S. 587, 79 L.ed. 1074 (exclu
sion from jury)
New Negro Alliance v. Sanitary Grocery Co., 303 U.S.
552, 82 L.ed. 1012 (picketing for jobs)
* E x ecu tiv e O rd ers e sta b lish in g th e P r es id en t ’ s C om m ittee on F a ir
E m p loy m en t P ra c tice .
37
Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 83
Lied. 208 (education)
Lane v. Wilson, 307 IT.S. 268, 83 L.ed. 1281 (suffrage:
Oklahoma)
Mitchell v. United States, supra (transportation)
Smith v. Allwright, supra (suffrage: Texas)
An illuminating statement on national policy regarding
race discrimination by labor unions appears in the report
of the Senate Committee on Education and Labor, 78th
Cong. 2d Session, Report No. 1109, reporting favorably on
a bill (S. 2048) to create a permanent Fair Employment
Practice Commission:
“ (d) Labor unions. Since the bill applies equally
to management and labor, the arguments which sus
tain its constitutionality as applied to employers apply
equally to labor unions. Indeed, since the primary
benefits of the legislation accrue to employees, an at
tack upon the legislation by employee organizations
would be even harder to support than a challenge from
affected employers. Certainly labor unions which en
joy the statutory benefits of such laws as the National
Labor Relations Act and the Railway Labor Act, be
cause their activities affect interstate or foreign com
merce, cannot plausibly deny the jurisdiction of the
Federal Government to prohibit unfair discrimination.
Organizations which have been accorded the statutory
right of acting as exclusive bargaining representatives
for nonmemher employees have no ground to object
if they are required to refrain from racial or religious
discrimination against such nonmembers. See United
States v. Classic (313 U.S. 297, 326); Smith v. All-
wright (64 Sup. Ct. 757). Power must be accompanied
by responsibility. That is the essence of free govern
ment. And no labor union which claims to benefit
its members can be heard to say that denial of mem
bership rights to those of a particular race or religion
is not a most serious form of discrimination.” (Italics
as in original report; p. 8.)
38
B
The Brotherhood Has Deliberately Violated Its Duties as
Representative Under the Railway Labor Act of the
Entire Craft or Class of Locomotive Firemen on Res-
spondent Railroad in an Effort to Obtain a Monopoly
of Employment and the Most Favorable Job Conditions
for Its Own Members
The minority Negro nonmember firemen have not received
representation by the Brotherhood acting as the craft rep
resentative under the Railway Labor Act, but misrepre
sentation. The policy of the Brotherhood toward the non-
member Negro firemen has been to exclude, expose, weaken
and destroy.
The immediate cause of petitioner’s complaint is the
loss of his job October 10, 1941 when the Brotherhood act
ing under the Railway Labor Act as representative of the
entire craft of firemen forced the Railroad to displace him
and substitute in his place the respondent Munden, member
of the Brotherhood. The Brotherhood took this action un
der agreements negotiated by it with the Railroad, again
acting as craft representative under the Act. (R. 8-9.)
The agreements involved are the “ Southeastern Carriers
Conference Agreement” February 18, 1941 (R. 13-16) and
the Supplemental Agreement May 23,1941 (R. 16-19). Both
agreements are discriminatory on their face, and are dis
astrous to the rights of the nonmember Negro firemen whom
the Brotherhood was supposed to be representing as a part
of the craft or class.
The Brotherhood on other occasions has attempted to
justify the Agreement of February 18, 1941 on the ground
it would provide more promotable men for promotion to
the rank of locomotive engineer. But nowhere in this rec
ord is there any evidence that the railroads were experi
encing any difficulty in obtaining engineers.
The true character of the Brotherhood’s action appears
39
from the Notice of March 28,1940 served on 21 Southeastern
railroads simultaneously. The Notice starts off with the
significant language:
“ This is to advise that the employees of the------------
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 of rules governing the employ
ment and assignment of locomotive firemen and help
ers, as follows: ” (R. 11-12.)
The Brotherhood brazenly acts under color of the Railway
Labor Act . as representing all the locomotive firemen em
ployed on the several railroads. It states that the employees
have approved the demands for change. This is a delib
erate misstatement. The Negro firemen were given no no
tice, no opportunity to be heard, no chance to vote; and
no report was made to them, not even after the Agreement
had been consummated.
“ . . . nor was the esistence of said agreement and
supplement disclosed to them until the Brotherhood
forced plaintiff off his run by virtue thereof. . . .”
(Extract from paragraph 9 of the Complaint, R. 8.)
The Notice and the Agreement have been thoroughly re
viewed and analyzed in the Summary, Findings and Direc
tives of the President’s Committee on Fair Employment
Practice issued No vember 18,1943, and set out in the Appen
dix hereto, which are herewith adopted as part of peti
tioner’s argument. Suffice it to say here, that no more
unconscionable conduct can be conceived of than the action
of the Brotherhood in serving the Notice, making the Agree
ment and displacing the Negro firemen whom it was sup
posed to be representing, in order to obtain a monopoly
of jobs for its own members.
Obviously the aim of the Brotherhood was to establish a
40
closed shop, in the teeth of the prohibitions against such
in the Railway Labor Act.
Sec. 2—Fourth and —Fifth.
40 Opinions of the Attorney General, Op. 59.
The record (R. 5) states that “ the Negro firemen and the
Brotherhood members comprise the entire craft or class of
firemen employed by the defendant Railroad” . Eliminate
the Negro firemen and the closed shop is an accomplished
fact, aided and abetted by the carriers.
“ N egro F ir e m e n Q u e s t io n i n t h e S o u t h
“ By Alabama Member
“At onr recent convention (32nd Convention, BLF&E,
Columbus, 0., June, 1931) several of the delegates from
southern railroads submitted a resolution designed to
get some relief for white firemen on southern railroads
where a majority of firemen are Negroes.
“ I wish to say that if the Negro firemen were elimi
nated from the southern railroads our organization
would be several thousand members stronger than it
is at the present time. . . .” (Extract from p. 221,
Brotherhood of Locomotive Firemen & Enginemen’s
Magazine, vol. 91, No. 3, September, 1931.)
“ T h e W e e k a t a G l a n c e
“ A g a in s t N egro F ir e m e n : Like the Californian who
took the occasion of a funeral to praise the climate of
his state, the railway unions are overlooking no forum
in which they might gain some advantage. The B.L.F.
& E. has asked the I.C.C. to turn down all plans for
organizing the F.E.C. (Florida East Coast Railway)
unless that road rescinds its policy of hiring Negroes
as firemen. . . . ” (Extract from p. 33, Railway Age,
vol. 110, No. 19, May 10, 1941.)
The St. Louis-San Francisco Memorandum set out in the
Appendix hereto carries the anti-Negro policy of the Broth
erhood back to 1928. Northrup carries the anti-Negro pol
icy of the Brotherhood back to the 1890’s (loc. cit., pp. SO
SO, see Appendix).
41
The Federal Courts Have Jurisdiction to Declare the Rela
tive Rights and Duties Between the Representative
under the Railway Labor Act and the Members of the
Craft or Class Which it Represents, and to Redress
Wrongs Resulting from a violation of said duties.
Jurisdiction in this case was based in the United States
District Court on Title 28, Section 41(8), United States
Code:
II
“ Subd. (8). Suits for violation of interstate com
merce laws. Eighth. Of all suits and proceedings aris
ing under any law regulating commerce. ’ ’
There can be no doubt as stated by Mr. Justice Reed
dissenting in Switchmen’s Union v. National Med. Board,
supra:
“ The general purpose of the act is to avoid inter
ruption to commerce by prohibition of interference with
the employees ’ freedom of association and by provision
for collective bargaining to settle labor disputes. This
regulates commerce.
_ “ The right to select representatives with whom car
riers must bargain was created by the Act and the
remedy sought here arises under that law. Since the
cause of action ‘had its origin and is controlled by’ the
Railway Labor Act, it arises under it (citing cases) ’ ’.
Loc. cit., L.ed. Adv. 103.
The United States District Court filed a written opinion
in this case and gave the following reasons for declining
jurisdiction:
“ 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
42
majority has selected. The Act is silent in that respect.
It stops short after providing for the selection of the
bargaining 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, and among them Teague v. Brotherhood of
Locomotive Firemen and Enginemen, 6th Circ. (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 authori
ties generally as to when a Federal question is pre
sented, referred to and quoted the Teague case, as
follows:
( >
“It is apparent in the light of these authorities that
no Federal question is presented in the present ease,
. . .” (R. 36-37; Italics quoted.)
The Circuit Court of Appeals affirmed, stating per curiam:
“ We think, however, that recent decisions of the
Supreme Court hold conclusively that there is no juris
diction in the federal courts to afford relief under the
act except where express provisions of the act so indi
cate. Brotherhood of Ry. & SS. Clerks, etc. v. United
Transport Service Employees of America, 64 S.Ct. 260,
decided Dec. 6, 1943; Switchmen’s Union of North
America, etc. v. National Mediation Board et al., 64
S.Ct. 95, decided Nov. 22,1943; General Committee, etc.
v. Southern Pac. Co., 64 S. Ct. 142, decided Nov. 22,
1943; General Committee, etc. v. Missouri-Kansas-
Texas Railroad Co. et al., 64 S.Ct. 146,150, decided Nov.
22, 1943.” (R— ; 140 F2d at p. 36.)
The United States Circuit Court of Appeals, 6th Circ.,
in affirming a decree dismissing the complaint in the Teague
case, stated:
“ Reverting to the appellant’s own statement of his
case, such rights as are here claimed arise from the
43
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 Section 2, subd. eighth make the terms of the col
lective bargaining agreement a part of the contract
of employment between the carrier and each employee—
the case, nevertheless, remains one based upon a con
tract between private parties cognizable, if at all, under
state law.
“ Nor does the plaintiff establish a basis for Federal
jurisdiction by assertion of right under the Fifth
Amendment. . . . The only Governmental action here
alleged consists of the enactment of the- Railway Labor
Act, of which Section 2 provides that the majority of
any craft shall have the right to determine who shall
represent it. The term ‘representative’ is defined to
mean ‘ any person or persons, labor union, organiza
tion, or corporation’ designated by employees to act
for them. While the employees are guaranteed the
right to select a common bargaining representative,
there is nothing in the Act which authorizes their rep
resentative to impair the personal or property rights
of the employees for whom the bargaining agency acts.
There is, therefore, no basis of Federal jurisdiction
under the Fifth Amendment through proscribed Fed
eral government action.” (Loc. cit., at p. 56.)
The Barnhart case did not involve an intracraft issue but
an alleged wrongful discharge of shopcraft employees in
1922 by the Western Maryland Railway Company, in viola
tion of rules promulgated by the Railroad Labor Board
created by the Transportation Act of 1920 (45 TT.S.C. Ch.7)
and adopted by the carrier, and refusal by the carrier to
abide by a decision of the Labor Board directing reinstate
ment of said employees. The United States Circuit Court
of Appeals, 4th Circuit, after first holding that the powers
conferred on the Labor Board under the Transportation
Act of 1920 were advisory only (loc. cit., at p. 712) stated:
“ A determination of the alleged rights of the ap
pellants, here, involves, we think, no interpretation of
4 4
either a federal statute or the terms of a decision of
the Board. The Board acted under the Statute, it is
true, and the rules were promulgated by the Board;
but these rules, so promulgated, had no binding legal
effect unless, and until, they were accepted and em
bodied in a working agreement between the employer
and the employee. These alleged rights, then, so in
corporated in the agreement, thus became a matter
of contract between the parties, and any right of the
appellants, in this connection, arose, not out of the
action of the Board in promulgating the rules, but out
of the contract itself. If these observations be true,
it is clear that the instant case did not arise under any
statute of the United States so as to confer jurisdic
tion, on this basis, upon the United States District
Court.” (Loc. cit., at p. 714.)
The Barnhart case arising under the Transportation Act
of 1920 is clearly distinguishable from the instant case
which arises under the Railway Labor Act of 1934 which
is not merely advisory but mandatory in its provisions re
specting collective bargaining.
The rulings of the lower courts in both the Teague and
the instant cases were wrong, but no attempt was made in
the Teague case to obtain review by this Court because the
Circuit Court of Appeals ruled that if any Federal question
was raised it was at best only by way of anticipated defense.
“ The necessity for precise delineation of the limited
jurisdiction of Federal Courts to controversies raising
Federal questions, is clearly demonstrated in the pres
ent instance by the speculative character of the antici
pated defense. It is conceivable that defense to the
present action will necessarily not involve the Railway
Labor Act either immediately or remotely.” (Loc.
cit. at p. 55.)
Instead the present suit was brought and an attempt made
to avoid the defects of pleading in the Teague case and to
state a case where an interpretation of the Railway Labor
45
Act could not be avoided and where the decision would turn
on such interpretation.
Gully v. First National Bank, 299 U.S. 109, 112, 81
L.ed. 95.
Here the dispute is over the force and effect of the Act itself.
Asso. Rock Island etc. Employees v. Lowden, 15 F Supp.
176 (D. Kan. 1936); aff’d 86 F2d 458 (C.C.A., 10th);
cert, denied 300 U.S. 659, 81 L.ed. 868.
The jurisdiction of the United States District Court was
not ousted because possibly other non-Federal questions
might be involved.
Railroad Co. v. Mississippi, 102 U.S. 135, 141, 26
L.ed. 96,
nor would it make any difference on the question of juris
diction that the case might be disposed of on non-Federal
grounds.
The Fair v. Kohler Die and Specialty Co., 228 U.S. 22,
25, 57 L.ed. 716.
See also 3 Hughes, Federal Practice, Sec. 1608.
We maintain Federal jurisdiction exists in the instant
case on at least three grounds:
A. as a necessary corollary to Texas & N. O. R. Co. v.
Brotherhood of R. & SS. Clerks, 281 U.S. 548, 74
L.ed. 1034, and Virginia R. Co. v. System Federa
tion, supra, in order to avoid having to hold the Act
unconstitutional under the doctrine of Carter v.
Carter Coal Co., supra;
B. under the exception mentioned in Switchmen’s
Union v. National Med. Board, supra:
46
“ If the absence of jurisdiction of the federal
courts meant a sacrifice or obliteration of a
right which Congress had created, the infer
ence would he strong that Congress intended
the statutory provisions governing the general
jurisdiction of those courts to control.” (L.ed.
Adv. at p. 91.)
C. under the exception suggested both in the Switch
men’s Union case and in General Committee v.
M-K-T E. Co., supra, that the limitation of juris
diction laid down in those cases does not apply when
the constitutionality of the Act is challenged. We
expressly challenge the constitutionality of the Act
under the V Amendment if the Federal courts are
without jurisdiction to declare the relative rights
and duties between representative under the Act
and the members of the craft or class which it repre
sents, and to redress wrongs resulting from a viola
tion of said duties.
A.
The Federal Courts Have Jurisdiction Over the Instant
Controversy as a Necessary Corollary to Texas & N. 0.
R. Co. v. Brotherhood etc., and Virginian R. Co. v. Sys
tem Federation, supra, in order to avoid having to hold
the Act Unconstitutional Under the Doctrine of Carter
v. Carter Coal Co., supra.
The Texas & N. O. E. Co. and the Virginian E. Co. cases
establish, by judicial interpretation in the absence of express
provision for review or express sanction in either the 1926
or the 1934 Railway Labor Acts that the right of the em
ployees to freedom of association, to self-organization; to
organize and bargain collectively thru representatives of
their own choosing; the right of the majority to designate
the representative for purposes of the Act of the entire craft
or class; the duty of the carrier to treat with the represent-
47
ative so designated (Sec. 2), are commands of Congress with
judicial sanctions implied for their enforcement. The right
of representation is a property right which the courts will
enforce on behalf of the employees.
Virginian E. Co. v. System Federation, supra.
We cannot construe the Virginian case otherwise than as
holding not merely that the Federal court will protect the
right of representation for benefit of the majority em
ployees, but that it will protect the right of representation
for the benefit of every employee. Constitutional rights are
the attribute of the individual and do not depend upon
numbers.
McCabe v. Atchison T. & S. F. E. Co., 235 IT.S. 151, 59
L.ed. 169.
