Earl Warren: Mr. Westfeldt, you may continue your argument.
Patrick M. Westfeldt: Mr. Chief Justice, may it please the Court. Immediately before the recess, you asked me to address myself to some comments of Mrs. Siegel. Mrs. Siegel pointed out that the New York Commission had dealt, first of all, with many railroads and that is involving railroad employee. On this particular point, it is pointed out on page 21 of our brief that there is a vast difference in the intensity of regulation of railroad employees and persons like flight crew personnel on interstate airlines. And the Federal Government doesn't even provide a license for a railroad engineer or truck or bus driver, but obviously there's a vast degree of licensing, certification, checking, re-examining, things of that nature in regard to pilots. Next, she --
Earl Warren: But you don't have -- for stewardess, you don't have to have a federal license, yet you say that you can't -- this Commission doesn't have jurisdiction over them?
Patrick M. Westfeldt: Mr. Chief Justice, on that point, when we get to the quest -- in the question of preemption, there is not only the subject of federal law coverage, but the next step bridged the gap whether it has to be exclusive. I do believe that between different classes of employees, there may be different degrees of federal regulation and the hostess and the pilot do present an example of that. Hostesses for example are not subject as pilots are under Section 609 of the Civil Aeronautics Act, to constant examination and reexamination and proficiency checks and qualification judgments by federal agencies. And there, for example, might be a difference in an expression of a congressional intent and for that reason, I really -- I say this. I say that the substantive coverage of federal law as embodied in 404 (b) of the Civil Aeronautics Act is sweeping and broad. I think with respect to flight crew members and pilots particularly, and the hostess is not a flight crew member. She rides on an airplane, but a flight crew member is defined in the Civil Aeronautics Regulation as including pilots and flight engineers. This is a particular -- a particular group, but the evidence of an intent of Congress to establish in exclusivity, exclusive regulation with respect to pilots, I believe is much clear than with respect to any other position on an aircraft. Next, Mrs. Siegel also pointed out that there had been conciliation and persuasion in the relationship between the New York Commission and various airlines, and pointed particularly to the hostess on mobile. But I think it's also true that she indicated to this Court that these airlines had not gone to the court and I don't believe that she or I or anyone else knows of any court case which has upheld an order of a state anti-discrimination requiring affirmatively an airline to hire a pilot. I don't believe that such a decision exists.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Mr. Justice Goldberg, I -- I do not know of anything in the legislative history on 404 (b). I do know what this Court has held about 3 (1) and 216 (d) of the Interstate Commerce Act and what this Court considered the intent of Congress to be and that is they considered that no discrimination was exempted, no discrimination was exempted and I think that's critical --
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: I do not believe there is, Justice Goldberg. If there is, I don't know of it.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: I don't know of it, Mr. Justice Goldberg. I haven't looked at it recently. I don't recall the details of it. I -- I argue my position from the parallel of practically identical statutes and these other expressions by this Court. Now --
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Yes, Your Honor.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: I believe that we are, Your Honor.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Well, this was argued in the court below. We did not present that question for review before this Court. The Justice Department contended that we weren't because we didn't have a written contract to carry mail. My view on it, it doesn't make any difference whether the contract is written or not, we are required to carry it by statute and we're required to be compensated for the service by statute in effect --
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Yes, Your Honor.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: By the --
Hugo L. Black: [Inaudible]
Patrick M. Westfeldt: By the United States Government. That's correct.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: I would call it a statutory contract. It's embodied in the law itself. You're required to carry it in the fees prescribed I think by the Civil Aeronautics Board.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: That's correct, constantly, on all aircraft.
Tom C. Clark: You're talking about the [Inaudible]?
Patrick M. Westfeldt: No, Mr. Justice Clark, there is a mail pay subsidy but that is different from just a straight fee for compensation for mail. And --
Tom C. Clark: It depends on airlines?
Patrick M. Westfeldt: It depends on the airline. I think the smaller feeders may still have mail pay subsidies. Continental is a small trunk. It doesn't have a mail pay subsidy but it is compensated for carrying mail. I think that -- I want to touch briefly also on the subject of the Railway Labor Act. And I particularly want to touch on that because I believe the decisions of this Court and the Courts of Appeals that have followed it also provide federal substantive law coverage. The subjects covered in the Railway Labor Act, they're not only collective bargaining, normal labor relations problems, but the general area is described as rates to pay rules in working conditions, that must be kept in mind because we all know the broad inclusive character of that phrase. Now, the very -- the Colorado Act that we're dealing with here doesn't go just to the subject of hiring. It goes beyond hiring and it goes throughout the whole ambit of the employer-employee relationship. And that it covers hiring, promotion, demotion, discharge, compensation, all of which fall, I submit, within the clear meaning of rates, payrolls and working conditions. Now, in Howard, this Court on remand to the District Court ordered that the employer, the railroad as well as the union be enjoined for -- from participating with the union in racial discrimination against Negro employees who were represented by still a second union. Then, there are two Fifth Circuit cases that follow Howard, one of which is the Central Georgia Railroad, decided 1956 in 229 F.2d and cert was denied by this Court in 352 U.S. There again, the Court of Appeals barred an employer from discriminating in concert with a union and it held the employer liable. Now that case -- the District Court's order which was affirmed by the Court of Appeals and which was discussed at great length in the dissenting opinion in the Fifth Circuit opinion held the employer liable in damages to the Negro employees against whom this discriminated -- discrimination have been exercised. And also ordered an affirmative injunction to open up the jobs to the employees against whom the discrimination had been practiced.
