William H. Rehnquist: We'll hear argument first this morning in No. 92-1625 the International Union, United Mine Workers of America v. John L. Bagwell. Mr. Gold.
Laurence E. Gold: Mr. Chief Justice, and may it please the Court: This case grows out of a strike and ensuing equity proceeding to enjoin various kinds of wrongdoing and a series of contempt proceedings which have generated huge fines. The essential first question posed by the case is whether this... these fines were criminal fines which could only be imposed through criminal contempt and through procedures which meet the requirements of criminal due process, most particularly the right to jury. This is not a new question in this Court, and we rely on statements of the essential rules going back to 1911 in the Gompers case, and rules which have been restated and reaffirmed as recently as the Fiat case in 485 U.S.--
Sandra Day O'Connor: Mr. Gold, do you take the position that the defendant has to continue to have an opportunity to avoid payment of the fine in order for it to be classified as civil?
Laurence E. Gold: --We think that that is--
Sandra Day O'Connor: Is that a hard and fast test, in your view, of this case?
Laurence E. Gold: --We think that that is one of the underlying points which leads to what we understand to be the basic point when you're dealing with fines and imprisonment.
Sandra Day O'Connor: But it's your position that that's a requirement.
Laurence E. Gold: Yes.
Sandra Day O'Connor: How can that ever be coercive? I mean, if a defendant can always avoid it by eventually doing the act.
Laurence E. Gold: The... when I say that it has to be avoidable, what it... what I understand the cases to say is that in a situation in which a fine or a... an imprisonment is imposed in order to coerce an act, where that is done to coerce a discrete affirmative act, there is a sense in which the individual has... to use the phrase which runs from the beginning and the... to the end of these cases, has the keys to the prison or the... to his own strongbox in his hands, in a way which is different from the situation in which there is a prohibition and an alleged violation of the prohibition. The effort is to secure a discrete act from the individual.
Sandra Day O'Connor: Well, if your response is that it also depends upon whether it's mandatory or prohibitory--
Laurence E. Gold: Yes.
Sandra Day O'Connor: --I suppose in this case there were both types of things involved.
Laurence E. Gold: Yes, and in that... in that sense, Justice O'Connor, the first of the arguments we make is first because it raises the larger, more general question. But it is, for our purposes, narrower in its effect than the second argument we make on the effect of settlement.
Sandra Day O'Connor: Well, in this case, this very case, do you say that the fines could be imposed insofar as they applied to those things that the union was asked to do separate and apart from violent acts?
Laurence E. Gold: Yes.
Sandra Day O'Connor: Uh-hum.
Laurence E. Gold: Yes. We acknowledge... we take the sweet with the sour in terms of the law as it's developed, a law which distinguishes between the ability of the courts to coerce discrete acts that provide a unique benefit to the plaintiff and rules which have to do with the statement of prohibitions in court orders and the levying of fines or imprisonment for violating those orders.
William H. Rehnquist: Mr. Gold-- --Mr. Gold, how much of the law that you're talking about is constitutional law which would be imposed on the States by the con, and how much of it is just Federal court law. I mean, Gompers, for example, was a Federal court case.
Laurence E. Gold: The opinion in Gompers talks about the rules being rules of constitutional import having to do with, as the phrase in the case, substantive rights and constitutional privileges. And certainly Hicks v. Fiat comes out of the California courts and applies the same rules and the pivotal case for our purposes here, Bloom v. Illinois, is a constitutional case. We understand the test or the general rule that is stated in Gompers and reaffirmed in Hicks, to have three wellsprings and to serve three purposes. First of all, it captures the essence of the historic distinction between criminal contempt and civil contempt. Secondly, it takes proper cognizance, as Gompers says, of the substantive rights and constitutional privileges at stake. And finally, as Bloom emphasizes, it gives due weight to the apprehensions about an unbridled contempt power that--
William H. Rehnquist: So you think that the Constitution enjoins a distinction between the mandatory provisions of an injunction and the, you know, prohibitive, prohibitory. The... I thought that distinction was pretty much discounted.
Laurence E. Gold: --I can only judge by our understanding of the words in the U.S. reports. The distinction is one which serves to demark the line between criminal contempt, which is governed by criminal due process requirements.
William H. Rehnquist: But isn't it a fact, Mr. Gold, that a court can turn anything from mandatory into prohibitory just by a matter of phrasing?
Laurence E. Gold: I... well, two... two points on that, Mr. Chief Justice. One, when we talk about mandatory and prohibitory, as this Court has talked about, and it is the distinction between prohibiting someone from acting in a way which is harmful or wrongful and ordering someone to act in a... do particular discrete acts.
Ruth Bader Ginsburg: Mr. Gold, in that respect, are you saying... are you saying that a stop order can never be enforced except through a criminal contempt process.
Laurence E. Gold: No, Your--
Ruth Bader Ginsburg: There were examples given by your opponent for... in the brief. The Patco case was one, the Operation Rescue injunctions were others. Can you say under what circumstances a stop order can be enforced without a criminal contempt proceeding? What is the dividing line between when a stop order can be enforced and when it requires a separate criminal contempt proceeding?
Laurence E. Gold: --Two... two points, Justice Ginsburg. First of all, we believe these distinctions that we're discussing here, and which are labeled prohibitory and mandatory and, as you say, involve stop orders, deal with the question of fines and imprisonment. There are other... obviously, there are other ways to back up a stop order, various kinds of compensatory and remedial orders which are designed to provide the complaining party with the rights and benefits that the order specifies. Secondly, the stop order can be backed up by various well crafted, affirmative orders which can be enforced through coercive means under the established tests.
Ruth Bader Ginsburg: Mr. Gold, are you-- --Was Patco such a case?
Laurence E. Gold: Well--
Ruth Bader Ginsburg: Wasn't that a fine per day?
Laurence E. Gold: --I'm not familiar with the particulars of the Patco orders.
David H. Souter: Well, do you take the position that if the order... an appropriate order is issued not to strike, which is, in effect, to continue to work, that that cannot be enforced with a coercive and still civil fine for each day in which they refuse to return?
Laurence E. Gold: Yes, Your Honor. And whether it is not to... whether--
David H. Souter: You take... I'm sorry. You take the position that that is not a... that that enforcement is not subject to a civil coercive fine?
Laurence E. Gold: --Correct.
Antonin Scalia: Suppose the judge says, go back to work instead of, stop striking? Does that make a difference?
Laurence E. Gold: The... I think the answer is no.
Antonin Scalia: Why? It seems to me one's prohibitory, the other's... the other's mandatory.
Laurence E. Gold: The underlying point is prohibitory. It seems to... and I would say--
Antonin Scalia: Why do you say that? I don't know... I mean what the judge wants is to get these people back to work. That's what the... that's what the plaintiff wants. He can put it either way: stop striking or go back to work. And according to your analysis, one can be enforced civilly, the other one can't. That doesn't make much sense to me.
Laurence E. Gold: --The... I think it makes sense in terms of the underlying theory of the distinction, Justice Scalia. The... in the same way as you've just stated, an order... instead of phrasing an order not to take action which is injurious to the plaintiff, you can say only do things which are beneficial to the plaintiff, or do not do things. But the underlying point remains the same, and I can only say that against a background where the criminal law is a law of prohibition enforced through retribution and deterrence, the test is a test which is as sound as can be divined. After all, Gompers itself was a boycott case. The Court had no trouble distinguishing between prohibiting boycotting activity, which could be phrased affirmatively or negatively--
Anthony M. Kennedy: Well, Mr. Gold, is doesn't seem to me that the mandatory prohibitory distinction upon which you seem to think the whole case turns has any underlying connection with the constitutional values that are at stake here. I should have thought you could have devised some other tests for us, such as whether or not the sanction is prospective or retroactive, backward looking, forward looking, ad hoc, something like that. But the mandatory-prohibitory distinction, it seems to me, is rooted, to be sure, in what we have said in the cases, but that doesn't seem to resonate in any of the underlying constitutional values that are at stake here.
Laurence E. Gold: --Well, I think the argument for this distinction is very much like the Churchillian argument for democracy; it is superior to the alternatives.
Ruth Bader Ginsburg: Mr. Gold, does your... does your case rest on this? Justice Kennedy prefaced his comment with that.
Laurence E. Gold: Our first argument most definitely rest on what would--
Ruth Bader Ginsburg: But suppose... suppose we reject this distinction between not doing and doing. What are you left with?
