Earl Warren: -- Incorporated, Petitioner, versus David Livingston. Mr. Harris, you may proceed with your argument.
Thomas E. Harris: May it please the Court. I am appearing as counsel for the amicus, the AFL-CIO by courtesy of counsel for the respondent here. I wish to address myself principally to the question whether Wiley is bound by the agreement to arbitrate under the collective bargaining agreement entered into between the union and Interscience. Now, viewing this question simply as one of private contract law, Section 90 of the New York Stock Corporation Law with control and Wiley quite clearly, under that state statute, would be bound by the collective bargaining agreement, at least up until the point that it expire. However, we agree with counsel for petitioner and with the court below that this is not a matter of state law, but of federal labor relations policy which is controlled by federal doctrine derived from the Labor Management Relations Act and decisions of the Board, and other sources. While the state law might be taken over as a part of federal law, if it were given any effect, it would be by that sort of adoption rather than simply by its own standing. In general, we think that the relations between an employer, a union, and the employees are not controlled either by state law nor yet by a private contract or agency law, but rather by the Labor Management Relations Act and the principles derived therefrom. For this reason, a collective bargaining contract is quite different from an ordinary contract. The union selected by a majority of the employees and an appropriate bargaining unit is by federal statute the exclusive bargaining representative of all of the employees. It can bind dissenting employees, employees not yet fired and the employee here must deal with it whether the employer wishes to or not. If the employer in the union reached agreement, they must embody that agreement in a written contract. This contract in turn is binding on all employees including dissenters and people hired thereafter. The opportunity of the employees to dispense for the one union as their collective bargaining representative and to supplant it with another is quite limited by a federal law. The contract itself is not a simple private contract but a code for the industrial community. As this Court said in Warrior & Gulf Navigation, it is an effort to erect a system of industrial self government. Now, the National Labor Relations Act likewise regulates and in some detail, the rights of parties to collective bargaining agreements to terminate or modify them. That regulation will be found in part in Section 8 (d). Finally, the National Labor Relations Board doctrine likewise controls whether an employer must continue to deal with the union as the exclusive bargaining representative notwithstanding changes and the methods of an employer doing business as when the business is sold or when the method of operation has otherwise changed. Now, the petitioner suggests that this body of Board doctrine as to when an employer or in what circumstances an employer must or need not continue to bargain with the union as exclusive bargaining representative, should also control whether an outstanding and unexpired collective bargaining agreement continues in effect. We agree with the counsel for the petitioner that in general, this body of doctrine should control for this purpose. Now, what is this body of doctrine? In general it is that if the operation of the enterprise is so drastically changed that the old industrial community is dissolved. The old bargaining unit then becomes inappropriate. The employer has no further obligation to bargain with the union as exclusive bargaining representative in that unit. Now, this -- this salute --
Byron R. White: So, do you -- do you suggest that that event or that set of fact never came about at any point in this case?
Thomas E. Harris: No, Your Honor and I will come to that. We think it is quite clear that it did not come about for several months whether it ever came about, we don't know, but I will come to that in more detail. Now, the petitioner quotes and for the decision of the Board in Cruse Motors which summarizes the Board doctrine as to the obligation of the employer to continue the deal. A mere change -- and this is a quotation from the Board. "A mere change in ownership of the employment enterprise is not so unusual a circumstance as to affect the certification. Where the enterprise remains essentially the same, the obligation to bargain of a prior employer devolves upon his successor and title." The form that the change of ownership takes is immaterial. That is whether it's a sale of assets, a merger, or consolidation, or a stock purchase. It's the continued existence or lack of it of the industrial community that is decisive. Indeed, transfer of ownership is by itself irrelevant for this purpose. An employer may, without any change in ownership, so hold to his operations that a bargaining unit that was formally appropriate is dissolved or submerged in a larger unit or that a new unit is created. If that happens, he is no longer obligated to bargain with the union certified for the whole unit. Of course the collective bargaining agreement may inhibit the employer in making changes that will destroy the collective bargaining unit but if it does not, this problem can't arise even without any sort of change of ownership. Now, if by reason of the changes and operation, the old industrial community disappears and a new appropriate bargaining unit comes into existence in which the union represents only a minority and that is what the petitioner says happens here. Then we would agree that it's probably an unfair labor practice even for the employer to continue to bargain with the union as exclusive bargaining representative for all of the employees.
Speaker: (Inaudible)
Thomas E. Harris: I say that -- that the employer here contends, the petitioner, and this is what they contended from even before the merger took place. That where one -- where the method of operation is so changed that the industrial community is dissolved, and the old group of employees is merged into a different and larger group of employees so that the union now represents only a minority and what is now the appropriate bargaining unit. They say that the employer is under no obligation to continue to bargain with the union as the representative of the unit. And indeed we agree with that, we think that given that set of facts. Indeed, it is probably an unfair labor practice for the employer too. This Court has held for example that it is an unfair labor practice for an employer to make a contract with a minority union as the exclusive bargaining representative for all of the employees. That was the holding a couple of years ago in International Ladies Garment Workers, the --
Speaker: (Inaudible)
Thomas E. Harris: Our answer to that in this case is that that is not this case. The record here quite clearly shows that the Wiley employees, the Interscience employees, continued to work at the old Interscience Plant for some months after the merger. The record is silent as to when they were finally, physically moved to the Wiley plant. I believe counsel for the petitioner stated that it was early in January of 1962. But the record is quite clear that no such change took place immediately upon the legal merger which was October 2nd, 1961. That for some months thereafter, the old Interscience employees continued to work for Wiley at the old Interscience plant just as before presumably under new management. Presumably there was a change in the top personnel other than Mr. Lieb who survived, as we say the industrial community, did for some months. Now, as to what happened around the end of the year, at that point, the employees were moved physically to the old Wiley plant.
Tom C. Clark: (Inaudible)
Thomas E. Harris: The intention -- at the time of the merger, the position of the petitioner was that the contract would automatically expire at that point. The contention of the union was that it did not expire. The very point which is here at issue before the Court was debated between the parties through the summer of 1961 preceding the merger and they reached no agreement upon it.
William J. Brennan, Jr.: As I understand Mr. Lieb to say that the program by which the change over from the old Interscience to the Wiley building and the -- and the intermeshing of -- both the workforces and everything else had been planned to the union knowledge as a process which would take several months and that I think he told us and in fact that from about October 2 to about January 1956 or something like that. Now, would that have any significance on -- on your position?
Thomas E. Harris: It would not --
William J. Brennan, Jr.: (Voice Overlap)
Thomas E. Harris: It would not have any significance on our position that the old unit survived and that the union retained its status as exclusive bargaining representative and that the contract continued in full force in effect unless and until that physical shift took place. The fact that the employer announced that it was going to take place sometime could not, in our view, affect the status of the union as bargaining --
William J. Brennan, Jr.: Suppose the --
Thomas E. Harris: -- representative or the continued validity of the contract.
