MACHINISTS v. CENTRAL AIRLINES

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Argument of Charles J. Morris

Chief Justice Earl Warren: Number 61, International Association of Machinists, AFL-CIO, et al., petitioners, versus Central Airlines, Incorporated.

Mr. Morris.

Mr. Charles J. Morris: May it please the Court.

Mr. Chief Justice, Honorable Members of the Court.

At issue in this case is question of whether the general jurisdiction statutes confer upon the Federal District Court’s jurisdiction to enforce a system board award of an airline system board made pursuant to the Railway Labor Act, Section 204 of that statute.

The facts may be very briefly stated, this is, in many respects, a very ordinary arbitration type case.

There were six employees who were requested to work overtime.

They, for various reasons, which were stated in the arbitration or system board record, declined to work overtime.

They were then given a letter specifically asking them to further declining to work overtime.

They were given letters of suspension by the Company advising them that they were suspended, but were to report for an interview the following Monday morning.

These events that I've just described occurred between Thursday and Saturday during the early part of April, 1958.

They then did report as requested but with a union representative.

The union representative went into the interview room and requested an opportunity to be present at this interview and was denied that opportunity.

The employees thereupon declined to present themselves if they were not permitted to have their union representative present whereupon that same day, they were given another letter advising that they were discharged.

This is the sum and substance basically of the case as presented to the arbitration board.

I use that word “arbitration board,” I would be more correct to use the term “system board” because this is the term which is used by the Railway Labor Act and by the contract which we have here.

The matter went to the system board of arbitration which was set up pursuant to a contract.

The Board consisted of two members of the Company, two members from the union.

They deadlocked and pursuant to the procedure set up under that contract, a neutral was brought in, appointed by the National Mediation Board.

The neutral sat with the Board. Further hearings were held and in due time an award was rendered.

The award was joined in by the union members, not joined in by the company members.

It constituted a majority award of the Board, finding that the company violated the contract by denying union representation and finding, based merely upon that, that the discharge was in violation of the contract, ordered the employees, reinstated and made whole as to their lost pay.

The Company declined to abide by the award.

It is paired from this record so I will mention it that various things happened rather promptly.

The company filed a case in state court to set aside the award.

The union responded by filing a motion to -- filing a removal petition to federal court, but prior to doing so, filed the instance suit for enforcement of the award in Federal District Court.

This case turns on the complaint in as much as a motion to dismiss was filed simultaneous with a motion to remand the case.

The Federal District Court, facing his decision upon the Metcalf case which had just been determined by the Fifth Circuit, granted the motion to dismiss for lack of jurisdiction and granted the motion to remand.

The -- I might add so I guess there has been a question, nothing has happened in the state court.

State court is simply waiting on the outcome here.

So much for the facts of the case; the -- perhaps the best statement, and we don't contest this of the rule of federal jurisdiction that we are concerned with, is contained in the Cardozo opinion in Gully versus First National Bank.

We have no quarrel with that.

We call attention particularly to what I think is the crucial sentence there, that is the federal nature of the right to be established is decisive and therefore, I address myself to the federal nature of the right which we seek.

Justice Arthur J. Goldberg: Decisive with [Inaudible]

Mr. Charles J. Morris: Decisive on the question of federal jurisdiction in terms of stating a case -- a question arising under the laws of the United States.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Charles J. Morris: This is the rule as I understand it, Your Honor.

I would ask the indulgence of the Court if you would look with me at our appendix in our brief because carrying us through the nature of this federal right means carrying us through the statutes.

And the statutes are somewhat tortuous and if they are tortuous, it is only because Congress, in enacting the provisions of the Railway Labor Act to be applicable to airlines, it sought and in my opinion succeeded in granting a coequal status to the enforcement procedures for airlines, coequal to what had previously been granted 10 years prior in 1926 to the railroad and to the railroad unions.

And I submit that it is a mere historical accident that the differences appear at the present time between the dispute settlement under the railway portion of that statute and the airline portion.

Both portions provide for two methods of dispute settlement in minor disputes and this will appear as we look at this, but I will mention it first.

The Railway Labor Act, as you know under the rail portion, sets up a National Railway Adjustment Board with various divisions, but it also sets up an optional contractual means whereby the parties can use system group or regional boards of adjustment.

This we will note specifically in a moment.

Under the air portion, for reasons which Mr. Dunau will go into in greater detail, Congress in 1936 simply provided that the National Mediation Board could, if it desired, set up a national board of adjustment applicable to the airline industry.

But also set up as a matter of compulsion and this is compulsory arbitration, make no mistake about it, set up a form of compulsory arbitration under Section 204, but also pointed out in Section 205 that in the event, the National Mediation Board did set up the airline national board of adjustment, then exactly the same option would apply to the airline industry as would have -- as presently applies to the railroad industry.

So, there was that congressional intent to create absolute coequality there, but as a matter of historical accident, we find two things -- three things to have occurred.

One, the railroads and their unions have preferred generally to use the national procedures; that is the formal procedure of the Railway Adjustment Board.

Very few railroads and very few unions, although there are some and we know of three cited federal court cases all but one courts of first jurisdiction noting that such system boards do exist.

They do exist on the railroad, they are not common. On the other hand, the airlines have found the system board procedure to be quite satisfactory generally and there is no effort that anyone appears to be aware of to put into effect a national board of adjustment applicable to the airlines.

But I give you this predicate by way of showing that there was not a congressional intent to create a difference between airlines and railroads, but rather both portions of the statute apply the same type of procedures and leave it more or less to the party, that's to -- and to the National Mediation Board I should say as to which will become predominant.

Justice Arthur J. Goldberg: Mr. Morris, were the existing board [Inaudible]

Mr. Charles J. Morris: Yes.

Justice Arthur J. Goldberg: Was there [Inaudible]

Mr. Charles J. Morris: To the Adjustment Board, no.

