Machinists v. Central Airlines, Inc.

PETITIONER:Machinists
RESPONDENT:Central Airlines, Inc.
LOCATION:Beaumont Mills

DOCKET NO.: 61
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 372 US 682 (1963)
ARGUED: Feb 19, 1963 / Feb 20, 1963
DECIDED: Apr 15, 1963

Facts of the case

Question

  • Oral Argument – February 20, 1963
  • Audio Transcription for Oral Argument – February 20, 1963 in Machinists v. Central Airlines, Inc.

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

    Earl Warren:

    Number 61, International Association of Machinists, AFL-CIO, et al., petitioners, versus Central Airlines, Incorporated.

    Mr. Morris.

    Charles J. Morris:

    May it please the Court.

    Mr. Chief Justice, Honorable Members of the Court.

    At issue in this case is question of whether the general jurisdiction statutes confer upon the Federal District Court’s jurisdiction to enforce a system board award of an airline system board made pursuant to the Railway Labor Act, Section 204 of that statute.

    The facts may be very briefly stated, this is, in many respects, a very ordinary arbitration type case.

    There were six employees who were requested to work overtime.

    They, for various reasons, which were stated in the arbitration or system board record, declined to work overtime.

    They were then given a letter specifically asking them to further declining to work overtime.

    They were given letters of suspension by the Company advising them that they were suspended, but were to report for an interview the following Monday morning.

    These events that I’ve just described occurred between Thursday and Saturday during the early part of April, 1958.

    They then did report as requested but with a union representative.

    The union representative went into the interview room and requested an opportunity to be present at this interview and was denied that opportunity.

    The employees thereupon declined to present themselves if they were not permitted to have their union representative present whereupon that same day, they were given another letter advising that they were discharged.

    This is the sum and substance basically of the case as presented to the arbitration board.

    I use that word “arbitration board,” I would be more correct to use the term “system board” because this is the term which is used by the Railway Labor Act and by the contract which we have here.

    The matter went to the system board of arbitration which was set up pursuant to a contract.

    The Board consisted of two members of the Company, two members from the union.

    They deadlocked and pursuant to the procedure set up under that contract, a neutral was brought in, appointed by the National Mediation Board.

    The neutral sat with the Board. Further hearings were held and in due time an award was rendered.

    The award was joined in by the union members, not joined in by the company members.

    It constituted a majority award of the Board, finding that the company violated the contract by denying union representation and finding, based merely upon that, that the discharge was in violation of the contract, ordered the employees, reinstated and made whole as to their lost pay.

    The Company declined to abide by the award.

    It is paired from this record so I will mention it that various things happened rather promptly.

    The company filed a case in state court to set aside the award.

    The union responded by filing a motion to — filing a removal petition to federal court, but prior to doing so, filed the instance suit for enforcement of the award in Federal District Court.

    This case turns on the complaint in as much as a motion to dismiss was filed simultaneous with a motion to remand the case.

    The Federal District Court, facing his decision upon the Metcalf case which had just been determined by the Fifth Circuit, granted the motion to dismiss for lack of jurisdiction and granted the motion to remand.

    The — I might add so I guess there has been a question, nothing has happened in the state court.

    State court is simply waiting on the outcome here.

    Charles J. Morris:

    So much for the facts of the case; the — perhaps the best statement, and we don’t contest this of the rule of federal jurisdiction that we are concerned with, is contained in the Cardozo opinion in Gully versus First National Bank.

    We have no quarrel with that.

    We call attention particularly to what I think is the crucial sentence there, that is the federal nature of the right to be established is decisive and therefore, I address myself to the federal nature of the right which we seek.

    Arthur J. Goldberg:

    Decisive with [Inaudible]

    Charles J. Morris:

    Decisive on the question of federal jurisdiction in terms of stating a case — a question arising under the laws of the United States.

    Arthur J. Goldberg:

    [Inaudible]

    Charles J. Morris:

    This is the rule as I understand it, Your Honor.

    I would ask the indulgence of the Court if you would look with me at our appendix in our brief because carrying us through the nature of this federal right means carrying us through the statutes.

    And the statutes are somewhat tortuous and if they are tortuous, it is only because Congress, in enacting the provisions of the Railway Labor Act to be applicable to airlines, it sought and in my opinion succeeded in granting a coequal status to the enforcement procedures for airlines, coequal to what had previously been granted 10 years prior in 1926 to the railroad and to the railroad unions.

    And I submit that it is a mere historical accident that the differences appear at the present time between the dispute settlement under the railway portion of that statute and the airline portion.

    Both portions provide for two methods of dispute settlement in minor disputes and this will appear as we look at this, but I will mention it first.

    The Railway Labor Act, as you know under the rail portion, sets up a National Railway Adjustment Board with various divisions, but it also sets up an optional contractual means whereby the parties can use system group or regional boards of adjustment.

    This we will note specifically in a moment.

    Under the air portion, for reasons which Mr. Dunau will go into in greater detail, Congress in 1936 simply provided that the National Mediation Board could, if it desired, set up a national board of adjustment applicable to the airline industry.

    But also set up as a matter of compulsion and this is compulsory arbitration, make no mistake about it, set up a form of compulsory arbitration under Section 204, but also pointed out in Section 205 that in the event, the National Mediation Board did set up the airline national board of adjustment, then exactly the same option would apply to the airline industry as would have — as presently applies to the railroad industry.

