McKinney v. Missouri-Kansas-Texas R. Company

PETITIONER:McKinney
RESPONDENT:Missouri-Kansas-Texas R. Company
LOCATION:Alabama State Capitol

DOCKET NO.: 93
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 357 US 265 (1958)
ARGUED: Jan 27, 1958
DECIDED: Jun 23, 1958

Facts of the case

Question

  • Oral Argument – January 27, 1958 (Part 1)
  • Audio Transcription for Oral Argument – January 27, 1958 (Part 1) in McKinney v. Missouri-Kansas-Texas R. Company

    Audio Transcription for Oral Argument – January 27, 1958 (Part 2) in McKinney v. Missouri-Kansas-Texas R. Company

    Earl Warren:

    Mr. Laughlin, you may proceed.

    John G. Laughlin, Jr.:

    If I may at this point I would like to emphasize that in this case we have I think no question of whether or not the employer might have exercised any discretion that he might have had with respect to a promotion or to the preferential right to this petitioner would have been entitled to had he been continuously employed.

    I emphasize that here, the employer has, if he had discretion or complete discretion, exercised it by placing petitioner in the group one position of assistant cashier and permitting him to displace the nonemployee incumbent and — in that position.

    He seeks here a seniority date in the group one status that he would have had had he been continuously employed.

    Felix Frankfurter:

    I don’t — I’m left — a little confused, before recess you indicated in reply to a question by Mr. Justice Douglas that what you are seeking is on the pleading the right to determine that he was in a — he was in a position whereby he was qualified to be selected by the employer to this — to this more desirous senior position, is that right?

    John G. Laughlin, Jr.:

    Well —

    Felix Frankfurter:

    Is that what you said in answer to this question, by Mr. Justice Douglas?

    John G. Laughlin, Jr.:

    I don’t know that I said that.

    I think what I —

    Felix Frankfurter:

    The question was that you objected to — that this came up on a motion to dismiss which — which rule as a matter of law where as a matter of fact you said you could prove a prior claim, is that right?

    John G. Laughlin, Jr.:

    What I intended to say if I didn’t say is that he should be entitled to a trial.

    Felix Frankfurter:

    To a trial.

    But now you say as a matter of law, as a matter of law, he would have been appointed to this position.

    Isn’t that what you just said a minute ago?

    John G. Laughlin, Jr.:

    No.

    I say that as a matter of fact he has been appointed to this position.

    Now, what he is entitled to a trial on is the issue as to what date he would probably have obtained this position had he been continuously employed.

    And that for purposes of determining the seniority date which we think he is entitled to in the group one status.

    Felix Frankfurter:

    Well, I understand you again, so to refer to the question I put you before the recess, would that require — should he complain that he wasn’t put in a position to which if the employer have exercised his fair discretion he might have been, the date.

    Does that mean he has to — that we now have to send this back and it has to go to procedure under 31?

    John G. Laughlin, Jr.:

    No, I think not Mr. Justice —

    Felix Frankfurter:

    Why not?

    John G. Laughlin, Jr.:

    Mr. Justice —

    Felix Frankfurter:

    Can he get anymore — can a man got anymore under this record service act that he would have had if he had continued without war interruption.

    John G. Laughlin, Jr.:

    I think not.

    Felix Frankfurter:

    All right.

    John G. Laughlin, Jr.:

    He asked for —

    Felix Frankfurter:

    But if he — if — if under — if the latter situation had prevailed namely, that the industrial condition would have — under that, he merely would have had a grievance if he hadn’t given the right he has under a collective bargaining.

    Then why does he get anything different if not more?

    And under the collective bargaining, if he isn’t put — put in a position of seniority, he can complain under your Rule 31.

    Felix Frankfurter:

    Why should the Court now determine, is there a jury or whoever does it?

    John G. Laughlin, Jr.:

    Oh, I think so because of the statute, Mr. Justice Frankfurter.

    Felix Frankfurter:

    Well, then we’re back again, asking around will he again — you said that he can’t get anything more under the statute and if the collective bargaining agreement had operated without interruption of war.

    John G. Laughlin, Jr.:

    Well —

    Felix Frankfurter:

    Can he get more?

    John G. Laughlin, Jr.:

    If the — if the collective bargaining agreement is inconsistent with the benefit or contrary to the benefits conferred by the Act then he can get more.

    Felix Frankfurter:

    But it’s a collective bargaining — if the collective bargaining contract receives the statute then the collective bargaining contract determines what he’s entitled to and is read into the statute, that’s what they decided in the Aeronautical case.

    John G. Laughlin, Jr.:

    Well, if that were the case in all instances, in this case he would have no case because the collective bargaining agreement says that seniority commences on the day that the pay commences in the group in which he is employed.

    Felix Frankfurter:

    But why does he get more than he would have had if there had been no war?

    I can’t — understand that.

    John G. Laughlin, Jr.:

    I don’t think he gets anymore than he would have had in this case had he been continuously employed.

    Felix Frankfurter:

    Very well.

    Then the measure of his right are the continuing operation of the collective bargaining agreement, is that right?

    John G. Laughlin, Jr.:

    That is certainly one of the measures, the primary measure.

    Felix Frankfurter:

    I don’t know what that means.

    John G. Laughlin, Jr.:

    Well, I think —

    Felix Frankfurter:

    The measure of his right is that which the collective bargaining would have given him if the war hadn’t interrupted its operation.

    John G. Laughlin, Jr.:

    Yes.

    And I — when I say in that primarily I think that in many instances the rights that he has may arise out of the custom and practice of the employer.

    Felix Frankfurter:

    But I regard that as far as the collective bargaining agreement because that’s — that issue it.

    John G. Laughlin, Jr.:

    I think that — I think that is right

    Felix Frankfurter:

    And therefore it doesn’t make any difference whether it’s by practice or by perceiving these words.

    I still insist on having you tell me to what extent if this can prove that the rights and obligations of a collective bargaining agreement antedating the statute and his service are infused into the statute?

    John G. Laughlin, Jr.:

    Well, the best answer I can give you is that if it is inconsistent or denies to the veteran the seniority benefit that he would have had — or that he would have or is entitled to under the statute, then you look to the statute.

    And of course that —

    William O. Douglas:

    Or to put it in another way, the grievance — under the grievance procedure, the grievance committee or tribunal would have to apply the statute just like a court.

    John G. Laughlin, Jr.:

    Well, we — we are of the view that he may — if there is a denials of the benefit or a refusal to comply with the benefit to which he is entitled under the statute then his remedy is in the District Court.

    Felix Frankfurter:

    But — but what I’m saying is what he’s entitled under the statute cannot be ascertained without looking at the collective bargaining agreement for the continuity of which he is — on the continuity of which as to him, he insist.

    John G. Laughlin, Jr.:

    Yes, I think that’s right.

    His right to the earlier seniority date here is predicated of course upon the escalator principles as enunciated by this Court in prior decisions arising under the Selective Service and Training Act of 1940.

    John G. Laughlin, Jr.:

    The so-called escalator principle has now we think been codified into Section 9 (c) (2) of the present Act.

    We think that there is no longer room to question or doubt that an honorably discharged veteran is entitled to the status in his employment and a seniority date in the status that he would have had had, had he been continually employed.

    And we think that by permitting petitioner to assume the group one position of assistant cashier, the employer in this case has implicitly recognized either his rights under the collective bargaining agreement or the statute or both.

    What he asked now is that this seniority date in that position be made retroactive to September 8 or 10 of 1952.

    Now, the Diehl case by this Court we think is dispositive of his right to this additional benefit.

    There, the Court will recall, the veteran returned from his service and resumed his private employment.

