Earl Warren: Number 14, Boyd S.Leedom, et al., Petitioners, versus William Kyne, et al. Mr. Come.
Attorney: There's a preliminary matter, Your Honor.
Earl Warren: Yes.
Attorney: May I move the admission pro hac vice of Mr. Jonas Silver to argue the cause on behalf of the respondent. He is a member of the Bar of the District of Columbia and of its Court of Appeals, I'm satisfied he has the necessary qualifications.
Earl Warren: Motion is granted. Mr. Come.
Norton J. Come: May it please the Court. This case is here on certiorari to the Court Of Appeals from the District of Columbia to review the judgment of that Court in affirming the District Court which had set aside a representation determination of the National Labor Relations Board. The question presented is whether a Federal District Court has jurisdiction under its general equity powers and a part from the review provisions of the National Labor Relations Act to review a certification of bargaining representatives issued by the Board under Section 9 of the Act at the suit of a labor organization contesting the Board's action on the ground that the Board has failed to comply with statutory requirements in issuing the certification. The underlying facts are briefly these. Respondent, the president of a labor organization, called the Westinghouse Engineers Association filed a petition with the Board under Section 9 of the Act seeking a representation election for a group of about 233 engineers employed to the plant of the Westinghouse Electric Corporation. These engineers were all professional employees within the meaning of Section 212 of the National Labor Relations Act. Another labor organization intervened in the proceeding and sought to add certain additional groups of employees to the bargaining unit contending that they too were professional employees. The Board found that these additional employees were sought to be added, were not professional employees within the meaning of Section 212 of the Act. But that denying of the employees, shared a close community of interest with the 233 professional employees. And if they worked in the same general area and under the same general supervision -- and the Board further found that the inclusion of these nine with the 233 professionals would not destroy the predominantly professional character of the unit. So the Board directed an election in a unit consisting of the 233 professional engineers and the nine closely related nonprofessionals. The Engineers Association protested this action contending that it violated Section 9 (b) (1) of the Act. Section 9 (b) (1) provides that the Board shall not decide that a unit is appropriate for bargaining purposes if such unit includes both professional employees and employees who are nonprofessionals unless a majority of the professionals vote for inclusion in such unit. Now, from the time this provision was first enacted and it came into the Act in 1947 with the Taft-Hartley, the Board on the basis of the legislative history of the provision has consistently taken the position that it was intended to apply only in a situation where it was sought to take the professionals as a minority group and include them into a larger nonprofessional unit or -- or a separate vote on their part would be necessary to give them an effective voice in selecting a representative. And that it was not intended to apply for the situation that was presented here or the professional employees or the predominant element in the unit and a small number of closely related nonprofessionals sharing a close community of interest were sought to be included.
Speaker: Is this one of those cases where you look at the legislative history first before you get to the statutes?
Norton J. Come: No, Your Honor but it is one of those cases where if you don't look at the legislative history, you -- you sometimes lose sight of the purpose of the provision. It was a proviso to the Board's otherwise broad discretion in defining units, and the Board tells that it was justified in looking to the -- to the purpose since it -- since it wasn't the nature of a proviso.
William J. Brennan, Jr.: Well, Mr. Come, on the face of the statute, you'd have no case here.
Norton J. Come: Well, the --
William J. Brennan, Jr.: On the face of the statute --
Norton J. Come: On the -- on --
William J. Brennan, Jr.: -- because we're reading nothing but the words of it.
Norton J. Come: On the -- on the face of the statute, we have no case.
William J. Brennan, Jr.: So you have to go into something else to read the meaning into it that you've given to us.
Norton J. Come: That is -- that is correct.
Felix Frankfurter: When do you say your ordinary case -- this -- couldn't be tried. Certainly, you -- I'm considering the problem. I usually have no --
Norton J. Come: Well, we're talking merely about the question of -- on the merits as a part from the jurisdiction question which we are hereon and on that, we believe we have a case.
William J. Brennan, Jr.: I'm addressing myself for these facts, you don't --
Norton J. Come: Yes. You were addressing yourself to the interpretation of 9 (b) (1).
William J. Brennan, Jr.: Exactly.
Felix Frankfurter: What is that (Inaudible) Does the statute been amended since this Court (Inaudible)
Norton J. Come: No, Your Honor. It has not been amended in that respect. The question that the justice --
Felix Frankfurter: I'm not saying you're --
Norton J. Come: Yes.
Felix Frankfurter: -- right or wrong.
Norton J. Come: Yes.
Felix Frankfurter: I just wonder why it's so clear that one says that I'm (Inaudible)
Norton J. Come: Well, I think we're talking about a different part of the (Voice Overlap) --
Speaker: Surely, that would be a different thing (Voice Overlap) --
Norton J. Come: We're -- we're talking --
Speaker: Justice Brennan and I we're talking about the merits and Justice Frankfurter is talking about the procedure.
Felix Frankfurter: Oh, I think --
Norton J. Come: Yes. Yes, Your Honor. Well, so the Board accordingly rejected the contention of the Engineers Association and they then transferred their struggle for a pure unit to the District Court. They -- well, I should say first of all that the election was held in the mixed unit and the engineers were certified. They -- they won a majority in the votes of these nonprofessionals who were not decisive of the outcome of the election because they won by more than the nine votes. So that, they were certified and they then brought suit in the District Court invoking the District Court's general equity powers in Section 10 of the Administrative Procedure Act for the purpose of getting review and setting aside of the certification. The Board moved to dismiss the complaint from the ground that the Court lacked jurisdiction over the subject matter. The District Court found that it has jurisdiction and further found that the Board's interpretation of Section 9 (b) (1) was erroneous, and it then proceeded to set aside the certification and to restrain the Board from holding a new election in a mixed unit without first giving the professionals an opportunity to vote separately on the question as to whether the nonprofessionals should be included. On appeal, the court below affirmed the District Court. The court below found that the union here was not in a position to obtain an adequate review of the certification under the statutory review provisions of the National Labor Relations Act. And in such a situation the Court said, the question as to whether review was available in a District Court turned on whether the representation determination was in the area of the Board's discretion or whether it involved Board application of statutory requirements. And since this case was in the latter category and since the Board has departed from statutory requirements, there was jurisdiction in the -- in the District Court review and -- and grant relief. Now, the question as to whether or not, Board representation determinations are reviewable by independent equity suit in the Federal District Court, was as Mr. Justice Frankfurter mentioned a moment ago, before this Court twice before. It was before the court in AFL against NLRB in 1940 which did not involve an independent equity suit but it involved an attempt to obtain review of a certification under Section 10 (e) and after the National Labor Relations Act in the Courts of Appeals. This Court held that a certification was not a final order for purposes of the statutory review provision and left open the question as to whether or not it could be reviewed by independent equity suit in the District Court. In 1945 in the Inland Empire case, the District Court suit was before this Court. And in that case, the Court found it unnecessary to decide the question because it took the position that it would reach that only if there were a showing that the Board had exceeded statutory requirements and the Court first found that on the situation presented in Inland Empire, there was no substance of the contention that the Board has departed from statutory requirements.
Felix Frankfurter: I -- I joined in that opinion. I never could understand why you have failed to go to the merits in order to decide whether it has jurisdiction.
Norton J. Come: Well, I think Your Honor is in company with a lot of other people who have commented on the Inland Empire case subsequently. In any event, we think that we're here with the situation that has twice been reserved. And insofar as material, we think that there have been no changes made in the National Labor Relations Act with the Taft-Hartley amendments to change the situation of what it was under the -- under the Wagner Act. Indeed, as I will point out in a moment, we think that our position that Congress has deliberately precluded, District Court review has been affirmed and strengthened by the Taft-Hartley amendments. First of all, I would like to start with the scheme of the act.
Speaker: Yes. You're arguing this on the premise I take it, that the Board, doing what it did, did not comply with the statutes.
Norton J. Come: Well, we are not --
Speaker: You are arguing on that premise?
