Earl Warren: International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Petitioner, versus Russell Scofield et al. And Number 53, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America versus The Fafnir Bearing Company et al. Mr. Rauh.
Joseph L. Rauh, Jr.: May it please the Court. This is a consolidated argument of Case Number 18, Scofield, and Case Number 53, Fafnir. 18 at Scofield, raises the question whether a Union which is charged with unfair labor practices before the Labor Board and wins its case before the Labor Board and has that charged dismissed can intervene in the Court of Appeals when those who had charged it and seek to have it held in violation of the Labor Act go to the Court of Appeals. This of course would be the same if the management were on the other side, the Seventh Circuit Court of Appeals refused us intervention in that respondent case. 53 Fafnir differs only that the UAW was the charging party, not the respondent before the Board as in Scofield. Fafnir thus raises the question whether when the Union charges management with an unfair labor practice and wins before the Board, and management then goes to the Court of Appeals, whether we can intervene in those circumstances and of course it would be the same if it was reversed. Here, the Second Circuit also denied us intervention. Now the Government's position is a strange one. They say we're right in Number 18, where we were the respondent before the Board but we are wrong in Number 53 where we were the charging party before the Board. We, of course, agree on Scofield, we disagree on Fafnir and we say that the government's own reasoning shows that the result should be the same. I'd like to do Scofield only briefly because it's not in dispute, but I do want to state it and then go on to Fafnir. Facts of Scofield are these; a number of Union members employed at the Wisconsin Motor Corporation filed a charged against our Union under 8(b)(1)(A) saying that fines we had imposed on membership for exceeding production and pay ceilings violated the Labor Act. A complaint was issued against us, a hearing was held on which we were the party defendant, we won the case. The Board dismissed the complaint completely. The employees went to the Seventh Circuit asking that the Seventh Circuit adjudge us in violation of the Labor Act. We asked to when --
William O. Douglas: Was -- they sought to review that precise order?
Joseph L. Rauh, Jr.: Yes sir, the precise order is --
William O. Douglas: It was -- it wasn't on any collateral phase?
Joseph L. Rauh, Jr.: No sir, they wanted an order saying in so finding. They asked the Court to find that we had violated the Labor Act and to order us to cease and desist doing so. We were asked for intervention, we were denied, we asked for a rehearing, we were denied and that brought the -- in this Court granted certiorari. Now, this seems to me a simple case and as I say, the Board and the Solicitor General support intervention. In simplest terms, Scofield case involves a question with the silence of Congress on our right of intervention because there's no reference to it in the Act, should be interpreted in one way or another. And the Government agrees with us that this Court under its supervisory power over the lower court should allow us to intervene in this Scofield situation. Namely, where we are the respondent before the Board where an order would issue against us if the Court of Appeals reverse the Board. This seem --
Potter Stewart: Did anybody oppose intervention on the Court of Appeals?
Joseph L. Rauh, Jr.: There was a rather mix up, if Your Honor please. The Board supported intervention. We thought the other side was supporting intervention, these employees. They later told us they had only supported amicus curiae. So I think I'd have to say that the employees opposed it at the stage. They are not participating in (Voice Overlap).
Potter Stewart: They're not here, are they?
Joseph L. Rauh, Jr.: They're not here Your Honor either by brief or oral argument.
Potter Stewart: And they were not of course -- they were not parties in the Court of Appeals really?
Joseph L. Rauh, Jr.: They are -- yes, they're the -- they're the appellant.
Potter Stewart: Yes, they are the appellant.
Joseph L. Rauh, Jr.: They are the appellant in the Court of Appeals, but there -- and the Board is (Voice Overlap) --
Potter Stewart: And the petitioner that is.
Joseph L. Rauh, Jr.: They're the petitioner in the Court of Appeals. The Board is the respondent and we sought that the --
Potter Stewart: And you the intervener (Voice Overlap) --
Joseph L. Rauh, Jr.: -- the Board said fine, but they said -- they told us later they did oppose it. We had representatives of the Board, they supported it and we're -- to the Court, they support it, we were denied anyway, but they later told us they had only met the support or request -- only had met them -- let us come in as amicus.
Potter Stewart: Is there any explanation as to why they're not here in this Court?
Joseph L. Rauh, Jr.: Not to my knowledge. I do not think they -- I'm not saying they changed their position. They may not be enough interest to them, Your Honor.
William O. Douglas: The Court of Appeals wrote no opinion?
Joseph L. Rauh, Jr.: No sir.
Potter Stewart: So this is --
William O. Douglas: Not in this case.
Potter Stewart: So this case isn't --
Joseph L. Rauh, Jr.: It's not --
Potter Stewart: -- it's really being litigated here?
Joseph L. Rauh, Jr.: I'm only wanting to tell you about it because I want to show you later the other case is the same. This is not in dispute before this Court. And it couldn't be, really, because there's a very serious due process question here if they were -- we were to be denied. We're the defendant, a compulsory order could issue against us, we're entitled to be heard, it seems to pretty clearly on this Court's decisions that there's a serious due process question whether we could be kept out and obviously, this Court is not going to interpret the statute to raise it. Furthermore --
William J. Brennan, Jr.: Well, Mr. Rauh then, then I gather, you insist if it's due process problem, that you're entitled to right. It's not a matter or any discretion with the Court of Appeals?
Joseph L. Rauh, Jr.: That is correct, Your Honor and we feel that this Court should -- in its opinion, made clear that on the request for intervention, we should be permitted in and it's not a matter of discussion. The supervisory power of this Court over the Court of Appeals would seem to warrant this under these circumstances.
William J. Brennan, Jr.: Well, is it supervisory or is it due process? Well, if its due process, we don't --
Joseph L. Rauh, Jr.: Well, I guess it's both, Your Honor, I believe.
William J. Brennan, Jr.: Oh no, I would suppose if it was a supervisory, there might be a consideration of discretion. So -- it would not be so if you --
Joseph L. Rauh, Jr.: It might be and then --
William J. Brennan, Jr.: -- the due process.
Joseph L. Rauh, Jr.: It might be when you are -- actually, I don't -- it may be just a matter of semantics between us. When you're exercising a power of supervision, you have a right to consider the due process clause as requiring this. I don't know whether I'm really differing with you. It seems to me that in either event, you would have the right to -- you'll have the duty since it raises a due process issue. Furthermore, there's an obvious administrative problem that if you didn't let us in, it's going to -- it would make a terrible mess of things. Suppose in the Scofield case, in the Court of Appeals, they said to -- they reversed without us being a party. Then it goes back to the Board and orders entered directing us to do certain things, obviously we can appeal that. We appeal that back to the same Court of Appeals. It's a totally futile gesture but we have our right to. Then we come to this Court with a petition for cert, and you don't have a charging party. In other words, what this Court said in the United States v. Louisiana that you like all the interested parties before the Court, you can only get in this cert. So anyway, as I say this case is not an issue, I was interested in it only to show the background for the real case before you Number 53, Fafnir.
Potter Stewart: Mr. Rauh, this legislation has been on the books a good many years now and what did the courts done in this first case which you say is (Voice Overlap) --
Joseph L. Rauh, Jr.: In most cases that, in all -- in most cases, they have allowed intervention, as a matter fact, the Government's brief called this aberrational. I don't know that I would have gone quite that far because we've been denied in other places but certainly the bulk of the time where you've been the respondent, you have been given intervention. Now turning to Fafnir, the bulk of the times, we had been the charging party. We have not been admitted, but at many cases we have without discussion. In other words, it's a mess. The courts have been going both ways without a clarification. In fact, you've been asked to clarify those problems before but have denied cert, and this was the first time that this Court has directly looked at this problem. But as I'll show you, you have looked indirectly at the problem before. Now, turning to Fafnir --
Abe Fortas: Mr. Rauh --
Joseph L. Rauh, Jr.: Yes, Mr. Justice.
Abe Fortas: Excuse me, what about the procedural problem here, it worries me somewhat. You got an order denying intervention from a single judge and then it was considered by a division and the division refused reconsideration of the order. And then it comes here on certiorari?
Joseph L. Rauh, Jr.: Yes, Your Honor, which was granted last year, last term.
Abe Fortas: And it's your -- your I suppose confident of course, it's your position that that's a correct way to review this.
Joseph L. Rauh, Jr.: Yes, Your Honor, although we had considered adding a possibility of a common law read under the all writ clause but we thought that you did have this power and apparently, the Court agreed when it did grant certiorari, that under 1254 (1), it is a proper ground here. Now, turning --
Potter Stewart: Do you think there's any question at all about the -- since this isn't litigated, there's no need to raise a question, but --
Joseph L. Rauh, Jr.: Well --
Potter Stewart: Mr. Justice Fortas' suggestion raises a jurisdictional question which is always open of course, and is there any --
Joseph L. Rauh, Jr.: It's litigated in Number 53, it could be raised in 53, if the Government disagreed with us, they had the right to raise it at 53, which they have not done.
Potter Stewart: Is there any question about the time within which you filed a motion for reconsideration by a full hearing?
Joseph L. Rauh, Jr.: Oh, no sir. There's no time problem with us at all. We did it right, it's a matter of days and --
Potter Stewart: Right.
Joseph L. Rauh, Jr.: -- all of these things. These are rather easy petitions to prepare and they were --
Potter Stewart: Yes, I know.
