Felter v. Southern Pacific Company

PETITIONER:Felter
RESPONDENT:Southern Pacific Company
LOCATION:Fargo, North Dakota

DOCKET NO.: 269
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 359 US 326 (1959)
ARGUED: Mar 24, 1959
DECIDED: Apr 27, 1959

Facts of the case

Question

  • Oral Argument – March 24, 1959 (Part 1)
  • Audio Transcription for Oral Argument – March 24, 1959 (Part 1) in Felter v. Southern Pacific Company

    Audio Transcription for Oral Argument – March 24, 1959 (Part 2) in Felter v. Southern Pacific Company

    Harry E. Wilmarth:

    — the point which I was addressing myself — the agreement itself, in and of itself didn’t become applicable to the craft as a whole.

    Now that point is made clear at the bottom of page 3 of the appendix, the last few lines in which it says that “no agreement made pursuant to subparagraph (b)” which is the check off paragraph, “shall provide for deductions and payments to the union of dues other than that in which he holds membership.”

    Now that particular section is important because it’s involved in this case.

    In this case, the employee had terminated his membership in the union.

    The union in the carrier insisted, however, that unless he followed certain conditions in the collective agreement, they would continue to deduct dues and pay them over to the union even though he had terminated his membership, which we claim is invalid under the Railway Labor Act.

    Now in addition on page 4 as a last proviso guarantees to the employee that he may change membership from one union to another, and that nothing in the act or in the agreement shall prevent him from having that right of change.

    At the top of page 3 of the appendix, we would like to emphasis this fact; a head of the proviso, that is section b of 11, which begins at the bottom of page 2 and the top of page 3, “a head of the proviso deals with action between the carrier and the union.”

    In other words, the carrier and the union are permitted and authorized to sit down and negotiate a check off agreement.

    The proviso, however, doesn’t deal with any action by the union.

    It deals with action as between the individual employee and the carrier in a sense it’s so directly involved in this case, I will read it.

    The proviso provides, “provided that no such agreement shall be effective with respect to any individual employee until he shall have furnished the employer with a written assignment to the labor organization of such membership dues, initiation fees and assessments which shall be revocable in writing after the expiration of one year.”

    And the point that I am emphasizing is that the — that the act doesn’t authorize the union to negotiate in the check off agreement anything regarding the authorization that the employee signs to make a check off agreement effective to him.

    That is he signs the authorization, he files it with his employer, he is guaranteed the right to revoke it in writing after one year.

    Now in our brief, we have set forth, in addition to emphasizing these points, some of the legislative history of this act with particular reference to the proviso.

    What would have happened sir (Inaudible) notified the employer that he changed his (Inaudible)

    Harry E. Wilmarth:

    Well in our judgment Mr. Justice they would have had to promptly discontinue dues deductions.

    Since you’ve asked the question, I will say at this point, in the lower courts and in the Court of Appeals and up to the time of this Court, the respondents took the position that they would not recognize his revocation unless he did it according to the agreement or conditions imposed and that they would continue to deduct the dues even though he had terminated his membership.

    Now for the first time in this Court they have changed that position.

    I was going to advert to it later.

    They now say that if he had sent a letter to the carrier advising the carrier that he had terminated his membership, they would have stopped dues deductions immediately or respectively (Inaudible)

    Earl Warren:

    What did he do here Mr. Wilmarth?

    Harry E. Wilmarth:

    Very well, he submitted a revocation in writing in the exact form provided by the dues deduction agreement, sent that form both to the carrier and the union saying I revoke my dues deduction.

    The carrier at first recognized that it’s valid and transmitted to the union to be noted.

    The union however stated that it did not comply with the provisions of the dues deduction agreement, that the form that he had submitted had not been printed by the union and that he must come to the union, obtain a form that has been printed by it and submit that form.

    The union — the agreement itself appears at page 74 of the record, the first paragraph just states that it’s a check off relating to members, paragraph B states that the signed authorization maybe revoked in writing at any time after the expiration of the year.

    At the end of the agreement, there are forms set forth both for authorization and for revocation and in this case we have not challenged the forms themselves.

    It’s not before the court, probably the man could write a letter in unequivocal terms and obtain the same result, but he did file the forms and that’s undisputed.

    Earl Warren:

    Now what I’d like to ask is, how does that vary from what you say the respondents now say at this point they will be willing to accept?

    Harry E. Wilmarth:

    I think I can make it clear by pointing to subparagraph C of page 75 of the record.

    He submitted that in the form, the text here, the identical form.

    Harry E. Wilmarth:

    They said pointing to this paragraph C, that the form hadn’t been printed by them and he must come back to them or take one of their forms or get a form that they had printed and that they wouldn’t recognize —

    78, it’s not 75.

    Harry E. Wilmarth:

    And on page 75 they pointed to the provision in the agreement that said both the authorization forms and the revocation of authorization forms shall be reproduced and furnished as necessary by the organization without cost to the company.

    And they pointed that the language reproduced and furnished and said this is a form that wasn’t reproduced and furnished by the organization.

    Now that’s obviously a ridiculous requirement.

    William O. Douglas:

    Was there anything to keep him from getting it?

    Harry E. Wilmarth:

    No they sent him one and he was — it would have amounted to delaying him a month as priors dues were concerned.

    However, I think it has a little more significance and it appears to have on the surface Mr. Justice.

    William O. Douglas:

    That’s what I was interested in.

    Harry E. Wilmarth:

    Yes and I will come to that.

    They argued to the Trial Court although there was nothing in the record, it was an argument of statutory construction rather than any record support that their reason for asking him to take a form printed by the union and coming to the union and asking it for the form was it would help them in book keeping procedures.

    Now it sir, no one has ever explained just what book keeping procedures would be helped by them having the form in front of them which he did send them to the carrier and him coming first and getting a form printed by them and then submitting the same form.

    On page 11 of their brief to this Court they give what we deem the real significance of the provision.

