Earl Warren: Number 31, Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, Petitioner versus United Airlines, Incorporated. Mr. Highsaw.
James L. Highsaw, Jr.: Mr. Chief Justice, my name is a very unusual one and I think just looking at in French you wouldn't get out of pronouncing. My family has always pronounced it Highsaw.
Earl Warren: High --
James L. Highsaw, Jr.: Highsaw.
Earl Warren: Highsaw.
James L. Highsaw, Jr.: Highsaw, emphasis on the H-I.
Earl Warren: Well it -- when it spelt that way, I should have pronounced it that way.
James L. Highsaw, Jr.: The basic question presented to the Court by this case is one of jurisdiction. The issue is what forum, if any, has jurisdiction to determine whether a collective bargaining agreement between the Brotherhood of Railway and Steamship Clerks and Capital Airlines terminated from the merger of Capital into United Airlines on June 1, 1961 are whether that agreement survive the merger and can be enforced as an obligation against United Airlines. The decision of the United States Court of Appeals for the Sixth Circuit which is under review in this case and the positions of the parties as presented to the Court, four different answers to this basic question. The Brotherhood has taken the position that jurisdiction lies in the federal courts on a suit by the Brotherhood to enforce this agreement against United Airlines. The United States Court of Appeals for the Sixth Circuit took the position that the federal courts do not have jurisdiction, that exclusive jurisdiction rested in the National Mediation Board because it's said that the dispute involved a matter of representation and a representation dispute over which that board had exclusive jurisdiction under Section 2, Ninth, of the Railway Labor Act. United agrees for that position but United goes further. United says that the dispute isn't justiciable at all and it also says that if it is justiciable at all, it should have been litigated in a petition before the United States Court of Appeals for the District of Columbia Circuit to review the order of the Civil Aeronautics Board which approved the merger. Finally, the United States' amicus curiae on behalf of the National Mediation Board, says that the National Mediation Board does not have jurisdiction over this dispute that the Court of Appeals erred in holding that there was a representation dispute involved there over which the Mediation Board had jurisdiction, that the federal courts do have jurisdiction entertained the Brotherhood's complaint but only to enforce the provisions of the collective bargaining agreement which provide for a Board of Adjustment and a grievance procedure to hear grievances of employees arising out of the agreement and that the ultimate jurisdiction to determine how much of the agreement survives, rests in this adjustment board. At this time, I will to address myself to the position of the Brotherhood and of the United decision of the Court of Appeals and I will address myself on rebuttal to the position of the United States after the Solicitor General has given his argument. I think that in order to carefully understand the issues, it would be in order to very briefly in review some of the relevant facts. In 1947, the Brotherhood became a duly authorized representative on the property of United -- on the property of Capital it is, on certain of the employees of Capital, the office, the clerical, the stores and the passenger service employees. Thereafter, it negotiated the collective bargaining agreement with Capital that under the Railway Labor Act, covering the rates of pay, the rules and working conditions of these employees. In 1959, it entered into negotiation with Capital to revise that agreement. There was already in the win -- the prospects of a merger by Capital. There had already been one aborted merger agreement entered into which had not been finally processed before the Board. So, the Brotherhood bargained for and it obtained in this collective bargaining agreement in 1959 a provision to the effect that all provisions of the agreement should be binding upon successors and assign of the Capital.
Potter Stewart: Did that provision put them in the collective bargaining agreement for the first time in 1959?
James L. Highsaw, Jr.: That's right Your Honor. It has not been there before. And that was put in there because of the situation which based Capital and because of the fact that Capital indicated that its financial condition was such that it might have merged (Voice Overlap) --
Potter Stewart: And is there anything in the record that shows that?
James L. Highsaw, Jr.: No, that type was not a fair merger. They -- that is what Capital represented to the Brotherhood. Only fact --
Potter Stewart: Nothing in the record to show the reason why it was permitted.
James L. Highsaw, Jr.: No. That's right, Your Honor. About a year after, this agreement was ordered, one other provision of the -- this agreement relating to successors and assigns as Article 1(b) in which this provision appears. In addition to the provision that it was binding upon successors and assign is also an additional provision providing that there should -- in the event of a consolidation of a merger, there should be a negotiation to the procedure to be followed and the protection to be accorded the Capital employees and that 90 days notice was required to the Brotherhood for this purpose. About a year after this provision was put in the agreement when the revised agreement became effective in August of 1960, Capital and United entered into a merger contract. One of the provisions of that merger contract obligated United to assume all the liabilities of Capital without any exclusion or exception for any collective bargaining agreement and without any exclusion or exception for this particular collective bargaining agreement. In addition, both of these corporations were Delaware Corporations and under Delaware law, a surviving corporation is required to take over the liabilities of the non-surviving corporation and this law does not contain any exclusion for collective bargaining agreement. The Brotherhood heard about this merger through the newspapers. This is in the record, Your Honor. And shortly thereafter, it advised both Capital and United that it was invoking the provisions of the collective bargaining agreement, that it wanted to have negotiations with them either singly or jointly for the purpose of implementing this agreement and reaching a decision on the procedure to be followed and the protection to be afforded and employed.
Speaker: Was this before or after the merger?
James L. Highsaw, Jr.: This was immediately after the merger agreement. The merger agreement was signed on the August 11th, The Brotherhood read about it in the newspapers in August 12th and it sent these letters out on August 16th, 1960. Both carriers refused to have any meetings with the Brotherhood. The Brotherhood during the period of the next year and up to the time the complaint was filed in this case, made repeated efforts to have negotiations and discussions with either Capital or United or both working on this subject and was not for a slight refusal. Without going into all the details and brief the position of the United was that it had no obligations and no duty to assume the obligations of the collective bargaining agreement. The position of Capital was that by signing a merger contract that it put itself in position where it couldn't do anything effective. The merger agreement had to be submitted to the Civil Aeronautics Board for approval. The Board under the Federal Aviation Act has a general authority to impose reasonable terms and conditions that approved the merger. The Brotherhood intervened in this proceeding, two purposes. One, it sought the ordinary employee protective conditions that the Board imposes when it approves the merger which are in modification of the Washington Job Agreement in the railroad industry in which I'm sure this Court is thoroughly familiar. And the Brotherhood also asked the Board to impose if it approved this merger a condition requiring United to take over this collective bargaining agreement. It argued to the Board as a matter of law, United was required to take it over. The United argued to the Board that it -- as a matter of law, the agreement terminated when the merger was consummated. United also argued to the Board that the agree -- that the question was not one for proper disposition under the Federal Aviation Act. The Board approved the merger which the Brotherhood did not opposed, it imposed the employee protective conditions, the modification in the Washington Agreement. It declined and imposed a condition requiring United to take over the agreement. Its decision and the reasons for it one's certain, the Brotherhood sought clarification, time was running out under the statute to do anything about this in a way to a petition to Court of Appeals. So, the Brotherhood petitioned the Court of Appeals with the District of Columbia Circuit, to review the Board's order on this another point. At that juncture, the Board came in and said that we did not ask on the question of whether or not the United has required as a matter of law to take over this agreement. We have left that to -- in substance, it said, we've left that litigation between the parties. This being the case, the Brotherhood ultimately withdrew its petition from the Court of Appeals because it could not obtain a decision on this question by pursuing that petition. The next step the Brotherhood took was --
Potter Stewart: But now why -- couldn't it have obtained in the Court of Appeals the decision as to whether or not the Civil Aeronautics Board should have passed on your issue?
James L. Highsaw, Jr.: No, because under the statute Your Honor, once the Board had come in and said, “Well, all we did was we exercised our discretion and substance not to impose this condition.” Since the statute is very clear and it does merely authorize that the Board to impose within the terms and conditions, all the Brotherhood have been arguing in the Court of Appeals was the exercise of discretion. It wouldn't have been arguing the basic question.
Potter Stewart: Well then, what you're saying now is that the Board clearly decided that the collective bargaining agreement did not survive.
James L. Highsaw, Jr.: No, they specifically said that they did not decide that question. They -- it appears in the record, Your Honor, at page 50 of the record that they specifically told the Court of Appeals that they had not decided this question. I'm reading very brief of the sentence, it said, “Neither did it purport to pass on the issue of whether United would be justified as a matter of contract or labor law and ignoring the agreement.” And no one is -- has argued in this case up to now that the Board did pass on this issue.
Potter Stewart: That Board --
James L. Highsaw, Jr.: Did pass on the issue of the survivability --
Potter Stewart: But it is argued that this is a matter which you -- your remedy in these proceedings within the Court of Appeals -- the assessment.
James L. Highsaw, Jr.: For the first time, Your Honor in this litigation --
Potter Stewart: (Voice Overlap) -- District of Columbia that time.
James L. Highsaw, Jr.: That's right. For the first time in this litigation and the brief to this Court, United makes that argument. It didn't -- in moving to dismiss this complaint in the District Court, it didn't make this argument. And for the first time, it raises this question and it's clear from what the Board said that it did not pass on this issue and then consequently there was no way that this issue could be litigated before the Court of Appeals.
Potter Stewart: I still don't quite understand why, why you couldn't have claimed that the duty of the Civil Aeronautics Board --
James L. Highsaw, Jr.: Because their -- because they -- all it had was just a general authorization to impose a general reasonable terms and conditions. And under this, I think that the Board had almost absolute discretion as to whether it would impose any conditions or whether it wouldn't. For example, it did not impose these Washington Agreement conditions for a long time. It was not until around about the late 1940s or 1950, they were persuaded to finally change their policy on that and these conditions they imposed have been simply a matter of discretion and policy with them.
