Glover v. St. Louis-San Francisco Railway Company

PETITIONER:Glover
RESPONDENT:St. Louis-San Francisco Railway Company
LOCATION:Stanley’s Home

DOCKET NO.: 38
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 393 US 324 (1969)
ARGUED: Nov 14, 1968
DECIDED: Jan 14, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – November 14, 1968 in Glover v. St. Louis-San Francisco Railway Company

Earl Warren:

Number 38, James G. Glover et al, petitioners, versus St. Louis-San Francisco Railway Co. et al.

Mr. Acker.

William M.acker, Jr.:

Mr. Chief Justice and may it please the Court.

The petitioners, Glover and others, were the plaintiffs below.

This case comes here purely and simply on the pleadings.

The plaintiffs were 14 railroad carmen helpers.

Their complaint in the District Court charged a cooperative scheme by the St. Louis-San Francisco Railroad Co. and their brotherhood, the Brotherhood of Railway Carmen, to perpetuate a long-existing racial discrimination in the area of seniority by the device of using what they call apprentices to do the traditional work of carmen helpers.

They use quite apprentices, so that the Negro carmen helpers will continue not to get promoted to the classification of carmen.

This device has caused a bottleneck in seniority which affects not only the Negro carmen helpers, but the White carmen helpers unfortunate enough to be behind them on the seniority roster.

The District Court dismissed the complaint on the ground that the plaintiffs had not alleged in exhaustion, one, of their remedy before the National Railroad Adjustment Board, two, their remedy within the Union itself and, three, their remedy provided by the collective bargaining agreement.

There were no specific allegations in the complaint as to the character of these two supposed contractual remedies or even if they existed, but the District Court nevertheless concluded that they both were, as he said, “available” and must be employed.

The Fifth Circuit affirmed and this Court has granted certiorari.

Let me say that some people don’t like the concept of seniority as the criterion for job assignment and promotion.

I don’t think it is for me to be for or against this concept.

It’s just a fact of labor life, and racial discrimination in the application of this concept is where discrimination hurts the most.

It hurts the pocketbook, and I submit that to eliminate invidious discrimination in this area can lead ultimately to its elimination in other sectors of our national life.

While I was on the airplane coming up from Birmingham with the plane jumping up and down, I grab a hold on something to get my mind off of that and I picked up the “Look” magazine for this week.

I was surprised to see the first article in that magazine entitled “What Unions do to Blacks.” As I turned through the pages, I was even more surprised to see a picture of one of my clients.

I mention this for two reasons.

One, I don’t want the Court to think that I had anything to do with the preparation of or publication of this article just before this case is set for oral argument.

It was absolutely news to me.

Two, despite that disclaimer, there are a couple of things in this article that I’d like to read and that I think have particular bearing.

The sub-headline says “for nearly a century, most Unions have forced Negros into Jim Crow logos, giving them dirty jobs or refuse to admit them at all.

New laws and repeated Union promises are not stopping prejudice.

And then, down in the body, it says this.

“Union controlled apprenticeship programs,” fits this one like a glove, “admit far less than token numbers of Negros,” and then “Unions are doggedly battling civil rights complaints that are before the Courts and government agencies.”

Despite landmark Court decisions in 1967 and 1968, the Union seemed determined to fight a rear guard holding action reminiscent of the one thought by southern school districts after the Supreme Court’s 1954 school desegregation decision.

Now, if we may, let’s see where the lower Court’s reasoning in this case would lead these plaintiffs.

First, what about the internal Union complaint procedures?

The Trial Court said that such procedures were there so, for the sake of argument, we’ll have to assume, I suppose, that they are there.

William M.acker, Jr.:

It would be unbecoming of me to go outside the record to describe these intra-Union procedures.

There are no allegations as to what they are, no allegations by the plaintiffs, no allegations by the defendants.

However, I think in — it’s not unsophisticated, but this Court, just as I know it, to know that the plaintiffs could not get damages.

Damages, that’s one of the things they are suing for, damages, money damages for past discrimination from the Union.

If they go through the Union constitution, such as it is, are they going to be able to ask for and get what they’re asking here, damages?

It is just as easy, I think, to know that they cannot get promotion from the Union.

The Union doesn’t promote people.

The best that they theoretically could hope for with the Union alone would be an admission by the Union by some top decision making body or policy making body of the Union that the Union was wrong in failing to take their grievance to the company.

It’s all they could hope for with the Union procedures.

Potter Stewart:

Well, don’t you allege a conspiracy, so to speak, between the Union and the employer here in your complaint?

William M.acker, Jr.:

Yes, we do, which would —

Potter Stewart:

I don’t believe you use the word “conspiracy,” but —

William M.acker, Jr.:

I don’t know that that word is used.

Potter Stewart:

A short action by these —

William M.acker, Jr.:

I don’t think it is, but that’s —

Potter Stewart:

Short action by these co-dependants in depriving your clients of promotion and the pay that goes with promotions, isn’t that right?

William M.acker, Jr.:

Exactly.

Potter Stewart:

Well, then why couldn’t they get damages from the Union if you’re right?

William M.acker, Jr.:

I don’t think they could get damages from the Union in — within the Union constitutional procedures but, then, we’re discussing constitutional procedures within the Union, assuming they exist, that are not pledged.

And if the Court does not have any way to know what those procedures are, I will say that the Union constitution does not provide a method for the Union to compensate someone monetarily for some wrongdoing, and that’s all I’m discussing at this point, is what they could get there theoretically.

Now, what could they expect from the company if they process the grievance without the Union’s blessing and in the face of its active opposition?

The actual grievance machinery here again is not spelled out in the complaint but, in these matters, it’s easy to know that they would get nowhere.

If they sought redress with the company in the face and in the teeth of their own Union’s opposition and collusion then, according to the Fifth Circuit, the Court from which this case comes in Haynes against U.S. Pipe, a case that was cited in — by the District Court in its memorandum opinion, then there would be no judicial review.

The Fifth Circuit is not saying that you exhaust your administrative remedies within the company and, if you’re not satisfied, you then go to Court.

