Earl Warren: Harry Hahn against Ross Island Sand & Gravel Company. Mr. Schwab.
Dwight L. Schwab: May it please the Justices of this Honorable Court. The issue that is before the Court here involves the following. An employer ex parte rejects a State Workmen's Compensation Act. His twilight zone employee is injured by reason of his employer's negligence. Now, the employee would have been entitled to workmen's compensation, but for the rejection of the Compensation Act.
Speaker: Oh, I think we'd have some question about that, isn't it?
Dwight L. Schwab: I don't believe so, Your Honor.
Speaker: (Inaudible)
Dwight L. Schwab: The Compensation Act grants to the employee a substitute remedy under these circumstances where the Act had been rejected. Now, the question is, is the employee prevented by the United States Constitution from exercising that substitute remedy? The Oregon Supreme Court says, “Yes. An employee in circumstances like that has no state remedy whatsoever.” In this case, the plaintiff, Harry Hahn worked for the defendant, respondent, Ross Island Sand & Gravel Company. Ross Island Sand & Gravel Company incidentally is an Oregon corporation which operates in the Portland area, dredging up sand and gravel and selling it in the Portland area for commercial purposes. The plaintiff in this case was hurt on March 23rd, 1955. Prior to the injury of the plaintiff, the defendant Ross Island had rejected the State Workmen's Compensation Act. Now, in Oregon, the state act is elected and -- however, where a hazardous occupation is involved, which this was, the employer automatically comes under the Act until he rejects it, but he may reject it at anytime by a very simple method of writing a letter to the Commission saying, “I reject the Act.” Now, in the event the employer of this kind does reject the Act, he is subject, in the event, a workman is injured to an action for negligence with the common defenses of a fellow servant, assumption of risk, contribute -- contributory negligence removed. I think this is rather common in all of the elective acts and there are about 25 elective acts in the United States. He also, in Oregon in addition, the employer who rejects is also subject to an action pursuant to the Employers' Liability Act, the Oregon Employers' Liability Act. Now, both of these sanctions against the rejecting employer are provided for by the Workmen's Compensation Act itself. In other words, the -- instead of the Act, you can say, “If you don't comply with it, you will as a rejecting employer be subject to the following actions in the case you are negligent.” Now --
William J. Brennan, Jr.: Can an employer in Oregon reject the Act as to some of his employees and none as to others?
Dwight L. Schwab: I don't believe so.
William J. Brennan, Jr.: (Voice Overlap) --
Dwight L. Schwab: I think it's one or -- either one way or the other. Now, that's the basis of this action. It's a negligence action based on the Oregon Workmen's Compensation Act, the allegations of the complaint are set out on page two of the record and the employee in this case alleged negligence on the part of the employer and he also alleged violation of the Employers' Liability Act. The case was -- was filed in the Oregon Circuit Court, which is the court of general jurisdiction. The employer in this case answered by alleging that the Longshoremen's and Harbor Workers Act was the exclusive remedy of this employee. And of course, we denied that. It was tried to a jury and there was jury verdict in the amount of $38,242 plus cost and judgment was entered on that verdict. The employer then moved for judgment notwithstanding the verdict on the grounds that the Longshoremen Act was the exclusive remedy. The trial court granted that motion and the judgment was set aside on the exclusive grounds that the Longshoremen Act was the exclusive remedy of this employee. We appeal this to the Oregon Supreme Court, which affirmed on the ground, as far as I can get it from the Courts of Opinion. One, the Congress had preempted this field. And two, although the Oregon Supreme Court recognized the twilight zone as being in existence, they held that under the twilight zone, you could only recover pure -- 100% pure compensation and nothing else, just merely workmen's compensation payments. We petitioned for rehearing and that was denied. We petitioned for certiorari to this Court which was granted June 2. Now, the facts of the case are as follows and I think they're important. I'll go into some detail on them. Our contention is that Harry Hahn, the plaintiff here was a twilight zone employee and that the defendant in this case was merely of basic elementary negligence. Now, the reason I say that is this. That there are still some contention in this case that the Oregon Employers' Liability Act places some sort of burden on uniform view of Maritime Law. Now, I want to point out right at the beginning that this employer was guilty of the most basic elementary negligence as the record shows from the undisputed evidence. Now, concerning Ross Island Sand & Gravel Company, as I say Ross Island Sand & Gravel Company was in the sand and gravel business. They've been dredging up sand and gravel for years and selling it commercially in the Portland area. If, Your Honors, would care turn to page 85 of the transcript of record, I think it might possibly help in the understanding of the facts here. There is a -- an exhibit set out, Exhibit Number 4 -- displays Exhibit Number 4. Now, in the middle of -- of Exhibit Number 4, you'll notice the river there, that's the Willamette River. This in the heart of Portland, Oregon. You see the island there, on one part of it, it says Ross. Well, this all Ross Island, including this whole Horseshoe. Down below, it says Hardtack, but actually it's all part of Ross Island, part of it -- it's all Ross Island, part of it is sometimes called Hardtack Island. Now, inside of Ross Island, you'll notice a lagoon and that's where this action all took place. Where you see the X mark in the lagoon, that is the spot where the plaintiff, Hahn, did his regular work. That's where they were dredging. At the place where you see the circle, the zero of the eight circle, that is the spot where Hahn is injured. Now, that circle there is right next to what was know as the rock pressure. That's where all the sand and gravel was taken. When it was dredged up out of the lagoon, it was put through the rock pressure and then it was belted. There was a -- some of these belts, the tramways that took all of the sand and gravel over to the mainland, which you'll notice off to the right. Now, the defendant, Ross Island owns all of Ross Island, including that lagoon area, including everything under the lagoon. They own it in fee simple. It was patented by the United States Government in 1873 and deeded the Ross Island Sand & Gravel Company in 1926. If, Your Honors, will notice that the -- as far as Exhibit 1 is concerned on page 83, there -- it shows Ross Island there with a red circle around it. It stipulated that all of that area, including the lagoon was owned by Ross Island Sand & Gravel Company. You'll notice that the lagoon itself is cul-de-sac. In other words, you can only get in on the north end and there was no other way to get in or out. Now, all of Ross Island Sand & Gravel Company's product came from the lagoon. It was put on a barge where it was dredged up. It was taken over a short distance to the rock pressure, which you'll note there in the lagoon on Exhibit 4 and then there was a conveyor belt where it was taken up to shore. They've done a lot of digging there. They've completely altered Ross Island. If the Court cares to compare Exhibit D which appears on 101 of the record with Exhibit 4, the Court will notice the alterations that have been made in there by Ross Island Sand & Gravel Company. Originally, in 1895, Exhibit D shows that the depths in the lagoon area were some eight or nine feet. Record shows that some depths in the lagoon is now over a 100 feet. Now, the defendant operates this lagoon as it pleases. It has complete jurisdiction over the lagoon. It takes no orders from anyone. There are hundreds of piling driven throughout the lagoon, cement tiers and anchors. They have erected towers for this tramway to take their product to the mainland. If the Court cares to have a close up of those towers, Exhibit 10 on page 87 or Exhibit 89 -- Exhibit 25 on page 89 will give the Court an idea of how they have built these towers right out in the middle of the only entrance to the lagoon. They've built the pressure plant which is very large in the lagoon. They've put hundreds of pilings under that pressure plant. They rent space in the lagoon regularly to log graph. Any of this exhibits here, you'll notice all log graph in the lagoon and that's a very profitable business. They -- they rent so much space in the lagoon at times that it's almost impossible to do anything else in the lagoon, to move around in there to -- even to conduct their dredging operations.
Speaker: What's the thrust of this argument you're making?
Dwight L. Schwab: The trust of it is --
Speaker: What?
Dwight L. Schwab: -- Your Honor -- Your Honor, it is this. We say that the twilight zone case.
Speaker: Is there any dispute about that?
Dwight L. Schwab: Yes, there is. If there were none, I wouldn't be making this argument.
Speaker: Well, that is --
Dwight L. Schwab: The -- the defendant testified at the trial -- the testimony showed at the trial that if anyone attempted to come in to this lagoon with the log graph and refused to pay the going rental rates that they've established that they would eject them and throw them out of the lagoon. The United States Government has established harbor lines clear around this island and kept out the entire lagoon. In other words, they have -- that is outside of the harbor lines, which would have -- which had been established in the Willamette River. The defendant dredges the sand and gravel with no permits from any governmental authority and pays no royalties to anyone. As far as the record is concerned, there is no reason why the company could not completely block off this lagoon by building a dam or chaining it off of blocking it off to anyone else coming here.
Charles E. Whittaker: Are you arguing thereby and you contend to that this were not navigable waters of the United States?
Dwight L. Schwab: No, Your Honor, I'm not making that argument. I have attempted to in the past, but I -- I'm not making that contention. I'm not admitting that these are navigable waters of the United States. I'm merely trying to show that assuming for the purpose of argument that they are, that they are grave technically so and not navigable waters of the Unites States that the Longshore Act was talking about or that the United States -- that the Court was talking about in the Jensen case in particular.
Charles E. Whittaker: Did the Supreme Court of Oregon know that they were navigable waters?
Dwight L. Schwab: The Supreme Court of Oregon said they were navigable waters. I'm merely trying to show what kind of waters they were. That if they navigable waters, they are very technically set and as such whatever goes on in there will make little or no difference as far as the uniformity on Maritime Law is concern. In other words, they are not type of navigable waters that the Jensen case was talking about or concerned about.
Speaker: What you're arguing -- the basis of your position is that this is a twilight case?
