MAINTENANCE EMPLOYES v. U.S.

Print this transcript Transcript: 

Argument of William G. Mahoney

Chief Justice Earl Warren: Number 681, Brotherhood of Maintenance of Way Employees et al., Appellants, versus United States, et al.

Mr. Mahoney.

Mr. William G. Mahoney: Mr. Chief Justice, may it please the Court.

This case comes before Your Honors on an appeal of the Brotherhood of Maintenance of Way Employees and the Railway Labor Executives' Association from a judgment and order of the United States District Court for the Eastern District of Michigan, dismissing a complaint which those two organizations had brought in that court, for the following reasons which is expressed at page 12 of our brief on the merits.

The railroad labor force is now confronted with the threat through the use of Section 5 (2) (f) for the utilization of -- for merger to that statute which Congress thought would materialize 20 years ago, when it enacted that statute.

The time has now come therefore, for the employees to be afforded the protection intended by Congress to take effect when this threat arose.

The complaint request to the Court to set aside, at least in part, an order of the Interstate Commerce Commission issued under the provisions of Section 5 (2), approving the Erie-Lackawanna Railroad merger, because that order does not observe the specific requirement contained in subparagraph (f) of Section 5 (2), which it must contain and, that is that there be terms and conditions imposed which provide that for varying periods of up to four years from the date of the approval of the merger that the transaction will not result in employees of a carrier or carriers by railroad affected by such order, being placed in a worse position with respect to their employment.

The Commission's order does contain certain conditions relative to employees who are affected, but these conditions not only fail to protect an employee from being placed in a -- placed in a worsened employment situation, but require such effects to occur before the conditions become operative.

These conditions are known as the New Orleans conditions and provide a constituted formula of compensatory protection for those who were deprived of employment, displaced, have to move and so forth, as a result of a merger.

But these effects have to occur before these conditions become operative and it is our position that that type of protection does not meet the mandate of the statute.

The issue, the narrow issue before the Court, is whether the phrase, “worse position with respect to employment” really is intended to protect the employment of the man or only certain elements of that employment and not the employment itself, in other words, whether he's to be given money in lieu of employment.

It is our position that this phrase means that in this merger cases, the employees must be given -- provided continuing employment in a comparable job, at a comparable wage and if the wage is less than that which he previously earned, then it must be made up by what is called in the railroad industry, a displacement allowance.

And there is nothing astonishing or new or unprecedented about Congress protecting employment, providing employment protection.

It did so in 1933 in the Emergency Railroad Transportation Act of that year.

It did so in 1943, in the Communications Act of that year.

And it is no answer to say that these measures of 1933 and 1943 were emergency measures, very limited in their application and therefore, cannot be compared with Section 5 (2).

Because in 1933, or excuse me, in 1943, the communications industry was in no worse financial situation than the railroad industry was in 1933, when the Emergency Railroad Transportation Act was passed.

The 1943 Act was passed to save the communications -- industry by permitting merger.

And there were only two -- virtually only two companies to which that statute applied.

It was the -- Postal Telegraph and Western Union.

They comprised just about the communications industry.

But now, we have a situation which is applicable to practically the entire industry also.

Almost all the railroads of the United States are attempting to merge and this is precisely what Congress had in mind, as we hope to show in passing this statute and further, this is not an unlimited protection which these men are given.

It is limited in time to four years, as Congress isn't required to go beyond.

Now, excuse me, the Commission is not required to go beyond four years in applying this protection.

And it cannot be said, we submit that this protection would harm the Erie-Lackawanna Railroad.

For they say in their evidence that only 862 men would be deprived of employment as a result of this merger and these 862 men would be deprived of employment only because they would refuse to transfer to available jobs.

And under this type of protection, it is our position that they would have to transfer to those available jobs or receive no protection.

The appellants do not contend and have never contended that the protection required by the second sentence of Section 5 (2) (f) is an absolute, strict, inflexible job freeze.

The Government described the appellants' position at page 19 of its brief in this language, “The essence of appellants' position is that no employee of a consolidated railroad system should be adversely affected in any respects for a period of four years or less time if his previous employment is less from the effective date of the Commission's order.”

And at page 17 of the brief, the Government states, “Appellants claim that the general language in which the second section of the sentence is couched has a single, specific, inflexible meaning that an absolute job freeze must be imposed in every case in which the Commission approves a merger.”

Now, the appellants have never contended that the term, “no worse position with respect to employment” meant such an absolute, strict, job freeze.

We have never can explain than employees could not be adversely affected in any respect under this type of protection.

For example, a man whose job is transferred is adversely affected if he has to pick up his family and move.

That's adverse effect.

That's real adverse effect, but he might not be placed in a worse position with respect to his employment as a result of that.

It's conceivable, in some instances, it might be better employment.

He might be promoted.

Also a man must take -- who must take another job, a different job, may be adversely affected, but that doesn't mean necessarily, he's placed in a worse position with respect to his employment.

Justice John M. Harlan: I don't understand your position on that.

I wish you'd explain it.

I had assumed that the difference between you and the Government was that, although under the plan, a laid off employee got all of his compensation, all of his salary, all of his moving expenses, all of his rights in every other respect that your view was that it still did not satisfy the terms of the Act and that the Government's characterization which you disclaim now is fair characterization of your position that the man had to continue in the position in which he was employed.

Mr. William G. Mahoney: It is our position, Your Honor, first of all that these conditions do not protect the employee in all aspects of his employment relationship except employment.

That is the conditions that were imposed by the Commission do not protect a man in every aspect of his employment.

To the contrary, it causes great harm and it doesn't even provide complete financial protection.

He doesn't get paid for all the fringe benefits for instance that he loses.

He doesn't get paid, if he is required to move more than once as a result of this merger.

The -- he starts a chain of bumping to seniority, exercising seniority rights which affects many more than just the man who was affected on -- in the particular job which is abolished or transferred.

Now, all of these things happen and as a result of that adverse affect, he is placed in a worse position with respect to his employment and we feel that the minimum that is required by that phrase, that term is that he be continued in employment in a comparable job at a comparable way.

And that is what is not done under the present law or under the -- excuse me, under the present conditions that the Commission imposed.

Now that is the basic requirement of Section 5 (2) (f) in the second sentence and that is the only position which we have taken and this position, we think, this type of protection allows great flexibility to the Commission in prescribing terms and conditions while retaining at the same time, the employment protection concept which is unchanged from the original language of the Harrington amendment.

For example, in the original Harrington amendment, they prohibited displacement of employees.

An employee couldn't be given another job.

They froze him in the job and that isn't done we believe, here.

As I say this is the same position we took before the Commission and before the District Court at page 181 of the transcript of the record.

Judge O'Sullivan asked me during that argument and said, “Those employees shall have what you call, their job's frozen for not less than a period of time that they were employed prior to the effective date, is that your position?”

I answered, “Yes, Your Honor,” perhaps it is semantics, but I really don't believe it can be called job freeze.

They do not freeze the job.

They freeze the employment situation.

In other words, the -- the employee could not be dismissed.

The jobs can be changed.

The employees may have to move.

They may get other jobs, but they have to be comparable jobs at comparable wages.

The jobs are not necessarily frozen.

That is our position.

Justice Felix Frankfurter: You do -- you do -- your position is that they must be kept in employment, is that right?

Mr. William G. Mahoney: Precisely, Your Honor.

Yes, that's right.

Justice Felix Frankfurter: Then there's maneuvering ground as to what employment is equivalent.

Mr. William G. Mahoney: Yes, Your Honor.

Justice Felix Frankfurter: But they must be kept in employment.

Mr. William G. Mahoney: Yes.

Justice Felix Frankfurter: And not be taken cared of physically, financially.

Mr. William G. Mahoney: Well, of course, they -- they have to receive their --

Justice Felix Frankfurter: But I --

Mr. William G. Mahoney: -- the same compensation, but in not -- in lieu of employment, that's correct.

Justice Felix Frankfurter: That's what I meant --

Mr. William G. Mahoney: That's correct.

Chief Justice Earl Warren: Well, what happens -- what happens if there hadn't been a merger to these employees, if the -- if the railroad laid them off?

Mr. William G. Mahoney: Well --

Chief Justice Earl Warren: They get more than the mere salary?

Mr. William G. Mahoney: Mr. Chief Justice, if there was no merger and if the Commission had nothing to do with it, there was no statute under which the Commission was acting.

Chief Justice Earl Warren: Yes.

Mr. William G. Mahoney: There was a decline in business or something, of that nature.

Chief Justice Earl Warren: And they would say --

Mr. William G. Mahoney: Then they would -- then they would receive nothing.

Chief Justice Earl Warren: -- pay for any valid -- for any valid reason, it might not have been decline in -- in business.

It might be some efficiency operation or something of -- of that kind.

What would happen if the man went off the payroll?

Mr. William G. Mahoney: For example, when the -- when the railroads dieselized, there was a great deal of -- a great reduction in force.

Chief Justice Earl Warren: Yes.

Mr. William G. Mahoney: As a matter of fact that the railroad industry is -- is at the lowest point now in employment, number of employment force --

Chief Justice Earl Warren: Yes.

Mr. William G. Mahoney: And since before 1900 and that was just stated in Congress --

Chief Justice Earl Warren: Yes.

Mr. William G. Mahoney: -- but if that happens and technical -- technological advances and so forth takes place, there is no protection under the law. Congress provided --

Chief Justice Earl Warren: Well --

Mr. William G. Mahoney: -- the protection when the railroads took advantage of something that Congress provided them to do --

Chief Justice Earl Warren: Yes.

Mr. William G. Mahoney: -- through the statute.

Chief Justice Earl Warren: Yes, but if he's under the old system, if he -- if he was entitled to no relief and under this system he's entitled to his pay for four years, he isn't getting the worse of it, is he?

Mr. William G. Mahoney: Oh, well, where the -- where the Congress acts, that is true.

And either under the old system as you say, Your Honor, even in the -- the railroads that were parties to the Washington Agreement, which was a voluntary agreement between the railroads and the unions --

Chief Justice Earl Warren: Yes.

Mr. William G. Mahoney: -- they provided for compensatory benefits.

Now, I'm not saying that what these men have is a bad thing, certainly not.

That they're -- they're able to get some money for their jobs, but --

Chief Justice Earl Warren: Well, just where are you going to draw the line?

You say you -- you don't claim it's not absolute freeze, but you do claim it's something else. Where is -- where is the line beyond which they can't go?

Mr. William G. Mahoney: They can't go beyond this line, as I see it.

The man must be continued in employment in a comparable job.

Chief Justice Earl Warren: Whether there's a job or not?

Mr. William G. Mahoney: Well, according to their testimony, there would be a job.

They said they're only 862 people who are going to be deprived of employment.

Justice Felix Frankfurter: But from your -- but from your point of view, that's immaterial.