Joseph L. Rauh, Jr.: This was a matter of days in all of these things. Turning now if I may to 18 -- to 53, the Fafnir case where we say the considerations are going to prove to be the same, that it's a question of interpreting the silence of Congress, a question of your supervisory authority, all of which the Government has conceded in Number 18. And as we shall see, the Union's interest is just as great in 53 as it is in 18. And indeed, this is the important area. The Government has given this kind of a neutral business, they let us in 18, they won't let us in 53. Well, I must say that this neutrality is sort of like one horse and one rabbit. Fafnir is 90% of the cases because in 90% of the cases, the Board does grant some relief and this is in their brief, the Government's brief, the 90% figure. And therefore, 90% of the cases involve Fafnir. The Scofield case is very important. The Fafnir Case is terribly important because in the bulk of the cases, the Board does grant some relief, the appellant is the person against to the petitioner in the Court of Appeals, the person against whom relief runs, and if the Union is going -- the charging Union's going to be kept out of that, they're out of the review proceedings because that is the cases that you have. In other words, it's perfectly simple. It's like in indictment. The Board doesn't issue complaints unless there is a good case most of the time. So that you don't -- you get remedial orders and the question is, whether we are going to get in and I'm going to try to show, time allotted to me that these cases are really the same and that every consideration in Scofield accept the due process consideration applies equally in Fafnir. Now, the facts of Fafnir were these, we as a Union have a contract, the Automobile Workers with the Fafnir Bearing Company. This contract provides that the company will set standard production rates, and we get incentive pay above the standard production rates. We have a right to file a grievance when we feel the standard production rates are -- demand too much of the workers that there really isn't a standard, that they're really holding them up to too much and that reduces the incentive pay. Four cases at Fafnir, we were going to -- we're considering taking to the grievance procedure. We looked at their time. Our engineers looked at their time studies, the Fafnir time studies. We said, “They're no good. We want to make our own time studies to decide whether to go to grievance.” The company said, “Oh, you can't bring any engineers in this plant and look it over.” We said, “Well we have a right under the statute, a right of collective bargaining, a right to do this.” And we filed a charge on the ground that we had a right to make time studies and the company had denied us that right to make our own time studies. Now, complaint was issued by the Board, a hearing was held to which we were a party, not even having to intervene. The Board's rules specifically put us in as a party without anything we do. We just -- we're a party automatically because we started it and they couldn't have even gone ahead without the charge. Well, we lost in front of the trial examiner. We filed exceptions along with the General Counsel of the Board and went before the Board and we won. The Board said in so many words that Fafnir has to let our people in to make time studies so that in the time studies, we can determine whether to go to the -- to grievance procedure about whether these standard production rates demand too much of the workers. We petitioned to intervene in the Court of Appeals, Judge Friendly, in a -- his opinion and there is an opinion in that case, not in the other one, Judge Friendly hold against us what he said, “This debatable.” It was obvious that he was torn both ways. I suppose I should start my argument with the only comprehensive study that's been made at this problem which is referred to on pages 16 and 17 of our green brief which is the brief in Number 53, Fafnir. This was study was headed by Professor Archibald Cox and I had plan to rather push this thing down his throat, but he's not here, the previous capacity. But on his committee, he sure had some interesting people to make this study. He had both sides, management and laborer, he had the leaders of both sides, he had two secretaries of labor, Goldberg and Wertz. He had two -- he had the leading students of the subject in the mediation, Cole and Taylor. He had lawyers, he had former Board chairman, former members Riley. He had professors, Russell Smith and Gregory, he had the whole panel of labor lawyers from the most conservative to the most liberally, Dennis and Kitchell on the conservative side. He had for example Louis Sherman who is the Labor Metal Trades Group. So in other words, this was a most remarkable body that had been asked to study this among other questions and they just unanimously said, “We also believed --”, and this is on the bottom of page 16 of our brief, “We also believed that any party, the NRLB proceedings should be allowed to intervene in the appellate proceedings.” And then they explained it on page 17, they say, “Although proceedings before the Board are undertaken on the public interest since 1947, they have been concerned with the vindication of essentially private rights.” Board is no longer charged solely with promoting the spread of labor unions and collective bargainings, largely an umpire engaged and enforcing established rules, first against the Union, then against the management. In other words, there has been one study of this subject. It was by a remarkably divergent group of all of the people interested in this whole field and headed by Professor Cox, and it urges this result. Now, as this very --
Speaker: (Inaudible)
Joseph L. Rauh, Jr.: Not to my knowledge, the report does not indicate any on this -- on this matter sir. Now this -- this very distinguished panel said there are very real private rights and private interest involved here. Section 7 of the Labor Act, in so many words, refers to the private rights of collective bargaining which is exactly what they refer to it as a right of collective bargaining which is exactly what the Board said we had here, a right for time studies as part of our collective bargaining. In fact, the Board's opinion is kind of humorous in this respect, 12 times in the Board's opinion in Fafnir refers to the statutory right of the Union to have this, these time studies. And this is a -- I can't tell you how important this kind of thing is to enforcing our collective bargaining contract with Fafnir. We are about to have a -- are we to go -- whether we're to have to go into a grievance blind or whether we have a right to do this as a terribly important thing to our Union. Now, this Court continually recognizes the private rights or interest of Unions. For example, review of the collective bargaining unit this Court has reviewed. That was our private right to -- of a Union to have a fair bargaining unit. That of course was Leedom and Kyne. It recognizes 301 rights under collective bargaining contracts. In other words, there are private rights and look if I may call your attention to the name of the statute under what we -- we are operating, the 47 Taft-Hartley but the real name of that is Labor Management Relations Act, that's what this panel was talking about. There's a labor management relations with the Board as the umpire but they're very real private rights on the side of both of the labor and management here. Now, of course, these private rights and private interest must be considered within a framework of the public interest. There is just no question about it. The Board is umpiring labor and management rights, but it's doing it in the public interest. But this public interest concept, we submit, is only a shorthand way of referring to those aspects of the Act relating to the exclusivity of the Board's jurisdiction and procedures. It does not imply the absence of private interest or private claims within the public arena, and there, I submit, is the reconciliation of all the discussion of whether it's public rights or private rights. And there, I submit, is the reconciliation of the all the discussion of whether it's public rights or private rights. It is obviously both. The Board is trying to protect the public interest but it is trying to protect it as the umpire but with between very serious and important rights and interest of both sides. Now, if Your Honors please, every consideration of judicial administration here favors intervention. The first place where again you get this multiplicity of litigation difficulty, suppose we lose, not being allowed to intervene in the Fafnir case. They say, “No, Fafnir doesn't have to let your people in to make these time studies. We go back to the Board, the Board dismisses the complaint. Under 10 (f), we clearly have the right to appeal again because we will have been a party aggrieved. Now, the Government says, “Well, that's silly. You wouldn't have a right to appeal again.” But the statue says, “Anybody who is a party aggrieved to any Board order can appeal. The Board will be dismissing our complaint, we come back.” Now, of course the Court of Appeals would hold the same way. We're aware that that would be filled. But then we petition for certiorari here and you wouldn't have the respondent. Again, you'd be in the position of not having all the parties as you said you wanted in United States v. Louisiana and that can happen in Fafnir, and I want to tell you why. There's a Court of Appeals' decision in the Otis Elevator case previous to the Fafnir decision, exactly contrary to two to one decision by the Second Circuit saying that we have no right to the time study information. So that this is a -- this is a very important thing to us to get in front of the Second Circuit to try to persuade them not to follow their own decision in a previous case involving the Otis Elevator Company and this problem has never been resolved by this Court and it's an important problem and we would be back here with a petition for cert in a place where the respondent was. In other words, if you're going to get all the parties here the first time, you're going to have a better opportunity at this. Well secondly, I'm looking at the consideration. Look at this, we as the charging party are an automatic, an automatic party below. What the Board is saying to this Court is we need the charging party to help us decide but the Court of Appeals doesn't. That's the most inconsistent thing. The Board which is an expert needs us to help make the decision but the Court of Appeals that has ten Labor Board cases a year, doesn't need us. I would think of either -- it would be the other way around that if were so all far important to the Board, that they were an automatic party without intervention because they want our help in resolving these questions that somehow the Court of Appeals shouldn't be allowed to consider us. Well, there are -- we have in the brief in Scofield a number of other arguments of policy considerations through analogy, the Rule of Civil -- Rules of Civil Procedure, the contract problem, but I rather just -- to my mind, it's easier to state it this way. The Board concede Scofield but our interest is just as great here as in Scofield. We have as much at stake. We have as big an interest and the way to prove this is to look at Fafnir and see what would happened if it had gone the other way. Suppose in 53 in Fafnir, the Board had said, “No, you are not entitled to the time studies.” Then we would have been the appellant, the petitioner to the Court of Appeals and Fafnir would have been the intervener, the company. The Board says, “Oh, that's fine. Fafnir could come in as a -- intervener as the respondent but you Union, you can't come in as a charging party.” Well, you know what that brings the distinction down to? That if you're claiming you have a right to put time study engineers in the plant, you can't intervene if you win, but if you claim you have a right as management not to put time study engineers in the plant, then if you win, you can intervene. This is two sides of the same coin. The issue in Fafnir is whether the Union can put time study engineers in the plant. If we won the case, we ought to have a right to ascertain the Court of Appeals that we want to put time study engineers in the plant just as if -- if the company won the case, they ought to have a right to put -- to argue before the Court of Appeals that we -- that we shouldn't put time study engineers in their plant but what the Board is now saying is, “Oh, the company can argue that you shouldn't put time study engineers at the plant but you Union, you have on any right to argue that you shouldn't.” I just say it's the same case.
Abe Fortas: Mr. Rauh.
Joseph L. Rauh, Jr.: Well, the Government really doesn't challenge any of this. They don't come to grips with this. The Government --
Abe Fortas: Mr. Rauh, can I ask you a question?
Joseph L. Rauh, Jr.: Certainly, Your Honor.
