Opinion
No. 41176.
March 14, 1949. Rehearing Denied, April 11, 1949.
1. PROHIBITION: Courts: Railways: Master and Servant: Jurisdictional Labor Dispute: Exclusive Remedy Under Railway Labor Act. Where there is a jurisdictional dispute between two railroad unions as to the right to fill certain jobs, the exclusive remedy is under the boards provided by the Railway Labor Act.
2. PROHIBITION: Courts: Railways: Master and Servant: Jurisdictional Dispute Involved. The suit in the circuit court involves a jurisdictional dispute between two railroad unions as to which are entitled to perform the functions of head-end brakemen. The fact that the dispute is between colored porters and white brakemen, and that racial discrimination is claimed, does not give the circuit court jurisdiction.
3. PROHIBITION: Courts: Injunctions: Railways: Master and Servant: Failure to Comply with Railway Labor Act: Right to Injunctive Relief. The circuit court has jurisdiction to enjoin the discharge of plaintiffs as train porters and the changing of rules and working conditions to abolish their jobs and replace them with other jobs created for that purpose until the boards established under the Railway Labor Act have decided the jurisdictional dispute.
4. PROHIBITION: Courts: Injunctions: Railways: Master and Servant: Injunction Too Broad: Jurisdiction Exceeded. The injunction issued by the circuit court is too broad because it attempts to decide a railroad labor jurisdictional dispute which the courts do not have jurisdiction to decide. The rule in prohibition is made absolute as to such jurisdictional dispute, but is discharged in all other respects. The temporary injunction is modified.
RULE MADE ABSOLUTE IN PART AND DISCHARGED IN PART AND TEMPORARY INJUNCTION DISSOLVED IN PART.
M.G. Roberts, E.G. Nahler, C.H. Skinker, Jr., and A.J. Baumann for relator.
(1) It clearly appears upon this record that the case below involves a jurisdictional labor dispute. In granting the temporary injunction against relator, the respondent acted without, and in excess of, the jurisdiction of the Court. Railway Labor Act, 45 U.S.C.A., Sec. 151 et seq.; Order of Conductors v. Pitney, 326 U.S. 561; Missouri-Kansas-Texas R. Co. v. Randolph, 164 F.2d 4, certiorari denied 68 S.Ct. 1083; General Committee v. M.-K.-T.R. Co., 320 U.S. 323; Howard v. Thompson, 72 F. Supp. 695. (2) Prohibition is the proper remedy where the court acts without, or in excess of, its jurisdiction. State ex rel. v. Aloe, 152 Mo. 466, 54 S.W. 494; State ex rel. v. Williams, 221 Mo. 227, 120 S.W. 740; State ex rel. v. Bright, 224 Mo. 514, 123 S.W. 1057; State ex rel. Natl. Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418.
Victor Packman and Henry D. Espy for respondent; Charles H. Houston of counsel.
(1) On prohibition the crucial question is whether a matter was presented to the lower court which that court has the power to deal with. The petition below involves the right of Negro citizens to protect their means of a livelihood from discriminatory practices and illegal conduct on the part of the defendant (as well as a violation of the Railway Labor Act). The suit involves property rights. A man's occupation partakes of the character of property. State v. McQuillin, 262 Mo. 256; Clarkson v. Laiblan, 178 Mo. App. 708; Door Co. v. Fuelle, 215 Mo. 421; State ex rel. Chase v. Hall, 297 Mo. 594; 30 C.J.S., 399, sec. 58; Grand International Brotherhood of Locomotive Engineers v. Mills, 31 P.2d 971, 43 Ariz. 379; Easley v. Betts, 161 Kan. 459, 169 P.2d 831; James v. Marinship Corp., 25 Cal.2d 721, 155 P.2d 329; Williams v. International Brotherhood of Boilermakers, etc., 165 P.2d 903; Bautista v. Jones, 155 P.2d 343, 25 Cal.2d 746. (2) Plaintiffs have a natural, essential and inalienable right to pursue any legitimate occupation under our form of government, and they complained to the court that such rights were being denied them. A court of equity in the exercise of its proper functions could protect such constitutional rights whether under the Federal or State constitutions or Civil Rights Act, Title 8, Secs. 41 and 43. Asher v. Ingles, 13 F. Supp. 654; 16 C.J.S., p. 622, sec. 211; pp. 625, 626, sec. 212; Smith v. Texas, 233 U.S. 630; Meyer v. Nebraska, 262 U.S. 390; Butchers' Union v. Crescent City, 111 U.S. 746; Live Stock Dealers etc. v. Crescent City Live Stock Handling Co., 15 Fed. Cases #8408 pp. 649, 652, 653; Truax v. Raich, 239 U.S. 33, 41; Tiburcio Parrott, 1 F. 498; Wills v. Restaurant Employees. 