Dwight L. Schwab: Yes, Your Honor.
Speaker: And it is. Yes.
Dwight L. Schwab: Now, the plaintiff in this case Hahn --
Charles E. Whittaker: Excuse me.
Dwight L. Schwab: Yes, sir.
Charles E. Whittaker: If it were -- if it is a twilight case, that gives you what? That gives you a choice of law, does it?
Dwight L. Schwab: It's the choice of remedy --
Charles E. Whittaker: Between what?
Dwight L. Schwab: Between states and federal law.
Charles E. Whittaker: Oh, would it be between Compensation Acts.
Dwight L. Schwab: Well, that's the argument of the -- of the defendant in this case, Your Honor. Our argument is that it's a choice between state law and federal law.
Charles E. Whittaker: Sure. But one -- one law that -- that each has to compensation law.
Dwight L. Schwab: Oregon --
Charles E. Whittaker: It's the Oregon Workmen's Compensation Law and Federal Longshoremen's Act.
Dwight L. Schwab: That's right.
Charles E. Whittaker: They both cover the same field except the latter applies only to act -- acting upon navigable waters of the United States. I wonder where the choice of law or the twilight zone business gets this, isn't clear to me just yet.
Dwight L. Schwab: Well, assuming that these are navigable waters of the United States, Your Honor, as the law now stands and as I understand it, we would have to show that this was a case that fell within the twilight zone in order for the Oregon law to apply.
Charles E. Whittaker: The Oregon Workmen's Compensation Law?
Dwight L. Schwab: Yes, sir.
Charles E. Whittaker: What -- all right. Now suppose it did apply, could have applied, it won't reject it, by the employer, won't he?
Dwight L. Schwab: Well, the -- the employer rejected it, but as part of the Oregon Workmen's Compensation Act. Now first, Your Honor, I don't go along with the proposition that the twilight zone and only between, not necessarily between two compensation acts. I say it's a zone setup between state law and federal law and usually, there are two compensation acts, the Longshore Act in one side and the State Compensation Act on the other side. In this case, the employer under its own volition, you know, not only rejected the Compensation Act, but the Compensation Act said, “If you reject this Act, you are then subject to an action for negligence.”
Charles E. Whittaker: Right.
Dwight L. Schwab: And so we have come in here under the Workmen's Compensation Act within action for negligence
Charles E. Whittaker: Well not -- not used -- do you really mean that? That you're covered under the Workmen's Compensation Act from act -- with an acts over negligence?
Dwight L. Schwab: Well, I don't want to get into --
Charles E. Whittaker: The Workmen's Compensation Act doesn't actually create the common law or right for -- or damages from negligence, does it? It just says that you still haven't. That you always haven't.
Dwight L. Schwab: The Court --
Charles E. Whittaker: What was taken away from the Compensation Act?
Dwight L. Schwab: Well, the Compensation Act took it all. It took away the rights of all workers, except the compensation if the employer complied with the Act.
Charles E. Whittaker: Even the clause?
Dwight L. Schwab: Now, if the employer takes an affirmative step and refuses to comply with the Act, then of course, the Act exist. You're entitled to sue for damages with certain defenses removed from under the Employers' Liability Act.
Charles E. Whittaker: That's what? You had your old common law rights with all common law defenses eliminated?
Dwight L. Schwab: That's right. I don't want to get into the semantics or anything like that, but that -- that's what I mean when I say it's pursuant to the Workmen's Compensation. Now, in this case, Hahn was an oiler on a -- on a dredge. I pointed out on Exhibit 4 that X where he did all of his work in the lagoon.This dredge was anchored to shore. He never went outside of the lagoon at any time in connection with his work and the dredge, of course, was merely dredging up sand and gravel for sale. Now, on the day of the jury, he was doing his regular work for several hours and then he was ordered over to the rock pressure which of course is in the lagoon also to do some clean up work. The respondent had brought in to the lagoon on one of its barges from the sandy river which is nearby a hopper. Now, a hopper, I'm sorry I didn't include one in the record here, we have some pictures of it. But a hopper is merely a square object sitting on long legs on which sand and gravel or the sand and gravel is put in the top, a truck drives underneath, a lever is released and the gravel goes into the bed of the truck. It's a method of loading the truck. Now, this hopper was owned also by the respondent. It was brought into the lagoon and by means of a land based crane, they were transferring this hopper from this one barge to another barge tied up right there at the rock pressure. Hahn was told to go over there in connection with this changing the hopper from one barge to another. He got there just as the hopper was being set down on the second barge. This was at night. It was dark. Hahn was then ordered to go up the hopper to the top and release the -- the cable which was attached to the crane and to the hopper so they could get the hopper away from crane. Hahn went up the ladder. He got through to the top practically and suddenly the ladder pulled away from the hopper completely. He fell over backwards, of course, landed on his back and was very seriously injured and the ladder fell on top of him. Now, the evidence shows that he received no warning of the condition of the hopper and that the top of the hopper where the ladder was fastened was so rocking that it just couldn't hold the ladder. It was -- the ladder was nailed which was in violation of safety rules, which of the course of law in Oregon and there's just no question that there was elementary negligence in this case. Hahn has not worked since the injury. Now, the respondent's case is based on the Jensen case and the Jensen case is the basis for which you might say Mr. Hahn's troubles are here. Jensen case of course was decided 1917. After a while, the Jensen doctrine was sought and somewhat by the local concerned rule, but this Court found after a number of years of attempting to split hairs that a lot of hardship was being caused and that it was being required to -- to determine from a factual standpoint, a lot of cases and the Court finally decided that it the should not go any further on that and the twilight zone was born. The Court considered, I believe, and decided not to overrule the Jensen case, although I believe it was seriously considered. But in order to prevent hardship, this Court set up, of course, the twilight zone in which the workmen's choice of remedy, whether the state or federal law was -- the Court said would be upheld. If the workmen went in in this twilight zone, in this area of doubt shows you the state law or federal law, his choice should be upheld. Now, in this case, I don't think there's any question that this employee is -- falls within the twilight zone. I think the Court is familiar with the -- with the facts in the Davis case, the Baskin case, the Morris case and a simple comparison of the facts, I think, will show that this employee did fall within the twilight zone. Furthermore, it was a matter purely of local concern in this case. And even before the twilight zone was setup, this employee could have recovered under the local concerned doctrine. Now, it's true that in this case, the petitioner is not getting pure compensation. But I -- I want to emphasize again that what he was he has asked for in this case was provided by the Compensation Law.
Speaker: That he gets compensation?
Dwight L. Schwab: No, Your Honor.
Speaker: He can't get compensation (Inaudible)
Dwight L. Schwab: He cannot get compensation under the state law because the employer rejected the Act on its own.
Speaker: (Inaudible)
Dwight L. Schwab: But for the rejection of the Act, You Honor, there is no question he could have gotten compensation. No question about it, assuming it falls in the twilight zone. Now, this Court in the Davis case set up -- not set up, but reaffirmed, I should probably say, the presumption of constitutionality of state law. And this is of course is purely a constitutional question. Can Oregon apply its laws in this particular situation? And of course, the Court said in the Davis case, that prima facie, every state is entitled to enforce in its own courts its own statutes lawfully enacted. Now, that -- incidentally, that presumption of constitutionality was not discussed by the Oregon Court in its decision and has not been discussed but the respondent in its briefs. The Oregon Court in its decision relied on cases such as Pennsylvania Railroad Company versus O'Rourke which was decided by this Court some five or six years ago in 330 -- 344 U.S. The O'Rourke case, in our opinion, is completely inapplicable to this situation here. That was purely a case of statutory construction and the Court so stated in Footnote 8 of its opinion, purely statutory construction between two federal acts. This of course is a constitutional question. The Court relied -- the Oregon Court relied on certain language in the O'Rourke case to the effect that New Jersey could not have provided compensation for this injured work on navigable waters. Well, obviously, New Jersey could not have done that because the injured workmen in that case was a railroad worker and of course, there's no question that no state can apply its compensation laws to a railroad worker. I don't -- the Oregon Court is not the only court that has misinterpreted the O'Rourke case. It's been misinterpreted by other courts and the respondent here relies heavily on a -- on a Fifth Circuit Court of Appeals case and filed a supplemental brief in connection with that case, which this case was decided recently. I believe there's a New Jersey case in which the O'Rourke case was also misconstrued. As far as the Fifth Circuit of Appeals is concerned and the Oregon Supreme Court, I think the answer is that those courts do like the twilight zone or the Davis doctrine. It's just a situation of those court not liking that solution. They like the cut and dried proposition that was set out in the Parker versus Motor Boat Sales case where you just draw a straight line. But of course, the Parker case must be construed in connection with the Davis case. Now, under the Davis case, the Court said under the Jensen hypothesis basic conditions are factual. Does the state law interfere with the proper harmony and uniformity of Maritime Law? If the state law does not interfere with proper harmony in uniform with the maritime law, then of course the state has a right to apply its own law. Now, I have been in connection with this case from the beginning. This man was hurt in 1955. I've been through three courts with this case and I'm still unable to figure out how, allowing this injured workman to recover this judgement which he received in the Oregon Court is going to under the facts interfere with the uniformity of Maritime Law. It's argued that the Jensen that -- that under the Oregon Law, under the Employers' Liability Act that there's two high standard of care. Now, there is no higher standard of care than Workmen's Compensation. That's a liability without fault and yet there is not question in the twilight zone, Workmen's Compensation is proper. If the Employers' Liability Act has a lesser standard of care and of course the ludicrous thing about the whole thing is that the case that setup this entire doctrine, the Jensen case, talking about interfering with the uniformity of Maritime Law was based on the Jensen case which was a workmen's compensation statute. And yet, there is no question now that workmen's compensation can be -- laws can be applied. Furthermore, there's a lot situation in Maritime Law where there is a very high standard of care. In fact, liability without fault. And of course, in this case as I pointed out before and I would like to say it again, under the fact, this employer was guilty of plain ordinary -- regarding a variety of negligence. You don't have to go any higher than that.
