Charles Dowd Box Company, Inc. v. Courtney

PETITIONER:Charles Dowd Box Company, Inc.
RESPONDENT:Courtney
LOCATION:Vilage of Kake

DOCKET NO.: 33
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 368 US 502 (1962)
ARGUED: Nov 07, 1961
DECIDED: Feb 19, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – November 07, 1961 in Charles Dowd Box Company, Inc. v. Courtney

Earl Warren:

Number 33, Charles Dowd Box Company, Incorporated, Petitioner, versus John F. Courtney et al.

Mr. Mason.

George H. Mason:

May it please the Court.

The federal law here involved is Section 301 of the Taft-Hartley Act with the subject of consideration by this Court in Lincoln Mills in 1957.

The principal issue presented here is whether Section 301 preempted to the exclusive jurisdiction of the federal courts, that field of litigation involving collective bargaining contracts where interstate commerce would be effective.

The case comes here in the following manner.

I shall refer to the petitioner here, the defendant in the lower court action of the company and the respondent here is the union for convenience.

The union brought a suit to the Massachusetts Court to enforce an alleged collective bargaining agreement essentially claiming a refusal by the company to comply with the terms of an executed agreement, allegedly executed agreement, an improper termination of that contract by the company and sought as relief an injunction against the termination of the contract by the company, specific performance of the entire agreement, a declaratory judgment and damages for the violation of the contract.

The action was brought by the union — International Union, United Steelworkers of America through a representative of the international by the local charted by the international.

On behalf of the organizations themselves and of the individual members of those organizations — for the action can only be instituted as a class suit in Massachusetts, so which does not recognize at the end of the theory with reference to unincorporated organization such as labor unions.

The company filed a demurrer in the action setting up specifically that Section 301 of the Taft-Hartley Act deprived the state court of jurisdiction in a suit between a labor organization and an employer for violation of a collective contract.

The company incidentally denied the validity of the agreement that was in issue and determined adversely to the company.

William O. Douglas:

The validity of what?

George H. Mason:

Of the collective agreement —

William O. Douglas:

Of the whole agreement.

George H. Mason:

Of the whole agreement.

William O. Douglas:

That is it was signed by agents not authorized to act —

George H. Mason:

That was one of the defenses raised by the company as to the invalidity of the — with reference to the validity of the collective agreement.

The company also filed a motion at some stage in the proceedings to dismiss the action for want of jurisdiction alleging the same ground as it did in the demurrer.

The demurrer and the motion was — the demurrer was overruled and motion was denied by the lower court.

A filed decree was entered in the lower court declaring the agreement valid and binding on the parties and directing payment of specific amounts to individual members of the union in the form of wages alleged to be due under this contract.

Now, I might point out here that the original action sought specific performance of the entire contracts which had many clauses in it — with reference to union rights qua union such as recognition of the union, union shop, check off, as well as claiming violation of rights which would result in money damages to the individual members for wages alleged to be due.

But the — by the time the filed decree was entered in 1960, the original contract had expired, so that the question of specific performance of the expired contracts had become moot and the only relief therefore which the Court afforded to the union was to grant the money damages which was alleged to be due under that expired contract or the duration of that contract.

The company appealed from the interlocutory decrees — decree overruling the demurrer of the company in which it alleged no jurisdiction of the state court and from the lower court’s motion to — denial of the motion to dismiss for want of jurisdiction and from the final decree, the Supreme Judicial Court affirmed the rulings of the lower court in essence holding that the state court did have jurisdiction, not withstanding Section 301 of the Taft-Hartley Act that the Taft-Hartley — the three — Section 301 did not establish any exclusive jurisdiction in the federal courts.

Now, it may be of interest on the — as the case arises here that in the findings of fact which are undisputed now in this case, there was a finding in the lower court that the company sells a substantial part of its product and purchases a substantial part of its supplies in interstate commerce.

So I don’t think there’s any question here of whether the case involves one affecting the interstate commerce.

I think that would be considered by both parties.

It found that the company refused to comply with the contract and terminated it before its expiration date, and that the collective agreement for which specific performance was requested, was valid and contained the usual clauses which are incorporated in a collective agreement so that the case is one to which Section 301 obviously applies.

It was brought by a labor organization against an employer for a violation of a contract between these parties expressly.

The company was engaged in interstate commerce and I think that’s undisputed so that this would affect interstate commerce suit conceivably and the suit sought specific performance of the entire contract so that it could not be said that this was a suit to maintain or prosecute uniquely personal rights as distinguished from rights of the union as a union, so that the Westinghouse problem is not yet present.

George H. Mason:

I think it was not specifically that will force money judgments for individual members of the union although that was the final decree entered because the other issues had become moot in the process of the litigation.

Now, the Section 301 and the inquiry I should say here presented follows in somewhat natural sequence from the Court’s — this Court’s decision in the Lincoln Mills case, in Mills’ case in 1957 where at least these phases of Section 301 were determined namely that Section 301 was not a procedural statute, but created substantive rights and established substantive law, and the Court went on to say that it did — created a direction to the federal courts to fashion a body of federal law under Section 301.

And the case further, I think for our purposes in this situation established that there were no constitutional difficulties involved in the enactment of Section 301 granting remedies or establishing a procedure for remedies for violation of collective agreements which were consummated between labor organizations and employers.

Now I think that being in the sense behind this as far as the issues in this case are concerned we come then to the question — the next question in sort of a logical sequence, if Section 301 established the substantive law beyond a mere procedural enactment, permitting a forum for enforcement of collective contracts in the federal courts and if this was constitutionally within the province of Congress to so enact in establishing a national labor policy, then I think it must be assumed that there – if there is no constitutional impediment to the interpretation and application of Section 301 as set forth in the Lincoln Mills case, then it must be assumed, I submit, that it was within the constitutional power of Congress to have granted exclusive jurisdiction for the enforcement of these rights to the federal courts if it so fit which would then bring us to the customary but often difficult question of proving the legislative intent in this respect.

Then it becomes in this case a matter of interpretation of Section 301 as to whether Congress intended or the general pattern of this legislation and the general purpose of it would require an interpretation fairly that exclusive jurisdiction was vested in the federal courts when Section 301 was enacted.

It might be helpful to orient ourselves to read the specific provision of 301 to the effect that Section (a), that suits for violation of contracts between an employer and labor organization representing employees in an industry affecting commerce as defined in this Act or between any such labor organizations may be brought in any District Court of the United States having jurisdiction of the parties without respect for the amount of controversy or without regard to the citizenship of the parties.

And it would seem that the specific statutory language and the general pattern of the legislation would in the first instance be the primary source to inquiring the legislative intent.

And one of the arguments that has been made with reference to this question of whether there is exclusive jurisdiction of the federal courts or concurrent jurisdiction in both the federal and state courts as a result of Section 301 is that the word “may” is used that suits may be brought in any District Court which is not the language of a mandatory exclusive jurisdiction normally perhaps.

But I submit that dramatically the “may” in this statute or in this clause is permissive to the federal courts without regard to the amount of controversy or the citizenship of the parties.

In other words, it’s permissive to the federal courts to act regardless of these restrictions which would otherwise apply.

It is not permissive necessarily with respect to federal jurisdiction vis-à-vis state jurisdiction.

I think this would be a fair use of the — or analysis of the word “may” grammatically in this particular statute.

But going beyond that language analysis, if we look at the pattern of the legislation itself, the Taft-Hartley Act, I think it becomes somewhat clear that where the Congress intended to permit state intervention in labor relations affecting commerce that in explicitly and expressly said so.

For example, there is nothing presently in the Taft-Hartley Act which says that the Board has exclusive jurisdictional or unfair labor practices.

However, it’s now conceded without any possibility of controversy that — and by interpretations of this Court that the power of the Board is exclusive even though that language is not used in the statute.

Now, when the Court saw fit to grant exclusive or rather state power to act, it did so in express language, for example in Section 303 of the act which was enacted at the same time as 301, the language is that whoever shall be injured in his business or property by reason of any violation of subsection (a) which is the secondary boycott provision, may sue therefore in any District Court of the United States, subject to the limitation and provision of Section 301 without respect to the amount in controversy or in any other court having jurisdiction of the parties.

So that when they wanted to grant and specifically say this Court — state courts may intervene in that particular situation, enacted simultaneously with 301, they said or in any other court having jurisdiction of the parties.

They did not use that language in Section 301, enacted at the same time.

Felix Frankfurter:

Mr. Mason, I take it that we start with the fact that Congress didn’t solve this problem for us.

We have to solve it for Congress.

It doesn’t say shall be exclusively nor does it say shall also be in any state or any court having jurisdiction. Is that right?

George H. Mason:

That’s correct.

Felix Frankfurter:

And so we haven’t got a federal employer’s liability problem and we haven’t — Now, what I want to know is have you — you just made a generalize statement.

Your argument boils down to the fact that although it didn’t say exclusively, it meant exclusively and the respondent’s argument was on the fact because it didn’t say exclusively, didn’t mean exclusively, that’s what the Congress is about.

George H. Mason:

Correct.

Felix Frankfurter:

Now, as bearing under — on the resolution of those two contradicted provisions, I myself for instance would be interested to get light on various statutes, various statutes, not only labor statutes — statutes under the — it consists of act Taft-Hartley or the Wagner et cetera, the various statutes in which Congress has fermented litigation, not consciously, but inevitably and I wonder if either you have collected all the relevant statutes as guidelines as illumination in finding — to extracting a purpose either of exclusion or inclusion from the structure of a statute.

Have you done that?

George H. Mason:

I have not made that survey Your Honor.

I am familiar with certain statutes where the problem has risen such as in the Sherman Act or Clayton Act, the patent statutes obviously, the employment liability —

Felix Frankfurter:

We can toss up a coin.

Felix Frankfurter:

We can argue about consequences, pro and con and so on and then I hope there would be a very little talk about the intention of Congress which you evidently didn’t have because it didn’t express it.

