TRUCK DRIVERS UNION v. RISS & CO.

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Argument of David Previant

Chief Justice Earl Warren: Number 180, General Drivers, Warehousemen & Helpers, Local Union No. 89 et al., petitioners, versus Riss & Company, Incorporated.

Mr. Previant.

Mr. David Previant: Mr. Chief Justice, if the Court pleases; this case comes here on writ of certiorari to the Court of Appeals for the Sixth Circuit denying the enforcement of what we describe as a grievance award.

Since the genesis of the case is on the filing of a complaint in the District Court, and since the lower courts made their determination on the basis of a motion to dismiss, holding that the facts alleged in the complaint were not sufficient to predicate a cause of action or claim for relief, the only facts which are really before this Court are those facts which are pleaded in that Bill of Complaint.

The operative, operative facts may be summarized as follows.

The petitioner Local 89 is a local labor organization, having its office in Louisville, Kentucky.

The six individual petitioners are members of Local 89 and they are represented by Local 89 for the purposes of collective bargaining with an employer who is the respondent here, Riss & Company.

Riss & Company is an interstate carrier of freight having among other places in this country, a terminal in Louisville and one in Philadelphia.

There is a collective bargaining agreement between Local 89 and the Riss Company which its counterpart has been before this Court on a number of occasions before, it’s Exhibit A in the record.

It’s a multiemployer, multi-union, multi-state contract.

The contract provides among other things --

Justice William J. Brennan: Is this the contract in [Inaudible]?

Mr. David Previant: It is virtually the same contract, although this one covers Local Cartage operations where the out of the case covers that --

Justice William J. Brennan: [Inaudible]

Mr. David Previant: -- over the rule.

But the contract clauses with which we are here concerned --

Justice William J. Brennan: The same one?

Mr. David Previant: -- are the same.

They are actually the same that we're also able to translate and in the Nebraska Short Lines case, Local 524 (Inaudible).

The contract contains, among other things a provision called “protection of rights”, which provides that it shall not be a violation of the contract, and it shall not be cause for discharge if any employee or employees refuse to go through the picket line of the union, or refuse to handle unfair goods.

Incidentally I should say that, as many times and as many lawyers who have read the record in this case, I noticed for the first time last night that a very important word, the word “not” was omitted from the complaint as printed in the record but the contract clause itself is as I have read it, in the contract attached to the record and in the opinion of the Court itself that is quoted incorrectly as being, “It shall not be a violation of the contract”.

The record would indicate that it shall be a violation of the contract.

The validity of this clause incidentally has not been challenged in these proceedings.

The Riss & Company had a labor dispute with a local union in Philadelphia.

That local union sent its pickets to Louisville, to picket the Riss terminal there.

Exercising the right, assured to them by this contract provision to which I referred, these six petitioners, members of the union and employees of Riss refused to go through that picket line and they continued in such refusal for approximately three weeks.

It was in early 1960.

They then offered to return to work and presented themselves for work.

However, the company refused to permit them to return.

Accordingly, they filed a grievance under the provisions of this contract in which they sought reinstatement to their employment, wages from the time that they had offered to return to work and were refused such right to return, some vacation pay which had accumulated, and also requiring the employer to make certain contributions to a Health and Welfare Trust Fund which provided hospital and medical and sick benefits for the employees, and certain contributions to a Pension Trust Fund which provided pensions at age 60.

These contributions are predicated according to the contract on so much per employee per each week worked and go into the Trust Fund and do not go to the pocket of these six employees who were then denied their right to return to work.

The grievance procedure itself is set forth in Article VII and Article VIII of the agreement.

Article VII establishes a series of committees.

All of them are bipartisan committees.

There's equal representation by the employer, equal representation by the union.

There is a local area committee which first considers disputes and controversies if the parties cannot settle them directly.

If the local area committee cannot settle the dispute, it goes to what is called a Local Joint State Committee, again a bipartisan committee which makes an effort to settle the dispute.

And if they do not settle the dispute, or if it is a matter of interpretation, it goes to what is known as a Joint Area Committee, which is a larger committee comprising representatives of the unions and employers in a multi-state area.

In all instances, if there is a majority vote in either committee as they go up, that will settle the dispute.

If the two lower committees are deadlocked, it goes up automatically.

When it reaches the top committee, if there is a majority decision then that dispute is finally settled.

If there is no majority decision at that point, then the parties are free to use the vernacular, grab their best holds.

They may, if they desire submit to umpire handling.

The union may --

Justice William J. Brennan: The District Court haven't reached the question whether this had an attribution of finality for the purposes of --

Mr. David Previant: The District Court did not, and apparently the Court of Appeals did.

Justice William J. Brennan: The Court of Appeals [Inaudible]

Mr. David Previant: Well it didn't -- it did not say that the Joint Area Committee determination was not final.

It just said that the entire grievance procedure did not have the finality because I believed it was looking at this step.

Justice William J. Brennan: Is that the same thing?

At this stage as I gather it, what happened here was, there was no reference.

It wasn't like the Yellow Transit.

There was no question of may or may not refer to an umpire.

