Atchison, T. & S. F. Ry. v. Brotherhood of Locomotive Firemen & Enginemen

26 F.2d 413, 1928 U.S. App. LEXIS 3686

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 24, 1928
• Docket: 4009
• Status: Published

Opinions

EVAN A. EVANS, Circuit Judge.

This appeal is from an order of the District Court denying appellants’ petition to impeach an ' award made and filed by an arbitration board. The award disposed of controversies relating to wages, etc., that had arisen between certain western railroads and their employees. The arbitration proceedings were instituted and conducted under the so-called Railroad Labor Act (45 USCA §§' 151-163). The railroads appointed two arbitrators. The employees appointed two, and the Board of Mediation nominated two members. The agreement appears below.¹

The arbitrators met, beard the evidence, and the arguments, received and read the briefs submitted, conferred for several days, and, being unable to agree, filed with tbe Clerk of tbe United States District Court a document, by appellants called a decision, which was as follows:

“The Brotherhood of Locomotive Firemen

and Enginemen vs. Certain Western Railroads.

“In the Matter of U. S. Board of Mediation File C-266 arb. Being an Arbitration Under the Provisions of the Railway Labor Act, approved May 20, 1926.

“This Board consisting of H. P. Burke and Paul A. Sinsheimer (appointed by the U. S. Board of Mediation), Samuel A. Boone and Albert Phillips (appointed by the Brotherhood), and R. Y. Fletcher and John W. Higgins (appointed by the Roads), was organized and its hearing conducted in Chicago, Illinois, between September 29 and November 11, 1927. The Board recessed to meet in executive session for the purpose of deliberation in Denver, Colorado, November 28, 1927; all as appears from the duly certified record and transcript of its proceedings filed in the U. S. District Court for the Northern District of Illinois, November 12, 1927.

“The arbitrators having reconvened in Denver, as above provided, and there deliberated from day to day until this 5th day of December, 1927, and having carefully considered the entire evidence submitted to them and the briefs and arguments of the representatives of the parties, now find:

“The principal demand of the Brotherhood submitted to this Board by the terms of the arbitration agreement appearing on page 3A of Yol. 1 of the transcript herein, reads as follows:

“ ‘Except as otherwise provided herein, existing rates of pay for firemen, helpers, hostlers and outside hostler helpers shall be increased $1.00 per day.’

“On this demand the arbitrators find themselves absolutely unable to agree. Arbitrators Boone and Phillips agree that road freight firemen may be increased 45 cents per day and all other employes in' the arbitration 40 cents per day, but can subscribe to nothing else. Arbitrators Fletcher and Higgins are unwilling to agree that any increase be granted road firemen. They are willing to agree that an increase of 7% per cent, be granted all other employes in the arbitration. They are unable to subscribe to any greater increase. Arbitrators Burke and Sinsheimer agree that an increase of 30 cents be granted road passenger firemen and an increase of 35 cents to all other employés in the arbitration. They are unable to subscribe jointly to a greater increase and unable to subscribe to any lesser increase which would so nearly approximate the concession of Arbitrators Fletcher and Higgins as to hold out any hope of an agreement, although the chairman is willing to go to a lower figure and Arbitrator Sinsheimer to a higher.

“A majority of the Board having thus failed to reach an agreement on the main question it is the unanimous opinion of the four partisan arbitrators that no award should be made on the minor questions.

“The undersigned members of said Board of Arbitration hereby certify to the correctness of the foregoing.

“[Signed] H. P. Burke, Chairman.

“Paul A. Sinsheimer.

“S. A. Boone.

“Albert Phillips.

“R. C. Fletcher.

“J. W. Higgins.”

The record discloses the following proceedings and the dates thereof:

August 6, 1927. Agreement to arbitrate •was executed.

November 9, 1927. Parties agreed to an extension of the time within which a final decision should be reached to and including December 20, 1927.

November 9, 1927. Parties agreed that upon completion of the argument on November 11th the Board should recess to November 28th and reconvene in the city of Denver.

December 5, 1927. The Board filed its memorandum expressing its inability to agree with the Clerk of the United States District Court and gave a copy to the Board of Mediation and to all interested parties and thereupon separated.

