Humphrey v. Moore

PETITIONER:Humphrey
RESPONDENT:Moore
LOCATION:NAACP Alabama State Conference

DOCKET NO.: 17
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 375 US 335 (1964)
ARGUED: Oct 16, 1963
DECIDED: Jan 06, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – October 16, 1963 in Humphrey v. Moore

Earl Warren:

17 and 18, Walter Humphrey, et cetera, et al., Petitioners, versus C. W. Moore, et al.

And Number 18, General Drivers, Warehousemen, and Helpers, Local Union No 89, versus C. W. Moore et al.

Mr. Previant.

David Previant:

Mr. Chief Justice, may it please the Court.

These cases are here on certiorari to the Court of Appeals for the State of Kentucky to review a judgment and an order of that Court which judgment and order set aside a seniority determination made under the terms of the collective bargaining agreement.

In case 17, the petitioners are a group of employees who are adversely affected by the decision of the Court of Appeals.

They are represented here by Mr. Ratner whose argument will follow mine.

Case Number 18 is the petition of the Local Union itself.

And I will — to set the issue clearly before the Court attempt to expound the facts upon which the decision below was based or should have been based upon which was we think is controlling here.

The basic question presented of course is whether or not a state court or a federal court may set aside an interpretation of a collective bargaining agreement rendered by a Committee authorized to make such interpretation under the agreement because the Court is of the opinion that interpretation was erroneous or contrary to natural justice.

There are five parties actually or groups of parties involved in this case.

The petitioner in Number 18, as I stated is a labor union, Local 89 representing many employees in the Louisville, Kentucky area.

The Dealers Transport Company which was a party below, in the Tennessee Corporation which delivers automobiles and trucks and interstate commerce and it has a terminal in Louisville, Kentucky where the fourth company has an assembly plant.

The E & L Transport Company similarly is a trucking company and interstate commerce delivering automobiles and trucks out of the four assembly plant in Louisville.

This company was not a respondent below.

The respondents Moore as a class are a group of employees of Dealers Transport Company employed by Dealers Transport Company in its operation of trucking away automobiles and trucks.

And this group is a mem — are — all of members of this group are members of Local 89.

The petitioners Humphrey are a class of employees of E & L Transport Company, the competitor to Dealers and are similarly members of Local 89 and represented by Local 89 for the purposes of collective bargaining.

Dealers and E & L, the trucking employers in this case are members of a multi-employer, multi-union bargaining unit and have been for many years.

These employers give their power of attorney to an employer’s group known as Automobile Transporters Labor Division.

This power of attorney authorizes that Committee to negotiate and sign an agreement on behalf of the various employers who are members of that association.

Arthur J. Goldberg:

(Inaudible)

David Previant:

It is a recognized unit.

I — I would like to leave the Court to call the Court’s attention to a case which just called on my attention last night.

I think probably counsel was negligent for not finding it earlier but it’s a non-reported case.

It’s the NLRB Case Number 25-RC-1925 in which this same contract was before the National Labor Relations Board in litigation arising out of a claim by the Mine Workers Union that it represented a majority of employees of a single employer who is party to this contract.

The board held that the unit appropriate for purposes of collective bargaining as evidenced by this contract was a multi-employer unit and dismissed the petition of the mine workers for a single employer election.

What’s the date of that?

David Previant:

This — the decision was in February 19 — February 23rd, 1961.

It is entitled USAC Transport Inc. and District 50, United Mine Workers of America.

Arthur J. Goldberg:

(Inaudible)

David Previant:

Yes.

As I say, it is unreported but in the Board’s files it is known as Case Number 25-RC-1925.

Arthur J. Goldberg:

(Inaudible)

David Previant:

There was never any attempt made to review the case either directly or by antilabor practice charges.

Arthur J. Goldberg:

Don’t we have here a (Inaudible)

David Previant:

That — that’s right.

Arthur J. Goldberg:

(Inaudible)

David Previant:

That’s right.

Earl Warren:

Who were the parties to that, Mr. Previant?

Who were the parties —

David Previant:

The party — the parties to that were local unions which are represented by the Committee which negotiates this contract another union seeking representation at a particular employer — which employer is also a party to this multi-employer, multi-union unit.

It’s a national unit.

It covers the truckaway, driveaway operations throughout the country wherever there are assembly plants.

This contract is a uniform contract and there are riders which are negotiated to take care of local conditions but basically it is a uniform agreement but the uniform grievance procedure and it is — as I’ve said negotiated by a Committee representing the unions and employees and a Committee representing the employers.

William J. Brennan, Jr.:

(Inaudible)

David Previant:

It is not the same contract.

In fact there is one very sharp difference insofar as the grievance procedure is concerned but it is patterned very closely after it.

This is a — happens to be in the trucking industry.

A pattern type of contract which is modified from time to time depending upon the kind of freight that is involved whether it is dry freight, whether its petroleum, whether its cement or in this case whether it is new automobiles and trucks which are being moved from assembly plants.

As I said Local 89 is also for many years represented the employees of both Dealers and E & L as well as other companies that are involved in this kind of transportation.

And that local union gives its power of attorney to an organization that is known as the National Truckaway and Driveaway Contracts for negotiation and signature.

Identical contracts are signed by each of the — the individual employers but on the negotiation a master agreement is arrived at.

It is signed pursuant to the power of attorney by the employers — by the employer’s association on behalf of its members.

It is signed by the National Truckaway Conference on behalf of its members.

Then, subsequently, individual contracts are printed, distributed and signed by the individual local union having jurisdiction over the operations in a particular area and by the employer.

And the contract on record here will show the typewritten signature of the employer’s association and I’ll say for the employers and then the members of the employer’s association who were on the negotiating Committee, let’s say for the employees and then the members of the union who are on the union negotiating Committee.

I think this is important incidentally because the court below apparently cannot quite digest this kind of unit and the — this Court will note that in its decision it seemed to think that in as much as two individual contracts were signed that people working under one contract like the E & L employees could not possibly assert any rights as against those employees who are working under the other contract or the dealers contract.

This was essentially dispute of course it is out position that this is a multi-employer unit.

It is a uniform agreement.

David Previant:

It’s binding upon all.

It applies to all employees in the unit and therefore the Court would actually in taking its decision attempted to fragmentize this multi-employer unit.

And actually it was doing that which we believe under the National Labor Relations Act is forbidden, it has no authority or power to do it.

The current contract expires in 1964 and I would like to take the Court’s time to indicate some of the provisions of the contract because again I believe that they are very in strictly bound up in the issues in this case.

Arthur J. Goldberg:

(Inaudible)

David Previant:

Yes.

Arthur J. Goldberg:

(Inaudible)

David Previant:

Local 89.

Arthur J. Goldberg:

(Inaudible)

David Previant:

Yes.

Arthur J. Goldberg:

(Inaudible)

David Previant:

Well no, it’s confusing I — I couldn’t see it myself.

Right down in the third line in parenthesis in —

Arthur J. Goldberg:

(Inaudible)

David Previant:

— small print, it says, Company.

Arthur J. Goldberg:

(Inaudible)

David Previant:

And right — and right at that point the company signs.

Arthur J. Goldberg:

(Inaudible)

David Previant:

Yes.

Arthur J. Goldberg:

(Inaudible)

David Previant:

Yes.

There’s no issue in the case at all.

The contract was attached in blank but there’s no issue in the case.

In fact it was acknowledged by Dealers, E & L and 89 that they were all parties to the agreement and that there’s no issues that that has been raised.

Arthur J. Goldberg:

(Inaudible)

David Previant:

E & L signed a similar contract.

Arthur J. Goldberg:

(Inaudible)

David Previant:

With the same local union.

Arthur J. Goldberg:

(Inaudible)

David Previant:

Yes, the next page.

Arthur J. Goldberg:

Next page?

David Previant:

The very next page.

As a matter of fact, the — if the Court will look to the record, we’ll find that the signatures for the negotiating Committees appear upon page 81 of the contract and the signatures for the local union and for the local employer appear at page 82 of the contract following — following the signatures for the — Committee itself.

Arthur J. Goldberg:

(Inaudible)

David Previant:

That — that is — that is correct Your Honor.

Now, —

Arthur J. Goldberg:

(Inaudible)

David Previant:

It — it — well, it is not — sometimes it maybe and I should say in this case there is one local seniority rider which predated this 1961 contract which dealt only with the seniority of employees of Dealers who had formally been employed at Memphis but had then been moved to Louisville when Dealers opened up its terminal in Louisville.

And that supplemental agreement said that as to those employees who were being transferred, they would maintain their overall company seniority at Louisville.

The Dealers employees relied upon that rider in the courts below but neither the Committee nor the trial court nor the Court of Appeals in Kentucky thought that rider had any relevance to this issue at all.

Arthur J. Goldberg:

(Inaudible)

David Previant:

That’s right.

William J. Brennan, Jr.:

(Inaudible)

David Previant:

That — that is true and but — the practice is to have each individual employer sign the local union contract so as to eliminate any doubt at all with respect to his participation and his re —

William J. Brennan, Jr.:

(Inaudible)

David Previant:

It would — it would not —

William J. Brennan, Jr.:

(Inaudible)

David Previant:

It is not necessary.

Each — each had given powers of attorney to their respective negotiating Committees and each are bound by the negotiation.

Now this agreement does provide that the National Truckaway and Driveaway Conference is the exclusive representative of all employees covered by the agreement.

It provides that the employer is bound by all the terms and provisions of agreement by — and by all interpretations of the agreement.

It provides that seniority rights for employers shall prevail and generally the rules set forth that seniority shall be by terminal.

It further provides that when there is a controversy over a seniority standing this controversy shall be submitted to the joint grievance procedure.

This joint grievance procedure again is similar to contracts which have before this Court in both (Inaudible) and Riss.

In that, it starts at the local level by an attempt to adjust between the union and the employer.

Upon their failure to adjust there is a local bipartite Committee consisting of equal representatives of the union and equal representatives of the employers in the area.

This Committee makes an effort to settle the dispute and if it does finally settle the dispute that is final and binding to the parties.

If they cannot reach an agreement at the local level, it then it goes to what is called a Joint Conference Committee.

This is a national Committee.

It is again composed of representatives of all of the national employers and all of the local union on a bipartite basis and equal number of each and this Committee does have the authority to make again final and binding determinations.

David Previant:

If this Committee should deadlock and this is where this procedure varies from the Riss case for example.

Then there is provided that there must be submission to an impartial board of arbitrators.

The — the important thing in this procedure which marks it off from the problem which was before this case — before this Court in the Riss case was the specific provision that the decision of the Joint Conference Committee shall be final and conclusive and binding upon the employer and the union and the employees involved.

The Court will recall that there was a — at least that was considered an ambiguous statement in Riss where instead of saying the decision shall be final and binding the contract language go, “shall be submitted for final decision.”

This is — I think is clear as the intention of the parties can be expressed that the decision of a Committee particularly the Joint Conference Committee shall be final, conclusive and binding upon the employer, the union and the employees involved.

Incidentally, in the Dealers’ brief filed here and there is a suggestion that Dealers might have had a right to deadlock this case at the Joint Conference Committee level and take it to arbitration.

Contract is not give to any individual and employer or union that right.

Once a Committee makes the unanimous decision as was done in this case and — and final arbitration is the final set only if there is a deadlock or there has been a deadlock and I believe that the mere reading of the contract will demonstrate that.

Now, the important provision of the contract which gave rise to a litigation here on the merits below reads as follows, it would be found at record 10, it’s Article 4, Section 5 of the contract.

In the event that the employer absorbs the business of another private contract or common carrier or is a party to a merger of lines the seniority of the employees absorbed or affected thereby shall be determined by mutual agreement between the employer and the unions involved.

Any controversy with respect to such matter shall be submitted to the joint grievance procedure.

The contract further provided that it was the intention of the party to resolve all questions of interpretation by mutual agreement, factors and effort to preclude the Courts from making an interpretation.

The contract has a printed signature as I pointed out of the various parties and then the individuals’ signature.

Now, the facts which gave rise to the grievance and litigation relief, as I’ve pointed out Dealers and E & L were engaged in the business of transporting new automobiles and trucks from the Ford Motor Company Assembly Plant at Louisville to various parts of the country.

The court isn’t — is undoubtedly aware that this industry has been reset by automation problems also among which at least a form of automations effect that it has been found to be more economical than some instances to transport automobiles from what is called piggy-back.

That is by a multilevel flat car to which are attached rails, automobiles are put on and this transported in maybe 20 or 30 or 40 cars of such kind can be transported then from one part of the country to the other and of course each flat car carries many more automobiles or trucks that can be loaded onto the average truckaway trailer which up to this point have been doing it.

