Earl Warren: -- Mr. Dunne.
Arthur B. Dunne: If Your Honor please. I learned yesterday at my arrival here that the Court had enlarged the time of the respondents to an hour in view of the fact that I have the burden of stating the five cases. I'm hopeful that I maybe indulged a little beyond the half hour that was allotted.
Earl Warren: Your side will have the same as the other side.
Arthur B. Dunne: Thank you, Your Honor. Now, this is a writ of certiorari to the Supreme Court of California which brings to this Court for review five cases decided in that Court, all involving and turning upon substantially the same question. Each case was an action by an employee against his employer. The employer as to part of its business was a common carrier by a railroad and as to a part of that business was engaged in interstate commerce. It was sought to sustain these actions for damages for personal injuries received on the job under the Federal Employers' Liability Act as amended in 1939. If that Act did not apply, then under California law, the sole remedy of these employees was under the compensation provisions of the California Labor Code and the soul body having jurisdiction to determine their benefits was the California Industrial Accident Commission. The exclusive jurisdiction of that Commission could be ousted only if this federal statute applied and if it did not, the lower courts are without jurisdiction. In the Gileo case, the matter of jurisdiction was reserved until the time of trial and was determined by the trial court as a matter of law in favor of its jurisdiction. The plaintiff had a judgment upon the verdict and that was affirmed by the Supreme Court of California after an intermediate Court of Appeal, the District Court of Appeal had determined the case should be reversed. In the other four cases, which were pending in Sacramento, the jurisdictional question was separately tried to the Court sitting without a jury. In two of the cases, the Court determined that it had no jurisdiction and upon that face -- that face of the trial, entered judgment for the defendant. Those judgements were reversed by the Supreme Court of California. In the other two cases, the question was likewise separately determined and the trial court determined in favor of its jurisdiction. In both cases there was a verdict in favor of the plaintiff. In one of them, the judgment was added on the verdict and was affirmed. In the other on motion for a judgment non obstante veredicto, the Court entered judgment for the defendant but not on the jurisdictional point upon the ground that no negligence had been shown. That judgment was reversed by the Supreme Court of California. So that in all five cases, the Supreme Court of California has determined that the trial courts had jurisdiction and that judgments should -- for the plaintiff should be affirmed where they had judgments and in the other two cases, the cases should go back for trial upon the question of negligence and damages. The question that is presented here then is under the Federal Employers' Liability Act in Section 1 of that Act which is set out at pages 5 and 6 of our brief. You will notice that the statute is in two paragraphs. The critical words in the first paragraph are that the statute shall apply to every common carrier by railroad while engaging in commerce between the States and so forth, and that such described employer shall be liable to any person suffering injury while he is employed by such carrier in such commerce. That language comes from the Act of 1908 and when the statute was amended in 1939, that language was reenacted. There is a second paragraph of the statute and upon the other side it is claimed and it was so held by the Supreme Court of California that the critical language there was the controlling language and the provision there is that any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce or shall, in anyway directly or closely and substantially, affect such commerce shall be for the purposes of the Act considered as having been employed in interstate commerce. I later shall want to comment on the history of that language in this amendment, how that language got in there and of course of the enactment. I suggest first that this statute as it now reads poses two questions, does the employer fit the description of the statute? And secondly, does the employee fit the description of the statute? And that cases under the statute cannot be determined as the Supreme Court of California undertook to determine them by looking solely at the language that describes the employees who are brought under the statute. Before going to that, I should now state in more detail for Your Honors the facts of these five cases. The Southern Pacific Company, as I stated, is a common carrier by railroad engaged in interstate and intrastate commerce, at least as to some of its activities. At Sacramento, California, it has a general shop, said to be the largest general railroad shops west of Chicago. Those general shops in the organization of the railroad are separate from the operating division that includes the City of Sacramento. Divisions usually have their own division shops. This shop, however, is a general shop, although it does because it has the facilities, do some of the work for the Sacramento division. There is, however, a separate organization and a separate chain of command in that shop going directly to the executive officers in San Francisco and not going through the superintendent of the Sacramento division, the operating division. As a part of that shop for some 40 to 50 years, Southern Pacific Company has operated a wheel foundry where it makes cast iron freight car wheels. It does that in the usual way that all wheel manufacturers make their wheels. It uses, has the basic material, 97% of the material, scrapped wheels, outside wheel foundries do exactly the same thing and indeed require the exchange of an old wheel when a new wheel is purchased. The operation is a large operation. In 1950, the wheel foundry produced over 67,000 wheels and in 1951 of over 65,000 wheels, a very few of them, 10 in one year, 16 in another are supplied to outside people. Some small number about 700 or 800 go to a subsidiary Northwestern Pacific Railroad and the rest of them are used by Southern Pacific Company in replacements on its own cars and on foreign cars which require new wheels while on Southern Pacific lines. The wheel foundry provides about 84% of the requirements of Southern Pacific Company. The remaining 16% are purchased from outside wheel manufacturers. Aranda, for 11 years, had been a molder's helper and a molder in the wheel foundry. He did no other work. He was injured in the foundry while he was doing that work. The answer sets out and the jury's verdict found that he had been paid compensation under the state act, the extent of $1448.57. It returned a verdict for $12,000, deducted that amount and judgment presented for the balance. In that same general shop at Sacramento, Southern Pacific Company has a freight carshop, known as Carshop No.9. That shop up until the 1st of July of 1950 was engaged in general repair work, light and heavy repair work. On the 1st of January of 1950, that shop undertook a program of construction of new cars, wholly new manufacture of freight cars. In the latter part of 1950, the Southern Pacific Company determined to build 5000 units of freight train cars. A little over 2000 for itself and some 2000 odd for a subsidiary, Texas and New Orleans Railroad Company, the T&NO. That matter was submitted to Southern Pacific Equipment Company, a subsidiary of Southern Pacific Company and it entered into a contract for the construction of those cars and for the sale of them to a financing institution and then for financing under an equipment trust and lease back to Southern Pacific Company with a privilege of sublease to T&NO. Southern Pacific Equipment Company, in turn, entered into a contract on the cost-plus basis with Southern Pacific Company for the use of the facilities in the Sacramento shop, for the shop facilities and machinery and for the supplying of laborer. That program progressed with some 1500 automobile cars up to January of 1951. There was a break when they ran out of material and the program went on again with part of that 1500 automobile cars on the 13th of February and continued then on progressively. The next program after that was 1000 gondola cars, gons as the railroad men call them, which moves the T&NO and then some other cars. Up to the time that the Gileo case was tried there had been manufactured in that shop 5400 new freight train cars. Gileo, Eufrazia and Eelk were all injured while working in the construction of the program for 1000 TN&O gons. The way the system worked was that they used tracks on a regular assembly line basis. The materials were placed at various stages. At the beginning of the assembly line, they started with the trucks and then as the car moved on, additional parts were put on. The assembly line produced 18 cars a day. The work at each station took about 25 minutes and then the whole line moved on one station. The setup was such that if a single man were absent from the assembly line, the whole assembly line stopped. The absence of one of four members of a riveting gang would prevent that riveting gang from operating on the end of a car and if that end of a car couldn't be finished, that car couldn't move and the rest of the line couldn't move. For the purpose of providing a labor force for this work, when the work of new construction was instituted, the Southern Pacific Company employed a new force of men, substantially 300 men. Now, since something is made of it, I should state to Your Honors the method of assigning them to work there. These men belong to a brotherhood and they're all classified as carmen. No matter whether they're working in wood or in steel, whatever the work is they are all carmen or carmen's helpers or apprentices.In the program for these TN&O cars, there was something over 350 I think the figure is. Carmen and carmen's helpers were employed on this particular program of -- in the yard I should say, in the shop of those, some 270 or about 74% percent were employed on new car construction. These men were organized into separate division and the head of the shop was the general foreman. Under him were two assistant, a general foreman, one in charge of the repair work on cars in service and the other in charge of the work of new construction. Then under him were set up these gangs. There was a certain amount of absenteeism among the men who are assigned to the new car construction work, which was the number one program of the shop. Accordingly in order that the work would not be stopped because of this absenteeism, carmen and carmen's helpers regularly assigned in the repair division would be brought over for the division for a new car construction on a temporary basis. One man who testified came over a half a day and then went back to his work on repair, but the men who are assigned to new car construction were not temporarily taken off that job for the purpose of doing repair work. The men were entitled on the basis of seniority to bid and they