December 9,1927. Robertson, representative of the locomotive engineers and firemen, requested the chairman of the Board to° reconvene and continue its deliberations. On the same day, three members of the Arbitration Board made similar requests of the chairman. The Board of Mediation also asked chairman to bring the arbitrators together.

Chairman immediately sent a wire requesting the arbitrators to meet at Denver, December 16, 1928.

December 13, 1927. Upon request of one of the neutral members on the Board, the date of meeting was changed to December 17, 1927.

December 15, 1927. Higgins and Fletcher, arbitrators representing the railways, declined to attend any further meetings and so notified chairman of the Board of Arbitrators and also the Board of Mediation.

December 16,1927. Tbe Board of Mediation notified chairman of tbe Board of Arbitration that it bad received no word from any arbitrator indicating an intention of not serving further and bad been advised by the Department of Justice that a majority of tbe arbitrators could proceed and make a valid award.

December 17,1927. Pour members of tbe Board met and made an award wbieb was filed with tbe Clerk' of tbe District Court for tbe Northern District of Illinois, on the 20th day of December, 1927. A copy of tbe so-called award is herewith reproduced.²

Appellants’ efforts to impeaek the award in the District Court were unsuccessful and this appeal followed.

There are but two questions involved: (a) Was the so-called award of December 17th binding on the parties? (b) Was the award impeachable on any of the grounds assigned by appellants? An affirmative answer to the first disposes of the appeal.

(a) It is contended by appellants that, after December 5th, the powers of the Board of Arbitrators ceased. In other words, after the Board filed its statement of December 5th with the clerk, and thereupon separated, it became functus officio. Appellee, on the other hand, argues that the December 5th document was a mere brutum fulmen. In other words, under the Arbitration Act, as well as the agreement of the parties, the arbitrators could not — save by making an award — relieve themselves of their duties until the lapse of the time fixed in the agreement.

It may help to clarify the controversy if we first state a few legal propositions now well settled.

Arbitrations may deal either with private disputes or matters of public concern. When dealing with the latter class, courts have applied somewhat different rules than they do when dealing with private controversies. In the latter class, the courts are open if the arbitration fails. But where an arbitration of a public matter fails, the alternative is necessarily unsatisfactory. Colombia v. Cauca Co., 190 U. S. 524, 23 S. Ct. 704, 47 L. Ed. 1159; Omaha v. Omaha Water Co., 218 U. S. 180, 192, 30 S. Ct. 615, 54 L. Ed. 991, 48 L. R. A. (N. S.) 1084.

In such an arbitration, the parties may provide for a valid award by a majority of the arbitrators. Colombia v. Cauca Co., supra. Section 8 (g) of the act here under consideration (45 USCA § 158[g]) requires the parties to stipulate that “the signatures of a majority of said board * * * affixed to their award shall be competent to constitute a valid and binding award.”

Equally well settled is the rule that one arbitrator or a minority of arbitrators cannot, after the dispute has been fully submitted to the Board, defeat an award by resigning, withdrawing, or otherwise refusing to participate in the hearings. Colombia v. Cauca Co., supra. Such a resignation or withdrawal shortly before the time fixed for the expiration of the arbitration, constitutes a fraud and, as such, defeats its purpose.

The refusal of two of the arbitrators to meet at Denver on December 17th did not in itself defeat the action of their associate arbitrators. In fact, no such contention is made by appellants. They rest their ease upon the fact that the Board ceased to exist on December 5th when its members signed and filed the agreement heretofore set forth.

It seems equally clear that the document of December 5th, whatever its effect, was not an award. Just as a disagreement by a jury can never be correctly described as a verdiet, so a disagreement by arbitrators cannot be called an award.

Numerous decisions have been cited by counsel dealing with common-law arbitrations or arbitrations under the Common law. They are cited by appellants on the theory that they constitute a necessary background for the study of the Railroad Labor Act.