I would say that there would not be in as much as the parties have set up, there are more informal procedures in a way which would be comparable to arbitration under Section 301.

There are no provisions.

Justice William J. Brennan: Is there a provision for judicial review that is on the part of these employees or union in a rail system board like from --

Mr. Charles J. Morris: There are three reported cases which indicate that the courts have looked at the matter.

There are no cases which either dispute or fail to dispute the jurisdiction of the federal courts to determine this.

This --

Justice William J. Brennan: Well, that's the problem here, isn't it that --

Mr. Charles J. Morris: Yes, that is the problem here, yes.

Justice William J. Brennan: Well, not assisted by express exclusion?

Mr. Charles J. Morris: No.

Justice William J. Brennan: I see.

Mr. Charles J. Morris: No.

Justice Byron R. White: Would you say that in the railroad cases or that the System Board decision, does or does that the federal court have jurisdiction to enforce that award?

Mr. Charles J. Morris: I would say -- I would say yes, just as the federal court has jurisdiction here.

Justice Byron R. White: Well, yes, you would but for the same reason?

Mr. Charles J. Morris: And for the same reasons.

Justice Byron R. White: But no different reasons.

Mr. Charles J. Morris: I would say --

Justice Byron R. White: Wasn't that reason at all you had no more support for the federal court having jurisdiction of the Railroad System Board and decisions than the airline.

Mr. Charles J. Morris: I would say if anything at the present time, there is more reason to find jurisdiction on the airline.

I don't think Your Honors --

Justice Byron R. White: There are no -- there are no cases on there.

Mr. Charles J. Morris: No, there are no cases on it.

It's more or less an assumption of jurisdiction.

Justice Byron R. White: Between the railroad or the airline?

Mr. Charles J. Morris: Well, there are cases on the airlines, the Metcalf case which we --

Justice Byron R. White: Yes, the other way.

Mr. Charles J. Morris: And that's when -- and one lower court case which came out recently.

Justice William J. Brennan: Well, I didn't fully understand what you said earlier.

I thought you said that there'd been at least three rail system board cases --

Mr. Charles J. Morris: Yes, indicating the existence --

Justice William J. Brennan: -- which got into the federal courts and no one questioned that there was jurisdiction in the federal court.

Did you say that or not?

Mr. Charles J. Morris: Yes, but whether the jurisdiction was there based on diversity or not, my recollection is it does not even appear in the recorded opinions.

The point of this question has not been raised there.

It's not likely to be raised because this is a rather unusual form for the rail industry.

Justice William J. Brennan: Well, would this be true if the lower court is right in this case, this also would have to follow as the Rail System Board review?

Mr. Charles J. Morris: I would say yes.

A fortiori so because and to answer a question which Justice White put to me a moment ago, at the present time, there is greater reason to find jurisdiction.

I don't think the Court need to reach this but there is certainly a greater reason to find jurisdiction here because there is the compulsion to set up the system board rather than the option to set up the system board as it exists at the present time under Section 204.

In other words, absent creation of a National Adjustment Board for the airlines it is absolutely compulsory for the airlines and the air carrier unions to use this procedure.

This difference does exist and we would be deluding ourselves that we did note that difference.

Your Honors, will look at the pertinent --

Justice Potter Stewart: And then the -- and the -- as to railroads, is there a statutory compulsion to set up a national board as I understand it?

Mr. Charles J. Morris: The national board is set up by a statute.

Justice Potter Stewart: By a statute.

Mr. Charles J. Morris: By a statute.

And then --

Justice Potter Stewart: And then optionally they could set up a system board.

Mr. Charles J. Morris: That's right, optionally they can set up a system board if they did that.

Justice Potter Stewart: And here, this is the other side of the coin there's a -- there is an authorization has set up a national board but if that is not done then there's a compulsion to set up system board in the airline, is that right?

Mr. Charles J. Morris: Well, the system board is made compulsory in Section 204.

There is no choice upon the parties.

In Section 205, the National Mediation Board is given the option, not the Court --

Justice Potter Stewart: I see.

Mr. Charles J. Morris: -- it is given the option to set up the board if and when, if ever --

Justice Potter Stewart: A national --

Mr. Charles J. Morris: -- one were set up, then the party would revert exactly to the airline -- to the railway system.

First, I would call Your Honors' attention to the fact that we are dealing with law which is unquestionably and I say unquestionably because it was -- it's conceded by all of the parties here including the court below that we are dealing with federal law.

That whatever it is, whatever enforcement we are seeking, it is -- we must look to federal law to find our guidelines.

Now, the basis for that -- for the initial basis for the federal law, that is the general basis would be in the statute itself, the Railway Labor Act which sets out a requirement of collective bargaining and the entering into of collective bargaining contracts.

If you will look at page 59 of our appendix, the purpose of the statute is first set out and under subheading five of Section 2, the parties and the Railway Labor Act are to provide for the prompt that is the act itself is to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements.

Now, I go through this and I beg your indulgence because this is the fabric from which these items, or the fabric from which this Court and the federal courts must, if I may use the term “find the source” of the federal law.

Actually it's not a great deal or -- I shouldn't say not a great deal of fashioning a federal law is required, of course, there is interpretation but certainly not the degree of interpretation which is required under Section 301.

Section 301 is short, is cryptic and forms the basis not just for jurisdiction as we all know, but for the substantive federal law, relating to collective bargaining contracts.

Here, just as in Section 301 is the fabric of that substantive law relating to enforcement of system board awards.

Under the general duties, under Section 2 first and this is somewhat unlike Taft-Hartley where a requirement of bargaining is put upon the carrier.

Here, there is the following requirement.

It shall be the duty to exert every reasonable effort to make and to make would be comparable to the 8 (a) (5) duty under Taft-Hartley, to make and maintain and this goes beyond Taft-Hartley, to make and maintain agreements.

