Conley v. Gibson

PETITIONER:Conley
RESPONDENT:Gibson
LOCATION:Philadelphia Board of Public Education

DOCKET NO.: 7
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 355 US 41 (1957)
ARGUED: Oct 21, 1957
DECIDED: Nov 18, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – October 21, 1957 in Conley v. Gibson

Earl Warren:

Number 7, J. D. Conley et al., Petitioners, versus Pat J. Gibson, General Chairman of Locals 6051 and 28 et al.

Mr. Waddy.

Joseph C. Waddy:

Mr. Chief Justice, may it please the Court.

This case is before the Court on writ of certiorari to the United States District Court for the United States Circuit Court of Appeals for the Fifth Circuit, affirming a judgment of United States District Court for the Southern District of Texas, dismissing petitioners’ complaint for lack of jurisdiction of the subject matter.

The case is one of the series that have been before this Court since 1940, early 1940s.

In an attempt on the — on the part of Negro railroad workers to secure for themselves the benefits of collective bargaining and the fair representation to which they are entitled under the Railway Labor Act.

The courts below in dismissing petitioners’ complaint for lack of jurisdiction of the subject matter have held in effect that the exclusive bargaining representative under the Railway Labor Act of a class or craft of employees is under no judicially enforceable duty to refrain from using its statutory position and power to discriminate on the account of race except in the making of a contract.

Felix Frankfurter:

Mr. Waddy, would it interfere with what you had planned to put before the Court if you told us at the outset exactly what the facts are in this case?

Joseph C. Waddy:

Well, that is this —

Felix Frankfurter:

I mean the human fact and what it means and what it doesn’t mean before we get on to this — to me still very difficult problem.

Joseph C. Waddy:

That is right.

Felix Frankfurter:

Could you do that?

Joseph C. Waddy:

Yes.

As a matter of fact that is my next statement to the Court.

Felix Frankfurter:

I’m sorry.

Joseph C. Waddy:

I simply wanted the Court to know that within the — this framework of reference that I have mentioned.

The effect of the court below in saying that there was no judicially enforceable duty.

And also, that the Court has held in effect that the statutory representative are in a dispute with the member of a craft or has no judicially enforceable duty and that — that dispute must be carried to the National Railroad Adjustment Board.

Now, the facts are to which this case arises and as alleged in the complaint are as follows.

Petitioners are employees of the Texas and New Orleans Railroad working in the Freight House at Houston, Texas.

They are Negroes.

They are members of a craft or class of station employees, clerks, freight handlers, et cetera.

And that craft or class is represented by the Brotherhood of Railway and Steamship Clerks which is the respondent here.

The complaint alleges that the Brotherhood has used its statutory position and power under the Act to discriminate against them on a count of their race.

And they claim that the Brotherhood used the union shop amendment to the Railway Labor Act and made an agreement with the carrier requiring that as a condition of continued employment, all members of the craft including these petitioners must join the union.

They also charge that at Houston, Texas, respondent maintains two locals.

One of those locals is composed exclusively of Negroes.

That is Local 6051.

The other is composed of exclusively of white employees, all being members of the same craft or class.

They have alleged that the maintenance of these segregated local by the Brotherhood, as a part of a scheme, to deprive the Negroes of the benefits of collective bargaining and not permitting them to participate in the collective bargaining process.

Felix Frankfurter:

When you say the maintenance of these two locals, would you mind telling us how these two locals came into existence?

Joseph C. Waddy:

So far as my information is, they came into existence years ago.

The two locals, these — I don’t know whether or by request from the Negroes or merely because as a matter of the traditional setup in the south.

I suspect it was a traditional setup in the south wherein that Negroes have traditionally been in segregated locals and whites in another.

Felix Frankfurter:

That is — this was an old condition when the Railway Labor Act was passed.

Joseph C. Waddy:

That is correct so far as I understand.

It was an old condition.

However, the requirement for membership only comes into being since 1951 with the amendment to the Railway Labor Act which requires a membership as a condition to continue employment.

Now, in addition to that, they claim that Local 28 which is the white local, carries on all of the collective bargaining for the craft, and that Local 6051 does not offer the same type of representation and benefits of collective bargain that those who are members of Local 28 can get.

In other words that by Local 28 carrying on the collective bargaining and the Negro is being confined for Local 6051 they’re cut off from all participation in the collective bargaining process.

Felix Frankfurter:

Now, let’s see if I understand this because this can be either important thing.

When — for how many years of the collective bargain — the agreement run, two years?

Joseph C. Waddy:

No, the agreement has been in effect since 1939.

Felix Frankfurter:

Yes.

But — isn’t it renewed, subject to renew?

Joseph C. Waddy:

It is not subject just — it’s renewable subject to the Railway Labor Act.

Felix Frankfurter:

Yes.

Joseph C. Waddy:

30 days notice.

Felix Frankfurter:

Well, if you get 30 days notice if — if notice is given that there’s desire to wage increase, what — how is it going — how is the collective bargaining process gone about since 1951?

Joseph C. Waddy:

My information is that the union, the international, formulates the demands and makes the demand from the carrier and the carrier negotiates with the international or because most of these wage movements since 1951 had been at the national level.

Felix Frankfurter:

Well, then — but you said a minute ago that if any bargaining is done with the — with the railroad at the lower level, that it’s all done by the — by Local 28.

Joseph C. Waddy:

That’s right.

Felix Frankfurter:

Is that right?

Joseph C. Waddy:

That’s correct.

Felix Frankfurter:

And what I want to know is what — what is the subject matter of the bargaining from which if I understood you, the Negro local is excluded?

Joseph C. Waddy:

Well, any matter that might come up because the Brotherhood —

Felix Frankfurter:

Well, give us a specific —

Joseph C. Waddy:

All right.

This — this type of thing suppose that we had a question of starting time.

The Local 28 would — would — and a problem arose or they wanted to change the starting time, Local 28 would do it or it was a question of lunch hour or anything of that kind, Local 28 (Voice Overlap) —

Felix Frankfurter:

Seniority questions, none?

Joseph C. Waddy:

Seniority questions, yes.

Felix Frankfurter:

And suppose — suppose the 6051 wants to have a change in the — in the existing terms about seniority.

What would it do?

Joseph C. Waddy:

6051 has no — no —

Felix Frankfurter:

What would if — but suppose the membership of 6051 —

Joseph C. Waddy:

Would have —

Felix Frankfurter:

— either some wrong to be righted, what can they do?

Joseph C. Waddy:

They’d have to go through Local 28.

Felix Frankfurter:

They’d have to stay to the — whatever the person —

Joseph C. Waddy:

To the General Chairman of Local 28.

Felix Frankfurter:

Will you do this for us?

Joseph C. Waddy:

Would you do this for us?

Now, you — and the decisions in the craft are made in view to the Local 28.

Well, how was Local 28 appointed to their position, you just have to like represent 6051 when elected to it?

Joseph C. Waddy:

It’s my — I — I don’t know whether they were elected or whether or not that they were found on the property and merely have continued as collective bargain representative or as the collective bargaining representative without a formal election, I don’t know if Mr. Hickey perhaps could inform the Court on that but I don’t know whether there was a formal election or not.

Felix Frankfurter:

But let me see if I can pin this down.

If local — if the colored members of the craft have some — feel some wrong to them or they want to have a change of terms on the local level, they would have to go through Local 28.

Joseph C. Waddy:

That is correct.

Felix Frankfurter:

And Local 28 would decide whether they would take it up with the railroad people?

Joseph C. Waddy:

That’s my understanding.

Felix Frankfurter:

And when they do take it up, how many would there be, two or three in the Committee, whatever it is.

Joseph C. Waddy:

That is correct.

Felix Frankfurter:

The representative of 6051 wouldn’t participate.

Joseph C. Waddy:

Well, the General Chairman is alleged to be their — the representative of both 28 and 6051.

Felix Frankfurter:

I’m not now —

Joseph C. Waddy:

Yes.

Felix Frankfurter:

I understand that.

But I wanted to know physically or actually, what takes place.

Joseph C. Waddy:

Physically, what —

Felix Frankfurter:

— if 20 — if 6051 says, we want to change the prevailing lunch hour or the run, some local run, he would have to apply to the chairman of 28 and 28 would decide whether it should be taken up.

Joseph C. Waddy:

That’s correct.

Felix Frankfurter:

And if it is taken up and they sit down and — and discuss with the railroad, approach the opposite number on the Railroad, 28 exclusively would sit in and not 6051.

Joseph C. Waddy:

That’s my understanding.

Felix Frankfurter:

Is that correct?

Joseph C. Waddy:

That’s my understanding, yes.

But you may —

Are the officers of 28 —

Joseph C. Waddy:

I beg your pardon?

The officers of 28 different from the officers of 6051?

Joseph C. Waddy:

They are.

(Inaudible)

Joseph C. Waddy:

Except as to the General Chairman.

The General Chairman operate — acts for the two locals.

Felix Frankfurter:

By election or by —

Joseph C. Waddy:

By election.

Felix Frankfurter:

— by the standing?

What?

Joseph C. Waddy:

By election of 28.

Felix Frankfurter:

Yes.

But 6051 elect — suppose they vote against him.

They can’t outvote him.

Joseph C. Waddy:

They can’t outvote him.

Felix Frankfurter:

I see.

All right.

Earl Warren:

May ask — may I ask this question?

On the question of seniority, suppose that some of the members of 6051 claims seniority rights that conflicted with — with the position of — of people in — in 28 and that was taken up with the company.

Who would represent the international in that situation?

Joseph C. Waddy:

Local — Local 28 would have to do with the General Chairman.

Earl Warren:

Yes.

Joseph C. Waddy:

They have to take it up.

Earl Warren:

Yes.

I just wondered if it went to that extent.

Joseph C. Waddy:

It went.

It goes to that extent.

It’s my understanding that 6051 has no contact with management except through the officers of Local 28.