So these two companies were notified by the Ford Motor Company that because of its increasing use of this piggy-back operation, one of the two company services would no longer be required at Louisville.

Testimony up to that point was that Ford made no choice in the matter.

That all it had — to have done was to announce to these two competitors, we will have use for only one of you in the future.

The companies then apparently entered into an agreement while — I shouldn’t say apparently, they entered into an agreement which was not apparent at that time that Dealers would purchase the E & L rights out in Louisville, the industry commerce rights, the rights to transport at Louisville.

In turn, E & L would purchase Dealers’ rights out of Ohio, Lorain, Ohio.

And again in turn as a quid pro quo, E & L would transfer to Dealers certain secondary rights which it had in Jackson, Mississippi, New Orleans and two or three other cities down south.

They had made this agreement and they have filed three separate applications with the Interstate Commerce Commission for approval of the transaction but the nature of this transaction had never been revealed to the union or to the employees.

At least not before the grievance was filed and was on its way up to final adjudication.

The union representative after receiving complaints and inquiries from members of the union had a meeting with representatives of both companies and he was told there flatly that there was no kind of a trade between the two companies and only that Ford had taken the business from one company and given it to another.

On those facts, the union advised the employees of E & L which was then losing the business that it looked pretty dark for them and perhaps they better seek other employment.

And on those facts, it assured the employees of Dealers that they would have no concern.

Again the testimony is that they qualify this opinion on the facts which were then available to them.

Well, the E & L employees then were laid off gradually and as they were laid off they filed a grievance.

They claimed that they were entitled to secure employment with Dealers because Dealers was taking over E & L’s business.

David Previant:

And that — in that employment they were entitled to enjoy the same seniority rights which they enjoyed with E & L, in other words, that the seniority board should be merged or dovetailed.

Now, in this industry when we talked of merging or dovetailing, we mean you take this — in this case would be the seniority list of Dealers, the seniority list of E & L and then you would make one master list depending upon the date of employment by either company.

Obviously, although it wouldn’t be here, this matter of dovetailing is bound to prejudice and to injure some employees who may have thought they had prior rights with their own employer which they were now losing by the merger.

The grievance went to the local joint committee but there is also a provision of the contract that on all matters of interpretation whether they’re raised by the union or by the employer, such matters must go to the Joint Conference Committee to the final step for determination or as it obvious that unless you have uniform interpretation of a uniform agreement it precludes its uniformity.

Well, because of that provision of the contract, the local union suggested at the local level that this matter be deadlock there and that it would sent to the next meeting of the Joint Conference Committee at the top level for determination as an interpretation.

This joint conference meeting was held.

The union was present.

Dealers Transport employees were represented by three stewards who were elected by all employees of Dealers and who attended the meeting at the expense of the union.

Similarly, the E & L employees were represented by stewards who were elected by the employees of E & L and whose expenses were also paid to the meeting.

Now, in the meantime, the union had made an examination of the federal registrar and had noted that these petitions were pending before the ICC and at that point the unions here changed because that it did appear that this was either a merger or absorption which would be covered by the provision of the contract to which I have referred.

So, when the matter got before the Committee, the chief officer of the union, Mr. Priddy, who normally sits as a member of the Committee, disqualified himself.

There’s a Committee rule that no member of the Committee can sit on the case in which he is involved or which comes out of his jurisdiction.

Mr. Priddy disqualified himself and he made a presentation to this joint Committee.

And he maintained that on these facts that are now disclosed by the federal register, there’s obviously in Louisville a merger or an absorption of the business of one carrier by another.

Under those circumstances and under this provision of the contract, the employees of the absorbed company were entitled to assert their seniority at the absorbing company.

And he maintained that the proper disposition of the grievance at that point would be to construct a seniority list in a manner which I have indicated where all employees of Dealers whether they were initially employed by Dealers or whether they came to Dealers from E & L would find their places on that master seniority list in accordance with their total years of service with either company.

This of course as we’ve pointed out in our brief is not an unusual disposition of this kind of a dispute and generally is considered by the previous riders in the field at least and by some of the courts and some of the boards which have examined this thing as being the fairest kind of a disposition of this problem.

Arthur J. Goldberg:

(Inaudible)

David Previant:

I think at that point the — since — E & L had no employees there but I — I must confess that this speculation is not in the record and I don’t know.

But I — but —

Arthur J. Goldberg:

(Inaudible)

David Previant:

But since — no — but since — since these other arrangements were made at places where the — their work, rather groups of employees I assume, I don’t know that it happened.

I do know that there has never been any grievance submitted out of any of the other terminals which were affected by this overall deal as it were between Dealers and E & L.

Mr. Priddy argued it to the Committee that all these men were doing — was following their work.

And since this was a multi-employer unit, they had a right to preserve their overall seniority within the unit itself without regard to individual employers that in the long run this would be for the benefit of all the employees because it would be a condition of that industry.

It might be the next day that in other company might come in to Louisville and the Dealers employees might be confronted with the same problems and under this kind of formula, the Dealers’ employees would be protected and they would not go to the bottom of new seniority list.

Potter Stewart:

Mr. Priddy was the chief officer of the union you said of —

David Previant:

Yes.

Potter Stewart:

— of Local 89 or —

David Previant:

Of Local 89.

David Previant:

That’s right.

Potter Stewart:

Alright.

David Previant:

A local union.

Now, this — this joint Committee is not a union Committee and there’s also a suggestion of the brief said perhaps this was the union disposition of the matter.

It is a Committee which comprised of equal number of employers and equal number union representatives and no one sits on that Committee who is actively interested in the particular grievances that have come before it.

In that — in that manner, I believe it fits every test of an arbitration panel or board.

As a matter of fact, this Court held in Riss that it does whether it was — whether that itself is called an arbitration board or not.

Arthur J. Goldberg:

(Inaudible)

David Previant:

Yes.

The record shows that they did.

The — I think that on cross examination they said well very little but they did make a representation to the Committee.

They were asked if they had anything further to present to the Committee.

Apparently, there was no objection made at that point that they didn’t have notice that the union was going to change its position.

Incidentally, I think there is a serious question whether in — in an interpretation case or in a bargaining case as this becomes subsequently as we shall see, that a right of representation is necessarily there at that point but I don’t think we need to reach that point although it isn’t discussed in the brief.

At this — incidentally and this is a — significant, the general manager of the Dealers and Vice President who is present at the Joint Conference Committee hearing testified with respect to the transaction between Dealers and E & L and acknowledged that Dealers had and I quote, “absorbed a certain portion of E & L business.”

Absorbed a certain portion of E & L business which is the language using the contract clause, nor that Dealers at that time although now belatedly, a claim is made in the brief, protest that it had no advance knowledge of the union position or apparent change in position.

On the contrary, it made what was apparently a frank disclosure of all of the facts.

When the Committee decision came down from two or three days later after which I had complete notice of the union possession, it made no protest but immediately proceeded to book the Committee decision into effect.

Now the — the case then started.

The Dealers employees started to file a suit in the lower courts of Louisville, in which they claimed that they had relied on the union to present their grievance at the union that changes position.

Therefore, it deceits them that the decision of a joint Committee was planned and contrived, that the decision was arbitrary and capricious and in violation of the bargaining contract although the case actually was argued throughout mostly in the context of whether the decision is a violation of the contract.

It does smack in some areas, the pleading down in the decision of the court below that perhaps some arbitrary or capricious action but were satisfied that on the record, neither does the complaint plead an adequate cause of action nor was such cause of action be sustained by the record.

Now, I have perhaps taken too much time in the exposition of the facts but we do feel that these facts really are the operative facts and should dispose of the case on the decided law under the trilogy, under Riss, under cases dealing with the right of the collective bargaining agent to negotiate seniority problems and other problems based of that kind.

That aspect of the argument and as much as I’ve taken as much time as I have I will turn over to my associate Mr. Ratner.

Thank you.

Earl Warren:

Mr. Ratner.

Mozart G. Ratner:

May it please the Court, Mr. Chief Justice.

In our view, the question presented by this case is whether Section 301 encompasses individual claims to future work opportunities which the exclusive bargaining agent in the collective interest allocates to others.

This is one of the problems that was mooted in Westinghouse.

The Court said there, when the employee and the union are in disagreement, the question is not which may sue but rather the extent to which one may conclude the other.

Mozart G. Ratner:

Unless Section 301 is now to be held to have subordinated the collective interest to the individual interest in such matters as allocation of future job opportunities, the unit in which seniority is to be computed.

And the uses of seniority deserved.

The exclusive representative must be able to conclude the individual in all such manners to the extent that the collective interests predominance.

Then whenever there is a conflict or disagreement between the individual and the exclusive representative, Section 301 must respect the collective authority.

We start then with this Court’s recognition in Westinghouse that any federal substantive law collective bargaining contracts which may be developed must necessarily absorb the federal policy of supersedure of individual authority by collective authority when the majority selects an exclusive bargaining agent.

And of course we find this to be totally stated in the Lincoln Mills decision itself in which the parties are told but for the substantive federal law collective agreements is to be founded upon the National Labor Relations Act.

This Court said in Westinghouse that rights “which under state law are distributed among union members” become vested under federal law “in a legal entity recognized by federal law.”

Of course the rights so vested in the exclusive representative by those and only those in which the collective interest predominant.

The distinction between areas in which the collective interests predominate and those in which the individual interest predominate is drawn of course in Elgin, Joliet & Eastern versus Burley.

Burley distinguishes between individual grievances on one hand and matters within the realm of collective bargaining on the other.

The distinction is drawn in terms of whether the particular claim is monetary, whether it is fully vested, whether the remedy sought is wholly retroactive.

The individual seeks future status or prospective benefits so that the remedy and its negotiation will affect other members of the bargaining unit and future administration of the agreement his claim is not “uniquely personal” in the Westinghouse sentence and the collective interest predominant.

Mr. Justice Douglas suggested in Footnote 9 of Lincoln Mills decision, an analogy to the Railway Labor Act cases where the individual’s interest is deemed to predominate in a suit for damages for wrongful discharge, but the collective interest prevails where the individual seeks reinstatement.

Those cases rest on the view that reinstatement affects the course of future collective bargaining whereas an award of damages for wrongful discharge is not.

The legislative history of the 1947 Amendments to Section 9 (a) shows that Congress thought it was acting in accord with the Burley decision.

As we see it, this Court has always assumed that Section 301 embody the Section 9 (a) 8 (d) allocation of authority between collective and individual interest.

In its dissenting opinion in Westinghouse, Mr. Justice Douglas with whom Mr. Justice Black concord observed, in short, the union represents the interest of the community of employees in the collective bargaining agreement.

The wide range of its interest are envisaged by the Act would give the collective bargaining agency exclusive authority to bargain in respect to rates of pay, wages, hours of employment or other conditions of employment.

The range of its authority is the range of its interest.

In this context, we turn to Smith and Riss.

Smith, of course, was an action by an employee to collect wages in the form of damages.

That is of course the classic grievance in the Burley sentence.

In relation to such a suit, this Court held no more than that Section 301 does not exclude all suits brought by employees instead of union to vindicate individual employee rights arising from a collective bargaining contract.

Mr. Justice Black thought there should be no question at all about the power of an individual to sue or enforce such a claim for money damages for wrongful discharge.

Now Riss, it is true was a suit for reinstatement as well as for back pay.

But there the individual plaintiffs in the union were not in disagreement so that no question of allocation of authority under Section 9 (a) and 8 (d) could have been presented.

Moreover, on the assumption made by the Court in that case that the contract had been finally construed by the tribunal designated by the parties to construe it.

The case appeared to represent the equivalent of a suit by an individual to enforce rights vested in him by a final and binding arbitration award.

Riss, it seems to us stands for the proposition of the E & L petitioners here have a Section 301 right to enforce by suit the Joint Conference Committee award against Dealers.

In this sense, they have the right to enforce the benefits that they achieved under an arbitration award as they would under a Court decree.

Mozart G. Ratner:

But neither Riss nor Smith implied that a suit will lie under Section 301 to set aside an agreement arrived at through collective bargaining allocating prospective job opportunities on the basis of seniority to entertain such a suit would be to use Section 301 to defeat instead of to enhance collective bargaining in respect for collective agreements.

Ford Motor Company versus Huffman and there are (Inaudible)

Byron R. White:

(Inaudible) ought to be able to sue to set aside an arbitration award.

I mean, is that what you are arguing?

