Warren E. Burger: This morning in number 71-41, International Union of Operating Engineers against Flair Builders. Mr. Baum you may proceed.
Bernard M. Baum: Mr. Chief Justice and may it please the Court. This case involves an action brought under Section 301, the Labor Management Relations Act requesting the enforcement of the demand for arbitration. The complaint as amended was dismissed by the District Court, which found that although the company in this case was bound to the collective bargaining agreement to arbitrate labor disputes within the scope of that agreement that it was unenforceable, since the Union was guilty of laches. On appeal, the decision of the District Court was affirmed, Judge Stevens dissenting. Thereafter, the Fourth Circuit rendered a decision in which it held that laches should be a question for the arbitrator and not for the Court and specifically disagree with the case at bar. Accordingly, an issue which we have presented to this Court is whether once a Court has determined that a labor dispute is arbitrable under the terms of a contract should the issue of laches or the question of delay, be determined by the arbitrator or the Court. In this regard, what occurred in this case before the District Court is most pertinent to a determination of this issue. On May 22, 1964 the Union and the employer entered into a memorandum of agreement which bound the company and the Union to a master agreement which had been negotiated between the Union and employer association. The memorandum of agreement provided that the company would be bound to the initial master agreement and also subsequent master agreements, unless they terminated at the time that the first agreement was expiring or any subsequent agreement. Now, the initial agreement, the memorandum as I said was signed in May 22, 1964. The initial master agreement expired in May 31, 1966 and thereafter, on June 1 a new agreement came into effect which it was to expire on May 31 of 1970. Now, in this regard again, I should note to the Court that there is no issue in this case. That the District Court found that there was binding agreement between the parties. And there was no issue on appeal regarding the binding nature of the agreement. The issue came as the decision of the question of laches. Now, during the course of the second agreement or approximately of November 7, 1968, we filed a complaint on the District Court requesting pursuant to Section 301 stating that the employer had disregarded the agreement that refuse to pay the wages and conditions under the agreement and further had refuse to comply with the hiring arrangements which are under the contract. We ask in that case for specific performance of the agreement.
Speaker: This involved one employee, isn't it?
Bernard M. Baum: Well, at that point there had only been one employee.
Speaker: One position?
Bernard M. Baum: At that point, involved an operating engineer.
Speaker: One position.
Bernard M. Baum: Right! Of course our contention Your Honor is that there were several other employees that would have been in the bargaining agreement during the course of this agreement had the employer complied. And I think that's one of the very fundamental issues in the arbitration. Now, what happened here was that the District Court said, I think that the threshold issue should be determined by the arbitrator under the terms of this contract and I shouldn't decide it. So, we went ahead, and this was in April of 1968 where the master agreement still had 13 months to run, and pursuant to the Court directive made a demand on the company for arbitration of the contract issue and in addition made a demand for the other issues -- the arbitration of the other issues which has been set forth in the complaint. The Court, the counsel for the company then filed a motion to dismiss, alleging laches is a defense. The District Court then held that laches was an issue for the arbitrator and not for the Court under this Courts decision in Wiley. Thereafter, the Court ordered a hearing on the merits of the case limited to the issue of whether or not there was contract, the threshold question. As a matter of fact during the course of the hearing, the District Court again stated its position of the issue of laches was for the arbitrator and not for the Court and further stated that it found that a binding collective bargaining agreement was an existence. However, at the conclusion of the hearing, the Court rendered a memorandum of opinion. In which it now found, yes, there was a binding contract but that the Union was guilty of laches in terms of it is bringing the action and accordingly it was unenforceable. Now at the hearing, we in fact never had a specific hearing on the question of laches because of the Courts position but that was not an issue for it to determine, and in fact when the employer raised the issue at the hearing, the Court attempted to limit our cross examination of the employer in the case who was obviously the company's chief witness to five minutes because he had already engaged in the long colloquy with counsel for the company. Pointing out that the only thing he was interested in was determining the binding nature of the contract. So that I do not feel that other than the question of the contract itself, there were any other significant facts. There was some evidence that there from the Union's point of view that there had been contacts. The employer denied any contacts during the term of the contract and the Court in changing its position from the position which had held during the hearing from the position that it held in its memorandum, not permitting counsels motion to dismiss on the Wiley case that he was crediting the company's testimony regarding laches even though frankly we have had no hearing on laches. Now, I think in terms of the argument in this case there are three essential considerations which the Court must make. Our position is first that the defensive laches clearly falls within the rational of this Court's decision in Wiley is particularly illustrated by what happened before the District Court. The District Court initially said the threshold issue of the contract existence was for the arbitrator. We then follow the Courts admonition and demanded arbitration. And in fact, as the Court indicates in its subsequent memo on the motion to dismiss. We pointed out to the Court that this Court had pointed, had stated that the threshold issue was in fact for the Court and not the arbitrator. And subsequently did determine that threshold issue as a binding contract. The Court then said laches wasn't for the Court but for the arbitrator and then change its position. Now, what happened? Laches is an equitable defense obviously with common law. It has two elements. Normally, it has a question of delay and also a question of prejudice. There was no testimony taken on the issue of prejudice and there was very little testimony other than the question of delay here. Now, frankly had the Court said to us, I am going to determine the issue of laches in this case. What we would have done is to have presented our case on the merits because here we had an employer with a continuing violation of the contract that it disregarded it since the first employee had become a member of the Union. We had a situation where the employer had refused to pay the wages and working conditions, and it simply ignored the contract. So obviously we would have had to present our entire case in the merits. We would have subpoenaed the company's books and records to determine what employees were involved because obviously this would relate to a defense in this kind of the case. In other words it would have been -- this hearing in fact took less than two hours. Had we -- had the Court said we are going to have a hearing on the issue of laches it would have taken two or three days.
Speaker: Mr. Baum, as I read your petition, the only question you present is the issue of whether the question of laches is one for the Court, or one for the arbitrator, are you going beyond that?
Bernard M. Baum: No, sir. No, Your Honor, I am not going beyond that at all. I am making the point that what happens in the Wiley decision. This Court says, except for four reasons why they felt that issues delay should go to the arbitrator and not to the Court. They said, first of all it's very difficult to separate an issue of delay from the issue of merits. I am pointing out that frankly had we had to go into the issue of delay, which here was called laches, it could have been called waiver, you could have called procedural delay. We would have been required to go into a long and lengthy hearing on the merits, and the Court points out in Wiley where there is an agreement to arbitrate the issues. The federal courts should not get into this issue, they have enough of the case load as it is. The parties have agreed to utilize this forum and obviously this should be a decision of the arbitrator because of the inability to separate the issue of laches from the merits of the case, and I think that is the reason I am making the point.
Speaker: Would you say Mr. Baum that concept of laches might be different in the context of a labor contract in labor dispute than in the law of equity generally?
