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X-b. (Source: U.S. District Court, District of Columbia. In 225 Federal Supplement 11 (decided January 8, 1964); affirmed 331 Federal 2d 1020; certiorari denied, 377 U.S. Supreme Court 918)

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District court, in actions brought to impeach and set aside award of special arbitration board created under Act approved to avoid threatened nationwide railroad strike, was entitled to consider only whether award conformed to requirements of law or to stipulations of agreement to arbitrate and merits of decision were not subject to judicial review. Railway Labor Act, § 9 and par. 3(a, b), 45 U.S.C.A. § 159 and par. 3(a, b); Joint Resolution, Aug. 28, 1963, §§ 4, 9, 45 U.S.C.A. § 157 note.

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District court, in actions brought to impeach and set aside award of special arbitration board created under Act approved in order to avoid threatened nationwide railroad strike, could not review question whether there was substantial evidence to sustain findings of fact. Railway Labor Act, § 9 and par. 3(a, b), 45 U.S.C.A. § 159 and par. 3(a, b); Joint Resolution, Aug. 28, 1963, §§ 4, 9, 45 U.S.C.A. § 157 note.

3. Administrative Law and Procedure

5

Provision of Administrative Procedure Act excepting from its coverage those agencies that are composed of representatives of parties to disputes determined by them includes agencies composed even partially of representatives of parties. Administrative Procedure Act, § 2, 5 U.S.C.A. § 1001.

4. Statutes 152, 223.4

Specific statute will not ordinarily be by later enactment of general character. deemed superseded, amended or repealed

5. Administrative Law and Procedure 751

Court may not go beyond point of determining that administrative agency thoroughly weighed evidence and that there was rational basis for its conclusions.

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10. Labor Relations 462

That special arbitration board, created under act approved in order to avoid threatened nationwide railroad strike, provided that numerous individual disputes concerning sizes of train crew should be referred from time to time to local boards did not confitute failure on part of board to make complete and final disposition of issues as required by enabling statute, where board constructed machinery for disposition of what conceivably could be thousands of such disputes. Joint Resolution, Aug. 28, 1963, § 3, 45 U.S.C.A. § 157 note.

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Standards and guides prescribed by Congress to be followed by administrative agency are not required to be defined with accuracy and precision of mathematical formula and it is sufficient if Congress indicates general criteria or aim to serve as guide to administrative agency.

18. Constitutional Law 62

Labor Relations 413

Act which created special arbitration board and which was approved in order to avoid threatened nationwide railroad strike is not invalid on ground of unlawful delegation of power without proper standards and Act was within power of Congress. Joint Resolution, Aug. 28, 1963, 45 U.S.C.A. § 157 note; Railway Labor Act, §§ 7-9, 45 U.S.C.A. SS 157-159.

Lester P. Schoene, Washington, D. C., for plaintiffs in Civil Action No. 291963.

Max Malin, Washington, D. C., for plaintiff in Civil Action No. 2921-63. Francis M. Shea, Washington, D. C.,

for defendant carriers.

John W. Douglas, Asst. Atty. Gen., Washington, D. C., for defendants Seward and Kennedy, and for the United States of America as intervening defendant.

HOLTZOFF, District Judge.

These two actions are brought to impeach and set aside an award of a special arbitration board created under an act of Congress approved August 28, 1963, Public Law 88-108, 77 Stat. 132, in order to avoid a threatened nationwide railroad strike, which was then imminent. The function of the board was to arbitrate and make an award concerning two basic issues that were in controversy between the railroads and their staffs. The laintiffs in these two actions are four

organizations or brotherhoods composed of operating railroad employees. They

are dissatisfied with the decision and

seek to set it aside. Most of the defendants are railroads, all of which have accepted and acquiesced in the award. The remaining defendants are the chairman of the arbitration board and the Attorney General. The United States has in

tervened as an additional party defendant. As judicial review in this case must be limited to the administrative record and the Court is restricted to passing only on questions of law, the matter has been presented by cross motions for summary judgment.