Examining these decisions we find that the courts have quite generally held that the powers of the arbitrators ceased in those cases where it appeared that the agreement to arbitrate contained no specific time limitation and, after a full hearing, the arbitrators were unable to agree upon an award and separated with an understanding that no further meetings should be held. Parsons v. Ambos, 121 Ga. 98, 48 S. E. 696; Couch v. Harrison, 68 Ark. 580, 60 S. W. 957; Jeffersonville R. Co. v. Mounts, 7 Ind. 669; Baltes v. Bass Foundry & Machine Works, 129 Ind. 185, 28 N. E. 319; Bennetto v. City of Winnipeg, 18 Manitoba, 100; Tisleton v. Travers, 2 Kelb, 15; 4 Elliott on Contracts, § 2952; 5 C. J. 76.

Counsel differ sharply as to the effect of the insertion of the time limitation in the agreement to arbitrate. Appellee insists that, even at common law, the powers of the arbitrators terminated only by a lapse of the prescribed period of time or by the rendition of an award. Chace v. Dare, 2 Show, 164; Coppin v. Hurnard, 2 Saunders, 129, 133; Smailes v. Wright, 3 M. & S. 559; Bodge v. Hull, 59 Me. 225; Carpenter v. Wood, 1 Metc. (42 Mass.) 409; Daniel v. Daniel, 6 Dana (36 Ky.) 93.

The American cited cases are not in point. In the Carpenter Case there was no finality to the action of the arbitrators when they separated. In the Bodge Case the same is true. The arbitrators submitted a paper (not an award) wherein certain facts were found with the hope that it would lead the parties to the arbitration to amicably adjust their differences. Instead of there being any finality to the action of the arbitrators, a contrary deduction is unavoidable.

Nor are we impressed with the persuasiveness of appellants’ citations which include Bennetto v. City of Winnipeg, 18 Manitoba, 100; Jeffersonville Rd. Co. v. Mounts, 7 Ind. 669; Couch v. Harrison, 68 Ark. 580, 60 S. W. 957; Parsons v. Ambos, 121 Ga. 98, 48 S. E. 696; Baltes v. Bass Foundry & Machine Works, supra.

But appellee’s chief contention is that, regardless of the state of the law governing common-law arbitrations, the Railway Labor Act prescribes a complete procedure which, in its limited field, entirely superseded the existing law governing arbitrations. It therefore becomes necessary to study the provisions of this aet carefully with particular attention to the sections governing arbitration.

The purpose of the act appears from numerous sections. For example, the title provides that the aet is:

“To provide for the prompt disposition of disputes between carriers and their employees, and for other purposes.”

Section 2 reads in part:

“It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, * * * m order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.” 45 USCA § 152.

The third section (45 USCA §' 153) deals with the board of adjustment, grievances, and interpretation' of agreements. It is apparent that the paramount purpose was to provide means for the prompt settlement of disputes between a carrier, or group of carriers, and their employees.

Examining the aet further, we find that the fourth section provides for the creation of a Board of Mediation and deals with the qualifications, salaries, and duties of its members. As to the latter, it provided that in cases of disputes between the carrier and the employees, either party may invoke the services of the Board of Mediation or the Board may proffer its services, provided the dispute arise out of grievances or interpretations of agreements concerning rates of pay, rules, or working conditions, etc.

In short, this section imposed upon the Board the duty to aet promptly and devote itself to securing an amicable adjustment of differences between the carriers and their employees.

Sections 7, 8, and 9 (45 USCA §§ 157-159) deal with “Arbitration.” An effective means of settling unadjustable disputes between carriers and employees is here provided, or is at least here sought.

By appellee it is contended that these sections being remedial should be liberally construed to effectuate their manifest object.

Appellants argue, on the other hand, that the statute should be strictly construed in the light of the common-law arbitration decisions. In other words, it is argued that, because the act specifically changed the law of arbitration in certain designated respects, it should not be construed as altering the existing law in other respects. Reliance is had upon the rule which is quoted from Shaw v. North Pennsylvania Railroad Co., 101 U. S. 557, 25 L. Ed. 892:

“No statute is to be construed as altering the common law further than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.”

Sections 7, 8, and 9 may be described as the heart of the aet and deal with “arbitrations.” Provision is made for a board of either three or six members. If the arbitrators chosen by the interested parties cannot agree upon the neutral arbitrators, the Board of Mediation makes the selection.

Paragraph (d) of section 7 (45 USCA § 158[d]) reads:

“No arbitrator, except those chosen by the Board of Mediation, shall be incompetent to aet as an arbitrator because of his interest in the controversy to be arbitrated, or because of his connection with or partiality to either of the parties to the arbitration.”