Missouri ex rel. Gaines v. Canada, supra.
Mitchell v. United States, supra.
If representation is a property right, conversely freedom
from misrepresentation must be a property right. Since
this Court has put the force of judicial sanction behind
the majority’s right to designate the representative and
the right of the representative to force the carrier to treat
with it, we ask the Court not to relegate the protection of
the minority to “ the field of conciliation, mediation and
arbitration ’
See General Committee v. M-K-T E. Co., supra, L.ed.
Adv. at p. 111.
Having taken jurisdiction to protect the majority, the Court
should not back out on the minority.
We are not confronted in this case with “ the highly selec
tive manner in which Congress has provided for judicial
review of administrative orders or determinations under
the Act” .
See Switchmen’s Union v. National Med. Board, supra,
L.ed. Adv. at p. 94.
48
No administrative order or determination is involved in
this case; the designation of the representative as being the
choice of the majority firemen is conceded (E. 5-6).
Nor do we face the situation mentioned in the Switchmen’s
case where “ the specification of one remedy normally ex
cludes the other” (L.ed. Adv. at p. 92). Both lower courts
in denying jurisdiction expressly rely on the fact that Con
gress has provided no remedy.
‘ ‘ The Act is silent in that respect. It stops short
after providing for the selection of the bargaining agent
and imposing upon the Railway the duty to treat with
that agent alone after he is selected.” (Extract from
the opinion of the United States District Court (R.
36-37.)
For the reason that all the labor representatives on Divi
sion I of the National Railroad Adjustment Board belong
to unions which exclude Negroes from membership, a Negro
fireman could not be forced to take his complaint against
misrepresentation by one such union (whose representative
is sitting on the Board) because of race, before such a Board.
To so rule would itself be a denial of due process under the
Y Amendment. But we are spared this problem because
the Adjustment Board has no jurisdiction over disputes
between the minority worker and their craft representative
(Sec. 3, supra). Nor has the National Mediation Board any
jurisdiction in the premises. (Sec. 5, supra).
The lower courts fail to appreciate that the very fact the
Act does stop short after providing for. the selection of the
bargaining agent and imposing on the Railway the duty
to treat with that agent alone imposes on the Federal courts
the necessity of review under the general jurisdiction stat
ute (28 U.S.C., Section 41 (8), supra). The determination
of the identity of the craft or class representative, by com
mand of Congress (Sec. 2—Ninth), has instantaneous, final
effect on tying the hands of the minority and depriving
them of all chance of self-help.
49
See Rochester Tel. Corp. v. United States, 307 U.S. 125,
83 L.ed. 1147.
It is Congress which tied the hands of the minority. It
was not ever thns. The Transportation Act of 1920, supra,
recognized and provided for self-help by the unorganized
employees (e.g., Section 303, Appendix hereto). The Rail
way Labor Act of 1926 (44 Stat., pt. 2, p. 577) did not make
majority rule and collective bargaining by craft or class
unit mandatory (see Sec. 2, Appendix hereto). The 1934
Act did; and unless the representative is restrained by pro
hibition of Congress reached thru judicial interpretation
to represent all members of the craft impartially, the Rail
way Labor Act of 1934 has all the vices of the Bituminous
Coal Conservation Act of 1935 which was declared uncon
stitutional in Carter v. Carter Coal Co., supra.
“ The power conferred upon the majority is, in effect,
the power to regulate the affairs of an unwilling
minority. This is legislative delegation in its most
obnoxious form; for it is not even delegation to an
official or an official body, presumptively disinterested,
but to private persons whose interests may be and
often are adverse to the interests of others in the same
business. . . The difference between producing coal
and regulating its production is, of course, fundamen
tal. The former is a private activity; the latter is nec
essarily a governmental function, since, in the very
nature of things, one person may not be entrusted with
the power to regulate the business of another, and espe
cially of a competitor. And a statute which attempts
to confer such power undertakes an intolerable and
unconstitutional interference with personal liberty and
private property. The delegation is so clearly arbi
trary, 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. ’ ’ (Carter Coal
Co. case, at p. 311.)
50
The employment agreement between the individual fire
man and the carrier may be a private matter; but delegat
ing to the craft or class representative the power to legis
late what the terms of that contract shall be
Order of Railroad Telegraphers v. Railway Express
Agency, supra,
is necessarily governmental and falls within the limitations
of the Fifth Amendment. And we expressly claim it so.
There is a clear distinction between the treatment which
Congress accorded the problem of determination of juris
dictional disputes between crafts, the determination of the
craft representative, and the negotiation by the craft rep
resentative in handling disputes or attempting to negotiate
agreements. Congress puts its chief pressure on placing
parties in position to handle disputes. It imposes extremely
short periods of limitation on the Mediation Board in deter
mining and certifying the craft or class representative; on
filling the complement of the Arbitration Boards; on the
commencement of negotiations for changes in collective
bargaining agreements (see Secs. 2—Ninth; 7 and 6). It
places no time limit on how long the representatives may
drag out the negotiations: here is the real field of concilia
tion, arbitration and mediation left open by Congress. There
is no express compulsion on the craft or class representative
when to act or how to act, or even to act at all. It is
exactly this absence of express standards in the Act to guide
the craft or class representative that makes it imperative
on the Court by judicial interpretation to declare the rights
of the minority workers “ to the fair representation for the
purposes of collective bargaining which is implicit in the
provisions of the National Railway Labor Act” (extract
from opinion of the C.C.A., R. —, 140 F2d at p. 36), if the
constitutionality of the collective bargaining and repre
sentation provisions of the Act are to be sustained.
51
Cf. Nord v. Griffin, 86 F2d 481 (C.C.A., 7th), cert, denied
300 U.S. 673, 81 L.ed. 879; Estes v. Union Terminal
Co., 89 F2d 768 (C.C.A., 5th).
B
The Absence of Jurisdiction of the Federal Courts Would
Mean, so Far as the Minority Are Concerned, the
Sacrifice and Obliteration of the Rights of Freedom of
Association, of Self-Organisation, of Bargaining Col
lectively Thru a Representative of their Own Choos
ing, and of Fair Representation: Rights Created by
Congress in the Railway Labor Act of 1934.
As stated above it is impossible to conceive that Congress
conferred on one set of employees within the craft or class
the right to organize and bargain collectively thru repre
sentatives of their own choosing; yet denied the same rights
to the minority of the craft or class. The only sound view
is that the legislation conferred on each employee within
the craft or class those rights. That being true, the absence
of jurisdiction will destroy the rights so far as the minority
are concerned, for the majority firemen have organized them
selves into the Brotherhood lodges, excluded the Negro
minority because of race; formulated the collective bargain
ing policies in secret, without notice to or opportunity given
the Negro minority to be heard; and are using their bar
gaining position to drive the Negro minority out of employ
ment. Congress meant the Railway Labor Act as a shield
to all the employees: not as a shield to some and a sword
to the others.
If the white members wish to retain the Brotherhood as
a purely social organization, divorced from all power of
representation of the craft or class of firemen under the
Act, petitioner and the other Negro firemen will not com
plain about the color bar to membership. But the Brother
hood cannot take its powers as representative without the
52
correlative responsibility of fair representation, and full
and free participation in the bargaining process and giving
the Negro minority the same opportunity to hold it respon
sible for its actions as representative as it gives to its own
members.
Since there is no administrative tribunal established under
the Act to protect the minority workers under such circum
stances, and since failure to take jurisdiction by this Court
would place the minority completely under the heel of an
irresponsible majority, absence of jurisdiction would mean
the sacrifice and obliteration of rights created by Congress,
within the meaning of the exception in the Switchmen’s
case, swpra (L.ed. Adv. p. 91).
C
The Federal Courts Have Jurisdiction of the Present Case
in View of the Direct Challenge of the Constitutionality
of the Collective Bargaining and Representation Pro
visions of the Act, Unless Constitutional Restraints
Are Placed on the Representative Within the Limits
of the Due Process Clause of the V Amendment.
The unconstitutionality argument was pressed on the
District Court but ignored in the Court’s opinion. The point
was expressly raised as
“ Point 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 Amendment and Therefore Unconstitutional”
(expounded pp. 21-22)
in petitioner’s brief in the Circuit Court of Appeals; but
again the Circuit Court of Appeals did not treat the issue
in its opinion.
While Congress can establish a specific form of review
other than judicial and satisfy the claims of constitutionality,
Switchmen’s Union v. National Med. Board, supra,
53
yet it cannot both fail to provide a special tribunal for
notice and hearing and decision, and cut off judicial review
besides, on a claim of unconstitutionality of a statute. Con
gress cannot destroy the right by wholly denying any
remedy.
See Poindexter v. Greenhow, 114 U.S. 270, 29 L.ed. 185.
The argument on the unconstitutionality of the Act having
already been made above, petitioner submits the point with
out further elaboration.
Ill
The Relief Sought Is Appropriate to the Wrongs
Complained of
A
The Norris-La Guardia Act Does Not Prevent Relief
The interpretation and construction of the provisions of
the Railway Labor Act are appropriate subjects of declara
tory relief.
Borchard, Declaratory Judgments, 2d ed., pp. 788-789.
The Norris-La Guardia Act (29 U.S.C., Ch. 6) does not apply
to declaratory judgments.
Frankfurter and Greene, The Labor Injunction, p. 220.
The Norris-La Guardia Act does not prevent an injunc
tion in furtherance of the right of organization, selection
of representative and collective bargaining under the Rail
way Labor Act.
Virginia Rwy. v. System Federation, supra.
See also Senate debate on the bill and statements of
Senators Norris, Blaine, and Wheeler (75th Cong.
Record, vol. 75, pt. 5, pp. 4936-4937).
5 4
B
All Necessary Parties Are Before the Court
The Brotherhood as representative of the entire craft or
class of firemen, and respondent Brotherhood member
Munden who got petitioner’s job under the circumstances
alleged in the complaint are before the Court. Likewise,
the respondent Railroad as a necessary party to the Agree
ment of February 18, 1941 and the Supplement of May 23,
1941 (R. 13-19).
Although relief was not sought against the Railroad,
other than injunction against the enforcement of the two
agreements (R. 10), the Railroad is properly before the
Court because by negotiating with the craft or class repre
sentative a contract discriminatory on its face against the
minority, it was guilty of an unfair labor practice within
the scope of both the Texas & 1ST. O. R. Co. and the Virginian
Rwy. Co. cases, supra, for the Railroad is giving the Broth
erhood members and the union an unfair and discriminatory
advantage by preferential treatment. (Cf. G-. I. Case Co. v.
N.L.R.B., supra.)
CONCLUSION
For the reasons stated above we respectfully submit the
judgment of the Circuit Court of Appeals should be reversed,
and jurisdiction taken.
‘ ‘ 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 slav
ery itself.” Yick Wo v. Hopkins, 118 U. S. 356, 370,
30 L.ed. 220, 226.
Respectfully submitted,
C h a r l e s H . H o u s t o n ,
J o s e p h C. W a d d y , Counsel for Petitioner.
O l iv e r W . H i l l ,
Of Counsel.
5 5
APPENDIX
Memorandum of Understanding of Responsibility for and
Duties Under an Agreement Made Between the Four
Train Service Organizations and the St. Louis-San
Francisco Railway Company
The four train service organizations have insisted and
demanded for several years that St. Louis-San Francisco
Railway Company have an understanding with them that
in the future the Company would not employ any more
negroes in train, engine and yard service, but not including
train porters. This demand and request upon the part of
the organizations has been based upon the allegation that
colored firemen under arrangements prevent and make
almost impossible opportunity for the training of white
firemen to become engineers and limit their opportunities
so to do; that colored employes cannot render the intelli
gent service necessary to safe operation in train, engine
and yard service; that constant friction and irritation
arises out of the whole situation and various other reasons.
The Railway Company has made known to the Organiza
tions their very real apprehension and fears that in the
event such an agreement was made the negroes in train,
engine and yard service now in the employ of the Com
pany, would be either intimidated, threatened or coerced
into abandoning their positions or through indirect methods
of false charges, repeated complaints, alleged infractions
of rules, etc., would be driven from the service of the
Company.
The responsibility for proposing and urging this agree
ment is fully assumed by the four train service organiza
tions. The four train service organizations acknowledge
and fully recognize the right of negroes now in the employ
of the Company to the positions to which they are entitled
56
under schedule rules and their right to fill these positions
under fair and honest conditions without unfair action of
any character being taken by the members of those organ
izations directly or indirectly for the purpose of compelling
the abandoning of these positions or their elimination from
employment. The four train service organizations under
take that they can and will see to it that neither by nor
through their membership is any advantage taken of this
agreement in order to compel the abandonment of the posi
tions now held by negro employes; that on the contrary,
realizing the position of the management and their own
assumption of responsibility, they will put forth every effort
to see that conditions feared by the management shall not
occur. It is the good faith of all parties that the present
negro employes shall have fair and equal rights to remain
in their positions, subject, of course, to the same measures
of discipline and entitled to same impartiality of dealing.
Both parties shall co-operate together and use their best
endeavors to carry this agreement into effect. In event
that a situation shall arise which demonstrates lack of safety
for colored employes or of unfair dealings with them this
matter shall promptly be taken up with the train service
organizations for the purpose of prompt and efficient pre
vention and correction. If it can be fairly shown thereafter
that such conditions continue to exist then the Management
reserves the right to hold itself released from the under
standing entered into.
In accordance with the above it is agreed that effective
March 14, 1928, in the future hiring of employes in train,
engine and yard service but not including train porters, only
white men shall be employed.
(Sgd) J. W. Bowler
General Chairman, B. of L.E.
(Sgd) E. H. Kruse
Ass’t G-rand Chief Engineer, B.L.E.
57
(Sgd) Otis Embry-
General Chairman, B. of L.F. & E.
(Sgd) Fred W. Lewis
Yice President, B. of L.F. & E.
(Sgd) L. S. Thompson
General Chairman, O.R.C.
(Sgd) J. A. Gannon
Yice President, O.R.C.
(Sgd) F. W. Morey
General Chairman, B. of R.T.
(Sgd) R. Harvey
Yice President, B. of R.T.
(Sgd) J. E. Hutchison
Vice-President, St. Louis & San
Francisco Ry.
WITNESS—March 14, 1928.
Edwin P. Morrow
Member Board of Mediation
5 8
BEFORE THE
PRESIDENT’S COMMITTEE ON FAIR EMPLOYMENT
PRACTICE
In Public Hearings Held at Washington, D. C.
September 15-18, 1943
Summary, Findings and Directives
Relating to
the following parties to the
“Southeastern Carriers Conference” or “Washington”
Agreement:
Atlantic Coast Line Railway Company
Atlanta Joint Terminals
Central of Georgia Railway Company
Georgia Railroad
Jacksonville Terminal Company
Louisville and Nashville Railroad Company
Norfolk Southern Railroad Company
St. Louis-San Francisco Railway Company
Seaboard Air Line Railroad Company
Southern Railway Company
and the
Brotherhood of Locomotive Firemen and Enginemen
Issued by order of the President’s Committee on Fair
Employment Practice November 18, 1943
Malcolm Ross
Chairman
The principal grievance of Negro firemen who submitted
complaints to the Committee and testified at the hearings
related to an agreement generally referred to as the “South
eastern Carriers’ Conference Agreement” or the “Wash
ington Agreement,” hereinafter referred to as the Agree-
59
ment. The charge was that the carriers and the union
entered into this agreement February 18, 1941, which be
came effective February 22, 1941; that the Agreement,
among other things,
(a) restricts the proportion of Negro firemen and help
ers to 50 percent or less in each class of service;
(b) prevents the hiring of Negro firemen until the num
ber of white firemen employed is 50 percent or
more; and
(c) requires the filling of new runs and vacancies cre
ated as specified in the Agreement by “promotable
men” who are not and may not be Negroes.
The complainants charge that Negro firemen are dis
placed regardless of seniority, fitness and ability by junior
white firemen, although in many instances Negro firemen
are not permitted to displace junior white firemen. In ad
mitting this charge the carriers point out that the condition
complained of results from the operation of the 50% rule
set forth in the Agreement.