Here, there was an agreement by --

Mr. David Previant: There was an agreement, that's right.

Justice William J. Brennan: And your argument, I gather is that for these purposes that sufficient finality within Steelworkers and Ruston.

Mr. David Previant: Precisely.

Justice Byron R. White: Do you under the --

Mr. David Previant: I don't read the Court of Appeals decision saying that that particular decision was -- lacked finality.

I read it only as saying that since there is not what we consider in the practical sense lets say, a final arbitration award.

Justice William J. Brennan: But that's because --

Mr. David Previant: Or a compulsory arbitration, the procedure had no finality.

Justice William J. Brennan: But that's because of the structure of your clause --

Mr. David Previant: Right.

Justice William J. Brennan: -- as I understand it that this level maybe a final decision and you say there was.

Mr. David Previant: That's right.

Justice William J. Brennan: And therefore, there was no necessity to go onto the umpire stage which was a problem in the Yellow Transit, wasn't it?

Mr. David Previant: Precisely so Justice Brennan, that's exactly what happened.

Justice William J. Brennan: Yes.

Now, the only thing I've wanted to ask you is -- I gather this is a question of contract instruction.

Are you going to ask us to make that instruction here that the District Court not having reached it, should we send it back to the District Court and ask them to decide this question or (Voice Overlap) --

Mr. David Previant: No, I don't believe that this Court should make that necessarily.

I think for the purpose of determining whether or not we had the sufficient basis to say in Court, this Court would have to conclude that under the contract, there was a decision here.

Justice William J. Brennan: And therefore, we could send it back to the District Court?

Mr. David Previant: Yes, because this arose on a motion to dismiss.

There had been a counterclaim filed and many other charges made --

Justice William J. Brennan: Well, we had (Voice Overlap) -- problems before we decided Smith here and before we decide Yellow Transit [Inaudible]

Mr. David Previant: Exactly, exactly.

The -- well, the Joint Area Committee as Justice Brennan has pointed out did determine the dispute.

It directed that these drivers be reinstated.

It directed that they be given back pay and their proportion of vacation earnings.

It directed to that the company do pay up its contributions which were delinquent in both the Health and Welfare and in the Pension Trust Funds.

The employer refused to comply with that award.

And because of that refusal, that the complaint which I have just summarized was then brought in the Western -- Federal Court for the Western District of Kentucky.

I would like to emphasize at this point, at respondent's brief refers to many other facts in addition to those which I have just outlined here.

Those are facts which the respondent alleged in its answer and counterclaim.

They are not facts in the record for the purpose of this case, since this case was decided on a motion to dismiss based upon the complaint.

So I would call to the Court's attention that whatever additional facts may be brought to the attention of the Court with respect to whether this was a strike, with respect to whether there were threats, with respect to the nature of the picketing is not and was not before either the District Court, the Court of Appeals or this Court, or the -- and was not before this court below.

The complaint sought precisely the same relief which was granted to these six employees by the Joint Area Committee.

The respondent, in making answer to the complaint asserted as its first defense that the complaint did not state facts upon which a claim for relief could be based.

It went on to refer to the fact that there was a state court suit pending in which the respondent, the employer was a plaintiff in which he was seeking damages.

It said that the stoppage or the recognition of the picket line was in fact a breach of the contract and therefore it was not required to submit to or nor was it bound by the grievance procedure.

And that grievance procedure for that reason was a sham and made a counterclaim for the damages it suffered as a result of this refusal to go to the picket line subsequently, an amended complaint was fought -- a counterclaim was filed for injunction, an effort to restrain the picketing.

None of these matters came to trial.

Issue was not joined on that.

At a pretrial hearing called by the District Judge, consideration was given to the motion to dismiss and the Court made a very simple order saying, “On a motion to dismiss, it is granted for lack of jurisdiction on the authority of Westinghouse”, the Court reading Westinghouse as precluding a claim of this kind because it was -- for the benefit of these six individual petitioners.

On appeal to the Court of Appeals for the Sixth Circuit, the lower court's order and judgment was affirmed.

This Court went beyond however, the reason given by the lower court.

It did say that there was no jurisdiction under Westinghouse because in the words of the Court, the purpose of the action is to recover for the individual plaintiff's lost wages together with incidental benefits to the union based on payment of wages to employees, but the Court also went further.

It said that the decision of the Joint Area Committee was not an arbitrational order, therefore, Lincoln Mills and the other cases were not aptable.

Justice Arthur J. Goldberg: [Inaudible]

Mr. David Previant: Surely.

Justice Arthur J. Goldberg: [Inaudible]

Mr. David Previant: Right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. David Previant: Right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. David Previant: The record is silent now, and I think on the basis of the record, we must assume that it was no less than a majority and probably a unanimous opinion.

Justice Arthur J. Goldberg: [Inaudible]

Mr. David Previant: The deadlock referred to there Justice Goldberg is in the event, the union and employer representatives at this top level of the grievance procedure are unable to agree on a final disposition of the matter then if a majority of them say, “In view of our disagreement perhaps instead of having a strike, or instead of prolonging this matter, it ought to be submitted to an umpire for final adjudication,” it is submitted to adjudication.