Mr. William G. Mahoney: Well, it is if --

Justice Felix Frankfurter: What you're saying --

Mr. William G. Mahoney: -- it's the sense that --

Justice Felix Frankfurter: -- what you're saying is there must be an employment freeze or not this particular job freeze for instance and from your point of view, it's compulsory as it were by way of giving the privilege of allowing the merger.

You're saying that the right to merge is something that has to be approved of by the ICC and the condition to that -- for that -- for that approval --

Mr. William G. Mahoney: Yes, Your Honor.

Justice Felix Frankfurter: -- which may be withheld -- which might've been withheld or forbidden by the Congress of the United States as a reward or the compensation or a sweetening for what they're asking and getting.

There is an employment freeze whether there are jobs and -- according to efficient management of railroad or not.

Is that right?

Mr. William G. Mahoney: Yes, Your Honor.

The -- as I look at this term --

Chief Justice Earl Warren: Well that leaves me to the conclusion that you do say there is an absolute freeze.

Mr. William G. Mahoney: Well, Your Honor, the way --

Chief Justice Earl Warren: It is or it isn't, it seems to me.

That's why I asked you --

Mr. William G. Mahoney: Well, if the --

Chief Justice Earl Warren: -- to try to draw the line for me as to where -- where it would come.

Mr. William G. Mahoney: Well, as -- as I look at this characterization of absolute inflexible job freeze, it means to me that the employee is frozen in his job and that the job is frozen at the place where it is now.

Now that -- and that's what --

Chief Justice Earl Warren: And under no circumstances --

Mr. William G. Mahoney: That's what that term connotes.

Pardon me?

Chief Justice Earl Warren: Under no circumstances, can the railroad change it for four years?

Mr. William G. Mahoney: Now that -- that's what the job freeze as -- as the appellees characterize it means to me.

That is not what I mean.

Chief Justice Earl Warren: Well, what do you mean?

Mr. William G. Mahoney: I mean that -- well, I say that they can -- the man has to be retained in active employment. They can give him a different job.

They can transfer him to a different place.

There -- a number of things they can do in that -- just in that respect, however as long as he is retained in employment with the railroad and their jobs are reduced or eliminated as natural attrition takes place.

Justice Felix Frankfurter: Can we agree on this as your position, it's a job freeze, but not the job freeze?

Mr. William G. Mahoney: No, I -- I -- no --

Justice Felix Frankfurter: Well, that's what you've said, except not doing -- as brief words.

Mr. William G. Mahoney: Well, in the sense that the --

Justice Felix Frankfurter: And you must have a job, therefore it --

Mr. William G. Mahoney: In the sense that the employee is retained in employment, in some employment at some place.

Justice Felix Frankfurter: A job, but not the job.

Mr. William G. Mahoney: It's his -- it's an employee freeze, I would rather call it --

Justice William J. Brennan: But suppose, in fact, there isn't?

Mr. William G. Mahoney: -- if we get to freeze something.

Justice William J. Brennan: Just suppose in fact, there is no job given, is the railroad going to have to create one?

Mr. William G. Mahoney: I think it's -- it's clear from the legislative history that the railroad can merge only so fast as the attrition lets it merge, that is as jobs are reduced through attrition.

That is specifically stated in the legislative history as the purpose of this thing.

Justice Felix Frankfurter: And the result of your position, it may be incumbent upon the ICC not to certify, not to allow the merger because thereby, the people according to your view of the reading of the statute of Congress, according to your view, people must be retained redundantly, redundant employment.

If they -- if they do what you say under certain circumstances and therefore, the Commission reads -- reaches the economic conclusion -- transportation conclusion, we won't allow them that you know for those reasons, may be highly desirable in the public interest.

Isn't that right?

Mr. William G. Mahoney: That -- that is possible.

I'm --

Justice Felix Frankfurter: Well, isn't that what it gets to?

Mr. William G. Mahoney: I say it is possible, but the --

Justice Felix Frankfurter: Otherwise, it gets to the Chief Justice's and Justice Brennan's position, namely, if that do it, have to -- have a lot of featherbedding employments.

Mr. William G. Mahoney: Well, the only practical answer I have of that, Your Honor, is this.

Recently, two years ago, the representatives of the employees of the Norfolk & Western and Virginia Railroads and the management for those two railroads, entered into an agreement prior to Commission approval of the merger which was intended, which provided the precise type of protection which we seek here and in addition, had no time limit upon it.

Every man on both railroads must be retained in the employment of the railroads and the job would be reduced as attrition -- actual attrition permitted as reduction and that is now been in process for -- for two years.

Justice Felix Frankfurter: Are you saying that in --

Mr. William G. Mahoney: It is a voluntary agreement.

Justice Felix Frankfurter: -- in every case of merger, as a practical thing, it works out that they -- that they would, if they wanted to retain the men in -- in employment, not on -- but not in the employment.

Are you saying that?

That it's a practical thing?

Mr. William G. Mahoney: That it would work out, you say, Your Honor?

Is that what you --

Justice Felix Frankfurter: Are you saying that if they really wanted to keep people in effective employment, they could do so and yet have a merger?

Mr. William G. Mahoney: Yes, Your Honor.

Justice Felix Frankfurter: Is that what you're saying?

Mr. William G. Mahoney: Yes, Your Honor.

Justice Felix Frankfurter: But that's -- is that a legal question?

Mr. William G. Mahoney: No.

Justice Felix Frankfurter: Can we --

Mr. William G. Mahoney: No, I don't believe that particular case --

Justice Felix Frankfurter: -- can we operate on that -- on that assumption of the statute?

Mr. William G. Mahoney: No, but I think that the statute itself is clear as to what was intended.

Justice Felix Frankfurter: Well that maybe, that's a different question.

If the statute is clear, you don't need any other argument.

Mr. William G. Mahoney: Precisely.

Justice Felix Frankfurter: But if the statute is -- isn't clear, then -- then to say that's a -- we don't -- we don't have to worry about freezing in employment because you said, practically, it doesn't operate that way in -- in the affairs of life, which certainly isn't true.

Chief Justice Earl Warren: What I'd like -- I just like to pursue it, just one question farther an, that is this.

Do you claim that the freeze goes to such an extent that if the Government or if the railroad rather, is of the opinion that it has no job for -- for one of these employees, that it can lay him off and pay him for the four years that he's laid off?

Do you say that it's denied the right to do that?

Mr. William G. Mahoney: No, sir.

But I --

Chief Justice Earl Warren: Well, that's what I can't understand.

Mr. William G. Mahoney: There is not the right to do that.

Chief Justice Earl Warren: Where -- where -- that's where I want to do.

Mr. William G. Mahoney: Because there maybe --

Chief Justice Earl Warren: Where it might go.

Mr. William G. Mahoney: -- there maybe at times, situations where there would be that problem presented.

Chief Justice Earl Warren: Yes.

Mr. William G. Mahoney: And I -- I feel that that is the purpose of the third sentence to Section 5 (2) (f), working on agreements between carriers and their employees where this would work in an equity or hardship, or be unreasonable that that type of thing can be worked out.

But if there is no agreement, it is our position that the merger can only take place and Congress intended it this way that the merger can only take place, insofar as job reductions are concerned, as fast as attrition permits it and I say Congress was very clear about it.

Now, there is a great --

Chief Justice Earl Warren: You said that a moment ago.

Mr. William G. Mahoney: Excuse me.

Chief Justice Earl Warren: Could you -- would you mind playing to -- to the -- the record where we could find that legislative history where they specifically said that attrition was the only basis on which --

Mr. William G. Mahoney: Yes, Your Honor.

If you look at the appellants' brief on the merits, at page 55 of that brief, in the bottom of the page, Mr. Harrington, who is the author of this provision of law and the author of it -- of the original provision said this was regard to the term, “worse position with respect to employment.”

That this provision was designed to accomplish the purposes intended to be accomplished by the Harrington amendment, which was the original Harrington amendment and the original Harrington amendment said, “There shall be no unemployment.

There shall be no displacement of employees.

There shall be no impairment of existing employment rights.”

That was what the original language said.

When the language was changed, it said, “No worse position with respect to employment.”

Mr. Harrington here said this means the same thing.

The labor provision says “With this provision, the younger men will be spared that fate,” that is eliminated from railroad service and job eliminations will come gradually from the other end of the seniority list as deaths, resignations and retirements occur.

Mr. Warren -- Representative Warren who spoke in support of this statute, his comment is on page --

Chief Justice Earl Warren: That was Mr. Harrington talking to his own amendment or to someone else's amendment there?

Mr. William G. Mahoney: He was there talking to the Wadsworth -- with respect to the Wadsworth motion to recommit, which so far as we know from -- from the legislative history may have, what must've been written by Mr. Harrington and those are his adherence, because he spoke in favor of it.

He said it was the same as the original act.

Nobody challenged that it wasn't the same, that as those who wanted employment protection.

Representative Warren as I say says that this -- this means precisely what the former language meant because 275 members of the House had requested the conferees during the first conference when they heard that they might strike that amendment.

They said they petitioned him to keep it in and the -- and they not only struck that amendment but they struck all -- all provisions about consolidation.

Mr. Warren said, if you -- those of you who signed that petition meant what you said, then the only way to give expression to it is to vote to recommit.

If the House wishes to write its bill and wishes its will to be upheld rather than accept a new measure written by 12 conferees where its will was ignored, then you will vote to recommit this Conference Report with instructions to place back in it what you, by overwhelming majorities, had previously voted for and at that point, the congressional record notes that these words were greeted with applause.

Mr. Thomas got up and said he was for continuous employment and for that reason, he was voting for the motion to recommit, because it had the Harrington amendment in it.

Now, these are the words.

These are the only words which will relate directly to the phrase, “worse position with respect to employment.”

Now, if all parties agree that if Harrington's amendment had not been modified in the Wadsworth motion to recommit and we now had the law saying no unemployment, no displacement and no deprivation or impairment of employment rights, there's no question of what that would mean.

Then, the men would have to stay and they could not even be changed from one job to another.

They couldn't be displaced.

But, they changed those words and he said “worse position with respect to employment.”

So what does that mean?

It means what I would think Mr. Harrison or excuse me, Mr. Harrington and the other members of the House who were the proponents of that type of legislation, intended it to mean and said it meant.

And in this, we follow the admonition of this Court that is not -- that it is not to the proponents of legislation, but to the proponents that we go to determine what legislation means in the legislative history.

Chief Justice Earl Warren: Is there anything in there to indicate why, if it means the same thing, they changed the language?

Mr. William G. Mahoney: No.

There -- there is nothing -- there is nothing in there to explain why they changed the words.

Mr. Harrington tells us they did not change the effects.

Chief Justice Earl Warren: Well --

Mr. William G. Mahoney: He tells us we changed -- he did change the words.

Justice Charles E. Whittaker: That's the matter of invalid judgment, if he'd seen this, isn't it?

Mr. William G. Mahoney: Oh, yes, Your Honor as to what the word means.

