Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Company – Oral Argument – February 26, 1957 (Part 2)

Media for Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Company

Audio Transcription for Oral Argument – February 26, 1957 (Part 1) in Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Company

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Earl Warren:

You may proceed, Mr. Wines.

William C. Wines:

If — if I — if I may respond more fully and at least I hope more clearly to Mr. Justice Frankfurter’s question, asked immediately before the recess.

As I understood Mr. Justice Frankfurter, he inquired whether I, having stated that the bill is not explicit in either prohibition or permission of strikes and there being no over-deterrence by any of the committees in formal report.

We were therefore remitted to, I believe, His Honors’ phrase was “considerations of general policy.”

I was forced to answer that question monosyllabically, and I said by the — the shortness of time, and I said no.

Actually, what we do rely on is these considerations which might be said to be of general and of — of policy, that here, there was discussion to which I shall come in just a moment.

It is the very heart and core of our argument, not on the margin of the problem.

The question as to how far if at all the Norris-LaGuardia Act should be repealed only some two years after its enactment and it wasn’t lightly enacted, was central.

It was focal.

It was the chief concern of the Act.

Now, this — yet we find that Congress, although, it was keenly aware of the problem, though it was extensively and intensively discussed and argued with major deliberation for a board any explicit prohibition or permission of strikes from which we draw the conclusion.

And this is our principal argument that Congress did not intend to prohibit cryptically or surreptitiously strikes when — or if to prohibit them at least to implement the prohibition by injunction when that was the problem that was being discussed.

Now, in the congressional hearings, and I am reading from — if I may, Mr. Chief Justice, a few lines because they are right into the case.

I’m reading from page 4 of our reply brief.

Mr. — Congressman Wolverton is discussing a prohibition about strikes.

He said the Commissioner Eastman — now, Commissioner Eastman was the draftsman, very largely the draftsman and the architect of this very important measure.

And Congressman Wolverton asked the architect of this bill, speaking of a prohibition against strikes.

Now, the only question I am in doubt about is whether there are — or not there should be an injunction under this Act to prevent a strike.

Now, I am not clear about that, Commissioner Eastman said that then Mr. Wolverton, Congressman Wolverton says, “Do you think there should be such a provision in the bill?”

And this is what the draftsman of the Act told the Congress whom he was hoping would enact it.

I would rather see it that’s a prohibition against strikes.

I would rather see it carried out without that because I do not believe we were going to have that question here.

Further, in the interest of time, I’m omitting some material on which we do rely that’s set out in this brief.

Congressman Wolverton says, “Let us first have a frank understanding as to whether it, that’s a prohibition against strikes, is included or is not included in the bill and then we can determine the policy as to whether it should be or should not be in the bill.

But it certainly seems to me, says Congressman Wolverton, that the bill ought not to be left indefinite either from the standpoint of the carriers or the standpoint of the employees.We should know just what the situation is”.

So here, you have Congress considering a major, which has not for an incidental objective or subsidiary desideratum but a primary objective, the minimization of strikes.

Felix Frankfurter:

As Mr. Wolverton said, regarding with the — expressed or dealt with whether it should be or should not be in the bill.

William C. Wines:

That’s right, Your Honor.

That’s exactly what we’re relying on.

Felix Frankfurter:

Do you think there’s a — do you think that desire of his were satisfied by what — not by what inference we may draw but what they did or didn’t do?

William C. Wines:

I think it was not satisfying.

Felix Frankfurter:

All right.

William C. Wines:

I don’t see how it could have been.

Felix Frankfurter:

But we are still in the dark.

William C. Wines:

No, I don’t think so.

And my — my reasons are these, if Your Honor please.

We’re confronted with question as to whether there’s a pro tanto repeal of the Norris-LaGuardia Act.

If the question arose peripherally, if it arose — if it weren’t central, I would not rely — bring much talk on such statements of Congressman Wolverton’s as this.

But when that was a focal question and Congress remains silent, then I say the implication is clear that they did not intend a repeal.

If I can give a very —

Felix Frankfurter:

Did they — did they — was any explicit reference made to Norris-LaGuardia?

William C. Wines:

I don’t —

Felix Frankfurter:

Did Mr. Wolverton anywhere talk about Norris-LaGuardia?

William C. Wines:

I don’t recall that he did.

Felix Frankfurter:

He was a leading member of his committee.

He was in the House when the Norris-LaGuardia Act was passed.

Memories are short but not so short that he didn’t know of its existence.

What I want to know is what — what you think is the allowable inference to be drawn from that that you quoted.

William C. Wines:

Exactly this, if I may, Your Honor.

I’d like to give a — a homely illustration to the point I’m trying to make.

Suppose a client is talking to a lawyer and a will is drawn, and you’re allowed for some reason or rather to use their conversation to supplement the will.

And client asks the lawyer or the lawyer — does this will disinherit my children?

And the lawyer says, “Well now, I don’t know about that.”

And the client signs anything, rather preposterous illustration I admit, since positive intention to disinherit is required if not being sufficient that the testator doesn’t simply intend to go out of his way to remember them.

I say that no matter how ambiguous the will is if you will permit it to supplement it by that kind of conversation, under the parole evidence rule, it would then become immediately clear that he didn’t intend to disinherit the children.

Felix Frankfurter:

But the answer is that it isn’t admissible under the parole evidence rule and that’s why I’m asking —

William C. Wines:

But — but this kind of colloquy, yes.

Felix Frankfurter:

What — what — assuming this is admissible for purposes of argument, what strength or weight or light do I get from it?