If they don't go that far then this question of whether or not they're entitled to legal or economic recourse, meaning a strike or meaning perhaps a suit for a declaration, as to the meaning of the -- or as to the merits of the particular contracts.

Justice Arthur J. Goldberg: [Inaudible]

Mr. David Previant: I think that it's read it -- well, it's there in E, it is agreed that all matters pertaining to the interpretation of any provisions of this contract shall be referred after request of any party at any time for final decision to the Joint Area Cartage Committee after first being processed by the Joint State Cartage Committee.

I think it is right out of F saying that, if they deadlock there, then it may proceed further.

I think it's in G, failure to comply with any final decision.

I will say that it is much more explicit where it refers to the majority vote in the local committee, and the majority vote in the state committee then it is in this.

It is much more explicit, and this is poor draftsmanship frankly.

Justice William J. Brennan: But in any event --

Mr. David Previant: But there's been question raised here and there is no question between the parties that this is actually the way that works.

Justice William J. Brennan: But in any event, Mr. Previant, I gather there's enough good point that the District Court and its gets everything bears upon what the meaning of that is.

There is enough in the clause itself to withstand any motion addressed to a --

Mr. David Previant: Oh, yes.

Justice William J. Brennan: -- [Inaudible]

Mr. David Previant: Yes.

If the employer had raised that question, it would be a matter for determination then by the District Court with the parties having the opportunity to present -

Justice William J. Brennan: Well, I want to be sure, you're not asking us to decide it.

Mr. David Previant: No.

Justice William J. Brennan: Alright.

Mr. David Previant: We think you can, but in the posture of this case, it's not necessary.

Well, the Court did say that there was no finality here, but as I read it that the Court was not saying that a final decision in the Joint Area Committee was not final but because it was opened and reading the bare words of the statute, it was not the kind of a contract clause which was before this Court in Lincoln Mills or the other cases.

And the Court also went on and decided that it would construe the contract itself.

And construing the contract, it came to an entirely different conclusion.

And the parties who had been selected by the employer and the union to determine what the contract meant and actually, it follows the construction urged upon it by the respondent.

But again concerning which, the union had no opportunity to present evidence or to make argument before the District Judge and had not been considered at all by the District Judge.

I think at the outset, or at least I hope at the outset, we might lay the ghost of Westinghouse to rest as a result of Evening News decided by this Court in December, because as we read Evening News, it expressly holds that the constitutional misgivings which underpin the decision in Westinghouse had since been debilitated and that therefore --

Justice William J. Brennan: Dissipated.

Mr. David Previant: -- dissipated, a much stronger word, thank you and that therefore, the -- it's no longer authoritative as a precedent and the Court went on to hold that individual claims of course and it strictly bound up us they are with the interest of the collective bargaining agent may and should be considered.

Now, if there are any residuals of Westinghouse by virtue of the statement that the question of standing to sue may be left open for a different occasion.

We believe that we have set forth in our brief here sufficient -- of our position that here there are no uniquely personal rights, that these are rights which are an amalgam of the rights of the union and/or the employees and they are the rights which we believe presently and historically both the individuals and the union should be permitted to pursue particularly when as here, they pursue them jointly in this case.

We get then to this problem which we believe is implicit here as to whether or not, as the complaint here was framed, we are suing on an award under these circumstances.

The -- and I suppose candor would require us to say that when this bill of complaint was filed back in 1960, we were acutely aware of the Westinghouse case and its implication.

Surely, we were not certain at that point as to how we would fare in the Federal District Court on a claim which sought to vindicate the individual rights and employment and back wages as well as the union's right in the interpretation and maintaining the integrity of its agreement.

And this case was presented through the Courts and is presented here on the theory that, what happened in this proceeding was of the nature of an award, it was in fact an award although it does not have all of the classical trappings of the arbitrator, the impartial party selected by the parties to the agreement to come to a decision as to what the parties intended by their agreement.

The procedure we believe fully qualifies as an arbitration, in that, it is a determination made by a group of representatives on the dispute submitted to them for the purpose of determining the meaning and application of a collective bargaining agreement.

It is a formal procedure and the decision, certainly partakes in all sense the nature of an award.

The only distinction being that this was not a matter submitted to an impartial outside tribunal umpire for that determination.

There's nothing that we read in the cases of this Court on the definitions of what is an arbitration or what is an award which requires that a particular grievance procedure and a decision arising out of that procedure.

In order to be classified as an award must follow any particular road or must be involved in any particular, specific formal procedure which perhaps may be characteristic of arbitration clauses which had been before this Court in the Steelworker cases or in Lincoln Mills.

I think that all of these cases and the law indicate that the important thing is that the parties agree among themselves on a procedure for the settlement of their disputes.

The law does not adjure them to adopt any particular or special procedure, but that if the procedure by their likes is well calculated and would in fact solve their problems in the manner which they believe is best for their industry, that procedure is not subject to attack or should that procedure receive less support in the courts in cases of this kind because it is not the classical procedure.

