Denver & Rio Grande Western Railroad Company v. Brotherhood of Railroad Trainmen

PETITIONER:Denver & Rio Grande Western Railroad Company
RESPONDENT:Brotherhood of Railroad Trainmen
LOCATION:U.S. District Court for the Southern District of California, Central Division

DOCKET NO.: 794
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 387 US 556 (1967)
ARGUED: Apr 19, 1967
DECIDED: Jun 05, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – April 19, 1967 in Denver & Rio Grande Western Railroad Company v. Brotherhood of Railroad Trainmen

Earl Warren:

Number 794, the Denver & Rio Grande Western Railroad Company versus Brotherhood of Railroad Trainmen.

Mr. Lucente.

Martin M. Lucente:

Mr. Chief Justice, may it please the Court.

I appear on behalf of the petitioner, the Denver & Rio Grande Western.

The case is here on a writ of certiorari to the Court of Appeals for the Tenth Circuit.

The central question presented by this case is whether a labor union may be sued for losses resulting from an unlawful strike.

In judicial district in which the strike occurred in which the employees which it represents work and reside and which it acts for those employees whether the action may be brought only in another remote judicial district where the union maintained its headquarters.

This action was brought by the Rio Grande against the Brotherhood of Railroad Trainmen to recover damages resulting from a strike.

The Rio Grande operates a railroad system extending from Denver Colorado to Salt Lake and Ogden, Utah.

Its principal place of business is in Denver and 63% of its line of road is situated in Colorado.

The Brotherhood, a non-incorporated association holds representation rights and most of the railroads in the United States and it is the designated representative of trainmen employed by the Rio Grande.

The Brotherhood consist of a grand lodge which is located at Cleveland, Ohio and local lodges which are situated on the lines of each of the railroads in which it represents employees.

On each railroad a General Grievance Committee elected by the local lodges performs the Brotherhood’s representation functions under the Railway Labor Act.

On the Rio Grande, respondent Carroll, with headquarters at Denver was chairman of the Grievance Committee at the time that the strike occurred and at the time of the proceedings in the lower court.

The dispute which culminated in the strike involved claims of contract violation which the Brotherhood had submitted to the National Railroad Adjustment Board on behalf of the Rio Grande employees which the Brotherhood represented.

The Board sustained the claims and it awarded a full days pay for each claimant for each occasion in which it found a violation of the contract despite the fact that the claimants had suffered no monetary losses.

The Rio Grande declined to make what it regarded as the arbitrary and unreasonable payments required by the awards.

And in such circumstances, under the Railway Labor Act, enforcement actions are provided for which in effect test the validity of the award.

The Brotherhood however, instead of filing an enforcement action undertook to compel the Rio Grande to make the payments required by the awards by calling a strike.

The strike lasted for approximately eight hours.

It was enjoined by the District Court and subsequently the District Court and the Court of Appeals both held that the strike was in violation of the Railway Labor Act and was unlawful.

This action was subsequently brought to recover damages accruing from diversions of freight to other railroads as a result of the unlawful strike.

The complaints alleged that the defendants were residents of the Judicial District of Colorado and that the venue requirements of Section 1391 of the Judicial Code had thus been satisfied.

Before trial, the Brotherhood filed a motion to dismiss on the ground among others that venue was improper.

This motion was denied by the District Court which subsequently rendered a judgment for the petitioner.

On appeal, the court below reversed, holding that venue did not lie against the Brotherhood in Colorado but was proper only at Cleveland, Ohio where the Brotherhood maintains its headquarters.

The Court of Appeals also held that respondent Carroll is not responsible for the strike and should have been dismissed.

As I shall develop in the argument, this decision by the Court of Appeals to the Tenth Circuit as directly in conflict with the holding of the Second Circuit in the so-called Rutland case and it is also in conflict with basic venue principles.

The venue issue, which is dominant and controlling here involves Section 1391 of Title XXVIII, which provides in part that non-diversity actions may be brought only in the judicial district in which all defendants reside.

The requirement of residence imposed by this 1948 enactment is not defined insofar as unincorporated associations are concerned.

