Earl Warren: Mario DiBella versus United States. Mr. Terris, you may continue your argument.
Bruce J. Terris: Mr. Chief Justice, may it please the Court. Overnight, I have rethought the colloquy I had at the close of yesterday's session with the Chief Justice and Mr. Justice Frankfurter. The Chief Justice asked what the Government's position would be if the petitioner asked both for the suppression of the narcotics and for the return of the money instead of for just the suppression of the narcotics, and I answered that both would be appealable since the issues as to both would be the same and that proper judicial administration counseled against splitting the two portions of the motion. On reconsideration, it seems to me that my answer was wrong. While in this case, the issues as to the narcotics and the money probably would be identical and therefore, could be decided together. This would not be true probably in most cases, and in many cases, whether the issues were the same, within -- within in itself be a difficult question which only the Court of Appeals could finally determine. And therefore, the Government agrees as was suggested yesterday that each part of the motion under Rule 41 should be treated independently and tested to determine whether it is a part of the criminal case or as an independent proceeding, and this means returning to the Chief Justice's hypothetical case, that the part of the motion denying the return of the money would be appealable by the portion of the motion denying the suppression of narcotics would not be appealable. I would now --
Earl Warren: That is -- that is assuming, of course, that the money is not necessary to be used as evidence. That's --
Bruce J. Terris: Well, no. I'm assuming there that -- that it was, but the issue of appealability, it would still have to be returned if it were -- if it were illegally seized --
Earl Warren: Yeah.
Bruce J. Terris: -- prior to trial. So that issue could be taken to the Court of Appeals for determination prior to trial, to determine whether it was illegally seized.
Byron R. White: (Inaudible)
Bruce J. Terris: Well, cash could be legitimately seized if it's the fruits of the crime, but it -- but if it were illegally seized, then, of course, he's --
Byron R. White: (Inaudible)
Bruce J. Terris: -- entitled to return.
Byron R. White: (Inaudible)
Bruce J. Terris: That's right, narcotics. Even if he asked for the return of narcotics, we don't think it would have made any difference because obviously, he's not entitled to the return. That's --
Byron R. White: (Inaudible)
Bruce J. Terris: -- well, even if -- even if the property involved is of the kind that -- that the movement is entitled to the return if he ask only for suppression and doesn't ask for return, then we think it's not appealable. If it -- if it is of the kind which he is entitled to return if it's illegally seized, then -- then it would be appealed when he asked for return and he's not entitled to it clearly on the face of it, then it's not appealable.
Byron R. White: (Inaudible)
Bruce J. Terris: That's right. It's as -- we -- we think of the equivalent of just asking for suppression.
Felix Frankfurter: But I don't -- pardon me. You said if it's illegally seized, I thought as to -- that the Government's position that whether or not it was illegally seized could be appealed from if the Court decides it wasn't illegally seized?
Bruce J. Terris: Well, that -- that would of course would be the issue that would be appealed to the Court of Appeals to determine whether it was illegally seized.
Felix Frankfurter: Before the trial, although -- you -- you got me all confused.
Bruce J. Terris: Well, our position --
Felix Frankfurter: I thought the whole point of not bringing up the question of illegal seizure of evidence that will be offered in evidence ought not to be taken out and isolated from the general prosecution, but should be left for out -- eventual determination in case there is a -- a (Inaudible) of guilt.
Bruce J. Terris: Oh! The Government is not contending for a rule that there is never any appealability prior to trial. That we admit that there is appealability of the -- an order, either granting or denying a motion asking for the return of valuable property, for example, assume a case --
Felix Frankfurter: Is it because it's valuable that the -- that the ground for appeal is laid?
Bruce J. Terris: We think --
Felix Frankfurter: I thought that -- I thought the great issue insofar as -- as not having piecemeal review is, that if this is part of the criminal trial, that you must await the outcome of the criminal trial before you raise the question of illegality.
Bruce J. Terris: That -- that is --
Felix Frankfurter: Now, you say that if it's money and it's illegally seized, that can be appealed. If it's illegally seized, so that the Government can seize if illegally seized, of course, it has no business to offer it, so that the illegality is an issue in contest. I don't follow you at all.
Bruce J. Terris: But you -- we agree with the -- our basic proposition is that if it's part of the criminal trial, then it is not appealable. However, when you ask both for the return of valuable property and for its suppression, the suppression part is part of the criminal trial. But when you're asking for the return, it is in essence like a lawsuit between the -- between the private individual and the Government over the right to property.
Felix Frankfurter: I mean, why do you contest the -- the return as if it's -- if you should return it without having it --
Bruce J. Terris: No. I'm assuming that -- that issue is in -- is in contest; the issue of illegality.
Felix Frankfurter: But then you're partly taking out of the criminal trial before its conclusion, a part of the criminal process.
Bruce J. Terris: Well, you -- it -- it is true that the issue of illegality relates not only to the suppression, that it relates not only to the return, but to the suppression. That we think that when there -- when there's an issue between the -- the private person and the Government as to valuable property that this is in essence independent of the criminal case, even though the criminal case may have a light issue in it.
Felix Frankfurter: I mean what in the issue is, whether it belongs to him? Is that the issue?
Bruce J. Terris: That's -- that's -- it belongs to him and he's entitled to its immediate return, and to his -- his immediate possession. For example, assume that there wasn't an indictment. That all -- all there was is an arrest and a seizure of -- of large sums of money as in -- as in this case.
Felix Frankfurter: Unrelated to the prosecution or related to it? Which?
Bruce J. Terris: It's -- It's related to the prosecution.
Felix Frankfurter: Related and the --
Bruce J. Terris: And the Government -- and the Government intends to -- to introduce it when and if it brings an indictment. It doesn't bring an indictment for a considerable period of time. The private person wants --
Felix Frankfurter: That's -- that's a problem, but it may not bring it. That's applicable to all sorts of seizures, money or not money.
Bruce J. Terris: But -- but here, a man is being deprived of a -- of an extremely valuable property right and we think he shouldn't have to wait until the Government finally tries if it --
Felix Frankfurter: Do you think this will be -- but you may not have that -- that opportunity to introduce that in evidence because he may dissipate that valuable property.
Bruce J. Terris: Well, it will not be given back to him assuming that we went in the District Court that -- and the -- and the motion to return is denied, then it will be appealed to the Court of Appeals. If he decides that the evidence has been illegally seized, then it will be returned. If it -- if the --
Felix Frankfurter: Then I don't want to take your time then, but you're leaving us completely confused.
Potter Stewart: The point is as I gather that if the motion is basically a replevin action.
Felix Frankfurter: Precisely.
Potter Stewart: That appealable.
Bruce J. Terris: That's right, in the essence, an independent action between the -- the Government and the private --
Potter Stewart: (voice overlap) --
Bruce J. Terris: -- person. That's right.
Potter Stewart: That's -- that's basically to suppress the evidence which would include the -- an action to return non-returnable property. It's -- it's only defined with the -- with the criminal trial itself whether or not the indictment has just --
Bruce J. Terris: That's right.
Potter Stewart: -- been brought.
Bruce J. Terris: And if it's both he can -- and if -- and if it's both there's a -- very well be, then -- then he's entitled to appeal (voice overlap) --
Potter Stewart: -- the replevin action or reply.
Bruce J. Terris: That's right.
Felix Frankfurter: But by calling it replevin, you don't change the issue because --
Potter Stewart: Thank you.
Felix Frankfurter: -- a -- a piece of paper, my piece of paper illegally seized, is to me just as valuable or maybe just invaluable as a $500 in gold.
Bruce J. Terris: Your Honor --
Felix Frankfurter: If I want to call it replevin, if that -- if that clarifies the issue for you, it doesn't for me. A motion to return illegally seized property is a motion to seize illegally, properties, illegally seize property. Now you can call it replevin, and that clarifies, if that analyzed the issue for you, then God bless you, it doesn't for me.
Bruce J. Terris: Well --
Felix Frankfurter: I'm asking you, the Government to return property which I claim is illegally seized and I see no difference between a book of mine that you seized or a letter of mine or a carbon copy of the letter than money.
Bruce J. Terris: Well, Your Honor, as to -- without confining it to money. If it's other valuable property, we agreed that it's appealable.
Felix Frankfurter: But everything that the Government has no right to take from me, is valuable to me and it isn't for you say it is invaluable.
Bruce J. Terris: Well, first of all, Your Honor, is, narcotics is not valuable to you.
Felix Frankfurter: I'm not talking about narcotics. That is a totally different issue that it doesn't belong to anybody and you can't get it back. I'm talking about illegally seized evidence which I claim the Government had no business to take and it isn't for you to say whether it's worth five cents to me or $500.
Bruce J. Terris: Well, we --
Felix Frankfurter: Again, it may be worth nothing to you and everything to me.
Earl Warren: Mr. Terris, according to your thesis, is it necessary to use the word valuable in connection with property?
Bruce J. Terris: Well --
Earl Warren: It just isn't -- isn't the word “property” sufficient to sustain or --
Bruce J. Terris: In this -- in this case, Your Honor, it is, in the Coney case the -- the issue between what is --
Earl Warren: But what is that -- in any -- in any case, if it was disassociated from the criminal trial and it was property of the person --
Bruce J. Terris: Right.
Earl Warren: -- person that would -- we don't have to bother about the --
Bruce J. Terris: Well --
Earl Warren: -- the valuable part.
Bruce J. Terris: -- we -- we think of it -- it's -- it's something completely minor. Let's say -- let's say a copy of a document. We think even though he's asking for the return of that, that isn't important enough to make -- to make it independent of the criminal case, because we think what he's really interested in there, a court can determine whether he's really interested in the suppression.