Potter Stewart: This was under the Railway Labor Act?
Patrick M. Westfeldt: Railway Labor Act case following Howard.
Potter Stewart: In this -- in our case now before us, there's no -- there's no claim of any collusion between your client and --
Patrick M. Westfeldt: No, Mr. Justice Stewart.
Potter Stewart: -- the pilot's union, isn't it?
Patrick M. Westfeldt: No, Mr. Justice Stewart. I have absolutely none. And I say that in principle and I don't think it can really seriously be argued here, one cannot say that a Railway Laborer Act employer can't discriminate against employees in concert with the union, but can discriminate against such employees unilaterally. That doesn't -- that doesn't fit the logic of the Howard rule, the logic of it.
Potter Stewart: It doesn't fit the logic of anything, I agree with you, but the point is that in the second case, when there's just unilateral discrimination, perhaps the Railway Labor Act is not in -- is not applicable?
Patrick M. Westfeldt: Well, I would like to address myself to that point and in a case immediately following the Central of Georgia by the same Circuit; it's Richardson against the Texas and New Orleans Railroad in 242 F.2d. In that particular case, the Court analyzed the reason for the rule. They said that you have to read the contract as if the illegal clause isn't in it. And it says then, the employer is the one who is discriminating. And then it went a little bit further and said that it would be absolutely impossible to enforce the Howard rule unless a commensurate duty were placed upon the employer and I think that's correct. The rationale behind it is that a Railway Labor Act employer, an airline or a railroad or whoever it may be is a federally sponsored industry and it exists by virtue of its certification. It exists and operates under a multitude of detailed federal regulation and of -- an employer in that sense acts as an instrumentality of the Government and can't engage in such discrimination. However, that's my view of it and I think that even the Railway Labor Act -- there are more examples. Railway Labor Act provides for settlement of grievances by binding arbitration, by a system board of adjustments in the case of airlines. All the questions relating to promotion or demotion or discharge or any implementation, their application of collective bargaining agreement for example are covered under the grievance procedure. Now these are the very same Acts -- incidents of the employment relationship that purports to be covered by the Colorado law. But to --
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: A grievance could be filed by an employer against an employee, a kind of discrimination, I promote one and not the other be could grieve.
Arthur J. Goldberg: [Inaudible] a prospective employee, [Inaudible].
Patrick M. Westfeldt: I think their prospective employee would not be covered by the grievance procedure. The prospective employee would be covered by the civil actions permitted in the Central of Georgia and the Richardson against the railroad imposing clearly the duty on the employer, even the affirmative injunction to open up the jobs to employees in the Central of Georgia case.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Under the Railway Labor Act following the Howard rule with an employer operating under federal sponsorship and it has reference in regulation of the Government.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Well, I would think, Mr. Justice Goldberg, that that particular thing, this Court would require such an action to be brought under the Railway Labor Act, because of the specific relationship to unions and union organization in collective bargaining in the Railway Labor Act. And I think that that would be the appropriate -- the appropriate Act to apply in that case, but I'll contend further and I believe it's true that the Railway Labor Act does not only start becoming operative after a man has been employed. It actually has some specific pre-employment provisions. One is the prohibition on the yellow-dog contract. The other is the situation that you just alluded to and that would be any union discrimination in employment. Then labor contracts can require an employer to hire more employees rather than contract out work. In other words, my theory is that the impact of the Railway Labor Act, developing substantive federal law coverage of the type of discrimination complained of in this case, that we have large bodies of federal law that actually cover the subject. And then you move from --
Byron R. White: [Inaudible]
Patrick M. Westfeldt: I think that's entirely right, Mr. Justice --
Byron R. White: [Inaudible]
Patrick M. Westfeldt: Well, I certainly think that those cases are terribly important and very persuasive there. And I think that alluding to Mrs. Siegel's remarks about the New York Commission. This same thing came before this Court in the Bethlehem Steel against the New York Labor Board. New York had the Little Wagner Act. This Court has pointed out that the laws were compatible but the procedures were different. In Garner against Teamsters, it was pointed out that the laws were compatible, but the procedures are different. With the multiplicity of tribunals and the diverse procedures, inconsistent and conflicting results occur just as --
William J. Brennan, Jr.: [Inaudible]
Patrick M. Westfeldt: That is my argument, Mr. Justice Brennan. I think that we are dealing with this industry that escapes the bounds of local regulative confidence, the minute the airplane takes off. I think that uniformity of regulation is necessary. I do not think diversity of regulation can be permitted. I --
Byron R. White: [Inaudible]