The complainants also charge that under the provisions
of the Railway Labor Act, locomotive firemen employed
by the respective carriers are represented by the Brother
hood of Locomotive Firemen and Enginemen which, under
its constitution, by-laws, or other regulations, prohibits the
membership of Negro firemen therein, because of which
Negro firemen employed by the carriers had no voice or
part in the negotiations of the Agreement; that Negro fire
men were not advised of the negotiations and their employ
ment rights were restricted without their participation or
consent solely because of their race, and in violation of the
provisions of Executive Orders 8802 and 9346.
The carriers admit that they are parties to the Agreement
and that by virtue of its provisions, the employment of
60
Negroes as firemen is restricted. The respective carriers
admit that all the firemen, both white and Negro, employed
by them are represented by the Brotherhood of Locomotive
Firemen and Enginemen. However, they disclaim any
knowledge of the provisions of the constitution of the
Brotherhood or whether Negro firemen are prohibited or
prevented from having a voice or part in the negotiation
of agreements.
The Brotherhood of Locomotive Firemen and Enginemen
filed no answer to any of the charges.
Analysis of the Agreement and the uncontroverted testi
mony of the witnesses reveal that actually there were two
agreements, the Southeastern Carriers Conference Agree
ment or “Washington Agreement,” dated February 18,1941,
effective February 22, 1941; and the other, a Mediation
Agreement, dated and effective on the same dates, by which
it was agreed that the proposals of the Brotherhood of
Locomotive Firemen and Enginemen, hereinafter set forth,
were disposed of by the Southeastern Carriers Conference
Agreement.
The Mediation Agreement indicates that prior to its exe
cution the General Grievance Committees of the Brother
hood of Locomotive Firemen and Enginemen submitted to
21 carriers, including the carriers referred to herein, the
following proposals for agreement:
“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 serv
ice, only promotable firemen or helpers will be
assigned to them.
“3. When permanent vacancies occur on established
runs or jobs in any service, only promotable fire
men or helpers will be assigned to them.
61
“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.”
When the parties were unable to agree, an Application
for Mediation, dated January 15, 1941, was made to the
National Mediation Board under the provisions of the Rail
way Labor Act. The first three of the above proposals
were rejected by the carriers, the fourth proposal became
a part of the Southeastern Carriers Conference Agreement,
the pertinent provisions of which are 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 percent in each
class of service established as such on each indi
vidual 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 senior
ity district only promotable men will be hired.
b. Until such percentage is reached on any senior
ity district all new runs and all vacancies cre
ated by death, dismissal, resignation or dis
qualification shall be filled by promotable men.
A change in the starting 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
6 2
other than steam power, shall be permitted to exer
cise seniority in accordance with their seniority
and the rules of their respective schedules.
“4. It is understood that promotable firemen, or help
ers 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 favorable rules or conditions than above stip
ulated, such rules and conditions may at the option
of such committee be retained in lieu of the above
provisions.”
“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 repre
sented which will restrict the employment of help
ers on other than steam power to promotable men;
and it is agreed that this question is to be renego
tiated to a conclusion with the individual carriers.”
Had the carriers agreed to the Brotherhood’s first three
proposals, 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 proscription against their assignment
to new runs and permanent vacancies.
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 virtu-
63
ally guaranteed at least 50% 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
wherever they exceed 50%. The ban against such employ
ment has not been removed, even though their numbers are
now below 50% of the total, and despite the existing fire
men 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 South
ern Bailway Agreement which, depending on the District
involved, limits Negro firemen to proportions ranging from
10% to 50%. Another is the St. Louis-San Francisco Agree
ment of 1928 which flatly prohibits their employment al
together. Fourthly, the percentage rule and the provision
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 become or
are rapidly becoming the monopoly of the white firemen.
Consequently, Negroes have been and are being relegated
to the lowest paid, least desirable jobs, to part time work
and to extra or even emergency status.
A more detailed analysis of the evidence relating to the
actual operation and effect of the Agreement on the various
railroads which are parties to the Agreement is contained
in the separate Summaries, Findings and Directives issued
by the Committee with respect to each carrier. Among other
things, the evidence establishes that Negro firemen are not
“promotable” to positions of locomotive engineers, under
the existing rules, practices and procedures recognized and
followed by the carriers and the Brotherhood of Locomotive
Firemen and Enginemen. The application of the definition
of “promotable firemen” in Section (4) of the Agreement
64
thus prevents the hiring and limits the promotional oppor
tunities of Negroes solely because of race.
By virtue of the Authority conferred upon it by Executive
Order 9346 to “make findings of fact and take appropriate
steps to obtain elimination of . . . discrimination” forbidden
by the Order, the Committee makes the following findings
and issues the following directives:
Findings
1. The Committee finds that the carriers referred to herein
and the Brotherhood of Locomotive Firemen and Engine-
men are parties to an agreement entered into February
18, 1941 (effective February 22, 1941) known as the
Southeastern Carriers Conference Agreement or the
“Washington Agreement” which discriminates against
Negroes because of their race in that, among other things,
it (a) restricts the proportion of Negro locomotive fire
men and helpers to 50% or less in each class of service;
(b) eliminates the hiring of Negro locomotive firemen
and helpers until such proportion or percentage is estab
lished; and (c) provides for filling new runs or vacan
cies, created as specified in the Agreement, by “pro-
motable men” who, under present rules, practices and
procedures, are not and may not be Negroes.
2. The Committee finds that said Southeastern Carriers
Conference Agreement contains no provisions with re
spect to wage and hours, and that, except for the provi
sion relating to examinations for firemen, its sole purpose
and effect is to restrict the employment opportunities
of Negro firemen solely because of their race.
3. The Committee finds that the said Southeastern Carriers
Conference Agreement is in conflict with and in violation
of Executive Order 9346.
65
4. The Committee finds that by continuing after the effec
tive dates of Executive Orders 8802 and 9346 to recog
nize and operate under said Southeastern Carriers’ Con
ference Agreement, the carriers referred to herein and
the Brotherhood of Locomotive Firemen and Enginemen
have violated and are violating the provisions of Execu
tive Order 9346.
I
5. The Committee further finds that said Southeastern Car
riers Conference Agreement may, under the provisions
of the Railway Labor Act, be renegotiated, modified or
set aside by agreement between the parties hereto.
6. The Committee finds that the Brotherhood of Locomotive
Firemen and Enginemen has been recognized as the bar
gaining agent and grievance representative for all loco
motive firemen employed by the carriers referred to
herein.
7. The Committee finds that the Brotherhood of Locomotive
Firemen and Enginemen, while purporting to bargain
for and represent the Negro firemen employed by the
carriers referred to herein, nevertheless discriminates
against said Negro firemen, because of their race, in that
it denies them membership in its organization, refuses
them any voice or part in the negotiations of agreements
or changes therein, affecting working conditions, em
ployment opportunities, policies or practices, and refuses
to represent them with respect to their grievances when
such grievances conflict with the interests of junior white
firemen.
8. The Committee finds that the Brotherhood of Locomotive
Firemen and Enginemen, by continuing to engage in the
practices set forth in Finding #7 above after the effec
tive dates of Executive Orders 8802 and 9346, has vio
lated and is violating the provisions of Executive Order
9346.
6 6
Directives
1. The Committee directs that the carriers herein referred
to and the Brotherhood of Locomotive Firemen and En-
ginemen immediately cease and desist from their dis
criminatory practices affecting the employment of Ne
groes.
2. The Committee directs that the carriers referred to
herein and the Brotherhood of Locomotive Firemen and
Enginemen forthwith set aside the agreement dated Feb
ruary 18, 1941 and known as the Southeastern Carriers
Conference Agreement, or “ Washington Agreement.”
3. The Committee directs that the carriers adjust their em
ployment policies and practices so that all needed work
ers shall be hired and all employees shall be promoted
or upgraded without regard to race, creed, color or na
tional origin.
4. The Committee directs that should the carriers and the
Brotherhood of Locomotive Firemen and Enginemen en
ter into any agreement in lieu of the said Southeastern
Carriers Conference Agreement or “ Washington Agree
ment,” the new agreement shall contain no provisions
or terms discriminating against any employee or appli
cant for employment because of race, creed, color or
national origin.
5. The Committee directs that the Brotherhood of Locomo
tive Firemen and Enginemen cease and desist from the
discriminatory practices set forth in the foregoing Find
ing #7, including the cessation of all practices which
deprive Negro employees of the same opportunities af
forded their white fellow-workers in choosing and con
ferring with bargaining representatives in respect to the
adjustment of grievances and the negotiation of any
6 7
agreements with said carriers concerning hiring, tenure,
promotion or other conditions of employment.
6. The Committee directs that the respective carriers and
the Brotherhood of Locomotive Firemen and Enginemen
advise the Committee within 30 days from the receipt of
these directives of the steps taken to comply therewith.
Transportation Act, February 28, 1920, c. 91, 41 Stat. 456
Title III—Disputes between carriers and their employees
and subordinate officials
Sec. 301. It shall be the duty of all carriers and their
officers, employees, and agents to exert every reasonable
effort and adopt every available means to avoid any in
terruption to the operation of any carrier growing out of
any dispute between the carrier and the empoyees or sub
ordinate officials thereof. All such disputes shall be con
sidered and, if possible, decided in conference between rep
resentatives designated and authorized so to confer by the
carriers, or the employees or subordinate officials thereof,
directly interested in the dispute. If any dispute is not de
cided in such conference, it shall be referred by the parties
thereto to the board which under the provisions of this title
is authorized to hear and decide such dispute.
Sec. 302. Railroad Boards of Labor Adjustment may be
established by agreement between any carrier, group of
carriers, or the carriers as a whole, and any employees or
subordinate officials of carriers, or organization or group of
organizations thereof.
Sec. 303. Each such Adjustment Board shall, (1) upon
the application of the chief executive of any carrier or
organization of employees or subordinate officials whose
members are directly interested in the dispute, (2) upon the
written petition signed by not less than 100 unorganized
employees or subordinate officials directly interested in the
6 8
dispute, (3) upon the Adjustment Board’s own motion, or
(4) upon the request of the Labor Board whenever such
board is of the opinion that the dispute is likely substantially
to interrupt commerce, receive for hearing, and as soon as
practicable and with due diligence decide, any dispute in
volving only grievances, rules, or working conditions, not
decided as provided in section 301, between the carrier and
its employees or subordinate officials, who are, or any or
ganization thereof which is, in accordance with the provi
sions of section 302, represented upon any such Adjustment
Board. (Italics ours)
Railway Labor Act, May 20,1926, c. 347, 44 Stat. part 2, 577
General Duties
Sec. 2. First. It shall be the duty of all carriers, their
officers, agents, and employees to exert every reasonable
effort to make and maintain agreements concerning rates
of pay, rules, and working conditions, and to settle all dis
putes, whether arising out of the application of such agree
ments or otherwise, in order to avoid any interruption to
commerce or to the operation of any carrier growing out
of any dispute between the carrier and the employees
thereof.
Second. All disputes between a carrier and its employees
shall be considered, and, if possible, decided, with all ex
pedition, in conference between representatives designated
and authorized so to confer, respectively, by the carriers
and by the employees thereof interested in the dispute.
Third. Representatives, for the purpose of this Act, shall
be designated by the respective parties in such manner as
may be provided in their corporate organization or unin
corporated association, or by other means of collective
action, without interference, influence, or coercion exercised
by either party over the self-organization or designation of
representatives by the other. (Italics ours)
69
Herbert R. Northrup, Organized Labor and the Negro,
Ch. I ll “The Railroads” (Harper & Brothers, 1944):
The Operating Department to 1930
The “ Big Four” railroad transportation unions, the
Brotherhood of Locomotive Engineers, the Order of Rail
way Conductors, the Brotherhood of Locomotive Firemen
and Enginemen, and the Brotherhood of Railroad Trainmen,
have always limited their membership to white persons.1
Nearly all other railroad unions have adopted racial restric
tions similar in character. For example, the Switchmen’s
Union, a small AFL affiliate whose jurisdiction lies wholly
within that of the Trainmen, has occasionally outdone its
larger rival in its opposition to Negroes. Even insurgent
industrial organizations, such as Eugene Debs’ short-lived
American Railway Union or the American Federation of
Railroad Workers, have not granted Negroes equal status.2 3
The employment of Negroes in the train and engine
services has always been confined almost exclusively to
the southern and border states. Until World War I, it was
usual for railroads in these areas to use Negro firemen
and trainmen (brakemen, switchmen, or flagmen) on from
25 to 90 per cent of their runs. Contrary to general custom,
however, Negro firemen and trainmen have almost never
been promoted to engineer and conductor. Consequently,
the racial restrictions of the Engineers’ and Conductors’
unions usually, although certainly not always, have served
merely to institutionalize the status quo.
Before World War I, Negro railroad workers received
lower wages than whites for performing the same work.
Thus southern railway management found in the Negro a
1 T h e L ocom otiv e E n g in eers w as fou n d ed in 1863; the R a ilw a y C on
du ctors in 1868 ; th e L ocom otiv e F irem en in 1873 ; and th e R a ilroa d T ra in
m en in 1883. T h e y a re n o t affiliated w ith e ith er th e A F L o r th e C IO .
3 U n less o th erw ise s ta ted , the m a teria l presen ted in th is section is
based on th e ex ce llen t a ccou n t in S. D . S p ero and A . L . H a rr is , The Black
Worker, N ew Y o r k , 1931, pp . 284-307.
70
convenient tool with which to light unionism and to depress
wages. The Locomotive Firemen’s and the Railroad Train
men’s unions dared not press for wages too high above
those paid to Negroes lest their members be entirely re
placed by black crews. Wages in the South for these occu
pations were thus considerably below those in other areas.
During the last two decades of the nineteenth century
a vigorous debate on the “ Negro question” was waged in
the journals of the Firemen and the Trainmen. These
Brotherhoods had two possible methods of meeting the com
petition of the unorganized Negroes. The first, as some
northern member suggested, was to admit the Negroes into
their union and to “ teach and educate him” to present a
solid front against the employer. The second was to force
the railroads to eliminate, the Negro from train and engine
service. The social origins of the Big Four made it almost
inevitable that the second alternative would be chosen.
Except for the Trainmen, the Brotherhoods were founded
as fraternal and beneficial societies rather than as trade
unions. Much emphasis is still placed on these social fea
tures. To admit Negroes, the southern members declared,
would be tantamount to admitting that the Negro is the
“ Social equal” of the white man. This they refused to
countenance. In 1899, the convention of the Trainmen adop
ted a resolution calling on the four Brotherhoods to “ give
their support toward clearing our lines” of Negroes. The
Firemen had already espoused this policy. Since then, offi
cials of these two unions have made zealous efforts to carry
out the mandates of that resolution.
The issues between the black and white railwaymen were
first brought before the public during the decade preceding
World War I. Protesting against the increased use of Ne
groes, white firemen struck on some southern railroads, and
threatened walkouts on several others. They failed to dis
lodge the black workers, but they were able to force a num
ber of railroads to agree not to increase the percentage of
colored firemen, and not to use Negroes on certain runs or
71
in certain territories. Similar provisions were included in
the 1910 agreement signed by the Trainmen and the South
ern Railroad Association, which, in addition, barred Negroes
from being employed henceforth as baggagemen, flagmen, or
yard foremen.
It was not until World War I, however, when the federal
government took over the roads, that a fundamental change
in the position of Negro railwaymen was effected. Large
numbers of them left the industry for more remunerative
employment elsewhere. To halt this exodus of skilled labor,
and as “ an act of simple justice,” William Gr. McAdoo,
director-general of the railroads, issued an order providing
that after June 1, 1918, “ colored men employed as firemen,
trainmen, and switchmen shall be paid the same rates as
are paid white men in the same capacities.”
Immediately after the war, the white railroad unions re
newed their attack on the Negro. The federal government’s
World War I labor policy had greatly strengthened the rail
road unions, and the equalization of pay order reduced the
incentive of employers to hire Negroes. In addition, the de
cline in railroad employment from 2 million in 1920 to 1.6
million in 1921, (where it remained fairly constant till 1930)3
made the white workers all the more anxious to displace
the Negroes. These new factors worked very much to the
advantage of the Brotherhoods.