could bid into Carshop No.9 or they could bid into the sawmill or into the passenger carshop or into the local motor shop where a certain work was done on minor parts, but that was the only election they had in the selection of their jobs. Once a man bid into Carshop No.9, what work he should do then was a matter of assignment by the general foreman and the general foreman could assign him to new car construction or he could assign him to repair work. And as I have suggested already to Your Honors, when the men were assigned to new car construction, they stayed on new car construction until the foreman changed that assignment. In 1951, the Southern Pacific determined to build a new yard known as a retarder yard for the classification of cars. At a point slightly east of Sacramento, California near Roosevelt, California, which is the point at the base of the sierras, where there was a large train yard on the main line over the sierras and east to Ogden, and where also lines coming down into California from Oregon converged with that line and converged with lines coming up from the southern part of California through the San Joaquin Valley. It was the point of classification for freight cars and the making up of the freight trains designed for the main transcontinental journey eastbound and the point at which westbound freight trains were broken up for purposes of distribution. At Roseville, there had been to the east of a vacant space, two yards known as the west yard and the east yard. Some distance to the west of that, there were two other freight train yards, the antelope yard and the high line yard. And in between the two yards to the east and the two yards to the west in this open country there was -- there were four tracks, two main line tracks and two grill tracks. Southern Pacific Company determined to put in to that vacant space a retarder yard for the purpose of speeding up classification in the handling of cars. For that purpose -- project was a large one, running something over a million dollars. For that purpose, it acquired some 80 acres of additional land. It removed two county roads, it removed two power lines, it removed a telephone line and a telegraph line. It removed its own two drill tracks and it built two main line tracks for passenger service about a quarter of a mile to the north. Then in this area, had brought in an outside contractor Morrison-Knudsen, moved about 300,000 yards of earth for purposes of grading, brought the grade to about three feet above the grade of the old main line and then undertook the installation of this retarder or hump yard. A hump yard is a yard which is built, as the name suggest, with a hump at one end. And the cars are shoved up to the top of that hump on two tracks and then from then on the grade in that direction is downhill. At the point of entry to the yard, there are built inspection pits and (Inaudible) Then beyond that, tracks fan out. In this instance, 49 yard tracks, 30 miles of track, 98 switches and 12 retarders. In addition, the -- the project called to the installation of three compressors for compressed air to operate the retarders, four towers for providing floodlighting and control and the other facilities such as talking systems, loud speaker, radio and so forth. That project was started in April of 1951. By the 1st of October of 1951, the construction of the new main line to the north had progressed to the point where trains could run over it at a restricted speed. It was in full operation by November of 1951. On the second of October, Moreno was employed. He was working as a laborer in taking out the old main line and doing other work in the construction of this new classification or retarder yard. He was injured in December of 1951. Up to that point, work on the antelope and high line yards to the west had been completed. There were some changes that were to be made there and they were being used as receiving yards but there was no track connection with the new retarder aspect of the total installation. The first revenue trains to go into the retarder yard itself was on the 1st of April 1952, when the first 21 tracks in that yard had been completed and put into operation. The short of the matter is Aranda wasn't a railroad man, he was making wheels. Gileo, Eufrazia and Eelk were employed in the construction of new cars.Moreno was employed in the construction of a wholly new retarder yard. None of the work that any of these men was doing could be classified as work of maintenance or repair of a facility in use by a railroad or in interstate commerce. None of these men would have fallen under the Federal Employers' Liability Act of 1908. The decisions of this Court are crystal clear on that. The question posed is, has that situation been changed for a man so employed by such an employer by a reason of the amendment of the Federal Employers' Liability Act in 1939?
Speaker: Your opponent concedes that that was approved before 1939, they would not have been under the Act.
Arthur B. Dunne: They do not concede it in terms, Your Honor, but they do not question it. My opponents in this case would be very happy to forget the some 30 years of history of the Act of 1908 and the course of adjudication under that Act in many, many cases and at least 40 to 50 cases which have had the attention of this Court, I suggest to Your Honors that the amendment of 1939 cannot be understood by forgetting that 30 years or more of history.
Felix Frankfurter: Am I right in inferring that this is purely a statutory question?
Arthur B. Dunne: Only a question of statutory construction.
Felix Frankfurter: You're not making any (Voice Overlap) --
Arthur B. Dunne: No constitutional questions involved, Your Honor.
Felix Frankfurter: (Inaudible)
Arthur B. Dunne: Now, the most striking feature aside from the addition of language in the amendment of 1939 is that the section of the Act, to which the second paragraph was added, was reenacted word for word as it had been enacted in 1908 and is -- it had read while this Court had considered as a matter of its application in some 40 to 50 cases. And that history I suggest to Your Honors is not only interesting but very illuminating and it goes back. In the late 90's, Congress of the United States turned its attention to the injury of railroad workers and it started the enactment of a series of statutes commonly known as the Safety Acts. In 1907 for the same purpose, it added the Ash Pan Act. And in 1911 and 1915, for the same purpose, it added provisions of the Boiler Inspection Act. All directed at the matter of safety and all dealing with the condition of rolling equipment whether it be power or cars in use upon the line. I suggest to Your Honors they're rather confined application of those various statutes and there's part of this mosaic. In 1906, the Congress enacted the first Employers' Liability Act which was to apply to all common carriers engaged in commerce and was to apply, that is interstate commerce and it said trade and commerce, and it applied to all of the employees of such employers. In January of 1908, in the Howard case, the first Employers' Liability Act case, this Court held that statute be on the competence of Congress as this Court construed the statute and it construed that that's applying to all employees of such carriers. Mr. Justice Holmes and two other members of the Court dissented and Mr. Justice Holmes in his dissent suggested that the statute could be saved by construing it to apply when engaged or while engaged in interstate commerce. I suggest that because Congress followed that suggestion. Promptly in April of 1908, Congress adopted the present statute which has been amended several times but in no respects with which we are now concerned except in 1939. And it designedly put in mark restrictions on the application of the Act. It was now to employ -- apply only to railroads, common carriers which were railroads. Secondly, it was to apply them only while engaging in commerce. Congress dropped the word "trade." And thirdly, it was not to apply to all employees but it was to apply to the employees only while employed by such carrier in such commerce. This Court in a series of decisions, thereafter, recognized that this statute was part of this pattern of the Safety Acts aimed primarily if not exclusively, not exclusively but aimed primarily at the hazards that were peculiar to railroad. And this Court said in the (Inaudible) case that these statutes are all in pari materia and indeed in Urie against Thompson went so far as to say that these various safety statutes while not in form, in substance were amendments of the Federal Employers' Liability Act designed to assist the employees in recovery when they had been injured. Now, in the course of adjudication, this Court gave meticulous attention to the restrictive wording that Congress had written into the Act of 1908. It held in the first place that this very petitioner, Southern Pacific Company, although a common carrier by a railroad engaged in interstate commerce, did not fall within the Act when it was operating an offshore vessel, the famous case of Southern Pacific Company against Jensen. One of the two points in that case was whether or not the competency of the State of New York to award compensation was removed by reason of the Federal Employers' Liability Act and the Court held no, the Act did not apply. And that has been followed down at least as to maritime employment by this Court in Nogueira case in 281 and very recently in the O'Rourke case in 344 U.S. Secondly, it gave meticulous attention to the words of the statute that it applied when the employee was engaged in an interstate commerce and in an early case in 233, the Behrens case, this Court held that to give effect to that language you must to look to the precise work that the injured man was doing at the very time he was injured and it resulted from that as this Court pointed out in the Carr case and in the Nogueira case that a man might move in under the Act and move out again several times during the course of a single tour of duty. That would be peculiarly so in the case of switchmen. And then finally, this Court came to the question of what is interstate commerce within the meaning of this Act and by a very slow and careful process, it evolved a test under the Act of 1908. It said itself that in 1920 it had departed from that test and in 1931 and 1932 in three cases in 284, this Court overruled its own decisions of 1920. And what it did was this. In the first step, the Pedersen case in 1913, it had before it the language and some rather restrictive language from the Howard case, it looked at the work of a man who was repairing, doing work in repairing a bridge, it was part of the highway of commerce, it said no of course that's not transportation but it's pretty close to it and it's so close to it that it really is a part of it, we'll apply the Act to him.But presently, there came along the Shanks case in 239 where a man was removing a countershaft in a repair shop and the Court reexamined the question then and it said we have to determine this question not by any conception involved in vacuo or in other circumstances. Well, we've got to look at the