Potter Stewart: But then you're not making that argument. Here, you're making argument that this contract survived as a matter of law --
James L. Highsaw, Jr.: That's (Voice Overlap) -- that's right.
Potter Stewart: -- and not within the voluntary discretion --
James L. Highsaw, Jr.: Yes.
Potter Stewart: -- of Civil Aeronautics Board.
James L. Highsaw, Jr.: Well, that's right Your Honor and we tried -- we tried to get the Board to exercise its discretion.
Potter Stewart: Well, that's not a matter of discretion if you're right.
James L. Highsaw, Jr.: No, no. Even if we were right, even if we were absolutely right, the Board could say, “Well, we will let you go out and settle that some place else. We're not going to settle this problem by doing it in the form of a condition in our order approving the merger,” and that was the -- that was what they said they did and I think that they had the -- clearly had the legal right to do that. The -- otherwise, that you would have to say that they had an absolute obligation under the statute to settle this and I don't know any provision of the statute on which you could base that absolute obligation. Following this, the Brotherhood didn't seek to file grievances with United. These were -- the United just refused to accept them physically that is, in just a matter of processing that -- physically return them. Brotherhood then went before the National Mediation Board because the agreement had been made in mediation before that Board under Section 5(2) of the Railway Labor Act. That Board, in that case, United came in and said that the Mediation Board had no authority to pass on the question over the survivability of the contract. The Mediation Board agreed with them. They did issue an opinion saying they agreed that with the Brotherhood's interpretation of the language, that the language is clear and unambiguous and meant just what it said but it said, “We can't had all that jurisdiction to find them the right that United has to assume the obligations to this contract.” So, in that situation, the Brotherhood filed a suit in the Federal District Court at Cincinnati, Southern District of Ohio, to enforce the collective bargaining agreement.
Potter Stewart: And what's the basis of federal jurisdiction?
James L. Highsaw, Jr.: The bases of federal jurisdiction were in three things, Your Honor. The Title 28 Section 1331 and that was a case arising under the Railway Labor Act, we allege that the United's actions violated the provisions of Section 2, second -- first of the Railway Labor Act which requires carriers to maintain agreement. It violated Section --
Potter Stewart: Well then you don't (Inaudible) isn't that correct?
James L. Highsaw, Jr.: No. I don't think so. No I don't -- I don't believe -- I don't believe, that's right, because the jurisdiction of the Civil Aeronautics Board and the power of the Civil Aeronautics Board and what the Civil Aeronautics Board has to do is laid down in the Federal Aviation Act. And the -- it may be, -- Your Honor may -- if Your Honor may have in mind that there is a provision in the Federal Aviation Act with respect to the -- if a carrier certificate can be revoked if it fails to comply with the provisions of the Railway Labor Act, what the jurisdiction of the Civil Aeronautics Board under this is not absolute either, this is a discretionary jurisdiction. It has -- it has been utilized on one or two occasions. But, its jurisdiction flows out of the Federal Aviation Act and also I may say at this point, Your Honor that United had previously claimed to the Board that this wasn't a question for resolution under the Federal Aviation Act. In fact, United's basic position all the way through is this isn't the right question for resolution by anybody. And coming back to the basis of our jurisdiction, we say that it was a violation of Section 240 of the Railway Labor Act which prohibits a carrier from changing the terms and conditions and the rates of pay and the working conditions of employees embodied an agreement except in accordance of provisions of Railway Labor Act. Section 6, which sets up certain specific procedures by which the carriers have to change those provisions. We also relied on Section 1337 of Title 28 which gives federal courts jurisdiction over matters arising under statutes affecting commerce. As an alternative jurisdiction, we asserted jurisdiction under Title 28, 1332 under diversity of citizenship because the Brotherhood which located in Cincinnati, Ohio and United was a Delaware corporation. We asked for a declaratory injunction declaring the rights of the parties. We also asked that United be enjoined from violating the agreement. Both the District Court and the Court of Appeals held that the federal courts did not have any jurisdiction not on -- because none of these provisions that I have been reciting were applicable or not because the Court of Appeals for the District of Columbia had jurisdiction. United was not even asserting that point then, but because they said this involved the representation dispute over which the National Mediation Board had exclusive jurisdiction. Now, the decisions of neither the District Court nor the Court of Appeals say who the parties to this representation dispute are or what it's about. But United's brief says that what it has is that there were 2700 employees on Capital covered by this collective bargaining agreement. After the merger, 2170 of them became United employees and were unrepresented. 530 of them belong to a group known as a Ramp and Stores employees, and these are employees are represented on United Airlines by the International Association of Machinists. So, on June 23rd, 1961, United entered into a separate agreement the Machinist by which these employees were integrated into the Machinist group and under Machinist contact. And United says that enforcement of this Brotherhood contract necessarily raises a dispute as to where the representatives of these 530 employees. Well, this is not so unless the Brotherhood has specifically asked that this contract be declared invalid and it hasn't asked anybody to declare this contract invalid. The Brotherhood recognizes that where you have a collective bargaining representative on a property of another carrier that its agreement covering some of these people can be terminated in accordance with the procedures of the Railway Labor Act by the carrier and by that other collective bargaining representative. But this doesn't affect the other 2170 employees who are unrepresented and who had rights under this collective bargaining agreement. And moreover, even as to the 530, their rights under the collective bargaining agreement didn't come to an end until it was terminated in accordance with the procedures of the Railway Labor Act by action between the IAM and United. In other words, the -- it's quite clear that the duty of United was to take over and apply this contract even to these 530 until such time as they entered into this new agreement. United also makes reference to the fact that in 1962, the Brotherhood applied to represent the entire craft or class on United. In other words, the whole craft or class involves about 12,000 people and the 2700 were covered by this contract for a minority. So United says that this is evidence of a dispute with the -- between the Brotherhood and the IAM. Well, the -- I think the United States very correctly entirely points out that this looks to the future, its respect to future representations has absolutely nothing to do with rights under the existing contract. United also suggests that even if the Court of Appeals were wrong on the representation issue, it was right on the jurisdictional matter because the Brotherhood is a minority representative on the property of United and we would have thought that this question was disposed off by your decision in John Wiley and Sons in which these question was raised. United, as I understand, it says Wiley and Sons on this point isn't applicable because there was a suit brought under Section 301 of the Labor Management Act which permit suits by minority representatives whereas, under the Railway Labor Act, it contemplates representational made by majority representatives in Wiley carrier can voluntarily treat but in minority representative, it can't be required to do so. Well, what United is comparing here is a suit to enforce an existing agreement with the question of what rights are if you try to go and bargain for a brand new agreement. This Court pointed out in John Wiley and Sons case that the Union on the non-surviving company was not seeking any right except rights based on an existing agreement and that's the situation here. The Brotherhood is not seeking any rights other than those based on existing agreement. We believe that the decision in International Association of Machinists v. Central Airlines in which this Court held that a Railway Labor Act agreement was enforceable under federal law as applicable. United says that well the IAM in that case was a majority representative and we see no basis to restrict the IAM -- to restrict that case to simply a majority representative. Now, United also takes a different attack than the jurisdiction and it argues strongly in its brief that in any event, the complaint should have been dismissed because as a matter of law, it says the contract did terminate when the merger took place. Now, it recognized that the Wiley case but it claims this is different. It says the basic difference is that this contract was entered into between carriers that are subject to the Civil Aeronautics Act, that the Board approved this, that the Board imposed employee protective conditions and these employee protective conditions met the needs of National Labor Policy which were the underlying basis of the Wiley decision. In the first place, the Board itself didn't say this. In the second place this --
Potter Stewart: It did impose protective conditions.
James L. Highsaw, Jr.: That's right. It imposed the modified Washington Job Protection --
Potter Stewart: Right.
James L. Highsaw, Jr.: -- Your Honor, that's right.
Potter Stewart: Go on.
James L. Highsaw, Jr.: But these conditions Your Honor, are designed primarily to take care of a man who loses his job and to give him compensation for a limited period of time. They're limited in time. They're not intended to equate contract rates. The Board itself never indicated that was the effect of them and if Your Honors will recall, under the Interstate Commerce Act where the Commission is required to impose employee protective conditions there's a specific provision in the statute saying that that does not supersede private contracts involving this. So, I think it's pretty difficult to say that the Board's conditions have greater impact or greater power than those imposed by the Interstate Commerce Commission. It's also directly contrary to all the practice in the railroad and airline industry by which although employee conditions have been imposed over a period of great many years, the parties still take over the collective bargaining agreements and they work these matters up under the collective bargaining agreement.
Potter Stewart: If this bargaining agreement did survive, is it still in effect?
James L. Highsaw, Jr.: Yes. Because under the agreement, it was to expire on February 1, 1962 unless 30 days notice were given accordance of the Railway Labor Act but this notice wasn't given, it continued on from year-to-year. And of course, United has never given this notice because this would be inconsistent with its position of the contract terminated on a merger, so the contract --
Potter Stewart: And in effect, the Brotherhood is not, is it?