Earl Warren: Well, take the property that is not de minimis he said, then I think maybe we can get -- all of -- now, may I ask you just one more question, please. Do make any distinction between the post-indictment and -- and pre-indictment insofar as this particular issue is concerned?
Bruce J. Terris: Well, no. But we think -- we think that the Caroll case and Cogen together --
Earl Warren: Yes.
Bruce J. Terris: -- decide that as far as post indictment motions are concerned, that orders deciding them are not appealable either by the Government or by the defendant. Now, Caroll has some suggestion may be in Di Re case that they would be separate enough and it cites the (Inaudible) case, Court of Appeals decision, but --
Earl Warren: Yes.
Bruce J. Terris: -- but except for an -- in rare instances and I'm not quite sure how they would be defined, we don't think that they could ever be appealable.
Felix Frankfurter: I might question some more, if you got some time in the next case. The Chief Justice's question considered the word “disassociated” from the prosecution. If it's disassociated, then there's no problem, if it's disassociated.
Bruce J. Terris: Well, we think --
Felix Frankfurter: The problem arises if the Government has in its possession the property. I don't care what it is. A worthless heirloom, a worthless occasion that would -- that might be inscribed inside which is an heirloom of mine in which incommensurable value, means nothing to you, and it was seized and it's claimed to be useable in the trial. If it's not claimed to be usable in the trial, there is no issue. Therefore, I get down to every kind of every species of problem and I do not see the difference you make between dollars or compared to dollars which I tried to discourage a document
Bruce J. Terris: Well, Your Honor, your heirloom will -- will be returned, of course, after the trial. The only issue is time and we think that -- that something which is de minimis as the Chief Justice has explained it --
Felix Frankfurter: Come on, forget about -- forget about de minimis. It might be to you de minimis to you, to the Government, and not to me.
Bruce J. Terris: Well, then, Your Honor, then if you -- if you could convince the District Court that you had -- that you had a real interest in not preventing the delay of the return of your property, that's all we're talking about.
Felix Frankfurter: That applies then to every species of problem.
Bruce J. Terris: That's right.
Felix Frankfurter: Document for the fee.
Bruce J. Terris: That's right Your Honor.
Felix Frankfurter: And therefore, -- therefore, you are allowing an appeal if the defendant claims that he needs the property which you seized.
Bruce J. Terris: Well, if he claims and -- and shows that he does, that I mean -- I suppose he can --
Felix Frankfurter: That is -- that is the truth of a rule that there should be -- there should not be an appeal that might be true about some -- some judgment although within a motion to dismiss. You might say, “I don't want to be hooked up now for six months. I've just drafted this interest not to stay until the trial comes on.” Would you allow him to appeal in that case?
Bruce J. Terris: No -- no we wouldn't, Your Honor, but that --
Felix Frankfurter: Oh, but then you do allow then you do with the same effect, that in every case whether the claim of illegally seized property, a claim which may be made that you should have it returned at least once before the trial. That's what your argument, notwithstanding it.
Bruce J. Terris: Well, in -- in many cases, they -- that claim can't be made. It can't be made in the case in which the difference between the Government and the movement is about contraband. It can't be --
Felix Frankfurter: I'm not talking about contraband.
Bruce J. Terris: But that's a very frequent case, though.
Felix Frankfurter: I know, that's -- that doesn't -- that raised a different problem, but you can get it returning though because this is yours.
Bruce J. Terris: There -- then there's another kind of case in which the issue whether who's property is, is going to have to wait to the -- to await their trial. That's the Coney. That's --
Felix Frankfurter: I'm not talking about that issue. I'm talking about what is crucial in these two case whether when the property is claimed to be illegally seized and the prosecution is pending whether you can take that out of the -- the criminal process and get a review in the appellate court.
Bruce J. Terris: Well, Your Honor, the discussion --
Felix Frankfurter: And now you left me all in the dark and you practically take back the whole argument that you may get --
Bruce J. Terris: Your Honor, the discussion that we're having isn't crucial to DiBella. In DiBella, we all were concerned with here is the motion for the suppression of narcotics.
Felix Frankfurter: I'm not talking about the -- we didn't stand on the problem. I'm not -- we went beyond that. We didn't refuse to take your argument to the narcotic case and that's -- that's not a difficult problem. The difficulty would rise from the situation that you entered into discussion with Chief Justice that namely, money. Then you should thought to differentiate money from other property. For my self, I see no difference.
Bruce J. Terris: Well, I -- I don't just -- I -- I did never intend to distinguish money from other property.
Felix Frankfurter: (Voice Overlap) a claim of -- a claim -- the property claimed to be illegally seized and the question is whether that is appealable before determination of the criminal prosecution. And you now say, if the defendant says, “He needs it badly,” then he can appeal.
Bruce J. Terris: And he -- he shows that and he shows reasonable ground for that -- for that.
Felix Frankfurter: Well, they can show that in every case.
Bruce J. Terris: Well, Your Honor so in many cases, we don't think he can show it. For example, the moment there will be copies of documents,
Felix Frankfurter: (Voice Overlap)
Bruce J. Terris: -- we don't think that he can show them.
Felix Frankfurter: I don't think you can tell them. Instead I'm taking this position, that of taking the position you said, probably, yesterday, probably because you turned on such distinctions.
Bruce J. Terris: No -- no, Your Honor. (Inaudible) only is -- only is relevant insofar as it establishes the -- the framework for how this issue should be considered.
Felix Frankfurter: I'm not even suggesting what position the Government should take. If the Government says, “I would disagree.” The government says that -- that you can review, you can take on -- on the criminal posit and every included step before termination. I could understand that and completely disagree with it. If you think that's issue as I understand it from my standpoint, I'm going to be against it, but I can't understand the suppression.
Bruce J. Terris: Well, You Honor, the -- of course, the Government was in a very difficult position. There isn't -- there isn't -- that there's been no decision as far as we know, that -- that goes as far as denying appeals as Your Honor suggested.
Felix Frankfurter: But the government is -- ought not to be in a difficulty of position to have coherent position.
Bruce J. Terris: But we think this --
Felix Frankfurter: And the difficulties are not something from which the Government ought to speak and state.
Bruce J. Terris: Well, we think we have a logical and coherent position.
Felix Frankfurter: (Inaudible)
Earl Warren: Mr. Lewis.
Jerome Lewis: Mr. Chief Justice and may it please the Court. As I listened to my line of adversary, I believe his theory would amount to fragmentary appeals. That one part, that in you're going to ask for a suppression of contrabands and you also ask for the return, let's assume that there are papers that implicate the -- the defendant in the sale of narcotics. Now, after those papers in which you ask for a return, you can then have a divisiveness and go to the Court of Appeals upon the illegal seizure of those papers. And I think the whole question here is, is either the contraband or these papers' part or a step in the criminal procedure or proceeding or is it not? That is the issue. Now, back in 1930, Judge Learned Hand of our circuit, in an appellate case said, “We hold therefore that at the beginning of the proceeding which determines the appealability of order and that since this was before indictment, we have jurisdiction of the courts. That's been the law in our circuit for 31 years. And as I point out in my appendix, seven other circuits agreed with Judge Learned Hand. There are seven cases in this Court which more or less adhere to the same philosophy, an addition to the three cases that Judge Whittaker -- Mr. Justice Whittaker mentioned yesterday, we have the Go-Bart case, the Steel case, the Lockwood's case, and, of course, the more recent vintage, the Carroll case. Now, in the Carroll case, the Court very distinctly stated, earlier cases illustrated sometimes was off discussion that under certain conditions, orders for the suppression or return of illegally seized property are appealable at once as where the motion is made prior to indictment. Now, we made our motion prior to indictment. And as to this divisiveness, the severance, this theory of fragmentary appeal, this Court in a footnote, I think, thoroughly elucidated the concept of law when it said, “We do not suggest that a motion made under Rule 41 (e) gains or loses appealability simply upon whether it has return or suppression or both. I don't think this Court in the Carroll case, has set a line of demarcation between a return or a suppression.
Felix Frankfurter: Why should there be a difference? Why should the difference turn on whether before or after indictment, if in fact, the criminal process has started?
Jerome Lewis: Well --
Felix Frankfurter: Why should that be a difference?
Jerome Lewis: Well, I -- I would say this to Your Honors, that the difference seemed to be that when there isn't a criminal proceeding pending, is in the nature of a special proceeding. Now take this case --
Felix Frankfurter: I'm assuming when I say the criminal process had started, but the criminal proceeding is (inaudible)
Jerome Lewis: You mean an indictment has been filed, Your Honor?
Felix Frankfurter: I mean a -- a proceeding before a commission in the Southern District of New York and the commissioner has held the man, but was pleading before the grand jury. And the grand jury actively is engaged in considering the case.
Jerome Lewis: Well, I --
Felix Frankfurter: And the seizure is made -- was made before the -- before the grand jury reports the indictment. Do I understand you to say that the law is that if the seizure -- if the -- if your motion for suppression on the return came the day after the indictment, is appealable, if it came the day before it isn't appealable?
Jerome Lewis: No. If the motion is made prior to the filing of the indictment, it is appealable.
Felix Frankfurter: But suppose the motion is made the day after the filing of the indictment, but after the process that I've indicated, namely, long hearing and have them to my knowledge, proceedings before the United States Commissioner the same day. And at the end, he holds the man from the grand jury and they have the man who's out on bail in the proceedings and now before the grand jury. Before the grand jury returns the indictment, you -- you move with the suppression of documents. According to your move, that's appealable.