They’re saying, in Haynes, you exhaust your administrative remedy within the company even if the last and ultimate method that the employee employs is to get his Union to strike, and if that doesn’t work, he’s finished.

This is what the Fifth Circuit says.

“At this point, the decision denying him relief was final under the terms of the collective bargaining agreement or the processes of the now available to him for contesting or avoiding that final decision.”

We’re talking now about intra-company procedures and, in that case, the Fifth Circuit said “appellant does not contend that the Union did not faithfully represent him.”

That may be a distinction.

He does not charge fraud on the part of either the company or the Union.

William M.acker, Jr.:

This is a run of the Mine case where the grievance procedure was followed and the adverse decision against appellant became final.

Being dissatisfied, he sought to start anew in the face of the Bar in the final decision under the grievance procedure, which means the Fifth Circuit in Haynes would say that unless the plaintiffs here would bite off the tremendous burden after having exhausted this machinery if the District Court and the Fifth Circuit say we must exhaust, unless we want to bite off the burden and take on the burden of proving fraud on the part of the Union in the company, fraud, then we have no judicial review.

We’ve reached the end of the road by referring this matter to the grievance machine.

Now, what could the plaintiffs reasonably expect from the National Railroad Adjustment Board?

The 1966 revisions of the Railway Labor Act came too late for Mr. Glover and his friends.

They filed this case in 1965.

The carmen in their brief admit to an average of three years for processing a claim before the NRAB Second Division.

The railroad admits to less.

This Court in Walker against the Southern Railway was not only impressed by the unreasonable delays before the NRAB, before the 1966 revisions which would make the NRAB procedures in 1965 applicable here just as in Walker, but by the absence of any judicial review in an event of a decision adverse to the individual employee.

This Court said that Congress also found if an employee receives an award in his favor from the Board, the Railroad affected may obtain judicial relief of that award by declining to comply with it.

If, however, an employee fails to receive an award in his favor, there is no means by which judicial review may be obtained.

Now, that point is argued in our brief at some length, but this particular case was not referred to the most recent at that point.

We think that, as constituted, as created, as conceived by the Congress, the NRAB is not able, not designed for handling this kind of grievance.

Byron R. White:

But, I take it, that there’s no question that the individual employee, as distinguished from the Union, may oper — may energize the grievance procedure in the railroad business.

William M.acker, Jr.:

Mr. Justice White, you are certainly correct because I have, on behalf of an individual, invoked the NRAB procedures.

Byron R. White:

The statutes permits or it doesn’t?

William M.acker, Jr.:

It does permit it.

Byron R. White:

And, doesn’t the statute require the grievance procedure?

William M.acker, Jr.:

You mean the grievance procedure within the company before the NRAB or —

Byron R. White:

Under the — yes, under the —

William M.acker, Jr.:

I think —

Byron R. White:

Let’s assume that a collective bargaining contract between a Union and the railroad doesn’t say anything about grievances.

Then, how — doesn’t the Act still require that minor disputes go to the Board?

William M.acker, Jr.:

I think it does, Your Honor.

Byron R. White:

And wholly independent of the contract.

William M.acker, Jr.:

By its terms.

Byron R. White:

Wholly independent of the contract.

William M.acker, Jr.:

Wholly independent of the contract.

Byron R. White:

Well, how do you get around that?

William M.acker, Jr.:

Of course, I don’t think the contract here, which we don’t have before us, says anything about the National Railroad Adjustment Board.

Byron R. White:

Well, I know.

It doesn’t have to.

William M.acker, Jr.:

Yes, sir.

Byron R. White:

So you’re just saying that when that — you’re just saying that when the — if you claim racial discrimination, the statutory requirement to take that sort of a claim to the Board is —

William M.acker, Jr.:

Under the Steel, Tungsten, Conley rationale, we say that does control to avoid the exclusive jurisdiction.

Now, if — the literal words require it.

William J. Brennan, Jr.:

Do you mean in both cases then, that you may —

William M.acker, Jr.:

Those cases —

William J. Brennan, Jr.:

Bypass — that may bypass the Board?

William M.acker, Jr.:

As I interpret them and as I hope to demonstrate, do say that in this context, particularly where you’re suing the Union, and this Court in several cases has said that a remedy can be —

William J. Brennan, Jr.:

I — perhaps I better put it this way.

May Congress say that, for a claim of this kind, you must first follow the administrative procedure before you come into Court?

William M.acker, Jr.:

Well, my own personal view, Mr. Justice Brennan, would be that this particular tribunal as constituted with an absence of judicial review from an adverse decision to an employee, if the Congress required it and attempted to overrule by legislation the Steel and Tungsten cases, as I interpret them, then I think the Congress would’ve enacted unconstitutional legislation, that’s my personal view.

I obviously do not have time to comment on all of the important cases bearing on the question of exhaustion of remedies, but I’d like to discuss these.

Republic Steel against Maddox, Vaca against Sipes, NR — NLRB against Shipbuilding Local 22, and Holton against Scrant, all decided by this Court, and Rothlein against Armour & Co., decided very recently by the Third Circuit.

If I had any time, I’d like to briefly mention Conley against Gibson and Walker against Southern Railway and in Republic Steel against Maddox.

The Maddox case, first off, didn’t involve a claim against a man’s Union as well as the company for which he worked.

The majority of the Court in that case considered it a run of the mill discharge case and simply held that Mr. Maddox should’ve employed the grievance machinery which, there, was clearly provided by the collective bargaining agreement under the evidence.

If the collective bargaining agreement was there for the Court to examine and to determine that it was available.

In this case, it’s not there.

It hasn’t been pled by us.

It hasn’t been pled by the defendants.

And, the Court said as a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt, with the Court’s emphasis, “use of a contract grievance procedure agreed upon by employer and Union as the mode of redress.”

It continued “if the Union refuses to press or only perfunctorily presses the individual’s claim, differences may arise as to the forms of redress then available, but unless the contract provides otherwise, there can be no doubt that the employee must afford the Union the opportunity to act on his behalf.”