William J. Brennan, Jr.: Well, suppose the employer had announced before October 2, a shift would take place over the period from October 2 to January 2, and it did in fact take place between October 2 and January 2. Does that make any difference in your position?
Thomas E. Harris: It would make some difference because I think that -- I think that the arbitrator could well find that the employer's responsibilities under the contract differed after the physical merger of the two work staff.
William J. Brennan, Jr.: Did you say that -- (Voice Overlap)
Thomas E. Harris: Now, let me say first that even after the physical -- even after the Interscience (Inaudible) employees were transferred physically to Wiley that we do not know that the old Interscience union disappeared at that point. These employees were a unit of clerical and shipping employees. Now, if for example they were shifted to Wiley and that Wiley they continued to handle the shipping function which they had handled theretofore and remained a desperate and unidentifiable group of employees, quite conceivably the bargaining unit could have survived even when -- after they moved their place of work a few blocks. But the record is silent on what happened to these employees at that point. If on the other hand they were scattered out, interspersed inextricably among the Wiley employees, then presumably the bargaining unit disappeared. But the record doesn't answer that. All it shows is that it survived for some months. What happened after that, we don't know.
William J. Brennan, Jr.: On the premise that they were dispersed in the Wiley organization when according to a plan announced to the union on -- that would be made effective on October 2 and the union was told about it before October 2, and in fact was completed by January 2 according to plan on all those premises. What is your position as to arbitration? You said that arbitrator might find something.
Thomas E. Harris: Yes.
William J. Brennan, Jr.: Is it -- is it the very issue here whether there's any obligation to arbitrate at all?
Thomas E. Harris: Yes. Now, I think that that question whether there is any obligation to arbitrate at all, is answered very simply by the fact that the unit and the contract did survive for some period after October 2nd.
William J. Brennan, Jr.: Even though, it survived only according to this plan of (Voice Overlap) --
Thomas E. Harris: Even though it planned -- it survived pending in plan --
William J. Brennan, Jr.: So why do you say that? Why do you say that? I don't follow that.
Thomas E. Harris: Because under the doctrine argued urged both by petitioner and us, as long as the old industrial community survives as an identifiable community and it's not submerged in a new one, the union retains its bargaining status and retains its -- and that we -- we think that the contract should continue on effect.
William J. Brennan, Jr.: But -- well --
Thomas E. Harris: Now --
William J. Brennan, Jr.: I don't follow the --
Thomas E. Harris: -- now, the petitioner's --
William J. Brennan, Jr.: You -- you didn't -- you didn't try to force arbitration until after January 2 as I understand it, and you brought this action in January 23 and by that time, on a hypothesis I've given you, the bargain unit had disappeared. Now, why -- what -- what about the -- I don't quite understand why it is that merely because it took -- as I would suppose in any -- any basis of common sense it might have to take, a little while to complete the intermeshing of the two organizations. By the time you got around the seeking arbitration, the old unit was gone on my hypothesis.
Thomas E. Harris: Well, if the old unit survived and the contract survived for some period of time after October 2, then the union is entitled to arbitrate as to what its rights under that contract or what the rights of the employees under that contract are. That would be true even if the arbitration had not been brought and then after the contract run out which was indeed the situation in American manufacturer.
Byron R. White: Then it was true here. By the time you asked -- have you asked arbitration before the contract expired but after on Mr. Justice Brennan's --
Thomas E. Harris: But the union --
Byron R. White: -- hypothesis there was a dissolution of the bargaining agreement.
Thomas E. Harris: The union never did ask arbitration. What happened was that there were long negotiations between the union and the company. The union, Interscience, and Wiley in the course of which Interscience and Wiley flatly took the position that the contract would automatically terminate on October 2 when the legal merger went into effect. The Company did agree to pay certain benefits to the employees under the contract but it took the position that it was doing this voluntarily, that the contract was automatically out of existence. Finally, when these negotiations were at an end and the Company adhered to its position that it would not recognize the contract for any period after October 2 or recognize the union --
William J. Brennan, Jr.: Well your (Voice Overlap)
Thomas E. Harris: -- then the union brought suit.
William J. Brennan, Jr.: As I understand it, Mr. Harris, your whole case depends upon this set of facts as establishing the continued existence of the industrial community, does it? After the effective official --
Thomas E. Harris: No, I don't think it does Your Honor. And let me go on now and tell you what I think would be the difference after the -- assuming that the Interscience industrial community was at some point submerged. Let me tell you what effect I think the contract might have been. And you will see that my answer to your question is that it does not depend on that but that the employer's liability under the contract would be broader for the period that the old industrial community survived. Now, these questions which I will come to now, I think are questions for the arbitrator, not questions for the Court. But I will indicate what I think the arbitrator might decide by way of indicating what difference I think the submergence of the community would make.
Arthur J. Goldberg: (Inaudible) responsibility of the Court to decide.
Thomas E. Harris: I think that the only responsibility of the Court is to decide whether Wiley was bound for any period by the agreement to arbitrate. I think that is a question for the Court. Now, assuming --
William J. Brennan, Jr.: (Inaudible) which is to say then, he -- you say Wiley had that obligation and the courts so hold. As I understand it, by reason of the events after October 2 and before January 2 on my hypothesis, you say it doesn't actually so in taking that hypothesis. You say that Wiley is bound by reason of the events between October 2 and January 2, don't you?
Thomas E. Harris: I do. I say that by reason of that, I say if the contract continued in full effect until the industrial community was submerged assuming that it eventually was which the record is silent on. But I would say that the contract has some effect even after the -- even assuming the disappearance of the indust -- the old Interscience industrial community.
William J. Brennan, Jr.: What effect does that (Inaudible)?
Thomas E. Harris: That -- that is what I want to come to now, and it will be in terms, I think, of what the arbitrator might decide. I --
William J. Brennan, Jr.: That doesn't help me Mr. Harris, frankly. I thought (Voice Overlap) --
Thomas E. Harris: Well -- well, I think it -- I think it --
William J. Brennan, Jr.: What do we have to decide?
Thomas E. Harris: Well, I think -- I think it's an easy case for you. I think that all that you have to dec --
William J. Brennan, Jr.: Well, you may but I don't find it.
Thomas E. Harris: I think all that you have to decide is that Wiley is bound by the agreement to arbitrate that that could be decided simply on the fact that the old industrial community continued in existence for sometime after October 2.
William J. Brennan, Jr.: Well, that -- that's -- (Voice Overlap) --
Thomas E. Harris: I -- I don't think the Court --
William J. Brennan, Jr.: -- having my difficulty.
Thomas E. Harris: I don't think the Court need decide what the rights under the contracts are or which provisions of it continued in effect, under which circumstances.
Byron R. White: Well, that is precisely the arbitration clause continued into effect --
Thomas E. Harris: For some period after October 2.
Byron R. White: Well, it has been decided, it lasted up until the time you asked that you requested arbitration?