James L. Highsaw, Jr.: That's right. Unless it didn't terminate on the date of the merger, it is -- as a result of the merger it is in effect today. United also suggests that the merger here is different in kind and quality and magnitude from the John Wiley merger. Well, I don't think you can decide these questions on the size of the carriers or the size of the companies and that sort of a principle what United's argument really comes down to is they say, “Well, it would be more difficult to work this out in this kind of a situation.” Well, this agreement contemplated that very problem. This Court in the Wiley case recognized that problem but said that this wasn't an insurmountable obstacle to enforcing the agreement. And in this particular situation, Article 1(b) of the collective bargaining agreement contemplated that there might be problems and contemplated that the parties should get together and work them out. That was the purpose of the provision that they have get together and decide on the procedure and the protection to the current employees and this was consistent with 30 years of practice under the railroad industry and the airline industry. So I don't believe that United can argue on this basis that the contract didn't survive the merger.
Earl Warren: Very well. Mr. Solicitor General.
Archibald Cox: Mr. Chief Justice, may it please the Court. The Government's interest in this case is chiefly through the National Mediation Board. The agency which was held we think wrongly, by the courts below to have exclusive jurisdiction. The Mediation Board also has a general concern with labor relations in the airlines industry and of course, a general concern with the interpretation and the administration of the Railway Labor Act which applies to the airlines as well as the railroads. Our position here is that the District Court did have jurisdiction to declare United's obligation to submit to an adjustment board which is created by this contract any claims that United was violating the rights of the employees under the Clerk's Agreement with the Capital. But that the District Court is obliged to stay at hand in passing and not pass on the substance of any of those claims in favor of the exclusive jurisdiction of the Adjustment Board created by the contract. To be a little more precise, we agree with the Clerks that the courts below were wrong in holding that this was a representation dispute and therefore, not justiciable. We also agree with the Clerks essentially, I think, on the proposition that the Wiley case establishes the obligation of the -- of United, the acquiring corporation to submit disputes arising under the contract with the acquired cooperation to arbitration, which is essentially the same here as submitting them to an adjustment board because there's no real difference with this case between the two. On the other hand, we part company with the petitioner. I'm not sure that we get in company with the United but we part company with petitioner. In thinking that they -- the District Court should not grant any further relief than that because we think the questions that arise concerning the substantive rights of the employees under this contract are questions within the primary jurisdiction of the Adjustment Board. I think --
Byron R. White: Federal District Court decided that if it survives at all, is that a need to question?
Archibald Cox: Well, I take if the question whether the contract survives at all, is a question of substantive law that the District Court could decide. I would think it having them argued, it would be appropriate for this Court to go ahead and decide it here.
Byron R. White: You don't think that's --
Archibald Cox: Not --
Byron R. White: -- could be arbitrary?
Archibald Cox: What?
Byron R. White: You don't think that the question --
Archibald Cox: Well, I'd -- when I said was the contract survived at all, I perhaps should have drawn a dis -- should not have spoken so broadly. I think whether the arbitration clause survives and binds United is a justiciable question and it's clearly so under the Wiley case.
Byron R. White: Let's assume that that is so, that the --
Archibald Cox: Then I read the Wiley, you -- assume the Court decides that.
Byron R. White: Yes, but the argument --
Archibald Cox: Then I read the Wiley case as indicating that it is open to the arbitrator to consider whether the merger has resulted in such changes in circumstances and so other practice, that some are all of the substantive obligations under the contract have expired. And when I said the contract, in answer to your question Justice White, I really was thinking only of the arbitration clause. The rest is where the Adjustment Board under our view.
Potter Stewart: The -- this -- this collect -- this agreement setup a system adjustment board?
Archibald Cox: This agreement setup the equivalent of a system adjustment board. That's the fact that I did want to emphasize.
Potter Stewart: On the Capital?
Archibald Cox: It appears on -- begins on page 31 Justice Stewart, sets up in Article 31, a method for the adjustment of grievances. You'll note a duly accredited representative who believes any provision of this agreement has been or has not been properly applied or interpreted shall have the right to take it up through the procedure. And then the provisions for the Board of Adjustment are over on page 32 and it sets up the equivalent of the railroad system Board of Adjustment. Indeed, I guess they use that name in the airlines also. I'd like to deal first with the ruling below and then come on to our views about the exclusive primary jurisdiction of the Adjustment Board. The question of jurisdiction here obviously turns upon what is in issue, what is drawn in issue by the complaint in this particular case. There's no arguing of the fact that there is in the picture, the Labor Relations picture of United Airlines and its relations with these unions. There are a number of questions of representations of the clerk's claim to be the exclusive bargaining representative and that's disputed. There are disputes concerning the particular crafts or classes that are appropriate. There is a possibility that the Clerks of Machinists are claiming overlapping jurisdiction. All those questions undoubtedly exist and some of them are before this Court, in cases in which the writ was granted two weeks ago. But none of those issues as I read the complaint are involved in the present case, which is concerned exclusively with rights under a collective bargaining agreement and rights unaffected by any question of representation. The heart of the present case if I read the complaint right, is in paragraph 18 of the complaint, on page 8 of the record. After referring to the merger, the complaint then says that carrier, meaning United, has refused to apply the terms of such agreement to any of these employees or to recognize any of the rights of any of these employees there under. Then it lists things like seniority, basis of pay, handling of grievances, dscipline and the rest, as the kind of rights involved. And then each subsequent paragraph of the complaint goes on and complains of United's refusal to apply the provisions of the agreement to any of the employees of Capital, for four or five paragraphs. Then over in paragraph 23, it refers specifically to the refusal to accept to process grievances in accordance with the procedures that I mentioned earlier. The complaint certainly does not expressly raise any questions of representation nor does the relief directly as requested invite any declaration or determination with respect to any question of representation. There's no claim made by the Brotherhood here that it is today the exclusive representative of any employees as I understand. There's no claim made here of the right to be the representative in the future as I read the complaint. Nor does it seem to me that this case indirectly turns upon any question of representation, or at least any relied question of representation. Certainly, there's no challenge to the fact that the Clerks were the representative at the time this contract was executed. Well, that's admitted. If that were drawn in question, that'd be another case, but it couldn't be drawn in question. They had a certification at the time and the contract itself recites that they were then the representative. The status of the contract today does not, as I understand it, depend in anyway upon whether the Clerks, is today, the majority representative. Under the Railway Labor Act, it has been the recognized view of everyone concerned for 30 years. As Mr. Highsaw points out in his reply brief, that even a change in the identity of the representative does not automatically terminate the collective bargaining agreement or the question that's often debated about what effect in NLRB certification has on the existing agreement, doesn't arise under the Railway Labor Act. There's a different -- different problem here, because in the railway industry as a result of statutes, of contract continue indefinitely until they are terminated under the terms of the statute or I suppose otherwise by operation of law, but they're not for a fix terms and then they may automatically lose their course.
William J. Brennan, Jr.: This -- by statute, this was of general without regard to the laws of (Voice Overlap).
Archibald Cox: The statute, I didn't mean to imply that the statute says anything about, without regard to the laws of representation. The statute just speaks of the duty to make it maintain and then prescribes a procedure for changing the status quo.
William J. Brennan, Jr.: That -- is this problem ever been --
Archibald Cox: It's not been litigated. You'll find that in Mr. Highsaw's replied brief of quotation from the Mediation Board summarizing its 30 years of practice. You will also find a similar statement in the first annual report of the National Mediation Board at pages 23 and 24. And I think I am right in saying that this has always been an accepted principle, certainly among the railroads of the Brotherhood and I had supposed that it's been carried over into the airline.
William O. Douglas: You stated on page 8 of your brief, this brief was filed in August that the election that is -- that's ordered by the Board has not yet taken into place. Is there anything -- any change in that since August?
Archibald Cox: Only that the litigation that's held it up has now reached this Court because certiorari has been granted.
William O. Douglas: But that is the one?
Archibald Cox: That's the same one. But that that I am arguing, that the validity of this contract and the obligations under this contract until some steps are taken to terminating are not in anyway dependent on the results of that election. We say here that --
William O. Douglas: But you do maintain that once that election was held then this -- this case becomes moot so to speak.
Archibald Cox: Once -- not quite there. Once the election is held and a representative is designated and the representative takes the required statutory steps to bring about a change in terms and conditions of employment, then this case will be terminated. And the real issue here is, we tried to suggest in our brief, is what is the effect of this contract during this period before a new representative is designated, and he begins negotiating as he unquestionably will a new contract by giving the notices required by the statute so forth. I suggest that if a change in the representative does not deprive a collective bargaining agreement of its validity, then a fortiori, the mere loss of a majority or possible loss of a majority would not have the effect of terminating the existing collecting bargaining agreement.Indeed, I doubt to whether that's true under the National Labor Relations Act. I don't think anybody has ever suggested that a defense to a suit to compel arbitration would be to show that the Union no longer represents the majority of the employee which is all that could be claimed here. So that we say this is simply a suit.
Byron R. White: That's been done in (Inaudible)
Archibald Cox: I don't know of any decision. I don't know.
Byron R. White: Or whether it's practiced?
Archibald Cox: No one has ever raised it. I know that -- I've said -- no one's ever raised it either way. I know I've said and I guess hundreds of arbitrations where nobody ever came in and said, “Well, that the Union is no longer -- we want an election to determine whether the Union is a representative of the majority before you conduct this arbitration.” The contract doesn't make any such expressed provision. The Wiley case of course, necessarily implies the contrary.