Jerome Lewis: Yes, Your Honor.
Felix Frankfurter: You move it and you make the same motion the day after indictment is not appealable. My question is, why is that different?
Jerome Lewis: Well, the distinction -- the distinction seems to be drawn in -- in the Go-Bart case, because once a commissioner has exhausted his jurisdiction, there is nothing pending. The --
Felix Frankfurter: He is pending in my -- in my supposition, a proceeding before the grand jury on the basis of the commitment by the -- by the commissioner.
Jerome Lewis: Except, Your Honor that the indictment may never come down. And now, let me give you a practical example of what took place in our case. When I made my motion to suppress --
Felix Frankfurter: But suppose the indictment has come down by the time the motion is -- is heard, to make -- to make it turn that you make it turn on whether an indictment is done. My question is, whether the sensible, rational line of inquiries -- whether a motion just for a return of documents in connection with the criminal process that's underway to be appealable, whether the indictment has been initiated or not. I can understand -- I can well understand if it's not appealable, but after a decent period is as -- or the grand jury adjourns without returning an indictment that the -- that the prosecution is blown up. But as this time, I don't see the (inaudible)
Jerome Lewis: All I could --
Felix Frankfurter: On the theory, this is a mechanical rule, at least not for me.
Jerome Lewis: Yes, Your Honor.
Felix Frankfurter: This -- this non-appealability is a mechanical rule. It's one of the few things about which you can say there's a big historic principle in federal jurisdiction.
Jerome Lewis: May I please Your Honor, as I said that the theory of law seems to be that once a commissioner has filed them in over for the grand jury and prior to the filing of the indictment, there is nothing pending in a criminal proceeding. Now, in our particular case, Your Honor, when I made my motion to suppress, I didn't receive a criminal number. I received a miscellaneous number and I had to pay a filing fee. Now, in the event there had been an indictment, I would have received a criminal number and not pay the filing fee because it would considered as part of the criminal proceeding and therefore --
Felix Frankfurter: If you say that there is no -- it is deemed or whatever your phrase was.It is deemed that there's nothing pending? That's a false meaning. That's not -- that doesn't accord with the fact.
Jerome Lewis: But Your Honor, I cannot disagree with your reasoning, but that's what the courts have held in the past.
Felix Frankfurter: I'm assuming that this is a new question for us, an undecided question, that certainly there's no decision, whatever the talk may be and I'm old-fashioned enough to assume there's a difference between inadequately considered talk in a case because it isn't a matter before the court and a decision and that old-fashioned.
Earl Warren: Mr. Lewis may I ask you a question similar to the one I asked Mr. Terris? In this case where they -- where they searched the premises and they found both narcotics and money and took -- took both under -- under their search. Suppose you made your motion to -- for a return of -- of both the -- or suppression of the narcotics and a return of the money. The court denied both of them. Do you appeal from that?And suppose we're not with you on the -- on the question of the suppression of the evidence. We believe that was properly suppressed. But the fact is that the Government made no effort at all to show that the money was anyway connected with the -- with trial or it's total absence of proof on that -- on that subject. Would you think that -- that was appealable? That portion was appealable?
Jerome Lewis: Your Honor, I think that --
Earl Warren: Or would you insist that that be not appealable and the Government keep your money all the time you're undergoing trial?
Jerome Lewis: I said either both are appealable or none.Either is part of a criminal proceeding or it isn't. You can't have fragmentary appeals and go to the Court of Appeals and say, “We're only going to take one portion of what took place at this particular time and we're going to exclude the other.” And I think the same philosophical reasoning must be, either they're part of a criminal proceeding as a step or they are not. It is my contention that when there is no indictment pending, it is in the nature of a special proceeding and I don't care what received or whether I asked for the return and I think that's what the Court meant in the Carroll case. Now, that is my entire concept of a law as it is and I think it has been for many, many years. I haven't got much time left. We haven't had too much of a discussion from the Government on the merits, and I think, Your Honors, that in the court the Congress never contemplated that the awesome powers that the agents arrogated to themselves in this particular case would ever be used by them in the manner in which they did because a particularly -- particular significance to note that none of -- not one agent ever submitted an affidavit as to what took place prior to the arrest or at the time of the arrest to justify what they did. And I'd like -- and I respectfully submit that the judgment of the lower law of court should be reversed and I'd like to conclude with a very pertinent observation made by Judge Waterman in the dissenting opinion when he said, “To approve the office's acts here, is to take another long step away from the original concepts of oath and liberty expressed in the Fourth Amendment. Thank you very much.
Charles E. Whittaker: Gentlemen, may I ask you please.
Jerome Lewis: Yes.
Charles E. Whittaker: I understand from the record that there was a very sharp controversy between the officers and petitioner as to what happened in his apartment. The officers contending that petitioner consented to and took this search and took them to his bedroom and to this bag that contained the contraband. He denies that. Has that issue of fact ever been resolved in any place?
Jerome Lewis: It never was resolved. May I say this; there we have a very unusual situation. I can understand the use of hearsay evidence in order to indicate probable cause. But we haven't got an affidavit from any of the arresting agents in this case. All we have is an affidavit of an -- the United States Attorney who says, based upon information and belief. Now, after an arrest that which takes place is evidentiary in nature. The Assistant United States Attorney, if we had a formal hearing, couldn't take the stand and testify as to what he was told and that is the entire falsity of the Government's argument here. We haven't got an affidavit from any of the agents. And so, the only thing that was before the court was the affidavit of the petitioner that he didn't give his consent. Now, the Assistant United States Attorney, I think it's a -- a very unkind of procedure for an Assistant United States Attorney to submit his affidavit as to what he was told by an agent after an arrest took place and immediately filed thereto without an affidavit from an agent.
Charles E. Whittaker: Even if you're right that this order was appealable, would not that factual controversy still have to be determined?
Jerome Lewis: No, Your Honor, because I say that issue of fact never has arisen because the Government did not submit any affidavit by any of the agents as to what transpired. And even -- even assuming arguendo that there might be, of course, and they have consent. When it comes to the question of consent, then the Government has the burden of proof to show clearly and unequivocally that a man waived his constitutional right. And I said that looking at the record here, it is apparent that this man did not unequivocally waive his constitutional rights. And I say the Government submitted no evidence in support of it. You can't submit an affidavit of an Assistant United States Attorney as to what he was told about evidentiary facts. You can under the (Inaudible) case, do it to establish probable cause but you can't do it to establish that arrest was legal and the circumstances surrounding the arrest. And I say there was no factual issue presented to the trial court with determination. Are there any other questions? I know it sounded too light.
Earl Warren: No, I think not, Mr. Lewis.
Jerome Lewis: Thank you Your Honor.
Earl Warren: Thank you.


Earl Warren: Number 48, System Federation Number 91, Railway Employees' Department, AFL-CIO, et al., Petitioner, versus O.V. Wright et al. Mr. Lyman.
Richard R. Lyman: Mr. Chief Justice, if the Court please. I represent the petitioners in this case who are a group of railroad labor organizations, commonly referred to as shop craft unions as well as some of their subsidiary component local unions who were enjoined along with the respondent Louisville & Nashville Railroad Company some 15 years ago from discriminating against a group of non-union plaintiffs with respect to affording those plaintiffs' full and equal enjoyment of all of the rights given to them and other employees in their respective crafts, under collective bargaining agreements that were negotiated between this petitioner organizations in the railroad company. We are now here seeking for reversal of decisions of the courts below which refuse to modify that old injunction to the extent of permitting us to ask the railroad to execute a union shop, union security agreement with this petitioner labor organizations as bargaining representatives. The type of agreement we sought to negotiate of course is the type that was authorized by the 1951 amendments to Railway Labor Act which came along some six years after this old injunction was issued and which subject to enumerated safeguards, did authorize union security agreements in the railroad industry which had previous had been an open shop industry. And this Court is very familiar with that in view of the decision in the Hanson case which was the first time that those 1951 amendments had been held to be constitutional. We petition for modification of this injunction in accordance with Rule 60 (b) subparagraph 5 under Federal Rules of Civil Procedure, which authorizes modification of an injunction in its prospective application when circumstances have so changed as to make it inequitable for the injunction to be continued in an effect -- in effect in its original form. What we --
Hugo L. Black: Is that rule printed in your brief?
Richard R. Lyman: It appears at page 14 of our brief Your Honor, our original brief.
Hugo L. Black: Thank you.
Richard R. Lyman: What we asked the Courts to do was not to vacate the injunction, not to open the door to any unlawful discrimination against these original plaintiffs and members of their class, but simply to give us a pro tanto modification. So that the injunction which at time of its issuance had declared and protected plaintiffs' rights under the Railway Labor Act as it existed at that time would now be modified so that it would protect the rights of these plaintiffs and their class under the Railway Labor Act in its present form. And we sought and obtained a review by this Court on three questions that we urged that were involved, three points in which we stated that the courts below aired in the decision that they reached. First of all, the Courts concluded, both the District Court and the per curiam opinion of the Court of Appeals which was primarily a paraphrasing of the decision and reasoning of the District Court, the Courts concluded first that the amendment of the Railway Labor Act is so as to permit union shop agreements, which had previously been unlawful, was not a sufficient change in circumstances as to justify removing this injunctive prohibition against our negotiating such agreements. Then they also ruled that in view of the fact that the original decree of an injunction had been a consent decree rather than a decree written by the Court following a complete trial and litigation of the old suit. Therefore, we must be deemed to have agreed with this original plaintiff's and their class that never at anytime in the future would we ever negotiate a union shop agreement. So the courts below both fell into the error that this Court come in to (Inaudible) Swift case of treating the consent decree as a contract rather than as a judicial act. And third, both courts --
Charles E. Whittaker: (Inaudible) decree, there's a contract did you say?