    So, there was that congressional intent to create absolute coequality there, but as a matter of historical accident, we find two things — three things to have occurred.

    One, the railroads and their unions have preferred generally to use the national procedures; that is the formal procedure of the Railway Adjustment Board.

    Very few railroads and very few unions, although there are some and we know of three cited federal court cases all but one courts of first jurisdiction noting that such system boards do exist.

    They do exist on the railroad, they are not common. On the other hand, the airlines have found the system board procedure to be quite satisfactory generally and there is no effort that anyone appears to be aware of to put into effect a national board of adjustment applicable to the airlines.

    But I give you this predicate by way of showing that there was not a congressional intent to create a difference between airlines and railroads, but rather both portions of the statute apply the same type of procedures and leave it more or less to the party, that’s to — and to the National Mediation Board I should say as to which will become predominant.

    Arthur J. Goldberg:

    Mr. Morris, were the existing board [Inaudible]

    Charles J. Morris:

    Yes.

    Arthur J. Goldberg:

    Was there [Inaudible]

    Charles J. Morris:

    To the Adjustment Board, no.

    I would say that there would not be in as much as the parties have set up, there are more informal procedures in a way which would be comparable to arbitration under Section 301.

    There are no provisions.

    William J. Brennan, Jr.:

    Is there a provision for judicial review that is on the part of these employees or union in a rail system board like from —

    Charles J. Morris:

    There are three reported cases which indicate that the courts have looked at the matter.

    There are no cases which either dispute or fail to dispute the jurisdiction of the federal courts to determine this.

    This —

    William J. Brennan, Jr.:

    Well, that’s the problem here, isn’t it that —

    Charles J. Morris:

    Yes, that is the problem here, yes.

    William J. Brennan, Jr.:

    Well, not assisted by express exclusion?

    Charles J. Morris:

    No.

    William J. Brennan, Jr.:

    I see.

    Charles J. Morris:

    No.

    Byron R. White:

    Would you say that in the railroad cases or that the System Board decision, does or does that the federal court have jurisdiction to enforce that award?

    Charles J. Morris:

    I would say — I would say yes, just as the federal court has jurisdiction here.

    Byron R. White:

    Well, yes, you would but for the same reason?

    Charles J. Morris:

    And for the same reasons.

    Byron R. White:

    But no different reasons.

    Charles J. Morris:

    I would say —

    Byron R. White:

    Wasn’t that reason at all you had no more support for the federal court having jurisdiction of the Railroad System Board and decisions than the airline.

    Charles J. Morris:

    I would say if anything at the present time, there is more reason to find jurisdiction on the airline.

    I don’t think Your Honors —

    Byron R. White:

    There are no — there are no cases on there.

    Charles J. Morris:

    No, there are no cases on it.

    It’s more or less an assumption of jurisdiction.

    Byron R. White:

    Between the railroad or the airline?

    Charles J. Morris:

    Well, there are cases on the airlines, the Metcalf case which we —

    Byron R. White:

    Yes, the other way.

    Charles J. Morris:

    And that’s when — and one lower court case which came out recently.

    William J. Brennan, Jr.:

    Well, I didn’t fully understand what you said earlier.

    I thought you said that there’d been at least three rail system board cases —

    Charles J. Morris:

    Yes, indicating the existence —

    William J. Brennan, Jr.:

    — which got into the federal courts and no one questioned that there was jurisdiction in the federal court.

    Did you say that or not?

    Charles J. Morris:

    Yes, but whether the jurisdiction was there based on diversity or not, my recollection is it does not even appear in the recorded opinions.

    The point of this question has not been raised there.

    It’s not likely to be raised because this is a rather unusual form for the rail industry.

    William J. Brennan, Jr.:

    Well, would this be true if the lower court is right in this case, this also would have to follow as the Rail System Board review?

    Charles J. Morris:

    I would say yes.

    A fortiori so because and to answer a question which Justice White put to me a moment ago, at the present time, there is greater reason to find jurisdiction.

    I don’t think the Court need to reach this but there is certainly a greater reason to find jurisdiction here because there is the compulsion to set up the system board rather than the option to set up the system board as it exists at the present time under Section 204.

    In other words, absent creation of a National Adjustment Board for the airlines it is absolutely compulsory for the airlines and the air carrier unions to use this procedure.

    This difference does exist and we would be deluding ourselves that we did note that difference.

    Your Honors, will look at the pertinent —

    Potter Stewart:

    And then the — and the — as to railroads, is there a statutory compulsion to set up a national board as I understand it?

    Charles J. Morris:

    The national board is set up by a statute.

    Potter Stewart:

    By a statute.

    Charles J. Morris:

    By a statute.

    And then —

    Potter Stewart:

    And then optionally they could set up a system board.

    Charles J. Morris:

    That’s right, optionally they can set up a system board if they did that.

    Potter Stewart:

    And here, this is the other side of the coin there’s a — there is an authorization has set up a national board but if that is not done then there’s a compulsion to set up system board in the airline, is that right?

    Charles J. Morris:

    Well, the system board is made compulsory in Section 204.

    There is no choice upon the parties.

    In Section 205, the National Mediation Board is given the option, not the Court —

    Potter Stewart:

    I see.

    Charles J. Morris:

    — it is given the option to set up the board if and when, if ever —

    Potter Stewart:

    A national —

    Charles J. Morris:

    — one were set up, then the party would revert exactly to the airline — to the railway system.