So where do we — I would like to have some road map.

That’s what I’m looking for.

George H. Mason:

I think the fact that Congress had no — gave no consideration of the problem as never deprive the Court’s previous decisions from interpreting the statute —

Felix Frankfurter:

No.

I’m not saying I’m the duty.

I’m saying that I’ve got a duty on which — which is addressed in a dark room.

George H. Mason:

Correct and I believe that we have an imprecise statute on that particular question and now I’m looking first at the language of the statute itself, and if you see if that throws — sheds any light upon the —

Felix Frankfurter:

(Inaudible) a very part of it?

George H. Mason:

Well, it takes such a certain distance in this respect Your Honor that for example, I’ve pointed out Section 303 (b) which specifically says, “The courts may bring a suit in any other court.”

Felix Frankfurter:

At some other length, I mean the specific — the specific statute you have to construe doesn’t shed very much light, does it?

George H. Mason:

Well —

Felix Frankfurter:

I don’t mean the specific statute.

I beg your pardon, specific provision.

George H. Mason:

Right.

Felix Frankfurter:

(Voice Overlap)

George H. Mason:

I think specific provision — specific provision does not shed much light.

Felix Frankfurter:

All right and you move on —

George H. Mason:

Then I move on to the general pattern of the act of which this particular clause is applied, which I think is a logical next step —

Felix Frankfurter:

You have a right.

George H. Mason:

— pursuing this inquiry and I find 303 (b) which specifically says, “State courts, action may be brought in the state court.”

I find in Section 10 (a) which gives the Board the power to enforce violations of unfair labor practices, giving the Board the power to see enforcement to the state agencies in given situations, certain types of industries.

There they specifically give this power in 10 (a), in 14 (b), where they want to preserve the rights of states to enforce right to work laws which could have been preempted by the federal statute if it saw fit to do so.

It said no that state federal right to work law shall apply and here is another situation which happened recently perhaps in 1959 under the Landrum-Griffin, the Labor Reporting and Disclosure Act of 1959 when this Court had created a void, a no man’s land in the — as result of the Guss case where the state court couldn’t act.

The state court was barred from acting even though the National Board declined to act and this Court said, “Not withstanding the declamation of the State, or the National Board, the State Board could not act.”

This was a preempted field.

The Landrum-Griffin then corrected that situation in — by adding Section (c), clause (c) to Section 14, giving the Board the right to cede its jurisdiction where it felt the impact on the — when the interstate commerce was insubstantial to the state agency, a power which was not previously — which did not exist previously so that we have here perhaps four different categories or portions of the act where the Congress did specifically and explicitly give power to the state to intervene.

Now, I say this create somewhat of a pattern and not perhaps an overwhelming argument that where the Congress wanted the state to intervene, they said so specifically, even though they did not say in other situations, these powers are exclusive to the federal court, but looking at the pattern of the entire language of the statute, it seems to give some assistance, though not complete argument.

Felix Frankfurter:

Not only that, but the Guss case shows that this Court derived exclusion from policy considerations, consequences of not exclusive.

George H. Mason:

Right.

Felix Frankfurter:

Like in a different field in the interstate commerce field, but then it happened in all case, this Court construed or practically chloroformed the provision which said the common law rights survived because if it has to construe it — if it had to give respect literally to that Section, it would’ve been notified the purpose of the rest of the act.

George H. Mason:

And I think it’s a — the next consideration that I would come to after analyzing the language of the statute, the clause, the entire statute then the policy behind the entire legislation of which this clause is applied.

But before I leave the — the language problem, I might — I would like to call the Court’s attention to the impact of Lincoln Mills’ decision on the language of Section 301.

Lincoln Mills’ decision holds that 301 creates a substantive law and this being a federal law under Article VI of the Supreme Law Constitutional Provision, the states, if they had the concurrent jurisdiction would obviously be bound by this law.

And then you find in Section 301 specifically that in suits brought in the District Court, specifically referring to suits brought in the District Court, the union shall be regarded as an entity, may be sued as an entity.

At any money judgments rendered in the United States District Court shall be enforceable only against the labor organization and not against the individual members.

There are other provisions dealing with the service or process in obtaining jurisdiction over the labor organization, again, in suits brought in the District Courts of the United States.

Now, if we say there is concurrent jurisdiction and that this statute is now a substantive federal law which must be applied by the state courts, I find difficulty in maintaining a consistency between that view and applying the language of the statute which if we carried the — onto the next step would require us to say that the state court then could not render a judgment which would be binding upon the individual members of the union if this is substantive law.

But it’s difficult to me that — to see how you can fairly say that when the statute specifically says, “A money judgment rendered by United States District Court is now going to be interpreted to be a money judgment rendered by a state court.”

The language is inconsistent it seems to me with that view.

So that I — let’s say to maintain — pardon.

Felix Frankfurter:

Well, that was (Inaudible) Mr. Mason is that — although a substantive matter as we play with words, substantive procedure, these are essentially — litigation is to be conducted against whom and Congress would hardly have provided a code of procedural — a code of procedure for the conduct of litigation in all the 50 states and therefore, sub silencio left all those matters to local jurisdiction.

I am not saying that’s a full answer to you but it is — that’s what you’d had to come down to.

George H. Mason:

The interesting thing is that in 301 where they want to make a rule of law of general application without applicability only to District Courts in Section (e), they did talk about agency without reference to whether the problem or issue arose in the Federal Court or District Court.

And this of course brings us to the next problem which this Court probably has already heard about, what about Norris-LaGuardia Act if there is concurrent jurisdiction.

Are we going to say that notwithstanding that Section 301 talks about suits and the District Courts would want to say they apply to the state courts, I am personally fearful of the — of the same interpretive procedure being applied to a determination that Norris-LaGuardia, which particularly and peculiarly and specially restricts United States District Courts in their preventive relief in these labor cases and doesn’t make any reference to interstate commerce is now going to be said to apply in the state courts.

Felix Frankfurter:

I’m not sure I follow you Mr. Mason.

Why — why does the argument opposed — the conclusion opposed to yours implicate the relevance of Norris-LaGuardia, the state courts never occurred to me that it was?

George H. Mason:

Well my —

Felix Frankfurter:

I don’t — I mean never occurred to me that Norris-LaGuardia was applicable to courts.

Indeed states have to pass separate Norris-LaGuardia Act as your state has.

George H. Mason:

That’s true Your Honor.

Earl Warren:

You many answer that after lunch — continue your argument.

George H. Mason:

At the recess, I think we were discussing the application of Norris-LaGuardia to the state courts and inquire was made as to what this has to do with the case at Bar.

It is true that there are baby Norris-LaGuardia Acts in most of the industrial states, but I venture to say that there are many states which do not have a baby Norris-LaGuardia Act.

Hugo L. Black:

But do you think — do you think our decision on this point here necessarily has anything to do with the Norris-LaGuardia Act?

George H. Mason:

I raise the question solely because of the difficulty I found in applying substantive law expressed in Section 301 specifically referable to United State District Courts and saying that would also apply in the state courts.

I raise the Norris-LaGuardia Act for the same reason that if it were true that a statute was specifically restricted or created rights pursuable in United State District Courts could be said to also apply in state courts even though the language is restrictive to District Courts then the same reasoning certainly could be ruled in saying that the Norris-LaGuardia Act which restricts injunctions in the federal courts if it establishes a federal labor policy which is a federal law, and must be enforced by the state courts and apply it, should also apply in the state courts and peculiarly enough in this brief written by the union in this case, the union said that this Court holds for example as we believe it should that Norris-LaGuardia Act precludes the issuance of an injunction against the strike and an action brought in the federal court under Section 301, the same limitation would have to be applied that such an action were brought in the state court.

William O. Douglas:

That’s contrary to what the California Court (Inaudible)?

George H. Mason:

That’s contrary, yes.

George H. Mason:

In McCarroll, the California Court said, the federal law 301 (Inaudible) to this strike or this suit, but we are not restricted in the relief, we can grant.

Since there is concurrent jurisdiction, we can grant an injunction even though a federal court could not if the action were brought in a federal court.

Hugo L. Black:

Is that view point stated in another way mean that Taft-Hartley Act amended the Norris-LaGuardia Act?

George H. Mason:

I think there is a case that was brought up with this term of the Court if I am correct which involved the issue as to whether Norris-LaGuardia Act was effective in a 301 action.

And I think that was — should’ve been argued if it wasn’t the — it was on the list at least in this term.

So the issue has already been raised as to one does the Norris-LaGuardia Act apply at all on the — is Taft-Hartley’s Section 301, did that supersede Norris-LaGuardia and I think the anomaly in this case is indicated and pointed up very specifically by what I just read from my brother’s brief that I suspect that the United Steelworkers Union would prefer to be arguing my side of the case and not decide that the action of litigation places them on — in this case.

Hugo L. Black:

How many cases have there been heretofore?

This has nothing to do with this.

How many cases have there been throughout the country up to date in which this question of exclusive jurisdiction is raised, do you know?

George H. Mason:

Well, there have been two adjudications I know by the federal courts in which this question has been raised.

And as a matter of fact, I believe Your Honor in the Westinghouse case, in the Circuit Court, the Court in that case took the position that the jurisdiction was exclusive in the federal courts.

And this was commented upon, I believe, by this Court’s opinion and without any adverse comment at least, whatever that might signify.

Hugo L. Black:

Have there been enough to know whether the alignment has been the same in all the other cases I suppose.

George H. Mason:

No.

Hugo L. Black:

It has nothing to do with —

George H. Mason:

No.

I know there are two United States District Courts with decisions referred to in our brief which holds that the federal jurisdiction is exclusive.

Felix Frankfurter:

I like your — I like your phrase Mr. Mason.

The accident of litigation (Voice Overlap)

George H. Mason:

I stole it from Your Honor.

