Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees, AFL-CIO v. Florida East Coast Railway Company

PETITIONER:Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees, AFL-CIO
RESPONDENT:Florida East Coast Railway Company
LOCATION:Duluth Harbor Basin

DOCKET NO.: 750
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 384 US 238 (1966)
ARGUED: Apr 20, 1966
DECIDED: May 23, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – April 20, 1966 in Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees, AFL-CIO v. Florida East Coast Railway Company

Earl Warren:

— Railway and Steamship Clerks, Freight Handlers, Express & Station Employees, et al., Petitioners, versus Florida East Coast Railway Company.

Number 782, United States, Petitioner, versus Florida East Coast Railway Company et al., and Number 783 or the East Coast Railway Company, Petitioner, versus the United States.

Mr. Spritzer.

Ralph S. Spritzer:

Mr. Chief Justice, I move the admission of Paul Bender of the District of Columbia Bar for purposes of arguing in these cases on behalf of the United States.

Earl Warren:

Mr. Bender you may be admitted for that purpose.

Paul Bender:

Mr. Chief Justice, may it please the Court.

These three petitions arise from a single decision of the Court of Appeals for the Fifth Circuit.

That decision affirmed in an injunction entered in the Middle District of Florida, in action brought by the United States against the Florida East Coast Railway to enjoin what we allege to be violations of the Railway Labor Act.

Eleven unions representing nonoperating employees of the Florida East Coast Railway intervened in the District Court in support of the injunction and participated in the Court of Appeals.

One of the petitions here has been filed by the United States, thats Number 782.

One, taking essentially the same position has been filed by the unions, that’s Number 750 and the third which is a cross petition has been filed by the carriers, that’s Number 783.

For purposes of the oral argument, I shall present the argument in chief for the position jointly taken by the unions and by the Unites States.

Mr. Devaney will then argue for the carrier and Mr. Rutledge representing the unions will present a rebuttal argument for the position which the unions and the United States jointly take.

The issue here essentially is a simple one.

The question is where and to what extent carriers covered by the Railway Labor Act must obey first their duty to bargain with the representatives of their employees and secondly, their duty to adhere to existing collective bargaining agreements which they have previously made with those representatives.

During the course of a lawful strike, the Unites States takes the position that both of those duties remain upon the carrier during the course of a lawful strike.

It must both bargain with the representatives of its employees and it must adhere to collective bargaining agreements which continue to exist during the course of that strike.

The carrier, on the other hand, takes the position that it is under neither those, that it must neither bargain nor adhere to existing collective bargaining agreements.

Let me briefly sketch to the Court the statutory scheme which maybe somewhat unfamiliar under which these issues arise.

In the first place, like the National Labor Relations Act, the Railway Labor Act contains a general duty to bargain between employers and the representatives of their employees.

It goes a little bit further in general than the Railway — than the National Labors Relations Act, however, in providing rather affirmatively that there’s a duty of all carriers to exert every reasonable effort to make and maintain agreements concerning rates of pay rules and working conditions and to settle all disputes arising out of those agreements with the representatives of their employee.

There’s nothing like that that explicit in the National Labors Relations Act about the duty to make and maintain agreements and of course a continuing duty to bargain with the representatives.

Then the Act becomes much more explicit than the National Labors Relations Act and much more absolute in describing the meaning of the duty to bargain, “once agreements have been reached with the representatives of employees, as agreements had been reached in this case, first the Act provides that when either the carrier or the union wishes to change existing agreements covering rates of pay rules or working conditions notice must be served on the other party and negotiations between the parties undertaken.

If these negotiations fail to result in agreements either party may then invoke the services of the National Mediation Board which is created primarily for that purpose, to mediate disputes which haven’t been settled by a negotiation or the Mediation Board may itself proffer its services even if the parties don’t ask it to.

If this mediation fails, the Board, the Mediation Board, is then directed to encourage the parties to submit to the dispute to binding arbitration, although it can’t compel the parties to do so.”

If one or both of the parties refuses arbitration and there’s another step, the last resort you can create a presidential commission, an Emergency Board it’s called, to recommend the solution to the dispute and again its recommendations aren’t binding.

And —

Potter Stewart:

And the discretion of the president is not —

Paul Bender:

Right.

I think the Mediation Board has some rule in making recommendations for the President but of course the President does not have to appoint the Board.

Paul Bender:

In thus providing these detailed procedures which don’t have any direct parallel in National Labors Relations Act, the Act provides as explicitly as one can imagine that existing conditions, those subject to the dispute, those that one party or the other wants to change must not be changed by the carrier while these negotiations, the mediation, the arbitration or if there’s an Emergency Board, the Emergency Board is acting, while these procedures are in progress, you may not change the existing conditions.

Then there’s a general provision which again provides as explicitly as you can imagine, that you cannot make changes without entering into these statutory procedures.

That provision, Section 2 Seventh of the Act, provides that unless the statutory from the negotiation procedures are undertaken, no carrier, its officers, agents or agent shall change the rates of pay, rules or working conditions of it’s employees as a class as embodied in agreements.

Thus, it seems to us quite clear and I don’t think anyone disagrees with this, that the duty to bargain under the Railway Labor Act is defined in part and perhaps its most essential part, as the duty to adhere to existing collective bargaining agreements and not to change those agreements for employees as a class not the institute what would amount to amendments or changes without bargaining with the representatives of the employees.

At the same time as the carrier thus found there is a similar rule that applies to unions requiring the maintenance of existing agreements while these statutory procedures are in progress.

Thus, when a union for example is engaged in a wage dispute with a carrier, it may not strike on to and I think everyone agrees with this, although this is not as explicit in the Act, it may not strike until it has exhausted the statutory procedures just as the carrier may not unilaterally change the wages until it’s exhausted the procedures are the carrier can engage in a lockout until the procedures have been exhausted.

When the procedures are exhausted without a solution being reached, then and only then may the union strike to achieve its aims of proposal, and then and only then may the carrier implement the changes which it proposes without first exhausting the statutory procedures, both parties have to stand by existing agreements.

That’s what the Act provides and I can imagine that it could do so anymore clearly.

Now, it’s — as I said I think it’s conceded that those provisions as I’ve described them are applicable in the ordinary situation.

The question here is, and also let me put that they are enforceable by injunction.

I don’t think there’s any dispute about that any longer.

There once was a question whether the Norris-LaGuardia Act might have prevented either of the parties from enjoining the other party.

That is no longer a question seriously open to dispute.

The question in this case is whether that statutory scheme as I described, it remains applicable during a lawful strike.

The carrier argues that those provisions do not.

In its view, when a strike occurs even though it’s a lawful strike, it is entirely free, completely free to implement whatever wages, work rules or working conditions it desires for as long as the strike continues.

And that it doesn’t have to bargain with the union about the implementation of any of those procedures either before the strike or during the strike.

As far as it’s our concerned, the strike uses a complete freedom to treat its employees as it wishes so long as the strike continues and it carriers and I quote from it’s brief, it says “It’s agreements with the labor organizations were suspended during the period of the strike and FEC was not required even to attempt to comply with.”

William J. Brennan, Jr.:

Let me see, Mr. Bender, do I correctly understand that here, the issue of which after exhaustion of the procedures, the strike occurs for these early wages, is that it?

Paul Bender:

Wages and a notice issue also.

The question of whether, the length of notice you had to give before layoffs and job abolition.

William J. Brennan, Jr.:

But in any event, they were limited issues, were there?

Paul Bender:

Yes, just wages and that no decision, correct.

William J. Brennan, Jr.:

And then after the procedures had all been exhausted the union did go on strike because they’re not satisfied with the —

Paul Bender:

Right.

William J. Brennan, Jr.:

— what was it, an award or something of –?

Paul Bender:

No.

I’m planning to get into this in a minute, but yes, that’s essentially what happened.

William J. Brennan, Jr.:

But in any event whatever it might be as I understand it this whole thing about the dispute over some limited issues.

Paul Bender:

Yes sir.

William J. Brennan, Jr.:

And then after everything had been exhausted there was a lawful strike.

Paul Bender:

That’s the way you get a lawful strike in the industry. Let me say that now —

William J. Brennan, Jr.:

But the — the carrier then insisted that it had the right and the fact to abrogate all other provisions of the agreement.

Paul Bender:

Exactly.

William J. Brennan, Jr.:

And substitute its own working conditions.

Paul Bender:

Right.

William J. Brennan, Jr.:

As — not only the conditions related to the particular issues involved in dispute but everything else.

Paul Bender:

Right, precisely.

Now, they say they can do that.

We say that they have got to adhere to their agreements as written.

If the agreements provide for what they can do during a strike then they can do what the agreements provide for what they can do during the strike.

Potter Stewart:

Now, let me see Mr. Bender, the carrier takes the position that it was free to do this only after the strike — only after the strike commenced.

Now, after the strike, were any — were the employees then who are working for the Railroad represented by any of these labor organizations?

Paul Bender:

Under the Act, they were.

Potter Stewart:

How?

Paul Bender:

Well, the Act —

Potter Stewart:

They have chosen them?

Paul Bender:

Because the — these labor organizations were they’re designated — had been the designated representatives of the employees in those classes.

Potter Stewart:

But those employees went out — were all out on strike, weren’t they?

Paul Bender:

Well, the union members I assume were all out on strike, at least most of them were but under the Act there had never been a new designation of representatives and the Act does not contain any provision.

I think this is quite clear which provides that the loss of representation upon the union losing a majority of the employees actually working at that time.

Potter Stewart:

And here they —

Paul Bender:

The only way you —

Potter Stewart:

I mean the union didn’t lose them but — but all of those employees were out on a strike.

Paul Bender:

The union members were out on a strike.

Potter Stewart:

All of them represented — who have been represented by these —

Paul Bender:

Right.

But the Act — the union still represents the employees in that class.

William J. Brennan, Jr.:

Including the replacement.

Paul Bender:

Including the replacement.

William J. Brennan, Jr.:

And I gather your position is that the replacements have to work at least as regardless all issues are kept to in dispute.

Paul Bender:

Surely.

William J. Brennan, Jr.:

Under the working conditions of the contract specified.

Paul Bender:

We — we believe that the replacements are entitled to the benefits of the — or the agreements upon negotiate —

William J. Brennan, Jr.:

Well, to be entitled but —

Paul Bender:

Well, and they must.

It — it’s a rule which is for their benefit.

It’s a rule which is for the benefit of the union and it’s a rule which — and this is the reason we’re involved, this is for the benefit of collective bargaining in the railway industry and in the long run is the — for the benefit of stable labor relationships.

But Mr. Justice Stewart, the union doesn’t lose its status as bargaining representative simply because it goes out on strike.

That’s not even true under the National Labors Relations Act and it’s certainly isn’t true under this Act where there’s no provision provided for a union losing its representation without a new election, without a new representation proceeding being commenced and that has never happened in this case.

Now, the Court of Appeals, in all of these, took a middle brown between these two positions.

It agreed with the United States that the carrier couldn’t, as it still asserts it can do, completely ignores existing agreements and ignore the union because the union is out on strike.

The Court did however, purport to write a new gloss into the Act and it’s a concededly new gloss that appears nowhere in the Act creating an exception to these broad prohibitions.

