Earl Warren: Number 262, Goodall-Sanford Incorporated versus United Textile Workers of America. Mr. Feller, you may continue.
David E. Feller: Thank you, Your Honor. May it please the Court. When we -- Your Honors will recall that this is the second of three cases involving the question of whether under Section 301, a union may bring suit to enforce the agreement of the employer to arbitrate grievances arising during the term of that agreement concerning the interpretation and application of that agreement. When I finished yesterday, I think I was going over the Senate Committee Report to what have -- the Senate said as to the meaning of Section 301. I was unfortunately didn't have it with me at the moment, but today I do. And I would like to continue to illustrate what I think is the critical question here and that is this, that although the legislative history of 301 is very unclear in many aspects, precisely, the state of the law that Congress meant to create is very uncertain. There is one thing that is clear and that is that the objective of Section 301 was to ensure that where you had contracts which had the kind of promise, which is involved in these cases, that is the grievances will be arbitrated, will be handled through the grievance procedure and that there will not be strikes as a method of policing the enforcement of the contract that where you had that kind of a cause, there should not be strikes and legal remedy should be provided to ensure that there would be labor peace during the term of the agreement. Now, how you get to the result is another question which I will come to, but I want to reiterate again and quote from the Senate Committee report that see they drive of what they were trying to accomplish in this area. And I'm quoting from Senate Report Number 105 which is the report on the statute which eventually got enacted because the Senate version rather than the House version is different only in language and in one other respect which I'll come to later. The Senate Committee Report, the first sentence, in dealing with these whole things says, “The committee bill makes collective bargaining contracts equally binding and enforceable on both parties." This is their topical sentence in which they're telling you what they're doing. They are making these contracts, binding and enforceable on both parties. And they go on to say, that this is in according with the purpose of the Wagner Act which required the parties to bargaining with each other, quoting from this Court, describing the Wagner Act, “to the end that an employment contract binding on both party should be made.” Then they go on to discuss the difficulties that have been involved in suing unions and I will -- there's no question that one of the problems they had was the difficulty in suing unions. But the reason they were concerned with the difficulty in suing unions again was taken. It says that -- that “If these contracts are not enforceable, you will not "promote industrial peace." The chief advantage and the purpose of having a collective bargaining agreement is to ensure that you will have peace during the term of that agreement. After discussing the procedural difficulties and other difficulties, I will say that there's a misconception that the difficulty was only procedural. Really, the -- the principal difficulty in suing unions was not procedural as it is illustrated in the New York law where there is a statute making organizations, unincorporated association suable in their common name where you can get service on them. But the substantive law of the State that since these organizations are not legal entities, all you get when you sue a union in its common name is in fact a suit against all the members and you can't recover for a breach of a collective bargaining agreement unless all of the members are -- are guilty of that breach, because the union per se is not a legal person. In other words, they have construed their suit statute as a procedural suit, statute only not changing the substantive rule of liability with the respect to one incorporated associations. They discussed all of these difficulties, difficulties in the touching union assets even where you can sue in the State. And they say, “We want to make sure that both parties can sue effectively to -- to enforce collective bargaining agreements to the end that you will have industrial peace.” And they say that there are no -- now, no federal law and this is a quote." There are no federal laws giving either an employer or even the Government itself any right of action for any breach of these contracts.” Thus, there is no quote, "substantive right" to enforce in order to make the union suable as such in federal courts. And then, they conclude. Statutory recognition of the collective agreement as a valid binding and enforceable contract is a logical and necessary step. It will promote a higher degree of responsibility upon the parties to such agreements and will thereby promote industrial peace. Now, they were talking about no-strike clause, the no-strike arbitration provision which are really the same clause. Because their next goal to meet the objection that if they do this, unions won't agree to no-strike arbitration clauses anymore. If unions are responsible in damages and these suits can be brought and there is this statutory recognition of these contracts as enforceable contracts. But they answered that by saying, “This argument isn't supported, in the few States which have enacted laws, making these contracts enforceable in the Courts.” Four States they say, “Minnesota, Colorado, Wisconsin and California, have enacted those laws.” And as far as they can determine, there has been no decrease in the incidence of no-strike clauses in union contracts. And therefore, they conclude that there would not be any decrease in the incidence of union of no-strike clauses if Congress gave the statutory recognition. Now, concededly, the question of whether an agreement to arbitrate can be specifically enforced was not discussed anywhere, one way or the other in the legislative history of Section 301. I think that it is -- it necessarily follows from the purpose which Congress was trying to achieve in 301 that the agreements which exists in 90% of our collective bargaining agreements today that when an employer takes action, he assigns a man do a shift or doesn't assign him do a shift. He gives him a promotion or he doesn't give him a promotion. And the man says, "This is in accordance with the collective bargaining agreement." The characteristics of all, of 90% of American collective bargaining agreements is that the man does what he -- what he's told to, and I think this is almost universal, and he files a grievance. Now, in this contract, it said that these grievances shall not be the subject of a strike, but that they will be handled through the grievance procedure. First discussion with this form and then discussion with the departmental superintendent with the shop -- the Departmental Steward then at a higher level between representatives of the International Union and representatives of top management, and if they don't agree on the question then it goes to arbitration. You do not achieve the purpose of promoting industrial peace if you say that this agreement is not enforceable as Congress said it should be in Section 301. Now, we derived some additional comfort from the history, which was mentioned briefly yesterday of the unfair labor practice proposal in the legislative history of the 1947 Act. In the Senate Bill, it was proposed to put in Section 301 substantially in the form on which it now exists, but also to insert an unfair labor practice provision providing that it would be an unfair labor practice to violate the terms of a collective bargaining agreement.