Felix Frankfurter:

You call the initiation of a litigation by a plaintiff an accident?

George H. Mason:

It’s an accident as to the position your —

Felix Frankfurter:

Accident for this Court.

George H. Mason:

It’s an accident perhaps from the standpoint of your own philosophic the concepts as oppose to the interest of your client for which whom you’re an advocate.

That’s what I meant really.

Felix Frankfurter:

Are clients in the habit of, I think they’re a console between either a state or a federal court?

I’m just asking that as a (Inaudible).

George H. Mason:

I don’t believe, so I think they look to counsel for that advice Your Honor normally because we were an unwilling party in this case to litigation instituted in the state court.

Felix Frankfurter:

(Inaudible)

George H. Mason:

Yes, Your Honor.

George H. Mason:

So that seems it seems to us that if the specific language of the statute leaves any ambiguity here an interpretation of Section 301 to the effect that federal court jurisdiction is exclusive, makes all the language of 301 consistent.

But when you take the different position that the states have concurrent jurisdiction, then you will have difficulty it seems to me in applying language specifically referable to United States District Courts and I think the Court then must say that this substantive law will have to apply in the state courts and it almost involves, if that is a federal law required by the state courts — requiring the state courts to comply with it that the federal law would be saying to a state court even though you do not recognize in your legal concepts a labor organization, the voluntary unincorporated association as an entity, we will require you in these suits to include in your concept of entity a labor organization as amended, which seems to be going pretty far for the federal law to tell the state court what concepts or legal entities that the law understands and recognizes is insufficient and they must move forward now to another concept.

Felix Frankfurter:

But Mr. Mason, I don’t think this logical argument of yours will serve as an estoppel to Mr. Feller.

If you sue him in the state court assuming this judgment was affirmed, that wouldn’t have estop him not to raise the question that on the Massachusetts law he’s not an entity.

George H. Mason:

It wouldn’t have estopped him from raising the question.

I wonder if the Court wouldn’t be estopped from denying by virtue of 3 — 301 that there was —

Felix Frankfurter:

Take your comprehensive organic discussion and not — they can choose it, but they didn’t.

In other word — in other words, jurisdiction which doesn’t recognize an unincorporated association as a suable entity might have to recognize it for purposes of 301 litigation but for nothing else that ever is litigated in the state.

George H. Mason:

Conceivably but this does not seem to satisfy my sense of judicial consistency.

[Attempt to Laughter]

Now, if the specific language of the state leaves any ambiguity as to the intent of Congress, I don’t think there can be any serious controversy as to what the intent of the Congress was with reference to the entire piece of legislation of which 301 is applied, namely to enact a uniform and comprehensive code of regulation in this field of labor relations and it would seem to us that if we are to have a uniform national code of regulation or labor relations, that that purpose is best served if we vest in the federal courts exclusive jurisdiction to enforce violations of collective agreements.

I think it is difficult and even though the legislature, the Congress in considering this question of 301, discarded a suggestion that a violation of the labor collective agreement be made an unfair labor of practice and they said, “We will leave that issue to the usual processes of the Court.”

Even that position did not remove suits for violation of collective agreements from the general scope and purview of the Act and the purposes it was designed to attain namely to reduce or minimize industrial strike and promote the free flow of commerce.

Now, it’s difficult for me to see how you can separate the contract itself which is consummated through a collective bargaining process, from the collective bargaining process which is designed to achieve that contract.

In other words, the Taft-Hartley Act itself was very far in inserting itself into this collective agreement.

First it says, “Who will be recognized as the bargaining agent for the employees to negotiate this contract and consummate it.”

It then goes on to say, “What will be considered proper collective bargaining and what will be considered a refusal to bargain in the process of trying to achieve this agreement” and they go further in Section 8 (d) (4) and say that a contract once consummated must — cannot be terminated.

Now this is certainly inserting itself right into the contractual obligations of the parties, it can’t be terminated unless certain conditions are followed such as 60-day notice in notifying the federal mediation service and the state mediation service.

And that the terms of that contract shall continue to enforce until the expiration of that 60-day notice period or the termination of the contract whichever is laid there.

So they even add terms to this conditional — to this contract which were not inserted by the parties, by legislation.

Now, the step — the next beyond that and the failure to comply with this provision constitutes refusal to bargain and unfair labor practice.

It seems to me then that the enforcement of that contract which is almost the principal objective of the entire act in its control of collective bargaining must be said to be an integral and intimate part of this whole national policy to achieve a minimum of industrial strife and a minimum of interference with the free flow of commerce.

Of course, this is based under the constitutional question which is already been decided, but it is our contention that if the purpose of the Taft-Hartley Act is considered with respect to the interpretation of Section 301 that that purpose can best be served, we submit, by holding that implicit in 301 was a design to vest jurisdiction over violations of collective agreements in the federal courts as distinguished in the state courts.

The conclusion just suggested is almost confirmed not quite by the distance that this Court, it seems to me went in Garmon II, when it said that in the case involving what might — which — what was potentially or arguably a protected or prohibited activity under the Taft-Hartley Act.

In that kind of a situation, the state courts were precluded from taking action from intervening because of the possible frustration of our national labor policy.

In other words, there was a design to keep control and the regulation of these labor relations as it affects interstate commerce in the hands first of the board which was most expert.

And I submit further that in the board which was most expert, I submit that in the federal courts we might well contend that they would be more experts than the state courts in serving this national policy.

And I’d like to call to the Court’s attention the language of Professor Archibald Cox of the Harvard Law School who has studied this subject quite intensely.

And in 1958, in the American Bar Association Section of Labor and Relations proceedings in commenting on the decisions of this Court during the, I believe, the 1957 term, he had this to say in discussing the impact of Laburnum and Russell on the question of a state remedy for damages being made available where the federal law did not provide such a remedy and where the court held that in certain cases involving the public welfare’s, the police power, the state could act.

And Professor Cox said the state judges have little experience in cases under the National Labor Relations Act that the temptation would be to follow state law and let the Supreme Court — and let the Supreme Court decide whether the field was not preempted, that every misinterpretation would involve a small impairment of the National Labor Policy and that permitting state jurisdictions award damages, absent such relief under federal law would make every state sued in industry affecting commerce potentially reviewable by the Supreme Court.

George H. Mason:

Furthermore, the relative and expertness of the state tribunals in interpreting the National Labor Relations Act would seem to require added care in scrutinizing their decisions.

And I believe this Court in Garner too, made reference to multiplicity of tribunals dealing with a particular subject, not being particularly designed to achieve a high degree of uniformity.

This way, I think, I was paraphrasing the Court’s opinion in the Garmon case, so that we submit that the interpretation of Section 301 as creating a substantive law to be enforceable exclusively in the federal courts would best serve the national policy of the act.

Felix Frankfurter:

Mr. Mason, may I ask this question?

This is an equity suit.

George H. Mason:

Yes, Your Honor.

Felix Frankfurter:

And went to a master, but if this jurisdiction is sustained, you may have suits on the law side, I mean you’re not — but you’re not under 301.

George H. Mason:

If this —

Felix Frankfurter:

I mean if state courts have jurisdiction under 301, there maybe cases involving jury suit cases, are they not?

George H. Mason:

Conceivably.

Felix Frankfurter:

Alright.

George H. Mason:

Juries?

Felix Frankfurter:

Pardon me.

George H. Mason:

Did you say Your Honor that juries might be involved?

Felix Frankfurter:

No, no, no.

You might have act, on the law side and therefore juries.

George H. Mason:

Yes.

Felix Frankfurter:

Or is that too fanciful as the —

George H. Mason:

No, I think this is conceivable even under our equity jurisdiction.

Felix Frankfurter:

No, even — I was going to say under your equity (Inaudible).

Now nay there — if this jurisdiction was sustained, I’m groping around because I told you before lunch I was getting a little out of the dark room but it seems (Inaudible), bow, assuming you’ve got jury trial, jury case, and submissions of questions from the jury and findings of verdicts by juries on the basis of finding — it’s open for them to make considering the limited nature of the review unless there are clear rulings on law but what I’m getting at is may there not be questions of law so entangled with finding the facts by the jury that’s on review would be impossible to extract the entanglement of law in the jury’s finding of fact.

George H. Mason:

Frankly Your Honor, I don’t quite follow the point because if the suit is one cognizable only in the federal courts namely (Voice Overlap)

Felix Frankfurter:

No, no, no.

George H. Mason:

If it involves — if it involves a question of (Voice Overlap).

Felix Frankfurter:

I’m assuming it’s cognizable also in the state court.

George H. Mason:

State court.

Felix Frankfurter:

And what it is in my mind is the considerations that underlay the (Inaudible) cases if you’ll probably permit it.

Namely that if you allow common law action, the common law action that exists when the Interstate Commerce Act was passed namely that any unreasonable charge allows you to bring an action of individuated with the recovery of the excess.

You get a verdict from a jury and it’ll be hard to extract from that, what part of it was the reviewable question of law and what part of it was within the province of the jury.

Now, what I want to know is that kind of a problem, that kind of a danger implicit in the line of state court jurisdiction concurrent with the federal court because if there’s a limitation upon the reviewability because of the intervention of the jury, then you may have defeated the legal questions so non-reviewable, so non-reviewable.

George H. Mason:

I think this is a potential — this is possible I think but perhaps not too likely in an offhand consideration of that question.

Hugo L. Black:

Why would not the same thing apply in the federal court?

George H. Mason:

I think so Your Honor.

Felix Frankfurter:

I think it would but there’s all the difference in the world between a supervising — Supreme Court of the United States over a federal court and non-supervising court for the United States for 50 state courts.

George H. Mason:

Although conceivably reviewable possibly by the Supreme Court even in the adjudication by the state court where it 0involves a federal question, it’s conceivable.