The arbitration in all cases must be pursuant to an agreement and the aet provides that such agreement “shall be in writing,” “shall stipulate that the arbitration is had under the provisions of this aet,” and “shall state whether the Board of Arbitration is to consist of three or six members.” It is further provided (section 8) that the agreement shall be duly signed and acknowledged “and shall state specifically the questions to be submitted to the said board for decision.” Subsection (g) provides that the agreement “shall stipulate that the signatures of a majority of said Board of Arbitration affixed to their award shall be competent to constitute a valid and binding award.” The next two paragraphs dealing with the 1 written agreement are significant:

“(h) Shall fix a period from the date of the appointment of the arbitrator or arbitrators necessary to complete the board (as provided for in the agreement) within which the said board shall commence its hearings (45 USCA § 158[h]);

“(i) Shall fix a period from the beginning of the hearings within which the said board shall make and file its award” (45 USCA § 158[i]).

Section 8 requires the insertion of other provisions in the written agreement such as the date from which the award shall become effective, and the period during which the award shall continue in force and, in case of differences arising as to the meaning or application of the award, a re-reference, etc.

A comparison of the provisions of these three sections with the decisions governing common-law arbitrations is significant. Such comparison leads to the conclusion that the law of arbitration was here rewritten — codified, so to speak.

First, and foremost, we note that under the act the arbitrators, save the neutrals, may be directly interested in the award and not thereby disqualified. This was a radical and, we may add, an unfortunate departure from the common law.

Then, too, under the act, the affirmative vote of a majority of the arbitrators is sufficient to validate an award. In case of a reconvening of the Board upon the refusal of one to act, the Board of Mediation may select his successor. A further radical change in the common law is to be'noted in subsection (m) of section 8 (45 USCA § 158 [m]), which provides for a reconvening of arbitrators to settle differences as to the meaning or application of the terms of the award.

Subsections (h) and (i) of section 8, heretofore quoted, are at least suggestive of an obligation upon the arbitrators to continue their efforts to reach an award until the time fixed in the agreement expires.

For, having dealt specifically with the subject-matter (the specified time within which the arbitrators must make and file the award) it is at least inferrable that Congress intended to cover the particular phase of arbitration law which we are considering. “Ex-pressio unius est exclusio alterius.”

True it may be contended, and with force, that the specific provisions here under consideration do not expressly exclude a voluntary termination of the arbitration before the expiration of the specified period. While this is a possible contention, yet its acceptance would do violence to the purpose of the act.

In considering these two provisions governing time limitations, note that: (a) The provision requiring a time limit to be set forth in the written agreement of the parties is mandatory, (b) The arbitration concerning which Congress was legislating related to matters of public interest.

From the fact that the means and instrumentalities provided by this act are available only to carriers and their employees, it is fair to assume that Congress was endeavoring to avoid interruptions to commerce, so injurious to the public. It is no doubt true that the settlement of a wage controversy, in and of itself, was much to be desired. But this was not the primary object of this legislation. Congress made the act. applicable to but one industry and, to certain limited disputes which experience had demonstrated were the most fruitful causes of strikes, which in turn resulted in complete industrial paralysis. To permit those chosen as arbitrators to lay down their burdens before a reasonable time for deliberation had elapsed, would be hardly consistent with the purposes of such legislation. While not stated in so many words, it would seem that there was imposed on the arbitrators the obligation to stay by their task until an award was made or until lapse of time had terminated the arbitration.

Further support for this conclusion is found in the subsection which permits interested parties to act as arbitrators. The normal or probable attitude of the partisan arbitrators is illustrated by the record in the instant case. An open-minded consideration of the questions at issue can hardly be expected where arbitrators are chosen to represent contestants. It is somewhat of a misnomer to call them arbitrators. They are advocates. It could hardly be expected that such partisans would surrender one iota of their claims until the arrival of the psychological moment for concessions.

And such contentions of the partisan members, persistently asserted, would prove discouraging to the neutral arbitrators whose inclinations and desires would be to terminate their labors before exhausting all efforts to reach an agreement.