    He was thereafter given an advanced status in the employment and he brought suit to obtain a seniority standard — seniority standard on the seniority roster in the advanced position that he allegedly would have had had even continued — have been continuously in his employment.

    The Court will call the holding in that case reversing the Court of Appeals for the Third Circuit was that he was entitled to the earlier seniority date in the advanced position.

    Now, since the Diehl case have been two Courts of Appeals which have looked upon the Diehl decision as dispositive of both the question of whether a veteran is entitled to the advanced status that he would have had had, had even continuously employed.

    And whether he is entitled to a seniority standing in that advanced status that he would have had or would probably have had had he been continually employed.

    Now, the Court of Appeals for the Tenth Circuit in this case did not so much as referred to the Diehl case.

    Instead we think that it has adopted —

    Earl Warren:

    Mr. Laughlin, the thing that bothers me is where you say that to which he was entitled or probably would have been to which he have been entitled, that’s —

    John G. Laughlin, Jr.:

    Well, perhaps entitled is not the best word.He probably have had or obtained.

    I say that because — I mean, I deal in terms of probability because I don’t think you can ever determine with any degree of certainty or positiveness what status a particular veteran would have achieved in his private employment had he been there.

    You are reconstructing the past and I don’t think you can do it in a degree or any more than a reliable degree of certainty.

    Earl Warren:

    Yes.

    Well, the thing that still disturb me is whether that probability depends upon the question is to whether the employer would consider him to be qualified for the promotion.

    Is that — is that the thing that the — that — of course you say or probably would namely that the employer probably would have concern him to — to have been qualified for it and therefore would have appointed him?

    John G. Laughlin, Jr.:

    Well, here of course he — we tie it to the collective bargaining agreement and he was entitled to apply for this position or he would have been entitled to apply for this position.

    And he would have been entitled to a preference over the nonemployees who were actually hired in his absence.

    Felix Frankfurter:

    I’m sorry to be taking your time but this seems to me very important.

    Suppose the employer now says, I would not have appointed you in 1942 or whenever it was, I would have referred Jim Jones to you and I was right to make that choice.

    Now, since we are retrospective, why shouldn’t the same mode by which McKinney has a grievance prevailed and why does the statute cut out to procedure by which that issue is determined, I do not understand that.

    John G. Laughlin, Jr.:

    He is seeking to enforce a statutory right.

    Felix Frankfurter:

    And what does the statute say?

    John G. Laughlin, Jr.:

    That he is entitled to be restored without loss of seniority.

    Felix Frankfurter:

    And when — how do you know whether he’s — and what determines whether he is or isn’t entitled.

    If it’s a question of discretion can — looking back and the answer of that isn’t true in 1942, you would’ve picked me, you now say, you wouldn’t have pick me.

    Why isn’t it a grievance to which he is complaining provided for by this anteceding agreement which seeks to avoid the frictions by having us to establish procedure for determining this conflict?

    Felix Frankfurter:

    Why is that cut out by the statute?

    John G. Laughlin, Jr.:

    Well, to this extent if he is asserting a statutory right, that he —

    Felix Frankfurter:

    But my whole point is that we have — you assert he is asserting a statutory right and the only statutory right he has is to be put in a position he would have been in 1942, is that right?

    John G. Laughlin, Jr.:

    Put in the position he would have been had he been continuously employed.

    Felix Frankfurter:

    Yes.

    Now — now, how do you that if there’s a conflict about that there is a regular peaceful procedure for determining that within the shop or within the industry or whatever it is.

    And you say the statute cuts that procedure out, is that right?

    John G. Laughlin, Jr.:

    Well, that would be Section 9 (d) of the statute which gives to the employee who is denied or is refused the benefits to which he is entitled under the Act, the right to go to District Court to compel compliance with the Act.

    Felix Frankfurter:

    But all he is entitled to under — if he had continued, what would he been entitled to?

    He would have been entitled to assert his right, the employer rejected that right.

    Very well, they come to a conflict and then there’s a mode of determining.

    That’s all he’s entitled to.

    John G. Laughlin, Jr.:

    No.

    I respectfully —

    Felix Frankfurter:

    Mode of procedure the way and pay — pay isn’t a fixed strike, is it?

    Does it?

    Is it?

    John G. Laughlin, Jr.:

    A fixed rate —

    Felix Frankfurter:

    That he’s entitled to what — he’s entitled to the choice that the employer would have made in 1942, is that right?

    John G. Laughlin, Jr.:

    Well, in the ordinary situation perhaps.

    Felix Frankfurter:

    I mean, in this situation.

    John G. Laughlin, Jr.:

    Well no.

    He — the employer has made his choice here, we say.

    Felix Frankfurter:

    Well then there’s no problem.

    John G. Laughlin, Jr.:

    There’s no problem we think that he is entitled to the seniority date in the advanced position which the — the employer has either voluntarily or compulsory given him.

    Felix Frankfurter:

    But if the employer has made a choice which entitled him to the seniority, then you wouldn’t be here.

    John G. Laughlin, Jr.:

    Well, the seniority will not depend upon the — the employer’s choice.

    This — the seniority, the retroactive seniority date depends upon the statute.

    They rest upon the statute.

    Felix Frankfurter:

    Well, I suppose I won’t take anymore of your time but I can’t follow you.

    John G. Laughlin, Jr.:

    We think that the test that the Court of Appeals for the Tenth Circuit has applied in this case is unduly restrictive and places an unwarranted or an over exacting burden upon the returning veteran.

    As I’ve said, I think the most that should be expected of the veteran is that he be able to show as a reasonable probability the status that he has obtained upon his return from service would have been acquired at an earlier date had he been continuously employed.

    This we think was born out by the cases the Courts of — coming from the Courts of Appeals for the Fifth and Sixth Circuit subsequent to the Diehl case and is also born out by at least two District Court decisions.

    Hugo L. Black:

    What would be the line of evidence that he could — he would put up in the line of evidence that the defendant was to put up to refuse it.

    John G. Laughlin, Jr.:

    To refuse the —

    Hugo L. Black:

    That is the state that he has a right to the promotion.

    The fact that he would — might have been promoted probably (Voice Overlap)

    John G. Laughlin, Jr.:

    Well —

    Hugo L. Black:

    What line of evidence would he have offered?

    John G. Laughlin, Jr.:

    Here, I think the evidence should — should be directed to the point or the date upon which he would probably have obtained group one status.

    Hugo L. Black:

    Why?

    John G. Laughlin, Jr.:

    Well, because we think that the — any issue as to his fitness and ability was resolved upon his being permitted or being assigned to the group one position upon —

    Hugo L. Black:

    When was he assigned to that?

    John G. Laughlin, Jr.:

    On October 7 when he returned from the service.

    Hugo L. Black:

    From the service of what?

    John G. Laughlin, Jr.:

    1950 — 1940 — 1952

    Hugo L. Black:

    And what was the date when the other man gets the place?

    John G. Laughlin, Jr.:

    One was appointed on the 15th and of September 1952 and the other on the 22nd of September 1952.

    Hugo L. Black:

    Do you say that by reason of the fact that he was appointed in which time was so short between those dates that it’s easy to see and to determine and automatically follows that he would have gotten the promotion?

    John G. Laughlin, Jr.:

    Well, I think it makes it much easier that you have a very short time as here and that certainly is to me persuasive evidence of the status that he would have obtained and of the date that he would have obtained the group one standing had he been continuously employed.

    As a say, the absolute right test seemingly adopted by the Court of Appeals here is an over exacting burden, places an over exacting burden upon the veteran.