Martin M. Lucente:

And in this respect, Congress adhered to the pattern of prior legislation because the statute which was superseded by the 1948 enactment was also silent with respect to the meaning of the venue requirement which it imposed.

But prior to 1948, the venue statute provided that no civil suit shall be brought in any District Court against any person in any other district and that whereof he is an inhabitant.

The absence of elaboration, the definition of inhabitants was necessarily left to the Courts.

As to one incorporated associations, the governing determination was made by Judge Hand in Sperry Products versus the Association of American Railroads.

In Sperry Products, the relevant statute provided that in patent infringement actions, venue was proper in the district in which the defendant was an inhabitant or in which the defendant had committed acts of infringement and maintain the regular and established place of business.

Judge Hand approached the venue problem in that case by determining first that unincorporated associations should be regarded as entities for venue purposes since existing law regarded them as entities for other procedural incidence such as capacity to sue and to be sued.

Turning next to the question of location to be attributed to the entity, Judge Hand concluded that unincorporated associations should be considered to be present wherever they were continuously carrying on a substantial part of their business just as corporations were regarded as present in such circumstance.

To determine the inhabitants of unincorporated associations, Judge Hand continued to rely on the status of corporations and thus concluded that inhabitants was limited to a single district, that of the association’s principal place of business.

The Sperry case does establish the principle that for venue purposes an incorporated associations should be regarded as jural entities and that their inhabitants, the term synonymous with residence in the present Section 1391 should be determined by analogy to the corporate entities which they most closely resemble.

As Judge Hand stated the matter, it is really the only practicable test.

Since inhabitants was the requirement not only of the patent infringement statute but also of the general venue statute at that time, Sperry Products continued to be a controlling authority with respect to venue questions arising as to an incorporated associations under the general venue statute.

In 1948, when Congress revised the Judicial Code, venue in non-diversity cases was stated in terms of residence rather than inhabitants, again, without elaboration as to defendants other than corporations.

Section 1391 (c), however, did define corporate residence in terms of the judicial districts in which a corporation is licensed to do or is doing business.

This definition of corporate residence obviously changed the frame of reference for application of this very principle.

Reliance on the corporate analogy, which was Judge Hand’s basic approach in Sperry would after 1948 require consideration of the definition of residence appearing in Section 1301 (c).

But this 1948 change did not impair the Sperry principle which was unquestioned at that time insofar as unincorporated associations are concerned.

Moreover, the legislative history of the 1948 revision does not indicate any purpose to a negative or to restrict the application of the Sperry principle or to impose venue requirements for unincorporated associations differing from those which would result from proper regard to that judicial authority.

Professor Moore, who was importantly concerned with the 1948 revision, has stated that Section 1391 was intended to continue and to build on a trend of judicial decisions relating to venue.

As to unincorporated association, the trend of judicial decisions was unmistakably chartered by Sperry, existing that judicial authority would thus clearly require an analysis and treatment of residence for unincorporated associations insistent with that applicable to corporations.

Certainly, the decided cases under the 1948 provisions support this conclusion.

Since the 1948 revision of the judicial code, many cases upheld that consistent with Sperry residents, for unincorporated associations must be defined by reference to the corporate analogy.

The leading authority, as I have stated, is the Rutland case where the Brotherhood in this case and other railroad unions argued that venue in Vermont was improper since they were doing — since their principal headquarters were located elsewhere.

In a holding against respondent, the other defendant, Judge Waterman in the Rutland case held that the provisions of the 1948 Judicial Code must be viewed in the light of preexisting law, principally Sperry Products and has thus view the residents requirement of Section 1391 was satisfied by showing that the defendant unions were doing business in the district in question.

As Judge Waterman stated, we believe this accords with the practical requirement of litigation involving unincorporated associations.

There are a substantial number of other decisions to the same effect and these decisions has been analyzed and characterized by Professor Moore as desirable and justified under the 1948 venue provisions.

The decision of the Court of Appeals in this case is obviously in conflict with these decisions.

