Trainmen v. O’Connell

PETITIONER:Brotherhood of Railroad Trainmen
RESPONDENT:O’Connell
LOCATION:Surface Transportation Board at the United States Department of Transportation

DOCKET NO.: 158
DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 395 US 210 (1969)
ARGUED: Jan 14, 1969
DECIDED: May 26, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – January 14, 1969 in Trainmen v. O’Connell

Earl Warren:

Number 172, Elmer Dirks, individually and as General Chairman of the Brotherhood of Railway Trainmen et al., petitioners, versus W.L. Birkholz et al.

Mr. Uelmen.

David L. Uelmen:

Mr. Chief Justice and may it please the Court.

This case does present the same legal issue that was presented in the previous case, although the language of the contrary is slightly different.

And, there — in our opinion, there is no mootness problem here and, to that end, we did file the supplemental brief a few days ago, to which I believe Justice Fortas referred earlier.

Abe Fortas:

Yes, but the difficulty is that this is here on certiorari, isn’t it?

David L. Uelmen:

That’s correct, Your Honor.

Abe Fortas:

And, the basic issue, it maybe a money claim pending but the question in my mind is whether it’s a matter that we would — which we would have granted certiorari if the facts had been established, if the facts that seem to exist now existed at the time that we considered the petition for certiorari.

David L. Uelmen:

Well, of course, the merger facts didn’t exist at that —

Abe Fortas:

I know that, but I say that if they did, the question is whether we would have issued the — issued the writ here.

David L. Uelmen:

You mean, because the amount of dues paid to the Brotherhood by the individual claimants and their class was a small amount of money?

Abe Fortas:

Well, not that, so much as that the underlying issue seems to be one in which — which might not be appropriate.

I don’t know whether it is or not because we haven’t heard from the other side.

The other side filed nothing here, and I know this is your supplemental pleading here, but —

David L. Uelmen:

Well, the difference —

Abe Fortas:

I don’t know.

I don’t know that we would have — I don’t know that certiorari would have been granted.

I don’t know that it wouldn’t.

Well, I just don’t know that certiorari would have been granted because, here, you have people arguing a very important issue on the basis not of a basic conflict of interest, but on the basis of a relatively small money judgment below.

David L. Uelmen:

Well, there was a small money judgment involved in the Felter case against the Southern Pacific also because it involved only the check off dues of one particular man.

Abe Fortas:

I know, but —

David L. Uelmen:

And, in this case —

Abe Fortas:

Of course the question about the kind of — I know which we are to spend this — spend our own time on these cases.

David L. Uelmen:

The difference in this case and in the previous case, of course, is that there was no restraining order issued in this case.

The effort to obtain the restraining order failed and, as a result, the plaintiff and his class were compelled to join the Brotherhood of Railroad Trainmen, and they were compelled to pay dues to the Brotherhood of Railroad Trainmen.

And, when the appeal was pending in the Court of Appeals for the Seventh Circuit, those plaintiffs argued to that Court that they wanted the case remanded to the Trial Court for the purpose of having their dues money that they had paid to the Brotherhood restored to them.

And that issue, of course, the issue of money damages, still makes this a live issue or a case of controversy for this Court because even if this Court does, pursuant to a mootness point, reverse and remand it and vacate the judgment, then these individual plaintiffs and the class that they represent will not be restored to the dues that they paid and would still have the claim for that money.

William J. Brennan, Jr.:

But, Mr. Uelmen.

David L. Uelmen:

Excuse me.

William J. Brennan, Jr.:

I expect, as Justice Fortas suggested, this ins — this case may not be moot.

William J. Brennan, Jr.:

But, if you’re familiar with Monrosa and cases of that kind where there have been events, occurrences since the grant of certiorari which make it, in our judgment, a case not to be decided, we dismiss it as improperly granted.

And, I expect that’s the choice here, isn’t it?

David L. Uelmen:

Well, —

William J. Brennan, Jr.:

Whether or not this issue ought to be decided in the context just to the money claim, or weight an actual application of the same sort of thing in some contest between this new Union and the engineers.