Abe Fortas: It seems to me, tentatively of course that perhaps the issue here is the control of the litigation, and I suppose that the point of which I'd very much like to here you comment is this. The structure of the Act as I understand it is that the Labor Board does have control as to whether the complaint will be filed the proceeding instituted, and then I suppose with -- more or less logic perhaps less rather than more, more rather than less, they say that they don't have control of the litigation that that's not the -- and that the issue is now whether the courts ought to be able to hear your eloquence and persuasive voice but who control this litigation --
Joseph L. Rauh, Jr.: That's precisely --
Abe Fortas: -- what do you say to that?
Joseph L. Rauh, Jr.: -- correct. That is the Government's position. That's exactly where I wanted to go, what the Government says, what the say is, “If we intervene, we can block settlement.” That's really what the Government's case comes down to, that if we are allowed to intervene in the Court of Appeals, the charging party and Fafnir, we block settlements. And we -- and therefore, we shouldn't be allowed to intervene. Well, my answers to that are several. In the first place, this is a very speculative question whether there are all these settlement and in fact, if you look -- if Your Honor please, Mr. Justice Fortas, on page 28, right in the middle of the place, the middle of the page, the Government even states it this way, “If we were a party, we could conceivably force a continuation of the proceeding.” Well, I don't think that speculation is grounds for denying us intervention but I'm willing to answer it this way. As the law now stands, we couldn't block settlement and my proof of this is the Government because on page 17 of the Government's brief, they point out at the bottom of the page that they can compromise cases before the Board. But we're a party before the Board and if they can compromise cases when we're a party before the Board, why can't they compromise cases in the Court of Appeals when we're a party? We're no different before the Board where we are a party and they claim the right to compromise. Now, all I would say is, this is a premature question whether in fact, if we were -- because the Court of Appeals are split on this and this Court hasn't held -- this Court hasn't decided the question, the cases are set forth in footnote 18, in footnote 10 of the Board's brief on page 18. But those cases are in conflict. The Board has a little CF in there but the CF is a conflict between the Marine Engineers case and the other cases. I'm not answering that. I don't know where the law ultimately will be as to the Board's right to compromise without the consent of the party who's involved. But however that gets decided, that's premature now because we are not claiming that it's a necessary part of our intervention that we have a right to block a compromise. Maybe we will and maybe we won't. That law is yet to be settled. It is confused in the Court of Appeals at the period we're before the Board but the Board asserts a right to compromise when we're before the Board, when we're a party. And I don't see if they're asserting the right to compromise when we're a party before the Board. They haven't got the same right to ascertain -- that they can compromise when we're a party before the Board.
Abe Fortas: Except when you're before the Board also propose a -- proposes a compromise and decides whether they'll be accepted. And I suppose the situation is at least slightly different on it before the Board.
Joseph L. Rauh, Jr.: They have --
Abe Fortas: But Mr. Rauh, you do not take the position and that the Board ought not to have the right to compromise. I thought that perhaps your position would be that since you would be the real party in interest or a real party in interest, the Board ought not to have the right to compromise in its -- just on its motion and without anticipation by you.
Joseph L. Rauh, Jr.: I don't think that. I think they ought to hear us. I think they ought to hear us on the compromise but I think they do need certain rights of compromise and just recently in the Kohler contempt case, I have personally told the court and the Master that we did not object to the Board going ahead and discussing that matter without our presence. I think that the right of compromise is very important to the Board. They have asserted it in these cases and they asserted now. But our intervention doesn't, in my judgment, block that and certainly that question isn't here yet and you'll have that question conceivably some time. The Board also besides the argument on blocking settlement, they argue about the number of cases involved. I can't see how this determines it. If we don't have the right to block settlement when we -- we're almost going to be helpful to them in the Court of Appeals rather than hurtful. They're talking about certiorari. Well, I can't believe this Court is going to grant many certs that the intervener asked for, that the Board doesn't want you to grant. You can always say “no” in this kind of situation. Then the Board relies on the Amalgamated case and that case really supports our position. If you remember the Amalgamated case, aligned with Utility Workers case in 309, this Court held that the Union couldn't file of contempt proceeding. Of course, the Union can't file contempt proceedings. That's an enforcement part. But in that very case, the Union had been allowed to intervene. If you look at 305 U.S., the Consolidated case which was the first of the two cases, there the employer, the Consolidated Edison Company was charged with unfair labor practices. They fought in the Court of Appeals. The Union was permitted to intervene and Louis Boudin argued in this Court as an intervener in that Consolidated Edison case. Then it came back and the Union is trying to go for contempt and this Court held it couldn't but right in the opinion in Amalgamated in 309, it says in so many words that the Union have been allowed to intervene in the court below and had been allowed to argue in this Court. In other words, it makes the same distinction that I'm really making to Mr. Justice Fortas. We do have a right to intervene but we do not have the right to go in for contempt. We do not have the right of blocking settlement but we do have this Court and a matter of fact in Eagle-Pitcher where we were the -- where the Union was the petitioner to this Court, had had intervened in the court below and was the petitioner, this Court made the identical reference to consolidated and Amalgamated that I am making when it said, “We think that in the circumstances as close, the Union though they could not have instituted enforcement proceedings, citing Amalgamated, had standing to seek review having intervened below probably of the order denying the Board's petition cited consolidated. Now, -- so that the Board's reliance on Amalgamated actually is misplaced because they were allowed to intervene. We did intervene and we did participate. We were not allowed to file contempt and we make no claim of that here. Finally --
Potter Stewart: Generally, an intervener, a successful intervener becomes a party and you're not telling us that it may well be in this situation he does not become a party. So this is something less than intervention as it generally understood.
Joseph L. Rauh, Jr.: No sir, I think he becomes party. But he was a party in Consolidated Edison in 305. He was a full party. You heard him. This Court heard a spokesman for the Union in 305 in Consolidated Edison. Then it came back in 309 in Amalgamated Utility Workers case and you wouldn't let the same party you heard file contempt proceedings. He was -- but it's clear that he was a party but there are certain limitations on this party. He couldn't file contempt proceedings. That was the only limitation you've ever held today on this. But here, with this --
Potter Stewart: But you -- and then you now suggested that it is possible and he might not be able to --
Joseph L. Rauh, Jr.: Block a settlement.
Potter Stewart: -- block a settlement, yes.
Joseph L. Rauh, Jr.: That's correct.
Potter Stewart: -- which would certainly take a great deal of what we generally consider the power of a party away from it.
Joseph L. Rauh, Jr.: Well, you took a lot of way in Amalgamated when you wouldn't let him go for contempt. But I don't think you can say because you wouldn't let the Union go for contempt that he wasn't a party after this Court heard him here as a party in the beginning of this identical proceedings.
Abe Fortas: Mr. Raugh --
Joseph L. Rauh, Jr.: And it seems to me, he was a party but without contempt rights. That's -- he was a somewhat different party and we don't deny that this has to be somewhat adjusted to the public interest of the Labor Board.
Abe Fortas: You referred to a situation I think Kohler in which you said you encouraged the Union and the Board or the employer and the Board to have a private discussion --
Joseph L. Rauh, Jr.: We agreed --
Abe Fortas: -- that's about settlement.
Joseph L. Rauh, Jr.: -- not to participate in those in the hope that the settlement could be reached, yes Your Honor.
Abe Fortas: And in any case where you are a party before an appellate court, I should think that the Board and the employer would have to have you present and compromise a settlement discussions and then it'd be up to you to waive that or not waive it.
Joseph L. Rauh, Jr.: We're in limbo in that particular case because we have a motion for intervention pending which is --
Abe Fortas: I'm not talking about that case.
Joseph L. Rauh, Jr.: Oh, excuse me.
Abe Fortas: I'm talking about the principle of it.
Joseph L. Rauh, Jr.: Well, I am saying that just as this Court decided that though the Amalgamated Public Utility Workers could participate in this Court as a party, which it did in 305, it also held in 309 that it couldn't bring contempt proceedings. It obviously limited party rights. And I'm saying that we have a right to intervene the question of what our party rights will be is premature at this time. You have already demonstrated by 305 and 309 that you do recognize unions as a party in these circumstances but you don't give them all the rights of an ordinary party because you took away the contempt right and we do not challenge that. Just finally, the Board in its appendix points out that every other agency, every agency you can get in private parties like this do get in except the Federal Trade Commission. Well, I say we're not like the Federal Trade Commission. The Federal Trade Commission starts on its own. The Board couldn't have started the Fafnir case without us. Our charge is a condition precedent of the beginning of the Fafnir case. In the Federal Trade Commission, the informant, if there is one, there doesn't have to be, is not a party. We're in automatic party to the thing, we're part of it. And the fundamental purposes of these laws are different. As the Klesner case 280 U.S., which the Board relies upon, proves the contrary. There they said that the Board, that the FTC couldn't even start a case on the basis of some private wrong. Every Labor Board case gets started that way, a charge or maybe some extreme one but every case I've ever heard of, either labor people is claiming the management did something wrong and that starts it, the management's claim and that the labor people did something wrong or some individuals are claiming that both of them did something wrong. But the whole proceeding here as I pointed out from the name of this law is a kind of an umpiring operation. We have to concede some rights as the contempt, but obviously I don't think I'd have to go into the very clear problem.
Byron R. White: Mr. Rauh, what's been your experience in the Courts of Appeals so far on this question?
Abe Fortas: I understand that it's not only ours, but a majority permit respondent, a majority have not permitted on the charging party to get in but a number have -- there are a great many --
Byron R. White: Who permits -- what Circuits -- do you know which Circuits permits you the successful charging party in?