The Rutland case and the other decisions to which I have referred also effectuate the liberalizing purpose of the 1948 amendments to the venue code.

This Court in Pure Oil Company versus Suarez emphasized to that congressional purpose when it held that the definition of residence appearing in Section 1391 (c) should be read into the venue requirements of the Jones Act which had theretofore been interpreted to limit venue to a corporation’s principal place of business or state of incorporation.

This Court emphasized in liberalizing purpose underlying the enactment of Section 1391 and held that in the absence of restrictive indications, this purpose should be implemented by judicial updating of the 1920 venue provisions of the Judicial Code.

There is also no indication in the legislative history of Section 1391 or in the terms of the statute which indicates any intent to restrict the principle of Sperry Products which would define residence for unincorporated association by reference to the corporate situation.

Martin M. Lucente:

The decision of the Court of Appeals in this case is also contrary to basic venue principles, which clearly establish that the Judicial District of Colorado is the most appropriate form for this particular proceeding.

This Court stated these basic venue principles in Pure Oil Company versus Suarez where it noted that the venue provisions of Section 1391 constituted a response to a general conviction; that it was intolerable if traditional concepts of presence and residence kept the corporation from being sued wherever it was creating liabilities.

In the earlier case of Neirbo Company versus Bethlehem Corporation, where this Court dealt comprehensively with venue questions, the underlying basis of the decision was that venue, though defined by legislation relates to the convenience of litigants.

These principles are fully applicable to a non-incorporated association carrying on multistate business activity.

Colorado, of course, is the place where the Denver & Rio Grande Western maintained its headquarters where it conducts a majority of its operations and where it handles labor problems which arise and which involves Brotherhood Railroad Trainmen.

The unlawful strike occurred primarily in Colorado and most of the employees participating in the strike work and reside in Colorado.

Furthermore, the entire collective bargaining relationship between the Rio Grande and the Brotherhood as Colorado as its focal point.

Although the national entity is the certified representative of trainmen on the Rio Grande, it is a party to the basic Collective Bargaining Agreement only by virtue of the signature of the general chairman whose headquarters are maintained in Denver, Colorado.

It is also clear that the national entity headquartered in Cleveland performs its functions on the Rio Grande primarily in the Judicial District of Colorado.

The Brotherhood consists of a grand lodge at Cleveland and local lodges situated on each railroad including the Rio Grande.

With respect to grievances, these local lodges and particularly the General Grievance Committee are invested with virtually complete authority to initiate and handle claims on behalf of trainmen including ultimate reference to the National Railroad Adjustment Board.

The General Grievance Committee and its constituents committees are also giving primary jurisdiction to handle disputes which arise when proposed changes in the agreements are under consideration.

The real and primary authority of the General Grievance Committee headquartered at Denver, is illustrated by General Rule 13 of the Brotherhood which provide that whatever action may be taken by the General Grievance Committee shall be law to the lodges on that road until reversed by the Board of Appeal.

Although the president of the Brotherhood headquartered at Cleveland does exercise supervisory or appellate authority, the Brotherhood’s activities on behalf of the employees of an individual railroad such as the Rio Grande, take place in the geographical area where the railroad operates.

Even in the case of strike action on an individual railroad joined authority by the president of the Brotherhood and the General Grievance Committee locally headquartered must be obtained.

The president may authorize the strike only if the General Grievance Committee joins with them in such authorization.

These circumstances that, I submit, make it highly unreasonable to suggest that Cleveland, Ohio rather than the Judicial District of Colorado is the proper case — proper forum in which to litigate the liability of the Brotherhood in this case.

The Brotherhood’s business are representing employees on the Rio Grande although based on certification of a national entity is conducted by the Brotherhood in Colorado.

The Court of Appeals in this case in deciding that Cleveland, Ohio was the proper forum, was governed entirely by its interpretation of this Court’s opinion in Steelworkers versus Bouligny.

And that the Court of Appeals did not attempt any statutory interpretation.

It did not in fact express any basic disagreement with the principle of the Rutland case.

It said instead, that the Steelworkers was an implicit rejection of the principle of the Rutland case and that venue would thus be proper only at Cleveland.