Felix Frankfurter: And the report from which you quoted related to a bill which included that?
David E. Feller: Included both, but the part which I quoted was not in reference to the unfair labor practice provisions but in reference to Section 301.
Felix Frankfurter: What I'm saying is --
David E. Feller: Maybe if I'm specific about that.
Felix Frankfurter: Yes I know, but the bill to which the report of address had a provision making violation of a contract, an unfair labor practice.
David E. Feller: That is correct. But -- the -- the -- that is dealt within a separate section of the report. The questions I -- the parts that I quoted from quite clearly were dealing with Section 301.
Felix Frankfurter: You can't say everything in a sentence or in a paragraph. And we've heard they'd argued and quite corrected that you must take the Taft-Hartley Act as an entire brief. It's from that, that it is suggested you draw the basis of law. What I'm now suggesting is the report which you read, the extract which you read dealt with a bill which had any of the provision making violation of a contract an unfair labor practice.
David E. Feller: Well, in response to that question --
Felix Frankfurter: (Voice Overlap)
David E. Feller: It also did, Your Honor. In a different section of the report, they discussed that and that's just precisely what I'm coming to. They said, "While Title III of the committee bill." This is after the discussions of 301, treats this subject. Now, they add to the earlier treatment in which they've discussed the right to sue for breach of contract, “While title three,” which with the Section 301 “treats this subject by giving both parties rights to sue in the United States District Court.” The Committee believes that such action should also be available before an administrative body.
Felix Frankfurter: Also, I take it means that it's already treated in another connection in the trial part of the report, also, in an addition to and not a different from.
David E. Feller: That's right, in addition to.
Felix Frankfurter: All right.
David E. Feller: I think that is correct. It was precisely as now the -- the minority in the Senate Committee said, “Hear now, If you're going to make this an unfair labor practice, you're going to have two bodies deciding the same question.” You're going to have the Courts deciding questions and you're going to have the National Labor Relations Board deciding the same question. And this they said, “You will -- will lead to conflicting decision or rules,” and this is very undesirable. This being a minority view was not persuasive. The majority went ahead. Now, before I go on, let me make it clear that if the unfair labor practice provision had been enacted, there is no question that you would get specific enforcement, not because they talked about the question but because the National Labor Relations Board by its very nature issues cease-and-desist orders. It's not an -- it tells you what to do in the future. That's what an unfair labor practice procedure is about. Though nobody, and I will say nobody in the House or the Senate recognized that there would be any different result if you had a court action or an unfair labor practice provision. They said in the sentence which I just quoted to Mr. Justice Frankfurter that you ought to have two bodies who can do this. Now, the Bill wants the conference.
Felix Frankfurter: But if you had that too, if you had that too, it wouldn't follow that you could dispense regarding to the Administrative Board first before you enter into a Court anymore than under the Interstate Commerce Act. You can dispense going before the Interstate Commerce Commission before you begin reparation proceedings.
David E. Feller: Well, I submit, Your Honor, as the -- the persons involved at that time considered that proposal as I will immediately demonstrate. They regarded them as concurrent remedies. The minority view of course is always a suspect because it is a minority view but it became the majority view.
Felix Frankfurter: But so -- but the fact that they‘re concurrent doesn't be tracked from the significance of having a specific provision of law, meaning by law of statute in this case that the -- constitutionally, by the law of the United States. But you would've had a specific statute recognizing a substantive law, a right created by the -- by the Congress of the United States within commerce power making a breach of that provision of the contract, a federal right.
David E. Feller: Well, I -- I submit, Your Honor, that --
Felix Frankfurter: Not so --
David E. Feller: -- you have no -- you would have no further statement of federal law in an unfair labor practice provision which says, “It shall be an unfair labor practice to violate, to breach a collective bargaining agreement,” than you'll have -- when you have a statute which says, “you can bring suit in a federal court to breach a collective bargaining agreement.” That's all they said in either section. Now, where there's as much federal law in one case as is there is in the other. In both cases --
Felix Frankfurter: But it did now stand, really says that you can bring suit against an incorporated organization on a contract. It doesn't make breach of contract. It doesn't determine what the contract is. It doesn't make breach of contract of federal right.
David E. Feller: Well, I -- I --
Felix Frankfurter: One thing to say, you can go to a Court and find another thing to know, what you go to Court for?
David E. Feller: Well, I submit Your Honor that the whole history of -- the legislative history indicates that they -- they meant to do -- to say that as I quoted the Senate Committee Report, they meant to give statutory recognition to the collective bargaining agreement as a valid and enforceable contract.