Patrick M. Westfeldt: Mr. Justice White, I will agree that under the Fourteenth Amendment case of Brown against Board of Education, so no state could enact a legal segregation law today whether relating to schools or employment or anything of that nature. And if the Colorado Act were that way, I'm quite sure that the petitioner would be asserting this pervasive federal regulation and preemption. However, the Colorado Law is not that way and we can assume that the policies and purposes of the federal laws and all of the state laws are the same. They're anti-discrimination laws and the policy is anti-discrimination, but identity of policy and identity of purpose doesn't mean that the same results are going to be reached. If you have an anti-discrimination case, you have a case where a Commission or a court is going to have to weigh the facts and make the decision, use its judgment, use its discretion in areas of that kind with all of the different tribunals that would be available, different results would occur. And it's for that reason that I think we bridge the gap between substantive federal law coverage and preemption.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Well, this is particularly true in the recent decisions of this Court on this 301 of the Labor Management Relations Act and I do believe that it's quite interesting in those cases. They do permit because of this Court's view of the meaning of Section 301 of the Act that an employee alleging breach of contract which also happens to be an unfair labor practice can go into the federal court or state court to do it.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: But --
Arthur J. Goldberg: [Inaudible] assuming you are right, Federal statute [Inaudible]
Patrick M. Westfeldt: The comparable situation -- I think if you follow the Lucas Flour case and the Dowd case and -- and Dowd, what that would mean is that an employee claiming discrimination could sue in the state court for violation of 404 (b) or the Railway Labor Act. He couldn't sue in the state court for violation of the State Anti-Discrimination Act. This is the way I understand the Evening News and those cases because those cases specifically provide that even though the suit's brought in state court you're talking about a body of federal labor law and we say that the federal law on this subject must occur if it's not different. Airlines will be treated differently just depending on where they happen to have their employment office or one airline might be treated differently from state to state. We think that the federal regulation is so pervasive that it indicates the congressional intent to have uniform application in relation to discrimination against pilots and this is the way we bridge the gap. The examples are many fold. This Court has found that in the Campbell against Husky case, the Tobacco case, this Court has found that in the Pennsylvania Nelson case that Mr. Justice Harlan mentioned. Now there, there was a particular national interest and compatible state and federal policy. We say the same thing is true here. The congressional legislation, the pervasiveness -- the pervasiveness of the regulation, and particularly regulation of pilots which goes right down to checking and reexamination and everything of that nature spelled out in the statute and the regulation. We have compatible policies against discrimination and if it is permitted here, if 20 or 25 states are permitted to rule on this subject by all 50 can and with that number of tribunals and an equal number of diverse procedures, I think it's the rule of -- the intent or court order, the decisions of this Court. That the same kind of inconsistent and conflicting results can be reached as if there were an actual substantive conflict in the laws.
Potter Stewart: We -- we --
Byron R. White: [Inaudible]
Patrick M. Westfeldt: Have any what, Mr. Justice White?
Byron R. White: You're talking about possible [Inaudible].
Patrick M. Westfeldt: Well, as far as I know this is the first case involving a State Commission's order being enforced in a court to hire a pilot. But I think -- I think the language of the Court in -- maybe it was Bethlehem Steel or else it was Garner where they said, “We don't want to go on a case by case basis just to test federal supremacy that way.” The laws, the policies were substantively compatible. The procedures were different and the Court said preemption occurred.
Byron R. White: [Inaudible]
Patrick M. Westfeldt: I really --
Byron R. White: [Inaudible]
Patrick M. Westfeldt: Yes, I --
Byron R. White: [Inaudible]
Patrick M. Westfeldt: In policy.
Byron R. White: [Inaudible]
Patrick M. Westfeldt: Oh, I believe there is, Your Honor.Mr.
Byron R. White: [Inaudible]
Patrick M. Westfeldt: Well, we just have one case and this is the first case of this kind that I know of but the fact that the law has provided inconsistent procedures are here.
Byron R. White: [Inaudible]
Patrick M. Westfeldt: Well, that's certainly true as between state and federal but throughout the United States where all of the anti-discrimination laws exist as a different procedure and state after state, after state. Some cases, private individuals can -- bring complaints and others, only the Attorney General can. In Colorado we got the private individual, the Attorney General, the Commission and the Commissioner. We've got --
Byron R. White: Yes, but this is part of your argument of the desire for this kind of [Inaudible].
Patrick M. Westfeldt: Mr. Justice White, I think this fits the preemption argument and the case of California against Zook was mentioned and the Huron Cement case in Detroit was also mentioned. In the California case the California law was upheld and in the Huron case, the Detroit law was upheld, but in both of those cases it was pointed out that -- I think in the Detroit case, there was no mention whatsoever of any other local law that might conflict in --
Potter Stewart: It was asserted argumentatively that there might be other local laws, but there is no evidence of the existence of it.
Patrick M. Westfeldt: There was no evidence (Voice Overlap) --
Potter Stewart: Like that was stated in the --
Patrick M. Westfeldt: Then in the Zook case there were just two comparable local laws and I believe that the opinion of the Court there indicates that the decision of this Court might have been different if there had been a multitude of state laws. And so, I do believe that the multitude of state laws and the diversity of state laws is the kind of thing that would prevent, prevent uniform application of federal law, either presumed intent of Congress or actual intent of Congress, I think that when you compare the Civil Aeronautics Act and the Railway Labor Act, the Civil Aeronautics Act there is much more specific and sweeping on a -- as an anti-discrimination provision. But I think the Railway Labor Act has been construed and properly construed that an employer sponsored by the Federal Government cannot participate in racial discrimination. And it is true that the pervasiveness of the regulation, what I say is the need for uniformity which is accented by the multitude of tribunals gives rise to my argument that there is preemption here. I think the same thing is -- it follows on the burden argument that we make.
William J. Brennan, Jr.: The Court can't apply [Inaudible].
