Smith v. Evening News Association

PETITIONER:Smith
RESPONDENT:Evening News Association
LOCATION:Formerly S. H. Kress and Co.

DOCKET NO.: 13
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 371 US 195 (1962)
ARGUED: Oct 10, 1962
DECIDED: Dec 10, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – October 10, 1962 in Smith v. Evening News Association

Earl Warren:

Number 13, Doyle Smith, Petitioner, versus Evening News Association.

Mr. Harris.

Thomas E. Harris:

May it please the Court.

This case is here on writ of certiorari to the Supreme Court of Michigan.

It is before the Court on the pleadings, the courts below having dismissed the plaintiff’s second amended declarations.

It is a suit for damages for breach of a collective bargaining agreement between the Newspaper Guild of Detroit and the respondent, the Evening News Association, which publishes a newspaper in that city.

The plaintiff sued on his own behalf and as the assignee of 49 other named employees of the newspaper.

The second amended declaration as alleged is as follows.

The plaintiff and his assignees were employees of the newspaper and were members of the union, the Newspaper Guild of Detroit.

At all irrelevant times, a collective bargaining agreement was in effect between the Guild and the respondent newspaper.

This agreement provided and this language appears on page five of the record, “There shall be no discrimination against any employee because of his membership or activity in the Guild.

The declaration goes on to allege that while this contract was in effect, there was a strike at the newspaper by a union other than the Guild.

That during the strike, the Guild members, that is the plaintiff and his assignors, were ready and willing to work during the strike but that the newspaper would not permit them to, that it locked them out in whole or in part.

But that — at the same time, the paper permitted other employees who did not belong to any union to work.

The declaration alleges that this discrimination violated the contract and it asked $20,000 in damages.

The respondent moved to dismiss on the following grounds, this is the respondent’s language.

One, defendant is charged with X which if true constitute an unfair labor practice as defined in the National Labor Relations Act as amended.

Two, the National Labor Relations Board has been vested by virtue of such amended Act with the exclusive jurisdiction of the subject matter.

The parties stipulated that the respondent is engaged in commerce within the meaning of the National Labor Relations Act.

They were in agreement in the courts below and are in agreement here also that the language of the contract in part parallel Section 8 (a) (3) of the National Labor Relations Act, so that the Acts alleged as a violation of the contract would also be a violation of Section 8 (a) (3) of the National Labor Relations Act.

The trial court granted the respondent’s motion to dismiss and the Supreme Court of Michigan affirmed.

Potter Stewart:

Mr. Harris, as a matter of local law could the Guild had sued as an uncooperative association as a party to the Guild of the party to — as plaintiff?

Thomas E. Harris:

There is a statute in Michigan which allows a union to sue as an entity and that statute appears to me to permit a union to sue.

However, the Michigan cases mostly seemed to be brought by these class suits or by individual union members.

Potter Stewart:

And this (Inaudible)

Thomas E. Harris:

That is correct, Mr. Justice.

Potter Stewart:

I wondered if it is (Inaudible) would require that form of action which is required that as of a — maybe by the Michigan law (Inaudible)

Thomas E. Harris:

It does not appear to me that it is required and I think that the explanation is that this suit was filed during the period between Westinghouse and Lincoln Mills, and that is — and the Westinghouse decision —

Potter Stewart:

Well, I take it, in that case, it would have been much wiser if you’ve had the union a plaintiff.

Thomas E. Harris:

Well, the Westinghouse was interpreted by some people and the respondent’s still interprets it as saying that only the individuals can sue.

Thomas E. Harris:

I think that is a mistaken interpretation in and all the way it was, but it is an interpretation that had some currency in the lower court.

There was no reason that the union could not have been joined apart from the misapprehension on that point.

Potter Stewart:

Apart from the (Inaudible)

Thomas E. Harris:

I mean that there is no suggestion in the case of hostility between the plaintiffs and the union or that the union has undertaken to settle the case or that it refused to take it to arbitration or anything of that sort.

Potter Stewart:

I wasn’t suggesting that, I’m just asking you as a matter of procedure.

Thomas E. Harris:

The Supreme Court of Michigan dismissed the case on the broad ground at the pre-emption doctrine laid down by this Court in the second Garmon case controlled.

It quoted at length from the opinion of the Court in that case and from the concurring opinion of Mr. Justice Harlan and said that under either one federal pre-emption apply.

In other words, it treated this case just as if it had been a support case or an equity case.

It rejected the contention that a suit for breach of a collective bargaining agreement called for a different pre-emption rule.

The question here thus is whether his suit on a collective bargaining agreement for breach of the agreement may be maintained.

When the acts claimed to constitute the breach would also constitute an unfair labor practice under the National Labor Relations Act and within the jurisdiction of the Board.

Now we contend that in a series of cases at the last term, this Court held that the pre-emption doctrine of such cases as Garmon is not applicable in a suit for breach of collective bargaining agreement.

We do not believe these cases are distinguishable on any relevant ground.

Secondly, we contend that the same result should be reached in any event if the issue is regarded as an open one.

The first of the cases which seems to us decisive of those at the last term is Dowd Box against Courtney.

That was a suit brought in state court in Massachusetts by local union officers as representatives of the membership of the union.

It was brought — I take it as a class suit.

There, the union — there had been a contract in effect between the union and the company and negotiations looking to a modification of the contract had taken place.

The union claimed that certain — to go about changes including a wage increase had been agreed to.

The company however repudiated the new agreement on the ground that its bargaining representatives had acted without authority.

(Inaudible) the complaint as for a declaration that a new or modified contract was in effect and was legally binding and for a many judgment, apparently the first half of this period became moot to the passage of time while the litigation was going on.

And the final decree entered in the Massachusetts courts awarded specific sums of money to named employees, the amounts being the difference of the higher wages provided by the new contract from those do under the old contract.

Now, here the — and then Massachusetts too, the company argued federal pre-emption on two grounds.

They said first, that the suit couldn’t be brought in state court because it should’ve been brought in federal court, the jurisdiction of the federal courts under Section 301 (a) is exclusive.

It argued secondly that the conduct alleged also amounted to an unfair labor practice, that is, the company’s repudiation of its bargaining representatives was a refusal to bargain.

And it argued that at least in that situation federal jurisdiction but though the jurisdiction on the federal courts rather than of the Board should be exclusive.

This Court rejected the claim of federal pre-emption.

It pointed out that the Congress in enacting the Taft-Hartley Act had deliberately dropped proposals to make breach of contract and unfair labor practice.

Both the Taft Bill in the Senate and the Hartley Bill in the House have contained such provisions.

They were however dropped in conference.

Thomas E. Harris:

And this Court quoted from the report of the House Conferees as follows.

Once parties have made a collective bargaining contract, the enforcement of that contract should be left the usual processes of the law and not the National Labor Relations Board.

This Court declared that the considerations which had let it define pre-emption in such cases as Garner, Garmon, Anheuser-Busch were not applicable to suits for breach of collective bargaining agreements, because Congress had not elected to entrust cases growing out of such a breach exclusively to the NLRB but had left them to the courts.

In answer to the claim that federal jurisdiction under 301 (a) was exclusive, the Court pointed out that the purpose of that provision was to provide an additional remedy not to contract an existing one.

Finally, an answer to the contention that diversities and conflicts of doctrine would result from concurrent jurisdiction in this situation the Court stated that the federal common law of Labor Relations would control so that this Court could, if need be, resolve such conflicts and diversities.

Now the Court in its opinion did not explicitly point out that the conduct alleged to as a breach of contract was also an unfair labor practice.

It can hardly have escaped the Court’s attention however.

The opinion seems in part directed to that point and the case was argued at the same time as Lucas Flour which also involved that point.

And then Lucas Flour which was decided shortly after Dowd Box, the Dowd Box opinion is cited on that point.

Lucas Flour is the second of the cases at the last term which we think disposed of this issue.

That is rather the reversed situation of Dowd Box.

There the employers sued the union for damages for a strike claimed to be in violation of the collective bargaining agreement.

The — an agreement did not have a specific no-strike clause, it had a provision for final and binding arbitration of issues including issues as to discharge of an employee which was what had provoked the strike.

The substantive issue which was before this Court was whether in that situation a strike was a violation of the contract.

The union contended of course that it was not and that the strike was therefore protected concerted activity under the National Labor Relations Act.

It also argued that since its defense raised this issue within the competence of the NLRB that the pre-emption doctrine of Garmon should apply.