Thomas E. Harris: No, because Your Honor -- because even if the contract had expired, you can ask arbitration under an expired contract. If the substantive rights you --
Byron R. White: arose under the --
Thomas E. Harris: -- seek to vindicate arose under the contract.
Byron R. White: Exactly. Exactly, but that is a -- that is a very bootstrap argument, I mean, (Voice Overlap) --
Thomas E. Harris: Well -- well, let's look at what the -- let's look at what the arbitrator might decide. Assuming that at some point, the old industrial community and the old collective bargaining unit disappeared. First, I think the arbitrator and I am talking only about the latter part of the period and upon petitioner's assumption that the old Interscience employees were submerged in the body of Wiley employees. Now, up until that happened, I think the arbitrator can enforce the full contract.But after it happened, I think there are some parts of the contract that he could enforce and some that he couldn't. For example, the exclusive bargaining clause could not be applicable assuming a new unit at Wiley where this union is not the exclusive bargaining representative. The recognition clause of the contract, Article 1, Section 1, couldn't be enforced. I think the same thing is true as to the union shop provisions. The old contract could be expired only to the old Interscience employees obviously, not to new hires. However, even assuming the submergence of the old community, what reason is there why the contract should not be applied to the old Interscience employees as respects such matters as severance pay and accrued vacation pay. Now, the petitioner actually did pay the severance employee pay provided by the old contract to 11 employees who quit when they were moved over to Wiley. Petitioner has searched in its brief that if they accrued vacation pay through the end of the contract. Though the record is silent on that, the payments to the welfare and pension plan under the old contract or in exactly the same status, these are accrued financial rights. Why should not those rights be enforced under the contract? Whatever happened to the old industrial community? Now, when you come to seniority rights, the question for the arbitrator would be, whether the contract conferred rights surviving the expiration of the contract. In Zdanok v. Glidden, the Second Circuit held for example that that particular contract did contain seniority rights, rights as to rehire and recall which survived the expiration of the contract and the shutting down of the plant and its movable to a new location some hundreds of miles away. If the arbitrator found that the contract was intended to confer seniority rights which survived its expiration, the further question would be, "How are these rights to be applied in the chain circumstances?" That is how can -- assuming that there are seniority rights under the expired contract, how can this be given to the old Interscience employees in the new work -- framework at Wiley. Now, the petitioner argues that once the operation is so changed that the bargaining unit disappears which it asserts happened in early January of 1962 and that they had in mind all the time. They assert that once that happens, the employer is no longer bound to deal with the union. Indeed, that it can no longer properly deal with it as a matter of federal labor relations policy. However, there is no federal labor relations policy against the enforcement of contracts of a minority union, assuming that it's a valid contract, when there is no majority union in the plant. In Retail Clerks International Union v. Lion Dry Goods, 369 U.S. 17, this Court held that a contract entered into by a union which had lost its majority during the strike, this was a contract dealing with the settlement of the strike providing for reinstatement of the strikers covering certain other points. This Court held that that contract was enforceable by the union under Section 301 even though a union had admittedly lost its majority in the plant. Indeed, as long as there is no exclusive bargaining representative in the plant, and no exclusive bargaining contract covering the plant, there is no federal policy against individual employment contracts. An individual worker can enter into an employment contract with the employer and that contract will be enforced so long as there is no collective bargaining representative and no contract which undertakes to supersede that individual contract. If the contract is in -- is for the purpose of forwarding collective bargaining or if the employer refuses to bargain because of the individual contracts, then the contracts should be void under this Court's decision in J.I. case. But there is no federal policy in general against either individual contracts or minority union contracts. Now, if another union were certified as the exclusive bargaining representative at Wiley, then perhaps this union could no longer enforce the contract. Perhaps the new union would become the agent even to enforce rights which survived under the old contract. And of course, the new union could enter into a new contract which might change the rights under the old contract with the exception of such individual rights as it indivisibly vested.But that is not the situation. There is no new union here. There is no new contract. And simply as the holder of the contract, though not perhaps as the exclusive bargaining representative, the union surely still has status to enforce whatever rights survived under the old contract. We believe that -- that the federal policy should favor enforcement of the collective bargaining agreement and protection of rights accruing under it notwithstanding such matters as changes of ownership as indeed the Court of Appeals felt. The Labor Management Relations Act is concerned with promoting industrial piece not with such technicalities as whether a plant is required by stock purchase, merger, asset purge -- merger. Here, actually these technicalities support the union's position and it could prevail under the New York law if that were applicable. But we think that that is not the main point. The National Labor Relations policy favors the enforcement of collective bargaining agreements as a means of promoting industrial harmony. It so states in numerous pace -- places. It provides a special forum, the federal courts under 3012 enforcement. And as I said, there is no federal policy against enforcement even after a union loses its majority status. Finally, the denial of enforcement, would this involve -- manifest injustice? These employees would be denied their bargain for quid pro quo and they would be denied whatever they gave up to get the collective bargaining agreement when it was negotiated. Finally, let me state again that while I have discussed these questions as to what an arbitrator might hold the liabilities to be under the contract. One, before the physical consolidation to even assuming a physical consolidation, that I don't think that any of these questions are for the Court. I think that all that is for it now is the question whether Wiley was bound for some period of time to arbitrate on the old agreement. And we submit that it clearly was. Now, what I have said -- again, I would like to repeat that under the Labor Board doctrine which is applicable here, it wouldn't matter really whether any merger of companies or any change of ownership at all had taken place. As I have said, it is quite possible for a single employer with no change of operation to so change his method of operation as to destroy the bargaining unit and as to undercut the statutory duty to bargain with a union for that unit. Even there, we would take the position as we do here that the employer continues bound under the old contract. And that the union has standing to enforce it, unless and until there is some new union that negotiates a new contract that supersedes it. Thank you.
Earl Warren: (Inaudible)
Charles H. Lieb: Mr. Chief Justice, and if the Court please. It seems to me that Mr. Harris in his argument, he mentioned essential point here. He suggests that even though the union lost its representative rights at the time when the Interscience employees were merged into a much larger Wiley group that nevertheless those employees might continue to have individual contract rights. They may, but that is not the question here. The question here is not what rights due the employees coming over from the Interscience and being put into the Wiley establishment. The question is not here as to what rights if any of those employees may have. The question here is whether the union which formally represented those employees and upon the collective -- in a collective bargaining group and which now no longer represents them may arbitrate, not may sue for them. It's conceivable that these employees having rights hypothetically had given powers of attorney to -- to the union to sue in behalf of John Jones and John Smith to vindicate personal rights. It's conceivable that such a lawsuit might have been commenced not by the union in a representative capacity but by the union as an attorney for a particular individual. This proceeding, however, is an application to compel Wiley to arbitrate with the union under a contract which is no longer effective in which became ineffective when the Interscience Industrial Community was dissolved and terminated. At that time, whatever I say, I say again. At that time whatever the individual rights may have been, certainly the arbitral right disappeared because this was a --
William J. Brennan, Jr.: What -- what date?
Charles H. Lieb: We say that the right to arbitrate disappeared on October 2nd.