Speaker: Of course, I want you to (Inaudible) --
Dwight L. Schwab: My answer to that is this, Mr. Justice Harlan. In this case, I don't think that is a valid argument. They make it. I think you're just posing it here as a question. In many situations -- or in some situations possibly, it would be considered to -- to interfere with uniformity and it might be a bad situation to subject an employer to a situation like that where he couldn't protect himself. Now, they cite Gilmore and Black, where Gilmore and Black suggest that there's no twilight zone between the Longshore Act and the Employers Liability -- Federal Employers' Liability Act, the Jones Act and so on. And suggest that the reason is because this Court doesn't want to subject an employer to that -- the difference between a Compensation Act at one end and a jury verdict on the another end, which they can do nothing to protect themselves against. All right, in this case, all the employer has to do is to comply with the Oregon Workmen's Compensation Act which most employers do and he can completely protect himself against any judgement under the employer --
Speaker: You said that's a valid consideration where the employer got the right to go under a state act?
Dwight L. Schwab: I don't think it is, Your Honor. Anytime this employer wants to comply with the Act, he can get the protection of the Act and only have to make compensation payments.
Potter Stewart: Mr. Schwab, the Longshoremen's Federal Workers Compensation Act requires action on the part of the employer too, doesn't it? Doesn't it require that he'd call security?
Dwight L. Schwab: Yes, Your Honor. It does.
Potter Stewart: And it's a misdemeanor not to actually, isn't it?
Dwight L. Schwab: Pardon?
Potter Stewart: It's a misdemeanor not to?
Dwight L. Schwab: That's right.
Potter Stewart: Now, did this -- does the record show that this employer complied with those provisions under the Federal Act?
Dwight L. Schwab: The record shows this employer did comply with the Longshoremen's Act. I might say in that connection now that it's -- it's mentioned, Your Honor, that the argument, remedy against an employer who fails to comply with the Workmen's Compensation Act is practically the same as an employer who fails to comply with the Longshoremen's Act. Both of them are subjected when you -- you mentioned misdemeanor, but in the Longshore Act, he's also subjected to an action for damages, for negligence with all the defense (Voice Overlap)
Potter Stewart: Either that or your common law, as I recollect.
Dwight L. Schwab: Yes, sir. That's right.
Potter Stewart: Well --
Dwight L. Schwab: And all of these common law defenses are taken away from him just like here.
Potter Stewart: Your argument is valid with I believe, the necessity of his complying with both Acts if he wanted to avoid an action against him from which he would be stripped of all his defenses, an action against him in a jury trial.
Dwight L. Schwab: Well, yes, Your Honor. If he fails to comply with the Oregon Workmen's Compensation Act. For the ordinary land-based employee, there is no question he is subjected to this law --
Potter Stewart: The Oregon law.
Dwight L. Schwab: -- we've talked about. Yes. And in the twilight zone, there should be no difference.
Potter Stewart: Now, there is a difference, wasn't it? Because here in the twilight zone, if this is a twilight zone, as I'd say your argument would necessitate his complying with his posting a security under the Federal Act and indicating his willingness to comply under the State Act in order to prevent his being subject to a lawsuit from a jury in which all of his defenses would be taken away from him.
Dwight L. Schwab: Of course, that's the Davis case, Your Honor. That a person in twilight zone is entitled to recover under either Act, whichever --
Potter Stewart: The -- the Davis case affirmed the action of a State in giving state workmen's compensation to Mr. Davis or his -- a plaintiff who fell of the bridge, fell off --
Dwight L. Schwab: Fell off a barge.
Potter Stewart: -- hard -- a long bridge.
Dwight L. Schwab: Yes. He fell off the barge while he was loading steel.
Potter Stewart: Steel.
Dwight L. Schwab: That's what he was doing. And the Court in that case held that if he had indicated that whichever Act he'd applied under, whichever one he -- he asked for, he could have gotten. Now --
Hugo L. Black: In that case, the State of Washington had held that he could not recover.
Dwight L. Schwab: That's right. The State of Washington through four different tribunals had held he could not recover and this Court said he could. Now, on the other hand, in the Parker case where he applied for relief under the Longshore Act and that was a situation that appeared to come under the local concerned doctrine, but in that case where he -- where he required for relief under the Longshore Act. The Circuit Court of Appeals said, “No, it's a local concern.” But this Court reversed and said, “No, that's what he asked for, that's what he is going to get.”
Hugo L. Black: What -- what reasoning did the Court find to be so sure that this man could recover under the -- under the Federal Act?
Dwight L. Schwab: That's what I'd like to know, Your Honor. There's no assurance that this man --
Hugo L. Black: There were quite a number -- quite a number of cases before the Davis case where I should think strong argument could be made that this was one of those mysterious local situations where and wouldn't know whether which one he could recover on.
Dwight L. Schwab: That's the exactly the reason Your Honors decided for setting up the twilight zone because whichever way an injured worker went, the employers who naturally -- or their insurance companies are naturally interested in saving money. They -- they're very clever. They can always find a reason why this is on the other side of the fence. Whichever way this men went, it sometimes take four or five years for them to establish their rights. In this case they say, “Oh, you can get your Longshoremen's benefits.” Well then, we can and maybe we can't. They didn't asked for it. This maybe -- it might go just as far. They'd say, “Oh, no, you should go over on the state side.”
Hugo L. Black: What argument did the Court of Oregon make in deciding the fact that it was plain that it -- have it to satisfy through the Davis opinion that it knew that this would come under the Federal Act.
Dwight L. Schwab: None whatsoever. They just said it did, Your Honor. I -- I don't think they cited any reason for it all and they just categorically set up that -- on their own that -- that if you couldn't get anymore that compensation either because -- and as I said, they used the O'Rourke case pretty much as their authority for that.
Hugo L. Black: May I ask what your Attorney General has to do with the administration of this role?
Dwight L. Schwab: The -- Mr. Lafky is here, Your Honor, and he will explain that. He's -- I'm giving him 10 minutes of my time if -- if that's agreeable. I have only five minutes. I'm going to take only 40 minutes, give Mr. Lafky 10 if that's agreeable. Now, many people are affected by this case. I want to point this out. We show in our brief that 25% to 40% of the workers in this country are not covered by compensation and an awful lot of those people at sometime or another and maybe all the time comes within the twilight zone. You can just let your imaginations run as to all the different situations where all these workers would come in to the twilight zone at sometime or another. Now, just because all of those people are not covered by state compensation, does that mean that they are -- all of them to be completely deprived of all of their state remedies? This case holds that. In Oregon, there is over 2000 miles of navigable waters. Now, some states don't have that much and some have more and there's 100 of employers, small employers, big employers along those navigable waters. Now, all the employees of those people to -- to be -- to be deprived of all their state remedies if they reject the Act of if they aren't covered by the Act. As I say, there's 25% to 40% of the workers in this country that are not covered by any kind of workmen's compensation. A lot of these employers, the small employers, the loggers, the farmers who float their produce down the river and saw it never heard of the Longshoremen's Act. They haven't complied with it. A lot of them wouldn't think they were covered under if they had heard of it. I think it's 30% of the people in this country don't even know who the president of the United States is. Now, workmen's compensation, this Court, I think, everyone agrees and practically is a good thing and there's a lot of non-negligent injuries where people should be covered by workmen's compensation. But employers, some of them, a lot of them, look at it only from a coal dollar and cent standpoint and they like to avoid the expense of taking out workmen's compensation if they can. So, in order to make these employers comply with Compensation Acts, it's necessary to have coercive measures in the Compensation Acts. And that's exactly what they have in the Oregon Act, and the reason that it's put in there is clearly and only to force these employers to comply with the Act. Now, under the decision of the Oregon Supreme Court, the employers are encouraged to reject the Act. Because they can reject the Act and then if they do reject the Act, they don't come under any of the alternate provisions of the sanctions. So it's a good example of a man having his cake after he had already eaten. They can reject the Act and completely avoid liability under state law by rejecting the Act and the Oregon Supreme Court encourages that. I say that the decision of the Oregon Supreme Court is illogical. And if you allow the Oregon Supreme Court's decision to stand, you are allowing an employer to unilaterally make a constitutional determination. In other words, the employer, if he complies with the Oregon Compensation Act, allows his employees -- his employees unconstitutionally come under state law. On the other hand, if this decision stands and that employer rejects the Compensation Act, he is constitutionally deciding that none of his employees are subject to state law and I'd say that is a ridiculous situation. There are over two million industrial accidents a year and any decision like this, which encourages employers to reject Compensation Acts should be scrutinized with a great deal of care because this case encourages an employer to reject the Compensation Act. Now, the United States construction --
Hugo L. Black: (Voice Overlap) -- could give any indication of what cause in this case had been up to date?
Dwight L. Schwab: About the costs?
Hugo L. Black: Cost, yes.
Dwight L. Schwab: The cost?
Hugo L. Black: The cost, court cost.
Dwight L. Schwab: Your Honor, that's --
Hugo L. Black: Is there anything in the record that --
Dwight L. Schwab: It's not -- it's not in the record, but it's tremendous. And Harry Hahn, of course, was injured near four years ago and he has had become clear to this Court just to establish his right to obtain state relief and the only difference between this case and the Davis case is that here there's negligence, in the Davis case, it's compensation.