Now, we amended this complaint after Judge Linn threw as out.

I don’t know that we added anything, really, to the complaint by our amendment because, in the original complaint, it clearly appeared that the opportunity for the Union to process this grievance had been afforded.

They had been called on and they had not done it.

So, without the frustrating responses, short of the actual operation of the grievance machinery, the Maddox rationale here, as I have read it here, seems to me to clearly apply.

More recently, the Court spoke in Vaca against Sipes.

Potter Stewart:

In the Maddox case, as I remember it, the only reason it could be asserted that he was wrongfully discharged was because of rights that were conferred to him by the collective bargaining agreement itself.

Potter Stewart:

Otherwise, it would’ve been an employment at will.

William M.acker, Jr.:

Well —

Potter Stewart:

And, therefore, the Court held that if he’s going to rely on the rights which are conferred upon him as the beneficiary of the collective bargaining contract, he had to go through the other provisions provided by that contract.

Are you, in your case, relying on rights that are conferred by the collective bargaining agreement?

William M.acker, Jr.:

I would have to say that we are.

Potter Stewart:

You are?

William M.acker, Jr.:

We’re very — we admit to being —

Potter Stewart:

That is the seniority rights?

William M.acker, Jr.:

For asking the Court for a decision which very definitely will involve and will admit an interpretation application of —

Potter Stewart:

The collective bargaining agreement.

William M.acker, Jr.:

Of the collective bargaining agreement.

Hugo L. Black:

May I ask you when this case was begun?

William M.acker, Jr.:

It was filed in June or July of 1965, Mr. Justice Black.

It was in the works prior to the enactment of the Civil Rights Act.

There is no invocation of the 1964 Civil Rights Act.

Hugo L. Black:

I notice that Mr. Cooper’s firm had something to do with it at one time.

William M.acker, Jr.:

Mr. Cooper’s firm is counsel for the carmen, locally there and did participate in the lower levels of the Court.

Hugo L. Black:

Well, was that begun while my son was there with you?

William M.acker, Jr.:

No, Your Honor, it was not.

He had gone before that time.

Hugo L. Black:

No question about that?

William M.acker, Jr.:

No, sir, no question whatsoever.

Byron R. White:

What’s the basis for your claim that you don’t really have a remedy before the Board?

It just that it’s inadequate or do you say that the Board just can’t handle a claim by an emp — by a Union member against the Union.

William M.acker, Jr.:

That’s right.

There’s no statutory provision which would even contemplate that, and that’s what the Conley case says.

Byron R. White:

That’s what the Court said in Steel, wasn’t it?

William M.acker, Jr.:

In Steel and in Conley.

Byron R. White:

But —

William M.acker, Jr.:

It simply said that there was no —

Byron R. White:

But that doesn’t go for–

William M.acker, Jr.:

No mechanical —

Byron R. White:

But that doesn’t go for a suit against the employer.

William M.acker, Jr.:

That’s true.

Byron R. White:

Based on the collective bargaining contract that he signed.

William M.acker, Jr.:

That’s true.

I think if the plaintiffs had won, been willing to forgo any claim against their own Union which had wronged them — which we say had wronged them.

If they’d been willing to forgo that and had also been willing to submit themselves to a tribunal composed of “representatives from the —

Byron R. White:

Well, I’m just suggestion that Steel and Tungsten didn’t hold that it– that the employee may go to Court on a breach of a collective bargaining contract in a suit against the employer.

William M.acker, Jr.:

Well, I don’t know whether Mr. —

Byron R. White:

They may be able — those cases may get you into Court on a claim for breach of fair representation duty against the Union.

William M.acker, Jr.:

Of course, I don’t know — I can’t remember whether Mr. Justice White was on the Court when Conley against Gibson was decided, but the respondents here had never answered and never attempted an answer as to the significance of footnote 4 in Conley against Gibson.

It’s conceivable, I suppose, that some of the members of the Court who signed the unanimous opinion might not have seen what that footnote was clearly saying.

I don’t think that’s true.

That footnote overrules the case of Hayes against the Union Pacific Railroad.

It says it was decided incorrectly.

There was only one question in Hayes against the Union Pacific.

That was a case against the Union and the company.

Byron R. White:

Let’s get Steel and Tungsten there first.

Neither one of them went to get you into Court against the employer, right?

William M.acker, Jr.:

I think they would, based on their language.

Now, they’re certainly distinguishable on the facts, as far as —

Byron R. White:

But they said there wasn’t —

William M.acker, Jr.:

The Union being present.

Byron R. White:

They said there wasn’t any remedy.

They said there wasn’t any remedy before the Board because it was a suit against the Union.

William M.acker, Jr.:

That’s one thing they said.

Byron R. White:

Yes, well, that’s kind of critical, isn’t it?

William M.acker, Jr.:

I think it is one critical point of those decisions, but I do think that they’re both not just susceptible by a sweeping argument to conclude from it that, in cases where invidious discrimination such as racial discrimination is involved and the doors of the Court are open.

I think they are susceptible to that without stretching it beyond the opinion, beyond what they say.

William M.acker, Jr.:

Of course, those cases preceded the Conley case.

And in Hayes against the Union Pacific, that was purely and simply a case where the employees were asking for an interpretation of the collective bargaining agreement which we concede we’re asking for and the company was — the prime defendant was named Union Pacific Railroad Co.

This Court held in that case where the charge was collusive discrimination, just like this one, unanimously that that case was decided wrong.

Now, if the Court meant that, as I think they did, then they were saying, as I read that case, that in all cases.

Now, I may not be able to prove this.

I’m asking for an opportunity to prove it, just the opportunity to prove that this Union representing them and this company got together at their expense.

And, if I can prove that and if any plaintiffs similarly situated and can make a charge like this and make it stick, then I submit, under the footnote 4 Conley against Gibson, that they should have that right and the doors of the Court should be open.

Now, in Vaca against Sipes, there were three separate viewpoints expressed.