26 Ohio N.P. (N.S.) 435. (3) Courts of equity have power to pass on questions of employee seniority. Nord v. Griffin, 86 F.2d 481, certiorari denied, 300 U.S. 673, 81 Law Ed. 879; Grand International Brotherhood of Locomotive Engineers v. Mills, 31 P.2d 971, 43 Ariz. 379. (4) There is nothing in the Railway Labor Act, express or implied, which prevents seeking recourse to the courts for a violation of civil rights of railroad employees and if it is so construed it should be held unconstitutional as in violation of the V and XIV amendments. The Civil Rights Act expressly permits redress to the courts — and no repeal of that Act (constitutionally based) is to be found in the Railway Labor Act. 8 U.S.C.A., Secs. 41, 43; Steele v. L. N.R. Co., 323 U.S. 192; Betts v. Easley, 161 Kan. 459, 169 P.2d 831; Dooley v. Lehigh Valley R. Co., 130 N.J. Eq. 75, 21 A.2d 334. (5) Even when Congress creates a right of action unless it expressly provides that the rights should be enforceable only in a Federal court, State courts and Federal courts have concurrent jurisdiction. State of Missouri ex rel. v. Taylor, 266 U.S. 200, 69 L.Ed. 247. (Mr. Justice Brandeis) affirming, 298 Mo. 474, 251 S.W. 483. (6) Considering the relation between the Federal and State Government, there is no presumption that Congress intended to prevent state courts from exercising the general jurisdiction already possessed by them, and under which they had the power to hear and determine causes of action created by Federal statute . . ." Galveston Ry. Co. v. Wallace, 223 U.S. 481, 56 L.Ed. 516. (7) A state court of original jurisdiction, having the parties before it, may, consistently with existing Federal legislation, determine cases at law or in equity, arising under the Constitution or laws of the United States, or involving rights dependent upon such Constitution or laws. Robb v. Connolly, 111 U.S. 624. (8) The Circuit Court of the City of St. Louis had the power to act on the plaintiff's petition to protect a property right and grant the relief which it did. This jurisdiction is in no wise impaired by the consideration whether it acted in accordance with the law or erroneously. Its jurisdiction does not depend on whether its decision is right or wrong. If it has the power to decide a question, it has the power to decide the question erroneously, which error may be corrected on appeal. State ex rel. v. Skinker, 341 Mo. 28, 106 S.W.2d 409; State v. McQuillin, 262 Mo. 256, 171 S.W. 72. (9) There are no fact issues determined by a commissioner and neither side has requested one. Hence, all well pleaded allegations of the return must be taken as true for purposes of the case. Averments of the petition for a writ of prohibition to the extent that they were specifically denied by the return must be taken as false. State ex rel. v. Shelton, 238 Mo. 281; State ex rel. v. Shields, 237 Mo. 229. (10) The question of whether the court below has acted in excess of its jurisdiction or whether it had no jurisdiction over the subject matter is to be determined from the allegations in the petition in the case pending before the respondent and the evidence considered by him, and not from facts which the relator injects into the situation de hors the record. State ex rel. Chase v. Hall, 297 Mo. 594; State v. Joynt, 110 S.W.2d 737, 341 Mo. 788; 50 C.J., p. 706, sec. 134; 50 C.J., p. 710, sec. 137. (11) Even if it can be determined from the petition that the petition would be subject to demurrer or needs amendment in the Circuit Court, prohibition does not lie. State ex rel. Leek v. Harris, 334 Mo. 713, 67 S.W.2d 981; State v. Sevier, 98 S.W.2d 677; State v. Hay, 153 S.W.2d 834. (12) The United States Supreme Court has defined a jurisdictional dispute as one involving an asserted "overlapping of the interests of two crafts." (Emphasis ours.) General Committee B.L.E. v. M.