I get nothing.

William C. Wines:

Well —

Felix Frankfurter:

Except that Mr. Wolverton was bothered by a question which he either wasn’t able to or eventually didn’t care to get an answer to.

William C. Wines:

Well, if I may with — if I may answer your question —

Felix Frankfurter:

In other words, in your case we have a will and in our case where the statute.

William C. Wines:

Yes.

Felix Frankfurter:

And we may be driven to do the best we can to say what is the most harmonious and effective way of construing that statute, but your exegesis doesn’t execute.

William C. Wines:

Well, Your Honor, I don’t think it is just a matter of what is the most harmonious way of reconciling the two statutes.

That argument is made by the respondents, and the point that I am emphasizing is —

Felix Frankfurter:

I suggested — I’m riddled to it.

If you’ve got no outside materials which help me to read what the statute means, I must get meaning out of the statute, isn’t that true?

William C. Wines:

That is true, but I think these outside materials are — are most helpful.

Felix Frankfurter:

All right.

William C. Wines:

Now, Commissioner Eastman is asked as to whether there ought to be a strike.

I’m now reading from page 15 of our original brief, and he says, “My own idea would be let that question arise out of experience and find out whether there is any — if whether there is actual need for any such power before you provide for issuing injunctions for preventing strikes.”

Now there, we have the author of the bill telling Congress that in his opinion there has not as yet been evinced any actual need for such a prohibition though he does reserve judgment on the matter to be enlightened by experience.

Now, this case, I submit to Your Honors, is not like the Dyer Act case that Your Honors decided yesterday afternoon where everybody knew, though Your Honors divide, that the central objective of the law was to prevent stealing of automobiles when they were transported in interstate commerce and nobody paid any explicit to it — attention to just how far the — the ambit of the word stealing went.

So you get borderline cases, embezzlements, frauds, and so on which were not focused.

But here, the whole question of how far labor should go in relinquishing the right to strike or should be compelled to go in relinquishing the right to strike were central, and we find no express prohibition, and even if we should concede that there was not an explicitly formulated intention to continue an act, you have to have express — you have to have active intention, express or implied, active intention to repeal.

Many statutes are — aren’t repealed just because nobody ever gets to — gets around to repealing them and sometimes nobody even knows they there until they come to light.

This isn’t that kind of a problem.

Now, another consideration that is of importance is that in 1950, Senate Bill — Senate Bill, of that year, Number 340 — 3463, known as the Donnell Bill, was introduced and largely supported by the carriers, and that bill had it been passed would have prohibited strikes.

The carriers then took the position that strikes ought to be prohibited but were not effectively prohibited by the Railway Labor Act of 1934.

That’s 16 years later.

William C. Wines:

That’s right, Your Honor.

And I realize that retrospective legislative history is — is not as — as compelling or conclusive as concurrent or our — our prayer legislation.

But still when there is a feeling in Congress that something isn’t prohibited and the bill is introduced to prohibit it and fails the passage, I think the matter is one of some coaches though it is not conclusive.

Now, counsel for respondent quote much legislative history and quoted correctly, and I think in pretty — in — in fair context in which many statements are made by many people who talked about this bill, including a Mr. Harrison who was the union’s and this brotherhood’s legislative spokesman, that adjustments of minor grievances and these are concededly minor grievances is made compulsory by this bill.

Well, in — in one sense that is true.

The bill thus provide that either party may, without the consent of the other, submit a grievance to the National — to the Adjustment Board.

And there’s no doubt that as long as the man — if — if the employee doesn’t acquiesce in that Board’s determination, he loses very valuable rights.

He can’t keep his job and sue in the courts, might even be grounds for some other discharge.

William C. Wines:

But we’d say that the compulsion that was contemplated, any bill that has any efficacy at all has some measure of compulsion.

But we say that this bill does not resuscitate the jurisdiction of federal courts to enjoin strikes over minor grievances.

If Your Honors please, may I reserve time for reply.

Earl Warren:

You may, Mr. Wines.

Mr. Cummings.

Walter J. Cummings, Jr.:

May it please the Court.

For the sake of time, I will not state the facts of the case because they are not in dispute except to give a brief time synopsis of what occurred here.

The Mediation Board intervened and the carrier accepted the proposals of that Board but the trainmen refused to.

Next, the Mediation Board accepted arbitration and the carrier was willing but the trainmen were not.

At that point the carrier filed the grievances with the Adjustment Board as soon as the Mediation Board withdrew from the case.

Instead of permitting the Board to process these 21 grievances, the trainmen then called their strike over them.

Our first point is that the adjustment procedure, established by the 1934 Railway Labor Act, is mandatory.

Of course the major disputes, those that involve the negotiation of terms of employment and these minor disputes, the ones that are considerably involved here have been treated differently by the statute and we did not consider the major disputes here.

These minor disputes do not involve the making of collective agreements which involve all employees.

Instead they are defined in the Act as the grievances or disputes over questions involving the interpretation or application of existing contracts.

The respondents concede that strikes over major disputes —

Felix Frankfurter:

May I — may I break in, Mr. Cummings.

Walter J. Cummings, Jr.:

Sure.

Felix Frankfurter:

I — I miss something.

Did you say that — or state again if you will.

What the — what the administrative situation was?

The boards, where —

Walter J. Cummings, Jr.:

The major disputes go to the Mediation Board —

Felix Frankfurter:

No, I mean the — the abstract technical thing.

But in this case what happened in regard of any disputes?

