Earl Warren: Locomotive Engineers et al., Appellants, versus Chicago, Rock Island and Pacific Railroad Company et al.
Robert V. Light: Mr. Chief Justice --
Earl Warren: Mr. Light.
Robert V. Light: -- may it please the Court. At recess yesterday, I was discussing the first of the two Arkansas laws here in dispute. The 1907 Act which prescribes a minimum crew on freight trains operated in Arkansas meeting its specifications of six members directing that they be engineer, fireman, conductor and three brakemen. The Act provides those requirements by its own terms regardless of any modern equipment that maybe placed on the trains. The Act prescribes a penalty of not less than $100, not less than $500 every train run to constitute a separate violation of the Act. The six plaintiff railroads in this case operate thousands of trains in Arkansas each year which is not operated in accordance with the provisions of the Act, staff with six men would constitute a violation. The exceptions contained in the Act or that it does not apply to railroads having less than 50 miles of line and that it does not apply to trains with less than 25 cars. The other Act passed in 1913 prescribes a similar crew of six men for switch crews operated in Arkansas meeting its specifications. A similar penalty with a similar provision that every switch crew operated without complying with it shall constitute a separate violation is contained. Its exceptions are to railroad companies with less than 100 miles of line. I will discuss later this morning the effect of the 100-mile and the 50-mile exceptions as they bring the impact to these statutes on the interstate railroads operating in Arkansas only and fully exempt the 17 intrastate railroads from the burdens of these Acts. If other exception in the switch crew law is that it does not apply to switching operations which are conducted outside of cities of the second class and not over public crossings. The exception with respect to switching operations not in cities of the first or second class which is the way the statute describes it is not meaningful and that in Arkansas, a city of the second class is one with at least 500 inhabitants but there are provisions whereby lesser towns can vote to become cities of the second class without having the requisite 500 inhabitants. That exclusion probably has no application to any switching operation in Arkansas. These statutes of Arkansas are the most extreme form of this type of legislation that the states have undertaken to enact. No similar statutes have been undertaken by Arkansas nor by any other state to my knowledge to burden competing forms of transportation such as buses and trucks and barges and airplanes. The states do not undertake to prescribe the level of crew operation or the level of crew staffing for passenger buses for example. It is extreme in the sense that it's the most extreme regulation in the sense that among the seven states that still have operable crew consist statutes Arkansas being one of them. None of them provide for a higher level of manning than the Arkansas' six men freight crew statute. None of them provide other than Arkansas for -- has higher level as the six men switch crew statute. There are no other full-crew statutes that purport to prescribe so high a requirement as the Arkansas switch crew statute. Arkansas has historically had the most burdensome of these full-crew statutes which no doubt accounts for the fact that it is the Arkansas statutes that had been before this Court for examination on several occasions. The extent of the burden imposed on commerce --
Speaker: Does this argument address to (Inaudible)?
Robert V. Light: Your Honor, I'm attempting to describe the statutes in the light of the burden they've imposed and the impact they imposed on interstate commerce both with respect to our preemption argument and with respect to our position that these constitute an unlawful and impermissible discrimination against interstate commerce.
Speaker: (Inaudible)
Robert V. Light: The earlier cases on the Arkansas full-crew statutes, no sir.
Speaker: (Inaudible)
Robert V. Light: Only to the extent of the Norwood case is holding in 1931 that there was no preemption by the Railway Labor Act and the Interstate Commerce Act as they then stood. That would be the only extent to which you would approach overruling their cases.
Byron R. White: So, what about burden on commerce?
Robert V. Light: The burden on commerce argument, Your Honor, has never been made in these cases until its --
Byron R. White: In sustaining the --
Robert V. Light: Now --
Byron R. White: -- full-crew laws before there was no contention whatsoever?
Robert V. Light: No, no sir. I misunderstood you. The discrimination against commerce argument --
Byron R. White: Yes, (Voice Overlap) --
Robert V. Light: -- which we now make has not been (Voice Overlap) --
Byron R. White: But how about the burden argument?
Robert V. Light: The burden on commerce argument presents factual issues. It was not raised in the motion for summary judgment, it is raised in the compliant and --
Byron R. White: Yes, but how about -- was the burden on commerce argument raised and considered in the previous full-crew (Voice Overlap)?
Robert V. Light: Yes sir, yes sir in each of them --
Byron R. White: Yes.
Robert V. Light: -- it was. In light of the railroad technology that have been existing of course, Your Honor.
William J. Brennan, Jr.: And I gather the discrimination argument you're urging as to independent ground for striking down these statutes.
Byron R. White: That is correct --
William J. Brennan, Jr.: The spectrum of the resolution of preemption, is that it?
Byron R. White: Absolutely, independent and separate and part of it. The practical impact of these statutes on the interstate commerce upon which they fall can best be viewed in light of the findings of the Arbitration Board created by Public Law 88-108 and the two impartial boards that preceded it that almost every train, freight train running this nation can safely be operated with a crew of not in excess of four men and that almost every switching operation that takes place in this nation can safely be accomplished with crews of three and four men and sometimes less. The Arkansas laws prescribed an inflexible crew of six men in every such instance and that impact, and that's the substantial impact, is demonstrable from the findings of the Commission that had examined the safety aspects of this to determine what is really required in the way of safety and efficiency and burden and workload on the men to carry out this railroad operations in light of present --
Earl Warren: Did the Board explore all those matters thoroughly?
Robert V. Light: Thoroughly Your Honor for 13 -- the Board itself held extensive hearings for I think some 29 days used --
Earl Warren: I mean on this particular issue.