Justice Arthur J. Goldberg: [Inaudible]

Mr. David Previant: If the parties so agreed.

Justice Arthur J. Goldberg: [Inaudible]

Mr. David Previant: Yes.

These parties did hope that in this multi-step grievance procedure, they would wash out most of the grievances which would be of any trouble.

They did not believe and required umpire handling.

They had one unfortunate experience in that regard early in their history and however, I think the record would show that that this particular union under this particular contract has been remarkably devoid of plagiarism with respect to any strikes where there is a contract in this respect and this procedure works for them.

This is the way the parties have agreed they will solve their disputes and it is in accordance with that agreement that this particular proceeding was determined.

There has been incidentally and I would like to emphasize this at no time during this proceedings has the employer or -- taken the position that this procedure was in any way defective, that it was in any way inadequate, that it was in any way unfair.

Justice William J. Brennan: Well, he does, he did --

Mr. David Previant: He did.

Justice William J. Brennan: He pleaded -- pled that it was a sham, did he?

Mr. David Previant: He did take --

Justice William J. Brennan: [Inaudible] proceedings.

Mr. David Previant: Yes.

He took the position that because in his opinion, the refusal to go through a picket line was a strike.

This breached another part of the contract, therefore it was no longer bound by the grievance procedure and therefore it was a sham as far as he was concerned.

Justice William J. Brennan: Well, this is another reason this has to go back to District Court, doesn't it?

Mr. David Previant: Yes, I would say that this position is taken for the first time in the litigation, but again this would be a matter for the Court to determine.

Justice William J. Brennan: Well, I'm looking at the fifth defense at page 17 of the answer, it was raised in the answer, is it?

Mr. David Previant: Yes, I said it was not raised during the grievance procedure.

Justice William J. Brennan: Well, I said in part.

Mr. David Previant: It was not raised during the grievance procedure.

Strangely enough and I would ask the Court's indulgence to add a case to our Footnote 3 called Riss & Company versus Nichaslon.

Justice William J. Brennan: Footnote 3?

Mr. David Previant: Footnote 3.

I think on Page 8 of our brief.

This was a --

Justice William J. Brennan: What's -- what page?

Mr. David Previant: This was a case which was submitted to the Court of Appeals, but some or others did not find its way into this brief, its 355 Pacific Second 304.

This case under the -- a similar grievance procedure, an employees sued this respondent saying that the grievance procedure was unfair as to him because although he had been restored to his job, he didn't get back pay.

And he sought in court, then in the state court, an additional award of back pay and this respondent was there arguing the integrity of virtually the identical grievance procedure.

And I say that the only change of position here is this argument now made that there was a breach.

We say that the parties to the contract are the ones who determine whether there was a breach of the contract.

This was the agreement of the parties, that they would determine among themselves how to apply this contract.

I would make just this last observation in connection with the point that we had structured this lawsuit on the assumption that we would be confronted with Westinghouse when we got here that even if this is not considered an award, it is an interpretation or an agreement by the parties to the contract who are authorized to make such interpretation or agreement.

As such, it becomes a part of the contract, and at such the contract in toto maybe enforced by these petitioners, the union and its members.

So it doesn't make much difference whether you consider this in our opinion.

Whether you consider this particular procedure as ending in an award, which may be independently enforced under 301, or whether you consider it an interpretation of the agreement, an interpretation which the parties themselves has stated they would abide by if made through their own tribunals and by a majority of the tribunals.

Now, on that basis then we say -- we think that the court below, certainly misconstrued --

Justice William J. Brennan: I just have a little trouble with this.

Is this a suggestion that suppose you had a collective bargaining agreement that Jones Smith and Robinson following the strike shall be reinstated and they're not reinstated?

Are you suggesting that there could be specific performance of the provision for reinstatement?

That these were just a mere agreement and not an arbitration whether the --

Mr. David Previant: Well, the suit would be for violation of the contract and for whatever relief the Court might grant and the courts have been granting relief requiring rehiring in very much the same manner --

Justice William J. Brennan: It had been --

Mr. David Previant: -- as in Board cases.

Justice William J. Brennan: -- specific performance and things like that?

Mr. David Previant: There was a time when they didn't, but I think that the entire theory of no more specific performance for personal services, I think that in the cases which came be for this Court.

Justice William J. Brennan: Have we --

Mr. David Previant: There was a suggestion, I think there was a suggestion in Enterprise that these men were entitled to return to work, this was the --

Justice William J. Brennan: I mean, apart from an arbitration award, have we ever said that a provision like that specifically --

Mr. David Previant: I don't know that that specific provision has been before this Court apart from an arbitration award or board order, but I see no difference between an agreement of the parties that an employer agreed to maintain a man on the payroll, or a decision of the Board of Arbitration that he shall be maintained on the payroll or a decision of the National Labor Relations Board that he shall be maintained on the payroll.

Justice William J. Brennan: If that's the Navy --

Justice Byron R. White: But if the contract said that the Joint Area Cartage Committee could amend the contract by a majority vote, you would make the same argument, don't you?

Mr. David Previant: Well yes, and we think that these contracts can be construed.