Felix Frankfurter:

May I ask whether all the answers you gave to these — to these concrete questions, are they said — are they part of the complaint?

Were they part — were they before the lower court?

(Inaudible)

Joseph C. Waddy:

I think they are covered in the brief and I —

Felix Frankfurter:

I’m not asking you about the brief.

Are they before in the complaint?

Joseph C. Waddy:

Not all of them.

Not all of them are covered in the complaint.

Felix Frankfurter:

All right.

Joseph C. Waddy:

Because I think some of these questions were to the effect of the exclusion from Local 28 —

Felix Frankfurter:

Well, that —

Joseph C. Waddy:

And I don’t think that we have set out all of the effects that have been inquired of here.

Felix Frankfurter:

But centrally, your position is that you’re being discriminated against.

Joseph C. Waddy:

That is correct.

That —

Felix Frankfurter:

And therefore, all these questions that have been asked of you go to the question of what is — what is the operating discrimination?

Joseph C. Waddy:

That’s correct.

Earl Warren:

Well, you might —

(Inaudible)

Joseph C. Waddy:

That — that’s the question before the Court as to whether or not that the complaint has stated a judicially enforceable duty.

Felix Frankfurter:

But the question in turn may depend on what the facts are —

Joseph C. Waddy:

That’s correct.

Felix Frankfurter:

Whether you should go before the railway board or it can go before the Court.

Joseph C. Waddy:

That’s right.

Joseph C. Waddy:

Now, it is also alleged in the complaint that the union has — have to force them into membership in the segregated locals has refused to do anything for — to protect the Negroes.

They claim for instance and that 45 jobs were abolished in the Freight House at Houston.

And that notice of the abolition of these jobs was placed on the bulletin board.That the collective bargain and agreement itself require that prior notice to the employees affected would be given, that they have received no notice and that the 45 jobs where all jobs which were occupied by Negroes.

That after petitioners learned of the abolition of their jobs, they requested the General Chairman of Local 28, the respondent here, to take up their grievance and Local 28 and respondent refused to represent them, refused to come to their aid in any way.

In addition thereto, they claim that all of this conduct on the part of the union was a part of a course of conduct maintained for the purpose of affording inferior representation to the Negro members of the craft or class.

They alleged that the refusal of the Brotherhood to entertain their request was solely on the basis of race and also that the course of conduct, which they have mentioned, is on the basis of race.

Now, it is the position of the petitioners here that the position of the court below, holding that there was no judicially enforceable duty is unsound.

The Fifth Circuit in a per curiam one sentence opinion cited two cases, number one was the Slocum case and number two was a (Inaudible) case, a Fifth Circuit case itself.

Now, the Slocum case certainly, in my way of thinking has no application to the facts of this case.

There you have two unions contending between themselves that each of those unions was entitled to how certain work performed by members of their organization.

The Railroad Company brought a suit in the State Court of New York asking for a declaratory judgement as to which union should perform this work.

This Court held that what was necessary in that case was a an interpretation of the collective bargaining agreement and that courts were — have no jurisdiction to interpret the collective bargaining agreement but that it should go to the National Railroad Adjustment Board.

Now, I think that that is entirely a different situation than the one that we have before us in this case, wherein that the suit is against the collective bargaining representative for failure to act and for maintenance of a situation in which the plaintiffs have been discriminated against harm.

Now, the (Inaudible) case is a case which came out of the Fifth Circuit and there you had certain airline pilots who had been hired during a strike period by the National Airlines.

At the end of the strike, these pilots who had been hired to fly the planes during the strike were let out and the old pilots came back.

Thereafter, the old pilots blacklisted the — the pilots who had worked during the strike and would not let their members fly with them, set out list to other carriers that if they hire these pilots who had worked, that — during the strike that their men will strike.

Two years later, these pilots who had been let out brought a suit against the Airline Pilots Association alleging that the union was the collective bargaining representative of the pilots and was using this position to discriminate.

But I think again that here you have a situation where the persons who were bringing the suit had no stand in the suit.

They were no longer employees of the airline and — and since they were not employees certainly, they could not at that time come in and say that there was a — a violation of — of by the union of a statutory duty ought to them.

Charles E. Whittaker:

May I ask you Mr. Waddy?

Joseph C. Waddy:

Yes.

Charles E. Whittaker:

Was that an action for damages, for past breach of duty brought by the former employee pilots?

Joseph C. Waddy:

There was an action for damages as well as for an injunction.

Charles E. Whittaker:

It’s not (Voice Overlap) damages and an injunction.

Joseph C. Waddy:

That is correct.

Charles E. Whittaker:

And what is the (Inaudible)

Joseph C. Waddy:

But the suit itself and I think this is the crucial thing, the suit itself doesn’t — did not require any interpretation of an agreement.

The — the decision, the result can be placed entirely upon the fact that the persons were not member of the craft or class at all at that time because they were, they had been fired two years before.

Charles E. Whittaker:

Why wouldn’t take care of the action for damages?

Joseph C. Waddy:

Oh, no.

Joseph C. Waddy:

It would not take care of the action for damages under the Elgin case, it would not take care.

Felix Frankfurter:

Mr. — Mr. Waddy, may I ask you, what relief you — you asked for in your complaint?

What is it the federal court that you want the federal court to do?

Joseph C. Waddy:

We are asking the federal court and there are number of prayers I think, that are unnecessary but fundamentally.

Felix Frankfurter:

I don’t care about the phrases and neither do you?

Joseph C. Waddy:

That’s right.

Yes.

Fundamentally, we asked the Court for a declaratory judgment holding that the use of — by the collective bargaining representative of the Railway Labor Act and the union shop provisions thereof to compel petitioners to join the union, as a condition of continued employment and its failure thereafter and its refusal thereafter to represent plaintiffs solely on the basis of their race or color states of color or claim which is judicially enforceable in the courts.

Felix Frankfurter:

Now, let me ask you one or two questions.

You do not ask if the two unions should be called and asked into one union.

The — you were asked if the two — if the mere fact that there are two unions is wrong under the Act?

Joseph C. Waddy:

We think it’s wrong but no such prayer has been made.

Felix Frankfurter:

So, you don’t asked that the white craft members and the colored class members be all comprised under one local, say Local 28 and 6051 will be abolished, you don’t asked that?

Joseph C. Waddy:

We don’t ask that but we think the effect of it would — will bring about that because their representation, we think cannot exist in the segregation itself.

Felix Frankfurter:

Now, what is the number of — what is the membership of Local 28 in number?

Joseph C. Waddy:

I don’t know, Your Honor.

Felix Frankfurter:

About, larger or smaller than the colored?

Joseph C. Waddy:

It’s larger.

Felix Frankfurter:

Larger.

Now, suppose — suppose they say, “Very well, you don’t like to be in a union, by a — in a local by yourself we’ll include you, we’ll make one union.

And all of men who are now in 6051 would become members of Local 28.”

And then a question arose as between white and colored members of one union and the white’s outvoted you.

Could you have a remedy in Court?

Joseph C. Waddy:

Possibly not under those circumstances.

However, I feel this much that the very facts that you are in and participating in these matter that you have a voice and opportunity to sway somebody else or to be swayed, that they go to the essence of the collective bargaining process.

And of course if — if in a particular situation the majority outvotes you —

Felix Frankfurter:

Well —

Joseph C. Waddy:

— well, that — that’s a part of the democratic process but our position —

Felix Frankfurter:

But you do not ask, you do not ask the abolition of 6051 and your inclusion in Local 28, do you?

Joseph C. Waddy:

No.

Felix Frankfurter:

You say that if — whatever is you’re asked for, the pressure will be such as a consequence that they’ll have to heed you more, is that it?

Joseph C. Waddy:

That is correct.

We feel that fair representation and participation in the collective bargaining process cannot exist in the segregated local.

Felix Frankfurter:

Well, but you do not go against the segregation?

Joseph C. Waddy:

I beg your pardon?

Felix Frankfurter:

But you do not go against the fact of the segregation?

Joseph C. Waddy:

Well, we — we have, yes.

We go against that (Voice Overlap) —

Felix Frankfurter:

But not in this litigation.

Joseph C. Waddy:

I beg you pardon?

Felix Frankfurter:

But not in this litigation.

Joseph C. Waddy:

Well, there is the prayer in the suit that the — that the mere fact of the segregation is in itself unconstitutional.

Felix Frankfurter:

Well, do you ask for the declaratory judgment that that be deemed violative of the Act?

Joseph C. Waddy:

That is correct.

Felix Frankfurter:

You do ask for that?

Joseph C. Waddy:

That’s right.

For that, yes.

Felix Frankfurter:

Where is that, Mr. Waddy?

Joseph C. Waddy:

Yes.

Felix Frankfurter:

In your — in your complaint or your prayer?

Joseph C. Waddy:

In the prayer — in prayer number — prayer number three, yes, page 15 of the record.

Felix Frankfurter:

(Inaudible)

Joseph C. Waddy:

That the court (Voice Overlap) entered a final judgment and decree, (a) declaring that the segregation of Negro employees of the craft, represented by the Brotherhood into a separate local is illegal under the National Labor Relations Act, if they actually mean Railway Labor Act and it’s contrary to the union shop amendment of March 1, 1953 and to permanently and perpetually enjoin the Brotherhood its office, agents —

Felix Frankfurter:

But you do ask for that?

Joseph C. Waddy:

Yes, we do ask.

Felix Frankfurter:

Perhaps — perhaps it’s appropriate at this point to ask your comment on the fact if — I believe it’s a fact, that Congress was — that Congress refused to — to provide explicitly for the prohibition of such segregation.

Joseph C. Waddy:

That is my —

Felix Frankfurter:

Do you mind making comment on that?

Joseph C. Waddy:

Yes.

I’ll be happy to.