    And they are referring this on the first full paragraph of page 11 of the respondent’s brief of the BRT, the Brotherhood of Railroad Trainmen, the yellow brief, referring to this requirement C which we’ve just read they say if this requirement is held invalid, it will remove the lock from the door and leave the house wide open for ransack.

    Sometimes as a practical matter as well as — sometimes as a practical matter an employee needs protection against himself, as well as from outside undue influence.

    And the procedure set up in the agreement in question affords that protection by requiring both the authorization and revocation deduction to be made in writing on the proper form.

    Now it’s obvious this man is a conductor, he works in the craft of conductors, of course he can work in either craft.

    The Order of Railway Conductors represents the conductor craft’s and the Brotherhood of Railroad Trainmen represents the craft of trainmen or brakemen.

    At the time, however, he was a conductor.

    He had terminated membership in this union.

    There will be a psychological factor if nothing more against a man when he sends in a revocation in writing if he has to go and ask the union for the grace of furnishing of some form which they have printed and their statement as to what it really intents that they will be enabled to furnish him protection against himself.

    William J. Brennan, Jr.:

    (Inaudible)

    Harry E. Wilmarth:

    I don’t know what that statement might encumber Mr. Justice.

    It might be more than just talking him out of it.

    I assume the very statement as they put it, protection against himself, might indicate more.

    In this record there is this fact of record while Mr. Felter was furnished the forms.

    I suppose Mr. Felter as a railroad man who is and will be all his life has an interest in knowing whether the next one he signs will have a lock on the door stronger than this lock.

    In this particular record, he brought this action for himself and others similarly situated, there were approximately two dozen which he listed similarly situated who had sent him revocations as he had.

    Before the case was over, some half dozen or so of them, not denying that they had set in the revocations, however came in and executed letters to the Brotherhood of Railroad Trainmen that they had never been contacted as part of this case, didn’t want to be a part of it and wanted to keep their membership in the Brotherhood of Railroad Trainmen.

    Now I assume they received some of the protection against themselves which cost them because they didn’t deny it at point that they had originally sent in revocations or their dues deductions.

    Harry E. Wilmarth:

    They just said we weren’t contacted.

    We don’t want to be a part of this lawsuit, and we want to remain part of the trainmen.

    I think the realities of the fact that the statute recognized — Congress recognized that if carriers and unions could sit down and negotiate check on agreements, both of the parties might have reasons which would be inimical to the individual man.

    In this sense the union of course seeks self perpetuation.

    The carrier may seek to favor one union over another, so that if the two of them can sit down and as they say here in their brief, negotiate a lock on the door, which — then the man’s freedom of choice guaranteed doing the act is to that extent effective.

    Now whether it is here severe or whether it’s slight, it’s to some degree effective.

    We say that the act, its legislative history all are directed to one thing, the man shall have free exercise of choice.

    Even as a member of the union he is granted that, he can choose or not to choose to come under the check off agreement.

    He is guaranteed the right to revoke it in writing and in the legislative history in the debates before the committees, it was said that if at the end of year he doesn’t like it, he can revoke it in writing, that’s his discretion.

    So that when they negotiate we say that the act in the proviso relates only his choice alone and that there is no authorization and in fact it’s prohibited to negotiate any form of restriction on it.

    Now the Trial Court and the Court of Appeals affirming it thought that you could imply that you could negotiate reasonable restrictions on his right of revocation.

    Well, that means this then if they can negotiate reasonable or unreasonable restriction, then each case will stand by itself if there are — you’ll have to come to court to find out whether they’re reasonable or unreasonable lines.

    We say they were prohibited and to that extent, this agreement which endeavored to negotiate some type of restrictions violated the act.

    Now we also of course I remember of opinions under the comparable provision of the National Labor Relations Act which have struck down any attempt by unions to — and we’ll urge on the specific terms that act with reference to the mans’ right to comply with check off or union shop agreements.

    In other words, the terms of the act had been strictly construed in one they have tried to enlarge them in any way they have been struck down.

    What is the situation now?

    Are they continuing to —

    Harry E. Wilmarth:

    As far as this record is concerned they are continuing to take his dues.

    I would like to particularly refer —

    Is that the fact?

    William J. Brennan, Jr.:

    Well, that’s not the fact.

    Harry E. Wilmarth:

    Well it’s a fact insofar I know insofar the record if it’s not the fact it’s never been said in any of the briefs by either carrier or the BRT.

    They were pushed with no by their record.

    Earl Warren:

    Mr. Wilmarth I didn’t hear an answer that enlightened me on my question to you.

    As I understood you, in the courts below the respondent took the position that your client was obliged to use the identical form that they had prescribed and had printed.

    But that in this Court, they had changed their position and said that if an unequivocal request had been made or was made to the company, that that would be sufficient.

    Now as I understood you, he did make an unequivocal request to the company, is that right?

    Harry E. Wilmarth:

    No, I am not making myself clear Mr. Chief Justice.

    Earl Warren:

    So then that’s right, I won’t bother you —

    Harry E. Wilmarth:

    No, I want to answer it, I want to answer the other part of your question at this point.

    Earl Warren:

    Yes.

    Harry E. Wilmarth:

    He made his revocation in writing and he made it on the form that they attach to their dues, they wouldn’t accept it.

    Charles E. Whittaker:

    But it was on (Inaudible)

    Harry E. Wilmarth:

    Was right on the same form and this Trial Court so found —

    William J. Brennan, Jr.:

    You mean the same language?

    Harry E. Wilmarth:

    Same language just as though you have copied the form –

    William J. Brennan, Jr.:

    Not a form –

    Harry E. Wilmarth:

    — but not a form printed by the union.

    In other words, he took the form copied it, sent it in.

    They said oh no oh! No, you’ve got to come over here and get this form which we’ve printed and send it in.

    And the obvious purpose is you’ve got to come to us first before you submit your revocation and we will then extend the protection against yourself that they say in their brief.

    Earl Warren:

    Well, if that was — if that request was made of the railroad, why isn’t that an unequivocal request?

    Harry E. Wilmarth:

    We say it was Your Honor, rights within the term –

    Earl Warren:

    That’s what I want to know, your position.