Norton J. Come: Yes. We are not challenging the finding of the court below that our interpretation of 9 (b) (1) is erroneous. We believed that there is rational support work but we're up here not challenging that finding. Now, Section 10 (e) in apt as I indicated a moment ago --
Felix Frankfurter: But you're -- but you're not thereby implying this is a ruthless or -- or a malevolent or what's usually called as wholly indispensably arbitrary action on the part of the Board.
Norton J. Come: And --
Felix Frankfurter: You denied certainly obvious rights just before this that will -- what about --
Norton J. Come: No, Your Honor we are not, and with the last part of our brief, is -- is directed to a showing in -- in that direction. If there was error, it was honest error. We think that there was -- there was room for a difference of opinion. This provision isn't as clear. And it doesn't leave as much room as many of the others do but we do think that there was room for an honest difference of interpretation.
William J. Brennan, Jr.: And there are your words and I gather that you can't be reviewed in respect to that determination. This can't be reviewed this way, I gather again.
Norton J. Come: Well --
William J. Brennan, Jr.: Or are you. Suppose -- suppose this went into a -- an unfair labor practice proceeding of the issue. We're raising that? Can't your interpretation of statute be reviewed?
Norton J. Come: It can be for an unfair labor practice proceeding. The difficulty is, that the union is usually in a position where it cannot raise it through an unfair labor practice proceeding. Now, this union could conceivably raise it in an unfair labor practice proceeding. But the court below thought that, that possibility was so remote that it could not be regarded as -- as an adequate avenue of review.
William J. Brennan, Jr.: They would require the employer claiming with you and refusing to require you to exercise -- or rather refusing to deal with matters relating to the nine when you're supposed to represent them in some ways creating the employer unfair labor practice.
Norton J. Come: Well, you could actually in this case create a union unfair labor practice. As we point out in -- in our brief here, Section 8 (b) (3) of the Act requires a union to bargain just as Section 8 (a) (5) requires an employer to bargain. Now, the union here conceivably could refuse to bargain in the unit certified by the Board which includes these nine nonprofessionals. That would open the union -- open -- open it to an 8 (b) (3) charge which would either have to be filed by the employer or by the nine nonprofessionals. You get an unfair labor of practice order against the union and then they're up into the Court of Appeals. As I say, the court below found that that was too remote to provide an adequate remedy. And in the usual situation in which this comes up where you have the union that does not get certified, complain about the Board action in the representation case, it's very difficult for that union to get into an unfair labor practice.
William J. Brennan, Jr.: Well are -- are you saying to us, Mr. Come, that perhaps the practical matter of your interpretation of the statutes cannot have judicial review even if it -- even --
Norton J. Come: Yes, Your Honor. I am -- I am saying that. I'm saying that that is a matter of deliberate choice on the part of Congress --
William J. Brennan, Jr.: Yes, I'm thinking that.
Norton J. Come: Yes.
William J. Brennan, Jr.: I'm --
Norton J. Come: Yes. The facts --
William J. Brennan, Jr.: -- to the other facts.
Norton J. Come: Yes. I --
William J. Brennan, Jr.: That is, we can review it here. We can't just probably haven't got the opportunity.
Norton J. Come: Unless this route that I explained through the unfair labor of practice procedure is an alternative and it is not an alternative in the -- in the usual case. It happens to be here because this union was -- was recertified. Usually, the union that's complaining is the one that was denied the certification --
Hugo L. Black: Suppose the union was permitted that unfair labor of practice use to bargain and then the employees could go right ahead and bargain with the members individually.
Norton J. Come: Well, that is true and that's one of the reasons why the court below felt that the employer probably would not be under much incentive to file an unfair labor of practice charge against the union. However, you do have the nine non --
Hugo L. Black: Well, even if he tried -- he could still bargain to them individually that the union is trying to address them.
Norton J. Come: Well that raises an interesting question where -- where the union has -- has been certified as the bargaining agent, I -- I doubt whether the employer would -- would be free to --
Hugo L. Black: Well, if he refuse -- if the union refuses to bargain, why wouldn't it?
Norton J. Come: Well, it might if the -- if the --
Hugo L. Black: (Inaudible)
Norton J. Come: It -- it might very well --
Hugo L. Black: It might not. You may if you're right on that.
Norton J. Come: Yes. Well, I'm -- I'm not too clear on that Your Honor.
Hugo L. Black: I'm just curious.
Norton J. Come: Yes.
Hugo L. Black: But you thought of that.
Norton J. Come: Well --
Felix Frankfurter: Do I understand that if the question came up on the merits, the Board now tells us it would not urge officials and allow them -- and allow them judgment to it?
Norton J. Come: No. And I -- I don't -- I don't wish to --
Felix Frankfurter: Well --
Norton J. Come: -- convey that motion.
Felix Frankfurter: Well, I want to get back to it but therefore, the confessions are on the basis if this is on the merits, you'll have no case, I don't understand.
Norton J. Come: Well, I was very --
Felix Frankfurter: But the whole thing is -- is tried out, and mind you that what I -- what -- and what I feel like I don't understand how we first come to the merits and help decide whether he can bring up the question of jurisdiction. That merely makes you stand on my (Inaudible)
Norton J. Come: I was answering Justice Brennan's specific question that if you look merely at the literal language of -- of 9 (b) (1), it would not support the Board's interpretation. However, we all know that interpreting a statute, you're not -- sometimes you really misconstrue it if you stop only at the -- at the --
Felix Frankfurter: On the 8 (a) statue but this is the particular statute.
Norton J. Come: Yes, Your Honor. Yes Your Honor. So that -- as a matter of statutory interpretation including the purpose as why in the picture, we do have a case on the -- on the interpretation and I --
Felix Frankfurter: Because if you had flagrant case, if you had a case about which the Commission couldn't -- the Board couldn't say that this was an allowable judgment with reference to the industrial subject matter, then you would have a great difficulty, I think to say -- in saying it's wrong but it's not moot, although what is called arbitrary.
Norton J. Come: Well, you'd -- you'd get the kind of a basic unfairness that --
Felix Frankfurter: Yes, which is a different problem in that is not this case.
Norton J. Come: That is neither your --
Hugo L. Black: Well, are you going to argue that that's not this case? I'd like to hear you. I have some question about it in my own mind but the statute seems to be pretty plain. I'd like to know why you think there is justification while interpreting the statute in that way. That's for myself.
Norton J. Come: Yes. Well, I thought that I had indicated that the legislative history of this provision indicates as we read it and we have set it forth in our brief. That it was put in to strike at a very specific practice of the Board under the Wagner Act. And that specific practice which was mentioned was putting a small hope of professional employees into a big clerical or salaried employees unit. And that had the effect of submerging the professionals so that in an election, whatever their wishes, they were overwritten by the clerical and -- and salaried employees. Now, -- and the -- and Committee reports in explaining why 9 (b) (1) was put in said that it was put in to strike at this practice. Now, there's nothing in there to indicate that they wanted to cover what the Board regards as the different situation that you have here where the professionals are the predominant element in the unit. That's only a case of putting in a few nonprofessionals who are most closely related to the professionals although they're not technically professional employees.
Earl Warren: Well, Mr. Come, can I ask you this question now?
Norton J. Come: Yes, Your Honor.
Earl Warren: Suppose Justice Brennan were to you ask you again the precise question that he asked you at the outset.
Norton J. Come: Yes, Your Honor.
Earl Warren: Could your answer be the same?
Norton J. Come: Well, as I understand his -- his question, it was -- what we --
Earl Warren: We seem to understand it then, it was rather specific I thought and rather short. And I just like to know if you would answer the same or if you're going to -- because if you do answer it the same, we've got one thing to look at. If you're going to answer it differently, you're going to get away from your answer, then we have to look at the whole situation differently. Now, which is it? Do you or don't you --
Norton J. Come: If --
Earl Warren: I wanted to say --
Norton J. Come: If I may, I would like to answer it this way, I think it's the same way. I would like -- I would like to say that based on the literal language of 9 (b) (1), I don't think that we have a case. However, the interpretation of 9 (b) (1) must take into account not only the literal language but the purpose of the provision. And if you take that into account, then we do have a case on the statutory interpretation.
