from one step to another by persons familiar with both background and immediate controversy. When a referee is brought in, he is usually advised of the facts through the respective representatives of each side of the controversy. Everyone concerned knows what the dispute is, though disagreeing upon its settlement.'
And further, at page 796:
'So we have this situation. The Congress has provided for the submission of certain railway labor disputes to a body which over the years has established its own method of operation in a way which gives each side a chance to have its problems heard and decided by persons who are thoroughly familiar with the industry and the kind of questions presented. The law-making body has thought well enough of the type of operation to provide for the enforcement of its results where necessary. But it has protected the party who lost before the Board from having unfair advantage taken of him by making the findings of the Board prima facie only. The loser must go forward with attacking proof; but the facts are not conclusively established by the findings. We think under these circumstances to insist upon the kind of definite requirement of findings of fact to which we are accustomed in the ordinary non-jury case would be doctrinaire and unrealistic. We think courts should take the findings of these divisions of the Railroad Adjustment Board as they come and do what they can with them.'
And further, at page 799:
'However, we do not agree with the court below that the defense was properly made out in this case. In the first place the Supreme Court has said that the awards of the Board are clothed with a presumption of validity, and that the burden is on the one who would upset the award to show that it is invalid.'
It, therefore, appears that in the opinion of this Circuit the Act is not a deprivation of a worker's constitutional right and the action of the Board, unless one attacking it would come forward and show, a lack of any evidence upon which the Board could act as it did, and that its actions were arbitrary or capricious and without sufficient explication in its findings for the parties to the dispute to understand why the Board did what it did, that the Board's decision is final. These are neither alleged nor shown in the record here presented.
The constitutionality of the Act has been approved not only indirectly as in the foregoing cases but directly in Parker v. Illinois Central Ry. Co., D.C., 108 F.Supp. 186, and in Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 124 F.2d 235. In the latter case Justice Rutledge for the Court of Appeals for the District of Columbia Circuit pointed out that Congress could vest authority or jurisdiction in the Board or the Court and had seen fit to vest it in the Board in the following language, 124 F.2d at page 250:
'* * * The present Act has evolved from a long legislative history. Many of its unique features are derived for that. Though the administrative features are frankly not in the accustomed traditions and methods of courts and lawyers, the enforcement suit follows them except possibly as to the initiative in litigation. That it may not do so in this single respect does not, as has been shown, deprive the carrier of legal protection according to due process of law.
'Nor does it that Congress may have intended to discourage resort to the courts for enforcement of awards and settlement of these disputes after the initial stages of private negotiation and administrative decision, thus securing the prompt disposition which the Act avowedly sought. If that was Congress' intent, its constitutional power over the jurisdiction of the federal court sustains it both in providing the remedy which it has given and in excluding others.'
It, therefore, appears that in an application by a railroad employee for reinstatement and for back pay that the National Railroad Adjustment Board has exclusive jurisdiction under and by virtue of the terms of the Railway Labor Act, supra. That the Act is constitutional and the only way an employee who loses before the Board can obtain a judicial review would be upon an allegation and showing that the action of the Board was either illegal or was not based upon any evidence and was, consequently, arbitrary and capricious, the same as a judicial review of any other administrative agency.
As a result of a failure to allege or show these things the action will be dismissed. Counsel will prepare an order.