I don't want to get ahead on myself, we got a case coming up here in several months in which the particular argument under a similar contract where the -- where there was no specific provision merely said the party shall agree as to what the -- what shall happen in particular kinds of disputes.

The only point I'm making here is that, again we don't need the formality of the classical award.

We don't need to have this procedure called an arbitration procedure.

Justice Byron R. White: Just state a contract.

Mr. David Previant: That's all and that's what we have here.

We think we have a solid one and we believe that the parties who are confided by the contract with the power to interpret the contract have interpreted and their interpretation should not be biased and (Voice Overlap) --

Justice William J. Brennan: If you are right Mr. Previant, then as in the previous case, we're talking about seniority clauses.

Are you suggesting that an employer breaches a provision for seniority that the employer -- employee has addressed in the form of action for specific performance of a seniority relief?

Mr. David Previant: Yes, I believe that today in the common law courts and the equity court that kind of relief is available.

I don't believe that the old common law theory that in this kind of a case you're relegated solely to damages would be accepted today.

I don't believe that in fashioning federal law in this field with the --

Justice William J. Brennan: Well --

Mr. David Previant: -- wide precedent given by the National Labor Relations Board.

Justice William J. Brennan: Oh, would this be a 301 -- I mean on the 301, or would it be under a common law [Inaudible]?

Mr. David Previant: Well, this would be an action for breach of contract, I assume under 301, you're talking about a breach of contract.

Justice William J. Brennan: It would have to be under 301, wouldn't it?

Mr. David Previant: Yes.

Justice William J. Brennan: And we haven't yet fashioned any federal law at that time, have we?

Mr. David Previant: No, you have not.

Justice William J. Brennan: So it's still open?

Mr. David Previant: I think in this Court, it is.

Justice Byron R. White: Including the question you had today?

Mr. David Previant: I would have thought that the question we have here today has been decided by this Court, Your Honor.

Thank you.

Chief Justice Earl Warren: Mr. Lawrence.

Argument of H. Bemis Lawrence

Mr. H. Bemis Lawrence: Mr. Chief Justice, may it please the Court.

In asking for the affirmation of the decisions of the two lower courts, the response here today shall be addressed to four defensive propositions any one of which the respondent contends is decisive of this action at bar and in the favor of the respondent.

Now these propositions are as follows; first is the purpose of the Labor Management Relations Act to protect the general welfare of a community minimizing a substantial disruption of interstate commerce, or is its purpose to compel the Federal District Courts to assume jurisdiction of the trivial monetary controversies arising between employees and employers, over wages, vacation benefits and related manner issues which traditionally may have been adjudicated in the local inferior courts.

And secondly, the proposition, does the Labor Management Relations Act require the Federal District Courts to act as the enforcement and collection agency of every grievance award throughout our land regardless of the minuteness of the issue.

Thus in substance, making every grievance award tantamount to an order or to a judgment of the federal court.

Is this true especially as in this case where there is no binding effect where there is no finality to the contract in question as well as the grievance procedure outlined therein.

Third, was a refusal to compel or there was a refusal to employ back the six individual petitioners who abandoned their post voluntarily in order to participate in a strike justify it thus failing to state a legal cause of action in the petitioner's complaint and fourth and last, what state court jurisdiction has been invoked?

Is there concurrent federal jurisdiction without the customary removal procedure?

I feel that -- there was a court that perhaps one of the outstanding questions, issues here today is solely and simply as this.

Shall this Court give to the federal court the right to have the effect or to give to the effect of every grievance award the power of a federal order or federal judgment.

Now the pertinent facts are briefed in this situation.

As Mr. Previant pointed out on January 25, 1960, the six individual petitioners were employees of the respondent.

The Union at Philadelphia, Local 107, the same international union, sent them some of its own members to the local terminal on the morning of January 25, 1960.

And these individuals from Philadelphia commenced carrying and displaying conspicuously strike signs with reference to this respondent.

Without any notice whatsoever, in contrary to various and different provisions of the collective bargaining agreement, these six individual petitioners immediately abandoned their respective post of employment.

Early in the morning, they left.

None of the petitioners, including Local 89 to which they belonged, sought negotiations.

They did not ask for settlement, arbitration as provided for in the written contract.

To the contrary, these six individual petitioners went to the outer entrance of the respondent's terminal and proceed to and did march back and forth near the entrance carrying signs captioned, “Local 89 on strike” and “Riss there is a strike” and physically threatened customers, invitees and other employees of the respondent in acting in concert with each other did strike, commit a tort and work stoppage, all of which are continued for a period of several weeks and without making any attempts of whatsoever to invoke the grievance procedure in violation of the contract.

Chief Justice Earl Warren: How were those facts developed in this case?

Mr. H. Bemis Lawrence: If Your Honor please, Mr. Chief Justice Warren, the -- it is true that there was no evidence taken in the lower court.

The complaint in response to a compliant in the federal court and answer in a counterclaim and a supplemental answer and counterclaim were filed, the matter of which was verified.

In the state court, there was also a complaint filed which was verified alleging these same facts.

Now, there has been no reply denying these facts.