This Court disposed of this contention in a footnote, Footnote 9 in 369 United States, at page 101.

It said that since this was a suit for breach of contract that the doctrine of — the pre-emption doctrine did not apply.

It cited a number of Court of Appeals decisions which have held that a suit for breach of a collective bargaining agreement maybe maintained even though the acts constituting the breach are also an unfair labor practice.

That is the general rule followed which has been followed in the Courts of Appeals.

I think the way the state court authority probably is the other way.

Anyway this Court cited those cases which hold that.

It cited the Dowd Box case and finally before it said, “It is of course true that conduct which is a violation of a contractual obligation may also be conduct constituting an unfair labor practice.”

And what has been said is not to imply that enforcement by a court of a contract obligation affects the jurisdiction of the NLRB to remedy unfair labor practices as such.

The final case which seems to us dispositive of the issue is Atkinson v. Sinclair which in this respect was very like Lucas Flour.

That is, it was a suit for a strike in alleged violation of a contract.

It had the additional feature that one count of the suit was laid against individual employees and purported to be and federal jurisdiction now is invoked on grounds of diversity.

The Court disposed of the pre-emption contention in our footnote simply saying again that it doesn’t apply in suits for breach of collective agreements.

John M. Harlan II:

Everything you said so far sums that this action is maintainable under 301, is that correct?

Thomas E. Harris:

No, Your Honor, I wouldn’t get — look for the same result even if it is not maintained.

John M. Harlan II:

Well, I mean today, I was going to ask you that as the next question.

Is it — is that the controlling issue in this case as you see it?

Thomas E. Harris:

I do not think it is.

I think that if the suit is maintainable under 301 that that would dispose of it but I would think that the Court should reach the same result anyway.

John M. Harlan II:

We can come to that next point then.

Thomas E. Harris:

Yes, I will.

John M. Harlan II:

Because which — up to date, you’re really — are you suggesting that the Westinghouse is — has been overruled or should be overruled?

Thomas E. Harris:

I think it has been overruled.

John M. Harlan II:

Do you think it has been?

Thomas E. Harris:

But I think that there are numerous other grounds on which this case has to be decided against the respondent anyway.

Now in our brief, we have an inordinate length, reargued the question which I contend it was disposed off in these cases.

We have argued that even if the issue be treated as an open one, the Court should reach the conclusion that the pre-emption doctrine of Garmon and Garner does not apply in contract actions.

I will go over that very hurriedly since these points are not as I understand it, directly controverted by respondent.

We say in essence that there is really no way that courts can avoid sometimes getting into issues which are within the competence of the NLRB.

Lucas Flour for example is a case just of that sort.

There, the claim that the strike was protected activity if that had precluded judicial jurisdiction, no remedy would have been available to the company.

Again, the Board has found it necessary to decide precisely the issue which this Court decided in that case.

For example, when a strike takes place, under board doctrine if the strike is in violation of a contract, the employer may discharge the employees.

Therefore when that happens, it is necessary for the Board to decide whether the strike violates the contract.

And in the Mead case, exactly on facts exactly like those in Lucas Flour, the Board did hold that a strike over an issue which the contract says maybe submitted to final combining arbitration violates the contract, so that the employer was within his rights in discharging the employees.

That of course, is exactly the issue of interpretation of the National Labor Relations Act which this Court decided in Lucas Flour.

And this Court cited the Mead case and other Board cases for its ruling.

So that there really is no way as we see it that cases — that issues can be taken in one category and the Courts can be kept out of them or that the Board on the other hand can be kept out of issues of contract interpretation.

As a matter of fact, such sections as 8 (e), the so-called hot cargo clause of the contract of the Taft-Hartley Act as amended by Landrum-Griffin, make it an unfair labor practice for the parties to enter into a specified type of agreement.

So the Board automatically is in the business of deciding whether the agreements have been entered into and of interpreting those agreements.

It does the same thing under the union security provisions of course.

But let me pass that and come to the respondent’s contentions.

Now, as I said below the respondent argued broadly as such cases as Garmon apply equally to suits for breach of a collective bargaining agreement.

And that’s what the Michigan courts held.

That argument I take it is no longer open and I for — and I take it in recognition of that, the respondent now undertakes to support the decision below on various narrower grounds.

Thomas E. Harris:

It undertakes to distinguish the decisions of the last term on two grounds.

First, the respondent says that the contractual provision here directly parallels the content of Section 8 (a) (3) of the National Labor Relations Act.

So that its enforcement in the courts involves the possibility of a more direct conflict with NLRB doctrine then was involved in the cases at the last term.

However, I don’t see how you can get a possibility of anymore direct conflict and was present in the Lucas Flour case, the very issue which the Court decided there was one which have been decided by the Board and the Court relied on Board decisions as well as on Court decisions of — for its interpretation of the contract.

In other argument, the respondent makes is that here the remedy available before the NLRB would parallel that available in Court, that is back wages.

And that this was not true of the cases at the last term.

That is true but the second Garmon decision explicitly holds that it is not the comparability of remedies which determines a pre-emption or the lack of pre-emption but wholly different considerations.

Also, the respondent undertakes to lay cases involving arbitration to one side.He undertakes to say that — or to concede that arbitrators have concurrent jurisdiction or that courts have concurrent jurisdiction in enforcing agreements to arbitrate or in enforcing arbitration awards.

The respondent seems to consider this required by the Warrior case, Lincoln Mills and so on.

However, the possibility of conflict with NLRB doctrine is just as great in arbitration as it is in suits for damages.

Professor Christensen of the NYU Law School has written a very lengthy article on the point here at issue which appears in 37 NYU Law Review 411 in support of the respondent’s position here.

His principal concern however is the danger of conflict between arbitration and the NLRB and there of course is a conflict between arbitration and the NLRB.

But, the NLRB doesn’t have to accept the result if it doesn’t want to.

Let me give with a single example.

There is probably no issue which is more arbitrated than employer discharges of employees for conduct during a strike.

Now, nearly every collective bargaining agreement contains a provision that an employer may discharge only for cost or for just cost.

This same standard is in effect written under the National Labor Relations Act which provides that the Board can’t reinstate employees discharged for cost.

So that in end, that there is no common or type of arbitration and there is no common or type of Board case.

Now the respondent makes much of the fact that here, the contractual language parallels 8 (a) (3) rather specifically.

The result however would be just the same if it were these standard contract clause prohibiting discharge except for cost because no court or arbitrator will uphold the discharge for conduct protected under the National Act, so that the (Inaudible) — the result is the same anyway.

Now in these cases, the Board either orders the employee reinstated and either finds that he did not engage in misconduct warranting discharge.

If it finds that, it orders you reinstated with back pay.

Now, the arbitrators apply pretty much the same substantive standard but they very often resort to compromise solutions with the NLRB, it is all or not — or nothing.

With an arbitrator on the other hand, they quite often order reinstatement but without back pay or they sustained suspension for some given period of time or some intermediate result like that.

The fact that the arbitrators do tailor the remedy in a fashion that the Board does not — is one reason for that the union so often resort to arbitration in these cases.

And of course, there is in the sense that the diverging remedy would be a possibility of a different result from that which would be had before the NLRB.

However, in these cases, the Board has said that it will follow the arbitration absent some good reason for not doing so.And that is the Board’s own policy and has been for many years.

Also, I do not see any way that this Court could reach the result that there is pre-emption in damage suits for breach of contract but no pre-emption in arbitration.

The question of pre-emption turns ultimately on the intention of Congress, real or imputed.

And I do not know how anyone could impute to the Congress which enacted the Taft-Hartley Act, an intention to prefer arbitration over suits for damages as respect to pre-emption.

Thomas E. Harris:

Section 301 is written in terms of suits for damages.

It was only by construction that suits to enforce arbitration agreements were brought within it.

Now, let me turn to the arguments which respondent principally makes here and makes for the first time.

Abe Fortas:

Mr. Harris, before you do, if it (Inaudible) assume that the state could provide you with a 301 suit, how many (Inaudible)

Thomas E. Harris:

We have not briefed the point whether individuals could sue under Section 301 (a) because we think it’s most unlikely that the Court were rigid.

There being so many other grounds of disposing of the case which I will come to.

The point is briefed in a footnote in the Government’s reply brief and is briefed by respondent.

I would think that the question of the right of individuals to sue under Section 301 (a) should be controlled by the determination of the substantive issue of their right under collective bargaining agreements rather than as a procedural matter.