Early in 1919, the Trainmen forced the IT. S. Railroad Ad
ministration, by a threat to tie up all southern lines, to agree
to a new set of rules, which stipulated that when vacancies
occurred or new runs were created, the senior man would
have preference in choice of runs or vacancy either as bag
gageman, brakeman, or switchman, except that Negroes
were not to be used as conductors, flagmen, baggagemen, or
yard conductors. Since Negroes could not work as flagmen,
many of the older white trainmen followed instructions of
their union president and exercised their seniority on brake-
3 H a r r y D . W o lf , “ R a ilro a d s ,” in H a r r y A . M illis et al., How Collective
Bargaining Works, N ew Y o rk , 1942, p . 321.
72
men’s jobs, “bumping” junior Negroes; the younger whites
then chose jobs as flagmen where they could not be bumped
by senior Negroes. Hence many colored men who had been
in train service for a considerable length of time were dis
placed.
Negro train porters also suffered heavy losses of jobs in
the period immediately after World War I. These workers
perform services similar to those rendered by Pullman and
chair car porters, but they are often required to act as
brakemen as well. Thus Negroes often fill two jobs at a
wage lower than that paid a white worker for doing one.
Attempting to abolish wage inequalities, the Railroad Ad
ministration classified porters handling brakemen’s duties
as “ porter-brakemen” and gave them brakemen’s pay. In
many instances, the wages of these workers were more than
doubled. But because Negro porter-brakemen’s wages were
raised to the same level as those of white trainmen, the
seniority lists for porters and brakemen on many roads
were consolidated.4 Whites were, therefore, made eligible
to the post of porter-brakemen without at the same time
opening to Negroes any of the jobs from which they had been
barred, and more displacement of Negroes resulted.
This same agreement also provided that “ porters shall
have no rights as trainmen except where such rights may
have been established by three months continuously in
freight service.” Since Negro porters have always been
hired for passenger, and never for freight service, this
clause has had the effect of preventing Negro porters from
ever achieving a trainman’s status. In addition, many con
tracts of the Trainmen’s union stipulate that only “ pro-
motable” (i.e., white) men may be hired for freight service.5
4 S om e ra ilw a y s , e .g ., th e S t. L ou is and S an F r a n c is co , red u ced the
w a g es o f p or te r -b ra k em en to p o r te rs ’ levels a ft e r th e w a r , b u t fo r ce d
th em to con tin u e p e r fo r m in g b ra k em en ’s w ork .
5 E .g ., the c o n tra c t in e ffe ct b etw een th e B R T and th e N o r fo lk &
W estern R a ilw a y s in ce 1908 p rov id es th a t a ll v a ca n cie s as ro a d brakem en
sh a ll b e filled w ith p rom ota b le m en.
73
Taken with the first clause, it effectively bars Negroes from
both freight and passenger service.
The hostility of the white trainmen toward the Negro has
also been a major reason for the passage of many state
“ full crew” laws. Legislation of this type usually provides
that a train crew shall consist of five persons: an engineer,
a fireman, a conductor, a brakeman, and a flagman. While
usually disguised as a safety measure, it is in fact a make-
work, or “ featherbed,” rule written into law.6
By 1939, full crew laws were in effect in twenty-four
states.7 Most of them have been enacted in the North and
obviously are not aimed at the Negroes. In the southern
states, however, the Trainmen’s union has sponsored full
crew legislation, not only as an ordinary make-work meas
ure, but also as a means of displacing Negroes. For state en
forcement officials usually rule that the Negro porter is not
a brakeman even though he performs brakeman’s duties.
The IT. S. Supreme Court has not actually endorsed such an
interpretation, but it has refused to issue an order pro
hibiting prosecution of a railroad under a state full crew
law for using Negro porter-brakemen instead of white
brakemen.8 The Big Four have attempted to induce Con
gress to pass a national full crew law, but without success.
Like the Railroad Trainmen, the Locomotive Firemen
continued its drive against the Negro with renewed vigor
after World War I. Contracts were continually altered
with each new stipulation further reducing both the per
centage of Negro firemen and the type of service and the
territory in which Negroes could be employed. Before
World War I, 80 per cent of the firing force on the Southern
Railway were colored; by 1929 it had been reduced to 33 1/3
per cent. On the Atlantic Coast Line and the Seaboard Air
6 S. H . S lich ter, Union Policies and Industrial Management, W a sh in g
ton, 1941, pp . 187-89.
7 B .L .F . & E ., State Laws Relating to Full Crew, Qualification of Per
sonnel, Train Lengths, Etc., C leveland , 1939, pp . 2-42.
8 Beal v. Missouri Pac. R. R. Corp., 312 U . S. 45 (1 9 4 1 ).
74
Line the percentages were reduced from 90 to 50 and 90
to 25, respectively; and so on.9
In a number of instances, however, the Firemen’s and
Trainmen’s unions were able to go much further. They
induced several roads, including the huge San Francisco and
St. Louis System, to agree to fill all vacancies with white
men, thus pointing to the eventual elimination of Negroes
from the firing and train services.
A comparison of the census figures for the years 1910-
1930, as shown in Table II, indicates clearly the effects of
the activities of the Brotherhoods. In the ten southern
states in which more than 90 per cent of the Negro firemen
and trainmen are found, 41.3 per cent of the firemen and
29.8 per cent of the trainmen were colored in 1910; twenty
years later, these percentages had dropped to 33.1 and 16.3,
respectively. The number of train porters declined from
7,000 in 1920 to less than one-half that figure in 1930.10 Al
though this decline was probably primarily attributable to
the general decrease in employment on the railroads, un
doubtedly it was also influenced by the activities of the
Trainmen’s union.
The Operating Department, 1930-1943
During the 1930’s, Negro firemen and trainmen also lost
ground, but at a slower rate than during the previous decade
as the data in Table II indicate. There was, however, no
letup in the strenuous opposition of the Brotherhoods to
their employment. An examination of their activities shows
that they were preparing for an offensive which would drive
the Negro entirely from the railroads. Before describing
this offensive, which was launched after the 1940 census
was taken, it is appropriate to discuss the events of the
1930’s which lead to the present crisis.
After remaining relatively stable at 1.6 million between
9 C op ies o f a greem en ts in w r it e r ’s possession .
10 F r o m In ters ta te C om m erce C om m ission w a g e rep orts .
TABLE Ila
All Locomotive F iremen, Number and Proportion of Negroes in the United States, and in the South, 1910-1940
U N IT E D S T A T E S T H E S O U T H 1
Y e a r A ll W o rk e r s N eg roes P e r C en t N e g ro A ll W o rk e rs N eg roes P e r C en t N eg ro
1910 76,381 5,188 6.8 11,782 4,897 41.6
1920 91,345 6,505 7.1 13,621 5,636 41.4
1930 67,096 4,642 6.9 11,534 3,818 33.1
19403 47,410 2,356 5.0 7,215 2,128 29.5
Source: U. S. Census of Occupations, 1910-1940.
1 Includes Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia.
2 Includes total of “employed” and “Experienced Workers Seeking Work” groups, which is roughly equivalent to “gainful workers” (workers attached to industry) as used in previous enumerations.
T A B L E l i b
All Railway Trainmen,3 Number and Proportion of Negroes in the United States, and in the South, 1910-1940
U N IT E D S T A T E S T H E S O U T H
Y e a r A ll W ork ers N eg roes P e r C ent N e g ro A ll W o rk e rs N eg roes P e r C en t N e g ro
1910 165,530 6,839 4.1 16,381* 4,886 29.8
1920 216,024 7,609 3.5 22,944s 5,083 22.2
1930 180,414 5,918 3.3 22,929 3,745 16.3
1940 113,736 2,857 2.5 13,604 2,060 15.1
Source: U. S. Census of Occupations, 1910-1940.
3 Includes brakemen, switchmen, and flagmen.
4 Data for eight states only.
5 Data for nine states only.
76
1921 and 1929, employment in the railway industry began
a further decline in 1930. It fell below a million in 1933 and
fluctuated around that figure for the rest of the decade.11
Because of the strict seniority which prevails in the railroad
industry white trainmen and firemen were displaced in
large numbers by conductors and engineers senior in serv
ice, whose jobs had been abolished by technological progress
or business depression.12 Since most Negro firemen and
trainmen were hired before World War I, they had been
able to accumulate more seniority than whites and were
therefore entitled to good jobs while whites were either as
signed to inferior work or displaced altogether.
This situation resulted in intense racial antagonism which
culminated in a reign of terror in the lower Mississippi
Valley. A careful investigation revealed that at least ten
Negro firemen and trainmen were killed and twenty-one
wounded in this area between September 7, 1931 and July
10,1934.13
Nor was this the first time that such violence had occurred
there. A decade previously, a similar outbreak resulted in
the death of at least five Negro firemen and injuries to eight
others.
Yet it must be emphasized that not violence, but the
peaceful methods employed by the Brotherhoods have been
primarily responsible for the present plight of Negro rail-
waymen. Since 1934, they have found federal agencies
useful in accomplishing their purpose.
Collective bargaining on the railroads has been carried
11 W o lf , op. cit., p . 321.
13 D u r in g 1932-33, th e a v era g e a g e o f co n d u cto rs w a s 50 y ea rs , w ith 25
y ea rs o f se rv ice . P r o m 75 to 90 p e r cen t o f th e tra in m en w ere dem oted
con d u cto rs . T ra in m en o f 15-25 y e a r s ’ ex p erien ce w ere on fu r lo u g h or
d isch a rg ed . A s im ila r s itu a tion ex isted a m on g en g in eers and firem en . See
J . D ou g la s B ro w n et al., Railway Labor Survey, N ew Y o r k , 1933, esp.
p. 106.
13 H . R . C a y ton and G. S. M itch ell, Black W orkers and the New Unions,
C h ap el H ill, N . C ., 1939, pp . 43 9 -4 3 ; and “ P r o p o se d R e p o r t o f th e F ed era l
C o ord in a tor o f T r a n sp o rta tio n on A lle g e d D iscr im in a tion A g a in s t C olored
R a ilw a y E m p loy ees o f the I llin o is C en tra l S y stem ,” u n p u b lish ed M S . in
U . S. A rch iv es .
77
on since 1926 within the framework of the Eailway Labor
Act. As initially written, this Act guaranteed workers the
right to choose their bargaining representatives. As in
terpreted by the Supreme Court, however, it did not force
that carrier to deal only with the representatives chosen by
the majority of employees.14 In 1934, the Eailway Labor
Act was amended to provide that: “The majority of any
craft or class of employees shall have the right to determine
who shall be the representative of the class or craft. . . .”
In addition, the 1934 amendments outlawed yellow-dog
and closed-shop contracts and established the National
Mediation Board and the National Eailway Adjustment
Board. . . .
Under the Amended Act, the Mediation Board determines,
by vote if necessary, which union shall act as sole bargaining
agent of any class or craft. The Firemen’s and the Train
men’s unions have been so designated for their respective
classes, on 99 per cent of the total mileage covered by Class
I * * railways.16 If, for example, 51 per cent of the firemen
on a particular railroad are white, the former can obtain
exclusive bargaining rights and thus become the duly ac
credited representative of 49 per cent of the firemen who are
barred from joining it. This provision, which, under ordi
nary circumstances, would ensure effective union manage
ment relations, makes collective bargaining a mockery for
the black minority on the roads when considered in the
light of the almost universal exclusion practiced against
them. The writer does not wish to argue for minority rep
resentation under the Eailway Labor Act. Experiences with
it have shown that it merely disrupts collective bargaining
without effectively protecting the interests of the minority.17
u Brotherhood v. Texas and N. O. Railroad Co., 281 U . S. 557 (1 9 3 0 ).
* C lass I ra ilw a y s a re th ose h a v in g an ann ual op e ra t in g reven u e o f
$1 m illion . T h e y em p loy abou t 90 p e r cen t o f all ra ilw a y w ork ers .
16 N a tion a l M ed ia tion B oa rd , Eighth Annual Report, 1942, p . 31.
_17 T h e ex p erien ce o f th e N R A L a b or B oa rd is a case in poin t. F o r a
v iew s im ila r to th a t ex p ressed h ere, see A . P . R an d olph , “ T h e C ris is o f
N eg ro R a ilro a d W o r k e r s ,” American Federationist, X L Y I (A u g u s t
1 9 3 9 ), 818-19.
78
But; there is a serious question of public policy involved
when an agency of the federal government designates an
organization as sole bargaining representative of a group
of workers, and yet a minority of these workers are for
bidden, solely because of their color, to join and to par
ticipate in the activities of this organization. Moreover,
the attitude of the Mediation Board toward Negroes, par
ticularly in jurisdictional disputes between Big Four unions,
has not been above criticism, . . .
As the Big Four are unaffiliated organizations, there is
no central governing body to settle disputes as to seniority,
jurisdiction, etc., which frequently rise amongst them. Dur
ing the twenty years preceding 1925, relations between the
Conductors and the Trainmen and between the Engineer
and the Firemen were governed by agreements. Soon there
after, however, these compacts were abrogated, and since
then jurisdictional disputes have been frequent as each has
attempted to take over members of the other. Ever since
its inception in 1934, the Mediation Board has been com
pelled to spend a considerable portion of its time attempting
to resolve these interunion squabbles. In the South, the
Engineers and Firemen have made the Negro a pawn in their
disputes. An examination of a few of these cases will
reveal how representation under the Amended Railway
Labor Act can work to the disadvantages of Negroes.
Amendments to the United States Constitution
V
. . . nor be deprived of life, liberty, or property, without due
process of law.
XIV
Sec. 1 . . . nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to
79
any person within its jurisdiction the equal protection of the
laws.
XY
Sec. 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by
any State on account of race, color, or previous condition of
servitude.
Sec. 2. The Congress shall have power to enforce this
article by appropriate legislation.
Norris-LaGuardia Act, 29 U. S. 0. Oh. 6
Sec. 107. No court of the United States shall have juris
diction to issue a temporary or permanent injunction in any
case involving or growing out of a labor dispute, as defined
in sections 101-115 of this title, except after hearing the
testimony of witnesses in open court (with opportunity for
cross-examination) in support of the allegations of a com
plaint made under oath, and testimony in opposition thereto,
if offered, and except after findings of fact by the court, to
the effect—
(a) That unlawful acts have been threatened and will be
committed unless restrained or have been committed and
will be committed unless restrained, but no injunction or
temporary restraining order shall be issued on account of
any threat or unlawful act excepting against the person or
persons, association, or organization making the threat or
committing the unlawful act or actually authorizing or rati
fying the same after actual knowledge thereof;
(b) That substantial and irreparable injury to com
plainants property will follow;
(c) That as to each item of relief granted greater injury
will be inflicted upon complainant by the denial of relief than
will be inflicted upon defendant by the granting of relief;
80
(d) That complainant has no adequate remedy at law;
and
(e) That the public officers charged with the duty to pro
tect complainant’s property are unable or unwilling to
furnish adequate protection.
Civilian Conservation Corps Act, 16 U. S. C. Sec. 584g— 1
“ • • • Provided further, That no person shall be excluded
from the training program authorized by this section on
account of race, color, or creed.”
Civilian Pilot Training Act, 49 U. S. C. Sec. 752
“ • . . Provided, That in the administration of this chap
ter, none of the benefits of training or programs shall be
denied on account of race, creed or color.”
Civil Service Classification Act, 5 U. S. C. Sec. 681
“ (e) In carrying out the provisions of sections 681-684 of
this title, and the provisions of sections 661-673 of this title
there shall be no discrimination against any person, on
account of race, creed, or color.”
Selective Training and Service Act, 50 U. S. C. Sec. 304
“ (a) . . . Provided, That in the selection and training
of men under this Act, and in the interpretation and execu
tion of the provisions of this Act, there shall be no discrimi
nation against any person on account of race or color: . . .
October T erm, 1944
T o m T u n s t a l l , p e t it io n e r
" v . _
B r o t h er h o o d o f L o c o m o t iv 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 odge N o . 76, P o rt N o r f o l k
L odge N o . 775, e t a l .