Potter Stewart: But as administrative matters, it's the first time that 9 (b) (1) has been interpreted this way by the Board?
Norton J. Come: No, it is not. The Board interpreted it this way. About the first week or so after the provision was -- was enacted in the -- these cases set forth in our brief. The Continental Motors case, early in -- in 1947 after the amendments were enacted. Shortly thereafter, Chairman Herzog of the Board was referring before the Joint Committee which was the watchdog set up here to supervise the administration of the Act. And one of the things that -- among others that was discussed with the Joint Committee was this Continental Motors case in which Chairman Herzog had explained what they had done. The Joint Committee could not indicate any critical reaction to that and consistently, since Continental Motors, since 1947, the Board has interpreted 9 (b) (1) this way. And this is the -- the first court challenge of those interpretation. And all those cases are collected --
Felix Frankfurter: In short -- in short, the Board does not come here admitting a statutorily erroneous interpretation. That challenging the Act's question of reviewability of a -- of the certification here, questions -- reviewing certification jurisdiction. But it comes here with the officers'contention, namely that it gave an interpretation on which it administratively said that apart from that question, it's says as a matter of statutory constructions has no power to the District Court to review certification, isn't that a correct statement of the Board?
Norton J. Come: I think it's correct with -- with this qualification. I want to point out to the Court that we did not in our -- either in the Court of Appeals, or in our statement of questions presented to this Court in applying for the writ, contest the finding of the District Court that we had aired in --
Felix Frankfurter: That's --
Norton J. Come: -- construing --
Felix Frankfurter: That's because you make no distinction between erroneous and non-erroneous.
Norton J. Come: That is correct Your Honor.
Felix Frankfurter: But we do not reserve a case in which we say, "The record in this case admits an erroneous construction, nevertheless." Is that right?
Norton J. Come: That is correct.
Felix Frankfurter: All right.
Norton J. Come: Now, the point that I would like to -- to close on is that the provisions of the National Labor Relations Act itself provides for a review of certification in only one situation. And that becomes the basis for an unfair labor practice order and that is up to the Court of Appeals. Now, the legislative history of that provision indicates that Congress did so deliberately because it was afraid that permitting a board of review of representation and determinations would leave the door open for dilatory tactics in representation cases. It was quite a history of that under public revolution in 1944 which set out the predecessor board and Congress wanted to avoid that in the Wagner Act. If we considered the question twice since then, primarily because the union said 9 (d) doesn't give us an adequate opportunity to get any review here. In 1939, the AFL sought to get Congress to enlarge the scope of review for that reason. It was rejected for this reason. And in Taft-Hartley, the House had a provision in that would have permitted direct review of certifications for the reason that 9 (d) wasn't fair to labor organizations who award him a position as utilized in 9 (d) procedure. And 9 (d) wasn't even fair to the employer or had it technically violate the Act in order to get review. The Senate bill kept 9 (d) as it was and in conference, that was -- the House provision was rejected and Senator Taft says the reason the House exceeded was that they were -- they abridge that putting -- permitting any board of review or representation determinations would provide for salutatory tactics in representation cases. So that we say we have here a situation where Congress knew full well that there would be situations where you couldn't -- and a union might not be able to get a review of Board action in a representation case. But balancing the harm of those cases against the greater nature of really following up the collective bargaining process by permitting unions to run into the District Courts and get review of representation determination. Congress concluded that on balance, it was not going to go any further than 9 (d). And we say that Congress -- this is an area where Congress is entitled to stop with the administrative determination just as this Court found in the Switchmen's case involving the National Mediation Board, it could likewise do. It held there that the scheme of that Act was such as to indicate an intention to stop with the administrative determination, even where questions of law were involved. And we think that we are like Switchmen's, and even a fortiori because of the specific history here that shows that Congress did this deliberately. That scheme had to be implied in Switchmen's, and here, we have direct evidence that Congress intended to go no further. And I might say --
Felix Frankfurter: Suppose that -- suppose one starts with the general attitude that judicial review as the rules in denial of the exception. Suppose one step with that emphasis. Where was -- where would one end up in that case?
Norton J. Come: I think that one would end up still with the Board's position because even starting with that position, it is also cruel that Congress at least in these areas of administrator of -- administrator of -- of the new rights that are -- that are -- that it creates in a statute such as this, could shut off judicial review. And the only question is whether it has clearly manifested its intent. And we submit that if this isn't the clear manifestation, it would be difficult to find a clearer one.
Earl Warren: Mr. Silver.
Jonas Silver: Mr. Chief Justice, may I please the Court. The Board makes a distinction here between exceeding the Act on one hand and exceeding the Act exceedingly on the other. We believe that when Congress wrote Section 9 (b) (1), there was a mechanism which it devised to implement the right of professional employees to choose their own bargaining unit. The Congress prescribed only one rule, a simple command. It said to the Board, "Regardless of ratios, regardless of whether there'd be only nine professional employees in the bargaining unit, that is of no consequence. We do not set this self-determination process up in terms of whether you are -- you or the professional employees are a minority or a majority of the proposed commingling group. We say that in all cases, the Board is to conduct this kind of election. That before the Board may declare a unit appropriate which combines professional and nonprofessional employees it must consult the professional employees. It is their wish which is to prevail. Now, not only is the provision of the Act -- and I'd be one perfectly clear on that regard and not susceptible, therefore resort to the legislative history but we think that the whole treatment that Congress gave the professional employees requires that they'd be -- be permitted to enjoy to the full the right of self-determination of their bargaining unit and that when the Board denied them this right, in this case although they were only -- although they were only nine nonprofessional employees involved it's exceeded the statute. And the reason is this. Congress did not posit the right of the professional employee to a -- to a unit of exclusively professional employees upon a game of numbers. In section 212, Congress set up a most carefully defined definition of what is a professional employee. Professional employee must be engaged in work which is intellectual in nature, must be consistently so, it must require discretion and judgment, it must be of an output that cannot be standardized and it must require the application of advanced knowledge which is written under the fashion to make that malice tantamount to a -- a degree or in the absence there of the equivalent experience. Now, having given so much attention and having carefully distinguished the peculiar professional interests of these types of employees, the Congress then said, "You are different and we want you, not the Board, in all cases to tell the Board whether you would like to be commingled with a qualitatively inferior group." This is a question of quality. It is not a question of quantity. Moreover, in other cases, where the Board has applied the so-called "predominantly professional notion," that where there are a majority of professional employees, it will not permit a self determination of the election, the number has gone to quite a degree in excess of the 4% or 5% of the proposed bargaining unit that exist in this case. The number indeed has gone as high as 31%. Now, when professional employees bargain, they bargain on a different basis from nonprofessional employees. The interest of professional employees are different. Their interest in salary scales stop with the junior engineer, not with the nonprofessional technical aide or assistant. Their -- and their upgrading plants are entirely different from those of the nonprofessional employees. They have in their agreements provisions for scholarship funds on the part of the employer. They have provisions for leave of absence to undertake extensive schooling. They also had provisions protecting their interests in patents and discoveries. So we think that it makes perfect sense for the Congress to have written as it did the statute in this claim and readily applicable fashion. All the Board has to do then is to be referred to the interest of the professional employees. Now, it might result -- well, the Board to commingle, professional or nonprofessional employees. Whether professionals are in a majority, it might result that this one voting route inclusive of -- of a handful of nonprofessionals could change the outcome for the election. For example, a professional group which -- as a professional group would have a majority of professional employees and would vote for the union and wishing to represent the professional employees in the exclusive bargaining unit. It's infiltrated by a number of nonprofessional employees, and that might be just handful, but that number added to -- added to the minority of professional employees that is, the minority would be the minority if they were voting separately as a professional group, would choke the balance in favor of the union that wish to represent the employees in a commingle group. So however you look at it, the provision in 9 (b) (1) makes sense and its literal applications make sense. Now, it has been suggested that maybe there is remedy under section 8 (b) (3), a statutory remedy. And that conceivably, the employer might file a charge of unfair labor practice against the union for not bargaining in the unit as certified. Well, we believe that the employer here has certainly not agreed by the Board's conclusion. In fact, the record of the case, and the Board recites it in -- the decision indicates that the employer favored the inclusion of nonprofessional employees. So the employer was perfectly content. This was the bargaining unit the employer wanted. It had no reason to arrange or even of its own volition to contest in some way this issue so that it might arise in the course of statutory -- of the statutory mode of review. The employer was perfectly satisfied to just sit back and wait the action of the union. If the union did not wish to pursue with legal rights, the employer would then be free to resume the individual contract of hire that the employer had before. It's quite different from the situation where an employer was agreed by a bargaining unit finding, refuses to bargain and the union as the moving party, the party that decides to upset, but in -- in a permissible fashion the status quo has by virtue of that interest, the compulsion to go ahead and file a charge in order to realize the -- the value in terms of the represented -- representation interest of the employees involved, but that was not the situation here. So we say that the remedy under the statute is completely speculative, completely inadequate. And therefore, we believe that a remedy which is inadequate can hardly be termed compulsory. So that we come to the issue of whether the general power of the courts to restrain Board action or agency action in excess of authority has in some fashion, been taken away by the statutory mode of review under the Taft-Hartley Act.