Bernard M. Baum: I think that's true, and I think it would -- the law obviously in the question of common law of the law of equity. The quest -- the defense of laches always relates to the facts of the particular case. Now, in this case not only do you have to worry about the facts of the particular case but you have a bargaining relationship to be concerned with, you have a continuing problem of violation, of a bargaining relationship because as I pointed out to the Court before when a demand for arbitration was made, we still had 13 months to run on the contract. So that there -- that even if there might be some question of delay which might affect the ultimate decision of the arbitrator. There is certainly could be no question of delay as it related to the final 13 months of the collective bargaining agreement. Now, I think the second consideration in this case would be the effect on the federal courts if we were to get into a situation where courts are going to start determining questions of delay. Every time a party to a collective bargaining agreement wanted to disrupt that relationship the simplest thing they could do, would be to start raising these defenses. Obviously, the purpose of arbitration at least in labor management, I would assume in commercial manners, is that there is a forum which can expedite the hearing and that the parties have this kind of relationship. It's a manner which they choose. And if we get -- if we start raising defenses whether it be waiver or estoppel, or we call it procedural delay, or we call it laches, still delay anyway. We are going to start delaying the process of arbitration. And any party that wants to delay the process of arbitration can do it simply by raising these types of defenses. And I think this Court in its decision starting with textile workers going through the Steelworkers trilogy, going through the recent decision in Boys Market and going through all of these cases is the theory that where the parties have agreed and they are going to arbitrate the case, we don't want that kind of issue on the Federal Court, it should be determined by an arbitrator. And that is exactly what we are talking about in this particular case. Now, the third element, I think that the Court must seriously look at is the question of the quid pro quo. I noted in reading this Court's decision in the Boys Market case, that one of the points which the Court made why is it the reason that they thought that in injunction should issue and Sinclair should be overruled was the fact that the employer would have to have an effective system of making arbitration work and the damages were not always the answer and that pointed out that with where there is an agreement to arbitrate and then you permit a strike, you are derogating the need for the employer to enter into the agreement which provides for arbitration because you are saying that the arbitration procedure is meaningless. Now, let's turn that around and let's put the foot on the other shoe from the Union's point of view. The union basically has the right to strike. That is its economic weapon that is the weapon that utilizes. Now, when you take that weapon and you say to the union give that weapon up during the term of the contract, we want industrial peace. But we will substitute for that the process of arbitration. And then you make that process, one that is ineffective, just in the case of Boys Market on the employer side where you turn it around to the Union side it makes it ineffective. Obviously, I think the quid pro quo for no strike is arbitration. It is not litigation in the Federal Court. Now, in addition, if I might return the Court for a moment to the issues raised the considerations in Wiley. This Court pointed out in Wiley that in addition to the problem of separating the marriage from the procedural issue. We had a question of delay. This case is over three years old. It is not yet come before the arbitrator. This Court raise the question in Wiley of the cost as I point out in the brief and I think this case so appropriately supports this Court's rational in Wiley. Counsel for the company, advised this Court after he had to grant the certiorari buy the company didn't have money to prepare a brief in this case. And we pointed out that could have happened just as well to the Union and the company because here the company says, they don't have enough money to take this case to the Highest Court. We do not raise the defensive laches either but the cost factor can work either way. And as the Court pointed out in Wiley, this is correct. This is exactly what happened in this case. Now, in addition the Court in Wiley also talked about the question of duplication of effort, had the District Court followed through with this original decision that laches was for the arbitrator and not for the Court then counsel for the company could have easily raised the issue of delay before the arbitrator, irrespective of what we call it, whether we call it laches, whether we call it estoppel, whether we call it waiver. Obviously, I think that the --that this particular case falls clearly within the four corners of this Courts decision in Wiley. Arbitration frankly is a process which if it does not work or does not operate, really serves no purpose, now, getting back for a moment to the question of the no strike provision in this contract. It is interesting to note that under the terms of this particular contract the Union had a right to strike if the employer did not pay the wages and did not pay fringe benefits. We could have proceeded under arbitration or we could have struck. Yet, we chose not to strike the employer in this particular case and we chose to go the root of arbitration and not create any kind of an industrial tie up so that I think the facts of this particular contract. The facts of these particular case show that not only did we have a broad arbitration clause but as to some of the issues raised in arbitration, we could have used the right to strike, we have an option but rather we chose arbitration because we did not want to in any way affect the relationship. So that creates even in an additional policy reason why in this particular case, delay is an issue for the arbitrator and not for the Court.
Speaker: Mr. Baum, I understand that the first breach is alleged to have occurred in 1966 that has granted the Union to wait three years before commencing the arbitration proceedings.
Bernard M. Baum: I think that the fact -- what little facts there are of Mr. Justice Powell on this case, was a fact that we waited until we had concrete situation on which to move of our position is that for the years 1964 through 1966, the work was subcontracted to a subcontractor which obviously would be an issue, in the arbitration. That in 1967 there was a tremendous turn over with people. However, in 1968, we found the operator, he joined the union, and I think as the record reflects, we filed an action before the national labor relations board within successfully concluded and as well as the wage and hour against the employer. And we look for concrete situation, this was a continuing violation and we were waiting until we had a tightly concrete situation. Now, I might also add this that irrespective of the question of even what happened between 1966 and 68 which frankly I think is a question of fact on the merits. We don't have all the merits and all the facts before us. There can be no question that from the time that we file the notice of arbitration that being from 1968 until the conclusion of the contract, there could be no issue with delay. It might be frankly that an arbitrator might take the position that because we waited for those years, there might not be any remedial thing that he could do in terms of back pay. But obviously that would have to come out in terms of all the facts in this case. And we don't have all the facts in this case before us, and that really creates the problem. I might ask the Chief Justice if I could reserve five minutes for rebuttal.
Warren E. Burger: You may Mr. Baum. Mr. Murphy.
J. Robert Murphy: Mr. Chief Justice, and may it please to the Court? I think that as we have suggested in our brief on this appeal, the inclination of the petitioner, the Union has been actually to define the issue of this case in a broader sense than they purport to be defining it. It is true that we would differ with them substantially on their interpretation of the activities and proceeding in the Court below. We find no place in the actual proceedings in the trial court where the Union was in any way prejudiced or surprised by what happened. But in their brief they constantly reiterate that the trial court found that the parties were bound by an agreement to arbitrator. The trial court never so found an examination of each of one of the orders entered by the trial court, whether on the initial motion to dismiss against the original complaint which by the way was not seeking arbitration and was filed by the Union for in a completely different purpose but on that motion order on that motion to dismiss the amended complaint, and on the final order of the trial court there has not been a finding of fact that could be considered final and binding that the parties were ever bound. It would be accurate to say that the trial court indicated that there was an agreement signed, yes. But whether or not it was binding at the time of the action was the threshold question which had to be determined by the trial court and which was determined by the trial court on the facts as it heard it adversely to the Union. Now, on a narrower approach to this case, we would think that this would be adequate and fully supported by the decisions of this Court in Wiley against Livingston, in the Lincoln Mills case, the Steelworkers trilogy, and the entire series of cases which have set up the distinction between those matters which an arbitrator there will be considered to have jurisdiction to decide and those matters involving the threshold question which the trial court under Section 301 will have the right to decide. But the Union in this case is not restricting itself to this narrow issue. It seems to us that they are going further and basically asking, under the case of limiting their argument to the question of who gets to decide whether laches is a defense but they are going further and suggesting that this Court or that this Court should recommend to trial courts and the incidence of nine -- of 301 cases that they should have nothing but a cursory inquiry into whether or not there is or is not a binding contract.
Warren E. Burger: I think it, you agree counsel that it's the general policy of the courts to encourage arbitration in this area, would you not?
J. Robert Murphy: I would agree with that Your Honor, yes. But in so, agreeing I would have to point that in all of the cases from the Lincoln Mills through the Steelworkers and so on, there has never been any question but what the trial court in 301 cases must as a matter of judicial responsibility find that there is a binding agreement before it can order arbitration. Now, in a footnote to the Steelworkers case Mr. Justice Douglas' opinions specifically pointed out that if it were alleged that there was a contract which in effect said that the arbitrator should decide his own jurisdiction that he would require that the parties so alleging have the burden of saying that. So that there is never really been more that what you could call a presumption of arbitrability resulting from the Steelworkers lines of cases and we can accept that presumption. But in so accepting it, Your Honor, we do not mean to suggest that the Court does not have its own preliminary and primary obligation.
Speaker: Now, let's -- assuming that the parties were bound by collective bargaining contract and that it did have an arbitration clause in it and that's the way the case comes to us and it seems to me the arbitration clause here was in all disputes clause, wasn't it?
J. Robert Murphy: I would have to admit that that is what it appears to be, Your Honor.
Speaker: So we're not dealing with an arbitration clause that limits the arbitrator to the interpretation in the application of the --
J. Robert Murphy: No, we are not Your Honor.
Speaker: And what you're saying is that in this specific case, the parties, the employer didn't have to arbitrate because of laches. It wasn't that assuming there was about collective bargaining contract it wasn't that something had happened to terminate the contract, or the general application of the arbitration clause?
J. Robert Murphy: No, Your Honor. It does not involve the interpretation of the arbitration clause because we are departing for --
Speaker: Or its on-going binding character. It's just in this particular dispute?