Walter J. Cummings, Jr.:

These very disputes were filed by the carrier, Your Honor, as soon as the Mediation Board withdrew.

The Mediation Board couldn’t do anything else after arbitration was refused.

And it was at that point that the carrier took the claims to the Board, where they are still pending.

Felix Frankfurter:

Where they are still pending?

Walter J. Cummings, Jr.:

Yes, they are.

Walter J. Cummings, Jr.:

The first division where these cases were large is behind in its work.

It’s one of the few divisions that is so congested.

Felix Frankfurter:

Is there any problem at all that in any event that Board should dispose of its — the matter before you get in to the federal courts, assuming you could at any State?

Walter J. Cummings, Jr.:

I don’t think it’ll be disposed of for several months, Your Honor, if that’s what you mean.

Felix Frankfurter:

Well, what I — but I’m putting to you the question —

Walter J. Cummings, Jr.:

Yes.

Felix Frankfurter:

— whether or not a federal court could stay its hand in any event until the Board takes care of the dispute.

Walter J. Cummings, Jr.:

Well, the Board wouldn’t be able — the Board wouldn’t be able to take care of this dispute if the Court stayed its hand because the strike would have force the carrier to some sort of settlement.

The Board would have lost its function.

Felix Frankfurter:

But that maybe one of the — I’m not saying it is, but that maybe one of the exigencies of the inevitable delays and adjudication, either before administrative bodies or before agencies of this sort or courts.

Walter J. Cummings, Jr.:

Well, in this case at any rate they are still pending in the Board and if the Court had stayed its hand they would not of course be pending on the Board, they would have been disposed of otherwise.

We do concede that strikes over the major disputes are permissible after the process of the Act have been exhausted.

We don’t contend otherwise.

But in our view the Railway Act of 1934 requires that grievances, these individual cases, be processed by the Adjustment Board or a system board under Section 3, Second, if they have progressed beyond the carrier.

Hugo L. Black:

Under section what?

Walter J. Cummings, Jr.:

3, Second, Your Honor.

That appears in our appendix also.

Under the 1926 Act the adjustment procedure was of course voluntary but in 1934, at the union’s request, Congress replaced this voluntary machinery with the National Railroad Adjustment Board machinery.

The same time, it added five general purposes to the Act.

First was to avoid any interruption to commerce or to the operation of any carrier engaged therein.

The fifth was to provide for the orderly settlement of grievances.

This strike would violate both those purposes as well as the statutory duty imposed in Section 2, First, on all carriers and their employees to exert every reasonable effort to settle all disputes.

But the section directly involved here is Section 3, First (i).

That was enacted in 1934 and specifically provides for grievances to be referred to the Adjustment Board by either party, either party has the right to take them to the Board.

And as I explained a little earlier, they were so referred in this instance by the carrier that the Adjustment Board may not be deprived of its jurisdiction by the strike, the machinery really becomes meaningless.

The Board wouldn’t have anything to do.

The Railway Labor Executives’ Association brief concedes that Congress and either party had either a selection to submit such disputes that were not settled on the property to the Adjustment Board.

Petitioners made the same concession in their brief below and Mr. Wines adhered to it orally today.

So that it seems plain that under the language of the statute itself that either party can go to the Adjustment Board whether or not the other is willing, and the legislative history certainly crystal clear to that effect.

The manager of the bill was Senator Dill, who was Chairman of the Senate Committee on Interstate Commerce.

Walter J. Cummings, Jr.:

He explained the bill to his fellow senators before they voted on it, and in the debate he said that they were voting on a bill back and agreed to by the railroad labor organizations and providing compulsory arbitration of grievances.

That’s what he felt was so striking about this measure, it was the first time that that kind of a statute have been agreed to.

And the Federal Coordinator of Transportation, Commissioner Joseph Eastman was the chief draftsman of this bill.

His final explanation of it, not the explanation Mr. Wines quoted.

His final explanation appears in his June 1934 letter to President Roosevelt and which was read on the floor of the Senate.

In that letter he stated that the 1934 bill provides for compulsory adjustment of grievances.

Hugo L. Black:

Who was that?

Senator Dill?

Walter J. Cummings, Jr.:

No, this was Mr. Eastman —

Hugo L. Black:

Mr. Eastman.

Walter J. Cummings, Jr.:

— Your Honor.

Tom C. Clark:

Where is that letter?

Walter J. Cummings, Jr.:

I beg your pardon?

Tom C. Clark:

Where is that letter?

Walter J. Cummings, Jr.:

It’s at page 26 of our brief, Mr. Justice Clark.

The railroad labor organizations including these very petitioners and their two amici were represented at the hearings by George Harrison who is chairman of the legislative committee of the Railway Labor Executives’ Association and president of the Brotherhood of Railroad Clerks.

He was the spokesman for the railroad labor organizations at these hearings, and he too stated his understanding that Section 3, First (i) was to provide compulsory determination of grievances.

The next witnesses were the spokesman for the railroads and although they opposed the language of the bill, they agreed with Mr. Harrison, Commissioner Eastman and Senator Dill on this point that the bill did provide for compulsory determination of grievances.

The chief opponent of the legislation was the International Brotherhood of Teamsters and the two reasons they oppose the bill was because first, they said it brought about the compulsory arbitration of grievances, and secondly, because it would prevent striking over them.

In other words, the opponents and the spokesman and the draftsman all agreed on this point.

The judicial construction has been to the same effect.

The early case in this Court was the first to consider extensively, the 1934 Adjustment Board machinery.