Justice Charles E. Whittaker: You say the statute, as it's now drawn is ambiguous?

Mr. William G. Mahoney: No, I don't believe it's ambiguous.

Justice Charles E. Whittaker: (Inaudible) this interpretation is a matter of explaining completely.

Mr. William G. Mahoney: Yes, sir.

Justice Charles E. Whittaker: But, you don't say that the statute as it stands now, 5 (f), means anything different than it would've meant had the Harrington amendment been adopted instead of rejected?

Mr. William G. Mahoney: I -- I think it means it -- it places a more flexible meaning on the employment protection.

The original Harrington amendment, no question about it, said no displacement of employees.

Now, that doesn't say that here in the modified language.

So perhaps, they can be displaced as long as their wages are -- are kept up.

They -- that is, as far as I can see, when the -- because of the two opposing factions in the House, those who wanted employment protection and those who wanted only compensation protection, where you -- where you're faced with those two things and you had to compromise somewhere and the first compromise came, I believe and this isn't completely evident from the legislative history, the first compromise came when the -- they changed the words and you go from a strict job freeze, no displacement, to a more flexible employment protection which gives the Commission some area in which to work, some type of conditions to impose --

Justice Charles E. Whittaker: How's that benefit the construction, Mr. Mahoney, of this 5 (f), since its passage by both parties, including your union, that the words “not in a worse position” shall be obtained and that status shall be obtained by financial adjustments?

Mr. William G. Mahoney: At the -- as Your Honor knows, shortly after the -- shortly after this bill was passed and this law was enacted, there were -- and several of the unions explained to their members what they had accomplished in the last session of Congress.

Each of these unions was the union who had opposed employment protection because they feared it would kill the bill.

They had -- had advanced and proposed -- compensation protection as found in the Washington Agreement, which they were all used to and which they said they wanted to put in a law.

They told their employees, or excuse me, they told their members that we have -- achieved a very considerable victory and they described that victory in the terms of the Washington Agreement, a couple of them did.

Some of them, it's -- it's very vague and really couldn't say it supports that.

One of them called it a dismissal wage protection, actually said that.

Mr. Harrington, in talking to Mr. Lea on the floor of the house said, “You are wrong when you called this dismissal wage protection.”

Dismissals come -- there are no dismissals.

Dismissals -- the jobs are eliminated as men retire and die and resign and so forth, but a man can be wrong about how the law applies to him, obviously.

The -- there were a couple of excerpts from briefs which were written in 1941, I believe, by members of the firm of which now, I am a member, in which they spoke of -- of compensation, getting down to wages as a matter of compensation.

In the case that was cited, I think it was the Fort Worth & the D.C. case of this Court.

There, the adverse effect was going to take place after four years.

No adverse effect was going to take place within the four-year period.

This was very early in the game insofar as employment protection or employee protection was concerned, nobody had evolved a specific type of protection for these people.

The railroad wanted -- said this means employment protection, but it's limited to four years.

And after four years, we have to give them nothing.

That's all we have to give them, nothing after four years.

We're happy to keep them all just exactly where they are for four years and that's all this means.

The RLEA, at that time, had to take a position that these people must be protected and compensation protection certainly applies to them after four years and the few who may be affected during that four years, should also get compensation protection.

That was no time that in -- bring this issue in, bring the New Orleans issue in and all the rest because obviously, that -- in that type of situation it just didn't permit it.

It couldn't achieve anything where you have also so many important issues involved.

Now, the -- I think there was one oral argument that was referred to and that the same problem was there involved on whether the ICC should get involved in -- in seniority problem.

And a member again of the law firm of which I'm a member said, “No, they should.”

But in this particular case, it devolved to a question of wages, because the men who were there being affected were not even employees of the carriers which were involved in the transaction.

That was the Pere Marquette case.

It was a third carrier.

So they should get protection as in -- in both of those cases.

In the first case is (Inaudible) case, the Commission disclaimed any or rather, they denied the -- the application and therefore, made no construction themselves.

Now, in 1950, when the New Orleans case came up, that again, involved what happens after four years, not what happens during the four-year period and there, it had been 10 years then, since Section 5 (2) (f) had been passed and it was quite obvious from the way the Commission reacted as to the type of protection and the -- the time limit on the protection and the way the District Court reacted as to the time limit on the protection, that it would've been legal suicide to raise this issue at that time, as to what -- what type of protection was limited and was required by the -- by the first in the -- during the first four years.

There was no reason for it.

There wasn't an issue and it was foolish to raise it.

The -- now, those are the only positions, if you can call them that that have been taken on the statute and the Commission that is meted by everyone that the Commission has never decided this issue.

It has never been raised.

There is no dispute on that point.

The issue is -- has never been raised and it has never been decided and in that respect, that it isn't -- it is in the same category as the statements of -- rather, the same category of the rule which was announced recently by this Court in the Baltimore and Ohio Railway Company against Jackson, where for 60 years, the Interstate Commerce Commission had considered Maintenance of Way vehicles not subject to the Safety of Plants Act.

And they said that this was a consistent administrative interpretation which was -- persuasive evidence that Congress never intended them to be covered by that act.

This Court, however, held that while it is true that long administrative practice is entitled to wait, there has been no express administrative determination of the problem and we believe that petitioner over speaks in elevating negative action to positive administrative decision.

In our view, the failure of the Commission to act is not a binding administrative interpretation that Congress did not intend these guards to come within the purview of these Acts.

Justice Felix Frankfurter: Mr. Mahoney.

Mr. William G. Mahoney: Yes, Your Honor?

Justice Felix Frankfurter: Dealing with -- excuse me, dealing with the Chief Justice's problem, you referred to the third clause of the 5 (2) (f).

Mr. William G. Mahoney: Yes, Your Honor.

Justice Felix Frankfurter: Now, the third sentence -- I beg your pardon, the third sentence.

Would you agree that the third sentence in no wise legally -- legally qualifies limits or modifies the statute?

Mr. William G. Mahoney: I do.

I do.

Justice Felix Frankfurter: So that --

Mr. William G. Mahoney: If --

Justice Felix Frankfurter: That doesn't help you likewise, with our problem.

Mr. William G. Mahoney: If there is no agreement, then -- then your problem is there.

That is true.

Justice Felix Frankfurter: (Inaudible) to the discussion of this problem.

Mr. William G. Mahoney: But Your Honor as I say, when you look at the plain language, the plain language says “employment.”

Employment in that -- in this statute is not used in any -- as any term of art.

It just says employment.

There is nothing in the -- in 5 (2) (f), in Section 5 or in the entire Interstate Commerce Act, which would indicate that this particular phrase is used in any other sense than its normal, natural, accepted meaning of “state of being employed,” as Webster defines it.

In addition, the term “worse position with respect to compensation” was clearly before the Congress.

It had been used in the Transportation Act of 1933.

It had been used in the Washington Agreement.

And had Congress just meant compensation and fringe benefits as the Government and the other appellees -- the appellees contend then it would have been an easy matter just to say “worse position with respect to compensation.”

They would've achieved their purpose.

Now, in answer to that in the court below, the Government claimed that you couldn't use “worse position with respect to compensation”, because that entire clause was a -- was a term of art and it implied, as a term of art, continued employment.

And we say that if “worse position with respect to compensation” implies continued employment, then most certainly, “worse position with respect to employment” requires continued employment.

Now, another point in the briefs, the counsel for the appellees have stated that the words, “affected” in Section 5 (2) are very significant.

That 5 (2) (f) was passed to protect affected employees and how in the world can you protect an affected employee if he's not affected in the first place which he wouldn't be, they say, if there was a strict job freeze.

We say he is affected.

He's affected by transfers and by giving different jobs, but aside from that, it's significant in the way that Congress used that term, “affected” in relation to employees.

In the first sentence, which is clearly applicable only to compensation protection, protection which comes after the effect, they say that the Commission shall provide this protection to railroad employees affected, but in the second sentence of Section 5 (2) (f), it's entirely different.

They say that they shall protect employees of carriers affected and keep them in no worse position with respect to employment.

And we believe that this -- the significant difference in the use of these words in the two sentences is important and significant.

Thirdly, if we look to the Emergency Transportation Act, we find that Congress said, “No employee shall be deprived of employment under this Act.

No employee shall be placed in a worse position with respect to compensation for employment, as a result of this Act.”

So, when they wanted perhaps, to change Mr. Harrington's language and get rid of the displacement problem and permit transfers and so forth, they went back as we must assume they did, to the Emergency Transportation Act and took the two phrases and combined the two phrases into one, thereby accomplishing all that was accomplished by that Act.

Now, these appellees are confronted with the language of Mr. Harrington, of Mr. Warren and of Mr. Thomas.

And in order to show that “worse position with respect to employment” does not contain the concept of continued employment, they must explain away their language.

Now, the Eerie-Lackawanna explains it away in this manner.

They are driven of the astounding contention that you can't take what these men say at their face value because it was an election year and they were probably just talking for their constituents.

The Government says, “You can't take it at its face value either, because although Harrington and they quote Harrington, they quote the statement that I read where Harrington said, “Job eliminations will come from natural attrition as deaths and retirements, etcetera, occur,” but you can't believe Harrington, because although Harrington told you what the effect of this language was, he didn't tell you why he changed it.

We submit that he didn't have to tell us why he changed it.

It's obvious that it was changed and it's obvious that he said precisely that.

Now, they don't comment, incidentally on the words of Warren or Thomas.

I don't believe they can.

I would like to discuss for a moment, if I may, the -- the two cases upon which relied this -- rely the two decisions of this Court.

Before I get ahead of myself, I'd like to say this, the three times Congress had voted on employment protection, the House Act, they voted on the original Harrington amendment.

They had sent this petition, 275 of them, to the conferees and they had voted on the Wadsworth motion to recommit, which they have been told and which they thought meant employment protection.

Now, when Mr. Lea came out of that Second Conference Committee, Mr. Lea, one of the most outspoken opponents of this legislation from the beginning in either its original or modified form, when he came out of that House or that Committee, he knew the temper of this House of Representatives and he knew and that if they had removed employment protection, they might well kill the bill.

Confronted with this House of Representatives that had voted three times for employment protection, he did not say that that protection had been removed and if he thought it had been removed, he was under a compelling and pressing moral obligation to say so and he didn't say so.

Now, to the cases -- the opinions upon which we rely, first, there is the opinion in this Court's decision in Railway Labor Executives' Association against United States, 339 U.S. 142 and second, this Court's opinion in the Order of Railroad Telegraphers against the Chicago & Northwestern Railroad Company, 362 U.S. 330.

In the first case, the RLEA case, the Court was concerned with the type of protection to be afforded after the four-year period referred to in the second sentence, had expired.

The Court reviewed the legislative history of both sentences, said that the Harrington amendment as originally worded -- pardon me, threatened to prevent all consolidations to which it related and that as reported out of the second conference it contained, a substantial change which limited it to the four years following the effective date -- pardon me, of the Commission's order of approval.