    Harry E. Wilmarth:

    I am sorry that is our position that the man complied specific that the act, with the act where he made a revocation in writing.

    They say we won’t recognize it because you didn’t follow the conditions of our check off agreement.

    We say you don’t have a right to negotiate conditions in your check off agreement, which will impair his statutory right to exercise his revocation in writing which he did.

    He has the statutory right, you don’t have a right to modify that statutory right it’s self executed.

    He made his revocation in writing he should have it recognized.

    Charles E. Whittaker:

    Do I understand that the condition that was copied by Judge (Inaudible) that the form was not (Inaudible)

    Harry E. Wilmarth:

    Right.

    Charles E. Whittaker:

    That’s the only condition, is it?

    Harry E. Wilmarth:

    The only condition.

    William J. Brennan, Jr.:

    (Inaudible)

    Harry E. Wilmarth:

    Well you do to it this extent Your Honor.

    If you’d turn to page 79 of the record, you will find attached the agreement itself, the forms they prescribe.

    Now the form actually used was attachment B.

    William J. Brennan, Jr.:

    yes, but (Inaudible)

    Harry E. Wilmarth:

    Well –

    William J. Brennan, Jr.:

    (Inaudible)

    Harry E. Wilmarth:

    May I preface my answer with this statement Mr. Justice?

    This case, the pleading, the complaint was filed, the answers of the respondent’s admitted all material allegations of fact in the complaint.

    The case went to summary judgments on the admissions in the answers and the supplementary affidavit and therefore you have an abbreviated record.

    Now on page 20 is a part of an affidavit, which is made by one of the local officers with the – just a minute so make sure.

    I think page 20 is the affidavit, it starts on 17, it’s one of the attorneys for the petitioner here and to it he attaches a copy of a letter which states that Felter asked the Order of Railway Conductors to transmit to the carrier his revocation form and this is a copy of the letter by which —

    William J. Brennan, Jr.:

    What I am trying to get to is (Inaudible)

    Harry E. Wilmarth:

    Well he enclosed the form, there’s no dispute in this record that the form I showed you was enclosed although it doesn’t appear at that point in there.

    William J. Brennan, Jr.:

    (Inaudible)

    Harry E. Wilmarth:

    That’s correct, that’s undisputed in the record and the Trial Court so found Mr. Justice.

    The trial Court found that he submitted it in the identical form that the agreement provided and that the sole reason for denying it was that it wasn’t printed by the Brotherhood of Railroad Trainmen.

    Are you asking for money damages in this case?

    Harry E. Wilmarth:

    No we’ve asked for a declaratory judgment.

    Now the thing that puzzles me is this.

    As I understand it, they say that if you had notified them that you’re no longer a member of the union, even though that notification was not written in one of their forms, they would have honored that and ceased to check him off?

    Harry E. Wilmarth:

    I didn’t say that to us —

    They say that here, don’t they?

    Harry E. Wilmarth:

    For the first time, here is what they said in the Trial Court and through the Circuit Court.

    Yes, I understand that.

    I understand that what I’m saying now that they say it is something that they raise for the first time in this Court.

    Harry E. Wilmarth:

    Well –

    But my question directly is what kind of a controversy we’ve got up here?

    Harry E. Wilmarth:

    If you endorse what they now say, we agree with it.

    You disagree with that?

    Harry E. Wilmarth:

    No, we don’t disagree with it, if you now take what their own admission is now, that if all he has to do is write to carrier and they will stop and this Court endorses their own admission, we agree.

    Well, (Inaudible)

    Earl Warren:

    Where does that appear in their brief?

    Harry E. Wilmarth:

    Yes, Your Honors, it appears in the brief of the Brotherhood of Railroad Trainmen.

    Well they still say that they’re not going to let us out.

    William J. Brennan, Jr.:

    (Inaudible)

    Harry E. Wilmarth:

    Not to my knowledge, I’m not surprised this record shows Mr. Justice and they have not – when that occurred, I would like to have them explained because they have never raised that before in their briefs.

    Harry E. Wilmarth:

    First they say, on the bottom of page 3, that –

    William J. Brennan, Jr.:

    What are you looking at?

    Harry E. Wilmarth:

    I’m looking at the BRT yellow brief.

    At the bottom of page 3 they make the point that he didn’t notify that at Southern Pacific they were no longer members.

    Now parenthetically I like to say that some of the men didn’t notify the Southern Pacific directly in this record that they were no longer members and they were treated no differently in the lower courts.

    Now specifically, their admission appears on page 15 and at the bottom of that page in the second paragraph under the letter E, they say had petitioner notified the Southern Pacific Company of his change of unions, no more dues deductions would have been made regardless of a revocation.

    Now if this Court approves that statement which I think is, they were forced to make as a correct statement under the Railway Labor Act, we agree.

    Hugo L. Black:

    Is your lawsuit was just like this that this man had a right to get out and he claimed he had a right to get out by writing out the word.

    They claim he didn’t have a right unless he took their printed words.

    In that case it’s all the way up here with that dispute?

    Harry E. Wilmarth:

    Well with the dispute that they’re going to collect dues from him although he has terminated membership.

    Hugo L. Black:

    (Inaudible) collected dues, if he had walked over, he would have walked over and gotten it or maybe that you don’t have to because (Inaudible)

    Harry E. Wilmarth:

    It may appear small to you Mr. Justice, but to the man it isn’t small who wants to revoke his revocation and —

    Hugo L. Black:

    Well he could have revoked it, couldn’t he, by walking over there or writing them a letter or —

    Harry E. Wilmarth:

    Well he didn’t know that, it didn’t say that to him in the Trial Court.

    They said in the Trial Court and they admitted the allegations of paragraph 12 in the complaint, are on page 7, both of them admitted that they told him they wouldn’t honor his revocation even though he was no longer a member unless he came to them with their printed form

    Hugo L. Black:

    With their printed form.

    Harry E. Wilmarth:

    Right.

    Now well if he is —

    Hugo L. Black:

    The whole argument is whether he’d go get the printed form or not get the printed form?