Earl Warren: No. 28, Transportation Communication Employees Union, petitioner vs. Union Pacific Railroad Company. Mr. Kraemer.
Milton Kramer: Mr. Chief Justice, May it please Court. In 1951 or there about, the Union Pacific Railroad installed a battery of new machines in its yard at Las Vegas. These were 11 machines of 7 types. This battery of machines performed work that prior thereto was performed in part by telegraphers represented by the Transportation Communications Union and in part by the clerks but it assigned all this works to clerks. Although we performed work, the midi fact was work formally by telegraphers in part. The TCU (Transportations Communications Union) filed a claim with the railroad claiming that assigning this work or even committing it to be performed by a craft other than the telegraphers was a violation of the Collective Bargaining Agreement. The claim was in the words of every Labor Act handled in the usual manner and without agreement. It was then submitted to the National Bureau of Adjustment, the very Division. We asked the Board to hold that having the communications aspect of the work performed by employees other than telegraphers was a violation of the agreements and that the remedy should be that each time it happened, the senior idle telegrapher, at the time it happened, be paid a day's pay. The Third Division gave notice of its proceeding to the Brotherhood of Railway Clerks which represented the clerks and offered them an opportunity to participate, to be heard that they care to. The clerks replied stating that they understood the dispute was over the interpretation of the telegrapher's agreements that is whether the telegraphers’ agreement covered part of this work and our understanding is incorrect said the clerks. We did not get a response. The clerks’ response continued that “if my understanding with this dispute is correct, we are not involved and we do not care to be heard”. They added that the rights of the employees represented by the brotherhood of railway clerks is predicated on the clerks’ Collective Bargaining Agreement and not on any other and that if at any time or for any reason, the carrier should assign work covered by the clerks’ agreement to employees not covered by the clerks’ agreement. They would take the appropriate steps under the Railway Labor Act. Now, in the proceeding, the carrier argued to the board, among other arguments that all the work was covered by the clerks’ agreement and they were committed to make that argument. Now the Court of Appeals in this case is in error in one statement it made. It says that evidence of the clerks’ agreement was excluded by the Adjustment Board Rules of Evidence. Now there is not a word in the record to support that and in fact, it is not so. The regulations of the Adjustment Board commit anybody to submit anything it wants. Doors are wide open. About the award of the adjustment board sustained the claim of TCU (Transportation Communication Employees Union) used to be named Order of Railroad Telegraphers. There's been a change in name.
Potter Stewart: No question about the Collective Bargaining Agreement with the clerks was not before the Adjustment Board in this proceeding.
Milton Kramer: Oh! We don't know. We do know that the carrier argued that the clerks’ agreement covered it.
Potter Stewart: The record doesn't show whether the Adjustment Board had --
Milton Kramer: The record doesn't show whether they attached a copy. All these arguments were in writing and have lots of exhibits that were submitted to the Adjustment Board.
Potter Stewart: There was no hearing, they had no oral hearing.
Milton Kramer: Well, I don't know if they did it in this case or not. They rarely do it. They rarely have oral hearing.
Byron R. White: Was the agreement, Bargaining Agreement with the Clerk's Union in the record?
Milton Kramer: Well, I submit to Justice Stewart just asked me --
Hugo L. Black: Well, you said there were lots of exhibits. Now, I don't know what exhibits were there.
Milton Kramer: Well, I don't either. It's not in the record. But a member the Adjustment Board as a vice president of the Clerks Union.
Tom C. Clark: Well, Mr. Kraemer, what is the procedure before the Board? I am intrigued. I know the composition of the Board so far, he said that no hearing what they do, they just assemble or --
Milton Kramer: Oh! No, the party, presenting the dispute gives of intention to file the following claim and then they -- this is slightly from division to division. Then in 30 days whatever period it is submit the statement of facts, position of the spouses who disputed the facts. Well, they have the resolve it upon the basis of a written document.
Tom C. Clark: On the basis of the written documents.
Milton Kramer: They don't have any witnesses.
Tom C. Clark: They don't take any evidence though?
Milton Kramer: No, the only evidence as written evidence submitted by one side or the other. Now they sometimes --
William J. Brennan, Jr.: Now, I'm sure there must be instances of disagreement over what may be controlling fact.
Milton Kramer: Yes. But the evidence is written evidence. Now, sometimes a case is remanded to the railroad for the development of the traditional negotiations, let say. But they never have witnesses and quite seldom have oral argument.
Tom C. Clark: Do they have affidavits or about an affidavit of--?
Milton Kramer: Not affidavits in the sense of testimony.
Tom C. Clark: They don't any deposition -- .
Milton Kramer: Oh! No.
William J. Brennan, Jr.: In ordinary labor arbitration, and you have got lot of experience in this, is that valid point?
Milton Kramer: No, this is quite formal. In the ordinary labor arbitration you have witnesses.
William J. Brennan, Jr.: That's what I would suppose -- .
Milton Kramer: But here they have – they follow a one ritual and one side files papers and the other side files a response. And so not long ago we could keep on replying to each other to eternity. But they've cut that short.
William J. Brennan, Jr.: Where?
Milton Kramer: In the Third Division, they used to --
William J. Brennan, Jr.: You mean “cut that shorter”. What point?
Milton Kramer: Oh! I think we can respond to each other about twice or three times.
William J. Brennan, Jr.: How about the old common law pleading?
Milton Kramer: Almost. No somewhat loose in that because common lawyer couldn't file a pleading unless additional facts were alleged not just additional arguments. Here, they can reply to each other's arguments.
Abe Fortas: Well, if the carrier argued that it was covered by clerk's agreement you would think the carrier would have something in the record?
Milton Kramer: You would think so.
Abe Fortas: To argue from what --
Milton Kramer: Yes.
Abe Fortas: You say you don't know whether it was there or not?
Milton Kramer: No.
William J. Brennan, Jr.: But you say clerk's vice-president was a member of the tribunal?
Milton Kramer: Yes. Now, certainly, the carrier was not precluded from submitting the clerk's agreement. It can submit anything it wants and if it wasn't in the record it was only because the carrier did not see fit to submit it. If it was not in the record, they certainly could've put it in the record.
Hugo L. Black: Did they have an oral argument or they just submit it on the papers?
Milton Kramer: They normally do not have an oral argument.(Voice overlap) But sometimes --
Hugo L. Black: It's really on the pleading then --
Milton Kramer: Well, it's more than pleading, the pleading that these papers contain an argument. They are both statements of fact and briefs. It's written argument rather than oral although occasionally there maybe an oral argument. Well, the Adjustment Board with a new proceeding as a member, sustained this aspect of the telegrapher's claim and ordered the carrier to compensate the senior idle employee each time it happened. And the Union Pacific refused to comply and it refused to pay the senior idle employee and we brought an action to enforce the award under Section 3 (p) of the Railway Labor Act. The District Court held that the clerks were an indispensable party to that lawsuit, to enforce this award which said that the telegrapher's contract had been violated, and dismissed for that reason. The Court of Appeals wrote two opinions. The first opinion it reversed the holding of the District Court saying that the clerks were not indispensable to the court proceeding but that they were indispensable to the Adjustment Board proceeding and the case should be remanded to the Adjustment Board which would require the clerks to participate. But then later, withdrew that opinion and affirmed but it affirmed not on the ground that the clerks were an indispensable party to the court proceeding as the District Court has done. But that the award was invalid because the clerks, I'm quoting, “for all practical purposes became party to the administrative proceedings. Now, just what the Court meant by that I don't know. It is unclear what the board should do but I presume what they meant was that the Adjustment Board must make an interpretation of post agreements. At the same time, whether or not the clerk's participate, they did say that the Board should make a complete disposition of the dispute as to all concerned parties. And I presumably admit, that you must make a ruling on the meaning of the clerk's agreement. Well, the first one remanded, reversed and said that the District Court should not have dismissed the case but should have remanded it to the board. And the second case, it said the award was invalid and therefore, the enforcement suit should be dismissed.
Speaker: (Inaudible)
Milton Kramer: Well, what I was saying was that the Board should have made an interpretation of the clerk's agreement. The clerks who were invited, refused to participate.
Speaker: (Inaudible)
Milton Kramer: In the White House Case, White House against Illinois Central, this Court said, now perhaps by way of dictum, in a similar situation where the clerks were not in, where notice had not been given and an attempt was made to enjoin the Board for proceeding, this Court said that -- maybe a decision would be made that doesn't hurt anybody, it doesn't hurt the railroad. In any event, the only necessary parties are before the Board. Now, the clerks were not there. And this Court said the only necessary parties are before the Board.
Abe Fortas: Mr. Kraemer, did the Railroad object before the Board -- I know these proceedings are little baffling -- may be they don't object but did they in some way manifest their objection to the proceedings before the Board in the absence of the Clerks.
Milton Kramer: No, they did object initially when notice was not given to the clerks. Then they objected to proceeding without the Clerks being given opportunity to appear if they wanted to. Notice was then given.
Abe Fortas: That's his letter which is on the record?
Milton Kramer: Yes.
Abe Fortas: And then the clerks responded and said “No, thank you”.
Milton Kramer: They said: “We are not interested. The dispute, as we understand it, has always a meaning of the telegrapher's agreement and we're not interested”.
Abe Fortas: Was there any objection taken and whether the forum by the Railroad be arrested?
Milton Kramer: I believe not.
