COLORADO COMM'N v. CONTINENTAL

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Argument of Mr. Chief Justice Warren

Mr. Chief Justice Warren: The Colorado Anti-Discrimination Commission et al., petitioners, versus Continental Air Lines, Incorporated and Number 492, Marlon D. Green, petitioner versus Continental Air Lines, Incorporated.

Mr. Taylor.

Argument of T. Raber Taylor

Mr. T. Raber Taylor: Mr. Chief Justice and may it please the Court.

Floyd B. Engeman, the Assistant Attorney General for the State of Colorado will share the argument with me.

I am going to open and I hope that I would be able to reserve time for rebuttal.

May I first review with the Court, the facts relating to Marlon D. Green and Continental Air Lines?

Marlon D. Green was a United States Air Force officer serving in the orient.

He had worked in air-sea rescue and he had over 3,000 flight hours in the Armed Forces.

Like many, a United States airline pilot, before his discharge, he had the ambition to become an airline pilot.

Accordingly, before his discharge, he sent applications to large and to small airlines in the United States.

In April of 1957, from the sales office of Continental Air Lines in San Francisco, he obtained an application form which was filed with the headquarters office of Continental Air Lines on April 30th, 1957.

The application of Mr. Green appears in the record at page 211.

Mr. Green's application, as originally filed, required a statement of descent and race as well as a photograph.

Neither his descent nor his race nor the photographs were supplied.

Later, the race was supplied at the direction of the checking out Officer, Captain Kramm when he was finally called to Denver.

In June of 19 --

Justice Arthur J. Goldberg: [Inaudible]

Mr. T. Raber Taylor: That is right, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. T. Raber Taylor: That is correct, Your Honor.

In fact, it was -- Continental Air Lines had no knowledge that Mr. Green was a Negro until after he had been ordered into Denver.

In June of 1957, Continental Air Lines was seeking to hire 14 or 15 pilots and they ordered into Denver, Marlon D. Green.

He was met and given a link trainer test and found qualified.

The applicants who were also found qualified were five in number, the other applicants.

On page 7 of the white brief of Marlon D. Green, we have given a summary of the qualifications of the six applicants who were found qualified.

The application blank for Continental Air Lines specifically required that anyone to be considered would have to have minimum flight time of 2,000 hours and be not over 30 years of age.

Mr. Green had more than 3,000 flight hours and was 27 years of age.

At that time, he was fully licensed as an airline pilot by the Civil Aeronautics Authority and Continental does not dispute that he was so licensed, nor does Continental dispute that he was qualified.

In connection with the interview at Denver, the personnel office of Continental Air Lines was the place where other -- where employees would normally be sent, Mr. Green was not sent to that office, but he was interviewed at the air base at Stapleton Field.

He was under the impression --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: He wasn't in service at that time, was he?

Rebuttal of T. Raber Taylor

Mr. T. Raber Taylor: Mr. Chief Justice --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: At the time of this interview, he had been discharged?

Rebuttal of T. Raber Taylor

Mr. T. Raber Taylor: He was discharged as of May 8, 1957, Mr. Chief Justice.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Yes, yes.

Rebuttal of T. Raber Taylor

Mr. T. Raber Taylor: It was in June of 1957 when he was being interviewed in Denver.

There was a July 1957 class, the other men were found qualified and ordered to that class.

Mr. Green was not ordered to that class because he was under the impression that he would be pulled one way or the other, and not have receiving word, he called Continental Air Lines and was told that he was still being considered.

However, he was not accepted for the July class, and in August 1957, he filed a complaint with the Colorado Anti-Discrimination Commission.

I think here it is important to point to the record as to the reason why or one of the reasons why Continental says that Mr. Green was not employed.

In the record at page 183 is a newspaper article from the state journal of Lansing, Michigan dated August 4th, 1957 entitled, “Job as Airline Pilot Eludes Lansing Negro, Blames Racial Bias”.

I think it's important to also point out that in the record at page 120 in folio on 359, an official of Continental said that the reason that Mr. Green was not selected for the July class was happenstance.

And at page 123, in answer to questions from the Commissioner, it has said, “We didn't need that number of pilots.”

And at folio 183, they discussed the article in the newspaper telling that Mr. Green's qualifications and difficulties trying to get the job.

At Record 134, there is a stipulation that the article appearing in the Lansing, Michigan Journal is substantially identical to a news release which was seen by a Continental official in an Albuquerque newspaper.

This case came on for hearing before the Colorado Anti-Discrimination Commission.

Before the Commission hearing, counsel for Continental argued that the Colorado Anti-Discrimination Commission did not have jurisdiction because Continental was under the provisions of the Railway Labor Act and was also a certified air carrier by the Civil Aeronautics Board authorized to transport persons, property and United States mail.

Now, that argument was made in advance to the hearing and it appears an answer.

However, I think we are here today confined to the facts which were put into the record.

Continental's evidence established that its headquarters offices, its personnel office, treasurer's office were all located at Denver, Colorado, that in Denver, Colorado it had 800 employees and that it was certified by the CAB.

But for an airline to carry any United States mail to fly in the airs over the State of Colorado even if the flights were only from Denver to Pueblo or to Denver to Colorado Springs, they would have to have certification by the CAB.

Continental did introduce into the record evidence that they were engaged in business in eight states and the “in eight states” is significant because they did not introduce any evidence that they were engaged in interstate commerce or in commerce between the states.

The record clearly shows that they had bases at Dallas and El Paso, Texas, that is at page 109.

But Texas is a large enough state to adequately take care of intrastate transportation.

They also show in the record at page 107 that there was a sales office at San Francisco.

Now, whether or not there was any activity of an intrastate agent in any of the other states or in any of the states, no evidence was offered.

They did state that they did business in New Mexico, Oklahoma, Kansas, Missouri and Illinois but whether that was just fly over or whether it was sales or what they did, we do not know from the record.

But it's more important, especially in view of the decision of the Colorado Supreme Court that the respondent, Continental, did not introduce any evidence of any law of any other state, any of the other seven states.

The only law which was before the Colorado Anti-Discrimination Commission, the only law which was before the Denver District Court, and the only law which has been before the Colorado Supreme Court, has been the Colorado Anti-Discrimination Act and the federal laws which had been introduced in the record by reason of the pleadings and the statements.

It is important, I think, also to bear in mind that the record shows at page 125 and 129 that under the collective bargaining contract with the American Pilots Association, Continental had the right to hire whomever it pleased on a one year probationary basis and during that one year probationary basis, they had the right to discharge without any question.

Justice Arthur J. Goldberg: Mr. Taylor [Inaudible]

Mr. T. Raber Taylor: If Your Honor please, that question we stipulated to after the first appeal of the Colorado Supreme Court, but it was not in the record until 22 months after the Commission's order.

Justice Arthur J. Goldberg: [Inaudible] could you cite what state it involves?

Mr. T. Raber Taylor: The states which were involved were Colorado, New Mexico, Oklahoma, Kansas, Mississippi and Illinois, or pardon me Missouri and Illinois.

Justice Arthur J. Goldberg: [Inaudible]

Mr. T. Raber Taylor: If Your Honor please, answering from the record, there is no knowledge.

Justice Arthur J. Goldberg: [Inaudible]

Mr. T. Raber Taylor: On the basis of speaking as lawyer to lawyer, Illinois does have one, so does California, but I feel this record was kept lily-white from any knowledge and therefore, I think that we are bound by the record.

Justice Arthur J. Goldberg: [Inaudible]

Mr. T. Raber Taylor: The decisions of this Court, Your Honor, and the decisions of the Colorado Supreme Court, I think clearly say that the Court cannot.

The decisions are set forth in my brief.

First of all, under the Colorado Administrative Procedure Act, if they aren't introduced there they couldn't be introduced later, at pages 28 and 29, Mr. Justice Goldberg, you would find the authorities which hold that any law of any other state would have to be pleaded or introduced in evidence, the same as any other evidence.

At the bottom of page 28, we cite the Pando against Jasper in the Colorado Supreme Court and the case which I think is controlling in this Court is Hanley against Donoghue, 116 U.S. 1 at page 6.

But here, in Lemon as Mr. Justice Frankfurter used to say, there was no evidence introduced in the record before the Commission and that was controlled by the Colorado Administrative Procedure Act.

The -- there was also not introduced in the record before the Anti-Discrimination Commission and that's the only place for it to be introduced on any burd -- any evidence of any burden, or expense, or inefficiency, or delay, or change of pilots in flight, or confusion in interstate operations, or restriction of its right of free passage.

Now, I think there is an important point which was introduced by the United States into the record before the Colorado Supreme Court.

In the stipulation which was entered into before the Denver District Court, it was agreed that Continental was certified by the CAB to carry mail.

One issue is whether or not they did carry mail and we do not dispute that they did carry mail, but insofar, as there was any contract with the United States to carry mail, there was no evidence of any such contract introduced in the record before the Commission.

And before the Colorado Supreme Court, the Attorney General of United States, by affidavit, brought to the attention of the Colorado Supreme Court, the fact that there was no mail contract between Continental Air Lines and the United States, but they were -- there is no dispute that they didn't carry mail.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Was that a matter of any significance whether they did or not?

Rebuttal of T. Raber Taylor

Mr. T. Raber Taylor: I think it is not, Your Honor, but despite in all of these cases, it's hard to decide which is going to be the controlling one.

One point after the carrying before the Colorado Anti-Discrimination Commission, the petitioner there responded here at Continental, appealed to the Denver District Court challenging the jurisdiction of the Commission.

And at that juncture, Mr. Green introduced in the record, in his answer, a specific reference to the Enabling Act of the State of Colorado passed by the Congress of United States in 1875.

This Act, which was the first Enabling Act of any state passed after the adoption of the Fourteenth Amendment, specifically provided that the Enabling Act of the State of Colorado by its Constitution and the State would make no distinction in civil or political rights on account of race or color.

The Denver District Court after a hearing -- well, there were two hearings but -- and we went once to Colorado Supreme Court and back so I think we can elide that.

But in the second hearing before Justice Black of the Denver District Court, he accepted the argument of Continental Air Lines and dismissed the complaint of Marlon D. Green on the ground of preemption and burden.

On appeal to the Colorado Supreme Court, we obtained a four to three decision in which the Colorado Supreme Court has announced a novel principle that racial discrimination by interstate carrier is a subject which must be free from diverse regulation by the several states and governed uniformly, if that all, by the Congress of the United States.

I think it is important to first view what federal laws are involved.

First, I think we must point out that there has been no federal Fair Employment Practice Act passed involving either employers or employees engaged in interstate commerce.

Since 1944, Congress has perennially considered Fair Employment Practice Act.

I do not have in the brief, but since coming to Washington with better facilities, I have obtained the most recent statement from the congressional committee on House Committee on Education and Labor, Equal Employment Opportunity Act of 1962, HR or Court Number 1370 on the current and the last bill considered and I think this provision from that report is significant.

In recommending a federal Equal Employment Opportunity Act, the report says, “The committee wishes to make quite clear its intention to respect the rights of states and municipalities which carry on effective anti-discrimination programs to eliminate and prohibit discrimination in employment.”

This question of cooperation, I think, has to be reached with the question which Mr. Justice Goldberg addressed to me about the number of laws in the various states.

There are 20 plus laws in the United States and in those states, there are roughly 63% of the population of the United States.

I think we can appropriately take judicial notice that the majority of the employees in the 63% of our population are engaged in interstate commerce and yet to this day, we have not had a federal Fair Employment Practice Act.

Now, the question as to when a Negro or when any minority person should be allowed the opportunity of work certainly goes back to the emancipation proclamation.

And also to the -- to the laws which were enacted in fulfillment of the Thirteenth and Fourteenth and to an extent maybe the Fifteenth Amendment.

The Congress of the United States when it was first considering the admission of Colorado to the union was confronted with the problem of Section 5 of the Fourteenth Amendment which provides that Congress shall have power to enforce by appropriate legislation, the provisions of this article.

I submit that the legislative history recited on pages 17, 18, 19 and 20 of the brief for Marlon D. Green indicates that it was the intention of the members of the Senate of the United States to pass appropriate legislation when they passed the Enabling Act for the State of Colorado.

In fact, it was the criticism of the dissenting voices that the bill as being introduced or being acted on by Congress would have the affect of enforcing into the Colorado Constitution and its organic law, a Civil Rights Bill.

Now, it is my premise that even though the Congress of the United States said that there should be no distinction in civil or political rights and the Colorado Constitution implemented that concept in many details that there is still a residual of legislative authority in the State of Colorado and in its legislative body.

Now, what is this residual of legislative authority which is now in the State of Colorado?

Certainly, it is to fulfill the prohibition of the Fourteenth Amendment with regard to employees who are employed by the State of Colorado which the Fourteenth --

Justice Byron R. White: Mr. Taylor, did the [Inaudible]

Mr. T. Raber Taylor: They don't answer it in their brief, Mr. Justice White.

Justice Byron R. White: Yes [Inaudible]

Mr. T. Raber Taylor: That is right, Mr. Justice.

Justice Byron R. White: [Inaudible]

Mr. T. Raber Taylor: The exact provision which -- position which they take is reflected on page 19 of their brief, Your Honor.

Justice Byron R. White: Basically -- basically [Inaudible]

Mr. T. Raber Taylor: They tell it --

Justice Byron R. White: [Inaudible]

Mr. T. Raber Taylor: They don't differ with this.

They don't dispute the power.

On page 19 of Continental's brief, they tell us, “Continental has not challenged the authority of Colorado under his police powers to enact fair employment legislation nor to apply such legislation to employees of interstate employers generally.

Continental has and does contend that the flight crew members who operate interstate aircraft are a unique group already subject to all embracing federal control.”