    Harry E. Wilmarth:

    But it goes beyond that, they say that a —

    Hugo L. Black:

    If he had gotten printed form, he had gotten out, wouldn’t he?

    Harry E. Wilmarth:

    Well, that’s what they say.

    Hugo L. Black:

    (Inaudible) to doubt about it?

    Harry E. Wilmarth:

    I don’t know.

    Some of the initial allegations are in the affidavits, might raise some doubt but it didn’t afterwards.

    I think probably ultimately in the Trial Court that was a fact.

    Hugo L. Black:

    I’m not saying if you (Inaudible) the right to be here–

    Harry E. Wilmarth:

    The point is if he had a right under the Railway Labor Act which he exercised, and it was guaranteed to him to exercise his own choice and submit it in writing and they interfered with it, we say he was entitled or declaratory judgments (Inaudible)

    Felix Frankfurter:

    While he was a member of the Brotherhood, requirement of using this form, if you treat it as a technical or finicky or (Inaudible) or capricious matter was thought, the scheme of the union to which he belonged, isn’t that right?

    Harry E. Wilmarth:

    No he was – even though he had remained a member and merely decided that he wanted to discontinue check off and pay his dues at the local office, he has that right to exercise it with his own free choice undeterred by any protection.

    Felix Frankfurter:

    He was the member of the union at the time when this mode of having to check off (Inaudible) of the arrangement of its members —

    Harry E. Wilmarth:

    Well that is correct Mr. Justice.

    Felix Frankfurter:

    Now why isn’t that an allowable arrangement, why isn’t that a allowable thing to do, for the union for no reason refilling –

    Harry E. Wilmarth:

    Because –

    Felix Frankfurter:

    — so long as he chose to be a member of that union.

    Harry E. Wilmarth:

    The mere fact that he chooses to be a member doesn’t mean they can violate the rights guaranteed to him by Congress.

    Felix Frankfurter:

    But that’s the whole question, whether this violates the right?

    Harry E. Wilmarth:

    Well, I agree with that.

    If they didn’t then we unite here – if they did —

    Felix Frankfurter:

    Congress having said that he can bind himself as a member through an internally different arrangement.

    Harry E. Wilmarth:

    We think they have.

    Felix Frankfurter:

    Well, how can you say because they say if you revoke it that he can of his own free volition subject himself to an internal arrangement which is different that (Inaudible) policy, that’s exercising a freedom of choice.

    Harry E. Wilmarth:

    First our position is that the act specifically here is self executing and that he doesn’t waive it.

    He is entitled —

    Felix Frankfurter:

    I don’t think that Congress had to take care of the freedom of Choice in railways brotherhood members.

    Harry E. Wilmarth:

    I think the legislative history would be that they did just that Mr. Justice.

    Earl Warren:

    Mr. Hildebrand

    Mr. Attorney General:

    The issue is just as narrow as Mr. Justice Black stated, that’s all there’s to the case and this is the way it arises.

    The dues deduction arrangement came in affect, the men voted in a referendum they wanted dues deduction.

    So then the Brotherhood representatives got together with the carrier and they said how are we going to go about this.

    Well the man had to be a member before he could have dues deduction.

    So he paid his membership let’s say this thing started here in these letters March 30, so he paid his membership for the month of April and he was paid up then for the month of April out of his own pocket, but in order to make dues deduction effective, the company pointed out to the — to the Brotherhood and the Brotherhood had to readily agree, well the dues deduction then has to be for the next month, that’s what they ignore and where they get this whole thing haywire and not looking at the time element.

    And they try to make it look as if we are collecting for money after the man had passed out of the organization.

    From the very start to dues had to be deducted and the arrangement was and it’s right in the agreement that was executed between the Brotherhood and the Railroad under which this man himself subscribed and it read and admittedly read and knew all about and agreed to that in the first two weeks of this first month, he pays for the first month and then on the first two weeks of the month where he is already paid, the dues are deducted for the following month which starts this thing going.

    So you’ve got the man paid up for two months to start with and then you just continue along with that and when he finally gets out he is still paid up after he submits his resignation for another month.

    And of course that I don’t know any these organizations that don’t recognize that a man is a member while he is paid up, the issue arises when he ceases to be paid up as to whether he is a member and he didn’t ask for any refund, and so the whole thing revolves around a very simple proposition.

    There has to be time limits to something.

    The brotherhood and the railroad get together and they say, how are we going to handle this thing.

    I don’t know how the other side had set it up, because there — you got a railroad spread out over several thousand miles, it’s a thousand miles from San Francisco to El Paso and if these dues are sent in by a treasurer in El Paso, it takes several days to get to the railroad and it takes several days for the railroad to make up its payroll, so they worked it out on this instance, this happened to be in Eugene.

    Mr. Attorney General:

    And in Eugene which is about 200 odd miles from Portland, it was worked out that the secretary would submit the list to the railroad on the 3rd date, send his list in on the 3rd of the month, the railroad had to get the list by the 5th, the railroad made the deduction by the 15th which gave everybody a timely method of going about this arrangement.

    Then by the 15th the dues were deducted for the following month.

    The man was always being paid up for the current month because he is paid up to start with, this is where all that confusion arises.

    They got him resigned, the minute he sends the resignation in, when he is paid up for the month of April they have got him resigning at the first of April.

    William J. Brennan, Jr.:

    He doesn’t have to resign —

    Mr. Attorney General:

    No, no this has nothing to do —

    William J. Brennan, Jr.:

    What I don’t follow is why can’t he use your form, all the things that you described first, I have been told, could have been processed on the form he actually used, could it not?

    Mr. Attorney General:

    True.

    And —

    William J. Brennan, Jr.:

    Whether or not he resigned from the organization?

    Mr. Attorney General:

    It’s the only issue in the case Your Honor.

    William J. Brennan, Jr.:

    When he — whether or not he resigned —

    Mr. Attorney General:

    The only issue in the case is why he had to use our form.

    William J. Brennan, Jr.:

    That’s right.