William O. Douglas: That was a contract, wasn't it?
Archibald Cox: That was a contract but that's what's being sued to enforce here as a contract. I think the Wiley case Mr. Justice, necessarily implies the contrary because there were only one-seventh, the number of employees covered by the contract that there were at the bigger concern that acquired it and it's exceedingly unlikely that the Union was the majority representative of the whole group.
Earl Warren: We'll recess. Solicitor General, you may continue with your argument.
Archibald Cox: Mr. Chief Justice, may it please the Court. Before the recess, I was arguing that this case not only directly involved in a claim of exclusive bargaining rights, but also that it did not indirectly raise any question of representation. There is one little wrinkle that I think I should mention that may perhaps be more complicated in the presentation I've made thus far. The -- included in this group of 2700 Capital employees that were represented by the Clerks and moved over to United, where 530 in classes that are often represented by Machinist. And apparently after the merger, those 530 were integrated in with the United's own machinists and if I read the record right, were also put under the collective bargaining agreement between United and the machinists. Now, I can -- one of the difficulties here is, I think, is when we talk about the contract as a lump really that claims here I would think is where a mass of specific claims that might arise under the contract. And I can't imagine one of those specific claims arising, on the claim of a former Capital machinist saying that this could -- he was being denied rights under the Capital collective bargaining agreement. And United replied, while you come under the Clerks agreement, and you thereby surrendered your rights under the old Capital agreement,” and his reply, “Well, I didn't intentionally waved them, and the machinist had no right to put me under their agreement or to bargain that sort of the change in my previous rights under the Capital agreement.”
Byron R. White: (Inaudible)
Archibald Cox: Well, I was -- oh, you mean whether they by joining specifically did give. Well, the question is whether they joined voluntarily. If they joined voluntarily, there might have been a personal waiver. If they don't join voluntarily, then I suppose it would be a claim whether the Union had the right to put them in under there without their consent. I'm coming to think of a way in which a question of representation conceivably could grow out of this. And the only one I could think of is then.
Byron R. White: (Inaudible)
Archibald Cox: In the Machinist agreement there is, yes. And apparently, they've been compelled to comply with it. If such a claim were made and if the individual machinist should attempt to say that the Machinist Union had no right to give up his rights under the Capital agreement, that that was beyond its powers, the bargaining representative, then I think there would be something that might be called a question of representation. It would seem to me, however, two things, one that that is too remote from the present controversy, too iffy, there are too many contingencies that might be the sort of personal waiver that Mr. Justice White suggests. The case may never arise. Furthermore, it involves only about one-fifth of all the employees who might have rights under this contract anyway. And I suggest that in terms of whether this whole case raises the dispute of representation that would be to have the tail wag the dog. And that that defense could be raised at an appropriate time where any individual machinist made a claim or a claim was made on his behalf.
Byron R. White: (Inaudible)
Archibald Cox: That was what I tried -- that was what I tried to suggest when I said that it would be to allow the tail to wag the dog, that the bigger part of the case would not be involved in this problem.
Byron R. White: (Inaudible) that the case here does involve both -- whether both of the parties (Inaudible) the other.
Archibald Cox: Yes.
Byron R. White: (Inaudible)
Archibald Cox: You might -- you might. Well, I would suggest that even as to the 530 that it's too iffy, too far varied to be -- to say at this stage it is a representation dispute even as to them.
Byron R. White: Does it mean here (Inaudible)
Archibald Cox: I don't think they claim it in this case. Whether they claim it in the proceedings before the Mediation Board, I would have to leave to them to say. I couldn't speak as to that.
Byron R. White: That the contract does -- does continue (Inaudible)?
Archibald Cox: Well it's -- I guess they've put it in both ways. They've said, even if they've put the claim in general terms and I suppose it applies to the 530. They also say even if we're wrong as to 530, we are right as to the others. Now, taking what I've said thus far as predicate, I turn more precisely to the question of jurisdiction, the legal problems. First, it seems to me that federal jurisdiction here is squarely positive upon 28 U.S.C. Section 1331, an action arising under the laws of the United States where the jurisdictional amount is satisfied and upon 28 U.S.C. 1337, where no jurisdictional amount is required an action arising under a law regulating commerce. Insofar as I can see, both those points are squarely adjudicated by International Association of Machinists against Central Airlines in 372 U.S.682. Now, United says that that case is distinguishable because in the present instance the -- excuse me -- because in the present instance, the Clerks may not have a majority. And they say that the Railway Labor Act affects the contract only if the Clerks are designated by a majority. But of course the relevant section of the Railway Labor Act, Section 180 -- Section 204, printed on pages 19 and 20 of my brief, does not speak in terms of present majority status. It speaks in terms of the past. It says it should be the duty of every carrier and of its employees acting through their representative, selected in accordance with the provisions of Section 2 and so on of this title. The union was so selective. It didn't have that status at the time the contract was negotiated, and that's all that the statute requires it doesn't say about continuing the majority status or continuing the selection. Coming now to the reasoning of the court below, it seems to me that it follows from what I've already said that this cannot be said to be a nonjusticiable dispute over representation. Certainly, the Mediation Board has no power to resolve this controversy concerning the rights of employees or the Union to arbitrate or any other substantive rights under this contract. Its sole power is to determine afar the future through election machinery who will be the representatives to negotiate contracts in the future. It has no practical power or legal power with respect to the contract and its status during the intervening period. The same considerations, I think, show that this is not a case such as so illustrated by some other cases in this Court, where the question -- where the case involves a question of representation and there is nobody with power to adjudicate. The three cases relied on by the courts below are -- I submit quite plainly distinguishable of the Switchmen's Union case in 321 U.S., was a case in which one union, the BRT, sought to be certified for unit made up of all yardmen allover the New York Central System. The Switchmen's Union sought to be certified for a unit -- a lesser included unit, made up of the yardmen in some of yards of the New York Central System. Clearly, the end of the controversy was who would be certified, the intermediate stage of the controversy would be what would be the applicable craft or class and both of those are questions you could find in the National Mediation Board, but something quite different from the present case. The general committee against the Katy Railroad in 320 U.S. decided the same day, did involve a dispute which I guess no one had power to adjudicate. There, the issue was which of two unions, the engineers or firemen, had authority to negotiate rules concerning the assignment of fireman to the job of engineer when the engineer who held that job failed to show up. There were -- one contract was negotiated by the engineers then the firemen's union negotiated another contract and then the engineers brought suit for a declaration that the firemen had exceeded their statutory authority in negotiating their contract on this subject. At the Court's opinions in this case as well as the briefs, makes it very clear that the whole issue was in terms of the statutory authority of the firemen to negotiate that contract. The case would be conferrable to this, I think, if there were any challenge to the authority of the Clerks who had negotiated this contract at the time they negotiated, because there is no such challenge. The point that their authority at that time is admitted, it's not in issue, and the case is therefore distinguishable. It seems to us, therefore, that the considerations I have mentioned do require reversal of the decision of the Court of Appeals and the next question becomes should this Court then send the matter back to have all the remaining questions considered in the courts below or should some of the other questions that have been argued here, be decided here in view of the protracted character of this litigation. And it seems to us that it would be appropriate and though it's obviously not essential for this Court to decide it. There are two principles, I think, the Court should make plain in its opinion. One is that the obligation to submit the dispute to the Adjustment Board that survives the merger, on that point, it seems to us that the Wiley case is plainly controlling. The only attempted distinction which has I think even the color of merit is the argument that the Civil Aeronautics Board by providing this protective conditions occupied the field as it were and excluded the continued operation of the contract or excluded the operation of the policy at considerations that led to the Wiley decision. But I think the answer to that really is that the predictive conditions were not intended to and do not occupy the same field that this collective bargaining agreement occupied. If you look at the conditions in Section 1 on page 59 of the record, it says that the -- it is the intent that such conditions are to be restricted to those changes in employment, solely due to and resulting from such merger. Fluctuations rises and falls of changes in volume of character of employment brought about solely by other causes are not covered by or intended to be covered by this order. There are many rights given by this contract, which wholly apart and unrelated to things that might happen from the merger. To take the simplest case of all, the claim that discipline or discharge is unjust because the employee didn't do what he was alleged to do or because that is a just cause for this charge, or take a controversy over seniority, bidding for jobs at some point that only Capital served and to which no new employees have been transferred. One can think of any number of things which would protect employees under this agreement, that the protective conditions being concerned with the displacement of employees and loss of jobs would have nothing to do with it. Now, we do think -- again, really following the analogy of the Wiley case that the substantive rights under this contract are rights which are for the Adjustment Board to determine when a specific case is processed under the grievance procedure. There are two lines of authority that seem to us to support that view, one is the Delaware, Lackawanna against Slocum and that line of cases holding that the courts may not act in a matter over which they Railway Adjustment Boards have jurisdiction. And the second is exemplified by a case TWA against Koppal and 345 U.S. 653, holding that it was Missouri law and I think this Court would adopt the same view, that where an arbitration clause was available in a contract then the employee must resort to that machinery before he may bring suit in the courts. The Brotherhood in its reply brief attempts to deal with these points to the number of ways and it's easiest to take each of the up seriatim. They say, first, that the decision in Wiley and Sons does not preclude broader relief. Well that's true. It's the Slocum case and TWA against Koppal in that line of case that precludes broader relief and Wiley case certainly doesn't entitle them to broader relief because all it held was that the dispute might go to arbitration. Then they say that the merger contract provided that United would assume all the debts and liabilities of Capital, and that Delaware law required United to assume the obligations of the Brotherhood-Capital agreement. There are three answers I think. First, I doubt whether there would be any federal jurisdiction in this case either to enforce the merger contract or to enforce the Delaware law. Second, whatever obligation the merger contract imposes or the Delaware statute imposes, it was at most an obligation to comply with the Clerks-Capital agreement which provides for its enforcement through the Adjustment Board. You can't get away from the Adjustment Board by saying that there is an obligation to comply with that agreement. I see that my time has expired. I'll leave the rest in my brief.