J. Robert Murphy: It's exactly the ongoing binding character that we have challenged and that in this particular case --
Speaker: Well, that isn't an issue in this Court. Is it whether the contract as a whole and the arbitration clause is finding on the employer? That's not the issue here, isn't it?
J. Robert Murphy: We see that as the issue Your Honor and we have seen that as the issue from the first time that we file the pleading in this case.
Speaker: Well, you are perhaps entitled to support the judgment on any ground that's available to you but that would require some factual determinations here in this Court.
J. Robert Murphy: Not in this Court, Your Honor, we don't feel. It would yes, require factual determinations in the trial court. But we can see very little difference between this situation and a situation that might be presented if the parties had torn up the contract.
Speaker: Well, let's just for the moment, narrow this matter down. Let's assume for the moment that there is no dispute, whatsoever, that both parties had signed and we're bound by the contract. And that the arbitration clause in the contract was in all disputes clause. Now, let's start from that premise for a little while.
J. Robert Murphy: Yes, Your Honor.
Speaker: Now, how about laches? When in a specific case, the claim is that the arbitration clause is inoperative because the Union has been guilty of laches and it's in all disputes for us. Now, here is the dispute between the parties as to whether not the arbitration clause covers this dispute. Now, that's the narrow issue in the case at least just one of them.
J. Robert Murphy: If that were the issue of this case, Your Honor? I would concede that the question of laches in that instance was a matter for the arbitrator and I don't think that you would find any different indication in the opinions below.
Warren E. Burger: But what relief?
J. Robert Murphy: But that is not the situation in this case. Excuse me, Your Honor.
Warren E. Burger: What relief did the plaintiff ask for in going into the trial court?
J. Robert Murphy: When he went into the trial court he was asking for many thousand dollars damage and for a direction, I believe that the employer be required to comply with the contract in which particular manner he did not specify and it was only in the amended complaint when he finally suggested that arbitration was the remedy that he was after.
Warren E. Burger: Well, taking the amended complaint which is certainly we must take now on, I am sure you [Voice Overlap].
J. Robert Murphy: Yes, we will Your Honor.
Warren E. Burger: Wasn't that a suit in equity for specific performance of an arbitration clause?
J. Robert Murphy: Yes, it was Your Honor.
Warren E. Burger: But you suggest that in that specific of that to effort to get specific enforcement the claim of waiver or laches is not part of the total controversies?
J. Robert Murphy: Oh! I suggest that it is a part of the total controversy but it's the part of the total controversy that must be decided by the Court.
Warren E. Burger: Then what is the purpose of the arbitration clause and all disputes clause if the Court is to reach in and decide some and leave others to the arbitration?
J. Robert Murphy: The question of laches in this particular case Your Honor goes to the binding force of the contract, and I cannot concede in any way that there was at the time of this case reach the courts in any way, a binding contract because under the circumstances there was no longer a binding contract. It is only by misinterpretation of the facts that counsel for the Union can possibly say that there was a binding contract or that the Court below found one.
Speaker: Mr. Murphy.
J. Robert Murphy: Yes, Your Honor.
William H. Rehnquist: On page 149 of the Appendix turned as Judge Decker's opinion at the top of the page. He says, accordingly I have determined the defendant was bound by the memorandum agreement to arbitrate labor disputes within the limits of the arbitration clause. In order to sustain this contention that you've just been making, you have to urge the over turning of the District Courts finding on that point, don't you?
J. Robert Murphy: I would have to say that that clause in Judge Decker's opinion was a part, a finding of fact if you will Your Honor, yes. But it was not his ultimate holding. He was not seeing that I hold that somebody who has once been bound is no longer bound except that he came to the conclusion that just wasn't a binding contract anymore. He may have used the words and he did use the words, that Your Honor has quoted that is correct. May I, Your Honor just make one additional reflection concerning what we are saying here, and, that is that while it would possibly have been permissible to take the contrary approach in the Trial Court and to say that since there once was a contract that was signed, we are going to leave everything that ever happened after that to the arbitrator. It seems equally clear to me that in view of the decision of this Court in Boys Markets that that approach is no longer permissible, and I say this for what I feel are important policy reasons. In the Boys Markets case it was being the relief which was being sought was basically an injunction against to strike. The impression that this Court gives in the Boys Market opinion is that where an anti-strike injunction is being sought, the function of the trial court under Section 301 is to take an active part in the investigation of this threshold question as to whether there is or is not a binding contract and a binding arbitration plus a part of it, and it would seem to us that if that is the approach to be taken under the Boys Markets decision, it is impossible to rationalize a lighter, a more cursive approach in a case where it is not being as where an injunction is not being sought but where only relief that is being sought is in the type of arbitration that is being sought by the plaintiff's amended complaint here. We can see no reason why there should be any distinction in the importance that the trial court is to give to that preliminary investigation of the threshold question. So, it would be our feeling that as a result of the Boys Markets decision this Court must avoid enunciating a double standard which might possibly work in equity between the parties. If there is to be one standard when an injunction is sought, and the contrary, and less stringent standard when all that is being sought is arbitration, it seems to us there is no way to put this together and avoid confusion in the trial courts or even to make an equitable arrangement between the parties. What if both types of relief are being sought in the same proceeding, and after all, in the injunction situation which you are directly confronted with in the Boys Markets case, we are ordered -- the trial courts are ordered to direct the employer to arbitrate at the same time. Now, in those situations, there we can make one standard of inquiry and to whether or not there is a binding contract, and then later in the same case make a different standard of inquiry?
Speaker: Well is your -- is your point, your point must be that the Court of Appeals that the decision on laches was that laches and delay had terminated the entire contract. It just doesn't that there had been too much delay in this case to force arbitration? There was no longer a binding contract of any kind.
J. Robert Murphy: That would be the effect of the decision of the Court of the Appeals?
Speaker: Is that your -- but is that your position?
J. Robert Murphy: Yes, Your Honor.
Speaker: Whereas if, you a while ago conceded that if it were only a question of laches and the applicability of the arbitration clause in this specific instance conceding with the contract in the arbitration clause continue generally?
J. Robert Murphy: Yes.
Speaker: You conceded that then laches would be a question for the arbitrator under and all disputes clause.
J. Robert Murphy: That is correct, Your Honor.
Speaker: But where laches, you say, as the Court of Appeals views it went to the validity and the existence of the entire contract.
J. Robert Murphy: Exactly, Your Honor.
Speaker: That then laches has to be for the Court.
J. Robert Murphy: Right, that is our position and by the way that was the position of the Fourth Circuit in its Tobacco Workers case on which petitioner relied. They made a specific distinction between the type of laches that would go to the matters as they set which are to be decided by the Court, and the type of laches which go to the matters to be decided by the arbitrator. So if that is the distinction of the Fourth Circuit as we pointed out in our brief. We think the Fourth Circuit would have decided this particular case exactly the way our Seventh Circuit decided it. Because there are apparently two different kinds of laches as Your Honor has pointed out, one which goes to the hardest matter. We think also that going back to the position of the Boys Markets decision, it is necessary to have a uniform standard of inquiry for the Courts to avoid the rather embarrassing and inequitable situation which could arise where there are matters that are obviously somewhat outside the scope of arbitration and to avoid these cases where the arbitrators decision or award might even end up in what the Courts would consider matters of illegality. Let us supposed that the trial court has order arbitration after a cursory inquiry as to whether or not there is binding arbitration clause and the arbitrator in turn decides that he has no jurisdiction. Now that might be only a matter of slight import in the ordinary case but if you are in the case where you are also asking for an injunction against the strike, what have you have ended up with is giving the employer and anti-strike injunction and not giving the Union, the arbitration that it wants, which could be a very damaging case for the Union and I would think that the counsel representing that Union would almost be on our side, and this interpretation of the Boys Markets decision.
Speaker: Well, if he saw the case the way you do, I am sure he would be.
