General Electric Company v. Local 205, United Electrical, Radio, and Machine Workers of America – Oral Argument – March 26, 1957 (Part 2)

Media for General Electric Company v. Local 205, United Electrical, Radio, and Machine Workers of America

Audio Transcription for Oral Argument – March 26, 1957 (Part 1) in General Electric Company v. Local 205, United Electrical, Radio, and Machine Workers of America

del

Allan R. Rosenberg:

I very much doubt that the Court has an adequate idea of what the issues are in this case or what the — particularly with respect to the factual nature of the problem involved here or what the issues are likely to be in the typical case involving an arbitration clause and the collective bargaining contract that contains a no-strike clause from the presentation of my Brother Farr.

As I heard him, it was a little case involving Mr. Boiardi who wasn’t getting paid and Mr. Armstrong who was improperly discharged so he claimed.

And these are things which really no one is being heard on and it’s better to leave it to General Electric to decide whether or not this is arbitrable or not.

And perhaps, the employees ought to be able to sue and without regard to the union and bypassing the union and go to some court where the state of federal depending on what’s involved.

And — and of course, if the union — if the employer refuses to arbitrate why the union has relief of its no-strike clause and that’s all fine.

Now, I submit that without an understanding of what is involved in this case and in other cases involving the kind of grievance to get something on the issue of arbitration and goes to Court, one will not appreciate the problem involved here without regard to the legal issues involved.

Here, we start with a contract.

First, let me say that we have a local union, a local Massachusetts union representing the employees of the General Electric Company of Ashland, Massachusetts.

The General Electric Company causes a New York Corporation in an industry affecting commerce.

The record has an uncontroverted affidavit that all the employees represented by or members of this local Massachusetts union are citizens of States other than New York and it gets Massachusetts, Rhode Island and Connecticut.

And the — the factual basis of the case as far as that is concerned is that the parties are diverse.

The contract was made in June of 1953 and it has been automatically renewed through August 1956 and is replaced in August 1956 by a five-year contract with this local union.

So we have a situation different from that in the Lincoln Mills case where there was a termination of the contract.

Here, there’s been a continuous contract containing the same terms.

Now, the terms of this contract with respect to the grievance procedure are the conventional four-step grievance procedure going through progressively higher levels from the lowest level of foremen to the plant manager.

And if there is a dispute which is not settled in the grievance procedure, it goes to arbitration.

The only parties to the arbitration are the union and the company.

The employees are excluded from its terms.

The union selects the arbitrator with the company, the cost of the arbitration, the entire administration of the arbitration agreement is in the hands of the union and the company.

Employees have no rights in that as such, not directly.

Now, there is a grievance — a — a no-strike provision in this contract and that is related to the grievance procedure and it permit strikes when grievances which have been processed and arbitration has not been resorted to, either party being able to resort to arbitration under the arbitration clause.

And there are further limitations about 60 days notice.

Now, there is the provision involved in the Boiardi grievance is set forth in Article IX and its first paragraph — first numbered paragraph, “The company shall furnish the union within 30 days after the signing of this agreement a complete list of job classifications and rate ranges.”

And the grievance here is that Boiardi is classifying at a job classification, repairman 3501, and he’s not getting the rate for it.

What is the significance of that in this company?

It is that the rates that have been agreed upon, the whole rate structure of this company, is imperiled by what the union asserts to be a rate that’s not — that is being put into effect, that hasn’t been bargained, that hasn’t been furnished by the company.

This does not — this is not approved wages.

It may result in six cents an hour, I think, the difference for this one individual employee.

But if the company, as it might turn out, for example, in arbitration, is able to put an ‘L’ after a rate, meaning learner, and pay six cents an hour or less for one rate.

There’s no reason in the world I suppose that it can’t do it after other rates.

Allan R. Rosenberg:

So you have the whole rate structure of the General Electric Plant of Ashland involved.

This question involves whether or not the company has furnished a complete list of job descriptions and rate ranges to the union within 30 days after the signing of this contract in June of 1953.

That’s what’s involved here.

What is involved is what not only Boiardi but every employee who has a job classification and a rate range is getting what the union and the company bargained to give him.

That’s the problem here.

Now, they’re saying, no one is hurt.

They say, let the employee sue.

Let the company decide whether it’s arbitrable or not is to negate the purpose for which the collective bargain was made, should they strike or should they go to arbitration.

They’ve chosen, as they have a right to do, to go to arbitration on it.

Now, the company could very well say, this is not arbitrable and tested out as it did in the Boston Herald-Traveler case.

But it takes the flat position, not that this isn’t arbitrable, but there is no relief to be had in the federal courts in this contract of a manufacturing company with production and maintenance employees involved in a rate structure case which cuts across the whole of its — of plant in — in Ashland.

Felix Frankfurter:

Is the Boston-Herald case been reported, Mr. Rosenberg?

Allan R. Rosenberg:

I believe it has, Your Honor.

I don’t have the reference.

It was a companion case on the enforceability aspect of it to the General Electric and the Goodall-Sanford cases.

But it went down to the District Court and then came up again on arbitrability.

We are —

Hugo L. Black:

(Inaudible)

Allan R. Rosenberg:

What’s that?

Hugo L. Black:

(Inaudible)

Allan R. Rosenberg:

Mr. Farr informs me it’s in the same volume as this case.

Felix Frankfurter:

Thank you very much.

Allan R. Rosenberg:

Now, the Boiardi case — I’m sorry, the Armstrong case arises out of a different section of the contract.

That section of the contract has to do with the grievance procedure itself and it concerns — it’s in Article 12.

And there is a clause concerning a grievance — concerning dismissal for cause.

Now, I cannot make the same argument about a dismissal for cause that I make about the rate structure in this plant, but I do make this that the — in the first place, it’s apparent that the underlying grievance that is beyond the — the case on arbitration.

The — the arbitration clause unquestionably runs to the union, qua union, so that we have here, as I suggest, a case appropriate for 301 jurisdiction whether it is a jurisdiction over the subject matter or jurisdiction to grant the particular kind of relief to one side.

We — we have jurisdiction qua over a union controversy here.