    Mr. Attorney General:

    That’s all there’s to this case.

    William J. Brennan, Jr.:

    Give me summary form —

    Mr. Attorney General:

    Alright.

    The agreement says and he signed that he would be bound by this agreement when he authorized the deduction from the very beginning.

    He signed and he said that he assigned his wages to pay union dues as reported to the SP by the treasurer, (Inaudible) monthly statements as provided under the deduction agreement so he knows all about the deduction agreement.

    It’s undisputed that he has been given a copy of the deduction agreement.

    The secretary testifies that this is a summary judgment procedure.

    Every member is furnished a copy of the above agreement and is explained to him when he signs the authorization for dues deduction.

    So he knows exactly what this agreement says.

    Now this agreement says and the Brotherhood is bound by it, so is the railroad and so is this man, he signed authorizing this himself, there is nothing that’s put over on him at all.

    Both the authorization forms and the revocation of authorization forms shall be reproduced and furnished as necessary by the organization without cost to the company.

    The organization shall assume full responsibility for the procurement and execution of the forms by employees and for the delivery of such forms to the company.

    Now what you have here is a practical matter, you have a rating seven–

    William J. Brennan, Jr.:

    Well I haven’t heard you –

    Mr. Attorney General:

    You have two arguments –

    William J. Brennan, Jr.:

    (Inaudible) anything which says he must uses that form.

    Mr. Attorney General:

    Well now you have, now this is my argument now.

    You have two ready —

    William J. Brennan, Jr.:

    Is that all there’s to it, I mean it’s on that line did you say —

    Mr. Attorney General:

    It’s on that line.

    William J. Brennan, Jr.:

    — he obliged himself to use this form and nothing else.

    Mr. Attorney General:

    He agreed to use this form, the Brotherhood agrees to use the form, the railroad agrees to use the form.

    Now who is complaining?

    It shows clearly from the record that the rating organization, the rival organization, the Order of Railroad Conductors is complaining.

    Mr. Felter is just a puppet here as far as this suit is concerned, and the record shows the letters along the correspondence, the Order of Railroad Conductors is behind this.

    Now why are they complaining, they are complaining because they don’t like the idea that this man who has had to belong to the Brotherhood for a year, he has had to stay in there on his own authorization, doesn’t want to conform to the precise requirement to windup his membership, not membership his dues deduction with him.

    Now the dues deduction is distinct from membership.

    He doesn’t have to resign if these — revoking his dues deduction and the other side repeatedly confused dues deduction and changed the membership.

    Hugo L. Black:

    May I ask you a question there?

    Mr. Attorney General:

    Surely.

    Hugo L. Black:

    Is the case still alive?

    Is he still holding off or has he now working for the railroad with his dues not being deducted?

    Mr. Attorney General:

    Well as I understand it, I don’t know — it seems to me that the injunction was kept in effect right along and the Brotherhood haven’t collected any dues since the time the injunction was first issued and I think we stipulated along through the various proceedings that the injunction would remain in effect.

    There was an injunction to start with enjoining the Brotherhood from collecting any more dues from this man and they didn’t.

    And as a matter of fact, here is the situation only had been —

    Hugo L. Black:

    The railroad had been — has the railroad (Inaudible) – is he employee now without having his dues deducted?

    Mr. Attorney General:

    Yes that’s right.

    I don’t know whether the ORC are deducting his dues now or not, the record doesn’t show that

    Felix Frankfurter:

    May I ask you this question which may have nothing to do with the legal question in the case, but it’s helping to cut through this thought, thought for me?

    What benefit, this is a row between the train and one of these many aspects of rows your Brotherhood and the Conductors.

    Mr. Attorney General:

    That’s right.

    Felix Frankfurter:

    And you, this is the first time you try to get speak for United States (Inaudible)

    Mr. Attorney General:

    That’s right.

    Felix Frankfurter:

    What I want to know is what benefit is it for the Conductors that Felter should not use the form of the Trainmen?

    Mr. Attorney General:

    They have their own same agreement themselves Your Honor and the same provisions in their agreement with the railroad.

    Felix Frankfurter:

    What — would you be good enough to answer me that question if you can?

    Mr. Attorney General:

    I don’t see.

    Felix Frankfurter:

    You said, he is a just pawn in this fight.

    Mr. Attorney General:

    Well here is the benefit.

    Felix Frankfurter:

    All right I want to know why they used this pawn and what to end?

    Mr. Attorney General:

    Here is the benefit, the organizer goes up and he sees these fellows, he said well, you better get me (Inaudible) because you now are a conductor and you work part time trainman and part time conductor and (Inaudible) are more desirable you better come and join up with the (Inaudible) the dues are little less for some other argument.

    Well as well I now — I’ll switch over and the fellow says all right sign this revocation, or they can sign it for me, send it in and they signed it and sent them in.

    So he had been brought out here with the 11 of these people who are supposed to have brought this class action have (Inaudible) it they say–

    Felix Frankfurter:

    But you mean — do I understand from that that maybe he didn’t have the facility of having the conductors organize and do this for him if he had to do it himself by the getting the form he might hesitate and change his mind, is that it?

    Mr. Attorney General:

    That’s probably it and —

    Felix Frankfurter:

    I didn’t understand this (Inaudible) fight on the brotherhood —

    Mr. Attorney General:

    That’s right.

    Felix Frankfurter:

    (Inaudible) prejudicing.

    Mr. Attorney General:

    These organizers of course they have to do a job and they don’t care a lot of times how they get a man —

    Felix Frankfurter:

    And you are saying, you have a right to, you have a right — from your point of view, what you are saying is, you have a right to all the formalities to which he agreed by which he was bound operating and especially to will or his inducement convenient to the (Inaudible) to make him stay with the Trainmen instead of going to conductors is that right?

    Mr. Attorney General:

    Not to make him stay.

    Felix Frankfurter:

    I am not (Inaudible) this is a foresight as I understand it.