We must assume that Congress was providing a workable (not a theoretical) means for settling disputes. It permitted those interested in the outcome to act as arbitrators. Doubtless it thus acted on the assumption that these members would bring to the body as a whole, information and experience that would be valuable. But, at the same time, it necessarily made a speedy disposition of the controversy more difficult. To overcome this disadvantage, the act required a written agreement by the parties which not only fixed the date when the arbitrators should begin their hearings, but also provided the date within which the award should be filed.

These twin provisions thus became inseparably tied up with the arbitrators’ powers and duties. They are express provisions that deal with the Board’s duties and powers and exclude the existence of other duties not consistent with them.

Further1 support for this conclusion may be drawn from subsection (n) of section 8 (45 USCA § 158[n]), which reads:

“The said agreement to arbitrate when properly signed and acknowledged as herein provided, shall not be revoked by a party to such agreement.”

If this provision of the agreement be valid, and we have no doubt it is, neither party could withdraw from the arbitration. Nor could the representatives of either party do that which their principals were powerless to do. The partisan arbitrators were but the agents of their principals. They were paid by their principals and they spoke and acted for them. They, therefore, could not withdraw their client’s case save by the consent of both parties.

Reading the three sections together (the section prohibiting withdrawals, the section fixing a time limit within which the award must be reached, and the section permitting a majority of the arbitrators to make an award) we find a complete plan for the settlement of disputes, which is not consistent with appellants’ contention that it may be defeated by the arbitrators “agreeing to disagree” before the expiration of the time fixed in the agreement to arbitrate.

Nor can we, in construing this statute, give much weight to the rule for which appellants contend, and in support of which they cite Shaw v. Railroad Co., supra. The court was there construing a state statute and the common law has been, by most of the states, either by constitutional provision or statutory enactment, made a part of the law of the state. The instant case presents a question of construction of a Federal statute for which, as a background, no common law exists. As stated in Smith v. Alabama, 124 U. S. 465, 478, 8 S. Ct. 564, 569 (31 L. Ed. 508), “There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several states, each for itself, 'applied as its local law, and subject to such alteration as may be provided by its own statutes. Wheaton v. Peters, 8 Pet. 591 [8 L. Ed. 1055]. A determination in a given case of what that law is may be different in a court of the United States from that which prevails in the judicial tribunals of a particular State. This arises from the circumstance that the courts of the United States, in cases within their jurisdiction, where they are called upon to administer the law of the State in which they sit or by which the transaction is governed, exercise an independent though concurrent jurisdiction, and are required to ascertain and declare the law according to their own judgment. This is illustrated by the case of Railroad Co. v. Lockwood, 17 Wall. 357 [21 L. Ed. 627], where the common law prevailing in the State of New York, in reference to the liability of common carriers for negligence, received a different interpretation from that placed upon it by the judicial tribunals of the State; but the law as applied was none the less the law of that State.”

While this does not prevent us from inquiring into the state of the law existing at the time of the passage of the act that we may the better and more intelligently construe the legislation, it nevertheless robs appellants’ citation of much of its persuasiveness.

We might have approached this question from another angle. In other words, we might have assumed that the arbitrators had no publie duty to perform but acted solely as representatives of the parties, finding their sole authority to proceed in the written agreement. The same conclusion, however, would have been reached. For the agreement of the parties provided that a majority of the six arbitrators could make a valid and binding award. Each party agreed not to withdraw from the arbitration agreement. Only two limitations were imposed upon the authority of the Board, (a) It was required to “begin its hearings within fifteen days from the date the last member was appointed.” (b) It was to file the award within a designated period of time. A. majority of the Board filed its award within the designated period. Its authority to do so was clear but for appellants’ contention that its authority terminated before the award was made. But terminated by whom, and upon what authority? To contend that third parties, — strangers to the agreement, — might modify the agreement (limit or enlarge the powers of the arbitrators) would be absurd. Only the parties to the agreement could modify it or withdraw from it. Consequently, the agreement, as originally entered into, remained in effect until terminated by lapse of time.

Our conclusion is that, under this statute, the power of the arbitrators to make an award did not cease until the expiration of the time fixed by the agreement of the parties.

The order overruling the exceptions is affirmed.