After examining the legislative history of this Act in great detail, Justice Rutledge concluded that as a safeguard of the public.

Each party to a dispute of this nature may submit it to the Adjustment Board for decision whether or not the other is willing in contrast to what he termed was the previous system of voluntary arbitration.

And the very opinion expressed, he relied on George Harrison’s testimony, to which I adverted a minute ago, that the bill does provide for compulsory determination of grievances.

And — and in return for that legislation, labor was giving up the right to strike over these minor disputes.

Hugo L. Black:

Who did you say that — that was last — who do you refer to there?

Walter J. Cummings, Jr.:

George Harrison, who was the railroad labor spokesman at the hearings.

Felix Frankfurter:

Mr. Cummings, as what you’ve said and those materials establish anything more than that submission may be made for determination by the Adjustment Board by one side, although, the other side screams, allowed to have them against him.

Does it do anything more than that?

Walter J. Cummings, Jr.:

Yes, it does because it would be —

Felix Frankfurter:

What else could they do?

Walter J. Cummings, Jr.:

— it would be meaningless if it permitted the strikes to go on over there because —

Felix Frankfurter:

No, it wouldn’t be meaningless.

Walter J. Cummings, Jr.:

Well, the Board would be deprived of its jurisdiction.

Felix Frankfurter:

It wouldn’t be — no, because that presupposes that people would strike if this is done and it presupposes that there isn’t any value in the force of opinion which we see operating now in another plea, that by that Act, pressure is brought to bear to yield to something which if they weren’t that, they wouldn’t have to even do at all.

Walter J. Cummings, Jr.:

Well, all the statements to which I referred of Mr. Eastman, Mr. Harrison, and so forth did state that this was to replace strikes over grievances.

It was a substitute for them.

The Adjustment Board was to be the final arbiter.

Felix Frankfurter:

Well, that may be the expression of a hope.

It doesn’t yet take me over to saying that the courts can intervene.

That — that’s — you have to go some distance to get there.

Walter J. Cummings, Jr.:

Well, to get there I think I have to make a point that this procedure is mandatory, and I hope I am making that point, that you have to go to the Adjustment Board.

If you assume that you have to go to the Adjustment Board then the only way to enforce those provisions in this instance is to let the Adjustment Board function, to let it go ahead to decision.

That’s all this injunction attempts to do to preserve the status quo so that the Board can decide the case.

Felix Frankfurter:

Where is the term –- where are the terms of the injunction?

Where did the grievance go?

Walter J. Cummings, Jr.:

It is at page 49 and 50 of the record, Mr. Justice Frankfurter.

And the form of the injunction was submitted to the petitioners before it was entered by the District Court for their comments.

They had no objections to it and still have not complained of its form at all.

Felix Frankfurter:

Well, that then —

Walter J. Cummings, Jr.:

You see it’s limited to the grievances now pending in the National Railroad Adjustment Board, that’s the whole purpose of it to maintain the status quo.

Felix Frankfurter:

In connection with — the injunction isn’t in terms to allow the Adjustment Board holding the injunction until the Adjustment Board decide, is it?

Walter J. Cummings, Jr.:

That’s all it’s meant to do.

Felix Frankfurter:

I — I’m not — I’m not saying (Voice Overlap) —

Walter J. Cummings, Jr.:

Perhaps not in its terms but that’s what it’s meant to do and was so understood by both sides and by the Court.

And we don’t contend that it should do anything else.

Even as to the major disputes in the Burley case, the Court stated that it was compulsory for the parties to submit to the successive procedures of the Act before they could resort to self-help.

This had really been true under the 1926 Act as recognized by Mr. Justice Frankfurter in the labor injunction where the author stated that the 1926 Act permits the right to strike only after prescribed methods of compromise in arbitration have been tried in for refutal.

Well, that’s true as to the major disputes, the important ones in the labor world, it certainly apply to these minor disputes.

Walter J. Cummings, Jr.:

The Burley case does not stand alone on this.

The other decisions of this Court also point to the exclusive procedure of the Adjustment Board, and they are discussed adequately in our brief, and I will not go to them orally.

What has the practice been under this 1934 Act?

Well, for the first 15 years there were no strikes at all over the grievances, showing that labor certainly agreed with what their spokesman had said and what the draftsman had said as to the meaning of the 1934 Adjustment Board procedures.

Court will recall that the Adjustment Board is composed equally of representatives of both the labor unions and the carriers.

A vice president of these very trainmen sits on this division, the division — first division which is involved here.

At least two-thirds of the decisions of the Board have been in the favor — in favor of labor so that petitioners have nothing to fear from permitting these grievances to be processed by the Adjustment Board.

Modern thought in all labor cases, railroad as well as non-railroad labor cases, is recognizing that grievances are particularly adjustable by a form of arbitration.

That is because, as my opponent has recognized, they are individual cases involving accrued rights growing out of existing contracts.

That waspointed out by Mr. Harrison in his 1934 article in the American Federation, shortly following the enactment of this in which he appreciated that the adjudication by the Adjustment Board would be a proper way of disposing of these grievances.

As recognized by the amicus Brotherhood’s brief and award in favor of the petitioners are almost certainly to be honored by the carrier, that if not, petitioners have been given a very liberal remedy, weighted in their favor, enforcement suit.

That type of suit permits very limited review in the correctness of an award of the Adjustment Board.

The findings, in order of the Board, are made prima facie evidence cost or tax to the Government under the successful the petitioners recovered the reasonable attorney’s fees.