ON WRIT OF, CERTIORARI TO THE UNITED STATES CIRCUIT
COURT OF APPEALS FOR THE FOURTH CIRCUIT
B e s t e r W i l l i a m S t e e l e , p e t it io n e r
' v. ' _
L o u is v il l e & N a s h v i l l e R ailr 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 iv e F i r e m e n a n d
E n g i n e m e n , a n U n in c o r p o r a ted A sso c iatio n ,
ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
THE STATE OF ALABAMA
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
I N D E X
Page
O pin ions b e lo w ________
Q uestions p resen ted___
Statutes in v o lv e d ______
S tatem en t_______________
Su m m ary o f A rg u m en t______________________________________________ 11
A rg u m en t______________________________________________ _ _____________ 13
I. T h e R a ilw a y L abor A ct im poses u pon the representa
tiv e o f a cra ft th e ob liga tion to represent all the em
ploy ees w ith in th e cra ft w ith ou t discrim ination be
cause o f ra ce ________________ ____________________________ 15
A. T h e right and pow er o f the representative des
ignated b y a m a jor ity o f the em ployees in a
cra ft or class to a ct as the exclusive repre
sentative o f all the em ployees in the craft or
class are derived from the statute____________ 15
B . T h e righ t to be exclusive representative im
plies a d u ty to a ct on behalf o f all em ployees
in th e unit w ith ou t d iscrim in ation___________ 18
1. T h e term s o f the A c t ____________________ 20
2. T h e h istory of the A c t__________________ 25
C. A ssum ing the truth o f the allegations o f the
com pla in ts, the B rotherh ood , w hile p u rport
ing to a ct as representative o f all m em bers
o f th e cra ft o f firem en, is discrim inating
against N egro firem en_________________________ 33
II . T h e cou rts h ave ju risd iction to en join a union from
actin g as sta tu tory representative, and an em ployer
from bargain ing w ith it as such, so lon g as it fails
to a ct w ith ou t discrim ination on behalf o f all the
m em bers o f th e c r a ft____________________________________ 41
A ppend ix :
A . T h e pertin ent p rov is ions o f the R ailw ay L abor A c t____ 50
B. T h e pertin ent p rov is ions o f the N ationa l L abor R ela
tions A c t__________________________________________________ 53
C IT A T IO N S
C ases:
Aetna Iron & Steel Co., 35 N . L. R.. B. 130_________________ 40, 41
American Tobacco Company, Matter of The, 2 N . I.. R . B.
198_______________________ ____________________________________ 40
Atlanta Terminal Co., In the Matter of Representation of
Employees of the, Case N o. R - 7 5 __________________________ 40
616558-44- -1 ( I )
to
t
o
to
t
o
IV
M iscellan eous— C on tin u ed . Page
L orw in an d W u bnig , Labor Relations Board (B rook ings
In stitu tion , 1935), pp . 109-113, 2 6 8 -2 7 2 _______________ _ 27
N ation a l M ed iation B oard , T h e R a ilw ay L a b or A ct and th e
N ationa l M ed iation B oard (A ugust 1940), p . 17_________ 40
.N orthrup, H erbert R ., Organized Labor and the Negro
(H arper & B ro., 1944) pp . 4 8 -1 0 1 __________________________ 14
40 Op. A. G. N o. 59, D ecem ber 29, 1942____________________ 15, 30
P residentia l E xecu tive O rder N o. 9346, dated M a y 27, 1943- 4
P resident’s C om m ittee on Fair E m p loym en t P ractice,
Summary, Findings and Directives relating to the “ South
eastern Carriers Conference” or “ Washington” Agreement,
issued N ov em b er 18, 1943___________________________________ 4, 5
S. 2926, 73rd C on g., 2nd sess__________________________________ 27
S. R ep . N o . 573, 74th C on g., 1st sess________________________ 30, 31
Spero, Sterling D ., and H arris, A bram L., The Black Worker
(C olu m bia U n iversity Press, 1931) pp . 2 8 4 -3 1 5 __________ 14
JttthsjSttjratt (§mrt of tto MmM plates
O c to b er T e r m , 1944
Nos. 37 a n d 45
T o m T u n s t a l l , p e t it io n e r
v.
B r o t h e r h o o d o f L o c o m o t iv e B i r e m e n a n d E n-
g i n e m e n , O c e a n L odge N o. 76, P ort N o r f o l k
L odge No. 775, e t a l .
ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT
COURT OF APPEALS FOR THE FOURTH CIRCUIT
B e s t e r W i l l i a m S t e e l e , p e t it io n e r
v.
L o u is v il l e & N a s h v i l l e R ailr o ad 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 iv e F i r e m e n a n d
E n g i n e m e n , a n U n in c o r p o r a ted A sso ciatio n ,
E T A L .
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
THE STATE OF ALABAMA
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
These cases raise issues as to the interpretation
of the majority rule provisions of the Railway
Labor Act. This brief is presented because of
the importance of these questions to the adminis
tration both of that statute and of the National
(i)
2
Labor Relations Act, which contains similar pro
visions.
O P IN IO N S B E L O W
The opinion of the Circuit Court of Appeals for
the Fourth Circuit in the T unstall case (No. 37,
R. 55-59) is reported in 140 F. (2d) 35. The
opinion of the Supreme Court of Alabama in the
S tee le case (No. 45, R. 131-144) is reported in
16 So. 2d 416.
Q U E S T IO N S P R E S E N T E D
The questions considered in this brief are:
1. Whether, under the Railway Labor Act, a
labor organization acting as representative of a
craft or class, while it so acts, is under an obliga
tion to represent all the employees of the craft
without discrimination because of their race.
2. Whether the courts have jurisdiction to pro
tect a minority of a craft or class against a viola
tion of the above obligation.
S T A T U T E S IN V O L V E D
The statute primarily involved is the Railway
Labor Act, 48 Stat. 1185, 45 IT. S. C., Sections
151 et seq . Its pertinent provisions, as well as
those of the National Labor Relations Act, 49
Stat. 449, 29 IT. S. C. Sections 151 e t seq ., are set
forth in the Appendix { in fr a , pp. 50-54).
S T A T E M E N T
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 of the Negro firemen as a class (No. 37,
R. 5; No. 45, R. 84). A majority of the firemen on
each of respondent railroads are white, and are
members of the respondent Brotherhood of Loco
motive Firemen and Enginemen,2 * but a substan
tial minority of the firemen are Negroes (No. 37,
R. 6; No. 45, R. 83). Respondent railroads have
dealt with the Brotherhood as the exclusive col
lective bargaining representative of the craft of
firemen under the Railway Labor Act and peti
tioners and other Negro firemen have been re
quired to accept the Brotherhood as their repre
sentative for the purposes of the Act (No. 37,
R. 6-9; No. 45, R. 86-87), although the constitu
tion and ritual of the Brotherhood exclude
Negroes from membership solely because of race
(No. 37, R, 6; No. 45, R. 83).
On March 28, 1940, the Brotherhood,’ purport
ing to act as representative of the entire craft of
firemen under the Railway 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
of the country of its desire to amend the existing
collective bargaining agreements covering firemen
so as to drive Negro firemen completely out of
service (No. 37, E. 8, 14-15; No. 45, E. 88-89,
59-60).3 On February 18, 1941, the railroads
entered into an agreement with the Brotherhood
as the exclusive representative of the craft which
provided that not more than 50 percent of the
firemen in each class of service (freight, pas- 8
8 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 (No. 37, R. 8-9, 16-
17; No. 45, R. 89-90, 10-13). The agreement re
served the right of the Brotherhood to press for
further restrictions on the employment of Negro
firemen on the individual carriers (No. 37, R. 18;
No. 45, R. 13).4 * In No. 45, on May 12, 1941, the
4 The President’s Committee on Fair Employment Prac
tice (op. cit., 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 tlie 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 1028 which flatly prohibits their employ
ment altogether. Fourthly, the percentage rule and the pro-
616558—44— -2
8
groes and one white fireman were assigned (No.
45, R. 91-92). These jobs were highly desirable
from the point of view of wages, hours, and other
considerations, and Steele was performing his
work satisfactorily ( ib id .). Following a change
in the mileage covered by the pool, all jobs
therein were declared vacant, on or about April
1, 1941, and the Brotherhood and the railroad,
acting under the agreement, disqualified all the
Negro firemen and replaced them with four white
men, members of the Brotherhood, all junior in
seniority to petitioner6 and no more competent or
worthy (No. 45, R. 92). As a consequence, it is
alleged, petitioner was completely out of work for
16 days, and then was assigned to more arduous,
longer, and less remunerative work on local
freight (No. 45, R. 93). He was subsequently
replaced by a Brotherhood member junior to him,
and assigned to wTork on a switch engine, which
was even harder and less remunerative, until
January 3, 1942, on which date he was reassigned
to passenger service ( ib id .) .7 In this case also
petitioner appealed for relief and redress to the
railroad and the Brotherhood without avail (No.
45, R. 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 of the firemen’s craft,
and that in that capacity the Brotherhood lias an
obligation and duty to represent the Negro fire
men impartially 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 of the craft
and has deliberately discriminated against them
and sought to drive them out of employment (No.
37, R. 7-10; No. 45, R. 88-90), and that the
right of petitioners and other Negro firemen “ to
be represented fairly and impartially 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) for an in
junction against enforcement of the agreements
made between the railroad and the Brotherhood,
insofar as they interfere with the petitioner’s
rights; (2) for an injunction against the Brother
hood and its officers acting as representatives of
petitioner and others similarly situated under the-
Bai [way Labor Act so long as the discrimination
continued; (3) for a declaratory judgment as to
their rights, including a declaration that the
Brotherhood is under obligation to represent all
members of the craft of firemen, including Ne
groes, fairly and without discrimination; and (4)
for damages sustained by reason of the Brother
10
hood’s wrongful conduct (No. 37, R. 4, 12-13;
No. 45, R. 96-97).8
In No. 37, petitioner Tunstall filed his com
plaint in the United States District Court for the
Eastern District of Virginia (No. 37, R. 1-24),
and in No. 45, petitioner Steele filed his original
bill of complaint (No. 45, R. 3-21) and sub
stituted amended complaint (No. 45, R. 83-98)
in the Alabama Circuit Court of Jefferson County.
Motions to dismiss and demurrers in each ease
(No. 37, R. 25-35; No. 45, R. 21-27, 98-122) were
sustained by the trial courts (No. 37, R. 36-48;
No. 45, R. 124-126), and these rulings were upheld
on appeal by the courts below (No. 37, R. 59-60;
No. 45, R. 131). In No. 37 the Circuit Court of
Appeals for the Fourth Circuit declared that it
had “ considered whether jurisdiction might not
be sustained for the purpose of declaring the
rights of plaintiff to the fair representation for
the purposes of collective bargaining which is
implicit in the provisions of the National Railway
Labor A ct” (No. 37, R. 56), but felt bound to
hold that it had no jurisdiction in view of decisions
of this Court during the last term (No. 37, R.
55-59).9 In No. 45 the Supreme Court of Ala
8 In No. 37 Tunstall also sought the restoration of the job
to which he was entitled (No. 37, B.. 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. Missouni-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 of
action was stated (No. 45, R. 131-144).
S U M M A E Y O F A R G U M E N T
I
The right of the organization chosen by the
majority to be the exclusive representative of a
bargaining unit exists only by reason of the Rail
way Labor Act. Implicit in the grant of such
right is a correlative duty of the representative
to act in behalf of all the employees in the unit
without discrimination. Congress would not have
incapacitated a minority or an individual from
representing itself or his own interests without
imposing upon the craft representative a duty to
serve on behalf of the craft as a whole, and not
merely for the benefit of certain portions of it
favored as a result of discrimination against
others.
The terms of the statute and its history sup
port this interpretation. The word “ representa
tive” normally connotes action on behalf of those
to be represented. The Act fulfills its purpose of
peacefully settling disputes on a voluntary basis
only when the employees have confidence that
their representative in the negotiations is acting
in their interest. And the Congress which in
corporated the principle of majority rule in the
Railway Labor Act and the National Labor Rela
tions Act believed that, although the minority was
12
deprived of separate representation, it was not
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,
13
mediation or arbitration and none of the adminis
trative machinery established is available to safe
guard minorities against discrimination by the
majority. We do not think that Congress in
tended that a minority should be completely help
less in ease 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 T exa s & N ew
O rleans and V irg in ia n 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 duty would
lie 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.
A R G U M E N T
The issues presented by the instant two cases
are closely related to those before this Court in
T h e W a lla ce C orp ora tion v. N ational L a b or R ela
tions B oa rd and R ich w ood C loth esp in & D ish
616558—44——3
14
W o r k e r s ’ U n ion v. N a tion a l L a b o r R ela tion s
B oa rd , Nos. 66 and 67, this Term. In all four
cases 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 W a lla ce cases, how
ever, in that the discrimination here practiced
was solely because of race whereas in the W a lla ce
cases it was because of prior union affiliation.
Unless the Railway Labor Act he construed so
that the broad powers it vests in labor unions are
held to be subject to the implied limitation that
they cannot he used to discriminate because of
race,10 constitutional issues are presented. These
10 For discussions of the Negro problem on the railroads,
see Northrup, Herbert R., Organised Labor and the Negro
(Harper & Bro., 1944), pp. 48-101; Spero, Sterling D., and
Harris, Abram L., The Black 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
eases also differ from the W a lla ce 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. Gr. No. 59, December 29,1942.
I. T h e R a i l w a y L abo r A c t I m p o ses U p o n t h e
R e p r e s e n t a t i v e o f a C r a f t t h e O b l ig a t io n to
R e p r e s e n t A l l t h e E m p l o y e e s W i t h i n t h e
C r a f t W i t h o u t D is c r im in a t io n B e c a u s e o f
R a c e
a . t h e r i g h t a n d p o w e r o p t h e r e p r e s e n t a t i v e d e s
i g n a t e d BY A MAJORITY OP THE EMPLOYEES IN A
CRAFT OR CLASS TO ACT AS THE EXCLUSIVE REPRE
SENTATIVE OF ALL THE EMPLOYEES IN THE CRAFT OR
CLASS ARE DERIVED FROM THE STATUTE
The Railway Labor Act provides (Section 2,
F ourth ): ,
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 Ry. Co. 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 Railway 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 o f the extent to which the statute de
parts from the common law appears in the recent
decisions of this Court in O rd er o f R a ilroa d T ele
g ra p h ers v. R a ilw a y E x p re s s A g en cy , 321 U. S.
342; J. I. C ase Co. v. N ational L a b or R ela tion s
B oa rd , 321 U. S. 332, and M edo P h o to S u p p ly
C orp . v. N ation a l L a b or R ela tion s B oa rd , 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
(C a se decision, 321 U. S. at pp. 338-339). And
in the M ed o 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. THE RIGHT TO BE EXCLUSIVE REPRESENTATIVE IM
PLIES A DUTY TO ACT ON BEHALF OF ALL EMPLOYEES
IN THE UNIT WITHOUT DISCRIMINATION.
Implicit in the grant to the organization chosen
by the majority o f 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 Bailway
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 welfare o f the group. Its benefits and
advantages are open to every employee of
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:13
Once a craft or class has designated its
representative, such representative is re
sponsible under the law to act for all em-
13 National Mediation Board, In the Matter o f Representa
tion o f Em ployees o f the St. Paul Union Depot Company,
Case No. R-635. This was the decision set aside in Brother
hood o f Railway <& Steamship Clerks v. United Transport
Service Em ployees, 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.
20
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 o f 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
o f membership, there would remain no peaceful
means o f 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 Raihvay 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
“ R ep resen ta tiv e— 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. 34-36, in fra).
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 f o r , not against, the employees it represents.
Since under the Act it is the representative o f
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 o f
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.
616558—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 o f type of work
they perform or their competence and skill is, of
course, permissible. Railroad 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.
23
“ F o r th e p u rp oses o f th is A c t ” . 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 o f 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” .