Mozart G. Ratner:

I am not arguing that, the duty to fair presentation if it were violated would provide the basis I believe pursuing satisfy an arbitration award.

Byron R. White:

There are some — there are some cases in which the individual may bring a 301 suit set aside.

Mozart G. Ratner:

I don’t think —

Byron R. White:

(Inaudible)

Mozart G. Ratner:

— set aside an arbitration award for breach of the duty of fair representation as a suit that lies under Section 301.

I think that’s a suit that lies under the duty — for violation of the duty of fair representation.

Byron R. White:

Well — well again then, are there any suits that the individual may bring under Section 301?

Mozart G. Ratner:

Not to set aside or to defeat the product of federally protected collective bargain.

Not to —

Byron R. White:

Because of —

Mozart G. Ratner:

— defeat it — not to frustrate it.

Byron R. White:

The difference there is it — wouldn’t you say it’s not a 301 suit rather than he wouldn’t have a standing with the right to sue.

Mozart G. Ratner:

That’s right.

In our view, Section 301, the scope of Section 301 is to be drawn in terms of its purpose.

The purpose of Section 301 is to promote collective bargaining and to enhance respect for agreements arrived at to the process of collective bargain.

Byron R. White:

But the employer pays the arbitrator to — or the union pays the arbitrator or somebody pays the arbitrator to come to a certain conclusion.

You don’t think that’s a breach of a contract?

Mozart G. Ratner:

I don’t think that’s a breach of any right of the individual has by virtue of the contract, no, I think that that maybe very well amount to a breach but its owed to him under the duty of fair representation.

I don’t think that breach has any right that he has a right to enforce under the contract.

At least his vindication of whatever right he has doesn’t stem from it.

It shouldn’t be predicated under Section 301.

Byron R. White:

No, for whatever reasons an arbitration award might be vulnerable, do you think that it’s never vulnerable under Section 301?

Mozart G. Ratner:

That’s right.

My view is that Section 301 has this limited —

Byron R. White:

Would be vulnerable under — under — in what kind of an action?

Mozart G. Ratner:

Well, it might be vulnerable if it’s brought in an action in the federal courts with violations of the union’s duty of fair representation and it seems to me that a consequence of violation (Voice Overlap) —

Byron R. White:

What if it’s the employer?

Mozart G. Ratner:

— it might be set aside the award.

Byron R. White:

What if the union is — what if the — its employer that’s involved, assume that the employers paid the arbitrators, what happen then?

Mozart G. Ratner:

Well if the employer has — either the union is involved in that adversity or it is not.

Byron R. White:

Well, let’s say it isn’t.

Mozart G. Ratner:

Then it seems to me that you have a question under the union standing to sue or to get redress and the employee acting against the union, it has powers to secure redress against the union, and the union certainly has power to (Inaudible) —

Byron R. White:

The — it is —

Mozart G. Ratner:

— to redress against the employer.

Byron R. White:

If the union isn’t involved at all, no claim is made, your attitude is the employee hasn’t — no standing at all because it’s the union who can take the action.

Mozart G. Ratner:

I think that we confuse the problem when we talk in terms of an arbitration award, Mr. Justice White.

Let’s take the —

Byron R. White:

Well, I thought —

Mozart G. Ratner:

— case —

Byron R. White:

— we’re talking about in this case (Inaudible)

Mozart G. Ratner:

Well I — I don’t see this case as involving an arbitration award.

I see this case as involving a product of federal — of collective bargaining.

There is no outsider here involved that makes this —

Byron R. White:

(Voice Overlap)

Mozart G. Ratner:

— before arbitration.

This isn’t purely justiciable.

Byron R. White:

We — we put aside one section of your brief, is that it?

Mozart G. Ratner:

Well, no, I hardly think that any section of my brief needs to put aside.

I — I’m with petitioner in Section — in Number 17.

I do not treat this as an arbitration rule.

I treat this as a product of the grievance procedure which is an indispensable part of the process of collective bargaining.

And I say that to use Section 301 to defeat a product of collective bargaining, which reflects the performance of the duty of fair representation is to pervert instead of effectuate the policy of Section 301.

And then I don’t think it’s what you want to do with Section 301.

It’s — this is — it’s an entirely different question.

He said, “What is it that an employee has a right to do against the union that doesn’t represent him fairly?”

And it’s another thing entirely to say, what rights under a collective agreement does the employee have a right to enforce?

Mozart G. Ratner:

What individual rights can be recognized?

I think that Burley answers the second and that Steel and Huffman answer the first.

But I do not that by next step can be taken and that step is that because individuals have a right to enforce claims which they derived under arbitration awards that it follows that they also have a right under 301, a suit to set aside arbitration awards they don’t like.

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

For myself, I have no doubt.

And for myself I have no doubt if there’s an adequate avenue in the federal courts available — at least in the federal court, maybe even more where the National Labor Relations Board which we don’t have to consider now.

But certainly, his avenue is not 301.

It’s not because he has a vested right under the collective agreement that he has a right and a state in going to courts to enforce.

That’s not the reason he has a cause of action.

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

Surely.

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

Right.

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

Correct.

The problem here is — is — is shaping the framework of federal laws of 301 doesn’t become a sword with which to annihilate the collective bargaining process.

It’s not a problem of giving individuals adequate recourse against fraud and deception and — and maltreatment on the part of bargaining agents to which there isn’t a scintilla of evidence in this case.

We say that Teamsters Union versus Oliver controls this case because collective bargaining is a governmental process.

And the resolution of conflicting interests among constituents is the federal function of the exclusive bargaining agent.

The decision of a joint Committee in this case whether you wish to call it an arbitration or not and I see no basis or justification, whatever for calling in an arbitration.

The decision of the joint Committee is simply a resolution of a dispute over interest which the parties decided to resolve through the grievance procedure.

And having resolved it through the grievance procedure, their decision, their resolution is the fruit of the exercise in Oliver terms of collective bargaining rights on the National Labor Relations Act.

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

Precisely the same.

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

Precisely the same.

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

Exactly so.

As a dispute involving interest, the resolution of interest in prospective in point, the classic collective bargaining in the Burley sentence.

We said that to envisage a right on the part of disgruntled or disaffected employees who are disadvantaged by that decision to attack it in the corners is to destroy that freedom of collective bargaining which is the essence of Congress’s policy and which is exactly what Oliver upheld.

Mozart G. Ratner:

The only difference between what Kentucky did in this case and what Ohio did in Oliver as we see it is that the Kentucky courts relied on a state statute — the Ohio courts relied on the state statute and the Kentucky courts relied upon common law notions, natural law notions that they devised themselves.

The case for the opposition that the seniority rights of Dealers’ employees are immune to the authority of the collective bargaining representative rest on either or both of two false premises.

One, that the bargaining unit is limited to Dealers’ employees because Dealers and Local 89 signed a separate copy of the master agreement.

And two, that seniority rights are irrevocable during the life of a collective agreement.

The short answer to the first point that’s been made by Mr. Previant, the answer to that is that under federal law, this is a multiemployer unit so that case is no different than it would be if the decline in job opportunities resulted from closing down one plant to one department of a single employers business.

Only yesterday, we found the recently published proceedings of the 16th annual meeting of the national academy of arbitrators published by BNA in 1963.

It carries an article and only the second article that I’ve been able to find directly in the law of literature, direct to the problem with merging seniority list.

It’s an article by President Thomas Kennedy entitled Merging Seniority Lists in this Labor Arbitration and the Industrial Change volume of the proceeding.

At Page 43, Professor Kahn, who had previously written the authoritative work in this field comments about the following work principle, which as you will recall Mr. Priddy invoked, to justifying it stand before the joint Committee and he says that it’s application — the application of that principle have followed the work comes at the outset to determine whether or not and if so, to what extent.

The employees of company A are entitled to share in the seniority rights of the employees in company B.

A clear statement on the part of the (Inaudible) reflects how usual and normal and customary and honorable and honest and normal the union’s position was when it found out finally when it broke through to the miasma and the fog and found out what the facts really were.

The —

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

Surely, it’s the — its Labor Arbitration and Industrial Change.

The Bureau of National Affairs’ publication in 1963, page one, I was quoting from page 43 of the volume.

The second argument that seniority rights are irrevocable during the light of a collective agreement, it is shortly answered with the observation that there are no individual rights created by a collective bargaining agreement which are immune to prospective modification by the bargaining agent, none.

The reason is, that collective bargaining is a continuous process and to hold the product of collect the bargaining, the contract gives rise to the irrevocable individual right terminates collective bargaining after its first performance the making of the contract and destroy all subsequent stages of process.

This Court it seems to me, would have to reverse a long line of cases to reach that.

Arthur J. Goldberg:

(Inaudible)

Mozart G. Ratner:

Exactly the same.

Totally indistinguishable, Mr. Justice Goldberg and the problem basically, in all of those cases, whether it’s a single plant case or a multi-plant case or two employers or six is with the fairness with which the collective bargaining agent is acting in the collective interest.

The real difficult, if there is, is to assure that the collective bargaining agent does not add hastily invidiously on arbitrary or irrational grounds prejudicially against the interest of one group and in the interest of another of its constituents but rather as, as best to concede within the Huffman scope of authority that it unquestionably has and must be to promote and effectuate the collective interest of all of its constituents which of course, at any given time, may react adversely to the momentary interest of some.

In fact, inevitably will as this point was self observed in the Huffman case when it said that the satisfaction of all who are represented is hardly to be expected.

May I reserve the balance of my time.

Earl Warren:

Mr. Brown.

John Y. Brown:

Mr. Chief Justice, may it please the Court.

I’m in the position today of the first appearance that I’ve ever made before this Court.

I’ve tried 38 years to get here and when I don’t want to come this year, twice you take me in, once one — well I did on the Anderson case, which you have and now, on this one that goes — it think the finding of the Kentucky Court of Appeals is based on simple justice and it ought not to be disturbed by this Court.

Now, if the Court please, I — if you’ll grant me this privilege, I would like to state my case and then any question that any of you want to ask.

William O. Douglas:

Could I ask what preliminary (Voice Overlap) —

John Y. Brown:

Yes, Mr. Justice Douglas?

William O. Douglas:

I was noticing that the — your court didn’t cite any of our opinions in this field.

It — it —

John Y. Brown:

Our court —

William O. Douglas:

It must have been aware —

John Y. Brown:

Well —

William O. Douglas:

— of the opinions.

John Y. Brown:

They cited an opinion that you had used and I think it was the Lucas Flour case, that’s the case against the Brick and Clay Workers in which —

William O. Douglas:

Was the — was the argument there pretty much like it is then here?

John Y. Brown:

In the Brick and Clay Workers?

William O. Douglas:

No, in the — in the — before the Court of Appeals.

John Y. Brown:

Their argument was pretty much like it is here made by Mr. Ralph Logan sitting over here.

I want to take the issue with the statement of my friend here from Milwaukee on his statement of facts.

To this extent, the record is presented to the Court of Appeals, the transcript of it showed beyond any doubt that the two representatives of the Union, one named A. D. Berry, misrepresented to these employees and dealers, will all demand the security that the other fellow, the president of the Local goes over and makes a speech to the — and shows in that record, to the E & L workers, tell them, find a job some other place because the contract provides — saved it for these men and dealers.

And if you read that contract, you will find out it says that, seniorities shall prevail at all times and they make one exception, that’s when a terminal closes down.

Now, this argument that they make here that — they balled out and Mr. Justice Goldberg, you asked the question, “What happened over at Lorain, Ohio?”

And here’s the distinction.

Over at Lorain, Ohio, E & L bought the terminal of Dealers.

Over at Louisville, Dealers didn’t buy a solitary thing, they had an auction sale and Dealers didn’t buy a thing.

And let me show you that that’s true.

When they hand down this decision in Detroit and they — in Detroit, in the heading of it, they give us their reasons because of the discontinuance of operation in Louisville for E & L Transport Company.

Now at that time, you didn’t know it was going to be in a lawsuit filed.

And you gave the true reason that the E & L was pulling out.

And that’s why, and I’ll tell you why they pulled out.Dealers came in 1955, a new organization.

Their men belonged in the union just like E & L.

The chief business was all the Ford products.

Ford doesn’t care anything — why they say there’s nothing in the record to show that.

You don’t have to have anything in the record.

You gentlemen wouldn’t be on the Court if you didn’t have intelligence enough to know that a hardheaded business concerned like Ford Motor Company, doesn’t care and think about the name of the company that they do business with.

They do it with the ones that do the best job.

John Y. Brown:

And Dealers’ employees got the job.