Laurence E. Gold: --In terms of our first argument, we are left with nothing other than the complete lack of any principle differentiating content in the standard applied by the Virginia courts and urged by the respondents. According to them, whether the underlying order is prohibitory or mandatory, whether it has the essence and substance of traditional criminal law, whether it is enforced by fines or imprisonment, so long as, quote, the penalty is scheduled in advance, it is civil, and if it is not, it is criminal. The prohibitory-mandatory approach is an effort to deal with a certain measure of overlap between the purposes and effect of a, quote, coercive fine or a coercive imprisonment, and a, quote, criminal fine or criminal imprisonment, and recognizes that both have elements of providing benefit to the plaintiff, vindicating the authority of the law and providing measures of retribution and deterrence. And if--
Ruth Bader Ginsburg: If the Court is unwilling to draw a line between acting and not acting, what is the remainder of your argument on why these particular fines should be classed criminal?
Laurence E. Gold: --Our view is that if that line is rejected, then you have to go to the highest level distinction, which is the distinction between proceedings which are to vindicate the authority of the courts and the law, versus proceedings which are to provide a definite unique benefit to the plaintiff that is, in a real sense, different from the overall effort to maintain peace and social value.
Antonin Scalia: Ex ante or ex post? I mean, ex ante when the fines are announced, if you do this thing you will pay a fine, they are for the benefit of the plaintiff, to protect the plaintiff from the harm that doing that unlawful thing would produce. But once the acts are done, the plaintiffs have already been... and then the fine is imposed.
Laurence E. Gold: I--
Antonin Scalia: You could say at that point there's nothing left but vindication of the court.
Laurence E. Gold: --I think that, far better than I've been able to do so far, that exposes the nature of the problem. To say that if, ex ante, you enter an order, do not harm the plaintiff, and say if you do, you will be fined $100,000... to say that that is a situation which is different from the following: you enter an order saying do not harm the plaintiff, actions are taken which harm the plaintiff, a proceeding is begun in contempt, and a fine of $100,000 is imposed. To say that those are different, the first civil, the second has always been criminal, is to deny that the criminal law, with the sentencing guidelines and other statement, prior statements of both the norm and the sanction, is somehow civil. And that, we think, leaves the underlying constitutional values, which we have not talked about, and I am only going to talk about for a minute, completely unprotected. After all, there are two social values here. One, the basic social values which provide a heightened degree of due process for the imposition of certain forms of penalties. And secondly, the particular concern of the contempt procedure, which is one which conflates all the power of Government into a single individual which varies in a way which is contrary to the whole notion of protecting against improper incursions on liberty by separating the powers of Government.
David H. Souter: Well, what you speak of as the single individual is, in fact, the court. And the court, in fact, has a position in these cases which is different from the court in a normal criminal case, or indeed from a normal civil case. Because the court, in effect, has... by issuing an injunction, has become an actor and, in effect, has created a public stake which doesn't exist in your two other extreme examples. So there's nothing unreasonable, on the face of it, to say that there should be a particular process, and not necessarily a criminal one, to protect that... that third and different interest.
Laurence E. Gold: The history of the doctrine, to date, has been, as we understand it, precisely the opposite, Justice Souter. It has been the recognition that the fact that the judge issued the order creates grave risks that, in dealing with--
David H. Souter: Oh, I will grant you that it does create grave risks. But I'm saying... all I'm saying is that the existence of that risk is not dispositive, because that risk is still, as it were, sort of the unfortunate reflection of a third interest which does not occur in the run of the mill criminal case or the run of the mill civil case.
Laurence E. Gold: --I'd like to move on to the second argument. Before I do, let me simply say that if that's true, there is no room for a criminal contempt. And it is the starting point of every case in this Court, from Gompers through Dixon, is that there is an area of... called criminal contempt which must proceed under constitutional due process standards. Let me talk about the second question presented. In the second question--
Antonin Scalia: Can I ask you a question about the second question?
Laurence E. Gold: --Absolutely.
Antonin Scalia: Is it your position that despite all of the characteristics which exist that you say would make this a criminal proceeding, it can be converted into a civil proceeding so long as the State court announces when it's imposes, of course, you know, even if you violate these orders and incur liability for the fines, you'll be able to settle? If you settle and the plaintiff is willing to waive the fines, the fines will be waived, is that enough to convert what might otherwise be a criminal process, according to your analysis, into a civil?
Laurence E. Gold: The... that characterization, I think, is... of the process is the respondents'. But in terms of your point, we do believe that if you look at the most general proposition, that criminal contempt is to vindicate the authority of the law and the court, versus civil contempt, which is to bring about the benefits of the order to the plaintiff in a remedial fashion, then law, any rule which says that the plaintiff is not master of the case and cannot settle it and it is not inherent in the case, that satisfaction to the plaintiff is not enough, is a hallmark of criminal contempt, if there is no other hallmark of criminal contempt.
Antonin Scalia: And vice versa. I asked you the vice versa question. Likewise, if the plaintiff can waive it, it becomes civil.
Laurence E. Gold: We would not--
Antonin Scalia: Or if you say A, you have to say B, Mr. Gold, don't you?
Laurence E. Gold: --Well, we would say that any case... we would say that any case in which the plaintiff can waive... let me just put it in these terms. I hadn't thought of it exactly as you said it, but it is true, from Gompers on, that criminal contempt cannot be settled by the putative private plaintiff, and in that sense I agree totally with what you said.
William H. Rehnquist: Thank you, Mr. Gold. Mr. Roberts, we'll hear from you.
John G. Roberts, Jr.: Thank you, Mr. Chief Justice, and may it please the Court: The Virginia Supreme Court correctly determined, in accord with every Federal court of appeals to have considered this question, that contempt sanctions of the sort at issue here are civil in nature. This Court has explained that we should look to the substance of the proceeding in classifying contempts as civil or criminal. Here the defendant violated an injunction repeatedly. The defendant was brought before the court and the judge said you've violated this injunction, and to get you to stop violating it and start complying with it in the future, I'm going to fine you so much for every future violation. These fines are prospective and you can avoid them completely by complying with the injunction. I hope this will deter future violations. Now--
Ruth Bader Ginsburg: Mr. Roberts, if the fines hadn't been prospective, then the enforcement of the injunction would have had to have been through a criminal process with a jury trial.
John G. Roberts, Jr.: --If the--
Ruth Bader Ginsburg: But everything turned on specifying the fee schedule.
John G. Roberts, Jr.: --In general, I think that's correct. You need to have a situation where the judge specifies in advance a warning to the defendant to coerce him. I think--
Anthony M. Kennedy: What are the constitutional values that are served by that distinction?
John G. Roberts, Jr.: --The constitutional values that are served is that your... the Bill of Rights protections that the union is saying it wasn't granted are applicable only in a criminal proceeding, one brought to punish. If the proceeding is not one brought to punish, it's not a criminal proceeding and then those protections are not applicable. The question instead is is the proceeding coercive and remedial, as opposed to punitive.
Antonin Scalia: Well, why has it become... why has it become coercive just because you name the amount of money? I mean is the difference between the judge saying if you violate my order, I'm going to fine you $1,000 a day, and the judge saying if you violate my order, I'm going to fine you something; I won't tell you now what it is, but you're going to be fined for contempt of court?
John G. Roberts, Jr.: It's not--
Antonin Scalia: I mean they're both coercive, it seems to me.
John G. Roberts, Jr.: --Well, they do have general coercive aspects. It looks more remedial in the sense that it is specified and focused on a particular defendant. Because in the situation you posit, what the judge is going to do after the violation is set the fine based on the violation, look to the past. What he's doing here is looking to the future. He's not saying you've done terrible things and this is what you're going to pay. He's saying I want to get you to stop doing those things, and this is what I think it will take.
David H. Souter: But the only difference is he makes a speech to the defendant, as opposed, in effect, to deeming that the defendant knows the criminal law.
John G. Roberts, Jr.: No--
David H. Souter: That seems to me a totally formalistic distinction.
John G. Roberts, Jr.: --It's not a formalistic distinction, Your Honor, in this respect; the general criminal law does have deterrent effect. It applies to everyone, a general deterrence. Here we're talking about a specific defendant whose conduct is... has risen to a level that an injunction's been entered against him. It's been narrowed down to that defendant. And when the judge... and that defendant then violates the order again. And when the judge says this is what I think it will take to get you to comply, that order is narrowed and coercive in a far more focused sense than the criminal law is deterrent.
David H. Souter: I see... I see it's narrowing, but I'm not sure why its narrowing makes it coercive, and I don't see what the extra element of coercion is.
John G. Roberts, Jr.: Well, the extra element starts, first, with the fact that there's been a violation of the injunction already. This is not just the general citizen walking the street who has the criminal law applied to him. It's been focused on a particular individual, and the judge has indicated to that individual specific sanctions that will follow further violations.
David H. Souter: Sure. But if a judge is sentencing an individual for a violation of the criminal law and says don't let me see you here again or I'll throw the book at you, that doesn't convert the second proceeding, if he does come back, into a civil proceeding, and I'm not sure what the distinction is between that and what you're proposing for us here.
