by negotiation or with the aid of governmental machinery or voluntary arbitration. If the railroad's noncompliance with the 30-day waiting period of Section 5, First, of the Railway Labor Act had been a bar to injunctive relief, this Court would have had no occasion to reach the question upon which it rested its decision.' Memorandum of National Mediation Board filed in Supreme Court No. 100 October Term, 1959, pp. 4-9, 80 S. Ct. 56.
This Court finds that the statutory scheme gives no indication that Congress intended that the procedural provisions and prescriptions of Section 5, First, should apply a second time, upon emergency mediation by the Board, after the Board has previously pursued all these procedures in mediation upon application of a party to the dispute. This Court believes that to give the statute this construction would limit its effectiveness and would therefore be contrary to the purposes declared in Section 2 of the Act, 45 U.S.C.A. 151a. This Court rejects a construction that would give a second go around because to do so would be inconsistent with the settled administrative interpretation and with the construction of the statute implicit in the decisions rendered in the Toledo case.
At the hearing it developed that the Executive Secretary of the Board, Mr. E. C. Thompson, took the position that while the Board's interpretation of the Act was as described above that, nevertheless, once they had proffered emergency mediation that the parties were still under the Railway Labor Act and in effect an injunction should lie until they closed their file on the emergency mediation which they were engaged in. His interpretation of the Board's powers does not seem in conformity with the rationale of the brief submitted by the Government in behalf of the Board, although this particular phase was not mentioned directly in the brief.
Be that as it may, the right to emergency mediation could only continue for a reasonable length of time or the Board in effect would be asserting the power which they deny they have the right to do; that is, to continue the period of the status quo for a second 30-day period.
On December 9, 1959, the Mediation Board continued its efforts to reach an amicable settlement, and thus a 4-day intervening period has already elapsed during which this emergency mediation has continued. To say that this would continue indefinitely would be giving a power to the Board which Congress did not intend.
Nothing in the Act indicates to me a second cooling-off period while emergency mediation is pursued by the Mediation Board. However, even if I am wrong in this, this could only extend for a relatively short period, and certainly any fruits of emergency mediation have had time to ripen in the interval between the temporary restraining order and today. Especially so in this case where Mr. Thompson says nothing more remains to be done by the Board except the formal closing of the case. In addition, the Union here has informed the Court that there will be no strike prior to Wednesday, December 16, 1959, at 4:50 p.m. E.S.T. Certainly continued efforts to settle a dispute that affects the public interest by the Mediation Board is in the public interest, but Congress has not seen fit to delay the right to strike while such mediation is continuing.
It is undisputed that this dispute is the same dispute previously mediated unsuccessfully by the Board.
Nothing in this proceeding has indicated that either party to the dispute feels that the Mediation Board should have invoked Section 10 of the Act, nor has there been any indication in this proceeding that the judgment of the Mediation Board was to be exercised to invoke the provisions of the said section, which provides that they shall notify the President, who then may thereupon in his discretion, create a Board to investigate and report respecting such dispute.
It is conceivable that an 'old' dispute involving the same set of facts could become a 'new' dispute if one or both of the parties slept on their rights (in this instance the right to strike) for a considerable period of time. Laches could bar the plea of previous mediation. To allow the interruption of a vital public service with in fact no warning could cause great harm to those dependent on the service. But to hold that the strike must be called on the exact expiration date of the provisions of the Act would also be against public policy. Continuation of negotiations for a reasonable period should be encouraged. Here we find no unreasonable delay on the part of the Union so as to make this dispute subject to a new enforcement of the procedures to the Act.
The temporary restraining order issued December 9, 1959, is vacated, and the request for injunction refused.
This Memorandum shall serve as the Court's findings of fact and conclusions of law.