    And if this were the proper test or criterion for the application on the escalator principle or the continuous employment test it would I think necessarily have led to an opposite result in the Diehl case and in the Mann v.Crowell-Collier Publishing Company case coming from the Sixth Circuit and from the Morris v.Chesapeake & Ohio Railroad case coming from the Seventh Circuit.

    Hugo L. Black:

    How did he ever — to get promoted in that so short of time after the other man got his promotion?

    John G. Laughlin, Jr.:

    He was — how — how did Mr. McKinney —

    Hugo L. Black:

    I’m just curious — I’m just curious as (Voice Overlap) —

    John G. Laughlin, Jr.:

    Well, so far —

    Hugo L. Black:

    If you can tell me about — they put somebody in this place that he was entitled, he would have been entitled had he been — but in October, he came back and they put him there?

    John G. Laughlin, Jr.:

    That’s right.

    Hugo L. Black:

    What was the — what change had occur that’s led — made to make this?

    John G. Laughlin, Jr.:

    It hadn’t been vacant, he bumped it, the appointee of September 22 out of the position.

    Hugo L. Black:

    And put him in?

    John G. Laughlin, Jr.:

    And put him in.

    Hugo L. Black:

    How much is involved in this?

    John G. Laughlin, Jr.:

    Well, in terms of dollars and cents?

    Hugo L. Black:

    Yes.

    John G. Laughlin, Jr.:

    $10, there’s a difference between the group one position which he claimed he is entitled to and that of the position which he has occupied since his demotion is $10.08 per week.

    Hugo L. Black:

    So how many weeks are there?

    John G. Laughlin, Jr.:

    Well, it’s been — he was demoted in September — on September 5 of 1953, were going into the fourth, fifth year now.

    Hugo L. Black:

    They don’t get that, in both of those years.

    John G. Laughlin, Jr.:

    Well, $10.08 per week, he had been in the group two status since September 5 of 1953.

    Hugo L. Black:

    Well, I thought — I thought there’s only a difference between September and October of 1952 according to your statement.

    John G. Laughlin, Jr.:

    There is that difference between the dates that he would have obtained group one status and the date that he actually obtained it, but he was demoted Mr. Justice Black from his group two or group one position on September 5 of 1953.

    He only occupied that position for approximately one year then it was abolished.

    William O. Douglas:

    He’s back in the group two?

    John G. Laughlin, Jr.:

    He is back in group two.

    So if he were — or if he was wrongfully demoted he is entitled to compensation for — there’s a difference between the two positions for the period of his wrongful demotion until he is restored to his group one status.

    I thought that was the — the subject of your inquiry.

    I’ll reserve such time as I have remaining.

    Earl Warren:

    Mr. Clinton.

    M. E. Clinton:

    As counsel stated this case is before the Court on a writ — on a motion to dismiss and the correctness of the ruling is to be determined by the pleading rather than by statement which may had been made which go beyond the pleading.

    We do not think that this gentleman filed a cause of action.

    He did not allege that there was a test or a question of his fitness and ability raised and upon that issue the company decided that he was fit and able and therefore gave him this job.

    The pleading does not recite why or under what circumstances that was done.

    In our brief, a statement is made that he was given this assistant cashier job on — as of October 7, 1952 through a mistake of law.

    And that therefore we have the right to correct it when the circumstances arise such as force reduction and the matter was brought to our attention again and we do correct it.

    If it were — has a mistake of law, it could have arisen as counsel said, I don’t know whether it’s true or not.

    But he said that the man was permitted to bump the man off of the assistant cashier’s job.

    Well, if that’s what happened, it would be a mistake of law because he could only bump the man if he had seniority in group one which he didn’t have at the time the bump had took place.

    So if he bumped the man it was a mistake of law and contrary to the contract itself which requires that bumping can be done only in the exercise of seniority in the group in which the position is located.

    We’d like to state that this man has now the exact position which he had when he entered military service.

    M. E. Clinton:

    He has now the exact date in that position which he had when he was in military service.He has not been deprived of any seniority.

    And as in the question as to whether the statute gave him any greater right than the contract it itself, the statute itself, Section 9 (c) (1) and the preceding Section does not undertake to give a man in so many words a promotion right.

    Neither does 9 (c) (2) using as such or as to this language.

    Now, the statute therefore on its face does not give it.

    And we do no think the legislative history of the Act show us that he was entitled to it either because Senate Bill 2655 was introduced in the 1940 — in 1948.

    House Bill 6401 was introduced.

    The Senate Bill was substantially the same in respect to this face of the law as the 1940 Act.

    The House Bill went on the say that he would be entitled to promotional rights, the promotions to which he might have had if you had remained in the service and had not joined the army.

    When the Senate Bill was passed and went to the House, the House amended the Senate Bill, was striking out everything except the enacting clause and setting out the House Bill as an amendment of the Senate Bill.

    And it went to conference and as a result of that conference the — they came out with a bill reinstating in effect the Senate provisions in eliminating the House provision about the man being entitled to such promotions as he might have had had he remained in the company’s employ.

    Now therefore, under the statute by its expressed language and not of the legislative history, he is not entitled to what he seeks.

    If he is entitled to what he seeks he must get it by virtue of the collective agreement.

    Answering Mr. Justice Frankfurter, of course the statute does not give him any greater rights than he had at the time he entered the service as spelled out in the agreement.

    Felix Frankfurter:

    Does it give him any different right?

    M. E. Clinton:

    I don’t think it —

    Felix Frankfurter:

    Most specifically, if his right under the collective bargaining — under a collective agreement is to determine by — to be determined by a particular procedure, does he under the Section 9 get a right to disregard that procedure and ask the Court?

    M. E. Clinton:

    I don’t think so.

    I don’t think that he has such a right under the collective procedure because I think Section 1 (3) (a) where it says that a group two employee will be given preference in filling a group one position based upon fitness and ability.

    I think that that is solely within the discretion of the employer.

    The question of fitness and ability is not subject to review by any board or anyone else.

    And you can imagine the chaos which would result in any industry if after some four or five years, thousands among people — a thousand among people could go back and say that if I had been here, I would have asked for this job.

    How do we know he would have asked for it?

    There’s nothing in his complaints stating that if he had been here he would ask for it.

    It only says that he was not given an opportunity to ask but there’s no allegation that he would have asked even.

    How do we know he would have asked?

    There were people on group two positions that didn’t ask, is not at all unusual to have people in group two pass by bulletin position in another district.

    Earl Warren:

    Mr. Clinton, under your collective bargaining agreement, suppose there were a number of employees that the employer considered fit and qualified for this particular job but suppose he had in his own mind the degrees of fitness, did he have the right to select those for one — the one whom we thought was disqualified —

    M. E. Clinton:

    The employer?

    Earl Warren:

    — or — yes.

    Or did he — or was he obliged to take the senior one in the group that he considered fit and qualified?

    M. E. Clinton:

    He can take anyone he wanted to and the fact that one might have a rate of seniority than another in group two has nothing to do whether — who gets the position in group one.

    It’s discretionary entirely and based on fitness and ability, seniority in group two has nothing to do with it.

    There’s another bit of legislate —

    Can I ask you a question in that point.

    Supposing — go back to situation before this man in the army.

    And supposing he had applied and the employer had given it to the nonemployee (Inaudible) and your man, this petitioner charged that the decision were not made in good faith.

    That the fact the employer had not taken into account ability and fitness but he didn’t like the color of his hair, do you still say that would be unreviewable?

    M. E. Clinton:

    Well, that be rather an extreme case.

    It may be that if he can prove that an employer didn’t even consider it at all —

    It isn’t an absolute — it isn’t an absolute choice to the employers.

    M. E. Clinton:

    It might to have that variation.

