U.S. Supreme Court Trainmen v. Toledo, P. & W. R. Co., 321 U.S. 50 (1944)
Brotherhood of Railroad Trainmen v.
Toledo, Peoria & Western Railroad
Argued November 9, 10, 1943
Decided January 17, 1944
321 U.S. 50
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
1. A railroad company which refused to submit a labor dispute to arbitration in accordance with provisions of the Railway Labor Act -- although it had sought to settle the dispute by negotiation and by mediation -- has not made "every reasonable effort" to settle the dispute within the meaning of § 8 of the Norris-LaGuardia Act, and is thereby barred from injunctive relief in the federal courts. P. 321 U. S. 56 .
2. Section 8 of the Norris-LaGuardia Act extends to railway labor disputes. P. 321 U. S. 58 .
3. The requirement of § 8 of the Norris-LaGuardia Act that a complainant must make "every reasonable effort" -- "either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration" -- to settle the labor dispute before he may have injunctive relief in the federal courts is not satisfied by his having resorted to one or two of the three prescribed methods of conciliation. P. 321 U. S. 60 .
4. That, under § 8 of the Norris-LaGuardia Act, a complainant may not have injunctive relief if he has not submitted the labor dispute to arbitration does not make arbitration compulsory. P. 321 U. S. 62 .
5. Failure to satisfy the requirements of § 8 of the Norris-LaGuardia Act does not leave the complainant without legal protection, but deprives him only of one form of remedy which Congress, exercising its plenary control over the jurisdiction of the federal courts, has seen fit to withhold. P. 321 U. S. 63 .
6. The Court is not concerned with the wisdom of Acts of Congress. P. 321 U. S. 64 .
7. Where a complainant has steadfastly refused to submit a labor dispute to arbitration, § 8 of the Norris-LaGuardia Act is not necessarily rendered inapplicable by the fact that some violence is involved. P. 321 U. S. 65 .
132 F.2d 265 reversed.
Certiorari, 318 U.S. 755, to review the affirmance of an order granting a temporary injunction in a suit arising out of a labor dispute.
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
The important question is whether the District Court properly issued an injunction which restrained respondent's employees, conductors, yardmen, enginemen, and firemen from interfering by violence or threats of violence with its property and interstate railroad operations. The sole issues that concern us are the existence of federal jurisdiction and whether the requirements of the Norris-LaGuardia Act (29 U.S.C. §§ 107, 108, 47 Stat. 71, 72) were satisfied.
The case arises out of a long continued labor dispute relating to working conditions and rates of pay. Negotiations between the parties, beginning in October, 1940, failed. A long course of mediation, with the aid of the National Mediation Board, resulted likewise. Accordingly, on November 7, 1941, the mediator proposed arbitration pursuant to the Railway Labor Act's provisions. 45 U.S.C. § 155, First(b), 48 Stat. 1195. Both parties refused. Thereupon, as the Act requires, the Board terminated its services. Ibid. This occurred November 21, 1941. Under the statute, no change in rates of pay, rules, working conditions, or established practices can be made for thirty days, unless in that time the parties agree to arbitration or an emergency board is created under Section 10. Ibid. Anticipating respondent would put into effect its proposed schedules at the end of the period, the employees voted
to strike. The time for stopping work was set for December 9 at 11:00 a.m. Respondent knew of the voting on or before December 6, but did not receive formal notice of the strike until about noon of December 8.
With the bombing of Pearl Harbor on December 7, the Mediation Board again intervened, strongly urging both sides to settle the dispute in view of the national emergency. At the Board's request, the employees had postponed the strike indefinitely. [ Footnote 1 ] Further conferences failed to bring agreement, and, on December 17, the Board again urged that the disputants agree to arbitration under the statute. This time, the employees accepted. [ Footnote 2 ] But respondent continued its refusal, though it also continued to urge the appointment of an emergency board. And, while the record does not show that respondent was notified formally of the employees' agreement to arbitrate until December 28, neither does it appear that respondent did not know of this fact before that time.