Abe Fortas: We have in our --
Byron R. White: Perhaps, we're worried about --
Abe Fortas: -- we have some in our -- we have some cases mentioned in our petition for cert before this Court. I can't immediately call to name those that have. But as a matter of fact, some circuits have done differently at different times. It's been a hard -- it doesn't seem to be in any rule. This Circuit has allowed the charging party in one case it's kept the respondent out in another, in the District Court. One right now, it's pending -- a respondent was kept out of it but in an earlier one, a charging party was left, in other words, there are cases both ways, but I do have to agree with Judge Friendly that they have largely on discussion been kept out of the charging party. Now --
Potter Stewart: Has any -- has any Court of Appeals taken a position that it's not -- that there is no right to intervene but that the Court in the exercise of its discretion may allow it?
Joseph L. Rauh, Jr.: Well, I think we must have -- had that happen sometimes when we've had intervention without opinion but I --
Potter Stewart: And that would also explain the fact that the courts have gone both ways.
Joseph L. Rauh, Jr.: The critics --
Potter Stewart: The same courts have gone both ways on it.
Joseph L. Rauh, Jr.: -- could explain it although as I said, when intervention has been permitted. There has been no opinion. So I can't --
Potter Stewart: Yes.
Joseph L. Rauh, Jr.: -- speak as to the right of court.
Speaker: (Inaudible)
Joseph L. Rauh, Jr.: It could involve discretion, yes Your Honor.
Tom C. Clark: It's exactly it wouldn't do one way or one side.
Joseph L. Rauh, Jr.: That -- that --
Tom C. Clark: On restriction.
Joseph L. Rauh, Jr.: That's very likely what happened there, yes Your Honor.
Hugo L. Black: Are you drawing a support from either from the Labor Act of many other statutes passed by Congress?
Joseph L. Rauh, Jr.: Yes, Your Honor. In the Hobbs Law passed in 1950 where a number of statutes were made like, where the District Court review changed the Court of Appeals review. I'd like just to find that, if I may, and call your attention to it in our brief. If Your Honor will look at page 37 of the blue brief for petitioners, that's in Number 18. Your Honor will look at page 37 in Number 18. We referred there to 5 U.S.C. 1038 which shows that when Congress changed the law for a number of other agencies, it provided for intervention and it referred in there to saying the pattern established for reviews of orders of the Federal Trade Commission and followed by the law, since then, in relation to many other agencies including the Securities and Exchange Commission, Bituminous Coal Commission, and the National Labor Relations Board, in other words it made an assumption that this --
Hugo L. Black: That's in the statute or in the reports?
Joseph L. Rauh, Jr.: That's in the report, Your Honor. That's on page 38, the first sentence in the report, and then down below is the actual statute which does permit interventions. So actually the only place where you don't get intervention at the moment and I don't know that it's been tried but I don't think it would succeed as a Federal Trade Commission, I say that's totally different because you don't have the private rights and you don't have them as an umpire between management and labor, the way we are. If Your Honors please, I think any suggestion that we can do this job as amicus curiae is obviously unsound. You don't get in on designating the record. You don't determine the issues. You don't get oral argument. You can't petition for a cert. This is a wrong use of amicus curiae.
Abe Fortas: Mr. Rauh, excuse me, I think the Federal Trade Commission preceding a party who is a party to the administrative proceeding has -- is generally allowed to intervene, perhaps as a right to intervene, am I wrong about that?
Joseph L. Rauh, Jr.: The defendant? The charged party?
Abe Fortas: No, no. Anybody who is allowed to intervene before the Federal Trade Commission, although I don't think they're allowing the intervention very often. Are you telling me that -- you're telling us that the charging party has made a party before the Board?
Joseph L. Rauh, Jr.: Before the Labor Board?
Abe Fortas: NLRB, yes.
Joseph L. Rauh, Jr.: Oh yes, Your Honor. Before the Labor Board, the charging party doesn't have to intervene. Under their rules, it's 102.8 of the Labor Board rules, the charging party is automatically a party before the Board. He doesn't even have to go and say I want to come in. He is in.
Byron R. White: But this is a matter of Board rule, not statutes.
Joseph L. Rauh, Jr.: The statute permits the Board to do this but doesn't direct it, yes Your Honor?
William J. Brennan, Jr.: Yes, but not if he lose, the charging party loses, then the statute makes a party aggrieved for the purpose of --
Joseph L. Rauh, Jr.: Yes, Your Honor.
William J. Brennan, Jr.: -- petitioning the Court of Appeals.
Joseph L. Rauh, Jr.: Precisely, Your Honor.
Byron R. White: Well, he might not be -- he might not be if the Board didn't make him a party.
Joseph L. Rauh, Jr.: Well, yes, he'd be a party although -- if the Board hadn't made the charging party a party, the word “party” would be hard but the statute contemplated that it would be aggrieved at that time in which they denied the relief he sought, but they would --
William J. Brennan, Jr.: And that is only if the complaint is --
Joseph L. Rauh, Jr.: That's right. Just like decided, no complaint issues. The General Counsel has full authority over the complaint. That's absolutely right. But he can't issue the complaint without a charge and once the charge complaint is issued, we are automatically a party and I think if the Board needs us, the Court of Appeals generally wouldn't need us too.
Abe Fortas: Are you saying that there is a comparable situation on the Federal Trade Commission --
Joseph L. Rauh, Jr.: I'd say like --
Abe Fortas: referring to this.
Joseph L. Rauh, Jr.: -- precisely the contrary if Your Honor please. They don't need to charge. They don't have any regulation about if a man does make a charge, he can be the party and in fact Justice Brandeis' opinion in 280 indicates that he doesn't even -- that they should even start a proceeding because of a private interest. That's exactly the difference in statutes, the proceeding is started for the Labor Board because of the private interest but it cannot be started in front of the Federal Trade Commission under the cluster case because of the private interest.
Speaker: (Inaudible)
Joseph L. Rauh, Jr.: Yes, Your Honor.
Hugo L. Black: Do you argue at all that we can find and draw inferences from statute as a whole, or any part of it that Congress did do it?
Joseph L. Rauh, Jr.: In the sense Your Honor, yes. That the Congress setup especially in the Labor Management Relations Act in 1947, private rights on both sides referring to the Labor Management Relations Act and set the Board up as the umpire of those private rights, the umpire in the public interest but when there were these interests, it can be inferred from them that they expected that Cong -- that we would, to both sides, it's not that -- I keep saying we. I'm speaking badly because the management has the identical problem of intervention. We have this all the time where management as the winning party has sought to intervene. But both sides that because of the private rights that Congress setup, it seems to us, they had intended this. But at best, the silence of Congress is up to this Court to interpret and under its supervisory authority --
Hugo L. Black: I don't --
Joseph L. Rauh, Jr.: -- to tell the --
Hugo L. Black: I finally get away from that word supervisory. That's a little too broad for me in many aspects. I want to find some statute if I can. I think that's been used too loosely.
Joseph L. Rauh, Jr.: Section 10 (l), if Your Honor please, is the closest thing to it in the statute. Section 10 (l), if Your Honor will recall, the Taft-Hartley, they require the Board to go for an injunction in certain instances and the charging party there is made an automatic party in the District Court in those circumstances. It just would be congressional idiosyncrasy, it is the Keiffer case language to assume that they -- that they were assuming that they'd be kept out of here. Section 10 (l) is an identical situation that goes into the District Court where the charging party is made an automatic party. I was saying that there is no -- this is not the right use of amicus curiae with direct -- the amicus curiae you think in terms of an organization or someone with a similar interest. We're directly interested party and you cannot so easily resolve the problem as by saying, “Oh let them be an amicus curiae and file a brief.” It will not solve the problem of getting before this Court in an administratively sound way, all of the parties if anything is to come here. So in conclusion, if Your Honors please, the game opens with the charge by the management or Union, when the Labor Board moves, the charging management or labor is a party. It files exceptions if it doesn't agree with the trial examiner. It argues before the Board and all of a sudden, it gets out in the Court of Appeals. Now, we suggest that the Board concedes the power to do this. It concedes our very, very direct interest and as the distinguished panel that I mentioned when I started this argument said, “Any party to NLRB proceedings should be allowed to intervene in the appellate proceedings. I'd like to reserve the rest of my time.
Earl Warren: You may. Mr. Solicitor General?
Thurgood Marshall: Mr. Chief Justice and may it please the Court. Of course we have no quarrel with Mr. Rauh's statement of facts or indeed we have little quarrel with Number 18. We quarrel correct, the state as with 53. I think at the very outset, we have to point out some of the questions have been painted with too broad a brush. In the first place, it's not limited to either Union or management to file the charges. The statute says anybody could file it and indeed even though 18 is out of this -- in 18 these. were Union members, it was the Union who filed the charges. Let's get that straight, number one. Number two, whoever files a charge is not automatically a party because it's been the Board's subtle position for many years that it could -- the statement about the charging party filing a charge, it's up to the General Counsel, the Labor Relations Act, unlike the other acts and to get to Mr. Justice Black's question, in a moment, I will get to the Amalgamated case and in that case, Chief Justice Hughes did go over all of the legislative history and concluded that it was the public interest. And Mr. Rauh is conveniently slipped into saying that the NLRB is just an umpire. It's the opposite of an umpire. The ICC sets more or less as an umpire. But once the General Counsel decides not to file, it's not filed. That's it. Once the counsel decides to file, from that moment on, it's the General Counsel who is the prosecutor. You don't have two prosecutors in a case.
William J. Brennan, Jr.: You mean the complaint is in his name?
Thurgood Marshall: The complaint is in his name and he --
William J. Brennan, Jr.: And that he controls the litigation before the Board.
Thurgood Marshall: He controls the litigation in toto and his employer, the Federal Government pays for it in toto. Of course the charging party is by rule of the Board made a party, by rule of the Board. But let's not stretch that too far either because the rule says at the bottom of 102.8 --
Hugo L. Black: What page is that?