The construction of Section 3, first by the court below does not hurt the employees but benefits them, we believe, since it is to their interest to avoid saturation of work and loss of pay during adjustment proceedings.

Petitioners must think it is better to throw everybody out of work to enforce the demands of a few, when there are only a few involved here, rather than for everybody to work while those aggrieved are obtaining remedies by early processes, rather than and go into the Donnell Bill, it was the 1950 bill, I will rely on our brief which discusses that at page 48 and following.

Hugo L. Black:

When was the first time that question came up?

You say it didn’t come up for 15 years?

Walter J. Cummings, Jr.:

That’s correct, Your Honor.

There weren’t any strikes until 1949 and then they started out to be very few, and now they’re increasing slightly.

There had been four — perhaps four or five a year in the last two years.

Hugo L. Black:

Is this the first lawsuit?

Walter J. Cummings, Jr.:

It’s the first lawsuit to reach this Court or at least to be — and decided by this Court, the Central of Georgia case was a related case.

But if the trainmen were right about that case that involved the major disputes and not the minor disputes, so it does not have any effect here.

And moreover, the majority opinion in that case did not go into the Railway Labor Act at all.

It was devoted exclusively in the Norris-LaGuardia Act.

Felix Frankfurter:

Would you — can you shed some light on what is to me very puzzling why nobody talked about Norris-LaGuardia?

Walter J. Cummings, Jr.:

They didn’t talk about Norris-LaGuardia specifically, Mr. Justice.

Felix Frankfurter:

Well, I — I mean specifically.

That’s what I mean.

Walter J. Cummings, Jr.:

They — but they did talk about injunction —

Felix Frankfurter:

Well, I’m not —

Walter J. Cummings, Jr.:

— which I’m going to point to in my Norris-LaGuardia point.

Felix Frankfurter:

Mr. Cummings, I’m not — I can assure you my mind is in a — in a state of worry, so that my question carries no innuendo.

I just think it’s rather surprising that within so short of time of the enactment of a measure which had such wide and deep interest in the Congress and which dealt with so important a problem outside of labor relations.

Namely, what task should be put upon federal courts in regard to these difficult controversies that that shouldn’t have been adverted to at all?(Voice Overlap) —

Walter J. Cummings, Jr.:

It was not adverted to.

Neither side has found any reference to it in the 1934 hearings or the dates.

Felix Frankfurter:

And when you come to it because the — the main drive and the main concern of the Norris-LaGuardia Act wasn’t strikes or no strikes involved over the federal courts’ — in this controversy.

Walter J. Cummings, Jr.:

That’s — that’s correct.

As already shown, the Labor Act does provide for compulsory arbitration of grievances.

Actually, the petitioners’ brief practically concedes this point first, devoted on this page — that page to the Norris-LaGuardia point.

And since the Adjustment Board is empowered to decide grievances, an injunction was proper for otherwise, as I mentioned earlier it could not be permitted to — it would not be permitted to perform its statutory function.

That was the effect of the strike and the court below found that was the purpose of the strike.

Even the petitioners have conceded that any other remedy would be inadequate, a strike would hurt not only this carrier, its 1100 employees, 600 industries served, 27 connecting carriers, but more important the public.

This carrier is the only railroad operating in the Chicago stockyards, an embargo on all shipments into and out of stockyards would result from the strike and that is admitted.

There is nothing draconian about this injunction.

We attempted to draw it narrowly.

We purposely have a provision in there following the proviso of Section 2, Tenth, and it is designed only to permit the Adjustment Board to perform its statutory functions of making award in these cases.

It’s not the kind of blanket injunction in which the Norris-LaGuardia Act is directed.

Felix Frankfurter:

What is the average or is it impossible to look for an average of disposition — of time of disposition of matters before the Adjustment Board.

Walter J. Cummings, Jr.:

It depends on the division, Your Honor.

Some of the divisions are very well caught up and you can get a decision in 60 to 80 days.

In this particular instance, if the trainmen had filed an answer, the two reinstatement grievances would have been reached within four or five months.

But no answer has been filed yet by the trainmen.

They’re resisting the Adjustment Board procedures, so nothing has been done and as to any of the grievances there.

Felix Frankfurter:

But the divisions depend on the type of question before the Adjustment Board?

Walter J. Cummings, Jr.:

They depend on the type of employees involved.

And at one time this division was quite well caught up because it appointed regional boards under Section 3, First (w).

They existed for several years but then the labor members withdrew their authorization of Section 3, First (w).

There are two avenues to reduce this congestion, three really, Section 3, First (k), Section 3, First (w), and Section 3, Second.

Walter J. Cummings, Jr.:

Here the carrier has done all it can under the Railway Labor Act, but as the petitioners who refuse to exhaust their remedies thereunder.

We would like to make it plain that if the Adjustment Board procedure is not mandatory under the Act we do not claim to be entitled to an injunction.

Our position —

Hugo L. Black:

What?

Walter J. Cummings, Jr.:

We do not claim to be entitled to an injunction, Mr. Justice Black —

Hugo L. Black:

And your point?

Walter J. Cummings, Jr.:

— unless the Adjustment Board provisions are mandatory.

The provisions I discussed at the beginning of the argument.

Felix Frankfurter:

Meaning by that if one of the parties makes a submission to the Adjustment Board —

Walter J. Cummings, Jr.:

It (Voice Overlap) —

Felix Frankfurter:

— over the protest of the other side, it must be processed by the Adjustment Board.