And the underlying grievance in the Boiardi case concerns a promise that the company will turn over to the union not to Mr. Boiardi or to any of the 700 or 800 employees in this plant but it’s a promise that runs to the union.

That’s the underlying grievance and then beyond that, there is Mr. Boiardi’s right and the union’s right to test whether that promise by the company to the union has been fulfilled.

Allan R. Rosenberg:

In the Armstrong case, we have a situation that’s not the same.

We have a man who is discharged and the only aspect of it that I would think the union has a direct interest in is the aspect that it hasn’t all discharged for cause cases where the union’s interest in — in the law of the bargain, in the law of the collective bargaining contract were the company says, we shall not discharge except for cause or in this case, a more elliptical form of it, is observed for the protection of the individual members.

In that, the union has a stake, as I think it was pointed out in the — Mr. Justice Frankfurter’s opinion in the — in the Westinghouse case.

These cases often triggered strikes and disputes which lead to strikes.

So certainly with respect to the underlying premise in the — in the rate structure case and the Boiardi case, we have a — a situation which is kind of doubled bottom.

We have, first, the premise running to the union to arbitrate and this involves a premise running to the union to turn over a complete list of right ranges and job descriptions.

Now, it is a fact, as Mr. Farr has pointed out, that this case was dismissed by the — a motion to strike the equitable relief and finally, a final judgment had been granted by the District Court of Massachusetts in this case on the sole ground that the plain language of the Norris-LaGuardia Act forbids the issuance of the injunction as the Court called it sought in this case, what we sought in the complaint which was filed in December 1954 prior to Westinghouse.

And while the American Thread was the single case in Massachusetts in the Federal District Court there on that subject.

What we sought was a decree of specific performance of this arbitration clause.

Felix Frankfurter:

Are you making a point that this is not an injunction within the scope of the Norris-LaGuardia Act?

Allan R. Rosenberg:

Your Honor, I say it is not the kind of order or decree or injunction or mandatory relief requested which the Norris-LaGuardia Act is aimed at.

Felix Frankfurter:

Well, I — that’s on the substantive side that I am making a point as to the particular kind of order, namely, that an order for a specific performance which limits — which is an injunction not to do something that you want to do.

Are you making a point that that is not both an injunction if that phrase is use?

I don’t mean —

Allan R. Rosenberg:

Well, I think —

Felix Frankfurter:

— I don’t mean to touch the major question.

Allan R. Rosenberg:

I understand.

Felix Frankfurter:

(Voice Overlap) argue about that.

Allan R. Rosenberg:

I think that — that there is — there’s law of both ways on that and I would hesitate to —

Felix Frankfurter:

All right.

Allan R. Rosenberg:

— to try to fix a label on something —

Felix Frankfurter:

But you’re not —

Allan R. Rosenberg:

— and determine its substance.

Felix Frankfurter:

That isn’t your reliance.

Allan R. Rosenberg:

No.

Felix Frankfurter:

I’m just saying the Norris-LaGuardia Act doesn’t apply.

Allan R. Rosenberg:

No.

I think the Norris-LaGuardia Act applies to — as — as Judge — Chief Judge Magruder said to labor injunction —

Felix Frankfurter:

I understand that.

Allan R. Rosenberg:

— on a typical sense.

Felix Frankfurter:

But that goes to the content, the nature of —

Allan R. Rosenberg:

That’s right.

Felix Frankfurter:

— the controversy —

Allan R. Rosenberg:

That’s right.

Felix Frankfurter:

— and not that — that this isn’t of the nature of injunction.

That a specific performance is an indicative way of saying you must do the opposite of that which you’re ordered to do.

Allan R. Rosenberg:

I place no reliance, Your Honor.

Felix Frankfurter:

All right.

That’s all I wanted.

Allan R. Rosenberg:

I do say as the George amendment which I’ve outlined in the brief points out that there is some reason for thinking that the — and as this Court in the Virginia Railway case adverted to the — to the mandatory nature of the mandatory injunctions or mandatory orders where — as I see it bypassed or left out of those legislative history to indicate that they were not to be included in the prohibitions of the Norris-LaGuardia Act.

But I think basically, as Chief Judge Magruder says, this isn’t the kind of thing that the Norris-LaGuardia Act was aimed at.

Now, the Court of Appeals, having before just the dismissal on the ground of the bar of the Norris-LaGuardia Act did have arguments presented on state law, on the United States Arbitration Act on Section 301.

And —

Felix Frankfurter:

Judge Aldrich went exclusively on Norris-LaGuardia, didn’t he?

Allan R. Rosenberg:

So I understand it and so the Court of Appeals did.

He said and I’m quoting him, “The plain language of the Norris-LaGuardia Act forbids the issuance of the injunction.”

Now, I do not think that Judge Magruder’s position has been accurately represented with respect to Section 301.

As I read it, while he says that it was not intended either to create any new remedies or to deny applicable existing remedies, he does say that if you read the maximum into it that can be read into him, the most that could be read into it would be that it authorizes equitable remedies in general including decrees for specific performance of an arbitration agreement.

That’s on page 73 of the record.

He finds on the basis of the legislative history which I will try to trace briefly for Your Honors that — that’s the most that can be read into it.

And I say as Judge Wyzanski said, this is a statute in which, under Title 2, the declaration of policy and otherwise the maximum degree of enforcement of arbitration clauses should be read into it.

Felix Frankfurter:

Is it fair to say that Judge Magruder did not rest on 301?

Allan R. Rosenberg:

No, I don’t —

Felix Frankfurter:

I thought you said it couldn’t be rested on 301.

Allan R. Rosenberg:

Well, he did rest on it as a jurisdictional basis.

Felix Frankfurter:

Yes, I understand that.

But — but for the purpose of — he wouldn’t — he wouldn’t have granted specific performance to arbitrate on the basis of 301, is that correct?

Allan R. Rosenberg:

I think that’s — that’s probably correct.

He says it lacks the procedural safeguards and it’s impractical to use it.

I gather that if pressed, he would say, maybe you can read into it if you read it at its maximum.

Felix Frankfurter:

Many are — I suppose, you’ve got what he’s written —

Allan R. Rosenberg:

Yes.

Felix Frankfurter:

— it’s clear he didn’t rest on 301 but said it couldn’t be rested.