John G. Roberts, Jr.: Well, the distinction is the same one that the Court has drawn between civil and criminal statutes. Your argument, it seems, would undermine the validity of civil penalties generally, but this Court has upheld them. And it's upheld them because it's recognized that the sanction in that case, in a civil penalty case, serves a remedial objective. It's reasonably related to a remedial objective and it's not explainable solely on the basis of punitive values.
John Paul Stevens: Mr. Roberts, can I ask just one other question. What if, in addition to saying if you do so and so you'll be fined $100,000, the judge said, and you'll spend 24 hours in jail?
John G. Roberts, Jr.: Imprisonment has not been used traditionally, Your Honor, in the sense of--
John Paul Stevens: I understand. But what would your answer be if the judge did say that?
John G. Roberts, Jr.: --That the imprisonment may well not be valid. And the distinction is this; imprisonment has typically been used in contempt where a situation is... the coercive situation with a defendant could comply at any point. Say you're in prison until you turn over the documents. Now, if you wait 3 days to turn over the documents, that's like the situation we have here. The union, you're going to be fined until you start complying. If they don't comply for 3 days, they incur those fines. Now, the prisoner can't get back those 3 days, but that doesn't make the proceeding criminal. Here, the union can't get back the fines it has incurred for its violations--
Anthony M. Kennedy: So in a domestic relations case, a judge can say that for every time you go near the wife's house in violation of this order, I'll fine you $500.
John G. Roberts, Jr.: --If... adding one feature that I think... again, that is present in this case and confirms the remedial aspect, which is there has been violations of a prior order. In other words, it's not simply this goes with the injunction. There's a problem here before the court that we have to remedy. The injunction isn't working. You're violating it.
Anthony M. Kennedy: Well, what's... is the basis for that distinction just to vindicate the authority of the court as opposed to bringing the dispute to an orderly focus before the court? I can see if documents aren't being produced or if the court's processes are somehow being thwarted so that it cannot resolve the dispute, that it may have to take these measures, but this seems to me an ultimate order designed only to vindicate the court's authority.
John G. Roberts, Jr.: Not simply to vindicate the court's authority, but to remedy the problem before the court. The sanctions are announced in order to coerce the defendant into complying with the court order. It is that remedial aspect, a focused aspect, not simply the general deterrent effect--
Ruth Bader Ginsburg: Mr. Roberts, why don't we take the court at its word? And it said: "Courts of the Commonwealth must have the authority to enforce their orders by employing coercive civil sanctions if the dignity of the law and public respect for the judiciary are to be maintained. " The court is there telling us its concern with its own good and welfare, and it must enforce... impose these fines to promote public respect for the judiciary.
John G. Roberts, Jr.: --Two... a very important distinction, Your Honor. That is talking about enforcing the civil contempt fines once they have been imposed and reduced to judgment. That is not the reason the judge imposed these prospective sanctions in the first place. The record is quite clear. The judge said this is to get you to comply. He said I sincerely hope this will deter future violations. The passage Your Honor was reading from concerns after this case, the union and the company had settled. At that point does the court have to, as a matter of Federal constitutional law, vacate the previously imposed fines already reduced to judgment? And the answer is no, because these are court orders and those are not at the disposal of the parties. The--
Ruth Bader Ginsburg: But doesn't that show, if there was ambiguity before, what the court conceived the character of these fines to be?
John G. Roberts, Jr.: --No, Your--
Ruth Bader Ginsburg: It says I'm not vacating... the court says we're not vacating these fines because they relate to the dignity of the court.
John G. Roberts, Jr.: --No, it's... the trial court quite clearly spelled out... and they're set forth in our brief... whenever he imposed these sanctions, that this is civil contempt, it is to get you to comply, if you comply you will not incur any fines whatever. They did not comply, they violated the order, and then the promised sanction was imposed. Now at that point the court's authority is implicated. Is its fine going to be enforced or not, or is it going to be something that the union and the company can bargain about between themselves? To come in and say, when the judge says I have entered sanctions fining you this much, pay... and the union is going to stand up and say, well, no, Your Honor, we've sort of worked that out between ourselves. At that point the court's authority to enforce its previously imposed judgments is implicated.
Antonin Scalia: Mr.--
John G. Roberts, Jr.: That doesn't retroactively change the character of the sanctions when they were announced.
Antonin Scalia: --Mr. Roberts, the answer you gave to Justice Stevens a little earlier about an order that imposes imprisonment instead of fines prospectively, it seems to me to stand history on its head. The classic... the classic contempt situation, civil contempt, is putting somebody in jail. In fact, I don't know any of the older cases in which civil contempt, coercing somebody to turn over the key, is a fine. It's always jail and no fines. Do you know any early cases that imposed fines?
John G. Roberts, Jr.: Certainly. The United Mine Workers decision from this Court... this Court--
Antonin Scalia: I said very early. I'm talking-- [Laughter] I'm talking about the development of civil contempt in the common law, and the classic situation is throwing somebody in jail until he coughs up the information.
John G. Roberts, Jr.: --I don't--
Antonin Scalia: And yet you told Justice Stevens, well, if prospectively you put him in jail it's obviously bad, although prospectively you can fine him and that's just civil. But I think that... that just inverts what had been the rule at common law, that you could throw somebody in jail. I don't know any rule at common law that you could fine him.
John G. Roberts, Jr.: --Well, I don't disagree with you that the classic case is putting someone in jail until they comply with the court's order. But that doesn't mean that the use of fines in this situation is invalid. As I mentioned, fines were used this way in the United Mine Workers case. And the one thing this Court has said--
Anthony M. Kennedy: Was the reason for that the necessity of coercing corporate defendants as opposed to individuals?
John G. Roberts, Jr.: --It's certainly a significant factor, although perhaps the judge could have put the union leaders in jail until the union complied with his order. And he didn't do so for a simple reason. This Court has announced, from its earlier cases, that in the case of contempt, a court should use the least possible power to the end proposed. The judge, confronted with a situation of nothing less than the breakdown of the rule of law in Southwestern Virginia, thought that this was the least incendiary and the most effective way to bring about compliance with an injunction. Putting the union leaders in prison may have been more dramatic, but may have contributed to the problem rather than remedying it, which was his primary objective throughout.
Antonin Scalia: Do you know of any early... the early cases in the development of this civil contempt at common law in which what the person in jail was required to do before he could get out was something very... maybe there's no way it could have been something very complex. It had to be something pretty simple, didn't it? He had to turn over a document or sign a document or do something like that. It's very easy; you don't really need a jury to figure out whether that's been done or not. And might not that be the distinction? Might not that be why that was allowed?
John G. Roberts, Jr.: No, I don't think the distinction is--
Antonin Scalia: Because it was simple to tell, whereas where the... whether this has been violated or not is very difficult to tell. I want a jury trial on it.
John G. Roberts, Jr.: --No, I don't think the distinction has always been whether it was something easy to do or hard to do, and it's certainly not that difficult to tell. The one thing the court was clear about--
Antonin Scalia: Easy to determine, not necessarily easy to do. Easy to determine whether it's been done.
John G. Roberts, Jr.: --Well, it was easy to determine in this case, because the one thing this circuit court judge and his counterpart in the Federal court who was addressing the same situation, both concluded is that the union leadership had complete control over the conduct of the strikers. There's nothing difficult about determining whether or not the court's order had been complied with. Certainly nothing difficult--
Antonin Scalia: Whether there had been any violence? Whether, you know... you mean people don't come in and say there was violence and other people say there wasn't violence?
John G. Roberts, Jr.: --The question is not violence--
Antonin Scalia: In the old common law, the classic case, the judge says here's the document, Your Honor, let me out of jail. He says, oh, yeah, I looked at the document. Yes, you gave it to me. Out of jail. In this case there's going to be debate about whether there was violence, continued violence or not.
John G. Roberts, Jr.: --Well, there--
Antonin Scalia: What's the judge going to do? He's going to hear witnesses, I guess.
John G. Roberts, Jr.: --And he did. There was discovery. There was examination and cross-examination of witnesses.
Antonin Scalia: That didn't have to be done in the old common law.
John G. Roberts, Jr.: Well--
Antonin Scalia: When you threw somebody in jail until he coughed up the key or signed a document or delivered a document.
John G. Roberts, Jr.: --I don't know that the old common law had a situation where there was such widespread organized flouting of a court injunction. I'm not aware of that situation coming up. And the question is in such a situation, is the court powerless to use its civil contempt powers to enforce compliance with its orders; is its only recourse punishment later on? Take the situation of a company that's dumping dioxin in the city water supply, and an injunction is issued and the company is still doing it. The union would say that all that the court can do is somewhere down the road punish the company for that.