Potter Stewart: Why?
Charles H. Lieb: Because pursuant to a plan announced to the union in advance of the merger actually put into operation on the date of the merger and actually completed pursuant to plan within two months plus following the merger, the Interscience industrial community was physically broken up. It was moved per plant, block, stock and barrel over into a much larger plant. The Interscience employees were relieved from the work that they formally were doing. There was no longer Interscience work to be done. They were put on Wiley jobs. They were no longer represented for collective bargaining purposes by this union because this union represented a group of 40 clericals working in an Interscience establishment and not 40 out of 400 employees doing similar work in the similar unit working in the Wiley establishment. In other words, we say that -- that as of the date when the -- when the dissolution of the Interscience enterprise was commenced, the Interscience collective bargaining contract was no longer appropriate.
William J. Brennan, Jr.: (Inaudible) would commence according to a plan.
Charles H. Lieb: Yes.
William J. Brennan, Jr.: It has been announced before --
Charles H. Lieb: Yes.
William J. Brennan, Jr.: -- October 2 that it was for that fact that we're in trouble with.
Charles H. Lieb: Well, we have another -- we've been -- we've been misquoted by the union on amicus. We never took the position at the time of the merger that the merger as such terminated the contract or prevented the obligation that Interscience had from flowing over to Wiley. We took the position before the merger and at the time of the merger that the contract would no longer be effective because the work force of Interscience was being integrated into the Wiley work force. Now, I should say that we never had the opportunity to present proof on this. This record is -- is -- in thin state over this because the union moved for summary judgment. We stated the ultimate type that the Interscience enterprise had been integrated into the Wiley enterprise. The union didn't think that it was relevant or important. We suggested that if the union was to proceed in Court under Section 301 at the time I thought it was proceeding under Section 4 of the Arbitration Act that we should be given as a defendant in a plenary action, pretrial, advantages of development of proof.
William J. Brennan, Jr.: What they're now asking, reinstatement (Inaudible)
Charles H. Lieb: Yes.
William J. Brennan, Jr.: And this on the ground, as I now understand you, I've had so much difficulty with Mr. Harris. Don't make it difficult with you too. As I understand it, what your -- your position is that Wiley -- no obligation of Wiley to go to arbitration (Inaudible) that on October 2, the bargaining unit was dead finished and therefore there was no basis upon which any obligation should be imposed on Wiley under federal law.
Charles H. Lieb: That is our position --
William J. Brennan, Jr.: Alright.
Charles H. Lieb: -- sir, yes. And the facts to support that, we think are adequately stated in the record. If you take the -- the fact that phy -- the physical consolidation according to the Union's own position took place in January and if you look at the record to see the announced plan of Wiley on and before October 2.
Byron R. White: Well, Mr. Lieb, do you -- do you feel that it's absolutely essential for you to establish that Wiley never became bound that all who knew the contract? As I understand the union's position as it once -- once or the amicus once Wiley becomes bound to the contract for any period of time. Then it's only a matter of interpretation of the contract as to whether it was intended in any part to survive expiration whether by virtue with its own terms or by the dissolution of a -- of a bargaining unit. And it's only a question for the arbitrator to say, if these parties intend, for example, the obligations, or vacation pay, or seniority, or pension rights to survive the expiration of the contract. That is what I gather, they are the same. It's only a matter of the meaning of the agreements. Certainly, the parties could aid -- just expressly say that regardless of the termination of the contract, certain obligations are going to continue, but infinitive in perpetuity. They could say that. The union claims that that's what the contract means. And that -- that the arbitrator is the one who should interpret it. And once Wiley gets on the line, it can't get off.
Charles H. Lieb: We think it's essential to establish that -- that the Court must decide whether or not Wiley is responsible to arbitrate.
Byron R. White: Well, yes, but what if it -- what if the Court decided that as a matter of the law, the merger does not automatically terminate an agreement. And that the -- and that the acquiring company is bound by the contract if there is no dissolution of the -- of the -- the industrial community on the date of merger. Now, what if the -- assuming the Court decided that?
Charles H. Lieb: We would think that under that rule, Your Honor, Wiley would be relieved from arbitrating with the union. Because we take the position that the -- what -- we -- if given the opportunity to --
Byron R. White: The day after a merger, if the Court decided that the merger did not automatically terminate, the day after merger, Wiley would be bound to -- under the contract.
Charles H. Lieb: Well, the fact -- the fact is there's no -- that's not in the record.
Byron R. White: (Voice Overlap) -- well, is that right -- I mean, that -- I'm -- I'm close, I'm consummating that the Court did decide that.
Charles H. Lieb: This? Yes, yes.
Byron R. White: Assume that it did decide that.
Charles H. Lieb: But we would show that on the day of the merger, Interscience employees were brought over the Wiley. If given the opportunity to present fact here, we would show that on the very date of the merger --
Byron R. White: Alright, I -- I grant you that you might have quite facts with these two, but let's just assume for the moment, just assume for the moment --
Charles H. Lieb: Yes.
Byron R. White: -- that no -- that -- that the industrial community did not dissolve on that day. That as a matter of fact it didn't. That it was two months before you moved any employee. You left them right in that plant. Now, just assume that for the moment, then Wiley does become bound or let's assume the Court decides that it did -- if we made that Wiley became bound on the contract. Now, is there -- is there any other way out for you then?
Charles H. Lieb: Oh yes.
Byron R. White: Out of the cons --
Charles H. Lieb: Oh yes. We -- we make --
Byron R. White: What -- what are -- what is (Voice Overlap) --
Charles H. Lieb: Well, we presented a number of other defendants.
Byron R. White: What is one of them?
Charles H. Lieb: Well, in the first place, we say that -- that the union lost its right to arbitration and abandoned the arbitration. They elected not to arbitrate. They've elected to bargain with us. It talked with us for four months when we said that --
Byron R. White: -- the procedural arbitrability --
Charles H. Lieb: So called --
Byron R. White: He refused a procedural arbitrability.
Charles H. Lieb: So called. We --
Byron R. White: And what's another way out?
Charles H. Lieb: We have -- we have two others. Another defense that we have is that the claims, as of them is by themselves, are not arbitrable. That they're not arbitrable because this --
Byron R. White: Within the provisions of the arbitration clause.
Charles H. Lieb: Not -- not within the scope of the contract at all.
Byron R. White: Yes.
Charles H. Lieb: And the third reason why we say that -- that we have a full and complete defense is that we say that in any event, the union has lost its right to arbitrate for this people.
Byron R. White: But you wouldn't include in your -- in your other ways out the fact that once Wiley became bound, it cease to be bound because the contract expired or because the bargaining unit, it was dissolved in a later date.
