Machinists v. Central Airlines, Inc. – Oral Argument – February 20, 1963

Media for Machinists v. Central Airlines, Inc.

Audio Transcription for Oral Argument – February 19, 1963 in Machinists v. Central Airlines, Inc.

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Earl Warren:

International Association of Machinists, AFL-CIO, et al., petitioner, versus Central Airlines Incorporated.

Mr. Hudson.

Luther Hudson:

Mr. Chief Justice and members of the Court, when a lawyer stands up to argue a case before the Court, the traditional, may it please the Court, is always seem to me to be somewhat like the same lawyer who holds up a high ball to his friend and says, “here is to you” and drinks it himself.

He, in a sense, has intention of pleasing himself or his client by his argument rather than the Court.

Now, I express that view to an English Solicitor and had a 45-minute lecture, as a result, as the derivation of that phrase that it had nothing to do with making the Court happy, that it derived from the, I suppose law equivalent of, may the Court be pleased to agree with me and grant my prayer.

And that it was used, he told me and I’m sure he’s right, in a sense that may I convince the Court, may I get the Court to agree with me.

Now, if I’m going to get the Court to agree with me in this case, I think that I’m going to have to argue the case not with a broad-brush that was used by counsel for the petitioners, but to confine the argument as much as I’m permitted to the exact facts of the case, what is actually before this Court.

What we have here is a case in which a complaint was filed and it was dismissed for want of jurisdiction.

We haven’t tried the case on the merits, had the petitioners elected to accept order of dismissal and try it in state court.

We might have been here on the merits and the counsel could have pointed out how he had been mistreated or I might be able to point out how the Texas Court had misinterpreted the law depending on the outcome of the trial, but it is not that case.

We have here a simple question of the jurisdiction of the District Court to hear a lawsuit.

Not a theoretical lawsuit, not a lawsuit that might have been filed, not involving questions that might or might not arise, but one that is presented by the complaint filed in this case.

The complaint fails to show jurisdiction for at least two reasons, one, which, frankly was not raised in the trial court of the court below and that is that this complaint was based solely on Section 1331 (a), there being no diversity.

And there was a failure to allege that each of the individual plaintiffs had a lawsuit involving more than $10,000.00.

I don’t want to spend a lot of time arguing the point, but I do want to suggest one thing to the Court.

In the reply, petitioners have asked to leave to amend under, I believe that’s Section 1653 with provides that amendments to this — to furnish defective — correct, defective allegations or jurisdictions may be made on the terms in the trial or Appellate Court.

Hugo L. Black:

In their reply where?

Luther Hudson:

I beg your pardon sir.

Hugo L. Black:

You said in their reply where [Inaudible]

Luther Hudson:

Yes sir.

I —

Hugo L. Black:

Was it asked in the lower court?

Luther Hudson:

No, sir.

At this Court, we didn’t raise it in the lower court.

I believe it’s on page 8 of the reply brief for petitioners, the blue one.

It is Section 1653.

All I want to suggest third to the Court is this; there are no cases under that section, but I think the undoubted general rule is that no man can be allowed on appeal to make incorrect a correct judgment.

William J. Brennan, Jr.:

[Inaudible]

Luther Hudson:

No sir.

William J. Brennan, Jr.:

[Inaudible]

Luther Hudson:

I understand that they would like to include 1337.

William J. Brennan, Jr.:

[Inaudible]

Luther Hudson:

No sir, it does not.

That’s the point.

The point is that the petition in this case was filed under 1331 which has the 10,000 limitation.

William J. Brennan, Jr.:

[Inaudible]

Luther Hudson:

Well, I read it as being both, but for the point I want to make Your Honor, I think it’s — well, I’ll assume it either way or assume it’s both.

My point is that under this Section, the right to amend, adapt that any party after he has a judgment against him in the trial court, can be allowed to amend to show that the trial court’s judgment is wrong.

To reduce it to absurdity, a suit is filed without diversity in the United States District Court on an ordinary automobile accident and the court dismisses it because there’s no diversity and there’s no federal question.

So on appeal, leave is made to correct it by showing that the suit is one which does involve a federal question setting up an entirely different cause of action.

Now, I don’t mean to make a big point of it.

I just want to say that this particular statute has never been interpreted by this Court, but — and I find no cases under it.

The — but the — I just doubt that a — an Appellate Court can render, can permit an amendment which will make a trial court’s judgment wrong.

I think the statute means that amendments may be allowed to validate a judgment of the lower court not to make it incorrect.