To consider the application of Steelworkers to the venue problem, I wish to emphasize first that from the time of Sperry Products in 1942 until this case, the venue of unincorporated associations was deemed to defend on two largely unchallenged premises.

One, that for venue purposes, such associations should be regarded as entities having a residence in their own right.

And two, that the residence should be determined not by a new test fashion for unincorporated associations but by analogy to corporations which such associations tend to resemble.

The decision below by intruding the rule of Steelworkers, a diversity jurisdiction case, into the law of venue, strikes at this settled fundamentals of venue law.

Steelworkers had nothing to do with venue and this Court said nothing in its opinion about venue problem.

Rather, the issue before the Court was whether a non-incorporated labor union is to be treated as a citizen for purposes of federal diversity jurisdiction without regard to the citizenship of its members.

The lower court, following the rule which have been recognized since 1889 had held that for diversity purposes, a non-incorporated association is an aggregation of individuals and thus has the citizenship of each of its members.

This Court affirmed, stressing the fact that if unincorporated associations were to be treated as entities for diversity purposes, that considerable expansion in the diversity jurisdiction of the Federal Courts would result.

Martin M. Lucente:

There’s nothing in this holding which has any relevance to venue.

To hold that a non-incorporated association is an aggregation of individuals for a diversity of jurisdiction purposes is to avoid changing established principles applicable to federal jurisdiction.

On the other hand, to hold that a non-incorporated association is an aggregation of individuals for venue purposes would be to overturn entirely venue doctrine that has been accepted for the last 25 years.

There is no reason why different rules should not exist in these two different areas of the law.

The rules differ because the considerations which underlie them differed.

As this Court has held, the jurisdiction of the Federal Courts, their power to adjudicate is a grant of authority to them by Congress but the locality of the lawsuit, the place where judicial authority may be exercised though defined by legislation, relates to the convenience of the litigants.

Thus, for example, jurisdiction is beyond the scope of litigants to confer that venue is subject to their disposition.

The inapplicability of Steelworkers to the determination of the venue problems presented by this case is perhaps most clearly illustrated by the fact that although the lower court purported to rely on Steelworkers, it failed to apply the principle of Steelworkers in reaching the result which it reached in this case.

Under Steelworkers, a non-incorporated association being considered an aggregation of individuals, with each of the associations would have the aggregate residents of all of its members for venue purpose.

In no situation in which a non-incorporated association has members in more than one state, could it be said that all of the defendants reside within one judicial district because all of the defendants, being all of the members of the association, would have residence spelling outside the jurisdiction of a particular district.

In this case, the Court of Appeals did not apply the result indicated by the principle of this Steelworkers case.

Instead, it held that venue was proper at Cleveland, Ohio and thus abandoning entirely the principle of Steelworkers that a non-incorporated association is an aggregation of individuals.

For these reasons, that we most respectfully suggest that the decision in Steelworkers was misinterpreted by the Court of Appeals, that the Judicial District of Colorado is the proper forum and that the lower court’s decision should be reversed.

Earl Warren:

Mr. Highsaw.

James L. Highsaw, Jr.:

May it please the Court.

The — I believe at the outset that I should straighten out a few of the facts that have been stated by counsel.

Most of the facts that he stated, either are not of the record and the remainder of them, I don’t’ believe he has accurately stated.

Counsel stated that the strike which was here involved grew out of the carrier’s refusal to accept awards, the payment of money, involving payment of money.

However, in one of the two awards, the carrier refused to put into effect the contract — interpretation of the National Railroad Adjustment Board which in our opinion was in and of itself a violation of the Railway Labor Act.

Also at the time of the strike occurred, it was some two years later that this Court finally held that railroad employees were prohibited in conducting this type of strike.

And counsel says that the strike occurred mostly in the Judicial District of Colorado but most of the railroad employees are in this judicial district.

The record contains nothing at all on this.

The strike did occur in Colorado.

It also occurred to some extent in Utah.

How much — how many employees were involved in Colorado, how many in Utah is not of record.