J. Robert Murphy: [Laughter Attempt] Yes, Your Honor. I believe that I can sum up my position and I hope that I have made myself clear as to my understanding of the effect of the decisions below by saying that in our view point the decisions below are well within the scope of the prior labor law of this Court has fashioned since the Lincoln Mills decision. The purpose of the Court in fashioning this labor law has been constantly reiterated by saying that the aim is to promote industrial peace. They aim yes to promote industrial peace through the use of the arbitration process as a central institution in that promotion of industrial peace but never, never at the expense of saying that the arbitration process is self-operating. It won't operate. An arbitrational word would hardly be valid or worthwhile if it could not be enforced by the Court. Since the Boys Markets decision it seems to us that unless this Court is to suggest to the trial courts that they should vary the principle according to the remedy that is being sought. It is necessary to require of the trial courts in any case under Section 301 that the Court take an active position in arriving at the decision as to threshold question. It must actively investigate whether there is a binding contract. It must actively investigate whether or not that binding contract is still binding at the time of the incidence in the Court and actively investigate the scope of the arbitration clause. If there is no active investigation, there will be contradictory opinions, there will be confusion in the trial courts. We will have achieved one thing that the Boys Markets desired of the opinion and the Boys Market seemed to have desired and that was to reinforced the remaining use of state courts in Section 301 cases, and it would be that possible reinforcement from a uniform standard which we are suggesting, that would be our answer to the suggestion that perhaps were giving the Federal Courts too much to do that we're adding to their workload. We feel that if a uniform standard is to be promoted by the decision in the case before the bar today that that uniform standard will reinforce the availability of the conventional state court remedies as was said in the Boys Market, peace that should be reinforced so that those state court remedies which the Congress apparently desired to keep available will be available.
Speaker: Mr. Murphy, you certainly stated correctly that the objective of the arbitration clauses is to promote industrial peace. That's the objective though isn't it and is not the means, the function of an arbitration clause to provide a simple on the speedy solution?
J. Robert Murphy: Yes, it is aimed at this, Your Honor.
Warren E. Burger: Now, does the approach taken in this case suggest that any various speedy solution to this controversy?
J. Robert Murphy: Looking at the facts of this case, Your Honor, the speedy solution of arbitration was available to this union five years before it first suggested that speedy solution. There was not an on-going employer-union relationship which ought to be the minimum condition for the effective collective bargaining and the arbitration which is the part of it. This situation was one where there was no relationship between these parties. And if we consider that as a part of the facts which have obviously was on the proofs of both parties in the trial court, it would be impossible to say that to order arbitration in this matter when they are finally asked for it, would have contributed in anyway to industrial peace. That is the reason we have suggested in our brief that a part of speedy resolution of dispute should certainly be the availability of the judicial part of the relief. But it would hardly been up to the employer to go and suggest it when they had no union on the horizon for a period of five years after the memorandum of agreement was signed. I hope I am not going around the periphery of Your Honors' question but I am trying to say that well, everyone realizes and hopes that arbitration will continue as an effective part of the collective bargaining process that in some cases and this one is an unusual and we would have to concede in some cases arbitration will not contribute to that in the ordering of arbitration in some cases as was pointed out in Wiley against Livingston would be imposing upon the parties something which they have not agreed to.
Warren E. Burger: Thank you Mr. Murphy. Mr. Baum, do you have anything further?
Bernard M. Baum: Mr. Chief Justice, just a couple of comments that I wish to address to the Court. I think Mr. Justice Rehnquist was correct, when he noted the decision of the District Court at page 149 of the abstract, holding that there was a contract but that the question was the laches. I would also suggest to the Court that they examine page 93 of the abstract, where the Court during the hearing, specifically stated that it held that the agreement came into existence and held that there was an agreement. I would further suggest to the Court that they examine page 156 of the abstract being the Court of Appeals decision in this case in which they say their issue is the question of whether a party to a collective bargaining agreement which contains an arbitration clause may be so dilatory in making the existence of a vaguely delineated disputes known to the other party that the Court is justified in refusing to compel the submission. The point is, you can't get to the issue of laches unless you first have a contract because why would you want to reach the issue of laches unless you first have a contract. If you have no binding contract there is no issue to reach, and I think that the counsel was incorrect.
Speaker: What would you say if the claim made by an employer and resisting arbitration was that we have orally resented the contract? There is no contract, no arbitration clause anymore. Wouldn't the Court have to determine as a threshold question whether there is a contract and an arbitration clause?
Bernard M. Baum: The Court has to determine whether there exists an agreement obviously, whether the parties have entered into a written agreement. Of course, they'd probably get into like in this case. We have an entire agreement of the party's clause which says there could no oral agreements or understandings. So that here, the written agreement is the binding agreement but obviously you have to decide that question but you can't get to the issue, why get to the issue of the laches if you do not have the contract in the first place? You say you do not have a contract, there is nothing to arbitrate.
Warren E. Burger: [Voice Overlap]But wasn't that the District Judges' approach here though? You he said I can go along on this being arbitrable question, if you have got a contract. But we are talking about a manner which goes to the very present existence of the contract. So, that was --
Bernard M. Baum: Well, it says as Justice Rehnquist referred, accordingly, I have determined that the defendant was bound by the memorandum of agreement to arbitrate labor disputes who can limit for the arbitration clause. And then he says, however I am not going to enforce this provision because I believe that the Union was guilty of laches here. This becomes a very complicated situation because moreover, this was an industrial case, this is a construction union and what limited facts and the record show this is on construction sites, several sexes are major issue which would have to be determined in this case. What kind of relationship? This isn't where you have a steward everyday in a plant. This is construction, there is several, counties, there is several sites, business agents are going around, there isn't this kind of a situation that you have in industrial plant. Obviously, an arbitrator is going to determine these kinds of questions because that was one of the issues we would have to get into. If the Court in fact had held the hearing on laches here, we'd have to do it before an arbitrator. And obviously, it becomes part of the merits. Moreover, I would point out to the Court one final thing. The counsel says that the Tobacco Workers case says that there are different kinds of laches. I would suggest and I think that reading of the Tobacco Workers case directly says, we disagree with the Seventh Circuit. We think they say the Flair Builders case as far as the Fourth Circuit is concerned is wrong. They say the issue should have been for the arbitrator and not for the Court, and there is no question. They don't delineate as to different kinds of laches, that laches is delay, its waiver, its procedural delay. I submit that there is no difference, and I submit that if this Court is going to permit these kinds of issues to be decided by the Courts rather than the arbitrators, where you have in all disputes arbitration clause which are going to get into is more litigation and undermine the arbitration process. Thank you.
Warren E. Burger: Thank you, Mr. Baum. Thank you, Mr. Murphy. The case is submitted.


Earl Warren: Mr. Galt.
Irving Galt: Thank you, Mr. Chief Justice. May it please the Court. Now, another singular argument of the appellants as I see it and this is an extremely intriguing too, they suggest that the burden shifts to the state contrary to the normal principles applicable in cases because this is a civil liberties rather than an economic regulation case. Now, I submit that that's plainly wrong. One cannot read for instance the McGowan case without realizing that this is just bad law, that is not so. The McGowan case illustrates it very clearly and another interesting aspect of this is that if it were true that the burden would shift on a showing, such as they have made, the -- we would be moving in the direction of requiring a proper proportionate mixture of the races in the various districts as I've noticed be -- as I've noted before, and any district would be suspect, constitutionally suspect when it didn't have the same racial proportions as its neighbor, and therefore, the state would have to move, as I said, in this direction of a proper mix, and I think that this can be summed up very quickly. The point is they had to show at the very, very least an absence of other -- any other substantial purpose for the redistricting. In other words, they had to show that race was a more likely basis for the district lines than the other and much more usual basis of districting, and I would suppose --
Potter Stewart: They didn't -- they have to show that race, I don't mean I show by evidence, so and so which could of course be an inference of circumstantial evidence but didn't they have to show that under your view that race was the only basis.
Irving Galt: Oh yes, under their view.
Potter Stewart: Under their view.