Now, that’s rather narrow point and I’d like to pass on to the real point in the case.

Hugo L. Black:

But may I ask you just one question —

Luther Hudson:

Yes sir.

Hugo L. Black:

I assume if the complaint shows facts which would justify applying — exercising jurisdiction of the [Inaudible], you wouldn’t claim that they have to say that this is under 1337, would you, originally?

Luther Hudson:

If — Your Honor, I’d say no and yes and let may put it the — first, if it had not been for the specific allegation as to the fact that this was under 1331 (a), a specific direct allegation, my answer is Your Honor, of course not.

If on the other hand, in this particular instance, there was a limitation as to what they were claiming jurisdiction under, that was the case presented to the trial court.

He was told, we say there is jurisdiction here under 1331 (a).

I don’t mean to intimate for one minute, had there not been the limiting allegation that a general allegation and the facts were alleged which brought it under a particular federal statute that it would be defective.

Hugo L. Black:

Well, as I recall it, the courts consistently held even in criminal cases that an indictment need not allege a particular statute.

The facts bringing under it and it may allege that it’s under one statute and the facts may show it under another.

That’s generally recognized already in the indictment, would you draw a distinction in a civil case?

Luther Hudson:

Your Honor —

Hugo L. Black:

— the facts.

Luther Hudson:

— you had me at a terrible disadvantage.

The only criminal case I ever tried, I defended 40,000 cases [Inaudible] the only criminal case I ever tried.

Hugo L. Black:

I hope you got them all.

Luther Hudson:

I got them in a suspended sentence. [Laughter]

And I don’t know that rule, but to be that as it may that the point is here and I don’t want to pass it by.

Now, let me —

Arthur J. Goldberg:

[Inaudible]

Luther Hudson:

Your Honor, that was to render correct the judgment of the lower court, not to make it incorrect.

Arthur J. Goldberg:

[Inaudible]

Luther Hudson:

Then again, Your Honor, I say that to make it correct and to obligate the necessity of the reversal.

I don’t question the right of the Court to do that.

I doubt that the Court has — well, lawyer from the [Inaudible] ought not to say the power of this Court.

I’d say the Court should not use the same power to make the correct judgment incorrect.

But let me pass to the main points in the case.

This is a suit by six plaintiffs, each of whom has an award in his favor and each of whom wants to have that award enforced.

Now, the award is not under the Railway Labor Act in the sense that it’s under the Railroad Adjustment Board.

It is not under the 301 of Taft-Hartley Act, that type of thing.

This is a system board of adjustment.

The —

Hugo L. Black:

How was it created, under what law?

Luther Hudson:

The — there is a statute 184-2045 U.S. 184 which orders the parties to enter into an agreement providing for a system board of adjustment.

The —

Hugo L. Black:

Federal statute?

Luther Hudson:

Yes sir.

Hugo L. Black:

Federal —

Luther Hudson:

Yes sir.

That is no question but what the contract was entered into under that statute and that will let me bring one of the points I want to make.

There are ‘any number’ of cases, I’d say any number, there must be 10 or 15 cases in which both this Court and the Circuit Courts have said that a refusal to abide by that law and enter into a contract is a federal right.

That is the cause of action to force a compliance with that statute.

There are no cases which says that — which say that after you have complied with the statute, a cause of action arises under it.

I can make an illustration Your Honor.

In my state as in most states, there is a statute that says, automobiles must be operated with adequate breaks.

An allegation that the automobile was operated with breaks that were inadequate would arise under that statute, but an allegation that an automobile was equipped with adequate breaks and the statute complied with would not rise under that.

Luther Hudson:

So we come to the single question and I think it is in this case and that is where the plaintiff’s cause of action arises under the federal law.

And for that purpose, Your Honor, it makes no difference whether it’s 1331 or 1337.

The test arises is the same under both.

First, let’s see what the plaintiff’s complaint shows.

All he says — all he says is that back in 1955 or 1957, I’ve forgotten which, a contract was entered into as required by the Railway Labor Act between the union and the company.

And then as part of that contract, there was a system board of adjustment created that these six individual employees were discharged and each filed his grievance and each was processed up to including the system board of adjustment which deadlocked and a neutral was called in and the neutral entered award which ordered reinstatement with back pay.

And to answer the question which Mr. Justice White asked, this award is not a money award because the amount is not stated in it.

It is merely that is left for determination either by the party’s agreement or by litigation.

So that is the lawsuit that he alleges.