Thurgood Marshall: It's on page 42 of our brief Mr. Justice Black, that says but nothing herein shall be construed to prevent the Board or its designated agent from limiting any party to participate in the proceedings to the extent of his interest only. So from the very beginning, this “party” is not a party as we generally understand a party to litigation who controls his portion of litigation.
William J. Brennan, Jr.: Well, suppose he -- he'd been -- he filed a charge to the General Counsel.
Thurgood Marshall: General Counsel.
William J. Brennan, Jr.: The General Counsel issued the complaint.
Thurgood Marshall: Yes sir.
William J. Brennan, Jr.: It goes to litigation before the Board and the Board dismisses the charge.
Thurgood Marshall: Yes sir.
William J. Brennan, Jr.: Does he have a standing or may he go to the Court of Appeals.
Thurgood Marshall: If they dismiss the charge --
William J. Brennan, Jr.: Yes.
Thurgood Marshall: Yes sir.
William J. Brennan, Jr.: He may.
Thurgood Marshall: Sure.
William J. Brennan, Jr.: He then makes --
Thurgood Marshall: He's an aggrieved party.
William J. Brennan, Jr.: So to that extent, he's a party, he may go to the Court of Appeals on a petition.
Thurgood Marshall: The reason he goes to the Court of Appeals is as it has been said, in some of the cases, I think rather loosely becomes a private Attorney General because it's the only way it will go up. The General Counsel was not going against the (Voice Overlap) --
William J. Brennan, Jr.: I don't go much for those labels. The fact is --
Thurgood Marshall: Yes sir.
William J. Brennan, Jr.: -- he has a statutory right, does he not?
Thurgood Marshall: Yes sir.
William J. Brennan, Jr.: He goes to the Court of Appeals on a petition and there he is the one who initiates the proceedings in the Court of Appeals, isn't it?
Thurgood Marshall: But he has that by the statute itself. But the statute on the other side left the other parties completely without coverage.
Earl Warren: He has that right because he's an aggrieved party here (Voice Overlap) --
Thurgood Marshall: And the statute is the aggrieved party the right.
Potter Stewart: In fact, the statutes says that an aggrieved person --
Thurgood Marshall: Person --
Potter Stewart: -- so the statute doesn't help up us --
Thurgood Marshall: Yes sir.
Potter Stewart: -- very much to the issue. And he had that issue correctly say because of the explicit provisions of the statute which appears on h (2) of the petitioners' brief in Number 18 (Voice Overlap) --
Thurgood Marshall: We also would like to point out that from the beginning of this, the General Counsel and the Board can settle anything at any time. And while it is true that the charging party is listened to, he doesn't have any right to put on any evidence or anything else. So the yardage petitioner is trying to get is based fully on the fact that he is a party at the Board. He's not a party in the general sense of the word. And that goes all the way through to the Court of Appeals. Now, I think that the important thing is to recognize that there are to my mind two cases that we are faced with, and I for one would not like to gloss over them.
William J. Brennan, Jr.: Mr. Solicitor, before you get to this may I just ask, is it the Government's position that in circumstances of this kind, we ought to say that he should never be allowed in the Court of Appeals or merely that he has no right to get into the Court of Appeals but that the Courts of Appeals have discretion to let him in if they want to which is it?
Thurgood Marshall: I think we take the position, he certainly does not have the right. And it's the Board's position and I think it's pretty universal that they're opposed to it at every stage, that's the Board's position.
William J. Brennan, Jr.: In other words, that we should say that he neither has the right nor is there any discretion in the Courts of Appeals, no matter what the circumstance is?
Thurgood Marshall: I would, Mr. Justice Brennan, I'm worried about your second point because there haven't been any instances that I know of, there's such the --
William J. Brennan, Jr.: Well --
Thurgood Marshall: There is a type of one act --
William J. Brennan, Jr.: Well, I haven't seen these cases but --
Thurgood Marshall: Well, I can tell you, I'd say that -- most of them, there are many that are not cited that aren't reported but --
William J. Brennan, Jr.: There were five cited here in the petition in -- I guess this is 18, is it?
Thurgood Marshall: Yes sir, we have some cited in ours too.
William J. Brennan, Jr.: Without illuminating opinions of court rules in most circuits that denied intervention to the charging party, but intervention has occasionally been allowed, and then the citations, two from the District of Columbia, and two from the Seventh Circuit, one from the Eighth Circuit.
Thurgood Marshall: Well --
William J. Brennan, Jr.: I haven't read those cases. I don't know whether those are true.
Thurgood Marshall: Yes sir. The case is -- and also in Judge Friendly's opinion, he points it out that those are usually cases where it's not a clear-cut decision on either side, the Board. The Board's given some and withheld some and they're not clear-cut cases. Now, that's what the Board's position is. That's what I was told this morning.
William J. Brennan, Jr.: But are you urging on us if I may come back to it, that we should say that the charging party in this circumstance should never be allowed in notwithstanding the Court of Appeals in particular situation, it may feel that discretion should be exercised.
Thurgood Marshall: Well, I come back to intervention more or less the classical intervention is discretionary.
William J. Brennan, Jr.: That's right.
Thurgood Marshall: The intervention as a matter of right is really not intervention, you have made a party, and I frankly would hate to take away from the Court of Appeals the right in the proper case. And the reason I have to say that is because of the second Amalgamated case in which the Chief Justice Hughes' case, in that case as Mr. Rauh said was whether or not the Union could go for contempt on a clear-cut order of the Board. And Chief Justice Hughes after reviewing the legislative history found that both houses and the committees of both houses stressed the point that there was no private right of action. And in this opinion for unanimous court, and incidentally the unanimous court only 26 days after the argument, said there could've been much a disagreement. Chief Justice Hughes put all of the opinion on the question of whether or not this was on behalf of the public. And he said that it seeks enforcement as a public agent and not to give effect to a private administrative remedy. This opinion has been severely criticized by such people as Professor Jaffe in Harvard Law Review and Professor Davis in his treatise but even Professor Davis says, it become deeply embedded. And Chief Justice Hughes also observed that so far it is apparent that Congress has entrusted to the Board exclusively the prosecution of the proceedings by its own complaint etcetera. When the Board has made its order the Board alone is authorized to take proceedings to enforce it. Then he goes to the public interest and then he contrasts it with, Chief Justice Hughes, with the ICC regulations and says that they're entirely different. And finally in regard to this private right which Mr. Rauh is so interested in, in the last paragraph, Chief Justice Hughes said, “If the decree of enforcement is disobeyed, the unfair labor practice is still not prevented. The Board will still remain as the sole authority to secure the prevention.” And I see no difference between that and this. Now, of course, Mr. Rauh is right about this intervening party and Mine Workers against the Eagle-Pitcher is a rather difficult decision for me at least, 1945. The Union complains that the Board ruled against the employers and the employer responds and sought review in the Court of Appeals and the Board sought enforcement. And the Unions were permitted to intervene. The Court of Appeals modified the order and decreed enforcement and two years later, the Board petitioned the Court of Appeals to vacate a portion of its decree on back pay and to remand it to the Board. And the labor union was again was permitted to intervene. And the petition of the Board was dismissed. The Board did not apply for certiorari but the intervening Union petitioned for certiorari. And in that case, in a five-to-four decision, a majority written by Mr. Justice Roberts and the minority by Mr. Justice Murphy as I remember. But the majority said, “We think that in the circumstances disclosed, the petitioners, though they could not have instituted enforcement proceedings, had standing to seek review of their order denying the Board's petition and preceded to decide the case, but in that language which I've just quoted, this Court only cited two cases. One was Williams against Morgan, an 1884 case involving a Bondholder's Committee of purchasers having a right to seek review of an order in a mortgage-trustee compensation matter, and I don't think that helps too much. And in the second citation after that statement is the first Amalgamated case, Consolidated Edison and where the Union came up and claimed that they were the aggrieved party and they were allowed in the case. But the record in that case shows that no one opposed the intervention of the Union and the order was signed by a single judge, so obviously there was no question in there.
Hugo L. Black: What was the case you're reading from? You had just submitted the early dissent.
Thurgood Marshall: Mine Workers versus Eagle-Picher. It's in our brief but it's 325 U.S. 339.
Abe Fortas: General, I don't understand why you're basing your concern about that case. Currently, the Court allowed the Union to intervene in the Court of Appeals --
Thurgood Marshall: Yes, sir.
Abe Fortas: -- is that right?
Thurgood Marshall: Yes sir.
Abe Fortas: Now, do you dispute the proposition that once the Union has intervened, that has all the rights of the party in the Court of Appeals.
Thurgood Marshall: Well, at that stage, I am not certain. The position that this Court would have taken if the issue was raised because with the question that Mr. Justice Brandon asked the court might have taken the position that they did not have a right to intervene and it was error for the court to allow them to intervene.
Abe Fortas: Well, I thought you're position was that the Court of Appeals should -- the discretionary power of the Court of Appeals to allow or disallow intervention in these situations should be recognized.
Thurgood Marshall: Providing there are special circumstances which might have been in this case.
Abe Fortas: May I ask you --
Thurgood Marshall: I just don't want to block the door on that special circumstance case.
Abe Fortas: Yes, may I ask you a further question here. Let's suppose that the Board and the respondent in the Court of Appeals or the petitioner in the Court of Appeals agree on a settlement while the case is pending in the Court of Appeals --
Thurgood Marshall: Yes sir.
Abe Fortas: -- does that require a order of the Court of Appeals, that it's a settlement on the case, does it require the order of the Court of Appeals?
Thurgood Marshall: Well, I can only say from experience on the Court. We have given settlements in the Court of Appeals where both have agreed and they have signed and they handed it to the Court of Appeals and the panel involved has agreed to it.