Charles H. Lieb: I -- I would sir, except that I put that under my nonarbitrable point because it seems to me, if only for the reason that the contract says that the company shall make contributions to the union welfare plan for two years ending January 31, that any claim that the union makes that the company, whether Interscience or Wiley, should make contributions for succeeding years, obviously is not within the scope of the contract. We think that a point is reached notwithstanding the -- the -- your decisions in the Steel Workers cases. We think a point is reached where as Professor Cox had occasioned to say, you can have a frivolous assertion. Our claim was distinguished from a fri --frivolous claim. And we haven't had the time to -- to argue or discuss these questions, and the fact that I haven't argued them, doesn't mean that I don't feel very strongly about that. We -- we think that -- I see my light is over. My -- my light is off.
Hugo L. Black: (Inaudible)
Charles H. Lieb: Yes sir.
Hugo L. Black: If the merger agreement or the creature's agreement or whatever you call it, in the record?
Charles H. Lieb: It is in the record but not printed but I should like to hand it up if I may. It -- it's Exhibit 2 (a).
Hugo L. Black: What did it provide if anything about the assumption of the existing contracts?
Charles H. Lieb: It provided nothing. I drew the agreements.
Hugo L. Black: There was nothing.
Charles H. Lieb: It provided nothing about assumption of existing contracts. It said nothing. We relied to protect the -- the creditors of Interscience. We relied on the Section 90 of the New York Stock Corporation law. I'd like to say Mr. Justice Black that the assumption has been made, I think too glibly, that Section 90, if it were held to apply, would apply to this. Section 90 as I read it, refers to rights of creditors. That's the way the section is titled. I don't consider that the right of a collective bargaining representative to demand arbitration is a creditor's right which even if Section 90 did apply would carry over under that section.
Hugo L. Black: Let me ask you one other question. Is there anything in the National Labor that's expressly -- which refers at all, what happened to the company owning a factory, or a person owning a factory to have the collective bargaining agreement with the unions to sell that factory to another company or another person?
Charles H. Lieb: There's nothing in the Act, sir --
Hugo L. Black: Do you think its expressed or referred to?
Charles H. Lieb: No, sir. As -- as we said on Thursday, the lower courts and the Board have held on contract board questions that the successor is never been there, unless he's an (Inaudible) under the old contract. Thank you very much.


Earl Warren: I. Watson Jr., et al., petitioners versus City of Memphis. Mr. Prewitt you may continue your argument.
Thomas R. Prewitt: Mr. Chief Justice may it please the Court. Yesterday Your Honor I believe you asked me to check in the [Inaudible] of the number of colored children that are now attending desegregated schools in the City of Memphis and I have that information.
Earl Warren: Thank you.
Thomas R. Prewitt: There are presently 63 colored school children attending desegregated schools in the City of Memphis. The program of desegregation was commenced in the Fall of 1961 with the first grade and in the Fall of 1962 the second and third grades were desegregated. These 63 school children do not include an undetermined number of colored children who were assigned to the desegregated schools, but who asked to be reassigned to all colored schools. I don't have that number, may it please the Court. I might state this with respect to the schools because it does have considerable relevancy here that on May the 22nd next there is scheduled a hearing in the District Court at Memphis. Both the Board of Education and the NAACP have presented proposed plans for further integration of the public schools. Under the NAACP plan, the first six grades would be integrated this Fall and seven, eight, and nine in the Fall of 1964 and the remaining grades in the Fall of 1965. Under the Board of Education plan, the first four grades would be integrated this year and then one grade a year here after until the program is terminated. So that is the situation with respect to schools.
Earl Warren: Thank you very much.
Thomas R. Prewitt: Now with respect to the parochial school and that has some relevance because the Park Commission operates playgrounds on parochial school property. Bishop Adrian of Nashville has recently announced that the parochial schools in Tennessee would commence their program of desegregation this Fall on a gradual basis. Now, up to address myself to the problem at hand, the recreational facilities of the City of Memphis. The undisputed proof shows these facts, may it please the Court that 56 of the 117 supervised playgrounds, which accommodate 100,000 children in supervised play, are on school and Church property. The Park Commission in its thinking and in evolving its plan with respect to complying with the Brown case felt that it would not be wise to desegregate the playgrounds on the Church properties and the school properties until those institutions themselves were desegregated. It was thought that that would not be in the best interest of the people as a whole. Yes sir?
Arthur J. Goldberg: [Inaudible]
Thomas R. Prewitt: I beg your pardon.
Arthur J. Goldberg: [Inaudible]
Thomas R. Prewitt: No sir, if Your Honor please.
Arthur J. Goldberg: [Inaudible]
Thomas R. Prewitt: Not all of it, if Your Honor please, some of it. For instance basketball takes place in the school gymnasiums. Of course baseball would take place on the school playgrounds. Most of it would take place after school hours, but much of the supervised play would take place during the school terms. A great portion of it of course takes place in the summer time. And I would judge that the greater percentage of the supervised play does take place in the summer time when the schools are not in session. But with respect to basketball and baseball and other activities the recreational activity does take place during the school time. Now, the proof also shows this, may it please the Court, with respect to all of the 117 playgrounds that if the relief sought here is granted and all of the playgrounds are desegregated at the same time that the supervisory staff that now supervises the play of these 100,000 children will not be adequate and that more supervisors will have to be trained and employed to give proper supervision and proper protection to these children during this transition period, it's contemplated. The necessary result of that, may it please the Court, would be that a large number of children would not receive the benefits of supervised play that they are now receiving and the Park Commission feels that that is tremendously important thing for all of the people of Memphis, especially to keep the children off the streets during the summer vacation period. And I don't believe that I need any citation of authority otherwise to demonstrate how important that is to any city. This playground system of Memphis, we feel, is one of the finest in the country and we feel that it has been developed over a period of years to the point where it is one of the most important facets of our community life. We recognize, may it please the Court that we must comply with the established law that all of the playgrounds must be open to all children colored and white, but we feel that additional time yet is necessary, recognizing that it has been eight years since the Brown decision. But we feel that experience has shown that where this program can be developed on a gradual basis without an injunction hanging over the heads of our people and authority that we can develop it in such a way that it will not create confusion or disarray and will give protection and supervision to all of these children. The Park Commission certainly from the concurrent finding of both Lower Courts has acted in unquestioned good faith in trying to carry out what we felt was the law as announced in the second Brown decision. But we feel that some additional time is necessary, bearing in the mind that the only question before this Court is whether or not the Lower Courts had any discretion save to issue an immediate injunction. The adequacy of the plan that I filed on yesterday, the adequacy of any plan has never been presented to the District Court or to the Court of Appeals. This appeal was taken before we had an opportunity to allow the District Judge to adjudicate with respect to the full plan. And as I stated yesterday, we don't say that this plan that we've got enough is the magic answer or that it will be adequate or that it will be sufficient. It is the best plan that we've been able to devise and we feel that the District Judge should have an opportunity to adjudicate with respect to that plan and if it is inadequate to accelerate it or to take what other steps might be necessary, that's our position. If they --
Earl Warren: Mr. Prewitt may I ask you this. I understood Mrs. Motley to say that practically all or at least a great many of the parts that you have desegregated were merely little squares or little triangles that, where they had a statue and a few -- in a few chair, few seats that people could sit in. Is that the fact then and if so how many general playgrounds have you in these last nine years desegregated for the use of all people?