Irving Galt: As a matter of fact I would say that the -- but the point is that they did not even show and we'll establish this even further as we refer to the specifics. They didn't even show by any stretch of the imagination. They fell far short of showing that race was the basis for this districting. And I -- I would suppose that the only way they could show what I've just alluded to, that is that race was a more likely basis, is to demonstrate that the state went about this in such a determined, persistent way to borrow Mr. Feldman's own phrase, twisting and turning in and out, a ferreting out of a cluster of a minority here, a block of the minority there in a -- in what might enormous be called a paranoid tendency to see to it that these two sharply contrasting districts, Lily White and all Negro Puerto Rican, are setup side by side. And I -- I will show that they are far, far from presenting anything of a case in that regard. Now, I say they failed to present the prima facie case on the facts here and they relied on four particular avenues of proof and they were illustrating that in a sense when Mr. Feldman was pointing to the map and going around boundary lines and that sort of thing, and the first of the four things that they relied on and they failed and failed utterly in all four, the first of these four, and we'd gone over to -- gone over to some extent and I won't dwell upon it, is the sharp disparity between the districts in the way of a racial concentration and all that this does as I pointed out before to reflect the tendency of minorities. They live together and only one thing in this connection might be of special interest and that is the hypotheticals to which the appellants referred both of the trials below and to some extent here. First, they had in their proof before the statutory court. They were allowed to testify the hypothetical expansions of the 17th District and one of these expansions which involved locking Stuyvesant town, that would be this end so that's all right. The Stuyvesant town would be the area in here Your Honors. I think this map is the one which you can most easily see, I think it will suffice for our purposes. The Stuyvesant town additionally in over here, this was one expansion, if this would drop from the district, the western border strait and if the districts were expanded north in Behala, this was one of the hypotheticals, and interestingly enough, what did the 17th District come up with in the way of a percentage of Negroes and Puerto Ricans? 8. -- 13.8 in comparison to the present 5.1. And again, on another -- on another change of boundaries to enlarge the 17th District, what is the percentage this time? 8.5. Merely driving home harder and harder, the fact that any way you do it, it still comes out that if you're anywhere in this neighborhood and you're concentrating in -- more or less in concentrating the group that remains in it, these are the kind of percentages with some variation that you're going to have. And then there are other hypotheses and I won't -- I won't show you the hypothetical -- the three hypotheses which the plaintiff was referring to and pointing to earlier, Your Honors will recollect them various ways of dividing the county north and south, east and west in four or five permutations or combinations in this sort of second guessing the legislature game. I submit that we could easily in a county like New York give Your Honors a thousand of them. I don't see the point to it, but I do see one point which I think in the appellant's own hypothesis will be of interest to Your Honors and that is again, using all these criteria which of course, as Your Honors pointed out during Mr. Feldman's own argument are not legal criteria sense of track which are purely arbitrary. In the record, you will define them as arbitrary things. You will find that a enumeration districts were arbitrarily done is not the senses. It's not the United States senses what does congressional redistricting, it's the New York state legislature but coming back to these hypothetical districts, it's very interesting that in one of the hypothetical districting -- districts, I think its -- exhibits 6 (b). They have a percentage of 9.5, a little less than twice the present percentage of Negroes and Puerto Ricans, a very negligible percentage when we're viewing it in that context and even though Mr. Feldman may say that this end result doesn't matter, I simply must wonder and I confess that I do but what all the shooting is about because if this were to be an exercise in futility, if by some peculiar formula, the New York legislature could go about it or were to go about at Mr. Feldman's way that came up the same way, evidently he'd be perfectly satisfied and I don't know what we're doing in court if that be the case. However, the interesting thing is that even their hypotheticals are pretty close to the existing situation in some cases. Now, they said in their argument and this is where Mr. Feldman was performing surgery, he was talking about the scalpel that the New York legislature uses and I submit that I've got only one thing out of that, and that is that the New York legislature even surgically speaking, as Mr. Justice Harlan pointed out, could well have done a much, much better job but let's take the flat statement that they make. The 17th District could not possibly be expanded or straightened without altering its racial homogeneity. Well, that's not even borne out by the record. For instance, let me point out this to Your Honors, if I may, and if there's any slight inaccuracy of my recollection of my figures, I'm sure I'll be swiftly corrected. But, Mr. Feldman pointed to this section because this was a -- this section just (Inaudible) of the new 17th District line, the 1961 newly created line, and anticipating our argument and recalling of course some of the skirmishing in the court below, Mr. Feldman was quick to point out that even though this has a very low concentration of Negroes in this -- in this particular portion outside of the 17th District. And even though it's a highly concentrated wide area, it was not included in the 17th District and why said Mr. Feldman when it would so obvious if he used his own expression, the New York legislature were twisting and turning and using the scope of the such devastating effect, why then would they leave this area here, and I submit that Mr. Feldman hasn't answered. In the first place, the reference to a housing project; to begin with, the housing project is only in this track, the smaller track here between 93rd and 95th Street east of First Avenue at -- in this direction but this other track alone without reference to what's left over in this track has something like 7,500 people. The entire track I believe is 10,000 in sum -- 10,000 to 11 in that neighborhood and then Mr. Feldman managed and produced a letter in the court below while we're in the process of the closing arguments, he got a letter from the Board of Estimate which is in the record. I think it's in Exhibit 7, but this letter said that in 1959, a resolution for a housing project was passed between 93rd and 95th Street. And that at some date, not specified in the letter, and this letter was written in August of 1962, the end of the month when we were concluding the trial of this very case, at some unspecified date a tentative expansion of two blocks and the 93rd to 91st but still in the same area it was planted. Now, I submit, that beyond any and all possibility, the legislature very easily if it were bent on what Mr. Feldman has pictured as the senator's purpose very easily could and would have put this in. If it were exhibiting this paranoid tendency to ferret out here and ferret out there, to include here and to exclude there, this is the most obvious thing that they could have done. Now, in Stuyvesant town; Stuyvesant town was added; of course the district has to be enlarged. The only districts in Manhattan had to be enlarged. They were to be 43 districts -- 41 districts instead of 43. New York County had to have four districts instead of six and this was one single project right down here at the southern -- southeastern portion which -- and right up here is Peter Cooper, already in the district. When Mr. Feldman mentioned it, I don't think that was made clear to the Court but Peter Cooper and I think most of Your Honors may -- maybe familiar, have seen physically this thing Peter Cooper and Stuyvesant town are almost indistinguishable to the eye when one goes by even a native of New Yorker like myself. I doubt I'd like to tell when I left Peter Cooper and when I've arrived at Stuyvesant town. When I go buy in a car, I do not know the difference and that was added on. Now, let's take some of these -- these border track situations, the southern border. There are many tracks fall around, I won't be able to get them all and time won't permit it but I think by a few illustrations, it should be fairly simple and clear to show that by no means that the New York legislature do the efficient surgery which Mr. Feldman was so picturesquely describing to the Court not to many in its regard. But over here, this area right here, Mr. Feldman dismissed this area rather summarily I thought and the actual figures are 6,862 with a percentage of 12.2 Negro and Puerto Rican, making a total of about I think, 837. And the evidence shows at page 88 of the record, this would have been added and the white population would have been increased and even me I could tell going around this district. For instance, let's take south of west four and west third of this area which again, Mr. Feldman rather lightly dismissed. In the area are 3,000 -- there are 1,062, no. Below this area, 3,000 to 3,500 people according to the testimony which was at the -- at page 69 of the record and there is 10 to 15% concentration in the area, it's another area which we went at. And what explained this little triangular area if the chairman of New York State Legislature with this paranoid bent of mind so were destructively set on creating purely equal districts of an opposite racial characteristics. Why leave this pocket? The figures for this pocket are 1,062 people of which approximately 375, 35.9% and maybe 380 -- 365 but approximately that number of Negroes and Puerto Ricans in this area and we can see that going all around. Some of these western border situations are also interesting. One can look visually at this presentation of Mr. Feldman on this exhibit and see nearly from the coloring on the track -- on the census tracks of what the situation was that Mr. Feldman found it necessary to go with the such shades of differences at the -- percentage difference in the same overall percentage tracks on one side of the other. We can reverse that if we want to go up to, for instance, 62nd to 66th Street. I don't know exactly where that is here but it's somewhere -- must be somewhere along here. Mr. Mahoney points through that this is it. You can tell by the coloration of the tracks. In this area, you will find 149 on a 16.6 percentage inside, a 149 inside the district and only seven on a 7.8 percentage outside the district. So what do Mr. Feldman's elaborate travelogue and elaborate trips around the borders of the district show? It only shows that if you hold it up, the more careful analytical inspection, you are much more likely to find the opposite than in any other way. Now, and I just want to add one more thing to this matter of expansion. This -- this whole thing is absurd. It seems to me the 17th is not underpopulated. Let me make it very clear to the Court that New York voluntary and without any requirement of law, voluntarily adhered to withstand it in its Congressional Districts and I will say, without fear of contradiction that among the large states at least that is the best in that regard that maybe in the ban among all states, it certainly close to it among all 50, but New York voluntarily adheres to a population variation of 15% from the average district, and these Manhattan districts, the largest, has a variation of 9% from the state average and the smallest, the 17th which we've been discussing so much a variation of about 7%. And I can't understand the context in which Mr. Feldman uses it, unless he's suggesting and this is a very interesting theory too in itself, unless he's suggesting that somehow there's a constitutional standard by which if you're going to have more population in one district than on another, the one district being Negro or Puerto Rican or some other minority group and the other being white that constitutionally one race must be in the lower population district so that there be not overrepresentation with respect to the other race. This is all I can gather from the argument because otherwise, what significance these populations have? New York surely is not being assailed because of its deviation from a population standard and the creation of its Congressional Districts and I can see no other relevance to Mr. Feldman's argument but that. Now –
Speaker: (Inaudible)
Irving Galt: How many districts in New York? 41. There we're 43 prior to the redistricting.