Joseph C. Waddy:

We feel that the fact that Congress might not have made a specific prohibition of the segregated local was no of apart to the beneficiaries of the statutory power or to carry on segregation.

In other words, there — the fact that they did not specifically prohibited and did not say that, “You may not take — your property without due process there’s no authority to take it without due process.”

And in addition to that, we feel that Congress could not constitutionally authorize segregation.

And furthermore, regardless and whatever they meant in that, we feel further that they did not intend that a situation such as it’s shown here, where the employees is forced into the union and then the union refuses to do anything for him after enforcement on the ground was raised.

Certainly, that situation was not contemplated by the Congress at the time that it amended the statute in 1951.

Now, we feel that the holdings of the court below are first, is unsound because if there is no duty on the part of the collective bargaining representative to represent fairly and to refrain from using its statutory position except in the case of the making of the contract then the union would be free to otherwise discriminate at will.

And there would be nothing whatsoever that a person discriminated against could do and they — their rights would be completely lost under the operations of a federal statute.

We feel that Congress in establishing the Railway Labor Act and placing the duty to represent intended that the duty would be coextensive with the authority and power that was given the representative.

And since that is true, the power and authority extends beyond the making of a contract and goes to the entire collective bargaining process.

Now, we feel further that Congress never intended that the Railway Labor Act should be used for the purpose of excluding members of the craft for membership in the union or relocating them to a separate local.

There, this Court said — this Court said in the J.I. Case Company case that the very purpose of collective bargaining was to secure for the members of the craft, rights which they could not get individually and then this Court came along in Steele case — in the Steele case and said that the very purpose of — of providing for a representative was to secure those benefits of collective bargaining that this Court had mentioned in the J.I. Case Company case.

We feel also that the decision of the court below is contrary to the opinions of this Court in the Steele, Tunstall, Graham and Howard cases.

And particularly, we feel that the Howard case which extended the doctrine of the Steele case which says that the union may not use its position and power to discriminate, certainly goes beyond a question of a making of contract because its position and power are — is — are greater than the mere making of a contract.

Now, the court below has further in effect held that the collective bargaining representative might have a dispute with a member of the craft or class and that dispute must be carried to the National Railroad Adjustment Board.

Now, we feel that that is entirely unsound and that this Court said so in Steele that this Court said — that Section 3 First (i) who had sets up the National Railroad Adjustment Board makes no mention of the dispute between the collective bargaining representative and the individual member of the craft.

Therefore, that you do not have a situation where as any interpretation of the agreement, this is a dispute which was called out from those which were placed under the National Railroad Adjustment Board at the time the statute was amended.

We feel further that there is no contract in this case to be interpreted.

What we are concerned with here is not the meaning of the contract, the collective bargaining agreement but the conduct of the representative in connection with the representation or lack of representation which this record reveals.

(Inaudible)

Joseph C. Waddy:

Not that I know of (Inaudible)

The only place where the collective agreement comes to this picture is the fact that the Brotherhood refused to entertain the complaint of the Negroes that — that had been a violation of the agreement.

This is not a situation where we are asking — saying that the agreement asking for a relief for the violation of the agreement.

We are asking relief here against the Brotherhood for refusal to entertain the agreement solely, on the basis of race.

Felix Frankfurter:

Could you have gone to the Adjustment Board?

Joseph C. Waddy:

I think that we could have gone to the Adjustment Board in a complaint against the carrier on the contract.

But I think that’s entirely different situation, I think that’s a concurrent remedy which would have —

Felix Frankfurter:

Well, I mean on — about that for which you complain namely, that the Chairman of 28 and sitting down with the Texas Railroad people didn’t have in mind and consciously, purposely excluded from his consideration grievances that you had, your clients had.

That’s your position, isn’t it?

Well, the —

Joseph C. Waddy:

That is — that is the part of my position.

Felix Frankfurter:

Now —

Joseph C. Waddy:

The other position is —

Felix Frankfurter:

Now, before you get on to the other.

Could that question have been brought before the Adjustment Board?

Joseph C. Waddy:

It could not have.

Felix Frankfurter:

Could not.

Joseph C. Waddy:

It could not have.

Felix Frankfurter:

Why not?

Joseph C. Waddy:

Because that is a question between the union and the individual.

Felix Frankfurter:

And you can’t — the Adjustment Board has the only complaint against the carrier.

Joseph C. Waddy:

Against the carrier that is correct.

Felix Frankfurter:

Now, but could you go to the Adjustment Board and say, the carrier in collaboration with 28 shutout grievances that you have.

Joseph C. Waddy:

I think we would still be in Court.

Felix Frankfurter:

Pardon me?

Joseph C. Waddy:

I think, it would still be in Court with an allegation at that time that could —

Felix Frankfurter:

Could you with such an allegation go before the Adjustment Board?

Joseph C. Waddy:

I don’t think we could because —

Felix Frankfurter:

As the carrier —

Joseph C. Waddy:

— it does not require.

Felix Frankfurter:

The carrier here — the carrier here has no business to negotiate with 28 knowing, I’m assuming I don’t know any of the facts, knowing that some of the craft were not represented but misrepresented as it were by Local 28 Chairman.

Joseph C. Waddy:

That is correct.

And I —

Felix Frankfurter:

That would be grievance before the Adjustment Board, wouldn’t it?

Joseph C. Waddy:

I — I think, that it would not be a grievance —

Felix Frankfurter:

Would not be?

Joseph C. Waddy:

Would not be grievance because of the fact that there is no way a contract to be interpreted.

Felix Frankfurter:

Oh, but under the contract of — you’ve got an underlying right to be treated on inequality with everybody else.

Joseph C. Waddy:

That is correct.

Felix Frankfurter:

Insofar as racial discriminations is concerned.

Joseph C. Waddy:

That’s correct and I think that —

Felix Frankfurter:

Why is not grievance you could bring before the Adjustment Board?

Joseph C. Waddy:

It is not because I feel that the Adjustment Board is a limited board.

Its jurisdiction is limited only to the interpretation or application of a grievance and that when it comes down to the question as to the whether or not the collective bargaining representative has used its statutory power to discriminate that that matter and I think this Court so held in Steele and Howard.

That those matters are matters for the courts and that if they were not matters for the court and they were relocated to the Adjustment Board, the right to fair representation that the Negroes were entitled to would be sacrificed and obliterated because the fact that the union sit on the National Railroad Adjustment Board.

The railroad companies sit on the Adjustment Board so that once you have — you have the same people that your complaining against that it was in judgement on your complaint.

And certainly, that would not be inadequate remedy and I think this Court has so held.

Felix Frankfurter:

Well, suppose all — what Steele held was, if I understand it, that the collective bargaining — those who have authority to bargain for all the members of a particular craft within the railroad world must fairly represent — must represent all the members of the craft at least to the extent of not making a differentiation on the basis of rate.

Joseph C. Waddy:

That’s correct.

Felix Frankfurter:

And you say, that under the Act of 1951 not only your member of a craft but you must be a member of the union.

Joseph C. Waddy:

That’s right.

Felix Frankfurter:

And therefore, a fortiori as a member of the union, you are to be bargained for on the same basis as the white local —

Joseph C. Waddy:

That is correct.

Felix Frankfurter:

Is that your position?

Joseph C. Waddy:

That is correct.

Felix Frankfurter:

Is that your position?

Joseph C. Waddy:

That’s my position.

Now, we finally would say to the Court that with respect to the broad issue which is here posed.

We feel that this Court should hold that federal courts may entertain a complaint of Negro members of a craft or railroad workers against their collective bargaining representative which alleges that the representative in carrying on a plan course of conduct, designed to discriminate has used its statutory power and position to exclude complainants solely because of their race from participating in the collective bargaining process.

We feel that this Court should also hold, as it did in Steele that a complaint alleging that the union has discriminated against the individual is not a matter for the National Railroad Adjustment Board.

And finally, we feel that this Court I hope that the federal courts have jurisdiction to entertain the complaint of Negro members of a craft and railroad workers which alleges that their exclusive bargaining representative under the Railway Labor Act has used its statutory position and power to compel Negro members of the craft or class to join a racial and segregated local solely because they are Negroes and for the purpose of affording them representation inferior to and different from that afforded to the white members of the craft.

We would like to reserve the balance of our time until — after the respondent.

Earl Warren:

You may — you may.

Mr. Hickey.

Edward J. Hickey, Jr.:

May it please the Court.

Your Honors, I represent the respondents on this appeal to where the defendants in the action below.

Brotherhood of Railway and Steamship Clerks and the General Chairman of the Brotherhood on the Texas and New Orleans Railroad and the Division Chairman, let me say this at the outset that my reaction to the argument just made by Mr. Waddy on behalf of the petitioners is identical to the reaction I had when I read his brief.

His basic proposition of law that the fiduciary duty imposed by the Railway Labor Act on the bargaining representative is not limited to the making of an agreement but extends to the total power or authority of the bargaining representative under the statute may well be correct.

I am not prepared in this case to say that it is not.

I do want to say, however, that I don’t think that it is involved in this case because the facts of this case as we view them do not support either a claim of the bargaining representative has abused its statutory authority or that the bargaining representative has breached its fiduciary duty.

It will be my purpose to show that when the complaint is carefully analyze with respect to its concrete factual allegations concerning the action and the conduct of respondents or the Brotherhood, I refer to the respondents collectively as a Brotherhood, it fails to establish any abuse of statutory power by the Brotherhood or any breach of its fiduciary duty.

Edward J. Hickey, Jr.:

In other words, Your Honors, we do not believe that the issues as they have been presented in petitioners brief and as they have been argued here today find support in the concrete facts of this complaint.

And we believe that petitioners are presenting to the Court academic or abstract issues of racial discrimination for determination.

To be specific, may I refer to the statement of the questions presented for determination.

(Inaudible) before us in this case except the complaint?

Edward J. Hickey, Jr.:

No sir.

The whole — everything that — all the fact is going to be in there.