On December 21, exactly the expiration of the thirty-day period, respondent by letter notified the employees and their representatives that its proposed schedules would become effective at 12:01 a.m., December 29. By letter dated December 27 and received by respondent before noon on December 28, the employees served notice that a strike would take effect December 28 at six o'clock in the evening. By wire which respondent received that day, the Board
again strongly urged arbitration, pointing out the employees had acceded to the Board's request. Respondent again declined and urged an emergency board be appointed.
The strike took effect at the appointed time. Picket lines were formed. Respondent undertook to continue operations with other employees. It employed "special agents" to protect its trains and property. [ Footnote 3 ] Clashes occurred between them and the working employees, on the one hand, and the striking employees, on the other. Various incidents involving violence or threats of violence took place. Some resulted in personal attacks, others in damage to property and interruption of service. The respondent sought the aid of public authorities, including the sheriffs of counties along its right of way and police authorities in cities and towns which it served. Some assistance was offered, but in some instances the authorities replied they had forces inadequate to supply the aid respondent requested, and in others no reply was given. The parties are at odds concerning the extent of the violence, the need for public protection, and the adequacy of what was supplied or available. But the findings of the District Court are that the violence was substantial and the protection supplied by the public officials was inadequate. These incidents took place through the period extending from December 29, 1941, to January 3, 1942.
On the latter date, respondent filed its complaint, asking for a temporary restraining order and, after hearing, an injunction restraining petitioners from interfering with its operations and property. The restraining order issued ex parte the same day, respondent giving bond as required (29 U.S.C. § 107, 47 Stat. 71, 72) for indemnity against loss occasioned by its improvident or erroneous issuance.
Hearing on the application for a temporary injunction began January 8 and continued to January 19. Two extensions continued the restraining order in force until the hearing was completed. Petitioners moved to vacate the extensions on January 15 and again at the close of the hearing on January 19, and to dismiss the complaint. These motions were denied, and the court made findings of fact and conclusions of law sustaining respondent's contentions. Thereupon, the temporary injunction issued. In due course, appeal was perfected from the order for its issuance and the previous orders denying petitioners' various motions to vacate the extensions and to dismiss the complaint. The Circuit Court of Appeals, one judge dissenting, affirmed the judgment. 132 F.2d 265. We granted certiorari because of the importance of the issues presented. 318 U.S. 755. [ Footnote 4 ]
Three principal issues have been made in the lower courts and here. Stated in the form of petitioners' contentions, they are: (1) the District Court was without jurisdiction, since there is no claim of diversity of citizenship and, it is said, no federal question is involved; [ Footnote 5 ] (2) the
evidence was not sufficient to show that the public authorities were unwilling or unable to furnish adequate protection for respondent's property; [ Footnote 6 ] and (3) respondent did not make every reasonable effort to settle the dispute as required by the Norris-LaGuardia Act. [ Footnote 7 ] Without passing upon the others, we think the last contention must be sustained.
Section 8 of the Norris-LaGuardia Act (29 U.S.C. § 108, 47 Stat. 72), provides:
"No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by
negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration."
The question, broadly stated, is whether respondent made "every reasonable effort" to settle the dispute, as the section requires. On the facts, this narrows to whether its steadfast refusal to agree to arbitration under the Railway Labor Act's provisions made the section operative. We think it did, with the consequence that the federal courts were deprived of the power to afford injunctive relief and respondent was remitted to other forms of legal remedy which remained available. [ Footnote 8 ]
Respondent was subject to the Railway Labor Act. Its provisions and machinery for voluntary arbitration were "available." Resort to them would have been a "reasonable effort to settle" the dispute. Clearly arbitration under the Act was a method, both reasonable and available, [ Footnote 9 ] which respondent refused to employ not once, but repeatedly and adamantly. If it had been used, it would have averted the strike, the violence which followed, and the need for an injunction. [ Footnote 10 ]
Section 8 demands this method be exhausted before a complainant to whom it is available may have injunctive relief. Broadly, the section imposes two conditions. If a complainant has failed (1) to comply with any obligation imposed by law or (2) to make every reasonable
effort to settle the dispute, he is forbidden relief. The latter condition is broader than the former. One must not only discharge his legal obligations. He must also go beyond them and make all reasonable effort at the least by the methods specified, if they are available, though none may involve complying with any legal duty. Any other view would make the second condition wholly redundant. It clearly is not the section's purpose, therefore, by that condition to require only what one is compelled by law to do. Yet, as will appear, this would be the effect of accepting respondent's position.