Stuart Bernstein: May it please the Court.
Earl Warren: Mr. Bernstein?
Stuart Bernstein: This case was tried in the District Court by cross motions for summary judgments supported affidavits of both parties. The complaint -- the naked complaint, I would concede clearly appears to state a simple contract claim. The affidavits, however, set out some of the background of the situation and some of the relationships of the parties here, analyze to this that the Court addressed itself in deciding that there was no jurisdiction. Mr. Highsaw has stated the facts and he and I just simply don't see them the same way and I like to review them rather quickly, if I may, to put this case in its perspective. The Capital-United merger was unique and if you ascribe some uniqueness to the result of this contract, I think it arises out of that. The examiner found that this was the first time in the history of the industry that a major carrier faced foreclosure of a creditor's land, this was the Vickers which held the paper on the Vicon aircraft and was about to foreclose. The Court of Appeals which ultimately reviewed the merger found that it was an emergency crash measure that Capital wasn't extremist. And it was -- in this posture, that the merger agreement was entered into and the matter was brought before the Civil Aeronautics Board. Now, one of the things that the Board was most concerned with and you find references throughout the decision of the examiner and of the Board, was what would happen the employees of Capital in either event if the merger would be approved or if the merger were to be denied because the Civil Aeronautics Board under at Section 408 of the Federal Aviation Act has authority to approve mergers if it finds them in the public interest and on such terms and conditions as it finds just unreasonable and it is under this clause that the labor protective provisions discussed by Mr. Cox are imposed by the Board. Now, the Board found the CAB, I better refer to them this, we know which board we're talking about here. The CAB found that if the merger were not improved, Capital would go out of business and the 7600 employees would lose their employment. However, if the merger were improved, not only would their employment continue since United had made an undertaking that all employees other than officers of Capital would become employees of United. But that in addition, their terms and conditions of employment at United would be equal or superior to those that they enjoyed at Capital. And at the same time, the Board found that the merger would be in the public interest because the deficit of about $1,700,000 which Capital had in 1959, the year of preceding the merger hearing, that the savings which would result from the consolidation of facilities and employees at the 12 common points served by the two carriers would be more than enough to wipe out their deficit. That is the saving was estimated about $1,900,000. Now, all of these was before the Board, all these was considered and United's position that it could improve the conditions of employment was predicated on its position that this employees would come under United's collective bargaining agreements or United's terms and conditions of employment unilaterally imposed for its employees were not organized and these were in almost areas in superior to those of Capital. So for example, the examiner found that the pensions would improve, that there would be an average increase for 50% of the Capital employees of $225 a year in their wages. But their insurance benefits, health and accident benefits, dependency coverage, all these would improve. Our affidavits additionally showed that the vacation benefits would be improved, that matters of this kind would all be superior at the United rather than at Capital. Now, when we put this before the courts before, our position wasn't -- we did this in an off-handed matters in this although perhaps of no legal significance nonetheless this is the case, I suppose we were trying to impress the Court with the equity of the situation that nobody was really being hurt by this. But I think the Wiley case has placed this in a different posture and this now does become a matter of legal significance so if this Court was obviously concerned with the impact of an unregulated merger on the interest of employees and since this is a regulated merger and the impact was otherwise, I think it now assume some legal significance, and I don't think I'm quite as diffident about this point as I was in earlier stages of this litigation. While the Brotherhood intervened in this proceeding before the CAB and it said, “We ask you to impose on United as a condition of the merger our collective bargaining agreement which we had with Capital.” And they said, “The reason we're doing this,” this is in the examiner's report, “is because the merger agreement makes no provision for its continuation.” Now, we argue this, the Brotherhood's position was twofold. One, that as a matter of law it survived and two, in any event, it should be imposed as a condition under the 408 authority of the Board, composed just and reasonable conditions, we defended. We said, “It does not survive as a matter of law and in any event, it would be an onerous condition to impose on us to require us to have duplicate and conflicting working conditions for employees working side by side.” Now, the argument is made that this is the first time of 30 years that the collective bargaining agreements were not assumed by the surviving carrier and mergers under the Railway Labor Act under the -- yes, be the railroads or airlines under the Railroad Labor Act. I pointed out that this was a unique merger the, first one of its kind where it was done so to speak under the shotgun. And it was necessary if United was to realize the savings of $1,900,000 to immediately functionally integrate Capital into United system so that overnight, the night of the merger took place on June 1. On May 31st, I was in a hotel in Detroit and on the evening of May 31st, they took it off across the streets at Capital and the next morning it's says United and on June 1st, the airplane said United and not Capital. The disappearance of Capital was immediate and complete. It have to be else, United could not have possibly gone into this merger under these conditions. Now Mr. Highsaw says, when the Board really didn't pass on it because counsel made statement at the Court. But what happened was the Board said about this contract, this is a matter which ought to arise under the labor protective provisions. One of the provisions was that if there was going to be any rearrangement of employees as a result of the merger, the carrier should give notice to that affect. And it said, “You should give notice under that provision which is Section 11 of the labor protective provisions to all employees who will be affected by the laws of representation and collective bargaining agreement.” Now, that didn't mean that if United was to give that notice, that contract didn't collapse at that point and I simply don't know what the Board was saying. Well, we went ahead and gave such notice. This is in the record. And immediately, the Brotherhood went back to the Board and its brief -- the petition for reconsideration and said, “United put this notice up, we're going to lose our contract and we want you to reconsider what you did.” And the Board turned down that petition. At that point, the Brotherhood petitioned the Court of Appeals to review and they raise the same questions about the surviving -- the survival of this contract, the same points that were raised in the District Court. As a matter of fact the affidavit that they filed in support of their motion for a stay, when it relates to the contract benefits was the employees are alleged to have lost by virtue of United's refusal to take over this contract. Those provisions are verbatim. The same in the affidavits filed in the Court of Appeals for the District of Columbia and the District Court in this case in one of the affidavits in this record. They make this sa -- same allegations. This was all before the Court of Appeals and a motion for a stay was argued a few days before the merger was to become effective, these very points were briefed and argued and the Court of Appeals denied the stay. Well then -- then the Brotherhood went back to the CAB to recons -- to -- for an -- and asked the CAB to stay. And they said, “The reason we want you to do this among others is that we were told in Court by counsel for the CAB that you didn't purport to pass on the question of whether this survived as a matter of law or contract. Now, Mr. Highsaw said and that what the counsel said, was that the matters should be left to private litigation. I think he must spoke himself, what counsel said was, it should be left to private argument, private argument before the Court of Appeals at that time. And it was argued by Mr. Highsaw and by myself before the Court of Appeals about on -- I think on May 23rd, 1961. He did not say to private litigation but private argument and it was so argued. Well then, the hearing schedule was setup, a briefing schedule was setup in the Court of Appeals and Brotherhood did not file its brief and finally after motions to delay on November 6th, November 6th, withdrew its petition for a review from the Court of Appeals and three days later, started this action, alleging that the contract was not assumed by United and did not survive. Now, I want to stop at this point if you please Your Honors, to point out that at this juncture, I think that the institution at this suit was an interference with the whole scheme under the Federal Aviation Act. And I wish to cite a case out of my embarrassment, not cited in our brief to this Court, Pan American and World Airways versus United States, 371 U.S. 296, which raises many analogies to the case we have here and in that case, the Court before jurisdiction to the CAB even though the CAB did not have any proceeding brought before it. And there, the CAB had asked the Attorney General to institute an antitrust suit under the Sherman Act against Pan Am, Panagra and Grace. It was under three counts of the Sher -- three points of the Sherman Act that had to do with the carving up of the markets in South America that have routes between the East Coast of the United States and the West Coast of South America and somewhere else between Central America and the United States. The District Court dismissed as to Panagra and Grace but found that Pan American was guilty of an antitrust violation. It was civil action not guilty but found that there was proper basis for the antitrust action against Pan American. The case that came up to this Court directly, and this Court held that the CAB under its authority under Section 411 of the Federal Aviation Act, should take control of this matter because it was so intimately related to federally -- to freight regulation of air transport and that the Court should not intrude, and they said otherwise would have two agencies looking at these matters and it ought to be left to the CAB. Well that was so here and certainly more so in this situation, where it was before the CAB, there is no question with the CAB, would have authority to either impose the contract or to say the contract would not have survived, as a matter of fact this is precisely what the CAB did in a -- an earlier merger involving Pan American and American Overseas Airways, in Kent versus CAB. There, the two groups of flight engineers or the two companies couldn't agree on their seniority, how to merge that. The Board took jurisdiction again and applied seniority in a strict basis of length of service. Yes sir?
Byron R. White: (Inaudible)
Stuart Bernstein: To impose such --
Byron R. White: Yes.