Richard R. Lyman: Yes Your Honor, and of course in the Swift case, this Court discussed that concept in considerable length. And third, both of the courts below give such comments in their opinions to evidence submitted over the objections of the moving parties, the petitioners here that -- that we must consider that they give weight to it and -- and give it effect in refusing to modify injunction. That evidence was to the effect that as a result of an economic strike on the Louisville & Nashville Railroad in 1955, they remain a great deal of bitterness and hostility among the employees of the railroad and the evidence showed that these petitioner organizations had find and expelled members who worked during the strike. The L & M claim that 2500 of these employees stayed at work during the strike. And now, they came in this proceeding to modify the old injunction to permit us and negotiate a union shop and urged that because there was this antipathy among the employee groups, which had nothing whatsoever to do with the original injunction against discrimination in the enjoinment of contract rights, had nothing whatever to do with this union shop agreement but was simply bitterness in strike out of -- between strikers and strike breakers that this should be construed as holding us without clean hands and hence not entitled to negotiate the union shop agreement.
John M. Harlan II: Is the District Court opinion printed in the record on page --
Richard R. Lyman: Yes Your Honor that -- Judge Sherburne's opinion appears at page 69 of the record. It's -- it goes from page 69 to page 80.
John M. Harlan II: Oh, yes.
Richard R. Lyman: Now, I think it's important to have in mind the nature of the discrimination that was charged in the original complaint, it illustrates that I have nothing to do with this so-called bitterness or hostility. What these plaintiffs originally complaining about was the fact that the non-union employees they alleged had been -- had been denied equal opportunities for promotions from one category of employment to another, had been denied their fair share of overtime assignments, and had been denied certain attributes of their seniority status, all claim to be governed by the contracts between the company and the organization in certain matters such as picking man to be temporarily upgraded from helper to a temporary mechanics job or in assigning men to be called for overtime in particular jobs. There is discretion that's exercised by a local foreman and a local union committee in deciding who they think to be the best man to be upgraded. And that was the gist of this original action. There was no question of a union shop agreement back in 1945. But this Court just prior of entry of this consent decree, had decided the landmark Steele and Tunstall cases which contained a complete and new to all of us exposition of the statutory fiduciary duty of bargaining agents and the carriers under the Railway Labor Act not to join in discriminating against members of the class representative. Now up until the Steele and Tunstall cases were decided of course the -- as this Court knows from having reversed both the Supreme Court of Alabama and the Court of Appeals for the Fourth Circuit, there was a quite a body of authority relied upon by many course to the affect that you couldn't maintain a lawsuit based on discrimination which was joined in by the company and the union. But, when these cases were decided, there was no longer any point in litigating this lawsuit on the original complaint for the purpose of trying to create any precedent. The precedent was there for us, this Courts opinion in the Steele and Tunstall cases practically wrote the form of our consent decree force. But then when we came along after the Railroad Labor Act was amended as to permit a union shop agreement, the railroad suddenly said, "Do as, well, we won't sign that agreement with you because somebody is going to hold us some contempt of this old decree that says we can't discriminate based on non-membership in the union." So, that's was this case is about and that's what precipitated this motion to modify the injunction. Now, probably one of the most basic concepts on modification of injunctions is it in -- in injunction does not create a right but simply furnishes the protection, a remedy for the protection of a right which must find its source some place else. In this case, the source of the right asserted in the original complaint was the Railway Labor Act. It was the statutory fiduciary duty defined by this Court in the Steele and Tunstall cases. Now, our position to support of the modification and the injunction is quite simple, these rights stems from the statute. The statute has now been amended so as to change the nature of the right. And if we don't have the injunction modified to conform to this change, we're confronted with the situation of these petitioners continuing under threat of this injunction, under panic contempt proceedings for violating it, continuing to be prohibited from negotiating agreements which Congress has said in these words, "They shall be permitted to negotiate." And the original plaintiffs and the people that have been intervened in these more recent proceedings would be continued to be protected, would continue to have this injunctive remedy for the protection of a right which is no longer in existence. And of course aside from the inequity of being prohibited from engaging in con -- conduct which is lawful and which Congress said it is desirable now for national public policy in the railroad industry to prevent free riders to require employees to bear their fair share or the cost of burden -- the cost in the burden of collective bargaining. In addition to -- to just the inequity of being prohibited from doing something that you have a legal right to do, there is of course the additional very substantial financial consideration that's involved in which these petitioners are seeking the right to enjoy. We have by railroads argument in this brief, I believe this claim that 2500 employees work during the strike and that everybody that work doing the strike was expelled from the union or was not a member of the union to begin with. But we took a very small figure for the amount of dues income that would be lost by these organizations as a result of being kept under this injunction. I suspect a very conservative estimate what the dues lost would be if you would assume 1% of an employer's monthly earnings for -- for his monthly dues. I suppose you have between $100,000 to $200,000 to this lawsuit dues to these group of petitioners so, this is not a situation where the petitioners are not suffering any particular inequity or in any particular wrong or not hurting from the continuously injunction.
Charles E. Whittaker: Mr. Lyman, may ask you please? Are the types of employees dealt with the Steele and Tunstall eligible for membership now in (Inaudible)
Richard R. Lyman: I don't know what Your Honor means, but -- but types ---
Charles E. Whittaker: Steele -- Steele and Tunstall (Voice Overlap) --
Richard R. Lyman: That was a racial discrimination case.
Charles E. Whittaker: I beg your pardon?
Richard R. Lyman: That was a racial discrimination case.
Charles E. Whittaker: Steele and Tuns -- Steele and Tunstall dealt with --
Richard R. Lyman: Yes.
Charles E. Whittaker: -- with racial --
Richard R. Lyman: And assuming in that they were a members of different crafts, they were operating crafts and the shop crafts.
Charles E. Whittaker: They couldn't be members of the union but nevertheless what members of the bargaining union.
Richard R. Lyman: Well they -- they are -- sorry, the answer to your question Your Honor is yes.
Charles E. Whittaker: They can be.
Richard R. Lyman: They can be. And we would very much like to be able to require them to join and to make their contributions to the overall cost to collective bargaining. Now, there is one point that and one only that runs through all of the briefs of the respondents, both the respondent, Railroad Company and the individual employee response. That is this idea of an agreement, an agreement to the agreement. They don't speak of the decree. They speak of the decree and the agreement. And they give the impression they try to give the impression in their briefs as they seem to have succeeded in doing with the District Court that this was not an ordinary kind of a consent decree of injunction but it was something a little unusual. The say that we agreed in some kind of a tripartite agreement between the plaintiffs, the company and the unions that there would be never be a union security agreement negotiated on this property. The fact is there is no such agreement and we challenge counsel in the District Court and the Court of Appeals and we've done it here to point to any place in the record where there is such agreement. We have further demonstrated that by reference to their own briefs, that when press, what they say is that the decree was the agreement. And they say that by the act of settling the case by a consent decree therefore, we must by some magical method be assumed to have entered into some implied agreement. We would not ever negotiate the union shop agreement.
Charles E. Whittaker: Did the District Court take the position that he did not have the power?
Richard R. Lyman: No, the District Court said he had power to modify the injunction but then he cons -- construed this consent decree as I've said as being a contract, an agreement, strictly contradiction to what this Court has so plainly and clearly stated in the Swift case.
Hugo L. Black: You mean as being an agreement that you would never seek a modification on the decree?
Richard R. Lyman: Yes -- yes Your Honor.
Hugo L. Black: Where is it -- why did he say this?
Richard R. Lyman: Not that we would never seek a modification. He said that we must be held to have agreed that we would never attempt to negotiate a union shop.
Hugo L. Black: Well that would be the same thing, isn't it?
Richard R. Lyman: And we didn't agree to that. What we did, we agreed to an injunction to the entry of a consent decree of an injunction enjoining us from this broad range of discrimination. There is no side agreement. There is no covenant undesirable.
Hugo L. Black: The language of the injunction permanent or did the court retain jurisdiction?
Richard R. Lyman: The Court retain jurisdiction expressly in the injunction.
Hugo L. Black: Well, what purpose? What page is that?
Richard R. Lyman: Page 36 of the record Your Honor. Page 38, the bottom of the page, the Court says, "The Court retains control of this act to the purpose of entering such further orders has may be became necessary or proper." And of course as we have pointed out, under Rule 60 of the Federal Rules, the Court expressly possesses that far with or without reservation, it's also part of the general principles of equity to jurisprudence even before the Rule was spelled out and that clearly, the Court does posses its power.
Hugo L. Black: Unless suppose that you had -- I don't -- I don't know, but I suppose if you had made a contract based on the valuable consideration which was valid that you would never seek a modification, it might be that the rule was not popular.
Richard R. Lyman: Well, Mr. Justice Black if -- if such a contract rather than the Railway Labor Act were the basis for the Court's order of injunction, the Court would have no jurisdiction under the Norris-LaGuardia Act. He -- he couldn't base his -- his decree on a contract. He had to be enforcing the obligation of the statute because under this Court's decision in the Graham case, this was made very clear that this discrimination case didn't wipe out Norris-LaGuardia and that unless the plaintiff were speaking to enforce some positive mandate of the Railway Labor Act in one of these injunction suits. The Norris-LaGuardia Act would prevent the issuance for an injunction.
Hugo L. Black: Was there any effort made -- or was any evidence open to show that there was a contract?
Richard R. Lyman: No, Your Honor.
Hugo L. Black: Despite of the fact that it's simply been sent decree here?