Now --

Justice Potter Stewart: Continental's first position, as I understand it, is that there's an adequate state ground to support this judgment that the -- that your Colorado Courts have held that the legislation is not intended to apply the interstate commerce as a matter of the construction of the law, the state legislation, and if that's true, of course that's the end of the case.

Mr. T. Raber Taylor: We would -- that would be true.

That issue Mr. Justice Stewart came up before the Colorado Supreme Court.

The opinion recited, and I quote from the Colorado Supreme Court opinion, this language negatives the idea that there was any attempt on the part of the legislature to legislate upon a matter invoking or involving interstate commerce.

Now, that issue was raised on the -- on Continental's brief, in opposition to petition for cert.

And on page 311 of the record is the petition for rehearing when this error made by the Colorado Supreme Court to inadvertence or otherwise, we do not know, was brought to their attention, they deleted the provision and let the federal ground as the only ground in the case.

If I may --

Justice Potter Stewart: I would certainly agree that if -- if the statute had explicitly said that it was to be inapplicable to interstate carriers by air that you couldn't possibly have any --

Mr. T. Raber Taylor: Oh I --

Justice Potter Stewart: -- federal question here.

Mr. T. Raber Taylor: Yes.

We would never have been here.

Justice Potter Stewart: Right.

And it's the -- Continental still makes the claim that that's the way the Supreme Court of Colorado has construed the statute.

Mr. T. Raber Taylor: Well, I admit that is their argument.

Justice Potter Stewart: There's nothing or whatever to it?

Mr. T. Raber Taylor: That is correct, Your Honor.

I think the petition for rehearing and the deletion by the Colorado Supreme Court makes very clear that the only grounds in the opinion of the Colorado Supreme Court are all federal.

Justice Byron R. White: [Inaudible]

Mr. T. Raber Taylor: Well, there is -- they are in opposite there and inexplicit as to exactly -- their major ground and their major thrust is very clearly in the one statement that you have a subject matter which requires national uniformity.

Now I -- they did affirm the action of the Denver District Court.

They did say that they might adopt the rationale of the Denver District Court.

Therefore, it leads us, I think, to the necessity of facing the issue squarely and with that, I face it with the case of Corsi, Railway Mail Association against Corsi which I submit is the controlling decision.

The -- neither Mr. Westfeldt nor I had access to the briefs which are in this Court in the Corsi case and they state that the issues relating to interstate commerce were neither raised, nor discussed, nor decided.

I submit that the briefs and the record in the Corsi case abundantly show that the issues in that case parallel the issues in this case.

Before the New York Court of Appeals, it was very clear that they were claiming the preemption argument therewith under Article 1, Section 8 with regard to postal service employees.

The employees in the Corsi case were U.S. Civil Service employees hired by the United States.

All of their qualifications passed on and approved by the United States.

And these employees were engaged in the business of writing the postal cards and engaged in interstate commerce.

To the argument that the issue was not involved in that case, I have before me the appellant's brief which was the Association's brief where they raised, the issue of commerce was discussed at page 38.

They also discussed the issue in the appellant's reply brief under 0.2 on the Interstate Commerce Clause.

The brief for the Corsi appellee at pages 12 and 15 points out the fact that interstate commerce, not only the postal power but also the commerce power was being involved and was being invoked.

Also, I think this is important.

Here, Continental's position is that their employees, these flight crew personnel, are a unique group of professional people.

The uniqueness is that they fly aircraft.

The employees in the Corsi case which I submit is controlling were under the provisions of the Lloyd-La Follette Bill with regard to all types of working conditions, hours of employment but they did not have the right to strike.

But we had an area of which under the Lloyd-La Follette Bill of 1912 closely parallels the statutes which Continental claims to be preempted.

I will ask my associate, Mr. Engeman, to proceed with the argument.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Mr. Engeman.

Argument of Floyd B. Engeman

Mr. Floyd B. Engeman: Mr. Chief Justi -- Justice and members of the bench.

I would like to explain briefly why I did not open this morning.

Actually, Mr. Taylor's case is listed as the second case, but Mr. Taylor had the privilege of being connected with this case throughout its trial before the Commission in the District Court and both the times it was in our local Supreme Court.

I was pleased to come into the case after it had been decided by our local Supreme Court.

I thought for this reason that Mr. Taylor was much more familiar with the details of the facts on how this case actually got to this Court.

I think that our local Supreme Court, either purposely or by inadvertence, jumped to a conclusion that was not warranted when they made the statement that Mr. Taylor has called to the Courts attention which is found in our Supreme Court decision and is recited in the record of page 294 that racial discrimination by interstate carrier is a subject which must be free from diverse regulation by the several states and govern uniformly, if at all, by the Congress of the United States.

And then they say the opinions of the United States Supreme Court have established the rule.

And they quote the famous case of Hall versus Decuir which was decided in 1877 and perhaps if we were in 1877, it might be that our Colorado statute would to some extent fall within that case.

However, we're not in 1877, we're in 1963 and many things have changed since that time.

The Court further relied upon the fact that Hall versus Decuir had been cited in the case of Morgan versus Virginia in 1946 and later in Portland Cement Company versus the City of Detroit that was decided in 1960 which I recall, Mr. Justice Stewart wrote the opinion.

This case of Hall versus Decuir involved a statute which was passed in -- shortly after the Civil War wherein a person in Louisiana had the right to share space with a person of another race.

And this Court decided at that time that this indeed would cause a burden upon interstate commerce because at that time, Mississippi could have legislation that did in fact discriminated.

So if you had a colored and a white person riding in the same passage, same cabin, when it came to Mississippi, they would have to change their cabin space or this was a possibility.

However, when you get to the case of Morgan versus Virginia decided in 1946, you have the other side of the picture.

Virginia at that time had a statute which provided that a bus traveling through Virginia had to separate the Negro and the white passengers, a completely opposite situation.

And it's true that in that situation, this Court did strike down that segregation statute in Virginia which applied to interstate commerce.

We think one of the things that our Supreme Court failed to recognize is that this was a discrimination statute which operated against the National Policy.

In other words, this was before a period of time with our line of cases beginning with Shelley versus Kraemer, Brown versus the Board of Education, Barrows versus Jackson, all of which this Court is very familiar with.

I think the important point in Hall versus Decuir which our Supreme Court seemed to refuse to recognize is a statement in that decision when, which this Court said after delineating certain rules concerning interstate commerce, the burden upon it and the sort of thing said that it is far better to leave a matter of such delicacy to be settled in each case upon the view of the particular rights involved.

In other words, Hall versus Decuir doesn't per se say that discrimination or anti-discrimination is a no man's land that can't be touched by state legislation.

It's only if the statute involved creates a burden and it has to be something more than just a slight inconvenience, there has to be a direct burden then the court, this Court, will look at that situation and at that time decide whether or not that statute should be stricken.

I think another thing to keep in mind is that in 1877, it was permissible for a state to discriminate if this was the philosophy of the people of that state against a person of the colored race.

In fact in 1883, the civil rights cases on page 25, we find comment along a line that certain privileges enjoyed by persons of the white race are not obtainable by persons of the colored race, paraphrasing that statement.

However, time as changes as this Court is well aware, our philosophy changes and for this reason, I'm sure the Court has entered the decision to which I have referred previously, Shelley versus Kraemer and et cetera.

I refer to those on page 12 of my brief.

I think that our Supreme Court completely missed the point when they relied upon Morgan versus Virginia as supporting the Hall versus Decuir case.

Now, I'm not saying that Morgan versus Virginia didn't agree with the principle involved in Hall versus Decuir, but that principle is not that discrimination is a no man's land.

It merely says that, if there is a burden then we will look at it and perhaps strike the statute.

And I agree that in Morgan versus Virginia, in view of this statute requiring the separation of the passengers, you do have a burden on interstate commerce.

Another case they refer to is Boynton versus Virginia, again a case of a terminal facility, a Virginia statute requiring separation of people in their eating.

Again, this Court struck that statute as being a burden on interstate commerce.

I think that if one concludes that it is still lawful to discriminate against Negroes in this United States, you have to completely disregard the precedent setting cases which have clearly established that this is not possible.

And I think this comes to the point that, as Mr. Taylor pointed out, there is absolutely no evidence in this record, and I think that's what this Court must consider, of any burden on interstate commerce.

I ask myself in the brief and I ask the Court the question on page 14 but notwithstanding the fact that there is nothing in the record which would indicate a burden on interstate commerce Is it possible if there would be a burden on interstate commerce?

I have struggled to find any sort of a situation that would in fact create this burden on interstate commerce.

There was a bit of illusion in the record at page -- record 84 that because a Negro might fly an airplane that there would be disharmony in the cockpit and also at record 92 and 115, but actually these statements were never substantiated by any competent evidence.

Justice Arthur J. Goldberg: I presume that you [Inaudible]

Mr. Floyd B. Engeman: Well, I'm sure they do.

I --

Justice Arthur J. Goldberg: There's no evidence in the record that [Inaudible]

Mr. Floyd B. Engeman: There is none.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Floyd B. Engeman: In fact I -- I question if there wouldn't be less of a problem in having a Negro and a white pilot controlling this plane than there would be if you had a Negro passenger perhaps in Texas or someplace boarding the plane.

Mr. Taylor has referred to the Enabling Act.

I think that this to some extent is a delegation from Congress to Colorado to enact legislation that would prohibit discrimination against people because of race.

Now, I think that the case is perhaps -- answers this question of whether there's a conflict with federal policy or with federal statute is the Huron Portland Cement Company case which I refer to on page 16 of my brief wherein you have the situation of a steamship that was licensed under federal statute and that license there authorized and went to the inspection of the boilers as to whether the boilers were safe or whether they were not safe.

The City of Detroit had a -- an ordinance requiring certain precautions in view of the smoke that they emitted.

And this Court there held that notwithstanding the fact that this boat was federally licensed instilled in the City of Detroit to make it change -- make it change its boilers so that it didn't emit the smoke.

Now, this certainly raises two points.

First of all, it seems to me there would very -- there would possibly be a direct burden on interstate commerce.

And secondly, that you do have both state and federal legislation acting on almost the same thing, in other words, the boiler system of the steamship.

I think that one reason the Huron Portland Cement Company case is important is the fact that on page 480 -- 448 of 362, United States border, the Court said there that the record contains nothing to suggest the existence of any such competing or conflicting local regulations.

The point was raised that it might be possible that there would be more than one regulation and the steamship might have a boiler that would be alright say for the city of Detroit but if it went someplace else, it wouldn't be proper there.

That's exactly the point that's been raised in our case and I think that in this Huron case, it was much more possible that you could have these conflicts.

I don't believe that we have any such conflict in our -- in the case at bar.

As it's not shown in the record and I seriously question whether any can be shown.

Now, Mr. Taylor, I think, has covered quite adequately the Railway Mail Association versus Corsi.

And I think that as this Court has now been refreshed by Mr. Taylor that the problem of the conflict with, and the question of interstate commerce was considered in those briefs and the Court rejected that argument.

Justice John M. Harlan: You're going to comment on the conclusion of Pennsylvania against Nelson?

Mr. Floyd B. Engeman: Your Honor, I'm afraid that at the moment, I do not have that decision in mind.

A last case which I think is also in this area and of importance is the case of Bob-Lo Excursion Company which we -- I referred to on page 18 of brief.

I must admit that this case to some extent is of limited application in view of the fact that this excursion boat in a true sense probably didn't operate in interstate commerce.

It was operating in a very localized area.

I would like to move on by my -- to the two questions that I think are of some importance that has been raised by respondent.

I think this question was raised briefly from the bench by the Court this morning as to whether there is a state issue in the decision of the Colorado Supreme Court that would prohibit this Court from rendering a decision at this time.

I think respondent's counsel would like for this Court to find that there is such issue and I feel quite confident on page 14 and 15, they have argued that point well to this Court.

I think the -- the fact of that argument is that they are arguing the first decision, and I shouldn't say the first decision, I should say the preliminary decision in our Supreme Court in the case which is for review here.

Mr. Taylor with design brought to the attention of our local Supreme Court in his petition for rehearing and pointed out that if the Colorado Supreme Court made the statement to which Continental has referred, and if that remained in the case then there was no need for four or five pages of argument or four or five pages of decision.

That took care of it by itself and I think the Court realized that if they did retain this point of view that they were indeed making statements that were not necessary.

And I am serious --

Justice Potter Stewart: This wasn't even the first time the Court has done that, isn't it?

Mr. Floyd B. Engeman: Well, I'm sure that they -- our local Supreme Court did not take that out of their decisions so that this case could be brought to this Court.

Justice Potter Stewart: But your court did continue to approve the findings and conclusions and reasoning of the -- what you call it?

The --

Mr. Floyd B. Engeman: Of the District Court --

Justice Potter Stewart: -- the District Court of Denver --

Mr. Floyd B. Engeman: Yes.

Well, they did in a sense --

Justice Potter Stewart: -- which explicitly did rely on the -- at least in part -- at least as one of the grounds for its decision on the fact that this legislation was not intended to apply to interstate carriers, if I -- am I correct?

Mr. Floyd B. Engeman: This I must confess, they made statements.

I have difficulty in arriving at a conclusion as to what they actually did decide.

If this again were true, they could've affirmed our trial court's decision without written opinion.

Justice Potter Stewart: Well, they could have but --

Mr. Floyd B. Engeman: Yes, they did.

Justice Potter Stewart: -- and that wouldn't again be the first time of the Court which could've done one -- something one way actually did it another way.

Mr. Floyd B. Engeman: This is true.

I agree, Your Honor.

But I believe that in reading our decision as a whole and particularly in view of the fact that it's a split decision, you do definitely have before this Court a federal issue.

I think the thing they were really concerned about is can the statute of Colorado be applied to an interstate carrier?

Justice John M. Harlan: But the question is not whether they have a federal reach because among the grounds of the state court's decision was an adequate state premise.

