On Rehearing
DIXON, Chief Justice.In their motion for rehearing appellants allege in points Nos. 1 and 2 that we erred in affirming a temporary injunction (1) “which enjoins a strike called in a railway labor controversy and the holding thus abridges the freedom of the employees to cease work, imposes a condition of involuntary servitude upon the employees, and deprives the employees of their liberty, privileges or immunities without due process in violation of Amendments 5, 13, and 14 of the U. S. Constitution and Article I, sec. 19, Bill of Rights, Texas Constitution [Vernon’s Ann.St.Const.]”; and (2) “which enjoins a strike called in a railway labor controversy, such temporary injunction violating Federal and State constitutional guaranties of freedom of speech.”
Appellees have filed motion to strike the above allegations from appellants’ motion for rehearing for the reason that they present contentions outside the record and represent an attempt to raise for the first time on rehearing points not raised by appellants in their pleadings in the trial court or by their briefs in this Court. In support of their motion to strike appellees cite Aycock v. Travis County, Tex.Civ.App., 255 S.W.2d 910, at page 914; City of Fort Worth v. Burnett, Tex.Civ.App., 115 S.W.2d 436, at page 442; 3-B Tex.Jur. 259.
We overrule said points Nos. 1 and 2 of appellants’ motion for the reasons urged by appellees in their motion to strike, and for the further reason that in light of the record before us we are of the opinion that said points are without merit. Other points presented in the motion for rehearing are overruled for reasons set out in original and concurring opinions.
Appellants’ motion for rehearing is overruled; and consistent with our consideration in full of appellants’ said motion, ap-pellees’ motion to strike is also overruled.
CRAMER, J., dissents. CRAMER, Justice(dissenting on rehearing).
I find myself unable to agree with the majority in their disposition of this cause. The record here shows this to be a class suit, filed by F. L. Luckie and twelve others against the Brotherhood of Railroad Trainmen, three other railroad brotherhoods or unions, various subordinate lodges or unions, numerous union officials, the Texas & Pacific Railway Company, and others for the purpose of establishing seniority rights asserted by them under the collective bargaining agreement between the unions and the representatives of the Railroads. In my opinion it involved all matters which had been initiated before the Railroad Adjustment Board and the National Mediation Board, and such Boards were at the time of the filing of this suit in the process of hearings; such Boards, in my opinion, having acquired prior jurisdiction over the matters, the court should not have interfered with their orderly proceedings, unless such Boards should act arbitrarily in the expeditious disposition of the matters before *719them. The record here shows the Boards were proceeding expeditiously and in due order at the time the suit was filed. Under such record, the granting of the injunction was not justified. Colbert v. Brotherhood of Railroad Trainmen, 9 Cir., 206 F.2d 9; Wilburn v. Missouri-Kansas-Texas R. Co. of Texas, Tex.Civ.App., 268 S.W.2d 726. See also International Ass’n of Machinists v. Sandsberry, Tex.Civ.App., 277 S.W.2d 776. A writ of error, however, has been granted in the Sandsberry case.
The present case is not one involving solely and individually a contract of employment by the separate members of the crew, hut is based on the employment of a group under a collective bargaining agreement. Under such circumstances the bargaining agreement, as to seniority rights of the members of the crews, controls, and the Mediation Board’s functions having been invoked, such Board was in process of a hearing at the time this suit was filed and the injunction here appealed from granted; and a strike was about to be called. All this brought about the controversy here, which is clearly within the jurisdiction of the Boards.
The Federal Constitution grants exclusive power over interstate commerce to Congress. Congress, in the Railway Labor Act, Title 45, ch. 8, § 151a, U.S.C.A., states its purpose as follows: “* * * (l)To avoid any interruption to commerce or to the operation of any carrier engaged therein; * * * (3) provide for the complete independence of carriers and of employees in the matter of self-organization to carry out the purposes of this chapter; (4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.”