business that this statute was dealing with, we've got to look at the nature of the railroad business and we have to apply a practical test that is better suited to the occasion than some concept involved elsewhere. And it said when we look at the nature of the business of railroad and we find that its transportation, so that Congress in this Act when it was talking about commerce, was talking about transportation and therefore what falls under the Act is transportation or work so closely related to the actual transportation, has to be practically a part of it. And shortly thereafter in the Davis case which is reported in 254, the Court examined and stated the rationale of that doctrine and it said obviously everybody who is employed by a railroad is important in its business. Perhaps, the business couldn't go on without the presence of this particular employee but the Act doesn't cover all the employees of the railroad, it was unlike the Act of 1906 in that respect. And so, we have to narrow down and narrow down and narrow down until we come to those activities which are close to the heart of the business being dealt with railroading and transportation and exactly that same process was going through again in 1931. When this Court reexamined, carefully reexamined the whole question restated the rationale of the Davis case and overruled the Collins and Schware cases. Now, it resulted from this process of adjudication that the moment of injury rule had developed. A man would be in the rule one minute, under the Act one minute and then when he finished with an interstate car and was handling an intrastate car and switching, he was out of the Act. And then his next assignment after that would be back in the Act and that had produced borderline cases and it was felt that that had produced considerable hardship. There was another type of case which was somewhat outstanding and the Davis case itself was one.He was at local motor dedicated generally to interstate commerce but it had to be repaired and so it was taken to the back shop and in that sense was withdrawn from service. It fall within the Act but it didn't, was it like the bridge which is permanently dedicated or was it something that had temporary character. The decision of this Court was that it had a temporary character in this sense that it was withdrawn from service. A man doing work of heavy repair on local motors and other equipment withdrawn from service did not fall under the Act. And then there was the close problem presented by this Court's own decisions in Collins against Schware. Now, those were men who engaged in accessorial services not directly connected with interstate commerce. Those were men -- one man was operating pumping water to be supplied to local motors and the other man was drying sand to be used in local motors. Now, that in short and in summary, the detail is considerably more than this. That was the background of the Act of 1939 and Congress in 1939 wanted to do what it could to clarify these borderline cases and to remove this moment of injury rule where a switchman who was injured would have his remedy under this Act or under a state act on the luck of the draw. There is one other consideration I think that this Court must have before it in considering the -- what Congress did in 1939 and that is this. In 1908, when the first Federal Employers' Liability Act was enacted, there were no state compensation acts. In 1939, every state had some form of compensation act or other legislation for a workman generally with the exception of two and taking as an example my own State of California, we not only had a compensation act there that was comprehensive but in addition had enacted some safety statutes and had given to a local commission the power to enact safety rules and that Commission had enacted a code to safety rules of something over 1300 pages. None of which will apply to men who are under Federal Employers' Liability Act and which cover fields of safety regulation far beyond the confined field to which the said Federal Safety Acts and Boiler Inspection Act applied. In other words, the farther the application of the Federal Employers' Liability Act is extended, the greater will be the area in which the man will have no safety regulations. Now, in such circumstances, Congress did not take -- undertake a revamping of the whole Federal Employers' Liability Act and we have in a very illuminating doctrine, a document upon which -- upon what Congress wanted to do. Amendments had been introduced in the House and in the Senate. In the Senate alone was there introduced an amendment which would affect the coverage of the Act. The amendments in the House had to do with features of the Act with which we're not concerned. And the Senate Committee in reporting the Act to the Senate wrote a fairly lengthy report in which it stated what had been done and what was intended. And from that and from the hearings, the following emerges, if I may call the Court's attention now to precise language of the Act, the opening part of the second paragraph. That amendment as originally proposed would have read this way that any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce or shall, in anyway, affect such commerce. You will notice I have left out some words. In the course of enactment --
Speaker: Where are you reading from?
Arthur B. Dunne: I am reading from page 6, Your Honor, the second paragraph of the quoted statute.
Earl Warren: Of your brief?
Arthur B. Dunne: Of my brief, yes, Your Honor.
Hugo L. Black: Page 7?
Arthur B. Dunne: Page 6, if Your Honor please. You may have the petition --
Hugo L. Black: I have the petition (Voice Overlap) --
Arthur B. Dunne: Yes, sir. So that there was a skip from -- in the third line there, "or shall in any way," down to affect. In the course of amendment, there was inserted these words in any -- so that it read, "In any way directly or closely and substantially." I suggest that it can be the only one inference, those words were inserted to restrict the application of the Act.
Felix Frankfurter: How would that may be -- Mr. Dunne, may I ask over those words “directly or closely and substantially" are the very accurate and have been used in prior decisions of this Court?
Arthur B. Dunne: They had, Your Honor, and had been commented on -- there's some comment on those words at some length from the Santa Cruz case.
William O. Douglas: But the Supreme Court of California rested on the previous clause, "Shall be the furtherance of interstate or foreign commerce."
Arthur B. Dunne: Well, they -- they did, that was the word they emphasized in particular. And if I have time, I -- I would like to comment on the relationship of these two clauses to each other. Now, the second thing that was done was that as originally proposed in the Senate and as appears from the Senate Report, it was suggested that the coverage as to employers should be enlarged by including express companies, freight forwarders and sleeping-car companies. They had been held not to be under the Act of 1908 since it applied only to railroads. That suggestion was rejected by the Committee upon the ground that there was no need for the inclusion of express companies, freight forwarders and sleeping-car companies, although their men were intimately connected with at least some traces of railroad operation. And I infer that there was no necessity because by 1939 those men were adequately taken care of under state compensation statutes.
Felix Frankfurter: May I trouble to ask you whether the -- the reference to the report of the -- underlying the 1939 Act, was there a report in the Senate in regard to the amendments that you've just pointed out?
Arthur B. Dunne: A -- a Senate Report which is credited in full as an appendix to our brief.
Felix Frankfurter: Oh, it is. All right, then --
Arthur B. Dunne: That is in full so far as it involves this particular amendment. There were others.
Felix Frankfurter: That's in your brief, is it?
Arthur B. Dunne: Yes.
Felix Frankfurter: All right. Thank you.
Arthur B. Dunne: Now, we suggest to the Court that some things are noteworthy and the negative in this instance is as noteworthy as deposited. The negative is that Congress did not tamper with the definition of employer in the 1908 Act but deliberately and expressly refrained from tampering with that definition. Secondly, we don't have to guess as to whether Congress was aware of the course of decision in this Court as to the meaning of interstate commerce because the hearings and the report show that Congress was familiar at least with the Shanks case. And indeed in the Overstreet case, under the Fair Labor Standards Act, this Court commented on the fact that Congress was aware of the test to the Shanks case. We have then and this Court again has commented on this fairly recently in the Desper case which was an action under the Jones Act that the only thing that Congress did was redefine employees for the purposes of this Act.
Felix Frankfurter: May I -- may I trouble you, Mr. Dunne, I'd like to -- the phrase that Mr. Justice Douglas called attention, “furtherance of interstate or foreign commerce”, was that in the proposed amendment of Section 1 at the time that the report in 6 (1) was committed to the (Voice Overlap) --
Arthur B. Dunne: Yes, Your Honor.
Felix Frankfurter: That report was through a bill which has that phrase?
Arthur B. Dunne: Yes, Your Honor, and that --
Felix Frankfurter: That was in the report unless I read too late for years, I well may have, there's no reference to that phrase. There is a reference to -- closely related to the facts or a part of it?
Arthur B. Dunne: Yes, Your Honor.
Felix Frankfurter: Is that right?
Arthur B. Dunne: That's true. Now, Mr. Justice Douglas commented on the fact that the Supreme Court of California had picked out and set its attention on the furtherance phrase. I suggest that one of the matters for consideration of this Court is the relationship of the "furtherance" phrase to the “directly or closely and substantially” phrase. In some context and in some places, I suppose that the word "furtherance" could mean anything proximate or remote which would assist or forward a given result. And in that respect, I suppose in another context and dealing with another problem, the use of the word "furtherance" as in a statute dealing with an employer engaged in interstate commerce might very well comprehend all of its employees. And I think the history of the statute, particularly in the light of the Senate Report, will indicate that clearly it was not intended that all employees of a common carrier by railroad which was engaged in interstate commerce should be brought in this Act.
Felix Frankfurter: Mr. Dunne, are there any cases in the lower court at least, and not in this Court dealing with a company or it is a non-operating activity relating to a plainly interstate business?
Arthur B. Dunne: There are, Your --
Felix Frankfurter: Is that within or without the Act?
Arthur B. Dunne: There are, Your Honor. And I could discuss those cases but I should be arguing the next case if I did that. That matter is presented in the Reed case which immediately follows. So if I may --
Felix Frankfurter: Are you in that case?