Charles E. Whittaker: Mr. Feller, Mr. Justice Frankfurter's observation gets pointedly to what I tried to get clear in my mind yesterday. I understand that jurisdiction, in the sense we are using it here is the power to decide. Now, if Section 301 opened a forum in respect of contracts between an incorporated labor organizations and employer. Thus, we have a place to go with such a suit but does not reclaim presented in that forum, thus opened, have to state a claim upon which relief can be granted?
David E. Feller: Yes, Your Honor, it does.
Charles E. Whittaker: Now then, if it does, you have to go either to the law of the state or to some federal statute, do you not?
David E. Feller: That is correct.
Charles E. Whittaker: And your claim of federal statute is that 301 is too bold as I understand, that 30 in and of itself contemplates, relief in this very type of situation.
David E. Feller: Well, if I may answer that in two parts, there is considerable uncertainty or was in the minds of Congress and I think in the minds of everyone, well, in among the various states whether a collective bargaining agreement is a contract at all. Today, we talked about them as contracts. I think that Congress at the minimum, and I don't have to go very much beyond that minimum in this case, meant to say that you have a place to go and in that place, you will regard this document as a binding contract. That's the only issue of substantive law which I think they discussed because they said they've intended to do that. And they said it should be an enforceable contract. Now, there are other States, in Kansan for example, a contract, a collective bargaining agreement is not a contract at all. In England, the contract of -- a collective bargaining agreement is not a contract at all. In Young against Canadian Railways, the Privy Council said that this is simply a statement by the employer as to what rules he will apply and if he doesn't apply them, the appropriate remedy by the union is to strike. Now, precisely, what they wanted to do in 301 is to say it is that they wanted to give statutory recognition to the collective bargaining agreement as a contract of itself, not a contract of employment. This is a contract between the union, an enforceable contract between the union as union and the employer. Now, I don't have to go any further from that in saying that was the cause -- that is the cause of action which was created. They said they wanted to give a cause of action for breaches of these agreements. Now, if -- if I'm correct in this and this is all we have to go in here because in these cases, we have no question. I think under the laws of the States, assuming a collective bargaining agreement is a -- is a contract, these provisions, agreements to arbitrate are valid agreements. They're unenforceable by virtue of a rule of equity practice that agreements to arbitrate are not specifically enforceable. But I think there is no contention that in any of the States, agreements to arbitrate are not valid agreements. That was the common law and that is in -- in England and it is the common law in every States so far as I know.Now, if you can once get to arbitrate before he revokes, the award as a binding award. You can't collect unfortunately. The remedy almost obliterates the right because you can't collect damages if he revokes it under the common law rule.
Charles E. Whittaker: Now, if that isn't correct in this case, then do you concede you must find the basis of relief either under the arbitration statute, the federal statute or period, isn't that right?
David E. Feller: Well if -- if what is not correct, Your Honor.
Charles E. Whittaker: If it isn't correct that 301 does it sought a Court, not only in an open venue or forum for the readdress of the equitable relief sought here. If it does not, then you must go -- the only other source of substantive law is the federal arbitration statute.
David E. Feller: Well --
Charles E. Whittaker: Before you concede, it is on the law of the State it wouldn't be enforceable?
David E. Feller: Well there are about three questions, Your Honor, involved in your question --
Charles E. Whittaker: (Voice Overlap) --
David E. Feller: -- and I'd like to answer them all. One is the assumption that the right to get specific performance is a question of substance. I -- I -- to tell you the truth, I don't want to get in to the argument of what -- what substance and what's procedure as this Court in Guaranty Trust Company against York plainly said. That -- that depends on what purpose you ask that question for. You can't say anything in substance or procedure as a matter of abstract categories and one of the difficulties in this field is we start talking about state substantive law and federal law as in abstract terms without asking what precise question that you're going to have resort to the State. Now, there --
Charles E. Whittaker: Under the law of a State concerned here, whether it be labeled procedural or substantive, there is no relief.
David E. Feller: Well, I -- I did -- I was going to put this some place else.
Charles E. Whittaker: All right then.
David E. Feller: I want to correct -- no, I might as well do it now. I want to correct the statement. We made a two greater concession in our brief which I'd like to withdraw now that under the law of Maine, there is no remedy of specific performance for an agreement for refusal to arbitrate. We cited a very, very old case on that point. There is a more recent case which is cited oddly enough in brief for the petitioner on page 11 which I'd like to refer to you now. The case is Lewiston-Auburn Shoe Workers versus Federal Shoe Inc. It's cited on page 11 of the petitioner's brief, citation is 150, main 432, 114 Atlantic 2nd 248. Now, let me hasten to add that this case does not say that agreements to arbitrate future disputes are enforceable. All it says is that there is one devil of a question on this and they don't have to decide it, although the policy of the State is in favor of such enforcement. I think it's --
Felix Frankfurter: Does the case -- if the case really holds and -- I'll just put my eye on the paragraph which you call attention. If the case really holds what it said in the petitioner's brief, that's quite a common thing that if the arbitration actually has gone underway, the case make that --
David E. Feller: Well, as I said Your Honor, I'm --
Felix Frankfurter: That's a very good (Voice Overlap) --
David E. Feller: I'm not referring to the case as a holding but as Your Honor noticed in the -- in the Barnhart case, a law move sometimes even without statute particularly in the area of arbitration, and may not --
Felix Frankfurter: I'm glad you accept that view but it didn't permit itself to my Brother.