    First, I would call Your Honors’ attention to the fact that we are dealing with law which is unquestionably and I say unquestionably because it was — it’s conceded by all of the parties here including the court below that we are dealing with federal law.

    That whatever it is, whatever enforcement we are seeking, it is — we must look to federal law to find our guidelines.

    Now, the basis for that — for the initial basis for the federal law, that is the general basis would be in the statute itself, the Railway Labor Act which sets out a requirement of collective bargaining and the entering into of collective bargaining contracts.

    If you will look at page 59 of our appendix, the purpose of the statute is first set out and under subheading five of Section 2, the parties and the Railway Labor Act are to provide for the prompt that is the act itself is to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements.

    Now, I go through this and I beg your indulgence because this is the fabric from which these items, or the fabric from which this Court and the federal courts must, if I may use the term “find the source” of the federal law.

    Actually it’s not a great deal or — I shouldn’t say not a great deal of fashioning a federal law is required, of course, there is interpretation but certainly not the degree of interpretation which is required under Section 301.

    Section 301 is short, is cryptic and forms the basis not just for jurisdiction as we all know, but for the substantive federal law, relating to collective bargaining contracts.

    Here, just as in Section 301 is the fabric of that substantive law relating to enforcement of system board awards.

    Charles J. Morris:

    Under the general duties, under Section 2 first and this is somewhat unlike Taft-Hartley where a requirement of bargaining is put upon the carrier.

    Here, there is the following requirement.

    It shall be the duty to exert every reasonable effort to make and to make would be comparable to the 8 (a) (5) duty under Taft-Hartley, to make and maintain and this goes beyond Taft-Hartley, to make and maintain agreements.

    Here is the federal system setting out a requirement of maintaining the agreement right in the act itself.

    William J. Brennan, Jr.:

    Well Mr. Morris, am I — what you have to do, I gather, is to convince us that there’s some kind of federal right here which arises under this.

    Charles J. Morris:

    Yes sir.

    William J. Brennan, Jr.:

    And you limit this, in other words, for 1331 purposes in Article 330 this jurisdiction only that you have some — you are asserting some kind of right which arises under federal law, am I right?

    Charles J. Morris:

    That is correct.

    William J. Brennan, Jr.:

    And I gather it’s contract right, is that right?

    Charles J. Morris:

    No.

    Not only a contract right.

    William J. Brennan, Jr.:

    It’s the 184.

    Is that what you’re relying on?

    Charles J. Morris:

    It’s 184, it is.

    It is not purely and simply a contract right, you will look as the states would —

    William J. Brennan, Jr.:

    Well, what I’m trying to — what — if — what I’m trying to get to is this so I understand you — your argument.

    You’re then going to try to persuade us that a right, there is a right created by 184 by statute, therefore, that you do assert a claim in your complaint which arises under federal law for the purposes of 1331, is that it?

    Charles J. Morris:

    That is correct.

    William J. Brennan, Jr.:

    Alright.

    Charles J. Morris:

    Now, I’ve used Expression 204, that’s the Railway Labor Act form, the U.S.C. form is 184.

    I think we’ve used 204 in our appendix.

    But if you will look at page 64, we see precisely now the system board that we’re talking about the —

    William J. Brennan, Jr.:

    As my Brother White just suggested to me, you want us to do a Lincoln Mills job on 204.

    Charles J. Morris:

    I think this doesn’t require very much interpretation and a —

    William J. Brennan, Jr.:

    As grounded the deciding fact of what it is.

    Charles J. Morris:

    No.

    Well —

    Potter Stewart:

    You said at the last paragraph of Judge Brown’s dissent on page 64 of the record that echoes precisely what my Brother Brennan had just said.

    Charles J. Morris:

    Well, there will — every statute must have the interpretation.

    This is really a short statute, but by comparison with 301 it’s a rather long statute and there is much language available to the Court here, much more than was available in Section 301.

    Charles J. Morris:

    But to look at the language of 204, first paragraph sets up the disputes growing out of grievances or out of the interpretation or application of agreements concerning rates of pay rules or working conditions shall be handled in the usual manner, et cetera and then they may be referred by petition of the parties or by either party to an appropriate adjustment board as hereinafter provided.

    Now, here is the fabric, the federal right is created, the right to go to an adjustment board which is set up in this portion of the statute the second paragraph.

    Byron R. White:

    [Inaudible]

    Charles J. Morris:

    This is a federal question.

    Where is the finality?

    We submit that we have agreed.

    Byron R. White:

    [Inaudible]

    Charles J. Morris:

    It is suggested if you’ll bear with me, Your Honor, it is not only suggested but spelled out I think in words which are incorporated by reference and this the tortuous path which I have to take you through but if you want to jump, jump to it; if you will look to Section — Page 62, Section 3, 2d because this is incorporated by reference.

    If you will notice that the parties in the second paragraph of 204 are required by duty to establish a board of adjustment of jurisdiction not exceeding the jurisdiction which may be lawfully exercised by system group or regional boards of adjustment under the authority of Section 3 Title I.

    Now, if you look at Section 3 Title I, you see that the only paragraph which exists there and this is the paragraph I was referring to in the opening of my argument, the only paragraph which exists there describing the system group or regional board, is this paragraph which refers to the establishment of system group or regional boards of adjustment for the purpose and here is the language, for the purpose of adjusting and deciding and these are the terms which exist here, adjusting and deciding disputes of the character specified in this section.

    Now, what are disputes of the character specified in this section?