Following out Professor Cox’s viewpoint as to the lack of expert knowledge on the part of the state courts, there is 50 state jurisdictions as opposed to the federal courts which is no reflection on the state courts except that these matters do not commonly come before them in the form in which they come before the federal courts, it is not simply and merely a matter involving an action for damages that’s involved in a violation of a collective agreement.

There are specialized types of problems that only one familiar with the day-to-day interpretations and the words of art that develop in the collective bargaining process, only those familiar with that situation could adequately, it seems to me, deal with them judicially.

The term seniority has taken on in it — the course of bargaining very distinct special implications quite far beyond whether a layman might first suspect when he saw the word.

It enters into and pervades the entire contract in many, many concepts of the collective agreement.

Union shop, this is a special kind of a thing that would require some expertise to understand and apply.

The Act itself has direct bearing on many of these contract clauses such as check off of union dues which the act itself regulate specifically as to how — what kind of an authorization can be given and how — what the duration of that will be and grievance procedure and arbitration procedures in the labor field.

All of these matters, it seems to me would require a special knowledge which could be best administered by a smaller group of federal courts dealing specifically with these problems as they do under unfair labor practice complaints which are exclusively within their jurisdiction.

The point I make is that the problem of unfair labor practices which this Court has time and again said should be supervised and the Congress intended should be supervised by especially schooled and trained administrative agency.

The same reasoning applies to some extent, but not entirely, to the actions for violation of the collective agreements which arise out of the collective bargaining process.

And we can visualize the many conflicts that may arise with reference to a situation of concurrent jurisdiction between the federal and state courts.

I mentioned in passing the possible argument that will be made at some point, I’m sure of the application of Norris-LaGuardia, but beyond that, take the Lincoln Mills decision, which established to tell that there was established state federal law to — in this field of violation of collective agreements and directed the court to create that law.

Now, I’m troubled with the situation where the jurisdiction is concurrent when the case arises in the state court and on an issue upon which the federal courts had never made any declaration or ruling.

What is the state court to do?

I interpreted Lincoln Mills, to mean, and unless I’m incorrect, that it is the federal courts who are to fashion of the federal law and not the state courts.

If that would be so, what happens when the issue arises for the first time in the state court?

No adjudication of this Court or any even other federal court on the question.

Potter Stewart:

You get the reverse side of this coin all the time in the diversity cases, don’t you?

George H. Mason:

Yes Your Honor.

Potter Stewart:

I mean the federal courts are faced with that.

George H. Mason:

Correct.

Potter Stewart:

And they seemed to model through one way or another.

George H. Mason:

Well —

Felix Frankfurter:

Not only that Mr. Mason, since we are told that this one is a great stimulus to juristic inventiveness, you’ll have 50 energetic inventive jurisdictions instead of just one.

George H. Mason:

Correct and don’t — isn’t it fair to assume that the state courts jealous of their legal body of law and their prerogatives?

Well, in the absence of a federal statement from a federal court or decision of the federal court make the assumption that the state law is the law that the federal court ought to apply anyway —

Felix Frankfurter:

Make an assumption for the state law or universal law.

George H. Mason:

Yes, even to that extent so that we can expect the state courts to perhaps pay little attention to federal law not deliberately, but subconsciously in interpreting problems coming up under 301 which were not passed upon by any federal court.

Felix Frankfurter:

But that’s only a temporary even because you can always come up here (Voice Overlap)

George H. Mason:

Well, that — that’s not entirely a temporary matter Your Honor coming up here.

Felix Frankfurter:

It may not be (Inaudible), but I’m —

George H. Mason:

No.

Felix Frankfurter:

— in the interest of jurisprudence.

George H. Mason:

I —

Felix Frankfurter:

I heard (Voice Overlap), doesn’t it?

George H. Mason:

I would — I would go further Your Honor and say that the importance of certainty in the law is really of extreme (Voice Overlap)

Felix Frankfurter:

Is that the requirement of the law?

George H. Mason:

Well, Mr. Justice Holmes, I believe he said it was the guess as to what the Supreme Court would do which could hardly — would do in a given situation and that may not be as certain as you’d like.

But certainly, in the law is of great importance in the practical application of the day-to-day administration of labor relations which I think this Court could acknowledge as a factor in this situation.

And if we had tried to reduce industrial strife and minimize it and avoid the interferences with interstate commerce, the more certain the law is the less opportunity for confusion and complexities which plague the practitioners and the specialists and the more chance of industrial peace if at least the parties know what their legal rights and obligations are.

But when that is in the state of flux and uncertainty, we create by that very uncertainty, more industrial strife then it would otherwise be the case from the practical standpoint.

We make one other point in this case about the violation in constituting an unfair labor practice so that apart from the exclusiveness of jurisdiction on the Garmon II since this was a matter which was potentially within the purview of the Act, the state court would have no jurisdiction anyway, that is the secondary consideration.

Thank you your Honor.

Earl Warren:

Mr. Feller.

David E. Feller:

Mr. Chief Justice, may it please the Court.

I think it is perhaps better that I begin where Mr. Mason left off because I think the problems which he has envisaged as a potential possibility of sustaining what almost every court has assumed is the continued state court jurisdiction of these matters are much greater than he describes.

I do not see those problems and in fact create for me a very little difficulty but I want to clear what we’re talking about.

We’re talking about a suit brought by one party to a collective bargaining agreement against another party for breach of contract not bringing an unfair labor practice proceeding.

That suit is brought in a state court.

If we are correct that the jurisdiction of the state courts and the federal courts is concurrent to enforce the federal law governing these matters, the defendant, if he likes, has the right to remove it to the federal court so that the employer concerned with the desire or the union, defendant in such a case is concerned with the desire to get federal treatment or handling of this case procedurally has the right to do it.

The only case which remains in the state court, as we see it, is a case where both parties would prefer to have this matter adjudicated by the state court.

If the plaintiff wants it adjudicated in the federal court, he brings the suit in the federal court.

If the defendant wants it adjudicated in the federal court, he removes it.

Potter Stewart:

I don’t get the removal part if —

David E. Feller:

Well —

Potter Stewart:

— concurrent jurisdiction then why doesn’t the plaintiff have an absolute choice?

David E. Feller:

No, the plaintiff has the choice, but as I understand it, if it’s a suit which could have been brought in a federal court, the removal statute gives the defendant the right to remove that case.

Felix Frankfurter:

We held the opposite, if it’s the Federal Employer Liability Act.

David E. Feller:

Because that statute specifically so stated Your Honor.

Felix Frankfurter:

If it so specifically stated (Voice Overlap)

David E. Feller:

Well, this Court read the statute as I would say.

Felix Frankfurter:

It didn’t show.

Well, that’s the point that Justice Stewart is making.

David E. Feller:

Well, I do not read this.

I read the statute, I mean perhaps the easy way to say is not (Inaudible), our contention is that if the state courts have jurisdiction as we believe they do, the case is nevertheless removable and therefore the problems are not so great and that is accordance with what every court that has dealt with this matter has so far held.

Felix Frankfurter:

But Mr. Feller, your assurance on that subject doesn’t bind that — this Court.

David E. Feller:

Oh no.

Felix Frankfurter:

And we had — the Court divided closely on the question whether the general removal statute does or doesn’t apply in the Federal Employers Liability Act and the consideration that’s prevailed now that there may be — may not be removed where policy consideration is drawn out of the purposes of legislation and nothing that you now say can permanently or effectively or authoratively negated such consideration.

David E. Feller:

Obviously not, Your Honor.

I’m simply stating what my contention is and that by argument develops, I think the argument, all of the arguments that my brother Mason has made, argue, I think for the proposition which has so far not been contested I may add in any court that I know because these suits are being removed to the federal court everyday, in practice today.

And my brother in fact cites Fay against Cystoscope Makers in the Southern District of New York which was a removal case and there are several others.

William J. Brennan, Jr.:

And the dollar limitations do not apply Mr Feller?

David E. Feller:

Huh?

William J. Brennan, Jr.:

Dollar limitations do not apply?

David E. Feller:

Because the suit — the original jurisdiction was under 301 and it’s also a law regulating commerce which has no dollar limitation.

Now, all of the arguments which my brother is making as to the compliments of the federal courts would argue certainly against any holding and we’re not arguing that case here.

I’m simply saying it is my view that if the state court has jurisdiction, it has jurisdiction only so long as both parties are willing to accept that jurisdiction.

Potter Stewart:

In this case there was no effort to remove.

David E. Feller:

There was no effort to remove.

(Voice Overlap) The defendants simply took the position which he has the right to —

Potter Stewart:

The state court had no jurisdiction.

David E. Feller:

That the state court had no jurisdiction.

Indeed if he were right that the state court has no jurisdiction then the cause would not be removable.

Felix Frankfurter:

But the case — the problem is abstractly either as you put it and may — there are maybe today, 1961, lawyers like Mr. Louis D. Brandeis during his long years of practice in Massachusetts made is possible never to remove a removable case from the state court to the federal court for professional consideration in the wise conduct of a litigation.

David E. Feller:

I perfectly concede that there are many times when parties for many reasons decide not to exercise their right to remove.

My only point was really delimiting the scope of our problem, was that the consequence of a decision here holding the state court has jurisdiction is simply that where parties choose that state courts will exercise that jurisdiction only where both parties are agreeable that they should, but whatever reasons they may decide, they would prefer to leave the case in the state court.

David E. Feller:

Now, one other problem to delimit the scope of our case, we are dealing with breach of contract actions not with unfair labor practices.

I think this is very important because most of the authorities quoted by my brother Mason deal with unfair labor practice questions and tort suits in the state courts.

Laburnum, Russell, the cases mentioned, were tort suits, not breach of contract actions; Garner was a tort suit.

Garmon was a tort suit.

All of these cases were tort suits not suits for breach of contract.

Felix Frankfurter:

But 301 is preoccupied with the contract.