And I — as I understand that that what is the Government is saying.

In other words, if it is held that individuals have rights under collective agreements which they can enforce separately, which they can enforce in a state court for example, then I think that they should be permitted to sue under Section 301 (a).

It seems to me that it would be an absurd result to say that they could sue only in state court and not under 301 (a).

There is some language in the legislative history by Mr. Martin which is set forth in the Government’s brief which supports this contention.

There’s also some legislative history just the opposite ways which is set forth in the respondent’s brief.

Now, respondent’s principal contention here is that this case differs from those decided by the last term.

In that, it is controlled by state substantive law while those were controlled by federal law.

Therefore, according to the respondent, the pre-emption doctrine of Garmon and that line of authorities must be applied to prevent conflicts of doctrines which this Court could not resolve since this Court may not review state substantive law.

If we agreed that state substantive law controlled here, I think we would agree that the pre-emption doctrines should be applied.

However, we do not.

The key issue thus between us is whether state law, state substantive law controls.

Now to — for establishing that it — the state law controls —

John M. Harlan II:

(Inaudible)see if I understand, you say if state law controls and you concede that there is pre-emption.

Thomas E. Harris:

I think that there are strong considerations for finding pre-emption in that event simply because the decisions would be unreviewable by this Court except of course on the issue of pre-emption.

That is, this Court could not review substantive state doctrine.

Earl Warren:

Well, that’s true.

Thomas E. Harris:

And I would agree with them that this Court should apply pre-emption doctrines in that event.

John M. Harlan II:

Well, I’m surprise to hear you make that concession so readily, that’s the reason I asked.

Thomas E. Harris:

It is set forth in our reply brief.

John M. Harlan II:

Then this really does come back as far as your case is concerned to standing or falling on whether 301 covers this action.

Thomas E. Harris:

No, I don’t think so and I will get to that point right now, Your Honor.

For the proposition that state law controls, a respondent goes back to the Westinghouse case.

Thomas E. Harris:

It says that that case holds that suit on a right uniquely personal to the employees such as wages may not be brought by a union in federal court under Section 301 (a) or by the employees in federal court under 301 (a) but only by the employees in a state court if this is a suit like that.

And that federal substantive law applies only in suits which are or could have been brought by the union under Section 301 (a) and that this is not such a suit.

Now let us consider first this question of the reach of the federal common law of Labor Relations which is I think the most important issue presented by this case.

Now the respondent contends, we think it is a misapprehension that this body of federal common law exist solely by virtue of Section 301 (a) and the interpretation which this Court gave that section in the Lincoln Mills case.

And they say that this law therefore applies only in suits within the procedural reach of Section 301 (a).

They argue that even in a diversity case in the federal courts state substantive law would have to control under the doctrine of Erie Railroad against Tompkins.

Now, we don’t believe that the reach of the federal common law of Labor Relations is limited in any such fashion.

We suggest that it encompasses all issues as to the negotiation, interpretation, and enforcement of collective bargaining agreements.

For example, this Court has held that a union in negotiating a contract must fairly represent all employees in the bargaining unit.

And then it may not discriminate against any of them on grounds for instance of reach.

This Court laid down that doctrine in the Steel case, a case decided before the Taft-Hartley Act.

It was first applied in contracts negotiated under the Railway Labor Act but it has since been extended to contracts negotiated under the National Labor Relations Act.

Again, this Court has held that in negotiating a new contract, a union may, if it acts in good faith terminate or modify existing contractual rights such as seniority rights which the employees enjoyed under the prior contract.

This Court ruled that way in Ford Motor Company against Huffman in 345 U.S.

That was a diversity suit brought by individual employees.

No suggestion of Section 301 in that suit.

Now surely these federal substantive doctrines must apply in all the contract negotiation.

They cannot conceivably be limited to suits brought under 301 (a) or suits in which could have been brought under 301 (a).

Neither those suits were maintained or belong to 301 (a), they weren’t suits for violation of the collective bargaining agreement.

They were the reverse.

The dissatisfied employees complained that the union and the employer were applying a collective bargaining agreement.

We submit that federal substantive law has to control on a wide range of other questions involving the relationships among the employer, the union, and the individual employees.

It must control for example on the power of the union to settle the dispute with the employer, without the acquiescence or over the objection of the employees concerned.

I’m not taking a position on how that question is answered, if Your Honors understand.I’m merely saying that federal law must control the answer.

Again, it must con —

(Inaudible)

Thomas E. Harris:

I don’t believe that the body of federal common law goes back that far, so that I would not be able to find a federal policy on that which antedated the Wagner Act.

I believe however, that it quite clearly goes back beyond Lincoln Mills and that it would’ve had to be developed even if Lincoln Mills had been decided the other way.

I think the — that this Court would’ve had to decide whether a union could discriminate against certain members for example, or whether it owed a duty to bargain in good faith for all members.

When the (Inaudible) on substantive law (Inaudible)

Thomas E. Harris:

Well, I think that it would have been difficult to do it just on that basis though I have sometimes — the Hutchison case, of course, suggest that there were some possibilities there.

Now, another question as I’ve already indicated which it seems to me has to be controlled by federal law is whether individual employees have individual rights which they may enforce independently of or in opposition to the union.

Again, let’s suppo — again, here, the respondent could have urged for instance that the union and the respondent had entered into a binding settlement of the claims sued of, or that the suit should be stayed pending arbitration or dismissed because of the union’s failure to take the case to arbitration.

I think any of those defenses would have been controlled by a federal law.

As — respects the availability of arbitration, Atkinson and Sinclair and (Inaudible) both seem to indicate that this federal law that would control the sufficiency of that contention.

Now, if respondent’s contention that the reach of federal law is restricted by the jurisdictional reach of 301 (a) were accepted, it would get a number of absurd results.

In the first place, uniform federal law which prevailed as to rights running to or against a union but rights personal to employees would be subject to the big reason of state law.

States would even be free to adopt the conservative view of the privy council or the radical view of Dean Shulman that collective bargaining agreements are mere moral obligations, not enforceable at all.

I don’t suppose that the states would adopt such a principle but they would be free too.

Secondly, however, according to respondent, federal doctrine would still impinge even if as to these rights personal to employees if the case involved issues are arguably subject to the jurisdiction of the NLRB such as this one or in that even pre-emption doctrines would come into play.

Thirdly, the courts would have to decide in each case whether the right asserted runs to the employee individually or to the union.

As Justice Frankfurter pointed out in Westinghouse, that is a difficult determination.

The lower courts were not even in agreement on whether an individual employee may sue for discharge in alleged violation of a contract.

That is perhaps the commonest to all employee claims but there is wide diversity among the state courts on whether the employee may assert this or only the union.

New York, who whilst that the union may assert it.

Some other states, all — the employee made.

Each state court determination on statistic whether a right was an individual one or whether it ran to the union, would itself present a federal question subject to review by this Court.

Let’s consider another difficulty.

Many rights have what the former Professor Clark’s told a double aspect.

This is such a provision, a provision against discrimination on account of union membership or activity, certainly is not for the sole benefit of individual employees.

It is through the protection of the union as an entity also.

So that surely the union too would be entitled to force that — enforce that right.

Now according to respondent, you apparently would have the result that if the union sued to enforce that right, federal law would control and the suit could be brought in federal court.

But if the individual employee sued to enforce it, it could only be brought in state court.

Now look at ballot box, there, there were two prayers for relief bags, one, a declaration that the whole of contract was valid, second, a prayer for money damages or lost wages for individual employees.

According to the respondent, the first of these would be a suit maintainable by the union, the second only by the individual employees.

Now, I don’t know whether respondent thinks that the federal law would control as to half of the action and state law as to the other half or when the first cause of action became moot whether it started out as controlled by federal law and ended up as controlled by state law or what.

Actually of course, when the case reached this Court, it involved only individual claims of employees.

This Court explicitly held that federal law controlled Dowd Box is as I see it, a complete answer to respondent’s contention on this point because it is impossible to imagine claims more personal to the employees than the money judgments for back wages entered in the names of individual employees in that case.

Yet this Court held that the federal common law controlled.

John M. Harlan II:

That’s because Section 301 governed the action.

Thomas E. Harris:

According to the respondent’s contention, Section 301 couldn’t govern it.

According to their contention, that would’ve been one of these suits on rights particularly uniquely personal to the employees.