Edward J. Hickey, Jr.:

That’s correct sir and I — I think that the — the facts of the complaint as Mr. Frankfurter as — as did Mr. Justice Frankfurter has indicated by his questions are most important in this case and I intend to go into them carefully in support of the position I have just taken.

Hugo L. Black:

Are you saying there that assuming if the Court would have jurisdiction, it had properly stated the cause of action of discrimination they have failed here, the facts are not sufficiently show a cause of action —

Edward J. Hickey, Jr.:

Yes, sir.

Hugo L. Black:

— and discrimination?

Edward J. Hickey, Jr.:

Yes Mr. Justice Black.

Hugo L. Black:

Why does that go to jurisdiction?

Why does that not go sufficient to the complaint?

Edward J. Hickey, Jr.:

The — we took the position in the court below Mr. Justice Black, that the complaint failed to state a claim upon which relief could be granted, that it — that the Court lack jurisdiction over the subject matter of the complaint that it failed to name an indispensable party defendant, the Railroad.

And it is our position that on the ground on which petitioner actually teaches his case in terms of isolating the Railroad, that it comes down to that if we meet him squarely on that ground that it fails to — with respect to the claim of segregated local large is, fails to present a justiciable issue and fails to state a claim upon which relief can be granted.

But if we look at the case in terms of its substance as distinguished from the form in which it is cast, we believe that the court below was correct in viewing it as essentially and in substance a complaint against the Railroad.

Although the Railroad was not named for discrimination and violation of the agreement by the Railroad which claim should be subject to the exclusive jurisdiction of the National Railroad Adjustment Board.

Felix Frankfurter:

Are you saying — are you — are you implying that this complaint couldn’t have been cured by bill of particulars or by — or are there motion — a motion to make it more particular would have been futile because it has an inherent defect —

Edward J. Hickey, Jr.:

Yes sir.

Felix Frankfurter:

— non-jurisdiction, that’s what you’re saying?

Edward J. Hickey, Jr.:

Yes, I am.

Felix Frankfurter:

That’s what you have to say, don’t you?

Edward J. Hickey, Jr.:

I think, I — I have to say it —

Felix Frankfurter:

I mean that —

Edward J. Hickey, Jr.:

I think I can —

Felix Frankfurter:

I mean —

Edward J. Hickey, Jr.:

I think, I can say it.

Charles E. Whittaker:

Mr. Hickey, if I may ask for understanding please.

Is it not true that while the complaint contained a prayer for several types of relief and the motion to dismiss filed by you was based on several grounds.

Yet, the only grounds sustain by the Court was that exclusive jurisdiction to rule on this case was vested in the Railway Labor Board.

Edward J. Hickey, Jr.:

That is correct, Mr. Justice Whittaker.

Charles E. Whittaker:

So, is it quite correct then to say that you contend that even if there was jurisdiction, no cause of action here has been stated.

Isn’t the only question that’s before us is whether there was jurisdiction?

Edward J. Hickey, Jr.:

Mr. Justice Whittaker, I believe that we are permitted to argue before this Court in any ground which we urge below which will support the judgment of dismissal of the complaint.

That is my — that has been my view.

Charles E. Whittaker:

For failure to state facts sufficient to constitute a cause of action?

Edward J. Hickey, Jr.:

Yes, Your Honor.

Charles E. Whittaker:

Well, all is decided by the court below is that exclusive jurisdiction is in the Railway Labor Board.

Edward J. Hickey, Jr.:

We feel that as — as the argument develops, we actually can support the judgment of the court below on the question of a lack of jurisdiction over the subject matter and the presence of jurisdiction in the Adjustment Board.

But it is my position that even if we do not succeed in doing that with respect to both of the claims present in this case that if their judgments of dismissal are correct that we are properly urging a ground which we raised below in which the Court held, it was unnecessary to reach.

The Court said in our view since we hold that these claims are subject to the jurisdiction of the Adjustment Board, it is not necessary to pass on the other grounds of the motion to dismiss.

Now, the case has been so cast in terms of isolation of what we view to be the real substance of this complaint of the Railroad, that we are trying to meet the case on the same ground that it’s been briefed and it’s been argued by petitioners.

Hugo L. Black:

I might state for myself that I would much further if you argue that for delaying for this reason, I might state what’s in my mind.

If there’s an amendable detail it really just a failure to say the cause of action in a proper language and fixing charges, I would find it rather difficult to say with — state in the Court a complete and total dismissal of the case, I’m talking about Court, the claim can be reached by (Inaudible) —

Edward J. Hickey, Jr.:

The — the —

Hugo L. Black:

(Inaudible) interested in your discussion as to the jurisdiction.

Edward J. Hickey, Jr.:

Mr. Justice Black, may I say this, I think that the two arguments is — as we make an actually call less.

I am not talking of — of technical defects of omission.

I’m talking of defects and omissions of real substance as I will now attempt to make clear as I was preparing to invite the Court’s attention to the questions presented in support of my position actually abstract issues are being presented here.

First of all, on page 3 of petitioners’ brief, they state that the basic proposition of the law here is whether a bargaining representative violates its fiduciary duty to all members of the craft under the Railway Labor Act when it bars them, meaning petitioners, for membership and its local lodge which carries on the collective bargaining process.

Now right there, there is not a single allegation nor could there be, and that’s why I say this is not technical to support the statement that the union bars them from membership in its local lodge.

It then goes on and states that the union uses its statutory position to compel them to maintain membership in an inferior racially segregated local.

There are no allegations which will support the statement that the union uses its statutory position to do these things.

It refuses to exert any effort toward the maintenance of the collective agreement insofar as it pertains to Negro members of the craft.

That is very important.

And it has been the subject of much questioning by Mr. Justice Frankfurter and Mr. Chief Justice.

In our view, there is not a single allegation of concrete fact in this complaint which will support that statement that the union is carrying on a course of conduct of refusing to exert any effort towards the maintenance of the collective agreement.

This complaint —

Hugo L. Black:

You’re going to point out why —

Edward J. Hickey, Jr.:

Yes.

— Sections 8, 9, 10, 11 of the complaint —

Edward J. Hickey, Jr.:

Yes.

Hugo L. Black:

— that made up to that particular part of the charge?

Edward J. Hickey, Jr.:

Yes, sir.

Felix Frankfurter:

I would add 7 too.

Edward J. Hickey, Jr.:

And then it goes on and it — it states that the union refuses to take any steps to investigate and redress their wrongs so this were continuing constant things, we say there are no allegations to support that.

Now —

Felix Frankfurter:

Right there, Mr. Hickey.

This last — this last inadequacy it could be one — that could be — that could be amended by saying from January so and so to October so and so, wouldn’t that — would such an allegation take care of that.

Edward J. Hickey, Jr.:

Yes, Mr. Justice, if there were in existence any factual situation to — to warrant such as — such an amendment.

Felix Frankfurter:

There is no possible way in which we could know whether there is or isn’t.

Edward J. Hickey, Jr.:

There’s no —

Felix Frankfurter:

Provided it’s amendable to make it more particular.

Edward J. Hickey, Jr.:

My point, Your Honor —

Felix Frankfurter:

When you say jurisdiction and — and the case is here only on the — on your first generalize statement.

It means that no amount of — that the mandatory power of the District Court, the power of the District Court to allow plaintiff to amend couldn’t possibly — couldn’t fairly cure the — the generality of their allegation, isn’t it?

Am I wrong about that?

Edward J. Hickey, Jr.:

No, you’re not wrong about that.

But I — I’m trying to say that there — there really isn’t any charge in this complaint that the Brotherhood has persistently and consistently refused to represent the Negro petitioners in collective bargaining.

This complaint doesn’t even say that at least —

Hugo L. Black:

You leave — you leave at the words “persistently and inconsistently”.

Are you saying that the complaint does not charge as they have carried out a program of abolishing jobs and then reinstating so as to keep them from getting back into work?

Edward J. Hickey, Jr.:

Yes, sir.

I am —

Hugo L. Black:

You — you claim that it does not (Voice Overlap)–

Edward J. Hickey, Jr.:

I claim that it does say that.

Now, what does the case really involve, what are the concrete facts?

They actually blow down in our view to two separate and unrelated claims.

The first is that the Brotherhood is violating the Railway Labor Act by its maintenance of separate locals for white and Negro at Houston and —

Harold Burton:

(Inaudible) any of the locals, know nothing more.

Edward J. Hickey, Jr.:

I’m going to add one other allegation that is made, Mr. Justice Burton and compelling the Negro members to join Local 6051.

Now right there, there is not a single allegation that the Brotherhood has ever refused to admit any of petitioners to Local 28.

There is no allegation in fact that any of petitioners ever sought admission to Local 28 and I hope that no member of this Court will feel that I am quibbling when I say that that is a very important matter of substance and not a technicality.

The reason —

Earl Warren:

What is the fact in regard to that?

Edward J. Hickey, Jr.:

The fact is that no one has ever applied, Your Honor.

No one has ever been turned down.

And I — I would prefer rather than to go out of the — outside the record of this case except of course, I — I will always answer questions.

I would like to illustrate what I mean by the distinction between the allegations here of compelling them to join Local 6051 and the lack of any allegations if they’ve ever tried to join Local 28 or they’ve ever been denied admission to Local 28.

A case referred to in our brief, Taylor against the Brotherhood of Railway and Steamship Clerks decision by the United States District Court for the District of Columbia concerning such a situation as we have here.

That case is fully litigated now, the decision of the District Court was not appealed and the situation there was that a violation with the provisions of the Railway Labor Act was the point because of the existence of a segregated lodge in Baltimore similar to the one maintained here and there as here.

There had been no efforts made to join the white local during the course of a litigation and while depositions were being taken.

The President of the Brotherhood Railway and Steamship Clerks, Mr. George Harrison took the position that if any such applications were made, they would be honored.

And to my knowledge that has been his consistent position in all segments of the country.