    Felix Frankfurter:

    Well, is it any different from the choice of agencies in the Federal Government to take one of three, if that’s — that is the law that any department or bureau can take one of three that — that there — that the Service Commission certified, the employer can take him for any reason, no reason or bad reason or indifferent reasons.

    He is really against credited people, he doesn’t have to say I don’t want to write it in then but he doesn’t take it.

    No amount of complaint in pay.

    He rejected me.

    I found out terms of each particular strange creature that doesn’t like credited people in your office and that’s why he rejected me.

    I don’t suppose any Court would entertain that proposition.

    M. E. Clinton:

    I don’t think they would.

    In answer to Chief Justice’s question, let me get straight.

    The vacancy occurred.

    There were three or four men who — fit and capable of the job and that — and everybody admits that but they haven’t insisted seniority.

    Now, is it your answer to Chief Justice that the employer can disregard the date of seniority and pick anyone of those three he wants to?

    M. E. Clinton:

    Yes, sir.

    Because there’s nothing in the collective agreement which requires the employer to take the oldest or the man having most seniority in group two in filing a position in group one.

    There’s nothing in the agreement about it.

    Do you mean, seniority (Inaudible)

    M. E. Clinton:

    Not so far as going from one seniority group to another.

    You see, this is not a case where a person, of several people in one seniority group and the person maybe entitled to another position in that group.

    This man is going from group two which is a separate seniority district and so declared to be by the agreement.

    The agreement says that each one of these groups have there own seniority.

    M. E. Clinton:

    So whether or not they’ll permit a group two man to go to group one is not necessarily and is not dependent upon his seniority in group two.

    It’s like a fireman going to be an engineer or a break man going to conduct.

    The agreement does not require that.

    I forgot to mention that little legislative history about this nine day.

    Now, this gentleman claims — counsel claims that he gets some right under 9 (c) (2).

    Well 9 (c) (2) by its very terms does not give him this right but furthermore that merely says that it is the intents of Congress or intent of Congress that certain thing shall be done.

    It’s precatory, is not mandatory.

    And furthermore in 1956 — furthermore in 9 (d), conferring upon the federal court’s authority to enforce portions of this Act, they expressly omit 9 (c) (2).

    He referred to subsection (b) and subsection 9 (c) (1) and now (g).

    In 1956 (g) was added.

    And when it was added in 1956, the Senate Bill 3307 was introduced under which if it had been adopted, this Section would have been amended and 9 (d) to read that the federal courts could enforce any rights under this Section which would included 9 (c) (2) and everything else.

    But the Senate Committee Report on that bill came back and they only put (g) in, because they said in plain English that otherwise, it would confer upon the federal courts the right to enforce all of Section 9 and that was not intended.

    Now, that is not in our brief.

    It’s something we developed since.

    And I can — if the Court will permit I’d like to follow just a brief memorandum of the citation and give it to opposing counsel.

    Earl Warren:

    You may do that.

    M. E. Clinton:

    So we say that a — furthermore, there is no decision of this Court that we know of that covers the situation of this kind.

    Certainly, we say we complied with the Fishgold case.

    We’ve given the man what he had.He is back on the escalator where he was, same job, same seniority date.

    The Oakley versus the L-N case, merely held in effect that they didn’t give a man the — he is — he’s already in the job before he went to military service, no question about him moving into — after he got back, he was already there.

    They said they didn’t give him his right date but he didn’t make any difference because a year has expired and his rights were cut off because that — that isn’t true.

    His seniority rights go beyond a year.

    And the Diehl case, why that is — doesn’t dispose of this case because there, there was a contract provision which said that if a man, or when a man had worked a 1160 hours in a certain capacity, that he would be entitled to elect, whether he would take this position or that position.

    And furthermore, before the agreement itself was made, this man in fact had worked 1160 hours.

    The question there was, though whether or not while he was in military service, his time should have been computed more than 1160 and to say that that case controls this, well, it’s a little absurd.

    Felix Frankfurter:

    That was merely a — almost an arithmetic problem.

    M. E. Clinton:

    Yes, sir.

    I think that’s very — well, except as we do not admit there’s no question about fitness and ability (Inaudible)

    There’s no allegation to that effect.

    Earl Warren:

    Mr. Donohue.

    Carroll J. Donohue:

    Mr. Chief Justice, members of the Court.

    I represent the Brotherhood of Railway Clerks which intervened in this action, filed a motion to dismiss which most — that motion was sustained and we have proceeded through the appellate processes as a party to this case.

    It’s my primary objective to touch upon some matters over and above the subject matter dealt with by Mr. Clinton.

    But I should like first to say clearly and emphatically that we urge upon the Court that the result achieved below was correct and should be affirmed and sustained by this Court.

    We concur on the issue raised by Mr. Clinton and discussed by counsel for the government.

    We concur with the Railroad that no cost of action was stated.

    The matter was properly dismissed.

    I think I can summarize very tersely precisely how we understand the issue here.

    We believe we comprehend the terms of the statute and we think we understand the escalator principle annunciated in the Fishgold case.

    And then as far as I’m concerned another uniformly followed subsequently.

    We believe that this concept of reasonable probability is a fanciful figment to the imagination which has no basis whatever in the decided cases, no basis under the statute and should be fairly disregarded.

    We think in addition that crystalizing what this contract is all about and what it means, that there is absolutely no basis under the terms of this contract where the petitioners claim, there is nothing to send back to a trial court.

    We feel that it’s crystal clear that under Rule 1 (3) (a) which is the one involved here, the references to the moving from class two to class one are solely and exclusively precatory and nothing more and nothing else, and therefore that no right of any nature, description exist on the part of this petitioner, nor is there any probability one way or the other that’s legally recognizable.

    If Your Honors will note the South (Voice Overlap) —

    William O. Douglas:

    (Voice Overlap)

    — substantial difference in the rights, isn’t it true whether seniority in group two and the seniority in group one, as I understand the argument.

    Carroll J. Donohue:

    Well now, what I’m arguing —

    William O. Douglas:

    There is not?

    Carroll J. Donohue:

    — is that there is no right whatever to move from two to one.

    There is a seniority right within the people in one and a seniority right with the people within two.

    William O. Douglas:

    There — there is a method of getting two to one, isn’t there?

    Carroll J. Donohue:

    I don’t think so, I think it’s entirely a matter of management’s decision.

    Let’s examine this paragraph.

    William O. Douglas:

    Is that — would that be covered by paragraph 3 of the collective agreement?

    Carroll J. Donohue:

    I think it is.

    William O. Douglas:

    Grievances?

    Carroll J. Donohue:

    Well no, grievances are covered by another paragraph, Your Honor.

    The — the paragraph that I’m referring to which talks about the movement from two to one —

    Where are you reading from?

    Carroll J. Donohue:

    At page 6 Your Honor of the transcript, paragraph 3A indicate this by a capital A.

    Carroll J. Donohue:

    I’m starting with the second sentence, promotion will be confined to the group herein named with the exception that employees on positions enumerated in group two will be given preference over nonemployees in the assignment to positions in group one based upon fitness and ability.

    And then it refers to a Rule 6 which has no bearing on what we are talking about here.

    William O. Douglas:

    Well, were the — the persons who got the preference here were nonemployees.

    Carroll J. Donohue:

    We — let me — in this particular case nonemployees were hired.

    We don’t believe that that language confers any legally recognizable right on anybody.

    It’s simply an utterance.

    We’ll do the best we can for you if we can.