Mr. Floyd B. Engeman: Well, I think in order --

Justice John M. Harlan: The state court goes on both grounds to choose as to some reason it will reach federal questions and also include state grounds because as our truly recognized state grounds.

That should probably be the --

Mr. Floyd B. Engeman: This is true.

I would I agree with this Your Honor but our statute is framed without any limitation.

It says employer of six or more when it was called to the attention of our court that this is what the statute says, they agreed with the petition for rehearing.

They agreed that it applied and then they took it out of their opinion.

Justice Potter Stewart: I -- I know that -- every -- all counsel agree that they took it out of their opinion.

I can't quite find this in the record that made clear to this --

Mr. Floyd B. Engeman: Well, perhaps I'm the one that caused that error if it's an error.

We just deliberated it, Your Honor.

About including the opinion as originally written, it has been removed from the opinion and the opinion as it now stands and the reported decision does not include this language.

Justice Potter Stewart: So the opinion as we have it in the record beginning on page 290 or whatever it is -- the 288 --

Mr. Floyd B. Engeman: Yes.

Justice Potter Stewart: -- is the opinion as amended after the petition for rehearing.

Mr. Floyd B. Engeman: That's right, Your Honor.

Justice Potter Stewart: I see.

Mr. Floyd B. Engeman: That's right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Floyd B. Engeman: That's right.

That's right, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Floyd B. Engeman: That's right, this is a sort of -- I have trouble with this myself on our local court.

The opinion always takes the date that it has when it was originally issued although they may have revised it and so forth.

Well, I feel, Your Honors that beyond any doubt, this statute of Colorado does not create a burden on interstate commerce.

There's been no showing that it does.

There are no statutes that specifically apply and for this reason, I believe that the decision of our local Supreme Court should be reversed.

Justice Potter Stewart: The question of whether or not it's a burden on interstate commerce is quite a distinct and separate question from the one of whether or not federal legislation has preempted it.

Mr. Floyd B. Engeman: Yes.

Your Honor, I'm going to reserve that problem to be covered by counsel which will follow me.

Justice Potter Stewart: I see.

Mr. Floyd B. Engeman: If it's all right with the Court, thank you.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Mr. Jewel.

Argument of Howard H. Jewel

Mr. Howard H. Jewel: Mr. Chief Justice Warren and members of the Court.

California is one of those states which has a Commission which varies in many respects with the Colorado Anti-Discrimination Commission.

We call ours the Fair Employment Practice Commission but its duties and as I understand, the Colorado Commission, its jurisdictions are roughly comparable.

When our legislature enacted the law creating our Fair Employment Practice Commission, it stated its policy which I would I like to read to this Court.

It stated the policy to be as follows.

“It is hereby declared as the public policy of this State that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin or ancestry.

It is recognized that the practice of denying employment opportunity and discriminating in terms of employment for such reasons commence domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers and the public in general.”

Now, it is in defense of this policy of California that we have asked leave of this Court to appear as amicus and it is in defense of this policy that I speak.

As we understand this case, this case poses a rather grave threat to that policy for us here in California.

I note that Continental in its petition states that on page 19 or in its brief states that they do not challenge the authority of Colorado under its police powers to enact fair employment legislation nor to apply such legislation to employees of interstate employers generally to employees of interstate employer.

But I think it's unfortunately true that the admission of the -- of Continental in this case would not be binding upon the Court.

And the burden which the -- which the Continental seeks to urge upon this Court is not a burden which goes only to airline pilots, unfortunately.

As I make it out, the airline pilots are only distinguishable from other employees of interstate commerce carriers and in that, there is a -- a rather particular and specified group of federal regulations which have to do with safety and since Mr. Green in this case has been certificated by the federal authorities, and so far as I know, there has been no word in this record to the effect that Mr. Green was in any way an unsafe pilot or was in any way uncertificated.

That issue so far as the -- as the limitation of this -- of this problem to airline pilots seems to be questionable because the burden as the respondents allege is not a burden which is limited only to airline pilots but it applies generally.

The burden that they allege is one of multiplicity and they stated rather eloquently in their brief at pages 20, 21, 22, and 23.

They point out at such things as a fact that the various commissions have various numbers of commissioners who receive various salaries and that they have different means of enforcing these procedures.

Some by penal sanction, others simply by persuasion, et cetera and they document this more fully for the Court in their Appendix A of their brief which describes in some great detail the multiplicity of state and federal or of state commissions having to do with this subject.

This applies not only if there's a burden in Continental with respect to airline pilots, but I would think there would be so far as multiplicity is concerned, the burden also with stewardesses, perhaps they'd burden also with other Continental employees who are required to physically be -- to physically go from state to state.

And I suspect the number of employees in this respect would be considerable since Continental operates in many states, and I presume, they have occasion for example to send accountants from one of their offices to another.

Well, there's any number of employees of Continental who must travel from state to state.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Howard H. Jewel: I was -- yes sir, I was going to come next to it.

It would apply not only to airline employees but to all other employees who are actually in the business of transportation.

And why not to other employees -- other employers who are actually engaged in interstate commerce, any manufacturer who sends employees from state to state might similarly make the same burdens or make the same argument with respect to the fact that the burden on the commerce here is the burden of multiplicity of state action.

In addition, and I have been told that -- that up to approximately 48% of all California employees for one purpose or another -- or another might be considered to be within -- within interstate to be engaged in interstate commerce or in occupations which affect interstate commerce.

Justice Arthur J. Goldberg: What percentage?

Mr. Howard H. Jewel: Up to 48% Mr. Justice Goldberg.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Howard H. Jewel: Well, it's a -- I agree with you, sir.

It's a figure that is extremely difficult to come by.

I put the question to our Bureau -- chief of our Bureau of Labor Statistics in California and he indicated great difficulty in doing anything that was precise and therefore, I didn't offer a precise figure and absolute numbers, but in any amount, we think it's substantial and we are concerned and that's why --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Howard H. Jewel: So --

Justice Potter Stewart: You're going to get to the preemption argument which --

Mr. Howard H. Jewel: Yes, sir --

Justice Potter Stewart: -- [Inaudible] took part at all.

Mr. Howard H. Jewel: Well -- then I'm going -- let me talk about -- we contend --

Justice Potter Stewart: In your own --

Mr. Howard H. Jewel: Yes.

Justice Potter Stewart: I didn't want to interfere with your plan of argument, but I do hope somebody's going to get to that argument.

Mr. Howard H. Jewel: We contend sir that the governing law of this case is the law of Cooley versus Board of Wardens.

We think that this -- this is an elderly doctrine of law which has been employed by this Court invariably in these matters and not to be employed again in this situation.

As I understand the doctrine of that case, it is simply that this Court will -- will look and any time a piece of state legislation is challenged, as being in conflict with or in opposition to the federal right to -- the congressional right to regulate the commerce, this Court will take a close look.

And to that purpose, it will consider such matters as the pervasiveness of the state legislation, a subject to be involved the need for uniformity versus the right of the state -- of the individual state to legislative matters to protect its own or in accordance with its own police powers.

We think that the whole case is simply a manifestation of the application of this doctrine.

We think that the Morgan case is an application of this doctrine.

We think that the Bob-Lo Excursion case is another application.

In each one of these cases, the Court considered the relative merits of the -- of the commerce on the one side and the right of the State on the other to regulate for its police power.

I think although it's on a different subject matter that Pennsylvania versus Nelson that Mr. Justice Harlan raised was a -- is another example of that situation that had to do with the problem of Communism.

I think that, if I'm not mistaken --

Justice John M. Harlan: Well, that's preemption, isn't it?

Mr. Howard H. Jewel: Yes.

Well, it's a preemption but the -- if I'm not mistaken, the Court considered very carefully and recorded in its report the testimony of Mr. J. Edgar Hoover who discussed the fact that this was a nationwide conspiracy that we were dealing with --

Justice John M. Harlan: This was Commerce Clause preemption?

Mr. Howard H. Jewel: For the pre -- yes.

If I said commerce -- it was not a commerce --

Justice John M. Harlan: You're talking about the burden --

Mr. Howard H. Jewel: Burden and --

Justice John M. Harlan: I think somebody on your side address yourself on preemption.

Mr. Howard H. Jewel: Well, the questions of preemption as I make them out here have to do with -- with the Railway -- the Railway Labor Act and that -- or rather let me take the commerce -- the Federal Communication Act first.

In the preamble to that Act, there's mentioned in there the word “discrimination”.

The Act was passed sometime, I think originally in the 1920s, I maybe mistaken on the date.

There has never been in California, so far as I know, and I have been -- my attention has never been drawn to -- in any other jurisdiction for any of these federal -- federal acts which are urged upon this Court as preempt in this area have ever in any way been applied to anybody who applied -- who applied for a job and was refused because of his race.

Now, there have been one or two cases in which these Acts were extended to cover passengers, the Fitzgerald case was one example of that.

Whether or not, the Congress had in mind the protection of passengers from racial discrimination in the enactment of those laws, I have no idea, but they -- whether they did or not, I shouldn't think that whether they cover passengers who have any significance as precedent in this case which has to do only with employment -- with discrimination in employment.

I can say to the members of this Court that there is no -- there is no such thing in California that there never has been practically any such thing in California as the use of either the Railway Labor Act or the Federal Aviation Act by anybody who claimed he was being discriminated against -- because of his race by an employer who is -- who is subject to one of these acts.

It's a brand new concept that if it exists, it exists in a vacuum so far as I know.

And there are cases to which I can't immediately point on by this Court wherein the Court has stated that unless there'd be some conflict shown with respect to the preemption or unless the subject matter be such so as to indicate that the Congress itself has wanted to exert 100% of its jurisdiction that the Court will not -- will not use or will not hold that the state act is -- has been preempted.

This is a -- this is a completely -- a completely new concept to us and I wonder what would have been the case for example if Mr. Green in this situation had made application to the Federal Commerce Commission or to -- to his -- exert some rights under the -- under the Railway Labor Act.

Certainly, he would have been operating in a brand new area for them because no case has ever come to my attention and I think the Court will hear of none.

There have been none any of the briefs where any of these agencies of the Federal Government who are responsible for the administration of these acts have ever ruled one way or another with respect to this question.

I don't think the matter has ever -- has ever been brought up to them.

Justice Potter Stewart: I have in mind, particularly Section 404 (b) of the Civil Aeronautics Act of 1938 which was in effect at the time that this arose.

I realize that statute has now been replaced by the Federal Aviation Act.

Mr. Howard H. Jewel: This is the act which contains the single word of --

Justice Potter Stewart: It contains different languages.

Mr. Howard H. Jewel: Yes.

It includes the word, if I recall it correctly, discrimination and refers to service in the act.

Justice Potter Stewart: It requires every other carrier not to subject any particular person to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect, whatsoever.

Mr. Howard H. Jewel: In the -- well, Mr. Justice Stewart, I can only respond to you that -- that if that section gives a right to people in Mr. Green's situation, it has never been exercised in the State of California.

We have no -- we have no knowledge of the existence of any -- of any right.

Now, conceivably it could but the case has -- the case has -- has never a reason in which it has and there had been -- even when there had been attempts to apply this kind of language to passengers, they have been -- there have been resistant -- there has been resistance to this doctrine.

It has simply never been -- never been attempted anywhere.

Therefore, I would urge upon the Court, no semblance of any conflict between the Federal Act and then Section 404 (b) and the activities of the State Anti-Discrimination Commission.

The worst that could be said in such an instance is that the Colorado Anti-Discrimination Commission is simply carrying out the intendments of Section 404 (b) of the Federal Act.

Justice Potter Stewart: Then you get very close to Smith -- to Nelson against Pennsylvania, don't you?

Mr. Howard H. Jewel: Well I --

Justice Potter Stewart: In which there was a parity of interest of state legislation of federal law.

Mr. Howard H. Jewel: There is a -- there is a parity of interest there, sir, but if I'm not mistaken, it was the -- it was the position of the Federal Government in Pennsylvania versus Nelson that there needed definitely to be a federal preemption in this area in order that we may come back what was in essence, what is in essence a federal conspiracy.

Justice Potter Stewart: Wouldn't you -- wouldn't you as a representative of California think that you would be happy if your state policy were enforced nationally?

Mr. Howard H. Jewel: No sir.

Justice Potter Stewart: You think it's a good policy, don't you?

Mr. Howard H. Jewel: Well, I was going to come to that.

We're in a strange situation in this case.

Those of us who are advocating in behalf of civil rights measure because we do not ask in this particular case that the policies and experience of California should be translated to the other 49 states, rather the reverse.

We only ask that this Court enable us in California to maintain the policies which our experience, in our state and have led us to believe our wise policies for us.

We are not asking this Court to spread our California law to other states.

We're only asking this Court to maintain our California law in our state.

Justice Potter Stewart: My suggestion is and that the suggestion of the respondent would be that the deed has already have been done.

Section 404 (b) for example does require exactly what you say California requires, but in this case, Colorado says it require and at the field is therefore been preempted.

Mr. Howard H. Jewel: If this -- if this is the situation sir, then I for one, I'm learning it for the first time.

Justice Potter Stewart: Well, nobody said --

Mr. Howard H. Jewel: I'm not complaining about that doctrine certainly and if this Court wishes -- wish to announce that doctrine, I'm sure representing the State of California in our interest in the matter, we would be very gratified.

Justice Arthur J. Goldberg: General, you're saying it another way, [Inaudible], isn't that correct?

It has never been applied to employees, isn't it?

Mr. Howard H. Jewel: That is true, sir.

But --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Howard H. Jewel: I believe that so, sir.

We would have then -- if that were the situation, all employees in California would be treated equally regardless of whether they were subject to federal or state law.