John Paul Stevens: Well, Mr. Roberts, that's not quite right. At page 27 of your brief you point out some specific commands that the judge gave: "Place a designated supervisor or captain at each picket site. " and such.
John G. Roberts, Jr.: That's correct.
John Paul Stevens: Now, that sort of thing, you could tell whether the man was there or not.
John G. Roberts, Jr.: Well, yes, Your Honor, that's right. There were four specific elements in the injunction that were affirmative under the union's viewing it--
John Paul Stevens: That... those penalties for that sort of thing are not at issue here, are they?
John G. Roberts, Jr.: --Well, not from what my brother has said this morning, I gather they're not, no, because they meet his affirmative prohibitory test. But--
John Paul Stevens: As I understand it, the penalties are for things like somebody threw a rock, and the union says it was a stranger or he didn't have authority to do it or he was violating orders or something like that which, as Justice Scalia suggests, requires some kind of a evidentiary hearing, discovery, to find out whether it happened. But whether they posted a supervisor at the corner of State and Madison, that's not a factual problem.
John G. Roberts, Jr.: --Let me... let me clarify my answer to your earlier question. Fines were imposed for violations of those affirmative obligations. I understood my brother to say that he didn't disagree that those could not... I mean, could be imposed during civil proceeding.
Antonin Scalia: Oh, I was going to ask that. I think he does... he was just... he was just talking about part one of his case. I think he thinks part two of his case washes those out as well.
John G. Roberts, Jr.: Well--
Antonin Scalia: That is, those were settled out of it.
John G. Roberts, Jr.: --Well, then let me talk about part two. His argument on part two is that the parties can agree between themselves to settle the case, and that that precludes the court from imposing the fines that had already been reduced to judgment. That is a question of State law, how the mootness rules apply. The Virginia Supreme Court has provided the definitive answer to that question of State law. Gompers doesn't control, not only for the reason that it's an issue of State law, but--
Ruth Bader Ginsburg: Mr. Roberts, why would somebody regard that as going to mootness instead of revealing what the character of these proceedings were? In other words, if it's on the criminal side, then it's certainly not moot just because the parties settled. So why isn't the mootness for this really a misnomer? If the case is still alive, it's because it has a criminal character.
John G. Roberts, Jr.: --Well, the Gompers Court, in considering the same question in the Federal context, analyzed it in mootness terms. We have a situation where a case has been settled and the question is the consequence of that on particular judgments. It seems to me a classic case of mootness. Justice Stevens, I think I did not answer your question. The affirmative provisions in the order were violated and fines were imposed for those. My point is that it is a difficult, if not impossible task to draw a distinction between the affirmative and the prohibitory. Take the recent situation out in Los Angeles, the police sickout. An injunction was entered there to end that. It could have said return to work or it could have said stop the sickout: affirmative or prohibitory. And you can't look to the status quo to figure out in substance which it was, because some of the officers would be sick one day and some the next. The distinction is completely manipulable and is not the test that this Court has adopted. Finally, I would note briefly that in their papers the union argues for a remand to reconsider the excessiveness of the fines, although it has not been mentioned this morning. They have two arguments: substantive due process and the Eighth Amendment. The Eighth Amendment argument was waived; it wasn't decided by the Virginia Supreme Court.
Sandra Day O'Connor: Well, Mr. Roberts, it was, of course, raised in their application to the State court. It's hard to say that it was waived. They didn't spend a lot of time on it, but what if we have to reach it, as I think we probably do?
John G. Roberts, Jr.: Well--
Sandra Day O'Connor: Has this Court ever said the Excessive Fines Clause is incorporated?
John G. Roberts, Jr.: --It has not. It would--
Sandra Day O'Connor: And do you think we should? Is it appropriate that we do that?
John G. Roberts, Jr.: --The question was specifically left open in Browning Ferris. It would seem odd to have to address that profound constitutional question in a case where the issue was not raised. They did not, if I may, raise the question in their application. The Virginia Supreme Court has a questions presented practice similar to that of this Court. The Eighth Amendment or the words Excessive Fines Clause do not appear in their questions presented. Thank you, Your Honor.
William H. Rehnquist: Thank you, Mr. Roberts. Mr. Bender, we'll hear from you.
Paul Bender: Mr. Chief Justice, and may it please the Court: This Court's cases have steadily recognized, and I think everybody in this case agrees, that the traditional use of civil contempt to coerce a recalcitrant party or witness into doing something that the court wants them to do, traditionally by putting him in jail until he does it, more recently by fines that accumulate until he or she does it, that that's constitutional, whether done in a State or Federal court. The question in this case, as... I think the central question in this case, as Justice Ginsburg mentioned at the outset of the argument, is with prohibitory injunctions, where do we draw the line between those which are constitutional and those which are not? That there are constitutional rules I think is reflected in this Court's decision in Hicks, which was a State case and which mentioned that there are constitutional rules.
Sandra Day O'Connor: Well then, what are those rules? Is it a matter of the Due Process Clause and is it procedural?
Paul Bender: I think it's a matter of due process and I think it is procedural, yes. The Government's position in this case is that in addition to the traditional use of civil contempt in the coercive manner I just mentioned, there are at least two other areas where civil contempt has traditionally been used and which this Court should recognize as being constitutional uses of civil contempt. One the Court has explicitly recognized over and over again, and that is that civil contempt can be used in civil litigation to compensate a party for damages done to that party by the other party who violates the injunction.
William H. Rehnquist: Well, Mr. Bender, let me interrupt you for a moment. You say a constitutional use of civil contempt, but it's quite possible to read our cases, is it not, as saying that the distinction between... there is a constitutional decision between criminal contempt and civil contempt, because criminal contempt requires the invocation of certain procedural safeguards, like a jury trial? But I don't read that as connoting that there's some constitutional limitation on civil contempt at all.
Paul Bender: It may not be, and it may be that any time a judge announces that he is proceeding by way of civil contempt and that the penalties are going to be imposed civilly, that that's constitutional. Even--
Ruth Bader Ginsburg: Well, is it just a matter of how the judge characterizes it? Isn't there something that we can... you can describe and say if you have that, it's got to be criminal?
Paul Bender: --Yes. I think it's easier to look at it in terms of some things which, if they're present, it's clear that you can operate civilly. And I think this case falls within one of those categories.
Ruth Bader Ginsburg: How about describing what falls on the other side of the line when--
Paul Bender: Well, essentially, what falls on the other side of the line are prohibitory, if there is another side of the line. And I think as Chief Justice Rehnquist points out, it's conceivable that this Court could hold that any time a judge characterizes the proceedings as civil, they should be treated... that should be treated as constitutional. There are benefits to the--
Ruth Bader Ginsburg: --Well, what do you with the old distinction between a judge can act on the spot if a contempt is committed in the judge's presence, but if it's not in the judge's presence, then it has to be enforced through a criminal procedure?
Paul Bender: --I think even--
Ruth Bader Ginsburg: Do we wipe that out and say if the judge calls it civil, it's civil?
Paul Bender: --My own view is that there is a core of contempt which must be treated criminally. And within that core, I would think, are acts which are malum in se, the kinds of acts which have traditionally been treated criminally by the law. And, clearly, I think within that category would be punishments like going to jail for committing such an act.
Anthony M. Kennedy: So your definition of criminal contempt is an act that's malum in se?
Paul Bender: No, it's not a definition. It's... I don't think--
Anthony M. Kennedy: Is there a definition of criminal contempt?
Paul Bender: --Yeah, and I think it is... I think it's better to put it the other way around, that there are at least two categories of cases--
Anthony M. Kennedy: Well, we'll take it either way.
Paul Bender: --All right. I think there are at least two categories of cases where civil contempt can be used by a court. One is where it's used to compensate one of the parties. If I... if I, as a judge, enjoin you not to cut down your neighbor's trees, and you nevertheless go ahead and cut down your neighbor's trees, one thing the judge can do, I think, is to award your neighbor civil contempt damages, compensatory damages for what you did. And that shouldn't... that shouldn't surprise us. It's very similar to tort damages. On tort proceedings which are civil, you can have even punitive damages. So the use of civil contempt in that situation, the Court has recognized over and over again that the compensatory use of civil contempt is also constitutional. There's a second category which I think is closer to this case, and which is, I think, the leading example of it, is the National Labor Relations Board's use of civil contempt. As this Court has recognized over and over again, there are areas of regulation of conduct that the Government may proceed in civilly rather than criminally. The Court's OSHA cases show that, for example. As I said, the Court's National Labor Relations Board cases show that most prominently. Where the Court has said, for example, in Republic Steel, the Act is essentially remedial; it does not carry a penal program. It is perfectly constitutional for a legislature to decide to regulate something civilly, and labor relations are one of the prime areas where that is possible. So the National Labor Relations Board could constitutionally be given the power itself to levy civil penalties for violations of the Act.