David E. Feller: Yes. Well, I want to -- to particularly refer to what the Court said in deciding and its dictum on the whole argument, the holding in that case just before the award came down but the employer knew what the award would be. He said, "I revoke the authority to arbitrate." And what the Court said is after stating general proposition that arbitration is favored by the law said, "This quotation had reference to commercial arbitration." That it went on to say that the reasons for looking with favor on arbitration of labor disputes arising under labor management contracts are far more compelling. It recites the history of collective bargaining very much in the terms incidentally, though I didn't have the case before us when we wrote our briefs here in which we do in our brief. The distinction between labor arbitration and commercial arbitration is the objective of avoiding strikes. And then they conclude, “The public has a real interest in the successive arbitration of labor management have been disputes and some public policy requires more than token acceptance of a speedy and effective substitute for economic warfare.” Whether or not, this is the crucial sentence." This public policy is so compelling as to require judicial decision that arbitration submission agreements under labor management contracts are irrevocable or whether the common law rule applicable to commercial arbitration in this respect so controls in the labor management field as to require a legislation. If -- if ever applicability is to be accomplished, we need not decide here. That's nicely posing the question which we have here in saying they won't decide it, but I think that it is perfectly permissible and that this Court should decide contrary to our intention -- the contention that as a matter -- that the one thing you have to draw and that's the only thing we're saying here. The one thing you have to draw as to the intent of Congress in Section 301 is that the agreement that there shall be no strikes but that agreement shall be arbitrated. It should be enforceable in the federal courts. The Court should decide contrary to that contention. Then, I think it would be appropriate to remand this case to the First Circuit which do not consider this question because in its view, the federal law govern under the Arbitration Act to remand this case to the First Circuit or to the District Court, so I don't get into the argument in the Barnhart case for determination as to what they think the law of Maine on the question is in view of this admittedly dictum in the most recent case in Maine on the subject. Now, in our view, I -- before we got off on the questions, I was talking about the unfair labor practice provisions of the Act, which was objected to in the Senate Committee because the Senate Committee, the minority felt that there would be conflict if they allow both an unfair labor practice proceeding before the board and a suit for breach of contract. The bill was passed in the Senate and went to conference. And there, the House conferees made the same objection and then Senator Taft explained it when the Conference Report came back. The House conferees objected to this provision, the unfair labor practice provision which in the report had been said was an additional provision to the -- to the principle of remedy given which was the right to sue. On the ground, it would have the effect of making the terms of collective bargaining agreement subject to interpretation and determination by the Board rather than by the Courts. That's the reason they've objected. Senator Taft said in concurrence with their view, “If both provisions had remained, there could have been a probable conflict of remedies and decisions.” And therefore, they decided to eliminate the unfair labor practice provision and allow the Section 301 to remain in the statute so you would not have two bodies deciding the same question. And they said that in this way, "This is the House Conference Report." Now, I had quoted from Senator Taft, "Once parties have made a collective bargaining contract, the enforcement of that contract should be left to the usual process of law and not to the National Labor Relations Board.” In other words, the duty to bargain, the relationship between the parties as they got into the bargaining question representation, leave that to the Board.Once they have a contract, let him sue in Court. Now, if this legislative history means anything, it means that there was not the slightest recognition on anybody's part that there would be this vast difference in result which would occur if this Court should say that there can be no specific performance of the -- of the agreement to arbitrate that that remedy is not available in the suit under 301 because in time, it would have been available if there had been an unfair labor practice. And I submit there has not the slightest suggestion in the Committee Report that they did anything other than decide. There should not be two forms to justify the same result. And they decided for reasons best known to themselves that they'd rather have us be in Court than before the National Labor Relations Board. Now, I think in the course of this discussion, I have made it fairly clear that all we say here on the substance versus procedure where you look for the substantive law, all we say here is that as a matter of federal law, it must be held consistent with what Congress intended under Section 301 that the agreement to arbitrate can be enforced. And that's all we say.
Harold Burton: In a federal of what?
David E. Feller: In a federal court, irrespective of what state law is to the contrary. This is particularly true since I think there can be no doubt that Congress meant the agreement not to strike, which is the counterpart in consideration for the agreement to arbitrate, should be enforced irrespective of state law. Now of course, we'd be very happy if this Court said to the contrary and not in this case generally, but I think it's fairly clear that unions opposed Section 301. We didn't want the federal courts in here, but we are being sued all the time under Section 301. And I'd never been able to find a Court that will give any notion we use to try the argument that was unconstitutional. We never got passed one District Judge on the question. A couple of Courts of Appeals dismissed the argument abruptly. We are being sued for breach of precisely and can be sued for breach of precisely this kind of a provision. Now, how can you have a position of law that you haven't signed a contract for two years? It says, “The employer manages the plan. He makes the decisions. You agree and you have to go through the agreements and arbitration procedure. If you strike, you can be sued. But on the other hand, if the employer refuses to arbitrate, you can't sue to get relief for that. And that would be precisely the posture that would be created in the great majority of States which do not enforce agreements to arbitrate because they do not give that remedy of negligence.