Thomas R. Prewitt: If Your Honor please in answer to your question, I would take issue with counsel on her statement. I can't tell you how many of the 130 I believe parks and 117 playgrounds have been desegregated. I will try to give you now some of the facilities that have been desegregated. Six of the seven public golf courses, Crump Stadium, which was alluded to, has been desegregated. The public zoo, the fairground, the lake boat dock and several, I'm not prepared to say exactly how many, several playgrounds have already been desegregated. Several were desegregated last year and the program calls for additional desegregation this year. But many, many parks and many, many facilities have been desegregated under the plan that's already been evolved. And the Park Commission is complying with -- yes sir, counsel reminds me that all the tennis courts have been desegregated. And I am safe in making this statement that there is no activity sponsored by the Park Commission which is not now open to both races. There is no as distinguished from a particular playground at a particular place. There are many playgrounds which are still segregated. Most of them are neighborhood playgrounds, but there is no activity now except the Pink Palace Museum and it stands in a different light and I don't believe that it is going to be a significant problem. In fact I think that it is very minor when considered in the light of the whole program.
William J. Brennan, Jr.: Well, Mr. Prewitt are you telling us that the program, this ten year program is in fact being put into effect, is that it?
Thomas R. Prewitt: Yes, it is being --
William J. Brennan, Jr.: I see. Now what you are doing is according to that program and the timetable into that program?
Thomas R. Prewitt: No sir it's been accelerated, in several different instances. For instance I believe Winchester Park on the program was to be desegregated in 1965 and that has already been desegregated. It was desegregated in 1962. There are other instances of that type where the program has been accelerated and it will be accelerated, but we feel that it is difficult to plan ahead on a program as vast as this. We recognize the problem and as time goes on and the Park Commission we believe will be able to make judgments as situations come up and accelerate the program in the exercise of its discretion.
Tom C. Clark: The time element is the same in the schools as it is in the recreational area desegregation?
Thomas R. Prewitt: If Your Honor please, as I stated earlier in response to the Chief Justice's question yesterday, the Board of Education proposes to desegregate the fourth grade this year and then one grade each year thereafter. The plan submitted by the NAACP would accomplish complete desegregation of the schools by 1965. The District Judge has not yet ruled with respect to the two plans concerning the school system.
Tom C. Clark: And the schools would be desegregated by 1965?
Thomas R. Prewitt: If the plan submitted by the end of --
Tom C. Clark: [Inaudible]
Thomas R. Prewitt: If the plan that we have already presented to the public press is the final plan, but the Trial Court has never had an opportunity to even consider that plan.
Earl Warren: Well Mr. Prewitt, has the City of Memphis opened up any new parks in recent years?
Thomas R. Prewitt: Yes sir.
Earl Warren: Have all of those been opened up on the non-segregated basis?
Thomas R. Prewitt: You mean parks that were formally undeveloped, is that what you...
Earl Warren: I don't know. I said have they opened any any new parks? I don't know what undeveloped means, but have they opened up any new parks for use of the people of Memphis during recent years, and if so have those that they have opened up been desegregated or have they been segregated?
Thomas R. Prewitt: I think I can answer that yes, if Your Honor please, that they have opened up new parks, which are now desegregated.
Earl Warren: Have they opened any of that have remained segregated?
Thomas R. Prewitt: Yes sir.
Earl Warren: And why? If you are looking for a plan to remedy this situation and to give these people their rights, why do you buy new parks and segregate them?
Thomas R. Prewitt: If Your Honor please, the only answer I can give to that is that the new parks as well as the old parks have to be considered as part of the overall system and the plan for desegregation takes into account all of the system, including new parks as well as the old parks and the program that we are trying to evolve will result of course in desegregation of all the parks. In all candor, may it please the Court, I can add very little or detract from the opinion of the Court of Appeals. I feel that the Court of Appeals has analyzed the evidence presented below, has concurred in the findings of the fact of the Trial Court, and has stated our position far better than I can state it. We feel that since both Lower Courts found that the Park Commission acted in unquestioned good faith and that more time was necessary in order to accomplish an orderly desegregation of this vast recreational system, that the trial Judge was not in error in refusing to issue an injunction, which would order massive desegregation of every recreational facility in the City of Memphis.
Potter Stewart: Mr. Prewitt, you've emphasized several times that the -- in your view the only question before this Court now is whether any delay at all is permissible in -- with respect to park and playground system as contracted -- as contrasted with a school system and that no particular plan is before us. Is that what I understand?
Thomas R. Prewitt: Yes.
Potter Stewart: I've been looking through the record and I can't seem to find the judgment of the District Court. The judgment of the Court of Appeals is one affirming the District Court, but there is lots of -- there are some conclusion in fact in law with no signature by the Judge on it, were those proposed and not --
Thomas R. Prewitt: No sir, they were entered. If the record reflects only a copy then this record is in error. The findings of facts of the Lower Court are in the record at page 91.
Potter Stewart: 91 to 101.
Thomas R. Prewitt: Yes, sir.
William J. Brennan, Jr.: That's 102. That doesn't seem to be signed or approved, is that the District Court judgment?
Thomas R. Prewitt: That is the fault of the printer, may it please the Court and not the fault of the District Court.
William J. Brennan, Jr.: But is this the --
Thomas R. Prewitt: That is the judgment. Now I do not know why they printed a record doesn't have a signed copy, but it is the judgment of the Court and I have learned today that the typewritten record is here, so that I'm sure it will reflect the signature of the judge.
Hugo L. Black: Who was the Judge?
Thomas R. Prewitt: Marion Boyd, may it please the Court.
Arthur J. Goldberg: [Inaudible]
Potter Stewart: As I am glancing over this record at page 102 and 103, it appears that the -- that Judge Boyd approved a specific plan and a specific timetable, didn't he?
Thomas R. Prewitt: Judge Boyd approved a partial plan, may it please the Court, with respect to the golf courses, fairgrounds, amusement park and a few other facilities that are specifically listed. He further ordered the Park Commission to submit a complete plan within six months and before that six-month period expired the appeal was taken. So that he has never had an opportunity to rule on the adequacy of the complete plan.
Potter Stewart: So his basic judgment and as you submitted it was simply denying an injunction, a prayer for injunction, which would have required the immediate total desegregation of all the facilities. And it's your point that if we agree with you, that there is at least possibly some room for some delay, this would not imply the approval of any specific plan in Memphis or anywhere else, is that right?
Thomas R. Prewitt: Certainly not, because no plan has ever been presented to the Court other than the partial plan with respect to the golf courses and fairgrounds and amusement parks, and the tennis courts, yes.
John M. Harlan II: [Inaudible] the Court gives judgment -- the district court will then be called on to approve or disapprove or modify the plan that you've left here?
Thomas R. Prewitt: That's correct.