The Court held that while a carrier can generally change its collective bargaining agreements during the strike, it can institute such changes in these agreements and — as are and I quote again, “Reasonably necessary to effectuate its right to operate, to continue to run its railroad under strike conditions.”

Now, we think this gloss, this new exception while it’s not as dangerous to collective bargaining and it’s not — well, it’s not dangerous to collective bargaining as the rule of carriers — it still terribly dangerous to bargaining and it’s still contrary to the terms of the Act and we also believe that there’s no cause for it’s creation at this time.

We’re frankly concerned here to overturn this principle like you can violate collective bargaining agreements during a strike when it’s necessary to operate rather than its application in this case, and let me be candid about that now.

The District Court in this case permitted only four changes under this exception and they were all relatively narrow minor changes.

If that were all that were going to happen under this exception, it wouldn’t be dangerous, but as I will try to show later, we think its potentialities are much greater and there’s a very good reason for getting rid of this now because the difficulties of reviewing these broad changes in the future when they’re given in the form of temporary — temporary release maybe in surmount of.

William J. Brennan, Jr.:

Well did the — did the Court of Appeals suggest some statutory source for that authority?

Paul Bender:

No, Mr. Justice Brennan it, as I read the opinion, suggested that it arose out of the right to operate of a railroad, out of the right to self-help during a strike.

It didn’t suggest any statutory basis.

The most it did was suggested there was an analogy to it in the National Labors Relations Act.

We don’t think that’s true, but even if there were, we think the Railway Labor Act as I tried to describe it, is a much more comprehensive scheme of regulation in this regard and the terms flatly prohibit any changes.

And that if you are going to have an exception, you shouldn’t upset the delicate balance of power in the industry by a judicially created exception.

This is a kind of thing which in this industry which Congress has dealt with so specifically ought to come from Congress.

The Court of Appeals did not suggest it can get it out of the Act at all.

William J. Brennan, Jr.:

Well, what’s it that it’s suggesting?

Paul Bender:

It came from the right of a carrier to operate.

It thought —

William J. Brennan, Jr.:

Where is that?

William J. Brennan, Jr.:

Where does that come from?

Paul Bender:

I don’t know.

They didn’t suggest.

They just stay with the —

William J. Brennan, Jr.:

They say it was constitutional?

Paul Bender:

No, they didn’t suggest it was a constitutional right.

I doubt if they did because it certainly — our position is that when you enter into an agreement the effect of which is to make it more difficult to operate during a strike or even to make it impossible to operate during a strike, you may have agreed a way you’re right to a —

William J. Brennan, Jr.:

Was there any suggesting that — the statute by implication?

Paul Bender:

I don’t —

William J. Brennan, Jr.:

Is that right?

Paul Bender:

I don’t find that in the Court of Appeals opinion and I don’t see where it could be found.

Now —

Potter Stewart:

Are you suggesting Mr. Bender that the railroad didn’t have the — it’s not the right to operate at least fairly they’re trying to operate?

Paul Bender:

Oh no.

We agree that the railroad — there’s nothing that stops the railroad from attempting to operate.

What we’re suggesting is that — that operation has to be consistent with its agreement.

Potter Stewart:

And you say that it’s not a constitutional right, I mean true acts against right or cases like that, you think you can —

Paul Bender:

Well, I suppose you might say there’s an abstract right of a railroad operator —

Well, that’s been perhaps — a constitutional right —

Paul Bender:

I should think —

Potter Stewart:

— to engage in a gainful employment which is legal.

Paul Bender:

I should think Congress might be able to modify the right in some circumstances.

They clearly haven’t –

Potter Stewart:

You are telling us that it did.

They may have the duty to operate as a common carrier.

Paul Bender:

They might have a duty to operate as a common carrier under the state law but not, Mr. Justice Harlan, in violation of the Railway Labor Act.

I think if those two things come into collision, there’s no question that the Railway Labor Act has got to be paramount.

Same — the same sort of question arises.

Suppose they can only operate in an unsafe manner which would violate federal safety regulations that the State may impose upon them the duty to operate as a common carrier but they certainly don’t have the duty to operate in violation of federal safety regulations.

And we say they don’t have the duty to operate in violation of the law.

William J. Brennan, Jr.:

Mr. Bender, is there no duty to operate under the — in the State Commerce Act?

Paul Bender:

I suppose there is under the Interstate Commerce Act.

William J. Brennan, Jr.:

But it’s not really a state though?

Paul Bender:

Well, I suppose a common carrier with a certificate would have to attempt to operate under the Interstate Commerce Act but certainly if it was prevented from doing so by a strike because railroads generally are prevented from operating during a strike, there would be no violation of the Interstate Commerce Act.

And clearly I think that you can’t read either of those duties as carte blanche just ignored other duties under the Railway Labor Act including the duty to bargain.

In the long run that sort of thing is much more detrimental to the passage of interstate commerce.

The whole purpose of the Railway Labor Act was because labor disputes which were not settled amicably has been causing terrible disruptions to commerce.

Now, if you say that you can forget about the amicable solution of labor disputes in order to permit carriers to operate that’s going to boomerang and you will get — and it’s Congress’ choice, it’s not something I’m making off, I’m asking the Court to make up.

That’s the choice that Congress has made.

It seems to me clear that that’s the choice of this Court has got to enforce.

Now, let me, although it comes rather late, let me go through these issues again fairly quickly in the context of the facts here.

They may become a bit clearer.

In 1961, 11 nonoperating unions, those were the unions representing people who don’t actually run the trains like clerks and machinists which had had collective bargaining agreements with all of the large railroads in the country for a number of years, served notice upon all these railroads including the Florida East Coast Railroad that they desired a 25 cent an hour wage increase and some, I think six months advance notice of job abolitions and layoffs.

The carriers, bargaining as a group, proposed wage decreases and notice of abolitions of only 24 hours.

This dispute as to whether wages should go up or down or what the notice should be for employees, it was a dispute subject to the — to the negotiation and mediation procedures which I described before.

Thus, the carrier couldn’t implement their proposals nor could the union strike to implement its proposals until the whole bargaining procedure was completed.

Over the course of the next nine months, all the acts of bargaining procedures were entered into.

Negotiation and mediation failed with regard to this dispute, but then the presidential board was appointed and the presidential board recommended a solution of a 10 cent an hour wage increase and 5 days notice of job abolitions.

In June 1962 this settlement was accepted by every Class I railroad in the country except the carrier in this case.

Florida East Coast Railroad was the only railroad of its class, those are the large railroads, not to accept the presidential board’s recommended solution.

After they did that, the mediation board attempted further to mediate the dispute which was now a dispute simply between the FEC and these unions.

This mediation was unsuccessful and the board was unsuccessful in getting the parties to agree to the arbitration.

At the beginning of both parties refused the arbitration.

Later on, the union when requested again by I think the Secretary of the Labor agreed to arbitration and as it now stands, the union will agree to arbitrate the carriers will not.

Thus, you have an impasse reach with Florida East Coast and these unions about this wage dispute.

Then the dispute reaches the point where a strike becomes lawful where you can use self-help in these Court’s work The union can go out on strike to enforce its demands.

The carrier can implement its demands if it wants because they’ve gone through all the statutory negotiation procedures.

In January 1963, such a strike began.

Now, I emphasize again, this strike was entirely lawful.

It occurred only after the union had in good faith attempted to bargain with the employer about the requests it made and about the proposals that the carrier made, which as Mr. Justice Brennan pointed out before it limited to this wage dispute and this notice of dispute, how much notice you need for job abolition?

Paul Bender:

At the beginning the strike was apparently effective.

The other employees refused to cross the picket line and the railroad shut down for about a week.

The strike however didn’t result as apparently most railroad strikes do result in a fairly quick settlement of the dispute and the railroad decided to attempt to operate despite the strike.

As I say again, it had a perfect right to attempt to do.

The question is whether in attempting to do it, it did it consistently with it’s obligations on the Railway Labor Act.

Potter Stewart:

And included in that right, I suppose you — was the right to hire new employees to replace the striking employees, was that it?

Paul Bender:

Yes.

No question that they may hire replacements.

No question —

Potter Stewart:

They didn’t have to.

They weren’t; confined in trying to operate the railroad to vice presidents in the second page —

Paul Bender:

No, absolutely not.

They can try and they did hire replacements.

That’s what they immediately attempted to do.

Now, in hiring replacements which it started to do I think about a week after the strike began, it wholly ignored the collective bargaining agreements which existed with regard to the crafts in which these replacements were.

And instead, it got the replacements to sign individual agreements setting their wages, rules and working conditions in terms as the District Court found, I don’t think there’s any dispute about this, substantially different from the term set out in the collective bargaining agreement.

Then a bit later, in September of 1963, after they’ve made this rash of individual contracts, they decided to formalize and then put them in a single document which they called a condition —

William J. Brennan, Jr.:

Mr. Bender, may I ask you right there?

Paul Bender:

Yes.

William J. Brennan, Jr.:

Was the railroad free or not to hire at a unilaterally fix wage rate at that point.

Paul Bender:

No.

William J. Brennan, Jr.:

It was not.

Paul Bender:

They were free to hire but they were not free to hire except that the wages provided in their collective bargaining agreements, yes.

Potter Stewart:

Mr. Benders, is anything in the collective bargaining agreement having to do with the — how new employees are to be hired putting aside the question of let’s try it during our normal operation.

Paul Bender:

Yes, say there is probably an elaborate procedure about bulletining the jobs advertising and taking people in terms of whether they have seniority on the road previously on —

Potter Stewart:

And I suppose the union shoppers of close shoppers provide it.

Paul Bender:

There’s the union shop.

There’s the union shop, yes.

Now, those — the union shop agreement was ignored.

Potter Stewart:

But now — a moment ago you in answer to your question I find — I understood you to say that you didn’t question the right of the railroad after the strike commenced to hire a new employees to replace the striking workers.

Paul Bender:

Right.

Potter Stewart:

And now you have told me that the collective bargaining agreement provides quite specifically as to how new employees are to be hired.

Were those provisions of the collective bargaining agreement under your position still in effect?

Paul Bender:

Yes.

Oh surely.

Potter Stewart:

So they had to hire what union members and they have to —

Paul Bender:

What the union members wanted to, yes.

Potter Stewart:

Well what if they couldn’t?

Paul Bender:

Well, then they can hire a non-union member but the agreement doesn’t provide that you can only hire union members.

The union shop provision doesn’t mean that you have to join the union before you go to work.

Potter Stewart:

Or the close shop or the union shop?

Paul Bender:

No, it’s the union shop as I understand.

Potter Stewart:

I think the close shop is legal in this industry nowadays.

Paul Bender:

I don’t know but certainly, no.

Potter Stewart:

Union shop —

Paul Bender:

Certainly this — none of these agreements contain the close shop.

Potter Stewart:

So those are union shops.

Paul Bender:

Right.

Potter Stewart:

The members after being hired had to pay the union.

Paul Bender:

No, they had to attempt to join the union.

Potter Stewart:

Yes.

Paul Bender:

Now, then it’s up to the union whether or not to accept them into membership or not.

If the — if they attempt to join and the union refuses to permit them to which it might very well do with strike there.

Potter Stewart:

Yes, they will.

Paul Bender:

Then their obligation is relieved.

In fact I think that’s what largely happened in this case.

Potter Stewart:

Does the collective bargaining agreement provides an elaborate kind of an apprentice after a program of the employee?