You have to go over to arbitration.

Allan R. Rosenberg:

Right.

Felix Frankfurter:

And as you rightly indicate, but he uses 301 for jurisdiction of purpose.

Allan R. Rosenberg:

That’s right.

And I don’t think, if Your Honor please, that there is any serious question or should be even under Westinghouse that this is a union controversy on which jurisdiction of the District Court over the subject matter clearly attaches.

It is — it seems to me to scale the importance of the problem down to talk about while these little arbitration things and if the company wants to agree or it doesn’t want to agree.

This is and has become a policy of the United States, Title 2 of the — of the Taft-Hartley Act.

It says it is a policy of the United States that such arbitration clauses should be included in collective bargaining contracts.

And I think that the approach of both the Senate and the House in their separate versions of this legislation toward accomplishing some remedy for the violations of contracts and refusal to honor arbitration agreements makes it, to me, sufficiently clear.

And by sufficiently, I mean, sufficiently to persuade Mr. Chief Judge Magruder to make the statement that he made and to persuade this Court and I think the Court’s reluctance — the lower court’s reluctance to use it and to go to the Arbitration Act is misguided.

I think that there is enough in the legislative history.

And I — let — let me call without repeating what the statutory recognition of these contracts is valid, binding and enforceable and the effort of the Senate to go tandem with 301 and Sections 8 (a) (6) and 8 (b) (5).

Without repeating what Your Honors have already heard on that, there was a question raised by Mr. Justice Frankfurter, “Could you dispense with going to the Board under the Senate version without — before you go to Court?”

Now, the Senate considered that.

The Senate report made a point on that.

It made the point — it is the purpose of this bill to encourage collective bargaining and somewhat.

It would not be conducive to that object if the Board became the form for trying day-to-day grievances or from the guide of unfair labor practice cases.

It entertained damage actions arising under breach of contract.

Hence, the Committee anticipates that the Board will develop by rules and regulations a policy of entertaining under these provisions and those provisions with the unfair labor practice provisions, if Your Honor will recall which would eventuate in a cease and desist and affirmative order requiring compliance with the terms that the particular case warranted.

The Board will develop by rules and regulations a policy of entertaining under these provisions only such cases alleging violation of contract as cannot be settled by resort to the machinery established by the contract itself, voluntary arbitration or if necessary by litigation in court.

And it talks about any other cause would engulf the Board with a vast number of petty cases and so on.

In short, the intention of the Committee in this regard is of cases of contract, violation to be entertained on a highly selected basis when it is demonstrated in the Board that alternative methods of settling the dispute have been exhausted or are not available.

Felix Frankfurter:

Well, that would indicate just — from hearing what you read would indicate that the Board would have the kind of discretion to entertain what alleged unfair labor practices referring to on the basis on which it now selectively entertains unfair labor practice, is that right?

Allan R. Rosenberg:

Well, I don’t —

Felix Frankfurter:

I mean, all you’ve read said that the Board wouldn’t have to entertain every case for claim of underpayment or — but would selectively take what cases would give rise to a general rule.

Allan R. Rosenberg:

Well, I think —

Felix Frankfurter:

In another words, just what it’s doing now on a larger scale of saying, we wouldn’t handle a lot of the cases to which reference are made in Chief Justice’s opinion yesterday.

Allan R. Rosenberg:

Well, I think if you refer to jurisdictional features, that maybe so but I gather that this means —

Felix Frankfurter:

I don’t know what jurisdiction of it —

Allan R. Rosenberg:

Well, I mean the —

Felix Frankfurter:

— and what is the —

Allan R. Rosenberg:

— quantitative —

Felix Frankfurter:

(Voice Overlap) of the Board.

Allan R. Rosenberg:

The quantitative aspect of it, more than 100,000, more than 50,000, the company and the commerce aspect involved.

But I think they refer to the importance of it, the important of — the importance of the particular subject matter rather than the affect upon commerce, the nature of the — of the industry.

Now, it’s — it’s sufficiently evident, I say, that in the Senate Bill, the 301 and the unfair labor practice sections were to be driven in tandem that you would get alternative or correlative relief out of either one.

And since it’s clear that you could get specific performance by way of the unfair labor practice and the Senate committee makes it quite clearly that you could get alternative or similar relief out of 301.

There is a — an intention and authority in Congress in that version of the Senate Bill to get out of 301, what was in 8 (a) (6) and 8 (b) (5).

Now, you have the same thing in the House bill.

The House bill approach is a little bit differently.

It had a provision under definitions of what collective bargaining means in Section 211 (a), that you had to — that there was a procedure for settling grievances, you had to follow it.

And then, they made in 8 (a) (5) and 8 (b) (2) an unfair labor practice to refuse to bargain collectively to follow the grievance procedure.

And in Section 302 which was the House version of Section 301, they — in — in one subsection of it, they made the Norris-LaGuardia Act inapplicable.

Now, it’s evident from this that the House at least envisions full equitable relief out of its version of Section 302, otherwise, they wouldn’t have made the Norris-LaGuardia Act and I quote, “To the extent that the Norris-LaGuardia Act stood in the way of granting that kind of equitable relief, they remove it.”

Now, when it got to the — to conference and — and the minority report in the Senate as my Brother Farr has mentioned and the remarks of Senator Morris on his disappointment about their excluding the alternative unfair labor practice method.

He makes it quite clear.

He was in favor of it.

He was not an opponent of it.

He make it clear, it seemed to me or sufficiently clear that when the conference report eliminated the unfair labor practice group, it left in what the Senate said should be handled through 301 and what the House in its version decided should be handled through its Section 302.

Felix Frankfurter:

Did the lifting of the Norris-LaGuardia Act go to conference?

Allan R. Rosenberg:

Yes, it did.

Felix Frankfurter:

And it — at — it was the conference that knocked it out.

Allan R. Rosenberg:

The conference had knocked it out.

Now, the significance of that, if Your Honor please, is that the relief that maybe granted, assuming I’m correct about that equitable relief maybe granted under Section 301.

The relief that maybe granted under Section 301 so construed is not a coextensive with the prohibitions of the Norris-LaGuardia Act.

The Norris-LaGuardia Act doesn’t prohibit everything that could be granted under Section 301.