The only reference in Court's decision to the prohibitory effect of the Harrington amendment was where it said that the Harrington amendment's otherwise prohibitory effect was limited time wise.

The -- that were the only reference to prohibitory effect was to the statement that it threatened to prevent all consolidations.

No other limitation was considered by this Court in that decision, as we view it, as having been placed upon the Harrington amendment.

And in the ORT case, this Court supported its decision that job stabilization was a bargainable issue under the Railway Labor Act and therefore, not subject to the injunctive procedures under Norris-LaGuardia.

By referring to the second sentence of Section 5 (2) (f) of the Interstate Commerce Act and by reading that sentence in this way, Section 5 (2) (f) requires the Commission to protect employees by including terms and conditions which provide that for a term of years after a consolidation, employees shall not be placed in a worse position with respect to their employment than they otherwise would have been.

That this statement appears to be a recognition of the employment protection provided by 5 (2) (f).

It is confirmed, we believe, by reference to the dissenting opinion in the ORT case, which stated that nothing in Section 5 (2) (f) authorized the Commission to freeze existing jobs and quoted from the Court's opinion of the RLEA case as follows, “So Harrington proviso, this Court said in Railway Labor Executives' Association against United States that it threatened to prevent all consolidations to which it related, but Congress made it workable by putting a time limit upon its otherwise prohibitory effect.”

The dissent goes on to say, “If Congress did more, it eliminated any power to freeze jobs.”

Now, this dissenting opinion seems to us, clearly to recognize that the language quoted by the Court in the RLEA case interprets the four-year limit as the -- time limit as the only time limit placed upon employment protection in the Harrington amendment.

The -- the plain language of this statute, we believe, is clear.

It requires employment protection.

It speaks only in terms of employment.

The legislative history, we believe, is clear.

Mr. Harrington is the man to whom we must go.

He is the author and to -- also to the proponents of this legislation.

And they were quite clear in what they meant.

Now, if this were unwise legislation, if this meant that there would be some employees for some time carried over and they wouldn't have any work to do perhaps.

It doesn't mean the railroad couldn't split it up and provide work perhaps, but suppose they wouldn't have any work to do, that as we respectfully submit, is for Congress to decide and not for the Court and I'm sure the Court agrees if it were to find that that is what the law says.

But in this case, that won't happen, because as they have said, “862 men would be the only ones deprived of employment and they would only be deprived because they wouldn't transfer” and under this law, they would have to transfer, as --- as we view it, they would have to transfer.

Chief Justice Earl Warren: May I ask did they say they would be -- would be transferred or they might be transferred?

Mr. William G. Mahoney: In the exhibits and in the statements of the railroad before the Commission, they said that only 862 men would be deprived of their jobs.

If Your Honor would care to look at the -- these foldout pages at 104 of the printed transcript --

Chief Justice Earl Warren: 104?

Mr. William G. Mahoney: Sir I believe this is the one.

No, excuse me, Your Honor.

It's at 112.

Chief Justice Earl Warren: 112.

Mr. William G. Mahoney: Has it -- jobs refused 863, employees deprived of employment, 863.

That's at numbers 8 and 9 now that first column.

Now, that 863 is the total over the five-year period.

These are transfers which are refused and employees who would be deprived of employment and that was explained as meaning, employees who refused to take the job.

They would be the only ones deprived of employment and obviously, this meant available jobs and they could go to those, but they were decided they wouldn't go to them.

Justice Charles E. Whittaker: I wonder, as a matter of curiosity, how they would know in advance how many would refuse.

Is that a matter of averages?

Mr. William G. Mahoney: Your Honor, when I look at something like this, I wonder myself and I never know how they reached these conclusions.

And I -- and in a case like this, you can't begin to get into it, because they have work papers piled up six feet high.

But the only thing I can do is accept their figure, I can't challenge it and this is their figure.

The attrition rate as also appears on this exhibit, shows why this might happen.

In five years, they are going to abolish 2000 jobs, they expect.

In that same period, 12,000 would be created by attrition.

Now, this might not mean there would be 600% in each category of employment.

Maybe it's 12,001 and -- and 50% in another, over a period.

But that is the purpose as stated in the legislative history as to why this statute was passed, not to throw people out of employment, but to keep the employment situation where it is and as you -- as Your Honors know, in the railroad industry today, the employment situation is very bad and it is threatened considerably by these mergers.

So we ask Your Honors, on the basis of the legislative history, on the basis of the plain language, on the basis of your decisions in the -- in the RLEA and ORT cases that you reverse the District Court and the Interstate Commerce Commission.

Thank you, Your Honor.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Cox

Mr. Cox: Mr. Chief Justice, may it please the Court.

In our view, there is only one issue in this case, whether the Interstate Commerce Commission is required to condition all railroad mergers and other consolidations and I shall use those words very loosely, upon terms preserving jobs for all the employees employed before the merger or might permit the dismissal of unnecessary employees upon guaranteeing them against all loss or other prejudice to a system of 100% financial compensation.

It may give some perspective I think, if I were to state first, our understanding of the statute as a whole.

It appears at page 2 of the Government's brief.

The first sentence directs the Commission to require a fair and equitable arrangement to protect the interest of railroad employees affected by a merger or consolidation.

These words obviously delegate a very broad discretion, including the power, as this Court held in the Railway Labor Executives' case, to require protection going beyond the statutory four-year minimum.

Then the second sentence, which is the crux of this -- is the crux of this case, I dwell at the moment only to point out that it fulfills a useful purpose either under the appellants' interpretation or under ours.

For under either interpretation, it guarantees a minimum degree of protection below which the Commission may not see -- sink.

Four years guarantee a minimum in amount, 100% guarantee against financial loss and a guarantee in length of time, the four years that I've mentioned.

Then the third sentence, preserves the right to the parties to engage in collective bargaining upon the consequences of a merger, including as the Court has held although not in a direct interpretation of this Section, including the right to bargain about whether unnecessary jobs will be preserved or at least, will not be discontinued without the ascent of the union.

I emphasize therefore, that there is no question here either about collective bargaining or about whether the railroad has a duty to protect employees against the consequences of a merger.

The day for arguing those issues is passed.

In either event here, there is to be for the statutory period, full protection against being worse off.

The only question is how shall it be achieved?

Is it to be achieved by what we have called a job freeze and I accept Mr. Mahoney's interpretation of a freeze of comparable -- a freeze in comparable jobs and comparable wages, which is all we mean by the expression, “job freeze” or is it to be through full financial protection?

The Commission's order in the present case not only gives the most elaborate protection ever known in the railroad industry, but a degree of protection which goes far beyond anything known outside the railroad industry.

Displaced employees, those whose jobs are abolished and who exercise seniority rights to move into other less well-paying positions, are guaranteed a monthly displacement allowance equal to difference between their prior average earnings and what they earned in the new job.

What the Commission calls dismissed employees and what I would call laid off employees because the employment relationship isn't terminated, they still have seniority rights, those who lose their jobs as a result of the merger, are guaranteed a -- the full average wage which they earned in the year preceding the merger, so that they are protected there too.

In addition, every employee affected by the merger, whether he's dismissed or laid off, is guaranteed all the other incidental benefits attached to his previous employment, free transportation, hospital and medical insurance, pensions, things of that kind, whatever done through the collective bargaining agreement, though it's not all.

Every employee who is forced to move is guaranteed his full moving expenses and finally, anyone who is forced to sell his house or to cancel a lease is guaranteed against any loss by reason of that transaction and these benefits all run for the full statutory period or in some cases, they may run still longer.

It's really a little hard to think of any way in which you could do more to prevent employees from being worse off because of a merger, but I would emphasize that in this case in any event, there is no question about the adequacy of the Commission's order, if financial protection can ever meet the statutory requirement because the appellants stipulated in the court below that the only question concerned the interpretation of the statute and if there are any financial inadequacies in the order, they've suggested some in the brief, they are both excluded by the stipulation, but I should also say that, under Section 5 (9) of the statute, they have the right to go back before the Commission and ask for this additional protection.

And the Commission has authorized me to say that any such request would certainly be considered and if I read the railroad's brief right, they've said that they will grant any additional financial protection, if it were shown that the Commission's order fell short.

Justice Felix Frankfurter: Mr. Solicitor, may I ask whether if such a laid off employee obtained another -- a different job in a different --

Mr. Cox: Then, the amount of the wages --

Justice Felix Frankfurter: He's got --

Mr. Cox: -- that he earned would be deducted.

There is a provision for that in the order.

Similarly, because of the stipulation, I would emphasize that there was no question here about the sufficiency of the evidence to sustain the Commission's finding that financial compensation is the most satisfactory way of both protecting the employees and permitting the merger to go forward.

There's an explicit finding on that point.

It's not challenged.

Indeed, the evidence isn't even here before the Court.

So that the chief, indeed, the only real difference between the kind of job freeze that the appellants see and the terms and conditions prescribed by the Commission is that the appellants would force the carriers to provide jobs for unnecessary employees, whereas, the order permits a reduction of forces upon consolidating facilities, but guarantees the employees against all forms of financial injury.

Mr. McAfee, the counsel for the carriers, will deal with this in more detail.

I would, because of the questions about it earlier, like to speak to the point just very briefly.

I take it that what Mr. Mahoney means by the employees are entitled to comparable jobs, is that an engineer is entitled to continue to be an engineer and an electrician is entitled to continue to be an electrician.

You can't put an engineer toward trek walking or keeping books or doing clerical work, because they would say, “For obvious reasons in the craft history of the industry, that that was not a comparable job.”

So what you have to do if consolidation for example, of the -- the yard facilities at Buffalo, which is one of the important parts here, makes it necessary to have only half as many train crews in the yard.

Something has to be done with those other train crews.

They can't be put to clerical work, they could be moved, if they had other trains to run, they could be moved from the yard to some kind of transfer service or something like that, but they would still, under his interpretation, have to run trains whether there was any need for them or not.

Justice Potter Stewart: They could be moved under his interpretation to -- to another point, couldn't they, to where here --

Mr. Cox: They could be moved -- they could be moved to another point, I think.

I -- I'd like to leave that to Mr. McAfee, because I am not clear whether the privilege of moving them overrides the seniority arrangements at the other point.

You see each -- each seniority district --

Justice Potter Stewart: Yes.

Mr. Cox: -- treats others like foreigners.

So that so far as the Commission's order goes or what he thinks should be the Commission's order goes, it could be, but I suspect that these other seniority districts would object to their moving in and taking any of the jobs --

Justice Potter Stewart: I see (Voice Overlap)

Mr. Cox: -- in that district.

If you put them on the bottom and provided enough jobs so that there was room for everybody on the old seniority list at the district, plus these new fellows, then you could move them to another point, yes.