But if the Colorado, the doctrine as announced by the Colorado Court is reaffirmed, then we will have two classes of employees in California; those who have the protection of FPP and those who have the protection of some federal law, which to date has never been -- has never been --

Justice Potter Stewart: We are talking about a specific industry and specific regulation of a specific industry.

We are not talking about federal law generally.

We are talking about the airline industry in United States and the very pervasive federal regulation over it.

We're not talking about generalities.

We are talking about preemption in this field.

Mr. Howard H. Jewel: But --

Justice Potter Stewart: I hope you'll address yourself to that.

I've been talking about it, but it but I haven't heard very much about it from you.

Mr. Howard H. Jewel: Well, sorry.

I tried to express my concern that it would be very hard for us to specifically delimit this on any ground that I know of to one particular class of employees.

Maybe your own is in my assumption, but --

Justice John M. Harlan: Put that thing in other way if you're representing an institution itself and the construction of the statute of the state is that it would be segregated and the opposite of the matter is I suppose the first thing you'd be arguing is the federal acts preempt the state [Inaudible]

Mr. Howard H. Jewel: That --

Justice John M. Harlan: -- that would be a [Inaudible]

Mr. Howard H. Jewel: -- that might conceivably be so sir in a diff --

Justice John M. Harlan: [Inaudible]

Mr. Howard H. Jewel: Well, I have no -- as I say, I would agree that it ought to work both ways and -- but I just have not known of the existence of this doctrine.

Justice John M. Harlan: With reference to the evidence of this case.

Justice Byron R. White: Would you -- would you apply that [Inaudible]

Mr. Howard H. Jewel: Yes sir, we would and we do up to -- and have.

We have -- we have always felt that we had jurisdiction over these kinds of employees.

Justice Byron R. White: [Inaudible]

Mr. Howard H. Jewel: No sir, there is none and none according to age.

Justice Byron R. White: Age?

Mr. Howard H. Jewel: But there is one about business establishments.

All people are entitled of the equal services of business establishments with respect to it.

I would have.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Mrs. Siegel.

Argument of Shirley Adelson Siegel

Ms Shirley Adelson Siegel: Mr. Chief Justice, members of the Court, and may it please the Court.

I want to get to this burning question of preemption.

But first, I wish to state very vigorously that I am here today in behalf of the State of New York which sets the standard for these state laws.

We're the Granddaddy State from which all the others followed and I represent also a group of -- well over a dozen other states that have that have high discrimination agencies and they are vitally concerned with the outcome of this case.

Not out of any petty jealousy for their jurisdiction, but they are vitally concerned that a verdict for the respondent here might create a very serious vacuum in the matter of protections against racial discrimination in employment and also unsettle the foundations of our jurisdiction because --

Justice William O. Douglas: Wasn't -- wasn't New Jersey a quote “Granddaddy”?

Ms Shirley Adelson Siegel: New Jersey, very quickly followed in our heels made its law effective the same date [Attempt to Laughter] but we had -- it developed the law as the result of a traveling commissions holding hearings and presenting proposed bills from one of the state to the other period of year or so, and so we think that --

Justice John M. Harlan: [Inaudible]

Ms Shirley Adelson Siegel: They may have done that too, but I believe that New Jersey would be the first to yield to us the honor as the -- a private jurisdiction in this area.

They certainly are in touch with us for advice in our administrative construction often enough.

I am sorry, Mr. Justice Brennan.

I guess I regret that my valuable time may be slipping in this give and take.

We've have lot of experience in New York.

We've had thousands of cases involving this racial discrimination in employment.

And approximately 7% of these have involved interstate carriers.

In the early years, there were many railroad cases and in these many dozens and dozens, in fact, a couple of hundred railroad cases, the railroads perhaps they squirmed.

I don't know what went on behind their common experience, but they accepted the conciliation procedures of the state commission, the first Negro brakeman was put on in one railroad and so on.

And these breakthroughs, each of them, although maybe only a handful of persons were concerned had an enormous significance.

As I'm sure, this Court will appreciate.

I need not belabor the point here.

In the case of the airlines, we have had to date done business with 25 airlines all of an interstate in New York alone.

Now, these airlines haven't gone screaming to the Civil Aeronautics Board to give them the statement of preemption to bail them out.

I might mention it has been suggested to me about the colloquy here this morning that the Arabian-American Oil Company didn't hesitate to go screaming to the Secretary of State when our state commission against discrimination was asserting jurisdiction over their employment practices in New York, and get a letter which stayed the hand of a commission for a time, made it hesitate, the matter had to go through the courts until that proceeding was settled.

Not only in our experience was close to a hundred cases involving airlines, almost half of those involving flight crew of pilots, as well as hostesses and we had perhaps the dubious honor of having been responsible for the first Negro hostesses, Negro stewardesses on airlines in our region.

Justice Potter Stewart: Was that Mohawk?

Ms Shirley Adelson Siegel: The Mohawk, right.

Not one of these airlines has gone to court about this.

We've had no litigation on the question of our jurisdiction over interstate employers of any kind and no litigation over the question of preemption in the case of carriers.

Now, on the preemption point, I'm sure that it's in the -- a back of the minds of a -- of all of you, but I feel that I must state again and that is that even if the Civil Aeronautics Act or the Railway Labor Act which was -- has also then brought to question here should create a right in this field and we think that's pretty doubtful, but even if it should, that wouldn't close our question because there certainly is a great deal of precedent in this Court for permitting state regulation which does not burden commerce and is in harmony with the national policy to proceed.

In fact, in one of those cases, California v. Zook, there was some language, which we found particularly interesting for this case that we cite at the page in our brief and that was that -- sorry.

I'm sorry I've been unable to put my hand, oh yes, it is difficult to believe that the Interstate Commerce Commission intended to deprive itself of effective aid from local officer's experienced in a kind of enforcement necessary to combat this evil, aid a particular importance in view of the ICC's small stock than citing some other reports of the ICC, that's California v. Zook, 336 U.S. 725.

Now --

Justice Arthur J. Goldberg: Mrs. Siegel.

Ms Shirley Adelson Siegel: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Ms Shirley Adelson Siegel: Yes, I would like to.

Justice Arthur J. Goldberg: [Inaudible]

Ms Shirley Adelson Siegel: Before every Congress since 1942.

Justice Arthur J. Goldberg: [Inaudible]

Ms Shirley Adelson Siegel: I thank you for making that point and because it's certainly our belief --

Justice Potter Stewart: Just on that point.

Ms Shirley Adelson Siegel: -- that it wouldn't have in this area a fair employment.

Experience has shown that the only effective approach is a rather elaborate administrative procedure which includes a provision for conciliation and so on.

Now, this language about discrimination in the Civil Aeronautics Act is -- it reflects in our opinion, a time worn common law right of equality of opportunity for service.

It's an integral part of our tradition going way back before there was a statute that common carriers should not discriminate and I think basically that's the throb, the heartbeat before the word discrimination and the language in air transportation, the language in service appears everywhere in the Civil Aeronautics Act where you have language about discrimination.

Section 402 (c) declares that a policy of the Act, the promotion of adequate, economical and efficient service by air carriers without unjust discriminations.

Section 484 (b) provides, no air carriers shall subject any particular person in air transportation to any unjust discrimination.

Justice Byron R. White: [Inaudible]

Ms Shirley Adelson Siegel: I am a liberal constructionist that I would personally and I believe that I may say for the State of New York that it wouldn't make us unhappy if this language were extended to cover that, but candidly, we don't think it does.

If it is, that's fine because we believe that it would certainly not displace our jurisdiction in any event.

Justice Byron R. White: This isn't fatal --

Ms Shirley Adelson Siegel: It is not fatal and of course in an area like this where this police power of the state has such a strong interest in the enforcement of the regulation, unless there's a clear congressional indication, a clear congressional indication that our jurisdiction has to be displaced, such displacements would not take place and on the contrary, there's perfect harmony here.

Burden hasn't been shown and it's very similar I believe to the railroad cases.

A man, a locomotive engineer who drives in interstate railroad has the nation's safety in his hand and in the same way as an airline pilot.

It just translates in different terms.

The railroads are very heavily regulated by the national government and yet this Court again and again has sustained local regulations enacted under the police power which for example required all locomotive engineers to take an eye examination or said that men who were driving trains would have to have an examination and if they were -- if intemperate habits, they would be disqualified, state rules that require full train cruise, state rules for adding a caboose to the train for the comfort of the railroad employees, these had been sustained.

Justice Potter Stewart: Others however have been stricken down, have they not?

Ms Shirley Adelson Siegel: Well, if you examine those, for example, Southern Pacific against Arizona, a case --

Justice Potter Stewart: Well, that's the -- is that the length of the train?

Ms Shirley Adelson Siegel: That was the length of the train.

It was a dramatic case and there it was said like these passengers in Hall v. Decuir every time you came to a state boundary, you have to stop and change the length of your train and so on.

There was an element of burden there too.

But --

Justice Potter Stewart: How about the --

Ms Shirley Adelson Siegel: If you will note, Mr. Justice Stewart in the opinion of the Court in that case that it was not so clear as the majority recorded there that this statute really was necessary for safety.

They said that statistics have shown that because the length of the train was limited you therefore had to have more trains that maybe in the long run, you ended up with just as many accidents, and so the statute itself was of some questionable value.

We don't have any such problems here.

Justice Potter Stewart: And there was that Curtain case, I can't even remember the caption of the case, Curtain, do you know that?

Ms Shirley Adelson Siegel: I'm sorry, I'm not --

Justice Potter Stewart: Well, I don't either but there is such a case on which I think they struck down the state legislation.

I think, Curtain [Inaudible] locomotive --

Ms Shirley Adelson Siegel: I would just like to say in closing that so far as we're concerned, we are dealing here with an enormous problem and we in New York, I think, know more than anybody the kind of consistent attention that a problem like this requires to bring about results and of the --

Justice John M. Harlan: You're not suggesting that New York was preemptable?

Ms Shirley Adelson Siegel: [Attempt to Laughter] New York has some useful experience on the basis of which --

Justice John M. Harlan: What year was the --

Ms Shirley Adelson Siegel: 1945.

Justice John M. Harlan: In 19 what?

Ms Shirley Adelson Siegel: 45.

Justice John M. Harlan: 45.

Ms Shirley Adelson Siegel: New York law became effective.

And we say only that it's not the issue here that the federal government has acted in such a clear way and so demonstrated it so unmistakably it's a right to preempt this field.

We have a going pattern of state laws which are doing a job.

They have not resulted in turmoil in interstate transportation.

On the contrary, they have been doing an effective job and have worked in accordance with the highest national policy and we earnestly urge this Court to reverse the decision of the Colorado Supreme Court.

Thank you.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Mr. Westfeldt.

Argument of Patrick M. Westfeldt

Mr. Patrick M. Westfeldt: Mr. Chief Justice, may it please the Court.

I believe that it's inescapable and it's not disputed that in this case we have an order of a state commission which is unskilled in the field of aviation that has ordered a federally certificated commercial airline to hire a particular person as a pilot to fly its aircraft.

This is the fact and tenor and meaning of the order.

Now, how did the Commission get to that point?

The Commission got to that point by acting as it is required to act under the Colorado statute in any case over which it has jurisdiction.

The Colorado prohibition against discrimination is against discrimination in many facets of an employer-employee relationship where the employer-employee, I beg your pardon is and I quote “otherwise qualified.”

Now --

Justice Arthur J. Goldberg: Mr. Westfeldt, can you tell us [Inaudible]

Mr. Patrick M. Westfeldt: Yes I will, Mr. Justice Goldberg.

Mr. Green arrived in Denver on June 24th.

He was there for the 25th and 26th, and he took a link trainer check test and he had an interview and he had a flight test.

Continental's decision after that action was that Green was eligible and was qualified.

He was wired by another one of the supervisory people Wyler on July 5th that he hadn't been included in the July class.

That wire went to his old home address in Arkansas instead of his Michigan address.

So Mr. Green on the 8th called Continental, talked to Mr. Bell, Vice President of Personnel.

Mr. Bell told him that he was eligible and was qualified, but he hadn't been included in the July class.

The record in the case shows that there was a particular file where all of the eligible and qualified pilots named and applications were kept.

On August 6th, right about August 6th which is a month later, the Associated Press news story which Continental saw from an Albuquerque newspaper, but which it described at some length in the record and the source of it of course was Mr. Green's discussion with the reporter in Lansing, Michigan and they picked up there.

At that point, Continental, Mr. Bell exercising its judgment said, “Here's the man with not only nationwide notoriety, but he also has a fair employment practice cases pending against other aviation employer -- employers seeking a job.

We don't like this notoriety.

I don't know if it's good for him or not, but we don't like it if he is going to follow ahead with those cases it will interrupt this training and service in Colorado.”

So, it was at that point and upon receipt of that information that the company decided that Green wasn't qualified for the position.

There is no question about his being able to apply.

We never said that.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: That's right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Well that --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Mr. Justice Goldberg --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: No, the record does not show specifically or really even indirectly.

It shows that the Continental people and the investigators had not been able to determine a specific reason.

But the point --

Justice Arthur J. Goldberg: Well, what would you say [Inaudible]

Mr. Patrick M. Westfeldt: Yes, I'd say that the reason were -- I would say that the reasons were that there were at least six and maybe more by that time named in the file and the first four that came off the top were employed and put into the regular program which first includes pilot training and then during the first year means probationary employee.

Justice Potter Stewart: Well, Mr. Westfeldt, in the posture of the case as it is here now before us, don't we have to assume that he was refused employment by your company on the basis of his race.

Whether or not this turns out to be true as a matter for the -- for your unemployment or made for your non -- whatever this Commission is called as reviewed by your state courts, but as the case is presented to us now, there's no issue at all, is there, unless the only basis on which he was refused employment was because he was a Negro.