Speaker: (Inaudible)
Irving Galt: I'd -- I would assume that there maybe some that are county lines, but as far as I know, that hasn't been the primary basis. Certainly, in the Metropolitan area, the county lines have not been the basis. As a matter of fact, we see today's four districts wholly contained within Manhattan Island, that's the county of New York, and there was a time and this ties into the history of Congressional Districting in New York County and that we'll show again the fallacy of all of Mr. Feldman's assertion. But there was a time until about 1941 when we have in the records the maps of the 1911 redistricting, the 1917 and some other dates, 1920 something -- I think it was 1922, 1941, 1951 and the present 1961. But there was a time until at least the 1941 districting and I'm not sure from my own recollection what but that this maybe -- and may have been true likewise of 1941, but there was a time when New York County Congressional Districts spread over the waters to Staten Island, on to the Bronx and all that. I may not remember the detail but they are in the record and that the county lines were disregarded, so I would assume Mr. Justice Black that congressional -- as far -- from the standpoint of Congressional Districts, I think I'm correct in saying that county lines are not the critical thing. Unlike –
Speaker: (Inaudible)
Irving Galt: In New York?
Speaker: (Inaudible)
Irving Galt: Yes, yes. This will do -- this usually will follow the street. In fact, I think they do and here again, let me -- pardon?
Speaker: Ordinarily?
Irving Galt: Ordinarily in the City of New York and here again, let me make -- pardon?
Speaker: (Inaudible)
Irving Galt: Yes and here again, let me make some references. Mr. Feldman spoke very eloquently about physical boundaries. Well we know, of course that New York County does not have a lot of rivers running through it, no mountains or anything like that. We have Central Park. We have other parks, but obviously and I think every justice of this Court must know it, these are not the important boundaries in New York. If we want to look into boundaries and criteria like boundaries, anyone of the justices and I'm sure some of the justices of this Court may have done it if we stand up here, I can't quite reach it, at 98th Street, 96th Street here, and Park Avenue, I think this is the juncture here up around the end of the boundary line there and one can look to the northeast and see right across the street from he's standing on Park Avenue of all the squaller in the world. All the poor neighborhood that you want and just turn slowly around in the other direction and look south and southeast and you'll see a neighborhood of luxury apartments of, apartments of great magnificent -- magnificence. These are differences that you might see but what significance traffic lights or crossway through fares or anything like that I can't possibly see. Now, they have relied on the history of the 17th and 18th Districts. They have said two blocks were prodded up here. And -- and then in rearranging the district, there wasn't much difference in the step configuration but you'll notice this little portion from the red line to the green line. Simple explanation, that's Mount Sinai Hospital. Mount Sinai Hospital now expands this entire distance and the streets, 100th Street that's in the record, one of the plaintiff's own witnesses testified to that. Now, the street is closed and it's a physical fact, no one will dispute it, though it makes sense to put the hospital in one district than the other. The total of people in it and I suppose they were mostly residents in terms of people (Inaudible) only 800. The percentage I don't recall it correctly. Mr. Feldman will correct me if it's much over 50% Negro or Puerto Rican, I don't believe that it is, and that fact holds the unit as far as Mount Sinai Hospital up there and that border is concerned. Now, the Stuyvesant Town addition I mentioned before, there was that need for expansion and that -- and I also mentioned that the areas around here, the only significant change is the red line will show us taking in district and why is Mr. Feldman's suspicions about the New York legislature were correct, it didn't go up here and no one will ever be able and successfully to explain, like they put in this and that's the change. They built on the lines that existed. Here is the 1951 line, the green line. And essentially the district added present configuration. I think too it did very largely in 1941, but doesn't it make sense to build on the same Congressional District lines? After all, what does a congressman do? He represents people and people in a certain area have political clubs built. You have all of these things. It will -- will a legislature in its right mind tamper with the existing politics of the people in that sense? There's reason for it and what the legislature did --
Byron R. White: (Inaudible)
Irving Galt: The green -- the green is 41 or 51. I beg Your Honor's pardon, 51, I'm sorry.
Byron R. White: (Inaudible)
Irving Galt: That's to prior for it.
Byron R. White: (Inaudible)
Irving Galt: If Your Honor please, I don't know but this was the existing border. There were six districts in New York at the time. I -- I will say this, the record doesn't show it. You'll notice that one of the allegations in the complaint is that historically, these districts were bad in the same way. Repeated efforts were made to do something about it. New York legislature never did anything but the fact of the matter is that the appellants or the plaintiffs never came forward with an iota of proof about it. And the record is bare of any suggestion of anything sinister there. If -- if Mr. Feldman wants to take the position that it's unnecessary to prove it, fine. We think it's unnecessary to prove it because there isn't anything things to prove anyway but if it's unnecessary to prove it then we can't expect to find in the record any explanation of this particular configuration. The only thing it does suggest that is perfectly logical to me is that the legislature did a magnifying job in improving the physical contours of the lines. They now are much more regular than they were before. Mr. Justice White's question implicitly suggests that and the only thing I could tell you is that if a legislature did anything, they did quite a nice job of regularizing the district now that we only had four instead of six. Now, I think I can sum up the evidence to say -- well, perhaps I better not sum up any evidence. My time remaining is less than three minutes. I don't believe I'll even be able to argue a lot and some of the time Mr. Sander will have -- I only regret that I cannot. I think rather than start upon a new course of argument which I won't have time to develop, I will simply say that I'm very appreciative of the Court's indulgence and consideration in this and in the prior WMCA case and turn over the argument to Mr. Sandifer.
Earl Warren: Mr. Sandifer.