    We then again incorporate by reference, the paragraph (i) of Section 3 which is on Page 60.

    And here, the nature of the disputes which are referred to are set out and these are —

    Byron R. White:

    The following [Inaudible]

    Charles J. Morris:

    Yes, I would so argue.

    Byron R. White:

    Contrary to national board?

    Charles J. Morris:

    Contrary to the national board because it is our opinion that the parties would have the right to contract for that.

    They are given the right to contract for that.

    Now, is this a question of exceeding the jurisdiction or, does this go beyond or does it not go beyond?

    This is a question which this Court does not have to meet.

    The point is you will look to the statute to the purpose of the statute to determine the degrees of finality.

    The law of course is not developed yet.

    We don’t know the extent of finality.

    I may be just flat wrong in the statement that I made to you, Mr. Justice White.

    I may be flat wrong there.

    This is certainly contested probably by my opposition, but you look to this federal law to determine these things.

    When we look to the law to determine the duty, if the duty is set out there, the duty to establish the Board is set out in the federal law.

    We know that it is exclusive that the — and the decision so hold that it is ex —

    Arthur J. Goldberg:

    [Inaudible]

    Charles J. Morris:

    You look to the federal law because Section 204 imposes a duty to — on the parties to setup a system board.

    Charles J. Morris:

    They are left no option.

    Arthur J. Goldberg:

    And that’s to proceed to the federal assumption. [Inaudible]

    Charles J. Morris:

    Alright.

    Arthur J. Goldberg:

    [Inaudible]

    Charles J. Morris:

    Yes, sir.

    Arthur J. Goldberg:

    [Inaudible], isn’t that correct?

    Charles J. Morris:

    That is correct except generally and this Court has held in such cases as Hanson relating to the union shop question, Steele and Louisville and other cases.

    Those come to mind that the imprimatur of the federal statute is on that collective bargaining contract and what the parties put in that collective bargaining contract is a matter of federal law.

    There is no state authority for railroads and for unions to engage in collective bargaining and create collective bargaining contracts.

    William J. Brennan, Jr.:

    Well, Mr. Morris, is that generally or most of the statutes [Inaudible] before or is independently fashioned.

    We have to find some federal substantive law of contracts at least as regards the interpretation and scope of the authority of these agencies board, agency board — system board —

    Charles J. Morris:

    That is correct.

    William J. Brennan, Jr.:

    — the finality or otherwise, don’t we?

    Charles J. Morris:

    Yes.

    And you look to the basic source.

    You look to the federal statute which is the Railway Labor Act which forms the basis for this collective bargaining and the creation of these collective bargaining contracts.

    This —

    Byron R. White:

    Would you be making the same argument here now if you — if the act had specifically granted jurisdiction to this Court, would you be arguing for federal law?

    Would you care which law is applied, whether it is federal or state law?

    Charles J. Morris:

    Yes, I would Your Honor.

    Byron R. White:

    Why?

    Charles J. Morris:

    I would care because the policy, the national policy is set out in the Railway Labor Act and we have to look to that and I did briefly allude to some of the provisions, not all of them, we have to look to some of that to determine the interpretation here.

    We can’t look to 50 different states for instance.

    We already looked to this in the cases where unions among the airlines have been enjoined for striking over minor disputes.

    Now, before a federal court can determine that they have struck over a minor dispute, that court must look at the collective bargaining contract, at the system board of adjustment and must look at the scope of it and apply a standard as to whether or not, there has been a dispute relating to something which could have been settled by the procedure set up and this determination must be made.

    Arthur J. Goldberg:

    [Inaudible]

    Charles J. Morris:

    Oh!

    Yes, this is exactly what the Court said in Chicago River with regard to National Adjustment Boards and the courts have generally, without any distinction, applied the same rationale to system boards on the airlines pointing out that a strike over a minor dispute is in violation.

    Now —

    Byron R. White:

    Is this the — isn’t it — this is a question of court jurisdiction rather than which law applies and a federal law applies and must apply because of the structure of the act, it will apply even if it’s in the state court.

    Byron R. White:

    In many cases, federal questions try to take courts with — upon which you can’t get into a federal.

    Charles J. Morris:

    I don’t think we have to question that here, Your Honor.

    What we’re saying rather what the respondent is saying either here we have a federal question but the state — but the federal courts do not have jurisdiction.

    We’re not concerned here about concurrent jurisdiction.

    What we are concerned about is whether not the federal courts have the right and the authority to enforce federal law.

    Now, it may be that it is possible for the Congress and of course it is possible presumably for Congress to cede all jurisdictions to a state court, but this would take a specific statute which is nonexistent here.

    There is no statute ceding such jurisdiction.

    The most that can be claimed is that there is that concurrent jurisdiction.

    Just briefly, I would mention this to Your Honors that the majority opinion recognized that there were great variations in the standards which would apply and to point out the states statutes said these statutes vary greatly in their coverage, in their procedural requirements, and courts in different states vary greatly in the extent of the review which they gave to arbitration awards.

    They vary greatly in their extent to review.

    Where do we look?

    Do we look to the states?

    We submit you look and you must look to the federal standard which must come if it comes anywhere from the Railway Labor Act and the interpretation of that act by the federal courts.

    Thank you.

    Bernard Dunau:

    May it please the Court.

    Earl Warren:

    Mr. Dunau.

    Bernard Dunau:

    This is an action to enforce an award issued by a system board of adjustment.