The functions of the National Mediation Board invoked by the T&P Railway Company are as follows: “First. The parties, or either party, to a dispute between an employee or group of employees and a carrier may invoke the services of the Mediation Board in any of the following cases: (a) A dispute concerning changes in rates of pay, rules, or working conditions not adjusted by the parties in conference, (b) Any other dispute not referable to the National Railroad Adjustment Board and not adjusted in conference between the parties or where conferences are refused.” Title 45, § 155, U.S.C.A.
The issues in this case being properly before, and being then heard by, the Mediation Board prior to, and at the time of, the filing of this suit, this Court should not have proceeded further than to sustain the plea in abatement of the T&P Railway Company. In American Air Export & Import Co. v. O’Neill, 95 U.S.App.D.C. 274, 221 F.2d 829, syl. 1, the District of Columbia Circuit Court of Appeals held: “Where National Mediation Board advised employer that, under Railway Labor Act, it had assumed jurisdiction of dispute between employer and union and that a mediator would be assigned to investigate the dispute, but no further action had been taken, action by employer to enjoin further Board action on ground that employer was not subject to jurisdiction of Board under provisions of Railway Labor Act would be dismissed since administrative process had only begun and controversy was not ripe for judicial review.”
The trial court here in its findings of fact, among other things, found as follows: “And it further appearing to the court that said ruling of the chief executives of said Brotherhoods, if put into effect, would take passenger train work away from two train and engine service crews of Missouri-Kansas-Texas Railroad Company of Texas, who have the right to perform such work, and give said passenger train work to one train and engine service crew of The Texas and Pacific Railway Company, who have no right to perform such work; that said transfer of said work would cause the demotion from the position of engineer to the position of fireman of two engineers of Missouri-Kansas-Texas Railroad Company *720of Texas,with resulting loss in wages to said engineers; that said transfer of said work would cause the demotion from the position of conductor to the position of brakeman of two conductors of Missouri-Kansas-Texas Railroad Company of Texas with resulting loss in wages to said conductors; and that said transfer of work would cause four firemen of Missouri-Kansas-Texas Railroad Company of Texas and four brakemen of said railroad Company to lose their jobs with resulting loss of all earnings; And it further appearing to the court that said transfer of passenger train work from train and engine service employees of Missouri-Kansas-Texas Railroad Company of Texas to train and engine service employees of The Texas and Pacific Railway Company of Texas would prevent train and engine service employees of Missouri-Kansas-Texas Railroad Company of Texas from exercising their seniority rights; that said transfer of work would disrupt crew assignments of Missouri-Kansas-Texas Railroad Company of Texas on its North Texas District, including said joint track, and particularly such crew assignments between Denison, Texas, and Waco, Texas, via Fort Worth; and that said transfer of work would require the establishment of passenger crew terminals at Whitesboro and Fort Worth where none now exist; * * * And it further appearing to the court that placing a Texas and Pacific train and engine crew on one Missouri-Kansas-Texas passenger train operating between Whitesboro and Fort Worth would effect a change, modification, amendment or abrogation of the terms and provisions of said existing written contracts executed by Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas and the General Chairmen of said Brotherhoods on the lines of railroad operated by said railroad companies; * * * And it further appearing to the court that the right of said Brotherhoods to act as bargaining agents for the respective train and engine service employees of the Texas and Pacific Railway Company and the right of the chief executives and other Grand Lodge officers of said Brotherhoods to represent said train and engine service employees of The Texas and Pacific Railway Company does not authorize or empower said Brotherhoods or said chief executives or said Grand Lodge officers to take work and jobs away from train and engine service employees of Missouri-Kansas-Texas Railroad Company of Texas, for whom they also bargain and whom they also represent, and to give said work and jobs to the train and engine service employees of The Texas and Pacific Railway Company.”
Believing that the Federal Boards should have been accorded the exclusive right to hear and dispose of the matters involved at the time the present suit was filed in the District Court, the District Court should not have taken jurisdiction. Or, when its jurisdiction was invoked, it should have awaited the time when the administrative process had been concluded, before proceeding with this case.
I therefore respectfully dissent.