It is wholly inconsistent with the section's language and purpose to construe it, as have respondent and the lower courts, to require reasonable effort by only one conciliatory device when others are available. The explicit terms demand "every reasonable effort" to settle the dispute. Three modes are specified. [ Footnote 11 ] They were the normal ones for settlement of labor disputes by the efforts of the parties themselves and the aid of agencies adapted specially for the purpose. The Railway Labor Act [ Footnote 12 ] provided
for all of them, with the aid of governmental machinery in the stages of mediation and arbitration. Section 8 is not limited to railway labor disputes. But it includes them. [ Footnote 13 ] And its very terms show they were used in explicit contemplation of the procedures and machinery then existing under the Railway Labor Act and with the intent of making their exhaustion conditions for securing injunctive relief not singly or alternatively, but conjunctively or successively, when available. This purpose of Congress is put beyond question when the section's legislative history is considered in the light of the history and the basic common policy of the two statutes, the Railway Labor Act and the Norris-LaGuardia Act.
The policy of the Railway Labor Act was to encourage use of the nonjudicial processes of negotiation, mediation, and arbitration for the adjustment of labor disputes. Cf. General Committee of Adjustment v. Missouri-Kansas-Texas R. Co., 320 U. S. 323 ; General Committee of Adjustment v. Southern Pacific Co., 320 U. S. 338 . The over-all policy of the Norris-LaGuardia Act was the same. The latter did not entirely abolish judicial power to impose previous restraint in labor controversies. But its prime purpose was to restrict the federal equity power in such matters within greatly narrower limits than it had come to occupy. [ Footnote 14 ] It sought to make injunction a last line
of defense, available not only after other legally required methods, but after all reasonable methods as well, have been tried and found wanting. This purpose runs throughout the Act's provisions. It is dominant and explicit in Section 8. In short, the intent evidenced both by words and by policy was to gear the section's requirements squarely into the methods and procedures prescribed by the Railway Labor Act.
Short reference to the legislative history makes this plain. There was extended discussion of the bill in the Congressional debates, a considerable part relating to the Railway Labor Act's provisions and operation. [ Footnote 15 ] No one suggested that the bill and that Act were not to be meshed in operation, or that compliance with only one of the methods prescribed in Section 8 would satisfy its requirement of "reasonable effort." On the contrary, it seems to have been taken for granted that exhaustion of all is demanded. Numerous proposals for amendment in other respects were made, but there were none for changing this requirement. And Representative LaGuardia, who sponsored the bill in the House, after quoting and discussing provisions of the Railway Labor Act of 1926, quoted Section 8 and said, without challenge to his construction:
"So that there is the tie-up between the provisions of the railroad labor act and the necessity of exhausting every remedy to adjust any difference which might arise. The workers could not and would not think of going on strike before all the remedies provided in the law have been exhausted. If the railroads have complied, they would not, as has been suggested [by Representative Beck], be deprived of any relief which they may have in law or equity."
(Emphasis added.) [ Footnote 16 ]
Representative O'Connor, supporting the sponsor's view, characterized Section 8 as "the "clean hands" provision," and said:
"That section provides that a complainant shall not be entitled to an injunction if he has not complied with any contract or obligation on his part or has not made every reasonable effort to settle the dispute by the available methods of arbitration or mediation. Surely this fundamental principle of equity that 'he who seeks justice must do justice' should apply in labor disputes as well as in other judicial controversies. [ Footnote 17 ]"
To construe the section, therefore, as requiring but one of the three methods to be used when the other two are equally available would emasculate the language and would defeat the purpose and policy of the statute.