    We have a right to be in a federal court with this action if in the words of 28 U.S.C. 1337 it’s a civil action or proceeding arising under any law of Congress regulating commerce.

    As to any such action, 28 U.S.C. 1337 says you can get into a Federal District Court.

    Our specific question then has to be When you seek enforcement of a system board award, are you presenting a claim which arises under federal law?

    And as to this decisive element, we are all in agreement.

    Petitioners, respondent, and the court below, all agree that federal law controls the enforceability of a system board award.

    In the words of the court below at the record page 4445, note 7, “Federal law governs the scope judicial review of an award made by a system board of adjustment under Section 184 of the Railway Labor Act since the application of state law to this question would allow a freedom of review incompatible with the purpose of the statute to allow the parties to arbitrate their dispute with finality.”

    When I go to a federal court with a paper called complaint saying, “I have an award that I want enforced” and the judge says, “Why should I enforce it?”

    I say, because the rail — Congress through the Railway Labor Act as amplified by judicial interpretation has said that if I get an award, I am entitled to have it enforced.

    Therefore, I lay my claim for the enforcement of this award on federal law and laying my claim on federal law, I am squarely within the confines of the general jurisdictional statute.

    William J. Brennan, Jr.:

    Well let’s see Mr. — is this different argument from your department?

    Bernard Dunau:

    No, sir.

    I hope that it’s not.

    William J. Brennan, Jr.:

    Well I have noticed you’re — you’re appealing the 1337, that’s the one —

    Bernard Dunau:

    Well, it’s 1331 or 1337.

    William J. Brennan, Jr.:

    Yes, that seems to me under both.

    You still have the arising under questions.

    Bernard Dunau:

    The arising under questions is identical under both.

    1337 is more natural in this case because it is the Railway Labor Act.

    It’s an Act regulating commerce and that would take care of any questions of $10,000 or less.

    So I think it’s more appropriate —

    William J. Brennan, Jr.:

    But the problem, although you’re quite right, the federal law governs, that this would only mean that the federal courts don’t have jurisdictions, the federal law has to be applied to state court to prove any access to it if I believe so, does it?

    Bernard Dunau:

    I think when we say we have a right to go into a federal court under the general jurisdictional statutes, we don’t say that mean that — there isn’t concurrent jurisdiction in the state courts, but that is true whenever you can get into a Federal District Court by virtue of the general jurisdictional statutes.

    Now, the respondent says, “You’re running too fast with this argument”.

    The respondent says, “A suit on an arbitration award is a suit on a contract.

    And therefore, you are not basing your action on the arbitration award, you’re not basing it on the Railway Labor Act, you’re basing it on the arbitration award on the contract.”

    You see that seems to me to be question begging, because whether I have a good action on this contract depends upon federal law, its Congress through the Railway Labor Act which has said, “Whether I have a good claim or a bad claim.”

    And because the law which provides efficacy to this contract claim of mine is federal law, that’s what makes it a claim arising under the Railway Labor Act, an Act regulating commerce.

    Now, you take the same contention put somewhat differently.

    The idea is expressed that here are six employee seeking reinstatement with back pay because of a wrongful discharge.

    Now, nothing in the Railway Labor Act confers a protection against wrongful of discharge.

    This is conferred only by agreement, so our action is not based on the Railway Labor Act or any protection conferred by it; it is instead based on the contract.

    But all this does, it seems to us, is to push the analysis back a few steps, but you come out of the same place.

    True, the contract gives us the underlying right and the parties would be free or not — the parties are free as they choose to incorporate this right into the contract.

    But having incorporated the right into the contract, federal law says, “You shall create a system board of adjustment to decide any disputes over those promises.

    You cannot go any place but the system board to adjudicate those disputes.”

    If that process eventuates in an award, federal law says that that award shall govern.

    So it seems to us that in the end, no matter where you begin, you come out with an award which we say is enforceable because the federal law gives us this right.

    Arthur J. Goldberg:

    [Inaudible]

    Bernard Dunau:

    On our reading, we would be squarely within Shultz.

    Arthur J. Goldberg:

    Would you say why?

    Bernard Dunau:

    Yes, for these reasons: whether we have a right to then have this award enforced depends upon whether we get this right from the Railway Labor Act.

    Whether we get this right from the Railway Labor Act, involves a construction of the Railway Labor Act?

    Whether in a specific situation where we bring a particular award with particular surrounding circumstances to a court, whether we will get that award enforced, or whether that award will be modified or vacated, turns on giving effect to the Railway Labor Act.

    Bernard Dunau:

    We’re putting it this way.

    The federal law gives us the standard for the enforcement of an arbitration award rendered by a system board.

    That is a construction of the Railway Labor Act.

    Federal law tells us whether in the particular circumstances, this award should be enforced.

    That is an application of a federal standard.

    It seems to us therefore that in every meaningful sense of Schulz, this is really and substantially a controversy over the meaning and effect of a federal law.

    Putting — put it this way; suppose Texas were to say, “We don’t think that award should be enforced which require the reinstatement of the employees particularly with a small employer because that involves personal service and that kind of personal contact that something which we find offensive as against public policy if it’s compelled.

    Well, Texas couldn’t, for a moment, begin to have that kind of a command under the Railway Labor Act because we would say and it would be perfectly clear, this is in conflict with what Congress has provided.

    Congress has said we can make such promises.

    Congress has said we can have such promises enforced.