Here is the federal system setting out a requirement of maintaining the agreement right in the act itself.

Justice William J. Brennan: Well Mr. Morris, am I -- what you have to do, I gather, is to convince us that there's some kind of federal right here which arises under this.

Mr. Charles J. Morris: Yes sir.

Justice William J. Brennan: And you limit this, in other words, for 1331 purposes in Article 330 this jurisdiction only that you have some -- you are asserting some kind of right which arises under federal law, am I right?

Mr. Charles J. Morris: That is correct.

Justice William J. Brennan: And I gather it's contract right, is that right?

Mr. Charles J. Morris: No.

Not only a contract right.

Justice William J. Brennan: It's the 184.

Is that what you're relying on?

Mr. Charles J. Morris: It's 184, it is.

It is not purely and simply a contract right, you will look as the states would --

Justice William J. Brennan: Well, what I'm trying to -- what -- if -- what I'm trying to get to is this so I understand you -- your argument.

You're then going to try to persuade us that a right, there is a right created by 184 by statute, therefore, that you do assert a claim in your complaint which arises under federal law for the purposes of 1331, is that it?

Mr. Charles J. Morris: That is correct.

Justice William J. Brennan: Alright.

Mr. Charles J. Morris: Now, I've used Expression 204, that's the Railway Labor Act form, the U.S.C. form is 184.

I think we've used 204 in our appendix.

But if you will look at page 64, we see precisely now the system board that we're talking about the --

Justice William J. Brennan: As my Brother White just suggested to me, you want us to do a Lincoln Mills job on 204.

Mr. Charles J. Morris: I think this doesn't require very much interpretation and a --

Justice William J. Brennan: As grounded the deciding fact of what it is.

Mr. Charles J. Morris: No.

Well --

Justice Potter Stewart: You said at the last paragraph of Judge Brown's dissent on page 64 of the record that echoes precisely what my Brother Brennan had just said.

Mr. Charles J. Morris: Well, there will -- every statute must have the interpretation.

This is really a short statute, but by comparison with 301 it's a rather long statute and there is much language available to the Court here, much more than was available in Section 301.

But to look at the language of 204, first paragraph sets up the disputes growing out of grievances or out of the interpretation or application of agreements concerning rates of pay rules or working conditions shall be handled in the usual manner, et cetera and then they may be referred by petition of the parties or by either party to an appropriate adjustment board as hereinafter provided.

Now, here is the fabric, the federal right is created, the right to go to an adjustment board which is set up in this portion of the statute the second paragraph.

Justice Byron R. White: [Inaudible]

Mr. Charles J. Morris: This is a federal question.

Where is the finality?

We submit that we have agreed.

Justice Byron R. White: [Inaudible]

Mr. Charles J. Morris: It is suggested if you'll bear with me, Your Honor, it is not only suggested but spelled out I think in words which are incorporated by reference and this the tortuous path which I have to take you through but if you want to jump, jump to it; if you will look to Section -- Page 62, Section 3, 2d because this is incorporated by reference.

If you will notice that the parties in the second paragraph of 204 are required by duty to establish a board of adjustment of jurisdiction not exceeding the jurisdiction which may be lawfully exercised by system group or regional boards of adjustment under the authority of Section 3 Title I.

Now, if you look at Section 3 Title I, you see that the only paragraph which exists there and this is the paragraph I was referring to in the opening of my argument, the only paragraph which exists there describing the system group or regional board, is this paragraph which refers to the establishment of system group or regional boards of adjustment for the purpose and here is the language, for the purpose of adjusting and deciding and these are the terms which exist here, adjusting and deciding disputes of the character specified in this section.

Now, what are disputes of the character specified in this section?

We then again incorporate by reference, the paragraph (i) of Section 3 which is on Page 60.

And here, the nature of the disputes which are referred to are set out and these are --

Justice Byron R. White: The following [Inaudible]

Mr. Charles J. Morris: Yes, I would so argue.

Justice Byron R. White: Contrary to national board?

Mr. Charles J. Morris: Contrary to the national board because it is our opinion that the parties would have the right to contract for that.

They are given the right to contract for that.

Now, is this a question of exceeding the jurisdiction or, does this go beyond or does it not go beyond?

This is a question which this Court does not have to meet.

The point is you will look to the statute to the purpose of the statute to determine the degrees of finality.

The law of course is not developed yet.

We don't know the extent of finality.

I may be just flat wrong in the statement that I made to you, Mr. Justice White.

I may be flat wrong there.

This is certainly contested probably by my opposition, but you look to this federal law to determine these things.

When we look to the law to determine the duty, if the duty is set out there, the duty to establish the Board is set out in the federal law.

We know that it is exclusive that the -- and the decision so hold that it is ex --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Charles J. Morris: You look to the federal law because Section 204 imposes a duty to -- on the parties to setup a system board.

They are left no option.

Justice Arthur J. Goldberg: And that's to proceed to the federal assumption. [Inaudible]

Mr. Charles J. Morris: Alright.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Charles J. Morris: Yes, sir.

Justice Arthur J. Goldberg: [Inaudible], isn't that correct?

Mr. Charles J. Morris: That is correct except generally and this Court has held in such cases as Hanson relating to the union shop question, Steele and Louisville and other cases.

Those come to mind that the imprimatur of the federal statute is on that collective bargaining contract and what the parties put in that collective bargaining contract is a matter of federal law.

There is no state authority for railroads and for unions to engage in collective bargaining and create collective bargaining contracts.

Justice William J. Brennan: Well, Mr. Morris, is that generally or most of the statutes [Inaudible] before or is independently fashioned.

We have to find some federal substantive law of contracts at least as regards the interpretation and scope of the authority of these agencies board, agency board -- system board --

Mr. Charles J. Morris: That is correct.

Justice William J. Brennan: -- the finality or otherwise, don't we?

Mr. Charles J. Morris: Yes.

And you look to the basic source.