Counsel says that the B.R.T., the Brotherhood of Railroad Trainmen acts, it carries on its representation that both covered in Colorado, for its members in Colorado.

This is not a fact of record.

Counsel relies upon an appendix in the brief with respect to rules and regulations of Brotherhood which are not of record.

With respect to which there’s been no evidence taken at all as to their interpretation or their application to this particular situation.

There are only a very few limited facts before the Court on this question of venue and what were there —

Byron R. White:

On your approach it wouldn’t make any difference how many facts like that were of record, would it?

James L. Highsaw, Jr.:

Not on our approach, no, Your Honor.

It does make a different apparently on the approach of the railroad area.

We before the District Court put in a limited number of facts which were not contradicted, namely, that the headquarters of the B.R.T. were in Cleveland, Ohio.

That the B.R.T. maintained no office in Denver, Colorado, that it’s only connection with Denver, Colorado was it had some members at Denver, Colardo.

And that for its Grievance Committee located in Denver, Colorado made up of members of the B.R.T. on the Denver & Rio Grande Railroad of which Mr. R. E. Carroll was chairman.

Those were the only facts before both the District Court and the Court of Appeals on this venue question.

Now those facts, I am going to now proceed to discuss the interpretation of the statute.

First, I think we have to decide which statute we’re interpreting.

Counsel has made no reference at all to the amendment of the venue statute which took place on November 2, 1966 about six or seven weeks after the Court of Appeals’ decision which provided that in addition — that in non — the diversity action such as this, there could be suit brought not only in the judicial district of the residence of the defendants but also where the claim arose.

Now, the railroad has not made any assertion in this case that this amended statute was applicable to this particular case were controlling.

I must say in all fairness that both counsel and myself are operating under a restriction with respect to this issue of the application of this amended statute because we — all that — filed briefs almost on the same day with this Court in another case in which this precise issue was involved with a suit to enforce one of these two Adjustment Board awards here.

I must say that in all candor that the basis of my brief in that case and on the basis of this Court’s decision in U.S. v. Alabama, I believe that the amended statute is applicable even though it creates an additional issue for me to dispose of.

William J. Brennan, Jr.:

You mean applicable in the sense of the limited review on the Board —

James L. Highsaw, Jr.:

It’s applicable with this case in determining whether the venue was proper in the Judicial District of Colorado.

Now, I would have to therefore discuss briefly with you this question of which there were no evidence taken in the District Court or no argument made in the District Court.

Of course, in the Court of Appeals directed to this but that was simply that whether this claim arose in Colorado and it’s our position that the whole claim did not arise in Colorado for the facts which I’ve just been stating to you.

The record is clear that a part of the strike occurred in Utah, that a part of the injury occurred in Utah that they are claiming here, part of the diversion occurred in Utah.

Consequently a part and the record does not show how much of the claim was a Utah claim, not a Colorado claim.

And I believe that under the amended statute, they would have had to brought suits one in Utah and one in Colorado if they could otherwise sue under this and that there would had to been an effort to transfer one or the other.

Now, I would also like to point out to the Court the cases that we’ve cited in our brief that interpreting a provision of the Labor Management Reporting and Disclosure Act of 1959 which establishes venue for actions under Section 1, both on the principal place of business of a union and also where the violation occurred.

And both the Court of Appeals and District Court decisions, one exception under that upheld that the violation occurs where the decision is actually made.

They don’t apply the classic tort principle of where the injury occurred.

But if the injury did occur outside of Ohio here where the decision to conduct the strike was made but did not occur solely in the District of Colorado to give this carrier a single claim in that judicial district, in other words, the claim which it prosecuted here and for which it received the amount of damages here.

This brings us to the basic question which was argued in the Railroad’s brief in here today, namely, that is the interpretation of the residence provision of Section 1391 (b) in Title XXVIII.

And I think that it is beyond question that simply what the railroad is asking this Court to do is to read Section 1391 (c) which applies — mentions specifically as limited by its language to corporations so as if — it also includes unincorporated associations.

Now this is specifically and exactly what it said in its main brief.