Paul Bender:

Yes, I think so.

Potter Stewart:

Would it had been possible or practical at all for a railroad in hiring replacements to go through that.

It had to have engineers for instance and conductors and brakemen and it didn’t — and it couldn’t work with apprentice engineers or brakemen.

Paul Bender:

Well, this is one of the provisions, Mr. Justice Stewart, which might very well, under a fair reading of the agreement you might decide that they don’t have to abide by apprentice ratios during a situation where there is a shortage of manpower.

That’s just — that wouldn’t only be a strike exception.

It might occur if there was some other natural disaster which prevented them from getting the proper ratios.

The union in this case has never seek — the carrier in this case has never suggested that this — that this is what they want to do, make these deviations which are absolutely necessary because it’s impossible to comply with the other terms.

They’ve never suggested that nor they suggested that such deviations would be possible under the contrary.

We know Mr. Justice Stewart that in this industry it is common place to bargain about what you do during emergencies including strikes.

They’re the provisions and the agreements in this case which provided during a strike when manpower short they can layoff people more quickly, they can — than they can do it otherwise.

Our position is that one, the railroads are perfectly free to bargain about changing apprentice ratios when there are manpower shortages and if they want to do it they should.

Secondly, even if they haven’t bargained about it, so it’s not explicit in the Act, we agree that it’s open to them to assert that a fair reading of the agreement would permit some deviation in that regard.

They have never argued that in this case and the case simply doesn’t come to this Court in that posture if they had argued it, it might be a different situation, just carrying out a bit further.

It seems to us that if they had made such an argument that certain changes are permissible under a fair reading of the agreement then it would be up to the union to decide whether they would agree or not that the agreement permitted that.

If the union agreed of course there would be no problem.

If the union disagreed, then you’d have a dispute about the meaning of the contract and that’s the dispute which in our view is subject to the primary jurisdiction of the railroad adjustment —

Potter Stewart:

Now, the union which is called its people out on strike is not going to agree to anything that’s going to make it easy or even possible for the — for the railroad to continue operating, is it?

That’s just a — you’re going to be asking for a —

Paul Bender:

I don’t know —

Potter Stewart:

— ambivalence, it seems.

Paul Bender:

I don’t know.

I think in the past it may have been that unions and I think it’s not at all fanciful to assume that they would in the future, agree to some things like that.

For example, to the use of supervisors to run trains, I’m not sure at all that unions would suggest that the use of supervisors to engage in limited operation of trains when ordinary working people were not available to do so would constitute a violation of the agreements.

So I’m not sure that they could so suggest.

But in any case, it’s not at all clear to me that the unions would take that position.

In any case, if the carrier hasn’t urged it here, Mr. Justice Stewart, and I don’t think that question arises.

Byron R. White:

Mr. Bender, you really didn’t mean to say that you — that in making — in paying replacements you have to follow the contract?

Paul Bender:

Yes, I did.

Byron R. White:

Well, I thought that exhausted the [Inaudible]

Paul Bender:

Oh, I — excuse me.

They had to follow the contract insofar as it had not been —

Byron R. White:

Let’s find that —

Paul Bender:

— exhausted or excuse me.

Byron R. White:

Quite a little — little acceptance.

Paul Bender:

Yes.

But it does — it’s not as much as you might think Mr. Justice White because —

Byron R. White:

Well, do you think they can do anything with what they had hoped?

Paul Bender:

Right, exactly.

Byron R. White:

Like that they proposed wages to go down, they couldn’t increase them.

Paul Bender:

That’s right and if they propose a 25% —

Byron R. White:

But assume it’s true to say, they had to pay the contract.

Paul Bender:

I’m sorry.

I stand corrected.

They didn’t have to pay precisely what was in the contract.

They could deviate insofar as it had been through bargaining, but what I meant to say was that as a general proposition, when you hire replacements during a strike, if the strike hasn’t occurred over a wage dispute then you do have to pay the wage rates that you can find in the agreement.

William J. Brennan, Jr.:

Then a lot of fact that they hire these — what rates that hires these replacements?

At the contract, at the offered — they suggested a decrease as I would call it, have they not 10% or something like?

Paul Bender:

You mean in the contract negotiation?

William J. Brennan, Jr.:

Yes.

Paul Bender:

Yes, they suggest a decrease.

William J. Brennan, Jr.:

Well, what if they hired them?

Are those the decrease rates?

Paul Bender:

I don’t think it decreases, no.

William J. Brennan, Jr.:

Not a thing?

Paul Bender:

I don’t think so, no.

I think — I think that —

William J. Brennan, Jr.:

Well, did they — did they hire them at rates?

The contract paid was something in excess with the contract.

Paul Bender:

It’s hard to talk about in those terms because the fundamental thing that they did when they hired replacement was to totally ignore corrupt lines.

They disregarded the fact that one man is a machinist and another man is something else.

Now, the collective bargaining wage rates as I understand it, framed in terms of craft lines.

So it’s very hard to know when they pay people under their system which ignores the craft lines whether or not they are abiding in dollar in sense terms by the — by the wage rates provided in the agreement.

I do think that they — to some extent at least abandoned the hourly system of compensation and attempted to compensate them on a weekly or monthly basis which is contradictory to the terms provided in the agreement, but the fundamental thing they did in hiring replacements which affects everything else, seniority, wage rates, and everything else, is to completely wipe out the craft line.

Paul Bender:

I think the first provision in these conditions of employment is employees have to do whatever work they’re qualified to do and whatever work they carry that calls upon.

And then that’s fundamentally inconsistent with the way the whole industry had been organizing that to — up to that time.

Well, let’s just finish the story.

After they had — after they had done this.

They finally propose to the — to the unions some months later that these unilateral changes they had made be made permanent unilateral changes by filing a notice under the Act to negotiate about the permanent institution of these changes with the union.

This was after they had implemented them already.

They said that they wanted permanently to amend the collective bargaining agreements to do this.

Then they had a meeting finally with the union about this, but the meeting broke up because the carrier insisted on having a court reporter at present to take that on a negotiation and the unions refuse to bargain under those circumstances.

The union then took the next statutory step and invoked the services of the mediation board about this dispute.

Now, this is a different dispute from the wage dispute.

This is the dispute about whether that all the carrier’s sweeping changes, abolition of craft lines et cetera should be permanently — should permanently replace the existing collective bargaining agreement.

Potter Stewart:

And the employer — the carrier instituted the negotiations about this?

Paul Bender:

Yes.

They both did.

They ma — the meeting broke up —

Potter Stewart:

But a matter of those requests — to began these things.

Paul Bender:

Well, you have to serve a notice on the other side, setting the (Voice Overlap)

Potter Stewart:

Who — who served the notice?

Paul Bender:

The carriers serve the notice because it proposes a change.

The carrier has to, under the Act, served the notice because it proposes the change.

Potter Stewart:

Or the union may?

Paul Bender:

Well, in —

Potter Stewart:

In practice it’s the carrier who does it.

Paul Bender:

The carrier — is the one who proposes the change that has to and in this case it was the carrier that was proposing a change.

Potter Stewart:

Yes.

Paul Bender:

Well, the Mediation Board docketed this dispute for mediation.

The carriers said you can’t do that because the unions forfeited its right to mediate or to engage in any of the other statutory procedures because it walk out on that meeting because of the Court reporter and the Mediation Board said “That was not a refusal to bargain because you had not right to bargain with the court report.”

The carrier ignored that — ignored the fact that the Mediation Board has docketed the dispute and went right ahead and permanently instituted these changes which it had sought to bargain about and which the Mediation Board still wanted it to bargain about.

It was at this stage that the United States initiated the present litigation.

In our view by permanently implementing this working agreement proposal, despite the Mediation Board’s decision to docket the dispute, to carrier is directly violating Act and it’s completely undercutting the Board’s jurisdiction.

Paul Bender:

The Board believes and we thought correctly the meaningful mediation that carriers’ proposals would be entirely frustrated by the carriers having already implemented those proposals.

In addition, the previous action of the carrier and just acting unilaterally with regard to its employees was in our view completely, a flagrant violation of the Act.

To our knowledge, no carrier previously had ever contended that it could do such a thing and we thought it was important to vindicate the Act in the face of these action as means of maintaining good faith bargaining in our labor industry and we would — normally we are mindful in doing this that the railroad involves survival defense installations of Cape of Kennedy and surrounding areas and that prolongation or intensification of this dispute might very well have consequences, adverse consequences on the Government’s programs there.

Plus it’s also a standing in this action the practical standing close from the considerations that I’ve just said.

The legal basis for the standing I think that flow from those directly with — it’s not necessary in any event because Section 2 Tenth of the Act, it seems to us clearly, gives the United States standing to initiate an action such as this and that’s what we’ve got.

Potter Stewart:

And the — the Court of Appeals agreed with you?

Or —

Paul Bender:

Yes, the Court of Appeals agreed.

Well, the District Court as I’ve said ultimately after the Court of Appeals rendered this decision about reasonably necessary changes which was rendered not in this case but in a companion case, the Trainmen case, the District Court permitted this four minor such changes of — the Court of Appeals affirmed and these petitions have — have followed.

Now, let me talk first about the carriers’ argument namely, that once a strike has occurred, it can run its employee relationships entirely as it wishes.

It has not duty to bargain with anyone about employee conditions and it has no duty to abide by any collective agreements.

Employees hired during the strike are treated by the carrier the way the carrier wants to treat them and that this situation continues as long as the strike continues.

Now this argument is — has been squarely rejected under the National Labors Relations Act.

FEC is to our knowledge that first carried an urgent — under the Railway Labor Act and we just see no basis for it under the Railway Labor Act especially in light of the much more explicit provisions of that Act about the duty to bargain and about the fact that the duty to bargain clearly includes the obligation to adhere to existing collective bargaining agreements.

Potter Stewart:

Mr. Bender I thought — am I wrong if there’s an amicus brief here on the part of the association on American Railroads.

Paul Bender:

Right.

Potter Stewart:

Well, that represents all of our railroads?

Paul Bender:

Yes, they do it.

They —

Potter Stewart:

So Florida East Coast is not the only carrier to take this position all the railroads.

Paul Bender:

They now take the position — Florida East Coast as we believe the only first carrier who had taken the position.

They took it in this case and the amicus brief supports (Voice Overlap)

Potter Stewart:

The position as I understand involved the American Railroads represented by the —

Paul Bender:

It is now the position having been taken by Florida East Coast.

We are unaware that the position had ever been taken before.

It annoys it — a matter merely of the language of the Act which I emphasize is clearly against the carriers’ position.

As has been recognized under National Labors Relations Act suspension of the duty to bargain during a strike would substantially destroy the process of collective bargaining under the — under the Act.

It doesn’t take an awful lot of imagination to see how that works.

For example, one duty which clearly continues during a strike is the duty to settle the dispute which led to the strike, that’s the thing the Act once settled, that’s the wage and notice dispute in this case.

You can’t very meaningfully expect the union and the carrier to settle a dispute when the carrier asserts the right to violate all its agreements with the union.

Paul Bender:

That kind of violation of the contract where the party was doing a bargain, it seems to me to be the antithesis of meaningful collective bargaining.

Also, and this is a little more settled but I don’t think it’s difficult to see how it occurs, if you give the carrier this right to do whatever it wants, once the strike occurs, it makes the pressure of the strike to encourage people to engage in the collective bargaining really [Inaudible].