You look to the federal statute which is the Railway Labor Act which forms the basis for this collective bargaining and the creation of these collective bargaining contracts.

This --

Justice Byron R. White: Would you be making the same argument here now if you -- if the act had specifically granted jurisdiction to this Court, would you be arguing for federal law?

Would you care which law is applied, whether it is federal or state law?

Mr. Charles J. Morris: Yes, I would Your Honor.

Justice Byron R. White: Why?

Mr. Charles J. Morris: I would care because the policy, the national policy is set out in the Railway Labor Act and we have to look to that and I did briefly allude to some of the provisions, not all of them, we have to look to some of that to determine the interpretation here.

We can't look to 50 different states for instance.

We already looked to this in the cases where unions among the airlines have been enjoined for striking over minor disputes.

Now, before a federal court can determine that they have struck over a minor dispute, that court must look at the collective bargaining contract, at the system board of adjustment and must look at the scope of it and apply a standard as to whether or not, there has been a dispute relating to something which could have been settled by the procedure set up and this determination must be made.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Charles J. Morris: Oh!

Yes, this is exactly what the Court said in Chicago River with regard to National Adjustment Boards and the courts have generally, without any distinction, applied the same rationale to system boards on the airlines pointing out that a strike over a minor dispute is in violation.

Now --

Justice Byron R. White: Is this the -- isn't it -- this is a question of court jurisdiction rather than which law applies and a federal law applies and must apply because of the structure of the act, it will apply even if it's in the state court.

In many cases, federal questions try to take courts with -- upon which you can't get into a federal.

Mr. Charles J. Morris: I don't think we have to question that here, Your Honor.

What we're saying rather what the respondent is saying either here we have a federal question but the state -- but the federal courts do not have jurisdiction.

We're not concerned here about concurrent jurisdiction.

What we are concerned about is whether not the federal courts have the right and the authority to enforce federal law.

Now, it may be that it is possible for the Congress and of course it is possible presumably for Congress to cede all jurisdictions to a state court, but this would take a specific statute which is nonexistent here.

There is no statute ceding such jurisdiction.

The most that can be claimed is that there is that concurrent jurisdiction.

Just briefly, I would mention this to Your Honors that the majority opinion recognized that there were great variations in the standards which would apply and to point out the states statutes said these statutes vary greatly in their coverage, in their procedural requirements, and courts in different states vary greatly in the extent of the review which they gave to arbitration awards.

They vary greatly in their extent to review.

Where do we look?

Do we look to the states?

We submit you look and you must look to the federal standard which must come if it comes anywhere from the Railway Labor Act and the interpretation of that act by the federal courts.

Thank you.

Argument of Bernard Dunau

Mr. Bernard Dunau: May it please the Court.

Chief Justice Earl Warren: Mr. Dunau.

Mr. Bernard Dunau: This is an action to enforce an award issued by a system board of adjustment.

We have a right to be in a federal court with this action if in the words of 28 U.S.C. 1337 it's a civil action or proceeding arising under any law of Congress regulating commerce.

As to any such action, 28 U.S.C. 1337 says you can get into a Federal District Court.

Our specific question then has to be When you seek enforcement of a system board award, are you presenting a claim which arises under federal law?

And as to this decisive element, we are all in agreement.

Petitioners, respondent, and the court below, all agree that federal law controls the enforceability of a system board award.

In the words of the court below at the record page 4445, note 7, “Federal law governs the scope judicial review of an award made by a system board of adjustment under Section 184 of the Railway Labor Act since the application of state law to this question would allow a freedom of review incompatible with the purpose of the statute to allow the parties to arbitrate their dispute with finality.”

When I go to a federal court with a paper called complaint saying, “I have an award that I want enforced” and the judge says, “Why should I enforce it?”

I say, because the rail -- Congress through the Railway Labor Act as amplified by judicial interpretation has said that if I get an award, I am entitled to have it enforced.

Therefore, I lay my claim for the enforcement of this award on federal law and laying my claim on federal law, I am squarely within the confines of the general jurisdictional statute.

Justice William J. Brennan: Well let's see Mr. -- is this different argument from your department?

Mr. Bernard Dunau: No, sir.

I hope that it's not.

Justice William J. Brennan: Well I have noticed you're -- you're appealing the 1337, that's the one --

Mr. Bernard Dunau: Well, it's 1331 or 1337.

Justice William J. Brennan: Yes, that seems to me under both.

You still have the arising under questions.

Mr. Bernard Dunau: The arising under questions is identical under both.

1337 is more natural in this case because it is the Railway Labor Act.

It's an Act regulating commerce and that would take care of any questions of $10,000 or less.

So I think it's more appropriate --

Justice William J. Brennan: But the problem, although you're quite right, the federal law governs, that this would only mean that the federal courts don't have jurisdictions, the federal law has to be applied to state court to prove any access to it if I believe so, does it?

Mr. Bernard Dunau: I think when we say we have a right to go into a federal court under the general jurisdictional statutes, we don't say that mean that -- there isn't concurrent jurisdiction in the state courts, but that is true whenever you can get into a Federal District Court by virtue of the general jurisdictional statutes.

Now, the respondent says, “You're running too fast with this argument”.

The respondent says, “A suit on an arbitration award is a suit on a contract.

And therefore, you are not basing your action on the arbitration award, you're not basing it on the Railway Labor Act, you're basing it on the arbitration award on the contract.”

You see that seems to me to be question begging, because whether I have a good action on this contract depends upon federal law, its Congress through the Railway Labor Act which has said, “Whether I have a good claim or a bad claim.”

And because the law which provides efficacy to this contract claim of mine is federal law, that's what makes it a claim arising under the Railway Labor Act, an Act regulating commerce.

Now, you take the same contention put somewhat differently.

The idea is expressed that here are six employee seeking reinstatement with back pay because of a wrongful discharge.