He says he wants that award enforced and for the court to determine the amount that he’s entitled to, and order the defendant to give him back his job.

Now, let’s stop there, attached to the petition is a copy of the award that he’s suing on, the award that he says, “Gives him a cause of action.”

The award that he says entitles him to the relief he asked for.

That award doesn’t mention the Railroad Labor Act.

It doesn’t appear in the award even by inference or by a reference.

It refers to a contract.

It refers to provisions for the working of overtime and the giving of notices for the processing of grievances and for the representation by union representatives of the employees and grievance procedures.

He sues here not by a reason of statute.

There isn’t a statute in the books that says that he is entitled to reinstatement.

There isn’t a statute in the books that says he’s not entitled to reinstatement.

There’s not a statute in the book that says he works overtime.

There’s not a statute in the book that says we can discharge him if he doesn’t work overtime when he’s ordered to.

There’s not statute in the book that says that the grievances must be handled as they were in this case.

There is no possible statute which says that this man can recover or cannot recover.

Now, on the face of the complaint, what federal question is raised —

Hugo L. Black:

What are the keywords of the statute, jurisdictional statute that you think would construe this?

Luther Hudson:

The — if you mean 1331 (a).

Hugo L. Black:

Yes.

That I think you’ve just said.

Luther Hudson:

Both of them say — I can read them to you, but they are so close together that it matters one of them says this 1337 arises under law as regulating commerce.

And the other one says arises under the laws of Constitution and credos of the United States I believe is the phrase.

Luther Hudson:

I’ll read them to you if Your Honor —

Hugo L. Black:

Well, that’s what I thought.

Haven’t we construed those in a number of cases, one way or the other?

Luther Hudson:

You have and you have construed them to mean and I think the — possibly the Pan American case was the latest one, I’m — one of my greatest fault as a lawyer is not remembering the style of the cases.

I can read them I hope and I think I can read them, I know.

And I hope I can understand them, but I have a hard time remembering styles, but I think the Pan American is probably the most recent case.

Hugo L. Black:

I’m having that same trouble now because I wrote one many years ago, from that arising under and I can’t remember the name of it.

Luther Hudson:

But the — under —

Hugo L. Black:

But we have to construe it?

Luther Hudson:

But the — under those cases, the fact that the cause of action has its origin in a federal statute, does not give the District Court jurisdiction.

The cause of action itself must be based upon the statute.

It must show on the face of the complaint under those authorities.

It must show on the face of the complaint that the constitutionality, the construction or the application of a federal statute will be necessarily instant to a judgment in the case and you cannot get that into the complaint in this case.

The counsel for the opposition in effect conceded that yesterday.

He was asked the question whether — and I believe it’s Mr. Justice Potter asking the question, whether or not the failure of Congress to put a provision for federal jurisdiction in the airline portion of the statute with inadvertence and he answered yes.

Now, I concede to some extent the necessity of courts taking care of mistakes but I do not concede the right to include a provision, “suits to enforce awards maybe brought in the federal court.”

I’ve got a good story that will illustrate my point and I want to tell it because it illustrates it and because it’s a good story.

In legislature back in 1930s when I was working away through school, I remember a Senator by name McGregor.

Mr. Justice Clark may remember him.

He was rather powerful and effective State Senator.

And his wife was badly injured in an accident because she got on one of these roads that had a one-way bridge.

And he started to crusade to require bridges in Texas to be wider and he got this bill passed.

And it was a slight mistake and he left out the “G” of “bridges” and the statute required all brides in Texas to be 40-feet between the bucker systems.

Now, that’s large even for Texas.

Hugo L. Black:

I assume that was not the request that his wife had made?M

Luther Hudson:

No sir may — I say that the Court would I think, as matter of reading the caption and reading the emergency clause, it’d be justified there in inserting the “G”.

Certainly, I’ve got married on the assumption that the “G” was in there and my wife could not qualify.

Now, that — let me make the point I was trying to make a minute ago.

I don’t question for a minute that when you have a statute which clearly shows that it regulates bridges and that it is — deal solely with bridges that you can insert a “G”.

But when you have a statute which plainly does not contain a provision saying, “Suits to enforce the awards of adjustment boards shall be brought or maybe brought in the federal court.”

Luther Hudson:

I humbly say that the Court cannot enact that statute.

Does 1331 do that?

Luther Hudson:

No sir.

[Inaudible] cause of action established in the federal statute?

Luther Hudson:

That Your Honor is to –

[Inaudible] supposing the statute would have said, “The award would be [Inaudible],” what would be your position?