Jawn A. Sandifer: Mr. Chief Justice, may it please the Court. I represent the intervenors in this action. The intervenors consist of Congressman Adam Clayton Powell of the 18th Congressional District together with all of the district leaders who are also comprised within the 18th Congressional District, all of them are Negroes with exception of one Puerto Rican district leader in the 14th Assembly District. All of the intervenors are members of the Democratic Party and as a matter of fact, they are all members of the County Executive Committee. Now, we take the very limited position here before this Court that the plaintiffs did not make out a prima facie case that the lines under attack were drawn based upon a racial consideration. As a matter of fact and I might say to Your Honors that that position is consistent with the position that was taken by the intervenors in the court below. We do not feel further that this particular case falls within the mainstream of the civil rights cases that have been decided by this Court. I would only refer Your Honors to pages 121 and 122 of the record that is before you. You will note in the opening part of my argument in the court below, I specifically stated to the Court that if I personally believed for a moment that the basis for redrawing the lines in the 17th Congressional District were based upon race or place of origin, I would be the first to join the plaintiffs in the relief which they were seeking here. And on page 122, in response to the question that was put to me by Judge Feinberg, when he said, "Is it your position that if they were drawn on a racial basis, you would agree with the plaintiffs that that was unconstitutional?" And my answer unequivocally was, “I would wholeheartedly say yes.” Now, I want to take this opportunity Your Honors to specifically disagree with the position that Mr. Galt took in response to Mr. Justice Goldberg's question and in further response to Mr. Justice White's question. I take the position completely and unequivocally that if the state legislature used race as a consideration in drawing of these district lines that the lines would be absolutely unconstitutional and the Court would have to so decide. That's the position that I take. I do not associate myself with that position. I want to say further that there's some reference in the record here before the Court and I think there's some reference in the plaintiff's brief that we are arguing for what we consider and deemed to be good segregation. I think that Judge Feinberg uses -- makes that remark. I say that there is no basis in the record before this Court for that particular statement. We do not argue that. I don't think there is any such thing as good segregation. I think Judge Feinberg probably drew that inference from the affirmative defenses that were originally raised by the intervenors in the original action but I would call the Court's attention to the fact that the affirmative actions were dismissed by the court below at the conclusion of the entire case that those affirmative defenses are not a part of the record before this Court, that the only on record before this Court is the position that we took below that the defendant -- that the plaintiffs had not made out a prima facie case and that is the position that we have here. Now we do however, and I want to make our position perfectly clear, we do however reserve the right to utilize our voting strength and power to what we deem to be our best advantage as we find large segments of our Negro population concentrated in one particular area. For that we do feel that we have a right to utilize that voting strength to the best of our ability. We have very little control over the situations that exists as far as Harlem is concerned because of the housing situation that we are confronted with in the State -- in City of New York. But so long as a Negro, as a race of people, are not free to participate and move freely in an open society, we will find the Harlems throughout the United States, not only in New York but throughout the United States, and so long as these Harlems do exist such as the 18th Congressional District in Harlem then we'll feel that the State does not have the right to single out the Negroes and to phenomenally disperse them into other Congressional Districts on Mr. Feldman’s theory that they can be more effective if that is done or that the efforts and desire on the part of Mr. Feldman here is to deprive the Negroes that what has happened here that Negroes has been deprived of their influence in the other three Congressional Districts because I might only remind Mr. Feldman of the situation as far as the Stuyvesant section of Brooklyn for an example where we have far more Negroes concentrated than we do right in Harlem in the 18th Congressional District. Some 450,000 Negroes in Stuyvesant and I would ask Mr. Feldman or anyone else whether or not a Negro has ever successfully run for Congress and has been elected in that particular Congressional District. We might also refer to Bronx County particularly in southern -- the south -- southern part of Bronx where the big figures are equally substantial or to Queens where Negroes in these large concentrated areas for the very reason to the fact that Congressional District is drawn in such a way that the Negroes are not to be elected from those particular districts. The intervenors that are here in this particular case before the Court today, every single Negro that's in the state legislature in the Manhattan County that we are talking about, every single Negro that is a district leader that in the state assembly are in the City Council all comes out of the 18th Congressional District and not single Negro district leader would you find in any of the other three Congressional Districts. Now, if there was any proof and I will make this position clear also, that if the lines were drawn on a racial basis as has been suggested by Mr. Galt here are raised in what's in consideration, I don't think and I made the statement of Judge Feinberg below that I don't think that Negro that you would even have to go so far as the show that there was any advantage or disadvantage that flowed as result of the lines having been drawn on a race basis. I think if you found race involved regardless of whether it was an advantage or disadvantage, I think that the Court would have to hold that that statute was unconstitutional. But since Mr. Feldman has advanced this argument that Negroes would be better off if they were dispersed among the other three Congressional Districts, I would have to post -- pose that particular questions as to whether or not a Negro who has been boxed out of the 17th Congressional District or -- or Puerto Rican has been boxed out, whether or not if that line was redrawn to include that particular Negro or that Puerto Rican, whether or not that Negro or Puerto Rican would find himself any better off than he would have been if he remained in the 18th Congressional District. I suggest that when that Negro woke up that next morning or the Puerto Rican woke up and found that he was still in the slum, that he still economically was at the bottom of the ladder, that he still was without a job or was gainfully employed, that his children still were going to the work schools in the community, that there was the very little difference in far as he was concerned politically as to whether or not he was any better off than he would have been if he had remained within the 18th Congressional District. Now, I'd like to just go for a moment, if I may, to the two lines of cases that are relied upon by the plaintiffs. First all, the Gomillion cases, I think it was Judge -- Mr. Justice Black who pointed out almost in the very outset of Mr. Feldman's argument. The Gomillion case is so obviously distinguishable from the issue that involved in this case that it doesn't need to be belabored at all. Obviously, in the Gomillion cases, where 400 Negroes has been cut out or boxed out of Macon County, that not only were these Negroes deprived of the right to vote but they were deprived to many other municipal facilities which they had previously enjoyed. There's no such showing in this case at all. I would even submit to the Court that but for injection of the issue of race in this case that this case would have been no different from Baker versus Carr and the very fact that they have cited this particular Gomillion and relied upon it together with de facto school cases does not bring this case within the purview of either one of those cases. Now, throughout Mr. Feldman's brief, he relied heavily upon Branche versus Board of Education of Hempstead. It so happens that I personally handled that case for the New York State Conference and the National Association for Advancement of Colored People and argued that case before Judge Dooling and the whole program or the whole thrust of our arguments and all of the de facto school cases throughout the state of New York is based upon the fact that the Court has found that Negro children were educationally disadvantaged as a result of the segregated schools that they have been going to and this is the thrust of our argument. And I submit that even the findings of the Commissioner of Education of the State of New York in this de facto field, takes these cases completely outside of the purview of the argument that is advanced here, that the Negroes are being politically deprived to some right and some enjoyment by being placed in one Congressional District as opposed to another. I don't think that that argument is sound. I don't think that it is consistent with the whole theory of the de facto school cases at all.
Justin N. Feldman: Mr. Chief Justice, may it please the Court. I'm interested in this dissent of this argument. I won't devote much time to it because as I read -- heard this argument, what he said was, "If segregation had been proved here to the point where I couldn't deny it, I wouldn't be here," but under the circumstances, I'm here to tell you that I like segregation in the 18th Congressional District because that's how -- the way we become leaders in the 18th Congressional District. That's the way we became -- we as intervenors became leaders. It's got nothing to do with the question of the rest of the community or the individual rights or the rights of the rest of the group and that's the whole theory of this -- the whole problem with this benign code of concept. Whom does it advantage and whom does it disadvantage? And I suggest that --
Potter Stewart: As I understood, as I understood Mr. Sandifer's argument is -- it was this that that if it were shown indisputably or by proof that -- that this -- that New York State had divided its Congressional Districts on -- on racial -- on racial lines and he -- and he disagreed with Mr. Galt to think that that was unconstitutional state action, but he further went on to say first that he didn't think there was any proof of that in this case and later in his argument he pointed out that there is in fact de facto, segregation if you want to call it that, certainly concentration of these Negro and Puerto Rican groups in Harlem as all the world knows. Certainly, everybody in New York knows that.
Justin N. Feldman: That is correct sir, but as we also showed by the use of the neutral lines, this fact means that there will always be a majority of Negroes and Puerto Ricans in one Congressional District.