This is specifically and exactly what the amicus brief for the Railroad had said no.

In their reply brief, the Railroads, after reading our brief, apparently had thought a little better of this and now we’re trying to argue that — oh, really, all they’re asking is an interpretation of residence of — provisions of Section 1391 (b).

But they can only get to the interpretation that they argue for by having this Court read Section 1391 (c) as if it includes unincorporated associations when it does not.

James L. Highsaw, Jr.:

And it is our position that this Court cannot read Section 1391 (c) as including unincorporated associations unless it simply legislates and that this Court should not do that.

Now —

Potter Stewart:

Where would the proper venue be?

James L. Highsaw, Jr.:

Where would the proper venue be on residence requirements, the proper venue could be either in the Northern District of Ohio, Your Honor, or it could be under the District of Columbia statute which permit suits or you can be found, it could be in the District of Columbia.

But it could not be —

Potter Stewart:

I don’t see where — would not — how that follow if under (b) it has to be brought where all the defendants reside.

Certainly, all the defendants don’t reside either in the Northern District of Ohio.

And if they do, then none of them — my hypothesis, reside in the District of Columbia.

James L. Highsaw, Jr.:

But what —

Potter Stewart:

Now how could it be brought in either place?

James L. Highsaw, Jr.:

Now what the — well, looking at the Northern District of Ohio, what the Court of Appeals held was that the Brotherhood was resided — the Brotherhood is a jural entity resided in the Northern District of Ohio.

Potter Stewart:

Well, that surely does — violence to the statute which could be argued to be equally great as what you say you’re (Voice Overlap) —

James L. Highsaw, Jr.:

No, I don’t think it can, Your Honor, because prior to the use of the residence language, the statute for great many years, read inhabitant and the word inhabitant had been interpreted and there’s no question about this.

This is conceded by the other side on their briefs if the word inhabitant had been interpreted to mean as applied to unincorporated association in the place where its principal headquarters were located.

When the word residence was substituted by the 1948 Revisions, the legislative history shows that it was done — simply the clarity was not intended to change the impact of the provision because it said that the word residence and in (Inaudible) were synonymous and there was no intent to change that.

Potter Stewart:

But certainly under their reasoning of Bouligny, if that is controlling here then I should think it follows, doesn’t it, with this suit, it couldn’t be brought anywhere?

James L. Highsaw, Jr.:

No.

No, Your Honor, I would not had — I would not be able to agree with that —

Potter Stewart:

Why?

Abe Fortas:

But the matter is that a suit could be brought wherever they can find the members of the union.

James L. Highsaw, Jr.:

Well, I said — I believe what I was mentioning, Your Honor, in the Graham case, this Court said that a railway labor organization could be sued in the District of Columbia.

Under the District of Columbia venue statute that permits a suit where you’re found, it could be sued, the federal district court here.

And that union as does most of these unions have — has a national legislative headquarters here so that it can be said to be found within the District of Columbia but Your Honors also quite right as to the substance of Bouligny holding.

But the Court of Appeals was not applying the Bouligny ruling in terms of the substance or subject matter of its ruling as to whether or not an unincorporated association was a jural entity.

Nobody is arguing about in this case.

You could sue the B.R.T. here as a jural entity under Rule 1706 (b) of the federal rule because this was an action based on a federal statute.

What the Court of Appeals was saying in the Bouligny — in reference to Bouligny case was, in that case, the identical argument was made for interpreting Section 1332 that is made here for applying the interpretation of Section 1391 (c) urged by the Railroad and that argument was that unincorporated associations should be treated as corporations.

That as a practical matter of their — now like corporations that in the practicalities of litigation they should be so treated.

That particular case, the argument was made by a union, the United State — the Steelworkers.

This Court said that, however, appealing this argument might be, it was that argument which was advanced these legislative reasons for interpreting the statute and the argument should be addressed to Congress.

James L. Highsaw, Jr.:

And identically, the same identical argument is the argument which is relied upon here by the carriers and is the argument which goes back and is derived from the Rutland case before the Second Circuit.