It would do this by inviting semblance of compliance without its substance, motion of settlement without progress toward it. In railway disputes, the first short step in the succession provided by the Railway Labor Act could be taken and the remainder then could be hurdled by injunction. A party always could negotiate -- that is, engage
in collective bargaining, [ Footnote 18 ] and thereby be relieved of the requirements, under Section 8, of mediation and arbitration. Thus, in this case, under the construction of the Court of Appeals, when respondent completed negotiations without the aid of mediation, there was no need to go on with mediation. In the court's view, compliance with one of the specified methods satisfies the full requirements of Section 8. [ Footnote 19 ] Yet negotiation, in the sense of bargaining collectively, under the Railway Labor Act is an obligation imposed by law. Section 2, Ninth; also First, Second; Virginian Ry. Co. v. System Federation, 300 U. S. 515 , 300 U. S. 548 ; cf. Texas & N.O. R. Co. v. Brotherhood of Clerks, 281 U. S. 548 ; General Committee of Adjustment v. Missouri-Kansas-Texas R. Co., 320 U. S. 323 . Obviously, if the view of the Court of Appeals is right, the condition requiring "every reasonable effort to settle" the dispute becomes a dead letter in railway labor disputes, since no more would be required, by its terms, in that application than is called for by the first condition, which demands compliance with legal obligations. Respondent, however, while apparently agreeing with the Court of Appeals that compliance with one method is sufficient, relies not only upon its negotiation, but also upon its participation in mediation. This serves it in no better stead. The section is not disjunctive as to arbitration, but conjunctive as to negotiation and mediation. The case is one, so far as both language and policy go, of one or all. [ Footnote 20 ]
Respondent's final contention in this phase of the case is the most insistent. It is that, if "voluntary arbitration," as the term is used in Section 8, encompasses arbitration under the Railway Labor Act, by that fact, the arbitration ceases to be "voluntary," and the latter Act's requirement that it be so is violated. In short, it is said that effect is to force respondent to submit to compulsory arbitration.
Without question, as respondent says, arbitration under the Railway Labor Act is voluntary. Section 7, First, requires the machinery to be put in motion by agreement of the parties. A proviso also declares
"That the failure or refusal of either party to submit a controversy to arbitration shall not be construed as a violation of any legal obligation imposed upon such party by the terms of this Act or otherwise."
45 U.S.C. § 157, First. It is clear, therefore, that the Railway Labor Act's purpose is not to impose upon the parties a legal duty to arbitrate, enforceable as is the duty to bargain collectively imposed by Section 2, Ninth, discussed above. And if the effect of bringing that form of arbitration within the mandate of Section 8 of the Norris-LaGuardia Act were to create such a duty, so enforceable, respondent's contention would be more in point. But it does not do that. And the contention that it does entirely misconceives the effect of Section 7, First, of the Railway Labor Act, and confuses "violation" of its terms with failure to comply with those of Section 8 of the Norris-LaGuardia Act. The proviso of Section 7, First, and the requirement of submission by agreement were in force substantially in their present form under the Railway Labor Act of 1926. 44 Stat. 582. It was exactly in the light of these provisions and with the intent, as has been shown, to make it include arbitration under the Railway Labor Act that Section 8 used the term "voluntary arbitration." Obviously there was no purpose in doing so to contradict the terms of both statutes and label "voluntary" what in fact is compulsory. Nor was this the effect. Section 7, First, merely
provides that failure to arbitrate shall not be construed as a violation of any legal obligation imposed upon the party failing by that Act or otherwise. Respondent's failure of refusal to arbitrate has not violated any obligation imposed upon it, whether by the Railway Labor Act or by the Norris-LaGuardia Act. No one has recourse against it by any legal means on account of this failure. Respondent is free to arbitrate or not, as it chooses. But if it refuses, it loses the legal right to have an injunction issued by a federal court, or, to put the matter more accurately, it fails to perfect the right to such relief. This is not compulsory arbitration. It is compulsory choice between the right to decline arbitration and the right to have the aid of equity in a federal court.
True, this deprives respondent of a protection to which it might have been entitled if the condition had not been imposed. But that is true of each of the section's conditions. And it is hardly more true with respect to one condition than with respect to others. Mediation, or for that matter negotiation, does not become compulsory because, without them or either of them, injunctive relief cannot be had. Neither does arbitration.