Felix Frankfurter: Well of course, if 301 doesn't allow us -- doesn't create substantive right and doesn't in and of itself -- to be is not in and of itself a law so that cases arrives under that law. It can't be enforced against union if it can't be enforced -- it can't be enforced against union but it can be enforced by union.
David E. Feller: Well, I --
Felix Frankfurter: You don't prove that it can be enforced by union by assuming it can be enforced against unions.
David E. Feller: Well, perhaps I'm in error but I think that no fair reading and I would love to make an argument to the contrary, no fair reading of what Congress said it meant to do. And I don't want to repeat the Senate Committee Report --
Felix Frankfurter: But I'm not saying --
David E. Feller: -- would suggest that we can get out of a suit for damages when they sue us for breach of this -- of this clause in the contract.
Felix Frankfurter: Well, all I'm suggesting is that I can't imagine anybody who will argue that if it -- it has substantive law and it's a law that for cases arriving under it satisfies the constitutional requirement and suits against you but not suits by you. I can't imagine --
David E. Feller: Well --
Felix Frankfurter: -- anybody would argue that.
David E. Feller: Well, I -- I --
Felix Frankfurter: But -- but you don't prove that it's valid by saying some suits have been held against you.
David E. Feller: I should hesitate to -- to disagree with that statement, Your Honor, but the effect of what you did in Westinghouse and I in view of the time, I'd like not to get into Westinghouse but I can't refrain from making this comment.
Felix Frankfurter: How can the State come into Westinghouse?
David E. Feller: In Westinghouse, Your Honor said, “We do not reach the constitutional question because it's difficult when it comes to question. Therefore, we'll construe the statute as not including the suit by the union. Now, that doesn't say the statute is unconstitutional and when we're sued, it may be held constitutional and we're left with no remedy because before you decided that, you read as out of the statute to preserve -- to avoid deciding the constitutional question. That's the only problem that I'm trying -- situation which I'm trying to avoid here. And this is a very real and possible difficulty, as Your Honor can recognize that many times, the Court avoids constitutional questions by interpreting statutes and then, in later cases has to meet them and hold the statute is constitutional. The man who's left out in the process is left out.
Felix Frankfurter: But he's left out because the statute doesn't cover him. No amount of subsequent determination of constitutionality can change the content of a statute.
David E. Feller: I'm only arguing. I'm not arguing that he -- we should be read in where the plain -- where the meaning of the statute as legislative history doesn't indicate we ought to be left in. I only say please don't leave us out because your decision is waited by a constitutional doubt which will later resolve in favor of the constitutionality of the statute when the other fellow is suing us. That's our only -- only position on that. Now, --
Felix Frankfurter: But you don't suppose that it's clearly held constitutional. We'd say, now that the constitutional doubt has been resolved in favor of constitutionality, we'd go back and read --
David E. Feller: No, I have the --
Felix Frankfurter: -- we left out to that.
David E. Feller: That -- that's my complaint but you wouldn't do that.
Felix Frankfurter: No, but if that's in -- unavoidable in -- in our system of law --
David E. Feller: That is correct, Your Honor.
Felix Frankfurter: -- where we have first to construe and then determine constitutionality.
David E. Feller: That is correct, Your Honor. So I don't put a light and we see what the point of your argument is.
David E. Feller: Well, then, perhaps I'd better avenge. I want to make one other comment which is in reference, and I think it goes to this substance and procedure thing. The question of what substantive law governs in these cases and I -- I want to preface this by saying the Court does not have to reach that question here as far as I -- I see the decision. The Court has to read only statutory recognition of the collective bargaining agreement as a valid and enforceable contract. The rest of the questions as to the nature of the agreement and the rights under it can be decided by state law or federal law. It doesn't make any difference, but I am -- I am certain that this is enough of a federal question, a federal law if this is the meaning of 301 to make the statute constitutional. I don't see any constitutional question. Particularly in this case, there is no constitutional question, in any case in which the state would not enforce the agreement, if who you are going to say that the -- by virtue of 301, you do enforce it then the constitutional question disappeared. The constitutional question arises only when you say, “We will enforce it because the State does,” and then the question is under Article 3 whether you're enforcing --
Felix Frankfurter: Again, I can't follow you. The fact that you may have an enforceable right under a state law does not ipso facto give a federal court the right to enforce that state law except in diversity cases.
David E. Feller: That is correct. So, why do you say it evaporates if you got a state law? I don't follow that at all.
David E. Feller: No, I say it evaporates if you hold that it's enforceable as a matter of federal law.
Felix Frankfurter: Well, of course it does and there's no problem.
David E. Feller: Well, that's right.
Felix Frankfurter: That's what this controversy is about. That's what someone is worrying about.
David E. Feller: Well, we are saying --
Felix Frankfurter: You just tell us there's no problem.