Robert V. Light: Yes sir. They did explore the safety aspects, the work load aspects saying always that its paramount consideration was safety. It took it -- the Congress had directed that the paramount consideration be safety which indeed it had. The cost of compliance of these statutes in Arkansas on the six plaintiff railroads is fixed by the parties in the pleadings to range between $6 million and something a little more than $8 million per year. That is the cost the railroad companies, the plaintiff railroad companies that much more to operate in compliance with the statutes than it would if it were free of the inhibitions of the statutes and could operate in compliance with the awards rendered under Public Law 88-108. The significance of the cost of the compliance is that it illustrates again the very substantial impact these laws have on the interstate commerce conducted by these six railroad companies. There -- the time does not allow a full discussion of all of the references in the debates and in the Committee hearings that ultimately resulted in the passing of Public Law 88-108 of references to the full-crew laws or to the preemption problem. In summary, it can be stated that some of the Congressmen expressed an apprehension or a guess that the full-crew laws would be sustained. Others, likewise, concluded that they would be preempted by the legislation that was then under consideration. I -- those hearings are voluminous. The District Court has carefully gone through them, it has filed an opinion something in excess of 50 pages analyzing that legislative history and its conclusion which I think fully is sustained by so much of the legislative history as it is contained in those proceeding before Congress was if any rational conclusion is to be drawn from a legislative history on the question, it is that Congress intentionally elected not to include a saving provision for such laws and thereby create local exceptions to the authority of the Arbitration Board to fix the size of train crews on a nationally uniformed basis. That is the conclusion of the District Court. The District Court also pointed out that no one urged to it that this law was ambiguous. I point out here that no one has suggested to this Court that the law was ambiguous and indeed it is not, no one is -- no one has had any difficulty in applying or determining what this law means. And the District Court recognized that in light of the teachings of this Court in many cases that when the intention of Congress is clearly expressed in its enactment, it's unnecessary to explore through volumes of Congressional debates and hearings in order to attempt to find some contrary conclusion.
Earl Warren: Well, don't you have to give more weight than that to the argument of counsel on the legislative history? It seems to me that there's supreme definite history there that would call for a very serious discussion by you? For instance, the Secretary Wirtz who represented the administration that proposed the bill is alleged to that but told to the House Committee that state full-crew laws would be unaffected and the House Committee reported that the award would not supersede state crew laws. I'm just saying what is alleged here. And the chairman of the ICC told the Senate Committee that the legislation would not affect state laws and the chairman of the House Committee told his chamber that state laws would not be infringed and the General Counsel of ICC did very much the same thing and its also alleged that the carriers themselves recognized and stated at that time that it did not affect these laws. Now, that's pretty persuasive, legislative history and I would think you treat it little more seriously than you do.
Robert V. Light: Your Honor, the basis of almost all of what you related is Secretary Wirtz's testimony. First, I believe before the House Committee to the effect that it was not his intent to the extent he had a pardon grafting his legislation and in presenting it on behalf of the administration to affect the full-crew legislation. Congressman Harris, Chairman of the Committee said, “Well, has this been looked in too carefully? Have you done careful research on it? It appears to me that it would.” And he then asked Secretary Wirtz if he could point to him where in either this legislation or the Interstate Commerce Act. It was provided that no preemption of this crew consists laws would be accomplished and the Secretary conceded that there were no such provisions and Congressman Harris asked if he would submit a legal memorandum on the point so that thorough research could be before the Committee. And the memorandum was then submitted and it was to the contrary of what the Secretary had originally suggested was his opinion and that is that quite likely this legislation in its then formed and this was the administration legislation I thought was ultimately passed would preempt the pro-consist statutes and then the interstate commerce -- and following that, all of the rest of the comments that pop up through the hearings and debate usually related back to what Secretary Wirtz's original opinion that he gave the House Committee was but --
Earl Warren: How about the report of the House Committee itself it said that these laws would not be affected?
Robert V. Light: That represented the views of those Congressmen Your Honor.
Earl Warren: I beg pardon?
Robert V. Light: That represented the views of those Congressmen on that Committee --
Earl Warren: (Inaudible)
Robert V. Light: -- as to what the Court might hold. But when that was presented on the House floor the Chairman of the Committee presented it and read that segment of the report. The --
Earl Warren: How about the -- how about the statement of the Chairman of the ICC?
Robert V. Light: I do not recall a statement of the Chairman of the ICC. I recall the Chairman being there and deferring to his general counsel, Mr. Ginnane for a observation on it and Mr. Ginnane told both the Committees, Senate and the House that this is likely to preempt as a strong argument that can be made but all you have to do if it's the intent of Congress and he underlined that in both. He wasn't being presumptuous enough to suggest what the intent of Congress should be on this point. He said, “If it's the intent of Congress not to preempt, they can be easily done parenthetically,” as Mr. Justice White said with two or three words. And while both Committees had that admonition that if it was their intent not to preempt, it would be a very simple matter to amend this draft and while it was amended several times thereafter, after those discussion in both Committees, no effort was made to insert language to hear this Court guidance as to the intention of Congress to preserve this full-crew laws.
Earl Warren: Now, wouldn't that (Voice Overlap) just as easy for Congress to say that they were superseding state laws?
Robert V. Light: It would be an easy matter --
Earl Warren: I'm saying that it's easiest --
Robert V. Light: -- either way.
Earl Warren: -- as to do it the other way.
Robert V. Light: Either way. Your Honor, of course usually, and this Court has so said many times Congress has presumed to act in a fashion where its legislation is nationally applicable. And nationally uniform is not presumed to act on isolated or regional problems unless it's expressed there.
Earl Warren: How about the attitude of the carriers themselves of the -- of this hearing, what was their position? Did they take the position that this was supersession?
Robert V. Light: Your Honor, the only testimony that I recall on that was from a representative of the carriers who was asked about it and he said that really all he knew was Secretary Wirtz's opinion that had been given in testimony earlier in that Committee or another one.
Earl Warren: Well, he didn't very --
Robert V. Light: He didn't purport to adopt it.
Earl Warren: He did urge that this was a supersession, well, did he?
Robert V. Light: Not to my recollection sir. The only thing along that line was a reference to the opinion that had been expressed by the Secretary of Labor.
Hugo L. Black: Mr. Light, do you -- (Inaudible) asked you about the Committee report. Did I understand your only reply to that is that simply represented the views of the minimum?
Robert V. Light: Your Honor it represented the views of those Congressmen that had concurred in that Committee report would be my view of it.
Hugo L. Black: Well, how many of them concurred?