Luther Hudson:

Had the statute said –

It should be filed.

Luther Hudson:

Yes sir.

My position would be the same as it is now.

Your position would be the same?

Luther Hudson:

Right, yes sir.

So, would you say the statute itself doesn’t have it in its four corners, a [Inaudible] provisions saying a suit enforced could be brought to the federal court.

Luther Hudson:

No, now you’re pushing me a little farther than I want to go Your Honor.

What I say is this statute, you just — you didn’t change the statute except to provide the one additional sentence.

Had the statute provided the mechanics, had it set up the provisions that would be enforced, had it made the provisions that are in the contract and had that provision in it, then I would agree instantaneously that under 1337 at least or under 1331 (a) if there’s more than 10,000 involved, there would be jurisdiction.

Byron R. White:

[Inaudible]

Luther Hudson:

You mean as I had –

Byron R. White:

[Inaudible]

Luther Hudson:

The — that would be right Your Honor because then the cause of action would be derived from the statute.

Byron R. White:

[Inaudible]

Luther Hudson:

Then the question is solved.

Byron R. White:

[Inaudible]

Luther Hudson:

No sir, but it would be one in which Congress has specifically provided federal court jurisdiction as they haven’t –

Byron R. White:

[Inaudible]

Luther Hudson:

Oh certainly.

I don’t question that.

Byron R. White:

[Inaudible]

Luther Hudson:

No sir, I — if I may.

Your Honor, you asked me two questions.

Luther Hudson:

Can I answer them separately?

Byron R. White:

[Inaudible]

Luther Hudson:

All right.

Byron R. White:

[Inaudible]

Luther Hudson:

Yes sir.

Byron R. White:

[Inaudible]

Luther Hudson:

I think they are now and I think they would be then, yes sir.

Byron R. White:

[Inaudible]

Luther Hudson:

Yes sir, I think that’s true in both ways.

Byron R. White:

[Inaudible]

Luther Hudson:

As the complaint was presented to the District Court, the answer is yes.

I say that.

William J. Brennan, Jr.:

[Inaudible]

Luther Hudson:

From this Court, I would like to say it was reference to that particular question, that of course as the substantive law evolves, there is a very little of it now as particularly — certainly as to this particular type of –-

William J. Brennan, Jr.:

[Inaudible]

Luther Hudson:

I beg your pardon.

William J. Brennan, Jr.:

[Inaudible]

Luther Hudson:

Your Honor I found one District Court case which the —

William J. Brennan, Jr.:

Not in this Court.

Luther Hudson:

No sir.

William J. Brennan, Jr.:

[Inaudible]

Luther Hudson:

Well, I suppose the Court will fashion a law of some sort to cover this.

I will say this, I was hoping that someone would point out to me as I think you’re leading up to that the reason this is final is not because this Court says that it’s final or not because the statute says it is final but because the party said it was final.

And I was hoping somebody would ask me that so that I could point out that’s just what I’m arguing, that that is the point of the whole thing.

If their party’s statute says that these boards cannot have jurisdiction exceeding that of a board under the Railway Adjustment Act.

Now, it doesn’t say they have to be equal.

It can be anything up to that, but no more.

Consequently this contract could have had a provision to the effect that the award should be prima facie evidence.

It could have a provision that either party could sue on it.

It could have had –-

William J. Brennan, Jr.:

[Inaudible]

Luther Hudson:

It actually says that —

William J. Brennan, Jr.:

[Inaudible]

Luther Hudson:

No sir.

Excuse me Your Honor, I’m sorry, I answered too quick.

If you mean the labor contract, the union contract, yes.

But as far as the arbitration or the adjustment board contract, it says, “The award shall be final and binding.”

William J. Brennan, Jr.:

[Inaudible]

Luther Hudson:

Yes sir.

I’d not — I do not want say that as in the present status of the situation that they are not part of the same agreement.

Byron R. White:

[Inaudible]

Luther Hudson:

No, it excludes certain things from arbitration or from the system board.

Byron R. White:

[Inaudible]

Luther Hudson:

It purports, yes sir.

Byron R. White:

As a matter of law, would you say [Inaudible]

Luther Hudson:

No sir.

Byron R. White:

[Inaudible]

Luther Hudson:

No sir.

I hope to — I don’t want to argue the case on the merits, but to be — to answer your question truthfully, no sir.

I hope to convince either a state court or a federal court.