However, there was a controverted record in the local district court and which I do not believe was a part of this official record in which we controverted the claim of damages as the respondent's claimed for damages on the counterclaim.

Now, Mr. Logan as local counsel and if he says all these facts were controverted, I shall defer to his statement because I'm sure that he will be correct about it that there is no reference in the record as to a denial of these allegations.

Chief Justice Earl Warren: Well, this one is in the summary judgment.

Mr. H. Bemis Lawrence: No, sir it was based on an order (Voice Overlap) --

Chief Justice Earl Warren: It was a dismissal of the complaint -- upon the dismissal of the complaint, what facts are we entitled to take into consideration?

Mr. H. Bemis Lawrence: On the dismissal of what facts -- it was only the question of jurisdiction raised at the dismissal, if Your Honor pleases.

That was the only question that was raised in order of dismissal.

Chief Justice Earl Warren: But what I was asking is, is the Court entitled to take into consideration facts other than those in the complaint when it dismisses the complaint for one of jurisdiction.

Mr. H. Bemis Lawrence: No sir, if Your Honor pleases, it is my understanding of the law that the allegations in the pleadings themselves cannot be -- cannot go beyond those allegations in the pleadings themselves.

Chief Justice Earl Warren: In the pleadings or in the complaint?

Mr. H. Bemis Lawrence: It's my understanding, in the pleadings.

Any further understanding that as far as the ground rules are concerned and it was laid in their jurisprudence field or before the advent of the opinion was perhaps that where there is an order for dismissal, summary judgment, any pleadings which have not been --

Chief Justice Earl Warren: Well, he said in summary judgment though.

Mr. H. Bemis Lawrence: No sir.

That's correct sir.

It is an order of dismissal in connection with that point.

I notice on page 22 of petitioner's brief that they referred to the [Inaudible] case and quoting, it says that we cannot make findings of fact different from the allegations of the pleadings and affidavits upon which summary judgment or dismissal was entered below.

It would appear from that statement that there is no distinction between the order of dismissal or from the summary judgment and the word pleading was used rather than just a complaint.

So I would construe from their citation themselves at any pleading, any fact, any allegation and any pleading in the record which is not controverted or which is not the matter would have to stand on its own face.

Again, I've like to make it clear in fairness to Mr. Logan that he says that these facts were controverted, I shall refer to his judgment.

In continuing, a brief with the factual issue, on January 28, 63 days after this incident occurred and while these men were still on strike line, the respondent filed a suit in the Jefferson County Kentucky Circuit Court and it involves the same issues, the same people and all of the petitioners are duly before that Court and they have filed responsive pleadings and the restraining order was entered.

Now, because of the abandonment of their post, the respondent had to go ahead and did go ahead on February 1st and make arrangements for other employees to carry out the functions of those who had left.

Now, these individual petitioners and there's no question about this did not file any grievance whatsoever.

They did not bring up with the counsel or with any other agency desire or expressing a desire to have grievance arbitration and what have you, they left.

Now, the only time the grievance came about was on February the 15th when they returned after pickets, and they had gone back to Philadelphia.

And they came back, these six petitioners and asked to be replaced.

At that time, the respondent advised them that it had already made other arrangements.

And with the case with which this Court's [Inaudible], the case of International Association of Machinist, Lodge 1652, versus International Aircraft Service, I believe this is in their brief, a citation of that is 302 F.2d, page 812 and I quote, “It is a well set of rule that an employer may fill positions left vacant by employees going out on economic strikes and that he is not later bound to displace men hired to take the strikers places in order to provide positions for them” and they cite numerous decisions in connection with that case.

Now, insofar as the argument may be concerned, I feel that is of interest to this Court, to perhaps look back just a tiny bit into the wording and to get a general overall brief understanding of this Act which we are confronted, and Section 301 is included in this Act.

Now reading all, the Labor Management Relations Act as amended, produces a profound and an articulate realization that such Act was never enacted by the Congress for the purpose of settling individual monetary disputes between employer and employee.

To the contrary, we observe in Section 1 of the same Act under the heading of a short title and declaration of policy that neither labor nor management “has any right in its relations with any other to engage in acts or practices which jeopardizes the public health, safety or interest.”

Now I ask, was this done in the instant case, of course not.

Now the same session provides that it's the purpose and policy of the act to provoke the full flow of commerce and to deal with situations “which affect commerce and are inimical to the general welfare and to protect the right of the public in connection with labor disputes affecting commerce.”

Also, Section 101 of the same Act, it says that and I quote, “It is here by declared to be the policy of the United States to eliminate the causes of certain, substantial,” this word “substantial” is used in various places throughout this Act, “Substantial destructions to the free flow of commerce and to mitigate and eliminate these obstructions.”

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Sir?

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Yes Mr. Justice Goldberg.

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Mr. Justice Goldberg, had there been a neutral and impartial arbitrator selected, mutually and jointly by the parties hereto this respondent would have lived up to that adjudication and would not have been here today.

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: There would be no question whatsoever, sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Yes sir, I feel that is all it is.