T exa s & N ew O rleans E . Co. v. B roth erh ood o f
R a ilw a y C lerhs, 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 o f
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. 1147,74th 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 o f 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 o f the latter Act and of
the Railway Labor Act were intended to have the
same meaning. Compare Virginian By. Co. v.
System Federation, 300 U. S. 515, with National
Labor Relations Board v. Jones «£ Laughlin Steel
Corp., 301 U. S. 1, 44-45; 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 E x
press Agency, 321 U. S. 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
Monde Engineering G o r p (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 g o ” (p. 43).
It held (p. 44) :
Nor does this opinion lay down any rule
as to what the employer’s duty is where the
majority group imposes rules of participa
tion in its membership and government
which exclude certain employees whom it
purports to represent in collective bargain
ing * * * or where the majority group
has taken no steps toward collective bar
gaining or has so abused its privileges that
some minority group might justly ask this
Board for 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 o f 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 would 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 o f 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 o f 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,
th e r ep resen ta tiv es s e lec ted by th e m a jo r ity
w ill be qu ite p ow erless to m ake agreem en ts
m ore fa vora b le to th e m a jo r ity than to the
m in ority . [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 tbe 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 A t 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
P. (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 C a rter v. C a rter
C oa l C o., 298 IJ. 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 M itch ell v. U nited
S ta tes , 313 U. S. 80, 94.
C. A SSU M IN G T H E T R U T H OF T H E A L L E G A T IO N S OF 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 OF A L L M E M B E R S O F T H E
C R A F T OF F IR E M E N , IS D IS C R IM IN A T IN G A G A IN S T NEG RO
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 wrould 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 o f 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
3 5
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.20 * * 23
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
o f Bethlehem-Alameda \Shipyard, Inc. 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 o f
Lam s & Brother Co., 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.28
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 o f Railway
,<& Steamship iClerks 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 A ct nor in its construction by the
courts can be found to justify such coercive action as to force
upon any class o f employees representation through an agency
with whom it has no affiliation nor right o f 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 he 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 o f 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.]
3 0
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
do 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 M a tter o f
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
B erk sh ir e K n itt in g M ills , 46 1ST. L. R. B. 955, 988-
989, enforced in B e rk sh ir e K n itt in g M ills v.
N a tion a l L a b o r R ela tion s B o a rd , 139 P. (2d)
134 (C. C. A. 3), certiorari denied May 22, 1944;
M a tte r o f th e C arborund um C o., 36 N. 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 A ct 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 M atter o f Representation o f E m
ployees o f the Atlanta Terminal Go., Case No. R -75; In the
M atter o f Representation o f Employees o f the Central of
Georgia Ralhvay Go., 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.” (M atter o f U. S. B ed
ding Company, 52 N. L. R. B. 382, 388.) See also M atter
o f The American Tobacco Company, 2 N. L. R. B. 198;
Matter o f Union Envelope Company, 10 N. L. R. B. 1147,
1150-1151; M atter o f Brashear Freight Lines, Inc., 13
N. L. R. B. 191, 201; Matter o f Crescent Bed Company, 29
N. L. R. B. 34, 36; Matter o f Georgia Pow er Company, 32
N. L. R. B. 692; Matter o f Hughes Tool Co., 33 N. L. R. B.
1089, 1097-1099; Matter o f Aetna Iron (& Steel Co., 35
N. L. R. B. 136; M atter o f Southern W ood Preserving Com
pany, 37 N. L. R. B. 25, 28; .1/otter o f Tampa Florida
Brewery, Inc., 42 N. L. R. B. 642, 645-646 ; Matter o f South
ern Brewing Company, 42 N. L. R. B. 649, 652-653; M atter
o f Columbian Iron Works, 52 N. L. R. B. 370, 372, 374.
41
II . T h e C o u r ts H a v e J u r isd ictio n T o E n j o i n a
U n io n F r o m A c t in g as S t a t u t o r y R e p r e s e n
t a t i v e , a n d a n E m p l o y e r F r o m B a r g a in in g
W i t h it as S u c h , so L o n g a s it F a il s T o
A c t W i t h o u t D is c r im in a t io n o n B e h a l f o f
al l t h e M e m b e r s o f t h e C r a f t .
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, P e y to n v. P a ilw a y E x p ress A g en cy ,
316 U. S. 350; M u lfo rd v. S m ith , 307 U. S. 38,
46. In the S teele 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 S'witchmen's Union v. National Mediation Board , 320
U. S. 297; General Committee v. M .-K .-T . R. Co., 320 U. S.
323; General Committee v. Southern Paeiiic Co., 320 U. S.
338; Brotherhood o f Railway da Steamship Clerks v. United
Transport Service Em ployees, 320 U. S. 715, 816.
30 Compare Switchmen's Union and Brotherhood o f Rail
way Clerks cases, 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. For 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 TFallace eases 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 of 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 for a voluntary settlement; the
Act certainly makes no provision for this type of
conciliation.
Assuming the truth of the allegations, it is thus
apparent that the petitioners are remediless un
less the courts are open to them. We do not think
that Congress intended that a minority should be
completely helpless in case of disregard by the
statutory representative of its duty to act in be
half of the entire craft. There is no suggestion
in the history of the Railway Labor Act that Con
gress affirmatively desired to deprive minorities
of the judicial protection which would otherwise
be available as their sole means of enforcing their
right to fair representation. In the absence of
any such showing, the normal presumption would
be that Congress wished that this right might be
preserved in the customary manner, through the
courts to which resort should be available to in
sure compliance with the laws of the United
States.
It is, of course, true that the Act nowhere ex
pressly authorizes the courts to decide such mat
ters, and that there is language in the opinions of
45
last term which suggests that, apart from special
situations previously recognized,"'1 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. V irg in ia , 6 Wheat. 264, 399, 400; H u m p h rey ’ s
E x ecu to r v. U n ited S ta tes, 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 T exa s & N ew O rleans and
V irg in ia n cases. In the S w itch m en ’s U nion ease
(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
31 Texas <& New Orleans R. Co. v. Brotherhood o f Railway
Clerks, *281 U. S. 548; Virginian Ry. Co. v. System Federa
tion, 300 U. S. 515; Shields v. Utah Idaho Central R. Go., 305
U. S. 177.
46
of a right which Congress had created, the
inference woidd be strong that Congress in
tended the statutory provisions governing
the general jurisdiction of those courts to
control.
See also S ta rk v. W ick a rd , 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 T exa s d N ew O rleans and
V irg in ia n 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 n ot the lawful representa
4 7
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. C f. N a
tional L a b or R ela tion s B oa rd v. P enn sylvan ia
G reyh ou n d L in es , 303 U. S. 261, 271; M edo P h oto
S u p p ly C orp . v. N ational L a bor R elation s B oard ,
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 IT. S.
261, 267). The grant of that advantage, there
fore, constitutes support of its recipient, and
is illegal except where required by law. T exas d:
N ew O rleans R . Go. v. B roth erh ood o f R ailw ay
C lerks, 281 U. S. 548, 556-557, 560; the V irgin ian
R y. case, supra , 300 TJ. S., at 548.
While the Brotherhood in these cases wTas 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 T exa s d: N ew O rleans and V irg in ia n cases the
courts had jurisdiction to restrain a carrier from
doing so.
C. The S w itch m en ’s U nion 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 S ta rk v. W ick a rd ,
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. M itch ell v. U n ited S ta tes , 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“Kace 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 C o 303 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 h a r l e s F a h y ,
S olic ito r General.
R o ber t L. S t e r n ,
S p ecia l A ssista n t to the A tto rn ey G eneral.
A l v i n J . R o c k w e l l ,
G en era l C ounsel,
R u t h W e y a n d ,
J o s e p h B. R obison ,
F r a n k D o n n e r ,
M a r c e l M a l l e t - P r ev o st ,
A tto rn ey s ,
N ational L a bor R ela tion s B oard .
N o v e m b e r 1944.
APPEN DIX
A
The pertinent provisions of the Railway Labor
Act as amended in 1934, 48 Stat. 1185, 45 IT. S. C.,
Section 151 e t seq ., read as follows:
S e c t i o n 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.
* * * * *
G E N E R A L P U R P O S E S
S e c t i o n 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 be 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 shal] 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:
S e c . 8 . It s h a l l b e a n u n f a i r l a b o r p r a c
t i c e f o r a n e m p l o y e r — •
* * * * *
(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: P ro v id ed , That nothing in this
Act, or in the National Industrial Recovery
Act (U. S. C., Supp. VII, 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
64
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).
REPRESENTATIVES AND ELECTIONS
S e c . 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: P ro v id ed , 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
i a t j i n w ( t a r t a t tljr Enitrii B tn tta
O cto b er T e r m 1944
IN TH E
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 SOUTPI-
ERN RAILW AY COMPANY.
On Certiorari to the United States Circuit Court of Appeals
for the Fourth Circuit.
No. 45
BESTER WILLIAM STEELE,
v.
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.
M O TIO N FOR L E A V E TO FILE BRIEF AS AM IC U S
C U R IA E A N D BRIEF IN SUPPORT THEREOF
AMERICAN CIVIL LIBERTIES UNION,
Amicus Curiae.
EDGAR W ATKINS,
of the Georgia Bar,
JOHN D. MILLER,
of the Louisiana Bar,
JO DRAKE ARRINGTON,
of the Mississippi Bar,
SHIRLEY ADELSON,
ARTHUR GARFIELD HAYS,
of the New York Bar,
R. BEVERLY HERBERT,
of the South Carolina Bar,
T. POPE SHEPHERD,
JORDAN STOKES III, '
of the Tennessee Bar,
HOW ARD B. LEE,
of the West Virginia Bar,
O f Counsel.
f
I N D E X
PAGE
M o t i o n f o r L e a v e t o F i l e B r i e f a s A m i c u s C u r i a e ........ 1
B R I E F
S tatement o f I nterest o f A merican Civil L iberties
U nion ................................. .............................. ................ ....... 4
R estrictions on th e E mploym ent and A dvancement
of N egro L ocomotive F iremen .............................. ........ 4
S tate o f th e C ases................................................. .................... 7
I m p o r t a n c e o f t h e Q u e s t i o n ....... ............................................ 8
P o i n t I — T h e r e s t r i c t i o n s o n th e e m p lo y m e n t o f N e g r o
lo c o m o t i v e f ir e m e n c o n t a in e d in th e a g re e m e n ts b e
t w e e n th e B r o t h e r h o o d a n d th e r a i l r o a d s a re
a g a in s t p u b lic p o l i c y a n d a r e u n l a w f u l .......................... 10
P o i n t I I — T h e r i g h t s o f p e t it io n e r s a r e p r o t e c t e d b y
th e F i f t h A m e n d m e n t ................................................... -......... 15
Conclusion .................................................................................... 18
Table of Cases
C a m e r o n v. I n t e r n a t i o n a l A l l ia n c e , 118 N . J . E q . 11,
178 A t l . 692................................................................................... 11
C o r r i g a n v. B u c k le y , 271 U . S . 323.......................................- 15
G e r a l d R . H i l l , et al. v. I n t e r n a t i o n a l B r o t h e r h o o d o f
B o i l e r m a k e r s , I r o n S h i p b u i l d e r s a n d H e l p e r s o f
A m e r i c a , et al. ( S u p e r i o r C o u r t , R . I . , J a n u a r y ,
1943) ( u n r e p o r t e d ) ......................................................... — - H
G e n e r a l C o m m it t e e , etc. v. M . K . T . R . R . C o ., 320
U . S . 323.................................................. ------------------------- --------- 17
G e n e r a l C o m m it t e e v. S o u t h e r n P a c if ic C o ., 320 U . S .
338 ................................................................................................... 17
11
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
Piercy v. Louisville & N. R. Co., 198 Ky. 477, 248
S. W. 1042.......................................................... 13
Reilly v. Hogan, 32 N. Y. S. (2d) 864, aff’d 264 App.
Div. 855 ....................................................................... 12
Schwab v. Moving Pictures Machine Operators Local,
109 Pac. (2d) 600 (Oregon)...................................... 11
Smetherham v. Laundry Workers’ 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 v. 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 TH E
B n p v n m ( to r t a t tip llnitrls B i u U b
October T erm 1944
---------------—mb » g». ----------------
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 RAILW AY 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. FI. THOMAS, J. P. ADAMS and B. F.
McGILL.
On Certiorari to the Supreme Court of Alabama.
Motion for Leave to File Brief as Amicus Curiae
May it Please the Court;
The undersigned, as counsel for the American Civil
Liberties Union, respectfully moves this Honorable Court
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 ie l d H a y s ,
Counsel for American Civil Liberties Union,
Amicus Curiae.
3
(tort nf % Inttrfc t̂atrn
O c to b er T e r m 1944
IN TH E
------------ -i t>-ae»—-------------
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 RAILW AY 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.
McGi l l .
On Certiorari to the Supreme Court of Alabama.
BRIEF OF A M E R IC A N CIVIL LIBERTIES UNION,
A M IC U S C U R IA E
These eases 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.
4
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, wTe 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 War 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-
5
roads, served on the railroads a notice of the following
proposals for modification of existing collective bargain
ing agreements:
“ 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.”
(Eecord 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 seniority rights
in the railroad industry. The Agreement restricted their
employment to seniority districts on which they were then
working and provided that they should not exceed fifty
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 he 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
from Sis 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 Norfhrup, 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 II. S. Archives.
9
The concerted attempt to drive Negroes out of the jobs
of locomotive firemen has already reached the poi nt 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 tire 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 i n 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 Railway Labor Act (Section 2 (5)).
A
By virtue of its position as exclusive bargaining repre
sentative under the Act (Virginian Railway v. Federation,
300 TJ. S. 515), the Brotherhood wields considerable power
11
over who may 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 power
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” was
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, aff’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
1 3
been practiced. ' * No individual of group of in
dividuals, organized or unorganized, is above the law” ;
and TValsche v. Slierloch, 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 d 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 builde'd 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
u
Corporation et al. (Superior Court, Calif., Feb. 17, 1944,
on appeal to the California Supreme Court); Gerald II.
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 U. 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. # * # If 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 U. 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 U. 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-
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 A ct to represent
minority employees fairly should be declared; and
other and further relief prayed for by the petitioners
should be granted.
Respectfully submitted,
A m e r ic a n C iv il L ib e r t ie s U n io n ,
Amicus Curiae.
E dgar W a t k in s ,
of the Georgia Bar,
J o h n D . M il l e r ,
of the Louisiana Bar,
Jo D r a k e A r r in g t o n ,
of the Mississippi Bar,
S h ir l e y A d e l s o n ,
A r t h u r G a r f ie I d H a y s ,
of the New York Bar,
R. B e v e r l e y H e r b e r t ,
of the South Carolina Bar,
T. P ope S h e p h e r d ,
J o r d a n S t o k e s III,
of the Tennessee Bar,
H o w a r d B. L e e ,
of the West Virginia Bar,
Of Counsel.
IN THE
kapron? (Emu*! rtf tip Htttteii 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 oe L o co m o tive F ir e m e n a n d E n g in e m e n ,
O c e a n L odge N o . 76, P ort N o r fo lk L odge N o . 775,
et al.
o n w r it of c e r t io r a r i to t h e u n it e d state s c ir c u it cou rt
OF APPEALS FOR T H E FOURTH CIRCUIT.
B e st e r W il l ia m S t e e l e , Petitioner,
v.
L o u is v il l e & N a s h v il l e R ailro ad C o m p a n y , B r o th e rh o o d
of L o c o m o t iv e F ir e m e n a n d E n g in e m e n , a n u n in c o r
p o r a t e d A sso c ia t io n , et al.
o n w r it of c e r t io r a r i to t h e su p r e m e co u rt of t h e
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 .
---- 1 • ... ~ ................ - ■ = ~ :
T h u rg ood M a r s h a l l ,
W il l ia m H . H a st ie ,
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
I I ----------------------------------------------------- 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) _________________________ ...___________„__ 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________________________________________ 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 Ass’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_________________________1___ 24, 28
PAGE
I ll
General Committee v. Southern Pacific Co., 320 IT S
338 --------------------------------------------------- --------' 28
General Electric Co., Matter of, 43 N. L. E. B. 453____ 14
Gibson v. Mississippi, 161 U. S. 565, 591_____________ 31
Houde Engineering Corp., Matter of, 1 N. L. E. B.