When the strike occurs, it’s a — it may well be a good thing for the carrier or often the bad thing for the carrier.

They do whatever they want.

They institute the most sweeping changes and they say to the union, “You strike as long as you want.

As long as you strike, we will run a totally unrepresented shop.

We will deal with our employees however we want” and they can go further as the carrier went in this case, they can propose once they’ve got these changes instituted, they can propose to keep them there permanently and file this Section 6 notices to permanently change throw out all the collective bargaining agreements and to run the shop on their own terms and again, they sit back.

They don’t negotiate meaningfully over that.

They can keep their proposals in effect as long as the strike continues and when the negotiations finally fail on their long range proposals they can amend the collective bargaining agreements.

Now you just, you cannot have meaningful collective bargaining in these circumstances if the union knows that as soon as strikes and the strike is the only way that the union has of trying to enforce its demands after negotiations breaks down, you cannot have meaningful collective bargaining if the union has been taking the choice between giving up the shop, giving up its power to represent the employees in striking.

If it strikes it just is out completely.

The carrier runs the shop as it wishes and the union just ultimately capitulates.

Excuse me?

Byron R. White:

There is always arbitration.

Paul Bender:

Yes, and in this case the union agreed —

Byron R. White:

What and when?

Paul Bender:

To arbitrary involvement.

At three different occasions —

Byron R. White:

How about the original dispute?

Paul Bender:

Yes, that’s the dispute agreed to arbitrary on three different occasions.

As we point out in the brief.

Byron R. White:

Of what stand?

Paul Bender:

No.

On April 3rd, May 17th, and October 14th, 1963, the union agreed.

It initially refused to arbitrate.

Byron R. White:

Yes, before the strike.

Paul Bender:

Yes.

Byron R. White:

[Inaudible]

Paul Bender:

But then it later agreed to — it agreed to arbitration and certainly either side may agree to arbitration Mr. Justice White but the union can — in those sense compelled arbitration.

If it agrees and the carrier disagrees it still has the strike and that its only — its only remaining possible economic lever that it can use and in this case the carrier refused to arbitrate and I think —

Potter Stewart:

I thought — you can — you tell me if I’m wrong I thought before the strike when this dispute was going on between these unions and all of the railroads that it was the unions who refuse to arbitrate.

Am I mistaken?

Paul Bender:

You mean the broad —

Potter Stewart:

The issues which eventuated in this strike?

Paul Bender:

I don’t know there were —

Potter Stewart:

I thought I had read that in your brief.

Paul Bender:

Well, I don’t know — your impressions that all the carriers agreed to arbitrate and the unions —

Potter Stewart:

I thought the union (Voice Overlap)

Paul Bender:

I don’t know about that.

What I know is true is that after the presidential board was created and it recommended the solution, that solution was adopted by all the unions and carriers except the Florida East Coast.

Now, I think it’s been the union’s position, or at least it was the unions’ position at that time that they were willing to adopt that solution.

So in the sense they were willing to adopt what amounted to in arbitration (Voice Overlap)

Potter Stewart:

— under the Act, it’s the recommendation.

Paul Bender:

But it’s an impartial recommendation.

Potter Stewart:

With the majesty of the chief executive behind this?

Paul Bender:

Yes — well, now let me turn into —

Abe Fortas:

Mr. Bender, the — as I understand what you’ve told us this morning, it amounts to a concession that the railroad hearing the strike, they engage in certain employment practices or uncertain employment practices which are not permitted by the collective bargaining agreement such as with respect to the apprentice program.

As I understand it, you have suggested that railroad would have to present those to the union first and perhaps indicate its willingness to bargain about it, about them or it might have to bargain in good faith about them if the railroad were willing to do so, am I right thus far?

Paul Bender:

No Mr. Justice Fortas.

I’m afraid I didn’t make it clear what I meant to say.

It seems to me to one extent I agree with you.

Whatever the union is willing to agree –

Abe Fortas:

I’m trying to agree with you, so let’s speak clearly.

Paul Bender:

But I don’t agree — I don’t agree that they have the right to violate the collective bargaining agreement.

My position was that they have the right to assert certain deviations from the literal language of the agreement is not a violation of the agreement.

Abe Fortas:

It was alleged that —

Paul Bender:

I think it’s very important —

Abe Fortas:

Mr. Bender, please forgive me if I regard that as not of the essence what you’re say — what I’m trying to get from you right now is this.

Is it or is it not your position that during a lawful strike a railroad may engage in certain employment practices which are — are not permitted by the collective bargaining agreement.

The Government concedes that it can do that.

Paul Bender:

No Mr. Justice Fortas.

Abe Fortas:

As I listen to you, you suggested as an example of that the circumvention or the waving or whatever phrase you want to – whatever terms you want to apply of the apprentice program.

Paul Bender:

I didn’t — I suggest that they might be able to make deviations but not in violation of the agreement.

My only suggestion was that there is flexibility in these agreements.

They ought to be read realistically in light of situations and in light perhaps of unanticipated situation and if you assume that a fair reading of the agreement might permit some deviations from the literal term that we concede they might be able to do, that’s all.

Abe Fortas:

Well, you may think it’s very difficult for me to try to check my point with you, so I like to ask it bluntly.

Is it or is it not your position that during a lawful strike the railroad is at liberty to hire necessary, essential employees to run the railroad without — outside of the procedures specified in the collective bargaining agreement.

Have I made my — did I put my question clearly?

Paul Bender:

Did you say to hire them or to —

Abe Fortas:

To hire them, to recruit them and to hire them.

Let’s suppose if the union as Mr. Justice Stewart was suggesting, suppose all the union employees were out, all the engineers were out, and the railroad says we want to run our trains, so we’re going to disregard the procedures that are — we are going outside of big procedures specified in the collective bargaining agreement to get some engineers to run our trains.

It is my — is it clear up to this point?

Paul Bender:

Yes.

Abe Fortas:

Now what I want to know is, is it your position, the railroad can do that or is it your position that the railroad cannot?

Paul Bender:

They cannot do that.

Abe Fortas:

Now, tell me why?

Paul Bender:

Because it’s a violation of the existing collective bargaining agreement and the Railway Labor Act —

Abe Fortas:

Now, I though — I thought I may be confused but I thought that in response to Mr. Justice Stewart’s questions you said just the opposite.

Paul Bender:

No, I didn’t.

If I did, I didn’t mean to.

What I meant to say that they may not violate the agreement.

They may or —

Abe Fortas:

I’m not interested — I’m not interested in that word.

Paul Bender:

Well, I think, Mr. Justice Fortas maybe —

Abe Fortas:

But are you saying then that the agreement itself contains sufficient flexibility so that in these circumstances the railroad could hire engineers without reference to the usual procedures.

Paul Bender:

I — I don’t know whether it does.

I doubt very much whether it does that.

Let me put —

Abe Fortas:

No but this is– this is — I beg your pardon sir but so far as I’m concerned that’s quite an important point as to whether the railroad can or cannot proceed in some way other than the way provided in the collective bargaining agreement to recruit for example engineers to run its railroads, to run its trains during a lawful strike.

Paul Bender:

Our answer to that is that they may not recruit in violation of the agreement.

Paul Bender:

What I did try to say was that they may urge that certain recruiting practices not explicitly provided in the agreement are not a violation because of unusual circumstances.

Abe Fortas:

Now, who would determine that?

Would that be by a court order?

Paul Bender:

No.

Our position is that if they make such a contention and if the union disagrees with the construction of the agreement that is a dispute about the meaning of the agreement which the Act commits to the National Railroad Adjustment Board, not to the District Court and that the dispute should primarily be taken there.

Now that doesn’t come up here because the railroad has never suggested that the things it wants to do are permissible under a fair reading of the agreement.

To sum up the position that I have Mr. Justice Fortas suppose that the agreement said at the very end in capital letters “And these provisions shall not be varied in the slightest because of the existence of a lawful strike,” there is no question in our mind that that agreement should be applied as written and it was not very unusual.

Abe Fortas:

I — I understand you now, I think and it’s a — it’s a — the flat position.

Paul Bender:

Right.

Abe Fortas:

That regardless of what maybe the means of the railroad to operate during the strike, the railroad is bound by the four corners of the agreement.

Paul Bender:

Exactly.

Abe Fortas:

And if it has — if it — if there is any flexibility for departure from non-strike procedures the authority for such departure has to be found in a fair reading of agreement.

Paul Bender:

Yes, and that they can bargain for that in advance and get those flexible provisions in the agreement or if they wish, if they think what they’ve bargained for prevents them totally from running during the strike and that that is an impossible situation, they can agree to arbitrate the dispute and thereby and I think the union will develop this argument.

Avoid these constricting procedures of the Railroad Labor —

Abe Fortas:

So if they will not take that flat position, I would — next have to ask you why you disagree with at this stage with the decision of the Court of Appeals.

Paul Bender:

Well it’s — it is because we do take that by position and one other reason is that the Court of Appeals decision does not flow from the agreement.

It flows from the right to operate —

Abe Fortas:

Why the same thing?

Paul Bender:

The need to operate.

I think that all decisions —

Abe Fortas:

I think it’s the same controversy.

It’s the same question we’re talking about.

Paul Bender:

All decisions in this area have to flow from the agreements.

That’s what the Railway Labor Act requires.

I will save the rest of my time for rebuttal argument of Mr. —

Earl Warren:

I’d like to ask you question, does the collective bargaining agreement authorize the use of supervisory personnel in the event of the strike?

Paul Bender:

That’s a question which has never been presented or decided in this case.

Earl Warren:

No, I didn’t ask you that.

I ask you if the — I ask you if the agreement provided made any provision for that.

Paul Bender:

Not explicitly, no.

Earl Warren:

Well, didn’t you say a little while ago, I thought I understood you to say that the railroad could use supervisory personnel.

Paul Bender:

I think that —

Earl Warren:

In the event of a strike.

Paul Bender:

I think that if the railroad suggested that that did not violate the agreement it is quite a likely possibility that the union might agree, that the use of supervisory personnel when they didn’t replace any personnel covered by the agreement would not amount to a violation of the agreement.

But the agreement merely says —

Earl Warren:

But you say the railroad might contend that.

Paul Bender:

They don’t here, but if they did, the union might agree.

Earl Warren:

Well, what is your — it’s in the question whether they will agree or not, do they have the right under the contract to do it whether the union agrees or not?

Paul Bender:

That is the question — of the meaning of the contract which so far as I know Mr. Chief Justice is never going to be authoritatively decided and all I’m saying is that I’d like to know the answer.

Earl Warren:

Unless you — unless you decided it yourself when you told us that they — clearly that they did have the right to do it.

Paul Bender:

I didn’t mean to say that.

I meant to suggest —

Earl Warren:

Oh, I — I may have misunderstood you but I thought you said —

Paul Bender:

I probably misspoke myself and I apologize.

What I meant to suggest was that they might be able to urge that the use of supervisors would not violate the agreement and that the union might concede or that the railroad adjustment board might agree with them.

If that were true and I think it’s quite possible that it is, that would provide a certain amount of flexibility.

The history supports that, Mr. Chief Justice.

The occasions on which railroads have operated during strikes have been mostly with supervisors.

