Earl Warren: Number 89, Roy Walker, petitioner versus Southern Railway Company. Mr. Hamrick.
J. Nat Hamrick: Mr. Chief Justice, Honorable Court. I'd like to review for just a moment the factual situation in this case. Roy Walker was employed by the Southern Railroad sometime in 1944. In -- on March 3, 1957, he was informed that he had been displaced by an employee with greater seniority. He then informed the call clerk that he was sick and was going home. He went home and on April the 29th, a letter was directed to him to report for duty. In between these times, it was contended by Mr. Walker that he had informed the railroad of his illness. This record said, “Dear sir, I understand you were displaced from the regular job at airline junction March 3, 1957 and I was yourself since? This is to advise you that you stand for work in your seniority and unless you protect your seniority standing within 30 days from the date of this letter, you will have opted your seniority. Yours very truly, Superintendent.” That letter was dated April the 29th in Greenville, South Carolina. It was signed for May the 30th by Mr. Walker's daughter. He was on the hospital at the time and didn't have knowledge of it for four days. He then went down on May the 29th to report for duty and discovered that his name had been stricken from the seniority list because he had not reported in 30 days. This is actually the turning point of the wrongfulness of the discharged. They told him he couldn't go to work that he had been fired. He went to see the superintendent the next day. The Superintendent of that division, Mr. Brad and in this connection, there has been some suggestion here that taken a man's seniority doesn't fire him, if this is just a grievance or some technical situation? Well, the day after he reported and was told that his seniority was taken. The Superintendent of the Railroad wrote him this letter, he reported this letter was written to him on the -- on the -- “Please refer to my letter dated April the 29, 1957, advising you to protect your seniority within 30 days. You did not report and protect your seniority as instructed and this is stood by you that under the provisions of fireman's agreement and so forth. Your name has been stricken from the firemen seniority list and you are no longer considered an employee of the Southern Railroad. Please turn in all company property you have in your possession to train met -- to Terminal Train Master Curly. Now, there's no question I think that Roy Walker was fired and he was fired because the railroad said he didn't protect his seniority within 30 days. We tried this case in the Western District Court before Judge Craven and Judge Craven found this fact. Walker reported for work on May 29, 1957, it is adjudged that this was the last day of the 30-day period within which he was required to report. Southern for job his seniority as of May 28, 1957 was therefore unlawful and constituted a violation of his contract. So we have a finding of fact by the trial court, we tried it before Judge Craven to the effect that Walker was wrongfully discharged. Now then at this juncture, I want to call the Court's attention to one of the thing I refer to it again later. Later on that year --
Speaker: You say that on the (Inaudible)
J. Nat Hamrick: Eight days before the Maddox decision. Yes, sir. Now then later on that summer, there was an exchange of letters between Mr. L.G. Tolleson, who is Director of Labor Relations of the Southern Railway, and Mr. R.L. McCollan, General Chairman of the Brotherhood of Locomotive Firemen and Engineers. These letters are printed in the appendix for my brief -- to my brief because by early were not included in the printed records. To make the long story short, Mr. Tolleson writes to Mr. McCollan in my exhibit 3 in the appendix to the brief and after he goes through the whole discussion, he says in next to the last paragraph about the middle of paragraph. This is a Railroad writing to the Union --
Earl Warren: What's that?
J. Nat Hamrick: This is the Railroad writing to the union --
Earl Warren: Oh, yes.
J. Nat Hamrick: -- Director of Rail -- Director of Labor Relations writing to the Union, “Your attention is called to the fact the doctor has use a history which I believe he will agree anyone will interpret as meaning that Walker was unable to work during the period he was off. In the light of the circumstances related above, will you please advise promptly what your position is?” The Labor Union asked the Railroad. Here is what the General Chairman of Mr. Walker's Union wrote in response to that letter. It's the second letter in the appendix and then its exhibit 4. “Dear Mr. Tolleson. Referring to your letter of August 23, 1957, concerning the seniority of Fireman R.E. Walker Charlotte Division North, your file. This matter was discussed with you while in Washington September the 11th. You requested that I write you concerning my position to the matter. As I explain to you in commerce, it does not matter with the organization whether this man is returned to service or not. This is the General Chairman of the Union who should be expected to protect Mr. Walker and to help him and at the end of that letter he said, “Considering the circumstances in this case and the claimant's previous record. It would appear that the best action to take would be to let the matter rested it is with Fireman Walker's name removed from seniority list.”
Earl Warren: What's that last paragraph?
J. Nat Hamrick: I beg your pardon, sir?
Earl Warren: It's pretty fast --
J. Nat Hamrick: I beg your pardon, sir.
Earl Warren: I didn't get it?