And here’s the condition — I’m glad you asked Mr. Justice Douglas.

It was argued before the Court of Appeals.

I want to tell you this answer in that argument.

My friend Ralph Logan has the floor and John Palmore who wrote that (Inaudible) — who wrote that opinion said, “Mr. Logan, if you win on this contention, court would prevent this situation from arising?

I’m a young, intelligent, aggressive employer, and I come in and hire me a bunch of young aggressive employees.

And you have a concern out in Washington, it goes out of business.

And your union files a complaint.

If we can’t look back at that complaint to see whether it’s right or wrong, what would keep those employees from out there from being sandwiched over here?

And Ralph — now Ralph said, “Well, I would see anything to it.”

Now, here is an equity in this situation.

This Court ought not to miss.

You’ve got a group of young employees who did such a fine job and used to the same union, you refer the fact that the union took them up to Detroit, (Inaudible) home, and paid their way.

They are paying the dues of — bring all this band of lawyers here all the way from Saint Louis, Detroit, Milwaukee, maybe Detroit sir, these — these men because of their very efficiency in their jobs find themselves in position whereby a union ruling, they lose their jobs.

The first week, 96 of them are displaced.

And it wasn’t until they came back here that they hired a lawyer.

And they — this is a matter of just — that you’d have to use your judgment on.

But, if the union hadn’t pulled them, they’d had a lawyer a long time before them.

And we’ve got a declaratory judgment back in our state and I noticed in — and the reason I was a little intrigued by the — the opinion in Textile Mills against Lincoln Mills is because my friend Bardon, who was a congressional sector when I was over there in the House.

Bardon says I want this to be a history, of this act.

And he goes down there and asked, “Could employees”, he didn’t say Mr. Justice White, can just the unions and can just employers?

Are they the only ones that have a right to a cause of action?

Now, there’d been two dissents that brought this thing up, yours Mr. Justice Black and yours Mr. Justice Douglas, recent dissent in which you — you say that the conventional method of writing a wrong ought not to be denied and that’s in substance to your example.

Ought not to be denied and you say Mr. Justice Douglas that the National Labor Relations Board is too far away in substance there.

And Mr. Justice Goldberg handled that almost as well as anybody else because I am not a stranger to this labor movement.

Phil Murray was the one that employed me in United Mine Workers and we never envisioned a day when a group of loyal hardworking employees could be put out of a job just because they are efficient and that is exactly what you’ve got in this case.

Now, our Court of Appeals — yes sir —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

That is right.

That’s exactly right.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

Yes sir, I will tell you exactly.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

There’s a fellow named Les A.D., Berry, and I wish some of you would ask me where he is right now.

But he is not confident to — for me to volunteer it, but he is the type of representation that they had.

And if you would read the newspapers, you can find it out and you will know that these men didn’t have prior representation.

He had repeated the conferences with and as early as the morning of a Detroit conference where they took these men’s job away from them.

He was still assuring them, you haven’t got a thing to worry about, read this section in the contract and he read it to them, why, you’re protected and —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

Sir?

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

That’s in the — the transcript before that — you asked me about the Court of Appeals, if that they had the entire transcript.

Now, the representatives of the Teamsters only put the portions in there that most — but Judge Palmore showed in his opinion that that’s the basis in reaching this conclusion.

As late as a few minutes before, they thought the union was representing them.

And then they’re told, “We’ve changed our minds”.

Now in the transcript, to show you that they’ve been fooling these men, the testimonies in the original transcript where Paul Priddy, told a representative of Dealers in Louisville, Kentucky at the time he filed this spurious grievance, that I know the thinking of Jimmy (Inaudible) and he wants these men sandwiched in but he didn’t left them know that.

You talked about fair representation?

He was sitting there as a member of that Committee and gallantly, he excused himself just as if this group here was the Committee and hear them saying, and one of you said, “Well, I changed my mind.

I’ll just step aside and make this thing fair and impartial.

I’ll argue the other side of the case through them.

Now that’s exactly what took place.

They had fooled these men up until the time they got right out the door and to say that three shop stewards who relied on their union to represent them — but we’re given an opportunity to say something, they couldn’t think anything to say.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

Brown is my name.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

Mr. Moore is the — yes sir.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

I do not dispute this that — that E & L bought out Dealers over in Ohio wherein bolt, locks, stock and barrel, the terminal and all.

They withdrew from law.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

That’s not in the record.

We contend it is not.

The Court of Appeals found that it was not.

They found justice, it says in on the phase of their agreements up there when they thought there would not be a lawsuit and this is because E & L is withdrawing.

Now, even though you had an absorption as they claim and our Court of Appeals found there was no absorption because it didn’t take over a single piece of equipment.

They simply made application for the rights when this company withdrew.

They don’t get anything unless the Interstate Commerce Commission gives them those rights.

Now I don’t know whether they got them in the mean time or whether they haven’t got it.

Our Court of Appeals in substance said that you cannot claim that these men had representations at that conference in Detroit when they’re lulled into security, when they’re fooled by their employ — by their union representatives and when they’re left standing there frivolous in the face of this Committee with no one could say anything in their behalf.

Now, (Inaudible) all about this when he filed the first — and incidentally Mr. Justice Goldberg, you will note that this is an unusual thing.

He skips the first step in grievance procedure.

The first step under that Section that they rely on says that they must take it up with the company.

They never did take it up to the company.

They jumped over the company and went up to Detroit and there they make their decision without considering any conference.

I — I’d like to pose you what for the time being may be considered as a hypothetical question.

If they are right on that quote, that when you buy out a company and you take over their employees, would this Court say that if this joint conference in Detroit should make this decision, an old company buys out a new one — now Mr. Justice Goldberg, I want you to listen to this, this I’ll state to the court is very important.

An old company buys out a new one in a locality, let’s say at Saint Louis and the new employees file a grievance and take it to Detroit and that conference Committee proves that the new employees have seniority over the old.

Would this Court say there’s no court you can go into and get relief?

If — if he it didn’t, we’d come to a sad state in this country where the individual doesn’t amount to anything and only the collective group is to be considered.

The old group has a seniority on the contract but the union that — Mr. Hoff’s (ph) union in Detroit rules that these new ones get the seniority over the old ones.

And the old ones already lost half a million dollars.

I’m not telling you any hypothetical case.

I just got thrown out of Court in Saint Louis with exactly that picture because there’s no relief in Court.

I don’t think we’ve reached that point whether there isn’t any relief in Court.

I think there is some relief in Court and I think —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

— this Court believes that.

Yes sir?

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

I know a situation with the man, the accused, its identically like that.

But we never —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

We never had any trouble there between the employer because we took the first step that you ought to take and that is take it with him.

But the union bypassed the person.

They never considered the employee.

They jumped directly to — to Detroit.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

Well, I do think this.

That unless this Court gives an aggrieved employee a right to look behind a contrivance where a union can deprive him of a job as they did in this.

That you have left the individual no —

Arthur J. Goldberg:

But was it (Inaudible) —

John Y. Brown:

— forum in which —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

I would say that you do —

Arthur J. Goldberg:

What would you say about that?

John Y. Brown:

I would say that you do not have the same situation as exists here because you got one employer and one group of employees and I would say there that the union procedure would govern that unless I don’t think the union by negotiation has any right to change the plain wording of a contract.

And as I told you, we had exactly that same problem but our mine workers got that covered.

It is said that seniorities stayed with the plan but this contract said exactly the same thing.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

That’s right.

This —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

Alright.

This contract says that — let me — rather — it says —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

Alright.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

Now wait just a minute.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

I wrote it down here.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

It says —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

My position is that when men make a contract, that they have got some right under that contract and not just a union and employer.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

That’s correct.

That he has a — he has a vested right in that contract.

And I was right — interested in reading the part of the McClellan Report there and the part of the legislation, of the last Congress, in which they required the unions to get each individual employee a copy of the contract which many of them were not doing.

Now there wasn’t any reason for giving a union man a copy of the contract if he hadn’t got a any patience to go over it and violate it.

When they violate that contract, there ought to be a court open forum.

And I think you have provided for that.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

Of course not.

There, you are raising a situation that deals with the economy or the economics of a particular locality.

And I’ve had exactly that over in the Kentucky Mountains where once an employer could not read his contract and I got together with all the men and we ironed it out by going back to work and let each days, wages to be allocated to pay our work.

But you — Mr. Justice Goldberg, you got — you got a different story here.

You —

Arthur J. Goldberg:

(Inaudible) — what is your position?

John Y. Brown:

Well my position is that these men have a right in their contract and that that is a right —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

— that cannot be taken away from them by a subterfuge of filing a grievance which does not exist and they lose out by being misrepresented by their union agents.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

Now that’s —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

That — that’s —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

And this misrepresentation of their union agents and in 1960 from — in the case of Clark versus Hein-Werner Corporation where the facts are very much like the facts in this case, court refused to take certiorari on that case and there the local court, that’s Wisconsin case, 94 362 U.S. 962, here’s what the lower court said.

In most situations where the union is performing its fiduciary duty of fair representation in an arbitration proceeding presents a question of fact.

However, where the interest of two groups of employees as here are diametrically opposed to the evidence and the union espouses the cause of one in the arbitration, it follows as a matter of law, that there has been no fair representation of the other group.

The old is that one cannot serve two masters is particularly applicable to such a situation.

And this Court refused to take certiorari on that.

Now, what I’d like to pose is this, when a union representative in Wisconsin can’t do that, shouldn’t the rep — the working people, the employees in Kentucky have the same break that the employees in Wisconsin had and you wouldn’t take that case because there the Court found that the union was trying to represent two diverging entries and you didn’t take that.

Now, here the union is representing, not represent one but being paid to represent two divergence but they can’t do that.

And it’s on that basis that our Court may be finding a fact that they didn’t have any representation there and our Court further made a finding of fact that there’s nothing involving the Labor Relations Act in — in this.

Here, we’ve got only an old labor dispute here.

Here we simply got an action to construe and enforce a contract under the plain provisions which the complaining employees as follows have certain rights opinion.

Now, our Court held that this was a matter of construction of a contract.

In your steel workers cases Mr. Justice Goldberg, you had a different situation.

You had no — none — no question in that about the union representatives not fairly looking after the interest of the ones they represent.

You do have it here.

It’s the whole backbone of this whole thing and on the case that I refer, I’ve used as a hypothetical situation.

I know of no court would want to establish a precedent that if an individual in this country is wrong, he hasn’t got a forum to go.

I have heard — and in the briefs, I read about what Congress thought.

Well I know a little about what the average Congressman thinks and no Congressman and no Senator in their right mind will create a situation where an individual can be wrong and not have any court to go to.

And if that’s circumstance is here, that you’ve got to go to the National Labor Relations Board, you can’t file an action in court.

I know that no sensible legislator would ever want to do a thing like that.

This is a pretty husky bunch of men that work for Dealers.

Every decision of our Court of Appeals except this one is on the other side but they let the loophole unless there is a capital injustice and I told them when they started that this thing is going to be hard to do because the Court’s decision in Kentucky are against you.

The Court of Appeals set a $50,000 bond for these men to get the injunction, to get their jobs back.

And the lower court ruled that that had to be in a case, shall all — they all offered to sign their homes so now it’s got the intakes.

And between Friday and Monday, they bring in the $50,000 cash and lay it on his desk and they got the 96 back to work.

Now, men ought to know.

I don’t — I can’t understand the statement of my opponent here that the individual has no rights under this.

I think an individual does have a right under it.

I think that the Labor Management Act meant for him to have a right.

I think it wouldn’t say you got to give him a copy of the contract.

John Y. Brown:

They didn’t expect him to know what he had and be able to rely on what he’s got.

And this is a — I don’t — I read my opponent’s brief here.

What I’m — it got a 128 cases in it, the other doesn’t have — he’s got about a hundred in there.

And I’m a country lawyer.

I’ve tried a murder case one day and an automobile accident case the next day or a will case the next day and I don’t know as much about labor laws as you but I know as much about this as they do.

I know as much about right or wrong and I know here is a situation where these people were being mistreated, these people who built business for Dealers.

And that mistreatment was already in effect until the Court of Appeals said that we will vary from our former judgments.

You can’t do a thing like this under the guise of a spurious grievance.

And this is a spurious grievance.

And their own report shows it before they knew there would be a lawsuit when they said it’s because of a withdrawal of E & L from Kentucky territory.

Earl Warren:

But Mr. Brown —

John Y. Brown:

I haven’t contested these lights and my time is all up and I was suppose to look at how — sir?

Earl Warren:

So, you got — you got the light.