-K.-T., 320 U.S. 323, 88 Law Ed. 77. (13) It has also been defined as follows: "It involves a determination of the point where the exclusive jurisdiction of one craft ends and where the authority of another craft begins." (Emphasis ours.) General Committee B.L.E. v. Southern Pacific Co., 320 U.S. 339, 88 Law Ed. 85. (14) Where the jurisdiction of the circuit court depends upon disputed questions of fact, that court has the right to determine its own jurisdiction from the facts before it, and prohibition will not be granted to prevent it from so doing. State ex rel. Addison v. Bowron, 75 S.W.2d 850; State ex rel. v. Caulfield, 245 Mo. 676, 150 S.W. 1047; State ex rel. v. Mills, 231 Mo. 483. (15) Even if the B. of R.T. should have been joined as a party, such defect would not be jurisdictional or grounds for invoking prohibition, as no orders were made having any binding effect on the B.R.T. 30 C.J.S. 595. (16) A defect of parties for non-joinder is ground for dismissal of bill, but it would be reversible error not to permit amendment and joinder. 30 C.J.S. 597, 598. (17) The Brotherhood of Railway Trainmen is not an employee of the Relator and has no justiciable interest in the controversy between the plaintiffs employed by the Carrier, and the Carrier accused of discriminating against them because of their race. It cannot show any injury in not being joined as a party. But even if it can, prohibition is not the remedy. The relator cannot by a "sidestroke" pervert the functions of the writ. State ex rel. v. McQuillin, 262 Mo. 256; 21 C.J. 343, Sec. 341, cited in Davis v. Austin, 156 S.W.2d 903; Elgin, Joliet Eastern R. Co. v. Burley, 325 U.S. 711, 89 L.Ed. 1887, 1900. (18) The closed shop or requirement for membership in a union is forbidden under the Railway Labor Act. Joliet Eastern R. Co. v. Burley, 325 U.S. 711, 734, 89 L.Ed. 1887, Title 45, Sec. 152, U.S.C.A. (19) There are two administrative agencies set up under the Railway Labor Act. The National Railroad Adjustment Board does not have the power to adjudicate jurisdictional disputes between two groups of employees. So if the matter as presented below was truly a jurisdictional dispute between two crafts, the Adjustment Board could not solve the problem. Order of Railway Telegraphers v. M.O.T. and N. Railway Co., 156 F.2d 1. (20) The National Mediation Board also has very limited jurisdiction and not of matters such as those here involved. It can only determine who are members of a craft as an incident to a representation dispute as to who are eligible to vote in choosing a collective bargaining agent for a craft. The Brotherhood of Railway Trainmen v. National Mediation Board, 135 F.2d 780; General Committee B.L.E. v. M.-K.-T. Ry. Co., 320 U.S. 325, 88 L.Ed. 76. (21) The First Division of the National Railroad Adjustment Board does not have jurisdiction over the controversy between plaintiffs below and the Relator, but if it were so held it is not an adequate administrative tribunal for disposition of the controversy involving these Negro trainmen. Steele v. L. N.R. Co., 323 U.S. 192; Tumey v. Ohio, 273 U.S. 510. (22) Exhaustion of administrative remedies granted by the Railway Labor Act is not a prerequisite of a railroad employee in seeking recourse in court for an alleged unlawful discharge in violation of the Act. There is nothing in the Act which purports to take away from courts the jurisdiction to determine a controversy over