    So it’s the Railway Labor Act.

    Congress through the Railway Labor Act which gives us the underlying command here, and that underlying command being federal in nature, it seems to us, we are squarely within the general jurisdictional statutes.

    Arthur J. Goldberg:

    [Inaudible]

    Bernard Dunau:

    I would rather not as say, Mr. Justice Goldberg.

    I’m afraid I would give more ignorance than to shed light if I try to do that.

    What I would say though is I think this thing can be tested in another way.

    If this is not federal law which governs, then it’s got to be state created. And if we state created, we have no business in a federal court absolute diversity.

    Where any place in this process, the state law like any rule at all, state law doesn’t compel the establishment of a system board.

    State law cannot forbid the establishment of a system board.

    State law cannot release the parties from obligatory recourse to the system board.

    The members of the system board don’t have to pay any attention to state law in construing the agreement.

    When they enter an award, state law has nothing to do with whether that award should be enforced, modified, or vacated.

    State law doesn’t enter into any place in this process.

    If state law doesn’t enter into it, it cannot be state created.

    It must be federal law which we bring into this case, and therefore we have a right to be in a federal court with it.

    In other words, when we bring this paper into a federal court, the only law we are bringing in to support our claim is federal law as traditionally interpreted, the Railway Labor Act.

    Now, if we are right up to this point, it seems to us that what the posture of this case is, comes down to as this.

    We can get into a Federal District Court by virtue of this general statutory grant.

    We ca be thrown out of that Federal District Court only if there is something in the Railway Labor Act itself which says that though Congress in 1875 has said, “You can get into a Federal District Court with a federal claim,” Congress in 1936 in enacting the air part of the Railway Labor Act has pro tanto repealed that general jurisdictional grant.

    Now, what is there that can reasonably be said in the Railway Labor Act, the air part to say that the general statutory grant which gives us our right to get into a Federal District Court has been impliedly repealed.

    Bernard Dunau:

    Now, the basic argument which is made there comes to something like this.

    Congress in the air part has provided that when the National Mediation Board shall think it good and fit, it may setup a National Air Transport Adjustment Board.

    When it sets up and if it sets up a National Air Transport Adjustment Board, that Board will have the same powers and responsibilities and all the perquisites of a National Railroad Adjustment Board.

    And one of the things about a National Railroad Adjustment Board is that there is specific provision in the rail part of the Railway Labor Act for access to a Federal District Court.

    William J. Brennan, Jr.:

    Would you be satisfied with the kind of access you get from the — in a Federal District Court under the railroad —

    Bernard Dunau:

    No sir, because —

    William J. Brennan, Jr.:

    You are asking for something, as I recall it, am I right, that when you go from the national board, you get except in cases of money award, you get a railroad at least that’s de novo review, doesn’t it?

    Bernard Dunau:

    It says in effect that it’s prima facie evidence of the fact stated.

    William J. Brennan, Jr.:

    So the railroad gets another crack at what has decided but one.

    Byron R. White:

    But that it’s so would be — well the money award isn’t being prima facie —

    William J. Brennan, Jr.:

    Not on the money.

    Bernard Dunau:

    Well, it’s hard to say because you can read these in several ways.

    Under the national — under the rail part it says, an award is final and binding except as to a money award.

    And then it also says that the award shall be the prime facie evidence of the facts stated.

    Now, I look at that and say the only relevance — that the only matters which are relevant in a Federal District Court as why shouldn’t this Railroad Adjustment Board award be final and binding.

    And as to that issue, if the underlying merits of the dispute do not seem to me to be relevant and so I don’t think that saying it has prima facie —

    William J. Brennan, Jr.:

    Well, whatever it may mean, whatever it may mean, you’re suggesting that at least if you’re entitled to be in a federal court, you get something different in a way of a review or a right to enforce them.

    Bernard Dunau:

    We would — we would argue that we are entitled to something more.

    William J. Brennan, Jr.:

    Something more than the — that —

    Bernard Dunau:

    We would say that under this contract, the parties have contracted in their words for final, and binding, and conclusive adjudication with no exceptions with respect to money awards that under the Railway Labor Act having contracted in that way the federal law says, “You’re bound by your promise.

    This is a good contract.”

    And we say, “One of the reasons for parties exercising an option for example under the rail part not to proceed under the National Railway Adjustment Board matter but —

    William J. Brennan, Jr.:

    It would be a better review.

    Bernard Dunau:

    They can contract for more finality if they go the other route.

    Now, the Congress did tell to the National Mediation Board, when it sees fit it can set up this other system and under this other system, there is a specific provision which lets you get into a Federal District Court.

    Now, granting this specific provision, the court below says.

    “Well look, if there is a specific provision which lets you get into a Federal District Court from an NRAB award or from a National Air Transport Adjustment award had no specific provision with respect to a system board that negatively implies that the Federal District Court is close to you and you can go only into a state court.

    Now, here I think is a fit illustration for Mr. Justice Holmes’ famous dictum, “A page of history is worth the volume of logic”, because when you look at the specific reasons that Congress setup his dual system, one can see quite readily that it has nothing to do with whether you should be in a federal court or in a state court.

    The original draft of this bill provided as it now does in exact terms for the setting up of a National Air Transport Adjustment Board when the National Mediation Board shall see fit to do so, but it made no provision for obligatory creation of a system board.

    The parties were free to create one or not as they saw fit.

    Bernard Dunau:

    If they didn’t create one, the National Mediation Board would have to decide these disputes over grievances and interpretation, and application.