    Mr. Attorney General:

    Not to make him stay with the trainmen but —

    Felix Frankfurter:

    He will thin three times before he leaves you –

    Mr. Attorney General:

    While they make him comply with this —

    Felix Frankfurter:

    But not as an aspect proposition you don’t care about one piece of paper rather than another piece of paper, do you?

    Mr. Attorney General:

    Except for the fact that it makes for an orderly procedure and you make it spurious papers otherwise.

    These organizers send some men and it isn’t the man signature at all and later the man were infuriated, just as —

    William J. Brennan, Jr.:

    (Inaudible) are you saying he is wise, he is adult, he is over 21, he signed this agreement and as long as this particular requirement, there is (Inaudible) no statute to your — required to follow it, is that it?

    Mr. Attorney General:

    That’s right, that’s all it was.

    William J. Brennan, Jr.:

    Whatever the motives or anything else?

    Mr. Attorney General:

    That’s right and the dues deduction agreement itself Your Honor, not only provides for all this, but he signs it twice, when he first authorized dues deductions he says in accordance with the dues deduction agreement and later in this form of revocation which he signs, in the form of revocation itself he says that he revokes the wage assignment to pay monthly dues, now being held pursuant to the deduction agreement between the organization and the company, and it’s understood and he has read and understand that deduction agreement that it’s explained to him when he first signed the deduction authorization.

    So he signed twice and he does this in accordance with the deduction agreement, the brotherhood aren’t trying to put anything over on him they just want him to comply with what he has agreed to and the company has agreed to and the brotherhood has agreed to.

    William J. Brennan, Jr.:

    Now what’s your answer to adversary’s argument that under the provisions of the statute, they may not exact such an agreement from him?

    Mr. Attorney General:

    Well, my answer is that they, sir they confuse the termination of membership with a proper execution of the dues deduction, because this dues deduction is not necessarily termination of membership and I don’t know exactly when a membership would terminate.

    It would depend probably on things that are not in evidence here.

    Mr. Attorney General:

    There are constitutional provisions that these brotherhoods have, the man’s dues are paid up, suppose he wants to resign April 1st and his dues are paid up till April 30th, now we are not enlightened on that as to what the constitutional provision or the setup of the brotherhood would be.

    Ordinarily I think the reasonable interpretation would be that the man would be a member until April 30th

    Felix Frankfurter:

    You have to go further and ask the Justice Burns question in order to — I think you have to go beyond the answer you have given.

    You have to say that what the statute says, that is assignment, his personal assignment shall be revocable in writing as to the expiration of year that means that Congress has said any oral writing will do and not a writing to which he agreed as a member, you have to go that far.

    Mr. Attorney General:

    That’s right and —

    Felix Frankfurter:

    And you have no reason for going that far —

    Mr. Attorney General:

    And you’ve to go further, you’ve got to say that no orderly process can be setup.

    Now these men have important lives.

    Suppose that he is fired by his employer on April 1st and suppose he has given his resignation affective the March the 30th and suppose he hasn’t paid his dues to join the ORC and he needs representation to save his job and he has got 30 years seniority, which this fellow I think had.

    Now if he isn’t the member, they won’t represent him and he has got no representation, he has got to go before the justice court —

    William J. Brennan, Jr.:

    Well I know.

    The way Congress wrote this, Congress wasn’t concerned with representation as such, was it?

    Mr. Attorney General:

    No.

    William J. Brennan, Jr.:

    Even though it continued his membership in the organization, nevertheless after a year from the date of an assignment, he was authorized to revoke it, even though he stayed in the organization, was he not?

    Mr. Attorney General:

    That’s right.

    William J. Brennan, Jr.:

    Now where — your adversary emphasizes it was a proviso and he asks you in effect, and so do I, where is there anything in it, which suggests that he may not revoke it precisely in the manner he did.

    Where is there anything in the proviso?

    211 (Inaudible)

    Mr. Attorney General:

    Well, if the proviso doesn’t say —

    William J. Brennan, Jr.:

    That’s the only thing, isn’t the proviso the only provision with —

    Mr. Attorney General:

    Yeah it doesn’t say —

    William J. Brennan, Jr.:

    Which shall revocable in writing after the expiration of —

    Mr. Attorney General:

    That’s right it doesn’t say as of what date, now suppose he had insurance, when would his insurance terminate on that kind of a setup and if he was going to replace that insurance he would know himself as of what day he was going to replace the insurance.

    He has paid up with the trainmen for an additional month after he has filed this revocation, and should he have to (Inaudible) two organizations and paid dues for two months to have representation, that’s against the policy of the law.

    Furthermore in (Inaudible) case this Court said, that you are not interested in helping rating organization, you are not interested in these battles between these organizations and that’s exactly what this amounts to, this man is aggrieved to this very procedure and it’s a reasonable procedure, the Trial Court and the Appellate Court said it was a reasonable procedure.

    Potter Stewart:

    Where and how did this man agree to this very procedure?

    Mr. Attorney General:

    Well, he agreed first when he signed the wage assignment offer.

    Potter Stewart:

    Where does that appear?

    Mr. Attorney General:

    That appears at transcript page 78.

    Potter Stewart:

    Page 79, 78?

    Mr. Attorney General:

    And at that transcript page 78, in this form that we have spoken of Your Honor.

    Potter Stewart:

    You have already agreed to this procedure there.

    Mr. Attorney General:

    He says in the tax fund a, which is the form that they admitted he used, towards the bottom of the page, I sign and so on my wages and so on, as provided under the deduction agreement entered into by and between the organization and the company.

    And the testimony is undisputed by the treasurer of his lodge; that, that dues deduction agreement at that time was given to him a copy of it and was explained to him and he understood it and agreed to it.

    Potter Stewart:

    Well now, what the agreement says as so far as pertinent here, appears on page 75, it’s on paragraph C, and it simply provides that authorization of forms, the revocation of authorization forms shall be reproduced and arranged as necessary by the organization without cost to the company.

    It does not say certainly explicitly and only perhaps does it via implication that that’s the only kind of a paper that the employee can sign in order to —

    Mr. Attorney General:

    But the next step Your Honor —

    Potter Stewart:

    Check off.