Richard R. Lyman: That is all the evidence through this. The parties entered into a release or by the plaintiffs released their claims for back damages upon the payment by defendants of $5000 and second, the defendants agreed to the entry of a consent decree which decree appears at page 36 and that is all or there is. There is no other agreement. There's been no effort made. The point to any other agreement --
Hugo L. Black: (Voice Overlap) --
Richard R. Lyman: -- except to say that this must be construed as cascading one. When they argued for it, they don't say here's the agreement at page such and such of the record. They simply argue in this very well. This decree of injunction didn't come from the air. It had to come from some place so therefore there must have been an agreement and yet, they and the Court of Appeals below said that the decree wasn't -- the decree became the agreement. So, what they're doing, they're electing the -- to the decree as the source for some implied agreement.
Hugo L. Black: What is the exact language where the Court said that?
Richard R. Lyman: At page 152 on the --
Hugo L. Black: 152 --
Richard R. Lyman: -- sentence of sentence of the -- the next to the last paragraph.
Charles E. Whittaker: (Voice Overlap) --
Richard R. Lyman: The Court says, "When the injunction was issued? The parties herein by their consent thereto provided that no such requirement of union membership should there have to be in effect in any bargaining agreement." They're looking to the consent decree as to the description and definition and source of this theoretical outside -- side separate covenant or agreement. And the fact of course is that the procedure that was followed in settling this lawsuit by the answer that consent decree was precisely the same as you will find in any case where there's a consent decree of an injunction. And if we hold that under those circumstances, the consent natures the decree bars us on some agreement theory then it would be equally -- it would equally bar modification of an injunction in any case where the injunction was by consent.
Hugo L. Black: In perpetuity -- in perpetuity? How long? Did the Court say?
Richard R. Lyman: The Court of Appeals as they have a counsel for response and as I recollect, he said he did claim it was in perpetuity.
Charles E. Whittaker: Where is that record -- the record with reference to the $4000 -- $5000 payment that you referred too? I notice the -- decree does not resided?
Richard R. Lyman: No, it was the separate release but I don't recall whether that release was ever entered into the record in this case. It's referred --
Charles E. Whittaker: (Voice Overlap) --
Richard R. Lyman: -- to in the brief for respondents so that other than L & N, however and I have no -- no particular quarrel with their statement of facts as to the nature and scope of -- of what the settlement consisted of it. It starts at page 5 and goes around page 6 of the brief of counsel for respondents other than the L & N.
Hugo L. Black: Well, did the Court, which decided the case have agree before it?
Richard R. Lyman: There was no agreement but they could have referral.
Hugo L. Black: But, I'm talking about the one that's now in the brief. And the Court decided on the basis of that agreement, this is now put into briefs.
Richard R. Lyman: What is in the brief is not an agreement Mr. Justice Black.
Hugo L. Black: Oh, whatever it is.
Richard R. Lyman: It is -- it is a release.
Hugo L. Black: Well, is the -- was the release (Voice Overlap) --
Richard R. Lyman: The Court -- the Court did have that before --
Hugo L. Black: -- or it did have so it's -- it's really part of the record (Voice Overlap) --
Richard R. Lyman: Not and -- I don't believe he did in 1945. He did in our 1958 motion of my advisory (Voice Overlap) --
Hugo L. Black: So it is to be considered as a part of the record then you say.
Richard R. Lyman: If it's reproduced here, I -- I don't find it in here so I -- I guess we can't consider it part of the record except that I have no quarrel with the statement of counsel that that is what took place.
Charles E. Whittaker: Now, what is what took place? That's why I'm not sure off.
Richard R. Lyman: It's recited at page 5 and 6 on the brief for counsel other than the respondent now and then. The parties agreed to one, the entering of the consent decree going on to describe what the decree would be.
Earl Warren: What page is that?
Richard R. Lyman: Page 5 of the brief -- the green brief for respondents --
Earl Warren: Oh green brief?
Richard R. Lyman: -- other than -- other than Louisville & Nashville Railroad Company. The parties agreed to one, the entering of the consent decree two, the waiver and release by the plaintiffs, the law claims against the defendants for damages and three, the payment of the sum of $5000 by the defendants to the plaintiffs. That is your settlement of the lawsuit and then the Court entered the decree -- the consent decree which the parties had written up, that -- that is the agreement. So that there -- there is no agreement separate in the parts from the decree. We just get together and said, "We'll settle this lawsuit by getting with -- agreeing and stipulating if the Court may sign this decree, let me paying you some money and you get him your release." That -- that is the agreement -- and that is the only agreement that there is and it's -- it's about the most minimal kind of a -- an agreement you could ever have in any consent decree of injunction. So that if the Court post that such a settlement of a case bars subsequent modification when the facts clearly demand the modification, the equities demanded, then I don't see how we can ever modify any consent --
John M. Harlan II: What is your -- I suppose what the technical issue is, is to whether this is an abusive discretion when the Court begun.
Richard R. Lyman: We have --
John M. Harlan II: -- that it isn't a (Voice Overlap)--
Richard R. Lyman: We have mentioned that on our brief Your Honor. There is no right of the Court to exercise discretion in the ordinary sense, one of the questions before purely a matter of law. We file this motion solely on the basis of the change in the statute. There's no issue of burden of proof there or anything. We say that the statute was change -- was completely eliminated, pro tanto, the right that the injunction previously protected and the Court has no discretion to misapply the law, if it were request of weighing evidence or having at some appraisal as to what the effect of this modification might be for factual point of views and to review the discretion. Thank you Your Honors.
Earl Warren: Mr. Eldred.
Marshall P. Eldred: Mr. Chief Justice may it please the Court. At the outset, let me call the Court's attention to the fact that the release which counsel mentioned as being not sure whether it was in the record is in the record. It begins at page 138 and continues through -- through page 144. As you were allude to that release in a few moments from now, if I may proceed with what I deemed to be -- should be said first to this Court and an orderly presentation of the reasons the respondents have for affirmance of the decisions below. In the first place, I think we should determine what requirements for modification of an injunction are, necessarily saw in order to determine whether the facts in this case bring us within permissive modification. Well, of course the leading case on that subject is the case decided by this Court, the Swift case, and this Court has clearly said in the Swift decision that the requirement for modification is that there must be a clear showing of grievous wrong that must be shown by the movement evoked by new and unforeseen conditions. Secondly, we wished to point out that the courts have held at modification must effectuate and not what the purpose of the original decree. In the next place, we desire to call the Court's attention to the fact that, as already mentioned, that modification under Rule 60 (b) is addressed to the sound legal discretion of the Court and is not to be disturbed except for an abuse of that discretion. It is our position that in this case, the petitioners have failed to show any abuse of the discretion of the District Court. In order to point that out, I think we should briefly analyze what the District Court held when he denied the motion to modify the injunction in this case. The District Court recognized his continuing authority to modify the injunctions not withstanding the consent nature of the decree. He recognized that authority -- his authority continuing to modify under the formulae setup by this Court in the Swift case. The District Court concluded that the 1951 amendment, which is the sole reliance of petitioners in this case for modification for 1951 amendment to the Railway Labor Act which is Section 211 of that Act was permissive only and the District Court concluded that on the basis of this Court's decision in the Hanson case. Secondly, the District Court concluded that the Railway Labor Act leaves the railroad and the unions at liberty to agree that a union shop shall not prevail. He concluded that there was such an agreement in this case namely that a union shop should not prevail and that that agreement underlie the decree issued originally in this case.
John M. Harlan II: Where -- where is that agreement now? What was the -- oh, I'm meant you say an agreement?
Marshall P. Eldred: Yes.
John M. Harlan II: You're talking about something underlying the decree that --
Marshall P. Eldred: That is the agreement, that's the parties reach -- the understanding that the parties reached when this case will settle.
John M. Harlan II: Before the decree.
Marshall P. Eldred: Yes sir.
John M. Harlan II: Now, where is the -- what -- what is there to show that underlying agreement?
Marshall P. Eldred: That is shown in the release which the 28th named plaintiffs executed on December the 1st, 1945.
John M. Harlan II: Where -- what could you --
Marshall P. Eldred: That appears on page 138 of the record.
John M. Harlan II: What could provision of that release?
Marshall P. Eldred: This provision if Your Honor please, the premises refer to the filing of the suit. Then it refers to the fact that it is the mutual desire of all the parties to the action to settle and dispose of all the issues in dispute.
Felix Frankfurter: Where you reading at?
Marshall P. Eldred: In the -- of page 138 of the record.
Felix Frankfurter: Yes.
Marshall P. Eldred: They agreed to settle and dispose of all the issues and dispute in the following manner, one, the entering of a consent decree and the forth said actions, the purpose of which will be to protect the undersigned against any future acts of practices of or by the defendants which will deny to the undersigned any of their rights and benefits under the collective bargaining agreements now in effect are which may hereafter be entered into, in accordance with the Railway Labor Act find between the L&N and System Federation 91 a copy of which consent decree is a test here too.
Hugo L. Black: May I ask you that?
Marshall P. Eldred: Yes, sir.
Hugo L. Black: You said which was denied of the undersigning of their rights and benefits, at that time, they had a right not to be asked by reason of a union shop agreement, doesn't it?
Marshall P. Eldred: Yes, sir.
Hugo L. Black: And the 1951 Act changed it, doesn't it?
Marshall P. Eldred: The 1951 Act merely made it permissive.
Hugo L. Black: Yes, but it made it permissive for them to negotiate further.
Marshall P. Eldred: Yes, yes, sir.