Speaker: (Inaudible)
Justin N. Feldman: That -- that is --
Speaker: (Inaudible)
Justin N. Feldman: -- that is correct sir. But no matter how this population shifts, I submit, that with the 40% of the population of Manhattan being Negro and Puerto Rican, if we have four Congressional Districts, it becomes well nigh impossible not to have very substantial influence and the proof of their influence sir without this benign need to -- to gerrymander is the fact that since 1953, the one single constituency officer in the city of -- in New York County, Manhattan has been a Negro. The Negro borough president of Manhattan who's elected since 1953 because of this 40% situation so that you don't need the jam Negroes into one area in order to make this advantage, give them this disadvantage. I submit further that this is an unimaginable standard and one which if the Courts were ever to get into would become complete -- make a complete morass of the judicial -- install complete morass in the judicial system.
Speaker: (Inaudible)
Justin N. Feldman: Right.
Speaker: (Inaudible)
Justin N. Feldman: I have no problem.
Speaker: (Inaudible)
Justin N. Feldman: I have no problem sir.
Speaker: (Inaudible)
Justin N. Feldman: I could look at those lines and say these are what I called neutral colorblind lines and this is the way it works out and this is the way it has to be.
Speaker: (Inaudible)
Justin N. Feldman: Well sir, I think in a racial classification case, it's no more necessary that I vitiate those theories than I vitiate them that would have been necessary for the plaintiffs in Johnson against Virginia to come in and prove that the distinctions in that courtroom were not based upon the fact that the people on the left side are less than a $1,000 a year and the people on the right are -- side earn more than a $1,000 a year. There are many possibilities. Am I supposed to vitiate the fact that maybe there are more gasoline stations in one district than another or more green houses or blue houses or yellow houses. I don't know there are a lot of other available inferences theoretically and once I've shown the racial classification, I say this burden shifts and the state must come forward to explain what the real reason was. Now, Mr. Justice White asked about the former jagged lines. There are explanations to that. I think anybody in those New York, those at this particular area has changed, the long East River Drive and Eastern Avenue. This was jagged at one point, it's not jagged now. The racial composition is good. I might point out that Mr. Galt benefits that -- I may point out that for the benefits of the Court, excuse me, [Attempt to Laughter] that this area that was dropped is, as he said, 50% Negro and Puerto Rican, the relevance of it being a Mount Sinai Hospital was nil because it was Mount Sinai Hospital before. And as far as the history of the county is concerned, these districts were cut in parallel lines as you'll see from defendant's Exhibit C, I believe it is. In 1911, when the population of the county was 2,300,000 and there were only 600 -- or excuse me 60,000 Negroes, and in 1921, when the population of the Negroes was small, parallel lines, no need for it. These kinds of line started to develop in 1941 when the population of the county was 1,900,000 and we had 300,000 Negroes. We don't have a separate figure for Puerto Ricans because they didn't take separate figures for the census at that time, that's when jagged lines developed. And if they were going to build on historical basis, why was it that instead of adding this area, they didn't add the area that used to be in the 17th. You know, it used to go up along between Central Park and Western Columbus Avenue all the way to 97th Street up to 1941, when they dropped that out, because as you can see the composition of the map, this was a much more preferable area. Wherever they had the choice, they made that kind of choice. If they were straightening lines, why not straighten it along with the northern border or along the park in 110th Street and equalize the size of the district, why not? They must tell us. We can't be expected to rebut every available inference. There are a myriad of inferences and this kind of burden cannot be placed upon plaintiffs in a segregation case. It would mean that you would just never could prove segregation because you are never going to catch the eyewitness from the legislature.
Speaker: (Inaudible)
Justin N. Feldman: That's --
Speaker: (Inaudible)
Justin N. Feldman: Well, in the -- in terms of these steps sir, as I said in the old district, the steps were contrived because this area has Negroes and Puerto Ricans.
Speaker: (Inaudible)
Justin N. Feldman: Yes they basically drew across here but they still have steps up here and it's assonantly this step Mister -- or Justice White maybe interesting to you because this one that this two block area that was draft that Mr. Irving Galt refers to as Mount Sinai Hospital was two to one republican in enrollment so I don't know why they wouldn't have included that one in the district if the motivation was political. But the point is this is the difficulty with all of these so-called available inferences. Why is New York entitled to have us rebut such inferences? It wouldn't be available at -- to them in other states. This question wouldn't arise on this proof and I said --
Byron R. White: (Inaudible)
Justin N. Feldman: Yes sir.
Byron R. White: (Inaudible)
Justin N. Feldman: Sir, in the segregated --
Byron R. White: (Inaudible)
Justin N. Feldman: In a segregated -- in a segregated situation, vested rights develop in leadership groups. And it is sometimes convenient for a white group to service the Negro leadership and vice-versa and that is one of the difficulties with Mr. Sandifer's argument in this benign coded theory and it was very easy to make this arrangement on (Inaudible) the Negroes into the 18th and giving at all white district to somebody else, perhaps not the course enough lack of political difficulty for someone, I don't know but nevertheless, I don't know what their purpose was. They classified on the basis of race.
Byron R. White: The entire of the 18th (Inaudible).
Justin N. Feldman: I don't know the motives sir. I am unable to determine motives and I don't know that motive is constitutionally relevant in this instance. Certainly, as Mr. Galt --
Byron R. White: (Inaudible)
Justin N. Feldman: Let me say one other thing sir, as I showed from our -- if you find Exhibit 6 (a) or 6 (b) and incidentally Mr. Galt makes the point about that that one of the districts would have had only 9.5 Negroes and Puerto Ricans instead of the 5%, in that situation where one district had 9.5 almost twice as many Negroes and Puerto Ricans percentage wise as we have in the 17th, you would have two districts with almost 60% Negroes and Puerto Ricans and that both may well have been on the part of the legislature to make certain that there was only one Negro and Puerto -- or Puerto Rican congressman from Manhattan.
Byron R. White: (Inaudible)
Justin N. Feldman: No, ,my suggestion is that what they produced was something that they wanted to, no Negro influence in the 17th --
Byron R. White: (Inaudible)
Justin N. Feldman: -- and only one Negro congressman in Manhattan. Because by arranging at that way sir, there would only be one Negro congressman from Manhattan where is if you drew the line across in parallels with equal size districts, you would have two districts at 60% Negro and Puerto Rican.
Byron R. White: (Inaudible)
Justin N. Feldman: It wouldn't get to the 17th but it would -- but it would mean if I get to somebody else, I don't know sir that's the --
Byron R. White: (Inaudible)
Justin N. Feldman: No sir, I'm not saying it's political, it's --
Byron R. White: (Inaudible)
Justin N. Feldman: They want to avoid two Negro congressmen instead of one, yes sir you might say it's political because they are talking about congressmen instead of visitors to a courtroom or a golf course but they are avoiding two Negroes instead and having one instead and I don't see that that makes any difference between the courtroom and the golf course, excuse me sir --
Speaker: (Inaudible)
Justin N. Feldman: Alright sir that's traditional. I'm glad you asked that question. There's probably one -- one problem with that. The percentage of Democrats, they were all Democrats, in this new 17th that they created is much higher than it was in the old 17th. Not just numerically higher because they added voters; they added more people, but it's percentage wise higher. This Stuyvesant Town area --
Speaker: (Inaudible)
Justin N. Feldman: We'll go --
Speaker: (Inaudible)
Justin N. Feldman: No sir, we'll give you those figures too. They wouldn't have you see because you don't have as much -- that the higher -- as higher percentage necessarily in your -- in your enrollment, but the point is that had gone in my direction, they would have not picked up proportionately anymore Democrats.
Speaker: Going straight north?
Justin N. Feldman: Going straight north. They would not have picked up proportionately more Democrats than they did in Stuyvesant Town, in terms of enrollment, in terms of enrollment.
Speaker: In terms of votes.
Justin N. Feldman: In terms of votes.
Potter Stewart: Who's the candidate?
Justin N. Feldman: I don't know sir.
Earl Warren: (Inaudible)
Justin N. Feldman: No sir, I do not think so and certainly not well but I don't know or were no findings of fact in the court below.
Earl Warren: (Inaudible)
Justin N. Feldman: Sir the -- in order that you'll agree with me, I think if you would, would you disagree with Judge Feinberg's only available inference test and the inference of the economic and social classification that he made which was unsupported by the record which I think you can re -- review de novo. It would, it would require a reversal. Thank you very much.