J. Nat Hamrick: Considering the circumstances of this case and the claimant's previous record, it would appear that the best action to take would be to let the matter rest as it is with Fireman Walker's name removed from the list. So we have here actually, the Union that Mr. Walker paid his dues to that he relied upon saying to the Director of Labor Relations of the Southern Railroad, I want you to leave him fired when the Director had suggested that he be rehired. Now, Mr. Walker came to me to know what to do. He knew that the General Chairman of the Union didn't like him and he knew that he couldn't get his job back through the Union. We didn't have these letters at the time. It took a lot of adverse examinations before the Southern Railroad to come up with these two letters with this exchange of letters between the Union and the Railroad. And so, I brought a notion in rather for county court the wrongful discharged and ask for damages. Now as a matter of fact, this is not in the record but as a matter of fact it went six years later. I brought it within a three-year statute. But I had so many motions to strike and so many -- and so many demurrers and so many procedure difficulties in North Carolina. We can take a non-suit and bring the action again within a year. And rather in the preliminary skirmishing of going through the appeals and back in appeals and back in North Carolina, I simply non-suit in my compliant and made it conform to what the Railroad said out to have. And that's the reason it looks like it was six years before we brought it. Mr. Walker came to me and we brought an action for wrongful discharged. They removed it to the federal court and we were successful. Eight days after that, this Court decided the Republic Steel against Maddox and the Railroad gave notice to the appeal to the Circuit, and I gave notice of appeal on matter of mitigation of damages. I think we really come down to this in this case. The federal government has a labor policy and I think the essential question is this. When a discharged -- when a man is wrongfully discharged and his discharged is treated by him as fine, does that take his case outside of the purview of the federal labor policy?
Potter Stewart: Well, may I ask Mr. Hamrick?
J. Nat Hamrick: Yes, sir.
Potter Stewart: Discharged?
J. Nat Hamrick: Yes, sir.
Potter Stewart: If it is wrongful -- is it wrongful because it's a violation of the contract?
J. Nat Hamrick: Yes, sir.
Potter Stewart: If it's wrongful at all, that's what makes it wrong?
J. Nat Hamrick: That's what makes it wrong.
Potter Stewart: So that -- in that sense, matter of interpretation at least, application of the collective bargaining agreements involved in --
J. Nat Hamrick: Yes, sir.
Potter Stewart: -- the discharged of it?
J. Nat Hamrick: Yes, sir.
Potter Stewart: So is that thing gets the standard the question whether that's the issue. Does the Railway Labor Act reserve its resolution to the Adjustment Board or may it be the subject of a lawsuit?
J. Nat Hamrick: That's right.
Potter Stewart: Is that what you're down to?
J. Nat Hamrick: That's what we're down to.
Potter Stewart: Uh-hum.
J. Nat Hamrick: Now in the past, in the Moore cases and so forth, this Court had said that you may bring an action for wrongful discharged, if you want to? Or you may ask for reinstatement? But if you ask for reinstatement then you are under the Board and if you bring an action for wrongful discharged it does by the common law? Then when we get to that point, we come here. If he bring an action for wrongful discharged, is that action for wrongful discharged governed by the state law or is it governed by the federal law? Now in the Lincoln Mills case, this Court there properly I think said that it was the obligation of the federal government to make a body of law concerning labor relations because you have labor acts and you regulate the labor, the railroads and the other labor act and it is obligation of the federal government to make a body of law governing labor relations when the Congress pays it acts for that. And so in Lincoln Mills, you said that, that the federal government had jurisdiction regardless of diversity. And we come on down from that to whole a lot of other cases which I think are perfectly properly saying that when you have a national labor policy and the courts are going to be obligated to implement it and they're going to be obligated to decide cases under it, you come to the question of whether that National Labor Policy should be governed by strictly federal law as enunciated by the federal courts or whether in certain places it should be governed by the state law. Now in the past, it has been regarded in this fashion that if it's wrongful discharged, it's outside of a concept of the federal labor laws, totally outside of the concept of the federal labor laws, when the man is fired and gone, and therefore, the state law should control. In this particular case, the state law was applied by the District Court to give me a recovery.
Byron R. White: But why isn't, the question really would it -- what form it should go to rather than what law you should apply? I thought the issue here was whether you had to go to the Adjustment Board or whether you have to go with it or whether you're going to the state court? It could be that you might hold that he could go into the state court? The state court would have to apply federal law.
J. Nat Hamrick: I think that's quite true.
Byron R. White: Well, then --
J. Nat Hamrick: I think that's quite truth. The body of law, the cont -- the issues, the controlling body of law whether it's federal law or not.
Byron R. White: Well, but the issue is, what form it should go into --
J. Nat Hamrick: Yes, sir. That's right. You -- it's not just the form because all of the states have different laws --
Byron R. White: Exactly.
J. Nat Hamrick: -- as we for wrongful discharged, so if unless the federal government makes a federal law regarding labor policy. You will have a hodgepodge of decisions in the state for that. Now, the point I'm making here is this that whether you say the state law should apply which in this case gave Walker right to bring an action for wrongful discharged, or whether you say that the federal law therefore the federal courts should enunciate a labor policy in this connection and write federal law. I think either way you go, a man who is wrongfully discharged should have a right to come to court whether it be a federal court under federal law or whether it be a state court under state law, or whether it be a federal court applying state law. When a man is wrongfully discharged from a railroad or any other thing, he should have a right to come to court for these reasons. The interest of the individual union member and the interest of the union are not merely identical. Unions or organizations of people, they have sources of power. They have elections. Personalities get involved. One man may run and benefit to change the finding and the only place he can go is to a board where the company and the union are equal. And the union, don't want him and the company don't want him, he has no place to go for justice.