That was — that is exactly the example they give, a suit for back wages.

That to the claim suit on there was much more uniquely personal to employees than the ones suit on here —

John M. Harlan II:

Yes, but isn’t the —

Thomas E. Harris:

— because certainly the provision against discrimination on account of union activity is this is at best a sort of mixed provision which is intended for the benefit of the union no — as an entity, no less than of the employees.

(Inaudible)

Thomas E. Harris:

In the contract in this case, the provision that employees would not be discriminated against for Guild membership or activity and the contention is that during a strike, the Guild members were locked out in whole or in part when other nine union members were permitted to work.

(Inaudible)

Thomas E. Harris:

That is the specific clause in the contract.

(Inaudible)

Thomas E. Harris:

Well, that is an issue on which the Government in its brief amicus and the respondent are not in agreement.

The Government feels that if employ — that if there are rights on which employees may sue in state court that they should also be permitted to sue under Section 301 (a).

Respondent takes the reversed position.

Now, it may be that — in further answer to Mr. Justice Harlan’s question, I would say it is not absolutely clear whether in Dowd Box, this Court held that the suit was a Section 301 (a) suit or whether it held that the federal common law controlled anyway —

John M. Harlan II:

I thought that was crystal clear.

Thomas E. Harris:

But either way —

Mister —

Thomas E. Harris:

Either way it appears to me that the case is adverse to respondent because if that was a suit maintainable under Section 301 (a), so is this.

Potter Stewart:

I thought that in Dowd Box, the only question presented was whether or not the jurisdiction of the federal courts in 301 suits was exclusive.

Thomas E. Harris:

The brief shows that the petitioner also argued that the fact that the conduct amounted to —

Potter Stewart:

It was an unfair — that its —

Thomas E. Harris:

— an unfair labor practice.

Potter Stewart:

That was — and that was certainly implicitly dealt with here, correct?

But it didn’t have anything to do with — as I remember it with these — what substantive law was applicable.

Thomas E. Harris:

No —

Potter Stewart:

It certainly wasn’t that he assumed in the opinion.

Thomas E. Harris:

I would have (Voice Overlap)–

Potter Stewart:

Or not (Voice Overlap) —

Thomas E. Harris:

But I would have to —

Potter Stewart:

(Inaudible)

Thomas E. Harris:

I would have to disagree with Your Honor.

I think the Court explicitly held that the federal common law did control —

Potter Stewart:

That was true in Lucas Flour, that was (Voice Overlap) —

Thomas E. Harris:

And in Dowd Box also.

Potter Stewart:

I might have forgotten that.

Thomas E. Harris:

And the — that was essential to the courts reaching their result it did because the argument was made that if the state courts were allowed to entertain these suits a diversity of interpretations of the Act and of the contract would arise.

Potter Stewart:

That was Lucas Flour that said that.

Thomas E. Harris:

Both.

And in answer this Court specifically said in Dowd Box that federal law would control and if you would look, Mr. Justice, that the final sentence of your opinion, you will see that you stated that to resolve these diversities in conflicts is the business of this Court.

John M. Harlan II:

That was (Inaudible)

Thomas E. Harris:

It was said there no less than in it, Lucas Flour.

Now, another case which on this point seems to me decisive against the respondent is Atkinson versus Sinclair.

There Your Honors we’ll recall the second count sought damages from individual employees for a strike in vio — or for intermittent work stoppages in violation of the contract.

Federal jurisdiction there was invoked not under 301 (a) but diversity of citizenship.

And it was thought to state a cause of action under the common law of Indiana.

This Court held however that federal law controlled as to that count 2.

Now it isn’t clear whether the Court meant that that suit could have been brought under 301 (a) or whether it meant that federal law controlled anyway.

But on either proposition, it is fatal to the respondents because if those individual defendants could be sued under 301 (a) these individual plaintiffs here presumably can sue under 301 (a).

As I said earlier however it seems to me that the truly decisive answer to the contention is that the reach of the federal common law is in no way limited by the jurisdictional scope of 301 (a).

It antedated 301 (a) the federal substantive common law maybe in part a response to the jurisdictional grant of 301 (a) but it isn’t found there.

It is found elsewhere.Perhaps the largest body being in Section 7 and 8 of the National Labor Relations Act but some of it is simply been devised by this Court out of its own sense of what — of justice, such a doctrine in the Steel case for example.

Potter Stewart:

But that is entirely again based on the statute, isn’t it, the implications of the Railway Labor Act?

Thomas E. Harris:

I think it is based on the Court’s conception that what (Voice Overlap) —

Potter Stewart:

The duty to fairly represent —

Thomas E. Harris:

— would require in the case of a union which is by law the exclusive bargaining represented to each everyone.

Potter Stewart:

By statute.

By statute?

Thomas E. Harris:

Or perhaps even the Constitution.

Byron R. White:

You don’t necessarily (Inaudible)

Thomas E. Harris:

We do not Mr. Justice.

Byron R. White:

(Inaudible)

Thomas E. Harris:

None of which I know.

Now, actually even the Westinghouse case to begin with, did not hold as the respondent asserts it to hold.

Five of the eight justices who participated in that case expressed the view that a union may enforce a wage claim.

Now a majority of the Court did hold that under — that 301 (a) should be construed — should not be construed as conferring jurisdiction on the federal courts over a suit while whomever brought to enforce the wage provisions of a contract.

But there was no majority for the provision that the proposition that a union couldn’t enforce those provisions.

I think the restrictive interpretation given to Section 301 (a) in Westinghouse rested primarily on the Court’s desire to avoid the question as to the constitutionality of Section 301 (a) under Article 3 of the Constitution, which would arise unless the sections were given substitute content.

And upon the Court’s reluctance to give its substantive content as Justice Frankfurter put it in that case to work out without more a federal code, governing collective bargaining agreements.

However in Lincoln Mills, the Court did face the constitutional issue and it held that Section 301 (a) was not only jurisdictional but empowered the Court to fashion a federal common law for collective bargaining agreements.

That develop was continued in the arbitration cases and in the cases at the last term.

And I think that the development of that common law of collective agreements makes it clear that Westinghouse has no lingering validity.

Finally, even if Westinghouse held as the respondent contends it should and even if it were good law, it is very doubtful that it would win the case for the respondent, because the contractual clause suit on here is not uniquely personal to employees in the sense of the clause in Westinghouse clause.

As I said, it is plainly for the benefit of the union as an entity and for the protection of the union as well as of the individual employees.

So that on any rational, surely the union suit to enforce it and could have sued under 301 (a).

So that even according to respondent’s own contentions, federal law would control.

Now, sets for a number of reasons, we think that federal and not state substantive law is controlling.

We see no basis for differentiating this case from Dowd Box and Lucas Flour in which it was held that the pre-emption doctrine of Garmon is not applicable in suits for breach of collective bargaining agreements.

If I may, Mr. Chief Justice, I would reserve the balance —

Earl Warren:

You may Mr. Harris.

Mr. Van Zile.

Philip T. Van Zile, II:

Mr. Chief Justice, members of the Court, this is my initial appearance before the Court.

I hope that in these difficult areas of pre-emption and 301 which have been likened to Delphic mysteries and dark rooms that I won’t be able to be of assistance to the Court.

We do have a subject of pre-emption and I submit to the Court that we’re at the bedrock of whether or not the doctrine of pre-emption in the area of labor contracts is relevant and can be applied at all.

And as to the reach and scope of 301, I think we have finally come to the question of whether Westinghouse is alive or dead, were used Mr. Harris’ remark which I liken a dustbin of history.

We must determine it seems to me in this action whether this suit by an individual employee for back pay is within the purview of that section or not because we are at least agreed that if this suit is not governed by federal common law, that then though it be on a contract, pre-emption should apply.

John M. Harlan II:

Neither of you refers to the Gonzales case.

But —

Philip T. Van Zile, II:

I referred to the dissenting opinion of the Chief Justice.

John M. Harlan II:

Dissenting opinion, yes.

Philip T. Van Zile, II:

But —

John M. Harlan II:

The holding of the Court.

Philip T. Van Zile, II:

No.

John M. Harlan II:

That — that was a case that was governed by state law and where pre-emption notwithstanding was not held applicable.

Philip T. Van Zile, II:

That I realized Your Honor.

John M. Harlan II:

That you say — what you need to do with that case?

Philip T. Van Zile, II:

Well, if I recall this —

John M. Harlan II:

This case is very easily disposed obviously if 301 governs this case — governs this cause of action.