David L. Uelmen:

Well, I think that if the case is remanded to the Lower Court, the federal rules —

William J. Brennan, Jr.:

But that wouldn’t be what would happen if the writ would simply be dismissed as improperly granted and the judgment below would stay.

That’s what — that’s the choice, I expect.

David L. Uelmen:

And then —

But there are still proceedings to go on in the lower Court if that would happen.

Well, yes.

The individuals would certainly assert their or have the right to if they so desire —

Byron R. White:

That’s right.

David L. Uelmen:

And I think, under the class action rules of the Federal Rules of Civil Procedure, each member of that class would have to be notified that the Court intends to act on their claims and they would have the right to say, well, whether they waive them or not.

And, from the letters that we have received and the protests that were filed at the time they paid the dues, we have no reason to believe that these members are going to waive that in those claims.

They were not happy at all and — by being compelled to join the Brotherhood.

Byron R. White:

How many are there?

David L. Uelmen:

Well, the individual plaintiffs are six in number and they purport to represent a class and, frankly, that actual damage issue was never tried.

So, it could be several hundred.

I would say an estim — probably between 200 and 300 that were compelled to join the Brotherhood and were not pleased about it.

If the Court please, the Court below —

Byron R. White:

Was the judgment of the Court below stayed or did these people cease being members of Brotherhood?

David L. Uelmen:

Well, we won the case in District Court and, so then, the men, of course, were compelled to join the Brotherhood.

Now, some of them remained members of the Switchmen also.

In other words, were members of two Unions, and then, the Court of Appeals reversed the District Court —

Byron R. White:

That’s right.

And so, then the men ceased being members of the Brotherhood —

David L. Uelmen:

Well, I think some of them did, yes.

Byron R. White:

Well, why wouldn’t all of them pay taxes?

David L. Uelmen:

Well, —

Byron R. White:

Unless, the Seventh Circuit opinion would stay.

David L. Uelmen:

There was no stay issue, no.

Byron R. White:

I see.

David L. Uelmen:

And then, of course, we filed a petition for cert here.

The Court of Appeals for the Seventh Circuit held that Section 211 (c) of the Railway Labor Act must be read literary and that the legislative history supports the literal reading of that statute.

The Court also noted and stated that, in this judgment, the opinion of this Court in Rychlik versus Pennsylvania Railroad which construed the legislative history differently was dictum on that point.

And they also held that the Court of Appeals opinion in the Third Circuit in Rohrer versus the Black Lick Railroad was inapplicable because that railroad was owned by a Steel company and was organized on an industrial basis.

And, with those positions and with that reasoning of the Court below, of course, we disagree.

The legislative history of this law shows clearly that Congress intended the railway Unions to have a Union shop agreement just like the industrial Unions had.

The one problem that kept coming out and being debated was what they were going to do with the operating Unions as distinguished from the non-operating Unions because, in the operating crafts, there was this craft progression from fireman to engineer and back again to fireman, and between conductor and break man and back again to break man, and that argument was debated in Congress at some length, and different proposals where made at various stages of legislative history.

At one time, the proposal was made that perhaps the parties could just negotiate it out, and that wasn’t satisfactory.

Another time, a proposal was made similar to what we did here that the man would have to be a member of the Union that held the bargaining march, and that proposal was not adopted in that form.

Another was a proposal to simply issue a general prohibition on requiring membership in more than one Union.

Now, in the final analysis, everyone agreed to one very important point, and that is that the only item they wanted to correct, the only difference that they wanted in this particular Bill was to correct the problem of compelling a man to become a member of more than one Union.

They felt that a man should not be forced to pay dues to one Union.

The Congress was willing to permit the Union the employer to compel and to pay dues to the Union — to one Union, but they didn’t want him to pay Union dues to two.

And, with that concept in mind and with that overall objective, the language was agreed to by the various Unions and, ultimately, adopted by Congress.

And, this Court exhaustedly analyzed the legislative history on that section in the Rychlik case and held that the — that that legislative history must be read carefully in order to understand the exact language of the con — of the statute, and that the statute itself could not be read literary on its face.