Walter J. Cummings, Jr.:

Yes, correctly.

Our position simply is that the Norris-LaGuardia Act does not prevent the courts from enforcing the Railway Labor Act, and that is what we are attempting to do here.

The injunction awarded below is the only means of enforcing Section 3, First procedure.

All we are asking the Court to do is again to adopt the argument that the Government made in the Virginian case.

We excerpted the Government’s brief it appears at page 67 of our brief.

The nub of it is that the — when in conflict, the specific terms of the later act must prevail over the general provisions of the earlier.

There, the Court held unanimously, you will recall that the provisions of the 1934 Railway Labor Act used the words of Mr. Justice Stone, rendered nugatory the earlier and more general provisions of the Norris-LaGuardia Act.

That case was not unprecedented, it followed another unanimous decision that in the Railway Clerks case involving Section 20 of the Clayton Act, that courts should grant injunctions to enforce the Railway Labor Act.

And the rule of this Railway Clerks case was very familiar to the draftsman of the 1934 Act as it appears in the hearings.

In other words, the draftsman knew that injunctions need not be specifically mentioned in the 1934 measure for enforcement to be awarded.

In the Burley case, too, it was noted that the commands of the Railway Labor Act including this very Section 3, First (i) are judicially enforceable.

We believe that the contention that the petitioner is making here was under the Norris-LaGuardia Act was already rejected by this Court in the Howard case in 343 U.S.

They’re the same petitioners.

The Brotherhoods of — Brotherhood of Railroad Trainmen had used strike threats to force the carrier to bar Negroes from certain duties.

As here, their principal reliance in this Court was on the Norris-LaGuardia Act.

But nevertheless, the Court held in the Howard case that the District Court has jurisdiction and power to issue necessary injunctive orders notwithstanding the provisions of the Norris-LaGuardia Act.

And the District Court was told to award appropriate relief which would necessarily have the effect of enjoining further strike threats.

Norris-LaGuardia Act makes no exception for Negroes, so that it seems apparent that in the Howard, Graham, Steel, and Tunstall cases, this Court was recognizing that Congress does not mean the commands of the 1934 Act to become elusory because of the — the Norris-LaGuardia Act.

A case very like the Howard case was decided by the Eighth Circuit also involving this — the same trainmen, the Rolfes case.

Walter J. Cummings, Jr.:

There the trainmen struck over certain grievances of dining cars stewards.

And the Court held that the rival waiters-in-charge were entitled to resort to the Adjustment Board, and an injunction was issued against the trainmen permitted fairly with the opportunity for the Adjustment Board to function as contemplated by the Railway Labor Act.

After citing the Graham, Virginian, Steel, and Tunstall cases, the Eighth Circuit ruled that the Norris-LaGuardia Act does not deprive the federal courts or to issue an injunction in aid of the Adjustment Board, and to preserve the right of the Adjustment Board procedure — to resort to the Adjustment Board procedure provided by Congress under the 1934 Act.

But there is — that the Norris-LaGuardia Act provides.

Are there any other remedies that are available to you under the Railway Labor Act to enforce the arbitration?

Walter J. Cummings, Jr.:

No, there are not.

(Voice Overlap) to arbitration?

Walter J. Cummings, Jr.:

There are not, Mr. Justice.

None?

Walter J. Cummings, Jr.:

No.

None at all.

This is the only means we have been enforced with.

Mr. Wines relied on the —

Felix Frankfurter:

Well, you haven’t — you have no means of enforcing it.

Assume there’s no strike, they don’t strike —

Walter J. Cummings, Jr.:

Yes.

Felix Frankfurter:

— and the Adjustment Board makes an award.

Walter J. Cummings, Jr.:

Yes.

Felix Frankfurter:

There’s no means of enforcing it, is there?

Walter J. Cummings, Jr.:

Yes, sir.

But they award —

Felix Frankfurter:

Except — what?

Walter J. Cummings, Jr.:

Yes, an enforcement suit.

Felix Frankfurter:

If there is — for money, as for the money judgment —

Walter J. Cummings, Jr.:

Well, that —

Felix Frankfurter:

(Voice Overlap) the District Court can make it a matter of reference.

Walter J. Cummings, Jr.:

No matter what the award was whether it was for money or for some other redress an enforcement suit can be brought under the Act.

Felix Frankfurter:

A reinstatement — in the reinstatement?

Walter J. Cummings, Jr.:

Yes, surely, in any kind of case.

Felix Frankfurter:

Is that an injunction for — or mandatory injunction for mandamus to —

Walter J. Cummings, Jr.:

I was talking about the employees’ rights, Your Honor.

The employees are given the right to file an enforcement suit.

Felix Frankfurter:

Yes, I mean that.

There’s an award, this one shall be reinstated?

Walter J. Cummings, Jr.:

Yes, surely, he could —

Felix Frankfurter:

That’s affirmatively his bringing a mandamus to enforce that award?

Walter J. Cummings, Jr.:

Oh, an enforcement suit?

I would say —

Felix Frankfurter:

What (Voice Overlap) —

Walter J. Cummings, Jr.:

— there would be an enforcement suit.

Yes.

William O. Douglas:

Suppose they’re denied any remedy, any relief.

Walter J. Cummings, Jr.:

They’re denied any relief?

There’s nothing to enforce of course then —

William O. Douglas:

No, but do they have a — they could then strike you would say?

Walter J. Cummings, Jr.:

Well, that’s not necessary to decide in this case.