Abe Fortas: Is that your point that the Railway of Adjustment Board is a board composed of unions and representatives and company representatives or it would be unfair to affirm to that as distinguish from the NLRB which is an administrative agency?
J. Nat Hamrick: No, sir. I think the difference is I don't say that you shouldn't go. Mr. Justice Fortas, I don't say that you shouldn't go to the Railroad Adjustment Board for everything except wrongful discharged. But I say when a man is wrongfully discharged he is severed from his union. He is totally cut loose from him and they have no further interest any. The people that they put on a National Railroad Adjustment Board have no further interest any. The company that finally has no further interests any. He is at a board which is controlled by people who no longer want him. Now if I -- by accident, we cut it in this case to show that the union didn't want it, they sacrificed it. They might -- we might have been sacrificed --
Abe Fortas: Well, is that the way it -- that one of the reasons why the distinguished Madison --
J. Nat Hamrick: Maddox?
Abe Fortas: Maddox.
J. Nat Hamrick: Yes, sir. That's the distinction. I think in the Maddox case that what you did actually was ask the company to perform a contract. You ask the company -- Maddox asked the company to perform a contract. He said, “Pay me the severance pay.” It was the same thing as he would say put me back to work. He asked for performance of a contract. He didn't say that you have fired me wrongfully. He didn't contend he was wrongfully fired. The company had every right to close the mill. The only obligation they had to do was pay him severance pay. And therefore when they were paying him severance pay, he was actually asking for performance of the contract. There's a lot difference in performance of the contract in severance pay and a suit for wrongful discharged.
Abe Fortas: Does any difference between your case and the Moore against Illinois Central Railroad?
J. Nat Hamrick: No, sir.
Abe Fortas: And then the only question is whether Maddox has --
J. Nat Hamrick: Overruled Moore.
Abe Fortas: -- overruled Moore?
J. Nat Hamrick: Yes, sir. That is -- that is only one of the questions of Mr. Justice Fortas. I am urging another position here. If this Court is going to say that state law no longer controls cases for wrongful discharged. And that, under the Lincoln Mills case, it's the obligation of the federal courts to enunciate a policy of law about wrongful discharged, then I'm saying even if you overrule Moore to that extent that the federal courts should say, “That we are picking up,” at it is said in Lincoln Mills, “we are picking up state law. We're making it federal law and this is the federal law but the federal law is.” That when a man is wrongfully discharged does not ask for reinstatement. He has a right to come into the courts of his country and sue the man who wrongfully discharged him.
Byron R. White: Under federal law?
J. Nat Hamrick: Under federal law. I don't care whether it's federal law or state law. But I think whether you apply the state law or whether you enunciate a body of federal law that a man should have a right to do that. There are thousands of people working in America today for big companies --
Abe Fortas: Are you asking us to overrule? Are you saying that we ought to overrule Maddox with respect to non-railway labor employees? Or they ought to narrow Maddox down to which you say its precise holding?
J. Nat Hamrick: Yes, sir. I think Maddox is a suit for performance of a contract.
Abe Fortas: And there are two probable --
J. Nat Hamrick: Not abridge.
Abe Fortas: -- bases as I see it for your case here and I'm getting a little lost in my own call. One of them is say that this is Railway Labor, it's covered by different statutes etcetera and Maddox was NLRB, its one approach to this. The other approach to this is to say, right before argument in a way that Maddox -- does control of Maddox show some a confinement of Moore, Moore against IC Railroad. And that although there's no difference in fact that this is Railway Labor Act and not NLRB, and nevertheless Maddox should be confined to its precise holding?
J. Nat Hamrick: Yes, sir.
Abe Fortas: So those are two different lines of argument then I don't suggest that necessarily inconsistent and that you can argue both and I would like to know whether you are arguing both?
J. Nat Hamrick: I am arguing both. In the one hand Mr. Justice Fortas, I'm saying that Maddox was not a suit for wrongful discharged. Therefore it does not control this case. And --
Byron R. White: And do you say if the contract said, it's like a bargain contract said that we will take to the adjustment board all matters of the interpretation after this contract including the matters of wrongful discharged?
J. Nat Hamrick: That's where you'd be.
Byron R. White: What the Adjustment Board?
J. Nat Hamrick: Yes, sir. Except that I would say this that, I don't think anybody should be allowed to contract the way the jurisdiction of the courts --
Byron R. White: Well, I know but wouldn't you -- why wouldn't you argue then? Why wouldn't you argue then that he's been fired wrongfully that the contract is no longer (Inaudible)?
J. Nat Hamrick: I think that's true.
Byron R. White: Well, you wouldn't go to the board, would you?
J. Nat Hamrick: No, sir.
Byron R. White: Where would you go?
J. Nat Hamrick: I'd come to court.
Byron R. White: Eventhough the contract said he would go to the Board?