Robert V. Light: As I recall the statement of Mr. Youngdahl and I presume that it's correct that all -- that it was a unanimous report that not all of the Committee members had attended but -- it all had had conquered in the report but of course when that report was read on the floor of Congress Mr. Justice Black and Congressman Harris says, “This our report in our view.” Congressman Smith who was Chairman of the Rules Committee got up immediately and said that, “I don't dare remain silent because this matter hasn't been discussed on the floor of the House before but it was discussed in the Rules Committee yesterday." And it went on --
Hugo L. Black: That's Congressman Smith of Virginia?
Robert V. Light: Yes sir. And speaking in his capacity as Chairman of the Rules Committee that had considered this legislation and he said that this is dealing with interstate commerce and the courts have gone a long way and we've gone a long way up on putting these things under interstate commerce, his instrumentalities commerce and he challenged the conclusion of Representative Harris and Representative Harris' Committee. Congressman Edmondson from Oklahoma then got up and said, “Well, my understanding of it would be then that all we'd leave are the switch of the crew consist laws would be the switching operations, local switching operations.” And Congressman says -- Smith said, “Well, so it just depends on what in each instance is called Interstate Commerce or how far we've extended in the Interstate Commerce but we've gone a long way in this and I don't want to remain silent in light of what the Commerce Committee is telling us the courts might do in this instance.”
Hugo L. Black: Was that the Commerce Committee?
Robert V. Light: The House, Interstate and --
Hugo L. Black: (Voice Overlap)
Robert V. Light: -- the Foreign Commerce Committee, yes sir.
Hugo L. Black: Was this a regular written or printed report --
Robert V. Light: Yes sir.
Hugo L. Black: -- such as they may and put on the desk of the Senators and Congressmen?
Robert V. Light: Yes sir.
Hugo L. Black: With a full Committee report submitted to the Congress and did it make the statement that it was rendered yesterday?
Robert V. Light: Yes sir. But again, we urge that the most relevant legislative history here is the dispute that had arisen, it hadn't come up in two or three days. It'd been broiling for years and years, the facts that prompted Congress to act and upon which it did act, Congress was here resolved in a dispute, it was not as this -- subject --
Hugo L. Black: You mean it was enacting on the report of the Committee?
Robert V. Light: No sir. I didn't mean that Your Honor.
Hugo L. Black: I have had some experience as to those reports and this is Committee on Interstate Commerce and the members of Congress accept those statements upon which they can rely what the bill does or does not do. And the only statement you -- the only thing you have for -- a file to that is statement of Chairman of the Rules Committee who's not on the Interstate Commerce Committee, said nothing to do with the hearings or anything else, did he?
Robert V. Light: Well, my response to it Your Honor is that when the Committee report was received on the floor of the House that that -- that the accuracy of that prognostication in it was then debated in the House with Cong --
Hugo L. Black: What -- of course someone can -- someone can say that that the man gets up and sometimes they do that because they want to put something in to show that they are raising a question. But this gentleman that you referred to is not on the Interstate Commerce Committee, is he?
Robert V. Light: Not to my knowledge Your Honor. I'm -- in pursuit of that, I might say that the Senate Committee contained that report, contained no such representation as to whether there would be or would not be a preemption and this legislation that was passed actually originated in the Senate and the House concurred in it.
Hugo L. Black: Which one made the first report?
Robert V. Light: I cannot answer that Your Honor. But it's our position that along with what happened in the House and what happened in the Senate, the facts Congress was acting on is vitally important here. Congress was not interested solely in preventing a strike and I cannot emphasize that too strongly. If it had been interested solely in preventing a strike, it can pass a law forbidding the strike in which event the railroad companies would have won everything that they'd provided for in their notices because the parties were to self-help level at this time. Or Congress could have passed a law prohibiting the railroad companies from putting into effect any changes contained in their notice. And in that event, the Railroad Brotherhoods would've won everything that they wanted. Congress could've prevented the strike readily but what it was doing here was providing a solution for the problem providing compulsory arbitration for this problem of automation or arising out of automation in the railroad industry that have been brawling for years and that was threatening a serious blow to the nation's economy.
Speaker: (Inaudible)
Robert V. Light: In that connection, it's significant to know what Congress had before it when it reached the point of deliberating on Public Law 88-102. It had before it the fact that this problem had been an issue since at least -- better issues since at least the early 1950's. The manning of trains have been prior to that time determined by local rules, arrangements, collective bargaining agreements, crew consist laws on a local basis with a sole exception that the firemen were placed on trains on the night -- on the basis of the 1937 diesel agreement which was a national agreement. All other aspects of train manning other than the firemen would be on its locomotive was determined on a local basis and the basis that it is -- was a multitude of differences in the way those things were determined. The railroads recognized in the 1950's that this had resulted insubstantial over manning in the railroad industry and the weakening of its position to serve is the prime mover of freight in this country. They went to President Eisenhower in the late 1950's and sought the appointment of a presidential commission to investigate and offer solutions for this. In the face of our position from the Railroad Brotherhoods, the President declined to appoint a commission at that time. Then the notice is preserved and the notice of the railroad company served in 1959 provided for testing and management, the discretion to fix the railroad crew manning levels and provided for setting aside all preceding rules, interpretations, agreements, however established. The Brotherhoods responded in 1960 with their Section 6 notices under the Railway Labor Act to put a national rule into effect, fixing crew consist and the national rule labor pose is lesser -- a lesser number of men than the Arkansas laws prescribed. There followed thereafter many efforts at mediation, suggestions and offers and proposals by the president, by the president's representatives, the Secretary of Labor for arbitration of this dispute always accepted by the railroad companies, always rejected by Brotherhoods. And that is the background that brought --
William J. Brennan, Jr.: But even so Mr. Light, I take it if -- I think you've already said that against all that background, Congress nevertheless might have meant, and that's what we're trying to find out here, isn't it? And might have said so explicit against all these background nevertheless this legislation does not preempt to displace state full-crew law, is that right?
Robert V. Light: You say Your Honor, that Congress might have said that.
William J. Brennan, Jr.: Yes.
Robert V. Light: Congress might have said it either way.
William J. Brennan, Jr.: That's right.
Robert V. Light: It would have been a relative simple matter.