Against this background, I come to the meaning of Section 5 (2) (f), but I would like if I may, to postpone the specific discussion of the words until we come to their place in the chronological evolution of this unique degree of protection of employees in the railroad industry.

The history begins with the enactment of the Emergency Railroad Transportation Act of 1933.

Section 7 (b), which appears on page 24 of our brief, set a formula below which the number of employees in the industry could not be reduced and then, went on and provided, “Nor shall any employee in such service be deprived of employment such as he had during the month of May,” which was the lease period, “Nor be in a worse position with respect to his compensation for such employment.”

That would cover the case when he was displaced, by reason of any action taken under the Act and so forth.

Now, this enactment clearly does provide for what I call a job freeze.

I emphasize only that it -- when Congress desired to do this, it very clearly used the language of a job freeze.

In the contrast to the present law, are they -- needs to be mentioned.

The next development was the Washington Job Protection Agreement of 1936.

This was negotiated between about 80% of the mileage of the railroads and carriers and the Standard Railway Labor Organizations.

And it becomes the basis of all subsequent progress in this field and consequently, I would like to ask the Court to look at it in some detail.

Turning to page 142 of the record, Section 6 of the agreement -- I confine myself to the key section, Section 6 of the agreement --

Justice William O. Douglas: What page is that Mr. Cox?

Mr. Cox: 142.

Section 6 is just below the middle of the page.

It provided what was called a displacement allowance for employees who were kept in service, but transferred to other positions.

And it read in the critical part, “No employee of any of the carriers involved in a particular coordination,” which was their word for all mergers, consolidations, leases and everything else, “Who has continued in service, shall prepare to five years, following the effective date of such coordination, be placed as a result of such coordination, in a worse position with respect to compensation and rules governing working conditions” and then over on the next page, paragraph (c), measures the monthly allowance that he would receive.

I dwell on this particular section because you will note that the words, “put in a worse position with respect to compensation” were used in speaking of displaced employees.

They were never used in speaking of employees laid off or other kinds of employees.

I think this bears upon the question, well, why didn't they use the language, “put in a worse position with respect to their compensation” in later statutory enactments?

They'd had a special position both here and in the Railroad Act of 1933.

Section 7, at the bottom of page 143, provides what was there called a coordination allowance for employees that were laid off as the result of any consolidation of railroad facilities.

There are two things about it which are important to later development.

In the first place, the allowance was set at only 60% of the employee's average compensation during prior periods.

And in the second place, as shown over at the top of page 144, the period for which you might receive the payment was fairly short, at least in terms of later standards.

For example, in order to get a four-year protection, you had to have at least 10 years seniority.

Whereas, we know under the statute now, four years seniority would give you the four-year protection.

Then the other provisions of the Washington Agreement, which I needn't stress at the same detail, cover the points which we find later in the order in this case.

Section 8, at the top of 147, guarantees all fringe benefits, the free travel, transportation and other kinds of allowances, and the like.

At page 148, you will find the reimbursement from moving expenses and then over on page -- bottom of 148 and over on 149 and 150, is the machinery protecting employees in the event of the sale of their homes.

Here then, we had a negotiated agreement covering the bulk of the industry which sought to provide partial financial protection, but which did not imply any kind of a job freeze.

Then we come to the Transportation Act of 1940, which wrote into the Interstate Commerce Act, the language involved in this case.

At that time, the Congress had before it, two distinct examples, the Emergency Railroad Act of 1933, which had the language of a guarantee of employment and also a guarantee against displacement and the negotiated financial protection of the Washington Agreement.

There's no need to go through the early stages of the legislative history of the legislation of 1940.

It's enough to say that the Committee of Six, appointed by President Roosevelt, which framed the 1940 legislation, the House and Senate Committees and the Senate itself, all clearly went down the road of financial protection based on the Washington Agreement.

The bills which they drafted included language very similar to the first sentence of Section 5 (2) (f), including the language about requiring the Commission to set up a fair and equitable arrangement for the protection of employees.

And it was in that form that the bill passed the Senate also came to the House floor.

On the House floor, there's not the slightest doubt that the House originally switched signals and wrote into the bill, a guarantee of continued employment, despite merger.

This was the Harrington amendment.

It put a proviso after the authority to the Commission to prescribe a fair and equitable arrangement, which stipulated that no such transaction shall be approved by the Commission if such transaction will result in unemployment or displacement, not that it's both unemployment and displacement and not just one of the carrier or carriers or in the impairment of the existing employment rights of said employees.

There were some Congressmen who asserted that this language was never intended to guarantee employees against layoffs as the result of a merger.

But as I said before, it seems to me that the language is perfectly clear and that if this language had become part of the law, we would all say that it was plain on the face of it that a guarantee of continued employment was the result.

Justice Charles E. Whittaker: But wasn't that the position taken by the Executive Department in their criticism to the Congress that the Harrington amendment would freeze jobs and leave the policies of the National Transportation Act?

Mr. Cox: That was in the report -- legislative report made by the Interstate Commerce Commission during the Conference Committee discussion, yes.

There were, I should point out, two sources of support for the Harrington amendment.

One was made up of those who were looking for a job freeze.

The other sources of support were those who said to put it very colloquially, “We don't know whether we can trust these administrative agencies.”

We have one notion of what is a fair and equitable arrangement, but quite often, we find that the agencies have different notions.

And therefore, they wished to write into the said statutes some requirement, some rule that would bind the Interstate Commerce Commission.

As it's been said, the Harrington amendment went into the bill.

The bill went to conference.

And when the bill -- when the Conference Committee reported, it resolved this conflict between the Senate bill which had no Harrington amendment and the House bill which did, by leaving out of the legislation all provisions about mergers and consolidations and therefore, they took no position upon it at all.

When the report came before the House, Representative Wadsworth offered a motion to recommit to the Conference Committee with instructions.

And the language of that motion it seems to me to be highly important here, because it is radically different from the Harrington amendment and as we see it, this is really the critical step in the legislative history and therefore, I'll impose on the Court to call attention to it in some detail.

The motion moved to recommit the bill with instructions to the managers on the part of the House.

There were three instructions.

The first, that the managers on the part of the House insist on the inclusion in the report of the Committee of Conference, the provision adopted by the House is the -- known as the Jones amendment, which reads as follows, “And then it set out in so many words the Jones amendment which bar upon water carriers and the rate set by them jointly with the rail carriers.”

Then the second instruction again instructed the managers on the part of the House to insist upon the exact language of the Wadsworth amendment, just as it has been offered before.

It set out the Wadsworth amendment.

Then we come to a very different instruction, the third one.

That the managers on the part of the House insist on the inclusion in the report of the Committee of Conference, the -- the provisions adopted by the House relating to consolidations and combinations of carriers, but modify it so that the sentence in Section 8 which contains the provision known as the Harrington amendment read as follows, and then came the language which is quoted on page 33 of our brief in the full text.

I won't take time to read it all, but I would emphasize that the second sentence which provided with -- within an order including approving a consolidation.

“The Commission shall include terms and conditions, including that such transactions will not result in employees of said carrier or carriers being in any worse position with respect to their employment.”

Now obviously, this was not just a technical change in the phraseology aimed at simplification or brevity.

The Harrington language had forbidden the approval of a consolidation if there would be any unemployment or any displacement and both those references to unemployment and to displacement were left out of the Wadsworth instruction.

The Appellants suggest in their brief that the language in the Wadsworth instruction was to come from the Emergency Railroad Transportation Act of 1933, but that the language is about -- the language about unemployment and displacement were telescoped and left out apparently, in the interest of revenue.

It seems to me that the significant comparison is just the opposite.

That there was an example with a job freeze or an employment freeze and that the Wadsworth instruction or following perhaps the very urging of the Interstate Commerce Commission report that Justice Whittaker mentioned, did not include those words.

We submit that one of two conclusions necessarily follows from this change from the language of the Harrington amendment to the Wadsworth instruction.

One conclusion would be that the Harrington amendment was modified for the specific purpose of avoiding any mandatory job freeze, which would make railroad consolidations impracticable and returning to the idea of financial protection which has been the mainline of development up to that point and the Washington Agreement, the Committee reports, the vote of the Senate and I may add, the support of all the railway labor organizations, except the Brotherhood of Railroad Trainmen.

The other possibility that we could conceive of is that the Wadsworth instruction was compromised which left the issue at large, that we will leave it to the Commission to determine how to keep employees from being worse off, allow them to choose within their discretion.

For the purposes of this case, either conclusion would require sustaining the order below.

Because I have said the Commission addressed itself to the question, assuming we have discretion, we find that this is the method of protection which would be most practicable and most to the public interest and that finding has not been challenged.

After the debate on the -- oh, well I should say something one thing more about the debate on the Wadsworth instruction.

There were three times during the debate that it was pointed out that the language of the Wadsworth instruction was not the language of the Harrington amendment.

This was acknowledged indeed, in one of those instances by Mr. Harrington and it was stated on two separate occasions by Congressman Wolverton, who seemed to be carrying the labor -- laboring oar, in the debate on the labor provisions.

Congressman Harrington did himself speak of the Wadsworth instruction as if it would freeze employment.

I don't think there could be any denying that.

He said a great many things in the course of the speech, but there are one or two sentences which do speak as if he thought that the motion to recommit would involve a job freeze.

As to that, we simply say that in the light of the general course of events, the great significance of the change in language and the other comments made during the debate that the statement by Congressman Harrington is not entitled to any weight here.

Chief Justice Earl Warren: Mr. Solicitor General, I understood you to say a moment ago that Mr. Harrington conceded that -- that this provision would be different from his original one?

Mr. Cox: He -- he spoke of it as modified language or a modified provision.

Chief Justice Earl Warren: Yes.

Mr. Cox: I didn't -- that's all he said.

I didn't mean to imply that he had said anything more.

There wasn't any discussion on the floor by anyone, about the significance of the change.

The only thing any of us can draw from the subsequent legislative history is that people made passing comments about the effect of the instruction.

One was Congressman Harrington who did say that it would result in a job freeze.

He didn't use the words, but he plainly conveyed the idea.

Justice Hugo L. Black: Was that denied?

Did someone else take up what he had said?

Mr. Cox: Nobody -- nobody denied that, no.

Justice Hugo L. Black: It was not commented on at all?

Mr. Cox: It wasn't commented on in -- in anyway.

Similarly, Congressman Lea, several times, attacked the instruction in language which spoke of its compelling a railroad to pay a wage for life to an employee for whom it had no job or an employee who had been discharged and nobody quarreled with him.

I -- There -- there just wasn't any debate upon this point.

That seems quite possible to me after all.

Those who were supporting the instruction were naturally interested in the -- making the most claims for it, in terms of employee protection.

Those who were opposing the motion to recommit were naturally content to have it look as bad as it could because they didn't want anything in the bill on this subject.

Now, there were some general statements on the floor to the effect that the Wadsworth instruction would carry out the purposes of the Harrington amendment.