David E. Feller: Well, we're saying that we can -- our contention here is that -- is that it is enforceable as a matter of federal law. And if our contention is correct, then there is no constitutional problem. If our contention is wrong, we've already lost the case. We don't have to lose it on any other ground. Now, on -- if I may talk very briefly on the substance and procedure matter, there is -- when you talk about state substantive law or federal substantive law, I think the same rule that this Court specified in Guaranty Trust Company against York as to what is procedure and what is substance. A very wise rule to follow, what kind of questions are you talking about that are decided on the -- as a matter of state law or federal law? If the -- the precise question is visualized. I think most of the problems disappear. The problems are problems of abstraction and not problems of reality. And I take for an example the question put by Mr. Orr yesterday. If the employer went to arbitration here, and it was decided that the vacation pay wasn't due, he said, “The individuals could turn around and sue in the state court to collect their vacation pay. Obviously, that isn't so. But why isn't it so? Because of the National Labor Relations Act, not vague provisions of the National Labor Relations Act, specific provisions of the National Labor Relations Act. The specific provision in the National Labor Relations Act which enabled the union to represent the employee and have each decision binding on the employee is the fact that in Section 9 (a) of the Act, congress said that union shall be the exclusive collective bargaining agency for employees in appropriate unit where a majority so designated. And Congress in Section 8 (d) said that “Collective bargaining includes the negotiation of a contract and the negotiation of questions arising under the contract.” Now, if any suit is brought in any Court in which this kind of question is raised, there is no question that it has to be resolved and should be resolved in terms of the specific provisions of the National Labor Relations Act or take another case. An employer goes to an employee and says, “I like you to work overtime. You can use the extra money, but how about us making the deal that we won't pay you the overtime rights -- rates specified in the union contract?” This case is a risk. The employee does the work and then sues for breach of the collective bargaining agreement for breach of his right to overtime pay. What law governs? Again, it is perfectly clear that the National Labor Relations Act, when it said that there shall be collective bargaining, and as this Court has held outlaws individual bargains in derogation of the collective bargain which the union has made. That is the law which must govern. There are -- virtually, every question of law as to which there could be a body of law. I'm not talking about interpretation of words in the contract. That's a question of law in some sense but not a question in which there is a body of state or federal law to which we refer to. Virtually, every kind of question which arises under a collective bargaining agreement has reference to specific provisions in the National Labor Relations Act. Is a contract a valid contract? The National Labor Relations Board decides that question every Monday, Wednesday and Friday in determining whether to hold elections, union security clause with a check off provision. If you sue for the dues while the National Labor Relations Act has specific provisions saying, “What kind of union security clause you can have,” and specifically gives to the State certain rights in regard to that. The National Labor Relations Board is constantly saying, “Contracts are not bars to new elections because the contract -- this contract provision is not in conformity with the Act. But I would hesitate to go forward with this, but there is no question that in suits for breach of contract, a question where there is a contract, whether it's a valid contract who's bound by it besides of the bargaining unit would determine who's bound by it are determined always, have to be determined in reference to the National Labor Relations Act. This Section 301 is part of the National Labor Relations Act. It's a compliment to the whole procedure requiring the parties to bargain, setting forth their duties to bargain which include not only the negotiation of a contract but the settlement of differences under the contract. It's all set aligned. And I think -- in this connection, I want to make perfectly clear, but I think Mr. Goldberg made clear yesterday in an answer to the question about the union loan to an employer that on mature consideration, we would not regard that as within the scope of Section 301, no more than if a union made a contract to build a building with a contractor who is an employer, who had employees, who are engaged in commerce and the union obviously represents the employees that this building contract would be subject to 301. We're talking about --
Felix Frankfurter: Mr. Feller --
David E. Feller: -- collective bargaining agreement.
Felix Frankfurter: -- that's a very different situation because certainly, 301 relates to employer-employee relation and not employees of one employer in relation to the employer of another set of employees.
David E. Feller: I -- I agree, it's a very -- but I -- I think we are talking about collective bargaining agreement.
Felix Frankfurter: May I -- may I ask you this question before you sit down? Unless I misapprehend your argument, you -- you're drawing the right of your relief in this case out of 301, is that right?
David E. Feller: Well, that is one branch if I'm --
Felix Frankfurter: What do you mean?
David E. Feller: -- have time, I will go to the Arbitration Act.
Felix Frankfurter: Yes, but you argue that, that supply --
David E. Feller: That's right.
Felix Frankfurter: -- is being one.
David E. Feller: That's right.
Felix Frankfurter: And you argued therefore, you -- you have a right of course. You argued to affirm the judgment of the first Court of -- of the Court of Appeals on a ground which Judge Magruder for the Court rejected, is that right?
David E. Feller: That's correct. And he --
Felix Frankfurter: I just want to affirm about that.
David E. Feller: He affirmed the District Court would base it on Section 301.
Felix Frankfurter: I understand that. I just want to be clear about that.
David E. Feller: Oh that's correct, on this branch of the case.