    But it’s apparent from the language of that paragraph, its lack of certainty, its lack of mechanics for being carried forward that its nothing but a precatory utterance that a break will be given to the people in group two to be put up to group one if management wants to do it and there is no —

    Felix Frankfurter:

    If —

    Carroll J. Donohue:

    — no more or less than thereto (Voice Overlap).

    William O. Douglas:

    Yes.

    We (Inaudible)

    Carroll J. Donohue:

    What’s that Your Honor?

    William O. Douglas:

    It says that the tenure, he got that —

    Carroll J. Donohue:

    We say there is no rational way in the world to tell whether he would or he would not.

    William O. Douglas:

    He wants a jury trial to whether or not he would have.

    Carroll J. Donohue:

    We don’t there’s any basis for him to have it.

    Felix Frankfurter:

    Would it be subject for agreement or procedure (Inaudible)

    Carroll J. Donohue:

    Well, of course there’s a very broad grievance procedures spelled out in the — in the agreement.

    And therefore certainly I think there is no reason that he couldn’t initiate one, what would ultimately be held and whether it would be held that he had a right to proceed would be another matter.

    Felix Frankfurter:

    But you — if you have read the grievance procedure, it said — he said, “I wanted to go to the grievance to do that.”

    Carroll J. Donohue:

    I — I think you could do that with any kind of complaint he have.

    Felix Frankfurter:

    Do you say that — that’s all he could do?

    That they — that’s all he all he could do?

    Carroll J. Donohue:

    Well, I think —

    Felix Frankfurter:

    Within the amplitude of the collective agreement, he could raise any question.

    So practically —

    Carroll J. Donohue:

    That’s right.

    Felix Frankfurter:

    — for grievance?

    Carroll J. Donohue:

    If he raises a specific question I think the answer would be this is a decision for management —

    Felix Frankfurter:

    Well, then (Voice Overlap) —

    Carroll J. Donohue:

    — but he at least would have the right to invoke.

    Felix Frankfurter:

    That depends upon whoever, if this may eventually go up into some private arbitrary (Inaudible) or maybe go up with the adjustment board —

    Carroll J. Donohue:

    Well, that — we’ll come to that of course.

    Felix Frankfurter:

    All right.

    Carroll J. Donohue:

    We urge that there is no right created by this contract and actually, nothing for a Court to determine.

    Well, under this paragraph that you are reading that he, a group two, and a — and there’s vacancy in the group one, the group two (Inaudible) of the seniority list?

    Carroll J. Donohue:

    There might be.

    And then the vacancy occurred and the nonemployee turned up.

    Carroll J. Donohue:

    Right.

    And — and the employer put in number two on the group two list instead of number one?

    Carroll J. Donohue:

    I think the employer can put in anybody he wants.

    I think he has a — perhaps a precatory moral obligation to look over the group two people.

    You will note carefully that there isn’t any priority on the group two seniority to this preference.

    This — this doesn’t give either group two any — any right in — in your theory or any senior within group two?

    Carroll J. Donohue:

    No, it’s not.

    Within group two is another matter Your Honor.

    Within group two there is seniority and based upon the rest of the agreement, not included in this paragraph.

    There is seniority within group two, recognizable and enforceable, but what I am saying is that nobody in group two has any right to be put into group one.

    Even though he’s fit and able?

    Carroll J. Donohue:

    They may all be fit and able, even though he’s fit and able.

    I think the language is clear.

    You — patently, the language here just isn’t definite and certain.

    How could you tell which one in group two?

    It simply says that the preference will be given to group two employees.

    Do they have any seniority in — in group two where you take number one in group two?

    Carroll J. Donohue:

    I — I don’t — I don’t think Your Honor that the contract says anything of the sort.

    I think you have to read into the contract a considerable amount of material that isn’t there to arrive with that conclusion.

    Felix Frankfurter:

    Well now, you’re — you’re very firm and unequivocal in saying that this is precatory and — and that’s all.

    In other words, that of course is affirmatively that the management is unrestricted, be it (Inaudible) or put people is — is under no legal obligation, no under contract obligation, take anybody from class two to class one if in consideration bring (Inaudible).

    Felix Frankfurter:

    What I want to know is what materials there are, if we have to decide that, if that’s the (Inaudible)

    Part — part of the problem before us to construe their collective agreement, and I go on — don’t want to decide that without having a great deal of the practical application to this agreement in the light of the agreement and the experience both of management and of your Brotherhood, are there such materials?

    Carroll J. Donohue:

    Mr. Justice Frankfurter, the petitioner in his complaint relied entirely upon the agreement.

    And I don’t think you have any materials available except the agreement.

    Felix Frankfurter:

    Well, hasn’t this question come up and you’ve had — I don’t know what the (Inaudible) indicated to, other railroads have had this kind of an agreement with your Brotherhood for a good many years, doesn’t it?

    Or for how many (Voice Overlap) —

    Carroll J. Donohue:

    I honest — well, I didn’t hear you, Your Honor.

    Felix Frankfurter:

    For how many years has there been an agreement like this?

    Carroll J. Donohue:

    1925.

    Felix Frankfurter:

    1925.

    Carroll J. Donohue:

    This language has been the same since 1925.

    Felix Frankfurter:

    1925, so from 1925 down to 1941, there was no break so far as (Voice Overlap) —

    Carroll J. Donohue:

    That’s correct Your Honor.

    In this phraseology, no break.

    Felix Frankfurter:

    All right.

    What I want to know, are there no materials in actual instances, I don’t mean law, most of these questions from my point of view are very badly decided nearly as so called abstract legal questions, that’s my own — all the absorbed — all sorts of experiences that lawyers don’t know anything about except specialists (Inaudible) don’t know anything about.

    But haven’t there instances or isn’t in which a fellow in class two wanted to move, as a matter of right under the agreement to class one.

    The management have known under (Inaudible) raised about it and he ask these officers, the officers of the Brotherhood to go and make claims from etcetera, etcetera.

    There’d been no such instances?

    Had the question never contested?

    That for me would be very important.

    Carroll J. Donohue:

    I can —

    Felix Frankfurter:

    Isn’t — between 1925 and 1939, no instance had arisen In which somebody who was way up on top in class two wasn’t taken into class one.

    That for me would be very persuasive as to what the situation is?

    Carroll J. Donohue:

    I can only answer to the best of my own personal knowledge which is that what I have said has been reviewed by the parties over the years and that there are no instances.

    However, (Voice Overlap) —

    Felix Frankfurter:

    Well, (Voice Overlap) years — well, what period of years?

    Carroll J. Donohue:

    The entire period.

    Felix Frankfurter:

    Pardon me.

    Carroll J. Donohue:

    The entire period.

    Felix Frankfurter:

    From 1925 to 1939?

    Carroll J. Donohue:

    I’m just answering to the best of my personal knowledge, Your Honor —

    Felix Frankfurter:

    That’s all right.

    Carroll J. Donohue:

    — because I —

    Felix Frankfurter:

    (Inaudible)

    Carroll J. Donohue:

    I have not actually been in the —

    Felix Frankfurter:

    Has this problem come up at all or has it been taken for granted?

    That’s what it means.

    Carroll J. Donohue:

    To the best of my knowledge it has been taken for granted that that’s what it means.

    Felix Frankfurter:

    You mean by management and by — by the Brotherhood and their counsel who represent not this particular case.

    Carroll J. Donohue:

    We are in this case to vouch and say what we believe the contract means.

    Felix Frankfurter:

    All right.

    Carroll J. Donohue:

    Very briefly, I’d like to comment on the fanciful probability theory advanced by the Diehl case.

    Now, of course this Court merely reverse the Court of Appeals in that matter without virtually any comment.

    And I can’t find the slightest basis for the probability rule.