But I submit that those are rather ambiguous because we don't know just what is meant by the purposes.

But today, in the light of this case, the issue of employment freeze or no employment freeze looks very significant.

But if you go back and think in terms of the context of that debate in 1940, the great issue was whether you were going to protect the employees at all.

There had been nothing in the Conference Report that gave any protection and the Wadsworth instruction, interpreted as we suggest must be interpreted, really was a very great advance.

It not only put back in the language about the fair and equitable arrangement.

It narrowed the Commission's discretion by setting a floor below which it could not go.

It went beyond the Washington Agreement by guaranteeing not 60% of your previous wage, but 100% and it gave much greater protection in point of time.

So that anyone there who is thinking generally of the protection of employees could say, and honestly say, that this language carries out the purpose of protecting employees.

It carries out the great purpose of the Harrington amendment.

So I see no inconsistency with those general statements in our interpretation of the Wadsworth Amendment.

The motion to recommit passed and the bill went back to Conference.

The Conference Committee reported out what is of course now, Section 5 (2) (f), but made certain changes.

The statement of the House managers contains an exposition of Section 5 (2) (f) which seems to me to be -- seems to us to be highly significant and again, worth considering in some detail.

I would like to ask the Court to turn to pages 60 and 61 of the appellants' brief, because what they print and what they omit seems to me to be the key to the essential fallacy in their argument based on the legislative history.

The statement of the House managers began with the paragraph at the bottom of page 60.

The House amendment included a proviso, the Harrington amendment prohibiting approval of any transaction which would result in unemployment or displacement of employees, or in the impairment of their employment rights.

There was no similar provision in the Senate bill.

Then the statement of the House managers, the so-called Committee report, goes on to explain that in lieu of this provision, the Conference substitute included Section 5 (2) (f).

It quoted that in full and then came two paragraphs, which I find very significant, which the Appellants have omitted.

“The substitute proposal for the Harrington amendment before it began, as recommended by the -- to the conferees by the instructions of the House provided in substance.”

I'm emphasizing the, “As recommended by the instructions of the House.”

They knew the difference between the Harrington amendment and the instructions of the House and they quoted --

Chief Justice Earl Warren: Could you mind starting that again please, that -- what you're reading, your quotation?

Mr. Cox: I was reading from the Conference --

Chief Justice Earl Warren: Yes.

Mr. Cox: -- Report.

Chief Justice Earl Warren: Yes, I understand what you're reading from.

Mr. Cox: And from a paragraph explaining 5 (2) (f) as a whole.

The paragraph read, “That substitute proposal for the Harrington amendment as recommended to the conferees by the instruction of the House, provided in substance that in the case of consolidations of the unifications,” then I stopped reading because it summarizes the first sentence of Section 5 (2) (f), and the point which I wanted to emphasize was that the House managers observed the distinction between the Harrington amendment and the instruction.

Then the statement went on, “The instruction of the House also made the provisions of the amendment applicable to the case where other means of transportation was substituted for rail transportation and they explained that they had left this out as impracticable.”

Then we go on and we find the part of the report bearing directly on this case.

“The conference agreement on the Harrington amendment includes the provision of the instruction,” again not the contrast between the two, “Which provides that the order of approval shall include terms and conditions providing the transaction will not result in employees being in a worse position as a result -- with respect to their employment.

The conference agreement qualifies this provision.”

In other words, the provision of the instruction, not any provision of the Harrington amendment and that explains I think why it is in the -- in a later sentence in this passage.

The House managers refer to the time limitation as something that cuts off or terminates the period for which benefits will require -- be required to be paid.

They know that benefits were what were required and not an employment freeze.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Cox

Mr. Cox: Mr. Chief Justice, may it please the Court.

Before the luncheon recess, I had traced the history of Section 5 (2) (f) through to the second conference report and had drawn attention to the provisions in the second conference report that recognized the sharp distinction between the Harrington Amendment and the Wadsworth instruction which showed, in our view that the provisions of the conscie -- Conference Report were based upon the instruction and which also spoke of a time limit imposed upon the benefits required to be paid, language which clearly speaks in terms of financial protection and not of a freeze on employment.

That same tone was carried through the debate on the con -- second Conference Report in the House where you find Congressman Lea, who is one of the House managers and Chairman of the House Committee, several times speaking of the time limits that had been imposed on the benefits, so that the benefits wouldn't run for more than four years, similar expression, all of which are consistent with our view.

And, it seems to me, utterly inconsistent with Mr. Mahoney's view of the statute.

The Appellants' do point to certain language in the debate on the second Conference Report which contains references to protection against unemployment and protection against sudden dismissal.

In our view, that's an ambiguous phrase.

Clearly, it could literally mean protection against dismissal.

But, it is also familiar to use the expression "protection against something" as insurance against -- protection against its financial consequence.

For example, we often speak of protection against windstorm, hail, fire, not even the insurance companies can keep those acts of God from occurring.

And by the protection, we mean protection against the financial consequence.

Most point involved, the Washington Agreement of 1936 was known as the Washington Job Protection Agreement, and it granted the kind of financial protection created here, no guarantee of featherbedding, also, it was improved very greatly by this amendment.

There are two other passages --

Justice Hugo L. Black: May I ask you, before you leave that.

In the brief to which you refer just a few moments ago of the appellants, there appears on page 67 a statement contributed by Senator Wheeler who was, at that time, the Chairman of the Committee of the Senate.

Is anything else about Senator Wheeler shows his attitude or as to this change?

Mr. Cox: There's nothing, except that passing reference to the Harrington amendment, which I think is -- well, it seems to me that it simply distinguished the Harrington amendment from the Wadsworth amendment and the Jones amendment, so it is not to be taken to mean literally all the provisions in the exact meaning of the Harrington amendment.

That's really about the only thing there is in the Senate.

There is no debate on this provision in the Senate.

In the House, there were two -- two passages that deal explicitly with this problem, as they're set forth in the Government's brief at pages 40 and 41.

Mr. Vorys of Ohio asked about the four-year rule and asked if it would have the effect of delaying a consolidation, and Mr. Lea replied, "No, the rule does not delay consolidation.

It means from the effective date of the order of the Commission, the benefits are available for four years.

The order determines the date and the protective benefits run four years from that date."

Mr. Vorys, "This would be whether or not they are still employed."

"Yes."

Both the question and the answer obviously assume that the employees would not be still employed.

Then, over on the next page, we've set forth a quotation from the closing statement of Congressman Halleck, who was also a conferee, and which seems to me to say in a few words the gist -- the thrust, I should say, of this whole legislative history.

He stated that the new provision follows the principle of the so-called Washington Agreement.

That was a contract entered into by the carriers with their employees to fix the rights of those employees whose employment terminated upon consolidation.

And to summarize what I think is the result of the entire legislative history, from the negotiation of the Washington Agreement, to which only the Trainmen dissent, the whole momentum of the development was in terms of protective benefits, expanding them, enlarging the time, there was a brief fling with the notion of going back to an employment freeze in the original Harrington Agreement but then that, as the contrast in the language of the -- with the Wadsworth instruction showed, was turned back on and everything following is consistent with the notion of financial benefit.

Now, this explains, I think, the reason that when the bill was passed, the journals of the Railway Brotherhoods described it in terms of gaining financial benefits.

And, this was true with the journals of such an organization as the Locomotive Firemen and Enginemen, which had been one of the organizations that sponsored the exact language of the Wadsworth instruction.

Indeed, sent it to all the members of Congress in a letter, along with the five other transportation brotherhoods and they, in their journal, again described it as calling for financial protection.

In view of the words of the legislative history, it is hard to believe that there is any doubt about the meaning of the second sentence of Section 5 (2) (f).

But, if there were doubt, surely, it would be put to rest by the consistent interpretation for 20 years through active administration of the statute by the Interstate Commerce Commission.

That's now -- not only was a contemporaneous interpretation arrived at very shortly after the passage of the legislation.

It was an interpretation reported to Congress as early as the annual report for 1941 and it's an interpretation that has been followed consistently since then, and until this case was understood and approved by everyone concerned not simply the Commission with the great bulk of the carriers and also the railway labor organizations, including the Railway Labor Executives, the appellants in this case.

The matter first came to the attention of the Committee -- Commission in a consolidation involving the Fort Worth Railroad.

At that time, the Railroad took the position that the second sentence of 5 (2) (f), and therefore the whole section, imported a job freeze.

The Railway Labor Executives' filed a brief in answer to this contention.

We've quoted a large passage, not all of which I will read, on pages 57, 58 and 59 of our brief saying that they didn't agree with this construction.

The conclusion they came to is on page 58 of our brief, right about the middle.

We conclude that a comprehensive system of dismissal and displacement allowances, plus, reasonable assurance of the continuance of certain minor employee rights and privileges for a period of four years will place the employee in no worse position with respect to his employment than that which he occupied before in this case at the least.

So, it's perfectly in a contested case, perfectly clear cut interpretation of the statute.

In that particular case, the Commission was not required to rule because he disapproved the merger and therefore, it didn't have to go on to the conditions protecting the employee.

Commissioner Joseph B. Eastman, however, very plainly expressed the view that what was contemplated was not featherbedding but a guarantee of financial protection for the four-year period.

And then, the Commission, in a subsequent case involving the Texas-New Orleans Railroad on that same year, did consider the problem at length and did rule that financial benefits were what were intended.

Now, I would emphasize that this has not been simply in action on the Commission's part, as in the Handcar case that was mentioned earlier during the argument.

This was a -- this is a problem where the Commission and the railway labor organizations and the railroads have been actively concerned with this over a considerable period of time.

There were 10 cases that are reported dealing with what conditions should be laid down between the passage of the statute and the decision of this Court in the Railway Labor Executives' case about 1950.

There were 20 reported cases since then.

This isn't simply a problem that was forgotten all about.

It wasn't litigated in these precise terms.

I don't want to overstate the case.

But, what was a worse position was something people were discussing all the time.

They were developing proper conditions and laying them down, as was finally done in this case.

So that, we think the constant administrative interpretation should be enough to put any possible doubt to rest as to the correctness of the decision by the court below.

I agreed to give Mr. McAfee the remainder of my time.

Justice Hugo L. Black: May I ask you one question.

You probably said, but I don't-- I didn't get if you did.

What was the origin of the clause of such order being in a worse position with respect to employment?

Where did that first get into the law?

Mr. Cox: As far this -- the first place it got into the law, if I understand you correctly --

Justice Hugo L. Black: Yes.

Mr. Cox: It doesn't appear prior --

Justice Hugo L. Black: When was it first used, in a contract or a --

Mr. Cox: No.

Justice Hugo L. Black: -- law or --

Mr. Cox: No.

I -- I haven't been able to trace this any farther back than a letter which was written -- within a story of the President of the Brotherhood of Railroad Trainmen, relating the history of the Transportation Act of 1940 in this respect.

This was in their -- one of their publication.