David H. Souter: So the Board, in effect, can do just what you were saying or suggesting the judge might be able to do at the beginning, and that is to say we're telling you right now that when we coerce, it's civil coercion. And that announcement, that labeling is sufficient.
Paul Bender: Congress' labeling, I think, clearly is sufficient. If Congress says, as it has to the Board, we want you to act civilly rather than criminally. And there are lots of reasons why Congress might want to do that.
David H. Souter: What if... what if a judge announces this labeling and he says, look, I'm not going to mix myself up in this labor dispute or this custody dispute. I'm simply going to issue the order, and at some point it's going to be resolved, but I'm telling you right now that if you do not do what I order you to do, or if you fail or if you do what I order you not to do, when it's all over I'm going to levy fines on the following fine schedule, and they're... they're going to be... they're just going to be civil fines, I'm telling you that right now. Is that sufficient to give it a conclusively civil character?
Paul Bender: I think it clearly is in a situation where the legislature has said that that's the way the Government wants to proceed.
David H. Souter: Even though there's nothing... nothing left to converse... to coerce.
Paul Bender: Yes. Yeah, the National Labor Relations Board does that all the time.
Antonin Scalia: Mr. Bender, there... there are scholars who think that that was a great mistake, our line of decisions which allowed administrative agencies, at the direction of Congress or not, to avoid the right to jury trial by imposing civil crime... so-called civil penalties. And I don't know that we want to extend that to a creation by a district judge. It's serious enough to allow its creation by a legislature.
Paul Bender: I don't think you do either to a creation by a district judge. But this case involves a State doing it, and as the Court said in Hicks, if a State characterizes its procedures as civil, the Court ought to defer to that unless it's clearly shown that they aren't civil in character.
Ruth Bader Ginsburg: Mr. Bender, suppose the State didn't have the civil party in this case. Suppose the mine owners hadn't sued for an injunction, but there's all this violence that's very dangerous for the community going on, and so the State of Virginia wants to stop it; what kind of proceeding would you have to have?
Paul Bender: I think the State could do what the Federal Government has done and decide to deal with that kind of a behavior in a strike situation civilly rather than criminally, and pass a statute authorizing a State agency, and I think authorizing the agency to go to court for enforcement of its orders, to operate civilly rather than criminally, because that's the kind of thing where that choice is available. This case is more difficult than that because in this case the State doesn't have a statute like that. But the judge said at the outset that he was proceeding civilly; I think trying to do it in the same way the National Labor Relations Board--
Ruth Bader Ginsburg: Since he didn't have a statutory regime like that, the characterization of this case as civil, then, depends on the existence of a civil party.
Paul Bender: --Yes.
Ruth Bader Ginsburg: And if that's so, then when the civil party departs and says I'm through, then how can the State continue to maintain that it's civil?
Paul Bender: The government can be a civil party, and the State in this case, or the judge in this case treated... and so did the Virginia Supreme Court, treated the governments, the county and the State, as being parties to the case. That's unusual, but I don't think it's unconstitutional. And so I think what the judge did here was treat the governmental entities as civil parties, and he decided he was proceeding by way of civil procedures in the same way the National Labor Relations Board proceeded against exactly the same strike by way of Federal civil proceedings. And--
Ruth Bader Ginsburg: A real party in interest or the... the State isn't named as a party.
Paul Bender: --That's true. I agree with you, it's extremely unusual. I don't think it would happen in Federal court. But that's not the question in this case. The question in this case is whether it's constitutional for the State to do that. Has the State passed the line? And the Court said in Hicks that there are constitutional rules, but we don't find the State has violated them unless it's extremely clear that the State has violated them. And the question for the Court in this case is whether it is that extremely clear?
Antonin Scalia: And our model of constitutionality is going to be civil fines by administrative agencies.
Paul Bender: That is a constitutional way of using civil contempt, yes. And since it has been... it has been happening and used by the Federal Government for many, many years, I don't think you can say that the State is automatically disentitled to do that. The question in this case is whether the State has done things in enough of a similar way? And there are a number of similarities here. The affirmative nature of some of the injunctions is part of it.
William H. Rehnquist: Thank you, Mr. Bender. Mr. Gold, you have 3 minutes remaining.
Laurence E. Gold: Thank you, Your Honor. Let me begin by responding to the last point Mr. Bender makes... made, and call the Court's attention to page 13 of our reply brief and Note 9. There is nothing in any of the Virginia court decisions or opinions which treats the State or the counties as parties. It was the court itself becoming a party through a special master--
Antonin Scalia: The Labor Board doesn't have to announce in advance what the fines will be, which is, assertedly, what distinguishes this and makes it civil contempt, right? The Labor Board can just say you don't do this, and if you do it I will impose a civil fine.
Laurence E. Gold: --Right. And--
Antonin Scalia: And that's what we're going to extend to district judges, I assume.
Laurence E. Gold: --Well, beyond that... that point, with which I agree insofar as it's a debater's point rather than a prediction, the fact of the matter is that 100 people could disagree which way you deter most effectively: by saying, as Justice Souter did, if you do what I have prohibited you from doing, there will be very serious penalties, or saying the maximum penalty would be $100,000. To say that one is an indicia of a remedial intent and the other of a punitive, retributive intent, as we attempt to argue, just will not wash. Beyond that, let me say that unless... there are two things that I would like to emphasize that my brother said. Mr. Bender began by talking about compensatory relief. We have stated in every paper filed that the provision of compensatory relief, generously conceived, is the province of civil contempt. We're talking about noncompensatory fines, payable to the State, growing out of a private lawsuit, or imprisonment. Secondly, Mr. Roberts, unless I mistake him, suggested that there's a line between wrongs that are malum in se and other wrongs. What the underlying wrongs here alleged were violence, vandalism, and so on. And finally, it is of the essence that the issues to be decided were not issues of the kind that were in the history of equity: provide these papers, do this, do that. The union argued that such wrongs as were--
William H. Rehnquist: Thank you, Mr. Gold. Your time has expired. The case is submitted.


Earl Warren: Robert C. Brooks, Petitioner, versus Missouri Pacific Railroad. Mr. Heymann, you may continue your argument.
Philip B. Heymann: Thank you Mr. Chief Justice, and may it please the Court. I'd like to begin my argument by making clear one point that is crucial to our case and then I'm afraid I left very obscure yesterday. We are not claiming that the veteran has any rights in a higher position until after he has fully completed any work requirement that the employer imposes. He must actually work the number of days the employer requires before he has any rights in a higher position. Now, to take an example that will make that absolutely clear. If the employer -- if the employee has worked 100 days before he goes into military service and then misses, let's say 600 days of a 1040-day period, because of his military service. When he returns, he must work 940 more days. He must get in 1040 days of actual work. This -- this case, the Brooks case, and the Tilton case which was the last one, only arise after he's actually completed 1040 days of actual work. At that point, he says, “I'd like my seniority date to be placed so I haven't lost my relative seniority position.” And that's where these cases begin after 1040 days of actual work.
William J. Brennan, Jr.: (Inaudible)
Philip B. Heymann: That's it Justice Brennan. He has to work 1040 actual days of work -- military service not counted towards those.
William J. Brennan, Jr.: He has no -- he has no right to work those 1040 days that's involved, doesn't he?
Philip B. Heymann: He has no right -- he has actually under the contract on his return, certain rights to work ahead of other people. In the Brooks case, an apprentice has a right to continue his apprenticeship. In the cases before this, a upgraded helper has a right to work ahead of those who were junior to him in upgrading but does it on -- he has certain contract rights but --
William J. Brennan, Jr.: But that's all --
Philip B. Heymann: That's all --
William J. Brennan, Jr.: -- is it layoff or a shutdown?
Philip B. Heymann: In -- if there is a layoff, if there's a shutdown, anything that happens after his military service is at the employee's peril.