    Number one, the — it’s perfectly clear that in the Diehl case, a man was a car man helper before he went into the service, he became a temporary car men mechanic.

    While he was on the service it was decided between the railroad and the union that after the war emergency was over, then at that juncture, the parties would determine what the status of temporary car men mechanics would be.

    The man came back from the war.

    He was again made a temporary car man mechanic and in June of 1956, had he not gone in the service he would have served 1160 hours.

    Actually, sometime in very early 1949, it was 1160 days, actually in early 1949, he did complete 1160 actual days.

    And about two months later, the union and the company arrived in an agreement that a man who had 1160 days of experience was a temporary car man mechanic would then be placed upon the permanent roster, a — an absolute right conferred by that contract.

    The only thing that I can view out of what this Court did was to say that in determining the 1160 days of the experience that the time that he spend in service had to be counted.

    I think the result is totally consistent with the Fishgold case and I do not believe that it takes us up into the celestial atmosphere of creating of a new theory of reasonable probability.

    Felix Frankfurter:

    Mr. Donohue, may I ask one more question along the line we’ve exchanged.

    Would the record be available if you — when you speak of your own experience and knowledge whether as a matter fact, as a matter of fact, during the period of which — to which you do address 1925 to 1939, men moved exclusively into class one from class two?

    Carroll J. Donohue:

    I’m hardly able to answer you, Your Honor.

    I simply don’t know what records are available in —

    Felix Frankfurter:

    Maybe your associate on the Railroad side would know.

    Carroll J. Donohue:

    I don’t know.

    Do you know (Inaudible)?

    Felix Frankfurter:

    Could he — (Inaudible)

    Sam Elson:

    All I know is this.

    From inquiries which I have made of our men and officers, that is not a fact as there have been occasions when (Inaudible) employed when the company also spoke that the group two men were not fit and able to do it.

    This fact was mentioned.

    Carroll J. Donohue:

    In as much, does that answer — Mr. Justice Frankfurter must depart from the record.

    I can only tell you that I was instructed by the business agent or the group to go down to Muskogee and keep the Court from getting a new tangled crazy interpretation of this agreement that hadn’t been adopted in 1925.[Laughs]

    That was situation.

    But I — I’m not able to answer of my own personal knowledge about those records.

    If I may, I should like to depart from that subject matter and bring to the intention of the Court several matters which we feel would compel that the result below be sustained regardless of the principal issue raised by Mr. Clinton and with the Railroad, we fairly concur.

    We feel that over and above that issue, the District Court below like jurisdiction over this cause at all, because we feel that the subject matter of the petitioner’s claim, lies solely and exclusively within the jurisdiction of the National Railroad Adjustment Board under the Railway Labor Act.

    That point was disregarded by the trial judge and was rejected by the Tenth Circuit Court of Appeals.

    We believe that it’s mandatory.

    Now, we point out first that if this case were to go to trial, the trial judge would have to take the agreement between the parties.

    He would have to construe it and he would have to interpret it.

    He would have to determine what Rule 1 meant.

    He would have to read it in light of the other rules of the agreement.

    He would have to determine the seniority rights of this man if he had any or he would have to determine the impact upon those rights of other provisions of the agreement.

    Now, we respectfully submit that that function is vested solely and exclusively in the National Railroad Adjustment Board.

    In the case of Brotherhood of Railroad Trainmen against Chicago Railroad and Indiana Railroad Company, Mr. Chief Justice Warren traced in some detail, the history of the Railway Labor Act.

    It was there pointed out and it’s true that that Act represents the culmination of some six years — 60 years of thoughtful effort on the part of the railroads and the unions to find some means to bring about stable and harmonious labor relations.

    Because of course the matter of uninterrupted railroad service is one of prime importance and significance to the American people.

    The Act as it presently exist as a result of that effort and there’s the opinion referred to a moment ago pointed out, it was not until 1934, when the old 26 Act was amended, that a machinery was established with sufficiently and enforceability to consummate the desire of the parties for harmonious relations.

    That machinery in part was the National Railroad Adjustment Board, charged with the duty of determining disputes between the carriers and the Unions with respect to interpretation and construction of the contract entered into an extent between the carriers and the union.

    There has been a considerable amount of litigation over the years concerning the nature of the jurisdiction of that National Railroad Adjustment Board.

    And I believe that this Court and really all courts have unqualifiedly held giving proper weight to the language of the statute to the degree of expertise possessed by the Board.

    That the jurisdiction of that Board to determine matters of interpretation and construction in Railway Labor Contracts is exclusive, said that in the Slocum against Delaware, Lackawanna and so forth case where you said we hold unqualifiedly.

    We hold that the jurisdiction of the Board to adjust grievances and disputes of the type here involved is exclusive.

    And there are a plethora of other cases decided by this Court and by the Courts Of Appeals so holding.

    I think the proposition is beyond dispute.

    Felix Frankfurter:

    May I — may I put to you a problem in connection with this?

    Felix Frankfurter:

    A line of argument from the (Inaudible) very sympathetic, but these cases to which you refer, the Slocum on that basis, those cases are bereft without the element that we have in this case, to this type of case, namely, those cases came up directly with reference to the enforceability of certain rights under an agreement.

    Now, in this case we got the meaning and scope of a railroad collective bargain agreement, but we also have a statute.

    Carroll J. Donohue:

    That’s correct,

    Felix Frankfurter:

    And are you saying that if and in the enforcement of the statute we select the Service Act, Section 9, it involves necessarily a construction of such a railroad agreement.

    At all events, the Court should hold it hands until it get the construction of that agreement from the only agency capable of making such a construction.

    Carroll J. Donohue:

    Well, I — I —

    Felix Frankfurter:

    At least that, I mean wouldn’t you say that certainly that should be done whether it should be dismissed and wait until you have a new case.

    Carroll J. Donohue:

    I was about —

    Felix Frankfurter:

    What do you say to that?

    Carroll J. Donohue:

    I was about to modulate over to that subject —

    Felix Frankfurter:

    All right.

    Carroll J. Donohue:

    — because it’s critical in this case —

    Felix Frankfurter:

    (Voice Overlap) —

    Carroll J. Donohue:

    — and I shall do that immediately.

    Actually, Mr. Chief Justice Warren have a not too dissimilar problem when he had to take the Norris–La Guardia Act on one hand and the Railway Labor Act on the other hand and try to put the two together in the case that I referred to.

    Now, lets consider, here we — its true enough, we have two statutorily processes, created processes, both of them here with this and neither statute saying one word about the other statute.

    Now, of course the Railway Labor Act preceded the Universal Military Training and Service Act.

    Its noteworthy first that no reference of any nature description is made to the Railway Labor Act in the Universal Military Training and Service Act, so that whatever we do with our endeavoring to put the two together will have to be pretty much predicated upon inference and implication —

    Felix Frankfurter:

    To say, it was safe inference that the intention of Congress was that they didn’t think about it.

    Carroll J. Donohue:

    I — I have arrived independently of that conclusion, Your Honor.

    I — I think that that’s actually try — quite true.

    But now let’s consider the common sense of the claim.

    Quite patently, here you have a Railway Labor Act which sets up a procedure which was spelled out over many years of trial and error, predicated upon the need for finding harmony and stability in labor relations and an industry that had been marked by a lack of it.

    And then finally these means was found and created.

    Now, why?

    Because there are special unique problems in the railway industry.

    It was felt that in order to resolve them, you needed a specially constituted board and this Court and other courts have commented upon that subject over and over.

    Now, we feel that viewing all of the factors, the intelligent sound thing to do with these two Acts to put them together and this Court has never ruled upon this issue and no other Court in my opinion has seriously consider it.