a wrongful discharge or which makes an administrative finding a prerequisite to filing a suit in court. Neither the original 1926 Act nor the Act as amended in 1934 indicates that the limited machinery for settling disputes is based on a philosophy of legal compulsion. Moore v. Illinois Central Ry. Co., 312 U.S. 630, 85 L.Ed. 1089; Ledford v. Chicago, M. St. P.R. Co., 298 Ill. App. 298, 18 N.E.2d 568; Southern Ry. Co. v. Order of Ry. Conductors, 41 S.E.2d 774, 210 S.Ct. 121. (23) The Railway Labor Act is incidental to only one of the grounds of complaint in the Bill in Equity, but it is unconstitutional and violates the due process clause of the V amendment if it denies plaintiffs below recourse to the Courts and forces them to submit their case to the First Division of the National Railroad Adjustment Board for determination. 45 U.S.C. § 153, contrasted with Sections 151a and 152; Tumey v. Ohio, 273 U.S. 510; Steele v. L. N.R. Co., 323 U.S. 192. (24) The action of this court in issuing the preliminary writ deprived plaintiffs below of the due process and equal protection of the law guaranteed them by the XIV Amendment to the United States Constitution and the Federal Civil Rights Act ( 8 U.S.C. § 41 and 43), and violated Sections 2, 10 and 14 of Article I of the Missouri Constitution (1945). The courts are just as much bound by constitutional limitations, and just as bound to respect and recognize constitutional and federal rights as any other branch of the state. Ex parte Virginia, 100 U.S. 313; Shelley v. Kraemer, 92 L.Ed. 845. (25) The court will look behind the form and eradicate racial discriminations imposed under color of Federal law against the right to follow a common calling whether the discriminations are concocted ingenuously or ingeniously. For examples in other fields, see Shelley v. Kraemer, 92 L.Ed. 845; Hurd v. Hodge, 92 L.Ed. 857; Patton v. Mississippi, 92 L.Ed. 164; Smith v. Texas, 311 U.S. 128; Nixon v. Condon, 286 U.S. 73; Smith v. Allwright, 321 U.S. 649; Rice v. Elmore, 165 F.2d 387. (26) A discrimination placed by government or by a private body acting under government sanction or regulation, on the right to follow a common calling based on race, creed or nationality will be stricken down. General Order No. 27, U.S. Railroad Administration; Supplement No. 12 to General Order No. 27, supra; Steele v. L. N.R. Co., 323 U.S. 192; Meyer v. Nebraska, 262 U.S. 390; Truax v. Raich, 239 U.S. 33; Kerr v. Enoch Pratt Library, 149 F.2d 212; Compare Smith v. Texas, 233 U.S. 630. Alston v. Board of Educ., 112 F.2d 992. (27) An interstate carrier is subject to constitutional restraints against arbitrarily disqualifying workers for jobs because of race, creed or national origin, particularly so when it is operating under Executive Order of the President of the United States. Steele v. L. N.R. Co., 323 U.S. 192; Compare Mitchell v. U.S., 313 U.S. 80; Act August 29, 1916, 39 Stat. 619, 645; Title 11, Sec. 205, U.S. Code; Title 49, Sec. 3 (1), U.S. Code. (28) The disqualifications sought to be imposed by the Notice of May 9, 1948, were based solely on the "obviously irrelevant and invidious" distinctions of race alone. Steele v. L. N.R. Co., 323 U.S. 192. The relator cannot deny equal protection of the law to any of its employees and discriminate as between them on the basis of race or color. It is a quasi-public corporation and as a special instrumentality of government is subject to constitutional restraints. 18 C.J.S. 396, Footnote 85; Hopkins Federal Savings Loan Assn. v. Cleary, 56 S.Ct. 235, 242, 296 U.S. 315, 336, 337, 80 L.Ed. 251, 259 (Mr. Justice Cardozo); Secs. 2, 10, 14 of Art. I, Constitution Mo. 1945; Secs. 5128, 5153, 5154, 5155, 5619-43, Mo. R.S.A.; Sec. 9, Art. II, Const. of Mo.; XIV Amendment, U.S. Constitution; Nixon v. Condon, 76 L.Ed. 984, 286 U.S. 73.
Dubail Judge for C.O. Carnahan, General Chairman, Brotherhood of Railroad Trainmen, amicus curiae.