And, this Court held and it state — and it adhered to those holdings in the Street case and in the Felter case that the statutory language must be read in the light of solving this problem and that problem, we agree with and we have incorporated into our collective bargaining agreement specific language which states that if the man has a right to work in another craft such as a conductor, and if the conductors have a contract with the railroad under which compulsory Union is a factor, he can become a member and remain a member of the Conductor’s Union.

That, we say — we assert to the Court, solves the problem of what Congress was trying to reach, and that is, the man cannot be compelled to become a member of two.

But, what does the Switchman’s Union’s have on the Milwaukee road?

It has no contracts.

It cannot negotiate a contract.

It had never did have a contract since the Railway Labor Act was passed, and it would be impossible for that Union to negotiate a contract with the employer that would compel the man to become a member of the Switchman’s Union.

And, with that in mind, we have asserted that the legislative purposes served by compelling the man to become and remain a member of the Union that bargains for him and if the Union does not bargain for him, the — if the Union is just a stranger to the property, which was Switchman’s Union was in this railroad, that membership in that Union could not be used to satisfy the Union shop requirements.

Is there anything in the legislative history that shows that Congress was reaching for this problem?

David L. Uelmen:

You mean, with specific —

Situation where the Union — the other Union no longer makes a thrust?

David L. Uelmen:

No, Your Honor, there’s nothing specific on that.

I think that it is consistent with the Union shop legislation itself though.

The language of the Act certainly supports the Court of Appeals.

David L. Uelmen:

The language of the Act literary read, of course, and if the language had literary read, some modification would have to be made in the Rychlik language, and —

I don’t remember Rychlik and Rohrer which, as you’re aware, brought it here.

David L. Uelmen:

Well, Rychlik said in the — several times, of course, that the language could not be read literary, that it had to be read in the light of solving a problem with compulsive —

We’re dealing with the context of a Union still bargaining for him.

David L. Uelmen:

Yes, that — and, of course, there are a very few railroads in the United States in which the railroad is organized on a what we call a perfect basis where the engineer represents only the engineer and the fireman only the fireman and so on down the line.

And, it’s true that the legislative history didn’t consider that problem specifically, but it would be inconsistent with the overall provisions of the Union shop agreement and the Union shop statute to permit a man to satisfy the compulsory Union features of the statute by becoming a member of the Union that cannot and does not bargain for him.

Byron R. White:

But it was certainly was a standard saying at the time these past — these amendments were passed to — for one of the railroad Unions to represent several crafts.

David L. Uelmen:

Oh, yes.

Byron R. White:

And, I guess that background when Congress used this broad language.

David L. Uelmen:

Yes, that’s true.

They used very broad language.

Well, of course, how else are we going to solve a problem of a dual Union situation?

That was really the tough problem that they faced.

What language is there that they could adopt which would make the man join at least one Union, but not make him join two?

And, this was the subject of considerable debate in Congress but the overall picture was, I think, clearly in the legislative history, shows that that was on the only problem —

Byron R. White:

Your position is they didn’t need any language.

All they needed to do is to live up to the Union shop agreement.

David L. Uelmen:

Well, except that —

Byron R. White:

To be a member of the Union and have the contract.

David L. Uelmen:

Well, no, because you may have a situation like it is true on the Milwaukee Road where they trainmen and the conductors each have a contract, and the trainmen do work as conductors from time to time.

They are assigned to that job.

Byron R. White:

I understand that, yes.

David L. Uelmen:

And, of course, the purpose of this language of the statute was to permit the man, eventhough he was employed as a trainman perhaps the majority of the time, to be a member of the Conductor’s Union, if he chose to do so, as long as he had the right to work under that —

Byron R. White:

Well, suppose Congress could’ve put it like your brief.

David L. Uelmen:

That’s true, Your Honor, and I think though that the Rychlik opinion pointed the way clearly in that direction and the decision of the Court of Appeals in Rohrer versus Black Lick made it very plain that that is exactly the way it’s certain to work and it only makes labor relations sense to work to have the man belong to the Union that must do his bargaining, that is obligated under the duties of fair representation and all the rest to defend him.