Byron R. White:

[Inaudible]

Luther Hudson:

Your Honor, the field we’re in is so scarce of law, I expect to take that position in second, I expect –-

Byron R. White:

[Inaudible]

Luther Hudson:

Probably, to the extent there is any.

Byron R. White:

Federal law interpreted this and [Inaudible]

Luther Hudson:

Your Honor, you cannot argue federal law when there isn’t any.

Now, to the extent there is any, I’ll be arguing it but to the extent there isn’t any, I’m going to be arguing state law.

William J. Brennan, Jr.:

[Inaudible]

Luther Hudson:

Your Honor, I wish I was up here arguing this on the merits now.

Byron R. White:

[Inaudible]

Luther Hudson:

Correct.

Byron R. White:

And it currently involves a [Inaudible]

Luther Hudson:

They are participating and fastening it and to the extent that there is federal law, to the extent that there are decisions, to the extent that there is I suppose policy.

I don’t question that that would govern, but to the extent there is none, I will argue a case from Hawaii.

I don’t mean that facetiously.

I mean to the extent that there isn’t, to the extent that it’s logical, to the extent that it fits in with the decided cases.

I will –-

Arthur J. Goldberg:

[Inaudible]

Luther Hudson:

I can very easily and I can stay inside the record and do it Your Honor.

This time, I don’t mean to tell the Court because when we try this case, there will be amended pleadings.

But under the current pleading, the easiest one to state, the one that I think shows on the face of the record is that these six employees were discharged for two reasons.

They were ordered to work overtime and refused.

Second, they were told to report and give their reasons for their refusal which they refused to do.

The award in this case decided only that they were justified in refusing to give their reasons because the union representative wasn’t present.

He expressly refused to pass on the right to discharge these men for refusal to work overtime.

My point is, as I put it in the brief, an employer fires an employee for murdering his foreman, burning down the plant, and wearing a red tie.

And the arbitrator decides that wearing a red tie to work is not grounds for firing him. Consequently, he needs not to decide whether murdering the foreman or burning down the plant were sufficient grounds.

Arthur J. Goldberg:

In other words, if you [Inaudible]

Luther Hudson:

Under the contract that on the face of the award, he refused to decide something that was necessary to dispose of the case.

Arthur J. Goldberg:

[Inaudible]

Luther Hudson:

On the base of the plead — basis of the pleadings now filed, I would argue that the award is not within the scope of the contract that he had no right to decide only one issue before him of necessity if he had decide both issues.

I may, as I say, I don’t mean to mislead the Court when it gets back up here.

I don’t want to be somebody to remember what I said and say, “No, that’s all you’re going to claim,” but under the present pleadings, that’s based to the Court, all right.

Arthur J. Goldberg:

May I ask you another question, Mr. Hudson.

Luther Hudson:

Surely.

Arthur J. Goldberg:

[Inaudible]

Luther Hudson:

Your Honor, in the few cases that we had in the past, that was true partially.

It was not true in the situations where, for example, insurance contracts provided for arbitration of damages.

Those were executory agreements.

There is — it isn’t true on the other hand, the State of Texas after the arbitration agreement has been made between parties enforces it.

Luther Hudson:

And here again, I’d like to say that counsel has howling before he’s hurt.

There is, to my knowledge, no case in Texas to cause him heartburn over the Texas rule with reference to arbitration of labor disputes.

There’s only one that ever got to the Supreme Court that I know about in the last ten years.

And there’s certainly nothing in that case to cause him to worry and I think that we would be much better off here to criticize the Texas courts if we had to try this case on the merits and they had done something real bad.

They may do something bad to me Your Honor.

Arthur J. Goldberg:

[Inaudible]

Luther Hudson:

Yes sir.

Arthur J. Goldberg:

[Inaudible] and there they simply brought to the state court to require [Inaudible]

Luther Hudson:

Yes sir.

Arthur J. Goldberg:

The whole state law will provide [Inaudible]

Luther Hudson:

I’m not there either.

Arthur J. Goldberg:

[Inaudible] but suppose the state law was [Inaudible] importance, what was done on the situation under this contract and under this statute?

Luther Hudson:

I don’t think there’s any question Your Honor.

But what the federal law would govern and the court — state court could and would issue an injunction requiring it.

Arthur J. Goldberg:

Now, where will that authority rely?

Luther Hudson:

It would be —

Arthur J. Goldberg:

Would it rely on the statute?

Luther Hudson:

It would Your Honor.

That’s the reason and the distinction in this case.

That is the situation where there is a violation, the right given by statute.