Mr. Justice Black adhered to his dissent in Maddox and, while I might personally agree with Mr. Justice Black’s position in that case, the case should be reversed, I think, on the reasoning of the majority, as expressed by Mr. Justice White.

I don’t believe that the concurring opinion of Mr. Justice Fortas, which was joined in by Mr. Justice’s Harlan and — I’ve forgotten which other — the Court joined him, doesn’t deal with the issues of this case, but the majority said the following things in Vaca.

Hugo L. Black:

In which case?

William M.acker, Jr.:

That’s Vaca against Sipes.

I have the lawyer’s edition, 17 law edition 2nd 842.

William O. Douglas:

386 U.S.

William M.acker, Jr.:

The Preemption Doctrine, however, has never been rigidly applied to cases where it could not be fairly be inferred that Congress intended exclusive jurisdiction to lie with the NLRB.

Well, this is an NLRB case but I think that expression equally fits the NRAB.

While these exceptions in no way undermine the validity of the preemption rule were applicable, they demonstrate that the decision to preempt Federal and State Court jurisdiction over a given class of cases must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor policies of concurrent judicial and administrative remedies.

It is not applicable to cases involving alleged breaches of the Union’s duty of fair representation, which I think applies here.

It can be doubted whether the Board brings substantially greater expertise to bear on these problems than duly Courts which had been engaged in this type of review since the Steel decision.

In addition to the above considerations, the unique interests served by the Duty of Fair Representation Doctrine have a profound effect in our opinion on the applicability of the preemption rule to this class of cases.

The Court recognized in Steel that the congressional grant of power to a Union to act as exclusive collective bargaining representative with its corresponding reduction in the individual rights of the employee, so represented, would raise grave constitutional problems if Unions were free to exercise this power to further racial discrimination.

Since that landmark decision, the duty of fair representation has stood as a bull work to prevent arbitrary Union conduct against individuals stripped off traditional forms of redress by the provisions of federal labor law.

However, because these contractual remedies have been devised and are often controlled by the Union and the employer, they may well prove unsatisfactory or unworkable for the individual grievant.

An obvious situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of these contractual procedures.

We say “repudiation.”

I must leave the remainder of my time.

Earl Warren:

You may.

Mr. Fisher.

Donald W.Fisher:

Mr. Chief Justice and may it please the Court.

At the beginning of my address, I should like to point out, first of all, that this is not a Civil Rights Act suit and point out, as the Court below pointed out in the memorandum opinion, that, substantially, the same plaintiffs have alleged a violation of their civil rights under Title 7 and that particular matter is being processed at the present time in the Net case to which reference was made in the book article commented upon by Mr. Acker.

Donald W.Fisher:

So that any possible unfair employment practices which had been committed against these individuals, and I do not at all concede or intimate that any were committed, is in the process of litigation in the lower Courts at the present time and has no real connection with the instant case.

The instant case is a Railway Labor Act case.

The group of employees —

Potter Stewart:

Is — under Title 7 of the Civil Rights Act, can the Union be made a defendant?

Donald W.Fisher:

The Union was made a defendant in that proceeding, sir.

Potter Stewart:

In addition to the employer?

Donald W.Fisher:

Yes, sir.

The group of petitioners involved is a racially mixed group, as Mr. Acker pointed out.

There are, I believe, eight Negro members of the group and six White members of the group.

So, it is not, on the surface, a normal type of racial discrimination case where all of the members are members of a minority racial or religious group.

The Brotherhood and the carrier, and I am speaking in this instance for both of us, holds no brief for racial discrimination in any form.

The Brotherhood and the carrier concedes that no contract or arrangement which makes invidious discriminations or hostile discriminations based on race, color, creed, and national origin could be or should be countenanced, and that is not the issue in the case in its present posture.

The question involved is whether the plaintiffs pleaded a sufficient attempt to exhaust the administrative contractual remedies to allow them to remain in Court.

The case has an interesting parallel to the Court’s decision in Vaca versus Sipes.

In Vaca versus Sipes, the Union alone, as the Court would recall, was named in the lawsuit.

But, in the Court’s opinion, the Court indicated that perhaps the employer should have been joined in that particular action because, in fact, both the employer and the Union had interest and could be adversely affected by the nature of the complaint.

Now, in Vaca versus Sipes, which was not a case arising under the Railway Labor Act, the claim against the employer for wrong — for breach of the collective bargaining contract, for wrongful discharge, if you will, was a legally cognizable claim.

It was a justiciable claim, and the claim against the Union for breach of the duty of fair representation was a legally cognizable claim.

So, this Court, I believe, quite properly held that the two could, and perhaps in future suits subsequent to Vaca, should be joined together in one action.

But, in the present case, the claim of the employee against the carrier for violation of his employment rights as embodied in a collective bargaining agreement, and perhaps in customs and practices, has been uniformly held by this Court for a number of years to be non-justiciable.

This claim, under no stretch of the imagination, can be combined with a claim against the Union for alleged breach of the duty of fair representation because, as Mr. Justice White indicated in some of his questions, the matter must be submitted before the National Railroad Adjustment Board.

Thurgood Marshall:

Mr. Fisher.

Donald W.Fisher:

Yes, sir?

Thurgood Marshall:

Do the Railway Adjustment Board still divide it equally between Brotherhood and railroad?

Donald W.Fisher:

Yes, sir.

The — however —

Thurgood Marshall:

And, in this case, don’t — they’re not alleged that there has been cooperation between the Brotherhood and the railroads?

Donald W.Fisher:

Not at the level, Mr. Justice, as which the selections to the National Railroad Adjustment Board made.

The–

Thurgood Marshall:

But they do allege that they are working together against their best interest, do they not?

Donald W.Fisher:

Yes, the allegation is made —

Thurgood Marshall:

Then, I have three short questions.

Donald W.Fisher:

Yes, sir.

Thurgood Marshall:

If Congress adopted an Act which said “you and I have a dispute, you shall be the sole arbiter as to which one is right,” would that be due process?

Donald W.Fisher:

I would not believe it would be, sir.