1 Arbitration Agreement.

This agreement, made and entered into this sixth day of August, 1927, between the railroads, listed in Exhibit A (hereinafter referred to as parties of the first part), represented by the Conference Committee of Managers, Western Railways, of which W. M. Jeffers is chairman, and the Firemen, Helpers, Hostlers and Outside Hostler Helpers in the service of the railways listed in Exhibit A (hereinafter referred to as parties of the second part) represented by the Brotherhood of Locomotive Firemen and Einginemen, D. B. Robertson, president. ,

The parties hereto mutually agree and stipulate as follows:

First: ’ The railways listed in Exhibit A are carriers subject to the Interstate Commerce Act; the above named employes are employés of said railways.

S.econd: The controversy between the parties hereto, as hereinafter specifically stated, is hereby submitted to arbitration, and such arbitration is had under the provisions of the Railway Labor Act, approved May 20, 1926.

Third: The Board of Arbitration (hereinafter referred to as “the Board”) shall consist of six members. '

Fourth: The specific questions to be submitted to the Board foy decision are the following requests made upon the parties of the first part by the parties of the second part:

Except as otherwise provided herein, existing rates of pay for firemen, helpers, hostlers and outside hostler helpers shall be increased $1 per day.

In freight service on steam, electric or other power weighing 250,000 pounds and over on drivers and on Mallet engines, existing rates of pay shall be increased $1.25 per day.

Gradations of locomotives, according to weights on drivers, to be extended to 550,000' pounds and over in freight service, with an additional increase of 25 cents per day to be applied for each 50,000 pounds above 250,000 pounds on drivers.

It is understood that the weight on all other power driven wheels will be added to the weight on drivers of locomotives that are equipped with boosters, and the weights produced by such increased weights shall' fix the rates for the respective" classes of service.

In all passenger service, the earnings from mileage, overtime or other rules applicable, for each day service is performed shall be not less than $6.25 for firemen.

Fifth: In its award, the Board shall confine itself strictly to decisions as to the questions so specifically submitted to it.

Sixth: The questions, or any one or more of them, submitted may be withdrawn from arbitration on notice to that effect signed by the duly accredited representatives of each of the parties hereto and served on the Board, at any time prior to the making of the award.

Seventh: The signatures of a majority of the members of the Board affixed to its award shall be competent to constitute a valid and binding award.

Eighth: The Board shall begin its hearings prior to the expiration of the period of fifteen days from the date on which the last arbitrator necessary to complete the Board is appointed.

Ninth: The Board shall make and file its award prior to the expiration of the period of sixty days from the date on which the Board begins its hearings, but the parties hereto may agree, at any time prior to the making of such award, upon an extension of such period (whether or not previously extended).

Tenth: The Board shall hold its hearings in the City of Chicago, State of Illinois.

Eleventh: The award of the Board shall become effective August 1, 1927, and shall continue in force for the period of one year from said date and thereafter subject to thirty days’ written notice by any individual management or ■committee desiring change.

Twelfth: The award of the Board and the evidence of the proceedings before the Board relating thereto, certified under the hands of at least a majority of the members of the Board, shall be filed in the clerk’s office of the District Court of the United States, Northern District of Illinois, Eastern Division.

Thirteenth: Such award and proceedings so filed shall constitute the full and complete record of the arbitration.

Fourteenth: Such award so filed shall be final and conclusive upon the parties thereto as to the facts determined by the award and as to the merits of the controversy decided.

Fifteenth: Any difference arising as to the meaning, or the application of the provisions of such aw^ard shall be referred for a ruling to the Board, or to a subcommittee of the Board agreed to-by the parties thereto; and such ruling, when certified under the hands of at least a majority of the members of such Board, or if a subcommittee is agreed upon, at least a majority of the members of the subcommittee, and when filed in the Clerk’s office of the District Court of the United States for the Northern District of Illinois, Eastern Division, shall be a part of and shall have the same force and effect as such original award.

Sixteenth: The respective parties to the award will each faithfully execute the same.

Signed on behalf of the parties of the first part by W. M. Jeffers, chairman, Conference Committee of Managers, Western Railways, .and on behalf of the parties of the second part by D. B. Robertson, president, Brotherhood of Locomotive Firemen and Enginemen.