    Mr. Attorney General:

    The next sentence may help us, it says the organization shall assume full responsibility for the procurement and execution of the forms by employees and for the delivery of such forms to the company.

    Now if they have had responsibility, why shouldn’t they be able to use their own forms and be sure that they are not spurious, that some organizer hasn’t got the — put his name on there and which the man they repudiate, and so that they are positive and clear that the man signs it.

    There is no record here of any force or any intimidation on this man, as soon as this letter was received by the Secretary Treasurer, he wrote back to him sending one of these forms voluntarily, says fill it out and it’ll go through.

    Potter Stewart:

    I understand and that of course is what this case is about but what I was interested is where if anywhere, this man, Mr. Felter, agreed to stop the check off only upon a form issued by the company, because that’s the statement you made as I understand it.

    Mr. Attorney General:

    Only has he agreed to Section C, that we have been talking about.

    Hugo L. Black:

    May I ask you, are you familiar with the legislative history of this bill?

    Mr. Attorney General:

    Yes, in the legislative history —

    Hugo L. Black:

    (Inaudible) that Congress was greatly disturbed of the problem was presented to them, as great disputes that will occur whether they sign one paper or another paper saying —

    Mr. Attorney General:

    No, no I don’t think that there was any argument about that, the main thing they wanted to be sure was that the man authorized the dues deduction and that he in person did it in writing which is of course as done here.

    Hugo L. Black:

    Was there anything at all about this kind of dispute in connection with the legislative history?

    Mr. Attorney General:

    No.

    Hugo L. Black:

    Did this come up after sometimes to this appeal or this is the first time it’s come up?

    Mr. Attorney General:

    This is the first time it’s come up.

    These agreements are new.

    The ORC are the same kind of agreements, the same clause and everything else, but the only question as I see it is —

    Felix Frankfurter:

    That means that one of these days we’ll have a case where they got one of your men.

    Mr. Attorney General:

    That’s right.

    Felix Frankfurter:

    And got one of their men and they are objecting.

    Mr. Attorney General:

    That’s right; the only question is, is this an ordinary procedure?

    Is it a reasonable procedure?

    Did the brotherhood and the railroad have a right so that they can keep their record straight, so they can keep the insurance that the man has and the rest of straight to have an ordinarily procedure?

    Hugo L. Black:

    Was this an injunction?

    Mr. Attorney General:

    Yes it’s started of —

    Hugo L. Black:

    Was any question raised about the use the courts to enjoin on such a technical point?

    Mr. Attorney General:

    Well both sides went in on summary judgment.

    We agreed that there was no dispute about the facts and so there we are.

    I was kind of surprised when it reached up here on this point, but here it is [Attempt to Laughter].

    And it seems to me that the point is such that it’s not of great importance whether the man signs one form or the other, but as long as he has agreed to it twice, in both agreements he has signed, as long as that’s agreed with the brotherhood and the railroad and made, why shouldn’t he live up to it.

    The forms are readily to him, there is no reason why he couldn’t get one.

    It doesn’t keep him out of getting out of the organization or anything else.

    Hugo L. Black:

    (Inaudible)

    Mr. Attorney General:

    What is that?

    Hugo L. Black:

    Did I understand you to say (Inaudible)

    Mr. Attorney General:

    Well I don’t think it’s of great importance in this respect, as to whether he signs one form or the other, as long as he has the opportunity and the ability to sign a form and get out.

    Hugo L. Black:

    But the case couldn’t be up here could it, unless —

    Mr. Attorney General:

    Well I don’t know about that [Attempt to Laughter], I don’t know — I have known of petitioners that they have providently granted [Attempt to Laughter].

    Earl Warren:

    (Inaudible) grant, I understood counsel to say that you have taken the certain position in the courts below with relation to —

    Mr. Attorney General:

    Oh well there is a mistake now.

    Earl Warren:

    Let me finish —

    Mr. Attorney General:

    Frankness to the Court.

    Earl Warren:

    Let me finish my question please.

    Mr. Attorney General:

    Yeah.

    Earl Warren:

    I understood counselor to say that you had taken one position in the courts below as to the necessity for the use of the printed document issued by the — by your union, and then he stated that in this Court you have changed your position and you have stated that if such an application is — of revocation is made directly to the company, that it will be honored and that there is no quarrel between you.

    Now he said if that — if the courts defined that is the situation, that he has no quarrel with it.

    Did he state the situation accurately?

    Mr. Attorney General:

    He stated it correctly in this respect Your Honor.

    At page 15 of our brief, in respondent’s brief, there is a mistake, towards the bottom of the page, it says had the petitioner notified the Southern Pacific Company that this changed the union, that should be as the petitioner notified the Brotherhood of the Railroad Trainmen of the change of union, that’s a mistake in our brief, I’m sorry it was made, but it was made.

    I caught that as I was reading it the other day and I noticed it was that mistake, but we don’t concede that anything should be done, except in accordance with the wage deduction agreement and if he had notified the brotherhood and got this form and filled it out, that’s all he had to do.

    No compulsion was on him otherwise.

    There is no record in this — there is no evidence in this case and there is no record at all of any coercion being exerted on this man and as to this man the thing was an unfortunate timing, because the list had to go in on the 3rd, so as to reach Portland on the 5th, so the company could deduct on the 15th.

    Now the man writes this letter, March 3rd it’s postmarked the 1st, it gets to the Secretary on the 2nd, and the Secretary says well we haven’t got the proper form, I don’t know if this is a rating or if this is what you really want or not, and I’m sending you a proper form, sign the proper form and I’ll send it in, unfortunately that delayed the things so that he couldn’t get the thing in the mail until the following month, which is in accordance with the agreement.

    Charles E. Whittaker:

    Mr. Hildebrand may I ask you please?

    Mr. Attorney General:

    Sure.

    Charles E. Whittaker:

    You say now the (Inaudible) on page 16 of your brief about how the petitioner notified your union.

    Mr. Attorney General:

    That’s right.

    Charles E. Whittaker:

    Of a change in union then no more dues would have been —

    Mr. Attorney General:

    He had been given the form and he just signed it.