William J. Brennan, Jr.: (Voice Overlap) On the statement in the House Report, the Committee does not intend, the Committee does not intend that any award. They supersede or modify any state law relating to the manning of trains. When the House after this debate in which Congressman Smith became involved knowing that its Committee wanted this statute to be read as not superseding any state full-crew law, approved the legislation without understanding, doesn't it adopt, at least the House adopt its Committee meaning?
Robert V. Light: Your Honor, if it does I'm not familiar with the cases that so hold but again the absences --
William J. Brennan, Jr.: Well, I don't know that we have had a case exactly like this but the principle is whether or not Congress matter did not mean in what the legislative record shows as to that meaning to supersede state laws, is it?
Robert V. Light: Well logically, Your Honor, I don't think it necessarily follows. For example, Congressman Smith supported this legislation although he did not concur, it's obvious -- is obvious from the debate in the interpretation that the Committee had put on it.
William J. Brennan, Jr.: Oh, but he did not but it was the House's Committee and they came in and say to their fellow members, “We do not mean this to supersede the state full-crew laws.” And knowing that that's what they meant because that's what they said they meant by the legislation which the Committee had drafted. And the House then adopts it, doesn't it carry with it that expression of intent?
Robert V. Light: I don't think it necessarily does Your Honor because it's still --
William J. Brennan, Jr.: It may not for the Senate but, I have --
Robert V. Light: If --
William J. Brennan, Jr.: -- difficulty seeing why it wouldn't for the House?
Robert V. Light: It certainly would if the Committee had caused and prompted an amendment to be made in the legislation itself and said it is not intended that it do this, we wouldn't be here today had they done that.
William J. Brennan, Jr.: If Congress doesn't often help us out (Voice Overlap) --
Earl Warren: Was there any -- I hope on -- was there anything in the Senate Report that stated that this was supersession?
William J. Brennan, Jr.: Nothing one way or another Your Honor. I would like to finally and briefly discuss and I think it requires only a brief discussion on a very serious contention sir, from the part from preemption that these laws do amount to an unconstitutional discrimination against interstate commerce favoring thereby intrastate commerce. In Arkansas, there are 17 intrastate railroads operating exclusively within the state. These laws by virtue of the 50-mile and 100-mile exemptions exempt all 17 from the burdens of both laws. On the other hand, the 1907 statute with the 50-mile exemption applies to 10 of the 11 interstate railroads operating across Arkansas. The 1913 Act applies to eight of the 11. It's put in better perspective as to the real impact on the interstate commerce is distinguished from intrastate commerce when it's exempt -- examined the impact to these statutes is examined in light of the interstate railroad truckage in Arkansas to which it applies. In both instances, each statute applies to well over 99% of the interstate railroad truckage operated in Arkansas whereas it applies to zero percent of the railroad truckage of the intrastate railroads. It seems to be the settle rule that while a state can burden commerce to a certain extent if it does it reasonably and the test is measuring on the one hand the local interest against the national interest on -- of an unfettered transportation system and unfettered interstate commerce. The corollary of the rule is that a state cannot burden commerce, it can't direct the burden against commerce thereby favoring or against intrastate commerce thereby favoring its local interest and giving it a competitive advantage. Our adversaries don't really seek to answer this argument, they did not seek that -- answer it before the bar, this Court, the only suggestion contained in their briefs is that this might be something that the District Court could take some proof on to see what the effect to these statutes are on interstate commerce. If this were an undue burden argument, certainly that would be right, it takes extensive proof to make that sort of weighing but this is discrimination which this Court had said is absolutely forbidden. And the only relevant proof that can be made is in this record and it is undisputed and that is that the discrimination is there, it falls only on the interstate railroads. And perhaps to add a little bit to it, I don't that it is essential that the discrimination is really a significant that the impact is significant and the cause of compliance that's contained and is undisputed in this record, proves that this is something that costs $6 million to $8 million a year to these railroads just to comply of these statutes that fall on the interstate railroads alone. Thank you Your Honor.
Earl Warren: Mr. Lyons.
Dennis G. Lyons: Mr. Chief Justice, may it please the Court. First, to answer the question that Justice Black asked. My note show that the Senate Report was filed on August 23rd and that the House Report was filed on August 26th, whereas, the Senate reported first. It was the Senate that was warned particularly by Mr. Ginnane, the General Counsel of the ICC about the possibly preemptive effect of legislation and the Senate did not include the saving clause and the Senate Report does not include any reference one way or the other to be sure as to what the intent of the Senate Committee was.
Potter Stewart: The Senate Report is simply silent on that subject?
Dennis G. Lyons: It's simply silent. One thing that it does I think dispose of is the suggestion that the appellants made that the reason why the Senate which made the change, made the change from the ICC or the added approach to the Railway Labor Act arbitration approach had nothing at all to do with the question of supersession, yes or no. The main factors that seem to dominate on that are found on pages 8 and 9 of the Senate Report. And the problem seem to have been the workload of the Interstate Commerce Commission and also some feeling on the part of the Brotherhoods that they would not get as fair shape before the Interstate Commerce Commission in terms of what they wanted as they would before in Arbitration Board.
Earl Warren: Mr. Lyons, is it a fact that the Chairman of the ICC told the Senate Committee that the legislation would not affect state laws?
Dennis G. Lyons: I'm just not familiar with that passage, Your Honor. I'm just familiar with the --
Earl Warren: It's rather important. Your quoting counsel as saying what they might do to make it clear that if the Chairman of ICC Commission said that possibly that this law does not affect state laws, I would think it would be quite relevant to legislative history.