The main question, Mr. Justice Goldberg is first, is a grievance award, that is the grievance award of a local level, state level, binding, does it have the effect of the federal order or a judgment or is there a --

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: But it does --

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Yes sir, if there was an outside arbitrator.

This, Your Honor, if [Inaudible] ahead a moment ago when you reached and questioned about this umpire handling.

On page 9 here, the Section F to an umpire for decision, that is what the parties had in mind if they arrived at the point where they themselves, this is an interfamily.

This grievance award is merely a vehicle by which the parties themselves in their own families try to work it out and which is -- there's nothing wrong with that, but they realized and they recognized from reading this contract and this Court will too by looking over that they realized their inadequacies that Mr. Previant has pointed out.

And if they get to a point where they cannot agree, then this umpire handling or arbitration, formal arbitration which this Court has held time after time is enforceable by the federal court.

But this Court has never held to my knowledge that a grievance award, a true grievance award and as this Court knows or at least in this situation, lawyers and parties are not permitted at this local level conferences where they get together.

They are not based or they're not fashioned to the assistance of counsel.

They are prepared for the people who get together and they work it out, they enter an order, but there is a great difference between the arbitration award and the grievance award.

The arbitration award is won where the parties mutually agree that they will have federal mission -- mediation board, American Arbitration Association or some other capable person to come in and to listen to their dispute and permit counsel to present the facts for consideration.

They and that has the effect of a binding agreement, but this here, Your Honor will note provides Section 8 of the contract and Section 8 of the contract going on down a little bit farther, Mr. Justice Goldberg pointed out a moment ago, there is no binding agreement upon the decision of the Joint Area of decision.

It is not pointed --

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Yes sir.

Oh, incidentally, this contract, the copy of the entire contract was filed with a complaint.

And I understood that it was made a part, the contracts made a part of the record and went to the Sixth Circuit and also to the record here.

But in the transcript itself, the section to which I refer is Subsection G on page 9 of the record.

Now, let us see and this is what destroys or one of the things that destroys the finality or the binding effect of this contract.

This provides that the failure of any Joint Committee to meet without fault, the complainant said, “Refusal of either party to submit or to appear at the grievance procedure at any stage or, undermined, failure to comply with any filed decision withdraws the benefits of Article VIII.”

In other words, if either party fails to comply then the union has its right to economic recourse, to strike or to picket and they have, I assure you, relied upon that because more than two years, August 1960 up to the present time, they have relied upon that because it had pickets in front of respondent's terminal in Louisville and they are there today unless they withdrawn this morning or last night.

So, that is not binding upon either of the parties.

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Yes, we feel that the respondent feels that under this particular situation that this contract was breached in its entirety.

When these men left their positions without any request for arbitration and joined the picket line that breached the whole thing because I have to point Your Honor also that on the next page, page -- though the -- apparent to that is not in this record here.

The page or the following page -- Subsection H of the -- of this particular contract, page 24 of the record provides -- yes, Subsection H. Down at the bottom of page 24, Subsection H down at the bottom, nothing herein shall prevent legal proceedings by the employer where the strike is in violation of this agreement.

We have pleaded.

We have alleged that the strike was in violation of the agreement.

We have pointed out, it was on page 9 of the record and I'd like to direct the Court's attention to this part that says, “Its Article VIII, the unions and the employers agree that there should be no strike, lockout or illegal proceedings without first using all possible means of the settlement as provided for in this agreement of any controversy which might arise.”

And then following that, dispute shall first be taken up between the employer and the local union involved failing adjust,” but then they go ahead through this grievous procedure.

So we will submit that these provisions of this contract have not been complied with by the Sixth Circuit.

In our brief to the Sixth Circuit, I would like to mention in fairness to the record concerned that the question was raised on page 8 and which is not a part of your record here, assumed of the brief which was filed there, but question of reaching of this contract was raised and the Sixth Circuit in pursuance of it, went ahead and held that this contract was not a finality, it was not a final thing, this contract here because the theory of it is quiet apparent.

If these two parties themselves cannot agree upon a binding contract, they reserve the right there, either one pulls out, they don't appear then it's not but a binding performance of either of them.

The economic recourse may be had or legal procedures maybe instituted by the employer.

So, if these two parties themselves have agreed that there shall not be a binding contract between the two of them, then I will submit to the Court that it is not equitable for if the petitioner or them to ask this Court to make a binding agreement for them.

It is certainly incongruous and inconsistent and will not hold water, but this last point which -- the last provision of the contract which we refer is one mentioned by the Sixth Circuit in its decision.

It held, yes, they respect the right for these employees not to cross a picket line, but there is another section of that same section, other subsection of Article IX and that is on page -- record is on page 20.

Apparently, the Article IX is not in the record.

And I don't know how that occurred, but I've searched my own folder, it is not, but the Article IX was referred to in a decision of the Sixth Circuit and it quotes, “It quotes it and so it is in the record and I quote this portion of it which it must read into the record with which is before the Court.”

We're talking about these employees where they say that they did not have to cross the picket line.

And this is the section which the Sixth Circuit read into it, had to read with the other one to get the full meaning.