You got a white light five minutes before —

John Y. Brown:

My trouble is, there wasn’t (Inaudible) Mr. Chief Justice and I’ll go ahead now.

Earl Warren:

Your time is not up.

John Y. Brown:

Sir?

Earl Warren:

Your time is not up.

But get a white light there five minutes before your time is up and a red light when your time is up.

John Y. Brown:

Well, you know I might be in the position, (Inaudible) the speaker who — the one who’s talking on that wall, he wasn’t looking at it.

And someone said, “Well, (Inaudible) there anyway.”

But, go ahead Mr. Justice White, you wanted to ask me a question.

Byron R. White:

(Inaudible)

John Y. Brown:

Sir?

Earl Warren:

Well, I’d like to —

John Y. Brown:

(Voice Overlap) —

Earl Warren:

I’d like to ask you one — I’d like to ask you one question.

John Y. Brown:

Okay, alright sir.

Earl Warren:

Did the — did either or both of the companies take a position in these proceeding on behalf of their employees?

John Y. Brown:

Neither of the companies took any position.

John Y. Brown:

Now that is in the record.

There is no position taken by either company.

But I think you’re entitled to know that on that Committee up at Detroit, nobody represents Dealers is on that Committee.

And nobody representing these men who are put out of their job was on them.

But the one who took the side of E & L withdrew from the Committee to make the argument.

And as I say, it just deal out — let one man withdraw from a jury and then go in the jury room and argue the case to the rest of them.

You’d have a fair chance of ever winning a case under those circumstances.

Now, Mr. Justice White, the —

Byron R. White:

If this was a merger situation, I suppose you would concede that the provision in the contract would — would apply?

John Y. Brown:

Mr. Justice White, if it had been a merger situation out of the older men, you’d have to buy it because of the merger.

Byron R. White:

Alright now, whom — who do you suppose has the duty of deciding when it is a merger or not?

John Y. Brown:

I think the Court does.

I think the Court — now that’s why I told you —

Byron R. White:

You don’t think the — you don’t think this joint — this joint Committee has the — has the authority under the contract to decide to what situation Section 7 applies?

John Y. Brown:

I do not.

I think they have got to decide in accordance — well now, that’s the white light, is that the end of it?

Earl Warren:

No, you have five —

John Y. Brown:

Five —

Earl Warren:

— minutes more.

John Y. Brown:

Yes.

Byron R. White:

You got five minutes.

John Y. Brown:

Well, I — I think they’ve got to decide within the meaning of the contract.

I asked you a minute ago —

Byron R. White:

So they had the initial authority to decide.

But do you think, your court can second guess them their construction of the contract?

John Y. Brown:

Well I think if they make a perfect ridiculous construction —

Byron R. White:

And you could just —

John Y. Brown:

— that a Court can stop it.

Byron R. White:

And you think this one works.

John Y. Brown:

I think it is a perfect — just like in Saint Louis, they ran this new man, the oldest man on this new company is younger in employment than the youngest man in the old company.

Byron R. White:

Well, it seems like —

John Y. Brown:

But the Detroit committed gives the young ones seniority over he old.

Byron R. White:

Well, if they —

John Y. Brown:

I say that’s something the court ought to correct.

Byron R. White:

Essentially, what the joint Committee did was, say, I suppose that this is the — this is a type of an amalgamation or of an absorption to which this provision applies.

And the — that’s then the contract means this and therefore the seniority — there’s got to be — have to be phased in with one another.

John Y. Brown:

Asuuming —

Byron R. White:

Now —

John Y. Brown:

That the —

Byron R. White:

That’s what they said, isn’t it?

John Y. Brown:

That’s right.

But now (Voice Overlap) —

Byron R. White:

Do you say this was the — this was a — this is ridiculous that the court ought to —

John Y. Brown:

What would be wrong with them dealing fairly with their employees and telling them to begin with?

They didn’t learn anything from Detroit (Voice Overlap) —

Byron R. White:

Well, this is another —

John Y. Brown:

— the record shows that — that Paul Priddy told the company representative down at Louisville, that’s what he’s going to —

Byron R. White:

Well then let me ask you this then.

John Y. Brown:

Yes sir.

Byron R. White:

Assuming that there had been fair — in your mind, fair representation of both groups of employees before the Committee, the joint Committee.

And the joint Committee had come to absolutely the same conclusion?

John Y. Brown:

Mr. Justice White, this question —

Byron R. White:

Would you still be here?

John Y. Brown:

I — if I thought that they had — had fair representation and that they had come to a conclusion and according with the contract.

Byron R. White:

Well, I know but that’s another — but sort of a —

John Y. Brown:

Only a court can decide that.

Now, I don’t — I don’t —

Byron R. White:

So you would still be here even —

John Y. Brown:

I would still be here if they’ve handed down a ruling that conflicts with that contract.

You said in the Steel Worker cases that they don’t see this arbitrator to dispense their grant of industrial justice.

John Y. Brown:

They sit to interpret that contract in the language of the contract.

And that language of that contract says there’s only one exception to seniority rules.

And that is where a terminal closes, they can come in and take their place at the part of the —

Byron R. White:

So even though a contract — a contract says that if a particular board or Committee is to have to authority to interpret the contract and that both parties agreed that their decision would be final, the court could nevertheless second guess them.

John Y. Brown:

I wish I had time —

Byron R. White:

On the interpretation.

John Y. Brown:

I wish had time to read you a few lines out in the McClellan Report because they found that in many times these big companies got together with the Teamsters Union and did things that injured the employees and when the situational aspect that arises, the court ought to — you ought to have your —

Byron R. White:

(Inaudible)

John Y. Brown:

— day in court.

Byron R. White:

Well, I — I would — I couldn’t agree more with you when somebody makes —

John Y. Brown:

Well, I thought —

Byron R. White:

— an allegation like that in a — in a complaint that there has been collusion or something but who is — who —

John Y. Brown:

I did make the allegation in the complaint as strong as a — and you have (Voice Overlap) —

Byron R. White:

What kind of collusion is that in here?

John Y. Brown:

That — well, that will be, they conclude — that’s where the sweetheart contracts come from.When you’ve got — they know about sweetheart contracts.

And when you got a collusion between the employer, the injured employee ought to have a court he can go to.

We had a court, is one — the Court of Appeals of Kentucky.

They gave us relief that I think is sound and if the logic (Inaudible) it sounds like.

Byron R. White:

It was — nothing in this record.

There’s no allegation of any collusion if any.

John Y. Brown:

No, no.

Only — the allegations are that they were misrepresented by the union —

Byron R. White:

Well, that’s a —

John Y. Brown:

— and that the — then there’s the allegation that the —

Byron R. White:

(Voice Overlap) —

John Y. Brown:

— that defining isn’t contrary to the —

Byron R. White:

That’s (Voice Overlap) —

John Y. Brown:

No, there’s no law.

No — no allegation that there’s any collusion between the employer because I don’t think there was.

I think that is a matter as the employer said in there letters to the discharged employees, because of your unions.

Byron R. White:

But if they — if both factions had had fair representation, you’d still contend that the — the court should —

John Y. Brown:

I —

Byron R. White:

— should supervise the —

John Y. Brown:

I — look, I still think that you haven’t had fair representation if the deciding authority says that black is white and the contract says its black.

I know then you haven’t had fair — I don’t care what they say and what they protest.

And I would still say that if they make a finding that’s against the direct terms of that contract, that a court ought to review it.

Byron R. White:

Of you are — your arguments about the fairness of this Dealers employees would be the same if there had been merger, a good energetic group of young employees get — because they have been successful yet lose their job.

John Y. Brown:

No, I don’t think the argument would because I don’t think — then you could — I don’t think you could make the same argument there.

Byron R. White:

Well, I know you —

John Y. Brown:

I think —

Byron R. White:

But if the effect on them would be the same?

John Y. Brown:

Oh, yes if they borrowed out an whole company, that’s true.

But you’re gonna have to rely on the company having some sense in that matter and that they’re not going to lose the aggressive employees.

I gave you the other illustration because this same agency completely disregarded the contract in running young men overall and the old men now have no court that they can go to.

And I’m simply saying to you that they ought to have a court and I’d like to say that this to me is very much like the situation that the age wide of a great king was then when he had deserted her after she had devoted her life to him.

And her parting on the map was that in this world, justice is a name and not a fact.

These men had been loyal members of Teamsters Union and they find themselves displaced by misrepresentation of those they thought ought to represent — represent them and they are searching for a spot where the wrong can be righted.

Thank you very much Mr. Chief Justice.

Earl Warren:

Mr. Fowler.

Newell N. Fowler:

Mr. Chief Justice and Honorable members of the Court.

I represent Dealers Transports who is the innocent third party in this dispute between members of one local union.

The question presented so far as we’re concerned is what would be our rights under the interpretation of this contract.

It is quite true that the grievance was presented by the E & L employees to a business agent of the local who in turn took the dispute up with the — at the local level in Louisville.

The matter was deadlocked and referred to the central Committee in Detroit.

There had been ramblings and of course, we took no position as to what we should do about it.

After the decision of the joint councilor who came down, we complied our way in the process of complying with the decision.

And shortly up to that time, the injunction suit was filed.

We took the position there that we would not take one side or another that we would first obey the decision or follow the decision of the joint national counsel and of course with necessity we must obey the injunction of the state court.

Earl Warren:

Mr. Fowler, I understood Mr. Brown to say that you didn’t have that proceeding, the original proceeding that it would just bypass, they didn’t even consult your company that they —

Newell N. Fowler:

Well, I —

Earl Warren:

— that they went to — directly to Detroit.

Now, which is the fact?

Newell N. Fowler:

I think that there was an agreement at the local level Mr. Chief Justice to — to deadlock —

Earl Warren:

Is that in the record?

Newell N. Fowler:

— the disagreement.

Yes sir.

So that it would be referred to the Detroit Central Committee.

Earl Warren:

I see.

William J. Brennan, Jr.:

(Inaudible)

Newell N. Fowler:

The representatives of the union and the representatives of the management —

William J. Brennan, Jr.:

Of Dealers.

Newell N. Fowler:

Of the Dealers, that’s right, that’s right.

So there was an agreement to deadlock.

William J. Brennan, Jr.:

(Inaudible)

Newell N. Fowler:

Yes, sir.

Now, I think that in effect, Mr. Justice Brennan, that was — the first step was bypassed.

I don’t think there’s any —

William J. Brennan, Jr.:

(Inaudible)

Newell N. Fowler:

Was bypassed.

William J. Brennan, Jr.:

(Inaudible)

Newell N. Fowler:

Except for the point of saying this to deadlock this and referred to the Detroit Committee.

Hugo L. Black:

Without any hearing of any kind.

Newell N. Fowler:

That’s right.

Hugo L. Black:

(Voice Overlap) —

Newell N. Fowler:

In other words, (Inaudible) based on balls, that’s about what it amounted to.

Hugo L. Black:

What was the (Inaudible)

Newell N. Fowler:

Apparently, there was an understanding and I’m not sure but I’m pretty — pretty sure it was in — and that the record will so reflect that they took the position and it was the matter that the central Committee should determine because of the complexity of the question of sandwiching.

Hugo L. Black:

Well the complaint seems to alleged that that was because the union deceived the workman and the Court seems to have found it, did it not?

Newell N. Fowler:

Yes, sir.

Hugo L. Black:

That there — that there was a scheme and contrivance, the complaint alleged.

Newell N. Fowler:

That’s right.

Hugo L. Black:

You mean the union and the others, deceived the workers and they put up this sham agreement that the deadlock —

Newell N. Fowler:

Yes.

Hugo L. Black:

And if that caused you to go up to the head phase —

Newell N. Fowler:

Yes.

Hugo L. Black:

And then if the union president who had deceived the worker went up and the representative decided against the workers before the board —

Newell N. Fowler:

That’s right.

Hugo L. Black:

— was drawing for the board.

Newell N. Fowler:

That’s right.

Hugo L. Black:

And that seems to be what the court found.

Newell N. Fowler:

That’s right.

Hugo L. Black:

What is your —

Newell N. Fowler:

Now, I think —

Hugo L. Black:

— position?

What is your position about the effect that deception in connection with this lawsuit?

Newell N. Fowler:

Well, the effect of that deception was something that we were not parties to.

I hope that we were not.

I think the deception was strictly between the business representative of the union and the employee members of the union.

Hugo L. Black:

Well, the position — the allegation seems to be that there were — they bypassed the regular jury —

Newell N. Fowler:

Yes.