J. Nat Hamrick: Eventhough the contract said he would go to the Board for matters of -- if the contract said, he would go to the Board and that is wrongful discharged. Then I would question the validity of that contract as a matter of public policy because you are contracting a way of man's right to bring suit for wrongful discharged or breach of contract. I would question the validity of the contract no matter the public policy if that were the case.
Byron R. White: I know but isn't it difficult to claim that the -- that Congress has said that the Adjustment Board -- that the parties have no alternative. The Congress has said that the Adjustment Board shall consider certain matters and no one else. Now, if you're -- the contract rather as Mr. Justice White suggested, you wouldn't be attacking the contract against public policy, you have to attack the statute, wouldn't you?
J. Nat Hamrick: Yes, sir. But the statute in this case does not actually say. That is the matter of wrongful discharged --
Byron R. White: Well, that may be an issue here, you see since the discharged you agree raises a question of violation of the contract. That may -- I mean, it may be an issue here whether the Board except for our Moore that line of decision whether the statute doesn't require to go to the Board. But I'm just wondering this, and you keep talking state and federal law.
J. Nat Hamrick: Yes, sir.
Byron R. White: But I just like to come back to really, the only problem is just because it does build there. Here is it not -- is -- are you obliged to take this claim to the Adjustment Board or may you go into Court?
J. Nat Hamrick: That's the only problem.
Byron R. White: Now, because when you --
J. Nat Hamrick: That's the one.
Byron R. White: -- get before the Adjustment Board, there's no use in talking in terms of --
J. Nat Hamrick: It's fine.
Byron R. White: -- either federal law, if you have to go before the forum.
J. Nat Hamrick: It's fine.
Byron R. White: That board, you're going to take whatever law they give you. I don't know if they give you federal state in that?
J. Nat Hamrick: They give you the law they want it if you find them.
Byron R. White: Or any law at all for that matter.
J. Nat Hamrick: That's right. If you had to take it before the Board they give you whatever law they want to and that law is fine.
Byron R. White: And your argument here is the two parties who compose the board have already resolved this case against your client. They said he was properly discharged as these letters between them indicate and they can't get anything except a rubber stamp from what they already agreed upon.
J. Nat Hamrick: Yes.
Tom C. Clark: No, except that you don't really -- you're saying that the Adjustment Board, no disinterested party comes in the Adjustment Board and that's the disagreement between management and the Union. So the Union amends having already voted with both that way again. Except that this Union might not even be represented on the Adjustment Board.
J. Nat Hamrick: Now, the only thing I really --
Tom C. Clark: Is that true?
J. Nat Hamrick: Yes, sir. And as far as this particular case is there, I'm not saying because that there was this exchange of letters that the Adjustment Board would have absolutely gone against Walker. But --
Byron R. White: What party of your argument is that the Adjustment Board is not a reliable form?
J. Nat Hamrick: Part of my argument is that you have --
Byron R. White: Or the Adjustment Board?
J. Nat Hamrick: -- that -- that your Adjustment Board when you have a man wrongfully discharged, he has no friend there. He's no longer member of the union. He -- he no longer works for the company and there so many interest between labor members and labor unions that are not identical. When you put him into the Adjustment Board, you start to put in the hands of the Unions, and if they don't like him or they want to get rid of him for some reasons. They got no rules of evidence. They have to go by any rules of evidence. They have decisions to fire --
Potter Stewart: Or if they don't have a hearing?
J. Nat Hamrick: Well --
Potter Stewart: They do submit everything on papers before they --
J. Nat Hamrick: They can take him and go with it.
Byron R. White: But what if he -- what if he says that breach of contract, I want -- this is wrongful discharged. I want back pay and reinstatement?
J. Nat Hamrick: If he said he wants reinstatement under your decisions. I think you go to the Adjustment Board for that part.
Byron R. White: You do?
J. Nat Hamrick: Well, --
Byron R. White: So I won't question? But how possibly can a -- to be a different between this thing. I want damages namely back pay --
J. Nat Hamrick: Right.
Byron R. White: -- and reinstatement?
J. Nat Hamrick: Well, let me tell you from the point of view of the union member. From the point of view of Roy Walker in this case, they want to use Roy Walker to ask for reinstatement because he knew he want to go get it. Now, he -- the only thing he could do is come in here and asked for suit for damages. That's all he could do. Now take his position in this case, he work for the Southern Railroad from 1944 until 1957. He had retirement. He had everything. He had it all build up and just because he got on the wrong side of the union and the company, he's gone. And they say, “We can't do anything about that.” Now, this particular 30-day period that Judge Craven found for me. I would have been in bad shape before the Adjustment Board where nobody like him on his 30-day period because the union was contended that the date of the letter contended the 30-day period. I'd never made it and yet they run him off. And I'm saying that that the people work in this country and work for big companies and belong to bi unions when they are thrown out of the -- of their job and they're gone and they treat their discharged as final. They ought to be able to come to an impartial federal court or to an impartial state court and get a trial where their rights can be protected by the rules of evidence and under the rules of law and not relegated to an adjustment board which is essentially a balance tribunal rather than an impartial tribunal.
Byron R. White: Do you think Moore was an obstruction of the Railroad adjust -- Railroad Labor Act?