Thurgood Marshall:

Well, if Congress passed an Act and said that “if I had a dispute with you and somebody else, that the two of you would be the final arbiters as to which side was right,” would that be due process?

Donald W.Fisher:

The two of us?

Thurgood Marshall:

That wouldn’t be —

Donald W.Fisher:

That is not as clear as the first answer.

I think there would be some questions of constitutionality.

Thurgood Marshall:

What’s different between that and this situation?

Donald W.Fisher:

The difference between that and this situation is that, at the highest level, that carrier group and the Union groups appoint individuals who are designated by federal statute to act as arbitrators.

This Court has said that the national railroad adjustment procedure, it said this many times, is compulsory arbitration.

And, I believe it would be, indeed, presumptuous to assume that the arbitrators who are appointed, it’s true they are appointed by a carrier group, a high level carrier group and a high level Union group, would not charge their duties under law the same as all citizens.

It should be presumed at least, perhaps I’m getting mixed in my syntax, I think the presumptions would certainly be that these members, the carrier members and the labor members, abide by the law do not countenance hostile or invidious racial discrimination and bring forth a correct construction and application of railroad collective bargaining agreements.

And, I think, as a matter of fact, it has been recognized by this Court that miscarriages of justice will probably result if judges who are not experts in railroad matters and are not familiar with the railroad parlance should attempt to interpret these agreements in the customs and practices that also are, at times, are embodied in the agreement.

Byron R. White:

Well, how do you get around Steel or worse?

It seems to me that it says, frankly, that this kind of a remedy before the Board, this isn’t the kind of remedy that has to be exhausted because of the factors that Mr. Justice Harlan had mentioned and others.

Steel certainly just — the defense was there.

They had exhausted the remedies and the Court has just — just said that remedy isn’t much of a remedy when this kind of a ch — a great charge of racial discrimination is made.

Donald W.Fisher:

Well, Steel —

Byron R. White:

Has that case ever been modified that you know of?

Donald W.Fisher:

Steel, no, sir.

But, the Steel case was not a case involving a claim for an interpretation of rights under an agreement.

In fact, the Steel case posited a completely discriminatory and illegal agreement that needed no construction.

It was, on its face, discriminatory against the Negro firemen who were classified as non-promotable.

Therefore, there was no question for the Adjustment Board, no question of interpretation.

The contract was simply non-maintainable and the suit —

Byron R. White:

You mean the Court just wasted its time talking about this remedy?

Donald W.Fisher:

No.

Byron R. White:

In those terms, they did.

Donald W.Fisher:

No, sir, Mr. Justice White.

What I am saying is this.

Byron R. White:

Well, they took it seriously.

Donald W.Fisher:

The Court in the Steel case, I believe, said that this was not a matter that was to be heard before the Adjustment Board because the hostile discrimination against these individuals engaged in by the Union could not be remedied before the Adjustment Board, and that was the suit which established, as I understand it, the so-called civil action for a breach of the duty of fair representation.

Now, I concede, on behalf of the Brotherhood, that the Brotherhood is amenable to suit not under the terms of this collective bargaining contract which is to be construed exclusively by the Adjustment Board, but is amenable to suit on the theory that it failed to accord the plaintiffs their right of fair representation.

And, I think this case raises the question whether a plaintiff, who is a railroad employee and is represented by the Brotherhood and is also a member of the Brotherhood.

We must remember, in the Steel case, the Negro firemen were not members of the Brotherhood nor were they eligible to be members of the Brotherhood.

In this case, the plaintiffs are and are conceded to be, in the pleadings, members of the Brotherhood.

And, I think the question arises here whether they do not have the same duty as other members of the Brotherhood to attempt to invoke the procedures under the Union constitution to, in other words, require the Brotherhood to accord them their due rights of representation.

I think this is very similar to the problem that was posited in Conley versus Gibson, except that, in Conley versus Gibson, the question whether those particular members of– those particular employees who were in the Clerk Crafter class had any Union remedies to exhaust.

And, I think, as a matter of fact, on the facts such as they are related to the Conley versus Gibson decision that those clerks were not members of the Brotherhood.

But, in any event, the question of their need to exhaust the remedies under the Union constitution was not discussed and not decided.

I think that is the question for the Court to decide here.

William J. Brennan, Jr.:

In the Union constitution, you get to — you don’t want to talk anymore on the National —

Donald W.Fisher:

No, what I say, Mr. Justice, about the National Railroad Adjustment Board is simply this, that for a vindication of their rights of seniority, their contract rights, as railroad employees, their rights under the contract and customs and practices, that that is a matter solely and exclusively within the jurisdiction of the National Railroad Adjustment Board and that this has been held many, many times and that there are no exceptions to that rule, except in the one instance when an employee accepts a discharge as final, the Moore versus Illinois Central exception, and then attempts to sue the carrier for damages only.

William J. Brennan, Jr.:

[Inaudible 42:22-42:31]

Donald W.Fisher:

Pardon?

William J. Brennan, Jr.:

[Inaudible]

Donald W.Fisher:

I do not believe that that means —

William J. Brennan, Jr.:

What did Hayes hold?

Donald W.Fisher:

I must say that I am unable to give a description of the Hayes case.

I have prepared on many, many cases but I cannot at this time–

William J. Brennan, Jr.:

Well —

Donald W.Fisher:

State exactly what Hayes held.

William J. Brennan, Jr.:

Well, Hayes was a suit who was charged with discrimination against Negro employees, such as here, in the enforcement of the department employee right.

And, it was held there by the Court of Appeals for the Ninth Circuit that the Act should not lie by reason of provision for the Adjustment Board that the Act should not lie in the District Court.

Donald W.Fisher:

I —

William J. Brennan, Jr.:

In this Court, footnote 4, we disapproved that motion.

Donald W.Fisher:

Yes.

William J. Brennan, Jr.:

In the Conley case.

Donald W.Fisher:

Yes.