Justice Byron R. White: You mean it had to be [Inaudible]

Justice Potter Stewart: That's what I mean?

Mr. Patrick M. Westfeldt: Your Honors let me say that I do not believe if that is entirely necessary.

We do have a commission finding here.

The commission finding is clear.

It says it's conclusive that Continental discriminated on account of race, but there is no court decision in Colorado either in the trial court or in the Supreme Court --

Justice Byron R. White: One way or another isn't the [Inaudible]

Mr. Patrick M. Westfeldt: Not by this Court.

That's correct, Mr. Justice White.

But even proceeding from that point, and I don't see any point spending any more time on it, the basis or one of the necessary elements in the conclusion of the Commission that Continental discriminated on account of race was its decision as to pilot qualifications which not only made a decision that he was qualified, but that he was better qualified than any of the other applicants.

This notwithstanding the fact that the only evidence in the record was that when the check pilot, he didn't grade according to different standards of qualification.

He just said okay and not okay.

Now, it is true that this Commission --

Justice Potter Stewart: He did -- he did say okay on this man, did he not?

Mr. Patrick M. Westfeldt: Correct.

It is true.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Was there any contention on the part of the Continental that the others were better qualified than this man?

Rebuttal of Patrick M. Westfeldt

Mr. Patrick M. Westfeldt: The contention, Mr. Chief Justice, was that no rating was made as to who was better qualified and who wasn't better qualified.

I really believe that that goes to the heart of the matter because I don't believe that if the policy of Continental Air Lines or any other airline to really grade finally on initial pilot flight checks.

Justice John M. Harlan: For sure, they were not trying out that issue.

Mr. Patrick M. Westfeldt: No, we're not.

Justice John M. Harlan: This case is here on findings of the Commission that this man was excluded solely on the grounds of race.

You're not -- your state court didn't disturb those findings, you're not contesting them here and that's the platform that we've got to start from.

Isn't that all there is to it?

Mr. Patrick M. Westfeldt: Well --

Justice John M. Harlan: Why do we get into these collateral issues with this -- this case is here in that posture?

Mr. Patrick M. Westfeldt: I think it is here in that posture, Mr. Justice Harlan, but I also think that in considering this statute and the order of the Commission that is before the Court, the fact that the statute confers upon the Commission a duty to pass upon employee qualifications is important and should be brought out to the Court because in that argument on the diversity of state regulation, this is another area of discretion and judgment and decision by the particular commission that has to be exercised and which we think was -- would result in inconsistent and conflicting result.

Justice John M. Harlan: Yes but if you've been able to show the Commission here that this man apart from his color was not a qualified pilot, the commission would have had no other -- no interest in it, I take it.

Mr. Patrick M. Westfeldt: And that would have been the end of the case.

Justice John M. Harlan: Why shouldn't they?

So -- why do -- why don't you get down to the question really -- the bottom of this case, questions of law.

Mr. Patrick M. Westfeldt: I will proceed, Your Honor, first to the -- first point of -- part of our legal argument, the independent state ground.

We know and we pointed out in our brief that the Colorado Supreme Court did delete one sentence from the opinion in its original form.

The only order entered by the Colorado Supreme Court at that time is the order denying petitions for rehearing on page 314 of the record.

Two petitions have been filed, one, by my brother Mr. Taylor for Mr. Green on another subject, and one by the Commission asking that the particular sentence be deleted.

The order denying the petitions for rehearing makes no remark whatsoever about the sentence deleted.

Justice Potter Stewart: But the sentence was deleted.

Mr. Patrick M. Westfeldt: The sentence was in fact deleted.

Justice Potter Stewart: And where is the sentence?

Where is that in the record?

Mr. Patrick M. Westfeldt: The only place where the actual language of the --

Justice Potter Stewart: Page 311?

Mr. Patrick M. Westfeldt: On 311, the second sentence in the second paragraph is the particular -- it should be in quotation marks or something like that on the record but that's the sentence that was stricken out of the Colorado Supreme Court's opinion and in the original opinion --

Justice John M. Harlan: It's just you quoted on page 15 of your brief, don't you?

Justice Byron R. White: [Inaudible]

Justice Potter Stewart: It begins with the -- this language negatives the idea -- is that -- is that it?

Mr. Patrick M. Westfeldt: This language negative the idea that there was any attempt on the part of the legislature to legislate upon a matter involving interstate commerce.

Justice Potter Stewart: That's -- and that's the sentence.

It was originally in and there was there -- thereafter taken out --

Mr. Patrick M. Westfeldt: That's correct.

Justice Potter Stewart: -- without comment.

Mr. Patrick M. Westfeldt: Without comment and the order -- at least the language of the order is just a denial of the petitions for rehearing.

It makes no reference to the modification of the opinion or any explanation thereof.

Justice Arthur J. Goldberg: But don't you have to delete the entire petition for rehearing when this thing was pointed out, that the reason why the petition [Inaudible] the elimination of this sentence is the [Inaudible] the decision was on the federal constitutional ground for the whole purpose of the petition for rehearing.

Mr. Patrick M. Westfeldt: That's right, Mr. Justice Goldberg, but even the petition for rehearing doesn't go to any of the other things.

It is in the opinion of the Colorado Supreme Court which I maintain, I argue, was still there and still controlling.

Now, the particular items to which I refer are on the record at page 293 in the first full paragraph.

The second sentence the Court said, “The only question resolved was that of jurisdiction.”

Now, in that sentence they're talking about the trial court, and in the next sentence, “The trial court determined that the Act was inapplicable to employees of those engaged in interstate commerce and judgment was based exclusively on that ground.”

Then further down the page is the strong approval of all of the findings and conclusions to the trial court saying that they might well be adopted in toto in the opinion of the Colorado Supreme Court and further saying that -- stating that the opinion of the Colorado Supreme Court was not exhaustive on the subject but just for the sake of brevity, he wouldn't say a few of the opinions that he considered controlling.

Now, notwithstanding that fact, there is also in the opinion of the Colorado Supreme Court -- beginning at page 290 of the record.

The applicable sections of the Aeronautics Act of Colorado passed in 1937 and the Colorado Supreme Court itself without changing any of that said, thus in 1937, the legislature gave recognition to laws, to federal laws and regulations in the realm of aeronautics.

And in those particular statutes, the introduction to the navigation of aircraft and the license for navigation is the recognition by the Colorado State Legislature that the public safety requires and the advantages of uniform regulation made desirable.

The federal control -- and the federal control on these particular points include qualifications and licensing of flyers.

Justice John M. Harlan: You also got this statement of the -- next to the last paragraph of the opinion in which your court says the State of Colorado either does or does not have power to legislate concerning racial discrimination by employers engaged in interstate commerce and it goes on to conclude that there's no power.

Mr. Patrick M. Westfeldt: On what page of the record?

Justice John M. Harlan: Well, I'm using the opinion from --

Justice Potter Stewart: It's page 296 of the record.

Justice John M. Harlan: I'm using the petition for cert here which I find --

Justice Potter Stewart: It's 296 of the record beginning in the State of Colorado.

Justice John M. Harlan: The State of Colorado.

Mr. Patrick M. Westfeldt: That's correct, Your Honor.

Justice John M. Harlan: The question I'm putting to you is this.

I'm wondering whether it's a fair reading of this opinion to say that what actually the Colorado Supreme Court did was to say that they had to include -- they had to construe -- they had to construe their statute as they did because of their views as to the constitutional question -- federal constitutional question.

Mr. Patrick M. Westfeldt: Well --

Justice John M. Harlan: And if they did that that certainly would not be an adequate state ground.

Mr. Patrick M. Westfeldt: If they did that that isn't an adequate state ground.

As I read that opinion and compare it with the trial court's opinion and I see what seems to me to be the adoption of it and the actual construction of the trial court's opinion because they construe the trial court's opinion as saying the Act is not applicable.

And with that construction, and that approval, and that adoption, I think that's the law in Colorado from the Colorado Supreme Court's opinion.

Therefore, I do believe that there isn't inadequate independent ground.

And I think it's adequate and dependent as I connect it with the burden of preemption questions.

If the statute is construed as not applying then the Commission doesn't have jurisdiction.

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: Well, Mr. Justice White, many things were argued below and from the very beginning, those particular issues had been argued.

They along with the others were an important element of the trial court's opinion.

A lot of these other items, these state constitutional questions and things of that nature were not with the merits the question of discrimination, regulations of the Commission, none of those have ever been ruled on, but the Colorado Supreme Court in essence, I believe, ruled on the same grounds that the trial court did.

The only one -- the one thing that it didn't mention in the Supreme Court opinion that the trial court did mention was a question that we've had urged and argued, the preemption by federal regulation under the government contract of executive orders.

Justice William J. Brennan: [Inaudible]

Mr. Patrick M. Westfeldt: That's correct, Mr. Justice Brennan.

Justice William J. Brennan: [Inaudible]

Mr. Patrick M. Westfeldt: Well, I don't recall any -- they certainly -- Mr. Justice Frankfurter's opinion really goes to those issues.

I don't know that Mr. Justice Pringle's does.

Justice William J. Brennan: On what ground the [Inaudible]

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: Well, Mr. Justice White, on that I can only say that this other issues were vigorously argued and briefed and there was a lot of opposition and conflict about them.

And that the Department of Justice and others intervened as amici in the case in Colorado so that I would think that it would be perfectly logical for the Court to do what we believe they did hold no jurisdiction on three bases.

The statute doesn't cover it and burden on commerce and preemption, but obviously there's an argument on the other side but I think it's a fair construction of the opinion of the Colorado Supreme Court.

Now, I'd like to move, if the Court please, to the issue of preemption.

So the discussion has already been had about Section 404 (b) of the Civil Aeronautics Act.

The language of that particular provision of the statute is sweeping.

Also that language in substance is identical to Sections 31 and 216 (d) of the Interstate Commerce Act.

This Court has -- had the Commerce Act anti-discrimination provisions before it in many cases, particularly the Mitchell case, the Henderson case and the Boynton case.

Now, those cases as you will recall barred racial discrimination among -- on passengers in interstate vehicles and persons using restaurant facilities at a bus terminal that was an integral part of the transportation system.

And in Henderson, particularly, this Court pointed out that the material parts of Section 31 of the Commerce Act had been in that statute since 1887.

And from the very beginning, the Interstate Commerce Commission had recognized its application to discriminations between white and Negro passengers.

So from the very beginning, it was apparently upheld by the administrative agency that that anti-discrimination provision related to matters of racial discrimination.

In Mitchell, the Court points out that there was no intent by the Congress to exempt any discrimination from the coverage of the Act.

Now, following the lead of this Court, the Court of Appeals for the Second Circuit in 1956 ruled in the Ella Fitzgerald case against Pan American.

It there held that 404 (b) prohibits discrimination against persons including passengers and that although agencies --

Justice Potter Stewart: You have these citations in your brief?

Mr. Patrick M. Westfeldt: Yes, Your Honor.

Justice Potter Stewart: I'm just trying to find the part of the brief which you're discussing, the practical identity with the language of the Civil Aeronautics Act to that of the Interstate Commerce Act.

Mr. Patrick M. Westfeldt: Yes, Your Honor.

It -- where we have the Mitchell and Henderson and Boynton cases.

Justice Potter Stewart: Around page 44.

Mr. Patrick M. Westfeldt: Page 44.

I believe we set forth the statute to --

Justice Arthur J. Goldberg: 44.

Mr. Patrick M. Westfeldt: The identity of a language is -- is I think unquestionable, but the --

Justice Potter Stewart: Has this language -- this 1930 Act language survived in the new federal --

Mr. Patrick M. Westfeldt: It was reenacted in the 1958 Act.

Justice Potter Stewart: In haec verba (Voice Overlap).

Mr. Patrick M. Westfeldt: It's verbatim.

I know of no changes.

Now, the --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: I don't know whether it has or not, Mr. Justice Goldberg.

I know of no case where it has been applied to an employee.

However, in the Civil Aviation Act, the word “person”, this discrimination relates to a person and the definition of the word “person,” it just says it means an individual.

So that it's in --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Yes, I have, Mr. Justice Goldberg, and I think that there's other federal legislation too, but on this particular point, I am taking that position.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Yes on that basis and the broad statutory scheme.

There's an agency procedure and what's more, this particular agency also has some expertise in light proof qualifications.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Well, they -- when the Civil Aeronautics Act was passed in 1938, no action was taken.

I don't believe until 1961 by the Board in relation -- of race relations matters.

But beginning in 1961, when -- and 1962 when the Board under Section 1007 of the Act requested the Attorney General to proceed with the terminals in Montgomery and Birmingham, the three or fourth -- the actions were brought under 404 of the Act.

Now, the argument certainly can be made as far as I know that nobody in Mr. Green's position or a comparable position to that has ever taken a case of this kind of Civil Aeronautics Board.

I haven't seen that happen.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Do you believe that the -- that the federal law is sufficiently comprehensive to afford this man in these circumstances a remedy in the Federal Courts or before a Federal Agency?

Rebuttal of Patrick M. Westfeldt

Mr. Patrick M. Westfeldt: Yes, Mr. Chief Justice, I do.

And --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: You think -- you think there is such a proceeding.

What kind of a proceeding would that be?

Rebuttal of Patrick M. Westfeldt

Mr. Patrick M. Westfeldt: The agency proceeding in the first instance would be to file a complaint under 1002 (a) of the Civil Aeronautics Act with the Civil Aeronautics Board and assert violation of the Act under 404 (b).

Under 1002 (c) of the Civil Aeronautics Act, the Board has power to issue an order to compel compliance with the Act.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: So you ask us in this proceeding to hold that you do not have jurisdiction in the State of Colorado but that the federal -- that the Congress has given jurisdiction to the -- to the CAB and that this man does have a remedy in that -- through that agency.