(1) The action in the circuit court seeks an adjudication of a jurisdictional dispute between two groups of railway employees. This has been judicially determined in a prior action involving the identical controversy where it was held that exclusive jurisdiction over such matters is vested in the administrative agencies created by the Railway Labor Act, 45 U.S.C.A., sec. 151 et seq. Howard v. Thompson, 72 F. Supp. 695. (2) The fact that one of the groups involved in a "jurisdictional dispute" is composed of negroes does not deprive the National Railroad Adjustment Boards of exclusive jurisdiction nor vest jurisdiction in the courts. Missouri-Kansas-Texas R. Co. v. Randolph, 164 F.2d 4, certiorari denied 92 L.Ed. 1041; Yakus v. United States, 321 U.S. 414, 88 L.Ed. 834, 64 S.Ct. 660; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 81 L.Ed. 1143, 57 S.Ct. 816; Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 84 L.Ed. 744, 60 S.Ct. 523; Steele v. L. N.R. Co., 323 U.S. 192, 89 L.Ed. 173, 65 S.Ct. 226. (3) This case involves the application of a Federal Statute, the Railway Labor Act, and consequently the decisions of federal courts are controlling. National Refrigerator Co. v. Southwest Mo. Light Co., 288 Mo. 290, 231 S.W. 930; Hiatt v. Wabash Ry. Co., 334 Mo. 895, 69 S.W.2d 627, certiorari denied 293 U.S. 560; Illinois State Trust Co. v. Mo. Pac. R. Co., 319 Mo. 608, 5 S.W.2d 368, certiorari denied 278 U.S. 623.
Relator seeks to prohibit respondent Judge from proceeding in a case brought by two of its train porters asking declaratory and injunctive relief on behalf of themselves and others similarly situated. The question for decision is whether the courts of this state have jurisdiction to act in a controversy between train porters and brakemen (members of the Brotherhood of Railroad Trainmen) as to which are entitled to jobs designated "passenger brakemen-baggagemen;" it being claimed that the purpose of the dispute is to deprive the train porters of job functions because of their race and color.
The petition in the circuit court alleged that plaintiffs were, and for many years had been, performing all the necessary tasks of head-end passenger brakemen but, because they were negroes, were called train porters, given certain additional duties and received less pay than white brakemen; that they were not permitted to become members of organizations of white brakemen and other white trainmen; and that these organizations refused to represent them in collective bargaining. It was further stated that from 1918 to 1921, under [342] the United States Railroad Administration, train porters were classified and received pay as brakemen but after its release of control they were reclassified as train porters; and that in 1928 an agreement was made between relator and four brotherhoods representing white employees, preventing their promotion or job reclassification and providing that "in the future hiring of employees in train, engine and yard service but not including train porters, only white men shall be employed." It was also stated that train porters had handled baggage on baggage cars but that after January 1946 this work was arbitrarily assigned to white men on Relator's Trains 1 and 2; and that in May 1948 Relator posted notices "that vacancies existed on Trains 9 and 10 for `passenger brakemen-baggagemen,' and also `chair car porters'; that bids would be accepted for the above positions to and including 4 p.m., May 14, 1948; and that the qualifications for `brakemen-baggagemen on Nos. 9 and 10 are the same as the qualifications for baggage-brakemen on Nos. 1 and 2' (who are white men)." It was further stated that Relator "advised them and others that their job functions as head-end brakemen would be taken over by white men, members of the Brotherhood of Railroad Trainmen, who under schedules are classified as baggage-brakemen, and that chair car porters would take over their remaining functions." Plaintiffs stated that an arrangement had been made "with the white Brotherhood of Railroad Trainmen to turn over the head-end brakemen jobs to white men on other runs as well;" and that this would relegate them and other train porters to menial work.
The relief sought included a declaration "that the realities and not the fictions of job titles should control with reference to rates of pay and seniority classification and other working conditions; and that they are none the less brakemen even though Negroes and designated as `train porters'."
A temporary injunction was ordered by the circuit court, in accordance with the prayer of the petition, "enjoining the Defendant, its officers and agents, from displacing plaintiffs and other similarly situated from their job functions as head-end brakemen with white brakemen, or from taking away from them on any trains their present job functions as brakemen, or from taking job functions or employment opportunities away from plaintiffs and others similarly situated and reassigning the same functions to white persons under a discriminatory racial employment policy, or from giving said functions job nomenclatures that arbitrarily exclude negroes, because negroes are not employed under the nomenclatures adopted, or from entertaining any bids for baggagemen-brakemen, based on the posted notices referred to in evidence with refrence to trains No. 9 and No. 10, or from refusing to hire or use qualified negroes to fill job vacancies as baggagemen or so-called baggagemen-brakemen, irrespective of organization affiliation, or absence thereof of such persons."