It’s evident in this case.

Allan R. Rosenberg:

It’s evident I say in the Steele and Tunstall type of cases.

It’s evident in the — in the case from the Third Circuit involving the S.O.– Standard Oil of California of — the S.O., Standard Oil case where the — despite the Norris-LaGuardia Act, referred for the Court of Appeals from the Third Circuit issued an order directing the company to negotiate on a new wage rate.

Now, it — I — I say that the — the a court could prohibit racial discrimination without violating, without running up against the interdictions of the Norris-LaGuardia Act under Section 301.

All I’m doing by way of illustration, if Your Honors please, is to show that if you construe Section 301 in the light of its legislative history, in the light of its attempt to make a binding enforceable agreement, in the light of the transfer of the specific performance aspects from the unfair labor practice sections of the Act which were omitted and in the placing of those sections in the Section 301, both in the House and the Senate version and the conference version, then it seems to me you get the result that Section 301, in the light of this legislative history in its own terms, authorizes the kind of equitable relief which Chief Judge Magruder talked about including the degree for specific performance of an arbitration agreement except whether Norris-LaGuardia Act apply.

That is to saying, if the attempt is made to enforce a no-strike clause in a — under Section 301 by way of injunction, the Norris-LaGuardia Act would prevent it.

And in the case in the First Circuit involving an attempt to prevent benefit payments, it would run up against the provisions — the specific provisions of Section 4, that’s Copra against Suro decided in 1956 in the First Circuit.

But there are provisions — there is relief that maybe granted, as I construe Section 301 in the light of its legislative history, which do not encounter the prohibitions of the Norris-LaGuardia Act and one of those is the decree for specific performance of an arbitration agreement.

Now, perhaps it is useful to point out some of the differences between this case and the preceding cases.

As I’ve already indicated, the contract in this case unlike the contracts in the other cases is still in existence, it has never terminated or at least it was an existence until August 1956 and then it was — by agreement of the parties, replaced by a five-year contract containing the same terms and now in existence.

Unlike the other two cases, General Electric is still in the business in Ashland.

There is no termination of employment.

These grievances, vary somewhat different relationship.

I’m not sure how — how different in — in — if it were not for the fact that employment had — has ceased or terminated in the other cases, but these are rate classifications and a discharge.

They differ from the fringe benefits which are apparently once for all involved in the Goodall-Sanford case upon termination.

Felix Frankfurter:

That’s money, isn’t it?

Allan R. Rosenberg:

That’s right.

The discharged case involves reinstatement as well as — as backpay if any — and there maybe no backpay.

In this case, this is a particularly suitable case perhaps for arbitration because the union said in its grievance, the penalty of discharge is too severe indicating that they may have been a law legal right to discharge the man because he did not do what he was told to do.

But that in the exercise of the kind of discretion which arbitrators have in this field, it would be a good thing for labor relations if they are — if it went to arbitration you could get that result.

Felix Frankfurter:

Let me be clear, Mr. Rosenberg.

One of — I’m not at all questioning the — the scope that you gave to this litigation, but one of the cases involves backpay, is that right?

Do — are both —

Allan R. Rosenberg:

Now, they both may have involved backpay.

Felix Frankfurter:

Then — yes, they may.

But — but is there a difference in the — in the questions by which where liability for backpay would be determined?

Allan R. Rosenberg:

Oh, yes.

Felix Frankfurter:

Is — is one of these cases like Westinghouse — I — I mean in the — with the subject matter.

Allan R. Rosenberg:

It may be.

If the arbitrator, for example were to say that Armstrong has accrued wages owing to him, as a result of his unlawful discharge, I supposed it would be like Westinghouse.

But if the arbitrator’s say, “Well, the penalty of discharge was too severe but he’s already been out a year and half and we’ll cut off his wages, he won’t get any accrued backpay and we’ll put him back to work.”

Allan R. Rosenberg:

Then it’s a prospective operation.

It does not necessarily involve accrued wages.

Felix Frankfurter:

But so far as — so far as backpay is concern, is the question legally different from the one that was involved in Westinghouse where there are also have to be a determination prior to say whether there should or shouldn’t be back pay, namely, where the man off on their own time, was it clear at all or wasn’t clear at all?

Allan R. Rosenberg:

Well, I think there is — the difference in the aspect of the remedy in the prospective aspect of reinstatement.

Felix Frankfurter:

Yes.

Allan R. Rosenberg:

But apart from that, I think there is no legal difference.

Felix Frankfurter:

All right.

Allan R. Rosenberg:

I think there is a — a difference in the Boiardi case because while it’s true that in a sense backpay is involved, there are much — much more involved and it’s a continuing and much broader aspect of the case.

Now — well, of course, we don’t have in this case the appealability of the — of the order that we do in the Goodall-Sanford case and we have in this case state law, which my Brother Farr did not advert to it at all, and we have allegations with respect to diversity jurisdiction.

Felix Frankfurter:

Well — but what about that?

Allan R. Rosenberg:

Well —

Felix Frankfurter:

What do you say about diversity?

I understood you to say — I heard you say, I think, that the outset, that in fact, the record present the case of diversity.

Allan R. Rosenberg:

That is correct.

Felix Frankfurter:

Proper alignment of parties on the respective sides —

Allan R. Rosenberg:

That’s right.

Felix Frankfurter:

— is that right?

Allan R. Rosenberg:

That’s right.

Felix Frankfurter:

And you just said you have diversity.

Meaning by that that in fact you have diversities?

Allan R. Rosenberg:

Well, Your Honor, I think we have —

Felix Frankfurter:

I thought I heard Mr. Farr say that there was a — you moved to amend so as to include diversity and for some reason, the Court of Appeals denied that, is that right?

Allan R. Rosenberg:

Well, I can explain that a little more accurately I think or fully by saying that —

Felix Frankfurter:

Because diversity, then it changes the whole nature of the problem certainly for one member of this Court.

Allan R. Rosenberg:

Well, I think that — that there is diversity.

There is an affidavit in the Court of Appeals where I moved to amend to show jurisdiction under 28.1653.