And, in it, he encloses the letter dated May 1, 1940, which was during the House's consideration of the first Conference Report, and there is set forth the exact text of the Wadsworth instruction.

I can't trace the language any farther back than that.

I just don't find it in -- the phrase "worse position with respect to their compensation" had been used in the Washington Agreement in speaking as a word of art --

Justice Hugo L. Black: Yes.

Mr. Cox: Of displaced employees, but the whole expression, Mr. Justice Black, I've not been able to get back of that letter.

And, the formal introduction of the language was in the Wadsworth instruction.

Chief Justice Earl Warren: Mr. McAfee.

Argument of Ralph L. Mcafee

Mr. Ralph L. Mcafee: Chief Justice Warren, may it please the Court.

I, of course, do not plan to cover in the few minutes remaining to the appellees the points which have been so ably presented by the Solicitor General.

What I would like to treat of is what will be the practical effects of what the appellants are asking for in this Court.

And let me say right away, I'll state my conclusion first.

We say it's not possibly the job freeze, but it is a job freeze.

And, we go further from that and we say no matter what version of the interpretation we take, and it's buried that that will inevitably result in the merger not being consummated, other than in its technical sense for four years.

I would like to, if I can, demonstrate that to you.

Let me say, before I get into my analysis of the various versions of what the appellants are asking for here, that they are various versions, they are conflicting versions, but each of them, I say, ends up with a job freeze in what the merger actually not being compensated for four years.

Justice Felix Frankfurter: I must be stupid.

I don't understand why four years -- why four years makes a difference --

Mr. Ralph L. Mcafee: Well, the second --

Justice Felix Frankfurter: Because whenever -- oh, I see, that's-- it--

Mr. Ralph L. Mcafee: That --

Justice Felix Frankfurter: There's a formal merger.

Mr. Ralph L. Mcafee: Yes, sir.

Justice Felix Frankfurter: I see.

Mr. Ralph L. Mcafee: There's a formal merger as we have now.

Justice Felix Frankfurter: That is the -- just the document that you read.

Mr. Ralph L. Mcafee: That's right.

Justice Felix Frankfurter: The document.

Mr. Ralph L. Mcafee: Your Honor, we have formally merged these two corporations together.

Justice Felix Frankfurter: They're already, so that the merger is in existence.

Mr. Ralph L. Mcafee: That is correct and we have one management, run one-and-a half management running two separate and distinct railroads today.

It's a terrible situation.

And, we say that would exist for four years under any reasonable interpretation of what the appellants were asking for here.

Justice Felix Frankfurter: Unconstant -- unconstant, if the construction contended for by the appellant should be required to be the law, should be required to be the meaning of the law, it will affect -- it may well-affect the I.C.C. in not allowing you to go through that paper performance.

Mr. Ralph L. Mcafee: There's no reason to do so and we wouldn't ask for the right, Your Honor.

Except, right now, my client is in the middle.

We are -- we are already technically --

Justice Felix Frankfurter: (Voice Overlap) -- this specific situation.

Mr. Ralph L. Mcafee: Yes, sir.

Justice Felix Frankfurter: But, the point of view of effectuating the statute is practically -- is in effect.I'm not saying just determines the meaning.

Mr. Ralph L. Mcafee: It would --

Justice Felix Frankfurter: But this is a potential veto on mergers, is that right?

Mr. Ralph L. Mcafee: There's no question about that.

It would effectively defeat the policy of Congress.

There's no question about it.

Now, if I may demonstrate what I mean, Your Honor.

In the brief -- the appellant's brief, the central theme or a central theme in that brief is that the Commission was guilty of error and that it did not prevent adverse effects upon employees.

That's the way the -- their questions are posed.

They say that the Commission was in error in that it only provided something after the effect.

They say that the Commission should prevent the adverse effect.

And, on page 37, if Your Honors will look at 30 -- 37 of the appellant's brief, the heading to point four is legislative history compels the conclusion that employees must not be adversely affected in their employment for four years.

Now, the -- there's no dispute about what is adversely affected, what that means.

And if you take that theory of what is required by the second sentence, we can't deploy these jobs, we can't transfer employees, we can't displace employees, we can't do anything.

We can't move their work because that would affect them.

So, admittedly, if that construction is adopted by the Court, we can't do anything.

Now, here today and then back in his brief, the appellant stated, "Well, we could transfer employees to comparable jobs at comparable pay."

Justice Hugo L. Black: Do you have two precedents now?

You said --

Mr. Ralph L. Mcafee: We have only one precedent.

We really have a one -- they can be displaced, Your Honor.

They aren't protected by the New Orleans Commissions [Laughter] and they weren't covered by the stay Your Honors.

Justice Hugo L. Black: Are they employees?

Mr. Ralph L. Mcafee: I'm sorry?

Justice Hugo L. Black: Are they employees?

Mr. Ralph L. Mcafee: I'm afraid they're not -- they have not yet been included under the protection.

I think they should be, Your Honor, especially the lawyers.[Laughter]

Justice Hugo L. Black: I can understand that viewpoint.

Mr. Ralph L. Mcafee: But, in any event, here today and in his brief, as a matter of fact, the appellant says you can transfer employees to comparable work and comparable pay.

It's been a phrased differently to equivalent work and equivalent pay in some other places.

But, just think about that a moment and it -- it fits in with a question which was put by the court below.

What would be the effect of that privilege?

Let's apply it to a specific situation.

We want to move our accounting department, the Lackawanna Accounting Department from Scranton to Cleveland and merge it there with the Erie Accounting Department so we have only the one accounting department.

Well, now, under this admission made that we can transfer people, transfer them to comparable jobs, I suppose we could require them to move out there, the people from Scranton, but the important thing is this.

Once we get there, we can't merge those operations.

We would still have two separate and distinct accounting departments out there, one for the Lackawanna and one for the Erie, because these people don't have any right to take any position in the -- the seniority roster of the Erie.

And, one of the basic contention, one of the basic ground rules, which the appellants ever had to adhere to throughout and which they expressed to you when they applied to you for a stay was this, that you may not merge the seniority rosters, you may not merge the workforces.

And, if you can't do that, you can't do anything.

That is the central theme of this.

They won't no bumping and you can't merge seniority rosters without bumping.

So, under their contention or their admission that we can transfer employees from one place to another and they are required to go wouldn't help us at all.

And, I might say in that connection, here for the first time today in these proceedings had the appellant said that an employee is required to move or else he loses his protection.

Now, just -- just think about that a minute because, under the New Orleans conditions, which these people are already entitled to under the Commission's order, they can't be compelled to do that.

They can only be compelled to move to a job which their seniority entitles them to, within their seniority district or their seniority point.

Other than that, they can say, "I don't want to go.

I want to be paid."

Well, now, here for the first time today, the appellants have said, under what they propose, the employees don't have that right and that protection.

They must move from Scranton to Cleveland.

Well, frankly, I accept that and it doesn't affect my conclusion at all.

We still can't merge the functions when we get them out to Cleveland, but I do respectfully submit that I doubt if the Brotherhoods, we have to deal with, the local unions.

We have over 100 contracts outstanding.

Those people are not going to agree with that no matter what that RLEA says, but I -- it doesn't, as I say, affect my conclusion that this proposal of the appellants will just result in no merger for four years because there would be absolutely no point in us moving that operation out to Cleveland if we couldn't merge it out there.

No reason at all to go through all that expense.

And, further, if -- there's another statement made in the brief that employees are entitled to follow their work.

Now, that presents a slightly different problem.

If that is really the position that they are entitled to follow their work, when we move our accounting office out to Cleveland, some of the employees would go and obviously, some of them wouldn't.

I think an estimate would be, probably 75% would go.

But, we'd have a slightly different situation under that concept of what this second sentence means because we would have a separate organization out there but we wouldn't have enough employees to man it and, so, we would have to go out and hire additional people to come in and fill in the Lackawanna Bookkeeping Department out there so it could still operate.

It still has a job to do.

An attrition has nothing to do with this, Your Honors.

It has absolutely nothing to do with it.

Once we have those two -- two operations out there, what good would attrition do us?

Assume that some key employ -- some employee in the Erie Bookkeeping Department died.

We can't go over and -- well, we -- under this theory, we could go over and find a fellow with a comparable job in this Lackawanna Bookkeeping Department and, at least according to these people, apparently, that's attrition.

You can move them across.

Well, there are two things wrong with that.

In the first place, he wouldn't have a right to do that.

That would violate the rights of all the people in that other seniority roster.

And in the second place, we'd have to hire someone else to do the work over to Lackawanna because we don't have unnecessary, unneeded employees there.

So, someone would have to come up from the bottom.

There'd be a bumping upwards and -- and we wouldn't lose any jobs whatsoever.

Now, those are the proposals made by the Union here, made by the appellants here.

And, even if -- if they say, "Oh, well, those are all technicalities and really, we're going to permit you to merge or get these ground rules we were talking about.

We're going to permit you to merge when you get out to Cleveland, forget about that."

The actual fact is, and they can't dispute it, at the time we merge those two functions, we have more employees than we have jobs.

At that point, I don't care about attrition.

Maybe attrition will take care of them later but, at that point, we have more employees than we have jobs.

Now, what do we do with them?

Do they stay back in Scranton?

Do we have to keep the building back there for them, keep facilities for them, and we'd come in, punch the timecard?

Do we have to worry about the safety of these employees?

What do we do with them?

Do we have them stay at home?

How -- how are they any better off doing that than they would be under the New Orleans conditions?

Because, under the New Orleans conditions, they will be paid for four years and, if they want to go look for other work, they could do it.

They can take a lump sum settlement and go out and look for other work.

I think it'd be a terrible thing to require these fellow employees to come in to do nothing.

And, I could think of nothing worse on the morale -- no worse effect on the morale of the fellow employees who are actually working.

Now, Mr. Mahoney has said here today that, well, they could share the work.

But, if the Court -- Your Honors, if we ever did that, we'd end up with eroded work rules and we'd have more jobs.

If you start splitting work, you're really stuck with additional jobs.

So, that's no solution either.

Now, I would like to comment upon two things.

First, the appellants have referred to an agreement between the North of -- Norfolk & Western Railroad and the Virginian and the Brotherhoods as stating what they're really asking for here.

Well, that doesn't bear the slightest resemblance to what they are asking for here.

In that case, the basic contract provided that the railroad had the right merge the seniority rosters, something we cannot do here.

And, secondly, in merging the seniority rosters, they were entitled to just disregard the people on the furlough list.

And third, they were entitled to transfer those people anywhere in the system and if they didn't go, they lost all their rights.

So, that is completely dissimilar from what they are asking for here.

Now, in conclusion, Your Honors, this novel point, this novel interpretation of the second sentence was raised for the time after the record was closed below.

No proof was put in whatsoever by us or by the Brotherhood.

Nothing was put in the record.

This theory was first raised before the hearing examiner.