Speaker: I understood the Government to concede that there was in the practical matter no review that this jurisdiction was not permissible. I understood the Government to concede your point on that.
Jonas Silver: Well, I -- wasn't --
Speaker: And agree with the Court of Appeals -- Court of Appeals on it.
Jonas Silver: That there was some doubt in my mind and I -- I wanted to make sure that there was no lingering doubt on the Court's mind.
Speaker: Well, I repeated it because I wanted to make sure I understood you.
Earl Warren: Well now, would you -- would you state your point again to see if we all -- all understand what has been agreed to and what hasn't, I'm not so sure. I would say it hasn't been but I'd just like to have you state it again.
Jonas Silver: Well, it -- it has been a -- my version of -- of the agreement is that there is no -- it's conceded that there is no adequate remedy of law. It is also conceded and there -- there can't be any doubt about this that the Board did not contest the issue on the merits in the Court of Appeals and in effect therefore, is bound by the District Court's determination. Now, the fact that the Board says that maybe there was a reasonable approach that was used in its construction of -- of Section 9 (b) (1), we say it is completely irrelevant.
Earl Warren: Well now, are we agreed on that. Is -- is that your position, counsel? If there's any doubt about it, I suggest that you go ahead and make your point, counsel. [Laughs] I believe it's too (Voice Overlap) --
Felix Frankfurter: If I -- if I understand it, as I understand Mr. Come, he agreed that on this record as a practical thing, there is no mode of reviewing this to an unfair labor practice.
Jonas Silver: Yes, Your Honor.
Felix Frankfurter: Is that right? Therefore, for practical purposes on this -- in this situation, although they did not concede that there was an error -- that they had violated the statute, 9 (b) (1), is it?
Jonas Silver: 9 (b) (1), yes, Your Honor.
Felix Frankfurter: They did not concede that. They agreed as the practicality, Justice Harlan said, "You couldn't raise this if you can't raise it by a direct review." That's the Government's position, is that right? And you don't see --
Jonas Silver: Well --
Felix Frankfurter: -- you're not thinking of constitutional question, are you, Mr. Silver?
Jonas Silver: No, sir. We are not.
Felix Frankfurter: It's merely a question of construing the statute whether there's -- of review this particular certification including the nonprofessional.
Jonas Silver: Yes -- yes Your Honor.
Earl Warren: Well, do you suggest --
Jonas Silver: I -- just one point, I want to make a claim that --
Earl Warren: Do you suggest, Mr. Silver that you argue your case, there -- there apparently, there obviously is an agreement --
Jonas Silver: Agreement. Yes, I -- I want to make some --
Earl Warren: -- (Voice Overlap) find everybody are understanding, so proceed and argue your case (Voice Overlap).
Jonas Silver: Just one point that we --
Earl Warren: Yes.
Jonas Silver: -- believe the Government conceded on the merits and that there's no question on the merits to the people of the Court. That is as to the interpretation of Section 9 (b) (1) whether the Board was right or wrong, and the Board was wrong, that's -- that's quite another matter, although related to the question of whether original jurisdiction exists.
Hugo L. Black: What do you say about the argument that the Board has been construing the statute in this way for a number of years?
Jonas Silver: Well, I -- I recited, Mr. Justice Black that error compounded doesn't absolve error unless this statute were to have some intrinsic aspects which require the expertise of administrative agency to apply and understand, then there -- there should be no significance attached to the continued interpretation of what --
Hugo L. Black: What they argue -- what they argue --
Jonas Silver: -- of -- of Section 9 (b) (1).
Hugo L. Black: What they argue is that was decided sometime ago in the Continental Motors decision that the statute did not bar them from allowing a small percentage of nonprofessionals to go in and that that was reported to the Congress.
Jonas Silver: Yes.
Hugo L. Black: What do you say to that?
Jonas Silver: Yes, sir. Mr. Justice Black, that was reported to the Congress through the Joint Committee by way of testimony of the former chairman, Mr. Herzog, and also contained in certain annual reports. But the Congress never addressed itself to any revision of Section 9 (b) (1) or the professional definition of Section 212 and --
Hugo L. Black: For bringing how long -- how long was that -- has it been since the Board first decided that and reported it.
Jonas Silver: We'll have to go back to about the -- with almost that at the inception of the Taft-Hartley Act in 1947, 1948, and 1949.
Hugo L. Black: But what do you --
Felix Frankfurter: Pardon me.
Hugo L. Black: -- what do say to the argument they make that having reported it to Congress that the -- to a certain extent --
Jonas Silver: Well, I say --
Hugo L. Black: -- that it'll be construed as a being a reasonable interpretation or they would have changed it.
Jonas Silver: I -- I say that if -- if that be so, then it would appear that almost any testimony with agency official before Committee of Congress or any inclusion in an annual report which remains for a certain period of time, thereby in effect becomes a gloss on the statute, an acceptable almost amendment of the statute.
Hugo L. Black: An administrative interpretation.
Jonas Silver: An administrative interpretation which has the force of law merely because the Congress did nothing and didn't even consider the problem as such. All you have is just to report to Congress in the annual reports in a statement before a congressional committee. But Congress never evinced but it --
Hugo L. Black: You did more than that, do you not, as I understand you -- what you say. You have a law, seven or eight years or more, 10 years practically as I understand you of continued administrative interpretation that this statute doesn't mean what it would seem to mean plainly on its face. If you just can't do that at all but that you can use judgment --
Jonas Silver: Yes
Hugo L. Black: -- administration and letting a few (Inaudible).
Jonas Silver: Well, we say, number one, that there's no room for that kind of administrative interpretation whether it was basically wrong. There simply is no latitude for the Board here, it must apply the statute as written. And number two, that the reports -- and therefore, that the Board is in error and always has been in error in its interpretation of the statute because it's -- it's a plain command. It doesn't give any alternative. It says that in any case where the Board proposes to commingle professional and nonprofessional employees, it shall be on both hands. Now, therefore, though the Board may have been infused with this idea of predominantly professional because it has some ease in -- in an administration, we don't have that separate ballots and we don't have to go through the process of separating the wheat from the chaff, the Board was wrong in taking this view from the start because as the Chairman himself indicated that this was less than 100% good law and then maybe its held between 50% and 100% good law.
Hugo L. Black: So he indicated how and where.Have you referred to that in your brief?
Jonas Silver: Yes. That's -- that's referred to in our brief at page 11, Footnote 3, where Chairman Herzog replied to the Board's administrative practice of giving only partial effect to Section 9 (b) (1) of less than “100% good law". I think it was more than 50% good law and extremely good administrative practice. It seem to us, the intent of Congress was to give professionals a chance to get out of nonprofessional units and that would give the few nonprofessionals a chance to finding -- tangle things up for professionals. I think that was the basic reason for the decision.