(old) 35, 43-44_________________________________ 21
Interstate Granite Corp., Matter of, 11 N. L. E B
1046 ________________________________________ 1_ 14
McCall Corp., Matter of, 8 N. L. E. B. 1087___________ 14
Memphis Furniture Mfg. Co., Matter of, 3 N. L. E. B.
26, 31 _______________________________ :_______ . 14
Medo Photo Supply Corp. v. National Labor Eelations
Board, 321 U. S. 678____________________________ 18
Mitchell v. United States, 313 IT. S. 80, 94___________ 31
National Labor Eelations Board v. Highland Park Mfg.
Co., 110 F. (2d) 632, 638 (C. C. A. 4th)________ 27
National Labor Eelations Board v. Jones & Laughlin
Steel Corp., 301 IT. S. 1_________________________ 19
Nixon v. Condon, 286 IT. S. 73, 88-89________________ 34
Order of Eailroad Telegraphers v. Bailway Express
Agency, 321 U. S. 342, 346________ ________ 17,19, 34
Ozan Lumber Co., Matter of, 42 N. L. E. B. 1073______ 14
Planters Mfg. Co., Matter of, 10 N. L. E. B. 735; en
forced, 105 F. (2d) 750 (C. C. A. 4tli)____________ 15
Eapid Eoller Co., Matter of, 33 N. L. E. B. 557, 566-567,
570; enforced, 126 F. (2d) 452 (C. C. A. 7th); cer
tiorari denied, 317 U. S. 650___________.________ 14
Bepresentation of Employees of Atlanta Terminal Co.,
Matter of, Case No. E-75_____ ,_________________ 13
Bepresentation of Employees of the Central Georgia
Eailway Co., Matter of, Case No. B-2.34__________ 13
Scheehter Corp. v. United States, 295 IT. S. 537______ 31
Scripto Mfg. Co., Matter of, 36 N. L. E. B. 411, 414__ 14
PAGE
IV
Seattle Trust Co. v. Eoberge, 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. 5th) ; 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. E. B. 642,
645-646 _________________________________ ______ 14
Southern Cotton Oil Co., Matter of, 26 N. L. E. B. 177,
180, 182, 183 _______ |__________________ ■-___- 4 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 ______ ___________________________ _ . 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 __________________________________- *14
Truax v. Raich, 239 IT. 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
Vick Wo 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 8 ., “ 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 ______________ :______________________ 24
Hamilton, Walton W., “ Collective Bargaining” in En
cyclopedia of the Social Sciences, Vol. Ill, 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 ______________________________ 1______ 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______________________ __________
PAGE
5
VI
PAfcffi
Mitchell, John, Organized Labor, Philadelphia (1903),
p. 7 5 ______ ...______________ ___ _____________ 5, 6,18
Northrnp, 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, Vol. 17, 57th
Cong., 1st Sess., H. R. Doc. No. 186 Washington
(1901), p. LXXYI______________ —____________ 18
Spero, Sterling D. and Harris, Abram L., “ The Black
Worker” , Columbia Univ. Press, 1931, pp. 284-315J5, 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
(£m u t of % M nitib Staton
October Term, 1944
IN THE
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 FOE 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.
o n w r it of cer tio r a ri to t h e su p r e m e cou rt of t h e
STATE OF ALABAMA.
MOTION FOR LEAVE TO FILE BRIEF AS
AMICUS CURIAE.
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 tile 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 hubgood M akshall,
W illiam H. H astie,
Counsel for National Association for
the Advancement of Colored People.
( t o r t of % Itttfrii Btntnx
October Term, 1944
IN' THE
No. 37
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 N o. 775,
et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT
OF APPEALS FOR THE FOURTH CIRCUIT.
No. 45
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.
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
iailioad 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 railioad to the detriment of the petitioner in
each case (No. 37, B. 6 ; No. 45, B. 83). Petitioners sue in
their own behalf and as representatives of all Negro firemen
on the respondent railroads (No. 37, B. 5; No. 45, B. 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, we 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.8 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 8 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 owTn 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
8 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.
6 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
seniority so that senior Negroes are replaced by junior
white firemen and deprived of positions which they would
hold but for their race.10
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.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 14
Briefly, this agreement provides 11 (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 15 remain in effect and that further restrictions may
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.10 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.16 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 Southern 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 Avithin 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 powers 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.
(Footnote 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
(Footnote continued from 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 Brashear
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
(Footnote 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
(Footnote continued from 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-
(Footnote continued on page 15)
15
which have always admitted Negro employees on a basis of
equality. Forty international unions, twenty six affiliated
(Footnote continued from page 14)
ter of Western Cartridge Company, 43 N. L. R. B. 179, 196-200,
enforced 138 F. (2d) 551, 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. 5) ; 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 Labor21 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 of 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 powers 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., Organized 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
be 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 of 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
2 7 “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. L X X V I; 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 Lazv, 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, 74fh 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 / . 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: 30
If 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
30 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 he the rep
resentative of all employees under this bill.
We do not believe an organization can be said to be
“ constructed 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 Houde
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 Clerics 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 G-roxek,
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 has 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. 1.0. 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
2 4
inapplicable. This is true in every instance where members
of the craft are excluded from membership in the organ
ization which conducts the bargaining.
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.” 82
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 J., 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.”
83 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.”
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 be 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
34 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.87 This Court has held that the delega
tion to a majority of coal miners and the producers of a
majority of 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.
I
37 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.38 39
The representative thus is constituted not only the legis
lative branch of the government controlling his industrial
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.
If 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 rales, 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.
3 0
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. If 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 it ; 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
el ty. 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. 8. at 537; Eubank v
Richmond, 226 U. 8. 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
3 2
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. S. 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
i aili oad 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
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, 73rcf 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.
34
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 wdiich 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.” 48
If 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. S. 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. If 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 45
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:40
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 Gandoljo 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 h u b g o o d M a r s h a l l ,
W il l ia m H . H a s t ie ,
Counsel for National Association for
the Advancement of Colored People.
SUPREME COURT OF THE UNITED STATES.
No. 45.— October Term, 1944.
Bester William Steele, Petitioner,
vs.
Louisville & Nashville Railroad Com-.
pany, Brotherhood of Locomotive
Firemen and Enginemen, et al.
On Writ of Certiorari to
the Supreme Court of
the State of Alabama.
[December 18, 1944.]
Mr. Chief Justice Stone delivered the opinion of the Court.
The question is whether the Railway Labor Act, 48 Stat. 1185,
45 IT. S. C. §§ 151 et seq., imposes on a labor organization, acting
by authority of the statute as the exclusive bargaining representa
tive of a craft or class of railway employees, the duty to represent
all the employees in the craft without discrimination because of
their race, and, if so, whether the courts have jurisdiction to pro
tect the minority of the craft or class from the violation of such
obligation.
The issue is raised by demurrer to the substituted amended bill
of complaint filed by petitioner, a locomotive fireman, in a suit
brought in the Alabama Circuit Court against his employer, the
Louisville & Nashville Railroad Company, the Brotherhood of Loco
motive Firemen and Enginemen, an unincorporated labor organiza
tion, and certain individuals representing the Railroad or the
Brotherhood. The Circuit Court sustained the demurrer, and the
Supreme Court of Alabama affirmed. 245 Ala. 113, 16 So. 2d 416.
We granted certiorari, 322 U. S. 722, the question presented being
one of importance in the administration of the Railway Labor Act.
The allegations of the bill of complaint, so far as now material,
are as follows: Petitioner, a negro, is a locomotive fireman in the
employ of respondent railroad, suing on his own behalf and that
of his fellow employees who, like petitioner, are negro firemen em
ployed by the Railroad. Respondent Brotherhood, a labor organi
zation, is, as provided under § 2, Fourth of the Railway Labor Act,
the exclusive bargaining representative of the craft of firemen em
ployed by the Railroad and is recognized as such by it and the
members of the craft. The majority of the firemen employed by
the Railroad are white and are members of the Brotherhood, but a
substantial minority are negroes who, by the constitution and ritual
of the Brotherhood, are excluded from its membership. As the
membership of the Brotherhood constitutes a majority of all fire
men employed on respondent Railroad, and as under § 2, Fourth
the members because they are the majority have the right to choose
and have chosen the Brotherhood to represent the craft, petitioner
and other negro firemen on the road have been required to accept
the Brotherhood as their representative for the purposes of the Act.
On March 28, 1940, the Brotherhood, purporting to act as repre
sentative of the entire craft of firemen, without informing the negro
firemen or giving them opportunity to be heard, served a notice
on respondent Railroad and on twenty other railroads operating
principally in the southeastern part of the United States. The
notice announced the Brotherhood’s desire to amend the existing
collective bargaining agreement in such manner as ultimately to
exclude all negro firemen from the service. By established prac
tice on the sevex'al railroads so notified only white firemen can be
promoted to serve as engineers, and the notice proposed that only
“ promotable” , i. e. white, men should be employed as firemen or
assigned to new runs or jobs or permanent vacancies in established
runs or jobs.
On February 18, 1941, the railroads and the Brotherhood, as rep
resentative of the craft, entered into a new agreement which pro
vided that not more than 50% of the firemen in each class of
service in each seniority district of a carrier should be negroes;
that until such percentage should be reached all new runs and all
vacancies should be filled by white men; and that the agreement did
not sanction the employment of negroes in any seniority district
in which they were not working. The agreement reserved the right
of the Brotherhood to negotiate for further restrictions on the
employment of negro firemen on the individual railroads. On May
12, 1941, the Brotherhood entered into a supplemental agreement
with respondent Railroad further controlling the seniority rights
of negro firemen and restricting their employment. The negro
firemen were not given notice or opportunity to be heard with
respect to either of these agreements, which were put into effect
before their existence was disclosed to the negro firemen.
2 Steele vs. Louisville <& Nashville R. R. Go. et al.
Until April 8, 1941, petitioner was in a “ passenger pool” , to
which one white and five negro firemen were assigned. These jobs
were highly desirable in point of wages, hours and other consid
erations. Petitioner had performed and was performing his work
satisfactorily. Following a reduction in the mileage covered by
the pool, all jobs in the pool were, about April 1, 1941, declared
vacant. The Brotherhood and the Railroad, acting under the
agreement, disqualified all the negro firemen and replaced them
with four white men, members of the Brotherhood, all junior in
seniority to petitioner and no more competent or worthy. As a
consequence petitioner was deprived of employment for sixteen days
and then was assigned to more arduous, longer, and less remunera
tive work in local freight service. In conformity to the agreement,
he was later replaced by a Brotherhood member junior to him, and
assigned work on a switch engine, which was still harder and less
remunerative, until January 3, 1942. On that date, after the bill
of complaint in the present suit had been filed, he was reassigned
to passenger service.
Protests and appeals of petitioner and his fellow negro firemen,
addressed to the Railroad and the Brotherhood, in an effort to
secure relief and redress, have been ignored. Respondents have
expressed their intention to enforce the agreement of February 18,
1941 and its subsequent modifications. The Brotherhood has
acted and asserts the right to act as exclusive bargaining repre
sentative of the firemen’s craft. It is alleged that in that capacity
it is under an obligation and duty imposed by the Act to represent
the negro firemen impartially and in good faith; but instead, in
its notice to and contracts with the railroads, it has been hostile
and disloyal to the negro firemen, has deliberately discriminated
against them, and has sought to deprive them of their seniority
rights and to drive them out of employment in their craft, all in
order to create a monopoly of employment for Brotherhood
members.
The bill of complaint asks for discovery of the manner in which
the agreements have been applied and in other respects; for an in
junction against enforcement of the agreements made between the
Railroad and the Brotherhood; for an injunction against the
Brotherhood and its agents from purporting to act as representa
tive of petitioner and others similarly situated under the Railway
Labor Act, so long as the discrimination continues, and so long as
Steele vs. Louisville & Nashville B. B. Co. et al. 3
it refuses to give them notice and hearing with respect to proposals
affecting their interests; for a declaratory judgment as to their
rights; and for an award of damages against the Brotherhood for
its wrongful conduct.
The Supreme Court of Alabama took jurisdiction of the cause
but held on the merits that petitioner’s complaint stated no cause
of action.1 It pointed out that the Act places a mandatory duty
on the Railroad to treat with the Brotherhood as the exclusive
representative of the employees in a craft, imposes heavy crim
inal penalties for willful failure to comply with its command, and
provides that the majority of a,ny craft shall have the right
to determine who shall be the representative of the class for collec
tive bargaining with the employer, see Virginian Bailway Co. v.
System Federation, 300 U. S. 515, 545. It thought that the Brother
hood was empowered by the statute to enter into the agreement of
February 18, 1941, and that by virtue of the statute the Brotherhood
has power by agreement with the Railroad both to create the senior
ity rights of petitioner and his fellow negro employees and to de
stroy them. It construed the statute, not as creating the relationship
of principal and agent between the members of the craft and the
Brotherhood, but as conferring on the Brotherhood plenary au
thority to treat with the Railroad and enter into contracts fixing
rates of pay and working conditions for the craft as a whole with
out any legal obligation or duty to protect the rights of minorities
from discrimination or unfair treatment, however gross. Conse
quently it held that neither the Brotherhood nor the Railroad vio
lated any rights of petitioner or his fellow negro employees by
negotiating the contracts discriminating against them.
If, as the state court has held, the Act confers this power on the
bargaining representative of a craft or class of employees without
any commensurate statutory duty toward its members, eonstitu-
1 The respondents urge that the Circuit Court sustained their demurrers
on the ground that the suit could not be maintained against the Brotherhood,
an unincorporated association, since by Alabam a statute such an association
cannot be sued unless the action lies against all its members individually, and
on several other state-law grounds. They argue accordingly that the ju d g
ment o f affirmance o f the state Supreme Court may be rested on an adequate
non-federal ground. A s that court specifically rested its decision on the sole
ground that the Bailw ay L abor A ct places no duty upon the Brotherhood to
protect petitioner and other negro firemen from the alleged discrim inatory
treatment, the judgm ent rests wholly on a federal ground, to which we confine
our review. Grayson v. H arris, 267 TJ. S. 352, 358; International Steel Co. v.
N ational Surety Co., 297 TJ. S. 657, 666; Indiana ex rel. Anderson v. Brand,
303 U .'S . 95, 98, 99 and cases cited.
4 Steele vs. Louisville & Nashville B. B. Co. et al.
tional questions arise. For the representative is clothed with
power not unlike that of a legislature which is subject to constitu
tional limitations on its power to deny, restrict, destroy or dis
criminate against the rights of those for whom it legislates and
which is also under an affirmative constitutional duty equally to
protect those rights. If the Railway Labor Act purports to impose
on petitioner and the other negro members of the craft the legal
duty to comply with the terms of a contract whereby the repre
sentative has discriminatorily restricted their employment for the
benefit and advantage of the Brotherhood’s own members, we must
decide the constitutional questions which petitioner raises in his
pleading.
But we think that Congress, in enacting the Railway Labor Act
and authorizing a labor union, chosen by a majority of a craft, to
represent the craft, did not intend to confer plenary power upon
the union to sacrifice, for the benefit of its members, rights of the
minority of the craft, without imposing on it any duty to protect
the minority. Since petitioner and the other negro members of
the craft are not members of the Brotherhood or eligible for
membership, the authority to act for them is derived not from
their action or consent but wholly from the command of the Act.
Section 2, Fourth provides: “ 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 . . . Under
§ § 2, Sixth and Seventh, when the representative bargains for a
change of working conditions, the latter section specifies that they
are the working conditions of employees “ as a class” . Section 1,
Sixth of the Act defines “ representative” as meaning “ Any
person or . . . labor union . . . designated either by a carrier
or a group of carriers or by its or their employees to act for it
or them” . The use of the word “ representative” , as thus de
fined and in all the contexts jn which it is found, plainly implies
that the representative is to act on behalf of all the employees
which, by virtue of the statute, it undertakes to represent.
By the terms of the Act, § 2, Fourth, the employees are per
mitted to act “ through ’ ’ their representative, apd it represents them
“ for the purposes of” the Act. Sections 2, Third, Fourth, Ninth.