I think that’s the section number, in which it’s alleged and not controverted that all the members of this union and all persons represented by it are citizens of Connecticut, Rhode Island and Massachusetts, none of New York and with the corporation that is alleged to be a New York Corporation.

It’s alleged in the complaint that the matter in controversy exceeds $3000.

It’s alleged irreparable damage and similar equitable allegations.

Now, the — the problem, as far as diversity is concern, as far as the Court of Appeals is concern, is that under Massachusetts law, a union may not sue in its own name and this suit was brought in the name of Local 205 U.E.

Allan R. Rosenberg:

Now, it said in its opinion, the Court of Appeals did, that we amended to show diversity.

But this has become moot and in any event, it cannot be granted because of the capacity because the rule of state law with respect to the capacity of the union to sue in its own name.

Now —

Felix Frankfurter:

Well, I — it said — according to me, its beyond — and I wonder, it can give you capacity, what does it mean?

Allan R. Rosenberg:

I should think it does nothing if doesn’t give you that.

So, the — the reason for dismissal is — is capacity or the fact that by having decided that the federal question is involved rather than a —

Felix Frankfurter:

But it wasn’t lateness.

It wasn’t the —

Allan R. Rosenberg:

No —

Felix Frankfurter:

This was —

Allan R. Rosenberg:

No.

I’ll read you —

Felix Frankfurter:

In other words, judge — I — I thought there were enough questions but this entered — would bring —

Allan R. Rosenberg:

All right, sir.

Felix Frankfurter:

— a new one.

Allan R. Rosenberg:

Well, let me read you exactly what it said — what the Court said, “The plaintiff has submitted a motion to this Court under 28 U.S.C.1653, this is on page 82 of the record, “to amend its complaint so as to allege diversity of citizenship between all the members of the union and defendant.

No doubt was hedged against the ruling that relief could not be granted under the law of applicable to a federal question case.”

In view of our decision, this motion may have become moot but it must, in any event, be denied for it cannot accomplish the result intended Rule 17 (b), Donahue against Kenney in the light.

Felix Frankfurter:

With all respect, I didn’t understand what it — may have become moot.

What’s that mean?

Allan R. Rosenberg:

Well, it —

Felix Frankfurter:

If that’s become moot, why isn’t the rest of the case moot?

Is it moot because he’s already granted —

Allan R. Rosenberg:

I believe so.

Felix Frankfurter:

You want it on a different ground?

Allan R. Rosenberg:

Yes, sir, yes, sir.

But I say that it’s quite clear from the cases and from the statute itself that 301 (b) which is involved in this is a — is a capacity statute and applicable generally.

And that we are entitled to sue in the federal court even if state law and diversity is involved even where state law would not permit us to sue in — in the name of the union.

And I think that diversity —

Felix Frankfurter:

What’s Donahue against Kenney, Mr. Rosenberg?

Allan R. Rosenberg:

What’s that?

Felix Frankfurter:

What is Donahue against Kenny which he cites?

Allan R. Rosenberg:

That’s a — a Massachusetts case.

Felix Frankfurter:

Yes.

What does it hold?

Allan R. Rosenberg:

It holds as I think —

Felix Frankfurter:

Within the Massachusetts court, you can’t do this.

Allan R. Rosenberg:

That’s right.

(Voice Overlap) —

Felix Frankfurter:

That should — that way you can’t do it in the federal court although you’ve got 301 which if it does anything as you say, it does that.

Allan R. Rosenberg:

That’s right.

Felix Frankfurter:

Well, that’s all.

Allan R. Rosenberg:

So, I think that if we turn to —

Felix Frankfurter:

(Voice Overlap) —

Allan R. Rosenberg:

We — we have an adequate pleading basis at any rate for diversity.

And we have a favorable state law in Massachusetts.

At the time, the Court of Appeals decided this case.

There were — there was a statute on the books, Chapter 150, Section 11, which made all provisions relating to arbitration in collective bargaining contracts valid and went on to say that if the parties agreed that the determination should be final, then the determination could be enforced by appropriate or proper judicial proceedings.

Now, there were two cases on the books construing that and the language of the — of the decisions of the Supreme Judicial Court make it clear and they quote in the brief that they were giving it a very liberal construction.

They granted specific performance of a check-off agreement and they granted a — a wage assignment agreement also.

But right after the Supreme Judicial Court decided the — or right after the Court of Appeals decided this case, the Supreme Judicial Court came out with two opinions, rather one and then only recently another.

In the — in the first of those opinions, Post Publishing Company against Court involving the Boston Post, the employer had discharged some large number of employees of the newspaper and had refused to arbitrate them for reasons which not apparent in the opinion.

The American Arbitration Association and the union, nevertheless, after notice went ahead and it began arbitration of these cases and the employer brought suit in the Massachusetts courts to enjoin the arbitration.

The Court went up to the Supreme Judicial Court and the Court refused to enjoined that arbitration and it permitted it to proceed even though there are allegations of preemption by the National Labor Relations Board and said in language again literally construing the statute that all collective — all provisions of collective bargaining contract shall be valid that the purpose of it was to promote industrial peace and that arbitration should be allowed to sweep away the items which are not preempted, so that you can finally get down to what decisions (Voice Overlap) —

Felix Frankfurter:

Was — was there opinion reported?

Allan R. Rosenberg:

Yes, Your Honor.

It’s in 140, Northeast 2nd at 185.

Now, the second case involved a case which was here of — aspect of a case which was here on certiorari, it’s Leonard against the Eastern Massachusetts Railway Company.

And in that case, which was decided in January, I think it was January 21st of this year, the — the Court issued a declaratory judgment that the union upon compliance with certain provisions of its contract was entitled to go ahead to arbitration and that the — over the opposition of the employer.

So it — it made quite clear in — in its decision that it haven’t reached the question as to whether it would order arbitration because there was a preliminary question of compliance by the union with provisions of its contract.

Allan R. Rosenberg:

But it made equally clear that upon such compliance by the union, the union was entitled by way of its issuance of a declaratory judgment that entitled to have these disputes arbitrated in accordance with the arbitration provisions of the contract.

Now, I say that where the statute is such that it makes the arbitration provisions valid, where the Court will — over the objection of the employer refused to enjoin an arbitration that’s going ahead on this type of collective or grievance arbitration and where the Court will issue a declaratory judgment if the union is entitled to arbitration under the collective bargaining agreement.