Abe Fortas: In other words, you are saying that the Railroad just went ahead after that in the absence of the clerks --
Milton Kramer: On the merits.
Abe Fortas: On the merits. Thank you.
Potter Stewart: But you also said that these are matters which you submitted in writing and certainly, the first opportunity in the District Court and the enforcement, the carrier objected and that's the basis of -- they filed and --
Milton Kramer: The District Court --
Potter Stewart: This is one of –
Milton Kramer: That the clerks were an indispensable party to enforce and award/ withheld that the telegrapher's agreement covered the work.
Potter Stewart: Yes.
Milton Kramer: The Court of Appeals did not agree.
Potter Stewart: No.
Milton Kramer: Most of the argument, Your Honors, is on the record beginning on page 5 through 71 is reported, just about all that was submitted to the Board in writing. 85 and 71 of the record. The Court of Appeals said that this lays a jurisdictional dispute between two unions. There is no dispute here between two unions. The only dispute involved here is, did the telegrapher's agreement covered the work and that the carrier, therefore, violate it when they designed it to other than telegraphers. The BRC, the clerks thought that they weren't involved in that dispute. They thought that they had any right just predicated on their contract which has not been violated. But if you assume that there is a dispute here between two union, as the Court of Appeals held, the Adjustment Board doesn't have a jurisdiction to resolve disputes between unions. Its jurisdiction is provided in Section 31 of the Act. It is dispute “Dispute between and employee or group of employees and a carrier or carriers”. Now, if there is dispute between unions, it doesn't come into that category and the Adjustment Board couldn't decide it. But in any event there is no dispute here between the unions. Clerks are not disputing the meaning of telegrapher's agreement and vice versa.
Byron R. White: Then that the only reason that the only way they said that they are not in any dispute is that they would both say that, well, the employer has simply contracted with two unions for the same work.
Milton Kramer: If it was so determined, yes.
Byron R. White: And that then there is no dispute between the unions?
Milton Kramer: Between the unions there is no dispute.
Byron R. White: That the employer could pay them both.
Milton Kramer: Yes, and it's all contracted, or were to see to change the agreement but which they did not try do. This award came out five years ago and they still haven't tried to change the agreement. They could serve a Section 6 notice and go through the procedures of the Railway Labor Act and if they weren't successful in persuading one union or the other to change the agreement, it could then unilaterally change the rule. But it has not even tried to do that. Also the Adjustment Board could not, in this proceeding, issue a final and binding interpretation of the Clerks Agreement because there is no dispute between the carrier and the clerks over that meaning of that agreement. The dispute must be between the carrier and the union and they have no dispute over the Clerk's Agreement and unless there is a dispute, the Adjustment Board would not have jurisdiction to render an interpretation of it. And secondly, even if there were such a dispute, before the Adjustment Board can exercise jurisdiction, the Railway Labor Act required that the dispute be handled in the usual manner up to and including the Chief Operating Officer of the carrier designated to handle such disputes. Until that's done, the Adjustment Board does not have jurisdiction. And that hasn't been done with respect to the Clerks Agreement. In fact, the National Railway Adjustment Board Regulations in conformity with that provision, said that it will not entertain a petition, will not consider a petition unless the subject of it was handled in the usual manner on the property up to and including and so forth. So they couldn't issue a final and binding interpretation of the Clerks Agreement within their jurisdiction under the Railway Labor Act. There was no dispute so they had no jurisdiction and it was not handled and so they did not have jurisdiction. Very easy, they -- Well, if the Railroad agrees with them, they would let them go on doing the work, pay twice but they could seek to plea -- pardon? Well, they could seek to change one of the agreements.
Speaker: (Inaudible)
Milton Kramer: If the work is taken away from them and they claim to work. You have two proceedings. I wouldn't say it's quite complicated.
Speaker: (Inaudible)
Milton Kramer: If the Adjustment Board holds and it contracted to give the same work to two different crafts, yes. And, but if the Adjustment Board holds that and the adjustment rulings are not reviewable on the merits, then it must seek to change one of the agreements. And under the Railway Labor Act, you can change it unilaterally after you follow certain procedures. But it hasn't made any effort to do that. What it really should have done is before installing these machines, was to negotiate. But it didn't try.
Speaker: I suppose that what you're telling us may be put this way that Railroad has a contract with the telegraphers and the Railroad has a contract with the clerks and those don't necessarily have to be synchronized or consistent. And it is the Board dysfunction to attempt to do so, is that it?
Milton Kramer: It is distinctly not the Board's function, that Board has no authority to change agreements. Its jurisdiction is limited to the interpretation or application. And that's perfectly clear from the statute. Believe it, if it weren't perfectly clear from the statute, the legislative history, the draftsman and the chief proponent told Congress that they would definitely have no authority to cleanse the rules. All they could do would be to interpret/agree on rules. And the Adjustment Board just can't synchronize or accommodate one to the other or what have you. It could only interpret and nothing else. Also, the carrier says that they are entitled to be protected, if they could comply with the award. Of course here if they comply, it's only paying money but sometimes they are ordered to get someone to work. And they are entitled to be protected. Where will they get that right, if they contract with more than one organization for the same work? Why shouldn't they be liable to both? And if the Adjustment Board can relieve them of their liability under one, which has no jurisdiction to do, it would simply destroy Collective Bargaining on the subject and the scope of the agreement. Every Union, I came to -- asked that certain work be included in this contract, would give an affirmative answer. (Inaudible) put it in new agreement and (Inaudible) new agreement, anybody who wants it. And then when one of them says you violated my agreement, we go to the Adjustment Board, the Adjustment Board awards it to one and they're home free with the others. Well, there is nothing in the Railroad Labor Act that does that? The Adjustment Board can't set aside agreements, can't change them. They simply destroys Collective Bargaining if they could do that. Now, under the National Labor Relation Act --
Hugo L. Black: Why would they destroy collective bargaining?
Milton Kramer: On this subject?
Hugo L. Black: No, but the system did not put on the basis that Railroad only can to a contract with one person.
Milton Kramer: Oh! No, it would not. But if it in fact -- that might have been its intents but if in fact, it contracted with another one, all they say is (voice overlap)
Hugo L. Black: But the system that they are trying to get arbitration, trying to get an agreement between – try to prevent strike that the system, based on the idea that they would only employ one person to do one job.
Milton Kramer: Well, the Railway Labor Act has no interest on how many people, are employed for any number of jobs, it's sole interest is to try to avoid strikes.
Abe Fortas: Is it the point though that this is not an arbitration proceeding.
Milton Kramer: It is an arbitration proceeding. This Court has held.
Abe Fortas: This is not an arbitration proceeding in the sense that the Board has the power to make rules.
Milton Kramer: No.
Abe Fortas: The Board's function is confined to construing contract, is that --
Milton Kramer: That's right. That's all it can do. It cannot change it. The only way you can change contracts by arbitration of railroad evidence is displayed by an agreed arbitration would be one exception the Congress enacted three years ago. But if the carrier's contention is right that they could be relieved of liability on their other agreements, if it's found out that one covers it, I said they can deliberately contract with anybody who wants it. And then have the Adjustment Board bail them out, the Act wasn't designed for that.
Hugo L. Black: The Act was designed to sort of break in piece.
Milton Kramer: Yes.
Hugo L. Black: And one of the things that have been bringing about the most unfit is jurisdictional dispute.
Milton Kramer: Well, I think that is probably not so in the railroad industry, we do have jurisdictional dispute. But we don't have any strike here. There's no strike or federal strike.
Hugo L. Black: I am not saying you are not right; I am just throwing attention to the fact -- jurisdictional dispute has been a long time --
Milton Kramer: Mr. Justice Black, there were three cases in 320 U.S. which repeatedly said that, “Congress provided that administrative remedy for certain disputes. Judicial remedy could be availed of in certain situations and in many areas left it entirely to negotiation, mediation, conciliation and there was to be no administrative or judicial remedy in large areas of disputes in the railroad industry. This Court has said it several times -- (Voice overlap)
Hugo L. Black: How can anything like this be settled?
Milton Kramer: How can it be settled, by negotiation or mediation?
Hugo L. Black: Of course, they won't negotiate/mediate, is that it?
Milton Kramer: Well, they have to negotiate.
Hugo L. Black: Two unions.
Milton Kramer: The union has to negotiate with the employer.
Hugo L. Black: Well, if they won't negotiate with each other and settle and divide the job, how can it be done?
Milton Kramer: Well, I suppose one way to be done would be for the railroads to decide which union it ought to have it and so the other union, with a notice to change its agreement. And then when you have the negotiations and you have your mediation and possibly other procedures under the Railway Labor Act, including a proper arbitration and to be detected and the carrier can make the change in a lot of ways, once it's going through those procedures. And the TCU agreement would thereby be changed -- when that provision would be out. Now, whether they would strike over, I don't know but not likely. It's only a handful of jobs involved. They might. But at that time, some years hence, we would first have the possibility of strike. But it just doesn't happen that way. Strikes do not eventuate over things like this.
Hugo L. Black: Strikes don't occur when jurisdiction is -- .
Milton Kramer: Well, of course, they do. I don't know of any strike in the railroad industry over jurisdictional dispute. Well, there may have been a few one or two day strikes perhaps.
Byron R. White: Mr. Kraemer, is your position that the Board cannot, in any event, force the clerks under the proceeding.
Milton Kramer: That's right.
Byron R. White: Is the rule now that they have to get the notice though --
Milton Kramer: We came around to that. For a long time, we disputed and when --
Byron R. White: You even did it in White House.