William J. Brennan, Jr.:

Mr. Uelmen, I think, on occasions, you had observed in opinions the railway labor legislation as, really, collectively bargained a business between Carriers and Unions and Congress just puts it’s simple matter on it.

Was that true of these amendments?

David L. Uelmen:

I think that there was an agreement between the five operating brotherhoods on this language.

I understand the engineer had a different version of it from time to time, but —

William J. Brennan, Jr.:

Well, does that have any bearing on whether we should read this language literary or —

David L. Uelmen:

Well, I — there is no place in this record or anywhere else that I can find that’s going to — for someone to say, “Well, I was there at the time that language was drafted and we intended a man to be able to be a member of any one of the five Unions.”

William J. Brennan, Jr.:

Well, this is considerably different language in the trainmen represe — recommended though, isn’t it?

David L. Uelmen:

The language is different, Your Honor.

That’s true, but the problem that the language was intended to solve was the same.

Now, there was alternate proposals made as to how they should meet this problem, and I don’t think it was fair to say that the Court of Appeals said that the trainmen proposal was rejected.

It was — it’s to strong to say that because there was a group of men, contesting men, trying to solve one problem, and no one, as I think that Justice Harlan pointed out, no one had this problem specifically in mind.

They had the problem of trying to avoid the situation where a man would be forced, could be compelled to join two Unions, and that problem is not present unless both Unions have a contract because, unless the alternate Union has a contract, the man cannot be compelled.

There’s no — the alternate Union is a stranger to the situation.

Byron R. White:

What — is there another case in which the issue — are there some other cases where the issue is whether an employee may get a minority Union — get some Union that doesn’t have collective bargaining representative to process his grievance for him or to represent him at a grievance?

David L. Uelmen:

Yes, I think that Your Honors had that on certiorari.

Was denied yesterday in the McElroy case.

That was a case, as I understand it, where the Engineer’s Union holds a collective bargaining agreement with the railroad, and the Firemen’s Union which does not hold the contract did seek to and did in fact represent a particular man under the engineer’s contract.

Byron R. White:

Is that case — these cases aren’t related?

David L. Uelmen:

Well, I think that the labor relations principle is fairly similar, although not identical because although I can’t argue with what you did yesterday, I do say that it doesn’t, again, make labor relation sense to say to a Union, like the engineers who has a contract with the carrier, “We’re going to let some other Union interpret that contract, enforce that contract, settle grievances under that contract, and not even have the engineers present or on the scene when that is done.”

And, what this case is related in the sense that what we’re saying to a man is that “You have a Union that represents you and you can make him represent you.

You can force him to represent you.

You can take him to Court to be sure that he doesn’t represent you unfairly, but we’re going to let him pay his dues to somebody else,” and that’s the evil that we’re getting at in this argument.

Thank you, Your Honors.

Earl Warren:

Mr. Leibik.

Lee Leibik:

Mr. Chief Justice and may it please the Court.

As in the previous companion case, we have no clients who have any continuing interest in this litigation.

Byron R. White:

Had no what?

Lee Leibik:

We have no clients who have any continuing interest in this litigation.

Earl Warren:

Very well.

Matter submitted.

Lee Leibik:

Thank you, Your Honor.

Earl Warren:

Mr. Leibik, Justice Harlan would like to ask you —

Lee Leibik:

Yes, sir.

Earl Warren:

A question.

Would you elaborate that a little bit?

Lee Leibik:

Yes.

Insofar as we’ve been able to ascertain, there are no pending damage claims on behalf of the any member.

At the time and prior to the effectiveness of this agreement on the Milwaukee — the Milwaukee Railroad Issued a bulletin informing all its employees that there would be no enforcement of this agreement pending the outcome of this litigation.

No employee on the Milwaukee Railroad has been discharged, no employee, to the best of our knowledge, has ever been cited for non-compliance with the Union shop provision.

Byron R. White:

They joined the other Union?