J. Nat Hamrick: I think Moore essentially to --
Byron R. White: Was it -- was it -- is it near to -- is it a piece of statutory construction?
J. Nat Hamrick: I -- yes, sir. I think what Moore said was this, “That as far as wrongful discharged is concern; there was no intent of Congress to make the Railroad Labor Act company." That's what Moore said. When you got wrongful discharged, there's no intent to cover. Now, when you look at the purposes of this Act as stated in the Railway Labor Act. They say that pretty well. The purposes of the chapter are to avoid any interruption of commerce or to the operation of any carry and it goes on to provide for the prompt and orderly settlement of all disputes could turn in rates to pay, rooms. Working conditions to provide for prompt and orderly settlement of all disputes going out of grievances interpretation and application of agreements, rates are paid in working conditions. I think the Railway Labor Act contemplated and I think Moore recognized that it contemplates. A situation where the man was to go to continue to be an employee, a situation that involve the transportation policy, a situation where they were involve in what are you going to do today. Are you coming to work at this time, is this rule going to govern you? How many days do you have to report? What did you send in the letter when you're sick? This is what the Railway Labor Act was intended to cover and I think Moore said that the Railway Labor Act was not intended to cover wrongful discharged. And therefore you can bring your action in the state court because it is not yet petition in the Congress to cover. But my principal point in this case is whether you say that the Railway Labor Act should be construed under state law or the federal law, whether you say it intended to do this or not. It is a matter of policy and as a matter of protection for the individual. When a man working for a big company is fine and the Union don't like it either you ought to have some place to go. And if you hold that he's got to go to this Adjustment Board, he is just -- he just Roy Walker's lost. He's too old. He can't get another job. He's got no retirement. He's got nothing; he's speaking about keeping that bank. And a federal court said, “You wrongfully discharged him.” And they say, “Well, you couldn't go to a federal court. We wrongfully discharged him but you couldn't (Inaudible).”
Byron R. White: What's the Adjustment Board therefore going to do?
J. Nat Hamrick: Oh, gracious. It's to writ --
Byron R. White: How long it would take? How long does it take to get it here?
J. Nat Hamrick: Oh, it takes a long time sir. The last that I heard was seven to eight years.
Byron R. White: Almost as long as the Court?
J. Nat Hamrick: It should have taken as long to get up here by having this maneuver in the trial court down there.
Hugo L. Black: How old is Walker now?
J. Nat Hamrick: He's in his 60s, sir.
Hugo L. Black: Well that might last that long?
J. Nat Hamrick: Thank you sir. I'll save a minute or two for rebuttal.
Earl Warren: Mr. Ackerman.
Jerome Ackerman: Mr. Chief Justice, may it please the Court. I'd like to touch just briefly on the facts I think that perhaps they've been taken a little bit out of context. Mr. Walker's suit here is a suit that arises out of a collective bargaining agreement. The only right that Walker has in this case grows out of the collective bargaining agreement. He has no common law rights and doesn't claim it. Walker did not pursue either the contractual procedures set up under his union contract or the administrative procedures set up under the Railway Labor Act through the Railroad Adjustment Board in attempting to vindicate what he thought was improper deprivation of a contract right arising out of the Union contract. Now, much has been made of the correspondence between the representative of the Union and the Director of Labor Relations of the Southern following the terminations of Mr. Walker's seniority. That -- that correspondence occurred well after the period during which Walker could have but did not attempt to pursue to their conclusion his contractual remedies.
William J. Brennan, Jr.: Well did the contractual remedies track the Railway Labor Act?
Jerome Ackerman: I'm sorry, I didn't hear you?
William J. Brennan, Jr.: Did they -- did the contractual divisions track the Railway Labor Act?
Jerome Ackerman: The contractual provisions provided for normal handling of the dispute up through the various officers who would be responsible for it. The Superintendent for example in the first instance --
William J. Brennan, Jr.: And then did it provide for the Adjustment Board?
Jerome Ackerman: It -- the contract itself did not specifically mention the Adjustment Board. But I think that it generally recognized in the industry that all contracts contemplates that if there is disagreement at the end of the contents --
William J. Brennan, Jr.: Well, it doesn't make much difference about the contract and one way or another does it except -- the Railway Labor Act could make go to the board anyway.
Jerome Ackerman: Well, this is correct. The Railway Labor Act certainly provide an --
William J. Brennan, Jr.: You can't contract out of that division that -- can you -- you couldn't by agreement say, well our grievances, we're going to have settled to Court?
Jerome Ackerman: No, I didn't say that you couldn't.
William J. Brennan, Jr.: Well, the obligation to go to the Board as I understand it is made mandatory by the statute in those cases where the Court's jurisdiction attaches which matters of interpretation and application of what the party agreement.
Jerome Ackerman: That is correct, Mr. Justice Brennan and this is precisely such a case because the question of the laws of Mr. Walker's seniority turns on that language of a provision of a contract.
William J. Brennan, Jr.: But -- but may I ask this, you say it precisely such case. But Moore said, Moore was not unlike this case, was it?
Jerome Ackerman: No. Moore was not unlike this case.