The statute says, “You shall set up this board and these disputes shall be submitted to it.”

Now, when you don’t do that, you have violated an obligation by the statute.

When you do it, it’s just like my illustration about the breaks, Your Honor.

Arthur J. Goldberg:

Now, this is not the fact the federal court would want [Inaudible]?

Luther Hudson:

I don’t know what you mean intimately.

There is nothing in the statute that says what the contract shall contain.

There’s nothing in the statute that says the parties must do this and must do that in any detail.

These can — these contracts can be as the Court said about labor contracts or railroads, it’s just as bad as the parties will stand for as good as they’ll agree on.

Arthur J. Goldberg:

[Inaudible] National Labor Relations Board.

Luther Hudson:

I think about equally in this — but there’s a difference.

Luther Hudson:

You remember that Congress in 301 says that those suits shall be brought on the federal court.

Arthur J. Goldberg:

I understand that.

Luther Hudson:

And you remember that before Lincoln Mills, all the district courts held that there was no federal question but right after Lincoln Mills, when they turn around, and now there was federal question.

Under that very — because of the fact that their court had been given — the District Court had been given jurisdiction of that action.

Now, I don’t mean to catch you all, but I’d like to carry the point a little further.

The provision there is not applicable to airlines specifically.

There is a provision with reference to the railroad adjustment board that’s not applicable to airlines.

And I don’t, for the life of [Inaudible], why the fact that they say that we’re not subject to this one which says federal jurisdiction and we’re not subject to that one, which says federal jurisdiction, you can construe that as mean — they meant that we’re to be subject to federal jurisdiction.

I don’t — it just seems to me that it indicates a pattern, but I’ll go a little further and answer your question that I’m — I hope that was going to be asked to counsel and that is, if it was an oversight, if it was a rank oversight, I don’t think that gives District Court jurisdiction.

I don’t think there is jurisdiction by oversight.

I think that the District Court, United States District Court is the court with limited jurisdiction.

William J. Brennan, Jr.:

It doesn’t mean we have to [Inaudible]?

Luther Hudson:

Yes sir, Your Honor.

But you’re assuming the answer.

And if you let me illustrate I can —

William J. Brennan, Jr.:

[Inaudible] why the right to remedy doesn’t arise under the federal statute?

Luther Hudson:

The — because of two reasons, Your Honor.

Factually, under the allegations in the complaint he says, “By contract, I have certain rights.”

But secondly, there are many instances where the man’s rights are determined under federal law where it is exclusively state court jurisdiction.

The one that I know best is the Federal Employers Liability Act which is part of the Railway Labor Act.

It has a safety appliance provision in it.

Now, that same act says when an employee is injured, he has the right to go into either state or federal court.

But when a non-employee, when a passenger on a highway is injured or I mean a driver on a highway or passenger or someone working on the car is injured by a safety appliance defect, then it has to go into state court but there isn’t any question but what that state court would be applying federal law to decide the rights of the parties.

There’s another illustration that goes out of the same section and that is the three cases as I remember them.

There’s the Moore case and the Caldwell, and the Slocum, in which this Court said that the same plaintiff, Mr. Cornstubble, has the option when he’s fired.

He can file a grievance procedure or he can say, “I’m fired.”

And he can walk in to the State District Court and sue for wrongful discharge.

If he sues, he sues under the same contract that he’s suing here and that is exclusive state jurisdiction.

I don’t know whether I answered your question Your Honor, but that’s –-

Byron R. White:

[Inaudible]

Luther Hudson:

Yes sir.

Byron R. White:

Right?

Luther Hudson:

Yes sir.

Byron R. White:

And one of the statutes [Inaudible]

Luther Hudson:

No sir, it was.

I wish the Court had so held but unfortunately, this Court has held and I have lost two cases based on that holding, that somebody goes down to unload a car, a box car, or this particular one was a tank car, and there is a defective running board and that third person that the employee of the consignee is injured because of a defect in that running board which the Safety Appliance Act said must be good, this Court has said he got a cause of action under the Safety Appliance Act but it’s also said that he’s got to bring it to the state court.

Now, I hope that you’re — well, I say I lost two cases on that holding, I had to –-

Byron R. White:

These are employees?

Luther Hudson:

No sir, these are not employees.

Now, if they were employees then the statute as I remember Section 52, says that, “An action to recover, maybe brought in either the state or federal court.”

There’s a statute that specifically provides for concurrent jurisdiction.