Arthur B. Dunne: What? I am not in that case, Your Honor. So if I may, I prefer to leave the argument of that matter to counsel in that case.
Felix Frankfurter: All right.
Arthur B. Dunne: Now, the second thing about this matter of furtherance is this.If furtherance is to be given a latitudinarian construction then what earthly use is served by the succeeding clause, "Directly or closely and substantially?" If furtherance is to be given the all embracive sweep that apparently the Supreme Court of California thought should be given to it then Congress was indulging in useless repetition in adding the words, "Directly and closely and substantially," and words which as Mr. Justice Frankfurter had pointed out had received notice in opinions of this Court. And not only in the opinions that I think Mr. Justice Frankfurter had in mind but in opinions under the Federal Employers' Liability Act, as that Act had been construed and applied by this Court prior to the time that it was amended in 1939. For instance, in the Harrington case which was a case of stockpiling coal and the switchman was taking a car or cut of cars to place where the coal was to be stored. It was said that the work there was not directly related to interstate commerce. Those cases, if the Court please, you will find cited throughout our brief and we have discussed and endeavored to classify these various cases. And out of them, dealing with this type of language, come these cases under the Federal Employers' Liability Act, and I am again suggesting that we have a double test. Is the employer the type of employer that's described by the Act? As well as the test, is the employee the type described by the Act? Pedersen case, the first case holding that repair of a bridge fell under the Act, by a way of distinction, pointed out the construction of cars would not. In the Raymond, it was held that the driving of a tunnel for the purpose of shortening the line did not fall under the Act. In White, there was a construction of a new station and new tracks, the Act did not apply. In Nash, a memorandum of opinion reversing the Supreme Court of Minnesota and a construction of a new outhouse did not fall within the Act. In Yurkonis, mining of coal to supply local motors hauling interstate trains was not under the Act. In Harrington and Barlow, handling cars carrying coal for use in such local motors, where the coal was to be stockpiled for later use, did not fall under the Act. I suggest for the Court's consideration three other cases which were not F.E.L.A. cases. In Sante Fe Railroad against Grant Brothers, it was held that a railroad carrying material for a construction contractor who was constructing an extension of its line was not acting as a common carrier and the contract limiting its liability was valid. In Grant Smith-Porter Ship Company against Rhode, this Court was faced with that bothersome problem of where the limit of maritime jurisdiction, exclusive maritime jurisdiction, lies the problem that had its genesis in Southern Pacific Company against Jensen. There, a new vessel was being constructed. She was lying in navigable waters, the Willamette River at Portland, Oregon. A man was injured while he was working on her in such position. It was held that the Oregon compensation statute could apply because such work on a new vessel, not yet in commission, did not directly affect commerce or navigation. I suggest then to Your Honor that's -- Honors that the -- this Act did not redefine the employers and that Southern Pacific Company in operating a wheel foundry, manufacturing cars and in constructing a new yard was not acting as a railroad and was not acting as a common carrier whether or not it was engaged in interstate commerce. But further that within the meaning of the Federal Employers' Liability Act, it was not engaged in interstate commerce.Secondly, that the Congress did not wipe out the definition of Congress evolved by this Court in the course of adjudication of some 30 years. That for the purposes of this Act, commerce is transportation, all work so closely connected to it has to be practically a part of it and that to get the true meaning of the amendment of 1939, it must be read with this Court's established and untampered with definition of interstate commerce as though it were in the Act and as though the new and added paragraph read this way, "That it applied only to employees of a carrier. Any part of whose duties as such employee shall be the furtherance of interstate transportation or work so closely connected to it as to be practically a part of it or shall in any way directly or closely and substantially affect such commerce." We suggest to Your Honors that there was no intention and there is no language which will bring within this Act the heart of which was to provide a remedy where men exposed to the peculiar hazards of railroad, although it will cover other men if they fall within its language. The event --
Stanley Reed: What -- what change does that make and what was it before?
Arthur B. Dunne: It eliminates the moment of injury rule, Your Honor. So for instance, if a man is employed as a switchman and he's handling indiscriminately interstate and intrastate cars, we need not concern ourselves with what work he was doing at the precise moment of injury. Likewise a man in a repair shop, whose work is general work of the repair shop, we need not concern ourselves now whether he's making running repairs on the car or a locomotive that's in or assigned to interstate commerce. As always, that's part his work, we don't care what he was doing at the moment. We are not concerned with whether a locomotive is withdrawn from service or a car is withdrawn from service at the time that -- of the injury of the particular workman. And I think in the course of adjudication in the state court, signed in the lower federal court has indicated this that likewise that is brought under the act, those borderline cases such as Collins and Schware, where this Court at one time went one way and then overruled itself. So that the effect has been to remove, to state it shortly, the moment of injury rule and to make the operation of this statute more uniform and its application more positive to those men who fall within the language of the statute.
Felix Frankfurter: May I ask what this do, Mr. Dunne? You referred that if on the stop in the second paragraph where furtherance of interstate commerce that would absorb every activity in relation to the common carriers of interstate commerce and the following clauses implicit, is redundant.
Arthur B. Dunne: I would say so, Your Honor.
Felix Frankfurter: That's your position? Now, what --
Arthur B. Dunne: Although I would not concede as much as Your Honor would impute to me for the word "furtherance" as a gist in this particular statute.
Felix Frankfurter: Well, very well. At any event, you say it has given the breadth of the Supreme Court of California gave it, then the rest of the stuff is in commerce of indulging even if it's -- if speaking of judicial words, is that (Voice Overlap) --
Arthur B. Dunne: Exactly, Your Honor.
Felix Frankfurter: What I want to put to you is, contrary wise, counsel should give some scope to everything in here, in the paragraph. And therefore what scope you gave in furtherance of interstate commerce that is apart from or different from and that does not make that redundant to the clause that follows.
Arthur B. Dunne: The word of "directly or closely -- closely and substantially affecting interstate commerce" accepting this Court's language of commerce would be transportation and work directly or closely and substantially affecting transportation would have to come pretty close to the instrumentalities of the transportation itself. And that is certainly true if this Court is to adhere to its use of the word "direct" as in the Harrington case. That then leaves for us these borderline cases in the back shop and the accessorial facilities such as sand houses, water towers, oil tanks and those things, which fairly can be said in the sense to which I apply that language, to be the furtherance of that transportation, although not directly or closely and substantially affecting it.
Felix Frankfurter: It was a early case I think and Judge Learned Hand was still in the District Court (Inaudible) following much by which if you hand -- follow the Harrington protest between oiling and car and handed them a profile and come in the district to do it that claim would be in interstate commerce, if you added in his lunch casket or lunch case, that would be not in interstate commerce.
Arthur B. Dunne: Well, if you're --
Felix Frankfurter: You probably would never even make any sarcastic or crooked --
Arthur B. Dunne: Well, Your Honor --
Felix Frankfurter: -- remarks about that kind of a distinction.
Arthur B. Dunne: We're getting on --
Felix Frankfurter: (Voice Overlap) now or would you have to decide that without the furtherance with his (Inaudible)
Arthur B. Dunne: Well, I can answer that in the history of this -- of the decisions of this Court. In the Schmidt case, this Court decided that the handing him his lunch was part of interstate commerce because they applied the Act to a camp car cook. That case was later criticized or in -- this Court indicated that it might be questioned in the Overstreet case, this Court said so in view of that series of cases in 1931 and 1932 but the lunch box case was a very close one.
Felix Frankfurter: Are you -- you would have -- you would say that was in furtherance of it to follow an outline so he could leave the engine of his body was in furtherance of that.
Arthur B. Dunne: I --
Felix Frankfurter: It might not (Voice Overlap) --
Arthur B. Dunne: I would say that that could very well fall within the definition of furtherance. The case certainly give me pause there is Overstreet against (Inaudible)
Stanley Reed: Well, Mr. Dunne, the -- use of the phrase "affect such commerce" at -- at this time, that's -- that's almost a phrase of art of the 1939 birth period, was it not, affect such commerce?
Arthur B. Dunne: That was the --
Stanley Reed: And a part of -- of the doctrine of affecting commerce --
Arthur B. Dunne: That was the language that was used in the National Labor Relations Act that was before this Court in the Little Steel case and it was used in anyway affect commerce if my recollection is correct but without those qualifying words “directly or closely and substantially.”
Stanley Reed: But is this -- that an officer to the Supreme Court doctrine that has come on down to us that the affecting commerce so as to give the broadest constitutional reach possible to the economy --
Arthur B. Dunne: Well --
Stanley Reed: -- the commerce clause?