They joine the Union as they’re required to.

Lee Leibik:

As I understand, some people did.

I’m not certain —

Byron R. White:

But they have a damage claim in the Court of Appeals or did they —

Lee Leibik:

No, there were no damages alleged on behalf of any individual in our complaint in the District Court.

Our prayer for leave sought only damages on behalf of the Switchmen’s Union of North America which has now been merged in the United Transportation Union.

Byron R. White:

And so, your individuals never did — they did join the Union that they didn’t want to join.

Lee Leibik:

I believe that some individuals did join the Brotherhood of Railroad Trainmen.

The —

Byron R. White:

And you never asserted any right to — in the Court of Appeals and — to make any claim?

Lee Leibik:

We may —

Byron R. White:

And sort of be remanded to the District Court to determine damages for the individuals having paid dues when they shouldn’t have had to?

Lee Leibik:

We made some reference in our brief in the Court of Appeals, the fact that if we could possibly prove up in the District Court that anybody was damaged by being compelled to join the Brotherhood —

Byron R. White:

You now say —

Lee Leibik:

This is purely speculated.

Byron R. White:

You now say that whether you had damages claims or whether you didn’t, you don’t have them now.

Lee Leibik:

I have no knowledge of any pending claim for damages growing out of compelling membership in the Brotherhood of Railroad Trainmen during the course of this litigation.

Byron R. White:

Well, you made a pending claim, but you’ve got as much claim the damages you had when you made this kind of a claim in the Court of Appeals.

Lee Leibik:

Well, the fact is that our complaint —

Byron R. White:

Have you changed your position now?

I mean, you were saying, “Now, I abandon all claims for damages.”

Lee Leibik:

No, I would not.

Byron R. White:

On behalf of your client?

Lee Leibik:

I do not believe — to the best of my information, I believe there are no damage claims which were incurred by any employee on the Chicago-Milwaukee Railroad.

Byron R. White:

And you’re saying that on behalf of your client?

Lee Leibik:

Yes.

Byron R. White:

But, if they made a damage claim, it would be fruitless?

I mean, they haven’t been damaged.

Lee Leibik:

As so far as I can ascertain, nobody has been damaged —

Byron R. White:

Except, they could —

Lee Leibik:

There are — there is a machinery within the United Transportation Union for filing case —

Byron R. White:

Except if they paid dues to the Union that they then claim, and it may still be true, that they didn’t have to join.

Lee Leibik:

That is speculated.

Byron R. White:

What’s speculated?

Lee Leibik:

Because I — I’m not certain as to whether or not they were ever compelled to join the Brotherhood of Railroad Trainmen and abandon their membership in the Switchmen’s Union of North America.

Particularly in as much as the Chicago Milwaukee Railroad did issue a bulletin to all the employee that there would be no enforcement of this particular agreement pending the outcome of the litigation.

But then, I don’t understand.

Your opponent says the opposite.

He says there are potential claims against the Brotherhood.

Lee Leibik:

Some 200.

Are you in the position to represent that if these cases are dismissed as moot, if this case is dismissed as moot, that the Brotherhood is from in no risk of a basic future damage kind and reason to get you into this Union?

Lee Leibik:

I believe it would be purely speculative on my part to suggest that some individual may or may not file a claim for damages based upon being compelled to join the Brotherhood of Railroad Trainmen.

But —

You represent not only individuals, but you represent the party.

Lee Leibik:

That’s correct.

Aren’t you in the position to ascertain and shouldn’t you ascertain before the Court acts on the claim of mootness?

I’m talking about whether it’s certain that it’s in this case, then shouldn’t you bring into Court and have those statutes before it?

Lee Leibik:

Well, I have made every effort to ascertain from the six named individual plaintiffs as to whether or not they have any continuing interest in this litigation, as to whether or not they have any —

Six —

Claims.

Yes.

Potter Stewart:

Six?

Lee Leibik:

There has been no effort made to ascertain the desires of the entire class.

Some was suggested of course that if this where handled on the basis of the writ of certiorari having been improperly granted, it would be remanded to the District Court for further proceedings.