David E. Feller:

And 301 is a contract and that’s why we’re talking about 301.

We’re not talking about either torts or unfair labor practice proceeding.

Now it’s perfectly clear that the normal preemption rule which we can get sloppy and say applies to labor relations, but what this Court said in Garner was that in the unfair labor practice provisions of this statute and I’ll quote the Garner case, “Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties.

It went on to confide primary interpretation and application of its rules to a specific and especially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order.”

They, indeed, provided a prosecuting agency and the general counsel for the labor board.

For the this reason, the Court said that this kind of a matter not only the federal substantive law applied, but it was to be handled through the exclusive agency, which Congress had established for this purpose and which indeed Congress in the Wagner Act said was exclusive.

My brother Mason said that there’s no language of exclusivity in there because I’m sure this Court is aware.

The exclusive language was taken out of Section 10 (a) of the Act solely because it was inconsistent with the provision providing for the session of jurisdiction of the states and the conference committee reports are clear that Congress still intended to make the jurisdiction of the labor board in unfair labor practice matters exclusive, but we are not talking about that kind of a matter here.

Felix Frankfurter:

Are you —

David E. Feller:

The Congress made a specific decision to exclude breach of contract matters from that rule.

Felix Frankfurter:

Yes, but Mr. Feller, am I wrong in speaking that in construing such pervasive technical complicated provision as collective bargaining, the interpretation of what the collective bargaining mean does not exclude — does not — is not holding without life from what may or may not be unfair labor practice.

David E. Feller:

The two are unfortunately and separately intertwined I cannot — I cannot —

Felix Frankfurter:

I’m not talking about legal — that they’re in different legal cubbyholes.

I’m saying something very different namely that when it comes to construing particularly by judged to what things mean, what is allowed, what is permitted, what is required by collective bargaining agreements, there is cross like problem, what may if so construed constitute on an unfair labor practice.

David E. Feller:

I have no doubt about that.

Felix Frankfurter:

Alright, that’s all I’m saying.

David E. Feller:

That — my own belief is that the bodies which are customarily endowed with the duty of dealing with collective bargaining make better judges in suits for breach of collective bargaining agreement than judges who don’t do that.

I would therefore have probably thought that Congress should have not done what it did do, that is reject the provision in the Senate Bill.

The bill passed the Senate providing that a breach of contract should be an unfair labor practice, and therefore process through the board and the matter should be handled through the specialized agency.

The House decided otherwise in conference, it was decided to accept the House decision rather than the Senate decision and that these matters be left to the usual processes of law.

Now, the usual processes of law, and simply the expert body is the National Labor Relations Board and by and large, the Courts of Appeals.

In talking about the federal courts, we forget that federal district courts are almost as foreign to unfair labor practice proceedings as state courts are except in the limited area of the so called mandatory injunction which they used very little in which the District Court practically has nothing to do but issue an injunction where the general counsel as a preliminary matter.

It doesn’t eventually decide the case.

The case is decided by National Labor Relations Board and then reviewed in the Court of Appeals.

Felix Frankfurter:

But presumably, District Court or district judges agree with the opinion, the Courts of Appeals particularly their circuits, I should think.

David E. Feller:

Well if it relates to a field of litigation which is excluded from their jurisdiction, they may if they’re intellectually curios, but I suggest the good state court judges read them too.

Felix Frankfurter:

But they sit in Courts of Appeals again and again district judges.

David E. Feller:

Some do, but again the Federal District Court as a class, are not people given a special place or any place really in the administration of the statute.

Alright, now, we’ve delimited the problem.

Now, in delimiting their problem, I want to make one thing clear.

The fact, it can be in a given case and here I agree entirely with what Mr. Justice Frankfurter said that the same Act can constitute an unfair labor practice and a breach of contract.

The two are not — or they’re in different legal cubbyholes actually they’re sometimes very closely related and you can’t link that fact.

Contract may provide, there shall be no discrimination against union members.

Suit is brought for breach of that contract.

There is a contractural obligation and relief is sought for a breach of that, but in fact what the parties have agreed to do is to abide by the law and there is a procedure for dealing with the violation of the law and unfair labor practice procedure.

The two are nevertheless distinct although they may involve the same thing and the fact that a breach of contract has occurred is of course remedy of both — as a contract matter, not as a public matter but a public right as between the contract just if I make a contract with a man not to hit me in the face and he hits me in the face and I presume I can sue him for damages for having hit me in the face even though he can also be prosecuted by the District Attorney for assault because he has violated the contractual obligation to me.

Now the question before us then is, only the breach of contract though it is a labor relations matter it is — the question is whether a state court has cognizance of the breach of contract action.

And that question is whether it has been deprived of its right to hear that question and decided in accordance with federal law.

We have no argument about here that the substantive law is federal by the provisions of Section 301.

Now, the first — we start with the language of the statute that Section 301 doesn’t say that.

It says that the federal district courts may take jurisdiction.

Mr. Justice Frankfurter indicated in the argument, the early argument that some interest in inquiry as to generally how statues of this nature are construed in other places where Congress has created willingly or unwillingly a right to litigate.

Well, we make a brief effort to investigate that question.

And the general view, which we have set forth in our brief is that Congress is almost never found when it creates a federal substantive right to have vested the exclusive jurisdiction in the federal courts to enforce that right, almost never found to do so where the — it does not specifically say so that the right of enforcement is exclusive.

The one exception is the Sherman and Clayton Act action for triple damages.

A decision which has been much criticized, but which is there, which is saying that state courts do not have the right to enforce a cause of action for triple damages under the Clayton Act, despite the fact that Congress did not specifically say that the jurisdiction of the federal courts are — is exclusive.

Generally speaking, when Congress has created a federal substantive right; that right, if it not otherwise so specified, is enforceable in the federal courts or in the state courts indeed than any court of competent jurisdiction from the very nature of things, the law each court has jurisdiction over the parties who are before him.

It enforces law whether derived from federal law or state law in all cases.

Felix Frankfurter:

Well that’s — you mean —

David E. Feller:

That’s —

Felix Frankfurter:

— that’s vested with the opinion that Justice (Inaudible) that kind of thing going way back.

David E. Feller:

Well like, it goes way back to — what’s the — Claflin against Houseman.

Felix Frankfurter:

(Inaudible)

David E. Feller:

— with a preference in bankruptcy when Congress said that a certain transfer should constitute a preference in bankruptcy.

David E. Feller:

This Court said that the — as — in bankruptcy could sue in the state court on that claim created by Congress.

Felix Frankfurter:

What — but my interest derive from a desire for a closest scrutiny of whether in those cases you had policy consideration which — whatever or whatsoever you may finally assess them are for me present in this case which are not present but there is one present in the — in that —

David E. Feller:

Well, I think the question of —

Felix Frankfurter:

— the bankruptcy (Voice Overlap) —

David E. Feller:

— (Voice Overlap) wasn’t bankruptcy and there are very large policy questions.

Felix Frankfurter:

— in the various other cases.

David E. Feller:

I think there are large policy questions for example in habeas corpus in one of the cases which we cite deals with the question of whether a state court has the right to enforce the writ of habeas corpus on a federal claim to adjudicate a claim of federal unconstitutionality or improper use of federal process in a state court.

And as a matter of fact, in that case, I remember that the state agent was — ended up in jail.

The agent of the State of Oregon who came to arrest the man in California ended up in jail when the California Court said that he was — his actions in arresting the prisoner violated the federal constitution and he said the state court can’t say that.

Of course, state courts can say that.

Felix Frankfurter:

Mr. Feller, if you say — if you will tell us that our decisions, rarely do our decisions require me to reach the conclusion that state courts in subject to the Constitution of the laws of the United States must enforce federally created right unless Congress explicitly makes enforcing judiciary solely the federal judiciary unless you tell me that I’m — that the requirement of my reading of the cases (Inaudible), if you don’t say that then we are driven — then I don’t get much (Voice Overlap)

David E. Feller:

Well, I say almost that and I —

Felix Frankfurter:

Almost.

Well that’s (Voice Overlap) —

David E. Feller:

— I don’t say they must because I don’t want to get to the test and the question of whether the state courts have to hear these cases, that’s another question.

I’d say the state courts may and with one exception, I have been able to find no case and that’s the Sherman and Clayton Act where a federally created substantive right was not enforceable at the option of the parties in a state court where Congress did not say exclusively that jurisdiction shall be exclusively in the federal court.

Now, again, I cannot say that it is so certain because I have one exception, the Sherman and Clayton Acts but this at least poses the general framework in which I think we looked at a given statute because this is the way Congress is used to having its words treated.

So we have to look at the policy of this statute as well as the language.

The language certainly doesn’t say exclusive.

(Inaudible)

David E. Feller:

Yes, but on our Federal Employers Liability Act, I take it the defendant does not have the right to remove because that was a question which have been much litigated in this Court and I don’t want to get involved in controversies which I think are at least now settled and which may involve —

(Inaudible)

David E. Feller:

Yes, but by virtue of the specific statutory language in that case and the specific policy of those statutes, the Court said here that those cases were not removable, but the plaintiff could bring him in either case by specific language of Congress.

(Inaudible)

David E. Feller:

The Congress said so in words.

In other words, it said, “If you could bring a suit in a state court” it said so.

Felix Frankfurter:

And it has said so in several other statutes?

David E. Feller:

It is said so in Section 303 of this statute.

Felix Frankfurter:

So therefore —

David E. Feller:

We have to look at the statutes which don’t say anything like the Civil Rights Act which simply says that wherever — I think Section 47, it’s now 1985, “Whoever shall go up on the highway and disguise in the conspiracy section, if anyone is injured in that way he shall have a right of action,” period.

David E. Feller:

It doesn’t say where.

William J. Brennan, Jr.:

Well, Mr. Feller you say 301 says nothing?

David E. Feller:

Well, it says district courts shall have jurisdiction.

It does not say such jurisdiction shall be exclusive.