Hugo L. Black:

— in order to deceive the workers, and one of them went through a sham meeting before the Detroit Board,

Newell N. Fowler:

Yes sir.

Hugo L. Black:

Where according to plan, it was decided against the workers and the union had told, would be decided when he had thought it would be decided in their favor, is that — is that what was alleged in Truman decided?

Newell N. Fowler:

That is the findings of the court, Mr —

Hugo L. Black:

What —

Newell N. Fowler:

— Justice Black.

Hugo L. Black:

If that is true, what in your judgment is the proper remedy to be — to avoid the — to defeat any such of a judgment reached to fraud and cheating and contrivance?

Newell N. Fowler:

Well, in the first place, Mr. Justice Black, there was no findings that Dealers was any party to any such fraud.

Hugo L. Black:

Well, I’m — I’m talking about the workers now, not Dealers.

Newell N. Fowler:

Oh, the — the question there as it appears to me in response to your answer is I feel and feel strongly that any employee member of the union has a right to present his grievances and that was the dictation as far as we could go.

Newell N. Fowler:

Our position that is so far as neutrality is concern.

Hugo L. Black:

Well, but if it goes to a grievance Committee which is in reality not a grievance Committee but a contrivance which is not impartial brought about by the union deceiving the workers, what is their remedy?

Newell N. Fowler:

Well, I think that the union certainly owed a responsibility to the Dealers’ employees if they saw that there was a dispute that they should have deadlocked the national Committee and made the — have the thing go to arbitration.

It looks to me like that that would have been the fair and equitable thing to do.

Hugo L. Black:

What is the remedy if that was not done and the workers have been deprived of their right by chicanery and fraud on the part of the union —

Newell N. Fowler:

Alright.

Hugo L. Black:

— through a sup — suppose been found through the grievance provision which is not as — really a compliance at all?

Newell N. Fowler:

Well, I think —

Hugo L. Black:

(Inaudible)

Newell N. Fowler:

In the first place, the question of the construction of that section — Article 4, Section 5 is one of doubtful validity.

The equitable thing to do — to have done would have been to have a third party arbitrate or appointed under Section — Article 7, Section 2 of the contract.

And let a third party arbitrator rule one whether or not this was a merger or a consolidation of businesses.

In my mind there was such time, a series of doubt right now as to whether this constituted a merger or a consolidation of business.

Hugo L. Black:

Well suppose — suppose that the board, it decided it was — was a merger.

Suppose the charges made and the court will find that the board that decided this was a merger was set up through fraud and chicanery against the workers.

What is the remedy of the workers?

Newell N. Fowler:

Well I don’t think there would be a remedy if the court felt — held that there was a merger.

Then under Article —

Hugo L. Black:

(Voice Overlap) the court held, suppose the board held?

Newell N. Fowler:

Well I didn’t think — I don’t think there would —

Hugo L. Black:

(Voice Overlap) —

Newell N. Fowler:

— be a remedy, no sir.

Hugo L. Black:

You don’t think what?

Newell N. Fowler:

I don’t see how there could be a remedy if the — if a board or a third party arbitrator decided —

Hugo L. Black:

(Voice Overlap) the allegations it is that while this board did make that finding and did so interpret the contract that this was a result of fraud on the part of the union, it really was not a bona fide finding at all by a bona fide board because the result, there was conspiracy.

Is that what the court found?

Newell N. Fowler:

That’s my recollection and also the court held.

Hugo L. Black:

Well, if that’s the case, what’s the remedy of the worker?

Newell N. Fowler:

I don’t know.

That’s a problem.

Earl Warren:

Well, Mr. Fowler.

Newell N. Fowler:

Yes.

Earl Warren:

Mr. Fowler did you — was there any grievance between your company and your employees?

Newell N. Fowler:

No sir.

No — no grievance was filed as the record shows.

Earl Warren:

Well then what was the provocation for having the hearing?

Newell N. Fowler:

Well, that was the grievance of the E & L employees who sought to have the seniority lists of the two companies, telescoped or sandwiched in as its known in collective bargaining.

Earl Warren:

Well, you had an organization there.

You had some employees who were — who were affected, were you a party to that grievance?

Newell N. Fowler:

No sir.

Earl Warren:

Your company wasn’t?

Newell N. Fowler:

I wouldn’t — now let me correct that.

The company was involved, of course.

Earl Warren:

Involved in what?

Newell N. Fowler:

Was involved as party to the grievance.

Earl Warren:

To the grievance.

Newell N. Fowler:

That’s right.

Earl Warren:

Yes.

Newell N. Fowler:

Now, if the — if the company had knowledge that these E & L — that the Dealers were insisting that this provision was unlawful, I think something should have been paid — done about it but that was handled at the local level and not at the headquarters level in Memphis Dealers.

Earl Warren:

We don’t — that — that seems to me doesn’t dispose of it.

If your company had a grievance with your — were parties to the grievance with your employees and there was a grievance procedure provided for in the contract —

Newell N. Fowler:

That’s right.

Earl Warren:

— why didn’t you go through with it and have a hearing so that they could have — made manifest what their — what their grievance was.

Newell N. Fowler:

In other words, they had —

Earl Warren:

Why did you — didn’t just say, “Well, we’ll deadlock this thing and settle it up to Detroit”?

Newell N. Fowler:

Well, Mr. Justice — Chief Justice Warren, that should have been done but hindsight is always burdened foresight and the matter did not come to our attention until after the decision in Detroit.

William J. Brennan, Jr.:

(Inaudible) — this joint board in Detroit includes employer representatives, doesn’t it?

Newell N. Fowler:

Yes sir.

William J. Brennan, Jr.:

And they were speaking for you as an employer, members (Inaudible).

Newell N. Fowler:

That’s right.

William J. Brennan, Jr.:

And you knew nothing whatever that was going on or the position that the employer representatives were taking?

Newell N. Fowler:

I knew nothing of it Mr. Justice —

William J. Brennan, Jr.:

Well, I’m —

Newell N. Fowler:

— Brennan.

William J. Brennan, Jr.:

I’m not speaking of you personally —

Newell N. Fowler:

Insofar as the company is concerned, I am quite sure that no one in the main office in Memphis knew anything about it —

Byron R. White:

Could you (Voice Overlap) —

Newell N. Fowler:

— until —

Byron R. White:

— the representative of the merge Committee.

Newell N. Fowler:

Sir?

Byron R. White:

You don’t have a representative on the joint Committee?

Newell N. Fowler:

We had a representative who rep — at the nation level, yes sir, we did.

Arthur J. Goldberg:

(Inaudible) and if you correct me if my recollection is wrong.

This doesn’t — this contract had not (Inaudible) was it not?

Newell N. Fowler:

That’s right, yes sir.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

That’s right.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

That’s right.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

That’s right.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

That’s right.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

I think that is correct Mr. Justice Goldberg.

And this is rather peculiar in a strict type of a grievance procedure which is basically different from so many of the others.

The first step as I understand it, the employee member, a union member files his grievance with his business agent.

The business agent takes it up and then if they can’t agree, it goes to a joint Committee, I call it the Louisville some —

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

— Kentucky something, whatever it is.

Then if they had deadlocked, it goes to the central Committee in Detroit.

Arthur J. Goldberg:

In Detroit.

Newell N. Fowler:

That’s right.

Now, if they are deadlocked there, they’ve got to submit to arbitration.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

I think it’s —

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

I think that — alright, and the — all the rules of that would be a (Inaudible) conduct.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

That’s right.

Because if you had two conflicting groups of employees, they should have been heard and they should have been given an opportunity to be heard whether they’re right or wrong.

I can’t say.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

Yes sir, with a little bit — a little addition.

Arthur J. Goldberg:

And then he goes on (Inaudible)

Newell N. Fowler:

That’s right

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

That was his testimony, yes sir.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

I don’t think in a series dispute — a dispute, Mr. Justice Goldberg, except for the interpretations in the industry as to the meaning of all of these things.

Now, the fascinating thing about it is basically what happened was that Ford Motor Company told Dealers and E & L in Louisville that were was not enough business for two transport companies out of Louisville.

And one of them would have to get out or Dealers was obviously far more efficient.

So Dealers sold its terminal at Lorain, Ohio where there’s another Ford plant.

And sold the equipment, trucks, trailers, everything, just at Lorain then E & L was out of business in Louisville.

They had some secondary runs out of Louisville.

Lorain had no market value except probably for bookkeeping purposes, the cost of getting them transferred on the application, they were pretty much up for grabs to anybody that could justify — could get them but we paid E & L for the cost of the transfer and those over and that was the only consideration.

Newell N. Fowler:

So the thing that fascinates me and has from the beginning on this thing is, is this a merger or a consolidation or a transfer of what or an absorption of business?

We didn’t absorb anything.

We took business that E & L had been given to Ford.

I mean, Ford had been giving to E & L but we had that already.

The only difference was we got more business from Ford.

We didn’t get anything from E & L.

Earl Warren:

Didn’t you — didn’t you get some rights from some other places?

I thought you traded rights.

Newell N. Fowler:

It wasn’t necessarily a trade, Mr. Justice Warren —

Earl Warren:

What was —

Newell N. Fowler:

— it was a purchase of the secondary runs out of Louisville into, I believe Memphis, Jackson, Mississippi, Shreveport, and New Orleans.

That was the secondary runs.

Earl Warren:

You say you would purchase that —

Newell N. Fowler:

(Voice Overlap) —

Earl Warren:

Do you purchase that?

Newell N. Fowler:

Yes we did.

But as I say they purchase the — the value — they have no value, you can’t buy a — buy a run from the Interstate Commerce Commission.

You’d pay the transfer, the legal expenses, all other — those things, the transfer (Voice Overlap) —

Earl Warren:

Well as I under — as I gathered from reading the — reading the briefs of — E & L gave — gave up their business to — at this particular place at Louisville, would —

Newell N. Fowler:

Yes.

Earl Warren:

— their business with the Ford plant and your company gave up its business in some other place that — where they would be the beneficiaries —

Newell N. Fowler:

That’s right.

Earl Warren:

— of your abandonment of it and —

Newell N. Fowler:

That’s right.

Earl Warren:

— that — that will — wasn’t that a —

Newell N. Fowler:

That’s right.

Earl Warren:

Wasn’t that a trade?

Newell N. Fowler:

That’s right.

Now, its —

Earl Warren:

Is that a sort of a trade?

Newell N. Fowler:

It’s a — it’s a fascinating question, that’s a trade.

No, we’re not arguing that.

It’s a trade but its fascinating whether under the construction of this provision in the contract under Article 4, Subsection 5 whether or not this is a merger consolidation or an absorption of business.

It requires some construction and for that reason I have the feeling it would have been better if they had said, “Well, we will let an arbitrator settle a dispute.”

Earl Warren:

The thing that I was wondering about was, here you have some employees in — in Louisville who are working for you and — and because of this change in the way of doing business, the question arises as to — as to whether your own people are to remain in your employer or whether you’re going to have let them go and take someone from the outside.

Yet you showed no interest at all in the proceeding which determined whether your own employees were to remain with you or not, that — what is the explanation for that?

Newell N. Fowler:

The explanation for it was and I’m quite sure it is that our local terminal manager in Louisville and our personnel manager thought that this sandwiching bill provision would apply.

Earl Warren:

That what?

Newell N. Fowler:

I thought — they thought sincerely that this sandwiching arrangement would apply where E & L had gone out of business and the employees were there.

I think they believe sincerely that they were following the provisions of the contract.

Earl Warren:

Did they know that — did they know that your own employees were of the contrary opinion?

Newell N. Fowler:

I don’t know that and I don’t know if the record reflects it very clearly.

But we heard it with a bang when the injunctions have been filed.

William J. Brennan, Jr.:

Mr. Fowler, is the state court record of evidence filed here with us, it’s not in the print.

Newell N. Fowler:

I’m quite sure it is.

I can ask — I’m sure the entire record came up from the state court, yes sir.

And I would certainly invite the Court if they can, to read the whole record.

Well, I’ll leave the Court (Inaudible).

Earl Warren:

I beg your pardon?

Newell N. Fowler:

I say I have nothing further to add in this —

Earl Warren:

(Voice Overlap) —

Newell N. Fowler:

Thank you very much.

Earl Warren:

We’ll recess now.

(Inaudible)

Newell N. Fowler:

Mr. Chief Justice, I have just one observation to make in response to the question asked by Mr. Justice Goldberg as to whether or not the first step in grievance procedure had been bypassed and thus I recall I stated it had not but I see that I’m in error because Section 2 of Article 7 of the contract provides disputes shall first to be taken up between the employer and the local union involved.