Hugo L. Black:

Did you demur to this complaint on the ground that it failed to allege an application and the refusal?

Edward J. Hickey, Jr.:

I file a motion, Your Honor on the ground that with respect to this particular claim concerning the segregated locals that it fails to present a justiciable issue.

Hugo L. Black:

Well of course, the thing that I get — I don’t like to interrupt you but the thing I get back to you, if it’s amendable in that respect and that’s just one allegation that’s needed to make it a — and you admitted to give jurisdiction.

Would we be justified in saying if the Court had a right to draw it out entirely on the ground without jurisdiction?

Edward J. Hickey, Jr.:

Your Honor, I’m trying to point out that it couldn’t be amended.

Hugo L. Black:

Well, suppose they amended it just to say exactly what you said?

Would it — would the Court then have jurisdiction?

Edward J. Hickey, Jr.:

If they said what I’ve said, they would necessarily read themselves out of Court because they would —

Hugo L. Black:

Well, you mean they couldn’t prove it?

Edward J. Hickey, Jr.:

Well, they haven’t applied for membership.

Hugo L. Black:

But I say, you mean they couldn’t prove it.

But suppose they alleged it even though they didn’t prove it.

Could the Court dismiss the case for lack of jurisdiction or would it have to by some kind of a preliminary pretrial or trial to decide against them on that issue?

Edward J. Hickey, Jr.:

If — if you have the situation where there have actually been an application to enter the white local and they have been turned down and that was alleged in the complaint, you would have an entirely different issue before this Court, in my view, and one over which they might very well have jurisdiction.

I will — I would prefer not to answer that — the — the answer to that issue on behalf of my client but as a member of this bar, I’ll answer it that I think that it would probably violate the Railway Labor Act.

Felix Frankfurter:

Mr. Hickey, we’re in days when pleading can be awfully free and easy so long as essential was stated.

Felix Frankfurter:

Would you be good enough to turn to page 9 of the record, roman paragraph 7 in which I find this sentence, “The plaintiffs and those whom they represent have been compelled to join Local 6051, solely because they are members of the Negro race.”

Edward J. Hickey, Jr.:

Yes, sir.

Felix Frankfurter:

Well, if that doesn’t mean they couldn’t join all the events, why isn’t that enough to indicate that they’re in 6051 because they couldn’t be in 28?

Edward J. Hickey, Jr.:

Your Honor, I am trying to illustrate that very thing by stating that there is in my view a very basic distinction between what is alleged here and the failure to allege that they have ever tried or that they have ever been refused admission to the white local.

Felix Frankfurter:

They — they do it — they do it the other way around.

There is what the New York lawyers call a negative pregnant there.

Edward J. Hickey, Jr.:

But the same allegation, Your Honor, the same allegation precisely, and the same situation precisely existed in the Baltimore situation and when they did make application for admission to the white local, they were admitted.

Felix Frankfurter:

Well, that takes us to Justice Black’s suggestion.That as a matter of fact, they can’t make good on this allegation.

Namely, that they were — if — if I can compel to join one club presumably would the differentiation there is it isn’t too big a jump to imply couldn’t have joined the other club?

Edward J. Hickey, Jr.:

It is for me unless you try to join, I don’t see how you can —

Felix Frankfurter:

Well, all I’m saying it isn’t so, it isn’t such a — such a negation, it isn’t such a — it doesn’t need so much room that I could have joined that you can’t allow me to amend that statement.

But if I said, I had to join this particular club in a law school, you might say, “Couldn’t you have join the other one?”

And I might say yes or no.

Edward J. Hickey, Jr.:

Yes.

Felix Frankfurter:

But it isn’t so unrelated to say, “I was compelled to join Local 6051, that the inference is that I couldn’t join 28.”

Particularly, when you deal with the subject about which one has some judicial notice.

I’m not questioning Mr. Harrison’s attitude or that of anybody else.

I’m talking about the — the central thing, namely, is there nothing here on which the Court could have fastened its authority by appropriate amendment of the pleadings?

Edward J. Hickey, Jr.:

I don’t think so, Your Honor.

I don’t think that this pleading could possibly be amended by petitioners to state a justiciable issue because they have in fact never sought a Commission and they have never been denied and I doubt that they ever will be denied.

But over and above that point with respect to this particular issue, we raised the further point that it also states — fails to state a justiciable issue because of the action of Congress in passing a union shop amendment to the Railway Labor Act.

As Mr. Justice Frankfurter has already indicated at the time that the amendment was under consideration in both the Senate and the House, there were very active efforts made to have Congress declare that anyone who maintained a segregated local would be barred from the benefits of the Railway Labor Act.

The Congress expressly — excuse me sir, expressly refused to so declare.

They also went so far as to expressly refuse to declare that the denial of admission to membership would be a violation of the union shop provisions of the Railway labor Act.

We have those statements of the House and Senate Committee set forth in our brief.

I won’t take the time of the Court to detail them here but they are quite concrete and they do amount to just that.

Now, Congress did, however, make its protection to the members of the craft, extend to protection of the workers job in a very carefully condition.

The permission it extended for railroads and railroad organizations to make union shop agreements, in such a way that if a man’s condition of employment were not extended on a uniform basis available to all other members, then he could get relief under the Railway Labor Act union shop provisions.

And that is the — that is the point that we wish to make here in terms of our further argument, this fails to state a justiciable issue, that in the absence of any deprivation of employment or in the absence of any allegation that employment is threatened on the part of any of the petitioners, the maintenance of separate segregated locals even assuming for the purpose of this argument that the Negro members are barred, fails to state a justiciable issue.

Now, it is our position with respect to the first claim of the complaint, the allegations of which, boil down actually, all appear in paragraph 7 to which Mr. Justice Frankfurter has pointed on pages 9 and 10 of the record.

Edward J. Hickey, Jr.:

Now, the other claim in the case —

Earl Warren:

Mr. Hickey may I — may I ask this question.

As I understood you in response to Mr. Justice Frankfurter, you said that without binding your clients but as a member of the bar you would be forced to say that if — if they had alleged that they had made application to join the white union and had been denied that it would have put them in Court, that they — they could have stated the cause of action.

Did I — did I misunderstand you in that or –?

Edward J. Hickey, Jr.:

I may have misspoke there, Your Honor.

They would have stated a cause of action to the extent that I was making that other point that actually, they hadn’t shown any segregation as such.

Earl Warren:

Yes.

Edward J. Hickey, Jr.:

But they would’ve stated a cause of action with respect to segregation.

Earl Warren:

Yes.

Edward J. Hickey, Jr.:

But they still even so were not stated justiciable issue as I understand and read the legislative history accompanying the union shop provisions to the Railway Labor Act for the reason that there has been no deprivation of employment.

No allegation that anyone is threatened with deprivation of employment or that membership in the segregated local is made a condition of his employment.

The — the complaint is not inadvertent on these matters.

The more you study there’s a very careful juxta-position of the provisions of the statute as though there were an actual violation of those statutes but not once in any of the allegations, is there any statement made nor is — in fairness to Mr. Waddy, has he made any contention that anyone has been forced to join as a condition of their continued employment, forced to maintain membership in the segregated local as a condition of their continued employment.

Earl Warren:

Well, the — the thing that bothers me is — is this.

The — the Court decided or dismissed this on one — on one theory that — that didn’t have jurisdiction.

Now, if — if those things had been alleged in the complaint, what is there in the decision of the Court to indicate that it — it might still have said that the matter was entirely within the jurisdiction of the Labor Board?

That’s the thing that bothers — bothers me.

Edward J. Hickey, Jr.:

That’s — that’s a very good question, Your Honor.

Actually, this particular issue that I am discussing now was not pressed in the courts below when which it has been pressed here.

To some extent, I think that maybe responsible for their judgment and their concern primarily with the second claim made with respect to deprivation or abolishment of jobs.

But I do believe, to answer your question directly, that the judgement of the Court on the matter of jurisdiction can be supported on this ground with respect to this issue concerning segregation.

The provision of the statute is clear, we think, with respect to the necessity of — of some allegation concerning deprivation of employment or making it a condition of employment.

The provision of the agreement is completely consistent and that — that is conceded by petitioners with the provisions of the statute so that you have no problem of an invalid violation — any violation of the statute itself.

So, the matter would come right now to a question of whether the provision of the agreement, the union shop agreement which is made in 1953 was or was not violated by the maintenance of the segregated local, absent some allegation concerning employment of any of the petitioners and that too would be a matter normally within the jurisdiction of the Railroad Adjustment Board because it — it amounts to a claim that this particular provision of the bargaining agreement made in 1953 is not being lived up to by the Brotherhood.

Felix Frankfurter:

Mr. Hickey, I’m sorry that I have to ask you so many questions but I think this is the domain which is so ticklish that questions and answers bring out the point.

As I understood your answer to Chief Justice’s question.His question was supposed they had said explicit that they couldn’t join or they have compelled to join 6051 because they weren’t allowed to join 28.

You said that — that would be — that isn’t what is alleged, but you said even that wouldn’t state a justiciable question — controversy because you say, Congress by not legislating that, didn’t make that a protected right.

Edward J. Hickey, Jr.:

Precisely.

Felix Frankfurter:

But, I want to ask you this.

Assume that were alleged explicitly and it went on and said, “Because we’re in a segregated union, the Chairman of the 28, the 28 dominates the bargaining and by dominating, not giving us a voice in it, subordinates and denies some of our equality of rights,” would that have been a good — good complaint?

Edward J. Hickey, Jr.:

That might well be.

Felix Frankfurter:

Now, what I want to know, is there nothing in your view in this complaint on which one can say enough is said even though not with particularity that they do not need to raise the abstract question of segregation but they use that’s made of the segregation and the use that’s made of it disadvantages them in the things that matter to Railroad employees, lunch hour, runs, seniority, etcetera.

