Brotherhood of Locomotive Engineers v. Louisville & Nashville Railroad Company/Dissent Goldberg
Mr. Justice GOLDBERG, with whom Mr. Justice DOUGLAS joins, dissenting.
This Court's decision in the Chicago River case, Brotherhood of R.R. Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622, holds that strikes are excluded pending grievance proceedings over 'minor disputes' before the Adjustment Board. Though this is all that Chicago River holds, the Court today impliedly reads it to mean and, indeed, there is language in Chicago River to the effect that Congress is to be taken as having elected in favor of a comprehensive and wholly exclusive system of compulsory arbitration and as having outlawed all use of economic force in the form of a strike at any stage of a 'minor dispute' which is subject to consideration by the Adjustment Board. The logic of Chicago River is that 'final and binding' awards of the Adjustment Board are enforceable in favor of, or against, either the employer railroad, the union, or the grievant employee in the federal courts. Given the premises of Chicago River, it must follow that such enforcement proceedings are governed by federal law as declared by this Court in cases such as United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403, United Steelworkers of America, AFL-CIO v. Warrior & Gulf Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409, andUnited Steelworkers of America v. Enterprise, etc., Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424, and, of course, that the merits of such awards are not subject to de novo consideration upon a petition for judicial enforcement. See International Ass'n of Machinists, AFL-CIO v. Central Airlines, 372 U.S. 682, 83 S.Ct. 956.
Here, however, unlike Chicago River, the Adjustment Board proceedings have ended; moreover, we are dealing not with a nonmoney award which is made specifically 'final and binding' by the statute, but with a money award which, as the majority recognizes, is governed by different considerations and is treated differently in the statute itself. A money award by the Board is expressly declared by the Act not to be 'final and binding.' The enforcement machinery contained in subsection (p) of the Act-which the Court's opinion inferentially suggests is confined to money awards, and which I would expressly declare to be so limited  contemplates for such awards not that limited type of review applicable to 'final and binding' nonmoney awards, but a de novo trial before the court, subject only to the limitation, as the statute requires, that the findings of fact of the Board shall constitute 'prima facie' evidence. Under such circumstances, the logic of Chicago River in excluding strikes in favor of an exclusive scheme of 'compulsory arbitration' seems to me to have no application, for here we are dealing with nonfinal and nonbinding awards, the direct antithesis of a compulsory arbitration scheme.
In addition, the Court's opinion leads to what seems to me to be a wholly anomalous result plainly never intended by Congress. What was merely expressed as dicta in Union Pac. R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460, is apparently reinforced by today's holding. In Price, the Court said, though the question was not before it, that a strike against an Adjustment Board award denying a money claim of a grievant could be enjoined in the federal courts under the rationale of Chicago River. See 360 U.S., at 611, n. 10, 79 S.Ct., at 1357. The Court here holds that a strike to enforce a money award favorable to the claimant is forbidden even when the carrier refuses to abide thereby. In so holding, the Court cites Price with apparent approval and its language supports the result declared by the Price dicta. Thus, as of today, it appears even more clearly that a grievant filing a money claim which is denied by the Adjustment Board is finally bound by the result and may neither bring an independent suit on his claim (the holding of Price ), nor, presumably, utilize economic pressure, i.e., the strike, in support of his claim (the purport of the Price dicta and the thrust of today's holding), nor even seek further judicial review of the merits of his claim since the literal language of subsection (p) applies only to awards in the claimant's favor. The carrier will have no reason to seek further judicial review because the award is favorable to it and both the unsuccessful grievant and the union are without effective means to prevent its enforcement. Thus, under today's opinion and the prior cases cited therein, the grievant whose money claim is denied by the Board is wholly without further remedy or recourse.
Such complete foreclosure of a losing money claimant would be less objectionable were it not for the wholly disparate consequences obtaining as a result of today's decision when it is the carrier who loses on a money claim before the Board. If this occurs, the carrier is free to refuse to comply, as it did here; since today's opinion forecloses other avenues of relief to the successful grievant and his union, the carrier, by such recalcitrance, can compel a suit to enforce the award under subsection (p), which requires an entire retrial of the issues in court. During this lengthy procedure and, presumably, even at its conclusion, the grievant and the union will be left without economic or other recourse. The net result, therefore, is that on all money claims, the award of the Board is 'final and binding,' and not subject to further review or other challenge, if the claimant loses, but it is subject to de novo review and trial at the sole behest of the employer, if the employer loses. And in either case, apparently, the union is completely foreclosed even from using its most traditional weapon, the strike. I cannot believe that Congress intended such an unevenhanded application of the statute. Nor can I believe, as the Court holds, that Congress could have contemplated that the protection of the right to strike afforded by the Norris-LaGuardia Act was being rescinded in favor of such an inadequate and unfair procedure as the Court declares the Act to have created.