Philip T. Van Zile, II:

We would like the Court to listen to us in that area if we might.

We think there are strong reasons why this very same point should be considered and with Your Honors permissions, I would like to speak about it briefly.

My recollection of the Gonzales was that it was a suit against the union by an employee, that within the reach of 301 and they did apply state law.

And of course as Your Honor mentioned this pre-emption did not apply but if you will recall, I think the majority distinguished that on the basis that it was so to speak on the periphery of the National Labor Relations Act obviously something that the Board could not have acted upon.

We’re here at the heart of the National Labor Relations Act as it’s always existed in the area of unfair labor practices.

This is not a peripheral matter.

Now, it’s been customary — I shouldn’t say customary but this Court has always approached pre-emption cases on a case by case basis.

We also adopt the position of the petitioner in Lincoln Mills who said that the correct approach is to decide each case as it comes along.

We’ve become involved in a great many hypothetical cases in a reading of the Solicitor General’s brief and of our Brother Harris’ brief which are not involved here.

For that reason, we would like with the Court’s permission to briefly restate the facts because we think they are very important to this case.

Our issues are very narrow and our contentions are accordingly narrow.

The respondent is a publisher of a Daily and Sunday Newspaper in the City of Detroit, Michigan.

It was stipulated, it was engaged in interstate commerce, that the petitioner was a janitor as were his assignors.

They belong to a local of the National Guild with whom the respondent had a labor contract.

We had 14 other contracts with various trades and crafts such as pressmen and the like.

On December 1st of 1955, a strike occurred caused by a union other than the Guild which lasted approximately a month and a half.

During this strike, most of our organized labor was laid off altogether such as the pressmen stereotype persons and the like be unorganized working force consisting primarily of editorial business and advertising employees continued to work full time.

As petitioner says, and we must concede for the purpose of this argument with no work available.

The petitioner as a janitor worked part time.

Upon the resumption of publication, all crafts and employees were recalled and worked from then on full time.

This action was brought for back pay based on the collective agreement and the breach of only one paragraph of that agreement which I would like to refer to.

Philip T. Van Zile, II:

It appears on page 4 of the record.

There shall be no discrimination —

William J. Brennan, Jr.:

(Inaudible)what page?

Philip T. Van Zile, II:

Yes, page 4, Mr. Justice Brennan.

There shall be no discrimination against any employee because of his membership or activity in the Guild.

All parties have regarded this section as being nothing more than the paraphrasing of the obligations contained in Section 8 (a) (3) of the Act.

I think it’s so regarded.

To us it is no more than had the parties agreed to abide by Section 8 (a) (3) by reference and had the union agreed to abide by Section 8 (b) of the Act.

In other words, incorporation by reference and as Mr. — our Brother Harris has made clear in his answer to Mr. Justice White’s question, this was the sole basis for the action.

An unfair labor practice charge was never filed, either by the petitioners or by the union, or by anyone on their behalf.

The action in the state court was a simple — of some said action by the individual employees based on breach of contract.

The union was not a party.

No relief was sought on its behalf.

So far as this record is concerned, its views are unknown.

It was commenced after the six months period provided in Section 10 (a) for the filing of charges had elapsed.

And under our local statute of limitations could have been commenced at anytime within six years.

As to damages and I might at that point answer, I think Mr. Justice Stewart’s question, it is not required to my knowledge under Michigan law that the individual sue — the union could sue his assignee and this jurisdiction incidentally at least in Michigan has existed for I would say at least 40 years.

There is a well developed body of Michigan law relating to the rights of individuals under collective bargaining agreements particularly Cortez versus Ford Motor which is a relative in recent case and (Inaudible) — reviews of the prior decisions of the Court.

Potter Stewart:

Now how about the right of an incorp — of a union, an incorporated association to sue as a party plaintiff, is that suit in there?

Philip T. Van Zile, II:

I believe that that can be done if they are an assignee.

They cannot do it in their own rights so to speak.

Potter Stewart:

Cannot.

Philip T. Van Zile, II:

Absent an assignee but I know of no obstacle to their suing if they are suing as an assignee.

Potter Stewart:

As an assignee and therefore they’re asserting somebody else’s rights, yes?

Philip T. Van Zile, II:

Exactly.

In other words, there is no difference that the Michigan law regards the employee as a third party beneficiary.

Some states, they regard it as principal agent and so forth.

Arthur J. Goldberg:

(Inaudible) they would stand in the same position as the plaintiff here with respect to the 49 (Voice Overlap) —

Philip T. Van Zile, II:

Exactly.

Because we have to conclude the parties, Mr. Justice Goldberg and the only way we can satisfy a judgment is where the parties are actually before the Court.

William J. Brennan, Jr.:

I see.

Philip T. Van Zile, II:

As to damages recovery was sought solely of back pay consisting of the difference between what this employee would have recovered had he worked full time and had he worked part time.

This is the identical relief that he could have secured from the Board, had he gone to the Board.

There is no difference that we know of.

And finally we brought the motion to dismiss as our Brother Harris has stated it and I think there’s one element of humor that entered into this but which is illustrative of the state court’s reaction to these matters.

Our pretrial judge who happens to be one of our best trial judges, this appears at page 23 of the record.

He said after reciting the facts, let’s be blunt about it if this Court could settle this controversy, if it settle with difference between the western powers in Russia.

I know when I’m licked.

This simply illustrates the complete lack of knowledge of state court judges in the area of unfair labor practices, never had the occasion to consider these things and confront it with them why they are if they admit — whether they admit it or not licked.

Now we would like to consider with the Court if we might very briefly the question of pre-emption because we would like to submit that that issue was not foreclosed by the decisions of the last term upon which my Brother relies.

We have here gentlemen a situation where this Court is asked to create a concurrent and independent jurisdiction over conduct which is cognizable before the Board as an unfair labor practice.

It is said that this is different because it’s a contract.

I submit that this is a difference in form and not in substance.

If the petitioner is correct then we have a situation where we have a raise of diligence as was mentioned in connection with the Railway Labor Act cases, with one party running to the Board perhaps and another party running to the Courts.

We have a situation where we are injecting the courts into an area totally foreign to them, where they will be asked to give a secondhand reading to Board decisions.

We are bypassing the procedures and the practices which Congress established specifically as stated in Garner to develop these peculiar distinctive rights which we find in Section 8 and Section 7 of the Act.

We find nothing I submit if it is carefully examined in the legislative history that indicates this.

The principle argument for the proposition that this is so is that Congress and specifically Senate Bill 1126 included the provision which would have made a breach of contract and unfair labor practice, cognizable by the Board.

This was also true of Section 301 or its antecedent I should say.

So that under the Senate Bill as proposed, we would have had two remedies; one before the Board and one before the Courts.

Eventually as a result of conference this was dropped and as a House Conference Report decided, my Brother Harris quoted it.

It chose to leave the matter to the usual processes of the law.

I think in this connection that there is a significant statement which unfortunately I’ve been trudging through the legislative history for a month or so now and I did not find at the time I wrote my brief but I would like to call it to the attention of the Court.

And that is the remarks of Senator Taft explaining the conference agreement which to me is of equal if not more significance than the House Conference Report.

He had this to say, it appears in the congressional record of the Senate, June 5th, 1947 and can be found in Volume 2 of the legislative history of the Taft-Hartley Act, Government Printing Office at page 1539.

He says this in pertinent part, when the bill passed the Senate, it also contained a sixth paragraph in this subsection, Section 8 (a) (6) which made it an unfair labor practice for an employer to violate the terms of a collective bargaining agreement or the terms of an agreement to submit a labor dispute to arbitration.

The House conferees objected to this provision on the ground that it would have the effect of making the terms of every collective agreement subject to interpretation and determination by the Board rather than the courts.

The Senate conferees ultimately agreed to its elimination as well as the deletion of a similar provision contained in sec — subsection 8 (b) (5) which governed the unions.

The provisions of the Senate amendment which conferred the right of action for damages upon a party aggrieved by a breach of a collective bargaining contract however were retained in the conference agreement, that Section 301.

If both provisions had remained, there would been — have been a probably conflict of remedies and decisions.

Philip T. Van Zile, II:

And if you study the minority report in the House, you will find that this was one of the principal objections of those opposing in the House, this proposal.