    The only way to put those two together as I see it is to keep in mind now that Universal Military Training Act applies to all service men.

    It’s — it covers the entire industrial area of activity whereas the Railway Labor Act feels with unique and specific special problems.Therefore we feel that if you have a Railway Labor Act matter where a contract interpretation and construction matter should under the Railway Labor Act go to the Board.

    Carroll J. Donohue:

    Then we feel, that the impact of the Universal Military Training and Service Act, in order to be intelligently coordinated with the other Act, should simply be deferred until the processes of the Railway Labor Act has been exhausted.

    Earl Warren:

    Does this man have — have access to that —

    Carroll J. Donohue:

    Yes, Your Honor, I think there isn’t —

    Earl Warren:

    — independently on this (Voice Overlap) —

    Carroll J. Donohue:

    No question about it under the Stark decision.

    I — a Court of Appeals decision, he individually or the union on his behalf could — could go there as I construe the situation.

    Felix Frankfurter:

    The union wouldn’t go on his behalf would it or would it?

    Carroll J. Donohue:

    Well, I can’t — I can’t —

    Felix Frankfurter:

    What I mean, in the ordinary course, I’m not suggesting any ill will or anything but just the ordinary course —

    Carroll J. Donohue:

    In the ordinary —

    Felix Frankfurter:

    — it merely assumed that the union wouldn’t present a cause in which they wholly disbelieve as a matter of law.

    Carroll J. Donohue:

    No, that’s correct.

    Now, I couldn’t answer the question as to what they would do, Your Honor —

    Felix Frankfurter:

    Well, I know, I’m —

    Carroll J. Donohue:

    — but the union feels that it —

    Felix Frankfurter:

    They are free to do it.

    They would be (Voice Overlap) —

    Carroll J. Donohue:

    They are free to — in good conscience —

    Felix Frankfurter:

    Yes.

    Carroll J. Donohue:

    — they don’t feel that they should prosecute non-meritorious claims.

    Felix Frankfurter:

    Yes, I understand.

    That’s all I’m asking.

    Carroll J. Donohue:

    But now let’s consider what will happen if we don’t construe it the way I mentioned it, what could happen?

    Felix Frankfurter:

    But — but your answer to Chief Justice’s question is quite unequivocal, namely, that according to some case to which you referred, he could go on his own.

    Carroll J. Donohue:

    The Stark case, I could cite that to the Court, I don’t have it, at the tip my tongue, but it is Stark again some railroad which it so held.

    Now, supposing we don’t do that.This man comes in, McKinney comes in to the District Court with the very able counsel that the law gives him and he prosecute his claim and this Court interprets and construes the contract.

    Now, under the Railway Labor Act, the Railroad has a right to take this kind of dispute to the National Railroad Adjustment Board.

    It’s conceivable at that level, that you might have the Board and the Court deciding the same question at the request of the respective parties.

    Well now, it said that Mr. McKinney had won his suit down their in Muskogee and if he is entitled to the job that Mr. Fabian had and Fabian can’t hold the same job that McKinney is holding so the railroad has to say, “Mr. Fabian, you’ll have to leave.”

    Well then, Mr. Fabian has a perfect right to go up to the National Railroad Adjustment Board, under this agreement or maybe the Brotherhood on his behalf or someone in the National Railroad Adjustment Board and decides the same issue in reverse that the District Court down there at was Muskogee decided, and maybe the National Railroad Adjustment Board might feel that — that the District Court at Muskogee was wrong.

    Carroll J. Donohue:

    That Fabian deserves the job not McKinney and so they might entered that award and of course Fabian has a right to go into the District Court with a suit for statutory enforcement.

    And he is entitled to a prima facie weight to that decision and maybe he’d win that case.

    Then you’d have the railroad confronted with the unique situation of having the District Court in one place telling that Mr. Fabian should have job X and the District Court in another place telling that Mr. McKinney should have job X.

    We elaborate somewhat on those possibilities in our brief and they are almost endless.

    Now, those things could occur.

    They might occur here.

    And we respectfully urge that construing the Acts together, not viewing one as impliedly repealing the other but — well, I think its probably true that nobody in Congress thought about this matter, giving proper weight to the Railway Labor Act on one hand, and serving the purpose of the Universal Military Training and Service Act on the other hand.

    I feel the construction urged upon you is sound and that under that construction at this juncture, the District Court at Muskogee has no jurisdiction.

    There are two other matters that I would like —

    Earl Warren:

    Before you get — you get those, is there anything in the record to indicate why the railroad company and the interest of uniformity and the informality did not take this the — to the Board?

    I would think that they were much rather have those things determined before the Board then before the District Court and I wonder — I just wondered why they didn’t do it?

    Carroll J. Donohue:

    There is nothing in the record but I think I might shift my position around and argue the point I intended to argue last because I think it’s obvious what happened here.

    Your Honors will note that this man came back in 1952 in the fall and it indicates the he requested a seniority date and that he protested when he didn’t get it, and that’s —

    Hugo L. Black:

    He requested what?

    Carroll J. Donohue:

    He requested a certain seniority date and that he protested when he didn’t get it.

    Hugo L. Black:

    It’s September?

    Carroll J. Donohue:

    That’s back in 1952.

    Then the — now that’s all it’s says about the relationship with the employee and the railroad.

    Then a year later, he had been put into this group one job that he wasn’t entitled to but the railroad had a perfect right to give him and they did give him.

    And he served in that job for a year and so far as the complaint reflects, nothing happened during that year.

    But in 1953, the job was abolished and he was put back in — he was put back into group two and there he remained until the summer of 1955, when this suit was filed.

    I think the reason, if there is a reason that the Railway didn’t even think about that is that — and that’s what I’m coming to.

    I think it’s crystal clear that rights can be waived under Universal Military Training and Service Act.

    And we point out in our brief certain circumstances under which they are.

    Now I — in 1952, in the fall of 1952, this plaintiff knew everything he was ever going to know about his seniority date, and he waited not only the year until the job that he did get, which was above the one he had left was abolished, but another 2 years almost before he filed this suit.

    I don’t think that that kind of jurist prudential sandbagging was contemplated in under this Universal Military Training and Service Act and I think that by his delay, his apparent acquiescence, this man waived and lost his right to proceed under this Act.

    And finally, again moving —

    Hugo L. Black:

    It was decided on that basis, wasn’t it?

    Carroll J. Donohue:

    I — I’m sorry I didn’t hear you.

    Hugo L. Black:

    The court below didn’t decide it on that —

    Carroll J. Donohue:

    No, it did not, it did not, neither court below mentioned that point.

    The —

    Hugo L. Black:

    Do you think — do you think it could be decided on that basis certainly on the fact that the complaint was dismissed?

    Carroll J. Donohue:

    Well, it wasn’t decided on that basis but I think the ground was meritorious, Mr. Justice Black.

    Finally, the last point I’d like to raise is that this man relies upon a contract as I see it, solely and exclusively for the source of his seniority yet he does not invoke the contract.

    There are elaborate provisions for grievances and appeals under this agreement but his complaint reflects nothing about his invoking those.

    We feel that if he relies upon this contract or his rights, his seniority that he can’t treat the contract piecemeal selecting the paragraphs he likes and disregarding the ones he doesn’t like.

    We feel that if he relies upon the contract, he has to show his compliance with it and that as a preliminary to have any right anywhere, he had to proceed through the appellate and grievance procedures of the contract and of course under the law that again modulates up to the Railway Labor Act proceedings.

    Felix Frankfurter:

    I don’t quite get your latches point, Mr. Donohue?

    Or waive upon?