Felix Frankfurter: Well --
David E. Feller: Now, we would like also and I will get to that if I may. I want to say a word about the Norris-La Guardia Act.
Felix Frankfurter: Before you get to that I just -- in connection with as it were, as you're coming to arbitration. You were -- a little while ago referred to the decision of this Court holding that where there is an outstanding collective agreement, the employer is barred for making an individual contract of employment, is that right?
David E. Feller: That is correct.
Felix Frankfurter: I would like to ask you either directly in answer to my question, to my puzzles and topic tackled by Judge Magruder or when you come to it. If you have no individual contract of employment when you have a contract of collective bargain, the collective agreement is there no contract of employment at all?
David E. Feller: Well, I would answer that if I may so that I don't forget it later. The abstract conceptual question of whether there is a contract at all, I would solve this is my own solution. And I -- again, I always ask what is the practical significance of the question. I would say there is an implied contract of employment with each employee.
Felix Frankfurter: It isn't that the direct question because the arbitration statute compelled me to face it and compelled you to face it.
Felix Frankfurter: Well, it -- it does compel me to face it and -- But isn't that a statutory?
David E. Feller: Well, in -- in that -- in that reference, because there I think they were talking about cases where they were not collective bargaining agreements. When I get to that, I will -- I will make that argument. Now, the Norris-La Guardia Act very briefly, if I may Your Honors, the -- I would like to say just one thing in reference to the Norris-La Guardia Act and that is everybody talks about it nobody reads it. I don't mean to be that invidious but it sound invidious but the fact is everybody assumes the question is whether is the Norris-La Guardia Act applicable without saying what provision in the Norris-La Guardia Act prevents you from doing what. Now, it is perfectly clear and I want to -- I think this is a caveat which I have to make. We do not argue that Section 301 repeals pro tanto in the Norris-La Guardia Act. It's perfectly clear that it did not, because the House Bill proposed to do that and the Senate Bill did not and there are equivalent sections as to these suits and in conference to send it one. So, Norris-La Guardia is applicable. It has not been repealed sub silentio to this extent as you had in the Railway Labor Act cases which were decided yesterday. The question is what does Norris-La Guardia Act do? Section 4 of the Act contains certain provision, certain types of activities which can never be enjoined in the federal court. You can't enjoin a strike, picketing, assistance, a list of areas of conflict which these -- where the Courts were to stay out of in the absence of fraud or violence. Now, it's conceded that Section 4 has no application here because we're not asking for any of the forbidden kind of injunction. Section 7 says that “In cases that no injunction shall be issued except upon certain finding.” Now, the Committee Reports, a far date of predeceases in this field make it perfectly clear that Section 7 was a procedural section. It was designed to setup a -- put procedural safeguards and if read in connection with Section 4, again, it is perfectly clear they're talking about the cases in which an injunction would be barred under Section 4, except for allegations of fraud or violence. And this is the way you show the violence. You saw that police can't protect you and you put in all the requisites. Since Section 4 has no application, we think that Section 7, the procedural section in which you prove the exception before has no application. I think this is -- it makes sense of all this Court's decision under the Railway Labor Act and the implied decisions in the Hoffman case and what? Mutuality, I want to say one word about the mutuality because I know it will be mentioned. If as we said the Norris-La Guardia Act prevents an injunction against a strike and I think even in violation of a contract, I have to make this perfectly fine. Isn't it unfair for us to command and ask for an injunction, injunctive relief, equitable relief to enforce the agreement to arbitrate when they can't enjoin us from striking. Are they going to say that and that's a perfectly legitimate argument which Judge Magruder managed in the court below. The answer is I think very plain. They have a remedy in damages, very substantial damages, as I can testify and this court records can testify for breach of contract in the case of a strike and violation of the agreement. Congress decided they should not have an equitable remedy when it refused to repeal the Norris-La Guardia Act as it affects these statutes. But the union has no remedy, unless it can get equitable relief, because damages do not lie and cannot in their nature to lie to enforce the agreement to arbitrate. Now, my white light is on and I want to go to the Arbitration Act very fast. The Arbitration Act, which was passed in 1924, was meant to go as far. The Committee Reports plainly reveal that they meant to exhaust the commerce power. So, transaction is a -- a contract evidencing a transaction involving commerce in Section 2 of the Act, I think involving commerce has to be read as affecting commerce.
Felix Frankfurter: Why does it have to?