William J. Brennan, Jr.: He is subject to all those perils --
Philip B. Heymann: He's subject to all those perils. Now, we -- I had argued yesterday that the function of the statute, or the most important function is to grant the veteran as a matter of statutory right, what would've been his as a matter of contract right, had he been “continuously employed.” Those words have been used all the way back to fiscal decision at the very beginning. I then argued that the quotes were taken from around the words “continuously employed” in a Diehl for the first time. The issue what “continuously employed” meant was squarely faced and decided and it was held that it means continuously at work when -- when the veteran would've had a right to work. That was the only case that has taken the quotes away from the words “continuously employed.” And I finally said that in the McKinney case, the McKinney case was a case that again could be decided with the quotes around continuously employed. It said the veteran can only claim what would be his as a matter of right, had he been continuously employed when he was in military service. He cannot claim what would've been his only in the employer's discretion, had he not been in military service. But only one case has passed on exactly what “continuously employed” means and that's the Diehl case and that's never been overruled. I had begun to discuss Brooks yesterday, Brooks was an apprentice in contrast to Diehl who was an upgraded helper. And I'd said that the requirement of finishing 1040 days of apprenticeship was, we believed, identical to the requirement of working 1040 days as an upgraded helper in Diehl, I'd also talked about the requirement of a correspondence course. There are two other things I should mention in Brook -- Brooks, two other points that I do not think are difficulties but they are points. The first is, the respondent suggests that the fact that Brooks transferred a number of times after returning to Monroe, Louisiana, maybe relevant to this case. One of those transfers was apparently a discretionary transfer with the employer. My answer to that is very much what I answered Justice Stewart before. “We're only reconstructing his time of military service. He left Monroe, Louisiana and he returned to Monroe, Louisiana. He claims the right to be treated during that gap in his employment career as if he had been continuously employed.” There are no transfers as to the rest of his career after his return, he takes that as it falls, that's his actual history of -- he gets lot of days of work, that's fine if doesn't, that's fine too. When Brooks returned to Monroe, Louisiana after his military service, he had certain statutory rights because there would've been contract rights had he been continuously employed. One of those was a right to be treated as if he had worked whenever he would've had the right to work, had he not been in service. He -- he carried this with him wherever he went later. And later when he actually completed 1040 days of actual work, he could count these days in setting his seniority date. Later transfers just aren't relevant in the case. The final variation in the case is --
Speaker: (Inaudible)
Philip B. Heymann: I'm -- I'm not sure I understand Mr. Justice --
Speaker: (Inaudible) the same kind of work (Inaudible) in the location.
Philip B. Heymann: He -- he was doing the same kind of work.
Speaker: (Inaudible)
Philip B. Heymann: It would -- it -- yes, they're certainly relevant in the sense that he has to actually work and that the days of actual work are counted up and had he -- had he failed to get work after he returned from Monroe, Louisiana, could he -- and had he not been able to find work as an apprentice, that would've slowed him down very much. The last -- their variation is the one the Eighth Circuit decided on. The Eighth Circuit said in its decision in this case that Brooks had no right to be employed as a journeyman in North Little Rock on November 3rd, 1955, the date everyone has agreed for purposes of this case or for purposes of dating that he would've finished his apprenticeship. They say moreover, it was certainly unforeseeable that there would've been a shortage of a -- of journeymen machinist at that time. I'm -- I'm sorry, I have to take the Court back. I had said yesterday that seniority as a journeyman begins on the first date that an apprentice works as a journeyman after completing his apprenticeship period. It doesn't begin on the last date of completing the apprenticeship period but on the first day of work as a journeyman. Well, to the Eighth Circuit's decision, we say that Brooks had the very sort of right to work as a journeyman on November 3rd, 1955 but the statute gives him a statute that the statute protects. He had a right to be employed ahead of all those who were actually doing journeyman work on that date. Not all of those, all those upgraded apprentices. The record is clear that there were number of vacancies for a journeyman's work on November 3rd, in November, 1955, that these were being filled by upgraded apprentices and that any journeyman would've had a right to bump all -- what of -- well, the first or anyone of the upgraded apprentices and take that work. All the statute requires in the way of a right to a promotion or a right to a seniority date or a right to work, is a right to fill a vacancy ahead of all the other claimants. That's -- that's the holding of the Mckin -- of McKinney on remand, I don't know. The Court remanded McKinney to determine whether McKinney would've had a right ahead of all other claimants to a -- a vacancy in group 1, he had been in group 2. And the -- the only right that the Court required was a right ahead of all other claimants to fill a vacancy that in fact, existed. Brooks had a right ahead of a number of claimants to fill a vacancy that actually existed at the time he would've completed his apprenticeship, he had a right to work as a journeyman at that time. It's -- as a practical matter, it's hardly necessary to add that he -- as a practical matter, he had a right against his employer too. His employer could only have failed to hire him as a journeyman by discharging a number of upgraded apprentices and seen a great deal of -- of machinist work left undone. The other fork of the Eighth Circuit's decision was that even if this maybe so, the fact that vacancies would exist on November 3rd was certainly unforeseeable when he left. This is the heart of the Brooks decision and the foreseeability is very much part of the decision in Tilton. We believe that foreseeability is plainly not required under the statute. This again was decided in the McKinney remand. When McKinney left for service, he couldn't have known that there would be a vacancy in group 1 during his absence. The Court held that if he had a right to be the one to fill that vacancy, he was entitled to, on his return, to be given that vacancy. Now, that was unforeseeable but the Court squarely held that he had that right. Foreseeability simply doesn't -- isn't simply -- isn't a requirement for the veteran to assert his rights. Now, in conclusion, I'd like to say just about three or four sentences. I've argued this case very largely in terms of it having been decided in Diehl that a veteran should be treated as if he were continuously at work, and this decision not having been later reversed by the Court in McKinney, McKinney involving a quite different problem. I'd like to say in conclusion that even if Diehl were not there, the Diehl result seems to me, to be almost dictated by the statute. The statute directs the employer in the courts to return the veteran without loss of seniority. The veterans in a case like this where they haven't been able to complete a number of days work requirement, 1040 days in both this cases and in Tilton, have sustained a very substantial loss of seniority. There is no question but the best approximation of maintaining their seniority position is to treat them as if they had been at work whenever they had a right to work and not to treat them as if they had been on a leave of absence, which is one thing they wouldn't have been on. Against that best approximation, the only fact -- there are no factors as there were in McKinney that weigh against adopting that best approximation. There is no interference with the employer's discretion which were in the Court in McKinney. There's no invitation for the Court to plunge into a -- an attempt to litigate imponderables, would the employer have promoted this man. It's simply a question of treating this if he had worked when he had a right to work. I think the Diehl result would be reached if it were fresh and it was certainly reached in Diehl. Thank you Your Honor.
Earl Warren: Mr. Light.
Robert V. Light: Mr. Chief Justice and may it please the Court. This case was tried in the Eastern District of Arkansas like Tilton that came here through the Eighth Circuit. There are a number of factual distinctions between this case and Tilton. In the first instance, Mr. Brooks was engaged in a traditional type of apprenticeship, a formalized traditional arrangement requiring coincidentally, 1040 days as did the -- which was the day requirement in Tilton. However, it's quite clear in this case that this was a training period, not simply a work period. This is made clear by the correspondence course that Mr. Justice White referred to yesterday.
Byron R. White: (Inaudible)
Robert V. Light: A journeyman machinist --
Byron R. White: (Inaudible)
Robert V. Light: Your Honor.
Byron R. White: (Inaudible)
Robert V. Light: He works under the journey -- you mean when he's on the job working as a machinist apprentice?
Byron R. White: Yes.
Robert V. Light: During the training period, he works under the supervision of the journeyman machinist performing machinist type of work in order to qualify to ultimately become a journeyman machinist. But it all --
Byron R. White: (Inaudible)
Robert V. Light: The record is unclear on that, I'm -- I'm certain they have apprentices --
Byron R. White: If the -- in the announcements, they have to know (Inaudible)?
Robert V. Light: Your Honor, frankly that is not in the record -- that was not developed, unlike --
Byron R. White: (Inaudible)
Robert V. Light: The -- the point that this is a training period?
Byron R. White: Yes.
Robert V. Light: Well --
Byron R. White: (Inaudible)
Robert V. Light: Well really, the only thing in the record on that, Your Honor is that the correspondence course which is a two --
Byron R. White: (Inaudible)
Robert V. Light: The Railroad Company through its apprentice instructor who testified in this case --
Byron R. White: (Inaudible)
Robert V. Light: That again was not developed in the trial court, Your Honor but he does testify and as I say, the only thing in the record on that point, that if the apprentice machinist gets as much as three months behind and his correspondence course is either two lessons per month by correspondence, that he's in a subject to dismissal from the apprenticeship.
Byron R. White: (Inaudible)
Robert V. Light: Well, I think we must infer that there are some -- some skill and some learning involved in -- in -- either that's implied from the course itself, the course -- correspondence course of study.
Byron R. White: (Inaudible)
Robert V. Light: Well, the standard of sufficient proficiency be retained in the apprenticeship.
Byron R. White: (Inaudible)
Robert V. Light: Well, perhaps we -- we find the -- the criteria that Your Honor is searching for in the written collective bargaining agreement as it pertains to apprentices. There's a provision in there that during the first period which happen to be 130 days in apprenticeships, divided into eight periods, that if he does not show proficiency to become an apprentice or to become a -- a journeyman that he would be dismissed, that he will not be retained. That's what the labor organization and the Railroad Company have agreed that he will not be retained if during the first period, he doesn't demonstrate proficiency, a positive standard.
Earl Warren: Then when he has finished this training period, is the employer at liberty either to employ as a machinist or to -- or to -- not to?