William J. Brennan, Jr.:

I don’t know — it doesn’t say quite that way does it?

I remember in the Clayton Act case, the statute said, shall be entitled to sue in any Court of the United States and this Court said in one sentence that that was the over term which show that the right was to be exercised quote, “only in the Court of United States.”

David E. Feller:

That’s right.

William J. Brennan, Jr.:

Now this statute says, may be brought in any District Court of United States as if there is much of an inference there as there was in the Clayton Act?

David E. Feller:

Well I — again, I don’t want to get into the history of the Sherman and Clayton Act litigation but I think there was in that case developing from the amendment of the Sherman Act by the Clayton Act and the right to bring private action in addition of the public right, a background which led the Court to that conclusion.

I personally — I’m not prepared to justify a decision which is not my field (Voice Overlap) —

William J. Brennan, Jr.:

(Voice Overlap) in that opinion.

David E. Feller:

In my field of competence.

William J. Brennan, Jr.:

The Court can say so in that opinion.

David E. Feller:

I think that is expressed in either in that decision or in a later decision.

Again, I don’t want to get into to the merits of the case.

Let me get to the — let’s assume that the language is ambiguous and we can go either way here and let’s look at the policy of the statute and what is accomplished by it.

First of all, there is no reason to believe that, as I’ve already indicated.

Congress made a specific decision that this matter should be handled in the usual processes of the law.

There is nothing within the policy of this statute which indicates that the federal district courts would more affectively enforce the federal rights.

Now remember we are not arguing what is the applicable law.

We accept Lincoln Mills which says that the applicable law is federal.

Now, what kind of cases do you have?

Look at this case.

This is a very simple case which all of this argument is about policy concern.

Here, we have a case where an employer, a negotiating committee met with the union, maybe this is the wrong place to state the facts of this case, but I think they should be stated some time.

A union and an employer had an agreement.

The negotiating committees met.

A vice-president, the brother of the president of the company, a member of board of directors was the chairman of negotiating committee, they met, they negotiated an agreement providing for a 13-cent an hour wage increase for one additional holiday, for elimination of rate ranges in pay and that vacation should be computed on in anniversary basis.

They signed a memorandum to this effect and that this should be effective May 20, which was the date of the expiration of the old agreement.

Then they had later meetings at which they negotiated the language implementing this.

David E. Feller:

The company in the meantime, put the wage increase into effect which was contained in the memorandum, even though as it said in its notice, the final language hadn’t been worked out.

It was agreed that it would be retroactive and they put it in 13 cents an hour.

The vice-president, member of the board of directors and head of the negotiating committee tendered a formally signed contract document to the union and then the union was informed that the people that they have been dealing with were not authorized to represent the company, but the contract was therefore nullity and that wages will be reduced hence for 13 cents an hour, the amount by which they were increased as a result of the agreement.

Now, what are the difficult questions of law involved?

The questions litigated before the master is, was there authority in this negotiating committee?

Did the president of the company know about this?

He found that she did that the responsible officials authorized the making of this agreement.

He found that she did, was the agreement ratified by the company?

The master found what it did and therefore was the agreement a valid contract, he found that it was.

Now, almost every case, of course like every case, but most breach of contract cases involved this kind of a finding.

This is the typical kind of finding which is made by courts which decide breach of contract cases.

Now, there are other types of cases in which other concepts are involved, but we should not assume that every breach of contract matter.

This maybe one of the reasons why Congress decided to put this into the courts rather than before the labor board.

The arbitration decisions which Your Honors decided last year, involved a question of the substantive law — kind of approach which should be taken by the courts in dealing with these matters.

But once sent down as a rule, it has proved to be reasonably observable, reasonably understood by everyone and enforce I may say in state courts as well as in federal courts.

The great problems that are foreseen by my brother in dealing with these contract actions simply exist if they exist only in a few cases which can be properly dealt with and do not require as a policy matter this Court to say that even though Congress hasn’t said so in order to make a coherent hole of labor relations law, we must vest this jurisdiction in contract actions in the federal district courts exclusively.

Now, this would create a problem indeed in relation to the Westinghouse case.

I may say that this case was brought in the state court because there were some uncertainties as to whether it could even be brought in the federal court.

In my statement of facts, I neglected to state that their only issue between the company and the union in this case, although the 13 cents was paid, the company was in fact abiding by the rest of the terms of the contract.

What they didn’t want to do is pay — the company discovered that 13 cents was too much and they wanted to get out of it and I am told that really the only issue though the company said that the contract as a whole was void because it was not properly negotiated, the only changes in that contract from the one previous enforced were wage terms.

Felix Frankfurter:

I don’t understand, correct me.

You said you had doubt whether this could be brought in the federal court.

David E. Feller:

I didn’t, the person who brought, filed the suit which I didn’t (Voice Overlap)

Felix Frankfurter:

Whoever did it?

There was doubt, if this arises on the contract and it doesn’t fall under 301, it isn’t — that kind of — does 301 deal with a particular kind of contract?

David E. Feller:

Well —

Felix Frankfurter:

Because if that so then I got a new problem.

David E. Feller:

Well, you may have a new problem Your Honor, 301 deals with one kind of contract, collective bargaining agreements between unions and employers.

This Court appeared to hold in Westinghouse or at least appeared to hold to some people, the people who filed the suit, that where money was involved for individual wage earners as it was here, the suit for a breach of that contract could not be brought in the federal court under 301.

Felix Frankfurter:

(Voice Overlap) 301 there’s no problem.

David E. Feller:

There’s no problem here.

Felix Frankfurter:

Alright.

David E. Feller:

I have not argued that because I think it does come within 301.

Felix Frankfurter:

Then they’re very (Inaudible)

David E. Feller:

Well, because I think for the reason that my brother Mason has said the whole validity of the contract is actually at issue here though the only thing they were arguing about was money.

In fact, the only way which the employer could get out to paying the money was to say that the whole contract was void.

Felix Frankfurter:

Or either that is an issue or it isn’t?

If it’s an issue, it is issuable in the federal court and if it isn’t issuable under 301 in the federal court, there’s no problem for us.

David E. Feller:

Well, what I’m saying is that you put counsel in one very difficult situation when he has to look at each case and say, “Is this Westinghouse type of a case or is this — maybe not?”

If he asked for a declaratory judgment as to the meaning of a cause of the contract instead of asking for money, is this — if you say it’s either exclusively federal or exclusively state, the problems of determining each way.

Now, my own view is that which I will say that there’s — I haven’t have any authority for since the Westinghouse case was decided as it is — was.

My view which we express in our brief is that since Lincoln Mills, in fact, the Westinghouse case would be decided otherwise of this Court hasn’t said so, but whether that be so or not —

Felix Frankfurter:

As you stand there, do you say this litigation could have been brought under 301 in the federal court?

David E. Feller:

Yes, we do.

Felix Frankfurter:

Well then let’s stick to that.

David E. Feller:

Alright.

Well, I’m prepared to stick to it.

Now, I think I’m just pointing out the difficulties which are occasioned if whether you hold that this suit can be brought or any suit for a breach of a collective bargaining agreement, quite different matters.

Now, in my view, the suit can be brought in the federal court, it can be brought in the state court.

If it is brought in the state court, it is removed.

Now, the one question of policy and Your Honor raised the question, in the scheme of this Act, I think the expertise doesn’t really matter because as I said, these are breach of contract actions, the Congress has decided not to give it to the Board with the agency with expertise argued the labor board, but the courts and the federal district courts are not the expert bodies.

The one passed question of policy in determining, assuming you’re predetermined, is the Norris-LaGuardia and that’s a hard nut even though it’s not directly involved in this.

I think you have to — have some idea of where this leads you and my brother Mason didn’t make the best argument he could make on this thing which is in his brief.

There is a District Court case in which a suit was brought for violation of contract and an injunction and damages were asked.

It was sought to be removed to the federal court.

The federal district court said we have no jurisdiction over the injunction part of this, therefore we’ll send that back to the state court, to issue the injunction, but we’ll keep the damage part because that we have jurisdiction of and this he argues is one of the problems of providing concurrent jurisdiction.

We argue that in 301 cases, I’m not arguing about Norris-LaGuardia being applied broadly to the states certainly, but in 301 cases, that the federal law governing collective bargaining agreements which is the federal substantive law which this Court said is to be applied in Section 301 suits, the federal law includes as part of its policy, the prohibitions in section, embodied in Section 4 of the Norris-LaGuardia Act saying, “There shall be no injunctions against strikes” i.e. no injunction can be issued against the strike on the ground that it is in violation of contract.

Now, this is not so difficult as it may appear.

Certainly, this Court has treated the Norris-LaGuardia Act as part of federal substantive law.

The Hutchinson case certainly has language to that effect.

David E. Feller:

I’ll indeed point out Mr. Justice Brennan’s opinion in dealing with a case coming from the Supreme Court of Georgia, the Speck case decided this year, this Court said that it would be not proper to enjoin the enforcement of the union shop contract because of the Norris-LaGuardia Act, the policy of the Norris-LaGuardia Act.

That was a case from the Supreme Court of Georgia.

Let’s go to the Steele case, Steele versus Louisville and National Railway where this Court enforced the duty to bargain under the Railway Labor Act.

Potter Stewart:

Of course Mr. Feller, I couldn’t say they could — that it might be an inappropriate remedy —

David E. Feller:

Well, I’m not saying that the Act literally applies to the state courts, obviously it doesn’t.

I think it expresses a federal substantive policy and if there’s a federal substantive law governing the collective bargaining agreement as this Court has said, it is in Lincoln Mills as this Court, I think without the dissent from any member applied in the arbitration cases last year.

Nobody suggested that these matters were governed by state law there.

I suggest that part of that substantive law is the proposition that you do not enjoin a strike on the allegation that it is in violation of contract.