Arthur B. Dunne: That, Your Honor, is true when we branch over into -- into another field and when the question is now the power of commerce and not merely the question of construction of the statute.
Earl Warren: Mr. Hilderbrand.
Clifton Hilderbrand: May it please the Court. I appear for two carmen, one is Gileo and the other is Eelk. That's spelled E-E-L-K but pronounced Eelk. Mr. Perkins, who's sitting next here appears for Mr. Eufrazia another carman and Mr. Colley who's next to Mr. Perkins appears for Aranda, the laborer in the retarder yard and Moreno who was the molder in the car foundry. The -- my associates have kindly consented that I might bear something of the burden of the argument but they would like to be heard as to the special facts of their cases and consequently since the Gileo case was the main opinion of the Court you might say, Supreme Court of California, I shall attempt to discuss the burden of the argument relating particularly though to these carmen. Now, under the old conception before 1939 and all these cases which Mr. Dunne told you about arose always before 1939. All these new car -- new yard construction cases were before 1939, he hasn't given you any decisions since 1939 on that. And prior to 1939, the whole situation had got to be such a mess that the railroad brotherhoods went to Congress on these lunch box cases and a switchman working one minute in interstate commerce and the next minute in local commerce, that Mr. McGrath representing the Brotherhood of Railroad Trainmen that I have represented for many years and other brotherhoods went to the Congress and they asked the congressional committee and particularly the Senate Committee that was considering this matter and primarily interested in trying to remedy these defects to do something about this moment of injury thing and all of these problems, it wasn't just a moment of injury, it was to get away from these borderline cases, from these hairline distinctions where a man had to take four years to find out where his remedy was. It was the most ridiculous situation that he would be situated where he's a switchman in the yard and we got two tracks here and on the first track, if he's injured on the first track handling one car, he's under local commerce and if his fellow worker on the second track is injured, he's handling interstate commerce. And there wasn't any question in anybody's mind about it. There wasn't any argument before the Senate Judiciary Committee or in the legislature that these things should be remedied. It was a ridiculous situation and the courts had floundered around on the thing to the point where you couldn't tell where a man stood, and it wished to sweep away this whole line of decisions that Mr. Dunne is talking about and to bring about a new era so that the man and the brotherhoods and the people concerned with the rights of these men wouldn't know within reason and with some clearcut the lines of distinction where they could go and where the remedy was. This whole maze of law that Mr. Dunne discusses and tells you about is in the limbo of the nocuous destitute. It's no longer with us. It's past 1939 and it shouldn't even be discussed, this broad language of this new amendment in 1939 threw it out the window. It's no longer with us and the language said, what did it say, why furtherance of interstate commerce directly, closely or substantially affect interstate commerce. Well, that's quite different from the old conception, here's the old conception. In the old conception as they worked out on the Shanks case, here would be transportation, this is the lectern transportation and then if the man is here, he's in any part of the lectern, he's on transportation. But the new concept is not just transportation, it's furtherance of interstate commerce if this is meeting up there in the table or that table or others leaving on up to this lectern. If it's anything relating to interstate commerce of the employer, if the employee's work relates to interstate commerce, if it's directly or closely substantially connected with interstate commerce not just transportation, not just this lectern, the entire sweep of activity of the railroad in interstate commerce and that's the broadening of the language which we have.
Felix Frankfurter: You mean directly and closely and substantially across upon the terms?
Clifton Hilderbrand: No, I think they need some intelligent judgment in figuring out just where they are and in trying to draw the line, I still believe that there will be problems and cases we cannot entirely solve it but look how simple this thing is. Here, you have men, let's take our carmen. We have three carmen involved in this situation. This carshop that Mr. Dunne speaks about is not a shop, there's no roof over it, you've got 10 parallel tracks just as if let's say this courtroom was the carshop, I happen to notice that starting with the first line of chairs here, there are 10 chairs -- 10 rows. This carshop that Mr. Dunne talks about, these yards there in the Sacramento yards of the Southern Pacific are 10 tracks. Now, on the first track, this very first track right along here, they do running repairs. That is to say trains come in, cars need a little work done on them, they're in service, they're in transportation and some of these men were down there and they work on these running repairs. In the second track, they bring in cars that go to eight, nine and ten where they build new cars. On the third track, the track right back there, this side of the railing, they bring cars in there that are to be painted or repainted from running repairs, from the trains and service and they paint new cars and they paint old cars on the third track. On the next tracks, four, five, six and seven, they are repairing old cars and rebuilding cars, heavy repairs. And on tracks eight, nine and ten, they're building new cars. Now, what do you have? You have the Brotherhood of Railroad Carmen whom I represented for years. These men have a contract with the railroad. They have interchangeable seniority. One of them is working one day on track one, he's working another day on track three, he's working another day on track eight and nine. These men can bid the jobs according to their seniority. If I have 10 years as seniority or 15 years as seniority and I like a job over there or on track eight or nine or ten and my seniority entitles me to that job, I can go over there or if my seniority entitles me to get on here on track one or track three where there's running repairs, I can go there. My contract covers -- this contract I work on, there was the Brotherhood of Railroad Trainmen, covers my seniority rights and my work is interchangeable with the other men that I work with.
Felix Frankfurter: Is the work interchangeable or is the choice for each, which is it?
Clifton Hilderbrand: The choice is interchangeable and the work is interchangeable.
Felix Frankfurter: You mean one day he works on one day and one day he works on --
Clifton Hilderbrand: Correct. In the Eelk case for instance --
Felix Frankfurter: That is what we were told a minute ago.
Clifton Hilderbrand: I know it, Your Honor, but this record --
Felix Frankfurter: Where is it in the record?
Clifton Hilderbrand: The record is perfectly clear on it in the Eelk case. And I'll state it and then I'll get the record for Your Honor. In the Eelk case, Eelk was one month on running repairs. The next month, he was on new construction. The next month, he was on running repairs and the next month when he was injured, he was on new construction. Now, isn't that the fact, Mr. Dunne? I don't think I need to get the record on that, do I?
Felix Frankfurter: Do we have --
Earl Warren: You better get the record, you can ask for it.
Felix Frankfurter: All their differentiation, Mr. Hilderbrand, so that we have to look at each of the facts pertaining to each individual in this case.
Clifton Hilderbrand: Oh, that's done.
Felix Frankfurter: Is that the point you make and does it become necessary to examine the repairs with reference to each that they complained of?
Clifton Hilderbrand: I don't think so because --
Felix Frankfurter: That can be solely irrelevant and it doesn't matter whether they work and do not work interchangeably.
Clifton Hilderbrand: Well --
Felix Frankfurter: But if it is relevant then we do have to examine.
Clifton Hilderbrand: They all work interchangeably, Your Honor.
Felix Frankfurter: Well, all right (Voice Overlap) --
Clifton Hilderbrand: The testimony --
Felix Frankfurter: -- (Inaudible)
Clifton Hilderbrand: I didn't -- I don't think there can be any argument about it. The record is clear on it.
Felix Frankfurter: I don't know anything about it, that's why I'm asking (Voice Overlap) --
Clifton Hilderbrand: I -- I appreciate that Your Honor is simply asking question, but I'm sure you'll find I'm not misstating the record to the Court. In the case that Mr. Perkins had -- has, the Eufrazia case. Eufrazia worked for nine months on the work that's like number one and number three track, that's the running repairs. The -- the cars in service and then one month he'd worked on the new car construction and he was injured. In the Gileo case, Gileo had worked for 10 years on general work, that is to say running repairs and old construction on cars and service. And it happened that for five months, he'd been working up on the new car construction.
Felix Frankfurter: But that is not the kind of situation that if this is relevant, if this is all there is that Senator Neely had in his report. He wasn't talking about a man who worked for nine months as one kind of a job and the next nine months in another kind of a job. He was talking about something else.
Clifton Hilderbrand: Well, I --
Felix Frankfurter: He was talking about the niceties where the other car coming in and another car coming out, all the time works interchangeably.
Clifton Hilderbrand: It was one thing.
Felix Frankfurter: Isn't that true -- isn't that true?
Clifton Hilderbrand: It was one thing he was talking about, but they were talking about a lot of things.
Felix Frankfurter: Well, where is the point where you -- where -- what is the report? All I know is that --
Clifton Hilderbrand: The report --
Felix Frankfurter: -- the one you referred to which deals with the situation that you have where a man works for a long stretch, endurable stretch on -- on non-interstate transportation and stuff in the technical sense --
Clifton Hilderbrand: Well, here --
Felix Frankfurter: -- on transportation stuff and then for extended period on the other one, where is that?