I think that Massachusetts court have shown a sufficient hospitality to the idea of specific performance in — under Massachusetts law and a sufficient deference, as they say in their decisions, to federal policy on this Court, both with respective preemption and the respect to arbitration as a favored federal policy in this — in — in achieving industrial peace.

Felix Frankfurter:

Now, the American Thread case didn’t go up, did it?

Allan R. Rosenberg:

It did not.

Felix Frankfurter:

Now — but — but in that case, Judge Wyzanski said the question of — of enforcing arbitration is a matter of federal law not state law.

Allan R. Rosenberg:

That’s right.

Felix Frankfurter:

And Judge Magruder may have been indifferent to what you wanted to put before him under diversity on the assumption that its federal law is govern and Massachusetts law is of no help.

Allan R. Rosenberg:

Well, until — perhaps, Professor Cox compounded the confusion by an article that he wrote in which he said, it’s difficult to know what the state of enforcement is in Massachusetts because there are problems under the statute.

The statute —

Felix Frankfurter:

But if you don’t have to bother about what local Massachusetts law is, you can be indifferent to the confusion.

Allan R. Rosenberg:

Well, I — I’m sure that’s true.

At any rate, we have here both a — a — it seems to me a sufficient basis for the —

Felix Frankfurter:

But what you’re saying is that you’ve got all federal law and state law.

Allan R. Rosenberg:

That is right.

Felix Frankfurter:

And therefore, he wasn’t confronted with the problem of choosing between the two, isn’t that?

Allan R. Rosenberg:

Well, he chose — he chose federal law.

Felix Frankfurter:

He chose but I — but you say that — that you have another string to your —

Allan R. Rosenberg:

That is right.

Felix Frankfurter:

— to your bow, namely, the state law under diversity.

Allan R. Rosenberg:

That is right.

Felix Frankfurter:

And he thought that was moot, cause the moot.

And in any event — in any event, he couldn’t understand it.

Allan R. Rosenberg:

And now —

Felix Frankfurter:

The implication is, of your argument, that you have a right here to sustain the judgment on any ground that makes it sustainable.

Allan R. Rosenberg:

That is — that is my position, Your Honor.

I think I have a right and I speak in terms of the statutory authority of what I find in Section 301 has illumined by this aspect of its legislative history, perhaps, the kind of ground on which Judge Brown and his dissent in the Lincoln Mills case employed and, of course, the Arbitration Act.

Now, I would like —

Felix Frankfurter:

And the diversity.

Allan R. Rosenberg:

And — and diversity as a support —

Felix Frankfurter:

But in one sense that you must clear for all those is Norris-LaGuardia.

Allan R. Rosenberg:

That is right.

Norris-LaGuardia defies the court of jurisdiction to do anything that’s why the District Court didn’t get to decide whether diversity or otherwise.

Now, on the Arbitration Act, but let me turn first to the exclusionary language in Section 1, the exclusion of contracts and employment of railroad — of — of seamen, railway men and other workers in interstate or foreign commerce.

I don’t think there’s any dispute that the objection was made for the bill when it was presented in the 64th Congress by Furuseth of the International Seamen’s Union.

Now, it is said that the bill was solely commercial arbitration.

Well, it may have been so but they had a slipper in it.

They covered seamen’s wagers, in any other matter which if the subject of controversy would be cognizable in admiralty.

So, when the question of seamen’s wages under a compulsory arbitration statute as Furuseth viewed it, it came to the attention of Furuseth, he engaged in long analysis which is printed in the proceedings of the conventions of the International Seamen’s Union.

The union adopted a resolution on compulsory labor which has been referred to and there was a discussion about it.

Now, the — the — there’s no question that the — the purpose, the — the motive of the Seamen’s Union was the protection of seamen particularly against the compulsory arbitration of seamen’s wages, the right to put ship in harbor, protection under the Jones Act and the right to food.

These were the things that were mentioned in the analysis in the discussion and — and partly in the resolution.

And whether it includes railway men and transportation workers, let me quote to you what was said in the analysis, “The seamen having made the contract to serve must serve.

The railroad man having entered into a contract to serve with an arbitration clause inserted must continue to serve because such contract that comes through this law if enacted valid, enforceable, irrevocable save upon such crimes as existed law in equity.

And it says further that the — the hunger of the — the seamen’s hunger and the hunger of the wife and children of the railway men and so with other hungry workers in interstate or foreign commerce.

That is said out in the analysis in the discussion and quoted in the brief — in our brief.

What the — what Furuseth was talking about was precisely what Secretary of Labor wrote, contracts of employment of seamen, railway men and other workers in interstate or foreign commerce.

That is an almost precise power to taking the classes of workers at first that’s mentioned.

And when he was mentioned, it was individual contracts of hire, the railway men with the contract for arbitration.

The seamen with a shipping articles and so with other workers in interstate or foreign commerce.

Now, when the arbitration is — when the proponents of the bill came, they talked about Stevedores, contracts with Stevedores.

There is no mentioned in anywhere in this by the proponents or the opponents of the bill of collective bargaining contracts except in first, that’s analysis in which he says, if you put them — if — if the union makes a collective bargaining contract, it will be an out of danger because it will bind the members.

The bill was brought up in the next session of Congress and they left out seamen’s wages.

The slipper was removed.

But they still let in any other matter which are the subject of controversy would be cognizable in admiralty and that be meant food, Jones Act, right to put ship in harbor and other protections which the seamen had in — under Maritime Legislation.

And so, they opposed it.

And so the American Federation of Labor opposed that saying, the danger to seamen’s wages is no mentioned of collective bargaining contract.

So, the American Bar Associations spoke about the reasons for the opposition as being due to compulsory arbitration of seamen’s wages.

It is true that this was proposed by commercial legislation people leaving out the aspect of — they are trying to get that seamen’s wages and perhaps, some of these other things.

They were — what was done, as a result of the protest in Section 1, was to exclude the thing about which the seamen’s union was protesting, namely, the contracts of employment of seamen, railway men and other interstate and foreign commerce such as Stevedores.