Dennis G. Lyons: What I remember from that is that he deferred to the -- to Mr. Ginnane. And Mr. Ginnane -- there was some testimony to the effect that if Congress wanted them not to -- actually to supersede the state laws that they could put that in the interim rules that they were empowered to pass under the legislation and that is the way that they would take care of the problem if that intent of Congress were made known to them. But the -- but that was not the approach that Congress came out with. What the Congress came out with the approach of the Railway Labor Act, Arbitration Board within that framework. I think in this whole consideration of legislative history, we tend to lose sight of one thing that the -- if we assume from anything short of the expressed language of Congress in the Act that Congress wanted the state laws to remain in effect states to have powers to pass and to put into effect laws in this area. We are creating a situation in which Congress in effect could've permitted the entire effect of the arbitration award to be repealed bit by bit by the states. Certainly, I don't think anyone could contend that certain states would have the power to pass legislation here of a nature of this full-crew laws or that there was some sort of grandfather clause for the existing full-crew laws. If there was no supersession here, then anyone of the 50 states could've moved into this area and regardless of what the award said, that state could've taken its bite out of the award, could've kept the fireman, could've kept the level of crew manning in the train service that the -- had prevailed before. The states could've eaten up the award bit by bit and if you look into the way in which these laws get enacted, in effect, these laws are substitute for the collective bargaining process. They amount to the efforts of the Brotherhoods on the one side and the carriers on the other when they come to in impasse to try to solve it through legislation one way or the other. And if the national award is vulnerable to being eaten up bit by bit by bit, I think we've got a very strange situation for an act of Congress to intend that and I would suggest respectfully that it would -- it should take the explicit language of the statute before we should come to that conclusion.
Earl Warren: Was there any debate of that kind on the floor? Did anybody raise those precise questions that you're talking about now?
Dennis G. Lyons: I don't believe anyone adverted to the fact that the states after all are on an equal footing that one would -- one state could constitutionally have done in 1907 another state might well constitutionally do in 1963 or 1964.
Earl Warren: Wouldn't you think that if all these people spoke in terms of -- had not been supersession, the representative of the President to -- the Secretary of Labor, the Chairman of the ICC Committee, the House Committee on the subject and even the railroads themselves passively agreeing that it was (Inaudible) no supersession, don't you think that some opponents would be likely to raise that question on the floor in one House or the other and say that it would accomplish that purpose as you are here. Certainly this would have been known to the carriers and I would think that in view of all these statements, they would -- would've try to make sure that this didn't happened.
Dennis G. Lyons: Your Honor, this was the legislation that was passed in the troughs of great national emergency. The full-crew law references in the debates are a tiny, tiny part of the entire consideration that Congress gave to these prices which was threatening to tie-up the country to cost laws of essential production to bring many of the principle wheels to a -- in -- of the nation to a standstill. I think to a considerable extent and just the extent, just the proportion of the discussion of the full-crew laws to the entire bulk of the issue was referring at this time. And they were talk -- don't forget that were talking about a fireman rule that was in effect nationally and they were talking about a national rail strike. I think that in effect, this issue was not fully considered in the debates as an entirety and I -- there was of course Congressman Smith's challenge to the House Report on the floor.
Earl Warren: The reason -- the only reason I asked you is because either you or your -- Mr. --
Dennis G. Lyons: Light.
Earl Warren: -- Light said that this was a matter that had been under discussion and argument, and debate for 11 years and that it was prominent in the minds of everybody at the time the importance of it and I merely asked the question because if it had that importance and had been clearly canvassed to that extent, wouldn't it seem reasonable that someone would've raised that point?
Dennis G. Lyons: I understood Mr. Light's argument to be of the -- that the whole issue, the issue of the 1937 diesel agreement that kept the fireman and the manning levels generally have been subject to dispute for years and years. The extent of the consideration that was given to the place of the state manning level laws in the midst of these, I don't think was substantial. The two bases apart from the remarks that were made in the legislative history on which I understand that the appellants are principally contending that what should be after all here, the ordinary force of a federal enactment of this sort, supersession of the inconsistent state laws are that the state laws because they are safety oriented somehow, enjoy a preferred status. And secondly, because of the emergency or temporary as it's called, the character of the Federal Act that there should also for that reason be held not to be supersession. I should like to talk to those two points in turn. First, as to the safety point, whatever one may think of the relationship of these statutes to safety that may have been their justification in 1907 to what extent they are now justified by that is an issue that remains to be tried. The one thing about them that is indisputable is that they are entirely different from the usual sort of railroad safety statute that we think about, they are not like the Federal Safety Appliance Act or like the rule about cabooses that the Court had before it in the Terminal Railroad case back in 1942. They are not like the usual sort of industrial health and safety regulation about protective clothing or about sanitary facilities or about drinking water. What they do is that they go -- these laws go directly to the two central points in the labor management economic situation and I understand those two points to be jobs and money and these laws go direct jobs to that question. To be true, they might have a further safety aspect but the central fact about them is that they directly regulate the principle labor management economic problem in this industry. They regulate the very thing that we would think that the parties would first address themselves to in collective bargaining. The question that probably is coequal with the question of wages and collective bargaining, the number of jobs to be provided by each train and this of course --
Byron R. White: Mr. Lyons, is there any evidence --
Dennis G. Lyons: Yes sir.
Byron R. White: -- this record that the parties in negotiating or in giving their notices had state full-crew laws in mind?
Dennis G. Lyons: Well, I can point you on that Your Honor is that 62 and 61 and 66 of the record, the text of the notices. The text of the carrier proposed all is to eliminate all agreements, rules, regulations, interpretations, and practices, however, established and the same as the firemen notice, the same as true as to the notice as to the train men.
Byron R. White: Well, is that (Voice Overlap) --
Dennis G. Lyons: And I think its --
Byron R. White: -- was there ever been any concrete instance of a -- in a collective bargaining agreement in the railroad industries setting aside a -- or prevailing over a state full-crew law?
Dennis G. Lyons: The only prior -- present to this case has to do with the state civil service law which was involved in California v. Taylor. That's the only one in the Railway Labor Act. The leading case under the National Labor Relations Act is of course the Oliver case where a contract between labor and management prevailed over a state antitrust law but the -- I don't even know of any instance in which there has been this conflict to certain -- in fact, I'm not aware that the parties have ever been able to bargain into a conflict through a final bargaining solution. What you frequently have and in fact the -- what we seem to be getting into now in the case of the repeal of some of these statutes some of the collective bargaining contracts that have been entered into since the award and while this litigation has been pending have provided that the Brotherhoods will not contest their repeal of the state full-crew statutes. Our first contention with respect to the so-called safety feature of this statute is that because this statute so centrally regulate the basic labor management economic relationship that they are a matter in which the parties agreement or in which of an award to an Arbitration Board should prevail as the collective bargaining contracts in fact prevailed in Taylor and in Oliver.