Hugo L. Black: As I gather, you're real disputed whether this denies to them the right to negotiate which was granted absence agreement under the Act of 1951.
Marshall P. Eldred: We say that since the amendment is permissive only that an agreement now not to have a union shop is legal under the amendment.
Hugo L. Black: It's legal but --
Marshall P. Eldred: It was legal
Hugo L. Black: -- it would not be illegal if they have one, would it?
Marshall P. Eldred: If they have an agreement not to have a union shop?
Hugo L. Black: If it would not be illegal if they would have an agreement now to have that kind of a union shop?
Marshall P. Eldred: Oh no, no it would not be illegal.
Hugo L. Black: So it wouldn't deprived anybody of any right --
Marshall P. Eldred: Well, then --
Hugo L. Black: -- the employee of any right unless they have it under a contract.
Marshall P. Eldred: Exactly. Precisely.
Felix Frankfurter: And at the -- at the time of the contract, could an agreement had been entered into for -- for a union shop on the label?
Marshall P. Eldred: No sir.
Felix Frankfurter: Well then that which stay -- that's what you rely on as having been a consensual arrangement.
Marshall P. Eldred: And contractor.
Felix Frankfurter: But in that, I can set you a contractual arrangement, wasn't really a contractual arrangement because they weren't free to have the opposite arrangement.
Marshall P. Eldred: It was in this sense of the word. The unions did not -- did not have to go to the extent of agreeing that there would be no union shop because the law for better union shop, the Railway Labor Act did that at that time. All that was necessary for the unions to have done in this consent decree since evidently, they did not want to take the issues to the Court in the trial, was simply to do what is done in -- for example Fair Labor Standard Act cases. Simply consent that they will not violate the law, consent that they will no longer discriminate against the non-union employees.
William J. Brennan, Jr.: But, that you go further here Mr. Eldred, in effect, aren't you saying what this agreement says, this agreement, the -- without preferring the release, you can't, by law, have a union shop agreement, if ever the day comes when you may negotiate for one, we now say we'll not exercise our right to negotiate (Voice Overlap) --
Marshall P. Eldred: Precisely.
William J. Brennan, Jr.: That's what you're saying?
Marshall P. Eldred: Exactly.
William J. Brennan, Jr.: And you read all of that into this?
Marshall P. Eldred: Yes, because the unions went farther than they were -- were required to go. They had a choice in this matter. They had -- they could've said, "We will no longer discriminate against non-union employees in connection with seeing that they get their employment benefits." But they went farther than that and they said that now are in the future. Now, if you will look at the injunction --
Earl Warren: Well, before you get to that, I wonder if they did go that far in this -- this paragraph that you have just written -- or just read. They said that the entering of a consent decree in the force of action the purpose of which will be protect the undersigned against any future acts or practices, however, by the defendants which will deny to the undersigned any -- any of their rights benefits under the collective bargaining agreements. Now, in effect, all which may hereafter be entered into -- in accordance with the Railway Labor Act. Now, we're talking -- you're talking there are you not about consenting to an injunction which would prevent them from denying to the undersigned any of their rights?
Marshall P. Eldred: By reason of their failure to join or maintain membership in the union, at that time of course, the Railway Labor Act forbad the union shop. Now, they're saying here that in view of giving up certain rights than we have in this lawsuit and in order to settle all our issues, we agree that the non-union employees on the L&N Railroad in the six shop crest shall not be required to join or maintain membership in the union under any bargaining agreement now in effect, of course you didn't need it because the Act forbad it then are hereafter in effect in accordance with the Railway Labor Act. Now, that could only mean one thing --
Hugo L. Black: (Voice Overlap) do you think --
Marshall P. Eldred: -- no matter how much the amended here.
Hugo L. Black: Either one of the parties contemplated at that time the Act of 1951, sir?
Marshall P. Eldred: Yes.
Hugo L. Black: But that's --
Marshall P. Eldred: And I'll (Voice Overlap) --
Earl Warren: Well, why wouldn't they've -- couldn't they have said that very well and very easily if that's what they intended?
Marshall P. Eldred: I think they said it very well indeed if you will look at the language of the decree and you remember that a copy of this degree -- decree was attached to the release, a week before the decree was ever entered.
Felix Frankfurter: Would you agree Mr. Eldred (Inaudible) questions come to my head namely, would you agree that you have to show that at the time of this release, it's the time of the injunction, the import is going to have -- or the amendment of the Railway Labor Act goes to allow union shop, was an active issue in the railway -- in the railroad world or in the part of the railroad and in part of the Brotherhood. Would you --
Marshall P. Eldred: I'm not --
Felix Frankfurter: Would you agree that you have to find out that it had that kind of reality or -- or immediacy rather that to say that by just general language, they foreclose themselves against calling and unanticipated legislation.
Marshall P. Eldred: I'm not that all sure that was necessary to show in the action. What we do know as a matter of fact that it was --
Felix Frankfurter: I don't mean in the action but in the -- in the word -- in the world that which they were moved.
Marshall P. Eldred: It was well. It was because two years before this suit was filed in 1945 and in 1943, the unions had made a demand upon the L&N and other railroads for a certain wage increases and a union shop not withstanding the fact that it's Railway Labor Act at that time for better union shop. The dispute was so serious that it was referred to a presidential emergency board. The Mulholland Firm of Toledo, Ohio which is the firm representing the unions today, participated in that hearing before the emergency board. And Mr. Willard H. McEwen was before that board. He was also one of counsel for the unions when we filed this case in 1945 and took discovered deposition before this decree was agreed upon. Before the emergency board, Mr. McEwen and other counsel representing the unions advanced the contention that even then, under the Railway Labor Act as it existed, the unions were entitled to a union shop but they made the argument that it more expedient that the emergency board should recommend to the Congress that the Railway Labor Act be amended so that they could have a union shop. And that the fact the notice given to the carriers was to grab a union shop, and that was two years before this suit, and two years before this agreement was entered into by the very counsel who was representing the -- these unions before the presidential emergency board.
Felix Frankfurter: That wasn't the only -- that wasn't the only thing. The Act of 1951 wasn't an overnight measure.
Marshall P. Eldred: No, sir. It has been contemplated by the unions for heaven knows how long. And it was only after building pressure up constantly against Congress that Congress finally made up its mind, "We will permit. We will never require. We will permit to carry within the unions to enter into a union shop brief."
William O. Douglas: I thought you're arguing it was that that this -- that this conflict that there wasn't any today, 1960 under these facts that existed at the time of his conflict in this record. The Court today has been authorized to issuance kind of an injunction.
Marshall P. Eldred: I'm not sure if I understand Your Honor's question.
William O. Douglas: I -- it's been assumed that there's -- that the injunction was issued under the -- on the facts existing prior to the 1951 amendment under a law that was different form the 1951 amendment, is that right?
Marshall P. Eldred: It was issued, Mr. Justice, because --
William O. Douglas: Yes.
Marshall P. Eldred: -- there was discrimination which the Railway Labor Act forbade under this Court's --
William O. Douglas: I -- I thought that your argument was that if there was a -- the conflict, an intense conflict disturbing the railroad management for rolling of the -- of the -- by this -- by the stop, the movement of train because of a union disputed this character that today, a District Court could enter precisely this kind of a decree in spite of the 1951.
Marshall P. Eldred: It could do so. Suppose now, this Act -- the -- I mean this suit, the original litigation had arisen after 1951, which was the date of the amendments. Pick out a railroad, said the XYZ railroad where no union shop prevail. Suppose as in this case, the union in that case was not permitting non-union employees to get fair share of employment, rights and benefits. Suppose the suit had been filed asking for declaration of rights and for an injunction against that discrimination and for damages for the loss of wages that the non-union employees had suffered. Suppose the parties had gotten together and said, "We will settle all the issues in this litigation." And among other things, we're going to agree that there will be no union shop now, under the -- under the provision for the Railway Labor Act as it exist or in the future under the Railway Labor Act as it may then exist. That agreement could be executed.
John M. Harlan II: (Voice Overlap) said that this doesn't say that though, this -- this agreement, does it?
Marshall P. Eldred: Yes. I was -- I'm going to get to that a moment ago --
John M. Harlan II: Perhaps, there are extra words in there why -- [Laughter] alright.
Marshall P. Eldred: That maybe zeal of advocacy --
John M. Harlan II: Well, --
Marshall P. Eldred: -- but Mr. Justice --
John M. Harlan II: Undoubtedly, that goes with the heart of the case, wasn't it? If you will look at page 37 of the record, this is the consent decree, and mind you, this is the consent decree that was made part of the release a week before the decree was entered.
Marshall P. Eldred: First, on the middle paragraph of page 7, we have the declaration of rights that the non-union employees be entitled irrespective and without regard to whether said employees or any of them were members or join or retain membership in any of the defendant labor organizations or in any labor organization.
Earl Warren: What page is this?
Marshall P. Eldred: 37 Mr. Chief Justice.
Earl Warren: 37.
Speaker: That “They would be entitled to these employment benefits as provided for in such agreements now in effect or that may hereafter be in effect in accordance with the Railway Labor Act. And then even more strongly, it seems to me, in the injunctive phase which begins in the next paragraph. At the union defendants and the union railroad, be enjoined from requiring that the plaintiffs and the classes represented by them, and this action join or retained membership in any of said dependent labor organizations as a condition to receiving these benefits. And any other rights or benefits which may arise out of or be in accordance with, regularly adopted bargaining agreements in effect between the defendant railroad and the defendant unions or that may hereafter be in effect between the defendant railroad and the defendant unions in accordance with the Railway Labor Act.