William J. Brennan, Jr.: And didn't more say that -- that was instance where the obligation that to go to the Adjustment Board was not present. Where, there was a discharged and one was willing to accept the discharged and sue for damages for on the ground to discharge its own.
Jerome Ackerman: This is correct.
William J. Brennan, Jr.: Now is that a matter -- that then was matter of statutory interpretation of the Act --
Jerome Ackerman: I would have thought that the Moore case was perhaps not so much a matter of statutory interpretation as it was a notion that state law could have some application in this field. And its state law could have some application in --
William J. Brennan, Jr.: Well, but -- but isn't that -- I wouldn't that necessarily have to be a plus the statutory construction if the provision for the Adjustment Board is a mandatory requirements of those provisions. Mandatory upon party have an exception. They must have an exception because those provisions were read to provide or not to go as far as a discharged case.
Jerome Ackerman: Well, I would have viewed more as I started to say before. As a case in which the Court took the view that state law could apply to a suit on a contract made under the auspices of the --
William J. Brennan, Jr.: Well tell me this, to affirm do we have to overrule Moore, in this case?
Jerome Ackerman: I believe so.
William J. Brennan, Jr.: Uh-hum.
Jerome Ackerman: Unless --
William J. Brennan, Jr.: We certainly didn't overrule Moore and Maddox?
Jerome Ackerman: No, that -- that's quite correct. The Court did not overrule Moore and Maddox unless the Court were to take the rather narrow view of the facts in this case. Namely the focus on the question of whether exhaustion of contractual remedies was required quite a part from the resort of the Adjustment Board. I believe that it would have to overrule Moore in order to affirm in this case.
Byron R. White: What's your answer to the -- what the idea that the Adjustment Board is really that the employee there would just be before the same two people who already said that he was rightfully discharged --
Jerome Ackerman: Well, here --
Byron R. White: -- not wrongfully. This is a balance for the employee and no third party is in there to -- why should -- why should the employee have to stop with the Board like that?
Jerome Ackerman: Mr. Justice White, this whole line of argument is predicated on an assumption that there is something inherently untrustworthy about the Railroad Adjustment Board simply because it is a balance agency.
Byron R. White: I know but the Government -- but the normal dispute, you have to admit arises almost all the time when the union and management has come to let things points of view.
Jerome Ackerman: This is correct. But it doesn't necessarily follow that in every case in which a union and the management do not have a conflicting point of view that the union is for that reason alone somehow dealing unfairly with the employee involved. It's quite possible and certainly was evidenced here that the union happen to agree with the management interpretation of the contract. And this was really the gist of the exchange of correspondence that Mr. Hamrick spoke about before but he didn't point out that there was discussion by the official of the union of the specific contract provisions involved and the question of whether Walker had pursued his remedies as he was suppose to under the contract and agree that there was a basis for terminating Walker seniority. Now --
Byron R. White: Now, under the Act if the thing isn't settled on the property and the employee isn't satisfied, doesn't one side of the other half to take it to the Adjustment Board?
Jerome Ackerman: Well, either the em -- the carrier.
Byron R. White: Yes.
Jerome Ackerman: The Union or an employee, an employee himself can take --
Byron R. White: Oh, he can?
Jerome Ackerman: Oh, yes.
Byron R. White: The Union cannot refuse on his behalf to --
Jerome Ackerman: No.
Byron R. White: --before the Adjustment Board?
Jerome Ackerman: No, an employee has a right to take a case before the Adjustment Board.
Byron R. White: Why? Why if -- am I correctly advise that what this means is, initially the matter would be considered only by the road and union representatives, five a piece or whatever panel they chose.
Jerome Ackerman: Yes.
Byron R. White: There'll be no impartial party involved. There's no hearing. There's no trial. There's no evidence. Everything is submitted on written documents which are considered by that body and a determination rendered ordinarily within opinion?
Jerome Ackerman: I believe that there are variations in this practice. I do not -- I do not believe --
Byron R. White: Have you ever heard of a trial in the sense of witnesses being heard before --
Jerome Ackerman: I believe that in the article by Garrison we've cited in --
Byron R. White: Yes.
Jerome Ackerman: -- our brief, mention is made of cases in which hearings have been held and I think that from time to time there are hearings. You -- you touched briefly before in another aspect of the Adjustment Board --
Earl Warren: But before you go to that. You -- I'd like to get oriented on it. You said that the correspondence between the Union and the company was out of context. You did mention in the letter that came to the employee himself. Now, do I understand that it's your position that he was not discharged?
Jerome Ackerman: Well, Your Honor I --
Earl Warren: If you do, I'd like to have your report to the letter they originally sent to him.
Jerome Ackerman: The letter that was sent to Mr. Walker told him to report for work within 30 days pursuant to a specific provision of a contract for --
Earl Warren: I understand that.
Jerome Ackerman: -- for -- forfeit his seniority.
Earl Warren: But I'm talking about the next letter that they wrote to him?
Jerome Ackerman: He was then told that because of his failure to report within the time period. He's seniority had been terminated. And the termination of his seniority and taking him off the seniority list has, I would say the same effect as discharging. I don't believe --
Earl Warren: They went farther than that, didn't they? Didn't they say, “We'll no longer consider you on the roles of employment of this company?”