So that we now have this peculiar situation, the Senate Bill would of course have been a part of the federal law reviewable by this Court and any diversities and conflicts between the Board’s interpretation of a contract and the Court’s interpretation of a contract under Section 301 would have been reviewable by this Court.

Nonetheless, Congress decided that this was not right because of the possibility of conflict.

And yet in this case, gentlemen, what this petitioner seeks is to vest jurisdiction concurrently in the Board under the guise of breach of contracts and we will have even though it is reviewable because controlled by sub-federal substantive law or part of 301, we will have the same confusion and conflict and we will have it many times over because we will have the trial courts throughout the country state and federal open to every litigant regardless of amount, regardless of diversity of citizenship.

And we say that this is not something that the contract or rather that the Congress considered a desirable result.

Now, I would like to also make it clear that our contention is very narrow.

We only seek the result which we do in those cases where the collective agreement by reference paraphrase or what have you incorporates into the contract an unfair labor practice where the Board can give relief.

We have no sympathy for the use of pre-emption in the contract action as a complete defense to any liability.

We do not suggest that our responsibility be avoided.

All we seek is to channelized into the expertise and knowledge of the Board, matters that are as clearly an unfair labor practice as this.

We do not attempt to unseek arbitration because we believe if this case were to fall because this Court felt that arbitration would be affected then we would withdraw because all of us who work in that labor field have a growing respect for arbitration.

It is a peculiar institution, it is favored by Congress, it is favored by the courts, and more importantly, it has been favored by the Board since its inception.

As the Solicitor General points out in his brief, the Board has always had an attitude of accommodation towards arbitration, in fact, has insisted upon it in many occasions.

So that we do not feel that the reach of our argument affects arbitration and of course, there is no arbitration present here.

What is the practical effect?

They say, “No, it doesn’t affect the Board’s jurisdiction as such.”

That is certainly so, it does not.

But it encourages every employee in such a situation to bypass the Board and how can the Board effectuate public policy if you provide another forum and say to that employee, “Here is another place to go.”

Perhaps they are more receptive.

Its forum shopping, that’s what it is as far as I’m concerned.

And it substitutes as I have said for the Board’s expertise and knowledge, a state court’s ignorance and secondhand reading of the Board’s decision.

Arthur J. Goldberg:

From your — I’m assuming that, the Government (Inaudible)

Philip T. Van Zile, II:

No sir, they had not.

Arthur J. Goldberg:

(Inaudible)

Philip T. Van Zile, II:

Exactly.

Arthur J. Goldberg:

And you don’t know how thi8s case (Inaudible)

Philip T. Van Zile, II:

I do not but I can speculate that the — one grounds we’re going to the state court was that they thought that it was more receptive than the Board at that time.

Perhaps they feel differently now but the point is that — that this isn’t an opportunity for forum shopping.

Earl Warren:

We’ll recess now Mr. Van Zile.

Mr. Van Zile, you may continue.

Philip T. Van Zile, II:

Mr. Chief Justice, members of the Court we were discussing pre-emption and I had about concluded my remarks on the practical effect of the petitioner’s position it adopted.

I want to make it clear so that there will be no misunderstanding that in our opinion, we have here a parallel remedy and a parallel right to appear before the Court and before the Board and that the relief would have been the same.

In other words, if the petitioner could have gone to the National Labor Relations Board and it is conceded that he would’ve secured the same relief instead he waited beyond the statutory period before going to — before commencing his lawsuit and he never did go to the Board.

Now, I would like to discuss very briefly Dowd Box and Lucas Flour.

It is the petitioner’s argument that Dowd Box considered this exact situation such as most certainly not the case if one reads the briefs and considers the argument of Mr. Feller at the last term in Dowd Box.

That was a true collective right that was being enforced by the union.

In fact, it involved the entire validity of the agreement which the company claimed was void by a reason of lack of authority in the negotiators.

And, naturally the union was — had a perfect right under 301 to assert the contract’s validity.

There followed a wage increase which had been included in the contract as negotiated, and there was a relief given as to that but that was an incidental part of the suit.

The suit was for enforcement.

The alleged unfair labor practice was a refusal to bargain and we know from the insurance agents case that the Board is in no position whatsoever to grant the same relief as the Court using its equity powers in Massachusetts which was done in Dowd Box.

So that — and another thing, there was no disagreement in that case about pre-emption.

If you will read the petitioner’s brief again, you will find that the petitioner claimed that pre-emption did not apply to a 301 action.

He agreed with Mr. Feller.

What he did say was that it applied solely on the federal court because 301 confined jurisdiction exclusively to the federal courts so that the pre-emption wasn’t argued either.

As to Lucas Flour we had no unfair labor practice at all.

It was a claim — the claim of the union in that case as a means avoiding liability altogether that the right to strike was arguably protected.

There is a statement to the effect that it was arguably prohibited.

I don’t quite understand that and I don’t think Mr. Oles who argued for Lucas Flour in that case understood it either.

But in any event, the pre-emption rule as claimed by the respective parties in Dowd Box and Lucas Flour is not our case because in those cases most certainly the Board was not in a position to grant relief and couldn’t have granted relief.

And before leaving, well I should say I’ve one other remark to make and that is that this contract argument is deceptively simple.

In our case, the Government brief says that pre-emption should not apply to a contract action.

Our Brother Harris admits that this is not so if substantive state law controls.

The Government, through the Solicitor General, has several reservations about this.

He says this is right in this case but it is wrong as he says in his footnote at page 25 — rather in his footnote at page 17.

It is wrong if the contract includes a sweeping — I think, to use his exact words — no, he uses this.

He says if the bargaining agreement merely adopted as such a wide range of obligations imposed by the National Labor Relations Act, imposed statutory duty to bargain collectively and so forth, then this would be a different case.

This is a different case and degree but I submit to the Court that it’s no valid distinction because Section 8 (a) (3) equally requires the expertise and knowledge of the Board as if you included in Section 7, Section 8, and the duty to bargain collectively, etcetera.

And in Section 20 — I mean on page 25 in his footnote, he refers to another exception and these are cases in which the Board has appeared and the claim is a contract claim.

It involves recognition, a standard part of every contract which says that the union is the exclusive bargaining agent but suddenly the union loses the majority of the employees who’s — choose to be represented by another employer and the — or rather another union and then the union who’s been unseated brings an action in Court on 301 to enforce the agreement.

Philip T. Van Zile, II:

The Solicitor General says that here he feels that there ought to be determined by the courts to the expertise and knowledge of the Board.

I agree — oh, I think all we disagree on is whether or not we ought not to defer to the expertise and knowledge of the Board in this area where the contract incorporates Section 8 (a) (3).

To us it’s equally important.

Now, as a selectee — as a suggested solution and one supported by the reasoning of this Court in the Railway Labor Act cases and by Anson versus Hiram Walker cited in our brief which was a decision by the Seventh Circuit denied review by this Court, we feel that it should be required of an individual employee with a remedy before the Board to go to the Board first and that if the Court is approached on the same theory of exhaustion of administrative remedies, that the Court insist that he go to the Board first.

If the Board refuses to take jurisdiction or will not issue a complaint, then he’s in the position to go back to the Court.

If the Board on the other hand takes jurisdiction as it most certainly would have in this case I think, then that’s the end of the matter.

And this is suggested in the Railway Labor Act cases such as Slocum versus Delaware and Order of Railway Conductors in 339 U.S. where the courts were denied the right to act where the employee had not, where the union had not gone to the Railway Adjustment Board to seek relief.

They insisted — it was insisted by this Court in those cases that that be followed.

Otherwise, this raise of diligence would follow and there’d be a result in conflict at least potentially.

And with that I would like to pass to the question of Section 301.

As we see it, our argument is — maybe summarized in this manner.

We think that Section 301 is the basis for this federal labor law which the Court enunciated in Lincoln Mills that this Section grants rights, federal rights so to speak from which this Court is free to fashion a federal law.

The question is what are these rights and what is the reach of this statute?

And does it apply to a suit by an individual employee for back pay?

And if it does not, what is the applicable substantive law, state or federal.

And so I think in our quest for an answer, we start with Westinghouse.

Westinghouse of course was by — there was no majority opinion in Westinghouse but the feeling I think of those in the majority was that these were uniquely personal or individual rights and that Congress did not contemplate in the legislative history of Section 301, a grant of jurisdiction to the federal courts over suits by individual employees.

This has a sound legislative basis because we find consistent references to the flood of litigation which would result, the fact that federal judiciary was then vastly overburdened and still is.