Now, it would be grossly unfair to us, it seems to me, to the I.C.C. and to the examiner to send this back for further proceedings.

Our railroad is in bad shape.

There is no question about that.

It's admitted.

The other day, we filed an application for a guarantee on a $15 million loan.

We're losing money all the time.

This Court granted a stay which is a job freeze, a complete job freeze.

We haven't been able to do anything under it.

So, I respectfully request that the Court affirm the judgment of the lower court.

Chief Justice Earl Warren: Mr. Mahoney.

Argument of William G. Mahoney

Mr. William G. Mahoney: Mr. Chief Justice, may it please the Court.

The Solicitor General, in his argument, said that the employees were given full protection, full protection by the financial protection which was given under these New Orleans conditions.

I respectfully direct your attention to the bottom of page 23 and at the top of page 24 of our brief where we set out at least some of the things that are not protected by the New Orleans conditions.

A man's job is abolished.

His work is abolished.

His employment with the railroad industry today is abolished.

That isn't protected.

They're not protected from accum -- from the loss of accumulated rights under the Railroad Retirement Act.

They don't -- he is not protected from forever being deprived of employment in the railroad industry, an industry in which he may have spent years developing skills which are not readily adaptable to other industries.

Now, there was also mentioned made, in response to a question by Mr. Justice Black, of Mr. Wheeler's statement.

And, on page 67 of our brief, we quote Mr. Wheeler said -- Senator Wheeler said.

Now, this quotation is not in passing, as the Solicitor General said.

This is a statement taken in its entirety from the official interpretation which is placed upon the Transportation Act of 1940 by the Senate and its sponsor of the Act, Senator Wheeler.

All they say -- all he says about the protection afforded under 5 (2) (f) is that the present law is also amended by the inclusion of the Harrington Amendment to protect the employees.

Justice Felix Frankfurter: Well, if you're going to stick to what Senator Wheeler said, that isn't quite accurate, is it?

Mr. William G. Mahoney: I beg your pardon, sir?

Justice Felix Frankfurter: If you're going to rely on the -- if you're going to rely on what Senator Wheeler said, what he said isn't accurate, is it?

Unless, you say that the instructions -- that the manager specifically not telling them -- specifically not saying you should hold out for the Harrington amendment, it's not the Harrington amendment.

Mr. William G. Mahoney: Well, the -- this provision, "worse position with respect to employment," was consistently referred to by everyone as the Harrington amendment.

Justice Felix Frankfurter: Well, but the all --

Mr. William G. Mahoney: Modified language.

Justice Felix Frankfurter: That's -- I agree with that.

Mr. William G. Mahoney: Now --

Justice Felix Frankfurter: I could understand that.

That simply means we all use shorthand language when we talk.

Mr. William G. Mahoney: Now, the -- with regard to the -- this language and the Solicitor General's reference to the conference report, he states that the conference report recognizes a distinction between the original language of the Harrington amendment and the language as found in the Wadsworth motion to recommit.

Now, please understand that we do not claim there is no distinction in that language.

What we say, though, is what does that language mean?

It is distinct.

They eliminated displacement.

But, what does the language mean?

Mr. Harrington told us what it meant, and all those who spoke in support of that language told us exactly what it meant.

Now, in commenting upon the original Harrington amendment, the statement of the Commission on this point is set forth in our brief in its entirety, insofar as it referred to the Harrington amendment, and that statement shows quite clearly that the only reference, the only reference which the Commission made and the only objection the Commission had, apparently, to the original language of the Harrington amendment was that it prohibited displacement.

And, I refer Your Honors to page 46 of our brief where this is the statement of the Commission on the original Harrington amendment is set forth.

"Employees who may be displaced should, in the case of railroad unifications, be protected by some such plan as is embodied in the so-called Washington agreement."

The proviso by prohibiting any displacement of employees goes much too far.

Now, it is significant that the Interstate Commerce Commission made no comment whatever on the modified language.

Displacement had been removed and it -- did not come back and comment upon that.

Now, that is the distinction between the original language of the Harrington amendment, and the modified language of that Amendment is found in the Wadsworth motion to recommit.

The references to the comments, in response to Mr. Justice Black's question, of Mr. Harrington's interpretation of this modified language, and Mr. Justice Black asked whether anyone challenged these statements.

And, the answer was, "No, they did not challenge the statement" and, in truth, there was no challenge to this interpretation.

But, when Mr. Lea interpreted this language as meaning that employees must be retained in their employment or be paid compensation for life if they're not retained in employment.

Mr. Harrington, on two separate occasions, told Mr. Lea that, "You are wrong.

It does not mean what you say it means.

This is intended to preserve only the employment and attrition will take care of the job eliminations.

This preserves the employment relationship -- the active employment relationship of these men."

Now, he was specifically told that twice and those statements appear in our brief at pages 54 and 55.

In the first instance, he quotes a letter from President Whitney of the Brotherhood of Railroad Trainmen.

He quotes this in confirmation of his own position, Harrington's own position.

Your address, as reported in the daily congressional record of May 3rd, suggest that your conception of the labor provision is entirely erroneous.

You erroneously refer to the proposed labor protection as a dismissal ways provision.

Now, he says in the course of that that they want to preserve the employment of these people.

That is the purpose of this entire thing.

Now, with regard to the statements regarding the whether -- the contest here, this wasn't a contest, as the Solicitor General says.

It's whether employees are going to have any protection at all.

They already had protection.

The Lowden decision which is discussed in our brief, United States against Lowden, the lower court, the Commission, everybody had given the employees protection in -- in consolidation of facilities.

The agitation here was what type of protection should they have and whether it should be protection in their way of preservation of their active employment with the railroad and let attrition take care of the job eliminations or should it be just compensation protection.

And, that was the contest and these -- the proponents of the job protection, the employment protection, the preservation, they didn't lose this.

They compromised but they didn't lose it and this is the entire battle that was in Congress in the House of Representatives at that time.

They had protection and it was the type of protection they were to have, and they ended up with a more flexible type of preservation of active employment than they would have had under the Harrington amendment.

The -- as I say, the entire agitation was what type of protection should they have in mergers.

They got, as we say, preservation of their active work with the railroad.

But, there were no mergers after this statute was enacted, as Congress expected.

We had prosperity through the war years.

The merger started to come only a few years ago, and the first merger was the Norfolk & Western and, in that case, the railroad agreed to retain all employees in their employment and let attrition take care of these other employee -- of -- excuse me, of the job elimination.

The next case that came along was this case, and this issue was raised.

That is why it has not been raised heretofore, because it was to protect the employees, the labor force of the industry when that force was -- was threatened by the merger provisions, and it is only threatened now.

The statements of Mr. McAfee regarding the effect on employees, most of these things, I assure you, gentlemen, certainly the Commission can take care of.

And, his statements as to what will happen to these employees, that they'll have so many employees left over, just do not jive with the evidence which they submitted that only 862 men would be deprived of their employment and not only because they refused to transfer.

Also, he made some comment about under the New Orleans' conditions, they don't have to transfer.

Well, that's what the Railroad's witness said.

Then, the Vice President of Operations got on the stand and said, "Oh yes, they do have to transfer.

We're not going to pay these fellows if they're not going to transfer when we've got jobs for them."

Mr. McAfee comes back and says, "Well, now, they don't have to transfer under the New Orleans' condition."

But, we state quite clearly that, under this, they would have to transfer.

So, those 862 men would have jobs to go to.

There's no bumping in the seniority involved in this because, again, there are jobs to go to.

They don't have to bump anybody.

Justice Charles E. Whittaker: What do you say about these dual accounting systems that would result in Cleveland, in answer to Mr. McAfee?

Mr. William G. Mahoney: There would be no dual system, Your Honor.

They would merge the accounting system.

They would have one accounting system.

Now, it may be that there would be extra employees in that one accounting system for a while.

An attrition would take -- they would have to wait for attrition to take care of those employees or they would have to, say, split the worker or something of that nature but there would be --

Justice Charles E. Whittaker: What about choosing the seniority of the two roads?

Mr. William G. Mahoney: Well, in every merger case or -- that we've had, this last merger case of course and there had been other cases involving small mergers over the last 20 years which were of no significance at all, insofar as effect on the employee -- employment in the industry was concerned, in those cases, they have always merged the seniority rank.

If they had agreements and they've merged the rosters, because the Railroad can't go on forever with two sets of agreements when it's only got one set of employees, and they would merge eventually.

They will get together and merge that and work that out.

And, this employment protection is not in -- directed just to all employees.

It is directed to the employees who are working on the Railroad.

That's the same thing that, at the time that the merger takes place, it's the same thing as an African-Western agreement applied to the employees who working as of the date of the agreement, June 18, 1958.

That's who got this preservation of their employment relationship with the Railroad and that, Your Honors, is what we say would be done here.

Insofar as the statements Mr -- I see my time has expired.

If there are no more questions, I thank you --

Chief Justice Earl Warren: I was just wondering, Mr. Mahoney, about the -- the attitude of the House Oregon of these various unions is concerned, and I notice the quotation from your own House Oregon entitled Four Years Full Pay.

Does the law provide that any employee who has been in the service of a railroad four years or more and loses his job because of a merger or coordination must be paid his full wages for four years?

If he has been a railroad employee less than four years, he must be paid his full wages for a period as long as his previous service.

No such protection and compensation have ever been guaranteed by law to the employees of any other industry and the railroad workers secured these unprecedented benefits through the Brotherhood of Maintenance of Way Employes in a cooperative movement with the other Standard Railway Labor Organizations.

Now, I understand from the briefs that that same attitude has been taken by -- by all the various brotherhoods.

Mr. William G. Mahoney: Well, Your Honor, the -- of all the excerpts that the appellees could find, that excerpt and the excerpt from, I think it is, the Conductor's Journals are the only two which really state that this is -- this is pure dismissal pay.

This is pay you get when you're dismissed.

And, I say they took that position very probably, I don't know why, they took the position very probably because they felt that -- because they have, as a matter of fact, been for nothing but compensation protection.

That was what they were after.

They felt that was what they got.

They may have assumed.

I don't know, that the second sentence did nothing else.

As a matter of fact, the -- the same thing was said of these same unions in the New Orleans case and the Commission's construction of that statute as meaning -- as having the four years as a ceiling, a maximum, and this Court held that the four years wasn't a maximum.

It was a minimum, and it had always been assumed by everybody up until that point, practically, that the four years was a maximum and not a minimum.

So that, I suppose, if you get right down to it, your -- where something like this where one of your own clients has said right at the beginning that this is the dismissal way, that he was wrong about his interpretation of that statute as implied to him.

As I understand, Abraham Lincoln once said, when that questioned was thrown to him in the afternoon, he said, "I might have been wrong in the morning, but I know I'm right this afternoon."

And, that is really the -- the only defense to that state.

Thank you, Your Honor.

Chief Justice Earl Warren: Thank you.