    Charles E. Whittaker:

    But the statute as I understand it, Section 11(b) says that the employee has the right after the lapse of one year to revoke in writing, on his own account.

    Mr. Attorney General:

    That’s right.

    Charles E. Whittaker:

    Now then he did in fact deliver a revocation in writing, even on the form you provide or print, to the employer and wasn’t that a good revocation?

    Mr. Attorney General:

    Not under this agreement because the agreement provides —

    Charles E. Whittaker:

    The statute controls, doesn’t it?

    Mr. Attorney General:

    Well I think the statute contemplates an agreement, because the statute to start with says in 45 USC 15211, that the dues deduction agreement is allowed.

    Now that dues deduction agreement is between the carrier and the brotherhood and that’s what they made.

    Now the whole question is what are reasonable provisions in the dues deduction agreement?

    Charles E. Whittaker:

    Well if it were reasonable, but yet violated the statute, subdivision C and D, a proviso, it would still has to give way to the statute?

    Mr. Attorney General:

    Of course, correct.

    Now —

    Charles E. Whittaker:

    Well isn’t that a point?

    Mr. Attorney General:

    The only question is, does the reasonable arrangement of this kind having in mind the timeliness and the dates and that people have to act in accordance with a schedule, does that violate the statute?

    And we don’t think it does, because we have it into — the only kind of — I don’t know what sort of agreement they would want.

    You couldn’t have the resignation effective right now, because the man has paid up for a month.

    I don’t know when his membership should cease.

    If he has paid up for a month and I don’t think it should cease until the end of his paid up period, and so you have to have some sort of timeliness in the whole setup, so the brotherhood and railroad get together and they setup a timely schedule for handling these things.

    Charles E. Whittaker:

    All I understood the question was, and I maybe entirely wrong about this, was that petitioner contends that the parties had no right to bargain away the right of revocation which Congress gave him by the proviso of subsection 11(b).

    Mr. Attorney General:

    That’s right, if they didn’t bargain it that way.

    Charles E. Whittaker:

    Provided that Section 11(b) by servicing a notice in writing, in all respects like the notice that you provide, upon the employer as to it wasn’t recognized.

    Mr. Attorney General:

    Well all that the section says, the law says, provided that no such agreement shall be effective with respect to any individual employer until he shall have furnished the employer with a written assignment to the labor organization of such membership dues, initiation fees and assessments, which shall be revocable in writing after the expiration of one year, but it doesn’t say how you’re going to do it.

    Now the earlier sections that say that you’re going to have a dues deduction agreement, obviously contemplate that there’s going to be some procedures setup of by the railroad and the brotherhood to handle these things, and that there has got to be some time setup, outlined and the way it started out was that the man paid a month in advance and paid for the first month and then the dues deduction would be for the second month.

    So in terminating it you have to have some reference to this agreement unless it’s an reasonable agreement.

    Charles E. Whittaker:

    But as I understand, maybe I’m wrong again about this, the railroad sent this petitioner’s notice over to you, to the union.

    Mr. Attorney General:

    That’s right.

    Charles E. Whittaker:

    And the union said we won’t recognize it because it’s not upon from our press.

    Mr. Attorney General:

    That’s the only issue in the case.

    Charles E. Whittaker:

    Now it is —

    Mr. Attorney General:

    Was that wrong for us to do it, that’s all and should this Court pass on that, that’s the whole thing in the case?

    Is this Court going to say that the brotherhood and the railroad can’t pass on a little matter like that and that that they can make such an arrangement?

    Should the case ever come here on an issue like that?

    Shouldn’t the brotherhood and the railroad and the man himself agreeing to it, be allowed to decide such things?

    Is this is the denial of the man’s rights and is this depriving him of a right of revocation on such a silly trumped up (Inaudible) and I think that the Court never realized the time element in this thing, and you would never granted certiorari on it.

    William J. Brennan, Jr.:

    May I ask you one other question.

    I know that the statute deals with assignments related only to membership dues, initiation fees and such.

    This attachment A at page 78, it’s insurance premium.

    Mr. Attorney General:

    Well that’s right, but that isn’t involved in this case.

    I don’t know, it could be another issue.

    William J. Brennan, Jr.:

    Well that’s my question, you would have —

    Mr. Attorney General:

    Not involved in this case.

    William J. Brennan, Jr.:

    Not a question of whether it’s involved, you make any argument based upon the fact that the time and authorization is broader than the statute?

    Mr. Attorney General:

    I don’t see that’s an issue in this case.

    Counsel served upon us a supplemental brief today, and one of my associates looked at the case, this is served 11:30 today, supplemental brief for petitioner and this case is cited on 69 Fd. Supp.

    The right of the case itself, the Court says citing the Felter case, this one that we’re arguing today, the case is not in point as the question for a decision, and the case at bar was not involved.

    So I don’t know that we need to pay any attention to this supplemental brief.

    I’d assume that with that stated by the Court we hardly need to answer, but there it is, I suppose my time is up Your Honor.

    Earl Warren:

    It will be when the red light is on.

    Mr. Attorney General:

    Oh I don’t — I think that the one issue in this case as Mr. Justice Black picked out quickly, is whether an authentic card requirement is reasonable and whether the brotherhood and this man and the carrier can agree to an authentic card requirement, that’s the whole thing, it all boils down to that.

    Now is that denying this man right to terminate when it’s admitted that no question was put on him when he was offered an authentic card to sign, when the brotherhood has the responsibility of seeing to it that this thing is properly administered, that the money is sent and this treasury has the responsibility and this man himself in two different places has agreed to this, and it’s read to him when he understands it.

    It reduces the chances of unauthorized requests.

    It helps prevent organizers from getting unauthorized signatures and sending them in.

    It can only help a rating organization is all it can help if it’s decided by this Court, that that small issue was going to decide this case.

    The Trial Court and the Circuit Court of Appeals went along with this on the idea, once they understood it and it seems to me that now that this Court understands the issue that, the case should certainly be affirmed.