And I don’t know, I’m not aware that unions have strongly suggested in those cases that that amounted to a violation of the agreement.

It’s quite possible that the general positions unions would take is that that does not amount to a violation.

My argument is that that’s what the railroad should have done here.

They should have urged that they could engage in operation under the agreement and they should have attempted to engage in operation under the agreement and that the Act provides all panoply of procedures for deciding any questions about what the agreement means in that context, but the carrier did wrong here was to ignore the agreement.

It never attempted to comply with it and their position in this Court is just that and boldly that because they don’t have to make any attempt to comply with their agreements during a strike.

That is what we say is wrong, that complete negation of the collective bargaining agreement.

Earl Warren:

Mr. Devaney.

William B. Devaney:

Mr. Chief Justice, may it please the Court.

If I may at the outset apply immediately to the question that Mr. Bender has raised at the very end of his argument namely, the fact that Florida East Coast has not raised the right to use supervisors and to otherwise operate with the employees if it had available and we have not challenged the jurisdiction of the Court to make these determinations.

I would like only to refer to our petition — cross-petition for certiorari.

On page 30, this is question number 2.

On page 32, of our initial brief and on page 36 of our reply brief, I believe it’s very clear that we have said consistently all the way through this proceeding that that is the position that we have taken.

William B. Devaney:

Now, before getting into the —

William J. Brennan, Jr.:

What was the statute’s [Inaudible]

William B. Devaney:

This is the position that Mr. .Bender suggested that there might be things such as the use of supervisors that we could do and that we didn’t raise the question and that if the unions had been asked about it and there the disagreement it would go to the adjustment board.

Now, we have raised that consistently in the District Court and the Court of Appeals and we said that what the —

William J. Brennan, Jr.:

I thought you referred to something [Inaudible]

William B. Devaney:

Oh, I did.

I did, Mr. Justice Brennan.

On page 3 of our petition that is question number 2 which concerns directly the jurisdiction of the National Railroad Adjustment Board to determine the questions of the interpretation and application of the agreement and we argued the same points at page 32 of our initial brief and 36 of our reply brief.

Earl Warren:

Well, is there anything in the agreement that gives you that right?

William B. Devaney:

There is not, Mr. Chief Justice.

Earl Warren:

Well, did you raise that question with the union?

William B. Devaney:

We did not.

Earl Warren:

[Inaudible]

William B. Devaney:

We did not Mr. Chief Justice.

Earl Warren:

In other words you never did it until after you had unilaterally adopted that factors and we’re in the courts.

Is that correct?

William B. Devaney:

We — we didn’t raise it with the unions, Mr. Chief Justice and they didn’t raise it with us.

Earl Warren:

Well I —

William B. Devaney:

That’s correct.

Earl Warren:

Yes, but it was never raised by you until you’re in the Courts.

William B. Devaney:

That is correct Your Honor.

Earl Warren:

And was that a condition of not doing some of the other things that you were doing or it’s just something that you demanded in the Court as a matter of relief?

William B. Devaney:

Mr. Chief Justice, we have never contended or asserted the right to do anything except what was necessary under the strike conditions in order to operate the railroad.

That’s all we have insisted that we have the right to do.

And when the strike began we had absolutely no employees, but supervisors and when we operated the first train on February the 3rd, we used supervisors because this was the only way we could operate and in using the supervisors we clearly crossed every craft line imaginable.

We had to run them through terminals.

We have to have them do the yard work, local freight work, inspect their own locomotives, they fueled their own diesels, they did everything that was required to be done, because there was not anybody else who could do this work for the railroad.

As we began to hire replacements, in the first place when it wasn’t hired until more than a month after we ran the first train, it was in April and we hired one man in April.

Now, with one man we have to use his skills and ability to do whatever he could do.

It is conceded all the way through that we could not hire qualified employees.

William B. Devaney:

They were basically unqualified and we have to train them.

It was earlier asked about training time well, in shop class alone, there is a four-year apprenticeship program which is required.

We couldn’t get the journeymen and to train these people under the agreements themselves would take a period of four years.

So we have no alternative but to hire people with as much skill as we could find and we have to use those skills the best way we could.

And if the men were not fully qualified to perform the work of machinist, he had to do whatever part of that job he could do and we have something else that somebody else could do.

We have to use another person to try and fill in and do the job and to keep the railroad operating.

That’s what we did.

It was asked earlier to what we do about payment well, there’s no question about this.

When the strike replacement problem first came up in April, the only way we could get replacements was to pay them on a salary basis.

I think it’s perfectly understandable why they might have wanted a salary.

They didn’t know and the railroad didn’t know whether we could operate this railroad one day or two days or a week or whether it would be successful but he wanted a salary.

The record shows that we took the hourly rates in the contract, we converted them to a salary, that’s what we did.

In addition to that we did because of severe shortage of clerical employees.

We did take the holiday pay provisions and included that in these base rates.

Every one of the agreements had a different eligibility provision.

And we just didn’t have the personnel to keep all the records required so we put it all into the base rate.

Now, except for those changes, this is what the people were paying and as early as April, when we were beginning to get a few more replacement employees, we started moving back to the hourly base, the hourly rate.

Now what we have to do, and we don’t deny, it is perfectly clear in the record that we had no choice but to use the people to perform whatever job they could do.

You didn’t have journeyman machinist, you didn’t have journeyman electricians.

And if we had a man who had been an automobile mechanic, he’d done some welding before he might be working for us as an electrician.

But if we needed the welding, we have to use that man to do the welding if he was the only person available to do it.

This is what we did.

This is what we say we have a right to do.

We say this is what self-help means and that is what this case was all about.

Really, the issue is, as Mr. Bender has stated, it’s a narrow one.

It’s whether a rail or an air carrier has the right to try to operate in the face of a strike with whatever personnel it has available and it is our position that a carrier does have that right.

We say that this is precisely what self-help means.

It’s what this Court and many other Courts have said happens when procedures of the act are exhausted and not only that this Court say that the right, that both parties have this right of self-help but it’s the only right and the only means to adjust the dispute once the procedure of the act are exhausted.

Now, looking at it in point of time we have seen that the railway had no employees except a handful of supervisors who were capable of doing the various work that was required.

We had to use those people.

William B. Devaney:

We had no choice whatever.

From a workforce of 2,000, in one day our workforce was zero.

There was no alternative on the part of the railroad, but to use such people as we had available and such skills as they possessed.

Now, the Government — now, the union has ever contested the complete impossibility of hiring and training the necessary replacements.

It is conceded by all parties, that at the time the strike began and for a very substantial period thereafter we couldn’t have operated one train in compliance with any of the agreements, not one train.

In fact the record is clear and uncontradicted.

Now, we could never have got back in service without using supervisors.

For the simple reason that the only way we could train these people was by on the — was with on-job-training and the only way you can give a person on-the-job-training is to operate, no other alternative.

We had no choice but to do that.

Now, in operating with supervisors using the skills available, we concede that this was not in accordance with the agreements, but in doing this we were following of practice that every railroad in the country has followed for at least 40 years when it’s faced with a strike or some other emergency situation.

Now —

William J. Brennan, Jr.:

What — what happened [Inaudible]

William B. Devaney:

Mr. Justice Brennan, we say that the agreement is there.

We say in the first place that wheel doesn’t change it’s —

William J. Brennan, Jr.:

[Inaudible]

William B. Devaney:

It’s — we say suspended.

William J. Brennan, Jr.:

I mean, for example [Inaudible] I gather that you don’t — they’ll have a duty to bargain over the issue which was brought on the strike.

William B. Devaney:

None whatever Your Honor.

William J. Brennan, Jr.:

There’s none.

William B. Devaney:

We — we do not question that.

They clearly have that duty, very — that’s right.

William J. Brennan, Jr.:

Right.

If that bargaining process resulted in a settlement of the wages, would you also have departed over the rest of the concerned with the agreement or they — the one you settled away these issues that [Inaudible] they strike again and the men goes back to work.

In all other respects [Inaudible]

William B. Devaney:

Well, Your Honor the — at anytime the strike is settled, the agreements then become full blown, fully applicable and must without question be complied with in every respect.

William J. Brennan, Jr.:

So that your position really is only during the continuance —

William B. Devaney:

That —

William J. Brennan, Jr.:

— to those determinations.

William B. Devaney:

That is correct.

William J. Brennan, Jr.:

The condition herein [Inaudible] so that you may in a factual manner operate the railroad [Inaudible]

William B. Devaney:

That is precisely our position Your Honor.

Earl Warren:

Now, may I ask this Mr. Devaney?

In view of the changes that you have made in the rules of the agreement in order to sustain your position on the wages.

If you subsequently agreed with the railroads on wages, I mean with the unions on wages, would you then be entitled to bargain with the unions again on all of the other provisions of the contract or would those come back automatically, if you settle this particular phase of the agreement?

William B. Devaney:

Your Honor at any time, let us take the strike which began strictly as a wage dispute.

Now, just for clarity so that they’ll understand the possession of a railroad, the Florida East Coast was not a party to the national handling.

And the earlier recommendation of 10.28 cents was made by the board before which the Florida East Coast didn’t appear, didn’t participate in anyway.

We weren’t parties to that national bargaining.

Now, when they did go on strike the issue at that point was at 10.28 cents per hour.

Now, if we had settled and been to settle that dispute and again let me say the bargaining continued in 1963 on that dispute and it has continued since that time.

There’s been no failure, no allegation that there’s ever been any failure on the part of the railroad to bargain in good faith and to fulfill this obligation.

But had we settled, certainly had we settled before the replacement issue came into being at all, I have no doubt that this would have settled the entire dispute.

The temporary practices that were — that we had to follow in that immediately upon the cessation of the strike.

They had no permanents at all.

They were not changes in agreements.

They had in no effect whatever on the agreements that existed with these judgments.

We have never denied, we’ve never taken a position that in an agreement can be changed in anyway.

That is a permanent agreement can be change as in anyway except going through all the procedures of the Railway Labor Act.

Earl Warren:

Well, I wondered if you could answer my question a little more specifically.

Would the settlement of this strike on the — on the wage problem which you present here also keep intact all the other provisions of the bargaining agreement?

William B. Devaney:

Oh yes, indeed Your Honor.

Earl Warren:

You wouldn’t have a right — you wouldn’t have a right to — to renegotiate all those other — those other provisions.

William B. Devaney:

We would have the right, Mr. Chief Justice to give a notice at anytime and to proceed to negotiate about changes, but —

Earl Warren:

Yes.

William B. Devaney:

— it would not have any effect until you’ve gone through all the procedures of the Railway Labor Act on that notice.

Earl Warren:

You wouldn’t have the right to say when the — when you agreed on these wages now because you violated your agreement is struck we want to negotiate all these other — other phases of the contract before.

You’re entitled to go back to work.

William B. Devaney:

No, Mr. Chief Justice.

There would be no such right.

Earl Warren:

Yes.

Earl Warren:

I just wanted to —

William J. Brennan, Jr.:

Then what — what [Inaudible] settlement of the wages [Inaudible]

William B. Devaney:

That is correct, Mr. Justice Brennan.

The question of the replacement is simply this.

On the Florida East Coast, they have no — they have no super seniority, that question had never been present.

They were employed contrary what Mr. Bender may have implied.

They were employed in accordance with the agreement as far as their seniority, their date of hire, and so forth is concerned.