And of course, the Second Circuit also in that case conceded that the — there was no language in the statute on which they could base this.

It simply said it was relying on audit regarded as this rule of practicality.

And the Court — this Court has said in the Bouligny case, “You can’t rely on this rule of practicality for a rule to interpret the statute.”

It say, “It’s an argument that should be addressed to come, the jurisdiction”.

Yes, jurisdiction was involved in that venue but I don’t think it makes any difference on the principle of interpreting the statute, Your Honor.

Abe Fortas:

Well —

James L. Highsaw, Jr.:

The principle is the use of this type of legislative material where you have no language and you have no legislative history, which are the normal tools for interpreting statutes.

You can’t rely on a practicality argument like this.

That’s the real significance of the Bouligny case as applied to this situation and it makes no difference.

Whether the Bouligny case dealt with jurisdiction of what it dealt with this as far as the application of that particular principle one.

Abe Fortas:

Well Bouligny involved of the diversity of citizenship problem?

James L. Highsaw, Jr.:

That’s correct, sir.

Abe Fortas:

The problem on — in Bouligny was whether for purposes of determining citizenship which has the constitutional basis in the diversity doctrine, it would take the position that a labor union is a citizen of the state where it has its principal place of business.

Here, you have a question of residence, don’t you?

James L. Highsaw, Jr.:

That’s correct.

Abe Fortas:

And without a constitutional basis and the question that I suppose this case presents is whether for venue purposes, a residence of a labor union may be taken to be where it has put principal place of business, that would be Cleveland here.

James L. Highsaw, Jr.:

That’s correct, Your Honor.

Abe Fortas:

Now, if you don’t take that position, if you do follow the analogy of Bouligny all the way through then you would say that venue would be proper wherever any member of the labor union can be found because the historic doctrine is that labor union citizenship is a citizenship of its members, of each of its members.

James L. Highsaw, Jr.:

If you applied the — I believe, Your Honor, though this is the argument made by the carrier this — what you’re referring to now does appear in the brief of the National Railway Labor Conference’s amicus but the carrier itself makes a different argument and I think that the — that that argument at least put some correct setting, the substance of the Bouligny decision on the subject matter and that — its argument is, is that if the substance of the Bouligny decision as applied to the venue problem, then you wouldn’t be able to sue in any judicial district because all of the members obviously aren’t residents of any particular judicial district.

Abe Fortas:

But the — if you assume that all of the defendants — this purpose means that you have to get all of the members of the labor union but if you assume that you could sue the labor union that you had venue over anyone of its members and you could sue practically everywhere in this case.

James L. Highsaw, Jr.:

That’s correct.

I don’t believe that rule of law ever existed, Your Honor, and there’s no argument in this case at all that as I said that — that you can’t sue the B.R.T. as an entity.

You clearly could under the federal rules in the Coronado case.

The only question is taking as a — as an entity, as a jural entity, where is it located for the purpose of (Inaudible)?

Earl Warren:

Mr. Lucente.

Martin M. Lucente:

May it please the Court.

Just a short response to the question of the recent amendment to the venue statute, it is true that Mr. Highsaw stated that the venue statute was amended in November of 1966 to provide and in addition to venue where all defendants reside, actions, a non-diversity and diversity actions alike, may also be brought where the claim arises.

Now, that — it — amendment to the venue statute does not resolve the question presented by the decision of the Court of Appeals in this case.

That is, where does an unincorporated association reside for venue purposes?

Martin M. Lucente:

There is still an important and very substantial interest in the question of residence as distinguished from the question raised by the amendment where the claim arises.

And we accordingly urge that our position with respect to residence of unincorporated association is right, the Court of Appeals is wrong, it should be reversed.

If this Court should conclude that the Brotherhood is not a residence of that Judicial District of Colorado, then it may become a question to be considered by the lower court as to whether or not the claim arose under — in the Judicial District of Colorado under the recent amendment.

But we still urged upon Your Honors that the question of residence remained a paramount one and one that is still alive very much.

Earl Warren:

Very well.

We’ll adjourn now.