Felix Frankfurter: I think I -- I understand your first point. That is, there is no amount of administrative practice can amend the statute, that's your point. But I would like to know and I'm not yet clear of your answer to Justice Black whether you agree, as I assume you do, that in fact, the Board gave that construction very early. In fact, it was reported to the Congress. In fact, the Congress did nothing about it and the Board continued to -- to enter what you would recall reflective interpretation. Is that correct?
Jonas Silver: That's correct.
Felix Frankfurter: Well --
Jonas Silver: But I -- I say this that I don't draw any conclusion that thereby, the Congress --
Felix Frankfurter: Well, that -- I'm not talking -- I just want to know what the facts are. As I summarizes that --
Jonas Silver: And -- and the fact is that Congress never sought to, in one way or the other, alter or might apply a treatment.
Felix Frankfurter: The Board has been continuous. It was clear about -- that this is candid and this has been instructed. Is that right?
Jonas Silver: For whatever it's worth, yes. I mean, in terms of value.
Felix Frankfurter: You're not making any concessional law, I quite agree. I --
William J. Brennan, Jr.: One more fact, Mr. Silver, if this appears anywhere. How many instances that the Board commingled?
Jonas Silver: Well, I assume, Justice Brennan, you mean this predominantly professional notion --
William J. Brennan, Jr.: Where they intermingled --
Jonas Silver: Yes.
William J. Brennan, Jr.: -- as they have here.
Jonas Silver: We haven't attempted to tally all such instances but we have given a fair representation of such instances at page 11 of the brief in Footnote 4 and indicated that -- that the figure has gone as high as commingling nonprofessional employees to the extent of 31% of the total number of employees in the bargaining unit. The case has listed in the percentage of commingling of nonprofessional employees without the vote of 9 (b) (1).
Felix Frankfurter: I understood Justice Brennan's question was not the percentage of the professional and nonprofessional but the number of instances in which they commingled.
Jonas Silver: Yes. I was -- and this list of the instances of cases is not by any means --
Felix Frankfurter: Exhausted.
Jonas Silver: Exhausted.
Felix Frankfurter: All right.
Jonas Silver: We -- we didn't attempt to present an exhaust --
William J. Brennan, Jr.: (Voice Overlap) --
Jonas Silver: They're -- they're considerable other -- considerable number of --
William J. Brennan, Jr.: From the prior periods from Volume 80 to Volume 107.
Jonas Silver: Yes. But again, it -- it was not meant to be an exhaustive treatment --
William J. Brennan, Jr.: Yes.
Jonas Silver: -- and simply an -- an illustrative. Now, the question on -- with regard to jurisdiction is, there is a general power in the courts to restrain actions of agencies in excess of statutory authority that basic power has existed for a considerable period of time that goes back almost to the founding of the constitutional system of Government. And it has been enunciated most recently in the cases of the Court of the Harmon case and the -- perhaps distinguishing but related Panama Canal case. Now, the propositions there are, that if the question involves discretion on expertise and it requires that the agency make constructions from loose and general language, then the agency will be permitted to exercise its authority to the hilt in that regard. This was a function Congress entrusted to the agency. But if the duty involved is simply one of carrying out a plain statutory command, and if the agency exceeds the limits of its authority in carrying out that command or it fails to carry out that command then a party injured by that failure deprived of the statutory right in this case may obtain relief from the Court in the form of a mandatory injunction.
Speaker: Have you any question in your mind that Congress was chosen to do so but it expressly cut off any judicial review?
Jonas Silver: Say for -- I think the -- the law there would be as I understand, let's say for constitutional issues --
Speaker: Well, no --
Jonas Silver: Congress would have that authority.
Speaker: -- (Voice Overlap) or reservation but could they have specifically provided here that there would be no judicial review.
Jonas Silver: They could have specifically provided here.
Speaker: Well, the only question is one with how or whether they intended to that or whether they didn't.
Jonas Silver: Yes. And our view is that in this type of problem, the Congress did not intend to do that. This type of problem meaning, that the Board has simply to follow out the mandate of the statute. When it refuses to conduct an election as it did in this case, it has thereby conducted itself outside the scope of law. It has denied to the professional employees their right under the statute to themselves determine whether they wish to be commingled. Therefore, it seems to us that there is a power in the Court to compel the Board to adhere to the statutory command. Now, we believe that the legislative history here is concerned entirely with the area of expertise and discretion and the competence of administrative body to handle at least in the -- in -- in the stages of the representation determination, the types of problems that arise in that context.
Felix Frankfurter: What do you mean would you agree or disagree that as this case illustrates that almost any question can give rise to the controversy where there is expertise or whether it is obligatory?
Jonas Silver: Well, I could -- let me -- let me answer you with -- in this fashion, Mr. Justice Frankfurter. It is said that every active administrates -- administrative agency is an act of construction. However, we --
Felix Frankfurter: (Voice Overlap) that's quite to say that but I --
Jonas Silver: Well, we believe that there was -- if there was ever no act of construction possible when the Board had only to translate the mandate of Congress into action, it's here in Section 9 (b) (1).
Felix Frankfurter: And your argument is restricted to those cases that --
Jonas Silver: Our argument is restricted to that type of case.
Felix Frankfurter: For in each case, the Court will have to decide whether it is one of those things before a grant for the union. Isn't that so?
Jonas Silver: Unless there'd be some device that I'm not aware of at this point and that's almost inevitable.
Felix Frankfurter: Yes, but I --
Jonas Silver: Now, there was one underlying intent that Congress had. It spoke in 1935, in 1937, in 1947 of one purpose. It referred to the denial of amendments of the rejected amendments which would have permitted direct judicial review in each of these stages of enactment of the Wagner Act and going on to the Taft-Hartley Act. It referred to its desire to avoid dilatory tactics which would frustrate collective bargaining. Now, we think that in this type of problem where the Board has only to translate the command of Congress which was in unalterably in one way that there can't be any question about frustrating collective bargaining through the kind of jurisdiction, and the order granted by the District Court in this proceeding because there could be only one way of carrying out the will of Congress, namely, for the Board to translate into action what Section 9 (b) (1) requires the Board to do. Here, the -- the Congress did not leave it up to the Board to choose as to which would be an appropriate unit. It let the Board go to a certain point, proposed a commingling and then said, "You, the professional employees make the final decisions." So we don't think that it can be said that though we maybe in effect causing delay that our delay in the administrative process is a dilatory type of delay. Rather, our delay is a necessary kind of delay to bring the Board which has erred here into conformity with the statute. Now, the amendment proposed in 1947, the House Bill would have permitted review in the Court of Appeals for the certification on the basis of the substantial evidence rule. There again, we believe, Congress was considering the proposition of whether the Board or the Courts should go into findings within the administrative discretion of the Board namely to determine whether the finding had any basis in evidence in its natural basis in evidence. This was not the type of review that the Court exercised in this proceeding in carrying out its equity powers. Here, the only consideration involved is, has the Board gone beyond statutory powers not is there substantial evidence in support for the Board's finding which it has made within the scope of its powers. Now, Switchmen's case, we believe, is distinguishable from the present proceeding. In that -- in Switchmen's, the Mediation Board have the authority to determine what is a craft or class. This was a power given to the Mediation Board. The fact that it reached a decision that the system-wide unit was the appropriate unit rather than the division-wide unit by not weighing the alternative of a division-wide unit but rapidly getting through a conclusion of law that only one type of unit was permissible, namely, a -- a railroad-wide or system-wide unit was a power which the Mediation Board had to exercise. It fell within the definition of craft or class. It was a type of problem that the Congress meant the Mediation Board to be exclusively concerned with and did not intend to implicate judiciary. Now here, the Board has only one conclusion to reach, one perhaps to follow. It didn't matter in Switchmen's that's -- that the Mediation Board reached the conclusion it did in -- in a way which did not take into consideration an alternative appropriate unit but was based entirely on the statutory construction. That was the power that the Mediation Board had. Here, there is no question of statutory construction. There was only one direction which the Board, we believe, must take and which the equity court properly ordered it to take. The alternative that we feel, would be to, in effect, sanction at least a partial repeal of statutory proviso, a limitary power, a -- a power of limitation on the Board's authority by administrative by at. So that, in essence what we are saying is that the principle of supremacy of law demands that the Board be brought back to the command which Congress laid down in the Act and only that way will the representation rights of the professional employees to be in a separate bargaining unit if they so desire be realized.