Stuart Bernstein: -- to do this. This is under Section 408 of the Federal (Voice Overlap) -- yes sir?
Byron R. White: Let's assume that it had said or we agree with the Union that -- let's say, in the case of these 533 people, we agree, we're going to impose this condition of the merger that the 530 people will be represented by the Union.
Stuart Bernstein: Yes sir.
Byron R. White: Even though there's another union in the picture for the balance of those machinists.
Stuart Bernstein: I think sir that we would have had to assume that as a condition of the merger or have had the alternative of not going at with the merger.
Byron R. White: So that CAB could make that sort of a provision or could have said expressly that the -- this collective bargaining contract --
Stuart Bernstein: Survives.
Byron R. White: -- expires in its entirety?
Stuart Bernstein: Yes sir, it could have done that. Now, our choice would have been then to appeal that to the Court of Appeals and say this was an abuse of discretion --
Byron R. White: You ever heard of CAB terminating collective bargaining contract?
Stuart Bernstein: Yes sir. Well, not directly that way. In the Kent versus the CAB which I mentioned, the result was that after this -- after the CAB did direct the integration of seniority on straight length of service, the flight engineer group of Pan Am started a proceeding against the CAB claiming it just simply didn't have this kind of authority and alleging among other things that it had a contract with Pan Am which said that seniority would be based on the length of service with Pan Am and not with any other airline. And the Court of Appeals held that the CAB did have authority to abrogate private contracts and in fact, that the CAB in effect had done that or even though it was only an indirect result of the CAB action, not a direct result. But the Court of Appeals for the District of Columbia treated it, as so that CAB had revoked the contract and held it clearly have that kind of authority.
Byron R. White: CAB then needn't all consider the jurisdiction of the National Mediation Board?
Stuart Bernstein: Oh, I do not say that sir. I say that the CAB would have this authority to impose it as a condition of a merger.
Byron R. White: Then there is a representation of dispute here?
Stuart Bernstein: Yes sir, I do. Yes I do.
Byron R. White: Well if there is, there was before the Board.
Stuart Bernstein: Well, this is -- the difficulty here is placing labels on this kind of litigation. If you view this --
Byron R. White: No, but it's enough of a label for you to claim that the District Court didn't have jurisdiction.
Stuart Bernstein: That's correct. That's correct sir.
Byron R. White: And if it didn't, why would the CAB?
Stuart Bernstein: If you view this as simply a matter of does this contract survived for the period of time between the merger and the time a new representative is selected, if any, through a collect -- through a bargaining -- the representation election by the NMB, if it's viewed that narrowly, then it is a contract question and the CAB could have decided it.
Byron R. White: Well then, and so for the District Court?
Stuart Bernstein: No sir.
Byron R. White: Why?
Stuart Bernstein: Because the question is really not that limited before the District Court because there, you do have the representation questions which come to bearing. And if the District Court had viewed it that narrowly, then what would have happen to the CAB jurisdiction.
Byron R. White: Would you agree essentially -- you agree with the -- would you agree with the Solicitor General there as to the --
Stuart Bernstein: With respect to what? I'm frankly following one thing if you said --
Byron R. White: It says that you should view it as effective this interim period. But this case involved the jurisdiction of the District Court -- at least it's got jurisdiction to determine what is going to happen during this interim period.
Stuart Bernstein: Well, if Your Honor please, this is the difficulty with the -- perhaps stating the facts, so the piecemeal of the fact was that these employees became -- this union became a minority union, a unit for only a minority of the craft or class. Now this was part of the fact before -- brought before the District Court and that indicated that under the Railway Labor Act, this union could not maintain this action. This requires my discussion of the other basis for our attack on jurisdiction. We actually based it on three points. One was that they were not justiciable. Second, that in any event, there was no federal jurisdiction because of the 301 difference under the National Labor Relations Act and third, because of the position of the CAB. Now the CAB, I not only concede but I assert could have imposed this essay condition of the merger or it could have said it will not be effective. But it was a different kind of dispute when brought in the Court in view of the fact that there was this overriding representation problem arising out of its minority status in the conflict of jurisdiction with the International Association of Machinists. This couldn't be -- couldn't be avoided. Now, if the CAB had acted and had said, you must assume this contract, we would have been free, not to go ahead with the merger. This is one of the choices available to us. I would -- now, I could shift to the other basis of the 301, 204 jurisdictional argument if the Court please. In the Wiley case that was held, that the fact that the Wiley union became a minority representative after the merger, did not foreclose it from bringing an action to enforcing arbitration provisions of the contract and it based it on an interpretation of Section 301 of the Labor Management Relations Act and there simply is no comparable provision under the Railway Labor Act. Now, the difficulty is that prior to the enactment of Section 301, it was virtually impossible for a national labor organization to maintain a federal action or to be sued in a federal court because its jurisdiction for diversity purposes would depend on the citizenship of each of its members. And since any national union has members in virtually every state, it was -- it would be almost impossible to ever find a diversity suit. And so 301 was amended, was added up to the statute, in order to enable contracts to be brought under the National Labor Relations Act against unions and also allow unions to maintain suits, and that was what led to the various kinds of litigation before this Court on the various arbitration cases. But Section 20 -- but in Wiley, it was said that the fact that the Union lost its majority status, did not mean that it could not maintain a 301 action and it's cited Retail Clerks versus Lion Dry Goods. And in that case, what the Court said was that 301 refers to representatives of employees, it does not say majority representatives, because if -- the Court said if it intended that, it would have referred to the Section 1(a), which is the means of providing for majority representatives under the National Labor Relations Act. But Section 204, on which jurisdiction has asserted here by the United States, states that it will be that system boards will be established by representatives of employees designated in accordance with the provisions of this title. And the only way you can designate a representative is through a bargaining elect -- representation election by which a majority representative is selected for the entire craft or class. Now, after the merger, this union lost its status as the representative for the entire craft or class, it makes no claim that it represents the entire craft or class at this point. It only represents those employees who are formally employed by Capital, that's the sole basis for its assertion at this point. Now to say that, because it was originally designated as a majority representative, that status therefore continues -- creates some other statutory problems because Section 211 which contains comparable language and says that employees selected in accordance with the provisions of this Act may enter into agreements requiring employees to become members of labor organizations would also carry over here because here, we had a union security agreement which was negotiated in Capital and would carry over to United, would we say that because this union security agreement was originally entered into it at that time that the Brotherhood was the majority representative that therefore, it will continue at United. Would this mean that new employees hired at United for example who were in the Clerk of craft or class, would be required to join Brotherhood? Or would it mean that the 530 or the 2700 employees who formally worked at Capital, must continue to maintain their membership? Now, when we posed these problems in our brief, we got two different answers from the Brotherhood. When we said that you have showed no way in which an employee could have been hurt here because of the improved working conditions, so what is your complaint? Their response was, “Well, we have rights too, we as the Union, there is a union security clause here. We have a right under that.” But then what we said to them, “He would certainly wouldn't suggest that we arbitrate whether or not you would require employees to continue to maintain their membership in the Brotherhood after the merger, or that new employees would become members of the Brotherhood.” Their response is, “We are not talking about membership but we're talking about employee rights.” You see you would get a shifting argument here when you focus in on the fact that nobody has been hurt, the answer is, “Well, maybe the Union has been hurt.” But when you say, but the Union certainly can't assert that it can force employees to join the Union after the merger, when it no longer is the majority collective bargaining representative says, “Well, we're not talking about that at all. We're talking about the employee contract rights.” And this is -- one of the anomalies of the case here is that usually when one is asserting that a collective bargaining agreement ought to survive, the usual situation is that the employees are better off forth. They have gained something as a result. But the Congress is true here, because if in fact this contract were to be imposed on United, United could insist on reducing the vacations, insist on paying reduced wages and the thing just become an absolute anomaly. Now, this is the difficulty with the position as I see it that the Government is asserting here, they asked this Court to direct United to arbitrate these matters. But what is there to arbitrate, are you to give us a general direction to arbitrate anything that might come up in the future either say anything any contract provision is to be arbitrated or are we to talk about specific clients? A specific employee grievance that this happened to me on such a day and therefore, I want some relief. But where is that? Where is that, it simply isn't in this case. Now there are general allegations that some grievances were filed and that we refused -- pardon?
Byron R. White: It might have written the claim and not on the -- as to particularly wrong to particular employee but there is a claim that -- that (a), the arbitration clause survived and (b), some other provisions of the contract survived.
Stuart Bernstein: Well, if Your Honor please, these have not been identified in the complaint. All that the complaint says that the entire--
Byron R. White: If you're saying that --
Stuart Bernstein: -- the entire thing survives.
Byron R. White: What you're saying is that there's no case of controversy here.
Stuart Bernstein: Well, I say that when you compel arbitration, this Court has always said that the Court not only finds that the obligation to arbitrate is present but also that the issues are arbitrable. I asked whether the arbitrable issues now.
Byron R. White: Well, the survival of the other terms in the contract.
Stuart Bernstein: But you see sir, the difficulty I have with that is, for example what terms will the Union suggest that the vacation clause of the Brotherhood agreement survived, when it's inferior to the vacation --
Byron R. White: What if it says the entire contract?
Stuart Bernstein: Again, I have -- this is my problem.
Byron R. White: (Voice Overlap) explain this?