    And the National Mediation Board at the hearing says, “This is just nonsense.

    We would be inundated with work if we have to decide these grievances and contract disputes.

    Our traditional job is to deal with major changes.”

    We, therefore, suggest if you don’t think it’s wise to set up a National Air Transport Adjustment Board now, that you require the parties to create an obligatory system, you make it — you oblige the parties to create their own system.

    And so the parties were obliged then this suggestion was adopted, the parties were obliged to create their own system as the equivalent of the National Railroad Adjustment Board System and the National Air Transport Adjustment Board was not created, why, because Congress said and this appears in the committee reports, there were then no agreements on these air carrier properties.

    There would be nothing for a National Air Transport Adjustment Board to do and Congress have said, wanted to save the money that would go into setting up a bureaucracy of a National Air Transport Adjustment Board until it was necessary to do so.

    Now if the reason for the deferral of setting up this National Air Transport Adjustment Board is economy-mindedness, certainly that is not a reason which shows that Congress intended to foreclose access to a Federal District Court.

    William J. Brennan, Jr.:

    I wonder Mr. Dunau are you arguing that perhaps the major premise was that of course there was enforceability, giving finality to the adjustment system, adjustment board award and that the special provision for the Rail National Adjustment Board review is a limitation upon the federal jurisdiction to give a complete enforcement to final award of system board.

    In other words, why don’t you use the special provision for review for these limitations of the National Adjustment Board award in your favor?

    Bernard Dunau:

    Well, I think we can’t use it in our favor.

    William J. Brennan, Jr.:

    Am I suggesting it to the Court?

    Bernard Dunau:

    But you’re making — you’re extending the argument beyond I — where I was willing to carry it.

    William J. Brennan, Jr.:

    I see.

    Bernard Dunau:

    There are things in the sys — in access to a Federal District Court under the rail part which would be favorable for example to a person seeking enforcement of the award.

    He can get his attorney’s bills paid.

    Now, he’s not going to get his attorney’s bills paid if you’re in a federal court under the general jurisdictional statute.

    On the other hand, he’s going to have to, if he’s got a money award facing trial de novo on that, in our view, he’s not going to have to do that if he can get into a Federal District Court through a system board which applies conclusiveness.

    So I think that you can argue that two ways and all we seek to show is that whatever the reason was for setting up a National Air Transport Adjustment Board and that is deferring its creation, it has nothing to do with Congress saying, “We wanted these questions of disputes over arbitration of awards not to be in a federal court.”

    On the contrary, they didn’t want to set it up at this point because they wanted to save money.

    They set up the national — the system board as an equivalent of the National Railroad Adjustment Board at least in terms of getting a final and binding disposition or a way of disposing of these controversies and here, I would carry the argument at least to this point.

    Since there was supposed to be duality, both of these systems were supposed to be just as good as the other in resolving these disputes, if Congress said it wanted that these disputes to be in a Federal District Court when an award was issued by the National Railroad Adjustment Board, certainly carrier would argue that it was not a verse to have in the same kind of dispute in a Federal District Court when the award was rendered by a system board.

    Potter Stewart:

    Do you think this was sort of inadvertence on the part of Congress?

    Bernard Dunau:

    I would think it clearly that it was simply an inadvertence on the part of Congress.

    They were concentrating up on another question, “How do you resolve the dispute where you don’t have a National Air Transport Adjustment Board and you don’t want the National Mediation Board?”

    This was the language which was directed to that problem and nothing in that problem or the way they handled it remotely imply that they intended a pro tanto repeal of the general jurisdictional status.

    Byron R. White:

    What if the National — in Railroad National Board situation in our Congress specifically suppose, all decisions of the national board the Court reviews and there’s only and only the facts were — of some — sound by the Board where there are some significance in the Court.

    Now, your argument is that the Court is — the Court’s job stops with enforcing the award.

    That it doesn’t go behind the award to either the facts of the law and that under this — under this act, the system board’s decision is final like an arbitrator’s decision.

    It’s final and isn’t it exposed to anymore reviews in our arbitrator decision in the 301 Enforcement Act?

    Bernard Dunau:

    Ultimately, we would make that thing.

    Byron R. White:

    So that really doesn’t make much difference, does it, of what the law is applicable in the Court — in the courtroom wherein an action be enforced?

    Bernard Dunau:

    Oh yes, it does because Texas may have a different rule as to finality than Alabama, and Alabama may have a very different rule than Hawaii and if it’s state law that’s —

    Byron R. White:

    Well no, I’m not saying — I’m not — I’m saying — I’m saying that federal law applies — the federal law has the finality applies by – just as you argue it, but it doesn’t make any difference of what law is applicable to the Court.

    The Court anyway, it doesn’t make and in what law is applicable behind the award.

    We’re dealing up to the making of the award.

    Bernard Dunau:

    If Your Honor has suggested that a state court is just as good a court as a federal court to apply federal law, I’m not disposed to quarrel as to that —

    Byron R. White:

    (Voice Overlap) there isn’t any thing to enforce — accept to enforce the award.

    Bernard Dunau:

    No, that could have raise in some very substantial problems with respect to what is the scope of our review.

    Well, I would like to say and hope that the law will ultimately develop to a high degree of finality and I’m not really certain where the law will go, that I think it’s going to take a lot of cases before that’s going to be settled.

    Byron R. White:

    If this is your argument, that it’s final, even money award.