Warren E. Burger: We will resume arguments in Pasadena City Board against Spangler. Mr. Solicitor General.
Robert H. Bork: Mr. Chief Justice and may it please the Court. Yesterday when I quoted from the Swann opinion, I was saying what that opinion says on pages 24 and 25. The District Court there had imposed a numerical equitable remedy, percentage of the races. This Court said that a numerical mixing of the races was not a substantive constitutional right, but in an equitable decree it was a satisfactory starting place.
William H. Rehnquist: General Bork, perhaps you are about to reach it now. If you are not, just some time during your argument, would you address yourself to the question of whether the no majority of any minority provision of the 1970 decree entered by the District Court in this case contemplated annual changes in pupil assignment, solely by reason of demographic changes and if it did, is it consistent with Swann?
Robert H. Bork: I think it did Mr. Justice Rehnquist. I think it is inconsistent with Swann. I think it was an invalid order to that extent, but I think it was an order that the petitioners here were required to obey unless they got it modified and let me straighten one thing out if I may.
Lewis F. Powell, Jr.: Solicitor General, when you are addressing that same question, would you bear in mind my question and that is what order is in effect today with respect to racial balance? I am asking myself what I would do if I were a member of the School Board in Pasadena?
Robert H. Bork: Well, what I would do Mr. Justice Powell, were I the member of the School Board, is going to the District Court now and say we have done one more reassignment just as Chief Justice Chambers’ opinion said which I think is the opinion that represents the consensus or the only majority that could have been formed on that Court. We have done one more reassignment. We now ought to be released from the decree and it is our position. It is the position of United States that that is probably true if there are no more serious violations. If there is no lingering effect of the de jure segregation as proven to exist, they should be released from the decree. But in this case, we are discussing the 1974 situation and in 1974, these petitioners when they came in made no effort to deal with any lingering effects, not even discussed them schools citing capacity decisions and moreover, I should say this --
William H. Rehnquist: Why would they at least entitle under your view to have them no majority of any minority provision strict if it were invalid?
Robert H. Bork: Oh! I think they were and --
William H. Rehnquist: Then the Court of Appeals was wrong in simply affirming the District Court here, was it not?
Robert H. Bork: I think not. I think the opinions of the Court of Appeals clearly modify that District Court Order considerably and I think I have done everything that the petitioners have a right to complain about. Let me make this point Mr. Justice Rehnquist. These petitioners were in violation of that decree. Phil Neal said yesterday that nobody supposed that this decree required annual redistricting. The United States did not suppose that, but it is clear that besides the judge, the one other party to this case that understood that was this School Board because if you look at their notice of motion to modify the decree on page 233 of the appendix, they come in and seek modification on the grounds that they are having trouble complying by annual redistricting. That is under (1) and if you look at the affidavit on 234, a Raymond Cortines who was a superintendent of the schools at 235 and 236, he says, demographic changes are making it difficult for them to keep up, to keep complying. If you look at that affidavit of Henry Marquezque (ph) on 237 who was then the President of the Pasadena City Board of Education, he says that, it has become practical impossibility to continue to comply with the portion that judgment of this Court which required that there be no School District having majority of any minority. The School Board understood that they were under an annual obligation. That obligation I believe to be invalid, but they had not been changed and they were violating it. They knew they were violating it.
Byron R. White: Mr. Solicitor General (inaudible)?
Robert H. Bork: I think they were not and I think the Court of Appeals so modified it Mr. Justice White.
Byron R. White: Except they said it had to be one more time?
Robert H. Bork: They said one more time, you have been -- I think that is justified for this.
Byron R. White: (Inaudible) because of demographic change, is it valid that it will not be invalid for one more year?
Robert H. Bork: No, no it is not because of demographic change Mr. Justice White. I think the problem here is that they were out of compliance which indicated an attitude I think towards this which the Court of Appeals was allowed to take into effect. Furthermore --
Byron R. White: Where they ever in compliance?
Robert H. Bork: The first year. The first time they did it.
Byron R. White: Why did they make a change in that matter?
Robert H. Bork: Because Mr. Justice White, they were under an order which they could have gotten rid of by appealing, but they did not appeal.
Byron R. White: I see. It is an invalid order.
Robert H. Bork: It is like United Mine Workers case or like any of those cases which --
Byron R. White: (Inaudible)
Robert H. Bork: Well, they got it modified now, that is quite correct, but they were under an obligation to obey it as long as it stood in effect. And furthermore, the other thing about this case is that the kinds of de jure violation shown in 1970 by the kinds that have lingering effect: school citing school capacity decisions, the racial identifiability of schools, they did not even address those problems in their motion for modification and I think the Court of Appeals would be quite right in saying, we want to see those things addressed before we say drop the order altogether. I think now that they -- we are told here that they have complied since 1974 and they have done it again. That is all the Court of Appeals requires them. I think if they go back at this time, they probably be entitled to removal of the order. But in 1974, the Court of Appeals was not required as a matter of law to tell them that the District Court Order has to be lifted in its entirety. That is our entire position, a very narrow position. Now, a good deal of what is happening here I think is really an objection to a heavy busing order and that is not really the issue before this Court. The United States thinks it is an inappropriate case. The proper scope of initial remedies in cases such as this ought to be reexamined. It is our position of proper function of a remedy in this area is like it is in any other area. It is an attempt to put matters where they would have been if the violation had never occurred. Now, if that is true, if we rethink the problem and it comes out that way, then it is properly true that large scale busing orders indefinitely continued designed to produce a racial mix such as this one are probably beyond the proper scope with equitable remedy. But I do not think this is the case to re-examine, although that is part of underlying pressure in this case.
Warren E. Burger: We say it is much more of the Swann case. Did we not say that if we read the order of the District Judge as requiring any particular racial balance we would disapprove then reverse, but then we went on to read his orders otherwise?
Robert H. Bork: That is quite correct Mr. Chief Justice, but I think I am saying something additional. I am suggesting that the scope of an order, the size of Swann scope perhaps ought to be rethought on the theory that it did much more than put matters where they would have been had there been no de jure violation. I am just saying that was not litigated in the Distinct Court or the Court of Appeals and that I think we should remove that element of this case from our minds for that reason, This is not the appropriate case to address that problem. Now, as I say, we have been arguing about what the District Court said, if what the District Court said was still in this case, we would concede that petitioners have a lot of room for well-founded complaint. It is not in this case. Where the Court of Appeals left the case as what we are discussing and I will not claim that there is sparkling clarity there either, but the upshot of those opinions is it is the only position which can gain a majority as Judge Chambers position and we ask this Court to interpret that Court of Appeals' position as we do and sustain the decision of the Court of Appeals on those grounds.
Potter Stewart: Mr. Solicitor General has there been this one additional reassignment?
Robert H. Bork: Yes, there has been as I understand it Mr. Justice Stewart and I think that means that they have complied with the way the Court of Appeals reads the order and I think they are entitled under Judge Chambers' reading of the order to go back now and --
Potter Stewart: I guess it is against them dismissed, do they not?
Robert H. Bork: That is right. I think they now have the case which the, they are now in position to go in and say, the Court should stop active supervision of the school system , but we are discussing 1974 and I --
Potter Stewart: 1970 then 1974?
Robert H. Bork: That is correct. Well, 1970 is not even up here Mr. Justice Stewart, it is only 1974.
Potter Stewart: That is how I understand that background?