The legislative history indicates quite clearly that they could not strike, could not — that’s not involved here.

We don’t have to go into that.

William O. Douglas:

Would they be barred from — then for going into Court to sue on those individual claims?

Walter J. Cummings, Jr.:

It would depend whether the enforcement suit would be held their exclusive remedy it may not be.

As you know, they have common law rights to go into courts in certain instances such as the Moore case and the (Inaudible) case.

Felix Frankfurter:

It won’t — if I may without involving your position, you say under the legislative history they could not strike if they’re denied?It would shed — give light to me.

Would that be because Congress has — has indicated the remedy they have and they can’t get a further remedy?

Walter J. Cummings, Jr.:

Exactly.

Their only remedies —

Felix Frankfurter:

It’s an enjoining — in enjoining, would it be — would the question be that you enjoin — you can’t enjoin because of the Norris-LaGuardia Act or you can enjoin because Congress has devised an exclusive self-contained system?

Walter J. Cummings, Jr.:

That’s our point.

You can enjoin because Congress has devised an exclusive self-contained system, it has to be enforced somehow.

That’s what we’re attempting to do here.

Mr. Wines relied heavily on the Central of Georgia case on the Norris-LaGuardia point.

Walter J. Cummings, Jr.:

But as I stated a little earlier the trainmen there assert that that involves a major dispute.

And if so we have no quarrel with the result on the Central of Georgia case at all.

It involves a minor dispute, a grievance.

We think that Judge Brown’s dissent was correct.

The petitioner has conceded below that it would be proper to enjoin even strikes over major disputes in violation of Sections 5, First (b) and 10 of the Railway Labor Act.

They have no specific clauses as to injunctions either, and that the Norris-LaGuardia Act permits injunctions there that permits injunctions equally here.

Hardly any of the commands of the Railway Labor Act are self-executing but that has not been held to preclude judicial relief.

The amicus Railway Labor Executive Association admits that the Norris-LaGuardia Act does not apply upon when the Court is called upon to compel compliance with positive mandates of the Railway Labor Act.

That is all we are seeking here.

That is our position, that we are seeking compliance with mandatory provisions of the Act.

The debates on the Norris-LaGuardia Act of course preceded by two years, the enactment of the 1934 provisions on which we rely in the Railway Labor Act.

Nevertheless, it is of interest to know what Representative LaGuardia stated as the effect of the Norris-LaGuardia Act other than Railway Labor Act.

And this passage is not cited in our brief.

I came across it when preparing for argument.

Colloquy occurs at 75 Cong. Rec. 5499, Mr. LaGuardia stated, “We then passed the Railroad Labor Act and that takes care of the whole labor situation pertaining to the railroads.

They could not possibly come under this for the reason that we’ve provided the machinery there for settling labor disputes.

And then Mr. Lankford of Virginia askedhim, “The Norris-LaGuardia Act does not apply to the transportation of milk or other necessities that go in interstate commerce?”

Mr. LaGuardia, “Interstate traffic is entirely covered in the Railroad Labor Act of 1926.”

Now then, a little later in the debate at page 5504 and this is the last quotation expect to make, he stated, “So that there is the tie up between the provisions of the Railroad Labor Act and the necessity of exhausting every remedy to adjust any difference which might arise.

The workers could not and would not think of going on strike before all the remedies provided in the law, referring to the Railway Labor law, have been exhausted.”

That sentence has repetition here because it’s so apt.

The workers could not and indeed would not think of going on strike before all the remedies provided the Railway Labor law had been exhausted.

If the carriers have complied, they would not be deprived of any relief which they may have law or in equity.

Well, applying his remarks here would require affirmance.

But injunctions were discussed in the House hearings on this very legislation in connection with grievances.

Mr. Eastman referred his questionnaires to Mr. Carmalt who was the co-draftsman of the Act and Mr. Eastman’s legal adviser.

And Mr. Carmalt stated that an injunction would lie to enjoin strikes over grievances.

And Mr. Eastman himself —

Felix Frankfurter:

Where is that, Mr. Cummings?

Walter J. Cummings, Jr.:

That is shown at page 33, I believe of our brief, Your Honor, the blue-cut brief.

Walter J. Cummings, Jr.:

Yes, that’s correct.

The last quotation.

Felix Frankfurter:

Yes.

Walter J. Cummings, Jr.:

Mr. Eastman, in connection with grievances, discussed a proviso that was added in 1934 of the Act.

That’s the proviso to Section 2, Tenth.

It appears at 78 of our brief.

And in pertinent part it says that nor shall any court issue any process to compel a performance by an individual employee of such labor or service without his consent.

And Mr. Eastman again discussing grievances, he explained this proviso in the passage quoted at pages 30 and 31 of our brief that now that proviso protects the individual who wants to walk out but it does not cover collective action in walking out.

And Mr. Carmalt also explained this proviso.

He said that the employees, when they submitted the draft of the bill, absolve collective action but that both he and Mr. Eastman had instead redrafted the statute to provide the present verbiage Section 2, Tenth in order not to permit collective action just to permit the individual action.

The reason for Mr. Eastman’s feeling on this matter was to use his language that the bill makes it a matter of duty on the parties to this dispute, that the law is in effect in agreement on the part of the parties to arbitrate all of these minor disputes.

And then he stated his opinion that there ought not to be any strikes over grievances and minor disputes but that he was unwilling to take away from employees the right to strike on major issues, of course this case does not concern the major issues.

There would have been no need for the addition to the Act of the proviso in Section 2, Tenth that the Norris-LaGuardia Act permit to apply.