Robert V. Light: Yes, Mr. Chief Justice and that is another significant factor in this case that -- that distinguishes it from Tilton, argued yesterday. The apprentice machinist under the collective bargaining agreement in this case, on completing his 1040 days, does not thereby acquire, on the 1040th day or the 1041st day, seniority as a journeyman. In Tilton, the upgraded carmen helpers did acquire or make it on finishing their 1040th day and on making the election to forfeit their helper seniority, they did then acquire seniority on the carman -- journeymen carmen's seniority roster. He does not, as an apprentice. He has no right to an employment by the Railroad Company. The practical affect to that is that if there were four carmen -- upgraded carmen helpers who had finished their 1040 days and one vacancy for a carman, then the one that would get it would be the one that first finished his 1040 days. And contemporaneously, elected the forfeiters helper seniority and at that time, he went on the carmen's roster. However, in this case, if there were four apprentices who had competed and one vacancy for an -- for a journeyman machinist, the one that would get it is the one that the Railroad Company would select from among the four regardless of whether he had finished the day before or year before because he has no seniority whatever on the journeymen's seniority roster until he's employed by the Railroad Company. Selected and employed and works his first day and that's the day that he establishes on that roster.
Arthur J. Goldberg: (Inaudible)
Robert V. Light: Your Honor, I believe that rule is at page 62 of the record, Rule 37 (e) which states, “If an apprentice is retained -- if an apprentice is retained --
Arthur J. Goldberg: (Inaudible)
Robert V. Light: -- in service.”
Arthur J. Goldberg: (Inaudible)
Robert V. Light: I --
Arthur J. Goldberg: (Inaudible)
Robert V. Light: I believe Mr. Justice Goldberg, subject to Mr. Heymann's correcting me when he makes his rebuttal that perhaps that is a -- a misprint and it should read Rule 37. Now --
Speaker: 37?
Robert V. Light: Yes sir, it's Rule 37 (e).
Speaker: (Inaudible)
Robert V. Light: Yes, Your Honor.
Speaker: (Inaudible)
Robert V. Light: The trial court's findings of fact which of course were accepted by the Court of Appeals as it must accept them. They were based on substantial evidence, were to the effect that there was a shortage of journeymen mechanics at the North Little Rock shops during this November period that we -- were talking about and I'll talk about a little bit more in a moment. And that --
Speaker: (Inaudible)
Robert V. Light: Apprentices that presented --
Speaker: (Inaudible)
Robert V. Light: That -- that their -- that whatever discretion management had would've been readily -- readily exercised.
Speaker: (Inaudible)
Robert V. Light: That was the situation it found as the fact existed in North Little Rock at that time. Now, I'll -- I do not say that the trial -- in fact, I contest that trial court's conclusion of law --
Speaker: (Inaudible)
Robert V. Light: -- that this would make it automatic within McKinney is -- is correct, that I think that it's not.
Earl Warren: Mr. Light, would it disturb your argument if I ask you to state briefly how the Missouri Pacific Railroad would be injured if this case was reversed?
Robert V. Light: Your Honor, wouldn't -- it would not disturb my argument at all. There is no immediate prospect of injuring -- a monetary injury at Railroad Company. It doesn't cost the Railroad Company anymore to employ Mr. Brooks than it -- than it would to employ whoever is now ahead of him on the seniority roster that he would jump if he's successful in this case. There is a possibility that I haven't researched and reached the point of the finding -- searched and researched it that we would have claims from persons like Mr. Brooks if -- if this case is reversed, saying, “You had me in the wrong place on your seniority roster all these years, as the consequence, I was laid off when I should not have been and you owe me a back pay for that.” The other disadvantages that a man could sustain as a result of being on the wrong place in the seniority roster, it'd be hard to measure the monetary damage but he could've been in a better job that might've had either more convenient hours as a result of his seniority or might've produced more overtime pay than -- than the job he was able to hold because of his relative position on the seniority roster. Really, I'm here and the Railroad Company is here and in more or less, a representative capacity for the Railroad Brotherhood, that's an unusual position to be in but the labor organization of which the petitioner is a member, the AF -- AFL Railway Employees Department has filed an amicus brief here in support of the position that -- that I present.
Byron R. White: (Inaudible)
Robert V. Light: No, I don't quite follow you that --
Byron R. White: (Inaudible)
Robert V. Light: And I don't recall that is in either case, nor I don't think there's been any -- any suggestion to that effect here. If -- if I'm following you on what sort of mistake --
Byron R. White: (Inaudible)
Robert V. Light: The Government emphasizes in its brief that Brooks had a contract right to complete his apprenticeship once he had gotten into it and once he got over the first 130 days which was more or less a probationary or trial period. I'd like to point out that that is not what it -- it might imply, his contract right to complete the apprenticeship. He was not employed for a term of days or months adding up to 1040 year -- 1040 days. He was employed to complete his apprenticeship specifically provided in the agreement that he could be discharged for cause during the entirety of the 1040 days and certainly, he was subject to layoffs, which an employee contracted to work for a -- a period of time would not be. This is best evidence by what happened to Mr. Brooks in this case. He came back from the middle of his service to Monroe and resumed his apprenticeship. And thereafter, the -- there was a change and the work done at Monroe and he was laid off. The machinist work was no longer available to him as an apprentice there. So he had no right to continue his employment as such. Now, he was able to some several months later, to find a vacancy in the St. Louis shops of the Railroad Company and transferred there in response to a system call. But his so-called right to complete the employmentship -- to -- the employment to the extent that it is relevant isn't really what it implies. That is, that he was employed subject to the layoff if -- if the work diminished and subject to a discharge for cause. There is a stipulation in this case that I want to discuss to a certain extent. November 3, 1955 was the date that Mr. Heymann has referred to that all parties agreed that -- and to use his expression “that he would have completed his apprenticeship but for the military interruption.” What that was, that was not intended as a stipulation to make this ideal type of case that is an agreement that the 1040 days were simply a work period and was not a training period. It was not intended to -- to take it out of the -- or to resolve the uncertainties, a non-automatic type of -- of criteria that was laid down in McKinney. In 1945, the Railroad Company and the Railroad Brotherhood entered into an agreement which is referred to in this record as the Memorandum of Understanding of 1945, which provided the apprentices more. The apprentices, who had been employed by the Railroad Company and then went to service during the course of their apprenticeship, went to the military service. It provided them more than the Act provided. It provided that upon return and completion of their apprenticeship with the Railroad Company after the military service, their seniority as journeymen would be fixed as of the date they would have completed their apprenticeship but for the military interruption. Now, having made that provision and having apprentices now returning in the 1940s from the military service and completing their apprenticeship, it was necessary for these contracting parties, the Railroad Company and the Brotherhood to device a method of computation under that contract by which they would assign those seniority dates to these apprentices. And it is that method of computation by which the November 3, 1955 date is reached. That is we -- we do not agree by saying that he would have finished on November 3, 1955. That all of these uncertainties that may have kept him from finishing are resolved, are no longer in the case. All we say and it's quite clear in the parts of the record that I've quoted in the brief that operating under the Memorandum of Understanding on 1945 and computing the time as all such computations have been made, the date of November 3, 1955 is developed. In fact, the Railroad Company contends and concedes that in this case, he's entitled to that date retroactive seniority at Monroe, Louisiana under the agreement, without reference to any right he acquires under the Act. He doesn't want the seniority at Monroe and has rejected it because it's of little practical value to have seniority there where the work is not done or there's insufficient work done for him to be employed. The -- the Court of Appeals made reference to that stipulation and -- and concurred in what I've just said that it was clearly made with the reservation that it was a method of computation, not a stipulation that he would have in fact, finished on that date had he not had to go to the military service. I find no difficulty with either McKinney or Diehl. In this case, the McKinney rule is that the Act reserves for the returning veteran what he automatically, as a matter of right and that Mr. Heymann says that it certainly must be contact right. I don't know where else he would acquire such right. It preserves those things he automatically, as a matter of right would've acquired had he remained out of the military service and in the employment. Diehl involved in an allegation in the complaint by the veteran that he would have in fact finished the apprenticeship on such and such a date. And the case being decided on motion in the lower court, that must be taken as admitted which we don't have here. The Government argues, I think, that this Court should overrule McKinney. At page 36 of the Government's brief, it argues that what it is advocating for a veteran, is that he'd be able to have under the Act, all of those benefits proved with that degree of certainty, normally requisite to the established legal rights. That he probably would've gotten had he remained in the employment instead to go in the military service. I do not know what the reference or the phrase with that degree of certainty -- showed with that degree certainty, normally requisite to establish