    Bernard Dunau:

    Yes sir, it is.

    That’s our argument.

    But —

    Byron R. White:

    And you’re saying in this specific case that there is no room for the Court to look behind this award as to upon the merit.

    Bernard Dunau:

    That’s right.

    Byron R. White:

    On either the facts of the law.

    Bernard Dunau:

    That’s correct, sir.

    Byron R. White:

    And in this — on this basis that it’s merely a question of which the Court didn’t — if it’s a remedy problem.

    Bernard Dunau:

    Well, let me then answer it in two steps.

    I say there is no room to look behind the award as to the facts or law because federal law says there is no room to look behind the award as the federal law.

    So I look to the federal law and if I am right as to that, then no one can say I think that the only place I can go, is to a state court to enforce that federal law because Congress in 1875 has since has said, if I have a claim founded on federal law I have a right to get into a Federal District Court or to a state court as I choose.

    Potter Stewart:

    Well as a practical — as a practical matter though if you accept my Brother White’s premises, well what differences does it make whether you get your relief from the state or a federal court?

    Bernard Dunau:

    But if we wanted to be more practically, it may make a great deal of difference depending on what state court system you are in, because no matter what the state law or no matter what law may be as it is spelled out in the books as it’s applied at a trial court level, it may make a great deal of difference whether you got a sophisticated judge, a sympathetic judge, a judge who is more congenially attuned to here as a certain thought —

    Byron R. White:

    Not applied in a federal court.

    Bernard Dunau:

    It certainly does Your Honor and —

    William J. Brennan, Jr.:

    There aren’t as many of them.

    Bernard Dunau:

    [Attempt to Laughter] There aren’t as many, Your Honor, and I suppose what I am saying is in the management of a litigation if I can have a choice between a state court and federal court, I can make my choice based upon my own judgment as to where I am better off and Congress by enacting the general jurisdictional grant has said that with respect to federal rights, you can go to a federal court and I suppose one of the underlying reasons for that is to remove parochialism from the enforcement of federal rights even though they are supposed theoretically to the justice well enforced in the state court.

    Earl Warren:

    Mr. Hudson?

    Luther Hudson:

    May it please the Court.

    Luther Hudson:

    I’m under the impression — I don’t have much time before adjournment so I would say first that I’d like to interpose a defense of the state courts.

    I think that counsel is a little unfair to them.

    I have practiced in both the state and federal courts rather ambidextrously for almost 30 years now and I think that the juries and the judges come out of just exactly the same factories.

    They come out of the same homes.

    They come out of the same schools.

    I don’t think that it’s quite fair to say that — or I’ll put it this way.

    I suppose that the judges of the Supreme Court of Nebraska may go home and tell their wives that they are on the best court of the United States and I suppose members of this Court may say the same thing, but I think it’s little unfair to say that the state courts were incompetent to enforce federal law when they do it everyday in day in and day out.

    Now, I have said that and I have that out of the way so let me argue the case.

    This is nothing but a jurisdictional case and it is a simple action filed on a very brief complaint in a federal court asking that an award be enforced.

    That’s all it is and as I listen to the opposition, suppose this and suppose that and point out what might arise and what might not arise, I was wondering where in the complaint all of those points were raised.

    If I am not mistaken, that the District Court of the United States, the jurisdiction is determined exclusively from the complaint.

    I am not mistaken that it is a court of limited jurisdiction and that jurisdiction must appear on the face of the complaint.

    All in the world this complaint says is, that incompliance with article — he calls it 204, I’ve always called it 184 because I work out in the United States Court annotated, it’s at 204, the parties entered into a contract and the result of that contract, an award came about and the man wants to enforce the award.

    It does not say that he, the plaintiff in this case, has a right given to him by 184.

    It doesn’t say that there is a right there that was denied by this contract or by this defendant.

    It simply says that he has a contract.

    He doesn’t claim that 184 says that Mr. Cornstubble is entitled to have his job back.”

    He says that there’s no award, it says that.

    Now, I say he says true that the contract was ordered by Congress that we should enter into the contract.

    In a sense, any contract action arising under the Constitution of the United States because I think we’re still free men and we still have the right to enter into contracts and if you carry the argument to its complete absurdity, then any action to recover on the contract is an action arising under the Constitution.

    It says, “I have the right given by the Constitution to enter into a contract,” but you do not get the jurisdiction in the District Court.

    You do not get the Court of a limited jurisdiction simply because somewhere in all of this there is a federal statute.

    The counts of argument would be of real sound to me.

    It would sound to me well.

    It would sound to me perfectly expressed, if you are arguing the jurisdiction of this Court.

    If you are arguing the jurisdiction of this Court to grant certiorari, if you are arguing that this Court when a federal statute have been misconstrued, when it had been misapplied, that when a state court had done something wrong with it that this Court had jurisdiction.

    He’s making no distinction between the jurisdiction of the District Court and this Court, and if there is no distinction then I don’t belong here and the Circuit Court was wrong in this case and the Metcalf case.

    If there is no distinction between the District Court’s jurisdiction and this Court’s jurisdiction under the general jurisdictional statutes then the trial court was wrong and so were the Circuit Courts and so am I.

    But the reason there is no jurisdiction is just because of the distinction between the jurisdiction of this Court and the jurisdiction of the District Court.

    The jurisdiction of this Court is determined after the facts of —

    Earl Warren:

    We’ll recess then, Mr. —