Clifton Hilderbrand: Here is the language. It's in the appendix at page 4, Your Honor. That's at Appendix A to Mr. Dunne's brief. At the bottom of the page, the adoption of the proposed amendment will to a very large extent eliminate the necessity of determining whether an employee at the very instant of his injury or death was actually engaged in the movement of interstate traffic. If any part of the employees do these at the time of his injury or death directly closely or substantially affected interstate or foreign commerce, the claimant would be considered entitled the benefits of the Act. Now, this is the next paragraph. The preponderance of service performed by railroad transportation employees is an interstate commerce. As to those who are constantly shipping -- shifting from one class of service to another, the adoption of the amendment will provide uniform treatment in the event of injury or death while so employed.
Felix Frankfurter: What's constantly shifting?
Clifton Hilderbrand: Well, I think that certainly where you've got a man like Eelk, for one month he's in one class of employment, the next month he's in another class of employment. Back again to the first and back again to the first in a period of four months going back and forth. You've got them all on the same seniority list. You've got them all under the Railroad Retirement Act. You've got them all under the Railway Labor Act. They negotiate under the Federal Railway Labor Act to all of these men. Their contracts are under the Railway Labor Act. Their retirement benefits are under the Railway Retirement Act. Their unemployment insurance is under the Unemployment Insurance Act. If they get injured, they are -- they can draw benefits under the Railroad Retirement Act and every other activity that they have as railroad man is all geared to this setup that they come under these federal laws and --
Felix Frankfurter: But this -- but this doesn't follow that Congress laid down the same criterion and scope. The Railway Labor Act isn't the Federal Employers' Liability Act.
Clifton Hilderbrand: No, that's true. I won't -- I won't dispute that but it does follow that these men are considered as railroad men. Their car toads, their switchmen or snakes, their -- the whole lingo, the whole method of negotiating their agreements, the methods of handling their contracts, their working conditions, everything about these men classifies them as railroad men. They're not under the -- the same setup by any means that other types of employees are under another industry.
Felix Frankfurter: That's why, for myself, I think the Howard case has long been decided, that is the question before us.
Clifton Hilderbrand: Well, the Howard case, of course, went -- today, I would think the Court might well decide it as Senator --
Felix Frankfurter: He can't because Congress would let us with a different law.
Clifton Hilderbrand: As Senator Neely pointed -- as Senator Austin pointed out, when they were discussing the amending of this Act, he changed that language to read in anyway closely, directly and substantially affecting because of the language in the Jones & Laughlin case that applied to the National Labor Relations Board jurisdiction. And that gave the scope and the sweep there to the manufacturer of steel and the jurisdiction extending to the manufacturer of steel so that you could very well from the application of that language on the discussion where Senator Austin stated that very thing say that the jurisdiction here is certainly as broad as it is under the National Labor Relations Act. That's the Jones & Laughlin case at 301 U.S. And he pointed out to the Judiciary Committee at the time that he had substituted the first language in anyway and had put in the very language that's used in the National Labor Relations Act, that's where we get this language "directly, closely and substantially affecting interstate commerce." So that --
Felix Frankfurter: Is that -- is that --
Clifton Hilderbrand: That's where it comes from.
Felix Frankfurter: Is the effect to interstate commerce which is in the Wagner Act --
Clifton Hilderbrand: That's right.
Felix Frankfurter: -- that's limited as this is?
Clifton Hilderbrand: No, it isn't limited. And that's where this language came from. Senator Austin precisely stated and it's in the record in that Committee Report, that he was inserting this broad language in this amendment so that it would give precisely the same coverage that was given in the National Labor Relations Act.
Felix Frankfurter: (Inaudible)
Clifton Hilderbrand: And that is discussed --
Felix Frankfurter: Under the National Labor Relations Act, it uses the word "to affect commerce," does that affect commerce qualified as this paragraph is, was closely substantial --
Clifton Hilderbrand: Precisely.
Felix Frankfurter: -- that the statute or in the opinion construing the statute, which?
Clifton Hilderbrand: The statute and that's where this language comes from and Senator Austin said that's where he got it and that's why he was putting it in there, to put in the same language that was in the National Labor Relations Act. Now, that's all discussed in the Ermin opinion by Judge Moskowitz, Ermin against Pennsylvania Railroad, it's in our briefs and Judge Moskowitz goes into that at some length and discusses just how that arose in giving a very broad construction to the statute. Judge Moskowitz's opinion I think is one of the best District Court opinions that I think should be illustrative and helpful to the Court in analyzing this because in two well -- very well considered opinions, he went into this matter at considerable length. So we have men here so far as these carmen's cases are concerned who quite obviously are in furtherance of interstate commerce. This man, according to the record and the testimony of the business agent of their union and the record went into it in considerable detail, can be transferred at any time from one track to another by the management. The management tried to say here, "Well, as a matter of practice, they didn't but they have the right to." The men themselves can insist upon their right to be transferred from one of these 10 tracks to another in their work. They all come under the same laws, the same practices, the same rules, the same contract and to say that these men should be differentiated when they're working on these different tracks is I'd say violating that fundamental and very primary purpose of the amendment which Mr. Dunne admits as to -- to eliminate the moment of injury rule. I'm not saying moment of injury means just precise minute, I think it means within a week or a month or within a reasonable period where they're shifting back and forth from one classification to another.
Speaker: Does that mean that in your view all railroad employees are now covered?
Clifton Hilderbrand: I wouldn't go so far, Your Honor, because I would say first we have to look at this language "furtherance of interstate commerce" and then we have to say "shall in anyway directly or closely and substantially affect such commerce" and then we have to say well, now, do these men's duties and activities come within that phrase? Now, I can imagine that there might be men out running a -- working on a canal that a railroad might own or they might be out on some collateral activities in connection with oil properties, there are a lot of things the railroad might do.
Speaker: Well, leaving out the collateral activities for mining or oil properties and what not, why, under your definition, isn't any employee of the railroads engaged only in interstate commerce?
Clifton Hilderbrand: Well --
Speaker: In the very sense, why isn't anything that's being done by such employee in furtherance of such company?
Clifton Hilderbrand: I'm inclined to think under the -- the interpretation which the Supreme Court of California has given to the law that you get pretty close to that.
Speaker: Well, I'm not saying that isn't the -- possibly the right construction but I just want to be clear in my mind what you're --
Clifton Hilderbrand: Here is -- here is what I --
Speaker: (Voice Overlap) --
Clifton Hilderbrand: -- think should be the rule, Your Honor, and the Supreme Court of California stated it in that regard. The Supreme Court of California said the 1939 amendment was enacted to include injured employees previously excluded, Mr. Dunne hardly wants to include anybody previously excluded, and to eliminate confusions and hardship, all these carmen working on adjacent tracks eliminate that kind of business, these kinds of cases we have here, they're eliminated by that amendment. There are close borderline cases under the old law and now they shouldn't be close in borderline anymore under the new. And to eliminate confusions and hardship to which they were subjected in choosing whether to bring suit under state or federal law. They are there five years trying to find out what law they come under. In order to effectuate the purposes of the amended act, all doubt should be resolved in favor of its applicability. So I say in these cases where you got these employees and these unions that -- that work for these railroads and these various classifications that in these doubtful cases, where there's an argument about it, the California Supreme Court, I think, has stated the right rule that the presumption should be that they're in interstate commerce. Take for instance the question that was asked by Justice Frankfurter about clerks and I'm invading the next case a little bit. I think it may answer your question if I might, Mr. Justice Harlan. You take a clerk out on the railroad who is inspecting cars and taking down the car number so they could be built. He is obviously under the Act. Now, he sends his report into a yard clerk who's in the yard office right alongside the tracks and I think that practically all the cases would say he was under the Act. And that yard clerk sends his report over for billing to a clerk over in the main office of the railroad where the (Inaudible) would be at 65 Market Street in San Francisco, is he to be taken out of the Act? He's following right through with the billing for the interstate commerce. It's in furtherance of interstate commerce and how can you draw the line and it's this next case you're going to get on the work shirt proposition. If the one clerk has a work shirt and the other has a soft -- a white collar, is he going to be in any different classification than the first fellow? It seems to me that why you can't say as to employees precisely just this group of employees is or isn't under. You can apply these tests and give a liberal interpretation over this as the Supreme Court of California says and not make a ridiculous distinction such as it was made by Judge Yankowitz in the Hall case out in California that it depends on whether he has a white shirt or a work shirt. That surely is no distinction. It depends on what he's doing in furtherance of interstate commerce. It depends upon his connection with the overall activities of the railroad in reference to these things we're talking about. That was -- it's where I would say to draw the line. And I think it's a matter of intelligent interpretation but it should be liberal and if this Court can lay down the liberal rule to apply the language of the amendment, we can eliminate a lot of these borderline cases.