legal rights. I don't know what that could mean other than preponderance of the evidence which is the usual standard by which legal rights are established on a civil case. Now in McKinney, this Court rejected the proposition that a veteran was entitled under the Act to those things that it's highly probable that he would have acquired had he stayed in the employment. It specifically rejected that and adopted the automatic -- as a matter of contact right standard. If the Court concurred in the Government's approach in this case, it would not only go back to approving the highly probable standard but it would be down to a point of a preponderance of the probabilities because that's all the preponderance of the evidence is. The Government is really asking the Court to go much further back than even the McKinney case. I think that the position taken by the Railroad Brotherhood in their amicus brief is deserving of consideration. They point out that this law has been a fertile breeding ground for litigation from the time of its original enactment. And that the Diehl case didn't resolve that but perhaps prompted additional litigation, has been a great deal since Diehl, since this Court did dispose of Diehl without an opinion. But with the standards laid down in McKinney and they're clear standards, they're standards that the Courts of Appeals have had no difficulty with. I think that Courts of Appeal are not in conflict as to the application of the McKinney standards. That will resolve the litigation that we've had so long for 20 years which is expensive as pointed out by the Brotherhood and which engenders unhappiness in the entire industry and all the industries affected by this, by constant litigation among fellow workers seeking to obtain relative benefits to the relative detriment of their fellow workers. The transfer feature which is novel in this case, arises from the fact that the veteran employee seeks assignment of a seniority day, a retroactive seniority day, had a place other than that at which the collective bargaining agreement would assign it. The railroad industry has traditionally had a system of point seniority that is an apprentice or a journeyman at Monroe, Louisiana shops, has no seniority at North Little Rock shops for the same Railroad Company or the St. Louis shops. And if he transfers from Monroe as a journeyman, to North Little Rock, he goes to the bottom of the journeyman seniority roster. That permits -- it obvious purposes to permit, the men on a seniority roster to be able to look at it and know where they stand down, where they will continue to stand with reference to the people ahead of them on the seniority roster. And doesn't permit men from other shops or other points on the Railroad Company to come in and get ahead of them on a seniority roster to the point that they maybe affected by a layoff where they otherwise would not. That's the traditional, basic concept in -- with these threats and seniority with railroad companies. Now, in this case, Mr. Brooks was entitled under the collective bargaining agreement to retroactive seniority at Monroe but in fact, he seeks it in North Little Rock. Now, there's only one Court of Appeals case that has come to grips with the problem of where the rights arising out of transfer, benefits accruing from transfer are subject to the McKinney standard in the same sense that benefits arising out of promotion are. That is whether it must be automatic and as a matter of contract right, that's the Horton case from the Fifth Circuit and they clearly said that there's no distinction that -- that transfer and promotion, benefits arising from those things are subject to the McKinney standard and certainly, I can find no logical reason why that shouldn't be a applied. The District Court concluded that the significant factor was not -- that he had no contract right to be at North Little Rock -- to transfer at North Little Rock and thereby seek his retroactive seniority there. He had none and no contract right, the District Court said the significant thing was that he did do it, he did do it in fact. It's clear he -- he was in St. Louis, he requested the transfer of his master mechanic in St. Louis who gave his approval and then he requested the transfer of the master mechanic at North Little Rock where he was seeking to go, who gave his approval. There's no doubt that that was a result of exercise managerial discretion. In the District Court's conclusion that the significant factor was that he did transfer. And not where they had a right to do it, is contrary to this Court's holding in McKinney which was specifically that a gratuitous benefit conferred by management. The one required does not thereby enlarge the veteran's rights. In McKinney, the man had been assigned to the group 1 position on return, it appeared that he did not -- that -- that he -- that the company wasn't required to put him in it. The company contended they put him in it through a mistake of law. And this Court says, they're making a difference whether the mistake of law or not, it was a gratuitous benefit to which he wouldn't entitle as a matter of right and didn't enlarge his rights. I think to have the case in the proper perspective, appropriate to again, referred to the remarks I've made in response to the Chief Justice's question about the Railroad Company's direct interest and it's liability to direct injuries that result to this. I think that the Railroad Company's probable injury would not be great and then certainly, it somewhat remote at this stage. They're probably doing here is dealing with -- of course they're not seeking some absolute benefit against the Railroad Company such as it seems on an hour increase in pay. We're dealing with employees, co-employees seeking benefits relative to their fellow employees and which they can have and enjoy only at the detriment of their fellow employees. Now, these fellow employees who aren't veterans have earned seniority.
Arthur J. Goldberg: (Inaudible)
Robert V. Light: I think that's the underlying purpose of the Act sir.
Arthur J. Goldberg: (Inaudible)
Robert V. Light: Yes, sir.
Arthur J. Goldberg: (Inaudible)
Robert V. Light: Alright I'm -- I'm --I've been unclear on that and I'm glad you asked the question Mr. Justice Goldberg. He had his basic rights granted under this Act when he returned at Monroe and was reemployed as an apprentice with the same place on the apprentice seniority roster, the same relative position and was retained there for the year required by the Act and was returned at the same rate of pay.
Arthur J. Goldberg: (Inaudible)
Robert V. Light: Yes, sir.
Arthur J. Goldberg: (Inaudible)
Robert V. Light: Yes, sir but I believe the answer to the overall general question you asked is in McKinney and that is that there's much that he was called to the colors cannot lay claim to that might've come by chance or effort or training.
Arthur J. Goldberg: (Inaudible)
Robert V. Light: And I think, the very basic thing that they intended to protect by this Act.
Hugo L. Black: Now, I see you referred toward the brief on this date by the Government, on the amicus brief existing. In other words on this, I have such a brief.
Robert V. Light: The -- the amicus brief I referred to Mr. Justice Black was filed in both this case in Tilton, number 49 and 50 (Voice Overlap) --
Hugo L. Black: Amicus brief.
Robert V. Light: Yes sir.
Speaker: As to the same brief?
Robert V. Light: Yes, sir.
Speaker: (Inaudible)
Robert V. Light: That's -- that's correct sir.
Hugo L. Black: (Inaudible)
Robert V. Light: I beg --
Hugo L. Black: (Inaudible) in the other case and they don't have a separate brief for this case.
Robert V. Light: Oh, I see. No -- no sir -- no sir, they filed consolidated --
Hugo L. Black: (Inaudible)
Robert V. Light: -- brief.
Philip B. Heymann: Mr. Chief Justice.
Earl Warren: Mr. Heymann.
Philip B. Heymann: I'd only like to make clear that we of course, do not claim what was cut -- what we did claim in McKinney and that is that the veteran is entitled to everything that would've come to him as a matter of probability had he been continuously employed, we claim that he's entitled to what he could have had as a matter of contract right --
Byron R. White: (Inaudible)
Philip B. Heymann: There --
Byron R. White: (Inaudible)
Philip B. Heymann: There are many cases on that Justice White. They generally go on whether the employer has sufficiently indicated that he's paying for work service -- for actual work. If he will not count time of -- on leave of absence towards five years' pay, a special pay increase for five years then we don't claim it for the veteran. If there's an -- if he calls it a work training but he counts time on leave of absence and sick leave and anything else, then we claim it for the veteran.
Byron R. White: (Inaudible)
Philip B. Heymann: I don't think that is either of these cases because I think, the odds are very much in favor of them. But in that situation, if -- if I maybe permitted to say, that -- that -- to change your example just a little, I don't think I'll be changing its content. And they -- let's say the inquirer gave a test to the employees in a certain group during his absence and was a very hard test and it's in a -- subjective test and if you get, “Oh, I could make it.” And I say if they have perfect eyesight, and any employee with perfect eyesight is entitled to be promoted from fireman to engineer. We would say, in a -- any employee of a particular seniority or any employee in a particular group, we would say that even though 50% failed that test, as an average. When the employee returns and takes the test and finds that he has absolutely perfect eyesight, he's entitled to be given the position of engineer with the seniority that he would've had, had he gotten it --
Byron R. White: (Inaudible)
Philip B. Heymann: Right.
Byron R. White: (Inaudible)
Philip B. Heymann: We would say that. The only -- the only issue on this case is dating. What date should the man be given and for dating purposes, we would say if all that's required is that he's -- have completed it, that he performed satisfactorily in the training requirement and worked --
Byron R. White: (Inaudible)
Philip B. Heymann: Well, I think -- I read McKinney is simply saying that the employee cannot claim what was -- what could've been withheld from him as a matter of discretion of the employer.
Arthur J. Goldberg: (Inaudible)
Philip B. Heymann: I -- I believe it is Justice Goldberg, I'm certain. I should say that the rule that we rely on very strongly which gives the -- which gives the journeyman a right to claim work away from upgraded apprentices is an unwritten rule that appears -- now, conclusively in the record, we've set out the evidence for it -- never great, but it's an unwritten rule. I -- I think that's all I had to say. Thank you very much.