Stuart Bernstein: There are an infinite number of kinds of things one could conjure up that you should say should be arbitrated under this. Now, is the Court to direct a general kind of arbitration of anything that the Union suggests, and this puts us into another position. Mr. Highsaw said the contract here did not expire and continues from year-to-year. If the contract is terminable on 30 days notice by its terms and has been since February of 1962, so that if United had acted out over an abundance of caution, I suppose it might have terminated the contract in February 1962 saying that we don't agree, we're bombed and in any event we're terminating it. What this would mean is that if we were directed to arbitrate there would be nothing to prevent us from not giving 30 days notice to terminate this contract and then what are we left with? If no employee grievances have come up now, to this point, then what is to be arbitrated? What I am simply suggesting Mr. Justice White is I don't know how we can be directed to arbitrate issues which haven't been identified and this was a point made in the Wiley case incidentally when it was pointed out that a union could abandon its claim to arbitrate by not identifying them for example. Now here, not only has the claim has not been identified but as I say the only -- I think the only thing that I could think of in which an employee might have had a grievance was for discriminatory discharge or dismissal, arbitrary dismissal or something of that kind, because the ordinary working conditions are superior as I pointed out under the United arrangement. But no such thing has happened and no such thing has been alleged, there is no claim of that kind in this record. When the Court directed that -- let's go back and see if there has been any kind of arbitrary action. If you find some and if you want to arbitrate them, then arbitrate them. Could we arbitrate that? If the Union can arbitrate, can we say, “Alright, we want the extra money back. We paid you fellows $225 or more. We want that money back.”
Byron R. White: Now what if the Union goes into the -- to the surviving employer like the Union -- the Capital union goes to United's -- the United personnel manager or president right after the merger, it says I want to sit down and talk to you about the situation of these 500 fellows -- these 500 in Phoenix and their status under this contract.
Stuart Bernstein: Well --
Byron R. White: The United says, “Now, go on. Get out of here,” that contract's dead. Long dead. I don't want to talk you at all. I won't talk to you.” And he says, “Well, you've got to talk to them,” in the Union, in the Unite says -- a fellow says, “Well, what's your specific problem?” Alright, “That isn't the question. My question is, we represent these 500 people. We want to make sure that we had an arrangement with the United -- with the Capital people having to handle grievances and things like that. I just want to talk to you about it, make sure we understand each other.” “Now get out of here.” And the Union goes to court and says -- it says, “I want the arbitrator to decide whether this contract survives, whether any or all of it survives, and whether we really are the bargaining representatives for this people or not.” Isn't that specific enough for you?
Stuart Bernstein: I'm sorry. I do not believe it is. And I'm not going to be evasive about this but the fact of the matter was that if I win the 530 employees were placed under the machinist contract at United which conflicted with the Brotherhood contract, United did invite them -- the Brotherhood answers -- talk to them about the integration of the seniority of these employees. And they refuse to do so. It's a matter of record here. And it's one thing that can draw possibilities, but this is what did happen in fact. And in fact what happened is that in November of 1960, Capital met with Brotherhood and said to it, “What do you propose as conditions to be applied after the merger? That is, what you think the protections ought to be?” And because Capital could not guarantee that United would go along with what was agreed on, the Brotherhood refused to say anything. Now, they convert this into a statement that Capital said, “United won't be bound by anything we agreed too,” but that is not what was said. What was said was, that we can't guarantee that and it may well be that if Cap -- if the Brotherhood come up with specific suggestions, these would have been completely acceptable, but they never did. I hesitate to scribe motivation here, Your Honor. This is what drives me back to the fact and I think this really is ultimately a representation dispute. You get this pattern of coming up to the -- to the threshold and backing off. You meet with Capital. And Capital says, “Well what are your proposals?” Well you say that you can't guarantee that United will take them, so we won't tell you,” and then they back off. We get to the Court of Appeals. It looks like they're going to have to file a brief and get a decision on this thing and incidentally, there was a decision in the early 1962, get back off and start over again. But what is the reason for this procrastination, this expansion of litigation. Then I would submit it's an order to assist the general organizing campaign that's going on to organizing the entire group of employees at United, the 13,000 of them. And -- but for the litigation that Mr. Cox referred to which is now before this Court, which will be argued I think sometime in January, that election would have been held a long time ago. And I would guess that once the election would have been held, then Brotherhood wouldn't have abandoned this action as it has a real action along the way. It went to the Mediation Board two weeks after the District Court dismissed this complaint.
William J. Brennan, Jr.: You mean once the election tells them what?
Stuart Bernstein: Well, if they didn't win, I suppose that somebody else might have a say about the matter. I think once the election was held that would have had ended. Because I think the stakes are rather high and bargaining group of 13,000 is considerably more significant than 2700. Otherwise, I don't know how you can explain the conduct of getting this case before the Court of Appeals, for the District of Columbia. And every issue that could have been raised in this proceeding in the District Court, and then just when you're going to get the briefing, you dismissed and three days later, start all over again. I can see nothing in it but delay. I have nothing further, if the Court please, with respect to this matter. It seems to me that when we're all done with it, the employees are in the peculiar position of being better off before -- because they lost their contract. I will concede that there are many advantages to having a collective bargaining agreement on your behalf. That's protection against arbitrary action. It's a protection against many things but these didn't happen. And I don't think we can direct arbitration here on the assumption that might have happened but they didn't happen. The employees are far better off here because of the result. And if the contract is directed to be imposed on United as Brotherhood suggest, employees will suffer. For if we'd arbitrate, I don't know what were to arbitrate, because maybe we wouldn't want to arbitrate some of the reductions as well as some of the improvements. For that reason, I think that the general posture here Your Honor, is that there was no ultimate federal jurisdiction in this case. There was no -- not a justiciable issue because what is at the bottom here is a representation of dispute over the bargaining rights for 13,000 employees, all the United employees in this craft or class. I don't see how a craft or class for less on the entire group at a -- at an airline under the Railway Labor Act just we have set it out in our brief could claim any rights under the Railway Labor Act. There's action of anything, if it was justiciable at all would have to be based on diversity. And there simply is no diverse up here -- diversity here despite the fact that it was alleged in the complaint. Because this is a voluntary, unincorporated association and I'm certain that there are members you know in Delaware where United is incorporated, in Illinois where United has its principal place of business. Thank you very much.
Earl Warren: Mr. Highsaw.
James L. Highsaw, Jr.: May it please the Court. First, I'd like to say a few words about this matter the Civil Aeronautics Board. As I understood, counsel he stated that it was the United to position before the Board that the Board had the power to do this and he empathetically says that they had the power to take care of the situation now. Well I would like to read to you -- I have a brief of United dated January 23, 1961, of the Civil Aeronautics Board in this case on page 36. I'm writing from and I'll hand it to count. Sir.
Byron R. White: Who's brief is that?
James L. Highsaw, Jr.: This is the brief of the United Airlines to the Civil Aeronautics Board in the United-Capital merger case, Docket Number 11699, dated January 23, 1961 signed by counsel for the law firm from which counsel is a member. And I'll hand in this brief after I get through so he can check it as to the accuracy of my reading. And I'm reading from page 36. It says, “The IAM-BRC exception to examiner's refusal to impose a wholly new condition requiring that Capital's collective bargaining agreements to be recognize as effective after the merger must also be rejected. First of all, the legal question as to the effectiveness of Capital's collective bargaining agreement is not one for resolution by the Board under the Federal Aviation Act.” He say's other things but that's all he says on that particular point. Now, I refer to that just for the -- I don't agree with that by the way. I think the Board had power to impose conditions here but it was not a mandatory power, it was a power within their discretion. They decided not to utilize it. And this left the matter for the Brotherhood and United to litigate about. I think the complete switching position of United before the Board and there before this Court is simply indicative of what practically all our arguments here. It's the kind --
Byron R. White: You do then say that the Board could have dispose that matter.
James L. Highsaw, Jr.: I think they --
Byron R. White: That they did have the power to be --
James L. Highsaw, Jr.: Yes, that's right. But I don't think they had to. That's the point that I make. And I -- when they refuse to exercise their discretion and we were left with it --
Byron R. White: And do you think it was a -- do you think it was right that they didn't? I mean, was it permissible if they did not dispose off --
James L. Highsaw, Jr.: I think it was permissible if they did not dispose, yes Your Honor.
William J. Brennan, Jr.: Well then, how do you answer Mr. Bernstein's argument because that involves -- he probably dealt within the Panagra case.
James L. Highsaw, Jr.: Well, I don't think that the Panagra case and the Kent -- in the Kent case which he -- which he also say that it involved anything there to the same problem. In the Kent case, I argued. I get before the Second Circuit and I handled it all the way through the Court. And this was a case which arose long after two or three years after the Pan American-American Overseas merger and it arose because there was then a conflict on the property of Pan American which prevented the merger from being effectuated and the Board moved in under those circumstances and said that we are acting here because we have to effect -- we have to make -- carry out and see that our order to effectuate the merger --
Byron R. White: Yes, but you're saying, you don't -- you say the Board could leave this matter unresolved although it had the power to get a hold of it, then you don't rest your argument that they didn't or shouldn't deal with it on the jurisdiction of the National Mediation Board at all.
James L. Highsaw, Jr.: No.
Byron R. White: I mean, if they had -- they shouldn't have just left it alone just out of deference to the National Mediation Board.