Felix Frankfurter:

For me, Norris-LaGuardia or substantive law with reference to the jurisdiction of the federal court and not substantive industrial law.

David E. Feller:

Well, I did not read Your Honor’s opinion, the Hutchinson case in that way but —

Felix Frankfurter:

All I’m saying is that this — it gets the difficulties that we have that you — with at large on this invented motion and now we have indirectly to decide here or whether if we decide this Norris-LaGuardia to be part of substantive law in the 301.

David E. Feller:

Well I — I —

Felix Frankfurter:

I’m not saying you’re wrong.

David E. Feller:

I’m not — I will point out that this Court has made that assumption not only in the instance I referred to.

In the Chicago River Case which this Court decided that Norris-LaGuardia was in the fact amended by the Railway Labor Act so that injunction could be issued.

It referred to the Steele case as an example of the fact that despite Norris-LaGuardia, injunctions could be issued to enforce duties under the Railway Labor Act.

The Steele case was a case which came here from the Supreme Court of Alabama.

So this Court has accepted the proposition, implicitly without argument, obviously not so wholly, but it has looked to the Norris-LaGuardia Act to express a federal labor policy as I think it does and I think that —

Potter Stewart:

Isn’t this a matter that can be — that even if you’re right on the issues in this case, it can be left to another day?

David E. Feller:

I think it can be but again you have to decide a specific case and Mr. Justice Frankfurter said, you’re in a room and you are looking to general policy consideration.

Potter Stewart:

(Voice Overlap)

David E. Feller:

But I will say that I would feel differently.

Potter Stewart:

That McCarroll case in California which —

David E. Feller:

I don’t — I —

Potter Stewart:

— we denied certiorari where a very respectable arguments are marshaled on the other side of the issue to which you are now addressing yourself which is not before us in this case.

David E. Feller:

It is not before you.

However, I think that the only reason I advert to it is that it does bear on the policy question if Your Honor’s feel, as I think you have a right to feel that in determining whether this jurisdiction is exclusive, you have to decide how this fits into the scheme of the Labor Relations Policy set forth in the statute.

Felix Frankfurter:

How about the other — you’re coming together provisions of the statute, which deals explicitly, which is used from the 301.

David E. Feller:

I’m going to deal with this.

This is my final point, if Your Honor please.

Felix Frankfurter:

I mean, we are in the less speculative area there because you got to use the expression of Congress.

David E. Feller:

Now in Section 301, this particular provision, which had been referred to, talks about 301 language, which simply says that suits maybe brought in the District Court.

There is a difference between this language and the language in the section 303.

So the only other language which I think is relevant by analogy and only by analogy.

Section 303 also creates a federal substantive right in terms, it says it shall be unlawful for the purpose of the section to do certain things and says, “Whoever shall be injured by result of conduct in violation of the section that may sue in any District Court of the United States or in any other court having jurisdiction to the parties, an explicit grant of jurisdiction both to federal and to the state courts.”

Now, it is argued and I think this is the only statutory language argument which can be made in this case that the fact that Congress so provided in Section 303, makes it clear that as I say it knew how to give jurisdiction of the state courts and in 301 it didn’t.

Felix Frankfurter:

How about the procedural provision (Inaudible) in service?

David E. Feller:

I don’t regard those as your argument — Your Honor is asking as to whether the question as to service, I think those apply in the federal courts.

I assume you will serve in the state court as you serve in the state court.

Felix Frankfurter:

Well, I’m not being decisive because we’re picking pieces, putting the bits and pieces together.

I’m just offering that you should base on (Inaudible) bits and pieces.

David E. Feller:

Alright Your Honor I’ll address myself to those if I’m finished with 303.

Now, the reason for 303 is different from 301 are two folds.

Hugo L. Black:

Why is 303 printed, is it printed in the (Inaudible)

David E. Feller:

Unfortunately, I think no one — none of us —

Felix Frankfurter:

It would be parsimonious in giving us the statutory effect.

David E. Feller:

Guilty as charged Your Honor.

That’s all I can say we were.

Potter Stewart:

But you have no monopoly over the supply of them?

David E. Feller:

No I have no monopoly and I will say since I’m answering an argument made by the petitioner, I think probably it is his first responsibility to refer to 303, but I concede we should have printed 303 in any case whether he did it or not.

But the important thing in 303 is that it created a cause of action in the courts for what was otherwise created in the Act as an unfair labor practice.

In other words, Congress created a brand new substantive law and said it shall be an unfair labor practice.

The words in the 303 are exactly the same as 8 (b) (4) (a) and made — this is the secondary boycott which was made on unfair labor practice and Congress in this case and in this case only said, “Even though we have made an unfair labor practice and it’s the kind of thing where we have a confident, specialized tribunal which is supposed to have exclusive jurisdiction, we’re also going to create a cause of action.”

Now in that case, we have a very good argument where they said only the federal court, but that meant since it is in the unfair labor practice area that only the federal court could have jurisdiction.

They have a wonderful argument for exclusive jurisdiction if they use ambiguous language there.

The jurisdiction had to be given explicitly to the state court because you are creating — you are giving a cause of action for an unfair labor practice.

Felix Frankfurter:

But if that same unfair labor practice is made part of the agreement, it becomes part of the contract and then you can sue it in the state court.

David E. Feller:

Yes, because we are not suing because it’s an unfair labor practice.

Felix Frankfurter:

No.

David E. Feller:

You’re not construing — in that case, you are not construing the language of the statute as to what is a secondary boycott, a very difficult question.

Felix Frankfurter:

I understand that but your suggestion that if you make a contract that the fellow shouldn’t hit you in the face — if you put it in the contract then you sue his contract.

What I’m suggesting is the very same fact, very same consideration, very same arguments pro and con can be brought and can be utilized and address to the state court if it’s part of the collective agreement although it’s part of an unfair labor practice must be brought in the federal court.

David E. Feller:

Well, but the difference is if Your Honor please that when you are suing under the unfair labor practice thing, the substantive law which has to be adjudicated and interpreted is the particular federal statute, the unfair labor practice, which Congress has said this is — and this Court knows and — on review of those things (8) (b) (4) and the secondary boycott provision or the one with the most mysterious set of words that were put in the statute.

This is a very difficult thing and therefore the normal presumption is that you don’t allow state courts to decide that kind of —

Felix Frankfurter:

If you put it in — If you put it in terms in a collective agreement then the mystery evaporates.

David E. Feller:

Well, the mystery doesn’t evaporate, but what you decide, you decide what that collective bargaining agreement means, you don’t decide what that statute means.

Felix Frankfurter:

I know, but those are words.

David E. Feller:

Well, that’s correct.

The different words as Your Honor knows can very often have a different meaning depending on whether they’re in the statute or in a contract or somewhere else.

Potter Stewart:

Same words.

David E. Feller:

The same words, the same words that’s right.

Hugo L. Black:

Depending on many other things — and depending on many other things.

David E. Feller:

Depending on many other things, that’s right.

Felix Frankfurter:

My point is that it wouldn’t depend on any other thing in this case.

In this case, it wouldn’t depend on any other thing.

If the same words are put in the collective agreement, it would depend on anything else except that the Superior Court judge in Massachusetts would be deciding it instead of Judge Ford in the federal district court.

David E. Feller:

Well Your Honor, if — if the same words are put in to collectively bargaining agreement, let’s take the simple case where it is said that there shall be no discrimination on account of union activity, a common provision in collective bargaining agreements, commonly arbitrated.

Most of these collective bargaining agreements provide (Inaudible) provision.

I do not know that a decision by an arbitrator, that a particular kind of conduct constitutes discrimination or non-discrimination under that collective bargaining thing is the same determination that the National Labor Relations Board makes in adjudicating a violation of Section 8 (a) (1) and 8 (a) (3) of the National Labor Relations Act.

Felix Frankfurter:

In the —

David E. Feller:

Even though that the words maybe the same, I can come to an arbitrator and prevent — present history, not of the legislative history, I don’t go to senate committee reports when I’m arbitrating a case under a collective bargaining agreement, if I bring in any materials, I bring in materials as to what the company said and what the union said on how we got in to these words.

I don’t bring in Senate Conference Committee report as to what the words were used in the Congress — in the Congress of the United States even though the words maybe the same.

Felix Frankfurter:

That isn’t the problem.

David E. Feller:

We have different legislative enactment.

Felix Frankfurter:

That isn’t the problem I’m putting to you.

David E. Feller:

I’m sorry.

Felix Frankfurter:

The problem I’m putting to you is that provision in a collective agreement therefore part of the contract, violation of which is suable in the federal court.

I’m saying that in that kind of a thing you can sue either the federal court rather than the state court, although you’ve got the same 303 provision, namely written in a contract and the only difference is different between six or three or two or five, negligence suit arriving out of the same accident, taught before different juries.

David E. Feller:

I’m not sure I understand it.

We have the 303 provisions against secondary boycotts into a contract.

Felix Frankfurter:

(Voice Overlap) put into the contract.

You said that’s a very common thing.

David E. Feller:

No, I didn’t say that Section 303 provision, I’ve never seen such a thing and I don’t know what union or what company would provide that.

I said, what is the common thing is for a union to provide that there shall be no discrimination in its union members.

303 is a secondary boycott provision.

Felix Frankfurter:

I take your (Voice Overlap) you put it into a contract.

You put an unfair labor practice, you put in a situation which may become an issue before the National Labor of Relations Board into a contract, breach of it as such is enforceable in a damage suit because it’s about issue of a contract, is that right?

David E. Feller:

It’s enforceable whether as a damage suit depends upon the nature of the contract.

Felix Frankfurter:

(Voice Overlap)

David E. Feller:

And the — when I say the usual contract, the case I put is a case in which, let me put – there is the case pending on Your Honor’s docket right now when certiorari was filed last spring.

Union provides in a contract there shall be no discrimination against union members.