Relator alleges "that the controversy presented is a jurisdictional labor dispute involving the claims of two groups of employees on Relator's railroad, each having contracts with Relator negotiated by its respective bargaining representatives, and each claiming the right to do certain items of work and fill certain jobs; and that under the applicable and controlling Acts of Congress, and particularly the Railway Labor Act, 45 U.S.C.A., Sec. 151, et seq., the jurisdiction to hear and determine said dispute is vested in certain Boards thereby established." Relator also alleges that two other suits, involving this same jurisdictional dispute, were pending in the United States District Court in St. Louis, One of these, Howard v. Thompson, appears in 72 F. Supp. 695.
In respondent's return, the situation in the Howard case is stated and it is alleged that "on March 7, 1946, under strike threat and pressure from the Brotherhood of Railroad Trainmen, Relator attempted to abolish the position of `train porter' effective April 1, 1946, and replace petitioners with white workers classified as `brakemen,' not because of any complaint about petitioners' work, but solely because of their color." It is also alleged in the return that "under the Railway Labor Act the First Division of the National Adjustment Board has jurisdiction over certain disputes between carriers and their trainmen. The [343] First Division consists of ten members; five carrier members and five labor members coming from unions National in scope. Each member of the First Division receives his compensation for services on the Board from the party he represents, and his compensation at all times remains wholly subject to the control of said party ( 45 U.S.C. § 153)"; and that "the five labor members on the First Division come one each from the Brotherhood of Railroad Trainmen, the Switchmen's Union of North America, the Order of Railway Conductors, the Brotherhood of Locomotive Engineers, and the Brotherhood of Locomotive Firemen Enginemen; and receive their compensation for services on the First Division from their respective organizations. All five organizations bar Negroes from membership solely because of race." For these reasons, it is claimed that plaintiffs, and other train porters had no adequate administrative or legal remedy. Relator's reply states that, from the admitted facts in the pleadings, it appears as a matter of law that a jurisdictional labor dispute is involved, which is beyond the jurisdiction of the respondent Judge.
C.O. Carnahan, General Chairman, Brotherhood of Railroad Trainmen, filed a motion to intervene which has been submitted to the trial court for ruling. In his brief filed herein, as amicus curiae, it is stated: "The object of the suit below, as shown by paragraph 12 and the prayer of the petition, is to effect a reclassification of the craft of train porters to brakemen, amending the brakemen's seniority rosters to give effect to this reclassification, and to require the retention and employment of train porters as head-end brakemen and baggage-brakemen."
Plaintiffs rely mainly on Steele v. Louisville Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 [See also Tunstall v. Brotherhood of Locomotive F. E., 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187.] It was held therein that a state court had jurisdiction to protect by injunction the minority of a craft or class of railroad employees from discrimination because of their race by the exclusive bargaining representative of the craft or class. In that case the union, which was the exclusive bargaining agent for all firemen, was acting adversely on racial grounds to some of the firemen they were supposed to represent. The court held the Railway Labor 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"; that "this does not mean that the statutory representative of a craft is barred from making contracts which may have unfavorable effects on some of the members of the craft represented"; but that the statute "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." It further explained that "the representative is clothed with power not unlike that of a legislature which is subject to constitutional limitations on its power to deny, restrict, destroy or discriminate against the rights of those for whom it legislates and which is also under an affirmative constitutional duty equally to protect those rights."
We do not think the Steele case can apply here because the train porters have their own union and they have never been represented by the Brotherhood of Railroad Trainmen or determined to belong to any craft or class represented by that Brotherhood. Moreover, under the decisions of the United States Supreme Court, no court has authority to decide that the Brotherhood does or must represent them. The Court carefully pointed out in the Steele case: "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, 64 S.Ct. 95; General Committee v. Missouri-Kansas-Texas R. Co., 320 U.S. 323, 64 S.Ct. 146; General Committee v. Southern Pacific Co., 320 U.S. 338, 64 S.Ct. 142; Brotherhood of Railway Steamship Clerks v. United Transport Service Employees, 320 U.S. 715, 64 [344] S.Ct. 260; Id., 320 U.S. 816, 64 S.Ct. 433, or restricted by the Act to voluntary settlement by recourse to the traditional implements of mediation, conciliation and arbitration. General Committee v. Missouri-Kansas-Texas R. Co., supra, 320 U.S. 323, 337, 64 S.Ct. 150, 153. There is no question here of who is entitled to represent the craft, or who are members of it, issues which have been relegated for settlement to the Mediation Board, Switchmen's Union v. National Mediation Board, supra; General Committee v. Missouri-Kansas-Texas R. 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 Adjustment Board." The cases so cited in the Steele opinion are the ones upon which relator and intervenor rely.