Jerome Ackerman: That is quite --
Earl Warren: What is that mean in the common language? They just part, doesn't it?
Jerome Ackerman: I -- I don't -- I don't intend or try to make a great issue out of the distinction. The point that I was trying to make is that in this particular context, the termination of the seniority and if you will, discharged. The problem arose as one purely of contract interpretation. This isn't --
Earl Warren: I -- I understand but -- I understand your position there. But I wonder if you can see that the man was discharged or do you contend otherwise?
Jerome Ackerman: Well, I -- I was --
Earl Warren: What are the two? I don't -- I don't say which position you should take --
Jerome Ackerman: Well, I -- I would --
Earl Warren: That you are entitled to have one of the two, I would think.
Jerome Ackerman: Mr. Chief Justice, I would say that as a practical matter. I don't think it makes a great deal of difference whether you say he was discharged or his seniority was terminated. The effect is the same.
Earl Warren: Well, we might consider that difference but you --
Jerome Ackerman: He --
Earl Warren: -- do you concede that he was discharged?
Jerome Ackerman: No, I do not say that he was discharged if one --
Earl Warren: Would you read the last -- would you read the last paragraph of that letter that I just referred to. I don't know where it is? Where it, isn't in our court?
Jerome Ackerman: The last paragraph, just please turn in all company property.
Earl Warren: What page it is in? What page is that?
Jerome Ackerman: This is page 68.
Earl Warren: 68 of the record.
Jerome Ackerman: The second to the last paragraph, “as you did not report and protect your seniority as instructed and this is to advise you under the provisions of the Fireman's Agreement, Article 25 (e) (3), that your name has been stricken from the Fireman Seniority List and you are no longer considered an employee of the Southern Railroad Company.”
Earl Warren: That the man be – could a man be discharged any more effectively?
Jerome Ackerman: Your Honor, I say as practical matter. I think that this is the same as a discharged.
Earl Warren: But why do we quiver about it whether it's impractical matter or whether he is? Why do we acquire of the other? Alright, though let me worry about it.
Jerome Ackerman: You had said before Mr. Chief Justice that you didn't care which way I came out on this --
Earl Warren: Well, I just want --
Jerome Ackerman: -- it was the question how I viewed it.
Earl Warren: -- I just want to know your position. Was he discharged or wasn't he, and I don't -- I'm not satisfied with the word practically. I want -- I just like to know whether he was or he was not. You take even position he want them and that's alright with me.
Jerome Ackerman: I would say that in the context of the agreement, he was not discharged. His seniority was terminated. He was no longer considered an employee of the company. He was not discharged in the sense that I think of that word and I think of that word is quite a word of art.
Hugo L. Black: Who would represent him if he stayed in front of the Board?
Jerome Ackerman: I beg your pardon?
Hugo L. Black: Who would represent this fellow if he stayed in front of the Board?
Jerome Ackerman: Well, I assume he could have Mr. Hamrick represent him. He could have asked --
Hugo L. Black: You have a lawyer to try it before that Railroad Board, it is?
Jerome Ackerman: Right. The -- the Railroad Boards or the Railroad Adjustment Boards procedure does not bar anyone from being represented by someone of his choosing.
Speaker: I thought you mean I suppose to carry on without --
Jerome Ackerman: A union ordinarily would represent an employee and this is usually what would happen but if for any reason there was no Union that represents the employee.
Speaker: Because for example, a Union refused to do so.
Jerome Ackerman: Perhaps so. Of course in that case as this Court has pointed out and as the Court of Appeals below pointed out, the employee is not without remedy. A Union does have an obligation to fairly represent all of the people or for whom it act as bargaining --
Byron R. White: Did the union -- did the union refuse to represent this man in this case?
Jerome Ackerman: I -- I honestly don't know. If it was --
Byron R. White: It was here in the record whether they did it or didn't. They just agree that he was rightfully discharged or --
Jerome Ackerman: The --
Byron R. White: -- right to determine?
Jerome Ackerman: The -- this is correct. Mr. Tolleson of the Southern communicated with the Union stated all of the facts and asked what their position was as to the termination of Mr. Walker's seniority and the responding letter is the one that was described before it.
Hugo L. Black: I guess one didn't read and we assume that he wouldn't have a very enthusiastic representation about the Union?
Jerome Ackerman: I -- I suppose that that is correct.
Abe Fortas: Is the ICC represented on the division of the Labor Board before which this would go?
Jerome Ackerman: The ICC?
Abe Fortas: I mean the Illinois Central, IC?
Jerome Ackerman: I don't know.
Abe Fortas: You know whether this particular union has one of its own officers from that division?
Jerome Ackerman: No, I don't. As -- as we view the principle issue in this case, it is whether federal or state law will govern the question of whether an employee --
Tom C. Clark: Well, may I -- when you say federal or state laws --
Jerome Ackerman: Yes.
Tom C. Clark: -- isn't it really only what forum he goes to? Whether he has to go to the board or there's no question here, is he suppose to go to the Court? I mean if he may go to courts, is there any question here whether state or federal substantive law would apply?