Patrick M. Westfeldt: Well, I think the congressional design, I -- I'll certainly agree, Mr. Justice Brennan it was more specific there but --
William J. Brennan, Jr.: [Inaudible]
Patrick M. Westfeldt: And there's that multitude of the labor cases. The Garner involved the Pennsylvania law and the Bethlehem Steel involved the New York law and the Goss involved the Utah law and there was a forerunner to Goss. I forgot -- forgotten the style of it right now, but in Garmin the prohibition bringing an unfair labor practice case in a state court and all of those laws were compatible. The New York law was called the Little Wagner Act and there's just preemption there because you got to have -- and I think it also should be -- I should emphasize that there -- the congressional regulation indicates a tremendous, intensive national interest, federal interest in aviation, in aviation operations, not only as respective crew members but all of the other safety questions, the use of airways, traffic control, you can't operate the aircraft without federally certificated personnel according to federal commands and directions. I think that industry is a national industry. I don't think it can be localized. I don't think that any airline should be subject to varying infringement of state laws.
Earl Warren: But in our -- in our Wagner Act, and other labor laws, isn't there a great deal of legislative history and declaration of policy on the part of the Government to preempt the situation as -- as you said it has been done in Garmin and the rest of the cases? Where here, as I understand it, you have been unable to find any legislative history or any declaration of policy in this specific area and there certainly was legislative history in the labor fields.
Patrick M. Westfeldt: Well, the cases that I referred the Court to earlier, the Mitchell case and the Henderson case are the ones that this Court -- when this Court had before it the identical portions of the Commerce Act and it was this Court's decision referring to the identical portions of the Commerce Act that if concluded -- this Court concluded that Congress did not intend to exempt any discrimination. Furthermore, the ICC has been aware since 1887 that that clause did apply to this race relation question that is desegregation of white and Negro passengers. So that even -- back on those earlier cases, this Court has concluded that this identical federal statutory language did have that purpose and the broad (Voice Overlap) --
Earl Warren: Well, I suppose there's no question about it on what you could find legislative history on the question of discrimination as to passengers in the kind of service that they -- that they rendered, no, there wouldn't be any trouble in doing that would there?
Patrick M. Westfeldt: No, I don't --
Earl Warren: But on the other hand, when you say that the employment field is preempted, you cannot find any discussion of any before the Congress on that subject even to indicate that they were legislating in that area.
Patrick M. Westfeldt: Well, Mr. Chief Justice, my response to those remarks is that the language of the Act, employer discrimination against any person in any respect whatsoever, the broadest language possible, the word person is defined. The Fitzgerald case didn't limit it's holding to passengers in reading the Act, it said it prohibits discrimination against persons and then including passengers. The idea was that it didn't intend by that construction to limit it simply to passengers.
Earl Warren: But I got -- counsel pointed out that this word discrimination was used invariably in the sections of the Act that had to do with service and that of course is legislative history, I think that we must consider.
Patrick M. Westfeldt: Well, I certainly think that it -- I know that it's used in relation to service and this Court has just heard this ICC case which relates to discriminatory rates and certainly are applicable to that. But this Court itself had -- has held it applicable not only, really to questions of actual service by the character but the terminal restaurants and so on operated by independent contractors. The CAB itself has a -- and asked and requested the Attorney General to bring these suits down in Montgomery and Birmingham and Alabama and they relate to all terminal facilities. The scope of it in relation to race relations I think is as broad as it can be.
Arthur J. Goldberg: Assuming [Inaudible]
Patrick M. Westfeldt: Well --
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: I'd say it remained dorman -- dormant for about 22 years and then they started to use it. Of course the Federal Government started to use it. Actually, the Fitzgerald case in -- is in 1956 and so that's 18 years after the statute was passed, but I don't think that that means -- I don't think the rule is -- that just a period of dormant excludes the question of preemption.
Potter Stewart: How long the Interstate Commerce Act language been dormant until it was reawakened in Mitchell?
Patrick M. Westfeldt: The Court here held that the Commerce Act -- that the Commerce Commission recognized immediately from the beginning, I think the words were, that it covered discrimination against -- in relation to segregation of white and Negro passengers so that it --
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Yes, start from beginning.
Arthur J. Goldberg: As far as we have the records, you distinguish between passengers and employees, this problem has been dormant [Inaudible]
Patrick M. Westfeldt: 1886, it's when it's passed.
Arthur J. Goldberg: Well, in view of that here --
Patrick M. Westfeldt: Well --
Arthur J. Goldberg: -- being dormant [Inaudible] exercised at all.
Patrick M. Westfeldt: Well --
Arthur J. Goldberg: To this date, [Inaudible]
Patrick M. Westfeldt: I think that's correct.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: I think that's correct, Mr. Justice Goldberg, but I do not think that it's possible under the language of the Act to make a distinction between a passenger and a pilot or a passenger and employee. I think the definition covers it. I think that the understanding of the Court in Fitzgerald, it was persons the Act was talking about and not just passengers. It wouldn't make sense just to limit it to passengers to permit air carriers to discriminate against all kinds of persons just because they weren't passengers, whatever the reason might be.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: I have no idea, Mr. Justice Goldberg. I have no idea whatsoever. I'm sure that we at Continental Air Lines were faced with the new field when this case came up and we've been working on it rather steadily for several years now, and this is our conclusion as to what the law is. I would like to go one step further with the point that you're making, Your Honor. There have been many cases where agency's activities and powers have remained dormant. I think an interesting case in this field is Boynton. That was the one where the bus terminal was an integral part of the bus transportation system. The restaurant in the terminal was operated by a lessee, an independent contractor not operated by the Trailways Bus Company. And the Interstate Commerce Commission took the view that that they didn't think they had the authority. They disclaimed authority to regulate these lessee restaurant operators. But this Court held that that was a violation of the Act and within a year after this Court's decision, the ICC then adopted a new set of regulations specifically to cover it. So here was an area of dormancy for many years. The administrative agency was told by this Court that by gosh! This is within the scope of your authority and they passed the -- adopted the regulation and implemented it. In the very recent case decided by this Court, the Pan American-Grace case. I believe there the CAB disclaimed authority on the particular issue before the Court. But if the Court -- where the Court concluded that this was specifically within the authority of the CAB, the dormant exercise of that authority was of no moment. So, I don't really think that the question of dormancy should change the issue when this changed the result of this case.