Earl Warren: You mean those economic factors should prevail over safety?
Dennis G. Lyons: I don't say that Your Honor. I say that the -- since the acts directly go to the labor management relationship and involve something that is governed by federal law to that extent that if there is anything -- any limit to what parties can agree to or what the arbitrators provide in the name of safety that there should be a federal statute providing that in Congress of course is, though frequently asked, never passed a national crew consist statute. This is --
Byron R. White: Mr. Lyon, what -- this would -- runs out when? This coming January, isn't it?
Dennis G. Lyons: The award will no longer be in effect as an award as to firemen on March 31, 1966 as to the train men and the switch men on January 25, 1966. Now, the rules as we contend imposed by the award remain in effect as rules as it -- subsisting and existing rules under the Railway Labor Act until changed through the notice procedure of Section 6 and the exhaustion of the mediation procedure and the Emergency Board procedure.
William J. Brennan, Jr.: Was that very clear?
Dennis G. Lyons: We think it -- well, there is no case where in point on this, of course this is the sort of compulsory arbitration involved that Congress has never had this passed before. The whole philosophy of the Railway Labor Act is that contracts and awards that have specific terms in them for a specific term that at the close of that term all that happens is the parties then can go into the collective bargaining procedure.
William J. Brennan, Jr.: Yes, I mean the award shall continue -- enforce for such a period the Board shall determine in its award but not to exceed two years and that they've -- the award takes effect unless the parties agree otherwise. Doesn't that suggest that the whole thing (Inaudible)?
Dennis G. Lyons: Its functions as an award Your Honor, Section 8 (j) of the Railway Labor Act uses similar language and I assume it was the precedent for this language.
William J. Brennan, Jr.: Well, we didn't see it that way Mr. Lyons, what the -- and this whole thing goes out on March 31. What then of the argument under supersession?
Dennis G. Lyons: If the award has no further force as of March 31, 1965, I would think that nonetheless by moving in for a two-year period or presume that Congress did move into the situation and supersede for a two-year period that's -- it -- that the interpretation should be that the -- you could never go back to the prior pattern unless the parties bargain back to it. In other words, once Congress broke the mold here of the old 1937 diesel agreement and as we contend the mold imposed by the state laws that in effect it had a chaotic situation if you went back.
William J. Brennan, Jr.: Will that carry so far as to say that in 1967, a state which has no full-crew law could not effectively adopt it?
Dennis G. Lyons: I would think so Your Honor after this -- in effect this episode in our national (Voice Overlap) --
William J. Brennan, Jr.: Even though the awards out the window and this federal statute is off the books?
Dennis G. Lyons: Well, it's off the books Your Honor but it still was a happening. It still was something that occurred and was an intrusion of Congress if you will into this area of a sort that had far reaching effects.
William J. Brennan, Jr.: We've never had a situation quite like this have we in this area of preemption?
Dennis G. Lyons: I don't think so, Your Honor. I don't know of a case where there was a state that posed this problem. On the other hand, I think it's quite clear from the terms of what Congress was thinking about here that the award though not as an award though it was subject to opening after the two years that the award was to be the starting place for the collective bargaining of the parties thereafter and that you didn't automatically go back to the situation before from the labor protective provisions that are in the award and that I think Congress fairly, clearly contemplated would be in the award every public body that had given its recommendations on this matter had recommended that there be protective provisions with fireman. And that there be some form of continuation in jobs for the train men.
Earl Warren: Mr. Lyons, assuming that there is supersession here, do I understand you to say that if Congress intended to supersede the state laws and limited their supersession to two years that none -- notwithstanding that limitation of two years that these laws would be permanently superseded?
Dennis G. Lyons: If Congress had said that the state laws should be superseded for two years only, obviously, there'd be no basis for a contention to the contrary. The Congress clearly spoke on this matter that would be the end of it. I think the Congress clearly spoke the other way in terms of the procedural framework into which they poured this provision for compulsory arbitration because while they said, they said two things that have to be reconciled. They said that the award shall remain in effect for two years and that of course what 8 (j) of the Railway Labor Act says about an arbitration award but you don't go back to the status quo once they undo that. Congress also said in the statute that the award of the Board shall constitute a complete and final disposition of the aforesaid issues.
Earl Warren: For all time to come?
William J. Brennan, Jr.: It didn't had those words Your Honor but if we went back in 1966 if Congress intended that the parties be back in the same loggerheads as they were in 1963 that the parties be -- then go back and try to impose a fireman in all these diesels. I don't think that would've been a complete and final disposition of the issue. And then Congress clearly said that the award was to be a complete and final disposition of the issue. The way in which you can -- one can put those two commands of Congress together is to hold that the award stands in effect as an award for the two-year period that thereafter the parties are free to engage in collective bargaining and can -- or certainly intended that they engaged in collective bargaining and try and settle this among themselves in the future as to what would be the situation thereafter. But you get into the provisions of the Railway Labor Act which say that the existing rules which govern and these are the rules of the award continue until they are changed in the manner provided in the Act and that of course is the essential difference between the Railway Labor Act and the National Labor Relations Act. Finally, as to that, there are some contention that because of the emergency --
William J. Brennan, Jr.: Mr. Lyons, what -- in substance, is position this, Congress took this difficult problem and said, “States no one else except the parties really are to resolve it. We'll help out at this juncture for two years with a -- an ad hoc arbitration body but this has got to be resolved now in collective bargaining. We will give them two years, with this help and after that, they do it themselves and everybody else stay out of it", is that it?