In the Switchmen's Union case, it was held that the courts were without power to review certification of the National Mediation Board, made in accordance with 45 U.S.C.A. 152, Ninth, that the Brotherhood of Railroad Trainmen was the organization authorized to represent all yardmen of the New York Central System. The relief sought, of cancellation of the certification and injunction, was denied. In General Committee v. M.-K.-T.R. Company, the Court considered a controversy between the Brotherhood of Locomotive Engineers and the Brotherhood of Firemen and Enginemen, over calling of engineers for emergency service. The Railroad had entered into a new agreement with the Firemen for handling working lists and cancelled its previous arrangements with the engineers giving them certain preferences. The Engineers brought a declaratory judgment action that the new agreement was in violation of the Railway Labor Act. The Court held that no justiciable issues were presented, and that Congress had by the Act foreclosed resort to the courts of the claims asserted by the parties. It said this was "a jurisdictional dispute — an asserted overlapping of the interests of two crafts"; and that "when Congress came to the question of these jurisdictional disputes, it chose not to leave their solution to the courts" but "selected different machinery for their solution." The Court further said: "In view of the pattern of this legislation and its history the command of the Act should be explicit and the purpose to afford a judicial remedy plain before an obligation enforcible in the courts should be implied. Unless that test is met the assumption must be that Congress fashioned a remedy available only in other tribunals. There may be as a result many areas in this field where neither the administrative nor the judicial function can be utilized. But that is only to be expected where Congress still places such great reliance on the voluntary process of conciliation, mediation and arbitration." In General Committee v. Southern Pac. R. Co., the same conclusion was reached as to a jurisdictional dispute between the Engineers and Firemen. All three of these cases were decided on the same day. [See also Order of Railway Conductors of America v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318; Missouri-Kansas-Texas R. Co. v. Randolph (C.C.A. 8th) 164 F.2d 4.]
We think that the question involved in this case is a jurisdictional dispute. The train porters claim that, along with other duties, they have been performing and are entitled to perform the functions of head-end brakemen, just as the overlapping functions of engineers and firemen, and other workmen, resulted in similar claims in the above cited cases. The Brotherhood of Railroad Trainmen claim for themselves the right to perform these particular functions; and the real question was which organization was to get this work for its members. The many cases, involving similar controversies between unions with white membership, show that race and color need not be involved to cause a dispute over such a question. Facts such as these were held to show a jurisdictional dispute, in the case preceding this one in the United States District Court, Howard v. Thompson, 72 F. Supp. 695, in which these same groups and the same railroad were involved. That case shows that there has been a dispute for many years over the performance of the functions of brakemen by train porters. In that case, the issues were not only prohibiting train porters from performing any of the functions of brakemen on passenger trains but [345] also abolishing the position of train porter on relator's railroad and discharging all of the present train porters. It was also claimed therein by the train porters that it was the duty of the Brotherhood to represent them as brakemen and that they were entitled to the benefits of any contracts between the Brotherhood and the Railroad. That claim, if established, would have made the Steele case applicable to the train porter's situation; but the Court found against that claim.