And I want to say this that as counsel said yesterday, there were two lawsuits.

We filed one in the state court.

He filed one in the District Court.

He removed it and the Court held that the removal was wrong, at the same time they dismissed this one.

It’s pending down there and I know no reason since it’s rather obvious, since the Dowd and Lucas cases, that they would be at most concurrent jurisdictions that I can set that case down for trial.

I can set it down in April and try it, and we’ll come up here, I don’t — through the state courts.

And I didn’t — I haven’t thought of it until — frankly, until I heard the counsel arguing yesterday, but I think maybe that’s what I ought to do.

And then we’ll find out how bad the state courts are.

We’ll find out whether or not they — they tried this case, they applied federal law.

We’ll find out whether we tried it on something that didn’t involved federal law.

We’ll find out whether they correctly applied it.

And then we will have before this Court a fair sample of the treatment or the mistreatment that supported the airlines and their employees under the system board of adjustment award.

Arthur J. Goldberg:

I suppose that the [Inaudible]

Luther Hudson:

They did.

Arthur J. Goldberg:

Would you go to the federal [Inaudible]?

Luther Hudson:

I think I could.

Arthur J. Goldberg:

On what basis?

Luther Hudson:

On the basis that –

Arthur J. Goldberg:

[Inaudible]

Luther Hudson:

On the basis that the statute provides for compulsory arbitration, therefore, makes a strike illegal or any matter that is subject to the grievance and arbitration procedures.

Arthur J. Goldberg:

And that then would [Inaudible]

Luther Hudson:

No sir.

That —

Arthur J. Goldberg:

Why not?

Luther Hudson:

Because the statute says the parties shall submit grievances involving working conditions and those kinds of things to Board of Arbitration.

They say that we must, so the statute says you must do that.

Arthur J. Goldberg:

Does the statute —

Luther Hudson:

The statute –-

Arthur J. Goldberg:

[Inaudible]

Luther Hudson:

No sir.

It lets the contract say what the parties will have contract for.

Arthur J. Goldberg:

So that the — those were [Inaudible]

Luther Hudson:

It derives from the statute.

Now, I will say —

Potter Stewart:

It is the Chicago River case, isn’t it?

Luther Hudson:

Yes sir.

I will concede that the cases have not gone into the very point you’re making, Your Honor, that all of the cases I have read, make no distinction between the railroad adjustment cases bound for the railroad adjustment or the board there or one that’s in or bound for the system board.

They have been as I — I’m not conscious in any case that makes the distinction that you’re asking me about.

Now, I wanted to give back the Court some time and I think I’ve said pretty nice — pretty everything I came to say, but I want to offer again if there’s — if our position isn’t clear and I have not pleased the Court to the extent of conviction.

I want to give the Court an opportunity to ask me a question so that I may please the Court.

Thank you very much.

Bernard Dunau:

May it please the Court.

Earl Warren:

Mr. Dunau.

Bernard Dunau:

I think Mr. Justice Black that the case you were thinking of that you had written was Bell v. Hood.

We haven’t cited in our brief, but it appears at 327 U.S. 678.

This action to enforce a system board award does not exist in limbo.

Some law must apply which says that this action is good or is no good.

That law, by everybody’s concession is federal law.

There seems to us inescapable that once it is said that it is federal law which makes this action good, the case arises under a law regulating commerce or under a federal law.

Bernard Dunau:

If that is correct, then the general jurisdictional statutes give us a right to be in a Federal District Court.

It doesn’t matter whether the airport or the Railway Labor Act omitted a specific conferment of jurisdiction by inadvertence or not.

Our question then would be not was there an inadvertent omission of jurisdiction as specific to confirm it either in the airport or the Railway Labor Act rather is there anything you can draw from the Railway Labor Act which would show an implied repeal of the general jurisdictional statutes.

And unless there is something in the airport or the Railway Labor Act to show an implied repeal, we are properly in a Federal District Court because Congress since 1875 has said, “If you have an action arising under a law, regulating commerce or under a federal law, you maybe in a Federal District Court.”

Now, let’s illustrate it in this case by the very point Mr. Hudson says, he wants to make whenever he gets to a court to try this case on the merits.

He says that an arbitrator here made a mistake because as he concedes that there were two issues to be decided.

The arbitrator decided one issue and rendered a judgment based or rendered an award based solely on that one issue.

That award is therefore void because it didn’t decide all the things that should have been decided.

The contract here says that the award shall be final, binding, and conclusive.