As noted by Judge Brown in his dissent in the Central of Georgia case, the problem was really one of accommodating the two statutes rather than determining whether one repeals the other pro tanto.

It should be noted, nevertheless, that Section 8 of the 1934 statute does state that all parts are — all acts or parts of acts inconsistent with this Act are hereby repealed.

This provision furnishes an additional basis for the holdings of the Virginian, Steele, Tunstall, Graham, and Howard cases on which we rely.

It should be made explicit that the injunction in this case does not impinge on the policies of the Norris-LaGuardia Act for it does not take sides at all.

It permits these individual grievances to be settled without throwing everybody else out of work.

The petitioners prevail before the Board.

They will of course receive back pay.

Here, all the parties and the public are — are protected by requiring that these grievances be settled by the administrative body that Congress chose to settle them.

The evils that which the Norris-LaGuardia Act was aimed are not present here, after all these are minor disputes.

Congress picked a Board for their settlement as Mr. Eastman called the final arbiter and Mr. Harrison a little more picturesque when he called the fire department to settle all these disputes.

If the decision below is reversed the Adjustment Board will be left to vegetate with no functions.

The brotherhoods will feel free to strike over grievances instead of permitting them to be decided by the Board.

Thus the Adjustment Board provisions would become a mockery of what was intended by Congress.

In conclusion it should be noted that the respondents are not asserting that the Railway Labor Act ban strikes over the major disputes to the process as the Act has been exhausted.

This case concerns only the minor disputes and the principal purpose.

In fact Mr. Eastman described that as the most important part of the bill was to provide compulsory arbitration of those disputes by the Adjustment Board.

Does the statute define mining disputes?

Walter J. Cummings, Jr.:

Yes, it does, Mr. Justice, as —

(Inaudible)

Walter J. Cummings, Jr.:

As — as the only grievances or disputes over interpretation or application of existing contracts.

It’s limited to that?

Walter J. Cummings, Jr.:

Yes, that’s right.

The decisions under the Railway Labor and Norris-LaGuardia Acts make it plain that the courts are meant to enforce the provisions of the Railway Labor Act.

Unless this mandatory duty to process grievances before the Adjustment Board is enforced strikes over grievances will continue to multiply, although, the Adjustment Board was designed to eliminate those various strikes.

It must be remembered that Congress enacted this 1934 Adjustment Board provisions upon the demands of the labor organizations.

The Board was established to provide a peaceful form for the adjudication of these minor disputes without the hardship of strikes.

The Board has proved to be hospitable to the claims of employees and we submit should not emasculated down.

Earl Warren:

Mr. Wines.

William C. Wines:

May it please, Your Honors.

In the Central of Georgia case which would have been argued just before this one had it not been mooted by settlement.

The Court of Appeals for the Fifth Circuit, if I may, Mr. Chief Justice, quote just a few lines from that opinion declared, “If, as appellee contends, Congress had, shortly after the passage of the Norris-LaGuardia Act, intended to curtail its provisions, limiting the equity jurisdiction of the courts in labor disputes so as to subject strike action to injunction, it is inconceivable, we think, that it would not expressly have so provided.”

That somehow the argument for the petitioners in this case, but I want to reply to Mr. Justice Black’s question in my fashion.

Mr. Justice Black asked whether the Act clearly delineates a demarcation between major grievances and minor grievances.

Your Honor, Mr. Justice Black, I would say fairly clear — fairly clear, however, these — these observations are certainly pertinent and we think exigent.

In the very Central of Georgia case, there was a dispute as to whether the strike was over a major or a minor grievance.

What the men struck for there was rights which though in a sense under an existing contract depended on a dispute as to the meaning of the contract and then — and affected not only particular grievances but the rights of all other members, though they didn’t seek a modification of — of the contract but simply asserted what they said was their reading of it.

Now, the truth is that however clear or unclear maybe the lexicography of — of these terms in the statute itself even if a strike is concededly over a minor grievance, minor being conceived and defined to be past accumulated grievances like decisions of the courts, the settlement of those grievances also for any precedents and the patterns and point the way to the future.

So that the distinction on which Mr. Cummings rely so confidently in his argument and in his brief between major and minor disputes is not very clear in economic fact even if it is fairly easy to assign a strike to one category or the other under a statute.

The truth of it is, Your Honors, that it seems to us as it seem to the Court of Appeals for the — the Fifth Circuit, that if Congress had intended to emasculate the Norris-LaGuardia Act, well Mr. Cummings’ verb, which is what he says we’re trying to do to this Act, it would have done so in clear unmistakable unequivocal terms.

We don’t contend that there’s an express continuation of the Norris-Laguardia Act.

We do say that — that repeal, whether express or implied, must find — must either be uttered or evinced in terms of an active intention to continue and a passive intention to let well enough alone and let this Court decide is not congressional repeal of any statute, certainly not one so important as the Norris-LaGuardia Act.

The truth of it is, Your Honors, and I think this emerges clearly from the record and this concludes my argument, that this question was just too froth with implications of every kind for Congress to want to take the stand of repeal.

It was just too pregnant with all kinds of conflicts of every sort, ideological and political.

And Congress, we say with major deliberation, left matters where they were, left it all alone.

Although, had they been asked explicitly to reaffirm the Norris-LaGuardia Act they might or might not have done it.

They left the problem where it was.

It was a little too full of — of dangers of all kinds and we think that they did not intend to take away from labor the right that they had bestowed on labor only two years ago.