# Brotherhood of Maintenance of Way Employes v. United States (366 U.S. 169)/Dissent Douglas

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* Dissenting Opinion Douglas
United States Supreme Court
366 U.S. 169
Brotherhood of Maintenance of Way Employes v. United States
Argued: March 28, 1961. --- Decided: May 1, 1961
Mr. Justice DOUGLAS, dissenting.
This case is a minor episode in an important chapter of modern history. It concerns the impact of economic and technological changes on workers and the manner in which government will deal with it. The courts do not determine that policy; it is a legislative matter. But the judicial attitude has much to do with the manner in which legislative ambiguities will be resolved.
There are some who think that technological change will produce both our highest industrial and business activity and our greatest unemployment. Dr. Robert M. Hutchins recently stated the basic conflict between individual freedom and technology:
'Individual freedom is associated with doubt, hesitancy, perplexity, trial and error. These technology cannot countenance. Liberty under law presupposes the supremacy of politics. It presupposes the possibility, for example, that political deliberation might lead to the decision to postpone the introduction of a new machine. Technology, on the other hand, asserts that what we can do is worth doing; the things most worth doing are those we can do most efficiently * * *.' Two Faces of Federalism (1961), p. 22.
The measure of the conflict is seen only in a broad frame of reference. As Dr. Hutchins said:
'Technology holds out the hope that men can actually achieve at last goals toward which they have been struggling since the dawn of history: freedom from want, disease, and drudgery, and the consequent opportunity to lead human lives. But a rich, healthy, workless world peopled by bio-mechanical links is an inhuman world. The prospects of humanity turn upon its ability to find the law that will direct technology to human uses.' Two Faces of Federalism (1961), p. 24.
The Secretary of Labor, Arthur J. Goldberg, recently put the problem in simple terms:
'The issue being joined in our economy today-one that is present in some form in every major industrial negotiation-is simply stated: how can the necessity for continued increases in productivity, based upon labor-saving techniques, be met without causing individual hardship and widespread unemployment?'
This case is a phase of that problem.
This is not the first instance of a controversy settled in Congress by adoption of ambiguous language and then transferred to the courts, each side claiming a victory in the legislative halls.
The Senate passed a bill which required the Interstate Commerce Commission in approving a railroad merger to make 'a fair and equitable arrangement to protect the interest of the employees affected.' The House Committee adopted the same language. When the bill reached the floor of the House, Mr. Harrington suggested the following proviso:
'Provided, however, That no such transaction shall be approved by the Commission if such transaction will result in unemployment or displacement of employees of the carrier or carriers, or in the impairment of existing employment rights of said employees.'
That amendment would have prohibited permanently the displacement of employees as a result of mergers. It was adopted by the House. But in Conference that proviso was eliminated along with the merger provisions that gave rise to it. The House recommitted the bill with instructions that the provisions relating to combinations and consolidations of carriers be included in the bill, and be amended to provide that the Commission must include in its orders authorizing mergers 'terms and conditions providing that such transaction will not result in employees of said * * * carriers being in a worse position with respect to their employment.'
The Congerence accepted this version, limiting the protective clause to four years. The Conference Report emphasizes that the change made in the Harrington proposal was in limiting its operation to four years. Mr. Lea, Chairman of the House Conferees, stated the same in the House:
'The substitute that we bring in here provides two additional things. First, there is a limitation on the operation of the Harrington amendment for 4 years from the effective date of the order of the Commission approving the consolidation. In other words, the employees have the protection against unemployment for 4 years, but the Commission is not required to give them benefits for any longer period. If the employees themselves make an agreement with the railroad company for a better or a longer period, that is a matter between the railroad men and the railroads, but this 4-year limitation is established by the pending conference agreement.
'There is another limitation on the protective benefits afforded by the amendment. The benefit period shall not be required for a longer period than the prior employment of the employee before the consolidation occurred. In other words, under the original Harrington amendment, if a man was employed for 6 months, he would indefinitely be subject to the benefits of the amendment from the railroad company. We have changed that so the railroad company will not be required to maintain him in no worse condition as to his employment for any longer period than he worked before the consolidation occurred.
'We believe that is a very fair and a very liberal provision for labor. We believe that railway labor substantially agrees in that viewpoint. We take nothing from labor by this agreement.' (Italics added.) Mr. Wolverton, another House Conferee, stated:
'It was recognized that the real intent of the sponsors was to save railroad employees from being suddenly thrust out of employment as the result of any consolidation or merger entered into.' (Italics added.)
These are the statements which, the Court says, 'are entitled to the greatest weight' in interpreting the proviso. I do not think that these statements-nor any part of this legislative history-'clearly reveal an understanding that compensation, not 'job freeze,' was contemplated.' Instead I find this legislative history-as the Court elsewhere seems to recognize-to be, at best, ambiguous. Compensatory relief will result in the employees' bearing the initial shock of the railroads' reduction in plant. The Commission and the railroads contend for a philosophy of firing first and picking up the social pieces later. The Court seizes on ambiguous materials to impute to Congress approval of that philosophy. I would resolve the ambiguity in favor of the employees. I would read the proviso as meaning that nothing less than four-year employment protection to every employee would satisfy the Act, though not necessarily a four-year protection in his old job. In a realistic sense a man without a job is 'in a worse position with respect to' his 'employment,' though he receives some compensation for doing nothing. Many men, at least, are not drones; and their continued activity is life itself. The toll which economic and technological changes will make on employees is so great that they, rather than the capital which they have created, should be the beneficiaries of any doubts that overhang these legislative controversies when they are shifted to the courts.