How far back a final, binding and conclusive responding can go to show error becomes a question of federal law, because it is federal law which will spell out whether our contract, when it says final, binding and conclusive means utter finality so that you cannot go back of it at all.

It means almost utter finality so you can go back off it, somewhat to show some basic prejudicial defect, like bias of the arbitrator or fraud, or it can go back a good deal further to show that there was not enough evidence to support the award, or it can go all the way back and redo the whole thing de novo.

But whether you give it utter finality or give it no finality at all, depends upon what the federal law is.

So it seems to us inescapable that what we have here is a question of federal law, a case arising under it.

We have a claim which must bring — which must have support from some law and the only law we have is federal law.

Now, this is not a question of invidious comparison between state courts and federal courts as one better than the other.

Congress has said when it enacted the general jurisdictional statutes that for the enforcement of federal rights, you can go into a federal court.

Now, if there’s any invidiousness in this field, it’s because the general jurisdictional statutes have said they want — the Congress wants two court systems at work here and we’re not here saying we want to be in a federal court because we like federal courts better than state courts or we think state courts are worst than federal courts.

We are in a federal court because Congress says with this kind of a claim we can be in a federal court.

Now, in any specific case, the lawyer make — may have a big mistake as to his choice are forum and not know until he’s all through, that he has made a mistake, but obviously, one doesn’t decide jurisdictional questions on that kind of an invidious basis.

William J. Brennan, Jr.:

[Inaudible]

Bernard Dunau:

No sir, we are not arguing that.

We are arguing that we — there is concurrent jurisdiction.

If we bring it in a state court or if the other party brings it in the state court, there can be a remand to a federal — there can be a removal to a federal court, so in that sense there is a control over the forum if a party wants to be in any federal court.

Potter Stewart:

Now, that’s a question not before us.

Bernard Dunau:

That is not a question before you.

No sir.

Potter Stewart:

(Voice Overlap) complicated.

Bernard Dunau:

The question here is the plaintiff having sought — started his suit in the Federal District Court has he based it on a law regulating commerce?

If he has, he has a right to be in the Federal District Court because Congress has said he can be there.

Now, let me point out –-

Can I ask you?

Bernard Dunau:

Yes sir.

This is with regard to [Inaudible]

Bernard Dunau:

The statute doesn’t say specifically when it confers jurisdiction on a Federal District Court to enforce an NRAB award that it’s exclusively in the Federal District Court.

I read it that way, but I think it’s open to argument that it may not be that way.

I read it that way because there are certain other perquisites to getting into a Federal District Court like attorney’s fees that can be paid if you prevail, the cost of the suit are borne out of the appropriations of the United States Courts, these things may show that under the — when you bring a suit in effect — that the only place you can bring an NRAB suit to enforce an award is in a Federal District Court.

Now, what we say here is that if you want to distinguish between what you can do with the system board award and an NRAB award, the differentiation would be that for an NRAB award, you must go only into a federal court.

With a system board award, you may go either into a federal court or into a state court.

But the differentiation does not argue in favor of saying that the only place you can go with this kind of a suit is into a state court which is the argument that is made here by the respondent.

Now, I think I can illustrate this by two things which have already been adverted to and may profitability perhaps be repeated.

Now, the court below bases its view on two things.

It speculates that in 1936, state courts were hostile to the enforcement of an executory agreement to arbitrate, but favorable to the enforcement of an award once it is rendered.

Now, in Texas, it happens — the law happens to be the common law rule that you can revoke in executory agreement to arbitrate at any time prior to actual submission.

Now, the Court says because the state courts were hospitable to the enforcement of an award, we imply that Congress was willing to have this whole system, at least with respect to the enforcement of an award, be committed exclusively to the state court system.

But you take that same speculation and the Court has been saying because the state courts are inhospitable to the enforcement of the executory agreements to arbitrate, well that kind of a suit you can get in to a Federal District Court.

That means if you carry it out, that I can sue Central Airlines to force them to go through arbitration and get into a Federal District Court to do that.

Having done that, if an award issues then the Federal District Court has no power to bring to fruition the very thing that it has the power to start, we can’t cut this baby in half there.

If the Federal District Court has the power to enforce the executory agreement to arbitrate, it surely must have the power to carry through the process and enforce the award and the other part is the one that Mr. Justice Goldberg mentioned.

If a Federal District Court has the power, as we think it has, to enjoin a strike if a dispute is pending before an adjustment board, certainly it has the power having protected the process, then bring it to fruition by enforcing an award which eventually raises from that procedure.