As I interpret that, it means that the Union is amenable to suit, as was the case in Conley versus Gibson, to require the Union to act on behalf of the employee because, in Conley versus Gibson, this Court — in Conley versus Gibson, the particular breach of the duty of fair representation was alleged to be that the Brotherhood would process grievances that were submitted by White members of the craft but refused, simply because of race, to process similar grievances on behalf of Negro members of the craft, and the Court’s decision in Conley stated that this, if proven at trial, would be a breach of the duty of fair representation and that relief would lie against the Brotherhood to require the Brotherhood to process the grievances.

And, I think that if there was any contrary intimation in the Hayes case that that was wrong, that should have been overruled.

But, again, as I understand —

William J. Brennan, Jr.:

Hayes actually was a suit against the railroad charged with stipulation by the railroad against the Union members for making the seniority assignments proposal, precisely the same with what we have here.

Donald W.Fisher:

Well, if the agreement —

William J. Brennan, Jr.:

Here, we have the facts that this allegation is made in this case as collusive arrangement between the railroads and the Union.

Donald W.Fisher:

Only– not as to the agreement.

William J. Brennan, Jr.:

It would be only against the railroad but not against the — also against the Union, is that it?

Donald W.Fisher:

Well, Mr. Justice Brennan, again, I am sorry that I can’t discuss the Hayes case in the detail that I should be —

William J. Brennan, Jr.:

Well, it’s only two-paragraphs long and I’ve given you about all of it.

Donald W.Fisher:

In the present —

William J. Brennan, Jr.:

Do you think the significance of footnote 4 only goes to the actions there involved of the company will breach fair representation?

Donald W.Fisher:

Yes.

William J. Brennan, Jr.:

Do you?

Donald W.Fisher:

Yes, I think Conley was limited to a claim that the Union failed to accord these Negro members of the Clerk Craft, on that carrier, their rights of fair representation.

And, the Court found that, on the basis of the allegations made, this would be true.

William J. Brennan, Jr.:

Well, I have a difficulty seeing why Hayes bore law on an act where breach of the obligation to afford the miracle only access to the river.

Donald W.Fisher:

Well, I —

William J. Brennan, Jr.:

What should’ve been obviously reversed and —

Donald W.Fisher:

I would think it may well had been if the contract was clearly discriminatory.

William J. Brennan, Jr.:

They recovered at Tungsten, clearly, the plain application as to what was said or had not — you just can’t take a forming kind and force the contract, but if you also allege that breach of the duty of fair representation and racial discrimination, that you’ll tell the Court in an appeal.

Donald W.Fisher:

Yes, but Conley versus Gibson has indicated that the breach of the duty that we’re talking about, I think, in part of this case, a fair representation is a breach of duty on the part of the Union, a breach of contract when you say interpretation of contracts.

If a carrier refuses to accord a group of its employees certain promotional rights, that’s a breach of contract.

William J. Brennan, Jr.:

Well, Tungsten and Steel went on to say the remedy against the employer before the Adjustment Board is not immensely straight into the act because it will make them proper tribunal, both of them.

Donald W.Fisher:

I am not aware that the Supreme Court in those cases held that the Board was not a fair tribunal or a proper tribunal to bring a contract claim.

I will state to the Court that it is clear that if the contract is illegal and there is no real debate or there’s no doubt that the contract is an illegal and discriminatory contract, then there is, in fact, nothing for the Adjustment Board to interpret or to construe.

William J. Brennan, Jr.:

Well, I– but, as I re-pace again, I know you haven’t seen it yet, but —

Donald W.Fisher:

I have seen the case, but I — that’s —

William J. Brennan, Jr.:

Well, as I have done, and maybe quite well about it in the brief opinion, in any event, that was an action charging the railroad discriminatory application in matters of seniority, which stand the seniority question for you.

And, the Court of Appeals of that case said, well, there is an adequate remedy before the Board and, therefore, this action will not lie on the Court.

And, this Court, as I read footnote 4, disprove that and I don’t see — your case happens to involve allegations conclusive as between the Union and the railroad, but I don’t see that that makes our action in footnote 4 inapplicable, does it?

Donald W.Fisher:

No, but I — again, the only explanation I can give is that the Conley versus Gibson case dealt with the duty of the railroad to press the grievance when they were asked to press the grievance.

When the grievance was filed, the Brotherhood refused to press it, and they did it because of race.

And, this Court held that that was a duty — a violation of the duty of fair representation.

We don’t dispute that.

We say the question that is raised here is, even though there may arguably be an allegation that the Brotherhood refused to act on behalf of these plaintiffs in a proper manner.

Since they were members of the Union, whether they didn’t have the duty, which by analogy we can find in Section 101 (a) (4) or 4 (11) (a) (4) of the Landrum-Griffin Act, the duty to attempt to get relief within the Union’s tribunals before running into Court to sue the Union.

We say, by the same token, when the contract is admitted to be a proper contract, the contract is not discriminatory.

The contract is not being attacked.

What is being attacked is that the railroad is breaching the contract and that the Union is alluding with the railroad in this breach of the agreement.

That, however, it is not at all clear that this contract gives them the right as helpers to be promoted to carmen as against the claim of apprentices to be promoted to carmen, and this is a matter which involves the expertise of the National Railroad Adjustment Board and it’s–

Thurgood Marshall:

What expertise does the Railroad Adjustment Board have to find out whether a man is being discriminated against because of his raise?

Donald W.Fisher:

That is the issue which I think is justiciable in the Courts, Mr. Justice.

We concede that that is a legally jsuticiable claim, whether he is being discriminated against on account of his race, not the contract rights that he has under the agreement, that is an Adjustment Board matter, but whether he is being discriminated against.

Now, to the extent that he’s suing the Union for discriminating against him and is a member of the Union, he should attempt to exhaust his Union remedies.

That is our position.

He made no attempt and it is clear from the pleading that both in the original pleading and the amending com — pleading —

Thurgood Marshall:

Well, is there anything in the procedure that will give him compensation for what has been done to him in the past?

Certainly, there’s not.

Donald W.Fisher:

Pardon me?