William J. Brennan, Jr.: Now, Mr. Westfeldt, [Inaudible]
Patrick M. Westfeldt: I do that for this reason, Mr. Justice Brennan. One is both decisions below are limited to flight crew personnel and that is the issue that stayed in the Supreme Court's opinion, that is the decision of the trial court.
William J. Brennan, Jr.: That's all you need to prevail --
Patrick M. Westfeldt: That's all I need to prevail on --
William J. Brennan, Jr.: [Inaudible] but I'm just interested. How far did [Inaudible]?
Patrick M. Westfeldt: Well, I --
William J. Brennan, Jr.: [Inaudible]
Patrick M. Westfeldt: I think that your --
William J. Brennan, Jr.: [Inaudible]
Patrick M. Westfeldt: Well, Your Honor, I think that is an interesting question. I think that what will have to be decided, I'm sure that there's substantive federal law coverage with respect to those people because of the way I construe the Act.
William J. Brennan, Jr.: [Inaudible]
Patrick M. Westfeldt: Well, the question is whether with respect to those employees, you can bridge the gap of just federal law coverage and actual preemption. Is there a need for uniformity of a regulation with respect to unlicensed people who aren't necessarily required to have the high degree of qualification?
William J. Brennan, Jr.: [Inaudible]
Patrick M. Westfeldt: Well, no. Some mechanics or licenses and some and some aren't. You start at the bottom of the list and you might have an unlicensed man. You move up to your senior mechanics and lead men then you have any licenses and things of that nature. There may be -- you can -- you could make an argument perhaps on any particular employee as to what was the degree of his national contacts. What is the incidence of his relationship with the Federal Government in --
William J. Brennan, Jr.: [Inaudible]
Byron R. White: [Inaudible]
Patrick M. Westfeldt: Well, Mr. Justice White, sorry. I do have some familiarity with the labor laws and I think that from my experience as a labor lawyer, it has been that we always examined whatever law has really covered the subject and how they would dispose of the problem but my experience also as a labor lawyer has indicated to me that 99 times out of a hundred, the law that's applicable is the federal law. It's the National Labor Relations Act or the Railway Labor Act or the Fair Labor Standards Act, it's the federal law that occupies this --
Byron R. White: [Inaudible]
Patrick M. Westfeldt: Mr. Justice White, I don't know of the situation. I haven't run into that. I have run into the instances under 14 (b) of the Labor Management Relations Act where there are more limitations in state laws on union security problem. But I don't know of particular cases where there's a line in any particular organization of state laws covering rather than federal law.
Byron R. White: [Inaudible]
Patrick M. Westfeldt: It's really very difficult I think to give a categorical answer to that. I think the federal law coverage is there as to all airline industry, where the line on preemption would be drawn, I really don't know. I think it would take a careful study of the facts of that particular case but I just cannot see how a relationship between an airline and a pilot, the man who is flying the plane and moving from state to state, and airlines that cover all states can be subject to inconsistent varying conflicting regulation.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Mr. Justice Goldberg, the pilots that we have do have federal licenses.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: That's correct.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Well, the actual language of the Act permits the CAB to issue such appropriate orders maybe necessary to compel compliance with the Act. Now what the -- I think the normal scope of an order in the first instance would be an order such as the one entered by the Discrimination Commission here, hire that man, promote that man, or don't, whichever is required depending on the -- whether they could go further than that --
Arthur J. Goldberg: Suppose they took a broader view on this section [Inaudible] --
Patrick M. Westfeldt: Sure.
Arthur J. Goldberg: [Inaudible] that we will not [Inaudible].
Patrick M. Westfeldt: Well, unless there are some other legal problems that I can't put my hands on right now, I think an order such as you suggest after proper notice and hearing and subject to judicial review and everything of that nature is within the scope of that 1002 description, that description of the type of orders that could be issued.