Nor does it follow, as respondent seems to imply, that it is left without remedy. Other means of protection remain. Suits for recovery of damages still may be brought in the federal courts when federal jurisdiction is shown to exist. Federal statutes supply criminal sanctions, enforceable in the federal courts, against persons who interfere in specified ways with the operation of interstate trains or destroy the property of interstate railroads. Cf. 18 U.S.C. § 412a. With these and other remedies that may be available we are concerned no further than to point out that respondent's failure to observe the requirements of Section 8 has not left it without legal protection. That failure has deprived it merely of one form of remedy which the Congress, exercising its plenary control over the jurisdiction
of the federal courts, [ Footnote 21 ] has seen fit to withhold. With the wisdom of that action we have no concern. It is enough, for its enforcement that it is written plain and does not transcend the limits of the legislative power. Cf. Lauf v. E. G. Shinner & Co., 303 U. S. 323 .
The fact is that respondent complied with the requirements of both Section 8 and the Railway Labor Act in all but the one essential respect. It recognized the employees' designated representatives, negotiated with them, engaged in mediation until it was terminated by the Board as the statute required. When it came, however, to the final and crucial step of arbitration, it declined to go forward as Section 8 requires if, later, injunctive relief is to be had. Whether the refusal was motivated by distrust of the Board, [ Footnote 22 ] by a desire to escape the binding effect of an award, [ Footnote 23 ] by preference for some other possible procedure, [ Footnote 24 ] or merely by respondent's
mistaken view of the section's requirements is not material. Arbitration under the Railway Labor Act was available, afforded a method for settlement Congress itself has provided, and, until respondent accepted this method, it had not made "every reasonable effort to settle" the dispute, as Section 8 requires.
It remains to refute a further basis for the ruling of the Court of Appeals. This was that, in accordance with its previous decisions, Section 8 does not apply when violence is involved. The terms of the Section offer no support for such a view. [ Footnote 25 ] And, if exceptions exist, to find one in the circumstances shown by this record would be to invert the statutory order of things. The purpose of the section is to head off strikes, and the violence which too often accompanies them, by requiring the statutory steps to be taken before the aid of federal courts is sought in equity. Denial of that assistance is the sanction the statute affords to secure performance of the prescribed preventive measures. To give it when they have not been taken not only violates the section's terms. It defeats the purposes they were to accomplish and which, when achieved, make unnecessary invocation of the court's aid.
In general, the Act was not intended to interfere with the power to restrain violent acts. [ Footnote 26 ] And it was contemplated expressly the court might intervene to prevent them when the particular circumstances show the complainant has had no opportunity to comply with such requirements as those of Section 8. [ Footnote 27 ] But one major purpose of the Act was to prevent the use of injunction improperly as a strike breaking implement. [ Footnote 28 ]
And the discussion of Section 8 in the Congressional debates shows that, while it would not apply if, on the facts, the complainant could not meet its terms, it was intended to apply when he had had ample opportunity, but refused to do so. [ Footnote 29 ] This is clear not only from Representative O'Connor's "clean hands" characterization of the section, [ Footnote 30 ] but also from the general character of the discussion regarding it. Most, if not all, of the objection was upon the mistaken view that Section 8 would apply even though the complainant might have no notice or knowledge of the facts calling for him to take the conciliatory steps before seeking injunctive relief. [ Footnote 31 ] What has been said above shows this was not the intent or effect of the section. There was indeed no expression of concern for the complainant who, having full opportunity to comply with the section, might refuse deliberately and steadfastly to do so. On the contrary, it appears to have been understood clearly he would be remitted to other forms of relief not touched by the Act.
In view of the disposition we have made of the case, we have not determined the other issues which were presented. Some are of such importance they should not be decided in advance of necessity for determining them. That necessity is not present in this case. Accordingly, we express no opinion concerning those issues.
The judgment is reversed, and the cause is remanded for further proceedings in conformity with this opinion.
[ Footnote 1 ]
Petitioners' brief characterizes their action as agreement "to an indefinite postponement." Respondent says "the strike notice was at no time withdrawn, although it was temporarily withheld" until December 28.
[ Footnote 2 ]
The record does not disclose the exact time or manner of petitioners' agreement, but clearly indicates it was in response to this proposal of the Board, not the later one of December 28, which was addressed solely to respondent and recited the employees' previous agreement.