They have no special protection.

The only thing that they are not subject to having done to them is to being pushed out just automatically because the strikers would not have an absolute right of displacement.

Over a period of time, I think it’s perfectly clear that yes, they do gradually displace.

Every time a job changes, there’s a vacancy, a promotion, anything that occurs that you have to re-advertise under the agreements that the vacant job, it is bid on by everybody who has seniority.

Now the strikers have continued to earn seniority during the whole period that they’d been on the strike.

So that — that no matter how junior they may have been before the strike every one of the strikers will always have more seniority than the replacements, but it will have to be on a bidding basis not an automatic displacement right.

They do not have that.

William J. Brennan, Jr.:

Well, may I ask you just one question?

Assuming again [Inaudible] have the [Inaudible] a negotiation settlement or wages, was there anything about the agreements which would prevent a negotiation of the issue of what strikers in place replacements — for what replacements [Inaudible] as they are —

William B. Devaney:

This —

William J. Brennan, Jr.:

Would that be subject to bargaining of what is all going through deviation of the [Inaudible]?

William B. Devaney:

Yes, but that is a subject for bargaining and there has been some bargaining about this variation.

It certainly is a question about which the parties not only are afraid to bargain, but I think the duty to bargain would require that they both sit down and talk about that in the same manner that they would in the other proposal.

William J. Brennan, Jr.:

That probably would be urged [Inaudible]

William B. Devaney:

It has proved to be so up to this point that it is quite good.

William J. Brennan, Jr.:

And if you don’t agree what the [Inaudible]

William B. Devaney:

There has been no notice, no separate notice given by the unions concerning this right because again like some of the other cases in which super seniority has been involved, they have all the seniority.

It merely is a question of their waiting until they have the right and do bid on the job.

I mean, jobs are bid daily.

So that over a period of time, yes, every time a job is bid the most senior bidder gets the job and the strikers are the ones who have been on the strike, will of course, always have the greater seniority.

William J. Brennan, Jr.:

What would be the settlement for that?

Could every job of the railroad be [Inaudible] tomorrow morning?

William B. Devaney:

No.

William B. Devaney:

No, they would not be.

That’s why I say there is no displacement right but they have the right to bid on any job as they have had throughout the strike.

Every job that has been opened by the Florida East Coast has been advertised.

Everyone of these people has had the right to bid on every job that we have reinstituted since the strike began.

William J. Brennan, Jr.:

Well, if you hired ten replacements [Inaudible] and that’s all you needed to do, in some of the strikes on wages — tomorrow morning those ten would continue to note that I gather until such time if it’s in the basis — one of the same job [Inaudible] —

William B. Devaney:

That is correct, Mr. Justice Brennan.

That is correct.

Potter Stewart:

You can bid only for vacancy — a senior man can bump a junior manager.

William B. Devaney:

That is correct.

There is not a direct bumping procedure.

There are circumstances where this maybe the result, Mr. Justice Stewart, but it is not an automatic bumping procedure.

For example, if a person has been off on an authorized leave of absence or has been sick, when he returns he would have the right to exercise seniority to job which had been bid during his absence.

Potter Stewart:

During his absence —

William B. Devaney:

This in turn would permit —

Potter Stewart:

[Inaudible]

William B. Devaney:

That’s right.

There are other — there are other instances where this would be true but it’s not an across-the-board right to bump.

Byron R. White:

But you’ve ignored the — you’ve ignored the fact lines in the replacements as I understand it.

So you’ve hired people to do jobs that never existed before in just that form.

Now, what if you hired somebody to do a job that included work that’s — no one else have ever done before in that particular combination, and then the strike is settled.

And then you say the agreement was back to its original form with the same job descriptions and classifications.

Then what happens to that replacement who doesn’t fit in any of those classifications?

Does he stay on the job?

William B. Devaney:

Oh!

Mr. Justice White really this is an exaggeration of what has happened.

Byron R. White:

You say you haven’t done that?

William B. Devaney:

No.

Every man who had been hired — has been hired as an electrician or he’s a machinist or he’s a car man what we have had to do is we have a car man but he’s not the car man as I recall as a four-year apprenticeship training program.

Now, the man comes in.

He has had an experience or we start him out somewhere in this apprenticeship program.

William B. Devaney:

Now, he comes to a job or part of that he can’t do because he’s not experienced, doesn’t know how to do it, it maybe that the man who is a machinist, is working as a machinist will have to be called upon to do this five minutes or this hour of welding or whatever the job is.

But the machinist is basically hired as a machinist.

He works as a machinist; he’s paid as a machinist.

The car man is hired as a car man, he works as a car man and he’s paid as a car man.

So he’s not hired to do this strenuous job that never existed before.

He really is doing basically what always was done.

But because we haven’t had this —

Byron R. White:

— all of your people — all of your replacements whatever work they do nevertheless they’re called or they fit within the existing classification.

William B. Devaney:

That is — that is exactly correct.

That is precisely what we have done throughout.

Tom C. Clark:

You had 2,000 employees to put that?

William B. Devaney:

We had approximately, that’s slightly less than that Mr. Justice Clark.

Tom C. Clark:

Yes, that number?

William B. Devaney:

No.

I believe the — the number is closer to 970, but it is more of 600 at present time.

Tom C. Clark:

Yeah, but you run in the railroad — you did some good [Inaudible] schedule?

William B. Devaney:

And Mr. Justice Clark, this is correct but one slight exception.

There is not as much as a passenger business because during the interim period since the strike began, the traffic is simply not there.

We reinstituted the passenger service on August the 2nd, 1965 and I believe in five months that it has been operating, they’ve carried approximately 4800 passengers.

This compares — well annualized this would be — this would be about 10,000 passengers a year compared to over 450,000 passengers a year in some of the prior years.

Tom C. Clark:

What’s the definite [Inaudible] 1,100 did not — what happened to them?

William B. Devaney:

Well, the — a few of them were involved in the passenger that is the broader passenger business.

But many of them were replaced, if you will, by new techniques or new or automation if you will.

They have changed the requirement particularly in the maintenance of weigh departments.

This is where the change has been the most dramatic.

The railroad in the last three years has carried forward the program of modernization of its railroad by going to the central traffic control.

It is currently in installing welded rail.

It has done many things that has reduced the number of people required for the maintenance of the railroad.

Tom C. Clark:

Would you need that —

William B. Devaney:

We would not need as many people as we had in the past.

Earl Warren:

May I ask you if an operating your trains at the present time, do you use the same number of employees on the train that you use under the collective bargaining agreement?

William B. Devaney:

You mean on the operating crew, Mr. Chief Justice?

Earl Warren:

Operating crew, yes.

William B. Devaney:

With the trainmen, Mr. Chief Justice, the — the 1959 rules as to them replaced and to effect on February 25, 1964.

This has brought about a change insofar as the distance that a trainman can be operated.

And instead of using three trained crews from Jacksonville to Miami on the through freight runs, we now can use one crew that would go the entire distance.

So that has changed that number.

Earl Warren:

That’s the same number of — same number of trainmen you use.

William B. Devaney:

Well, the 1959 rule —

Earl Warren:

I mean — I mean on each crew regardless of how — how far that —

William B. Devaney:

That’s correct.

Earl Warren:

So you use the same number.

William B. Devaney:

There had been no — there has been no change from our past practice as far as the number of people and the crew —

Earl Warren:

How about the engine crews?

William B. Devaney:

You mean the engineer and fireman?

Earl Warren:

Yes.

William B. Devaney:

On the engineer and the — the fireman, there has been no change on that.

We still use the same number of engineers that we use prior to the strike.

Now, it is of course our position that once the strike began, the agreements were no longer in effect and within the exercise of self-help, the railway was free to utilize the manpower and means at it’s disposal to operate.

Now, the basic claim of the government as we understand is the railroad was not entitled to get back into operation except in strict compliance with all agreements of the 21 different labor organizations involved.

It is their position that the railway was not entitled to use supervisors to operate a train.

Now, their contention really comes down to the fact that if we had hired the first man or the machinist that we can only use him as a machinist.

And no matter what the need and even if he were the only person who was qualified and available to do some other job we couldn’t use him for that job.

Potter Stewart:

I thought their contention and maybe I’ve misunderstood it is even more extreme than that that you couldn’t hire him as a machinist, you have to hire him as an apprentice.

William B. Devaney:

Well, I think that Mr. Justice Stewart is correct.

I think the —

Potter Stewart:

In our study, that would be the logical result.

William B. Devaney:

And may I say that we have not — we have not attempted to hire a person who is not qualified to bring him in and hire them as a journeyman.

We have not done that.

The person must be qualified if he is hired as a journeyman, but because he’s not a journeyman we do have to hire him somewhere within this apprenticeship training program.

William B. Devaney:

Now there are age limitations under the agreement, you can’t be over a given age to enter this program.

We say that obviously if you have to get people, you have to get what you can and you put them in, you slide them in based on their past experience, where they belong in this apprenticeship program and then you go forward and train him here.

Now —

William J. Brennan, Jr.:

How far [Inaudible] beyond what the District Court has said you may do, part of the — how much further do you want to —

William B. Devaney:

We felt in the first place, Mr. Justice Brennan that the — that the fallacy of the District Court in the first place was to tie the hands of the carrier by saying that you have no flexibility to meet any condition that comes up.

You must come to the Court and get prior specific approval before you can make any deviations from the agreement.

What we said was, you say “What did we want specifically?”

There wasn’t anything that we — we felt other than what we listed in our petition that we had to have.

William J. Brennan, Jr.:

But then [Inaudible] do you want to go so far as the [Inaudible] the arrangement of this type — the agreement shall be completely sustained?

William B. Devaney:

We want to go only to the extent, Mr. Justice Brennan, that if we are required to deviate in some manner from those agreements in order to operate that we must have the right to do so.

And we don’t feel that it’s reasonable to require the railroad to come in with a petition and a hearing and a prior determination before you can meet that emergency.

William J. Brennan, Jr.:

[Inaudible] that’s included there, that you want — and you want to be allowed if in your business argument — upgrading the railway and you must be so in the strike circle to the part of anything that —

William B. Devaney:

Well, I think that it probably does mean that but it does not mean that they do not have both a full — a complete and an adequate remedy for what we have done, every other railroad has it.

What the District Court is doing here is telling the Florida East Coast during a strike where we’re faced with the shortage of manpower that you can’t do whatever the other railroad does as a matter of everyday business course.

And that is, every other railroad if there is some problem that comes up, it goes ahead and it meets that problem.

Now if it is used to supervisor or if it’s crossed the craft line and if there is a claim, the claim goes to the adjustment board.

This is where we say that all of the claims belong.

And if there is — if the Court of Appeals were right and if these agreements are not suspended then we say that these disputes belong in the adjustment board.

That is the body that Congress has created and it’s a body that this Court has consistently recognized as having the exclusive jurisdiction.

William J. Brennan, Jr.:

[Inaudible]

William B. Devaney:

Your Honor this was — it was correct.

There has been a backlog and as — as you undoubtedly notice that one of the matters that is now before Congress to permit or to require other party to request the appointment of special board who helps speed up the decisional process.

Byron R. White:

Are — are you really suggesting that — that all of these things you want to be free to do are minor disputes merely — merely grievance type things under the contract.

I would think that the — what you say that some of them wouldn’t be subject to the whole this kind of an adjustment.