The insistence by any employer, that his employee handle unfair goods or go through the picket line after they have elected not to and if such refusal, -- refusal has been approved in writing by the responsible officials of the Central States Driver's counsel shall be sufficient cause for an immediate of striking of all such employers operations without any need of the union to go through the grievance procedure herein.

Now there is no allegation that that was complied with.

There could not be an allegation because it was not complied with.

So, in view of that, it destroys completely and wholly the breadth, the vitality of this collective bargain agreement if it is one but I doubt it, it is a binding one.

The Court has said there is no finality to it because either party can get out of it.

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: We have pleaded that as -- Your Honor has pointed out, we have pleaded that, and the court of -- the Sixth Circuit said that it was a degree of finality.

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Yes sir.

The classical arbitration had that been here again Mr. Goldberg, we would not be here if there had been in this case a classical arbitration.

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: In Chicago?

Justice William J. Brennan: [Inaudible]

Mr. H. Bemis Lawrence: If Your Honor please, I did not have that place here.

Justice Arthur J. Goldberg: [Inaudible]

Mr. H. Bemis Lawrence: Oh, it would be hearsay.

It's not in the record.

I understand that there were two employees and if they could not discuss the facts at length if they wanted to.

If that is referred back to the District Court for trial which I hope will not be, we would introduce it through to the fact that it was a mere sham up there, also.

And I know that would be contrary by my worthy adversaries here but that would be one thing, but gentlemen, as far as this question of this contract is concerned, I would like to refer the attention of this Court to a previous decision and which I believe would be appropriate here.

The same wording this grievance has pointed out of the same type of contract has been included in the Yellow Transit case.

And in that case Mr. Justice Brennan, they've announced the opinion and in that case, in referring to this Article VIII, the question arose as to whether there was a binding contract there for arbitration.

The wording is either identical or extremely comparable and this is the statement of this Court and its opinion, “Since it is clear that the collective bargaining agreement involved in this case does not bind either party to arbitrate any dispute, we agree that no injunction should be granted.”

That is the decision of this Court in a recent case, also the case of Hoover Motor Express Company versus the same union in 217 F.2d 49.

They held that the contract, the same contract which we have here before us, the wording is identical, did not contain an arbitration clause, it must be mutual.

There is no binding effect upon either party to submit to classical or formal arbitration under the terms of this particular contract because it must be mutual.

So therefore, there is not a binding effect as far as this contract might be concerned.

The Sixth Circuit injected based upon the briefs or at least upon the respondent's brief, this question of whether they had the right to go off their jobs, participate in the strike and then come back.

Now, I would like to point to the Court that if this grievance award were given legal effect, it would mean that every grievance award upon the local level involving thousands and thousands of unions and people would have the same effect if on the local level, they entered into a grievance award and take it to a federal court and then it would go ahead and be the same or tantamount to a ruling of the federal court.

I do not believe as what Congress had in mind.

I do not believe that that was this Court has in mind at all, because we know as this Court point out of the Westinghouse case that nowhere in the legislative history that Congress ever show any recognition of this type of suit.

My time has just about gone.

Insofar as this Evening News case is concerned, I'd like to address the Court's attention to the dissenting opinion of Mr. Justice Black in which he gives an excellent evaluation in which I'll not try to repeat but he states that in order for this Court decide whether the suit brought from this case is one of the types which an in -- that individual can bring.

One thing is certain, that case held that the state courts have concurrent jurisdiction.

The state court assumed jurisdiction of this very case and is still pending in Jefferson County Circuit Court of Louisville, Kentucky.

It's still pending.

It was filed first, it's filed before the grievance was ever invoked so --

Justice Potter Stewart: It's not this case.

It's another litigation going out at the same set of facts?

Mr. H. Bemis Lawrence: Yes sir, it involves the same issues and the same parties --

Justice Potter Stewart: You're the plaintiff in that case, are you?

Mr. H. Bemis Lawrence: Yes, we're the plaintiff, you're right again Mr. Justice Stewart, exactly right.

In conclusion, members of the Court, I know that this Evening News Association case has been decided since the summation of my brief.

I can appreciate the issues involved.

What the Evening News case has held, I agree with Mr. Justice Black that perhaps I'm on the same dilemma, maybe he is, but one thing is certain, this Evening News case gives no precedent for the facts involved in this case authority with the permission of the Court, pursuant to the rules of the Court or you want to get an early decision of this but if you give the respondent 10 days to file a supplemental brief and the petitioners 10 additional days to comment upon the fact, we feel that this case has, well, it would be very much appreciated.

In that way, in 20 days, we'd have both the supplemental briefs in.

In conclusion, I would like to point out that yesterday, Mr. Justice Goldberg referred in a very appropriate analogy to history and to logic, I would like to use that same phrase here this morning [Inaudible] that there has been no history, no conversional history in the background of this legislation to indicate that this type of a case was ever intended to be turned lose upon our United State District Courts.

From a logical standpoint, I submit, with all the sincerity at my command, that if this type of case were presented to our federal courts that only catastrophic results would be had and chaos and confusion would be the in line.

Chief Justice Earl Warren: We'll recess.