Thurgood Marshall:

There’s no procedure, even machinery or internal Union Brotherhood machinery, that will give him damages.

That’s true.

Donald W.Fisher:

Not damages.

Adjustment Board grants backpay and, however, this might be —

Thurgood Marshall:

Well —

Donald W.Fisher:

Justice Marshall —

Thurgood Marshall:

I for one have difficult in jumping from the Union to the Adjustment Board.

I mean —

Donald W.Fisher:

There is no jump from the Union to the Adjustment Board.

The claim against the Union is not a claim destined for resolution by the Adjustment Board.

Thurgood Marshall:

That’s what I thought.

Donald W.Fisher:

That is our po — we concede that.

Thurgood Marshall:

Well, alright.

Well, my point is that why most of your argument, as I get it, is the assumption of what they cannot prove, but the point before us is to whether they shall be given an opportunity to try to prove that there’s been collusion and there’s been this.

That’s all they’re asking for here.

Donald W.Fisher:

Well, but we say, yes, but we say also, before — as a member of an association, before they attempt to sue the association for a possible act of misp — on the part of a local agent, that it is neat and proper, and is so recognized under federal law as neat and proper, to attempt to get this matter resolved internally and within the organization.

And, if they had done this at the first time they were aware of any discrimination, it is entirely possible that they would — the discrimination would have been eliminated, but they never filed any grievance, any claim within the confines of the Brotherhood to the effect that officials at Birmingham were discriminating against them.

Now, we say that that type of exhaustion of remedy under the Union constitution is necessary under law and it is necessary in fairness to the Union because the Union can be held liable for the action of his agents, but it should have some opportunity to take corrective action.

Earl Warren:

Would you say that if they had pursued those remedies and stopped there, that they’d be properly here?

Donald W.Fisher:

I — yes, if they had attempted, if they had made a fair bonafied reasonable attempt, which they did not make and which they concede they didn’t make, and had found that they were getting no relief.

I think that, pursuant to the law, as it existed, they might have then turned to the Courts and sought relief, but they made no attempt —

Earl Warren:

Without going to the Board?

Donald W.Fisher:

Well, the remedy I’m talking about is the remedy against the Union, the remedy that they sought in Conley versus Gibson.

Earl Warren:

No, I asked you if they’d be properly here in this case.

Donald W.Fisher:

Well, conceivably, in the claim against the Union.

Earl Warren:

For what their asking for, would they be properly here?

Would you be out then, so far as this case is concerned?

Donald W.Fisher:

Not in respect to their claim for an interpretation or application of the language of the collective bargaining agreement.

That is a matter to — the question of whether they were actually entitled to be upgraded to carmen or whether apprentices were improperly upgraded instead of them is a question that, under all the decisions of this Court, it seems to me, must be resolved by the National Railroad Adjustment Board.

Earl Warren:

And, your answer would be that even though they had gone through all the grievance procedures that if they wanted the relief they’re asking in this case, they must also have gone to the Adjustment Board.

Donald W.Fisher:

Yes, the relief under the contract is available before the Adjustment Board.

The relief against the Union and the relief for breach of the duty, the relief for racial discrimination, for breach of the duty fair representation is a claim which is judicially cognizable for which recovery may be made after proper proof, but our position here again is that there is this duty, this preliminary duty, which is I think well-embodied in federal law to attempt to exhaust the remedies available to them.

And, they concede, I do want to emphasize to the Court, that they had in no point ever denied that there are remedies.They refused in their pleadings to spell — to state what the contract remedies are and what the Union constitutional remedies are, but they have taken a rather cavalier attitude toward these remedies and said “there’s no need for us to attempt to exhaust them.”

We feel that we’re, because this is a racial case, I presume, we’re immune from that requirement that all other persons, presumably, are imposed with.

And, that is the —

Earl Warren:

How long would it take them normally to go through the grievance procedure?

Donald W.Fisher:

Not very long, and —

Earl Warren:

How long?

Donald W.Fisher:

I would say the grievance procedure on the property, if you’re talking about the railroad property —

Earl Warren:

I’m talking about the grievance that they had in this case.

Donald W.Fisher:

Well, the grievance is two-fold.

They had a grievance against the Union —

Earl Warren:

Well, both of them.

Donald W.Fisher:

Both of —

Earl Warren:

Let’s take both of them together.

Donald W.Fisher:

Alright, both of them together, I believe that they could have processed the grievances fully in less than two years.

Earl Warren:

Less than two years?

Donald W.Fisher:

Less than two years, yes, sir.

Earl Warren:

Alright.

Then, if they had to go to the Arbitration Board after that in order to get the relief asked here, how long would it take to go through there?

Donald W.Fisher:

No, I was assuming that the Arbitration Board decision would also be handed down, Mr. Chief Justice.

I think that the entire matter could’ve been processed on the property to the Adjustment Board and also the claim within the Union’s tribunals to make the Union do what they say the Union wouldn’t do in less than two years.

Earl Warren:

I thought counsel said something about three years before the Board, that there’s a concession to that effect.

Donald W.Fisher:

No, I said less than three years, but my co-counsel of the carrier pointed out a report which I then read and the case — the backlog is less than a year on the second division, and I am of the opinion —

Earl Warren:

You concede three years.

Donald W.Fisher:

I said less than three years.

I now say two years or less.

Two years or less, the entire matter could’ve been processed through all of the conceivable tribunals involved.

Hugo L. Black:

Through the Courts?

Donald W.Fisher:

Through the Courts, Mr. Justice Black?

Hugo L. Black:

Yes.

Donald W.Fisher:

Well —

Hugo L. Black:

After the Board through the Court?

Donald W.Fisher:

Well, now, a decision of the Board, of course, is final and binding, except for certain limited grounds of review.

So that, unless those grounds were available, there would be no Court review.

Hugo L. Black:

If they were available.

Donald W.Fisher:

If they were available, I would hesitate to say what the state had adopted in Birmingham, Alabama, as in the Courts.

It would be longer.

Donald W.Fisher:

Thank you.

Earl Warren:

Mr. Fisher, you may continue with your argument.