Abe Fortas: But then, the panel of the court has agreed and asked --
Thurgood Marshall: Yes.
Abe Fortas: -- and sent an order.
Thurgood Marshall: Without any exception, without any exception.
Abe Fortas: What I don't understand. Perhaps you'll help me and I'm sorry that I take your the time is what is the objection of the United States to having the Union or the company participate at that point, let us say, suppose the intervener did object to the settlement arrived at by the Board and the other party, couldn't the court enter an order overriding that the objection to the settlement?
Thurgood Marshall: Oh, I think actually they could. I don't see any reason. Once the case is lodged in the Court of Appeals --
Abe Fortas: Yes, what I'm --
Thurgood Marshall: -- discussions subject to this Court is pretty broad.
Abe Fortas: What I'm trying to get at is whether the position of the United States here and the Board is really an objection to the right, the asserted right of the Labor Union and Mr. Rauh's case to be heard number one. And number 2, the right or the asserted right of the Labor Union in his case to petition for a certiorari in this Court, is that your objection?
Thurgood Marshall: Well, my objection and the Board's objection is that he has no right. Once the Board acts, the Board acts in the interest of the Government and the public interest only. There's no other interest involved?
Abe Fortas: I want --
Thurgood Marshall: We entered the fact that there are some money going to go to worker or what have you? That's not the worker's money until it gets it in his pocket.
Abe Fortas: Mr. General, I want to make my question very clear.
Thurgood Marshall: I'm sorry.
Abe Fortas: No. And I'm sure it's my fault. But my specific question is whether the Board and United States are here taking that position that at an intervention is allowed to Mr. Rauh's Union, then that Union will have the power to block the settlement if one jas agreed on it.
Thurgood Marshall: If he's a party.
Abe Fortas: Now, is that really the fact or is it the fact that all the Union would have in Mr. Rauh's case, would be the right to be heard, before the Court of Appeals to state its objections if they have any to the settlement, and then perhaps the right to petition in this Court's certiorari.
Thurgood Marshall: Mr. Justice Fortas, I am afraid, I'm not hedging but I think it's a combination that we take the position that this private party has no right in the proceedings for any purpose as a party and the reason for that is because the entire weight of the Government is moving. It's the Board, it's the General Counsel, and the -- well I guess it's the old story about too many crux or what have you. But our whole position is that they have no right. And in this case, they've shown no reason of course for any other reason to come into the case, once it's --
William J. Brennan, Jr.: Let's take a proceeding in the Court of Appeals and the Board and the respondents decide to settle.And the Union has been allowed to intervene in the Court of Appeals. Now what -- the Court of Appeals has nothing to do with the settlement. The Union has an objection to the settlement, the Union doesn't present into the Court of Appeals it doesn't, am I wrong about that?
Thurgood Marshall: I don't know of any, do they?
William J. Brennan, Jr.: It seemed to me, if the case was settled, then the consequences, I suppose, is the dismissal of the enforcement proceeding, isn't it?
Thurgood Marshall: The only settlement that I have run across had been where two parties have signed. I've never seen one with the third party's signature.
William J. Brennan, Jr.: Well, I'm a little puzzled. What is it that the Union can do if it's there, it can have any effect on either the settlement, or on the consequent dismissal of the enforcement proceedings.
Thurgood Marshall: Well, as to settlement, I don't know what the rule would be if two parties settle a case involving three parties.
Hugo L. Black: Suppose (Inaudible) -- you think the third party could go to the court and say, “They're settling my case, they've given away my claim, and I do not want you to permit this case to be dismissed,“ if he is a party.
Thurgood Marshall: I should think he would.
Hugo L. Black: Is that what you argue?
Thurgood Marshall: I should think he would. But the whole point is Mr. Justice Black, is that I think the one point we have to get clear is once this gets to the Court of Appeals, and indeed I can go back to the time the complaint is filed. The complainant party has no more right. His right goes when the proceeding starts. From then on, it's the public's right, it's the public's interest and even though it doesn't --
Hugo L. Black: It down the basic issue here, isn't it?
Thurgood Marshall: That's it.
Hugo L. Black: Whether or not it is just the public's interest. If he has filed a charge and it affects his interest, and he's permitted to file the charge and could have appealed from a refusal, the question is whether it is only the public's definition.
Thurgood Marshall: Well I --
Hugo L. Black: -- whether we -- whether we can find something in the statute that says that, as far as I'm concerned, part of the statute that says that he has a right to have -- be heard.
Thurgood Marshall: Well, I'm relying on the opinion of Chief Justice Hughes who points out how he went through the legislative history and he has the citations there and, of course also, rely on my favorite author, among the Court of Appeals' judges, Judge Friendly and he found a case who also went into it. They're convinced that regardless of what the state of labor relations and what have you is today, when this Act was passed, it was passed for this expressed purpose, and both committees, rather the committees of both houses made it clear that they were not beginning to be involved in any private interest points.
Earl Warren: Well General, if the proceeding only deals with public rights by this statute to say that any injured party could appeal.
Thurgood Marshall: It's because as the cases we have cited, it gives the private party the public -- private attorney-general point. It's the only way it'll get to the Court of Appeals. The Board's not going to take it up and the General Counsel is not going to take it up. And I think and heard in the Act is for the Court of Appeals to have an opportunity to pass on the Board's actions.
Earl Warren: Well -- but the injured person would be pursuing a private right with me rather than the public right --
Thurgood Marshall: Right.
Earl Warren: -- and would be controlling that situation?
Thurgood Marshall: Yes sir, but that's why the Court says that in that instance, he's not a private individual. He's a private Attorney General. The -- it's in the -- I think if I could quote from Judge Friendly's opinion in the Teamsters case, “The General Counsel cannot appeal from his own Board's decision, the respondent has no motive to do so, and this portion of the statute would thus be rendered nugatory unless the charging party was allowed to come in”. And I think that's what these cases stand for. The major one is the American Newspaper Publishers, but that's the reason for it but still it's -- it's in the public interest. It's in the public's interest to find out whether or not the Board did find or did not find it. But I don't think that helps in the other instance at all, because the case is in the Court of Appeals, and I don't see how we can assume that the General Counsel is not going to make as good a presentation as Mr. Rauh, at least he'll try to. And the record -- as they're designating the record, in most of the cases, I run across, the whole record goes up anyhow. But at some places, they do designate the record. I think also on the question that he raise about going back to the Board, provided the case is sent back to the Board and that he will automatically have a right to come up, I'm not too sure he does. But even if he does, he admits that the law of the case would have been settled before he gets there.
William J. Brennan, Jr.: May I ask Mr. Solicitor.
Thurgood Marshall: Yes, Justice Brennan.
William J. Brennan, Jr.: Has there been any effort to get Congress to amend the Act along the lines of Section 8 of the Hobbs Act?
Thurgood Marshall: Not that I know of at that court. The Board says, they do not know of it. And this Amalgamated case has been on books since 40, since 1940.
William J. Brennan, Jr.: I mean even after that Blue Ribbon panel said this ought to be done.
Thurgood Marshall: Well, I would like to say that on that -- the only thing I could say about that is that Professor Cox who wrote the -- who made the original study when he became Solicitor General Cox, approved the position that the Government took in these particular cases. And since I happen to know some of the names that were mentioned in regards to a question earlier, I can guarantee you without having to read all the proceedings that they were not all in agreement on any one point. And I -- do you agree with it?
Earl Warren: Well, General I'm still -- I'm still bothered by this problem if -- when the statute says that any injured party may appeal and that an injured party does appeal, does the Court of Appeals determine only public rights, or does it perceive to determine on the record, the private rights of the parties in the case?
Thurgood Marshall: The scheme of the statute is their public rights. And the -- I think the best way we come to grips is that they're back pay cases where they find the management guilty of an unfair labor practice in order them to do this, this, this and to pay back pay in blank dollars to blank men. That's still public, it's not private until that money actually gets to it because the Board has given authority once they issue that order. They might still cut it down. There's still negotiation. There's still possibility of settlement. And even when it gets to the Court of Appeals as a possibility of settlement in the public interest --
Byron R. White: Well then, Mr. Solicitor --
Thurgood Marshall: -- not as to whether A, B, C gets a hundred bucks.
Byron R. White: Mr. Solicitor, let's concede for the moment that there are public rights involved, and that the issue before the Court of Appeals is a matter of public right, does it necessarily follow that therefore intervention in the Court of Appeals should not be allowed by that court to aid in the consideration of whatever the public right might be, it doesn't have to be a private right to permit intervention in a manner -- I suppose there is a public right involved when a charging party, a charged party is successful, and he's permitted to intervene there although where I suppose we're dealing with the public right.
Thurgood Marshall: Yes, but he loses something.
Byron R. White: Well, he may, but it's a -- but it doesn't become a private right just be in one case and a public right in another.
Thurgood Marshall: Well, I don't know. It seems to me that as to whether or not the Court Of Appeals should have the benefit of whatever the charging party has to offer, that can be covered to a certain extent by brief amicus which is usually granted, very seldom that the Courts of Appeals allow argument on which he just filed a brief amicus. But you see, obviously, the petitioners in this case want more than to give to the Court of Appeals their position.
Byron R. White: But they want what a -- what a successful respondent gets.
Thurgood Marshall: Yes, they -- no sir, they want to argue in addition to what General Counsel is going to argue.
Byron R. White: Well that's true, that's true.
Thurgood Marshall: Well, what could they have in addition to what General Counsel has? General Counsel is representing the prosecution. He must know as much as they know, he's tied to the record. He can't go outside of the record.
Byron R. White: Well, this is really getting down to it then, isn't it? Isn't it a consideration of the -- isn't a judgment of whether, whether the charging party really would contribute much to these proceedings?