Speaker: Well, if I get what you're saying then really, you're saying that we wipe out all of the cases pre-1939. We start with a new series of distinctions now that stems from whatever definition you choose to give to this language (Voice Overlap) --
Clifton Hilderbrand: With a much a broader construction --
Speaker: -- is that the section of it?
Clifton Hilderbrand: -- and to eliminate -- certainly to eliminate cases like these carmen who were working on adjacent tracks. That covers my case and I don't want to infringe too much on my associate's time but I'll be glad --
Stanley Reed: Would it -- would it be fair to say that under the statute, from your point of view interpreted, any employee of a carrier, any part of whose duties shall be the furtherance so that you would apply the old 1939 test as to whether they were engaged in commerce or not. And if they were at any part of their employment, then they would be under no matter whether they were at the moment or not in that (Voice Overlap) --
Clifton Hilderbrand: Well, the trouble with the -- the old test, Your Honor, is limited right to transportation --
Stanley Reed: Yes.
Clifton Hilderbrand: -- just to the lectern here --
Stanley Reed: That's right.
Clifton Hilderbrand: -- but it doesn't seem to me that goes far enough. It seems to me the amendment broadens that in furtherance of interstate commerce directly or closely or substantially affecting it and gives us a perimeter out and beyond that to include a lot of these borderline cases like new construction where they were building new extensions to a railroad, new yards, where there are various things of that kind. For instance --
Stanley Reed: When I -- when I look at the report and its principle back in Mr. Dunne's brief, the preponderance of service performed by railroad transportation employees is an interstate commerce. As to those who are constantly shifting from one class of service to another, the adoption of the amendment will provide uniform treatment.
Clifton Hilderbrand: Now, take --
Stanley Reed: Do I need to go farther than that?
Clifton Hilderbrand: -- take for instance men who are working on a new line. I just had a case of -- of some men who were working -- building a new line on the McCloud River Railroad.
Speaker: Well, we had the old Redman case.
Clifton Hilderbrand: And the old cases would have held they didn't come under the Act. But here, you have freightmen out on work trains, you have the section gangs that do the same kind of work that their fellows do, they're all born with the same union, they're all in the same setup, they're under the Railway Labor Act, Railroad Retirement Act and all these things. It seems to me the broad sweep of the -- of the new amendment would include all of these kind of former borderline cases that the courts were struggling with formerly and saying, “Well, we can't include new construction because it isn't right in this lectern here of the transportation field. And I -- I think that those old cases were swept out the window by the 1939 amendment that certainly the 1939 amendment means something. It doesn't just mean that -- that Congress was reaffirming this old line of cases that Mr. Dunne has quoted to the Court. It means that as a broader conception and that these men shouldn't have such difficulty in determining where they're to go and what their rights are and -- and the language is pretty fraud that furtherance of interstate commerce, I think, means what it says. I don't believe Congress was idle in its use of the term or that it intended merely to limit it to the old conception or why should they have passed the amendment. It was to eliminate all that, just as the Supreme Court of California said to include injured employees previously excluded and eliminate confusions and hardship. Now, these are the kind of cases that bring about the confusion and hardship and doubt where you got men working in the same union under the same contracts, the same seniority setup, interchangeable when their duties might be working one month over on this new construction, the next month the other place or one year one place, the other year the other back and forth thereon, those all should they all be in the same classification, otherwise how can you properly advise them or can they properly be represented and where -- how do they know where they're going to wind up. It seems to me this Court should lay down some rule that Congress meant what it said and it said furtherance of interstate commerce on a really broad basis.
Earl Warren: Mr. Perkins.
Thomas C. Perkins: May it please the Court. My -- my client is what Mr. Hilderbrand has referred to as a car toad. That's -- in other words, he's really a railroad man just like the railroad refers to engineers sometimes as fog heads. They refer to Mr. Eufrazia as a car toad. Now, he started in this particular branch of work in September of 1950 at the Carshop No.9 in Sacramento. Now, when he started into work there, he was on this new car program which is the same program that he was on when he got hurt. However, in the interval between the time when he first started on this new car program and the time of his injury, he was switched over to this repair work where he was doing all sorts of repairs including running repairs. In March of 1950, he was raised to the status of an advanced helper. Now, an advanced helper is a man and who was qualified to do all sorts of work which a carman is qualified to do. He could ream, he could weld, he could rivet and he was used for all those various things. Now, in June -- rather on June -- rather June 13th, 1951, he was taken from the repair work and he was assigned in this program which he was originally on of reaming ends in these gondola ends. Now, the tools he was working with are much the same as they use in the repair work. He was working in a place that was setup as one integrated whole, it was all under the supervision of Mr. Harry Heiky. Mr. Heiky had the privilege of assigning these men from one place to the other, that is from repairs to new construction and for instance if Mr. Eufrazia were reaming a hole on this new end, he could say, “Well, Mr. Eufrazia, we'd like you to go and ream a hole in this car, they got sideswiped." He could switch him around and in fact the immediate supervisor of Mr. Eufrazia was Mr. Fagan and he was simultaneously supervising this assembling of new cars and also assembling the repair or old cars. In other words, that here you have this foreman, the -- and one immediate -- but immediately above Mr. Eufrazia in the chain of command and we have Mr. Fagan not only supervising the activities of the event in this assembling of new cars but also we have him supervising this repair work. As Mr. Hilderbrand has pointed out, all these work was going on side by side, the men were interchangeable and from time to time they did get reassigned, for instance, when due to absenteeism, when a man was absent from this assembly line. I believe that's admitted in the record. When was absent from the assembly line, Mr. Heiky could go over and get a man from the new car work and tell him go ahead and be on this construction work, that is, if some of these men gets sick or layoff. I don't think it was really quite as a precision or clock work arrangement as Mr. Dunne states. I think it back when my client was injured, there were two men off of that job, that's one of the reasons he happened to get injured of this reaming here. Now, it's very important to Mr. Eufrazia merely to be under this Act. For one thing, he belongs to the Southern Pacific Hospital Association. He pays his dues there. If he gets ill, he's -- it's unlike the men that are in -- of course, theoretically it might sound very fine to say and perhaps to a theorist that might sound very fine to say that this man, if he's not under this F.E.L.A, he's got a remedy, he's got the workmen's compensation but our Workmen's Compensation Act isn't really designed to cover car toads or railroad carman. This man is a railroad man. Now, he belongs to the Southern Pacific Hospital Association, if he gets hurt or if he gets ill, he goes down to the Southern Pacific Hospital down in San Francisco or possibly to our emergency hospital in Sacramento. He's treated by these railroad doctors. He contributes into that in a fund and the railroad also contributes in this fund and all of our railroads in the west at any rate have such arrangements, therefore, it's more or less geared with the F.E.L.A, it's not geared with our Workmen's Compensation Act.