Rebuttal of Patrick M. Westfeldt

Mr. Patrick M. Westfeldt: That's correct, Mr. Chief Justice.

I think that he also has some court remedies.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: And court remedies independent of the CAB.

Rebuttal of Patrick M. Westfeldt

Mr. Patrick M. Westfeldt: Even under the CAB, under the Fitzgerald case.

Justice Potter Stewart: Fitzgerald was a --

Mr. Patrick M. Westfeldt: Fitzgerald was a 404 (b) case --

Justice Potter Stewart: But --

Mr. Patrick M. Westfeldt: -- and it was a damage suit and --

Justice William J. Brennan: A passenger?

Mr. Patrick M. Westfeldt: A passenger, that's correct, that's correct.

Justice Potter Stewart: And brought directly in the Federal District Court, wasn't it?

Mr. Patrick M. Westfeldt: Brought into the Federal District Court.

Justice Potter Stewart: But on the theory that 404 (b) conferred Federal District Court jurisdiction.

Mr. Patrick M. Westfeldt: That's correct, Your Honor and in that particular case, Pan American Airways moved to dismiss the complaint saying there was no diversity of citizenship and no federal question because they said it was a simple contract question.

But the Court overruled Pan American on that point and said this is a federal law question, it's under 404 (b).

404 (b) covered persons including passengers and there was a ruling of the Court.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: This, I suppose, would apply to stewardesses the same as pilots in your opinion?

Rebuttal of Patrick M. Westfeldt

Mr. Patrick M. Westfeldt: Oh, I think it would Mr. Chief Justice.

I think it would and I think that the provision of 404 (b) is about as broad as it can be.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Yes.

Do you have any response to what the Attorney General of New York, Mrs. Siegel, had to say about the way they have handled it with 25 different airlines in their state without any -- without a point of this kind being raised?

You can answer that after -- after lunch.

We'll recess now.

Rebuttal of Patrick M. Westfeldt

Mr. Patrick M. Westfeldt: Thank you, Mr. Chief Justice.

Print this transcript Transcript: 

Argument of Patrick M. Westfeldt

Chief Justice Earl Warren: Mr. Westfeldt, you may continue your argument.

Mr. Patrick M. Westfeldt: Mr. Chief Justice, may it please the Court.

Immediately before the recess, you asked me to address myself to some comments of Mrs. Siegel.

Mrs. Siegel pointed out that the New York Commission had dealt, first of all, with many railroads and that is involving railroad employee.

On this particular point, it is pointed out on page 21 of our brief that there is a vast difference in the intensity of regulation of railroad employees and persons like flight crew personnel on interstate airlines.

And the Federal Government doesn't even provide a license for a railroad engineer or truck or bus driver, but obviously there's a vast degree of licensing, certification, checking, re-examining, things of that nature in regard to pilots.

Next, she --

Chief Justice Earl Warren: But you don't have -- for stewardess, you don't have to have a federal license, yet you say that you can't -- this Commission doesn't have jurisdiction over them?

Mr. Patrick M. Westfeldt: Mr. Chief Justice, on that point, when we get to the quest -- in the question of preemption, there is not only the subject of federal law coverage, but the next step bridged the gap whether it has to be exclusive.

I do believe that between different classes of employees, there may be different degrees of federal regulation and the hostess and the pilot do present an example of that.

Hostesses for example are not subject as pilots are under Section 609 of the Civil Aeronautics Act, to constant examination and reexamination and proficiency checks and qualification judgments by federal agencies.

And there, for example, might be a difference in an expression of a congressional intent and for that reason, I really -- I say this.

I say that the substantive coverage of federal law as embodied in 404 (b) of the Civil Aeronautics Act is sweeping and broad.

I think with respect to flight crew members and pilots particularly, and the hostess is not a flight crew member.

She rides on an airplane, but a flight crew member is defined in the Civil Aeronautics Regulation as including pilots and flight engineers.

This is a particular -- a particular group, but the evidence of an intent of Congress to establish in exclusivity, exclusive regulation with respect to pilots, I believe is much clear than with respect to any other position on an aircraft.

Next, Mrs. Siegel also pointed out that there had been conciliation and persuasion in the relationship between the New York Commission and various airlines, and pointed particularly to the hostess on mobile.

But I think it's also true that she indicated to this Court that these airlines had not gone to the court and I don't believe that she or I or anyone else knows of any court case which has upheld an order of a state anti-discrimination requiring affirmatively an airline to hire a pilot.

I don't believe that such a decision exists.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Mr. Justice Goldberg, I -- I do not know of anything in the legislative history on 404 (b).

I do know what this Court has held about 3 (1) and 216 (d) of the Interstate Commerce Act and what this Court considered the intent of Congress to be and that is they considered that no discrimination was exempted, no discrimination was exempted and I think that's critical --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: I do not believe there is, Justice Goldberg.

If there is, I don't know of it.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: I don't know of it, Mr. Justice Goldberg.

I haven't looked at it recently.

I don't recall the details of it.

I -- I argue my position from the parallel of practically identical statutes and these other expressions by this Court.

Now --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Yes, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: I believe that we are, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Well, this was argued in the court below.

We did not present that question for review before this Court.

The Justice Department contended that we weren't because we didn't have a written contract to carry mail.

My view on it, it doesn't make any difference whether the contract is written or not, we are required to carry it by statute and we're required to be compensated for the service by statute in effect --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Yes, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: By the --

Justice Hugo L. Black: [Inaudible]

Mr. Patrick M. Westfeldt: By the United States Government.

That's correct.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: I would call it a statutory contract.

It's embodied in the law itself.

You're required to carry it in the fees prescribed I think by the Civil Aeronautics Board.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: That's correct, constantly, on all aircraft.

Justice Tom C. Clark: You're talking about the [Inaudible]?

Mr. Patrick M. Westfeldt: No, Mr. Justice Clark, there is a mail pay subsidy but that is different from just a straight fee for compensation for mail.

And --

Justice Tom C. Clark: It depends on airlines?

Mr. Patrick M. Westfeldt: It depends on the airline.

I think the smaller feeders may still have mail pay subsidies.

Continental is a small trunk.

It doesn't have a mail pay subsidy but it is compensated for carrying mail.

I think that -- I want to touch briefly also on the subject of the Railway Labor Act.

And I particularly want to touch on that because I believe the decisions of this Court and the Courts of Appeals that have followed it also provide federal substantive law coverage.

The subjects covered in the Railway Labor Act, they're not only collective bargaining, normal labor relations problems, but the general area is described as rates to pay rules in working conditions, that must be kept in mind because we all know the broad inclusive character of that phrase.

Now, the very -- the Colorado Act that we're dealing with here doesn't go just to the subject of hiring.

It goes beyond hiring and it goes throughout the whole ambit of the employer-employee relationship.

And that it covers hiring, promotion, demotion, discharge, compensation, all of which fall, I submit, within the clear meaning of rates, payrolls and working conditions.

Now, in Howard, this Court on remand to the District Court ordered that the employer, the railroad as well as the union be enjoined for -- from participating with the union in racial discrimination against Negro employees who were represented by still a second union.

Then, there are two Fifth Circuit cases that follow Howard, one of which is the Central Georgia Railroad, decided 1956 in 229 F.2d and cert was denied by this Court in 352 U.S.

There again, the Court of Appeals barred an employer from discriminating in concert with a union and it held the employer liable.

Now that case -- the District Court's order which was affirmed by the Court of Appeals and which was discussed at great length in the dissenting opinion in the Fifth Circuit opinion held the employer liable in damages to the Negro employees against whom this discriminated -- discrimination have been exercised.

And also ordered an affirmative injunction to open up the jobs to the employees against whom the discrimination had been practiced.

Justice Potter Stewart: This was under the Railway Labor Act?

Mr. Patrick M. Westfeldt: Railway Labor Act case following Howard.

Justice Potter Stewart: In this -- in our case now before us, there's no -- there's no claim of any collusion between your client and --

Mr. Patrick M. Westfeldt: No, Mr. Justice Stewart.

Justice Potter Stewart: -- the pilot's union, isn't it?

Mr. Patrick M. Westfeldt: No, Mr. Justice Stewart.

I have absolutely none.

And I say that in principle and I don't think it can really seriously be argued here, one cannot say that a Railway Laborer Act employer can't discriminate against employees in concert with the union, but can discriminate against such employees unilaterally.

That doesn't -- that doesn't fit the logic of the Howard rule, the logic of it.

Justice Potter Stewart: It doesn't fit the logic of anything, I agree with you, but the point is that in the second case, when there's just unilateral discrimination, perhaps the Railway Labor Act is not in -- is not applicable?

Mr. Patrick M. Westfeldt: Well, I would like to address myself to that point and in a case immediately following the Central of Georgia by the same Circuit; it's Richardson against the Texas and New Orleans Railroad in 242 F.2d.

In that particular case, the Court analyzed the reason for the rule.

They said that you have to read the contract as if the illegal clause isn't in it.

And it says then, the employer is the one who is discriminating.

And then it went a little bit further and said that it would be absolutely impossible to enforce the Howard rule unless a commensurate duty were placed upon the employer and I think that's correct.

The rationale behind it is that a Railway Labor Act employer, an airline or a railroad or whoever it may be is a federally sponsored industry and it exists by virtue of its certification.

It exists and operates under a multitude of detailed federal regulation and of -- an employer in that sense acts as an instrumentality of the Government and can't engage in such discrimination.

However, that's my view of it and I think that even the Railway Labor Act -- there are more examples.

Railway Labor Act provides for settlement of grievances by binding arbitration, by a system board of adjustments in the case of airlines.

All the questions relating to promotion or demotion or discharge or any implementation, their application of collective bargaining agreement for example are covered under the grievance procedure.

Now these are the very same Acts -- incidents of the employment relationship that purports to be covered by the Colorado law.

But to --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: A grievance could be filed by an employer against an employee, a kind of discrimination, I promote one and not the other be could grieve.

Justice Arthur J. Goldberg: [Inaudible] a prospective employee, [Inaudible].

Mr. Patrick M. Westfeldt: I think their prospective employee would not be covered by the grievance procedure.

The prospective employee would be covered by the civil actions permitted in the Central of Georgia and the Richardson against the railroad imposing clearly the duty on the employer, even the affirmative injunction to open up the jobs to employees in the Central of Georgia case.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Under the Railway Labor Act following the Howard rule with an employer operating under federal sponsorship and it has reference in regulation of the Government.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Well, I would think, Mr. Justice Goldberg, that that particular thing, this Court would require such an action to be brought under the Railway Labor Act, because of the specific relationship to unions and union organization in collective bargaining in the Railway Labor Act.

And I think that that would be the appropriate -- the appropriate Act to apply in that case, but I'll contend further and I believe it's true that the Railway Labor Act does not only start becoming operative after a man has been employed.

It actually has some specific pre-employment provisions.

One is the prohibition on the yellow-dog contract.

The other is the situation that you just alluded to and that would be any union discrimination in employment.

Then labor contracts can require an employer to hire more employees rather than contract out work.

In other words, my theory is that the impact of the Railway Labor Act, developing substantive federal law coverage of the type of discrimination complained of in this case, that we have large bodies of federal law that actually cover the subject.

And then you move from --

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: I think that's entirely right, Mr. Justice --

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: Well, I certainly think that those cases are terribly important and very persuasive there.

And I think that alluding to Mrs. Siegel's remarks about the New York Commission.

This same thing came before this Court in the Bethlehem Steel against the New York Labor Board.

New York had the Little Wagner Act.

This Court has pointed out that the laws were compatible but the procedures were different.

In Garner against Teamsters, it was pointed out that the laws were compatible, but the procedures are different.

With the multiplicity of tribunals and the diverse procedures, inconsistent and conflicting results occur just as --

Justice William J. Brennan: [Inaudible]

Mr. Patrick M. Westfeldt: That is my argument, Mr. Justice Brennan.

I think that we are dealing with this industry that escapes the bounds of local regulative confidence, the minute the airplane takes off.

I think that uniformity of regulation is necessary.

I do not think diversity of regulation can be permitted.

I --

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: Mr. Justice White, I will agree that under the Fourteenth Amendment case of Brown against Board of Education, so no state could enact a legal segregation law today whether relating to schools or employment or anything of that nature.

And if the Colorado Act were that way, I'm quite sure that the petitioner would be asserting this pervasive federal regulation and preemption.

However, the Colorado Law is not that way and we can assume that the policies and purposes of the federal laws and all of the state laws are the same.

They're anti-discrimination laws and the policy is anti-discrimination, but identity of policy and identity of purpose doesn't mean that the same results are going to be reached.

If you have an anti-discrimination case, you have a case where a Commission or a court is going to have to weigh the facts and make the decision, use its judgment, use its discretion in areas of that kind with all of the different tribunals that would be available, different results would occur.

And it's for that reason that I think we bridge the gap between substantive federal law coverage and preemption.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Well, this is particularly true in the recent decisions of this Court on this 301 of the Labor Management Relations Act and I do believe that it's quite interesting in those cases.

They do permit because of this Court's view of the meaning of Section 301 of the Act that an employee alleging breach of contract which also happens to be an unfair labor practice can go into the federal court or state court to do it.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: But --

Justice Arthur J. Goldberg: [Inaudible] assuming you are right, Federal statute [Inaudible]

Mr. Patrick M. Westfeldt: The comparable situation -- I think if you follow the Lucas Flour case and the Dowd case and -- and Dowd, what that would mean is that an employee claiming discrimination could sue in the state court for violation of 404 (b) or the Railway Labor Act.

He couldn't sue in the state court for violation of the State Anti-Discrimination Act.

This is the way I understand the Evening News and those cases because those cases specifically provide that even though the suit's brought in state court you're talking about a body of federal labor law and we say that the federal law on this subject must occur if it's not different.