Felix Frankfurter:

Mr. Rosenberg, about your own analysis, your own discussion showed that as the — as the legislation evolved instead of dealing with subject matters catching fee that are dealing with content that dealt with categories of employee as of — as we now have the statute.

That’s true, isn’t it?

Allan R. Rosenberg:

I think so.

Felix Frankfurter:

(Voice Overlap) wages and all the rest?

Allan R. Rosenberg:

I think so.

Felix Frankfurter:

But to color the whole thing, of course, as the thing went in the succession of — of drafting and oppositions and so on, we now have what we have, not at all any subject matter, the categories of employees.

Allan R. Rosenberg:

Well, I think with respect to the exclusion that is true, Your Honor.

They excluded as a result of a specific protest, the particular thing protested about and for reasons —

Felix Frankfurter:

That’s just what they didn’t do.

They didn’t talk about wages and — and all the rest.

Allan R. Rosenberg:

They cut that out.

Felix Frankfurter:

Yes, that’s what I’m suggesting.

Allan R. Rosenberg:

Now, when you get to the next section of the bill that is contracts, evidencing transactions involving interstate commerce.

I know the argument that you read one narrowly and you read one broadly and you go back to 2441 and up to 57 for another.

But if you take a look at the House Report on this, it says, and I think it’s referred to in Mr. Justice Douglas’ opinion in the — the Court’s opinion in the Bernhardt case, the matter is probably the subject to federal action.

I’m reading from report Number 96, whether an agreement for arbitration shall be enforced in that is a question of procedure to be determined by the lower court in which the proceeding is brought and not one of substantive law to be determined by the law of the forum which the contract was made.

Before such contracts, it could be enforced in the federal court before this law is essential, the Arbitration Act.

The bill declared that such agreement shall be recognized and enforced by the courts of the United States.

The remedy is founded also upon the federal control over interstate commerce and over admiralty.

The control over interstate commerce reaches not only the physical interstate shipment of goods but also contracts relating to interstate commerce.

Now, I submit that that is broadened to cover collective bargaining contracts which relate to interstate commerce and do not nearly relate to the interstate physical interstate shipment of goods.

I think that there is no valid basis for the argument that you’re reading one broadly and one narrowly when you’re talking about a protest over a particular item or particular category of employees who signed shipping articles or railway men who had contracts with arbitration clauses in Section 1 with this exclusionary language and the power of Congress to regulate interstate commerce and this legislation in aid of it.

So I say that that is a ground which it seems to me sufficient to distinguish the — the clauses in Section 1, the exclusionary clause and the power clause, the coverage clause in Section 2.

Felix Frankfurter:

What — what you’ve just said brings into play Professor Cox’s and this — on this board not confusing article, that you just called — you just said that the basis of the reviews with the contract in collective bargaining contract are used to phrase in Section 2, you call them collective bargaining contract in order to bring it into commerce.

But in Section 1, it isn’t a contract in a sense of contract of employment of Section 1.

That’s true, isn’t it?

Allan R. Rosenberg:

Collective bargaining contract is not a contract of employment in the meaning of Section 1.

Felix Frankfurter:

I understand that.

I’m suggesting of Professor Cox —

Allan R. Rosenberg:

Yes.

Felix Frankfurter:

— that in Section 1, you say, it isn’t a contract of employment but in Section 2 is the same with Section 2 by regarding a collective bargaining agreement, a collective bargaining contract and used the word — I’m not saying it isn’t allowable.

All I’m saying is a little strange —

Allan R. Rosenberg:

I — I understand.

Felix Frankfurter:

— on one’s mind —

Allan R. Rosenberg:

Well, I think —

Felix Frankfurter:

— if it’s not a contract of employment on Section 1 but this is a contract under Section 2.

Allan R. Rosenberg:

Well, I think you have to go further, if Your Honor please.

It’s a contract of employment of workers in interstate commerce and they were thinking about, as the legislation and what I’ve read you or referred to indicates, seamen who signed shipping articles which have contracts —

Felix Frankfurter:

I understand that.

Allan R. Rosenberg:

— of employment with stevedores —

Felix Frankfurter:

I’m just suggesting that — that that which is not a contract of employment in Section 1, is utilized as a contract in order to sustain it as in commerce.

Allan R. Rosenberg:

I think properly so.

Felix Frankfurter:

All right.

That’s —

Allan R. Rosenberg:

Yes.

Felix Frankfurter:

— maybe properly but all I’m saying is, it’s a nice point.

Allan R. Rosenberg:

Now, if one has to find the meaning of a statute in terms of its policy, in terms of the object to be attained certainly, the policy of furthering labor arbitration which is embodied as a public policy of the United States in Title 2 of the Taft-Hartley Act and in other statutes consistently from the Norris-LaGuardia Act or from the Railway Labor Act on them.

The furtherance of that national policy by the President’s Committee on labor-management which since 1945 has made a — a concerted appurtenance referred to in the brief to encourage the inclusion of — of arbitration clauses and collective bargaining contracts even before the policy declaration of the Title 2 of Taft-Hartley and other national policy which is — it seems to me almost — without exception referred to as favored federal policy and it indicates that this is a perfectly proper basis for interpreting Section 2 of the — of the United States Arbitration Act.

I’d like to say one word about Section 4 of the Arbitration Act.

My Brother makes a plausible point, apparently a plausible point about say, for this agreement that the Court would have jurisdiction.

Well, I submit that on a number of grounds, the requirements of Section 4 of the Arbitration Act is satisfied.

First of all, you don’t get jurisdiction by way of the contract.

You get it by way of Section 301.

And under 301 and the Westinghouse case, this is a qua union controversy.

This is a controversy not involving the individual rights, hiring contracts of individuals or accrued wages.

This is a contract in which the union is the beneficiary or the promisor.

So, we have a — as Chief Judge Magruder says that would satisfy Section 301 and satisfy Section 4.

Now, the reason I think, I — I can only speculate because there is no legislative history, but you will recall that the Red Cross Line and the Atlantic Fruit Company case, it was decided in 1924.

And in that opinion, Mr. Justice Brandeis said that if an executory agreement will make a rule of court, it could be enforced even though there were no legislation on the subject.