Speaker: (Inaudible)
Thomas C. Perkins: Well, probably not. That was -- however, I understand that -- I believe that this wording has put him under that -- that 1908 already meaningless or rather 1939 amendment. Well, they seem to go pretty far on that Act. However, I think that under this latest act what he was doing even if -- even if his whole work was a construction on these new cars, I think what he is doing directly and substantially affects interstate commerce, Your Honor. I think that -- that's certainly is in furtherance of it, he's building new cars. You can't make this -- this railroad run without cars. They have to have this to supplement their existing rolling stock which -- which is what they were really doing. These cars wear out. When they wear out, where they take them into Carshop No.9 and they fixed them and then when they needed more either through an expansion of business or through the complete demolition of these cars where they replace them with new cars and they did both of these activities in Carshop No.9, both activities being under the supervision of Mr. Heiky so it's really one integrated deal like if its -- what they call a freight car department. They've got one department that's Carshop No.9, that's freight car department, they have this assembling program there and they have these repairs of all sorts in Carshop No.9 which distinguishes it from Carshop No.3 which is the passenger car department or the machinist department. It was all really an integrated whole. Now, this -- as I started to say that this -- it is very important to Mr. Eufrazia, it's to his welfare to be under the Federal Employers' Liability Act even in our fine compensation act which we have in California which is much superior due to the efforts of our governor in making -- and -- and with some help from our legislature in passing a rather liberal compensation act, still the amount that these men actually get under this Act, if that's their consideration, doesn't compare with what they could even settle all these suits for under the F.E.L.A. because under the F.E.L.A, there's a word for pain and suffering or disfigurement and all those items whereas under the comp act they -- even in our California, it's more or less based on your disability to earn your living. You've got to show that your finger is off or something so that you can't -- so that you're disabled. And also the minimum now I think of California is $40 a week which certainly doesn't compare with what they earned when they earned $300 a month and over. So that they can even, with no strain at all, come out financially much better under this F.E.L.A. And of course California is one of the better or the best comp acts but you take many states like down in -- several of them, the minimums run -- I've -- I've listed them in my brief on page 9, the various -- a month it goes down to $25 weekly in Arkansas and the death benefits vary from $17,500 in Minnesota down to $6000 in Wyoming. Also they have various defenses, for instance, in some of them the willful failure to use safety devices is a complete defense in 13 States and then they have its -- in other words, I think in the railroading industry you ought to have a uniform act that applies to all railroad workers whether they happen to do have a good fortune of being injured in California, whereas liberally it -- or relatively liberal or the misfortune of being injured in one of the States where the compensation is much lower. And as Mr. Dunne says, two of these States don't have any Workmen's Compensation Act as I understood him to say but more than that there's something more because five of these States exclude all railroad workers. Those are the States of Texas, Florida, North Carolina and South Carolina and the State of Washington. Those are five States that if you work for any railroad intra or interstate, some of them work in any common carrier, some of them say any hazardous occupation. The man has to bring a common law remedy. In Washington, they adopt the F.E.L.A, they say you can't distinguish between -- in their statute, you can't distinguish between people that are in intra or interstate commerce when they work for a railroad, it's all the same problem so they have a little F.E.L.A. However, in the States of Florida, you'll find they have a limited fellow servant document, it has to be a fellow servant of the superior quest or another category and not a -- just a person like two section hands such as we have in the F.E.L.A. In other words, if one section hand picks another one in the foot with a peck, we have liability on the F.E.L.A. In the State of Florida, you wouldn't have that. In the State of South Carolina, you wouldn't have that. In the State of Virginia, they also have that limited doctrine. And then also in North Carolina and -- and let's see, one of this other States they have a limited assumption of risk policy. In other words, you have to show that they violate a statute or the employee assumes the risk. Therefore, I think that for the sake of uniformity, both in the industry, it's very confusing to these men that they're doing exactly the same thing on one track. If they're reaming there and they say you're in the F.E.L.A., this fellow workman, he's right on the next track. He is doing the same thing, he's reaming too and then you say one of these men is in the F.E.L.A., I was going to explain that to his client and say well -- you'll come in and say, "Well, Mr. Jones over her, he was reaming and he hurt his knee. I think I should have my action on the F.E.L.A." I understood he got a pretty good selling in his case. I understood he got $10,000. You tell me here I'm reaming on a new car and all I can get is $1000. Well, that's pretty arguing to explain, I mean the technicality of that -- your client. And so, also, I think looking at it from a wider scope, from nation to nation or rather from state to state that they should be uniformity treated and if you exclude these people in Carshop No.9 here that rather so it's been made, it happened to be a new construction and you create chaos because -- and it will be very hard on these railroad men. I'll conclude my argument unless the Court has any questions they're willing to ask me?
Earl Warren: Very well, Mr. Perkins. Mr. Colley.
Nathaniel S. Colley: May it please the Court. I represent two clients, each of whom recovered jury verdicts for damages under the Federal Employers' Liability Act. Certainly as to one of them, I believe that he would have been covered by the Act had he been injured even prior to 1939. The reasons for feeling that way will be made to appear, but I think one of the first things which I should do is to try to clarify for the Court the meaning of the language used in the statute. Now, I think the best way to get an understanding of what the amendment is all about is to refer to the statements made by Senator Austin when these words were placed in the statute. On page 64 of Mr. Dunne's brief in a footnote he labeled 100C, Senator Austin's language is setout and I think perhaps it will put to rest once and for all what was meant when the language was inserted. If the Court will notice this very thorough and excellent brief by the petitioners, Senator Austin was concerned as to what courts might interpret this language to mean.Before his suggested change, the language have simply been -- that coverage would include anybody who in anyway affected commerce but Senator Austin wanted some understanding, he wanted to use a word of art as Mr. Justice Reed has said and so he suggested words of art which had settled meaning, and he suggested that the language should be changed to read in anyway directly or closely and substantially affecting commerce. Now, what do those words mean? They mean what the Court said they meant in the National Labor Relations Act. Proof of that is to quote Mr. Austin -- Senator Austin, my amendment was to substitute for the words "or in anyway -- the words "directly closely and substantially." That is the law as it is interpreted by the Supreme Court of the United States in the National Labor Relations Board against the Jones & Laughlin Steel Corporation and other cases. Now, what Senator Austin was saying was I want to use words that the -- that the Supreme Court has already given meaning to and the meaning I intend to give in this statute is a meaning the Supreme Court has given in the Jones & Laughlin Steel case. I think that's the complete answer as to what was meant. As to whether or not the amendment to the Act did anything other than enlarge the definition of the employee, my answer is simply this. The Congress was satisfied with the meaning of the word "employer" as used in the old Act. Congress had no intention of extending at least as the debates developed. Congress did not intend to extend the word "employer" to anybody except railroads engaged in interstate commerce, but what Congress wanted to do was extend the courage to employees of railroads engaged in interstate commerce with them having been satisfied with the definition of employer, not wanting to include truckers, not wanting to include express companies, not wanting to include anybody except railroads as had heretofore been done, they left that part of the Act intact. But when it came to the employee, the intention was to make a very broad, a very general and a very sweeping inclusion. That's exactly what the Court did. As refers to my two clients, Mr. Moreno and Mr. Aranda, I think the cases are different from the others and for that reason require some very brief statements of the particular facts as related to them. This is especially true since the facts, as stated in the very excellent brief of the petitioners, doesn't -- is not quite correct. Let us say it tells the truth but not the whole truth. And I think in order to understand the implications of these cases we must know the whole truth. The retarder yard, where Moreno worked, was an integrated project composed of three parts, one part was called a receiving yard, another part was called a classification yard, another part was called a departure yard. Of those three yards, the retarder yard was composed. Now, the retarder yard then was one integrated project composed of those three parts. When then was the yard finished? When was it put into operation? In the petitioner's brief, they state that the yard was not put into operation until April of 1952, where Moreno was injured in December of 1951. But if the Court will notice the language in the brief and in the argument, he says, “No revenue trains went over the lines until then.” I don't know when that ever became a test whether the train was a revenue line and not how would an employee ever apply that test, how would he ever know whether this freight train was a revenue train or whether it was just a train that the president of the corporation was riding on, he'd have no way of knowing that. So I think the revenue train test is no test whatsoever. But the record shows that the depart -- that the first part of this project, the receiving yard was completed in August of 1951 and put in operation, that was several months before Moreno was ever employed. It -- the record also shows that in October, the old main line was -- was being removed so that the retarder yard could be reconstructed and the receiving yard was in use as a classification yard. So then this whole project was partially completed before Moreno started work. And by the time he was injured much of it was in operation. Let's, for example, ask this question. Suppose Moreno had been injured on the receiving yard, which was completed in August, then would he have been covered by the Act? I think the answer must be yes, because this was a part of the yard in operation for all purposes in interstate commerce and he would have been covered by even prior to the 1939 amendment. Then if he had been hurt while he was removing cross ties from the old main line so it could be relocated, certainly, he would have been covered. Now, does his right to recovery under the Act depend upon which part of the yard he gets hurt in? That would seem to be a strange test to me. The next thing is that this yard where Moreno was hurt, the very day he was injured, the very moment of his injury, he was using cross ties from the old main line helping to construct this so-called new main line in this retarder yard. Now, if we look at this situation, suppose he had been hurt while he was taking the old cross tie out of the old main line which had been in operation all of these years, then would he have been covered by the Act? I can think of no way to exclude him. Forget when he takes that same cross tie over to another spot and starts to put it down so as to make a new method of switching, you exclude him. That would seem to be a form of technicality which certainly I cannot understand. Now, it is also significant that Moreno lived on the railroad tracks in what they call outfit cars. In other words, it put a little square track off -- off the main line and he lived in freight cars what they call outfit cars and he commuted from the railroad track where he lived over to the retarder yard where he worked.
Earl Warren: We recess now, Mr. Colley.