2 After the Board of Arbitration in this proceeding had discontinued its labors December 5th and filed statement o'f its inability to- agree with the Board of Mediation, the Interstate Commerce Commission and the U. S. District Court and delivered copies thereof to the parties, President Robertson on December 9, 1927, acting on behalf of the Brotherhood, delivered to H. P. Burke a request that said Board reconvene and continue “its deliberations in an effort to make and file an award on or before December 20, 1927.” On the same day similar requests were received by said Burke from Albert Phillips and S. A. Boone, Paul A. Sinsheimer, acting on the suggestion of the U. S. Board of Mediation, made the same request.

December 10, 1927, said Burke was advised by the Chairman of the U. S. Board of Mediation as follows: “We express the hope that the arbitrators may consistently act as Mr. Robertson, President, has suggested and that you as Chairman take steps to bring the arbitrators together for the purpose herein indicated.”

December 12, 1927, said Burke sent the following wire to each of the other five arbitrators, and so reported to the- U. S. Board of Mediation:

“Request received by me from Robertson for Brotherhood and from Sinsheimer, Boone and Phillips, arbitrators, to reconvene Board. Wire received by me from Chairman, Board of Mediation — Quote—We express the hope that the arbitrators may consistently act as Mr. Robertson has requested and that you as chairman take" steps to bring arbitrators together. — End Quote. Complying so far as possible with foregoing I request arbitrators to meet at my chambers Denver, Dec. 16th at 10 A. M. to consider what action if any can be taken.”

On the same date said Burke notified Chairman Jeffers by wire of the foregoing call, and said Jeffers answered protesting a réconvening of the Board.

December 13, 1927, Sinsheimer requested said meeting be postponed to December 17th. Said Burke advised each of the other arbitrators thereof and signified his assent thereto. Answers were received from each of the arbitrators showing that the foregoing advices concerning a meeting in Denver had been received by them.

December 15, 1927, Higgins and Fletcher, by wire, declined to attend any further meeting for any purpose and said Burke so notified the Board of Mediation.

December 16, 1927, the Chairman of Board of Mediation wired said Burke as follows:

“We have received no word from any arbitrator indicating an intention of not serving further as such in firemen’s case Stop Based on advice from Department of Justice we suggest on the understanding that all arbitrators have been duly notified that the meeting called by you for the 17th of December, 1927 be held Stop If all arbitrators are not present there should be at least a majority who should make an award strictly on the questions presented in the agreement to arbitrate as entered into by the parties in interest.”

Under the conditions above outlined the Board reconvened with H. P. Burke, as Chairman, and arbitrators Sinsheimer, Boone and Phillips present and acting, and thereupon considered and decided and awarded as follows:

On the several demands submitted for decision under the contract of arbitration. — Demand 1: “Except as otherwise provided herein existing rates of pay for firemen, helpers, hostlers and outside hostler helpers shall be increased $1.00 per day.”

On this demand the Board decides that the rates of pay for firemen in road passenger service shall be increased 30 cents per day and the rates of pay of all other employes involved shall be increased 35 cents per day.

Demand 2: “In Freight and Service on steam, electric, or other power weighing 250,000 pounds and. over, on drivers, and on mallet engines, existing rates of pay shall be increased $1.25 per day.”

This demand the Board denies, except to the extent granted in No. 1 above.

Demand 3: “Gradations on locomotives, according to weights on drivers to be extended to 500,000 pounds and over in freight service with an additional increase of 25 cents per day to be applied for each 50,000 pounds above 250,000 pounds on drivers.”

This demand the Board denies.

Demand 4: “The weights on all other power driven wheels will be added to the weight on drivers of locomotives that are equipped with boosters and the weights produced by such increased weights shall fix the rates for the respective classes of service.”

This demand the Board grants.

Demand 5: “In all passenger service, the earnings from mileage, overtime or other rules applicable, for each,day service is performed shall be not less than $6.25 for firemen.”

This demand the Board grants to the extent of $5.55, otherwise denies.

The undersigned members of said Board of Arbitration hereby certify to the correctness of the foregoing award.

Dated at Denver, Colo., December 17th, 1927.

H. P. Burke, Chairman.

Paul A. Sinsheimer.

Albert Phillips.

S. A. Boone.