Potter Stewart: White pilots might have an objection based on constitutional grounds in a federal [Inaudible] --
Patrick M. Westfeldt: Perhaps, it maybe some other issue like that -- I don't know but the breadth of it is the scope of the language is very great and I argue that this is the way it should be. We are regulated by the Federal Government from top to bottom and we deal with the agencies regularly, their control or familiar with their procedures. They would establish uniform rules there and uniform practices just like they have on all of the other matters. These, the agencies that are familiar with airlines, with pilot qualifications, with issues such as could come up in a case before them. The likelihood of uniform result is so much more great in the case of preemption than use of the federal agencies than it is by use of multiple state agencies that I think it's very significant. The only other area that I really haven't touched on in any detail is the question of burden. This is another part of their argument. The Colorado Supreme Court relied on the Morgan case and the old Hall case, Hall against DeCuir. I think that those cases stand for the proposition that where uniformity is necessary as we contend it is, the state laws cannot move in to that field of commerce because of -- this isn't the area that permits the diverse regulation. Now, everything I've said about the need for uniformity in connection with my argument on preemption goes right to the same need for uniformity and the argument on burden. I don't think that Hall can just be dismissed because Brown avoided it against Board of Education. Hall still expresses the same rule if that happened to be the reconstruction act in Louisiana that required comingling of passengers on riverboats in that state. Morgan was the later -- the Virginia segregation statute, both of them have been held by this Court to be an -- as an unconstitutional burdens on commerce. The point has been made that this evidence is -- the evidence in this case, the record does not show the type of burden that was spent on, say in Southern Pacific against Arizona and Bibb against Navajo Freight Lines and an actual impediment involving a great deal of cost. I think the Court should also recall the Morgan decision, that isn't the kind of burden that was found there. The Court pointed out that the passengers had to order their movements on interstate travel. There is no great impediment to the flow of travel there. The discrimination certainly was unlawful but it was a burden on Commerce. It wasn't another Fourteenth Amendment case. I also want to point out that I don't think that there's any need for any more evidence on burden. Earlier in my argument this morning, I did allude -- I did start discussing the fact that the Colorado Commission did make a determination of Green's qualification. It made that determination that he was qualified, therefore the only discrimination is on account of race, but that is inherent in the Colorado Act. A decision by the Commission on qualifications has to be made. I think that really is all that need be said about. I do not think it is possible to permit 28-30 Commissions around the state with persons unskilled in matters of aviation to determine qualifications of pilots. Just for the sake of argument suppose the facts in this case were a little bit different, suppose Mr. Green instead of having 3000 hours had had 1000 hours. Could they then still determine qualification? All of the things that go into determination of qualification of pilots we think --
Earl Warren: But I thought they put their decision on the ground that you yourselves had found this man to be qualified.
Patrick M. Westfeldt: Mr. Chief Justice, they did in part and then they dismissed our conflicting judgment which arose at the time of the publicity that occurred. At that time Continental had first decided that Green was qualified. At the later date when the wide publicity occurred was when Continental took the position that he was therefore not qualified. Now, so they made the decision in conflict with our judgment, the judgment is the judgment that was exercised in early August of 1957.
Arthur J. Goldberg: Well, what's the -- they could not have gone to the conclusion [Inaudible] as the basis of your understanding [Inaudible] because your own decision [Inaudible].
Patrick M. Westfeldt: Well, what the record in the case shows is that the company felt that this would cause a lot of notoriety and that it could interfere with his training. Now that's what it showed but if -- they also -- they -- no, the testimony also shows that other pilots had been discharged from becoming involved in controversial public things and this was their view that they wanted someone that was less in the public eye, quieter type of person but --
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Well, at that particular time, Mr. Justice Goldberg, he already had been admitted to the first trade of course, he was told that he was eligible and his name was held with the other eligible pilots for subject on employment. And this appears in the record and this is in telephone conversation between Mr. Green and Mr. Bell. My view on the burden argument is that the diverse state regulation involving these issues that can only be decided by an exercise of judgment in discretion of course is the burden.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Mr. Justice Goldberg, that's determined, but that's determined under an Act. That doesn't provide blanket discrimination. It doesn't -- isn't a blanket anti-discrimination. It only prohibits an employer from discriminating persons otherwise qualified. So, this is the statute that we're dealing with.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: That's correct, Mr. Justice Goldberg, but you can also acknowledge that the Act does require the Commission to make a determination of qualification because they couldn't make the second decision unless they first made the first decision.
Potter Stewart: Of course it's possible I suppose in legal theory for the person to be unqualified for a reason which might indirectly stem from his race but not because of his race. So assuming that somebody who was a -- followed the tenants of the Black Muslims, who hated white people so badly that he was likely to get so infuriated that he might shoot one. I suppose you wouldn't want somebody like that as a co-pilot with a flight -- flight crew for safety reasons and yet --
Patrick M. Westfeldt: My feeling --
Potter Stewart: -- assuming this person had been born a white man instead of colored man, he -- chances are he would not have become a Black Muslim.
Patrick M. Westfeldt: My feeling on that is this that the initial -- that the judgment on -- whether to hire or not to hire, qualifications things of that kind must first reside with the carrier. There's where the responsibility is. That's the organization that performs the interstate transportation, it is the one that runs the risks, makes the games, things of that nature. But if its judgment is going to be limited, it must be limited according to the intent of Congress and by one single federal agency, a single authority prescribing uniform regulations.
Potter Stewart: It's not -- it's not --
Patrick M. Westfeldt: We --
Potter Stewart: -- your position as it's so, that -- as to racial discrimination, the federal standard is a different standard from that imposed by Colorado in any way?
Patrick M. Westfeldt: No. No, it's identical. And the --
Potter Stewart: Each requires complete lack of discrimination (Voice Overlap) --
Patrick M. Westfeldt: Right, they are the policies. They're completely compatible, just completely compatible.
Potter Stewart: And identical?
Patrick M. Westfeldt: Identical.