Airlines will be treated differently just depending on where they happen to have their employment office or one airline might be treated differently from state to state.

We think that the federal regulation is so pervasive that it indicates the congressional intent to have uniform application in relation to discrimination against pilots and this is the way we bridge the gap.

The examples are many fold.

This Court has found that in the Campbell against Husky case, the Tobacco case, this Court has found that in the Pennsylvania Nelson case that Mr. Justice Harlan mentioned.

Now there, there was a particular national interest and compatible state and federal policy.

We say the same thing is true here.

The congressional legislation, the pervasiveness -- the pervasiveness of the regulation, and particularly regulation of pilots which goes right down to checking and reexamination and everything of that nature spelled out in the statute and the regulation.

We have compatible policies against discrimination and if it is permitted here, if 20 or 25 states are permitted to rule on this subject by all 50 can and with that number of tribunals and an equal number of diverse procedures, I think it's the rule of -- the intent or court order, the decisions of this Court.

That the same kind of inconsistent and conflicting results can be reached as if there were an actual substantive conflict in the laws.

Justice Potter Stewart: We -- we --

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: Have any what, Mr. Justice White?

Justice Byron R. White: You're talking about possible [Inaudible].

Mr. Patrick M. Westfeldt: Well, as far as I know this is the first case involving a State Commission's order being enforced in a court to hire a pilot.

But I think -- I think the language of the Court in -- maybe it was Bethlehem Steel or else it was Garner where they said, “We don't want to go on a case by case basis just to test federal supremacy that way.”

The laws, the policies were substantively compatible.

The procedures were different and the Court said preemption occurred.

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: I really --

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: Yes, I --

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: In policy.

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: Oh, I believe there is, Your Honor.Mr.

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: Well, we just have one case and this is the first case of this kind that I know of but the fact that the law has provided inconsistent procedures are here.

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: Well, that's certainly true as between state and federal but throughout the United States where all of the anti-discrimination laws exist as a different procedure and state after state, after state.

Some cases, private individuals can -- bring complaints and others, only the Attorney General can.

In Colorado we got the private individual, the Attorney General, the Commission and the Commissioner.

We've got --

Justice Byron R. White: Yes, but this is part of your argument of the desire for this kind of [Inaudible].

Mr. Patrick M. Westfeldt: Mr. Justice White, I think this fits the preemption argument and the case of California against Zook was mentioned and the Huron Cement case in Detroit was also mentioned.

In the California case the California law was upheld and in the Huron case, the Detroit law was upheld, but in both of those cases it was pointed out that -- I think in the Detroit case, there was no mention whatsoever of any other local law that might conflict in --

Justice Potter Stewart: It was asserted argumentatively that there might be other local laws, but there is no evidence of the existence of it.

Mr. Patrick M. Westfeldt: There was no evidence (Voice Overlap) --

Justice Potter Stewart: Like that was stated in the --

Mr. Patrick M. Westfeldt: Then in the Zook case there were just two comparable local laws and I believe that the opinion of the Court there indicates that the decision of this Court might have been different if there had been a multitude of state laws.

And so, I do believe that the multitude of state laws and the diversity of state laws is the kind of thing that would prevent, prevent uniform application of federal law, either presumed intent of Congress or actual intent of Congress, I think that when you compare the Civil Aeronautics Act and the Railway Labor Act, the Civil Aeronautics Act there is much more specific and sweeping on a -- as an anti-discrimination provision.

But I think the Railway Labor Act has been construed and properly construed that an employer sponsored by the Federal Government cannot participate in racial discrimination.

And it is true that the pervasiveness of the regulation, what I say is the need for uniformity which is accented by the multitude of tribunals gives rise to my argument that there is preemption here.

I think the same thing is -- it follows on the burden argument that we make.

Justice William J. Brennan: The Court can't apply [Inaudible].

Mr. Patrick M. Westfeldt: Well, I think the congressional design, I -- I'll certainly agree, Mr. Justice Brennan it was more specific there but --

Justice William J. Brennan: [Inaudible]

Mr. Patrick M. Westfeldt: And there's that multitude of the labor cases.

The Garner involved the Pennsylvania law and the Bethlehem Steel involved the New York law and the Goss involved the Utah law and there was a forerunner to Goss.

I forgot -- forgotten the style of it right now, but in Garmin the prohibition bringing an unfair labor practice case in a state court and all of those laws were compatible.

The New York law was called the Little Wagner Act and there's just preemption there because you got to have -- and I think it also should be -- I should emphasize that there -- the congressional regulation indicates a tremendous, intensive national interest, federal interest in aviation, in aviation operations, not only as respective crew members but all of the other safety questions, the use of airways, traffic control, you can't operate the aircraft without federally certificated personnel according to federal commands and directions.

I think that industry is a national industry.

I don't think it can be localized.

I don't think that any airline should be subject to varying infringement of state laws.

Chief Justice Earl Warren: But in our -- in our Wagner Act, and other labor laws, isn't there a great deal of legislative history and declaration of policy on the part of the Government to preempt the situation as -- as you said it has been done in Garmin and the rest of the cases?

Where here, as I understand it, you have been unable to find any legislative history or any declaration of policy in this specific area and there certainly was legislative history in the labor fields.

Mr. Patrick M. Westfeldt: Well, the cases that I referred the Court to earlier, the Mitchell case and the Henderson case are the ones that this Court -- when this Court had before it the identical portions of the Commerce Act and it was this Court's decision referring to the identical portions of the Commerce Act that if concluded -- this Court concluded that Congress did not intend to exempt any discrimination.

Furthermore, the ICC has been aware since 1887 that that clause did apply to this race relation question that is desegregation of white and Negro passengers.

So that even -- back on those earlier cases, this Court has concluded that this identical federal statutory language did have that purpose and the broad (Voice Overlap) --

Chief Justice Earl Warren: Well, I suppose there's no question about it on what you could find legislative history on the question of discrimination as to passengers in the kind of service that they -- that they rendered, no, there wouldn't be any trouble in doing that would there?

Mr. Patrick M. Westfeldt: No, I don't --

Chief Justice Earl Warren: But on the other hand, when you say that the employment field is preempted, you cannot find any discussion of any before the Congress on that subject even to indicate that they were legislating in that area.

Mr. Patrick M. Westfeldt: Well, Mr. Chief Justice, my response to those remarks is that the language of the Act, employer discrimination against any person in any respect whatsoever, the broadest language possible, the word person is defined.

The Fitzgerald case didn't limit it's holding to passengers in reading the Act, it said it prohibits discrimination against persons and then including passengers.

The idea was that it didn't intend by that construction to limit it simply to passengers.

Chief Justice Earl Warren: But I got -- counsel pointed out that this word discrimination was used invariably in the sections of the Act that had to do with service and that of course is legislative history, I think that we must consider.

Mr. Patrick M. Westfeldt: Well, I certainly think that it -- I know that it's used in relation to service and this Court has just heard this ICC case which relates to discriminatory rates and certainly are applicable to that.

But this Court itself had -- has held it applicable not only, really to questions of actual service by the character but the terminal restaurants and so on operated by independent contractors.

The CAB itself has a -- and asked and requested the Attorney General to bring these suits down in Montgomery and Birmingham and Alabama and they relate to all terminal facilities.

The scope of it in relation to race relations I think is as broad as it can be.

Justice Arthur J. Goldberg: Assuming [Inaudible]

Mr. Patrick M. Westfeldt: Well --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: I'd say it remained dorman -- dormant for about 22 years and then they started to use it.

Of course the Federal Government started to use it.

Actually, the Fitzgerald case in -- is in 1956 and so that's 18 years after the statute was passed, but I don't think that that means -- I don't think the rule is -- that just a period of dormant excludes the question of preemption.

Justice Potter Stewart: How long the Interstate Commerce Act language been dormant until it was reawakened in Mitchell?

Mr. Patrick M. Westfeldt: The Court here held that the Commerce Act -- that the Commerce Commission recognized immediately from the beginning, I think the words were, that it covered discrimination against -- in relation to segregation of white and Negro passengers so that it --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Yes, start from beginning.

Justice Arthur J. Goldberg: As far as we have the records, you distinguish between passengers and employees, this problem has been dormant [Inaudible]

Mr. Patrick M. Westfeldt: 1886, it's when it's passed.

Justice Arthur J. Goldberg: Well, in view of that here --

Mr. Patrick M. Westfeldt: Well --

Justice Arthur J. Goldberg: -- being dormant [Inaudible] exercised at all.

Mr. Patrick M. Westfeldt: Well --

Justice Arthur J. Goldberg: To this date, [Inaudible]

Mr. Patrick M. Westfeldt: I think that's correct.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: I think that's correct, Mr. Justice Goldberg, but I do not think that it's possible under the language of the Act to make a distinction between a passenger and a pilot or a passenger and employee.

I think the definition covers it.

I think that the understanding of the Court in Fitzgerald, it was persons the Act was talking about and not just passengers.

It wouldn't make sense just to limit it to passengers to permit air carriers to discriminate against all kinds of persons just because they weren't passengers, whatever the reason might be.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: I have no idea, Mr. Justice Goldberg.

I have no idea whatsoever.

I'm sure that we at Continental Air Lines were faced with the new field when this case came up and we've been working on it rather steadily for several years now, and this is our conclusion as to what the law is.

I would like to go one step further with the point that you're making, Your Honor.

There have been many cases where agency's activities and powers have remained dormant.

I think an interesting case in this field is Boynton.

That was the one where the bus terminal was an integral part of the bus transportation system.

The restaurant in the terminal was operated by a lessee, an independent contractor not operated by the Trailways Bus Company.

And the Interstate Commerce Commission took the view that that they didn't think they had the authority.

They disclaimed authority to regulate these lessee restaurant operators.

But this Court held that that was a violation of the Act and within a year after this Court's decision, the ICC then adopted a new set of regulations specifically to cover it.

So here was an area of dormancy for many years.

The administrative agency was told by this Court that by gosh!

This is within the scope of your authority and they passed the -- adopted the regulation and implemented it.

In the very recent case decided by this Court, the Pan American-Grace case.

I believe there the CAB disclaimed authority on the particular issue before the Court.

But if the Court -- where the Court concluded that this was specifically within the authority of the CAB, the dormant exercise of that authority was of no moment.

So, I don't really think that the question of dormancy should change the issue when this changed the result of this case.

Justice William J. Brennan: Now, Mr. Westfeldt, [Inaudible]

Mr. Patrick M. Westfeldt: I do that for this reason, Mr. Justice Brennan.

One is both decisions below are limited to flight crew personnel and that is the issue that stayed in the Supreme Court's opinion, that is the decision of the trial court.

Justice William J. Brennan: That's all you need to prevail --

Mr. Patrick M. Westfeldt: That's all I need to prevail on --

Justice William J. Brennan: [Inaudible] but I'm just interested.

How far did [Inaudible]?

Mr. Patrick M. Westfeldt: Well, I --

Justice William J. Brennan: [Inaudible]

Mr. Patrick M. Westfeldt: I think that your --

Justice William J. Brennan: [Inaudible]

Mr. Patrick M. Westfeldt: Well, Your Honor, I think that is an interesting question.

I think that what will have to be decided, I'm sure that there's substantive federal law coverage with respect to those people because of the way I construe the Act.

Justice William J. Brennan: [Inaudible]

Mr. Patrick M. Westfeldt: Well, the question is whether with respect to those employees, you can bridge the gap of just federal law coverage and actual preemption.

Is there a need for uniformity of a regulation with respect to unlicensed people who aren't necessarily required to have the high degree of qualification?

Justice William J. Brennan: [Inaudible]

Mr. Patrick M. Westfeldt: Well, no.

Some mechanics or licenses and some and some aren't.

You start at the bottom of the list and you might have an unlicensed man.

You move up to your senior mechanics and lead men then you have any licenses and things of that nature.

There may be -- you can -- you could make an argument perhaps on any particular employee as to what was the degree of his national contacts.

What is the incidence of his relationship with the Federal Government in --

Justice William J. Brennan: [Inaudible]

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: Well, Mr. Justice White, sorry.

I do have some familiarity with the labor laws and I think that from my experience as a labor lawyer, it has been that we always examined whatever law has really covered the subject and how they would dispose of the problem but my experience also as a labor lawyer has indicated to me that 99 times out of a hundred, the law that's applicable is the federal law.

It's the National Labor Relations Act or the Railway Labor Act or the Fair Labor Standards Act, it's the federal law that occupies this --

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: Mr. Justice White, I don't know of the situation.

I haven't run into that.

I have run into the instances under 14 (b) of the Labor Management Relations Act where there are more limitations in state laws on union security problem.

But I don't know of particular cases where there's a line in any particular organization of state laws covering rather than federal law.

Justice Byron R. White: [Inaudible]

Mr. Patrick M. Westfeldt: It's really very difficult I think to give a categorical answer to that.

I think the federal law coverage is there as to all airline industry, where the line on preemption would be drawn, I really don't know.

I think it would take a careful study of the facts of that particular case but I just cannot see how a relationship between an airline and a pilot, the man who is flying the plane and moving from state to state, and airlines that cover all states can be subject to inconsistent varying conflicting regulation.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Mr. Justice Goldberg, the pilots that we have do have federal licenses.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: That's correct.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Well, the actual language of the Act permits the CAB to issue such appropriate orders maybe necessary to compel compliance with the Act.

Now what the -- I think the normal scope of an order in the first instance would be an order such as the one entered by the Discrimination Commission here, hire that man, promote that man, or don't, whichever is required depending on the -- whether they could go further than that --

Justice Arthur J. Goldberg: Suppose they took a broader view on this section [Inaudible] --

Mr. Patrick M. Westfeldt: Sure.

Justice Arthur J. Goldberg: [Inaudible] that we will not [Inaudible].