Milton Kramer: Yes.
Byron R. White: You won at White House -- .
Milton Kramer: I won on a different ground, not on that ground. (Voice overlap)
Byron R. White: Your position was that they didn't give notice.
Milton Kramer: That's right, at that time. But this Court denies certiorari in an earlier case in which the Union won. And then the case after White House, it denied certiorari when they lost over that issue. So we then gave up and the lower courts were holding against this --
Byron R. White: What is the purpose of giving the clerk's notice -- they got the permit that they wanted.
Milton Kramer: That's right.
Byron R. White: Now what if the clerks did come in?
Milton Kramer: They could come in and say anything they want.
Byron R. White: What if they come in with an agreement in their hand and said, “Now look, we didn't expect the employer to assign -- , to agree to pay people for the same work and I'm sure they selected people either didn't like to (Inaudible)either. But one of the -- (Inauidlbe) since we have got a dispute with the employer and one of the either of it hasn't and the Board said “Well, we think the (Inaudible) got disputed and just trying to get the employer, and you don't. Are the clerks bound?
Milton Kramer: Well, you don't what?
Byron R. White: Are the clerks bound?
Milton Kramer: Well, I didn't get the implication.
Byron R. White: Well, they say that the clerks -- You have no claim against the employer at all, it's not your work. If I would interpret your contract to mean that it doesn't cover this work.
Milton Kramer: The Adjustment Board would not have jurisdiction to do that.
William J. Brennan, Jr.: Well then, I don't understand, Mr. Kraemer. You say they can't force the clerks in because they wouldn't have jurisdiction to do that. How do they have jurisdiction if they are invited in and they come in? I don't follow that.
Milton Kramer: They were invited in to make any presentation they want.
Byron R. White: Well, they do and they come in and they say, look, that we have a dispute with the employer and he is not of this Court to -- This is our work. We ask you to interpret our contract if this is our work.
Milton Kramer: But they can't ask them to interpret their contract because it has not been negotiated/handled in the usual manner on the property.
William J. Brennan, Jr.: Well then what is it the -- what function does the clerk serve that they did come in -- would they have said that --
Milton Kramer: They could come in and argue that they know that the Board would be reluctant to find that same works in more than one agreement. They might come in and argue that telegraphers' agreement doesn't cover it or they might argue that this performs work that is not really communications work.
William J. Brennan, Jr.: -- The telegraphers doesn't cover because our contract does.
Milton Kramer: No, no. They say the telegraphers doesn't because it doesn't. Because the work superseded was not communications work and --
Byron R. White: What's the backlog of the Board?
Milton Kramer: Tremendous. Well, it depends on the division.
Byron R. White: It's not like this as one could reach --
Milton Kramer: No. But it's not to remain that way because Congress amended the law and we can get a special Board anytime we want it.
Speaker: (Inaudible)
Milton Kramer: No. Three of the Divisions have each five members appointed by the Railroad and five by the Unions and if they deadlock, they are permanent members. Now, if they deadlock, as they usually do, the mediation board appoints a neutral to sit as a member of the board.
Byron R. White: If the clerks were in there and if the board did take cognizance in the clerk's agreement and there really was a fight between the two unions, the Labor --
Milton Kramer: Well, that would give the carrier to -- right every case its way. They would win every case without these at least six votes.
Byron R. White: Well, they just have to decide which union it was.
Milton Kramer: But it would get the vote of one union.
Byron R. White: They still need the work done by somebody.
Milton Kramer: Yes, but the carrier would decide every case as they wanted it. The Union would never win --
Hugo L. Black: What's so good in giving them notice that you can't bind them?
Milton Kramer: Well, the only reason we gave is to give notice to anybody involved.
Hugo L. Black: And what's the reason you give it to them?
Milton Kramer: To come in and then make such presentation as they care to make.
Hugo L. Black: But they can't present the thing which is at the bottom of the controversy and that is, that there are two contracts. Each one of them claim to get this work and you said that they can't present anything at all.
Milton Kramer: They can't get a binding interpretation of their agreement when nobody is disputing what their agreement means and they have not negotiated such a non-existent dispute on the railroad.
Hugo L. Black: The dispute is the fact that you claimed it?
Milton Kramer: No, we don't say they doesn't --
Hugo L. Black: Well, you claimed it for yourself and, all common sense practice.
Milton Kramer: Sure.
Hugo L. Black: -- that do not have people deal. That means, as you claim, the other people are not covered by that.
Milton Kramer: Well, would you say that the clerks would be bound by the Adjustment Board decision, it would be bound by the only decision the Adjustment Board would have jurisdiction to make –- that is whether or not the telegraphers' agreement covers it. If they hold the telegrapher's agreement does cover it.
Hugo L. Black: Just the procedural block, that can't become moot.
Milton Kramer: That's right.
Hugo L. Black: That came in more as Amicus.
Milton Kramer: Well, any way they want. Your Honor, what the carrier wants to do is to write into the Railway Labor Act; Section 10(k) of the National Labor Relations Act. In 1947, Congress added Section 10(k) which holds that the National Labor Relations Board can decide which union will do the work. But even then, it has jurisdiction only when there is a strike over it. What they are trying to do is to bring that division into the Railway Labor Act and expand it. And say the Adjustment Board --
Hugo L. Black: Who is going to work now?
Milton Kramer: Clerks.
William J. Brennan, Jr.: And it's like the clerks would be paid if you won -- while the clerks did the work, is that it?
Milton Kramer: That's right until they changed our agreement.
William J. Brennan, Jr.: Strikers would be paid for not doing the work while the clerks are being paid for the work.
Milton Kramer: That's right until they changed the agreement. That's the award of the Board and that award is final and binding. Certainly, on the merit, it's final and binding.
William J. Brennan, Jr.: Funny way to run a Railroad.
Milton Kramer: Pardon?
William J. Brennan, Jr.: Funny way to run the railroad?
Milton Kramer: We've been running at this way for some 60 years and this has never caused havoc so far as I know.
Earl Warren: Thank you. Mr. Wilcox?
James A. Wilcox: Mr. Chief Justice, May it please the Court. It's quite understandable why the telegraphers here and other unions in other cases are very anxious that this case be reversed. They've got a good thing going. They don't care as long as we have the clerk's perform the work and they and the telegraphers get paid, they've got a real fine chance of continuing this horrible what I call a horrible scandal. We call it the railroad double payrolling. And the four regions of this case --
Byron R. White: What expiration date is your agreement with the telegraphers?
James A. Wilcox: Mr. Justice White, in the railroad industry --
Byron R. White: (Inaudible) did get notice and change anytime they want it.
James A. Wilcox: We can serve such as --
Byron R. White: What was it?
James A. Wilcox: Well, in the first place, we don't believe that it's necessary. We believe that the Adjustment Board has the full power and the full jurisdiction and the duty to resolve these work assignment disputes. There is no need to serve a section --
Byron R. White: I get the feel where you have to readily decide this issue otherwise, you are admitting what your agreement means.
James A. Wilcox: Well, I should find out to you right away. But we are not speaking of the explicit/unambiguous agreements. These agreements simply describe a job and the clerks come along and tell us that this is clerks work. The telegraphers come along and tell us that this is telegraphers work. And when we denied the claim, they progress it to the board as simply a dispute under the Clerks Agreement or under the Telegrapher's Agreement, and refused to recognize that any other party has any interest. It is our position, however, that ever since 1934, the Adjustment Board was given this power and the duty to resolve work assignment disputes. Indeed, this Court, in a very early case, the Pitney case, 326 U.S. was just as Black speaking for on that point a unanimous court, held that the N.R.A.B. -- the Adjustment Board, had jurisdiction over a jurisdictional dispute, and I'm quoting, involving the railroad and two employee accredited bargaining agents. Mr. Justice Black also stated that the Board was specially creative to interpret contracts such as these in order finally to settle a labor dispute. A few years later in the Slocum case again, Mr. Justice Black, he said that the Board's jurisdiction in these work assignment disputes was exclusive. This Court in the Slocum case was presented with the precise dispute that you have before you. In that case, the clerks and the telegraphers were each claiming, respectively, that their ambiguous contract covered in the work in question. The railroad got a little tired of this and went into a New York State Court for a declaratory judgment. The New York Court affirmed for, I believe, the clerks and the telegraphers obtained certiorari from this Court. The question presented there was whether or not the Courts should have jurisdiction over these type of disputes which depend for their resolution on an interpretation of the collective agreement. And this Court in Slocum said that the Courts do not have jurisdiction. But went ahead to point out that the Adjustment Board does have jurisdiction? Indeed, in our brief, we haven't the exact page, we quoted from the telegraphers' brief before this Court in Slocum in which they told this Court that the Adjustment Board has jurisdiction over all the parties.
William J. Brennan, Jr.: Mr. Wilcox, did you ask the Board to bring the clerks claim?
James A. Wilcox: Yes, we did. That's what I was going to cover that, Mr. Justice Brennan, in our first submission and I might point out that in the record as the page just mentioned by Mr. Kraemer appeared what we call the Railroad and the Union's first submission. Then there are other responding submissions. But only the first submission of each party is included in the record and included in the printed award. And at page 35, you will notice that the carrier, the Union Pacific, pointed out that for the Board to sustain these claims would be to deny the clerk employees their rights to perform the work would abrogate the agreement negotiated between the carrier and the Clerk's organization and would seriously affect by such action the rights of Clerk employees.
Speaker: What are you reading from?