And, I believe that could clearly take care of any conceivable claims which may be advanced by any individuals.

Potter Stewart:

Well, except that the — if this Court should do that, that would mean that the judgment of Court of Appeals would remain standing, and your opponent would have lost.

Earl Warren:

That’s right.

Lee Leibik:

Well, we’re in the unfortunate position of having been requested by the United Transportation Union, and we are representing same Union now since the Unions have merged, of not arguing our position in this case, that we advanced in the District Court and in the United States Court of Appeals for the Second and Seventh Circuit where we were successful.

Potter Stewart:

Now, the — four of these operating Unions have merged —

Lee Leibik:

That’s —

Potter Stewart:

Consolidated, whatever they did.

So, it’s only one Union.

Lee Leibik:

Yes.

Potter Stewart:

There remains the Fifth one, however, under these —

Lee Leibik:

The Brotherhood of Locomotive Engineers, which is n ot a party for this litigation and at no time has been a party —

Potter Stewart:

Right.

Lee Leibik:

For this litigation.

Potter Stewart:

They filed amicus briefs here —

Lee Leibik:

Yes.

Potter Stewart:

In support of the petitioner, right?

Lee Leibik:

No.

The Brotherhood of Locomotive Engineers filed an amicus brief in support of the position of the — Mr. Uelmen here.

The Brotherhood of Locomotive Firemen & Enginemen, however, filed an amicus brief in support of our position prior to the merger of the Unions that you’re concerned.

Neither the Brotherhood of Locomotive Engineers nor the Brotherhood of Locomotive Firemen & Enginemen are parties to the litigation in the Erie case or parties to the litigation on the Milwaukee case, and they are not parties to the contract herein concern.

Abe Fortas:

I’m wondering if it wouldn’t be appropriate — I’m wondering if it wouldn’t be appropriate or in a file something which happened here is that both sides have come in and presented us with a new drama, new script where this drama was to be enacted before this Court on this day, the January 14, 1969.

Your adversary did file a supplemental pleading and — but we haven’t heard from you until this moment, have we?

Lee Leibik:

No, you have not, and I pursued that point —

Abe Fortas:

I’m wondering where much of about — I’m wondering whether we ought to have it see —

Lee Leibik:

We would be delighted to provide the Court with —

Abe Fortas:

Further submissions here just so we can be sure of who’s on first base, if anybody is, because, at the moment, it’s — everybody seems to be in between the bases.

Lee Leibik:

We would be very delighted to provide the Court with the supplemental brief.

Hugo L. Black:

May I ask you one question about the merger.

Lee Leibik:

Yes, Justice Black.

Hugo L. Black:

You say these four have merged?

Lee Leibik:

That is correct.

Hugo L. Black:

They are now one?

Lee Leibik:

One.

Hugo L. Black:

Under what name?

Lee Leibik:

Under the United Transportation Union.

That embraces the Brotherhood of — the former Brotherhood of Railroad Trainmen, the Order of Railway Conductors and Breakmen, the Brotherhood of Locomotive Firemen & Enginemen, and the Switchmen Union of North America.

Hugo L. Black:

Does that one Union, in the contract of merger, agree to assume all the obligations of each of the merged Unions?

Lee Leibik:

That’s is quite of correct, Justice Black, and they have established a Disputes Committee.

Hugo L. Black:

Well, how could they possibly be in a lawsuit between them?

Would anything go into the same treasury?

Lee Leibik:

Yes, there is one treasury for all four Unions.

Now, it’s a completely merged operation and there is a Disputes Committee set up within the United Transportation Union to provide for overlapping inter-Union disputes.

Hugo L. Black:

Order should be turned up later which, I gather, is not likely to be.

That some person has been injured by this Union that has been absorbed in the one Union.

Is it possible for him to sue this big merged Union now?

Lee Leibik:

There had been suits already instituted.

Mr. Uelmen referred to a suit brought in the south which has been dismissed as of this date.

William J. Brennan, Jr.:

It’s been dismissed?