This is really a major change in the contract.

William B. Devaney:

Not major change Mr. Justice White.

What we are saying is that because of the strike itself and the emergency that was thrust upon the railroad that we have a right of self-help and try to operate and we’re saying that if there are claims that we have not complied with the agreement that the adjustment board is a proper body to adjudicate those claims.

Byron R. White:

No matter what kind of a change is instituted, whether it’s minor, major, or anything else?

William B. Devaney:

But there aren’t changes in the agreement, Mr. Justice White.

They don’t change the agreement no matter —

Byron R. White:

Then what is the adjustment board got to do with it at all?

William B. Devaney:

Because if there is not, compliance with the agreement then they have the power to remedy whatever violation has occurred.

I mean look back — look back if you will at the decision that have gone through the adjustment board —

Byron R. White:

Do you mean to say you aren’t bound by the agreement then — that if the adjustment board found you had violated it, they have to remedy it?

That’s the — the degrees of waiting your position.

William B. Devaney:

Well —

Byron R. White:

You’re able to be free to violate it.

William B. Devaney:

That’s — our first position is that — our first position is precisely that the strike suspends or creates an emergency condition whereby these agreements are not affected during the period of strike.

That is our first position we say, but if we’re wrong about that —

Byron R. White:

We’ll you have to stipulate —

William B. Devaney:

But if we’re wrong about that then the Court of Appeals was wrong in telling the District Court that you can interpret and imply these agreements.

Now, as far as the — as far as the suspension of the agreements, Mr. Justice White, we have submitted as a supplementary reply brief the decision of the Second Circuit Court of Appeals in the Eastern Airlines case.

And we submitted this for the simple reason that this illustrates very, very clearly that —

William J. Brennan, Jr.:

Is that red one?

William B. Devaney:

That’s red one, yes, Mr. Justice Brennan.

This illustrates very clearly that there is no doubt whatever that when a strike occurs as it occurred in the Eastern Airlines case something happens to the agreement.

Now, here in the Eastern Airlines case, Eastern had an agreement with the pilots.

They had a separate agreement with the flight engineers.

They bargained on a reopening notice not to cancel the flight engineer’s agreement but to reopen it, it doesn’t reach the agreement and in 1962 the flight engineers struck.

Now, at that time recall that they had the contract with the Eastern and they were the duly designated representative of the class or craft of flight engineers.

The strike occurs.

Eastern has closed down for about a month.

Eastern reopens using as flight engineers, pilots furnished by the pilots union who’s been qualified as engineers plus a few of the returnee engineers and moreover, it doesn’t just go back to work with the replacements.

It then enters into a contract without the pilots union covering the work to be performed by these replacement engineers.

There isn’t any doubt that absent the strike Eastern could not have entered into an agreement with a different union covering the class or craft which the flight engineers had previously represented.

Byron R. White:

[Inaudible]

William B. Devaney:

So far as it’s shown, Mr. Justice White, they were — I don’t know.

We know they were different to this extent but instead of their being engineers and having the — the license that the engineers had they now have the license that pilots have.

Byron R. White:

Do you think they could do some systems of [Inaudible] not to hire them maybe not to [Inaudible]

William B. Devaney:

That —

Byron R. White:

Not [Inaudible]

William B. Devaney:

That is correct.

That is exactly correct.

And it did this because as the Court — the Southern District of New York found not once but three different judges in the Court of Appeals for the Second Circuit has found in three different occasions that after the strike began, the agreement between Eastern and the flight engineers was no longer in the agreement.

Now, the impact of that decision is further emphasized and underscored by the decision of the same circuit in the Ruby case which is cited in their opinion, Ruby versus American Airlines which involved the same, essentially the same agreement although it was with different airlines between the flight engineers and American, and the agreement between the pilots and American.

Again you have to bargain.

In the American case, it differed a little bit because the pilots and the flight engineers on American got together and they signed or issued an agreement.

Then it was the pilot’s international union that it refused to approve this agreement that the American pilots had negotiated.

So, the — the local pilots on American when the international refused to go along with the package they had bargained sought separate representation.

Well at this point, the flight engineers asked to continue bargaining with the American.

And American said, “No, you have signed this agreement and have initialed it merging your bargaining rights in with the pilots.”

Second Circuit said “No, there’s no strike here and American must continue to recognize and bargain with the flight engineers until there is a final consummation and a final change that changes or wipes out the bargaining rights with the flight engineers.

So that there is no doubt in our judgment, look at the Court cases, look at the decisions of the adjustment board itself, the adjustment board has said over and over again that when a strike occurs it creates an emergency condition that justifies the carrier in performing the work with supervisors or in whatever way it can.

We say that — we believe the strike on Florida East Coast have that effect.

Byron R. White:

[Inaudible]

William B. Devaney:

Yes, we have Mr. Justice White.

They are all cited in our brief and are detailed in some respect in our reply brief as to what the facts are.

They began on the reply brief at page 20 — 24 —

William J. Brennan, Jr.:

Are those — were those cases with this that this causes [Inaudible] questions would rather search schemes, that is for the railroad to operate were charged with this violations of the agreements and that the court held no they were not violations —

William B. Devaney:

That is essentially correct.

I believe that the cases by and large involved a strike by one union, another group who said “We’re not on strike.”

We had a right to perform this work and it had been performed by supervisor or by somebody else.

So that yes, it was the expediency that the railroad was put to have the work performed.

William J. Brennan, Jr.:

And the adjustment board [Inaudible] did this as a matter of interpretation within [Inaudible]

William B. Devaney:

Interpretation of the agreement is not really the — the precise characterization.

I think it would be more proper to say that it was an interpretation of the overall — of the implied condition of all of these agreements.

Byron R. White:

Well, it may not run through this — the board [Inaudible] as a matter of interpretation speaking of interpretation that would take it to be.

William B. Devaney:

Correct.

That is absolutely correct.

Byron R. White:

Without having this — under the one roof or the other?

Byron R. White:

In the [Inaudible] that had mentioned the board must say this expedience does not violate the [Inaudible] an emergency [Inaudible] is that it?

William B. Devaney:

That is correct.

That is quite correct.

Earl Warren:

I understood you to say a little while ago that your practice during the strike has been used by all the railroads in the country for the past 40 years when they operate under strike conditions.

Have you any idea how many strikes have been of that kind in the last 40 years where they operated the railroads during the strike and adopted this policy?

William B. Devaney:

No, Your Honor.

I do not and the adjustment board reports which are reviewed both in our reply brief and in the reply brief of the association of American Railroads strikes over a period, I believe 1955 are reviewed in some detail as well as the early history of carriers who’ve operated during the strikes.

But all of them have done essentially what the Florida East Coast has done.

You use your supervisors to get off the ground.

You use some other volunteers that these people who are performing jobs out of their regular class or craft where they can do other jobs and you hire replacements and you train them as quickly as you can.

Now, most of the strikes Mr. Chief Justice in the railroad industry, in recent years have been of relevantly short duration.

It was conceded that the Florida East Coast strike is unusual in that regard.

It is longer, and has been longer than I believe any other strike in the railroad industry has been.

So that that is a — that is a difference.

Now, prior to the Florida East Coast strike, one of the most severe nationwide strikes was the 1922 Shop Craft strike.

Earl Warren:

19 when?

William B. Devaney:

1922 which —

Earl Warren:

22?

William B. Devaney:

1922.

Now this was a nationwide strike.

And during the Shop Craft strike of 1922, the — it had a very, very serious impact on the economy of the country.

There’s no question about it.

But during this strike many, many of the carriers as the AR has pointed out in their reply brief provided some level of service.

Again, in 1946 —

Earl Warren:

With the laws of — with the — of the laws of the same as now?

William B. Devaney:

No.

The railroad — the Railway Labor Act was not passed until 1926 Mr. Chief Justice, four years later.

Now, we do say, and I think that it might be appropriate at this point to simply to call attention to the fact that the Railway Labor Act was passed in 1926, four years after the beginning of this nationwide strike.

There can be no doubt that Congress had this specially in mind.

It had the clearest example of a paralysis of the entire railroad transportation industry and the fact that carriers did provide service during the period of strike and yet in the Railway Labor Act which had passed in 1926 although it puts status quo provisions at various points before he reached the right to strike, there it’s not one word in the legislative history, there isn’t one word in the statute that indicates that Congress did intended to or had any intention of placing any limitation on the right of self-help once the strike began.

William B. Devaney:

Everything in the Railway Labor Act was designed to try to prevent strikes, but if it did not succeed in preventing strikes then the parties will allow the self-help to resolve it — their differences.

Earl Warren:

Had there been any significant railroad strike since that time or what —

William B. Devaney:

Oh yes.

Earl Warren:

— or was it the same thing?

What’s one for instance?

William B. Devaney:

Well, one that comes to mind immediately Mr. Chief Justice was the nationwide strike which was called in 1946 by the Engineers and the Brotherhood of Railroad Trainmen.

Now, this was unusual in one respect in that there had been an initial strike date set and in anticipation of this original strike date, the President of the United States seized all of the railroads in the country under a statute which was then in effect.

The original strike was postponed.

So that when the strike actually took place in 1946, the Government was under control of the railroads and the strike was in effect against the United States.

Now, not only did the carrier after carrier and we did set forth in our reply brief a reference to the survey in the railway age of the different railroads that provided service during this period of strike.

I believe this strike lasted only two days but it was nationwide in a great significance to the economy of the country.

Now, not only did many of the railroads try to operate by using supervisors, but it was done at the behest of and with the complete knowledge of the United States itself.

Then there was the strike on the LAN which lasted 47 or 48 days.

I believe that was in 1955.

There had been other strikes on airlines as well as carriers.

The numbers of strikes are again detailed in the reply brief of both the Association of American Railroads and our reply brief.

The 30th annual report of the Mediation Board for 1963 and 1964 for example refers to the Eastern Airlines strike which began June 23, 1962, flight operations were resumed in September of 1962, and the strike on the Florida East Coast which began January 23, 1963.

The 54-55 annual report refers to the LAN strike.

In each of these, the Mediation Board simply reports that these carriers resumed service or maintained service during the period of a strike.

The most recent strike what I recall referred to in the — the AR — initial brief is the Houston Terminal Authority.

This lasted well over a month, I forgot the precise number of days, but its well over a month.

And again they operated throughout the period of the strike by using supervisors and by hiring replacements.

Now —

Byron R. White:

What was the — during a strike like this who is the representative of your employees or do you recognize if there is one?

William B. Devaney:

Oh!

Yes, Mr. Justice White.

We recognized that each one of these unions continue to represent the employees —

Byron R. White:

Which employee, the ones on the strike or the ones who are working for you?

William B. Devaney:

All of them — all of — we haven’t –we have never set the —

Byron R. White:

But you don’t — but you don’t think there’s a duty to bargain about — that you say —

William B. Devaney:

Mr. Justice White —

Byron R. White:

They’re the representative but during the strike not to bargain with your purpose?

William B. Devaney:

No.

We don’t say that Mr. Justice White.

We say that these — these emergency conditions that we have to resort to that this is a matter of self-help as a matter of right of the —

Byron R. White:

I understand —

–carrier to put them into effect.

And it does not require a bargain.

Alright.

William B. Devaney:

Now on everything else we say he has the — he has a positive and absolute duty to bargain with the union.