## Notes

* ↑ 'In California, the Bank of America installed electronic computers in its mortgage-and-loan operation, and 100 employees are now doing the work of 300. In Cleveland, an electronically controlled concrete plant can in one hour produce 200 cubic yards of concrete in any of 1,500 mixing formulas, without a single worker performing manual labor at any point in the process.
* ↑ Goldberg, Challenge of 'Industrial Revolution II,' N.Y. Times Magazine, Apr. 2, 1961, p. 11. And see A. H. Raskin's recent series in the New York Times. N.Y. Times, Thursday, Apr. 6, 1961, p. 1, cols. 2-3; N.Y. Times, Friday, Apr. 7, 1961, p. 1, cols. 2 3; N.Y. Times, Saturday, April 8, 1961, p. 1, cols. 2-3; N.Y. Times, Sunday, Apr. 9, 1961, p. 1, cols. 2-3.
* ↑ See Newman and Surrey, Legislation (1955), pp. 158-178.
* ↑ S.Rep. No. 433, 76th Cong., 1st Sess., p. 29.
* ↑ H.R.Rep. No. 1217, 76th Cong., 1st Sess., p. 12.
* ↑ 84 Cong.Rec., pt. 9, 76th Cong., 1st Sess., pp. 9882-9883.
* ↑ 84 Cong.Rec. 9887.
* ↑ H.R.Rep. No. 2016, 76th Cong., 3d Sess., p. 61.
* ↑ 86 Cong.Rec., pt. 6, 76th Cong., 3d Sess., p. 5886.
* ↑ 'The conference agreement on the Harrington amendment includes a provision of the instruction which provides that the order of approval shall include terms and conditions providing that the transaction shall not result in the employees being in a worse position with respect to their employment. The conference agreement, however, qualifies this provision by confining its operation to a period of 4 years from the effective date of the order approving the transaction and providing further that the protection afforded to an employee shall not be required to continue for a longer period following the effective date of the order than the period for which such employee was in the employ of an affected carrier prior to the effective date of the order.
* ↑ 86 Cong.Rec., pt. 9, p. 10178.
* ↑ Id., p. 10189.
* ↑ The third House Conferee on whose remarks the Court seems to rely is Congressman Halleck. But he merely says that the Proviso 'follows the principle of the so-called Washington agreement.' What that principle was he makes clear in his next sentence: 'This language gives to the employees greater protection and more far-reaching protection and recognizes the principle to which we all subscribe, that rights of employees should be protected, and, beyond that, writes it into law.' Id., p. 10187. The Court also relies on Congressman Lea's acquiescence in the assertions-more or less equivocal-of Congressmen Vorys and O'Connor. But, even assuming those assertions negative a guarantee of continuing employment, Congressman Lea's acquiescence hardly jibes fully with his more extended remarks on the same subject which I have quoted above.
* ↑ Lincoln in his annual message to Congress, Dec. 3, 1861, stated: 'Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration.' V Basler, The Collected Works of Abraham Lincoln (1953), p. 52.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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