Jerome Ackerman: Well, I think not. I think that Central Airlines decided that federal law applies to suits --
Tom C. Clark: Yes, but Moore has a state law applies.
Jerome Ackerman: Well, there -- it would seem that there's conflict between Central Airlines --
Tom C. Clark: I wonder if that follows on. If this is a matter of statutory construction and Congress has let these things sit the way it has ever since Moore was decided and you can't distinguish this from Moore, I just wonder if there's anything more here than what was going to overrule Moore or not.
Jerome Ackerman: Well --
Tom C. Clark: And in that respect, if Maddox differs in policy approach, will also got involved here. The old principle that you don't overrule statutory construction decision of Congress (Inaudible), they have been into do that.
Jerome Ackerman: Well -- we submit that the rational of Maddox is just as applicable to a case arising under the Railway Labor Act.
Tom C. Clark: This may be brought -- this may be very true and probably is. But isn't there also involved that this -- Moore was a case of statutory construction. Don't you have also the principle whether or not you're going to overrule decisions with symbolic statutory construction that Congress can -- and change if he wants to and this instance has not?
Jerome Ackerman: Well, again Mr. Justice Brennan, I have to say that I think that Moore turned on the question of the applicability of state law. I think that the Koppal case made this even clearer because the Koppal case proceeded right down the line on the notion that state law was applicable here. There was no -- no court at all of anything but state law being applicable in the Koppal case. Now --
Hugo L. Black: That's because of the discharged, wasn't it?
Jerome Ackerman: There was a discharged.
Hugo L. Black: That it was base on the fact that it was a discharged.
Jerome Ackerman: That is correct. Now in that context, when Central Airlines came along in 1963 and this Court held that federal law is applicable to suits on collective bargaining agreements made under the auspices of the Railway Labor Act, I think that that has the same effect as saying that if Moore and Koppal were decided in a context of state law and I thought that state law applied the under pinning as the Court pointed out in Maddox for those decisions was on -- was removed. That being -- that being so --
Abe Fortas: Okay. It's kind of a circular argument though, isn't it because if federal law applies then and you ought to be in the Railway Labor Board. If a -- if a state law applies then it ought to be in the courts?
Jerome Ackerman: Well, but state -- under -- under some state laws --
Abe Fortas: So that – so that it doesn't help you to argue state or federal law here?
Jerome Ackerman: In some situations under state law, you will be remitted to your remedy under the Railway Labor Act as in the Koppal case. In the Koppal case, the -- it was perfectly clear that exhaustion of remedies was required.
Abe Fortas: That's right. That's why the question here is they voted the Railway Labor Board or don't.
Jerome Ackerman: In Footnote 14, in its decision in Maddox, the Court expressly declined to overrule Moore and Koppal cases. They pointed out that such action should await the case under the Railway Labor Act in which the distinctive features of the administrative remedies could be considered in context. We submit that in analysis of the administrative remedies that are available through the procedures of the Adjustment Board are essentially the same as the procedures that are available in the routine labor arbitration context. The procedures are informal. The scope of review is limited to just about the same degree both by reason of this Court's decision in Gunther and in other cases and a recent amendment to the Railway Labor Act which reinforces this Court's decisions dealing with the scope of review from Adjustment Board decisions. The -- the remedies that are available to an employee in proceeding before the Adjustment Board are certainly no less than remedies available in ordinary arbitration procedures. Indeed, they're probably more flexible as this Court itself is aware from the facts in Gunther case. That is a great deal of flexibility in terms of a point in -- of doctors and so on to examine the employee. But under the procedures of the Adjustment Board reinstatement as possible, back pay awards are possible, so that the summons substance is that there is no significant difference between ordinary labor arbitrations of the type that would have been involved in Maddox had the employee there exhausted his contractual remedies and the procedures provided for under the Railway Labor Act if an employee resorts to or a Union resorts to the Adjustment Board. Thank you.
Earl Warren: Mr. --
J. Nat Hamrick: Thank you, sir.
Earl Warren: A few moments Mr. Hamrick, you have two minutes left.
J. Nat Hamrick: Thank you, sir. Mr. Justice Fortas in answer to question about, who would have been in this board, it would have been the Fifth Division. To have jurisdiction over disputes involving train yard service employees, carriers, engineers, primary holds and outside helpers. The divisions shall consist of 10 members. Five of whom shall be selected and designated by the carriers and five of whom shall be selected and designated by the National Labor Organization of the employees. His union would have had five people on that board, as to the board.
Abe Fortas: Oh, no -- not that issue --
J. Nat Hamrick: The Brotherhood of Railroad Trainmen.
Abe Fortas: All of these?
J. Nat Hamrick: Yes, sir. That's Brotherhood of Railway Trainmen. Now in the Central Airlines case, I think that differs from the other cases here. In Central Airlines, the man went to the Board and had reinstatement order and the company refused to reinstatement him. He had invoked the federal law. Had reinstatement order so there was nothing the federal court could do but ordered the company to comply. And I think that is a distinction in the Central Airlines case. Thank you very much.
Earl Warren: Very well.