[ Footnote 3 ]
There were twenty-nine of these. The employees involved in the dispute numbered about one hundred.
[ Footnote 4 ]
It may be added to the background of facts that, between January 19, when the injunction issued, and the time when the appeal was perfected, various individual defendants, petitioners here, were cited to show cause why they should not be punished for contempt for violating the injunction. The court also issued an order on February 9 directing the marshal to enforce the injunction by proper means, including the employment of additional deputies if necessary. The record shows the citations were set for hearing but does not disclose what disposition was made of them. It appears, however, from the briefs that the persons cited were convicted and sentenced for violation of the injunction, sentence later being suspended pending the final determination of this case.
[ Footnote 5 ]
In the lower courts and here, this issue was highly controverted. Petitioners say jurisdiction is lacking since the cause of action is one merely for exercise of the general police power in the protection of the railroad's property. The complaint, it is said, does not specify and provision of federal law which requires construction or application, and does no more than aver a general reference to federal statutes, including the Interstate Commerce Act and the statute making criminal specified interferences with interstate railroad property. 18 U.S.C. § 412a; cf. 19 U. S. Virginia, 6 Wheat. 264; Norton v. Whiteside, 239 U. S. 144 ; Gully v. First National Bank, 299 U. S. 109 .
Respondent and the lower courts find the jurisdictional basis generally in the duties imposed upon carriers by the Interstate Commerce Act and other federal statutes, including the criminal statute referred to above. They rely upon such authorities as Ex parte Lennon, 166 U. S. 548 ; Toledo, Ann Arbor & North Michigan R. Co. v. Pennsylvania Co., 54 F. 730, and Wabash R. Co. v. Hannahan, 121 F. 563.
[ Footnote 6 ]
Cf. the Norris-LaGuardia Act, 29 U.S.C. § 107(e).
[ Footnote 7 ]
Petitioners also urge that the temporary restraining order became void on the expiration of five days by the provisions of 29 U.S.C. § 107(e), and could not be extended beyond that time; hence, the orders continuing it in force were nullities, and that the evidence was insufficient to show they had participated in or ratified any act of violence or of interference with respondent's operations or property.
[ Footnote 8 ]
Cf. text infra at note 21
[ Footnote 9 ]
Cf. 45 U.S.C. § 157, 44 Stat. 582-584, 48 Stat. 1197. Each party selects an equal number of arbitrators who select another or others, but, in case of failure of the named arbitrators to agree, the Mediation Board selects the additional member or members.
[ Footnote 10 ]
The award is made final and conclusive upon the parties, except for possible impeachment of the judgment entered upon it, in judicial proceedings, on grounds specified in the statute. 45 U.S.C. § 158(1), (m), (n), 44 Stat. 584-586, 48 Stat. 1197; § 159, Second, Third, 44 Stat. 585.
[ Footnote 11 ]
It is not necessary to determine whether they are illustrative or exclusive. Respondent's emphasis upon the disjunctive meaning of "either . . . or . . . or" effectually eliminates "every" from the section. It distorts "every reasonable effort" into meaning, in effect, "one of the following reasonable efforts." A similar distortion is its apparent view that the phrase "with the aid of any available governmental machinery" qualifies only "mediation," and not "voluntary arbitration." Cf. the further discussion in the text, infra at note 20 And if the section uses "or" only in the disjunctive, it would be enough either to comply with legal obligations or to make reasonable effort, a view so obviously untenable it has not been suggested.
[ Footnote 12 ]
The Norris-LaGuardia Act was adopted March 23, 1932. 47 Stat. 70. At that time, the Railway Labor Act of 1926 was in force. 44 Stat. 577. Though it differed in substantial respects from the Railway Labor Act of 1934, now in effect (48 Stat. 1185), it contained provisions for the three procedures of negotiation, mediation, and arbitration which, for present purposes, were identical with or substantially similar to those of the later statute. The 1934 changes related principally to the machinery for making the procedures effective, though in some instances it more definitely crystalized legal obligations.