You say there is nothing in there by which they say because of the segregation that they had disadvantage in view of the fact that 28 does all the bargaining and they’re not to use it?

Do you say there is nothing in the complaint?

Edward J. Hickey, Jr.:

I didn’t say that, Your Honor.

Felix Frankfurter:

You have to say that, don’t you?

Edward J. Hickey, Jr.:

No, I didn’t say it.

Felix Frankfurter:

Well, but you have to say it in order to sustain one jurisdiction.

Edward J. Hickey, Jr.:

Mr. Justice Frankfurter, may I say this.

The discussion of — between you and Mr. Waddy with respect to bargaining and Local 6051 is not my understanding at all, what goes on.

I don’t think that there are any allegations that in this complaint — I don’t think that this complaint is even aimed or proposes to deal with a situation of where the union is failing to handle grievances on behalf generally.

Grievances regarding lunch hours and seniority and those things on behalf of Local 6051.

The fact of the matter is, that Local 6051 as is generally true in — in this union all over the United States has its own grievances as they call it, has its own grievance committee and it can take a matter and it does every day of its life, take matters up to a certain level.

Felix Frankfurter:

That isn’t what I get out of the complaint, Mr. Hickey.

Edward J. Hickey, Jr.:

Well —

Felix Frankfurter:

And I — I think to disclose by mine quite completely, I think, I get enough of intermission or emanation to indicate the contrary not that this or that particular thing but of the process discriminates against them in view of the fact that they haven’t done or locate it.

Edward J. Hickey, Jr.:

Well —

Felix Frankfurter:

That’s what I get out of the complaint.

Edward J. Hickey, Jr.:

I don’t — I have never — and I read this complaint many times and I’ve read it carefully.

I don’t get anything more out of this complaint than that — this segregated local is maintained and that the petitioners are compelled to join and secondly, that the Railroad abolish certain jobs because of a contract by which at least certain property, formally operated by it to the Southern Pacific Transport Company.

And when it turned — that property over under lease and the docks and the Freight House to the Southern Pacific Transport Company, it made certain reductions enforced.

And that because the Railroad did that and because in doing it, the Brotherhood did not prevent that action but as the complaint says, “Suffered it to transpire and did not come to the aid of plaintiffs, that the Brotherhood violated its fiduciary duty.”

Now that to me is the substance.

Those are the concrete facts of this complaint.

Anything else, I can only get from the argument in Mr. Waddy’s brief or some sweeping statements that are made in terms of the prayers for relief.

But I actually don’t believe this complaint deals with anything that those two specific situations, that’s been our position throughout and that is our position now.

Now, with respect to that second situation, and let me deal with that for a moment.

What happened was simply this.

The — and I’m going to keep myself within the confines of the allegations of fact in this complaint.

The Railroad made a lease with the Southern Pacific Transport Company, as a result of which, it lost jurisdiction over the maintenance of certain of the docks and the Freight House.

Edward J. Hickey, Jr.:

It turned that work over under the lease to the Southern Pacific Transport Company and when it did, it curtailed its forces to the extent insofar as petitioners are concerned in the laborers ranks by 45 jobs.

It abolished those 45 jobs and the petitioners state that the — a notice was published.

They go on to state, however, that his action by the Railroad violated the collective bargaining agreement.

They don’t say wherein it was violated.

They don’t point to any specific provision but they do say that it was violated.

They then say that the Brotherhood suffered this to transpire and did not come to plaintiff’s aid.

They further state that the Brotherhood did repeatedly fail to hear them on this grievance.

But then they go ahead and then the very next paragraph in the complaint, they admit that the Brotherhood informed them.

That paragraph is — that I’m now referring to is on page 12 of the record as a part of paragraph 8.

The Brotherhood did inform them that what had happened had happened because of the leasing of the potions of the docks at the Houston Freight House by the T.& N.O. Railroads to the Southern Pacific Transport Company and that nothing could be done.

Now, I submit —

Hugo L. Black:

But that’s not all they alleged.

They alleged that jobs were abolished.

No other jobs were abolished except those held by Negroes that the next thing is that jobs which were all Freight House were not abolished from persons who were immediately hired to perform said jobs doing the same type of work, same class of work had been — had been done before that the white people were all replaced but no colored man was replaced that this was done they say, that another colored people was subjected and none the white people was subjected to this provisions that they alleged on page 13.

That their jobs were not abolished to white people not compelled to join International Brotherhood and all this was done on account of a planned course of conduct designed to discriminate against Negroes.

Edward J. Hickey, Jr.:

Now let me answer that, Mr. Justice Black.

Hugo L. Black:

Why doesn’t that fit the Howard case almost precisely?

Edward J. Hickey, Jr.:

Precisely for this reason, Mr. Justice Black.

In the Howard case, the discrimination was affected under the compulsion of an agreement made by the Brotherhood in that case with the Railroad and deliberately designed to accomplish the discrimination.

In this phrase, there is not only no agreement but I won’t stand on that ground alone.

There was no participation in the discrimination by the Brotherhood —

Hugo L. Black:

But they say there was.

Edward J. Hickey, Jr.:

No.

They do not sir.

Hugo L. Black:

As I read the complaint that —

Edward J. Hickey, Jr.:

Well —

Hugo L. Black:

— they say about the union defendant and they just say that all of these happened as a result of a planned course of conduct.

Edward J. Hickey, Jr.:

Your Honor, I failed to find a single —

Hugo L. Black:

Well, that could be if — if that’s not sufficiently different, if I’m wrong in thinking, it’s pretty clear the definition, not sufficiently different that one additional cause could be added very easy could it?

Say that’s not merely that the union, instead of saying it — it was a plan course of conduct they could add the word by the union.

Edward J. Hickey, Jr.:

No, sir.

Because they don’t even intend that, Your Honor.

Mr. Waddy doesn’t even intend to state to Your Honors today, that this complaint charges the union with agreeing with the Railroad.

Hugo L. Black:

I’m not talking about agreeing with the Railroad.

Edward J. Hickey, Jr.:

Or —

Hugo L. Black:

What difference would it make whether they agreed with the Railroad and did it themselves.

I don’t see where that would make any difference and I thought we said so in Howard.

The dissenters there took the view that because these people were not members of the union, they could — they were told duty to protect and — but they — even the dissenting opinion.

It seems to me that the Howard case would support the view that the plaintiffs alleged here enough to — for the Court to — to invoke the jurisdiction of Court.

Edward J. Hickey, Jr.:

May I answer that —

Hugo L. Black:

They alleged the abolishment of jobs that was done for the purpose of — of depriving these colored people out there that it did do that and indemnify any of the white people as all part of the plan course of conduct to achieve that in.

Edward J. Hickey, Jr.:

Your Honor, the Howard case very clearly involved an agreement in a concert of action and a complete participation in by two sets of parties, the Railroad on the one hand and the Brotherhood on the other.

They dissent and the case went off on the ground of whether or not the obligation was owed by the Brotherhood to the petitioners in that case because they weren’t members of that union and the Court held that he have the obligation, the bargaining representative under the Railway Labor Act not to visit discrimination through the compulsion of an agreement on anybody whether he’s a member of his own union or not.

But the basic distinction which I am trying to stress in answer to your question between the Howard case and this case here is, that all of the discrimination, every bit of the discrimination that was practiced is alleged to have been done by the Railroad acting solely on its own —

Hugo L. Black:

Suppose you’re wrong —

Edward J. Hickey, Jr.:

— not with any —

Hugo L. Black:

— suppose you’re wrong in that and the complaint is enough.

Say that they’re charging the union with this discrimination, would the Court have jurisdiction?

Edward J. Hickey, Jr.:

Then you raise squarely an issue which I say is a very difficult issue —

Hugo L. Black:

Well, is it difficult —

Edward J. Hickey, Jr.:

— of whether —

Hugo L. Black:

— in the light of Howard?

What we said there was, as previously noted, this train workers are threatened the lost of their job because they are not white and for no other reason, is that not alleged here?

Edward J. Hickey, Jr.:

That’s alleged to that much.

Hugo L. Black:

And what you say is, if they do not say the union did it but that they are charging the Railroad and bring a suit against the union although they charged at the Railroad.

Edward J. Hickey, Jr.:

I did say that.

Now, let — let my answer that question.

I — I don’t want to dodge it but I — I do — I do feel this way that if that issue were squarely presented, if this were a complaint that the Railroad and the union did this either by agreement or by conspiracy or — or that they even jointly participated in this.

If this were such a complaint, then you have before you, the very difficult question of whether to extend the doctrine of the Steele, Tunstall, Graham and Howard cases —

Felix Frankfurter:

Let me add another complication.

Edward J. Hickey, Jr.:

Yes, sir.

Felix Frankfurter:

Suppose you take the Railroad out altogether.

Suppose, the Railroad is itself, the coerced actor at the behest of a Brotherhood, I’m not saying it so it’s conceivable that the Railroad may find itself willing not to discriminate but a Brotherhood may ask it not unhistorical that was the situation not so many years ago.

Would that be within or without the jurisdiction of the Court?

If the Railroad act — if the Railroad was willing, was eager not to discriminate but felt itself under difficulties through the pressure of a Brotherhood, wouldn’t that be within the Steele case?

Edward J. Hickey, Jr.:

Yes.

Felix Frankfurter:

So, I want to take out the notion if there has to be a conspiracy between the Railroad and the — and the Brotherhood.You will agree to that, wouldn’t you or not?

Edward J. Hickey, Jr.:

I don’t agree that they have stated a —

Felix Frankfurter:

I’m not saying what they have stated.

I’m talking about the proposition of law.

Edward J. Hickey, Jr.:

Yes.

Felix Frankfurter:

In other words, Howard, whatever made in the fact at Howard, the fact that there was an agreement between Brotherhood and Railroad it’s just an additional factor in case it was decided according to the —

Edward J. Hickey, Jr.:

That’s correct.