Thurgood Marshall: Or whether he could --
Byron R. White: Is that the question?
Thurgood Marshall: Yes sir, whether he could in his own personal interest --
Byron R. White: Do any more than the General Counsel would?
Thurgood Marshall: Well, take for example the petition for certiorari.
Byron R. White: Yes.
Thurgood Marshall: Now, if the Board loses, the Board, on the advice of the General Counsel decides whether or not they're going to apply for certiorari. Once that decision is made, they then come to the Solicitor General to find out whether or not they're going to petition for certiorari. But certainly this third party wouldn't be required to come to the Solicitor General. And he held the public interest case would be in the hands of a private individual.
Byron R. White: But it was suggested that just because he became a party, he don't have all the rights of the party, that might be one of them that didn't have.
Thurgood Marshall: Well, it would be very difficult under the supervisory power of this Court could go into that very great detail.
Byron R. White: Yes.
Thurgood Marshall: And I think the -- well, to sum up, I think number one, this Court should make it quite it clear that there is no right to intervene as a party, and as to whether or not the Court wants to leave the Court of Appeals with some discretion. I think that's up to the Court.
Byron R. White: Well, don't you think, isn't it -- in 18 as your position that this ought to be a matter of discretion rather than a right about the -- about the -- you think the successful respondent ought to be allowed to intervene in the Court of Appeals?
Thurgood Marshall: Well I'm worried about that case where -- well, to put it simply the --
Byron R. White: Do you think that's a matter of right or a matter of discretion similar to -- I take it from your footnote --
Thurgood Marshall: Right.
Byron R. White: -- in your brief, that you think it's by analogy that 24 (b) in the District Court.
Thurgood Marshall: Right. And I checked incidentally Mr. Justice -- when I checked on the new proposed rules --
Byron R. White: The new appellate rules?
Thurgood Marshall: The new appellate rules, they follow the general rule which doesn't intend to give anybody any right to intervene, just a general language that's in most of the Courts of Appeals.
Byron R. White: Does it deal with intervention?
Thurgood Marshall: Just that it is in the regular rules of the courts, the individual Courts of Appeals.
Byron R. White: What does it say, just the intervention (Voice Overlap) --
Thurgood Marshall: No, the party may intervene by filing this, this, and this and leave them to the whole jurisdiction, I mean discretion to the Court.
Byron R. White: So it is a discretionary matter?
Thurgood Marshall: Yes. The point that I'm worried about is the case where the Union asked for a 100%, and gets the 65%.
Byron R. White: Yes.
Thurgood Marshall: And there's a real good solid --
Byron R. White: Yes.
Thurgood Marshall: -- issue there. That's the one I'm worried about but I've also find, if I may say so that a lot of bad rules are made and looking forward to cases that might never come up.
Byron R. White: Well, I take it 18 then if the court have reversed this -- the Court of Appeals, we would do so in terms of an abuse of discretion.
Thurgood Marshall: I think so, yes sir. Because of the -- most of the cases have gone the other way. Indeed they, this is the first time they've gone this far.
Byron R. White: Yes.
Speaker: (Inaudible)
Thurgood Marshall: Well the -- the point has been made and suggested -- if we take all of these other rights, to weigh the right, to block settlement, the right to petition etcetera is in fact back to the status of amicus curiae.
Byron R. White: Well, that's -- except you have oral argument, it will make --
Thurgood Marshall: Oral argument -- oral argument.
Byron R. White: -- anymore work for the lawyers, Mr. Solicitor.
Thurgood Marshall: I think that about -- did we got it here? May it please the Court, I think on the basis of that, with the brief and with the one explanation, the appendix which has all of the different materials from the different agencies, I would like to advise the Court that that material was obtained from the agencies by letters from the Solicitor General and correspondents back and forth. And we have in the files those letters providing anybody who would need them. And the final point is that bear in mind, if you will, the first part of our appendix where we set out the number of cases involved from different agencies, when we try to lump NLRB with all the other governmental agencies, this problem is a pretty tough one, and I believe it is a right for the court to decide. And number one, of course in 18 to reverse, and in the other one, 53 to affirm and make the rule crystal clear as to what it has already been in most of the Circuit, unless there are further questions.
Hugo L. Black: Mr. General.
Thurgood Marshall: Yes sir.
Hugo L. Black: You referred to the (Inaudible) case which I have now just read.
Thurgood Marshall: Yes sir.
Hugo L. Black: Did you gain the support for your side -- your arguments from that or the other side, which --?
Thurgood Marshall: I gain considerable support from the other side.
Hugo L. Black: From the other side?
Thurgood Marshall: Yes sir. But --
Hugo L. Black: Very much like the Court went a long way there, isn't it, to --
Thurgood Marshall: I --
Hugo L. Black: -- allow the Union to intervene because it had an interest, although it had no original right to bring the case up.
Thurgood Marshall: And especially with one judge signed it, a single judge signed the order and I -- we went back to the briefs and all and I'm just in a loss as to it, but I -- I couldn't at least, I couldn't ignore it. But I don't think it's in any way overrule Amalgamated at all. I don't think it begins to overrule it and I don't think it touches the public interest point.
Byron R. White: Well, Mr. Solicitor, I take it that there are cases. I know you don't like to anticipate cases, but there are cases where the question about the unfair labor practice is identical with the breach of contract point.
Thurgood Marshall: Yes sir.
Byron R. White: And I suppose the Court of Appeals' decision on the unfair labor question would be rather relevant and only on the contract issue.
Thurgood Marshall: Well, they have had long gone --
Byron R. White: And perhaps dispositive of the Union's claim or the individual's claim of the breach of contract?
Thurgood Marshall: Well, they've gone both ways on that. The courts have -- I have seen them go both ways on that and I --
Byron R. White: Well, what about this case?
Thurgood Marshall: Well on --
Byron R. White: Does this got -- is this a breach --
Thurgood Marshall: Well this is, once it -- they have alleged in their action, as I understand it, that this is an unfair labor practice and the NLRB has taken jurisdiction of it.
Byron R. White: Yes, but what if it's a breach of contract, too?
Thurgood Marshall: Well, they picked the forum, the Union picked the forum.
Byron R. White: Well, I know they picked the forum, and they also -- they want to stay in it.
Thurgood Marshall: Well I don't think once you picked the forum --
Byron R. White: They want to stay in the court, they want to -- they want to get up from the Court of Appeals and participate there because the disposition of the question may dispose their contract claim.
Thurgood Marshall: Mr. Justice White, that -- they're arguing on that point just as bad as the other argument. Once they picked the forum, they don't control the rules of the forum. And once they become a party in the Board hearing, that does not carry through. I mean they picked the forum, they came into the NLRB.
Byron R. White: I mean where -- what's the their position going to be if they file 301 suit in the District Court for breach of contract, and the Court of Appeals and the Circuit has already decided the unfair labor practice case and the issue is identical.
Thurgood Marshall: I think the Court of Appeals would say, that's the law of case, and that's it.
Byron R. White: And then -- so that the Union's never had a hearing in the court.
Thurgood Marshall: Oh yes, the Union is -- was the Union -- the Union never asked for a hearing. The Union asked --
Byron R. White: They're asking for one in the Court of Appeals.
Thurgood Marshall: But they didn't start off with it. They asked the General Counsel to represent them and prosecute this case, that's what they asked for, and that they got.
Byron R. White: I see.
Thurgood Marshall: Are there any other question? Thank you sir.
Earl Warren: Yes. Mr. Rauh.
Joseph L. Rauh, Jr.: May it please the Court. We did not ask the General Counsel to prosecute this case for us. We filed a charge when the Board rules made us a party if the charge resulted in a complaint. Mr. -- the Solicitor General has stated that we are not a party in the general sense of the word, and I challenge that that we are not a party in the general sense of the word before the Board. The ruling, the Board rules makes us a party, we call witnesses, we issue subpoenas for witnesses, we cross-examine, we affect the record, we go to the Board itself, how anybody can say we're not a full party before the Board? The one thing we may not have is the right to block a settlement, we don't know about that yet. The Court of Appeals is split and this Board and this Court has enacted. But they suggest that we're not a party when we have the rights to do all the things the parties do before the Board.
William J. Brennan, Jr.: Mr. Rauh, I think you know about that yet. You know about that yet, so far as we -- a settlement in the Board or the Board case within the Board.
Joseph L. Rauh, Jr.: No, it's split. There's this division of a party --
William J. Brennan, Jr.: Within the Board?
Joseph L. Rauh, Jr.: No, not at the Board, they think --
William J. Brennan, Jr.: I say at the board level, do you know that you're -- that you can't do anything about bargains.
Joseph L. Rauh, Jr.: That's right, but the Marine Engineers' case in the Third Circuit appears to indicate it's not valid now, but I'm not going to --
William J. Brennan, Jr.: Even at the board level?
Joseph L. Rauh, Jr.: Yes, Your Honor.
William J. Brennan, Jr.: I see.
Joseph L. Rauh, Jr.: All these settlement cases are at the board level. There's no settlement case involved that's gone to the Court of Appeals. So, but to say we're not --
William J. Brennan, Jr.: So you suppose I could anticipate what your position would be if we said you had the right to intervene?
Joseph L. Rauh, Jr.: Well, I'm not certain. I would probably get to argue for this but I want to say this, that going to take the Amalgamated case where the Solicitor General had suggested that it's been criticized by the people. -- I am not challenging the Amalgamated case. I'm accepting the content part of it. And as a matter of fact, the language of the case, which is more damaging to us than the result, that case was in ‘40. In 1947, Congress really changed the basic structure when it passed Taft-Hartley. It changed it from the Board's drive for unions to a management relations operation. So there's a serious question whether the language of Chief Justice -- the result is settled as far as I'm -- there's a serious question whether all the language would be used today in view of the Taft-Hartley labor management relations a year -- seven years later. But the one point I want to get over is before the Board, we're no second class citizen. We are a first class citizen in every area including this one, in calling witness and cross-examining and appealing to the Board, we are a first-class citizen as a full party.