    Carroll J. Donohue:

    Well, I — I perhaps selected waiver over latches Your Honor —

    Felix Frankfurter:

    (Voice Overlap) —

    Carroll J. Donohue:

    I simply feel that when he took the group one — he — he — its true he says he protested whatever that means, I don’t know.

    But —

    Felix Frankfurter:

    Well —

    Carroll J. Donohue:

    — it’s true enough that — that he says he protested.

    Nevertheless, he took a group one job other than the one that he said he should get, did nothing for a whole year working on it, then nothing is now written in the complaint about any further activity, was moved down to group two when his group one job was abolished and waited a two years then to do anything about.

    Felix Frankfurter:

    Waiver usually implies some disadvantageous change of position on the basis of the conduct of the Court.

    Carroll J. Donohue:

    And of course —

    Felix Frankfurter:

    Was there one such here?

    Carroll J. Donohue:

    Absolutely, both the carrier, the carrier was lulled into feeling that it had him in the right job and it had this other employees in the right job and he paid everybody accordingly.

    The Brotherhood —

    Felix Frankfurter:

    I think he wrote a letter — I think he wrote a letter saying, I have to make a living for my family, I’ll take this but I want to know I’m going to — (Inaudible) in due course, could he do that?

    Carroll J. Donohue:

    He didn’t — well, he doesn’t allege that in his complaint.

    Felix Frankfurter:

    What does he allege, he protested?

    Carroll J. Donohue:

    He alleges that he protested and that’s all he alleges.

    Felix Frankfurter:

    I thought he was — what do mean — that means he just (Inaudible), is that what the protest might mean?

    Carroll J. Donohue:

    Well, of course —

    Felix Frankfurter:

    In all events, if there is no statement that he duly advice that this is an — illegal act or —

    Carroll J. Donohue:

    All that the complaint says is that he protested.

    Carroll J. Donohue:

    It doesn’t explain it anymore than that.

    Earl Warren:

    Mr. Laughlin.

    John G. Laughlin, Jr.:

    Respondent suggests that the preference to which a group two employee is entitled to over a nonemployee amounts ignoble, apparently, because of this fitness and ability qualification.

    It would also point out in that connection that Rule 5 of the agreement which governs all promotions, mind you, has a similar qualification with the additional provision that fitness and ability being equal seniority shall prevail.

    I have no knowledge of the practice of the interpretation of this agreement by the respondents in this case.

    But I do know that this sufficiency and ability of this fitness and ability provision is a common one in the hundreds of collective bargaining agreements between the railroads and the Brotherhood.

    Hugo L. Black:

    Where is Rule 5?

    John G. Laughlin, Jr.:

    Rule 5 is not printed in the printed record.

    You’ll find that in the — in the record in this Court, that is a complete agreement, is a part of the record, this particular Rule was not printed.

    I think if there is a question as to whether or not this preference and perforce the promotional right as embodied in Rule 5, means anything or nothing that is a matter that should properly be develop by testimony or by evidence at the trial.

    Hugo L. Black:

    What do you say to this idea that has to be protested in the Board (Inaudible) a special Board rather than a Court to determine what the contract means?

    John G. Laughlin, Jr.:

    Well, I say —

    Hugo L. Black:

    What do you say to that argument?

    John G. Laughlin, Jr.:

    As to the — I presume this is directed to the jurisdiction of the District Court.

    Hugo L. Black:

    That’s right.

    John G. Laughlin, Jr.:

    I think that for 17 years, the courts have been passing upon questions not unrelated to the very one we have here.

    No Court to my knowledge has ever so much as suggested or held that there is any lack of jurisdiction in the District Court to enforce the requirements of this Act.

    Hugo L. Black:

    But supposed it has jurisdiction, what do you say to the suggestion that it should stay its hand until the Board provided for any Act to interpret the contract?

    John G. Laughlin, Jr.:

    Well, have that been a — been pursued in this case, I think it might be well within the discretion of the District Court to stay its hand awaiting the outcome of the grievance procedure.

    But I should say also that Section 9 (d) provides that cases of this character be advanced on the calendar, and be disposed of as expeditiously as possible.

    Hugo L. Black:

    9 — 9 (d) is not printed in the record?

    John G. Laughlin, Jr.:

    Yes.

    Well, it’s in our brief —

    Hugo L. Black:

    Part of the brief.

    John G. Laughlin, Jr.:

    It’s a part of the statute.

    Felix Frankfurter:

    Do you remember (Inaudible) the question or related questions arising under the Interstate Commerce Act where this Court some years ago had occasioned to which the shippers and the railroad and concededly that the basis for a recovery in the District Court.

    This Court said, this involves some construction of that and the matter of fact which the ICC should first pass on that unless the District Court hold this case until we — until they get such an authority in ruling in a matter in which judge — judges in the courts aren’t particularly competent to.

    John G. Laughlin, Jr.:

    Well, I would suggest —

    Felix Frankfurter:

    (Voice Overlap) —

    John G. Laughlin, Jr.:

    — that it’s here.

    John G. Laughlin, Jr.:

    We have as much as anything, a question of statutory interpretation and application.

    Felix Frankfurter:

    But we also have a collective agreement problem.

    Isn’t it that one can read as all of us have read more than once Section 9, and not get the answer to this question — to this problem, at least I couldn’t possibly get the answer to the problem that you present by reading it faithfully, as conscientiously, and as sympathetically Section 9, you couldn’t get from Section 9?

    John G. Laughlin, Jr.:

    Well, may I say that —

    Felix Frankfurter:

    You have to get it from Section 9 in relation to that agreement — the collective agreement.

    John G. Laughlin, Jr.:

    I think that’s quite correct, that you must refer to the agreement of course to determine the date and the time or not only to the agreement but to the events this transpired in the serviceman’s absence in order to ascertain the date upon which he would have to received the advancement.

    Of course two cases have already been in this Court, that is the Oakley case and the Diehl case which if the jurisdictional infirmity which respondent suggest and here as in this case were through — were present, would also had been present there.

    And there’s not so much as a suggestion in the briefs filed either those cases that there was any jurisdictional problem.

    Hugo L. Black:

    Aside from that, the — (Inaudible) as well as the claim, the contract does not give any right, you claim it does.

    Assuming the District Court has full jurisdiction, who should decide where the contract does or does not give the rights alleged?

    The District Court without calling on the Board or should it (Inaudible) and let the Board decide that question?

    John G. Laughlin, Jr.:

    Well, again Mr. Justice Black, I suggest we don’t have that problem in this case.

    Hugo L. Black:

    Why?

    John G. Laughlin, Jr.:

    Because we have the instance where has been given to very positions that he wanted.

    Now, if you were asking that he’d be advanced to group one status, as an initial proposition, then you might have that problem.

    Felix Frankfurter:

    But if — if he got the position that he wants, the status that he want, it’s still doesn’t answer whether in giving him the status when they did give him they exercised a non-criminal discretion.

    Or whether they gave it to him because having fear of choice, they picked on him.

    That makes all the difference in the world.

    John G. Laughlin, Jr.:

    Well, I — my answer to that would be Mr. Justice Frankfurter that that should be developed on trial.

    If that is in fact what they did, let them come in and the Court will prove it.

    Felix Frankfurter:

    But that — does your answer imply the construction of the agreement.

    And that’s the question of Justice Black put to you.

    Whether the construction of the agreement should be left to 12 jurymen or a district judge or should be left to the peculiarly qualified specially designated congressionally created bodies.

    Hugo L. Black:

    I supposed you say do you not that whether the District Court or Board does not as long as they dismiss the complaint.

    John G. Laughlin, Jr.:

    Yes.

    It — in any event that would be our position.