This is the kind of provision which as I say is usual in most contracts, 95% of the contracts provide arbitration provisions and normally, these things are adjudicated.

The man is discharged, supposedly for not showing up on time.

The union says it wasn’t for that reason.

The real reason is because he was the chairman of the Grievance Committee, so you file a grievance.

In the case which pending before Your Honors, the company says we won’t arbitrate that.

The reason we won’t arbitrate is it’s an unfair labor practice if what you say is true.

And the Supreme Court of Michigan said, “That’s right.

This is preempted by the federal act.”

Now I said that that isn’t so, that even though it may be an unfair labor practice because the provision in the contract there shall be no discrimination against union members is identical with the statutory prohibition against discrimination against (Voice Overlap) union membership.

Felix Frankfurter:

And therefore remediable in the court, is that right?

David E. Feller:

That’s right, remediable as provided in this case, remediable through arbitration.

Felix Frankfurter:

No, no, no, I’m talking where there’s no arbitration agreement, just a contract without any arbitration procedure that can be enforceable as an ordinary contract.

David E. Feller:

I think that’s the problem.

Felix Frankfurter:

Alright.

Therefore, our problem is whether that contract is in enforceable for a federal court and a state court.

I don’t — for me the National Labor Relations Board is already red herring in this business.

David E. Feller:

Well, the whole point I was trying to make Your Honor and I think the National Labor Relations Board is a red herring in this business and the whole discussion — I was trying to say that even though in another aspect, the same conduct could come before the board.

It is a red herring and if we’re in agreement on that, I think (Voice Overlap) for all the examples.

Felix Frankfurter:

That doesn’t take care of my problem namely that — namely that something which although in one aspect is an administratively determinable thing may become part of the collective bargaining contract as such suable in the federal courts for breach and our problem is whether the federal court or the state court that the state court would be called upon to deal with matters which intrinsically also implicate unfair labor practices.

David E. Feller:

Well, I think —

Felix Frankfurter:

Nothing as such — not as such.

David E. Feller:

I suggest to Your Honors the answer to Your Honor’s difficulty is that it is no more anomalous to allow the state court judge to decide that question that it is to allow the district court judge to decide that question.

Felix Frankfurter:

I have indicated why I don’t think that’s so because the conclusion that are embedded in the jury verdict from which it’s very difficult so far as state courts are concerned to extract what is the non-reviewable as against the reviewable ingredient.

David E. Feller:

Well, my answer to that is I concede that the scope of reviewing this Court maybe somewhat different in a jury case from the federal courts and the state courts, but I confess that I could not for myself decide that Congress in this statute decided to exclude the state courts from jurisdiction, but to allow the federal district courts who have no unfair labor practice jurisdiction to decide them because of the difference of the scope of the review of a possible jury verdict.

I just don’t think that’s a sufficient consideration to come to that conclusion and I don’t know of any other consideration which is sufficient to argue that.

The federal district courts are just as foreign to unfair labor practice matters except incidentally as are the state courts.

They are given no jurisdiction under the National Labor Relations Act other than — and I’m talking about the National Labor Relations Act not the Labor Management Relations Act, the part which deals with the labor board, other than to hear cases for temporary relief and really the treatment of Congress as dealing with those cases is illustrative because you go in and if you allege that there is sufficient cause to believe that there maybe an unfair labor practice, you go in and you ask the district judge for an injunction.

Indeed, the General Counsel in the case where this is so provided in 10 (l) of the Act is required to go in and ask for an injunction.

The injunction is issued but that District Court never decides the case.

It goes to the Board, the Board decides it and very gratefully decides it differently than what the general counsel argues in the nature of things that he doesn’t win all of these cases, and the Court of Appeals decides in a completely independent proceeding from the federal district court.

So I suggest that all of the arguments for federal, exclusive federal jurisdiction here and there are some good ones are arguments which really go to the proposition that Congress should have really made this an unfair labor practice, but those arguments are not permissible here.

Congress decided to put it in the courts.

There are equally good arguments I think for saying that the kind of issue, there are enough cases involving the kind of issue that’s involved in this case for simply authorization, ratification approval or the typical case which Congress was thinking about, which is a suit for damages for a breach of a collective bargaining agreement.

Congress wasn’t really thinking about — too much about these or provided both way jurisdictions.

It was thinking about a case where union as contacted that these will be the terms and conditions for two years and there shall be no strikes and the union says, “We didn’t like it, we’re going to go and strike.”

And it wanted to provide a method by which unions could be sued for damages, for breach of that kind of thing.

They are being sued today.

I will say this case is unusual.

I think the question was asked by you Mr. Justice Black as to what the usual course.

All the decisions we’ve been able to find except one obscure dictum and the footnote in the Westinghouse case, all say that the state courts have jurisdiction.

They are in fact exercising their jurisdiction without question enforcing federal law through — over the country.

Steelworkers, I know are now involved in two damage suits, one in the state court in Minnesota and one in the state court in California in which I will confess, I never thought to raise the question as to whether the jurisdiction was exclusive.

Felix Frankfurter:

How many suits have the Steelworkers initiated in the state courts for a breach of contract against (Voice Overlap)?

David E. Feller:

I can only say — since I can only know the suits which I know about, I don’t know about all of them.

The only cases I know about is this case and the three cases which Your Honors decided June 1960 which were the arbitration cases, which were all Steelworkers cases and all started in federal district courts.

Felix Frankfurter:

How many — have you in your responsibility initiated in the state court?

David E. Feller:

Have I initiated in the state courts how many, those three cases.

One of them I did — two of them I did, two, the American Manufacturing case and Warring Gulf case.

The Enterprise case, I never heard of until the Court of Appeals — it was in the Court of Appeals.

David E. Feller:

This case, I didn’t hear about until petition for cert was filed.

Felix Frankfurter:

When you say — when you say there’s a very good argument that can be made for exclusiveness in the federal court, did you say that?

David E. Feller:

No.

What I meant to say is there are very good arguments why you should setup a scheme in which there is no court enforcement, but board enforcement of collective bargaining agreements.

That’s what I meant to say if I didn’t say that.

And if — but those arguments were addressed to Congress and rejected by Congress when it decided that court enforcement was the way to handle this question.

I think there are very good arguments the other way because many of these cases involved complex questions as to damages, really this is probably — that — in this case the damage question was easy, it was back pay.

Employer lawsuits involved complex questions of damages and one damage suit which the Steelworkers are involved, we’ve had four months trial on the question of damages proving profits lost to profit’s not lost so that these can be very difficult.

It may be that Congress decided that this kind of a question was better left to the usual processes of law.

The courts are used to deciding this question and when they made that decision and this is really our argument, I see no reason to assume that they said by the usual processes of law, they meant only the federal district courts and not the state courts which had been exercising that kind of jurisdiction all along.

That — 301 at — with the gloss that has been put on it by this Court’s interpretation contains the source of the substantive rules to govern these lawsuits in which I will say 90% of the law in most of the cases will be state anyway, but absorbed as federal law such as we have in this case.

When you have authority — who has authority, that law will be enforced through the state courts as it has been and it’s now being done just as it can be in the federal courts and there’s no basis for reading the jurisdiction in this case as — granted this case as being exclusively federal and depriving the state courts of jurisdiction in the cases where both parties are — will accept the state court jurisdiction.

Potter Stewart:

But again, we don’t have to — in this case decide whether you’re right or wrong and in that last thought (Voice Overlap)

David E. Feller:

Now, the Norris-LaGuardia question I said was an arguable of question.

I will say Your Honor that I was a bit surprised that the removal question raised in a contract.

Potter Stewart:

It was not here.

David E. Feller:

I assumed this is — it is not here.

Potter Stewart:

It’s not here.

David E. Feller:

But I assume that some things have to be assumed as given in terms of the policy of a given statute.

I will say frankly, I have assumed it to be given and not subject to argument that a suit brought under a suit to vindicate a collective — a substantive collective bargaining right granted by federal law if brought in the state court could be removed to the federal court.

Potter Stewart:

Well, it said right granted by the contract.

David E. Feller:

The right is granted by the contract whether it’s enforceable pursuant to the sub — federal substantive law governing collective bargaining agreements established by 301.

Potter Stewart:

But by its very terms, Section 301 applies the breach of contract — to contract.

David E. Feller:

That’s right.

Potter Stewart:

That’s under the collective bargaining agreements.

David E. Feller:

That’s correct and I have assumed and every court which has had opportunity to address itself to the subject has assumed without controversy so far and as I know that such a lawsuit is removable.

Felix Frankfurter:

Mr. Feller, you could — couldn’t have — you couldn’t make a bigger assumption to that effect that I made before the federal employer rather it’s decided by (Inaudible), you couldn’t be more — you couldn’t have been clearer that that’s the answer.

David E. Feller:

Well, it maybe but I will say that Federal Employers Liability Act specifically provided for suits in the state courts and for suits in the federal courts and the question then was having specifically provided for both if —

Felix Frankfurter:

I know what the question was.

All I’m suggesting is fallibility maybe greater than yours.

David E. Feller:

Well, I may argue with you in that Your Honor.

Earl Warren:

Mr. Mason.

George H. Mason:

I should like to make, if Your Honor please, one comment about prior adjudications on this issue that’s here involved.

I would say that quantitatively, the decisions have been against the proposition for which I have been arguing.

However, it should be said noted that most of those decisions are state court decisions in which the state being very zealous of its prerogatives would normally be expected to support its own jurisdiction.

And it maybe of interest to the court that Mr. Chief Justice Wilkins in the decision in this case that went to the Supreme Judicial Court said, “In the absence of a clear holding by the Supreme Court of United States that federal jurisdiction has been made exclusive, we shall not make what would be tantamount to an abdication of the hitherto undoubted jurisdiction of our court.

Even the Supreme Judicial Court of Massachusetts is looking forward to the decision of this Court in this case.

Thank you Your Honor.