James A. Wilcox: Page – This is in our first submission or Brief to the Adjustment Board in this dispute, page 35 of the record. Now, petitioner challenges the Board's jurisdiction and the controlling effect of Slocum and Pitney by relying entirely upon one of the perplexing questions which Mr. Justice Frankfurter placed in the White House opinion, a question incidentally which he never answered and which, of course, would be dictum. The question that has not been answered since. But in any event, I think it's quite clear that while White House asked many questions, if answered none of them, except that, that case like the Carrie case was a premature matter and that the matter should proceed to arbitration.
Byron R. White: What do you make of this statement of Mr. Justice Frankfurter that certainly the court and adjoined them by majority of the Court, the Board has jurisdiction over the only necessary thing to the proceeding in all the subject matter.
James A. Wilcox: Reading that in context, Mr. Justice White, I take it to mean that --
Byron R. White: This was also a dispute between the clerks and the (voice overlap).
James A. Wilcox: The telegraphers and the Railroad, yes. I take that to mean that clerks --
Byron R. White: The question is whether the Clerks should submit notice to them?
James A. Wilcox: Yes, sir, notice to them. I take that statement to mean that the Board did have jurisdiction. In the event it issued a denial award namely denying the telegrapher's claim. In the same fashion in your Carrie case recently arbitration should proceed which went ahead to point out --
Byron R. White: It also to refers that the clerks with an outside related interest that cannot be compulsorily enjoined according to the proceeding.
James A. Wilcox: I think that they can be compulsorily joined. I think the Board has been given the power --
Byron R. White: This is right where we join issue.
James A. Wilcox: This is right where we join issue, yes, sir.
Speaker: We have to overrule White House--
James A. Wilcox: Sir?
Speaker: We have to overrule White House.
James A. Wilcox: No, you would not. That is not the holding of White House. Those were a series of questions that are dictum statements that Justice Frankfurter made. The only holding in White House was that the injunction which the Railroad has obtained against the Board proceeding any further because of failure to give notice should be reversed and that the Board should proceed to determine that dispute.
Byron R. White: As you would to hold or disavow that basis --
James A. Wilcox: Sir?
Byron R. White: You would have to disavow that statement in White House?
James A. Wilcox: In White House? Well, yes. I have no --
William J. Brennan, Jr.: Well, I got to use your argument is, am I correct, Wilcox, that statement is inconsistent with the holding in the Pitney and Slocum.
James A. Wilcox: Of course, absolutely. The petitioner's crucial argument here is that the Union Pacific may have bound itself by contract in the same work to both clerks and telegraphers. It is our position and we think quite clear under the law that this is not possible under the National Labor policy. It may be impossible as a common-law but it is not under the National Labor policy as spelled out in Sections 2, 2nd, 3rd, 4th and 9th of the Act, especially 2.9. Briefly that section provides that a carrier upon receiving a union certification as a representative of some of its employees, the carrier shall treat with the representative as so certified for the purpose of collective bargaining. From the earliest back in 1937, this Court said that 2/9th of the Railway Labor Act imposes the affirmative duty on the railroad to treat only with the true representative and the negative duty to treat with no others. This Court re-stated that in the General Committee case at 320 U.S.
Abe Fortas: Now with whom does the Railroad statute (Inaudible) as a result of this suit, reduction in the force.
James A. Wilcox: The railroad here says that it's the (Inaudible) the clerks. We feel that we made the correct assignment of this work. And, we also feel that that for the telegraphers to obtain via an interpretation of their agreement and alleged an exclusive right to this work is simply contrary to the labor policy because we could not vote.
Abe Fortas: The Labor policy then -- posed nevertheless somebody makes a mistake and you have two Collective Bargaining contracts that cover the same work as the Adjustment Board have power to resolve the conflict. Then it's got the power to say that the reason in contract A shall be disregarded. And that contract B -- employees in contract B can get the work. It seems to me and really hard to believe --
James A. Wilcox: That's right, Your Honor. But as I stated earlier, we are not dealing with explicit contracts; we are dealing with ambiguous contracts.
Abe Fortas: Well, I know but let's suppose that -- these contracts are explicit or ambiguity is resolved so that both contracts cover the same work. Now, you are telling me that in those circumstances, the Adjustment Board would have power to overriding one of the contracts.
James A. Wilcox: Yes, it wouldn't be overriding the contract, Mr. Justice Powell. We would be interpreting it -- accommodating it - and that furthers the labor piece which the Act speaks.
Abe Fortas: It's on clearly the lawyers mind is a wonderful thing.[laughter]
Byron R. White: Mr. Wilcox, what -- if you would prevail, what would prevent the carrier from sitting down with two groups rather than to reason that out at the bargaining table would make the two agreements ambiguous enough so that it might be interpreted either way And then, when there was a disagreement between the unions to have it and one of them brought a proceeding before the Adjustment Board and the railroad said, “well, we have just emphasized and I only let you two unions find that out and which ever one prevails and it's alright with us”. Now, what would prevent you from doing that?
James A. Wilcox: Well, first of all I should point out Mr. Chief Justice, that that is not the case before us -- But --
Earl Warren: If it would flow, it would flow naturally from decision in your favor, I would say.
James A. Wilcox: Well, only if are willing to ascribe an ulterior intent to the railroad industry which I am not prepared to do. We don't do business that way. Secondly, we would be --
Earl Warren: We don't -- we are not dealing with how you do business but how you could do business under an opinion that this Court writes?
James A. Wilcox: It would be a most flagrant violation of Section 2 of the Railway Labor Act which requires us under the Virginian decision to treat with the true accredited representative and no other --
Earl Warren: What would the penalty be if you did that under Section 2 that you just mentioned?
James A. Wilcox: Section 2 has some penal sanction -- I don't know. It has some penal sanctions -- it could also be enjoined I would imagine. We have no right to bargain with --
Earl Warren: Here you have got that situation, except for the matter of intent that I put in -- you've got two situations where these people claim, at least, that the ambiguities in the two contacts raise an issue as to which one of the unions is entitled to the work. And the railroad just steps aside and says, “Alright now, that's no problem of ours; you just find it out before the Board here and what every one gets, it's alright with us”. Doesn't that be tracked from a collective bargaining -- the integrity of bargaining?
James A. Wilcox: If that should occur, it would certainly be tracked from the integrity of bargaining but bear in mind that only one of those two unions is entitled to the work.
Earl Warren: I know but would you have the right to say, “Well, we don't care. It isn't essential for us to bargain right down to a final determination of rules entitled to this. The board would take care of that and we don't have to worry about it, we are not preferring a proceeding before the Board and the Board will let it go to the -- let the two unions find that out and whichever prevails for the Board, it's alright with us”.
James A. Wilcox: Well, we must. Under the law we can only deal with the true unions. The other union -- the other representative would even have a right to serve Section 6 for the work which the other -- for example the clerks have the right to perform.
Earl Warren: But you've got the situation here where you claim you, then I have no doubt you bargain on a plea and here, there are two unions that you say ought to be brought before the Board to have it determined which one shall have a work. Now, that's an issue. I would say that's an issue that could well have been determined at the bargaining table.
James A. Wilcox: Without the possibility of creating a lot of strike, I don't see how it could be worked out at the bargaining table. We're not -- we're going to get either of the two unions to agree that the work belongs to the other.
Earl Warren: Aren't you obliged in your bargaining agreement to determine what work an individual union is entitled to have and what work another union is entitled to have.
James A. Wilcox: That would depend, Sir, on whether they're -- who they represent and the scope of their representation. Clerks would represent clerical work. Telegraphers --
Byron R. White: The clerks could what?
James A. Wilcox: The clerk's organization would represent employees performing clerical work. The signalman's organization represents employees performing signal work which I think answered that question.
Earl Warren: Well, I suppose that bargaining agreements would and probably should determine the extent of signal work and the intended clerical work, didn't they?
James A. Wilcox: Now that I believe, Mr. Chief Justice, it's decided by the authority of the clerk representative. In other words, the signalman, for example, has the authority under the law to represent signal employee, i.e. those that perform signal work. The only place where we get into trouble is in the clerical-telegrapher field because there even a telegrapher does performs some clerical work and we get this cross. And as a result the clerks and the telegraphers have dreamed up this what we call “double barreling” -– one goes the Board, gets its claim sustained then the other goes to the Board for the same work, gets that claim sustained. Indeed, the MKT Railroad had, I believe four or five enforcement actions pending against it in different courts by the clerks and telegraphers on the same work.
Byron R. White: Am I correct if this award is enforced, at least one man who belongs to the telegraphers' union will get paid as if he worked when he didn't work.
James A. Wilcox: That's right, sir.
Byron R. White: Is that what the words are -- for the court to hear it.
James A. Wilcox: No, sir. If the award is enforced as it was sustained by the Adjustment Board, the Union Pacific will be forced to pay a telegrapher around the clock - that would be three telegraphers a day all the way back to 1951.
Byron R. White: How far (Inaudible)?
James A. Wilcox: Continuing according to the claim, until the violation is corrected.
Byron R. White: Or until a new contract is negotiated, I suppose with that --
James A. Wilcox: That is not the real answer. That only invites further strike.
Byron R. White: No, but I suppose that there will come a point of time when this new contract/negotiation between the telegraphers and the Railroad, correct?
James A. Wilcox: Yes, Sir.
Byron R. White: No, the contracts don't run out.
James A. Wilcox: They don't run out but we could speak to amend them. I have a little doubt that the telegraphers would not give this out.
Byron R. White: Well, they just tell you that change your clerk's agreement, was that?
James A. Wilcox: Yes.