The Court held that the train porters had been designated as a particular class or craft for many years; that they had been represented in negotiations by their own organization; that through their organization, they had negotiated numerous contracts with carriers; and that, if they desired to have the Brotherhood represent them, "they must submit that question to the Mediation Board, which has been given exclusive jurisdiction by Congress to determine all disputed questions with respect to classification and representation." [Citing 45 U.S.C.A. Sec. 152, Ninth.] The Court further held that the jurisdictional dispute must be referred to the National Railroad Adjustment Board. [Citing 45 U.S.C.A. 153, First (i); and General Committee v. M.-K.-T.R. Co., supra.] However, the Court said: "Should the Mediation Board determine upon application that the porters have been improperly classified for purposes of representation, and that they should have been represented by the Brotherhood, or, if the National Railroad Adjustment Board should hold that under the contract with the Brotherhood of Trainmen, Brakemen, Porters, Switchmen, Firemen and Railway Employees, Incorporated, or because of long standing custom the porters, as such, are entitled to perform the functions of brakemen, then clearly the plaintiff and his group will suffer irreparable injury through the loss of their jobs, for which they have no administrative remedy and no adequate remedy at law." The Court also held that taking from the train porters certain functions and bestowing them elsewhere amounted to a change in an agreement affecting working conditions for which the Railway Labor Act required 30 days' notice. [45 U.S.C.A. 152, Seventh, and 156.] Therefore, the Court continued its restraining order "pending determination by the National Railroad Adjustment Board of the question of jurisdiction as to the performance of the functions of brakmen by the porters, and for a determination of the question of the classification and right or duty of representation by the Mediation Board, or for a reasonable time within which the plaintiff through his labor organization representative may invoke the jurisdiction of those Boards."
In this case, the train porters claim that the creation of the jobs of baggagemen-brakemen on trains 9 and 10, the elimination of train porters on these trains, and the creation of the jobs of chair car porters thereon, is part of an attempt to do piecemeal what it was intended to do all at one time in the Howard case. They say this should be judged by the same rule as an attempted change in rules and working conditions without complying with the 30 day notice required under the Railway Labor Act. We think that the petition did state sufficient facts to entitle them to relief on these grounds and that the trial court has jurisdiction to enjoin the discharge of plaintiffs as train porters on the trains involved, and the changing of rules and working conditions to abolish their jobs and replace them with the other jobs created for that purpose, until the Boards established by the Railway Labor Act have decided the jurisdictional dispute, and the representation and classification matters, or for a reasonable time for their jurisdiction to be invoked.
However, the present restraining order is too broad because it attempts to decide a railroad jurisdictional dispute and a classification question which the United States Supreme Court has ruled courts do not have jurisdiction to decide. The fact that members of one union are white and members of another are colored cannot prevent such a dispute over the right to perform certain overlapping job functions from being a jurisdictional dispute. Neither does that fact entitle them to by-pass the Boards established by Congress for the settlement of such disputes, according to the [346] recent decision of the United States Court of Appeals, Fifth Circuit, in Hampton v. Thompson, 171 F.2d 535. Even in the Steele case, the Court did not hold that the collective bargaining agent, which was found to have actually discriminated against negro firemen, was thereby disqualified from representing them: but it only authorized enjoining the making of discriminatory agreements and the enforcement of discriminatory provisions of the agreement made. In effect, our courts of equity are invoked to decide issues of classification, representation and job disputes on the ground that the members of the National Mediation Board, appointed by the President of the United States, and the members of the National Railroad Adjustment Board, designated as provided by Congress, would be incapable of acting in good faith and without racial discrimination, before they have ever considered the matters involved; and to say that the methods provided by Congress to settle such questions are inadequate and improper. As said by the United States Supreme Court in General Committee v. M.-K.-T.R. Co. supra, "Courts should not rush in where Congress has not chosen to tread" because "any decision on the merits would involve the granting of judicial remedies which Congress chose not to confer." Thus it appears that changes in the present scheme for settlement of such issues is a matter for the Legislative Branch of our Government and not for the Judicial Branch. We, therefore, hold that these are not justiciable issues for our courts; and that it is an excess of jurisdiction to consider them.
Our rule is made absolute to prohibit respondent judge from making any determination or order concerning the jurisdictional, classification or representation issues herein involved or from declaring plaintiffs' status or rights as to any position or job functions; and, in all other respects, our rule is discharged. The temporary injunction is dissolved except as to enjoining taking away from plaintiffs their present job functions on any trains or replacing them with baggagemen-brakemen, which may be continued pending determination of the jurisdictional, classification and representation questions by the Boards established by the Railway Labor Act or for a reasonable time to invoke the jurisdiction of those Boards. All concur.