Potter Stewart: I know -- of course there's no question as I -- as I understand it. You don't pretend to question the -- proposition that the charging. If the General Counsel does not issue a complaint, that's the end of this.
Joseph L. Rauh, Jr.: Certainly.
Potter Stewart: There are no appeal at all.
Joseph L. Rauh, Jr.: Certainly.
Potter Stewart: -- the charging party -- that's the end of the line.
Joseph L. Rauh, Jr.: Absolutely, absolutely.
Potter Stewart: Now, how much -- and I'm asking this for information, Mr. Rauh, I just need to know, how much actually control of the proceedings before the Board, does the General Counsel have or is designated? And how much does the charging party have if -- after the complaint has been issued.
Joseph L. Rauh, Jr.: Well, we call our own witnesses, we cross-examine their witnesses.
Potter Stewart: Thiers -- who's theirs? You mean the other charging party (Voice Overlap) --
Joseph L. Rauh, Jr.: Yes, we cross-examine both the Board witnesses and the respondent's witnesses. We're in this up to the hill, not you say that we'd let the General Counsel to put on his witnesses first, I suppose that's perfectly true that that would happen ordinarily, but we certainly have full status there -- or they're not -- we're carrying as much as of the ball, we can now, it's true, very often even small unions don't go into those cases and that the funds have -- it's right. Their work is done at the expense of the Government --
Potter Stewart: And it's done (Voice Overlap) it's been my impression and as I have said this is informational, this isn't --
Joseph L. Rauh, Jr.: We have a full right to get subpoenas on --
Potter Stewart: But my impressions that the General Counsel ran a show in there, insofar as the proceedings --
Joseph L. Rauh, Jr.: I don't see that I would use the word 'ran the show'. I think he may carry the major burden because the Union's -- if we made the charges nice, they have at government expense, they have the witnesses. But if then, when we call our own witnesses and we cross-examine, and we go to the Board and we use different arguments, and that point about what could they have in addition to what the Board has? We have arguments in addition. I want to tell you about a case that had just came down in the Seventh Circuit, in Allis-Chalmers which is a companion case to Scofield. There we had a question of whether it was proper to find workers' members for going through picket lines, to find this case through going through the picket lines, a very tough question. We made a totally different argument from the Board in front of the Court of Appeals where we had been allowed to intervene by the consent of all parties. And the court took our argument. In other words, why is it strange if we should have different arguments than the Board? Why is it strange when the Board wants us as a party because we know something about labor law, they should suddenly say, “When you get in front of the Court of Appeals we suddenly have got nothing to offer.” We have something to offer and as far -- but what I want to make clear is on the certiorari point, Mr. Justice White. I did not indicate that we had no rights in that respect. Thus, a very --
Byron R. White: I didn't -- I hope I didn't indicate what you indicated there.
Joseph L. Rauh, Jr.: No, but I want to make clear that that is the difference.
Byron R. White: That's my indication.
Joseph L. Rauh, Jr.: Yes, Your Honor, there is a difference and I want to come to the difference. We obviously don't have a contempt right. That's a public interest right. It's quite likely we don't have a settlement, to block a settlement right. But to get the legal problem settled, to get it before this Court, I would say we would have that right but I would say that most cases, this Court's going to deny a cert where a union seeks to bring an issue here, and the Board doesn't want it. Now there are some cases where they grant a cert.Eagle-Picher is a case where you granted cert where we Union asked for it. There's also Steel Worker's case in 376 U.S. where the Board didn't seek review, Steelworkers did, it was granted and reversed and so that there are cases where you would. But ordinarily I would assume because I really think, I believe more in the public interest doctrine, than apparently Jaffe and Davis do in the things to which Thurgood Marshall referred. It seems to me he was quite -- I accept that. But it does seem to me, we would have a right to come here but not we would assume that the court would want the Government's views as the major matter. Now Mr. --
Abe Fortas: Mr. Rauh, excuse me, did I correctly understand you to say, just now that where the Labor Board and the other party, let me say, agree on a settlement compromise that the Court of Appeals has the power to approve that settlement despite the opposition in your case, of your Union.
Joseph L. Rauh, Jr.: Oh, I have no question if they have the power to approve it, despite our opposition.
William J. Brennan, Jr.: If there's a settlement, what involves the Court of Appeals in the approval of the settlement?
Joseph L. Rauh, Jr.: Well they have always taken --
William J. Brennan, Jr.: I understand --
Joseph L. Rauh, Jr.: -- all settlements have gone to the Court of Appeals. Now the Solicitor General indicated that the judge, they generally approve them. But they've always -- they've been taken there. They rather indicate it's rather routine when he said on the bench but they always do --
William J. Brennan, Jr.: You mean the proceeding is not --
Joseph L. Rauh, Jr.: Well, the proceeding --
William J. Brennan, Jr.: -- dismissed without prior approval of the Court of Appeals?
Joseph L. Rauh, Jr.: Well, I don't know if the procedure is here but it may be that if we try to dismiss this case, we'd have to ask the Court's permission, and I think it's the same way.
Byron R. White: Well yes, but do you submit the terms of the settlement?
Joseph L. Rauh, Jr.: Oh, yes.
Byron R. White: And the terms of the settlement that are approved by the Court of Appeals?
Potter Stewart: Consent decree?
Joseph L. Rauh, Jr.: Consent decree (Voice Overlap) --
Potter Stewart: That's what entered by the --
Joseph L. Rauh, Jr.: Yes, I think that's correct. It's a consent decree entered by the court. May I just Mr. Justice Black, may I just --
William J. Brennan, Jr.: Absolutely.
Joseph L. Rauh, Jr.: -- call your attention to number 18 blue, it's at page 40 of our brief, Footnote 32 deals with Section 10 (l) which was put in to the law in 47 which I believe is a very clear analogy in the statute to where private intervention is required even though --
William J. Brennan, Jr.: Mr. Rauh I must say, if you suggest that that's what happens here, I've never known that to happen here, when the parties settle and they ask us to dismiss under the Rule 60, I've never looked at the terms of settlement, to decide whether the --
Joseph L. Rauh, Jr.: No, I think you had a right to it, Your Honor.
Byron R. White: You don't even submit them.
Joseph L. Rauh, Jr.: Yes.
William J. Brennan, Jr.: But that happens in the Court of Appeals?
Joseph L. Rauh, Jr.: Yes, Your Honor. We are -- all settlements are submitted to the courts.
William J. Brennan, Jr.: Was there -- is there any reason for that?
Joseph L. Rauh, Jr.: Yes sir.
William J. Brennan, Jr.: -- is there any rule or statute or anything else to the problem?
Potter Stewart: The right to go to the Court of Appeals, and here --
Joseph L. Rauh, Jr.: Well, once you're in the Court of Appeals, as far as I know when you dismiss any case, the Court has a right, it's a consent. I think the closest words that were -- the words used by Mr. Justice Stewart. It's a consent decree, but the courts --
William J. Brennan, Jr.: But this -- this suggest that there has to be approval of the terms of the settlement
Joseph L. Rauh, Jr.: Well I --
William J. Brennan, Jr.: That's new to me.
Joseph L. Rauh, Jr.: I think that may be the theoretical.
Byron R. White: But do you actually submit the terms to the court --
Joseph L. Rauh, Jr.: Yes
Byron R. White: -- as to say it's been settled?
Joseph L. Rauh, Jr.: Yes.
Speaker: No?
Joseph L. Rauh, Jr.: You submit the terms to the court orderly.
Abe Fortas: Well, Mr. Rauh, is that --
Joseph L. Rauh, Jr.: It seems to be (Voice Overlap) --
Abe Fortas: -- is that viewed to --
Joseph L. Rauh, Jr.: -- (Voice Overlap) to the former Circuit Court judges here, and bring back (Voice Overlap) --
Potter Stewart: (Voice Overlap)
Joseph L. Rauh, Jr.: -- on what's going on? Oh, I'm sorry there is a complete agreement between the forum to say --
Abe Fortas: Mr. Rauh, is that due to the broad powers of the Court of Appeals, that is to say that on a Labor Board case, the Court of Appeals not only has a power to say yes or no, but it has the power to modify or to set aside Bower and Pride.
Joseph L. Rauh, Jr.: Yes, Your Honor.
Abe Fortas: And perhaps it's because in that pervasive jurisdiction on the Court of Appeals that these matters are presented in factual detail.
Joseph L. Rauh, Jr.: Quite likely, Your Honor.
Potter Stewart: And to like -- I should suppose as to provide for future enforcement of the consent decree if any, if either one wants to (Voice Overlap) the court's sanction behind it
Joseph L. Rauh, Jr.: In conclusion, I like just to take up the Solicitor General on his definition of the difference between the two cases. What we're really here before us, I say they're the same, he says they're different. In an answer to a question, he said the difference is that the respondent loses something, so he's got a right to be in the Court of Appeals, but the charging party is different. Now, I challenge that and I ask you to look once more in Fafnir. If we have lost Fafnir and we have gone to the Court of Appeals, the respondent would have lost and had a right to intervene the Solicitor General, the Government says, would have had the right to intervene because they have lost the fact that time study people would come in to the plant. Isn't here anachronism to say they couldn't go -- the company can go in there because time study people would come into their plant, but we can't intervene because we want time study people in their plant? In other words, I'm saying that the difference between Scofield and Fafnir, illustrated by Fafnir if it were had gone the other way, makes clear that the cases are identical.