Potter Stewart: Yes, I mean, (Voice Overlap) --M
Patrick M. Westfeldt: And they are both strong, they're both vigorous. The federal policy is strong and it's vigorous. The state policy is strong and it's vigorous. This is true but we -- but then we're dealing with this high speed transportation industry with Commissions all over, and officials all over, 90 more Commissions, some of them are Board of Education Commissioner, or things of that nature and I do believe that these airlines, so regulated from top to bottom must be regulated in this field also by the Federal Government. I think that a decision by a State Commission in conflict with the carrier's judgment that an employee is qualified is a direct intrusion into something that is very national in character and must be regulated.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: And if it does differ with our judgment, it is the Board that has the expertise relating to pilot qualifications. It's obligated. The case is now brief -- pointed out. The 609 cases, the CAB examines and reexamines qualifications part, there's the expertise. The same thing is true in our grievance cases, Mr. Justice Goldberg, if you have a pilot discharge case. You got your system board of adjustment. You may have an arbitrator but you've got four experts with you.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: But who is the State Commission's decision reviewable by? It's not reviewable by the Civil Aeronautics Board where there is some expertise. It's reviewable by a state court where --
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: We'll follow legal principles that would not have any particular knowledge as to the abilities of qualifications of a pilot. This is where the thing --
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: But --
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Well -- but I say, Mr. Justice Goldberg that you don't reach the decision of whether discrimination occurred until you reached the prior decision of qualifications.
Arthur J. Goldberg: [Inaudible]
Patrick M. Westfeldt: Not by the State Commission. Thank you very much.
Earl Warren: Very well. Mr. Taylor.
T. Raber Taylor: Mr. Chief Justice and may it again please the Court. I open by directing my remarks to the specific language of the Civil Aeronautics Act on the area of preemption. A careful reading of the Act will lead us to the conclusion that the Congress of the United States has not occupied the field of the regulation of air carriers to the exclusions of the -- exclusion of the states. Section 676 of the Act which was the original CAA Act, now 49 United States Code Section 1506, there was the reenactment of the Civil Aeronautics Act in 1958; this provision reads remedy is not exclusive. Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.
Potter Stewart: But that language doesn't fit this case, does it, because the applicable federal statute was enacted in 1938 and at that time this Colorado remedy was not then existed?
T. Raber Taylor: The -- this was a reenactment in 1958, the Colorado Act or Discrimination Act is of 1957. Now, I would say this, this language, the fact that it is --
Potter Stewart: This case arose prior to 1958, isn't it?
T. Raber Taylor: This case --
Potter Stewart: Or when did it?
T. Raber Taylor: The compliant was filed April 30th or no -- the application of Continental was filed on April 30th, 1957 and the hearing was during June of 1957. The order of the Anti-Discrimination Commission was entered in December of 1958.
Potter Stewart: It's a very small point, but I only suggest that the -- the Colorado remedy when the 1938 statute was enacted was not a then existing remedy.
T. Raber Taylor: That is correct. I do think, however, that it is significant that when the CAA Act was reenacted into the Federal Aviation Authority in 1958, if there was any whisper that this Act was going to incorporate into the Federal Administration Authority Act, an anti-discrimination provision with regard to race and the employees, and let's say an FEPC law being incorporated into the Civil Aeronautics Act, we would have not had the outstanding approval of the Southern Senators of the United States.
Potter Stewart: I suppose that could be said in the Interstate Commerce Act also which has been held to have required -- to have required complete non-discrimination based on races among passengers and that terminal facility, wouldn't the same inference --
T. Raber Taylor: I would say this --
Potter Stewart: -- withdrawable?
T. Raber Taylor: Insofar as one has a desire to protect passengers, one would not have a desire if they have denied of some of our Southern brethren to give equal protection for all job opportunities throughout the airline industry. I think --
Potter Stewart: Is it fair -- is it fair to surmise Mr. Taylor that if they were no fair employment legislation in Colorado and if Continental Air Lines on its own [Inaudible] -- on its motion had for purely racial reasons turn down a completely qualified applicant for a pilot that you might not be arguing here that the federal law required them not to discriminate?
T. Raber Taylor: That -- Your Honor, I --
Potter Stewart: I'm imagining a case that doesn't exist and maybe that's an unfair question but it occurs to me that you would have a pretty good case if you were here?
T. Raber Taylor: Well, under the Connelly decision, under the Railway Labor Act, there was -- might be a question of whether or not she'd want to fight all the way up to this Court via the federal courts to establish jurisdiction, but again, I don't think it is clear. I think the prime purpose and thrust of the Railway Labor Act is certainly the collective bargaining is good or bad as it can be negotiated and under the CAB, the primary thrust is in relation to passengers and to traffic and to provide adequate service for that traffic. I think the brief of the United States which has been filed in this Court does the best job in speaking to that point because they point out that federal laws will not likely be held to preempt an area against state legislation. They also point out that it is never been held that the provisions of the CAB, Section 404 (b) and this is on page 39 of the brief of United States that it is never been held that these provisions were or are applicable to discrimination and employment. Then, on page 41 they go into detail as to Section 404 (b) which is primarily concerned with transportation service. Certainly, we do not have any legislative history to guide us, but we do know that the purpose of the Civil Aeronautics Act has been preoccupied with service either of the transporting of property or the transporting of passengers. It is no surprise that it was applied for the protection of Ella Fitzgerald in the case when she was discriminated against and I think it's no surprise that California -- United States District Court in California has applied it when a coach passenger was discriminated against, but I don't think it has any application. We are here concerned with whether or not the Civil Aeronautic Acts should be converted into a Fair Employment Practice Act. I would take one moment to mention the Railway Labor Act and this Court on March 4th of this year passed on the scope of that Act in the case of the Brotherhood of Local Engineers and the Baltimore and Ohio Railroad, relying upon prior language of this Court in Terminal Association of St. Louis against Brotherhood of Railroad Trainmen. To me, that language and the principles there enunciated would be determinative of any argument in this case as to the application of the Railway Labor Act. But primarily, we're confronted with concurrence of jurisdiction even if there were jurisdiction under some federal law. We do know that the most recent legislative history from the Congress of the United States and the consideration of a Fair Employment Practice Act is that they want to respect the jurisdiction of the State Commissions. They want to make it clear that it is their intention to cooperate with the state and municipal agencies to eliminate and promote the -- and lessen the discrimination in employment. We have had the question of whether or not flight crew personnel should stand in a favored position. Certainly, the employees of the United States, the U.S. Civil Service employees who were engaged in the business of handling the mail and the postal railcars are much closer to being instrumentalities of the United States. There, this Court made clear that there was jurisdiction in the State of New York and their Anti-Discrimination Commission to bar the union provision which excluded from the Railway Mail Association all colored people. To me, especially after having an opportunity to read the briefs here, I feel that that issue is controlling. Mr. Justice Harlan has inquired about the case of Pennsylvania against Nelson. To me, I do believe that there is a concurrent jurisdiction which was given to the State of Colorado by the Enabling Act of 1875. Certainly, we would all agree that sedition has a higher value in the hierarchy of our values than even race relation and yet in Pennsylvania against Nelson, this Court did find that there was concurrent jurisdiction.