Dennis G. Lyons: And what it said also, it said that certainly Your Honor. And it also said we will have this solution which will cut down and they foresaw that it would cut down the over manning that would reduce the fireman and reduce the trainmen and either would cut down part of the problem will be over manning that the railroads were concerned about. And that thereafter, what the level of manning that you're going to have after that was up to the parties but of course they had to do it under the terms of the Railway Labor Act. A lot of the suggestions to the contrary that this was an emergency or temporary legislation that the ordinary rules of supersession shouldn't apply to those circumstances, I think it would've been better taken if what Congress had done here would've -- was to have impose the moratorium, Congress didn't imposed a moratorium here. Congress didn't say to the unions simply, “Thou shalt not strike. Congress didn't say simply to the carriers, “Thou shalt not put into effect these rules doing a way of a fireman.” Congress said, “We will provide not only a moratorium that will call off a strike but we will provide a machinery whereby there would be a solution.” If Congress itself had provided that 90% of the fireman's jobs were to be eliminated and that the consist on the trainman was to be a conductor and two train men, there would be no gain saying of the fact that the state law as to the contrary couldn't stand. We contend that when Congress provided not only for a procedural stay of the strike and of the carriers self-help but also for a solution to be reached through an arbitration board that had also provided in that forum for a substantive solution to this controversy and that the substantive solution that Congress provided for was not one that the states were to be permitted to take a bite out of here and a bite out of there through these laws. The ordinary rule is that Congress intends its acts to be of nationwide application. If this is going to provide to the contrary to make federal law dependant upon the operation of state law, it generally clearly said so, I think we'd have say so --
William J. Brennan, Jr.: But do the fact really at least the House Committee, I guess said it is clearly as they could that the statute (Voice Overlap) --
Dennis G. Lyons: The House Committee Senators clearly as the House --
William J. Brennan, Jr.: What -- why would they have said it?
Dennis G. Lyons: -- as House Committee could.
William J. Brennan, Jr.: If this had been the overall problem, it certainly not makes sense, is this, rather bizarre result here. I must agree to say that the award mean -- is meaningless in the case of state -- the full-crew laws but why didn't --
Dennis G. Lyons: But cert --
William J. Brennan, Jr.: Why did this Commitee say this?
Dennis G. Lyons: I can't speak for them Your Honor, it was pretty clearly Congressman Harris' view in those then that there was no dissent on this Committee to be sure. It was not Congressman Smith's view as to what the construction in the Senate is. We have much thinner reads and I think the inference that we would suggest is that the Senate did not pick this up, the Senate formulated the legislation and acted first in its report. It had the warning from Mr. Ginnane and it did not include this clause. So, I think we're thrown back onto the test of the intent of Congress and the result that would be reached if we analyze that intent one way or the other.
Hugo L. Black: Who is the Chairman of the Committee who made the report at that time?
Dennis G. Lyons: Oren Harris.
Earl Warren: Mr. Youngdahl.
James E. Youngdahl: Mr. Chief Justice, may it please the Court. I would like to take our remaining time primarily by attempting to fill out the answers on the legislative history given by distinguished counsel for the appellees to the question from the Court. First, as to the last or one of the last problems that was raised in their argument about the two-year expiration of award and about the conditions going on from then, I submit that by and large, this is not a problem that is raised in this case to this Court. I submit as the amicus briefs frankly say and boldly say to the National Railway Labor Conference for example, and what they'd like to have is a ruling from this Court on the Arkansas full-crew law which they could then use to go and stop a strike and require a whole series of new notices when the awards expire. That is a practical effect of this point as I believe the railroads are raising it. Now, Congress as they point out in their brief is right now considering the effects of Public Law 88-108 and the affects of the arbitration award, Congress is considering that after request to the railroads to extend that award for another two years. Some of these legislative proceedings are quoted in the briefs -- in this brief of the railroad appellee. This is a problem which is a difficult one for Congress. And I -- but I submit that it is not a problem as a matter of policy. It is a matter of difficult decisions between competing interests which is not appropriate to a decision on preemption of state full-crew laws in this case. In (Inaudible) -- response to Mr. Justice Brennan's statement about we are asking for and legislative history compelled or suggests a bizarre result, I think this is true, it's a bizarre situation. It always has been, it has been for years. Congress knew it was a bizarre situation and was so reluctant and repeatedly said that, “If there's only some way we could do something about this the party we only agree and then they would've became apparent. They would not agree, they took the most conceivably limited action they could take.” And now they are back to the point at which Congress consider this again and what Congress will do, I don't know but I do --
William J. Brennan, Jr.: Oh, it -- a bizarre result is only to the state for full-crew laws, is it?
James E. Youngdahl: Yes, yes.
William J. Brennan, Jr.: That's what eight or nine or whatever the number is?
James E. Youngdahl: Well, it be -- reason about the problem for that -- well, alright.
William J. Brennan, Jr.: Whatever the number is?
James E. Youngdahl: Yes.
William J. Brennan, Jr.: It's not the -- in many, many states I gather, firemen being faced out under the award, aren't they?
James E. Youngdahl: That's correct.
William J. Brennan, Jr.: Now, but it's in the state with full-crew laws where that can't --?
James E. Youngdahl: That's correct. And that, if I may submit, was true before Public Law 88-108 was ever submitted -- thought about by anyone.
William J. Brennan, Jr.: Yes.
James E. Youngdahl: Now, there are few legislative history factors in addition to those that have been discussed or in expansion of those that have been discussed. First, as to what was done in the Senate as distinguished from what was done in the House if there is a distinction. The Senate Report did say this and this is about as close to a reference to this kind of issue as I could find. Senate Report said, “This proposal is not and cannot conceivably be considered the precedent for the railroad industry, the transportation industry generally or any other labor management dispute. It is what it purports to be a one shot solution to legislative means to a situation which imperiled beyond question the economy and security of the entire nation.” Now that situation, the railroad need to be reminded was not crew sizes. That situation was a threat in strike.Congress acted that Congress said it acted only to stop the strike in contrast to what the appellees urge in this Court. I would like to expand a little bit in what the railroads say they said before Congress in fact, and this happen also in the Senate and I think that's a point of some importance. It happens both in the House and Senate. The railroad said, “We understand that Public Law 88-108 is not to preempt, it's not to affect state full-crew law.” They said that to both the House Committee and to the Senate Committee.
Hugo L. Black: You said the railroad said that, who do you mean?