The purposes of the Act declared by § 2 are the avoidance of “ any
Steele vs. Louisville & Nashville B. B. Co. et al. 5
interruption to commerce or to the operation of any carrier en
gaged therein,” and this aim is sought to be achieved by encour
aging “ the prompt and orderly settlement of all disputes con
cerning rates of pay, rules, or working conditions.” Compare
Texas & New Orleans Bailroad Co. v. Brotherhood of Bailway
Clerics, 281 U. S. 548, 569. These purposes would hardly be
attained if a substantial minority of the craft were denied the
right to have their interests considered at the conference table and
if the final result of the bargaining process were to be the sacrifice
of the interests of the minority by the action of a representative
chosen by the majority. The only recourse of the minority would
be to strike, with the attendant interruption of commerce, which
the Act seeks to avoid.
Section 2, Second, requiring carriers to bargain with the repre
sentative so chosen, operates to exclude any other from representing
a craft. Virginian Bailway Co. v. System Federation, supra, 545.
The minority members of a craft are thus deprived by the statute
of the right, which they would otherwise possess, to choose a repre
sentative of their own, and its members cannot bargain individually
on behalf of themselves as to matters which are properly the sub
ject of collective bargaining. Order of Bailroad Telegraphers v.
Bailway Express Agency, 321 U. S. 342, and see under the like
provisions of the National Labor Relations Act J. I. Case Co. v.
Labor Board, 321 U. S. 332, and Medo Photo Supply Corp. v.
Labor Board, 321 U. S. 678.
The labor organization chosen to be the representative of the
craft or elass of employees is thus chosen to represent all of its
members, regardless of their union affiliations or want of them. As
we have pointed out with respect to the like provision of the Na
tional Labor Relations Act in J. I. Case Co. v. Labor Board, supra,
338, “ The very purpose of providing by statute for the collective
agreement is to supersede the terms of separate agreements by em
ployees with terms which reflect the strength and bargaining power
and serve the welfare of the group. Its benefits and advantages
are open to every employee of the represented unit. . . . ” 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 representative or those members of the craft who selected it.
6 Steele vs. Louisville & Nashville B. B. Co. et al.
7Steele vs. Louisville & Nashville B. B. Co. et al.
As the National Mediation Board said in In The Matter of Rep
resentation of Employees of the St. Panl Union Depot Company,
Case No. R-635: “ Once a craft or class has designated its repre
sentative, such representative is responsible under the law to act
for all employees within the, craft or class, those who are not
members of the represented organization, as well as those who are
members. ’ ’2
Unless the labor union representing a craft owes some duty
to represent non-union members of the craft, at least to the extent
of not discriminating against them as such in the contracts which
it makes as their representative, the minority would be left with
no means of protecting their interests or, indeed, their right to
earn a livelihood by pursuing the occupation in which they are em
ployed. While the majority of the craft chooses the bargaining
representative, when chosen it represents, as the Act by its terms
makes plain, the craft or class, and not the majority. The fair
interpretation of the statutory language is that the organization
chosen to represent a craft is to represent all its members, the
majority as well as the minority, and it is to act for and not against
those whom it represents.3 It is a principle of general application
that the exercise of a granted power to act in behalf of others in
volves the assumption toward them of a duty to exercise the power
in their interest and behalf, and that such a grant of power will not
2 The M ediation B oa rd ’s decision in this case was set aside in Brotherhood
o f Railway & Steamship Clerks v. United Transport Service Employees, 137
F . 2d 817, reversed on jurisdictional grounds 320 U. S. 715. The Court o f
Appeals was o f the opinion that a representative is not only required to act
in behalf o f all the employees in a bargaining unit, but that a labor organi
zation which excludes a m inority o f a craft from its membership has no
standing to act as such representative o f the minority.
The A ct has been similarly interpreted by the Emergency Board referred
to in General Committee v. Southern Pacific Co., 320 U. S. 338, 340, 342-343 n.
I t declared in 1937: “ When a craft or class, through representatives chosen
b y a m ajority, negotiates a contract with a carrier all members o f the craft
or class share in the rights secured by the contract regardless o f their affilia
tion with any organization o f employees. . . . The representatives o f the
m ajority represent the whole craft or class in the making of an agreement for
the benefit o f all. . .
3 Compare the House Committee Report on the N. L. R. A . (H . Rep. No.
1147, 74th Cong., 1st Sess., pp. 20-22) indicating that although the prmoiple
o f m ajority rule “ written into the statute books by Congress in the Railway
Labor A ct o f 1934“ was to be applicable to the bargaining unit under the
N . L. R. A ., the employer was required to give equally advantageous^
to nonmembers o f the labor organization negotiating the a ^ e m e n t. bee
also the Senate Committee Report on the N. L. R. A . to the same
S. Rep. N o. 573, 74th Cong., 1st Sess., p. 13.
be deemed to dispense with all duty toward those for whom it is
exercised unless so expressed.
We think that the Railway Labor Act imposes upon the statu
tory representative of a craft at least as exacting a duty to protect
equally the interests of the members of the craft as the Constitu
tion imposes upon a legislature to give equal protection to the
interests of those for whom it legislates. Congress has seen fit to
clothe the bargaining representative with powers comparable to
those possessed by a legislative body both to create and restrict
the rights of those whom it represents, cf. J. I. Case Co. v. Labor
Board, supra, 335, but it has also imposed on the representative a
corresponding duty. We hold that the language of the Act to
which we have referred, read in the light of the purposes of the
Act, expresses the aim of Congress to impose on the bargaining
representative of a craft or class of employees the duty to exercise
fairly the power conferred upon it in behalf of all those for whom
it acts, without hostile discrimination against them.
This does not mean that the statutory representative of a craft
is barred from making contracts which may have unfavorable ef
fects on some of the members of the craft represented. Variations
in the terms of the contract based on differences relevant to the
authorized purposes of the contract in conditions to which, they
are to be applied, such as differences in seniority, the type of work
performed, the competence and skill with which it is performed,
are within the scope of the bargaining representation of a craft,
all of whose members are not identical in their interest or merit.
Cf. Carmichael v. Southern Coal Co., 301 IT. S. 495, 509-510, 512
and cases cited; Washington v. Superior Court, 289 U. S. 361,
366; Metropolitan Co. v. Brownell, 294 IT. S. 580, 583. With
out attempting to mark the allowable limits of differences in the
terms of contracts based on differences of conditions to which they
apply, it is enough for present purposes to say that the statutory
power to represent a craft and to make contracts as to wages, hours
and working conditions does not include the authority to make
among members of the craft discriminations not based on such
relevant differences. Here the discriminations based on race
alone are obviously irrelevant and invidious. Congress plainly
did not undertake to authorize the bargaining representative to
make such discriminations. Cf. Tick Wo v. Hopkins, 118 IT. S.
356; Yu Cong Eng v. Trinidad, 271 U. S. 500; Missouri ex rel.
Gaines v. Canada, 305 U. S. 337; Hill v. Texas, 316 IT. S. 400.
8 Steele vs. Louisville & Nashville B. B. Co. et al.
9
The representative which thus discriminates may be enjoined
from so doing, and its members may be enjoined from taking the
benefit of such discriminatory action. No more is the Railroad bound
by or entitled to take the benefit of a contract which the bargaining
representative is prohibited by the statute from making. In both
cases the right asserted, which is derived from the duty imposed
by the statute on the bargaining representative, is a federal right
implied from the statute and the policy which it has adopted. It
is the federal statute which condemns as unlawful the Brother
hood ’s conduct. ‘ ‘ The extent and nature of the legal consequences
of this condemnatipn, 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
U. 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.
So long as a labor union assumes to act as the statutory repre
sentative 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. While
the statute does not deny to such a bargaining labor organization
the right to determine eligibility to its membership, it does require
the union, in collective bargaining and in making contracts with
the carrier, to represent non-union or minority union members of
the craft without hostile discrimination, fairly, impartially, and
in good faith. Wherever necessary to that end, the union is re
quired to consider requests of non-union members of the craft
and expressions of their views with respect to collective bargain
ing with the employer and to give to them notice of and oppor
tunity for hearing upon its proposed action.
Since the right asserted by petitioner “ is . . . claimed under the
Constitution” and a “ statute of the United States” , the decision
of the Alabama court, adverse to that contention is reviewable here
under § 237(b) of the Judicial Code, unless the Railway Labor
Act itself has excluded petitioner’s claims from judicial considera
tion. The question here presented is not one of a jurisdictional
dispute, determinable under the administrative scheme set up
by the Act, cf. Switchmen’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
Steele vs. Louisville & Nashville B. B. Co. et al.
10 Steele vs. Louisville <& Nashville B. B. Co. et al.
Service Employees, 320 U. S. 715, 816, or restricted by the
Act to voluntary settlement by recourse to the traditional im
plements of mediation, conciliation and arbitration. General Com
mittee v. M.-K.-T. B. Co., supra, 332, 337. There is no question
here of who is entitled to represent the craft, or who are mem
bers of it, issues which have been relegated for settlement to
the Mediation Board, Switchmen’s Union v. National Mediation
Board, supra; General Committee v. M.-K.-T. B. Co., supra. Nor
are there differences as to the interpretation of the contract which
by the Act are committed to the jurisdiction of the Railroad Ad
justment Board.
Section 3, First (i), which provides for reference to the Adjust
ment Board of “ disputes between an employee or group of em
ployees and a carrier or carriers growing out of grievances or out
of the interpretation or application of agreements” , makes no ref
erence to disputes between employees and their representative.
Even though the dispute between the railroad and the petitioner
were to be heard by the Adjustment Board, that Board could not
give the entire relief here sought. The Adjustment Board has
consistently declined in more than 400 cases to entertain grievance
complaints by individual members of a craft represented by a
labor organization. “ The only way that an individual may pre
vail is by taking his case to the union and causing the union to
carry it through to the Board.” Administrative Procedure in
Government Agencies, S. Doc. No. 10, 77th Cong., 1st Sess., Pt. 4,
p. 7. Whether or not judicial power might be exerted to require
the Adjustment Board to consider individual grievances, as to
which we express no opinion, we cannot say that there is an ad
ministrative remedy available to petitioner or that resort to such
proceedings in order to secure a possible administrative remedy,
which is withheld or denied, is prerequisite to relief in equity.
Further, since § 3, First (c) permits the national labor organiza
tions chosen by the majority of the crafts to “ prescribe the rules
under which the labor members of the Adjustment Board shall be
selected” and to “ select such members and designate the division
on which each member shall serve” , the negro firemen would be
required to appear before a group which is in large part chosen
by the respondents against whom their real complaint is made.
In addition § 3, Second provides that a carrier and a class or craft
of employees, “ all acting through their representatives, selected in
11
accordance with the provisions of this Act” , may agree to the
establishment of a regional board of adjustment for the purpose
of adjusting disputes of the type which may be brought before
the Adjustment Board. In this way the carrier and the repre
sentative against whom the negro firemen have complained have
power to supersede entirely the Adjustment Board’s procedure
and to create a tribunal of their own selection to interpret and
apply the agreements now complained of to which they are the
only parties. We cannot say that a hearing, if available, before
either of these tribunals would constitute an adequate adminis
trative remedy. Cf. Turney v. Ohio, 273 U. S. 510. There is no
administrative means by which the negro firemen can secure
separate representation for the purposes of collective bargaining.
For the Mediation 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 representa
tives” .4
In the absence of any available administrative remedy, the right
here asserted is of judicial cognizance, to a remedy for breach of
the statutory duty of the bargaining representative to represent
and act for the members of a craft. That right would be sacrificed
or obliterated if it were without the remedy which courts can
give for breach of such a duty or obligation and which it is their
duty to give in cases in which they have jurisdiction. Switchmen’s
Union v. National Mediation Board, supra, 300; Stark v. Wiekard,
321 U. S. 288, 306-7. Here, unlike General Committee v. M.-K.-T.
B. Co., supra, and General Committee v. Southern Pacific Co.,
supra, there can be no doubt of the justiciability of these claims.
As we noted in General Committee v. M.-K.-T. B. Co., supra, 331,
the statutory provisions which are in issue are stated in the form
of commands. For the present command there is no mode of en
forcement other than resort to the courts, whose jurisdiction and
duty to afford a remedy for a breach of statutory duty are left
unaffected. The right is analogous to the statutory right of
4 N ational M ediation Board, The Bailway Labor Act and the National
M ediation Board, p. 17; see In the Matter o f Bepresentation o f Employees
o f the Central o f Georgia By. Co., Case No. B-234; In the Matter o f Bepre
sentation o f Employees o f the St. Paul Union Depot Co., Case No. B-635, set
aside in Brotherhood o f Bailway & Steamship Clerks v. United Transport
Service Employees, 137 P. 2d 817, reversed on jurisdictional grounds, 320
U. S. 715.
Steele vs. Louisville & Nashville B. B. Co. et aZ.
employees to require the employer to bargain with the statutory
representative of a craft, a right which this Court has enforced
and protected by its injunction in Texas & New Orleans By. Co. v.
Brotherhood of Bailway Clerks, supra, 556-557, 560, and in Vir
ginian Bailway v. System Federation, supra, 548, and like it is
one for which there is no available administrative remedy.
We conclude that the duty which the statute imposes on a union
representative of a craft to represent the interests of all its mem
bers stands on no different footing and that the statute contem
plates resort to the usual judicial remedies of injunction and award
of damages when appropriate for breach of that duty.
The judgment is accordingly reversed and remanded for further
proceedings not inconsistent with this opinion.
Beversed.
Mr. Justice B l a c k concurs in the result.
12 Steele vs. Louisville & Nashville B. B. Co. et al.
Mr. Justice M u r p h y , concurring.
The economic discrimination against Negroes practiced by the
Brotherhood and the railroad under color of Congressional au
thority raises a grave constitutional issue that should be squarely
faced.
The utter disregard for the dignity and the well-being of
colored citizens shown by this record is so pronounced as to de
mand the invocation of constitutional condemnation. To decide
the ease and to analyze the statute solely upon the basis of legal
niceties, while remaining mute and placid as to the obvious and
oppressive deprivation of constitutional guarantees, is to make
the judicial function something less than it should be.
The constitutional problem inherent in this instance is clear.
Congress, through the Railway Labor Act, has conferred upon
the union selected by a majority of a craft or class of railway
workers the power to represent the entire craft or class in all
collective bargaining matters. While such a union is essentially
a private organization, its power to represent and bind all
members of a class or craft is derived solely from Congress.
The Act contains no language which directs the manner in which
the bargaining representative shall perform its duties. But it
13
cannot be assumed that Congress meant to authorize the repre
sentative to act so as to ignore rights guaranteed by the Consti
tution. Otherwise the Act would bear the stigma of unconsti
tutionality under the Fifth Amendment in this respect. For
that reason I am willing to read the statute as not permitting
or allowing any action by the bargaining representative in the
exercise of its delegated powers which would in effect violate the
constitutional rights of individuals.
If the Court’s construction of the statute rests upon this basis,
I agree. But I am not sure that such is the basis. Suffice it to
say, however, that this constitutional issue cannot be lightly
dismissed. The cloak of racism surrounding the actions of the
Brotherhood in refusing membership to Negroes and in entering
into and enforcing agreements discriminating against them, all
under the guise of Congressional authority, still remains. No
statutory interpretation can erase this ugly example of economic
cruelty against colored citizens of the United States. Nothing
can destroy the fact that the accident of birth has been used as
the basis to abuse individual rights by an organization purport
ing to act in conformity with its Congressional mandate. Any
attempt to interpret the Act must take that fact into account
and must realize that the constitutionality of the statute in this
respect depends upon the answer given.
The Constitution voices its disapproval whenever economic dis
crimination is applied under authority of law against any race,
creed or color. A sound democracy cannot allow such discrim
ination to go unchallenged. Racism is far too virulent today
to permit the slightest refusal, in the light of a Constitution that
abhors it, to expose and condemn it wherever it appears in the
course of a statutory interpretation.
Steele vs. Louisville & Nashville B. B. Co. et at.
m
i
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