And furthermore we find only two references.

At least, I have only been able to find two references to individual employee actions in the entire legislative history of Section 301 and the Taft-Hartley Act.

One is — was referred to my — by my Brother Harris a question by Representative Barden answered by Representative Hartley.

This is the only one of significance.

It appears in Lincoln Mills.

It doesn’t seem to have any particular significance.

It’s a long question perhaps misunderstood.

The other was a remark by Senator Taft in which he, referring to Section 301 said that it granted rights to the employers and the employees.

He obviously misspoke himself.

He meant the union not the employees because he didn’t even mentioned a labor organization or the union.

Westinghouse established this proposition.

Westinghouse is no longer law as to the constitutional questions which bothered Mr. Justice Frankfurter.

Philip T. Van Zile, II:

Lincoln Mills settled that.

But if we have Westinghouse in (Inaudible) of history by reason of Lincoln Mills then I failed to see why this Court was so careful to distinguish Westinghouse as it did in Lincoln Mills.

And Mr. Justice Harlan, joining in the occurring opinion made it plain that his concurrence was on the basis that Lincoln Mills involved the enforcement of a collective right and not a uniquely personal right.

So that was — to me at least the status of Westinghouse and how was it — as it appeared to the lower courts since.

I have reviewed the lower court decisions and of our ten circuits plus the District of Columbia, there have been — this question has been raised in nine out of 11, in nine out of 11 cases have followed Westinghouse and said that an individual has no right to sue under Section 301.

This incidentally was a situation in the case heard by this Court at the last terms, Zdanok versus Glidden from the Second Circuit, a suit by individual employees and considered to be without the purview of Section 301.

Every court has consistently said in these cases that they were dependent upon diversity and necessary jurisdictional amount.

Potter Stewart:

Now, what if — as a matter of state procedural law even in a case which was concededly based on the union’s right as the union but what if the — if the state required, it wouldn’t — would not permit a union to be a party plaintiff and required that individual employee — that individuals be in — be the plaintiffs.

Now, and certainly that would be under 301 or could be (Voice Overlap) —

Philip T. Van Zile, II:

Definitely.

As a matter of fact, I think Mr. Justice Stewart that was the case in Dowd Box.

Potter Stewart:

I think it was too.

Philip T. Van Zile, II:

I think that the Massachusetts law required —

Potter Stewart:

Apparently so, that is —

Philip T. Van Zile, II:

— the individuals sue on behalf of the union —

Potter Stewart:

Yes.

Philip T. Van Zile, II:

— under their local procedures.

Well, contrary definitely a state procedure could not block enforcement of 301 rights.

Potter Stewart:

But you’re talking about the “uniquely personal right”?

Philip T. Van Zile, II:

Yes, I am, and I’m talking about the reaction of the lower courts, federal courts that have treated the question since Westinghouse.

Potter Stewart:

And now are these nine circuits which you consider this — so they considered it since Lincoln Mills?

Philip T. Van Zile, II:

Well, we have — we have four cases decided May and June of this year.

What were the (Inaudible)

Philip T. Van Zile, II:

There was Detroit Edison versus Palno.

Potter Stewart:

But they could fall into the same (Inaudible)

Philip T. Van Zile, II:

I think that is cited in the brief of the Solicitor, Mr. Justice Stewart.

There’s another Sixth Circuit case which I’m sure is cited in my brief, General Drivers Union versus Riss, there — those were both Sixth Circuit cases.

We also have the case of Sheppard versus Cornelia — Cornelius in the Fifth Circuit.

Potter Stewart:

Within the footnote on page 21 of your brief, most of them?

Philip T. Van Zile, II:

I believe so sir and that was decided in 302 F.2d.

Philip T. Van Zile, II:

I think its June, May or June of this year.

So that as a matter of fact, many of these Courts of Appeal seem to have some little difficulty with a question that they decide the case is per curiam.

I mean there’s no extended consideration —

Potter Stewart:

Sometimes that’s done when they have a great deal of difficulty?

Philip T. Van Zile, II:

(Inaudible) — I choose — think it was a simple matter and maybe — but at least the Sixth Circuit has done it per curiam and perhaps because of the difficulty.

In any event that’s been the status of the matter in the local courts so that I can’t conclude the Dowd Box or rather the Westinghouse has yet in the dustbin of history.

Now we come to Dowd back — Box and that puts it in the dustbin of history.

That puts it in the dustbin of history only if Dowd Box involved uniquely personal rights alone which it didn’t.

It did at the end because the other questions have become moot as I recall it.

But as initiated in the Massachusetts Court, it was a collective right that the union claimed to enforce just as much as the right to arbitrate.

And of course, in Lincoln Mills we wound up with an arbitration concerning back pay.

But the assertion of the federal right which Congress found a desirable method in which Lincoln Mills decided was a right considered by Congress within the meaning of Section 301 and equally with Dowd Box.

Now coming to Atkinson, I must confess at more difficulty with Atkinson for the simple reason that it’s premised on two grounds.

I think that the majority through Mr. Justice White in discussing count 2 of Atkinson where the jurisdiction was based on diversity said it was sufficient if the complaint on its face showed an alleged violation of a collective bargaining agreement.

But Mr. Justice White then went on to consider the second ground.

And the second ground involves the only substantive law to be found in Section 301 in its entirety.

And that is the vicarious responsibility of the union and the exculpation of the union member from liability to the — end that, there would be no repetition of the Danbury Hatter situation.

Congress was unanimous in this view both majority and minority.

They wanted to end any possibility of a union member being liable.

And in Atkinson, count 2, as Mr. Justice White’s opinion states charged these members with liability for breach of the no-strike clause even though they were acting as agents of the union.

And to us at least this is controlled by Section 301 (b) in a substantive law there.

We were there involved with the suit against the union member individually.

Here, we are considering a suit by an individual member which we think is considerably difficult.

Byron R. White:

About the constitutional (Inaudible)

Philip T. Van Zile, II:

According to my theory, Mr. Justice White, which I think Professors — Professor Cox went — subscribed to, there is a uniquely personal right involved for the individual suits for back pay.

After all he earned it, it’s his, the title to it is his, the union has no interest in it.He is the only that can assert —

Byron R. White:

(Inaudible) depends upon the (Inaudible) for being a member or being a member (Inaudible)

Philip T. Van Zile, II:

In that case, we say that pre-emption should apply firstly.

Byron R. White:

On what (Inaudible)

Philip T. Van Zile, II:

Then we have what the Solicitor General terms or has termed in a Law Review Article, a provision with a dual aspect because the union has an interest in it but so does the individual.

Philip T. Van Zile, II:

But I submit to the Court that if the union were to sue, its cause of action would be entirely different except as to the issue perhaps of discrimination.

Because the union, I would assume, would be claiming that it was damaged because its membership was in fact discouraged, it lost dues, etcetera.

Byron R. White:

Even takes it (Inaudible)

Philip T. Van Zile, II:

Well, anyone as I understand it can file a charge before the Board and so the union could.But the Board would be considering the Section 7 and 8 rights of the employees.

Byron R. White:

(Inaudible)

Philip T. Van Zile, II:

Yes, but I say totally different.

Byron R. White:

(Inaudible)

Philip T. Van Zile, II:

I certainly do because I think when back pay is involved as there was in Westinghouse, it doesn’t make much difference what caused the contract is involved.

This is an accrued right.

This is now several years old, closed, the wages are — the right to the wages, if there is one, are vested and they’re in the employed.

The lower courts at least have so observed.

But I’m most frank to admit that it does have a dual aspect.

Now, I would also like to mention that Congress as I think many have observed considered only collective rights and for that matter, as Lincoln Mills — the briefs in Lincoln Mills may claim, the main thing that they consider was the no-strike clause.

And they also considered arbitration rights.

In considering the breach of contract, is an unfair labor practice.

They considered these collective rights.

They — at no point except these two references that I have noted referred to individual rights.

And in fact, the contrary it was noted I think by Secretary Schwanbach (ph) testifying before the Committee that individuals had always been able to sue and of course, Congress at that point was concerned with the suability of unions as an entity.

This was a problem with them.

There was of course no problem with the suit by an individual, nor has there ever been to my knowledge in the state such a problem on one theory or another, be a third party beneficiary what have you traditionally.

Individual rights have been enforceable whether it’s for seniority or what have you.

So that there was no necessity felt, I would assume by Congress for dealing with these rights or trying to affect these rights.