Now, nothing in the Railway Labor Act confers a protection against wrongful of discharge.

This is conferred only by agreement, so our action is not based on the Railway Labor Act or any protection conferred by it; it is instead based on the contract.

But all this does, it seems to us, is to push the analysis back a few steps, but you come out of the same place.

True, the contract gives us the underlying right and the parties would be free or not -- the parties are free as they choose to incorporate this right into the contract.

But having incorporated the right into the contract, federal law says, “You shall create a system board of adjustment to decide any disputes over those promises.

You cannot go any place but the system board to adjudicate those disputes.”

If that process eventuates in an award, federal law says that that award shall govern.

So it seems to us that in the end, no matter where you begin, you come out with an award which we say is enforceable because the federal law gives us this right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: On our reading, we would be squarely within Shultz.

Justice Arthur J. Goldberg: Would you say why?

Mr. Bernard Dunau: Yes, for these reasons: whether we have a right to then have this award enforced depends upon whether we get this right from the Railway Labor Act.

Whether we get this right from the Railway Labor Act, involves a construction of the Railway Labor Act?

Whether in a specific situation where we bring a particular award with particular surrounding circumstances to a court, whether we will get that award enforced, or whether that award will be modified or vacated, turns on giving effect to the Railway Labor Act.

We're putting it this way.

The federal law gives us the standard for the enforcement of an arbitration award rendered by a system board.

That is a construction of the Railway Labor Act.

Federal law tells us whether in the particular circumstances, this award should be enforced.

That is an application of a federal standard.

It seems to us therefore that in every meaningful sense of Schulz, this is really and substantially a controversy over the meaning and effect of a federal law.

Putting -- put it this way; suppose Texas were to say, “We don't think that award should be enforced which require the reinstatement of the employees particularly with a small employer because that involves personal service and that kind of personal contact that something which we find offensive as against public policy if it's compelled.

Well, Texas couldn't, for a moment, begin to have that kind of a command under the Railway Labor Act because we would say and it would be perfectly clear, this is in conflict with what Congress has provided.

Congress has said we can make such promises.

Congress has said we can have such promises enforced.

So it's the Railway Labor Act.

Congress through the Railway Labor Act which gives us the underlying command here, and that underlying command being federal in nature, it seems to us, we are squarely within the general jurisdictional statutes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bernard Dunau: I would rather not as say, Mr. Justice Goldberg.

I'm afraid I would give more ignorance than to shed light if I try to do that.

What I would say though is I think this thing can be tested in another way.

If this is not federal law which governs, then it's got to be state created. And if we state created, we have no business in a federal court absolute diversity.

Where any place in this process, the state law like any rule at all, state law doesn't compel the establishment of a system board.

State law cannot forbid the establishment of a system board.

State law cannot release the parties from obligatory recourse to the system board.

The members of the system board don't have to pay any attention to state law in construing the agreement.

When they enter an award, state law has nothing to do with whether that award should be enforced, modified, or vacated.

State law doesn't enter into any place in this process.

If state law doesn't enter into it, it cannot be state created.

It must be federal law which we bring into this case, and therefore we have a right to be in a federal court with it.

In other words, when we bring this paper into a federal court, the only law we are bringing in to support our claim is federal law as traditionally interpreted, the Railway Labor Act.

Now, if we are right up to this point, it seems to us that what the posture of this case is, comes down to as this.

We can get into a Federal District Court by virtue of this general statutory grant.

We ca be thrown out of that Federal District Court only if there is something in the Railway Labor Act itself which says that though Congress in 1875 has said, “You can get into a Federal District Court with a federal claim,” Congress in 1936 in enacting the air part of the Railway Labor Act has pro tanto repealed that general jurisdictional grant.

Now, what is there that can reasonably be said in the Railway Labor Act, the air part to say that the general statutory grant which gives us our right to get into a Federal District Court has been impliedly repealed.

Now, the basic argument which is made there comes to something like this.

Congress in the air part has provided that when the National Mediation Board shall think it good and fit, it may setup a National Air Transport Adjustment Board.

When it sets up and if it sets up a National Air Transport Adjustment Board, that Board will have the same powers and responsibilities and all the perquisites of a National Railroad Adjustment Board.

And one of the things about a National Railroad Adjustment Board is that there is specific provision in the rail part of the Railway Labor Act for access to a Federal District Court.

Justice William J. Brennan: Would you be satisfied with the kind of access you get from the -- in a Federal District Court under the railroad --

Mr. Bernard Dunau: No sir, because --

Justice William J. Brennan: You are asking for something, as I recall it, am I right, that when you go from the national board, you get except in cases of money award, you get a railroad at least that's de novo review, doesn't it?

Mr. Bernard Dunau: It says in effect that it's prima facie evidence of the fact stated.

Justice William J. Brennan: So the railroad gets another crack at what has decided but one.

Justice Byron R. White: But that it's so would be -- well the money award isn't being prima facie --

Justice William J. Brennan: Not on the money.

Mr. Bernard Dunau: Well, it's hard to say because you can read these in several ways.

Under the national -- under the rail part it says, an award is final and binding except as to a money award.

And then it also says that the award shall be the prime facie evidence of the facts stated.

Now, I look at that and say the only relevance -- that the only matters which are relevant in a Federal District Court as why shouldn't this Railroad Adjustment Board award be final and binding.

And as to that issue, if the underlying merits of the dispute do not seem to me to be relevant and so I don't think that saying it has prima facie --

Justice William J. Brennan: Well, whatever it may mean, whatever it may mean, you're suggesting that at least if you're entitled to be in a federal court, you get something different in a way of a review or a right to enforce them.

Mr. Bernard Dunau: We would -- we would argue that we are entitled to something more.

Justice William J. Brennan: Something more than the -- that --

Mr. Bernard Dunau: We would say that under this contract, the parties have contracted in their words for final, and binding, and conclusive adjudication with no exceptions with respect to money awards that under the Railway Labor Act having contracted in that way the federal law says, “You're bound by your promise.