James E. Youngdahl: I mean Mr. Wolff who was the chief negotiator for the railroad and who was the chief witness for the railroads in the Committee and Mr. Loomis who was President of the Association of American Railroads. Both of whom were the leading spokesman for the railroad before the two Committees. Further and this again happened in the Senate and this has reference to the problem of the Senate not expressing itself. In a written memorandum, a written statement of position by the Association of American Railroads and the National Railway Labor Conference which is in the record of a Senate proceeding they gave a statement answering what the Brotherhoods had said to them about the effect of this resolutions. And in that statement they said, “It is being said by the Brotherhoods that we are urging this resolution to put all these men out in the street”, that it will not have that effect is due to the following factors and it makes a list. And at the top of the list literally, number one in the list of reasons is the fact that there are 17,000 of these men were protected by state full-crew laws and then they have a chart which shows although there are 70,000 or 80,000 people possibly affected by the arbitration award it really isn't that bad because state full-crew laws protect 17,000 to 18,000. And now --
Hugo L. Black: Who did you say did that?
James E. Youngdahl: The railroads themselves in a written statement of position submitted to the Senate Committee.
Hugo L. Black: The same gentlemen you mentioned?
James E. Youngdahl: Yes sir. And the statement itself was signed by the railroads as an organization. The precise name of the signing party, I am quite sure it was the Association of American Railroads and the National Railway Labor Conference.
Hugo L. Black: That's not in this record, is it?
James E. Youngdahl: No, it's in the legislative history and it's cited on --
Hugo L. Black: On his brief.
James E. Youngdahl: And --
William J. Brennan, Jr.: Is this about -- is this an argument Mr. Youngdahl that actually, Congress knew 17,000 were involved. They were perfectly willing to say as to those 17,000 nothing this award says shall have an impact on the state full-crew laws that protect those 17,000.
James E. Youngdahl: That is correct.
William J. Brennan, Jr.: Is that what you say the legislative history shows?
James E. Youngdahl: That is one of the things I say the legislative history shows. I say that Congress want to meet this issue with that -- the most minimum impact it could.
William J. Brennan, Jr.: Well, who else made the -- in the testimony besides what you referred as to the railroad setting? Did the Brotherhoods say anything along these lines?
James E. Youngdahl: Yes Your Honor, they said that repeatedly. Now, I mentioned yesterday for example, Mr. Shane who is the General Counsel for the union equivalent -- Brotherhood equivalent of the National Railway Labor Conference, National Railway Labor Executive said when we are talking about the ICC if in fact the Interstate Commerce Commission might be the arbitrating body. Mr. Shane said, “I think this is what the railroads want because they know about Section 511 to which Mr. Ginnane had already pointed. They know about Section 511 of the Interstate Commerce Act which appears to give authority to supersede state laws.” And I think that they are trying to in effect sneak this through. And he said something like that to the Senate and it was the Senate as the railroads point out that led in taking out the ICC as the arbitrating body.
William J. Brennan, Jr.: Well, and -- did the Brotherhoods offer this statistical evidence of the number affected by full-crew laws frequent down by states and that sort of thing?
James E. Youngdahl: No, it is my recollection that they did not from the complete reading of the legislative --
William J. Brennan, Jr.: But was of that kind evidence it would?
James E. Youngdahl: It was in the -- submitted by the railroad but not by the Brotherhoods. The railroad submission was in written form submitted after the hearings are over or at the end of the hearing. And presumably in response to what the Brotherhoods were accusing the railroad of wanting to throw these men off in the street and that was the phrase the railroads used. We are not (Inaudible) off the street and the overwriting purpose of Congress in this was a desire to limit its action as much as possible in many respects. It relates to the test of pervasiveness which this Court has applied in evaluating preemption contentions but certainly, it didn't want to do anymore than it absolutely had to do to stop the strike and so the railroad said, “Well, don't worry. You aren't doing too much here because there are 17,000 people protected by state full-crew laws.” And I think Congress had relied on that and I think they were entailed to rely on that in contrast to what the railroads are now urging to this Court. I would like to say the railroads relied repeatedly on Mr. Howard Smith, if I may, just a portion of the sentence of Mr. Howard Smith's statement. Mr. Smith said, “In the matter of purely intrastate commerce under our constitution, the state of course would have authority but when it comes to dealing with interstate commerce I think the provisions of the constitution are such that there is no way in which a state can overcome the power of the Federal Government under the interstate commerce clause.” He wasn't talking about Public Law 88-108 at all.
Hugo L. Black: Where was that?
James E. Youngdahl: Pardon?
Hugo L. Black: Where is that?
James E. Youngdahl: This is quoted in the appendix to my brief which had the legislative history which is on page 73 of my brief. He was talking about a constitutional theory which I submit is completely inconsistent with the Norwood decision as to full-crew laws where this Court said the state can in the matter of a certain kind affect interstate commerce not to speak of a long line of decisions since that time. As to what (Inaudible) what Mr. Ginnane said in his further answer to Mr. Justice White's question of yesterday, the railroads are expanding and Mr. Ginnane's statement into a statement that if you want to be sure you want a preempting you got to go ahead and put in the law. Now, that's not what Mr. Ginnane said. Mr. Ginnane was talking about a specific provision of the Interstate Commerce Act, a matter which is actually academic and moot in view of the fact that both Houses took the Interstate Commerce Act reference out of the resolution all together. But secondly, let's assume that Mr. Ginnane's -- should've -- just should've brought to mind to the Congress the idea that they should do something specific. Much more often than Mr. Ginnane statements were quoted to Congress, the decision of this Court in Norwood and the particular statement of this Court in Norwood that unless and until Congress expressly said to the contrary state full-crew laws remain. I submit that Congress was entitled to rely on this statement in reference to what have to put in the legislation and I submit that this was said by Mr. Wirtz. It was repeatedly --repeated by railroad spokesman who quoted Mr. Wirtz. It was said by Oren Harris on the floor of the House of Representative. This Court's Norwood statement, again, I don't say of course that it's binding in any sense but it certainly is persuasive evidence that Congress had the right to rely on things, nothing in the legislation. It is the contextual factor in relation to what is actually there that is overwhelming in denial of the whole preemption point it seems to me. The court below ruled and said, “We are impressed the Court said where the need for an orderly system of transportation." The railroads in the amicus frankly say, “Let's sweep this whole thing clean in this case and just have a whole series of rules.” We submit that this is beyond function in this case, Your Honor.