Absent a willingness to permit equally broad de novo review to a grievant whose money claim is denied by the Board,  a reading of the statute which admittedly seems contrary to literal words of subsection (p), the only interpretation which provides a semblance of fairness in this situation is one which interprets congressional intent to be that, in money-claim cases at least, the right to strike-while perhaps suspended during Adjustment Board proceedings-is available either if the Board decides for the claimant and the carrier does not comply, or if the Board decides for the carrier and the claimant does not acquiesce. This at least would not leave the entire balance in money cases in favor of the carrier.
The suggested result is in no way foreclosed by Chicago River, which did not treat of the difference between enforcement of money and nonmoney awards once made, nor by Price, since that case did not deal with the right to strike, and is distinguishable on the ground that there, having once resorted to the Adjustment Board, the losing grievant could not, under traditional election-of-remedy principles, relitigate the same issues afresh by bringing an independent, unrelated common-law action in another forum. 
My ultimate view, therefore, is that Congress-whatever its intent with respect to impliedly repealing the Norris-LaGuardia Act in nonmoney cases in which the Board's decision is expressly made final and binding-cannot fairly be deemed to have intended such a repeal in money-award cases, in which the Board's decisions are expressly not final and binding. The legislative history is not merely uninstructive as to today's result; it clearly demonstrates that Congress never focused on or considered the problem here raised, or even recognized the anomaly today's opinion in part effects and in part portends. Notwithstanding, the Court has read Congress as intending allowance of what in Chicago River was described as an injunction which 'strips labor of its primary weapon without substituting any reasonable alternative.' 353 U.S., at 41, 77 S.Ct., at 640. To impute so drastic a result without any clear indication that it was intended seems to me to be unwarranted.
I reach these conclusions reluctantly since I believe that arbitration of grievances is, in general, a salutary policy in the field of labor-management relations and contributes substantially to industrial peace. Wholly apart from questions as to the general desirability of compulsory arbitration, the results flowing from Chicago River would, in these terms, be commendable, assuming that the normally cumbersome and slow procedures of the Adjustment Board could be expedited to achieve the efficacy and efficiency typical of private labor arbitrations and essential to success of the process. The court procedure under subsection (p) of the Act, which today is made an integral, if not mandatory, part of the statutory grievance machinery, will, however, only increase the already undue delay in resolution of grievances.  Moreover, the de novo nature of the requisite court trial on review under subsection (p) runs directly contrary to the best view of the treatment to be judicially accorded such awards. See, e.g., United Steelworkers of America v. Enterprise, etc., Corp., supra, 363 U.S., 596-599, 80 S.Ct., 1360-1362. These latter considerations do not themselves compel my conclusion here, however, for standing alone they are the result of policy determinations which, in this instance, either have already been made by, or are more properly committed to, Congress as direct consequences of the literal statutory scheme. They are, nonetheless, relevant factors in appraising the propriety and wisdom of the Court's construction of the statute and its estimate of the intention of its framers.
Thus, with all deference, I must respectfully dissent from today's opinion since, though neither mandated by this Court's prior holdings nor supported, much less compelled, by specific congressional intent, it creates additional exceptions to the Norris-LaGuardia Act protections and does so in a fashion which effects, in my view, an unfair imbalance, if not outright clear advantage, in favor of the carrier and against the employee and his union.
^1 A common sense and practical reading of the statutory provisions seems to me to compel the conclusion that subsection (p) is confined in its application to money claims. Subsection (m) makes all nonmoney awards 'final and binding' and any reading of subsection (p) which allowed de novo review of the merits of such awards would be directly contradictory to the effect expressly accorded to them. Moreover, subsection (o) provides that if the claimant wins, the Board shall enter an 'order, directed to the carrier, to make the award effective' and that, in cases involving a money award, such order shall require payment by a day certain. Such detailed direction with respect to the money-award order would appear exclusively complementary to the provision in subsection (p), the immediately succeeding section, which provides for the de novo review only in cases in which a losing carrier does not comply with the award 'within the time limit in such order.' (The relevant subsections of the Act are set out in notes 2, 9, and 10, of the Court's opinion, ante, pp. 35, 37.
^4 In fact, the manner in which the Court in Price distinguished its earlier decision in Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, suggests this very rationale. See 360 U.S., at 609, n. 8, 79 S.Ct., at 1355.
^5 While the Adjustment Board handles and disposes of an impressive number of cases each year, the backlog of pending disputes is immense. During its 1962 fiscal year, a total of 997 cases were disposed of by decision and 383 cases were withdrawn. During the same period, however, 1,873 new cases were docketed. The total of 1,380 cases thus removed from the docket during the year still fell almost 500 cases short of equalling the number of new grievances filed. At the end of the year, the Board had still pending before it some 6,461 cases, of which only 1,679 had been heard. By way of comparison, though there were 4,948 cases pending at the end of fiscal year 1958, only 415 of these had not been heard. In only one of the past five fiscal years has the Board even come close to maintaining an equilibrium in its backlog by being able to dispose of almost as many cases as were docketed during the period. Twenty-eighth Annual Report of the National Mediation Board for fiscal year ended June 30, 1962, pp. 59, 86.