David E. Feller: Because --
Felix Frankfurter: You get -- so read it in the Federal Trade Commission Act cases. Well, I think that a fair reading that Congress used language which it thought exhausted the power of commerce, the Congress to deal with commerce as it understood the Constitution in 24, I think a fair handling today of what it's intended to do would be the say that since our commerce conception has expanded, you should give validity to Congress' intention, as far as the breadth for the statute which it intended to pass. Second, the exemption in Section 1 of contracts of employment, this is a very curious thing because this exemption was the creature of one man, Andrew Furuseth. There's no question that this exemption was inserted at the request of the International Seamen's Union and it is so stated in the hearings. And it is always been assumed that since unions as to exempt contracts of employment, what they were talking about were collective bargaining agreements. And I think due to counsel for the company in General Electric, the next case who indicated that the source material was available, everybody is going to the proceedings of the International Seamen's Union and investigated the International Seamen's Union and try to find out what Mr. Furuseth was talking about. And he was talking about one thing, shipping orders. The individual contracts of employment which every sailor has to sign which as of the time, this statute was passed, it had arbitration clauses in them. And under the Maritime Law, a seaman has the right to leave a ship under certain conditions and Mr. Furuseth said, “They're going to arbitrate before a shipping commissioner on your right and they're going to make you stay on your ship, and they're going to deprive your right to go to law.” They were talking about what they said they were talking, and that is contracts of employment, the kind of contract you have in the Barnhart case where you don't have a union. An agreement to serve in the Seamen's Union in a resolution entitled “compulsory labor,” said that “If I man signs these articles, he will be compelled to serve and stay on the ship,” and therefore we oppose this bill as it was introduced.
Felix Frankfurter: But it couldn't be restricted, no doubt you're right of course, if -- if Mr. Furuseth will be spearheaded that he was then almost -- one of the most powerful leader said they want the most -- perhaps the most effective but it wasn't restricted to seamen's articles, seamen, railroad, contract of employment of seamen, railroad employees or any other class of worker.
David E. Feller: Obviously --
Felix Frankfurter: That doesn't mean seamen.
David E. Feller: No, but it means contracts of employment.
Felix Frankfurter: And it doesn't use plural article to seamen.
David E. Feller: Yes. It means contracts of employment.
Felix Frankfurter: All right.
David E. Feller: Now --
Felix Frankfurter: But don't say it's restricted to what a seaman revokes to be (Voice Overlap) --
David E. Feller: No, no, but the -- the -- I'm answering the argument that since a union did this, they must have met contracts of employment to encompass collective bargaining agreement. My argument and because as -- as the Second Circuit said just the other day, “Normally, individual workman don't sign contracts of employment.” But the point I'm making is that the particular workers who were concerned did sign contracts of employment and contracts of employment was what they wanted to exempt here.
Felix Frankfurter: But they didn't -- the statute didn't restricted to that class and therefore you read out stuff that's in there and --
David E. Feller: No, no, Your Honor.
Felix Frankfurter: -- you read out -- you read out to me the legal contractual means by which millions and millions as Judge Magruder himself indicates. Millions and millions of millions of employees have their status of employee and their terms of employment by virtue of this collective agreement and they couldn't have it individually --
David E. Feller: Well, that is correct, Your Honor.
Felix Frankfurter: -- on the trade case.
David E. Feller: That is correct Your Honor.
Felix Frankfurter: All right.
David E. Feller: But the case, case tells us, I'm not arguing to read anything out of the statute. I'm going to ask Your Honors simply to read the statute for what it says. I -- what it says is contracts of employment. Now, if you read the case -- case, it says that a collective bargaining agreement is not a contract of employment. I am answering the argument.
Felix Frankfurter: All I'm doing this answering the argument that they must have an intended contracts of -- a collective bargaining agreement is to be covered because it was a union that asked for it.
Felix Frankfurter: You just asked us to read commerce, not as of 1924 but as of 1957. And now, you asked us to read the contract of employment, not as if not prevailed predominantly, but as it was in 1924.
David E. Feller: Precisely the contrary, Your Honor. I am asking you to read contracts in 1924, the distinction between contracts of employment and collective bargaining agreements where it might not be nearly so clear. And I think it's fairly clear -- it was not so clear as it is today. I am asking you to read contract of employment as you read it today, just as I'm asking you to read involving commerce as you read it today.
Felix Frankfurter: Well, millions and millions just as a matter of approximation, am I right in accepting that so far as union membership go which is what you're talking about have or so many more, men are employed by virtue of the terms of the agreement between union and employers then they are by the individual contract for employment, isn't that true?
David E. Feller: I think that that's probably true.
Felix Frankfurter: All right.
David E. Feller: Thank you.
Earl Warren: Mr. Orr.
Douglas M. Orr: One brief.
Earl Warren: Yes, sir.
Douglas M. Orr: As Mr. Feller says, he conceded that the main law would not be applicable to enforce arbitration on that but we get to call his attention to the Lewiston case, but there's another distinction in the Lewiston case as Mr. Justice Frankfurter pointed out. That was the case where the hearing had been had and the arbitrators had indicated what the award would be.But in addition to that, it was an agreement to submit an existing dispute to arbitration and that distinction is throughout the common law of all the States. The policy is against enforcing arbitration on agreement to arbitrated future dispute that you don't know what's -- what'll be all about in ousting the Courts of jurisdiction in those cases. Now, on the question of constitutionality, we have not argued that Section 301 is unconstitutional. We say, if the case comes up under Section 301 which involved another federal law, it can be constitutionally applied, but 301 is not itself such a law. And Mr. Justice Whittaker, we do not think that 301 have the dual purpose of both opening the door and giving a remedy. Judge Brown, in the Lincoln case below said, “If you did not give it such a dual purpose, you would open the door but the hall would be empty.” Now, we would reverse that and say that because you have opened the door, there's no assurance that the hall will be full.