John M. Harlan II: And they of course should be subject to further reviews as to whether he abused this discretion or not in what he did?
Thomas R. Prewitt: That's correct Your Honor please if the plan that we've submitted is inadequate then the court necessarily will do something about it.
Arthur J. Goldberg: [Inaudible]
Thomas R. Prewitt: If Your Honor please, I believe that if the Board of Education plan is approved it will -- the time they'll need for desegregation will be about the same time, yes sir. Well both programs were commenced at about the same time. Your Honor is correct, that if the NAACP Plan is approved then there -- it would be on earlier date and I think that might very well have a considerable bearing on what the trial court should do with respect to the Park system. It's hard to separate the two, they are so enmeshed. They even -- the Park Commission and the Board of Education even operate out of the same building now. It's very difficult to consider the two things separately because actually we are talking about the same children because they have the same children, the same children go to school to play on the playgrounds, and the two systems--
Earl Warren: The children must go to school they need not go to the playground.
Thomas R. Prewitt: That's correct Your Honor please and we feel that that strengthens our position, because the participation on the playgrounds is voluntary and we certainly don't want to create a situation which would discourage that voluntary participation. We want to make the playground system attractive to the children so that they will avail themselves of the benefits of it.
Earl Warren: Then you are continuing an existence the feeling of the community that there should be segregation?
Thomas R. Prewitt: To some extent yes, I think that's true if Your Honor please.
Earl Warren: At least in the Brown case that that wasn't a justifiable reason?
Thomas R. Prewitt: Yes sir, but may it please the Court, the opinion of the Court of Appeals is not based on that fact. The opinion of the Court of Appeals is based upon the fact that if the release sought here is granted many more supervisors will be necessary to supervise these 100,000 children and that many children that now enjoy the benefits of supervised play will be deprived of that. That was the basis, not that the community feeling was against it. Of course I would be naïve even if I stood in front of this Court and said that the white people of Memphis were all for integration, but the opinion of the Court of Appeals did not take into account any hostility in rendering its opinion. It was based upon other factors that we feel are legitimate factors under the Brown decision.
John M. Harlan II: What other Courts of Appeals [Inaudible]
Thomas R. Prewitt: If Your Honor please the Fifth Circuit Court of Appeals with respect to Birmingham or Montgomery I'm not sure, ruled, Gilmore against Montgomery, ruled that the second Brown decision applied to public parks and in the City of Charleston case, the Court of Appeals for the Fourth Circuit ruled not that the Brown case applied, but that delay would be authorized in if there was a proof to justify. In the South Carolina case, there was only one facility involved, the public golf course. They weren't considering a system, an entire recreational system. Those are the only two cases that I know about that cover this specific question.
Byron R. White: Mr. Prewitt there will still be the same 100,000 children to be serviced whether the parks are segregated or desegregated and how is that that they will take more supervisors in the event of desegregation, in a particular park? Just take and pick one of the parks you are familiar with and give us an example.
Thomas R. Prewitt: All right if Your Honor please let's take a park that accommodates 800 children, that would be an average, because there are 100,000 children to be -- that are involved in.
Byron R. White: We'll take a specific park with which you are familiar. You don't need to deal with averages and figures. You know of a park there, just speak of one that is now segregated and tell us about how --
Thomas R. Prewitt: I am told that the average park requires two to four supervisors to supervise the play. Until last year there were no integrated playground situations. Where that situation has changed and instead of having children of all of one race, but are mixed for the first time the feeling of the people in-charge, the Superintendent of Recreation and the Director of Parks based upon trouble already experienced on the public buses and at the zoo where additional protection was needed to the public, based upon actual experience, they testified that more supervisors than two to four in the park in question would be needed to protect those 800 children.
Byron R. White: I know that's the testimony, but why are they needed. I know that's somebody's opinion, but what are the -- now you said a moment ago that some parks, some playground that was schedule to be desegregated in 1965 was desegregated in 1962, which park was that whether --?
Thomas R. Prewitt: That was Winchester and I believe the basic reason for that was that the character of the neighborhood had changed more rapidly than the --
Byron R. White: Well, did you need more supervisors in that park when --?
Thomas R. Prewitt: No, because the character of the neighborhood was such that once it was open to both races, only the colored children participated.
Byron R. White: Well was -- what is your, is that just -- do we have the facts in the record as to why more supervisors would be needed or just someone's opinion would be prevalent?
Thomas R. Prewitt: You have the facts that where other facilities have been desegregated Mr. Justice White, such as the public buses and the public Zoo that additional protection was needed.
Byron R. White: Well -- are you saying that if you only desegregate a park and you have a mixture of the races, there is going to be just more fights or more or what?
Thomas R. Prewitt: Yes sir and I don't think there is a slightest doubt about it.
Arthur J. Goldberg: [Inaudible]
Thomas R. Prewitt: Yes.
Arthur J. Goldberg: [Inaudible]
Thomas R. Prewitt: Very little trouble with the tennis courts, very little trouble, may it please the Court, with the golf courses, very little trouble actually at the Zoo, but in dealing with the playgrounds such vast numbers of children, it's the feeling of the people in-charge who lived in Memphis all of their life that, that is a much more sensitive area and it is an area in which we need more additional time.
Arthur J. Goldberg: [Inaudible]
Thomas R. Prewitt: Yes sir.
Arthur J. Goldberg: [Inaudible]
Thomas R. Prewitt: I mentioned, may it please the Court, the Zoo and the public transportation system as two examples of where there was confusion and turmoil.
Arthur J. Goldberg: [Inaudible]
Thomas R. Prewitt: There have been, as I mentioned the playground to Mr. Justice White, but because of the character of the neighborhood, the participation by the white children ceased upon the integration, but there are many neighborhoods where that situation will be not be true.
Byron R. White: Will is it -- are there any other public playgrounds that are desegregated other than the Winchester?
Thomas R. Prewitt: There are three, I believe Your Honor please, there are either three that are already desegregated or that will be that --
Byron R. White: Well, how about that the ones that are already segregated – desegregated? You say there are three of those or only – there are only one?
Thomas R. Prewitt: The only one I can think of is that has already been desegregated is Winchester. Two more are on -- are planned immediately.
Byron R. White: Well, do you know what -- are these in the neighborhoods similar to those of the Winchester?
Thomas R. Prewitt: Yes, sir.
Byron R. White: So that you would anticipate that there will be colored children in the end result there?
Thomas R. Prewitt: Probably if Your Honor please.
Byron R. White: So you have no plans in any neighborhood this time to desegregate a park where there actually in a -- were after the so called desegregation there would be both races on the playground.
Thomas R. Prewitt: We feel that those should be desegregated after such parks as Winchester. That the plan contemplates that park such as Winchester should be first desegregated and that other parks where there will be more --
Byron R. White: Have you submitted your plan yet in the District Court or not?
Thomas R. Prewitt: We submitted it to the Court, but the Court would not consider it.