Lee Leibik:

But, I suppose there will be matters litigated with respect to this merger for some period of time.

Thurgood Marshall:

How can we get a case in time to reverse if both of you represent the same client?

Lee Leibik:

That’s a question I cannot answer, Justice Marshall.

Thurgood Marshall:

I can.

What you’re really saying is that, from your standpoint at the moment, based on your present information and understanding, you think this case is moot?

Lee Leibik:

I must say that to the Court in all candor.

Therefore, it would be appropriate for the Court, in your view, not only remand the case, but to vacate the judgment below so that the only future claims that arise would have to start all over again.

In other words, the Brotherhood would be protected in that fashion, is that your point?

Lee Leibik:

I believe the Brotherhood would be protected in that fashion.

I —

How could anyone be injured by it?

Lee Leibik:

It’s like advancing —

Hugo L. Black:

How could anyone be injured by it?

Lee Leibik:

I can’t conceive of anybody having been injured by the effect of what occurred as a result of the agreement.

Earl Warren:

Very well, would you submit a memo to us in response to —

Lee Leibik:

Certainly.

Earl Warren:

To the other.

Thank you.

Did you have anything further to add.

David L. Uelmen:

Just one minute, Your Honor.

To answer your question, Justice Black, if the case is remanded and vacated, similar to the preceding case, and if that is the end of it, of course, nobody will have any problems.

But, it does seem to me that because the plaintiff pleads a representative suit here, a class action, it does seem to me that when it goes back to the District Court, that class under the federal rules is going to have to be circularized in some fashion to find out if they want to have their dues refunded because they certainly claimed that in the case so far.

And, if the individuals do claim that they want their dues refunded, as far as I know, the United Transportation Workers Union is not going to just write them out check, and we’re going to back in the —

William J. Brennan, Jr.:

Now, do you have any idea how much money there is involved in this?

David L. Uelmen:

No, I cannot honestly say that, Your Honor.

I think the sum is fairly small.

I would doubt that it would be more than a couple of thousand dollars.

Well, maybe whatever the legal recitation would make but given the merger, maybe you’ll find it’s better to refund all that money as a practical business matter than to go through an expensive litigation to litigate in that question just like you did now.

Lee Leibik:

I think that’s a possibility but also, on the other hand, I think the answer of the organization would be that they have spent that money right up to the Supreme Court now and —

I mean, the litigation comes up here and find themselves out of the case.

It’s very disappointing.

David L. Uelmen:

Well, if all of the claims would be dropped, if — I think that if counsel for the respondents here could say that he’s authorized to drop all claims, that would be the same situation as a previous case, but —

Abe Fortas:

I’m not — but, I’m not sure that, in the class action, the District Court would have to give notice in the event that a judgment were vacated on the grounds that there’s no case controversy as it presently stands.

Now, that would be quite different from a situation where the District Court dismisses a complaint or approves a settlement or something like that.

I’m not — and I suggest to you that there is at least that possibility.

David L. Uelmen:

Is it all — it would also be possible to, if you did that, to cite the Rychlik versus Pennsylvania Railroad.

William J. Brennan, Jr.:

Mr. Uelmen, do I correctly understand?

Your adversary is suggesting that perhaps none of these dues was collected from anyone —

David L. Uelmen:

No.

William J. Brennan, Jr.:

Lower class of 200 or 300?

David L. Uelmen:

No, the dues were definitely collected and we printed in our appendix to the — just one letter that we received from a man who made it very plain that he was unhappy about joining and there was, just literally, dozens and dozens of protests made when the man came in and paid his dues, “I’m paying under protest,” that some of the checks appeared, under paid, under protest.

William J. Brennan, Jr.:

That’s one, I misunderstood what you said.

Thurgood Marshall:

But when — when these Unions merged, were there any considerations given to you in one of these cases?

Thurgood Marshall:

Couldn’t they have all been worked out then?

Why do you leave it until its last moment and then drop it in our way?

Why?

David L. Uelmen:

Well, the merger was in effect on January 1 of this year, Your Honor, but —

Thurgood Marshall:

How long has it been — the — I think I would appreciate the Unions don’t merge overnight.