Felix Frankfurter:

— facts of the case.

But I think if the union — if the union, as a matter of practice is this and the Railroad ascended because it had not practical choice, that wouldn’t make a difference, would it?

Edward J. Hickey, Jr.:

Actually, this is important and that’s why I say the Court would be faced with this issue.

The Steele, Tunstall, Graham, Howard cases all of your decisions and whether coincidentally or not, all dealt with the compulsion of an agreement, every one of them.

That is also true of every decision upon which petitioner relies in the lower courts, including the Richardson case and all the others.

That is not this case even if we go to the point of assuming facts not alleged, not in existence as Mr. Justice Black asked me to assume.

Now —

Felix Frankfurter:

But you don’t stand on that as a requirement.

Edward J. Hickey, Jr.:

I do not.

Felix Frankfurter:

You do not stand on the legal proposition that if in fact the Brotherhood, if in fact the Brotherhood only apart from agreement with the Railroad as a matter of its own Brotherhood policy, as a matter of practice, exerts its authority as a bargaining agent, discriminatorily against colored members of a colored local or no local at all.

That would be within this field, would you agree to that?

Edward J. Hickey, Jr.:

Yes, I would agree.

Felix Frankfurter:

All right.

Edward J. Hickey, Jr.:

I — and not only agree to it but I think that points up this case because there, you have a clear breach of a judiciary duty of the Brotherhood to the members of the craft.

Here you have discrimination practiced by Railroad to — under this complaint not even within the knowledge that is discriminate, and not even within knowledge of the Brotherhood.

There is no claim that the Brotherhood had anything to do with the abolishment of the jobs, had anything to do with the lease, had anything to do with the curtailment on a seniority by the Southern Pacific Transport Company when it hired its own employees, had anything to do with the fact that white people were hired and that colored were not, or that white people were not fired and colored were.

There isn’t a single allegation that the Brotherhood had anything to do with that and they sole charge against the Brotherhood made by this complaint is that they suffered this to happen and did come to plaintiffs aid in terms of preventing it.

Edward J. Hickey, Jr.:

Now, on that, let’s deal with that point.

Let’s assume that they do have some kind of a duty to come to their aid.

That’s why I pointed to this particular paragraph to show that the Brotherhood did just that.

It considered this problem and based on its experience before the Adjustment Board in cases of this kind where a motor company, transport company takes over operations formally approbated by a Railroad.

It concluded that it didn’t have a sufficient claim against the Railroad and it couldn’t do anything about it and it so informed petitioners.

Now, the facts of the complaint itself showed that there’s not only — these operations are now being performed, formerly performed by the Railroad or being performed by the transport company.

They also show there’s another union in the picture, the Teamsters Union which petitioners claim they’re now required to join instead of the Brotherhood which very clearly points up the fact that the actual situation is a lost of jurisdiction.

The operations of the transport company and their employees are not even subject to the Railway Labor Act, Your Honors.

They are clearly subject to the National Labor Relations Act and any union is in the picture, namely the Teamsters representing these — those employees as distinguished from railroad operations where the employees are subject to the Railway Labor Act and represented by the clerk.

Now, I submit, it is not logical to presume, that the Brotherhood of Railway and Steamship Clerks, either in Houston or anywhere else is going to, I believe, sit by and watch its jobs being taken out from under its jurisdiction and members taken out from its union.

And those jobs turned over to another corporation, operating under a different Act, and operating in conjunction with a different union if there’s anything that can do about it to stop it.

Hugo L. Black:

May ask you this?

What do you understand this (Inaudible) mean?

That by reason of the said Act, if that’s the fact —

Edward J. Hickey, Jr.:

Where — where is this, Your Honor?

Hugo L. Black:

On page 13.

Edward J. Hickey, Jr.:

Yes, sir.

Hugo L. Black:

No white people have lost their jobs.

Many of the colored people have and that there’s no — have been no real abolishment it’s just an effort to conceal it.

And then, that by reason of the said Act that written continuation and the refusal of defendant or any event to get the plaintiff protection or any protection said discrimination, equal to that I quoted, “The members of the white race of the craft represented by the Brotherhood of Railway Steamship Clerks.”

Defendant, union and each of them have breached the statutory duty imposed in 45 U.S. Code which duty is to protect plaintiff from any discrimination on the basis of race or color.

What do you understand that to allege?

Edward J. Hickey, Jr.:

I understand to allege, that we have the duty to protect the plaintiffs from this discrimination by the Railroad.

Hugo L. Black:

As much as you did white people and that you had failed to perform.

Edward J. Hickey, Jr.:

Yes, sir.

I understand it to say that.

Now, I — I want to answer that.

I’ve been trying to answer that question.

What could we have done?

We did entertain the matter.

Edward J. Hickey, Jr.:

That’s shown in the complaint.

I’ll find that (Voice Overlap) —

Hugo L. Black:

That’s the question of proof isn’t it?

In other words —

Edward J. Hickey, Jr.:

No.

Hugo L. Black:

— if they can’t prove this, they have no case.

If they can prove that, wouldn’t they be entitled to — have a case in Court?

Felix Frankfurter:

What you’re saying really is, if I understand you.

What you’re saying is not only that they didn’t sufficiently state their case with concreteness.

But you’re saying they affirmatively alleged themselves out of course, isn’t that your position?

Hugo L. Black:

Precisely.

Felix Frankfurter:

That they — what they did allege (Voice Overlap) affirmatively shows there is no jurisdiction —

Edward J. Hickey, Jr.:

That’s exactly —

Felix Frankfurter:

Isn’t that what you have to maintain?

Edward J. Hickey, Jr.:

Exactly what I’m trying to say.

That the — that the complaint shows on its face that the Brotherhood are tying to protect it, actually listened to them told them that it didn’t think that it can do anything about it.

Now, I submit this, Your Honors.

Hugo L. Black:

Well, they alleged —

Edward J. Hickey, Jr.:

Unlike —

Hugo L. Black:

They alleged that it could and did not.

They alleged that it could have and did not.

Edward J. Hickey, Jr.:

But they also show that it did and — and didn’t say —

Hugo L. Black:

They do show and let him talk to them and told them they couldn’t do anything about it and they say it could have but it just wouldn’t try?

Edward J. Hickey, Jr.:

Let’s say both, Your Honor.

I — I think what Mr. Justice Frankfurter just said is absolutely chooses complaint does make the contention —

Felix Frankfurter:

Well, I’m not so characterizing.

I’m so characterizing your argument.

Edward J. Hickey, Jr.:

Well, I — I —

Felix Frankfurter:

That’s your argument.

Edward J. Hickey, Jr.:

I’ll be the author of the statement and I —

Felix Frankfurter:

Yes.

Edward J. Hickey, Jr.:

But I think that —

Felix Frankfurter:

But I —

Edward J. Hickey, Jr.:

— the complaint (Voice Overlap) —

Felix Frankfurter:

— I’ve said that but that’s — that was — is your position?

Edward J. Hickey, Jr.:

That is my position.

And I think that the — that this is important in the picture and unlike the Steele case where your bargaining representative has the exclusive authority in the making of agreements, that in your grievance situation, your so-called minor grievances that although the bargaining representative does have an obligation not to be hostile to any members of the craft because of their color, he certainly has that obligation.

Nevertheless, the bargaining representative is not compelled nor could he be as a practical matter, to handle every — every grievance presented up to the channels on the Railroad, to the highest officer on the carrier and then to the Adjustment Board regardless of the merit that the bargaining representative may conclude that particular grievance has.

Now, that is necessarily so and there would be chaos if every single claim regardless of its merit that was presented to the bargaining representative have to be processed by him.

As a practical matter, that was the only thing that the Brotherhood could have done in an accomplished situation such as we have here in this complaint with effect to abolishment of jobs.

But if we look at the situation, it concluded that the claim didn’t have — have merit or couldn’t prevail on it before the Adjustment Board and it refused to go further.

Now, that is the extent of its refusal to protect the plaintiffs.

Now in that situation, I submit to Your Honors, that unlike — unlike the problem in Steele and Tunstall and Howard unlike that problem, plaintiffs here had an — a remedy opened to them and that remedy was to carry their own claim if they disagreed with the bargaining representative, that it have merit.

And they still felt that it did and that the agreement had been violated, they could carry that claim to the Adjustment Board themselves and be represented in person or be represented by counsel.

Section 3 First (j) so expressly provides and that is the distinction between the situation you had in your Steele, Tunstall, and Howard cases, where the Court was the only avenue of redress and the situation opened in these particular case.

And I wish —

Earl Warren:

Mr. Hickey, may I — may I just ask —

Edward J. Hickey, Jr.:

Yes, sir.

Earl Warren:

— one more question and I apologize for doing it.

But in the event they did take it before that Adjustment Board themselves, who would their complaint be against, the Railroad?

Edward J. Hickey, Jr.:

Their complaint, Your Honor would be against the Railroad because in substance that is exactly what this amounts to.

Earl Warren:

Yes.

Edward J. Hickey, Jr.:

As a practical matter, their complaint is against the Railroad for discrimination.

Earl Warren:

Yes.

Edward J. Hickey, Jr.:

The violation of the agreement as they —

Earl Warren:

Yes.

Edward J. Hickey, Jr.:

— as they contend.

Earl Warren:

Yes.

Edward J. Hickey, Jr.:

And I would — I would like to go one step further with that question in answer to a statement Mr. Waddy made about what good does it do them to go there, their — the people there complaining about of the judges, my answer to that is this.

The Adjustment Board as well as Brotherhoods have come a long way, I believe, in the Railway Labor field since this Court’s decisions in Steele, Tunstall and other cases.

Edward J. Hickey, Jr.:

I think that this is a very definite education that has been gained from those decisions and I submit that the petitioner should carry this complaint to the Adjustment Board and have it decided.

And if they do not get due process, if there is an arbitrary handling, then that is the time to come before this Court and make that very allegation.