Byron R. White: Well, in that plan that you submitted, when is the first -- when will be the first park or the first playground that is -- when is that scheduled for desegregation where you know there will be a mixture of the races after the so called desegregation, what year?
Thomas R. Prewitt: All I can say Your Honor please, the Winchester playground has been desegregated.
Byron R. White: Well I know, but you know that -- and why the other two you've got plans, you anticipated only colored children will be playing in that park?
Thomas R. Prewitt: I cannot since it's a voluntary program, may it please the Court.
Byron R. White: I know, but you said a while ago there are other neighborhoods where this will not take place after desegregation and that there actually will be a mixture.
Thomas R. Prewitt: I don't understand exactly what the Court --
Byron R. White: Well, I know but the -- you've -- if the only park that have been desegregated or that are going to be desegregated are the ones in the Winchester type neighborhood, there going to be required no further supervisors because there only be colored children there?
Thomas R. Prewitt: Your Honor please, our plan contemplates desegregation of all 117 --
Byron R. White: Yeah, I know it, but I want to -- I would like to when is the year -- in what year do you plan desegregation of the park where in a neighborhood not like the Winchester Park?
Thomas R. Prewitt: If our plan that has been submitted to the Court, but has not been filed but which has been published is adopted, the playground will desegregated on a staggered basis until 1971 when at which time all of the playgrounds will be desegregated. I cannot answer Your Honor's question that in 1965 our playground number 25 will be desegregated and in that area, the population is 50-50. I just don't know, but it's a gradual program over a period of the next seven or eight years until 1971, taking around six or seven playgrounds a year or whatever is required. We haven't attempted to gerrymander this proposition, but we have -- the Park Commission has attempted to desegregate areas which will be less troublesome first.
Earl Warren: Well, if you desegregate only those parks that because of the type of the neighborhood will only be used by Negroes, have you desegregated at all?
Thomas R. Prewitt: Well, as I say, it's a voluntary participation, may it please the Court.
Earl Warren: Well, I was asking you a while back about voluntary participation in the park is distinguished from attendance of public schools and you said it was because the people of Memphis weren't ready to accept that and use the park in that spirit, that cause them to -- cause your authorities to do what they are doing on this basis.
Thomas R. Prewitt: Well, if Your Honor please, my answer – I will try to answer the Court's question in this way. Actually, there is no segregation in housing in Memphis as such. That is, there is no one particular area in Memphis where there are only colored people and other areas where there are only White people. They are intermingled and scattered over the whole city. This plan of desegregation would desegregate these various parks and playgrounds over a six to seven-year period until 1971. And I can't answer Your Honor's question by saying that when the park number 25 is desegregated that only white people or only colored people will appear there.
Earl Warren: Well I didn't answer that, you told us that just a little while ago that the reason is Westchester one could be done in a manner that it was, was because it was so predominantly colored that when they desegregated it, the Whites wouldn't go there and therefore, you would have no trouble?
Thomas R. Prewitt: That was not the basic reason. The reason was that the neighborhood around this particular park was almost entirely colored. The White people can participate there if they wish, it's a voluntary situation. That's about all I can say, Your Honor please. Again, I submit to the Court that the question herein involved is whether or not the District Court and the Court of Appeals had any discretion save to issue an immediate injunction that was the only issue there, it's the only issue before this Court and if we are inadequate in our plans then that can be corrected and the Trial Judge will correct it, I'm sure.
Earl Warren: Mrs. Motley
Constance B. Motley: As Mr. Prewitt has stated the typewritten transcript of all of the testimony is here in this Court. And on Page 45 of the first volume, it is made clear that those parks, which are already desegregated or which had been desegregated prior to the institution of the suit to 25 of these squares and the --
William J. Brennan, Jr.: 25 [Inaudible]
Constance B. Motley: Yes sir, the 25 that had been already desegregated.
William J. Brennan, Jr.: Those were all these little neighborhood squares?
Constance B. Motley: That's right. And as it appears on page 45 of the typewritten transcript of the testimony, at that time, the Superintendent of the parks was going over the list of all the facilities and he had in his hand Plaintiff's Exhibit 6 and he has the summary of all these facilities and there is one category on the top marked “General” and the Counsel examining him said, “Doesn't general mean these -- he said alright, in this category called general up there, number one, aren't they what you mean to say these parks with just benches and places like Fort Square, are they?” Answer; “That is correct,” so that the facilities which were desegregated were mainly these squares with statues. In fact, one of them is I think a little strip of land near the river with four or five benches and they call that a park, but actually it's just a little square that's been desegregated.
Potter Stewart: Mrs. Motley, it's your position or at least your first position that with respect to a park and a playground system, there is no room for any delay of any kind, any place for any reason in delaying the compulsory immediate desegregation. Is that correct?
Constance B. Motley: Yes, our first position is that with respect to public recreation --
Potter Stewart: Yes.
Constance B. Motley: -- there is no need for the delay contemplated by this Court in the second Brown case because recreation is not like public schools, it's like desegregation of the buses and those have been desegregated in Memphis and many other communities, immediate in the sense of immediate here of course doesn't mean tomorrow, because no injunction was issued for ten days anyway and there maybe an appeal and a stay, but what we mean is that, that it should not be applied to this area, this gradualism, which is developed with respect to school --
Potter Stewart: Well, any gradualism at all, don't you mean?
Constance B. Motley: That's right. No gradualism at all is our first --
Potter Stewart: And this area, you don't mean Memphis, you mean the area of parks and playgrounds anywhere whether it be Memphis or Jackson, Mississippi or --
Constance B. Motley: Yes sir, yes that's correct. And what they're attempting to do here really is to apply gradualism to the area of recreation such as now has developed with respect to the school. Now, Mr. Prewitt also said that the District Court has not acted on their plan because that his hands were stayed. Now, that seems to imply that we applied for a stay of the District Court's order or somebody did, but there was no stay here. And of course, an appeal does not automatically stay proceedings in the District Court and it is my understanding that that plan has not been filed with the District Court, the ten-year plan.
Potter Stewart: There is no plan before this Court, is there?
Constance B. Motley: That's right. It has not been filed in the District Court, but as I said before, the Sixth Circuit has looked at it and now this Court has it because they say it's a public document, everybody knows what --
Potter Stewart: But it's neither been approved nor disapproved by any Court?
Constance B. Motley: That's right. Yes that's absolutely correct. Now, the point of --
Arthur J. Goldberg: [Inaudible]
Constance B. Motley: Yes sir, that's what it is. Now as to the more supervisors -- I think the answer to that was there -- desegregation is that, if 20,000 new white children should move into Memphis as the Sixth Circuit said in the Clemens case, the local authorities would take care of that and they would provide more supervisors or whatever is required to accommodate an additional increase in white children. And the other thing is that there is more confusion now as a result of this gradualism and not less because Negroes are not advised when these parks are desegregated, they don't know which park they can go in and as the record says, you don't know until you go there and the policeman doesn't chase you and you can go. So, this has resulted in more confusion rather than less. Thank you.