This is a good contract.”

And we say, “One of the reasons for parties exercising an option for example under the rail part not to proceed under the National Railway Adjustment Board matter but --

Justice William J. Brennan: It would be a better review.

Mr. Bernard Dunau: They can contract for more finality if they go the other route.

Now, the Congress did tell to the National Mediation Board, when it sees fit it can set up this other system and under this other system, there is a specific provision which lets you get into a Federal District Court.

Now, granting this specific provision, the court below says.

“Well look, if there is a specific provision which lets you get into a Federal District Court from an NRAB award or from a National Air Transport Adjustment award had no specific provision with respect to a system board that negatively implies that the Federal District Court is close to you and you can go only into a state court.

Now, here I think is a fit illustration for Mr. Justice Holmes' famous dictum, “A page of history is worth the volume of logic”, because when you look at the specific reasons that Congress setup his dual system, one can see quite readily that it has nothing to do with whether you should be in a federal court or in a state court.

The original draft of this bill provided as it now does in exact terms for the setting up of a National Air Transport Adjustment Board when the National Mediation Board shall see fit to do so, but it made no provision for obligatory creation of a system board.

The parties were free to create one or not as they saw fit.

If they didn't create one, the National Mediation Board would have to decide these disputes over grievances and interpretation, and application.

And the National Mediation Board at the hearing says, “This is just nonsense.

We would be inundated with work if we have to decide these grievances and contract disputes.

Our traditional job is to deal with major changes.”

We, therefore, suggest if you don't think it's wise to set up a National Air Transport Adjustment Board now, that you require the parties to create an obligatory system, you make it -- you oblige the parties to create their own system.

And so the parties were obliged then this suggestion was adopted, the parties were obliged to create their own system as the equivalent of the National Railroad Adjustment Board System and the National Air Transport Adjustment Board was not created, why, because Congress said and this appears in the committee reports, there were then no agreements on these air carrier properties.

There would be nothing for a National Air Transport Adjustment Board to do and Congress have said, wanted to save the money that would go into setting up a bureaucracy of a National Air Transport Adjustment Board until it was necessary to do so.

Now if the reason for the deferral of setting up this National Air Transport Adjustment Board is economy-mindedness, certainly that is not a reason which shows that Congress intended to foreclose access to a Federal District Court.

Justice William J. Brennan: I wonder Mr. Dunau are you arguing that perhaps the major premise was that of course there was enforceability, giving finality to the adjustment system, adjustment board award and that the special provision for the Rail National Adjustment Board review is a limitation upon the federal jurisdiction to give a complete enforcement to final award of system board.

In other words, why don't you use the special provision for review for these limitations of the National Adjustment Board award in your favor?

Mr. Bernard Dunau: Well, I think we can't use it in our favor.

Justice William J. Brennan: Am I suggesting it to the Court?

Mr. Bernard Dunau: But you're making -- you're extending the argument beyond I -- where I was willing to carry it.

Justice William J. Brennan: I see.

Mr. Bernard Dunau: There are things in the sys -- in access to a Federal District Court under the rail part which would be favorable for example to a person seeking enforcement of the award.

He can get his attorney's bills paid.

Now, he's not going to get his attorney's bills paid if you're in a federal court under the general jurisdictional statute.

On the other hand, he's going to have to, if he's got a money award facing trial de novo on that, in our view, he's not going to have to do that if he can get into a Federal District Court through a system board which applies conclusiveness.

So I think that you can argue that two ways and all we seek to show is that whatever the reason was for setting up a National Air Transport Adjustment Board and that is deferring its creation, it has nothing to do with Congress saying, “We wanted these questions of disputes over arbitration of awards not to be in a federal court.”

On the contrary, they didn't want to set it up at this point because they wanted to save money.

They set up the national -- the system board as an equivalent of the National Railroad Adjustment Board at least in terms of getting a final and binding disposition or a way of disposing of these controversies and here, I would carry the argument at least to this point.

Since there was supposed to be duality, both of these systems were supposed to be just as good as the other in resolving these disputes, if Congress said it wanted that these disputes to be in a Federal District Court when an award was issued by the National Railroad Adjustment Board, certainly carrier would argue that it was not a verse to have in the same kind of dispute in a Federal District Court when the award was rendered by a system board.

Justice Potter Stewart: Do you think this was sort of inadvertence on the part of Congress?

Mr. Bernard Dunau: I would think it clearly that it was simply an inadvertence on the part of Congress.

They were concentrating up on another question, “How do you resolve the dispute where you don't have a National Air Transport Adjustment Board and you don't want the National Mediation Board?”

This was the language which was directed to that problem and nothing in that problem or the way they handled it remotely imply that they intended a pro tanto repeal of the general jurisdictional status.

Justice Byron R. White: What if the National -- in Railroad National Board situation in our Congress specifically suppose, all decisions of the national board the Court reviews and there's only and only the facts were -- of some -- sound by the Board where there are some significance in the Court.

Now, your argument is that the Court is -- the Court's job stops with enforcing the award.

That it doesn't go behind the award to either the facts of the law and that under this -- under this act, the system board's decision is final like an arbitrator's decision.

It's final and isn't it exposed to anymore reviews in our arbitrator decision in the 301 Enforcement Act?

Mr. Bernard Dunau: Ultimately, we would make that thing.

Justice Byron R. White: So that really doesn't make much difference, does it, of what the law is applicable in the Court -- in the courtroom wherein an action be enforced?

Mr. Bernard Dunau: Oh yes, it does because Texas may have a different rule as to finality than Alabama, and Alabama may have a very different rule than Hawaii and if it's state law that's --

Justice Byron R. White: Well no, I'm not saying -- I'm not -- I'm saying -- I'm saying that federal law applies -- the federal law has the finality applies by – just as you argue it, but it doesn't make any difference of what law is applicable to the Court.