And if — if I may refer to Mr. Justice Frankfurter’s concurring opinion in the Wrightwood case decided last term, I think it was Number 56.

He made just that observation with respect to a Steele type of situation that the parties should go there.

If those are arbitrary handling then I feel they should come before this Court and not presuppose that any tribunal is going to act arbitrarily or denied in due process or entertain their claim.

Now —

Earl Warren:

But I was — what I was interested in was one point beyond that.

You said that essentially, the — the complaint would be against the Railroad.

Now, could they also have litigated before the Adjustment Board, any complaint that they had against the 189 or 28 rather for a refusal to — to properly process their case and — and present it to the — to the Board as distinguished from the interest of 28.

Edward J. Hickey, Jr.:

None as such, Your Honor but in this way, they could, which supports the specific holding of the court below.

As I said, the agreement requires certain things with respect to the union shop provision to the Railway Labor Act and those things required by the agreement are consistent with the statute.

So there is no claim that the statute is being violated.

There is a claim that the agreement necessarily being consistent with the statute which petitioners maintain says, so and so.

There is necessarily the claim that the agreement is not being lived up to.

The Railroad is a party to that agreement as well as the Brotherhood.

The petitioners in this case could bring that matter before the Adjustment Board as a violation of that agreement by the Railroad because they are just as responsible for its administration as is the Brotherhood, the other party to the agreement.

While I’m on that point, I — I would like to add that the — although petitioners disclaim in their brief to this Court any connection with the agreement, the complaint specifically ask that the bargaining agreement be construed and their rights declared by the District Court.

It also asks that the lease be discovered and that its provisions and petitioners rights be declared and we submit that under that kind of — of situation that obviously, not only as a collective bargaining agreement involved, it is the very basis of the petitioner’s cause of action with respect to job abolishment.

And that is the matter which is peculiarly within the competence of the Railroad Adjustment Board and we believe that the Slocum decision by this Court has more vitality when you consider the lengths to which this Court has gone when it decided M.K.T., the Pitney case, and then the Slocum case, to point out — and as Your Honor made clear again in likely last term.

The extent to which this Court, Mr. Justice Douglas in the General Committee case, going back to 320 U.S., made very clear that the aim and purpose of the Railway Labor Act is industrial self administration.

And that the courts have been allowed in only to a very limited and necessary extent.

That has been stressed time and time again by this Court and it is true that in Steele, you made an exception the day you have to make an exception because you said that a violation of the Railway Labor Act couldn’t go on redress and that the Adjustment Board simply wasn’t the tribunal to redress that kind of a law and it could obviously, but here, that is not the case.

And we suggest that the Slocum decision has much more vitality than simply the suggestion that it concerned two unions quarreling over the jurisdiction.

Obviously, Slocum means more that that.Slocum means that where there is basically and in substance a dispute over a violation of an agreement that that should be taken to the Adjustment Board at least for instance —

Felix Frankfurter:

Mr. Hickey, before the question the Chief Justice put to you namely, couldn’t these petitioners go to the Adjustment Board then set their individual interest.

I ask the knowledge.

Certainly, that was true under Elgin, the Elgin case.

But as I understand it, a number of the Brotherhood change their constitution after Elgin and practically displaced what Elgin did.

I don’t know whether your Brotherhood was among those but that is true, as you will know that the Elgin — the effect of the Elgin decision is practically a dead letter for most of the important railway union brotherhood, isn’t it?

Edward J. Hickey, Jr.:

Yes.

Felix Frankfurter:

It’s not to — and under that, the individual couldn’t go.

The Brotherhood itself would have to assert the individuals rights.

I don’t know whether that’s true of the —

Edward J. Hickey, Jr.:

No.

It isn’t —

Felix Frankfurter:

— Railway Steamship Clerks.

Edward J. Hickey, Jr.:

It isn’t true, Your Honor and there are many situations today where an individual can still go and have in fact gone.

Felix Frankfurter:

Well, it all depends — all depends as I understand it, what the constitutional relationship between the individual member and the Brotherhood.

Not that those constitutional changes of the Brotherhood that — that have been before us but I — I find it difficult under Elgin to think that they wouldn’t be sustained.

However, there is that practical situation that railway would, isn’t it?

Edward J. Hickey, Jr.:

Yes, Your Honor.

Felix Frankfurter:

And most of the Brotherhood or at least the leading once have barred the individual from raising questions under the agreement by the individual.

Edward J. Hickey, Jr.:

Well, they may do it.

I’m not too familiar with the — with the extent of that.

I’ve heard they existed but —

Felix Frankfurter:

Well, it’s matter of (Voice Overlap) —

Edward J. Hickey, Jr.:

— they may do it to the equivalent of powers of attorney to represent.

Now, once they do that sort of thing which this Brotherhood has not done, then they assume an obligation to represent.

But in — in the situation that we have here, the individual, when it disagrees with the bargaining representative’s interpretation of the merits of a claim can process that himself and get an adjudication of it.

And if he doesn’t get a fair adjudication of it then I think he can come into the Court.

Otherwise, to the simple expedient, Mr. Justice Frankfurter of living out a Railroad as a defendant in a situation where they clearly are the party perpetrating the discrimination and there is no — no question of that under this complaint.

That they are the party, the — the complaint doesn’t even claim anything more than that — we should have been protected from that discrimination.

Now, where that is so, we feel that the Slocum case can’t be avoided to the simple expedient dropping a party defendant.

Otherwise, the case becomes a shamble.

Thank you very much.

Earl Warren:

Thank you.

Mr. Waddy.

Joseph C. Waddy:

May it please the Court.

I want to point out one thing.

Throughout Mr. Hickey has taken the position that only one thing is charged here and that is the violation of the collective bargaining agreement by the Railroad Company.

Joseph C. Waddy:

However, on page 11, paragraph 7 of this complaint, there is a very definite charge that this Brotherhood has repeatedly and without reason declined to hear the complaint of these petitioners.

Now, what he would say that he would go further and say but they do say that the Brotherhood told them that the due to the leasing of this property and nothing could be done about it.

There is nothing that I find in this record to go to the point where Mr. Hickey went to say that the Brotherhood took up this matter.

The allegation is that the Brotherhood refused to hear them.

It never got to the point wherein that — it could consider the merits of this case.

The allegation of the complaint is that, they refused to hear on the basis of race so that — so that as to whether their complaint had merit in that or not, they’ve never reached that point.

Now, I submit that Mr. Hickey’s position, is this that I go to the court and say to the court that, “Mr. Gardner here assaulted me,” the court said, “No, he didn’t,” without hearing any facts or anything and your case is gone.

I — I that’s — that’s the position that Mr. Hickey would have to state but what is done here is that the union simply has not in any way or heard these plaintiffs and that is the real basis of this complaint, the compelling of the members of the craft, the Negro members of the craft to join the union and then refusing to even consider their claims on a basis of race as for whether they have or have no merit.

Now, we submit that that’s where they would in Howard.

It’s the use of statutory position and power to discriminate.

And on the basis of that, we feel that there is definitely a cause of action stated here which this Court should reverse and as a matter of fact for the purpose of reinstating the complaint and to file answers because most of what Mr. Hickey have said is really proof to be used in advertent, plaintiffs were unable to prove their allegations.

That’s one thing but as to whether or not that the Court has jurisdiction to hear their claim is another.

We submit that there should be a reversal.

Earl Warren:

By saying, you’re compelled to join this 6051 or whatever it was.

Do you mean anything different in that — then that you refuse admission to 28?

Joseph C. Waddy:

My understanding of the allegation compelled is that they cannot join Local 28.

Now, I don’t — don’t understand to say, that they have asked.

What the proof to be, I don’t know that.

But I think that that allegation is sufficiently broad so that the proof could show that they had — that they applied and were not admitted or that they were told by the officer of the Brotherhood that you can’t come in number 28, you’ve got to become (Inaudible).

I think that proves one thing but the allegation is broad enough sustain the proof in either direction that makes up.

Felix Frankfurter:

Would you — would you urge that if this — if this complaint unfound nothing except the way you just interpreted compelled, namely, that there is a white local and a colored local period.

No more.

Not what the consequences are, not the uses to which that is put but merely the fact that you’re compelled to join a colored local.

Would you regard that — would you regard that that stated a cause of action?

Joseph C. Waddy:

I would regard that as stating a cause of action but I think we have more here —

Felix Frankfurter:

No, I’m not — I’m not — don’t go beyond that.

Joseph C. Waddy:

Yes.

Felix Frankfurter:

I just want you to address yourself for the moment of an allegation or complaint that is boiled on to that?

Joseph C. Waddy:

That is a compelling (Voice Overlap) —

Felix Frankfurter:

— a compelled segregated colored union.

Joseph C. Waddy:

I would say to that in itself would state a cause of action.

Felix Frankfurter:

And what — on what legal theory, on what legal — what’s the right that would have been?

I would certainly say it would have been the requirement of the Railway Labor Act and what this Court said in the Howard case that the union could not use the provisions of the statute or to discriminate.

Now, what —

Discriminate is merely — in the make up, the racial make up of the two unions.

Joseph C. Waddy:

But — but it would be pursuant under the union shop agreement pursuant to the statutory power —

Felix Frankfurter:

Yes.

Joseph C. Waddy:

— to compel them to join the union otherwise it couldn’t compel.

Felix Frankfurter:

No.

But even affirmatively, as a matter of fact they all — they all get the same wages, the same seniority rights, everything.

You would regard merely, there compel — compulsory maintenance of a segregated union in and of itself is a violation of the Railway Labor Act?

Joseph C. Waddy:

I would certainly say.

Felix Frankfurter:

Not if it will go to the Constitution.

Joseph C. Waddy:

I would say — I would say that if the Railway Labor Act permits it then the Railway Labor Act will be unconstitutional.

Earl Warren:

Thank you Mr. Waddy.