Hugo L. Black: May I ask you a question there (Voice Overlap) --
Marshall P. Eldred: Yes, Mr. Justice Black.
Hugo L. Black: -- by Justice Harlan. You referred first to that and you said in such agreement now in effect or that may hereafter be in effect.
Marshall P. Eldred: Yes, sir.
Hugo L. Black: To be deprived if any rights. But short after is to bar -- is to bar them by keeping this injunction from entering into a new agreement as a -- as a part of the Act.
Marshall P. Eldred: That's right.
Hugo L. Black: Well, how do you get benefits then from this statement that the reference referred such agreements now in effect or that may hereafter be in effect?
Marshall P. Eldred: Bargaining agreements.
Hugo L. Black: But does it say anything about they're not entering into one hereafter in accordance with the Act?
Marshall P. Eldred: Yes, because they are not -- they will -- the unions and the railroad are not to require union membership as a tradition preceding to employment benefits under a bargaining agreement which was then in effect are which may hereafter be in effect in accordance with the Railway Labor Act. Even though, and it's implied in there until notice bailed out, even though the Railway Labor Act be subsequently amended to permit a union shop.
Felix Frankfurter: Are you saying the Railway -- the Act of 1951 doesn't create an agreement that -- so that the agreement must come from the parties, the parties must make an agreement. In 1945 -- when was it? In 1945 --
Marshall P. Eldred: 1945.
Felix Frankfurter: -- they were disabled from a having a union shop. In 1951, they are able to have a union.
Marshall P. Eldred: They're able to have it.
Felix Frankfurter: And you're saying is, they can now enter into an agreement which they could enter as this injunction were limited to -- lifted from your point of view.
Marshall P. Eldred: Right.
Felix Frankfurter: If this injunction were lifted, that would authorize them to enter into an agreement which you say would have a clause in it which is prohibited by the decree.
Marshall P. Eldred: Correct. Now, there must be a grievous wrong which results -- now, simply, a change in the law which permits a union shop agreement is not sufficient, because the unions have not shown under your Swift formula that this decree results in a grievous wrong to them, nor have they shown that that grievous wrong was evoked by new and unforeseen circumstances. I think I've already pointed out to the Court that the -- it was not a new and unforeseen circumstance, the amendment to the Railway Labor Act because the unions knew two years before and were trying their best to get a union shop on a railroad and had sought to have a recommendation come from a presidential emergency board that Congress amend the Act and forbid a union shop agreement.
John M. Harlan II: Did the -- did the District Court in its memorandum interpret the settlement as you're interpreting it? Is there a language in the District Court's opinion that --
Marshall P. Eldred: Yes.
John M. Harlan II: -- says that's the effect to it. Where -- where is that?
Marshall P. Eldred: On page 77 of the record. The Court concluded that the Railway Labor Act leaves the railroad and the unions at liberty to agree that a union shop shall not prevail, and then immediately after that that there was such an agreement which underlay the decree of December the 7th, 1945. And the Court further, on page 78 of the record, concluded that, "Under the Railway Labor Act as it then existed forbidding a union shop, it was not necessary for the unions to agree to that but that they went farther than they were required to do in order to agree that no union shop would prevail." Then the Court -- District Court goes on to find that the change of law alone is not sufficient, because it does not result in any grievous wrong to the unions, resulting for new and unforeseen circumstances. The unions have not met the burden of proof which this Court, in the Ford case, said, "is upon the movement in an effort to modify an injunction." Now, the only thing the -- the union has shown is simply on a member of the Railway Labor Act which permits the parties but doesn't require it." The unions in effect, argue that the amendment to the Railway Labor Act compels a union shop agreement.
Hugo L. Black: Were there any hearings on that amendment?
Marshall P. Eldred: Any hearings?
Hugo L. Black: Any hearing when they passed that amendment to the Act.
Marshall P. Eldred: Oh, yes. Extensive hearings in the --
Hugo L. Black: Did the railroads appear did the unions appear?
Marshall P. Eldred: I know the -- I -- I'm sure the unions appeared and I -- I'm not sure about the railroads.
Hugo L. Black: You know whether any -- anything came up about the reason for passing it, was -- was this particular matter referred to them?
Marshall P. Eldred: No. Of course, this was -- well, of course it was after. This particular -- you mean this particular case?
Hugo L. Black: No, I'm not talking about the case, I'm talking about the L&N strike and the trouble they had about it.
Marshall P. Eldred: Well, the strike occurred in 1955, Mr. Justice, after the amendment occurred in 1951, that occurred later.
Hugo L. Black: So, when -- when was the contract entered in to?
Marshall P. Eldred: 1945.
Hugo L. Black: 1945.
Marshall P. Eldred: 1945, the amendment was in 1951, the strike occurred in 1955.
Hugo L. Black: And when was it -- when was it they had the controversy where the -- you said to the board that -- that the railroads in 1951 --
Marshall P. Eldred: 1943.
Hugo L. Black: -- that is amended? When?
Marshall P. Eldred: 1943.
Hugo L. Black: 1943.
Marshall P. Eldred: Presidential Emergency Board was in 1943. This suit was filed in 1945. In the summer of 1945, it was settled in December 1945. The amendment was pushed through Congress in January of 1951. Strike occurred in 1955. In 1957, the unions filed their motion to modify. That brings us down today.
Felix Frankfurter: Mr. Eldred, I think you said a few minutes ago that you thought that you attribute it to the admission as the argument that the 1951 Act is a compulsory act, were they?
Marshall P. Eldred: Well --
Felix Frankfurter: I didn't follow you there.
Marshall P. Eldred: Well, we can't come to any of the conclusions.
Felix Frankfurter: (Inaudible) I think they would argue tat because --
Marshall P. Eldred: We can't come to any of the conclusion because that is the only reason at best by them --
Felix Frankfurter: No, they were --
Marshall P. Eldred: -- to show that the decree is a grievous wrong.
Felix Frankfurter: Well, it may simply say that a decree in 1945 in the context of law which prohibits an arrangement which is now permissible. Thereafter, by law, is allowed to be submitted or to lift that injunction against entering into a voluntary arrangement to avail themselves of the right under the 1951 Act.
Marshall P. Eldred: Well, you say voluntary arrangements. The parties who benefits, this agreement was made, gave up substantial rights. There were 28 plaintiffs for example who alleged damages in the sum of $5000 each, for a total of $145,000 which they gave up for a forfeit settlement of $5000 --
Felix Frankfurter: (Voice Overlap)
Marshall P. Eldred: -- as part of this overall settlement.
Felix Frankfurter: Under the 1951 -- of the 1951 Act certainly didn't speak inquiry, Steele and Tunstall, did it?
Marshall P. Eldred: No, sir. It did not.
Felix Frankfurter: And therefore, they could not make an arrangement, disadvantages nor -- and whatever the difference were, which did not give fair protection to your (Inaudible).
Marshall P. Eldred: They could know -- they couldn't continue to discriminate, that's true. They could not discriminate.
Felix Frankfurter: It couldn't harbor -- it couldn't harbor and switch them into union responsibilities under the 1951 Act.
Marshall P. Eldred: Well, they have union responsibility whether they have a union shop or not.
Felix Frankfurter: Well, but a -- but they -- it would be a union shop that if with all the consequences, I believe it was.
Marshall P. Eldred: Yes, yes.
Felix Frankfurter: That's what I'm --
William J. Brennan, Jr.: But only if they have the employers agree --
Felix Frankfurter: Yes.
William J. Brennan, Jr.: -- to such an arrangement.
Marshall P. Eldred: That's of course the position we take it, we have this right.
William J. Brennan, Jr.: And as I get it, what they -- what they insisted that this ought to be reluctant at least to the extent of submitting them to negotiate with the railroads --
Marshall P. Eldred: Correct.
William J. Brennan, Jr.: -- to such an arrangement.
Marshall P. Eldred: That is right.
William J. Brennan, Jr.: Whether they succeeded getting it to something else.
Marshall P. Eldred: Right. But we can --
William J. Brennan, Jr.: The fact the matter, they'll get it.
Marshall P. Eldred: Of course. No railroad today can withstand the economic sanctions of the strike. Railroads are having difficult time enough as it is. It certainly could not withstand that. The point that I want to make is that this agreement and I do emphasize because there was an understanding. And the consent decree which had been worked up referring to bargaining agreements in effect now or which maybe in effect under the Railway Labor Act hereafter. That agreement was lawful then it's lawful today. Now, the only reason that the unions advanced to modify the injunction is that they're now permitted to do it but they can't by their own agreement. We do not say that the injunction in this case can never be modified. We say that the question whether it can ever be modified is not before the Court on this record.
Felix Frankfurter: Would you mind just in the interest of making the thing more concrete at least to one member of the Court, indicate what the practical reasons of resistance by the -- by your clients with having a union shop agreement. Is -- is that a fair question to you?
Marshall P. Eldred: Yes. Yes, sir. In the first place, my clients, when this suit was originally filed and when we settled the issues, gave up rights to prove substantial damages. All of the members of the class represented by the named plaintiffs could have under procedure, appropriate procedure, have intervened and proven damages to a large extent. It became generally known among the classes represented by the 28 named plaintiffs in the original action that this agreement had been reached, that no union shop would be required --
Felix Frankfurter: Alright.
Marshall P. Eldred: -- then or in the future. Five years statute of limitations applies to a contract not in hiding. So they have -- they lost all those. Now, this is an agreement fairly reached and until the railroad -- I mean, until the unions prove that it's an instrument of oppression to them and they haven't shown that in this case. They -- they refer to the pro rata arguments.