Robert H. Bork: That is true.
Byron R. White: Mr. Solicitor what is supposed would happen if the other side won this case? If the reassignment is already been taken place, would it come out any different and if you want it?
Robert H. Bork: Only in a matter of the way the law was read in the future Mr. Justice White.
Byron R. White: This case would not make any difference because the assignment had already, they would not reassign them (Inaudible)?
Robert H. Bork: Well, they might. I think of the judicious supervision is lifted.
Byron R. White: I know it is lifted, but assume the other side wins this case and except where they reassign them?
Robert H. Bork: I think if they win this case in the sense that they are told they are out from under judicial supervision or if they go back to the District Court as we think they should and get judicious provision lifted, they are free to return to a (Voice Overlap) policy.
Byron R. White: Well, in either way they might assign or reassign?
Robert H. Bork: Pardon me.
Byron R. White: Either way, they might then assign or reassign?
Robert H. Bork: That is quite correct.
Byron R. White: So is there any difference in this case as to what might happen as to who might win this case?
Robert H. Bork: I think not Mr. Justice White. The problem is that is why we oppose certiorari in this case, that is why we have been saying this is a very narrow case and indeed that is why we are standing here saying that the real importance of this case is a question of law.
Byron R. White: But you do insist the case is not moot?
Robert H. Bork: The case is not moot.
Byron R. White: That is what you say?
Robert H. Bork: That is quite correct.
Byron R. White: There is a moot issue?
Robert H. Bork: That is quite correct, but the question is whether what the Court of Appeals did on the facts existing as of 1974 was within its power.
Byron R. White: It is not moot because if you win they have to do something to get of?
Robert H. Bork: Do they have to go in or they have -- I assume if it turns out they have been in violation of a valid part of the decree again, they might not get off from under, but I am assuming that they are acting responsibly under the decree as they say they are.
Warren E. Burger: In fact the results, that is not in any record before us now?
Robert H. Bork: That is quite correct Mr. Chief Justice. That is the difficulty. We keep discussing what the District Court said which is no longer in the case. We keep discussing what they have done since 1974 which is not in this case. That is why I say this is a narrow case and as a matter of law, the Court of Appeals was not required completely to remove these petitioners from judicial supervision. And that indeed is our entire case and it is for those reasons that we ask the judgment of the Court of Appeals be affirmed.
Lewis F. Powell, Jr.: Mr. Solicitor General, may I ask you somewhat about general question. Is it the position of the Untied States government now that a school system cannot be desegregated until every school in the entire district meets a certain mathematical racial balance?
Robert H. Bork: Oh! No, not a bit Mr. Justice Powell. We merely said that under existing law which we have prepared to ask to be reexamined in the appropriate case, but under existing law, under Swann, it is appropriate if other factors do not make it too costly, too time consuming, too disruptive to take a school district of this size and start with a percentage figure, as a starting place, but you cannot keep it up. Now, in this case I should stress that the no majority of any minority is a much more flexible rule because there are two minorities here it gives the School Board much more room to maneuver than a decree like Swann did. So if the Swann decree was always a stating place, this one clearly is --
Potter Stewart: There are now three minorities, are they not and no majority?
Robert H. Bork: Well, I am not sure minority is the term of art Mr. Justice Stewart.
Potter Stewart: But they have more than half? The majority meant more than half. Minority means --
Robert H. Bork: If the judge -- there are people who will use minority as a term of art meaning particular identified groups.
Speaker: Even they are majority?
Robert H. Bork: That is correct.
Warren E. Burger: Mr. Okrand.
Fred Okrand: Mr. Chief Justice and may it please the Court. I regret that I had to take issue with my colleague respondent. The plaintiff’s respondent do not view the 1970 decree as being void, the portion of the decree that says the School Board at that time and until further relieve shall have no majority of a minority in any school of the district. I read Swann quite differently. I read Swann to allow just that and that until the School Board has shown that it is a unitary school, a unitary district, it cannot be allowed to be relieved from that requirement. Now, just one assign, the judgment of the Court did not require that there be any particular racial in any particular school. It even allowed Your Honor that there will be all white schools. It was the School Board which decided that they would not have any all white schools. With Mr. Neal eliminating from the case, any question I thought, I thought he did as to the validity of the 1970 decree, with him eliminating from the case, the question of any possible busing problem in the case, I view the case when I left here last night as involving only one question and that is as to whether the trial court abused its discretion in not relieving the School Board completely from judicial control and alternatively for not allowing it to go forward with this alternative plan. I think that that is what this case is all about. And the District Court not only did not abused its discretion in not relieving the board from judicial control, but with due respect have it relieved the board from judicial control, that would have been an abuse of discretion. Let me in a few minutes if I may point out to the Court some of the things that were before the trial court at the time it was asked to relieve the board of a judicial control. Incidentally, I also, before I do that, I want to make clear that the board did not ever, ever ask the Court to relieve it of the no majority of the no minority requirement, ever did they do that. They came into court and they asked to be relieved entirely of judicial control or if not then to be allowed to put in that alternative plan and neither one would be proper as I view the case as this Court has decided. Let me review for a moment what the Court had to consider. Also, although nominally, the School Board is here as a petitioner, this really is a case involving human beings who are charged with the duty of running that school system and its human beings that that judge had to look at and decide whether he would permit them to go free at that time in 1974. Before the Court at that time were these facts. The ink was not even dry on the 1970 judgment of the Court when certain persons, including the architect of the so-called alternative plan started a movement to recall the three members of the board who had the temerity of not appealing the Court’s judgment and who decided to go forward with their efforts to desegregate the School District. These are three members who had just been found guilty of segregating the School system and their slogan in that recall campaign was return to neighborhood schools. Now, return to neighborhood’s schools --
William H. Rehnquist: Mr. Okrand is there anything illegal about making the School Board campaign turn on a decision that members of the community may have thought importance to whether a decision should be appealed or not?
Fred Okrand: Nothing illegal at all Your Honor. It is the genius of our American System that they do that, but they have to be held responsible for what they say and the reason that they say it. When the re-callers have returned to neighborhood schools, this was five months, five months before the Pasadena Plan was even to go into effect. What were they to return to? What they were saying was remain where you were and what they were doing at that time was operating segregated schools. Return to neighborhood schools meant remain in segregated schools. Next, when the architect of the plan was elected to the board the following year, the recall having failed very soon thereafter, he presented a so called alternative plan to the board and what was the cardinal principle of that alternative plan? Get all black schools, the black children were to be encouraged to stay in the black ghetto. Oh! Yes, there will be some encouragement for them to go out of the black ghetto, if they so wanted, if they asked to go out, but the thrust was to keep them in the black community even to have their own separate school, sub-school district.
Potter Stewart: What is the population of Pasadena, about (Inaudible)?
Fred Okrand: I do not know that the school population is about 25 to 28,000. It is a small school district. The whole area is less than about half of the District of Columbia. The whole district from one side to the other is about 6 miles.
Potter Stewart: Is there truly an area that could be fairly described as a black ghetto?