Now the Court of Appeals found that this first step had been bypassed by the union.

That’s a finding of fact.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

Sir?

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

That’s right, yes sir.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

Well, so far as I know and so far as the record reflects, I’ve been able to determine at the recess, nothing happened.

There were just no grievance filed with the employer.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

I’m quite sure they did, yes.

I’m quite sure they did.

Potter Stewart:

Something must have — must have initiated this proceeding.

Something must have triggered it.

What did?

There must have been a grievance filed.

Newell N. Fowler:

Well, the grievance, Mr. Justice Stewart was filed by employees of the E & L with the local union.

And that grievance was presented to the local joint committee where it was deadlocked.

And under the terms of the contact in the record I’m sure it’s quite clear now that the first step was not observed that they did not take it up with the employer.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

Yes, anytime.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

That’s right.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

Yes, it’s —

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

Well, by — the first step was not followed —

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

— Mr. Justice Goldberg.

But by agreement obviously the joint board of the local level agreed to deadlock it and refer it to the national board.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

I don’t think so, no sir.

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

That’s right.

As a matter of fact I think the men we’re objecting violently but our local management where the opinion that this sandwiching rule would apply on this type of situation and did nothing about it, and I think that’s unfortunately the fact.

Newell N. Fowler:

And quite frankly, I don’t like it.

John Y. Brown:

(Inaudible)

Arthur J. Goldberg:

(Inaudible)

Newell N. Fowler:

May — I have no objection —

John Y. Brown:

Want —

Newell N. Fowler:

Mr. Chief — Mr. Chief Justice.

John Y. Brown:

I want to point out that here is the importance of missing that first step.

That first step is the yard Committee of the Dealers employees and when they left them completely out of the picture, they had no way of knowing what was going on.

That’s why they left the first step out.

So these Dealers employees would have no information on it.

They jump on to the next step and from there on to Detroit while they (Inaudible) — that’s why this is an important thing that they missed the first step.

William J. Brennan, Jr.:

(Inaudible)

John Y. Brown:

Because that’s the step where they would have informed the Dealers of what’s going on.

William J. Brennan, Jr.:

(Inaudible)

John Y. Brown:

Yes but the way —

William J. Brennan, Jr.:

(Inaudible)

John Y. Brown:

— their procedure —

William J. Brennan, Jr.:

(Inaudible)

John Y. Brown:

I don’t think they could.

That’s what I’ve been trying to tell the court this morning that I don’t — I think you’ve got to have a grievance with your own employee.

I don’t think you can jump off somewhere and pick out a concern in Colorado and say, “I — I’m going to take your job and file a grievance and have the union decide if you get the job.”

I don’t believe that can be done.

William J. Brennan, Jr.:

(Inaudible)

John Y. Brown:

Sir?

William J. Brennan, Jr.:

(Inaudible)

John Y. Brown:

Well if the local union wanted to present this matter, the yard Committee of the Dealers employees and the employer would be the one to take it up with.

That way the Dealers own employees would know what they’re doing.

But they left them out.

So that step which is the initial step that there is a comment on them to follow up.

William J. Brennan, Jr.:

(Inaudible)

John Y. Brown:

Well, I say that’s what the contract caused when that’s what they didn’t do.

Byron R. White:

(Inaudible)

John Y. Brown:

Wouldn’t have gotten any further.

It —

Byron R. White:

(Inaudible)

John Y. Brown:

It’s only when they don’t settle that it gets there.

That’s why I was telling Mr. Justice Goldberg —

Byron R. White:

(Inaudible)

John Y. Brown:

— that in the miners, we never got passed that portion, we settled it because they’d (Inaudible) his own employees can settle these things.

But there, his own employees weren’t even considered.

The first step which would’ve required the yard Committee to meet with the employer was omitted and left out this procedure altogether.

And I think it’s a pertinent thing that they missed that first step.

I think it’s part of the pattern of the union leaders fooling these men.

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

And if they did — the first step in that is for the — what they called the yard Committee which will be the Dealers employees.

The yard Committee takes it up with the conference and that’s your first step and if they had taken that step the problem there wouldn’t have gone any further because —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

I’m asking Your Honor to note that you always going to have lots of complains (Voice Overlap) —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

The point —

Arthur J. Goldberg:

(Inaudible)

John Y. Brown:

— points they raise is decided and you don’t have lots of complaints but I’m — certainly the same but this is a part — part of the fooling process of these Dealers employees (Inaudible) security gone, they’re alright.

We don’t need to bother with that.

Earl Warren:

(Inaudible)

Attorney:

May it please the Court.

As I understand it, the assertion that the union misrepresented the situation in defiance to the Dealers employees is based on the assertion that Mr. A.D., Berry and Mr. Priddy told the employees that the rider to the Dealers’ contract would insulate them absolutely against this grievance.

Now there is not one word, not one scintilla in this record or in the typewritten transcript which supports that statement.

What the record shows is that what A.D., Berry and Priddy relied on was the absence of a merger or absorption and that they so stated to the employee.

(Inaudible)

Attorney:

No Your Honor, the first sentence of paragraph A of Section 2 on page 11 of the record —

(Inaudible)

Attorney:

Yes.

It says that dispute shall first be taken up between the employer and the local union involved.

It doesn’t say that grievance has had to be filed.

It says that disputes.

Now whether the term disputes does or does not include disputes arising over Section 5 —

William J. Brennan, Jr.:

(Inaudible)

Attorney:

Right.

William J. Brennan, Jr.:

(Inaudible)

Attorney:

Well, I wouldn’t put in the terms of supported, he thought that on the facts available to him, the grievance probably would be denied.

William J. Brennan, Jr.:

(Inaudible)

Attorney:

Certainly not.

William J. Brennan, Jr.:

(Inaudible)

Attorney:

Correct.

William J. Brennan, Jr.:

(Inaudible)

Attorney:

You mean to the joint local Committee?

Well it — all the union decided that the grievance was one that’s entertainable under this contract.

It involved — interpret —

William J. Brennan, Jr.:

(Inaudible)

Attorney:

Correct.

William J. Brennan, Jr.:

(Inaudible)

Attorney:

Correct.

William J. Brennan, Jr.:

(Inaudible)

Attorney:

That’s right.

Byron R. White:

(Inaudible)

Attorney:

You now had a — had a quarrel, had a dispute with the Dealers.

They claimed with Dealers.

They claimed that they had a right to be employed by Dealers, to sandwich in on Dealers’ seniorities.

William J. Brennan, Jr.:

(Inaudible)

Attorney:

How does it become a grievance between E & L employees and Dealers?

Attorney:

Well the same way employees is not limited to the employees of any employer under the National Labor Relations Act and it isn’t limited to the employees of any particular employer under this agreement anymore.

Obviously, when there is a clause in the contract that says in the event the employer absorbs the business of another private contract carrier, the seniority of the employees affected shall be determined by mutual agreement between the employer and the unions involved.

That kind of a clause, it simply got to contemplate the existence of a dispute between employees of an employer other than their own and the employee and the absorbing employer.

Now in that kind of a situation you may or may not under certain circumstances have a question if it’s timely and properly raised as to whether the first step in that kind of a grievance procedure required the filing of a grievance by the employees of the — of the company that’s being put out of business against the company that’s doing the absorption maybe or maybe not but that certainly was not raised in this case.

William J. Brennan, Jr.:

(Inaudible)

Attorney:

Quite wrong.

The —

William J. Brennan, Jr.:

(Inaudible)

Attorney:

Quite wrong.

Section D of — on the record, page 12, says specifically that all matters, all pertaining to the interpretation of any provision interpretation of any provision of disagreements whether requested by the employer or the union must be submitted to the full Committee of the automobile transports as joint conference Committee if this is a matter, pertaining to the interpretation of Section 5 and if it isn’t that then I — then I don’t know what this case is about.

Byron R. White:

(Inaudible)

Attorney:

Surely.

But if the question is it’s obvious that the union requested it.

It’s also obvious from this record in fact it’s not only obvious it’s stated in haec verba at Page 55, that the em — local Committee which represents the employers, all the employers including Dealers and E & L signed the grievance and specifically requested that it be submitted to the final top step.

Byron R. White:

(Inaudible)

Attorney:

That is correct because the province and the record states it specifically under this contract, the province of interpreting it is exclusively lodged, if the question is one of the interpretation lodged exclusively in the top authority, the joint conference Committee.

That’s why it would have made no difference and have done them no good to hold a hearing in the first and second steps.

Byron R. White:

(Inaudible)

Attorney:

Alright.

Not as I read the contract, Mr. Justice White.

Byron R. White:

(Inaudible)

Attorney:

Well, the —

Byron R. White:

(Inaudible)

Attorney:

Well let me suggest this.

The record shows in the first place that the local union did not want too because it didn’t think it was its province to interpret the contract.

It so specifically stated in this record.

They wanted to refer it to Detroit.

William J. Brennan, Jr.:

(Inaudible)

Attorney:

That’s right.

William J. Brennan, Jr.:

(Inaudible)

Attorney:

Your Honor —

(Inaudible)

Attorney:

I am not at all sure that in this kind of a situation that step one can possibly, can be and I think it quite clear that there are reasonable arguments and reasonable interpretation would say that this — does — that the — the first step doesn’t apply in the merger absorption type of case because it seems to be inapplicable.

William J. Brennan, Jr.:

(Inaudible)

Attorney:

I’m sorry, sir.

William J. Brennan, Jr.:

(Inaudible)

Attorney:

I would think so, I would think.

William J. Brennan, Jr.:

(Inaudible)

Attorney:

It could have been if the local Committee — if the local Committee had said that the problem does not involve interpretation and the employer had agreed.

Then probably they would have been able to do it.

But if the Committee — the local union had said that this is a matter pertaining to the interpretation of Section 5, then as I read paragraph B they were required to submit it and both the local union and the local employer Committee thought that this involved the question of interpretation and the record says that, that’s why they submitted it to Detroit.

There was no — I — I started to —

(Inaudible)

Attorney:

Surely.

(Inaudible)

Attorney:

Correct.

You’re right.

(Inaudible)

Attorney:

You are correct.

And that was done as a matter of fact because A.D., Berry did take the problem up and the record shows that A.D., Berry was the representative of the local union did take the problem up with Dealers’ management.

As a matter of fact when he did take it up with Dealers management and he asked them what the facts were, what he was told by Dealers’ management was that there is no kind of a trade or understanding between these two companies at all.

And that was the impression that Dealers gave to the union and it was on the basis of that misrepresentation that the union advised the employees of what it thought the joint Committee might ultimately decide and it wasn’t —

Byron R. White:

(Inaudible)

Attorney:

Stovall, who was a representative and an official of the company signed the joint Committee reference referring together with the local union by agreement of all parties to the Committee in Detroit.

That’s how it got there because both parties agreed that it involved the question of interpretation of the agreement, Page 55 of the record.

Mr. Priddy —

Byron R. White:

(Inaudible)

Attorney:

The —

Byron R. White:

(Inaudible)

Attorney:

The — both the employer, the local Committee, and the local union signed the grievance saying, “Deadlocked to Detroit for interpretation, signed Priddy and Stovall.”

Attorney:

Stovall is Dealers transit page 55 of the record.

Now to me that means that this parties interpreted this contract to mean that this involved — the grievance involved the question — interpretation of Section 5 and that the appropriate authority for its consideration and resolution was the Committee in Detroit.

Byron R. White:

(Inaudible)

Attorney:

Mr. Justice White, I suspect that when I have to answer is that they agreed that it was beyond their power to differ.

At that point in any rational way at all they were in agreement that the person to whom they take any difference is there might be involving the interpretation of that agreement before it was a joint Committee.

I certainly do.I cannot understand how — why parties would write a provision that say that all questions of interpretation have to be referred to the Joint Conference Committee that consists of the elected delegates of the contracting parties.

In – in an obvious attempt to obtain uniformity of the interpretations throughout the country and then say that when a question of interpretation arises, what we will do is to let the local Committee and the local union, the local employer resolve it to their own satisfaction and have different interpretations throughout the United States.

I would suppose that the same considerations that underlie this Court’s desire and insistence upon the preemption doctrine and the field of labor relation would quite ration to lead a labor organization and an employer to make a similar — similar kind of collective bargaining contract, and similarly best in a single expert administrative agency if Your Honor please, the power to interpret and to apply the collective bargaining contract.

I would think that it would be just exactly as disruptive device of national policy in the administration of this collective bargaining policy.