Felix Frankfurter: Well, I don't mean to suggest that I --
Marshall P. Eldred: They referred to laws or revenue which had no equitable reason.
Felix Frankfurter: I don't mean to suggest because I believe the contrary that fixing an agreement isn't in and out of itself and enforcing consideration (Inaudible). But I wonder what other things except that they made a bargain and which they now insist. What consequences disadvantageous to them would follow an anticipated union strike?
Marshall P. Eldred: In addition to what I have said, they are opposed --
Felix Frankfurter: Yes.
Marshall P. Eldred: -- to compulsory unionism.
Felix Frankfurter: Well, why?
Marshall P. Eldred: Because they feel that it's against their principles. They believe that a union should carry its own weight that if it properly represents the employees, its own persuasion will lead to union membership, that they should not -- the -- the employees should not be compelled against their will, particularly when they took pains to agree with these unions 15 years ago, that they would not be compelled against them.
Felix Frankfurter: Well, isn't it more than enough that I don't expect, so called abstract principles but doesn't this -- doesn't this -- that it is translated into some practicality which beyond the opposition to -- to unions as such, I know a lot of people had that.
Marshall P. Eldred: Well, they -- they could --
Felix Frankfurter: Haven't they got some special reasons or rather, I mean particular reasons? Or maybe I'm asking questions I shouldn't ask.
Marshall P. Eldred: No. That's -- that's alright Your Honor. It's -- it's a matter of principle with them. It's a matter that they do not want to be members of the union. They do not want to have to pay tribute to a union --
Felix Frankfurter: That means --
Marshall P. Eldred: -- and have that money used for purposes to which they are opposed.
Felix Frankfurter: That means they have to pay union dues and in return, they wouldn't get what they regard as -- as advantages for substantive matters.
Marshall P. Eldred: Well, that maybe part of it or -- but it's not the whole picture.
Felix Frankfurter: No, I mean --
Richard R. Lyman: Mr. Chief Justice, I wanted to state that particularly with respect to this agreement argument. I want to call the Court's attention to the fact that Mr. Eldred, when called upon to read the agreement, turned to page 36 to 37 of the record and what he read was the course decree which -- which simply serves to emphasize a -- a statement that what Mr. Eldred and the Court -- and the District Court and the Court of Appeals in the language which he read to you held that that decree was an underlying agreement. That would -- the decree itself that they said was the agreement. And of course, we argue here and it is our position that it was error where the Court too so hold and it was directly contrary to the Swift case. And one -- one further point I would like to finish was --
Charles E. Whittaker: I thought he was reading record on 138.
Richard R. Lyman: -- he turned -- he read the -- from the release for a while and then we he got down to the declaration of rights, he was reading from page 37 of the record, the decree. He says that when -- when Your -- Your Honors pressed him for more language as to what the obligations and what the prohibitions were, where was the agreement that said, what they were prohibited from doing, what he read was the decree and that of course is what we're here seeking to modify.
Felix Frankfurter: May I ask you this question and -- these 28 plaintiffs, the original plaintiffs for the class which they represent, do they -- was there any -- any differentiation between them and the other members of your -- the members of your unions except for these people have principles regarding union empathy?
Richard R. Lyman: Well, I think that 28 people were just a -- a group that claimed they could show some wage loss or (Inaudible) missed out on some overtime assignments or promotions and --
William J. Brennan, Jr.: Were there -- were there any racial problems about this?
Richard R. Lyman: No, this is not --
William J. Brennan, Jr.: Were they colored or white?
Richard R. Lyman: This is not a racial case.
William J. Brennan, Jr.: I mean what the -- what were these plaintiffs? Colored or white?
Richard R. Lyman: I think there are probably some of both. I would guess that a majority would be white. I think Mr. Eldred could --
Marshall P. Eldred: There were both.
Richard R. Lyman: -- correct me on that. I think there were some both.
Felix Frankfurter: Those 28, about some of total of those who were (Voice Overlap) --
Richard R. Lyman: That's all that there were in the original action and I might say that -- I propose Your Honor's question to Mr. Eldred down the consideration concept and settlement of this thing for $5000. The -- the Swift case would seem to say that the fact that 28 people might have entered into such a contract if there were any contract, wouldn't justify preventing a union shop agreement to be negotiated for anybody else except for those 28 people.
Felix Frankfurter: What they did -- the settlement or the claim which was settled in there and something for them, was a claim of discrimination, wasn't it? Is it claimed that the union didn't -- this bargaining agency didn't do well about it, is that right?
Richard R. Lyman: Well, we learn as we go along. The claim was really a -- a claim of agreement violations. This case was decided before this Court decided the cases Local against Steele and W. which created the concept of exclusive jurisdiction in the National Railroad Adjustment Board and I think where we going back to retry this lawsuit, we might well have had quite a hassle as to whether these men wouldn't have had to file their claims for deprival of overtime under the overtime rule with the National Railroad Adjustment Board.
Felix Frankfurter: All I'm suggesting --
Richard R. Lyman: But they -- they argued that they had gotten deprive over fair share because they were not members of the union.
Felix Frankfurter: They have a grievance, didn't they?
Richard R. Lyman: Yes, it was a grievance based under the language of the collective bargaining agreement.
Felix Frankfurter: And -- and that is under the agreement itself they --
Richard R. Lyman: Yes.
Felix Frankfurter: -- their claim was recognized --
Richard R. Lyman: The agreement --
Felix Frankfurter: -- and if maybe --
Richard R. Lyman: -- is called for equal distribution of overtime.
Felix Frankfurter: -- (Inaudible), maybe that's -- maybe they -- they had from experience. I'm trying to find out what the human beings are instead of these abstract so-called principles. I should find it there.
Hugo L. Black: One -- I've just had one other question, is the injunction against you are entering into open sub-agreement under the new Act with reference to everybody, the employees now or is it limited to these 28?
Richard R. Lyman: It's not limited to the 28.
Hugo L. Black: A general blanket.
Richard R. Lyman: It's a blanket injunction against the railroad and the --
Hugo L. Black: Injunction that you have upon the obligation under --
Richard R. Lyman: Yes.
Hugo L. Black: -- whether the person (Voice Overlap) --
Richard R. Lyman: And of course in the Swift case, the Court clearly pointed out that so far as the interveners were concerned, people other than the original parties to that case, they couldn't take advantage of the thing if it were contractual (Inaudible) because they weren't parties that running contractual undertake.
Felix Frankfurter: Was there a -- was the -- was the (Inaudible) hearing before to Judge Sherburne joined in -- in entering the decree which is not on the record?
Richard R. Lyman: I wasn't there Your Honor. There was --
Felix Frankfurter: Which is not in the record?
Richard R. Lyman: But I don't believe there was --
Felix Frankfurter: (Voice Overlap) --
Richard R. Lyman: -- any hearing -- you're talking about the 1945 decree.
Felix Frankfurter: That's what I'm talking about.
Richard R. Lyman: The decree was drawn up by the parties in conferences between the parties to the lawsuit and exchanged drafts and proposals as to what the decree are to recite and then it was --
Felix Frankfurter: And before (Voice Overlap) --
Richard R. Lyman: -- stipulated that it would be submitted to the judge for a signature.
Felix Frankfurter: Before it was submit -- when it was submitted to him?
Richard R. Lyman: It was explained to him I'm sure.
Felix Frankfurter: And before it was done, were there any arguments (Inaudible)?
Richard R. Lyman: I don't believe there was argument --
Felix Frankfurter: From the lieu that I know of Judge (Inaudible) satisfied himself as (Inaudible).
Richard R. Lyman: I'm sure you wanted to know what the case all about.
Hugo L. Black: What percent of the total employees are members now?
Richard R. Lyman: Well, that's a subject to disputed propaganda claims. The -- at the hearings on this motion to modify, it was argued that -- or suggested that maybe the -- might be about a 50% proposition of that whole in view of this alleged bitterness.
Hugo L. Black: 50% what?
Richard R. Lyman: 50% members and 50% non-members in the classes. There has been no attempt to precipitate a representation dispute before the National Mediation Board in this property.
William J. Brennan, Jr.: I suppose, over 15 years, it's been turnover in person now or union officers and the like have --
Richard R. Lyman: Yes, there has been considerable turnover in the officers. I would say more than --
William J. Brennan, Jr.: All the 28 --
Richard R. Lyman: -- happy to the general chairman --
William J. Brennan, Jr.: -- plaintiffs, are they still employed?
Richard R. Lyman: No. I think there were about 15 -- is that right Marshall? How many plaintiffs are still left?
Marshall P. Eldred: Original plaintiffs left?
Richard R. Lyman: (Inaudible) originally, yes.
Marshall P. Eldred: About eight of the 28 but we had a great many interveners.
Richard R. Lyman: There would be eight of the original plaintiffs initially imposed in which to modify and then a number of other employees came in and joined with them in imposing that.
Earl Warren: But how many employees are there all total, you said 50% -- 50% of about what?
Richard R. Lyman: It's between 4000 and 5000 in the shop crafts group.
Earl Warren: 4000 to 5000.
Hugo L. Black: Where were these employees?
Richard R. Lyman: They are all over the system of the Louisville National Railroad Company in the (Inaudible). I mean the employers in the crafts, most of the employers that Mr. Eldred represents are in the Louisville area. I think he has some putative come in and join --
Hugo L. Black: I mean these 28, where were they from?
Richard R. Lyman: They were all from around Louisville.
Speaker: They were all over the system?
Richard R. Lyman: Were they? I'm sorry.
Speaker: The plaintiffs.
Richard R. Lyman: I misunderstood you.
Speaker: They were picked all over the system.
Earl Warren: We'll recess now.