[ Footnote 13 ]
Much of the debate in Congress related to previous railway labor disputes, including the Pullman controversy of 1894 and the shop-craft strike of 1922, and to decisions relating to injunctions which had been issued in connection with these disputes, e.g., In re Debs, 158 U. S. 564 ; cf. 75 Cong.Rec. 4618-4620, 5472-5479, 5503-5504.
[ Footnote 14 ]
Cf. the debates in Congress, 75 Cong.Rec. 4505-4510, 4618-4626, 5462-5515.
[ Footnote 15 ]
Cf. notes 13 14, supra.
[ Footnote 16 ]
75 Cong.Rec. 5504. And at 5508, in response to an inquiry whether or not Section 8's requirements would apply where it might be impossible to move for settlement by negotiation, mediation or arbitration, he stated:
"The answer to that is simple. In seeking a restraining order, a party believed to be aggrieved comes into court, and, under a certain state of facts, which are enumerated in the bill itself, asks for a restraining order. If time has not permitted him or the corporation to avail itself of the existing governmental machinery for the settlement of a labor dispute, he recites that as one of his facts, which is a full compliance, of course, with the provisions of section 8, which makes it a condition precedent that every remedy must be exhausted to settle the strike before the injunction will issue."
[ Footnote 17 ]
75 Cong.Rec. 5464. It was partly for fear of the effects of requiring compliance with Section 8's provisions upon interruption of service that Mr. Beck, who led opposition to the bill, urgently advocated an amendment exempting public utilities. 75 Cong.Rec. 5503-5504.
[ Footnote 18 ]
It may be assumed that the negotiation must be done in good faith, as is true under the National Labor Relations Act, cf., e.g., NLRB v. George P. Pilling & Son Co., 119 F.2d 32.
[ Footnote 19 ]
"The employer is not compelled to avail himself of all three methods; any one of them will fulfill the requirements. Thus, in Mayo v. Dean, 82 F.2d 554, 556, it was held that the employer is not obliged to propose both mediation and arbitration."
132 F.2d 265, 271.
[ Footnote 20 ]
Cf. note 11 supra.
[ Footnote 21 ]
Cf. Lockerty v. Phillips, 319 U. S. 182 , and authorities cited.
[ Footnote 22 ]
Respondent's brief contains the following:
". . . respondent had reached the point where its only recourse was to request an impartial body -- namely, an emergency board -- to hear the evidence and decide the issues involved."
"There is no presumption that this governmental agency would be fair, just, and impartial in the conduct of the arbitration, and, with the experience which the respondent had had in the mediation, it could not be charged with bad faith in refusing to sign an arbitration agreement, where the arbitration proceedings were to be conducted under the same atmosphere."
"Respondent has always insisted upon a fair and impartial hearing of this labor dispute before a body which has no connection with either the Brotherhood interests or the railroad interests, and, to this date, it has been unsuccessful to have its case presented to a body of that character."
[ Footnote 23 ]
[ Footnote 24 ]
When the Mediation Board terminated its services, respondent first suggested submission to "some impartial factfinding commission," but for advisory action only. Later it repeatedly urged appointment of an emergency board under Section 10 of the Railway Labor Act, 45 U.S.C. § 160, 44 Stat. 586, 587, 48 Stat. 1198. Under the section, if a dispute not adjusted threatens in the Board's judgment substantially to interrupt interstate commerce, the Board shall notify the President, who, in his discretion, may create a board to investigate and report concerning the dispute.
[ Footnote 25 ]
Frankfurter and Greene, The Labor Injunction (1930) 215.
[ Footnote 26 ]
Cf. 75 Cong.Rec. 5478.
[ Footnote 27 ]
Cf. note 16 supra; 75 Cong.Rec. 5508.
[ Footnote 28 ]
Cf. 75 Cong.Rec. 5478.
[ Footnote 29 ]
Cf. note 16 supra; 75 Cong.Rec. 5508.
[ Footnote 30 ]
Cf. note 17 supra, and text.
[ Footnote 31 ]
Cf. 75 Cong.Rec. 4688, 5471, 5508, setting forth the objections of opponents to the bill, with the replies of its sponsors at 4760, 5508.