The present dispute comprehends practically all the Class I railroads in the United States and their operating employees. It arises out of drastic and radical technological changes that have tak en place in the transportation industry. Specifically, it is caused by the revolutionary advance consisting of the abandonment of steam power on railroads and the substitution of diesel engines. Principally, what is involved is the status of

firemen on railroad locomotives. As their name indicates, their primary function on steam locomotives was to stoke the furnace and keep the fires burning underneath the boilers. They also performed another duty, namely, watching the road and the signals from the left side of the cab, as the engineer sat on the opposite side and made his observations from the righthand window. With the abandonment of steam power and the introduction of diesel engines, there were no longer any fires to keep burning or any furnaces to stoke. The question arose, "What is to become of the fireman?" There is no dispute that they were still necessary on passenger trains in order to perform their secondary function and their status in passenger traffic is not involved in the present controversy. The railroads claimed, however, that they were no longer needed on freight trains, because the duty of watching the road from the left side could be performed by other employees. The railroad brotherhoods, on the other hand, took the position that because they rendered this vital service, firemen should be continued on freight trains. This controversy also comprehended engines operated in yard service. Approximately 30,000 employees were involved. Both sides agreed that as a matter of social

justice and enlightened fairness to the men, especially those whose career had been lengthy, there should be no immedi ate large scale discharge of employees; that some degree of security be granted to them; and that the abolition of the

jobs should be accomplished by some the railroads felt a sense of moral regradual process of attrition. Manifestly, sponsibility to the veteran workers. Nevertheless it is quite evident that they also thought that there should be a reasonable limit to their generosity.

The extent of the security and the groups of men to whom it should be extended, were in sharp dispute.

A second question in controversy was the composition of train crews. The railroads contended that as a result of modern improvements and innovations the size of many train crews could be substantially reduced. In addition, there were many other problems that divided the contending parties, that were of lesser magnitude and importance and are not involved in these actions.

In order to understand clearly the spe cial legislation creating the arbitration board, it is desirable to recapitulate briefly the salient events that preceded its enactment. The status of firemen on freight trains and yard service had been disputed and discussed from the beginning of the shift from steam to diesel power. The controversy was brought to a head on November 2, 1959, when the carriers issued notices proposing the elimination of firemen in freight and yard service. As has already been stated, there was no desire or intention to do away with them on passenger trains. These notices also proposed the abrogation of regulations fixing the size of train

crews.

On September 7, 1960, the employees' organizations in turn served a series of notices containing counter-proposals, which, among other things, would

have continued and even extended the use of firemen and would have required not less than one conductor and two

trainmen in all train crews plus such additional persons as were required to assure maximum safety.

In an endeavor to adjust the differences between the parties and to settle the controversy, the President of the United States, in November, 1960, created a special commission, known as the Presiden tial Railroad Commission. This body, after a prolonged investigation and protracted and thorough study, submitted a report on February 26, 1962, containing a series of recommendations. The carrier members of the Commission accept ed it although expressing some dissatisfaction. The members representing the employees dissented and rejected most of the proposals.

There followed a series of unsuccessful negotiations pursuant to the Railway Labor Act, in the hope of arriving at a peaceful and amicable settlement of the dispute. In a further effort to avert the strike, which might have resulted in an economic disaster, the President, on

April 3, 1963, appointed an Emergency Board known as Emergency Board No. 154. On May 13, 1963, this board submitted a report making recommendations for an adjustment of the issues. The employees' organizations proved unwilling to accept them. Strenuous negotiations were resumed, in which the Secretary of Labor took an active part. On August 2, he submitted a memorandum, accompanied by a series of documents, enumerating and defining the various issues in controversy and endeavoring to indicate areas in which, in his judgment, there was the largest possibility of agreement. A suggested plan for a voluntary arbitration followed, but proved abortive. A strike was imminent. The country was confronted with a serious emergency. A nation-wide railroad strike would have been a calamity. Congress alone could avert the catastrophe. The national legislature was not found wanting. It expeditiously fashioned and invoked a drastic measure. As was said by Chief Justice Hughes in Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 425, 54 S.Ct. 231, 235, 78 L.Ed. 413, "While emergency does not create power, emergency may furnish the occasion for the exercise of power". It promptly passed a Joint Resolution, which was approved by the President on August 28, 1963, Public Law 88-108, 77 Stat. 132.1