Donald W.Fisher:

Thank you, sir.

Mr. Chief Justice and may it please the Court.

To go back to the point which I left at the noon recess, in talking about the Tungsten case and the Steel case, it seems to me, that the carrier and the Brotherhood again say that, regardless of who the parties were in those cases, the cases involved the question of the duty of a labor Union to accord to minority members of a craft or class fair representation.

And, I think that’s put in sharp outline by the opening statement of Chief Justice Stone who said the question is whether the Railway Labor Act imposes on a labor organization, acting by authority of the statute as exclusive bargaining representative of a craft or class or railway employees, the duty to represent all the employees in the craft without discrimination because of their race and, if so, whether the Courts have jurisdiction to protect the minority of the craft or class from the violation of such obligation and point out further, again, regardless of who the parties were, that was the issue, that the Court also noted that there were no differences between the parties in the Steel case, or in the Tungsten case for that matter, as to the interpretation of the contract at page 205 of the Court’s opinion there’s — nor are there any differences as to the interpretation of the contract which, by the Act, are committed to the jurisdiction of the Railroad Adjustment Board.

Now, in the Tungsten case, it’s true that it was a discriminatory application but, again, it was filled in that case that the Union was the party, the guilty party, the most guilty party that violated this duty of fair representation.

Now, again, in Conley versus Gibson, the thrust was against the Union for refusing to process these grievances, and we concede in this case that the Union cannot discriminate.

There is no problem, in my mind, about that.

This Union cannot discriminate.

I see my time is up.

Earl Warren:

You may finish that statement, if you wish.

Donald W.Fisher:

Yes, sir.

I merely want to say that this case presents the question when you’re suing the Union for violation of that duty and the plaintiff is a member.

Even though he’s a Negro, he’s a member of the Union.Doesn’t he have the same obligation that other Union members have of attempting to utilize his internal remedies.

And, the question of the interpretation and application of the agreement, which Mr. Acker concede is at the root of this case, is a question of the interpretation of the contract.

There’s no conceded —

Byron R. White:

Why do you — why does the Court say the administrative remedy was inadequate in Steel and Tungsten?

They said part of the reason was that it was not an unbiased tribunal.

Donald W.Fisher:

Well —

Byron R. White:

In both sides, both parties who were accused of discriminating against the plaintiff were sitting there deciding the dispute.

That was part of the reason.

Donald W.Fisher:

I think that’s — they had a however.

I think, yes, sir.

I re-read it and they did make that observation, Mr. Justice White.

Byron R. White:

The Union was — the Union who was sitting on one side of that tribunal was so biased and so unreliable, and it’s not the attorneys that used the administrative action.

Why would you still suggest that the Union was the unbiased and what kind of a suitable remedy inside the Union?

Donald W.Fisher:

Well, may I answer the question this way, Mr. Justice White.

The Court observed in those days that the Adjustment Board wouldn’t permit individual claimants to go before it.

It said, in over 400 cases, not —

Byron R. White:

It hasn’t come to be —

Donald W.Fisher:

Yes, alright.

Byron R. White:

That’s the —

Donald W.Fisher:

Yes, sir.

Let me attempt to answer it directly then, if I may, if haven’t been direct.

In that case, they were talking about the breach of the Union of its duty of fair representation and they said this is not the claim that you go to the Adjustment Board, and I will concede they said perhaps it wouldn’t be a fair tribunal in weighing the Union’s duty because it was a Union appointed representative and tribunal.

I am saying, and I hope that I’ve been clear in this, that the question of contract interpretation, pure and simple, is the only question that I believe is properbly — properly referable to the Adjustment Board.

And, I am conceding with Justice Marshall and with other Justices in the Court that the claim for breach of the duty to treat members of the craft or class fairly is a claim that is cognizable in the Court and I say on that claim, which is a judicially cognizable claim, since he’s a member of the Union suing his Union, he should first make some attempts to exhaust the remedies.

If he had done that, years ago, he may have had immediate instantaneous relief, but he made no attempt and he admits that he made no attempt to exhaust these remedies.

Earl Warren:

Thank you.

Donald W.Fisher:

Thank you.

William M.acker, Jr.:

Mr. Chief Justice and may it please the Court.

Earl Warren:

Mr. Acker.

William M.acker, Jr.:

Just a couple of remarks.

As I understand Mr. Fisher, he is saying that these plaintiffs must go and must have gone three separate routes and that they must fragment their claim, that is that they must take their Union claim to the Union, and their claim against the company to the company grievance machinery and, thereafter, to the Railroad Adjustment Board.

I don’t think that could be done in two years, whether you did it simultaneously or not but, in any rate, he’s requiring a fragmentation and he is saying that there’s no right at any time anywhere to sue the Union and the company together in one — before one tribunal.

Now, that ground was not in the motion to dismiss.

They don’t day in the motion to dismiss that you have no right in this Court to sue these two entities together.

They say that here.

As to footnote 4 of Conley against Gibson, I think what Mr. Fisher is saying is that footnote 4 went further than the Court needed to go to decide that particular case and, therefore, it’s dictum.

And, he might be right there, but I do think that what the Court said in that footnote 4 was carefully reasoned and was correct and should become the law in any case where, very clearly, that question that appeared in Hayes against Union Pacific is presented.

No question about that in this case.

Now, as to one other thing — my time is —

Earl Warren:

Very well, you make it very brief.

You may —

William M.acker, Jr.:

One other thing, the remark was made and was made in briefs that Mr. Dent has availed himself of the remedy provided him or attempted to, he’s been unsuccessful thus far, the remedy provided by the Civil Rights Act in 1964, in which I’m not involved.

Now, I will say only one thing there.This case here certainly should not rise or fall on what one of the petitioners here is doing in another case, outside the control of counsel in this case.

But, if Mr. Dent is successful there, ultimately after having them thrown out there as he was here, he will not be entitled in the Civil Rights Act to damages, which is what we’re talking about when we’re talking about laws of seniority in job rights.

We’re talking about money.

Thank you.