Instead they left as they said, the House Conference Report said in rejecting the Senate amendment on breach of contract as an unfair labor practice, we leave this to the usual processes of the law.

Well, these processes become — I submit respectfully quite unusual if petitioner’s argument is acceptable because they’re going to have displaced.

In Michigan I know our entire substantive body of law developed over 40 or 50 years in the sense that it will only exist if it is compatible with this so-called federal common law.So that we do have a problem in federalism, we lack any clear intent from the congressional history or the legislation indicating that Congress intended to usurp the States in the exercise of these rights.

And I become frankly quite lost in this area in many respects.

Because normally, I think of legislation, federal legislation as creating rights in the sense of a statute to which you can look.

This is not so here.

We do know however that the federal rights created under Section 301 which we construed to be the right of the union or the employer to sue for breach of agreement, does give the Court’s power to fashion a federal law.

But we say that it is — that the scope of this law is limited to the jurisdictional scope of Section 301 because that’s where the federal laws came from so to speak from these federal rights.

Philip T. Van Zile, II:

And to indicate why we feel difficulty in this area, we compare New York Central versus Winfield with the situation here.

That case involved the reach of the Federal Employers Liability Act.

And in that case, Congress directed the code of regulation though it’s comprehensive and it was based on negligence.

The New York legislature passed the Workmen’s Compensation Act which did not require a showing of negligence.

And in that case, the question was whether or not a railroad employee could sue under the employer’s lia — could sue or recover under the Workmen’s Compensation Act being covered by the Employer’s Liability Act.

The answer of the Court was no but when you look at the legislative history of the Federal Employer’s Liability Act as Mr. Justice Bender said, you find that the legislator — legislature that Congress considered this very point and rejected the idea of imposing liability without negligence.

And even then Mr. Justice Brandeis despite this legislative history would have permitted the New York courts to apply the Workmen’s Compensation Law because it was not in conflict.

Here, by virtue of this federal law, common law, the breadth of which we do not know and have no idea of, we have now displaced all law in the area of collective bargaining agreements and industries affecting commerce.

And they maybe utilized, that is the state decisions maybe utilized only as they are consistent with federal decisions so.

As a practitioner, we are left without guidelines or means of determining what law applies.

That is exactly petitioner’s position as to the reach of the law.

On the contrary on the Railway Labor Act which some people have said as a state — within the state and subject to the breath of legislation contained in the Railway Labor Act, this Court didn’t reach this conclusion because in Moore and Kopel.

The cases where the employees were discharged what law applied there?

It was state law said this Court.

In the case of Moore it was a state statute limitation and in Kopel it was the state rule regarding exhaustion of internal remedies.

And I submit that the Railway Labor Act proposes this comprehensive regulation as does the National Labor Relations Act with regard to collective agreements.

And going through the entire history of — not the entire history but many of the cases which have considered whether or not state law applies under various (Inaudible) types of federal legislation, I found no instance where the Court has displaced state law unless there is a comprehensive regulation and a probability of conflict not just a possibility of conflict.

So we submit to the Court that whether this be an action based on Section 301 or not and whether or not the federal substantive law applies that nonetheless if there’s to be centralized coherent administration of the Act and not duplicate remedies, forum shopping and the like that this Court will following — the reasoning of other situations require an individual employer to resort the Board first and the Court to defer to the Board where its expertise and knowledge is evaluated in this situation.

And we will ask — we respectfully suggest that this is the best remedy for obtaining centralized administration of Title 1 of the Act.

We also — and if this would be so if we are right in this contention, then there’s no necessity for considering the reach of federal law under Section 301.

On the other hand, if in the Court’s opinion pre-emption does not apply in a Section 301 action, then the reach of Section 301 becomes important because as my Brother Harris agrees I believe, if substantive law does not control, that is federal substantive law does not control this action then pre-emption does apply even though it is a contract action.

Thank you.

Earl Warren:

Mr. Harris.

Thomas E. Harris:

I would like if I may to give the Court a concrete illustration of why it is that we are anxious to preserve the concurrent arbitral and judicial remedy even in situations where we could go to the National Labor Relations Board.

In 1955 there was a long invidious strike against the Southern Bell Telephone Company.

At the end of that strike, the strike settlement agreement provided as it very often does, that the employees who had been discharged by the company some 226 employees had been discharged during the strike for alleged misconduct.

The settlement agreement provided that these 226 discharges would be submitted to arbitration.

The arbitration took several weeks.

In the end a majority of the employees were put back to work.

The next year, 1956, there was a strike at Cowler.

Thomas E. Harris:

Some 60 employees were discharged for alleged misconduct.

The issue of the reinstatement of those 60 employees at Cowler is still before the National Labor Relations Board.

In fact, the end is not yet in sight.

That is why we are so anxious to preserve the arbitral remedy and we see no way of distinguishing between arbitration and damage suits.

Now, our counsel for respondent mentioned the case of Glidden Company against Zdanok, Z-D-A-N-O-K.

That case of course was before this Court last year only on a quite different point, the right of a court of claims judge to sit on the Court of Appeals.

It does however, I agree illustrate very well the problem as to the reach of the federal common law of labor relations.

That was a plant closing case.

The employer closed a plant in Long Island and shifted the work from there into another plant in Bethlehem, Pennsylvania.

The union tried to take the — tried to compel arbitration in the New York States courts but the suit was dismissed on the ground that the contract covering the Long Island plant had expired.

Then individual employees sued in the federal court on diversity of citizenship.

The Court of Appeals for the Second Circuit ruled in their favor.

It held that their seniority rights under the expired contract covering the Long Island Plant attached to the other plant in Bethlehem, Pennsylvania that they were entitled to go to work in the Pennsylvania Plant with their old seniority rights.

The majority of the Second Circuit held that New York substantive law controlled on that point.

Judge Lumbard dissenting said, “No, this is a thing on which there should be a uniform federal principle and federal substantive law should control.”

And I submit that that case perfectly illustrates that federal law should control.

In other situations where a plant closes, it is quite often for a union to enter into an agreement as to the consequences of a closing, severance play, employment rights at the new plant and so forth whether that is done even according to the respondent.

Federal substantive law would control because — the enforcement of the agreement as to the consequences of the closing.

Surely it would be absurd to have federal law control in the one situation and state to common law control in the other.

Arthur J. Goldberg:

Mr. Harris, (Inaudible)

Thomas E. Harris:

I rather think that even in that situation, the Court would still have jurisdiction but it appears to me that both there and in a good many other situations I can think of, the Court should in its discretion refuse to entertain the suit on the ground that it is a matter better left to the National Labor Relations Board.

An illustration of that was a holding —

Arthur J. Goldberg:

But the Board (Inaudible)

Thomas E. Harris:

I would think that it should not here.

Why?

Thomas E. Harris:

As this is a normal provision in a collective agreement not materially different from the typical provision that there shall be a discharge only for just cause.

I think to refer to this sort of matter to the Board would cut too deeply into the normal arbitral process and the normal judicial process.

Potter Stewart:

Is there to be any power on the part of the court, state or federal to refer to the Board for the way courts should refer to the ICC in some matters within that agency’s expertise?

Thomas E. Harris:

I think that it would be desirable in a number of cases or types of situations —

Potter Stewart:

Well —

Thomas E. Harris:

— for the Court to do (Voice Overlap) —

Potter Stewart:

Whether or not be desirable, do you think there’s any mechanics available either on the part of the Court referring or on the —

Thomas E. Harris:

Well —

Potter Stewart:

— part of the Board which would be the recipient?

Thomas E. Harris:

Well, there are some difficulties.

One is this very short statute of limitations with the Board six months.

The other is that the party has no absolute right to institute a proceeding before the Board.

That right is vested only in the General Counsels of the Board so that there is not a really true choice of remedies here.

Even so, I think that there are some situations even which where as I contend the Court has jurisdiction that it should say that it would prefer to leave this to the Board, just as the Board now quite frequently or refuses to handle issues of contractual interpretation even within its jurisdiction on the ground that they are better handled by arbitration.

Potter Stewart:

Of course the practical difficulty with your suggestion is that almost invariably the short statute of limitations would have run.

Thomas E. Harris:

Yes.

Potter Stewart:

So that this would leave in that case, that case (Voice Overlap) —

Thomas E. Harris:

Its — it is a very practical difficulty.

Thank you.

Earl Warren:

Very well.