The Court anyway, it doesn't make and in what law is applicable behind the award.

We're dealing up to the making of the award.

Mr. Bernard Dunau: If Your Honor has suggested that a state court is just as good a court as a federal court to apply federal law, I'm not disposed to quarrel as to that --

Justice Byron R. White: (Voice Overlap) there isn't any thing to enforce -- accept to enforce the award.

Mr. Bernard Dunau: No, that could have raise in some very substantial problems with respect to what is the scope of our review.

Well, I would like to say and hope that the law will ultimately develop to a high degree of finality and I'm not really certain where the law will go, that I think it's going to take a lot of cases before that's going to be settled.

Justice Byron R. White: If this is your argument, that it's final, even money award.

Mr. Bernard Dunau: Yes sir, it is.

That's our argument.

But --

Justice Byron R. White: And you're saying in this specific case that there is no room for the Court to look behind this award as to upon the merit.

Mr. Bernard Dunau: That's right.

Justice Byron R. White: On either the facts of the law.

Mr. Bernard Dunau: That's correct, sir.

Justice Byron R. White: And in this -- on this basis that it's merely a question of which the Court didn't -- if it's a remedy problem.

Mr. Bernard Dunau: Well, let me then answer it in two steps.

I say there is no room to look behind the award as to the facts or law because federal law says there is no room to look behind the award as the federal law.

So I look to the federal law and if I am right as to that, then no one can say I think that the only place I can go, is to a state court to enforce that federal law because Congress in 1875 has since has said, if I have a claim founded on federal law I have a right to get into a Federal District Court or to a state court as I choose.

Justice Potter Stewart: Well as a practical -- as a practical matter though if you accept my Brother White's premises, well what differences does it make whether you get your relief from the state or a federal court?

Mr. Bernard Dunau: But if we wanted to be more practically, it may make a great deal of difference depending on what state court system you are in, because no matter what the state law or no matter what law may be as it is spelled out in the books as it's applied at a trial court level, it may make a great deal of difference whether you got a sophisticated judge, a sympathetic judge, a judge who is more congenially attuned to here as a certain thought --

Justice Byron R. White: Not applied in a federal court.

Mr. Bernard Dunau: It certainly does Your Honor and --

Justice William J. Brennan: There aren't as many of them.

Mr. Bernard Dunau: [Attempt to Laughter] There aren't as many, Your Honor, and I suppose what I am saying is in the management of a litigation if I can have a choice between a state court and federal court, I can make my choice based upon my own judgment as to where I am better off and Congress by enacting the general jurisdictional grant has said that with respect to federal rights, you can go to a federal court and I suppose one of the underlying reasons for that is to remove parochialism from the enforcement of federal rights even though they are supposed theoretically to the justice well enforced in the state court.

Chief Justice Earl Warren: Mr. Hudson?

Argument of Luther Hudson

Mr. Luther Hudson: May it please the Court.

I'm under the impression -- I don't have much time before adjournment so I would say first that I'd like to interpose a defense of the state courts.

I think that counsel is a little unfair to them.

I have practiced in both the state and federal courts rather ambidextrously for almost 30 years now and I think that the juries and the judges come out of just exactly the same factories.

They come out of the same homes.

They come out of the same schools.

I don't think that it's quite fair to say that -- or I'll put it this way.

I suppose that the judges of the Supreme Court of Nebraska may go home and tell their wives that they are on the best court of the United States and I suppose members of this Court may say the same thing, but I think it's little unfair to say that the state courts were incompetent to enforce federal law when they do it everyday in day in and day out.

Now, I have said that and I have that out of the way so let me argue the case.

This is nothing but a jurisdictional case and it is a simple action filed on a very brief complaint in a federal court asking that an award be enforced.

That's all it is and as I listen to the opposition, suppose this and suppose that and point out what might arise and what might not arise, I was wondering where in the complaint all of those points were raised.

If I am not mistaken, that the District Court of the United States, the jurisdiction is determined exclusively from the complaint.

I am not mistaken that it is a court of limited jurisdiction and that jurisdiction must appear on the face of the complaint.

All in the world this complaint says is, that incompliance with article -- he calls it 204, I've always called it 184 because I work out in the United States Court annotated, it's at 204, the parties entered into a contract and the result of that contract, an award came about and the man wants to enforce the award.

It does not say that he, the plaintiff in this case, has a right given to him by 184.

It doesn't say that there is a right there that was denied by this contract or by this defendant.

It simply says that he has a contract.

He doesn't claim that 184 says that Mr. Cornstubble is entitled to have his job back.”

He says that there's no award, it says that.

Now, I say he says true that the contract was ordered by Congress that we should enter into the contract.

In a sense, any contract action arising under the Constitution of the United States because I think we're still free men and we still have the right to enter into contracts and if you carry the argument to its complete absurdity, then any action to recover on the contract is an action arising under the Constitution.

It says, “I have the right given by the Constitution to enter into a contract,” but you do not get the jurisdiction in the District Court.

You do not get the Court of a limited jurisdiction simply because somewhere in all of this there is a federal statute.

The counts of argument would be of real sound to me.

It would sound to me well.

It would sound to me perfectly expressed, if you are arguing the jurisdiction of this Court.

If you are arguing the jurisdiction of this Court to grant certiorari, if you are arguing that this Court when a federal statute have been misconstrued, when it had been misapplied, that when a state court had done something wrong with it that this Court had jurisdiction.

He's making no distinction between the jurisdiction of the District Court and this Court, and if there is no distinction then I don't belong here and the Circuit Court was wrong in this case and the Metcalf case.

If there is no distinction between the District Court's jurisdiction and this Court's jurisdiction under the general jurisdictional statutes then the trial court was wrong and so were the Circuit Courts and so am I.