For the parties to permit or to allow a local employer and a local union to make their own interpretations of whether this is a merger or absorption under this agreement is it would be for this Court now to hold that the procedure that was actually followed here was a denial of fair representation.

(Inaudible)

Attorney:

As I read the complaint, it does allege that the union misrepresented to the employees of Dealers that it would protect their interests in the sense that it believed that under the facts, the decision should go in their favor, namely, that there should be no sandwiching.

I understand that that is alleged.

I also understand that they alleged in the complaint, that when the event came, the union did not take the position in favor of the Dealers employees, but instead to a position against them.

It is concluded, I believe on this record, that that constitutes fraud.

I say it doesn’t —

(Inaudible)

Attorney:

Well I don’t see the word fraud used, but I think that it’s fair to say that the tenure of the allegations is that somehow we were wrong.

We were misled by the union.

Now as a matter of fact, we are correct, that this entire process as a matter of perspective employment involves collective bargaining as a legislative process that even reading their allegations as a statement that the union told us they were going to be on our side but when it came to the bargaining table, they turned out to be against us.

All this does is to allege that we have a faithless legislative representative.

Our Congressman didn’t tell us what he was — that he’s going to vote for the bill.It turned out he got in the floor, he voted against it.

We were relying on him to vote for it.

That’s the most.

But the fact of the matter here is that what’s omitted and carefully omitted from the complaint is what comes out in the evidence and that is that the union predicated whatever statements it made to these employees upon misrepresentation and concealment by Dealers transit to the union as to what the facts were.

They said that there was no trade and no understanding of any kind between these parties concealing the fact that there was the trade.

Now when the union found out what the true facts were, it did its job as a collective bargaining representative as we understand it under federal law.

What’s the job?

It’s to represent the collective interest, fairly and honestly and truly as the union understands it.

That’s all that any representative can do.

Attorney:

That they did when they found out what the facts were, they said and argued this on these facts that this isn’t absorption and now wen go to the question of what we do about it when we merge the seniorities.

This is —

(Inaudible)

Attorney:

I don’t believe that the Kentucky Court made a finding on the fraud allegation at all.

I think that what the Court of Appeals — what the Court of Appeals have —

Hugo L. Black:

(Inaudible)

Attorney:

Mr. Justice Black, I think the crucial sentence on that page is the following.

So we have a situation, it’s in the middle of the bottom paragraph in which two antagonistic interests were represented by the same advocate.

This of itself is enough to destroy the traditional presumption in favor of an arbitration award.

Now, if the union was an advocate, if this was a lawsuit, there might be something in that position.

But the fact of the matter is that the union is not an advocacy.

It’s an exclusive bargaining representative charged by Congress to function of reconciling conflicting interest in this interest dispute.

(Inaudible)

Attorney:

No I don’t.

(Inaudible)

Attorney:

It would be attacked —

(Inaudible)

Attorney:

It — either — I don’t know how Miranda is going to come out.

So I don’t know whether it’s before the board before — or before a court, but it certainly could be because if what they’re alleging is fraud —

Hugo L. Black:

(Inaudible)

Attorney:

Yes it could.

It could be upset if that were true.

(Inaudible)

Attorney:

Allegation, proof, proper finding based on evidence that the union fraudulently deceived people — fraudulently deprived people of rights, yes it should it be.

(Inaudible)

Attorney:

Well, I shunt every — almost every facets of your statement of — of the question.

(Inaudible)

Attorney:

I don’t know why.

(Inaudible)

Attorney:

Yes.

(Inaudible)

Attorney:

Well, in the first place — in the first place Mr. Justice —

(Inaudible)

Attorney:

Well — no, I say several things —

Tom C. Clark:

You say —

Attorney:

— that they —

Tom C. Clark:

Do you say I guess it — you’re — you’re talking — you’re using fraud in a different way than Justice Black, I gather it is?

Attorney:

Well I — I think so.

On the first place I say that they have no right on this kind of a matter to demand that the union be an advocate of their views.

If that’s what they’re relying on that the union told him it was going to be advocate of their reviews, there’s something wrong with their position in the first place because they don’t understand the function of a bargaining representative which is not to be in advocate of an insular view of one section of its constituency.

It’s supposed to represent the collective industry — interest of its entire constituency.

Hugo L. Black:

Suppose it had told the man in the union that we’re going to do that, whether it was right or wrong.

Attorney:

Well if that —

Hugo L. Black:

And the man accepted it and the men didn’t do anything and he went there and he did precisely to the contrary.

Would that be the kind of representation by a union that we’ve held that to be given in cases of the people who were discriminated against because they were colored?

Attorney:

No Your Honor.

It has nothing to do in my — in my opinion, has nothing to do with those cases and this is a completely different situation.

Hugo L. Black:

I know.

I didn’t say it has anything to do with it.

They held that the union had to represent them squarely and fairly?

Attorney:

Correct, but if the —

Hugo L. Black:

That that would be squarely (Voice Overlap) —

Attorney:

If the union told them — if the union told them that it was going to act as their advocate of their special interest, the union was very bad and very wrong.

If it told them that it was going to serve as their lawyer to protect their interest against the collective interest, the union would undoubtedly be betraying, not them but collective interest.

I don’t see that they would have a cause to stand and complaint at all in that kind of a situation if the union had a locus poenitentiae and then said, “Well by God, no we’re not going to do.

We’re going to do our job under the law.”

Hugo L. Black:

But that’s not — that’s not what he wanted (Inaudible) if there are any charge, the individuals who have been deceived by the union thinking they were going to certain things for them should have a right to be informed so that they could do something for themselves?

Attorney:

Mr. Justice Black, I think that in order to come to that conclusion, you would have to say that when the union makes a misrepresentation and I don’t concede for a second that the union in this case told these employees, no matter how you read this record that the union was going to act as their advocate before the Committee in the Detroit which is what this Court is talking about and it’s just not supported by the record.

But I think for five seconds that unless you take the position that such a statement is made, removes this from the area of collective bargaining completely so that the union looses its statutory authority to adjust the grievance and to participate in its adjustment that you can turn around and say and if you say then, you’re depriving the entire collectivity, the entire collective bargaining union of the benefit of the collective bargaining process that Congress provided for the resolution of just this kind of seniority and merger and absorption dispute.

Hugo L. Black:

Maybe he might be simply saying that if the union’s representative has to tell to the workers the truth and not deceive them?

Attorney:

Your Honor —

Hugo L. Black:

(Inaudible) — is that some kind of a remedy against it?

Attorney:

It seems to me that in union life, as in political life, the elected representatives may on occasion tell their constituents to see things that may not be true or as in this case they may act on this information and give them a report that turns out to be inaccurate or a prediction of their position, what their position will be when the matter comes up for vote and it turns out that when they additional information, they find that they can’t vote that way at all in honesty and in candor and justice to the collective interest that they represent.

Hugo L. Black:

What about the fact that they told them in view, we’ll deadlock it, assuming that’s true that it get up to this door and we have word from the president of an (Inaudible) national that the decision will be all right (Inaudible)

Attorney:

Well now Mr. Justice Black, I don’t know where in this record you may have gotten the idea that there is anything in it that suggest that they got word from Detroit that they know how it’s going.

What Mr. Priddy testified and my brief contains an error and have placed to the — of a quotation mark at the first part of that quotation because it does — it — it’s four words to the left of where it ought to be.

But what he said was that I know Mr. Hoff is thinking on matters of this kind.

There isn’t a scintilla of evidence in this record and if he knew — if Mr. Hoff was the only one who voted and of course he wasn’t, the employers voted, there — this is a bipartite group.

But if the union had the problem to resolve alone and I hardly think that this Court could decide the case of it of whether Mr. Hoff would have decided it (Inaudible), if the union had a policy and a practice in cases where there were trades and agreements of this sort, an integrating seniority, I suggest that the literature in collective bargaining is such that they are to be commended for the integration of seniority list in these situations that it castigated.

Hugo L. Black:

Maybe so.

That’s not the issue in the connection rather they were deceived.

Attorney:

Yes Your Honor, I think it is.

Hugo L. Black:

It’s not a misrepresentation, is it?

Attorney:

As I understand it, your question was directed to the proposition that what if these people had gotten word from Detroit that they or had known from Detroit how the union — how the Detroit Committee was going to decide it.

I say that once the facts came up that there had been, the companies had lied that there had in fact did an understanding of the trade.

Then it seems to me it was a foregone conclusion, there would be integration.

Hugo L. Black:

Even though — even though it’s been decided — even though it’s been decided in advanced without hearing any — any argument or any evidence, do you say it be all right if they decide it according to what you say is right?

Attorney:

Mr. Justice Black I can’t — I — there is — I can add only this.

There’s not a scintilla of evidence in this record, not a hint that supports a finding that this case had been decided in advance without hearing evidence by the people in Detroit.

There is evidence that would leave one to conclude that the experience of the Detroit Committee and prior decisions in other cases was such, that anyone familiar with them could predict the result just as most people can predict results that this Court will reach if there is an adequate body of authority in the cases cold leave within the line.

But I don’t suggest either that that’s arbitrary and capricious to seek forward dishonorable.

Of course there’s going to be a body of precedent developed which people are going to be able to rely on a basis to which they’re going to make predictions or else you’re going to have a wilderness instead of rational collective bargaining and a rational process of adjudication.

That’s what this record shows.

Presigned or printed — I know what he’s thinking on matters of this nature once he finds out about what’s in the federal register.

And the fact is Mr. Justice Black that Mr. Fowler stood before this Court at this bar and said that the reason that the company didn’t participate at earlier stages of the process was what?

That their are local officials knew that if the facts came out and were known, of course the absorption provision of the contract would apply.

That’s how little fraud there was on the part of the union.

The moment the union found out with the facts really work.

They invoked that provision for absorption and sandwiching as the company knew they would.

Now I suggest that what this record shows that knowing that, the company deliberately concealed the facts from the union so that it would be able to make this kind of a mis — of a deceit argument.

Byron R. White:

(Inaudible)

Attorney:

As I unders — as I understand it, as a matter of practice and nothing in the contract of course suggest it and more important, nothing in the National Labor Relations Act provides for it.

What’s — as I understand it, observers of affected groups including the grievance from the south are entitled to be present.

Byron R. White:

(Inaudible)

Attorney:

Whether it would have been allowed?

Byron R. White:

(Inaudible)

Attorney:

No Mr. Justice White, it wouldn’t have been abnormal apparently.

As a matter of fact, this record shows that the Dealers employees did speak up for themselves and were permitted to do so.

But I think a far more significance to that is this.

A far more significance is the fact that the union probably never hears a lawyer in one of these things.

Mr. Previant would know that better than I.

So that any suggestion that they could’ve gone out and gotten counsel at that point is nonsense.

Nothing in the National Labor Relations Act permits them to speak up for themselves certainly to attempt to make an adjustment for themselves —

Byron R. White:

(Inaudible)

Attorney:

Alright.

And here if there was a timely complaint raised by these people, well now look the facts have come out that change is now looks like the local people is going to be against us.

We thought they’re going to be for us, give us an extension of time.

If that had been asked, we’ll I’m not saying, it wouldn’t have been granted or that the denial might not have been arbitrary or something might not have been able to be done about it.

Not a word was said at that time by anybody.

Byron R. White:

(Inaudible)

Attorney:

Mr. Justice White, collective bargaining is frequently deceiving in a fact that the grievance procedure bares the characteristics of both a justicia — a justicial and judicial process and the legislative one.

And it’s very difficult without separating the subject matter that’s being considered to determine what the process actually is.

Byron R. White:

(Inaudible)

Attorney:

Yes it is.

It certainly is.

It is my position —

Byron R. White:

(Inaudible)

Attorney:

If the board were to have been requested that the normal practice be followed and they refused to follow, it maybe that there would be some evidence that they were acting hostilely to the group involved and it may be that that in itself would involved, a breach to the duty of fair representation.

But to the extent that what is being considered here is the legislative matter of the disposition of these jobs in the future, the only people who have a voice as of right compatibly with the national policy in the disposition of that problem is the representatives of the employers and the unions involved they are engaged in collective bargaining in a classic Burley sentence.

They do it to through the grievance procedure all the time particularly and are they entitled to this to the grievance procedure where they provide in the grievance procedure that that’s the way they’re going to do it when a problem of this kind comes up.

Attorney:

The fact that they have a practice that permits interested employees to sit in and listen or to speak up doesn’t change the nature of a process from a legislative to a judicial one and it doesn’t mean that the union is acting as the advocate of one interest rather than the other

Earl Warren:

Very well Mr. —

Attorney:

Thank you (Inaudible).