This enactment expressly prohibited any strike (Section 1). It authorized the creation of an arbitration board to consist of seven members, two to Le designated by each of the contending groups and three additional members to be selected by the other four. If the four failed to agree on the three neutral members, the latter were to be appointed by the President, and this is what happened. The President named the three neutral 1. The text of this Joint Resolution, without, however, including its recitals is also found in 1963 Pocket Part to 45 U.S. C.A. under Section 157.

members, one of whom was elected chair- neutral members, which also includes

man (Section 2).

The board was directed to pass on two issues: the use of firemen on other than steam-powered locomotives; and the size and composition of train crews (Section 3). Thus, Congress, in effect, ordered a compulsory arbitration of these two basic differences. It provided that the arbitration should be conducted pursuant to Sections 7, 8, and 9 of the Railway Labor Act, 45 U.S.Code, §§ 157-159 (Section 4). The board was directed to conclude its labors within ninety days (Section 5). Its award was to be deposited in this Court and was to be binding on the parties (Section 4). It was not to become effective until sixty days after filing (Section 5).

In connection with the proceedings, Congress directed the Secretary of Labor to furnish to the board and the parties, copies of his statement of August 2, 1963, to which reference has already been made, and the accompanying papers. The board was required to incorporate in its decision any matters on which it "finds" the parties were in agreement, to resolve the matters on which they were not in agreement and to give due consideration to those matters as to which they were in tentative agreement (Section 3). Section 7(a) of the statute set forth the standards and the criteria by which the board was to be governed. It was to give due consideration to the effect of the proposed award upon adequate and safe transportation service to the public and upon the interests of the carrier and employees affected, giving due consideration to the narrowing of the areas of disagreement which had been accomplished in bargaining and mediation.

The board promptly organized and held a continuous series of hearings, at which testimony of numerous witnesses was heard and a large number of exhibits were introduced in evidence. Its award was filed on November 26, 1963. By the terms of the statute it becomes effective on January 25, 1964.

The award contains detailed provisions. It is accompanied by a comprehensive, and well-reasoned opinion of the 78-505 0-67-pt. 2-26

findings of fact. The decision distinguishes between the question as to what positions should be eliminated or abolished and the question as to how and when such abolition should take place and to what extent the status of the present incumbents should be protected. The board reached the conclusion that firemen, although no longer performing their basic and original function, do, in fact, render necessary services, namely, watching the road and the signals from the left side of the cab. It further held, however, that firemen were not indispensable for this purpose, because on freight trains, unlike passenger trains, there were three men in the cab instead of two, the third being the head brakeman and that the head brakeman could fulfill this task. It is true that firemen also made necessary mechanical adjustments when needed, but the board determined that this work could be done by the engineer or by maintenance groups at terminals. As to the yard service, the board decided that a second man in the cab was unnecessary, since other employees standing on the ground or walking along the track gave necessary guidance to the engineer. The ultimate conclusion reached, therefore, was that firemen were no longer needed in freight or yard service and that these positions could be eliminated, with the limitation as to yard service that the engine must be equipped with an automatic control. The board further found that there were exceptional situations in which the services of a fireman might be necessary. Accordingly, it ordered that ten per cent of the firemen in freight and yard service be retained, and prescribed a method for ascertaining and determining the employees to be included in that group.

The board prescribed liberal protection for existing employees. It preserved security of tenure for a great many of the firemen regularly in the employ of the railroads at the time when the award becomes effective even though their services could well be dispensed with. Accordingly, all firemen hired more than two years prior to the effective date of the award and in active service at that

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