William J. Brennan, Jr.: Tell me this, Mr. Wilcox, if the clerks were in this case and could be forced into it, what would be the composition of the tribunal? We've been told that ordinarily you get five of the union and five, is that right? A division is five union representatives and five --
James A. Wilcox: And five Railroad.
Hugo L. Black: Now, if you had both unions then what would the composition of the union be?
James A. Wilcox: It would remain the same.
William J. Brennan, Jr.: I thought I heard Mr. Kraemer say that if they were forced inevitably, the railroad would decide which would win because the union at the Railroad picked out, would vote for the Railroad and thus -- it would be to one. How would that come about?
James A. Wilcox: Well, if it did, Mr. Justice Brennan --
William J. Brennan, Jr.: How could it come about?
James A. Wilcox: It could come about, yes. If the telegraphers progressed a clerks claim for clerical work to the Adjustment Board, the clerks' representative on the Board would lawfully vote for the five carrier men.
William J. Brennan, Jr.: Well, what I want to get cleared is that the union members always include a representative of the union staff?
James A. Wilcox: The composition of the Board is not based upon union membership. There were to be five labor members and five carrier members. Indeed, there's a legislative history to the fact that it was never intended that any -- whether the clerks' vice-president was on the board or not. It was not intended that he represents solely clerk's interest.
William J. Brennan, Jr.: I see. He is just a labor representative.
James A. Wilcox: He is just a labor representative.
William J. Brennan, Jr.: As the carrier is supposed to be a carrier generally.
James A. Wilcox: In our appendices to our Brief, we have attached evidence showing the arrangement that the labor executives had for progressing these claims under a single contract theory, and the arrangement in Appendix C, indicates that they will let this dispute go to a referee. Now, should this situation occur --
William J. Brennan, Jr.: Now, let me get that. In other words, what you're telling me if you had them both in, what ultimately would happen when you said the impartial referee is a single individual would be more or less the arbiter finally, is that it?
James A. Wilcox: They could let him do that.
William J. Brennan, Jr.: But suppose they didn't? Well I can't -- I don't quite understand – how can the telegraphers or the clerks be the victim of the choice of the railroad that has to be because you don't bring in impartial referee in it.
James A. Wilcox: There would be am an impartial referee here if the labor unions want it. All they would do is to join together with 5 votes.
Byron R. White: What if they don't?
James A. Wilcox: If they don't, that's their own doing.
Byron R. White: If they insist on voting with the employer that's the end of the case.
James A. Wilcox: Yes, and that is exactly, Sir, what happened, a number of years ago, the telegrapher's (Inaudible) voted with the railroad and he was quickly taken off the Board and ever since then, then the labor members voted as a union ; block voting and by that simple device, they can continue to get the neutral to decide and resolve this dispute.
William O. Douglas: Is the personnel on the Board permanent or adhoc?
James A. Wilcox: Well, the partisan members served at the pleasure of their employer, the labor members of the labor organization.
William O. Douglas: (Inaudible) on the labor side of the more or less permanent.
James A. Wilcox: No, not necessarily. No, as a matter of fact, over nine, the telegraphers man is off the Board because he voted with the railroad --
Byron R. White: I mean in practice.
James A. Wilcox: In practice they can do take him off anytime.
Byron R. White: I know but are they usually permanent?
James A. Wilcox: Well, they stay for quite a little while. Yes, Sir.
Byron R. White: Why they don't set up a board for taking as a dispute, we already have a board law?
James A. Wilcox: Yes, the board is permanent and the referee is generally -- well they are picked on an ad hoc basis for a docket of say, 30 cases.
Byron R. White: Well, how do you suggest that the -- you think that this award should be enforced? And your idea is that both unions should be before the Board. How does the Board get them to court when the clerks say, “sorry we have notice by we don't want to come in, in the first place you do not have jurisdiction. We want -- we have no dispute with the carrier at all”. We're doing our work, he is paying our people. And if we did have one, the negotiations should have to start on the profit, like the Act said”.
James A. Wilcox: Well, if the Board was told to performance duty, the clerks would be in there very short --
Byron R. White: I didn't understand you.
James A. Wilcox: If this Court affirms Pitney and Slocum and tells this Board, this Adjustment Board, to perform a duty that Congress intended of it, I can assure you that the union performing the work, the clerks in this case, will be in there to protect that work.
Byron R. White: What you're saying is that you would expect the Adjustment Board to make this decision and to interpret both contracts.
James A. Wilcox: Yes, sir.
Byron R. White: And then if the clerks wanted to stay out while their contracts were being interpreted, let them stay, but they would be bound?
James A. Wilcox: I think so, yes, sir.
Potter Stewart: They had an opportunity -- give a notice to them and they stayed out?
James A. Wilcox: They stayed out. And we've talked about Mr. Kraemer's argues that we are asking for 10k. It's our position that we had 10k all the time but because of these devices have not been able to utilize it. However, it is interesting to note that when 10k was before the court, before the Congress -- representative Gerald W Landis -- on the floor stated, “This conference report will take care of labor abuses without destroying laborers' rights. It completely outlaws jurisdictional strikes, wild cat strikes and secondary boycott. These are labor evils and not laborer's rights. In order to stop the strikes which threaten the national welfare, we have set up a plan, referring to 10k like the Railway Labor Act in many ways –-
Byron R. White: -- many ways as you said.
James A. Wilcox: We have set up a plan in many ways like the Railway Labor Act. From the earlier, the Adjustment Board has had this jurisdiction and should exercise it.
Earl Warren: Mr. Wilcox, I'm just going to ask you this. Would you tell me specifically how many members would be on the Board if you prevailed and the clerks must be brought in and how these people are selected?
James A. Wilcox: The membership, Mr. Chief Justice, on the Board will not change whatever this Court does in this case. The Third Division where this case was before, it was a permanent; you call a permanent board although they are subject to removal by their own employer. Five labor members and five carrier members, each side paying their own members, and those would be of the same union, of their union.
James A. Wilcox: They don't have to be no.
Byron R. White: So they don't have to be.
James A. Wilcox: No, it wasn't intended that way.
Byron R. White: But they can be?
James A. Wilcox: They can be--
Byron R. White: -- often are?
James A. Wilcox: They often are. The Third Division, however, has I believe jurisdiction over 12 crafts -- that would be 12 different unions. We have only five unions here represented on the Board.
Earl Warren: Now, let me ask you this. Who will approve of those five members, that carrier, the telegraphers union or the clerks union in this case?
James A. Wilcox: All operating together, sir.
Earl Warren: Well, suppose that they don't operate, suppose they can't operate together?
James A. Wilcox: Well, if they can't pick them in, then the National Mediation Board picks a man from that side of the table. In the same respect that if a carrier fails for 30 days to appoint a member of the Board, the Mediation Board does if for us. And that's the same way with the labor members. In practice, however, this organization or as a Railway Labor Executive Organization, they pick the membership.
Earl Warren: And that Railway Labor Executives has membership of whom? Just the brotherhood or –
James A. Wilcox: All railroad unions.
Earl Warren: Non-operating as well?
James A. Wilcox: Except I believe the engineers, but all the non-operating -- indeed, it's essentially -- more of it in the non-operating field.
Byron R. White: Well, I suppose that if they pick them jointly that it would be assume that some of them would come from the clerk's union and some would come from the telegraphers.
James A. Wilcox: Well, perhaps, I -- It would be up to deliver union labors.
Earl Warren: Well, you wouldn't expect one of them to say, will you take telegraphers to say, “Will you take all clerks, that's all right. We don't care”.
James A. Wilcox: Oh! No, it would not be that way.
Earl Warren: It wouldn't happen --
James A. Wilcox: NO.
Earl Warren: Whether be some or both?
James A. Wilcox: Yes, that's right.
Earl Warren: Now, in this case for instance, you assigned this work to the clerks. Isn't it entirely natural that your five people in voting for the railroad would join with those who were friendly to the clerks and therefore you would win in every situation?
James A. Wilcox: That could happen and it could be perfectly lawful. But as I stated, it was never intended that any member of the Board look after only one certain interest. In other words, the labor union members have the duty to look after the whole of the labor union side. And if they want to avoid this, it would be simple matter for the five labor members and the five carrier members. It's a deadlock and allow this to go a neutral for a decision, which is exactly their practice today as we outlined in appendix C.
Potter Stewart: What you're saying really -- they really act not as a tribunal of ten but of a tribunal of two because they blocked vote, is that it?
James A. Wilcox: Yes. They have up to now. The only time as I pointed out that they didn't when the telegrapher member on the Board voted with a railroad to deny a clerk's claim; that night, he was removed from the Board in emergency session –
Potter Stewart: By whom?
James A. Wilcox: The Railway Labor Executives meeting and took him off the board. For a number of years, the telegraphers did not have a representative on the Board.
Potter Stewart: And what happened on that case, does that decision sticks?
James A. Wilcox: Yeah, as far as I know.
Byron R. White: I mean the decision that the telegraphers voting with the carriers. Was that set aside or --
James A. Wilcox: Perfectly valid decision.
Abe Fortas: Did that Court therefore behind (Inaudible) now?
James A. Wilcox: I am fairly familiar with the Board's docket and I would say that the Third Division, which is the one you are merely concerned with, is approximate 2 ½ years behind. But it is fast catching up. Responsible people on our side of the table indicate that within a year-and-a-half, they should be on a current basis of say 6 months.
Abe Fortas: How many divisions it has?
James A. Wilcox: Four, sir.
Byron R. White: Mr. Wilcox, may I just ask one more. Well, I think it's the luncheon time. Well recess now.
James A. Wilcox: Thank you very much.