James L. Highsaw, Jr.: No. I don't think that's the reason they did it. I don't -- I do -- and of course they didn't say, so I don't know but I don't believe that -- I don't believe that is said. And the Panagra case involved problems as I recollect of statutory interpretation which we don't, we don't have involved in this case. The Board's original decision was a desire of recollecting, it had no statutory power in that situation to act and I think that's the difference in the situation. Now, referring to United's position I -- as I say, I think there are switchers indicative of a number of their arguments, it's kind of 'any old port in the storm' kind of a situation. Maybe they've just been trying to prevent this issue of the survivality of this contract from being litigated anywhere.
Byron R. White: Well what do you want the -- what do you think the arbitrator under the --
James L. Highsaw, Jr.: Well, I don't think --
Byron R. White: -- (Voice Overlap) issue before the arbitrator?
James L. Highsaw, Jr.: I don't -- well the only issue I think that ought to be submitted to an arbitrator, Your Honor, is the question of whether or not the particular employee has agreements because United violated the contract. I don't think they should submit to the arbitrator the question of whether the contract survive the merger --
Byron R. White: Alright --
James L. Highsaw, Jr.: -- I think the Court should decide that.
Byron R. White: Yes, I know. What if the Court says that it won't decide that, then what would you like?
James L. Highsaw, Jr.: Well, if the Court says that we won't decide that --
Byron R. White: Then all we decide is the -- is that the arbitration clause survives, then what are you going to do?
James L. Highsaw, Jr.: Well if they -- if that's what the Court decides, then I think that the Court also ought to make clear to United, that United should sit down with the Brotherhood in good faith under this last clause of Article 1(b) of the collective bargaining agreement to negotiate in good faith about the procedure to be followed and they --
Byron R. White: What if the Court doesn't say it, all they've decided is this, that the arbitration clause survives and the Court and the court below has jurisdiction to order arbitration about something.
James L. Highsaw, Jr.: Well, if that is all that the Court says and then I think that the rights of the employees in this situation will be defeated. Because all it will then come before arbitrator are those grievances which may involve particular narrow portions of the agreement of which they (Voice Overlap).
Byron R. White: But what else do you want except to protect the rights of employees?
James L. Highsaw, Jr.: Well, we be -- because of the fact Your -- because of the uncertainty of this agreement and the whole situation that has prevailed for three years, it's not been a normal situation. You've not been having employees coming and filing grievances. They're under an absolute unilateral company regulations in which the company is in the position to fire them.
Byron R. White: I know but at --
James L. Highsaw, Jr.: You don't have that kind of a situation --
Byron R. White: But if the Court determined that the arbitration clause survives --
James L. Highsaw, Jr.: Yes.
Byron R. White: -- and that grievances were arbitrable under this --
James L. Highsaw, Jr.: Yes, sir.
Byron R. White: -- if there were any --
James L. Highsaw, Jr.: Yes.
Byron R. White: -- then all -- you wait towards grievance, don't you?
James L. Highsaw, Jr.: Well as to the future, that's right, Your Honor. But there's been three-and-a-half years have gone by --
Byron R. White: What else can you do then?
James L. Highsaw, Jr.: With respect, well we think that the -- we think that the Court can declare that the contract survived and that then the individuals who have already filed grievances -- and there are some grievances on the file, it can then go in and submit these grievances only on the question of whether or not the carrier took the action which violated the contract. They don't have to litigate all over again the question of whether or not the contract itself should survive after having litigated this in the courts and the Mediation Board and then they're similarly not explored for all of these years.
Byron R. White: I know but if the grievances -- you've got some grievances in that -- that are filed and you wanted to bring them up why you bring them up. And the company might say, “Well who has arrived under a clause of the contract but didn't survive?” Well you might say “Well that's also a question for the arbitrator along with the merits of this grievance.”
James L. Highsaw, Jr.: Well --
Byron R. White: Now, what's wrong with that?
James L. Highsaw, Jr.: Well, counts are number of things. The Solicitor General relied on the Koppal case. If you will recall the Koppal case, is a case which says that you have to use these procedures only if the applicable state law requires you to do it. This is not a matter of federal laws. This is the applicable state law. And the applicable state law in this case is the Delaware law. And we say that the question of the -- whether Delaware law required them to do this is something of the arbitrator can't decide. We also say that an arbitrator can't decide the question of whether or not the merger contract itself required United to assume all the obligations of this. Furthermore, we don't think that after the National Mediation Board has interpreted in the language of this 1(b) that this people ought to even have to -- to arbitrate over with an arbitrator the question of whether the -- whether any particular provisions of the contract applied and finally and the most important reason of all is that this is completely inconsistent where the whole practice and procedure under the railway labor -- in the railway labor industry and the airline industry for 30 somewhat years. The contracts have always been assumed. The parties have always sat down and work out these problems in negotiations after the contracts have been assumed. And to require the arbitration of whether or not the contract survives at this point would be completely consistent with this. Now, counsel has tried to take this merger out from one role of this practice for saying, well, it was a shotgun situation. We had to take quick sanction something was necessary. But the fact of the matter is that the Brotherhood tried to get them to sit down on August 16, 1960. The record shows that and this merger didn't take place since of June 1, 1961. They had a period of about nine or ten months in there in which any problems of any kind that could have rose out of their assumption of liability into this contract could have been worked out. It was no -- it was no shotgun situation. They just did not want to take over this contract and they keep talking about the fact that the employees are better off under this -- better off under this situation they got now under the unilaterally imposed regulations of the company. Well, the fact of the matter is the record shows that this was specifically disputed before the District Court. In an affidavit signed by Mr. Dennis who who took two pages citing forth the injury to the employees. And secondly, the Court of Appeals specifically said that this argument was irrelevant to jurisdiction which should very clearly has had got absolutely nothing to do with the jurisdiction of the courts in this situation.
Byron R. White: What do you have to say about Mr. Bernstein's suggestion that the -- you really don't have anything concrete to any rights of employees that you're worried about or to object too or to try to protect but that you -- this is really a representation question that you've let -- this litigation as part of your “it might represent 13,000”.
James L. Highsaw, Jr.: What I have to say about that Your Honor is that the record shows Mr. Dennis' affidavit that there has been injury to the employees. And we have rights of the employees to be protected in this situation.
Byron R. White: What rights?
James L. Highsaw, Jr.: Rights under almost every provision of the contract which have been violated by this carrier.
Byron R. White: -- give me an example.
James L. Highsaw, Jr.: Well, the -- one is an automatic pay to the type of arrangement, which the carrier has not provided.
Byron R. White: Automatic pay?
James L. Highsaw, Jr.: Automatic pay provision.
Hugo L. Black: Bidding rights.
James L. Highsaw, Jr.: And bidding rights of these people, seniority rights to be handled. They're all listed in the record in this case and the affidavit of Mr. Dennis at about page 10 -- 112.
Byron R. White: Have you asked United ever to -- to bargain about any of these --
James L. Highsaw, Jr.: Yes.
Byron R. White: -- on this matter?
James L. Highsaw, Jr.: We've asked them to sit down and bargain about all of these matters from August 11, 1960 until we filed this complaint. And all they would do is say that, “We have no obligations of any kind, shape or description and we won't talk to you about it.”
Byron R. White: That's why wouldn't this be just a -- just dandy subjects than normal subjects for an arbitrator.
James L. Highsaw, Jr.: Well the question of whether or not they violated the contract is but the question of whether or not the contract survived, I don't think it is for the reason which I've been trying to give, Your Honor. Another reason is that the -- this whole procedure setup under this Article 43 is not a procedure that was ever intended to and is not conducive to the deciding basic questions, like whether or not a contract survived the merger. It's setup to decide basically whether or not a carrier violated a particular provision of a contract when it did something to an employee. And that it's never utilized for this purpose and it's not setup for that purpose, so that if it has attempted to use it for that purpose, the rights of the employees are going to necessarily be injured in this situation. And we would like to sit down I say on the bargaining and talk to them about all these things. But we can't get them to talk. They say they don't have to talk to us. And we would sit down with them tomorrow. We may not have any problem with them. If they sat down with us tomorrow and bargain here, there might not be anything to arbitrate. And we never have to arbitrate. We'd just be going through the motions, we don't know.
Potter Stewart: On whose behalf that you'd be bargaining?
James L. Highsaw, Jr.: On behalf of the employees that are covered by this contract and the 2700, 2170 employees are still unrepresented on --
Potter Stewart: Why not the 530 who --
James L. Highsaw, Jr.: And if there were any problems, Your Honor, we would on behalf of the -- if any, if there weren't any problems between June 1 and June 23, 1961 and I don't know of any at the moment, on those employees. But after June 3, 1961, those employees were represented by the IAM and I'm -- and I do not think that we can sit down and bargain for those --
Potter Stewart: Well, they're covered by this agreement, aren't they?
James L. Highsaw, Jr.: Not now, no.
Potter Stewart: Why not?
James L. Highsaw, Jr.: They were taken out from under this agreement by the agreement between the -- between the IAM and United on June 23, 1961.
Potter Stewart: Well, if you're writing a basic provision that was a violation of this agreement, wasn't it?
James L. Highsaw, Jr.: No, Your Honor, because you can always terminate the obligations under a collective bargaining agreement in accordance with the provisions of the Railway Labor Act. And that -- and United has asserted that it acted in accordance with these provisions of the Railway Labor Act and I have no knowledge to the -- they're differently. And if they did, then they have taken these 530 people out from under the contract.