And I think it was to avoid that as much as anything else that is to say, executory agreements being made rules of court which would then allow the federal court to enforce them.

Allan R. Rosenberg:

The Congress apparently wanted to make sure there was federal jurisdiction apart from the contract itself.

And I say in this case —

Felix Frankfurter:

That is what it says?

Allan R. Rosenberg:

Say, for this agreement.

Felix Frankfurter:

Say, for this agreement.

Allan R. Rosenberg:

Say, for this agreement.

Felix Frankfurter:

In other words, you go to — you find out whether this agreement or whether the agreement arises under a federal statute.

Allan R. Rosenberg:

Or under diversity action —

Felix Frankfurter:

Or under diversity action —

Allan R. Rosenberg:

Or as — as I say —

Felix Frankfurter:

Has anyone had the jurisdiction?

Allan R. Rosenberg:

Or — or under protective jurisdiction, if you like.

Felix Frankfurter:

But I don’t know — that — I was hoping we’d get through these arguments without hearing that dubious phrase.

Allan R. Rosenberg:

Well, I think that the opinion of the court below which relies on the aspect of federal jurisdiction with the name that you don’t like.

Felix Frankfurter:

It isn’t — it isn’t the name.

It’s perfectly good English word.

I don’t understand what they mean in this connection.

Allan R. Rosenberg:

Well, I won’t — I won’t press that, but there are aspects in which federal law or state law or any law available may be used to protect the federal policy where the Court has jurisdiction.

Felix Frankfurter:

It’s only if that’s to be argued, we’d spend more than three minutes on it.

Allan R. Rosenberg:

Well, there’s only an hour, Your Honor, for a very complicated —

Felix Frankfurter:

(Voice Overlap) —

Allan R. Rosenberg:

— set of facts.

Felix Frankfurter:

— (Voice Overlap) and you can use it if you thought that was important.

Nevertheless, the fact — the fact that Congress might, what I’m suggesting is this, the fact that constitutionally Congress might confer jurisdiction upon federal court to set its purposes doesn’t mean that within the terms of the statute, a case arises under such a federal statute because ever since Gully, which is from my point of view, a landmark case, we know that you can’t go back ultimately that the immediate issue must be one that arises under the statute and not waived to the far reaches.

Allan R. Rosenberg:

Well, I say, sir, that in the 301, with the gloss of the statute of legislative history as I construe it or the Arbitration Act though both written in tandem as the Chief — as the court below does, is a sufficient warrant as a law of the United States under which this case arises.

Felix Frankfurter:

It’s a very different thing, Mr. Rosenberg.

If you got — if you can rest on the Arbitration Act and you — if you rest on the Arbitration Act, you still must have — you can’t lift itself by it, you can’t lift — you can’t lift itself by its own terms because Section 4 has a qualification.

It doesn’t say anything that it saw fit simply as a matter of constitutional law back to Congress —

Allan R. Rosenberg:

Right.

Felix Frankfurter:

— can be enforced.

Felix Frankfurter:

It said that it — you must have an agreement which under some statute.

Allan R. Rosenberg:

Well, I say under 301 and passing that for the moment, if it is not enforceable under Section 4 and that’s the five-day procedure, and there are specific things which we didn’t employ in this case, it’s still enforceable without regard to that say for this agreement clause under Section 2 because Section 2 says, it should be valid, binding and irrevocable — valid, enforceable and irrevocable.

Felix Frankfurter:

You got a — but Section 4 is the thing you’ve drawn in order to know what the Court should do.

Allan R. Rosenberg:

Well —

Felix Frankfurter:

The Congress — if you had no Section 4, maybe the courts could have fashion their own procedural remedies.

But Congress hasn’t left with that thing.

It has made specific provision by Section 4.

You can’t disregard it and go merely to the subsequent provision of 2.

This is very tricky, an intricate business and — and we’re dealing with a very — a very specialized strictly defined jurisdiction out of the federal courts.

Allan R. Rosenberg:

Well, I — I recognized that and there were all kinds of problems as Your Honors know in these cases.

But it seems to me that if you have a federal statute which says explicitly that a contract — collective bargaining contract and — and as you construe contract evidencing a transaction involving commerce shall be binding, enforceable and irrevocable.

Felix Frankfurter:

You have that in what section?

Allan R. Rosenberg:

You have in Section 2 of the Arbitration Act.

Felix Frankfurter:

But then you have to read it at 4.

Allan R. Rosenberg:

Well, I’m not sure you do.

Four says, in the particular way under certain circumstances on a five-day notice, you can do it.

Felix Frankfurter:

It tells how a court can give you the relief you want.

And when Congress tells you how you can get the relief, you must obey what Congress — courts must obey how they should carry out their (Voice Overlap) —

Allan R. Rosenberg:

Well, if that were exclusive, if that were the only way and if the statute so say, I would agree but I think it is not exclusive.

Felix Frankfurter:

All right.

Allan R. Rosenberg:

Now, may I come back then to the — what I understood my Brother Farr to say at the outset that no one is being heard by this.

Well, all that’s being heard is the agreed rate structure and the Boiardi case.

Let the company decide but that isn’t what Congress said.Congress said as I — as we interpret it, that there are rights here, rights for which valuable consideration was given, rights to arbitrate and return for no-strike clause under a general policy of favoring arbitration and trying to achieve a form of industrial peace.

Let the employees sue.

Well, that’s going to compound confusion even worst instead of having an arbitration which will take the numerous cases and — and put them into a process which does not involve the courts.

You’re going to flood the courts with what is called petty litigation.

And I am not sure in the light of the Mead case in which a — the Teamsters Union was held in damages for violation under Section 301 of a — an arbitration clause along which contain no no-strike clause in the contract for some $359,000, whether the — if the employer refuses to arbitrate the union is free of its obligations.

There is a very serious question as to whether if the remedy of specific enforcement is not available, the contract is illusory.

It may not be illusory.

It may be that the union or the employer is liable in damages, however, small in the employer’s side it may be.

Allan R. Rosenberg:

But a paternalistic approach to this thing, let General Electric decide what is arbitrable and what is not arbitrable and let the employees go sue and bypass the union.

It seems to me it can only lead to trouble, industrial disputes and the purposes contrary to the policy of the statute.