Mr. Patrick M. Westfeldt: Well, unless there are some other legal problems that I can't put my hands on right now, I think an order such as you suggest after proper notice and hearing and subject to judicial review and everything of that nature is within the scope of that 1002 description, that description of the type of orders that could be issued.

Justice Potter Stewart: White pilots might have an objection based on constitutional grounds in a federal [Inaudible] --

Mr. Patrick M. Westfeldt: Perhaps, it maybe some other issue like that -- I don't know but the breadth of it is the scope of the language is very great and I argue that this is the way it should be.

We are regulated by the Federal Government from top to bottom and we deal with the agencies regularly, their control or familiar with their procedures.

They would establish uniform rules there and uniform practices just like they have on all of the other matters.

These, the agencies that are familiar with airlines, with pilot qualifications, with issues such as could come up in a case before them.

The likelihood of uniform result is so much more great in the case of preemption than use of the federal agencies than it is by use of multiple state agencies that I think it's very significant.

The only other area that I really haven't touched on in any detail is the question of burden.

This is another part of their argument.

The Colorado Supreme Court relied on the Morgan case and the old Hall case, Hall against DeCuir.

I think that those cases stand for the proposition that where uniformity is necessary as we contend it is, the state laws cannot move in to that field of commerce because of -- this isn't the area that permits the diverse regulation.

Now, everything I've said about the need for uniformity in connection with my argument on preemption goes right to the same need for uniformity and the argument on burden.

I don't think that Hall can just be dismissed because Brown avoided it against Board of Education.

Hall still expresses the same rule if that happened to be the reconstruction act in Louisiana that required comingling of passengers on riverboats in that state.

Morgan was the later -- the Virginia segregation statute, both of them have been held by this Court to be an -- as an unconstitutional burdens on commerce.

The point has been made that this evidence is -- the evidence in this case, the record does not show the type of burden that was spent on, say in Southern Pacific against Arizona and Bibb against Navajo Freight Lines and an actual impediment involving a great deal of cost.

I think the Court should also recall the Morgan decision, that isn't the kind of burden that was found there.

The Court pointed out that the passengers had to order their movements on interstate travel.

There is no great impediment to the flow of travel there.

The discrimination certainly was unlawful but it was a burden on Commerce.

It wasn't another Fourteenth Amendment case.

I also want to point out that I don't think that there's any need for any more evidence on burden.

Earlier in my argument this morning, I did allude -- I did start discussing the fact that the Colorado Commission did make a determination of Green's qualification.

It made that determination that he was qualified, therefore the only discrimination is on account of race, but that is inherent in the Colorado Act.

A decision by the Commission on qualifications has to be made.

I think that really is all that need be said about.

I do not think it is possible to permit 28-30 Commissions around the state with persons unskilled in matters of aviation to determine qualifications of pilots.

Just for the sake of argument suppose the facts in this case were a little bit different, suppose Mr. Green instead of having 3000 hours had had 1000 hours.

Could they then still determine qualification?

All of the things that go into determination of qualification of pilots we think --

Chief Justice Earl Warren: But I thought they put their decision on the ground that you yourselves had found this man to be qualified.

Mr. Patrick M. Westfeldt: Mr. Chief Justice, they did in part and then they dismissed our conflicting judgment which arose at the time of the publicity that occurred.

At that time Continental had first decided that Green was qualified.

At the later date when the wide publicity occurred was when Continental took the position that he was therefore not qualified.

Now, so they made the decision in conflict with our judgment, the judgment is the judgment that was exercised in early August of 1957.

Justice Arthur J. Goldberg: Well, what's the -- they could not have gone to the conclusion [Inaudible] as the basis of your understanding [Inaudible] because your own decision [Inaudible].

Mr. Patrick M. Westfeldt: Well, what the record in the case shows is that the company felt that this would cause a lot of notoriety and that it could interfere with his training.

Now that's what it showed but if -- they also -- they -- no, the testimony also shows that other pilots had been discharged from becoming involved in controversial public things and this was their view that they wanted someone that was less in the public eye, quieter type of person but --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Well, at that particular time, Mr. Justice Goldberg, he already had been admitted to the first trade of course, he was told that he was eligible and his name was held with the other eligible pilots for subject on employment.

And this appears in the record and this is in telephone conversation between Mr. Green and Mr. Bell.

My view on the burden argument is that the diverse state regulation involving these issues that can only be decided by an exercise of judgment in discretion of course is the burden.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Mr. Justice Goldberg, that's determined, but that's determined under an Act.

That doesn't provide blanket discrimination.

It doesn't -- isn't a blanket anti-discrimination.

It only prohibits an employer from discriminating persons otherwise qualified.

So, this is the statute that we're dealing with.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: That's correct, Mr. Justice Goldberg, but you can also acknowledge that the Act does require the Commission to make a determination of qualification because they couldn't make the second decision unless they first made the first decision.

Justice Potter Stewart: Of course it's possible I suppose in legal theory for the person to be unqualified for a reason which might indirectly stem from his race but not because of his race.

So assuming that somebody who was a -- followed the tenants of the Black Muslims, who hated white people so badly that he was likely to get so infuriated that he might shoot one.

I suppose you wouldn't want somebody like that as a co-pilot with a flight -- flight crew for safety reasons and yet --

Mr. Patrick M. Westfeldt: My feeling --

Justice Potter Stewart: -- assuming this person had been born a white man instead of colored man, he -- chances are he would not have become a Black Muslim.

Mr. Patrick M. Westfeldt: My feeling on that is this that the initial -- that the judgment on -- whether to hire or not to hire, qualifications things of that kind must first reside with the carrier.

There's where the responsibility is.

That's the organization that performs the interstate transportation, it is the one that runs the risks, makes the games, things of that nature.

But if its judgment is going to be limited, it must be limited according to the intent of Congress and by one single federal agency, a single authority prescribing uniform regulations.

Justice Potter Stewart: It's not -- it's not --

Mr. Patrick M. Westfeldt: We --

Justice Potter Stewart: -- your position as it's so, that -- as to racial discrimination, the federal standard is a different standard from that imposed by Colorado in any way?

Mr. Patrick M. Westfeldt: No.

No, it's identical.

And the --

Justice Potter Stewart: Each requires complete lack of discrimination (Voice Overlap) --

Mr. Patrick M. Westfeldt: Right, they are the policies.

They're completely compatible, just completely compatible.

Justice Potter Stewart: And identical?

Mr. Patrick M. Westfeldt: Identical.

Justice Potter Stewart: Yes, I mean, (Voice Overlap) --M

Mr. Patrick M. Westfeldt: And they are both strong, they're both vigorous.

The federal policy is strong and it's vigorous.

The state policy is strong and it's vigorous.

This is true but we -- but then we're dealing with this high speed transportation industry with Commissions all over, and officials all over, 90 more Commissions, some of them are Board of Education Commissioner, or things of that nature and I do believe that these airlines, so regulated from top to bottom must be regulated in this field also by the Federal Government.

I think that a decision by a State Commission in conflict with the carrier's judgment that an employee is qualified is a direct intrusion into something that is very national in character and must be regulated.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: And if it does differ with our judgment, it is the Board that has the expertise relating to pilot qualifications.

It's obligated.

The case is now brief -- pointed out.

The 609 cases, the CAB examines and reexamines qualifications part, there's the expertise.

The same thing is true in our grievance cases, Mr. Justice Goldberg, if you have a pilot discharge case.

You got your system board of adjustment.

You may have an arbitrator but you've got four experts with you.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: But who is the State Commission's decision reviewable by?

It's not reviewable by the Civil Aeronautics Board where there is some expertise.

It's reviewable by a state court where --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: We'll follow legal principles that would not have any particular knowledge as to the abilities of qualifications of a pilot.

This is where the thing --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: But --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Well -- but I say, Mr. Justice Goldberg that you don't reach the decision of whether discrimination occurred until you reached the prior decision of qualifications.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Patrick M. Westfeldt: Not by the State Commission.

Thank you very much.

Chief Justice Earl Warren: Very well.

Mr. Taylor.

Argument of T. Raber Taylor

Mr. T. Raber Taylor: Mr. Chief Justice and may it again please the Court.

I open by directing my remarks to the specific language of the Civil Aeronautics Act on the area of preemption.

A careful reading of the Act will lead us to the conclusion that the Congress of the United States has not occupied the field of the regulation of air carriers to the exclusions of the -- exclusion of the states.

Section 676 of the Act which was the original CAA Act, now 49 United States Code Section 1506, there was the reenactment of the Civil Aeronautics Act in 1958; this provision reads remedy is not exclusive.

Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.

Justice Potter Stewart: But that language doesn't fit this case, does it, because the applicable federal statute was enacted in 1938 and at that time this Colorado remedy was not then existed?

Mr. T. Raber Taylor: The -- this was a reenactment in 1958, the Colorado Act or Discrimination Act is of 1957.

Now, I would say this, this language, the fact that it is --

Justice Potter Stewart: This case arose prior to 1958, isn't it?

Mr. T. Raber Taylor: This case --

Justice Potter Stewart: Or when did it?

Mr. T. Raber Taylor: The compliant was filed April 30th or no -- the application of Continental was filed on April 30th, 1957 and the hearing was during June of 1957.

The order of the Anti-Discrimination Commission was entered in December of 1958.

Justice Potter Stewart: It's a very small point, but I only suggest that the -- the Colorado remedy when the 1938 statute was enacted was not a then existing remedy.

Mr. T. Raber Taylor: That is correct.

I do think, however, that it is significant that when the CAA Act was reenacted into the Federal Aviation Authority in 1958, if there was any whisper that this Act was going to incorporate into the Federal Administration Authority Act, an anti-discrimination provision with regard to race and the employees, and let's say an FEPC law being incorporated into the Civil Aeronautics Act, we would have not had the outstanding approval of the Southern Senators of the United States.

Justice Potter Stewart: I suppose that could be said in the Interstate Commerce Act also which has been held to have required -- to have required complete non-discrimination based on races among passengers and that terminal facility, wouldn't the same inference --

Mr. T. Raber Taylor: I would say this --

Justice Potter Stewart: -- withdrawable?

Mr. T. Raber Taylor: Insofar as one has a desire to protect passengers, one would not have a desire if they have denied of some of our Southern brethren to give equal protection for all job opportunities throughout the airline industry.

I think --

Justice Potter Stewart: Is it fair -- is it fair to surmise Mr. Taylor that if they were no fair employment legislation in Colorado and if Continental Air Lines on its own [Inaudible] -- on its motion had for purely racial reasons turn down a completely qualified applicant for a pilot that you might not be arguing here that the federal law required them not to discriminate?

Mr. T. Raber Taylor: That -- Your Honor, I --

Justice Potter Stewart: I'm imagining a case that doesn't exist and maybe that's an unfair question but it occurs to me that you would have a pretty good case if you were here?

Mr. T. Raber Taylor: Well, under the Connelly decision, under the Railway Labor Act, there was -- might be a question of whether or not she'd want to fight all the way up to this Court via the federal courts to establish jurisdiction, but again, I don't think it is clear.

I think the prime purpose and thrust of the Railway Labor Act is certainly the collective bargaining is good or bad as it can be negotiated and under the CAB, the primary thrust is in relation to passengers and to traffic and to provide adequate service for that traffic.

I think the brief of the United States which has been filed in this Court does the best job in speaking to that point because they point out that federal laws will not likely be held to preempt an area against state legislation.

They also point out that it is never been held that the provisions of the CAB, Section 404 (b) and this is on page 39 of the brief of United States that it is never been held that these provisions were or are applicable to discrimination and employment.

Then, on page 41 they go into detail as to Section 404 (b) which is primarily concerned with transportation service.

Certainly, we do not have any legislative history to guide us, but we do know that the purpose of the Civil Aeronautics Act has been preoccupied with service either of the transporting of property or the transporting of passengers.

It is no surprise that it was applied for the protection of Ella Fitzgerald in the case when she was discriminated against and I think it's no surprise that California -- United States District Court in California has applied it when a coach passenger was discriminated against, but I don't think it has any application.

We are here concerned with whether or not the Civil Aeronautic Acts should be converted into a Fair Employment Practice Act.

I would take one moment to mention the Railway Labor Act and this Court on March 4th of this year passed on the scope of that Act in the case of the Brotherhood of Local Engineers and the Baltimore and Ohio Railroad, relying upon prior language of this Court in Terminal Association of St. Louis against Brotherhood of Railroad Trainmen.

To me, that language and the principles there enunciated would be determinative of any argument in this case as to the application of the Railway Labor Act.

But primarily, we're confronted with concurrence of jurisdiction even if there were jurisdiction under some federal law.

We do know that the most recent legislative history from the Congress of the United States and the consideration of a Fair Employment Practice Act is that they want to respect the jurisdiction of the State Commissions.

They want to make it clear that it is their intention to cooperate with the state and municipal agencies to eliminate and promote the -- and lessen the discrimination in employment.

We have had the question of whether or not flight crew personnel should stand in a favored position.

Certainly, the employees of the United States, the U.S. Civil Service employees who were engaged in the business of handling the mail and the postal railcars are much closer to being instrumentalities of the United States.

There, this Court made clear that there was jurisdiction in the State of New York and their Anti-Discrimination Commission to bar the union provision which excluded from the Railway Mail Association all colored people.

To me, especially after having an opportunity to read the briefs here, I feel that that issue is controlling.

Mr. Justice Harlan has inquired about the case of Pennsylvania against Nelson.

To me, I do believe that there is a concurrent jurisdiction which was given to the State of Colorado by the Enabling Act of 1875.

Certainly, we would all agree that sedition has a higher value in the hierarchy of our values than even race relation and yet in Pennsylvania against Nelson, this Court did find that there was concurrent jurisdiction.

Chief Justice Earl Warren: Very well.