Fred Okrand: Yes, yes, there is indeed, the Northwest portion of it. Let me go on if I may. The next year, there was an effort talking about white flight which the petitioners have talked about. There was an effort for a whole segment of the Pasadena School System to flee from the School District. They asked to be relieved to join another school district adjacent to it which was all white and while the petitioners talk about being concerned with white flight, the architect of the alternative plan voted to allow them to get out to further white flight. That was before the board below. Another plan was presented by the architect the following year. This time he omitted the ghetto black school. After the three -- and then that same year, the three new members subsequently were elected and became the majority of the Board ran on the same platform that had been the re-callers platform, this time return the neighborhood schools. I will live out the majority of stuff for busing. During that campaign, one of the members who was running for election, publicly announced that two of his two school children have been taken out of the Pasadena School District out of the public school because of the school to which they have been assigned, thus demonstrating his feeling about it. And I agree with the Court for the First Circuit in the Morgan versus Corrigan (ph) case in which the Court said white flight is an expression of opposition by individuals in the community to desegregation of the school system. That was before the trial court. Virtually the very first act that was done by this new School Board when they took control was to violate the Pasadena Plan. This Court has said that the assignment of administrators and faculty is one of the most important part of whether or not a school system is segregated or desegregated and what do these School Board members do? They immediately in violation of the Pasadena Plan which was very carefully designed by the former School Board members to make sure that there would not be discrimination in administrative appointment. They appointed five top administrators in complete violation of the plan which is not the main thing. They appointed them without even trying to get the minority candidates that the Pasadena Plan and what this Court’s decision envisage I think and predictably those five top appointees were Caucasians not minority. Further conduct of these Board Members whereas formally there had been a Black Task Force and a Mexican-American Task Force designed to try to look into the needs of the black and Mexican-American community, as soon as this new School Board took control there was no longer any Black or Mexican-American Task Force. In their conduct among themselves, the School Board members allotted spheres of influence to the four white members of the School Board, none to the black member of the School Board, none and all the time, they were in violation of the no majority of the no minority clause and finally they presented to the Court, the alternative plan. Now, I submit Your Honors that when the trial court was faced with that kind of recalcitrance, it had no alternative, but first to deny the thought of allowing these School Board members to go free and go their own way and go back to segregated schools, go back to black schools and white schools and also to deny the alternative plan. Let me for a moment if I may if I have time, go over a few of the things that Mr. Neal said yesterday. I have also mentioned, I think that in our judgment, the board had not been in compliance at all. Mr. Neal suggested that the judgment of the Court simply had to do with school assignment. It did not. It had to do with desegregating the public school system in Pasadena which had been segregated system for years and it ordered desegregation of all features of the Pasadena System, including the administrators and the faculty. Mr. Neal suggests there was no resistance to the Pasadena Plan. I do not know what resistance is. You do not have to break windows. You do not have to turn over buses to show resistance. There was resistance with the vengeance and perhaps that is the tragedy of Pasadena. Have they not done that, we would not be here at all and they would very well, perhaps be entitled to be relieved of Court supervision. By no means have they met the standard of the Fifth Circuit. They have not been in compliance, not even once. That the School Board still needs supervision of the Court to make sure that they do not run amok.
Byron R. White: What do you think the effect of the Court of Appeals’ opinion is?
Fred Okrand: I think it is a guideline of some type to the trial court. It may have eliminated --
Byron R. White: But what if the School Board now goes into Court and says we have made one re-assignment and we ask that the order be de-terminated?
Fred Okrand: I think the Court should not do that. I think the Court should properly --
Byron R. White: I know that is what you think, but you do not think that is the effect of the Court of Appeals?
Fred Okrand: I do not think the Court -- I think Judge Chambers said that, but I do not think that is the effect.
Byron R. White: Who else said -- who said something to the contrary? The dissent certainly would agree with it?
Fred Okrand: I do on know. The dissent would not agree. The dissent said, send it back and find out if they are still remnants of de jure segregation. That is what the dissent said and I think there are remnants of the of de jure segregation.
Byron R. White: So you are going to have argument in the District Court, I take it?
Fred Okrand: Well, we always have arguments in the District Court Your Honor. [Laughter] You should see. [Laughter] Mr. Neal suggested that the contempt citation which is still pending on appeal was solely because the School Board did not vacate the appointments. That is not it at all. The decision of the Court is at 384 F. Supp. We mentioned it in our brief. They were found in contempt because they violated their own Pasadena Plan by appointing five Caucasian administrators without trying to find any minority administrators and they were plenty of qualified ones as the Court’s 1970 opinion shows. Mr. Neal suggested that there was no substantial reason offered for not allowing the relief, the alternative plan. They had the burden of showing that the alternative plan was better than the Pasadena Plan and there is not a shred of proof in it at all. Indeed, the record is very clear and the trial court just could not have decided in any other way that had the alternative plan going into effect, say next September, those schools would immediately be black and white schools, quite in violation of this Court’s Green decision that says it should only be schools and not black schools and not white schools. Going outside the record, I know we are in the Supreme Court and that perhaps permissible sometimes. Mr. Neal talked about the Audubon school. One of the difficulties in going and outside the record as you are not able to give the complete picture, Mr. Neal did not mention that the trial court denied the motion of the moving parties at the McKinley School, another school will not be allowed to be established as a Fundamental School. He allowed that school to be established as a Fundamental School because it did not interfere with the segregation or desegregation of the Pasadena Schools. The reason they did not allow the Fundamental School at Audubon was because it was a segregating act on the part of the board. What it did was it put the burden on the blacks who under the Pasadena Plan were supposed to, ideally to be able to walk to their own elementary school for half the time and ride if they so chose the other half the time, but not this Fundamental School. What that required was at that these blacks who were going to that school ride the bus the whole seven years of the their schooling. And that that is why the trial court said no I am not going to allow this. You got to make that burden equal. Then you can have the Fundamental School and he said, “do no worry, go ahead and do it” in McKinley.
Warren E. Burger: Your time is up Mr. Okrand unless you --
Fred Okrand: Well, I think I am just about to be at the bottom. I think I really am. The red light is very dis-concerning I must say.[Laugher]
Warren E. Burger: That is the general idea.[Laughter]
Fred Okrand: Oh! I am going to just say one more thing. Talking again about Audubon, the Court asked the superintendent whether or not he had ever recommended to the board that they come in and ask for relief from the no majority of no minority, the superintendent answered yes he had. I think it was three times to the former President of Board orally and once to the present board in writing and the board still had not gone in to ask for that relief. Having all those things in mind, may it please the Court there is nothing left for this Court to do, it seems to me, but to affirm the judgment below.
Warren E. Burger: Mr. Neal.
Philip C. Neal: I have these two minutes I think Your Honor. That obviously does not allow me time to try to reply to Mr. Okrand’s somewhat a Capella treatment of the record.
Warren E. Burger: You have four minutes.
Philip C. Neal: Thank you. Thank you Your Honor. But as to the record I will have to rely I think upon our briefs and upon this Court’s own examination of the record. Let me correct one thing that I think is of importance. It is not true that Board never asked for modification of the no majority no minority requirement. That appears explicitly on the motion that the 233 of the record, the first paragraph of the motion. I think I would like to take this few instances that I have to speak to Mr. Bork’s position which I find somewhat perplexing because as I understand it, he thinks we are really entitled to the relief that we are asking, but he is confident that it has already been granted by the Court of Appeals. I think an examination of the opinions of the Court of Appeals will make clear that it was only Judge Chambers, who said if we redistricted once more we would be entitled to be free of that requirement. Neither he nor Judge Ely addressed himself to the question at what point we would be entitled to be relieved from active judicial supervision. Mr. Bork, if Mr. Bork thinks that all we need to do now is go back before Judge Real (ph) and say everything is over and the Court of Appeals said that, Mr. Bork is simply unfamiliar with the course of the School Boards relationships with Judge Real and this entire proceeding. And I think any such notion is totally dispelled if the Court will take a look at any part of the record on the Audubon proceeding which is before this Court and I would like to point out one thing in that connection. There was testimony from that Audubon proceeding that was relied upon in a government brief which is cited at page 13 or 15 of the government brief and it was on the basis of that inclusion in the government’s brief that I asked the Solicitor General, if he would lodge the entire record and the record is lodged and we have discussed it in our reply brief and I think that should completely dispel any notion that this problem can be eradicated by merely sending the case back without this Court saying anything. So, in conclusion, I would simply like to re-emphasize two points. The Courts below have clearly misconceived the Swann decision, What that case said might be taken as inappropriate starting point as has been made in this case, the end point, the total objective of the remedial process and apparently for an indefinite period. Aside from that fatal flaw, the judgment should at the very least be remanded with some guidance from this Court as to when and how the School Board will have satisfied the requirement that it be a unitary district so that it can be released from the straight jacket that has been in for now six years.
Warren E. Burger: Thank you gentlemen. The case is submitted.