William J. Brennan, Jr.:

So –

At least it only goes with the settlement of the strike.

As Justice White suggests you wouldn’t bargain on wages and hourly rates which is originally involved in the replacements that because of the emergency conditions you say, you have to have some flexible — flexible in anyway —

William B. Devaney:

That’s true Mr. Justice Brennan but consider the — consider the impossibility of going forward on the basis of bargaining about these emergency changes or the apprenticeship program.

In the first place, I think that it is perfectly correct as has been suggested that the union who calls a strike is not going to agree to a weight for us to beat the strike.

But if they did how long, how long would it take?

The 1959 rules dispute which was before this Court in the P&O case started in 1959 and the decision of this Court wasn’t until 1963.

So if it’s a year — if we — if we exceed all speed records for having a dispute under the — the Railway Labor Act it’s perfectly obvious that you could not bargain, and you could not negotiate, and could not complete the procedures of the Act in order to — to resume the operation of railroad for an indefinite period of time in the future.

William J. Brennan, Jr.:

Well [Inaudible] as Justice White suggests that of course you recognized that you need to continue bargaining with the union, but that it’s limited to the issues involved in the strike and in settlement and certainly does not include any [Inaudible] workout arrangements that maybe involved with the replacements.

William B. Devaney:

That is — that is correct.

Byron R. White:

Now, how about the — how about grievances?

Those —

William B. Devaney:

You would continue, Mr. Justice White.

Byron R. White:

Do you think — do you think that the contract continues for purposes of contacting grievances?

William B. Devaney:

We believe that they would have the right to file any grievance that they might desire to file.

Now, if that involved a condition which the railroad — railway had —

Byron R. White:

Yes but that involves kind of a settlement on the property?

William B. Devaney:

Well yes, there is a procedure for that.

Byron R. White:

Well I know but who would you talk to about the agreements, the union or do you talk to somebody among your replacements?

William B. Devaney:

No.

William B. Devaney:

If —

Byron R. White:

What has been that [Inaudible] if you’re having grievances [Inaudible] —

William B. Devaney:

For — for a very long period of time, Mr. Justice White, the unions were not processing grievances on behalf of replacements.

In more recent months that they have —

William J. Brennan, Jr.:

— this type of [Inaudible]

William B. Devaney:

That is correct.

Byron R. White:

Are they refusing to do so?

William B. Devaney:

I do not know the answer, Mr. Justice White where a replacement has asked the union to handle his case and it had been rejected.

I can only say that in the beginning they were not presenting any grievances on behalf of the replacements.

In more recent months they have been.

Some of the unions have been, not all of them but some of the unions have in more recent months been presenting grievances in representing the replacements.

Byron R. White:

Does all of your — I take it to — you also want to be able to — you want to be able to say that the union Shop provision is suspended during the strike.

William B. Devaney:

This was a — we felt —

Byron R. White:

As I read your brief I take it that you do.

William B. Devaney:

Well, this was a — we ask as one of the — we ask as one of the — the conditions of the District Court that the District Court say that the union shop provision was not enforceable unless and until such time his membership was offered to the replacements.

Now, we weren’t saying — we weren’t saying casted out, we were saying here is the history of the discrimination from the day the strike began.

If you or your former members who came back to work, you have five, you are cast out of the union, the replacements who have applied for membership not one of them, not one person has ever been taken into the union.

Now, we say that the — we believe that the Court of Appeals in the Trainmen case because the same issue was raised there and when the Court of Appeals said that the corollary to the right of the union to strike was we had the right to operate and we have — it was not a violation to hire replacements, so we had no duty to discharge unless or until membership that was offered to them without discrimination.

We said to the District Court that we think the Court of Appeals meant that if these people were being discriminated against that they shouldn’t be subject to discharge until membership was offered to them.

The District Court did not agree with this and it did not contain this provision and to that extent you are correct.

We did take the position that if these people have to be subject to the union shop agreement that it should be subject to the union making membership available and if it isn’t willing to do that, then the agreement as to that should not be enforceable during the period of the strike.

Now if I may refer to one last matter which the unions have raised, it is this question of the Toledo, P. & W.R. and Eastern case.

Now, we believe that this has no application for any purpose.

To begin with we have not asked for any equitable relief.

It’s our position that the right of self-help is a legal right that this all we have asked for as all we feel we’re entitled to.

But second, the Toledo, P & W.R. case itself makes it perfectly clear that the Court in that decision was confronted with a situation where the carrier had refused arbitration prior to the strike.

Now, the exchange of correspondence is set forth in Appendix A of our reply brief.

It clearly shows that Florida East Coast before the strike simply said that we believe your offer of arbitration is premature that there should be further mediation.

The union came back and said, “We don’t — we reject the suggestion of mediation.

We reject arbitration.”

William B. Devaney:

At that point, the Board listened to the dispute.

Later Florida East Coast even said, “Well — to the Mediation Board, we believe that there should be an emergency already created.

There was no such recommendation and the strike began.

Now, Toledo says, as I read the case clearly and without any provocation that it applies only where the procedures of Railway Labor Act including the proffer of arbitration has been rejected.

There was no rejection prior to the strike which are the procedures of Railway Labor Act by the carrier.

It was a rejection by the unions of arbitration.

We do not believe that the offer of Secretary of Labor were some four months after the strike began to help — to bring about a settlement means that even if equitable relief were asked for that the refusal four months after the strike had began and after we got back into operation it meant that we have not made use of the procedures of the Act.

So that we say that the — that the argument really has no application to this case.

We believe that — that however it’s construed that it would not be applicable by way of limitation on anything that Florida East Coast has done.

Thank you very much.

Paul Bender:

Mr. Chief Justice, may it please the Court.

I believe I have about nine or ten minutes left and I understood under the arrangement that we had that the rebuttal would be 15, I will try to compress it within the time left so I will move fairly fast.

I think that at this time of the oral argument, the point that we would like to address ourselves to right at the initial outset is where what has been conceded by both sides does the exception to the Railway Labor Act spring from.

Where did the Court of Appeals find the basis for creating the doctrine which is under review here, the so-called doctrine of reasonably necessary exceptions to the Railway Labor Act?

I think everybody concedes the FEC, the Association of American Railroads, the Government and the unions, that what was done here by the FEC could not have been done but for strike conditions.

And the plain categorical language of Section 2 Seventh of the Railway Labor Act makes this clear.

And I would like to refer to that, it hasn’t been mentioned in so many words and it’s very short and it’s very clear.

And it says “No carrier, its officers or agents shall change the rates of pay, rules or working conditions of each employees as a class as embodied in agreement except in the manner prescribed in such agreements or in Section 156 namely Section 6 of the Act.

Now, the Court of Appeals for the Fifth Circuit had said that doesn’t apply because of strike conditions because it bears too heavily, too hard on the railroad under strike conditions.

The Court of Appeals does not refer to any language in the Act to support this exception.

The Court of Appeals does not refer to any legislative history to support this exception and we submit that the mere fact that it is contended that it bears too heavily on the carrier faced with the strike conditions is not in law sufficient to create the exception here found to exist by the Court of Appeals.

Now, there are three basic positions in this case.

One position is that the Act applies under strike conditions just as it applies when there are no strike conditions.

That is the Government’s position, that is our position.

The other position is the position of the American Association of Railroads and the FEC that under strike conditions even though it may be with just one union this gives the railroad the legal right as Mr. Devaney referred to it to totally suspend all of its contracts with all of its crafts, in this case there are 21 different crafts, 21 different contracts.

That is the counter position.

In between the Court of Appeals who said “No, you cannot totally suspend the provisions of the Act, but we will permit an application, the railroad to come in, in the nature of equitable relief and seek certain limited exceptions where it makes a showing that it is reasonably necessary for the railroad to do so in order to operate under strike conditions.

We say the Court of Appeals decision is wrong because it spins out of the whole clock an exception into the Railway Labor Act which readjusts the economic balance struck by that Act by Congress.

We say that the position of the railroad is wrong because it is far more extreme and even the limited exception or gloss put on the Act by the Court of Appeals and because the only actions of the railroad in this case shows that there has never been an understanding either in the industry or by this particular carrier that contracts are totally suspended under strike conditions.

Three concessions have been made by counsel for the railroad in this case which are totally inconsistent with any idea of contracts or the Act being suspended during a strike.

Paul Bender:

One is that the strikers earned seniority.

How can they earn seniority if the contracts are suspended?

One is the grievances maybe processed during the strike as they are being done on the property today.

How can you have grievances if the Act or the contracts are totally suspended?

The third is, if the union is the representative of the replacements — well, how can that be if the Act or the contracts are suspended?

And we would like to point to something which we think is even more clearly about what the understanding of this particular carrier and the railroad industry is generally and that is the Section 6 proposals involved in this very case.

The proposals made by the carrier in September of 1963, eight or nine months after this strike began and I would like to refer to page 44 of the Exhibit record where one of those Section 6 notices is set forth, and page 254 — excuse me, page 416 of the Exhibit record where another of those Section 6 proposals is set forth and this is what they say.

They say “Article 3, “We propose a bargain with you about putting in to our collective bargaining contract Article 3 entitled work stoppages.”

And then it goes on and there’s a full paragraph here in which it sets out contract provisions that would govern during work stoppages.

Now, how is this consistent with any idea that the contracts or the Act are totally suspended under the Act?

We submit Your Honor that the whole process of the Railway Labor Act, the whole scheme of it is to take disputes and narrowly confine and refine and define them to the point where they become confined rather than expanded.

This dispute started out as a very simple wage dispute.

It got down to the point where the difference between the parties was only 10 cents an hour.

It now involves literally every single rule, rate of pay, and working condition in 21 different contracts on the entire property.

That’s how the —

Byron R. White:

I thought the — I thought the railroad said that once the — the wage matter was settled at the time that — the contractors come back into force that in all of it’s program point —

Paul Bender:

That’s correct Your Honor, but what they did here and what the record shows they did, they put in these conditions of employment the so-called strike imposed conditions of employment, they said they were only to be temporary but actually what they did, they put those in, they codified them and written for them on September 1, three weeks later, September 24 — September 25, they issued Section 6 notices which are substantially the same saying “We want this as the permanent change.”

In other words, what has happened here is that the whole issue has expanded to the point where the mediators involved, labor department throw up their hands.

I think that’s the reason the Government is in this suit is because the whole process of mediation of existing disputes once a strike exists is completely frustrated both by the doctrine of the Court of Appeals and by the doctrine asserted by the carriers in this case.

Thank you.

William O. Douglas:

I gather that you don’t object — do you agree with the Government that self-help is permissible on their wage and notices?

Paul Bender:

Certainly, Your Honor.

William O. Douglas:

Your — your comments only relate to conditions of employment?

Paul Bender:

That’s correct Your Honor.

Now that’s the difference.

That’s the — these airline cases, these Eastern Airline case for example as the first of them shows by Judge Feinberg, the changes made by Eastern Airlines were within the scope of its Section 6 notice, so there had been bargaining on that — on that issue and the procedures of the Act had been exhausted.

Eastern Airlines never attempted to operate contrary to an existing contract.

The question in that case was which contract governed?

It was a jurisdictional dispute but it — Eastern the carrier there always operated in conformity with an existing contract.

Thank you Your Honors.

Earl Warren:

Very well.