This had been going on for quite a while.

David L. Uelmen:

As a matter of fact, merger of these Unions have been talked about for years and years.

Thurgood Marshall:

Right.

David L. Uelmen:

But, specifically, in this —

Thurgood Marshall:

Well, in the part of that — weren’t these two cases deci — discussed?

David L. Uelmen:

They where not settled in the merger at all.

Thurgood Marshall:

Were they discussed?

David L. Uelmen:

Your Honor, I really don’t know because I —

Thurgood Marshall:

Well, couldn’t they had been settled within the same —

David L. Uelmen:

Well, I suppose it’s possible for them to have settled, yes.

Thurgood Marshall:

And then, we wouldn’t have any troubles.

So now, instead of doing that on your own, you’re asking us to find someway to get the case back to the other Court so this can be litigated all over again, is that your position?

David L. Uelmen:

No, Your Honor, we’re asking you to reverse the case based upon the precedence here of Rychlik versus Pennsylvania Railroad and the auth — and the —

Thurgood Marshall:

But we don’t have anybody versus anybody here.

We have the Union versus the same Union.

David L. Uelmen:

No, Your Honor.

There are individual plaintiffs here, named individually and purporting to represent a clash.

That’s the only difference between our case and the —

Thurgood Marshall:

Well, who represents now?

David L. Uelmen:

Well, Mr. Leibik represented —

Thurgood Marshall:

You just told me you represented your Union.

David L. Uelmen:

Well, Your Honor, in that —

Thurgood Marshall:

That’s what you told me, isn’t it?

David L. Uelmen:

I think you put your finger right on the problem because, in that case, those individual plaintiffs are unrepresented at this point.

Abe Fortas:

Well, what bothers me about this is that this document — you filed this document as of January 13.

David L. Uelmen:

That’s correct, Your Honor.

Abe Fortas:

I don’t know when your merger was agreed on.

It became effective January 1.

David L. Uelmen:

Correct, Your Honor.

Abe Fortas:

January 13 was yesterday, and now you and your adversaries are in here with very totally changed, basically changed set of circumstances and facts.

As far as I’m concerned, I will await whatever writ or submission you make.

David L. Uelmen:

Mr. Chief Justice, may I clarify one point —

Earl Warren:

Yes, you may.

David L. Uelmen:

To Justice Brennan.

Justice Brennan, I refer to the fact that no employee of the Milwaukee Railroad was compelled to drop his membership in the Switchmen’s Union and join the Brotherhood of Railroad Trainmen because of the issuance of a bulletin —

William J. Brennan, Jr.:

I must have misunderstood you.

In other words, although not compelled, some may have paid, is that it?

David L. Uelmen:

Correct.

William J. Brennan, Jr.:

I see.

Byron R. White:

Well, they were compelled to join.

They weren’t compelled to drop their membership.

Lee Leibik:

They were neither compelled to join nor to drop their membership on the basis of the bulletin issued by the Milwaukee Railroad while this litigation was pending in the Courts, and we know of no employee who was cited for non-compliance with the Union shop agreement.

William J. Brennan, Jr.:

Well, do you know of any who in fact paid, as Mr. Uelmen has suggested?

Lee Leibik:

I know of none personally.

William J. Brennan, Jr.:

I see.

Lee Leibik:

And I had spoken only to the named plaintiffs.

William J. Brennan, Jr.:

Yes.

Hugo L. Black:

As I understand it, speaking in somewhat of the language of the six-man plaintiffs.

What you’re putting up to is that the snakes and the Trainmen’s Union had become one, is that right?

Lee Leibik:

As they now are, yes.

Hugo L. Black:

And the controversy’s over.

Lee Leibik:

That’s quite correct.

William O. Douglas:

But who represents the individuals, the 200 or 300 members of the class?

Lee Leibik:

Well, we represent these individuals, but we do not believe and we’ve not been informed by any members of the class that there is any continuing interest in this litigation on behalf of those individuals.

Earl Warren:

Very well.