Earl Warren: Very well.


Earl Warren: Number 12, Sandra Lee Neely, etcetera, petitioner versus Martin K. Eby Construction Company. Mr. Kripke.
Kenneth N. Kripke: Mr. Chief Justice Warren, may it please the Court. Neely versus Eby Construction Company is a diversity tort case arising out of the United States District Court for Colorado. In that Court, the plaintiff Neely, who is your petitioner here obtained a jury verdict of the amount of $25,000.00 which is the maximum obtainable under the Colorado Wrongful Death Act. The trial judge denied the various motions for directive verdict, judgment notwithstanding verdict new trial and in that posture, the defendant Eby appealed to the United States District -- United States Court of Appeals for the Tenth Circuit and that Court reversed and remanded with directions to dismiss. It was from that order that this matter was brought to this Court. In order to --
William O. Douglas: But here often they're very limited grant, isn't it?
Kenneth N. Kripke: Well, Your Honor, I don't know. In the petition for writ of certiorari, the petitioner brought to the attention of the Court the interplay of the Seventh Amendment to the United States Constitution Rule 38 of the federal rules and Rule 50 with its recent amendments. The petitioner in that petition said that she did not concede for a moment that the Court of Appeals was correct on its dismissal in its interpretation of the facts of that case as the Court recounted them from the cold record.
William O. Douglas: But we didn't -- as I understand that, we didn't take that part of the case, didn't we? Didn't we take the question of merely it's whether or not the Court of Appeals had the right to send it back directing a dismissal not leaving any options before the District Court act or amendment through the pleadings or --
Kenneth N. Kripke: Well, Mr. Justice Douglas, I'm not sure whether it was so limited. I don't think the directive said so in so many words.
William O. Douglas: The reason that I asked you is that your brief reads as if you assume that the whole case was here. We set them to determine was enabled right in reversing the first place because you asked for reinstatement of the judgment.
Kenneth N. Kripke: Yes, sir, I did. Yes. Your Honor -- Your Honors, in order to try to describe the --
Byron R. White: Mr. Kripke, the Court did (Inaudible).
Kenneth N. Kripke: No sir, not that I know of.
Byron R. White: That in addition to all the others.
Kenneth N. Kripke: Yes, sir. In order to try to orient the Court on what is a rather unfamiliar fact situation, the petitioner attached to her brief on the merits some exhibits. There are four photographs and also a Polaroid photograph or copy of one which was a drawing on the blackboard in the trial. These are all of the exhibits which were admitted on the issues of liability. There are -- the reasons that these --
William O. Douglas: What bearings do those held from these limited questions that we held?
Kenneth N. Kripke: Well, Your Honor, I think it becomes very clear with a study of the factual background of the case that the Court of Appeals misinterpreted the facts from the cold record.
William O. Douglas: Well, I thought that that isn't here. That we just have the question of the construction of the rule, the scope of their power, maybe I'm wrong but that's the way I read our grant.
Kenneth N. Kripke: Yes. I would be willing Your Honor to limit my remarks to this problem of the application of rule of the Amendment 7 to the power of the Court of Appeals to dismiss and terminate what has been a jury verdict. I think that the facts and misinterpretation of the facts illustrates as clearly as anything I can think of Your Honor, why the Seventh Amendment was enacted in the first place. Mr. -- if I may I --
Earl Warren: Yes, go ahead.
Kenneth N. Kripke: -- give some historical background. Mr. Neely was an engineer employed in a missile silo construction program at Elizabeth, Colorado. It was necessary for him to make some measurements from some counterweights if I may explain the --
William O. Douglas: I'll be burnished to myself knowing what the history of the Rule 50 is and provisions and --
Kenneth N. Kripke: Alright. I'll go directly to that then. The Seventh Amendment to the United States Constitution says of course that the -- that no court may review facts which have -- no federal court may review facts which have once been tried to a jury except according to the common law. Now, there have been various allusions and interpretations of this before Rule 50 came into existence. Back in 3 Peter as early as that, there was the Parsons case which has been referred to in the briefs wherein it was stated that under the common law --
Earl Warren: We'll recess now Mr. Kripke.