But the reason there is no jurisdiction is just because of the distinction between the jurisdiction of this Court and the jurisdiction of the District Court.

The jurisdiction of this Court is determined after the facts of --

Chief Justice Earl Warren: We'll recess then, Mr. --

Print this transcript Transcript: 

Argument of Mr. Chief Justice Warren

Mr. Chief Justice Warren: International Association of Machinists, AFL-CIO, et al., petitioner, versus Central Airlines Incorporated.

Mr. Hudson.

Argument of Luther Hudson

Mr. Luther Hudson: Mr. Chief Justice and members of the Court, when a lawyer stands up to argue a case before the Court, the traditional, may it please the Court, is always seem to me to be somewhat like the same lawyer who holds up a high ball to his friend and says, “here is to you” and drinks it himself.

He, in a sense, has intention of pleasing himself or his client by his argument rather than the Court.

Now, I express that view to an English Solicitor and had a 45-minute lecture, as a result, as the derivation of that phrase that it had nothing to do with making the Court happy, that it derived from the, I suppose law equivalent of, may the Court be pleased to agree with me and grant my prayer.

And that it was used, he told me and I'm sure he's right, in a sense that may I convince the Court, may I get the Court to agree with me.

Now, if I'm going to get the Court to agree with me in this case, I think that I'm going to have to argue the case not with a broad-brush that was used by counsel for the petitioners, but to confine the argument as much as I'm permitted to the exact facts of the case, what is actually before this Court.

What we have here is a case in which a complaint was filed and it was dismissed for want of jurisdiction.

We haven't tried the case on the merits, had the petitioners elected to accept order of dismissal and try it in state court.

We might have been here on the merits and the counsel could have pointed out how he had been mistreated or I might be able to point out how the Texas Court had misinterpreted the law depending on the outcome of the trial, but it is not that case.

We have here a simple question of the jurisdiction of the District Court to hear a lawsuit.

Not a theoretical lawsuit, not a lawsuit that might have been filed, not involving questions that might or might not arise, but one that is presented by the complaint filed in this case.

The complaint fails to show jurisdiction for at least two reasons, one, which, frankly was not raised in the trial court of the court below and that is that this complaint was based solely on Section 1331 (a), there being no diversity.

And there was a failure to allege that each of the individual plaintiffs had a lawsuit involving more than $10,000.00.

I don't want to spend a lot of time arguing the point, but I do want to suggest one thing to the Court.

In the reply, petitioners have asked to leave to amend under, I believe that's Section 1653 with provides that amendments to this -- to furnish defective -- correct, defective allegations or jurisdictions may be made on the terms in the trial or Appellate Court.

Justice Hugo L. Black: In their reply where?

Mr. Luther Hudson: I beg your pardon sir.

Justice Hugo L. Black: You said in their reply where [Inaudible]

Mr. Luther Hudson: Yes sir.

I --

Justice Hugo L. Black: Was it asked in the lower court?

Mr. Luther Hudson: No, sir.

At this Court, we didn't raise it in the lower court.

I believe it's on page 8 of the reply brief for petitioners, the blue one.

It is Section 1653.

All I want to suggest third to the Court is this; there are no cases under that section, but I think the undoubted general rule is that no man can be allowed on appeal to make incorrect a correct judgment.

Justice William J. Brennan: [Inaudible]

Mr. Luther Hudson: No sir.

Justice William J. Brennan: [Inaudible]

Mr. Luther Hudson: I understand that they would like to include 1337.

Justice William J. Brennan: [Inaudible]

Mr. Luther Hudson: No sir, it does not.

That's the point.

The point is that the petition in this case was filed under 1331 which has the 10,000 limitation.

Justice William J. Brennan: [Inaudible]

Mr. Luther Hudson: Well, I read it as being both, but for the point I want to make Your Honor, I think it's -- well, I'll assume it either way or assume it's both.

My point is that under this Section, the right to amend, adapt that any party after he has a judgment against him in the trial court, can be allowed to amend to show that the trial court's judgment is wrong.

To reduce it to absurdity, a suit is filed without diversity in the United States District Court on an ordinary automobile accident and the court dismisses it because there's no diversity and there's no federal question.

So on appeal, leave is made to correct it by showing that the suit is one which does involve a federal question setting up an entirely different cause of action.

Now, I don't mean to make a big point of it.

I just want to say that this particular statute has never been interpreted by this Court, but -- and I find no cases under it.

The -- but the -- I just doubt that a -- an Appellate Court can render, can permit an amendment which will make a trial court's judgment wrong.

I think the statute means that amendments may be allowed to validate a judgment of the lower court not to make it incorrect.

Now, that's rather narrow point and I'd like to pass on to the real point in the case.

Justice Hugo L. Black: But may I ask you just one question --

Mr. Luther Hudson: Yes sir.

Justice Hugo L. Black: I assume if the complaint shows facts which would justify applying -- exercising jurisdiction of the [Inaudible], you wouldn't claim that they have to say that this is under 1337, would you, originally?

Mr. Luther Hudson: If -- Your Honor, I'd say no and yes and let may put it the -- first, if it had not been for the specific allegation as to the fact that this was under 1331 (a), a specific direct allegation, my answer is Your Honor, of course not.

If on the other hand, in this particular instance, there was a limitation as to what they were claiming jurisdiction under, that was the case presented to the trial court.

He was told, we say there is jurisdiction here under 1331 (a).

I don't mean to intimate for one minute, had there not been the limiting allegation that a general allegation and the facts were alleged which brought it under a particular federal statute that it would be defective.

Justice Hugo L. Black: Well, as I recall it, the courts consistently held even in criminal cases that an indictment need not allege a particular statute.

The facts bringing under it and it may allege that it's under one statute and the facts may show it under another.

That's generally recognized already in the indictment, would you draw a distinction in a civil case?

Mr. Luther Hudson: Your Honor --

Justice Hugo L. Black: -- the facts.

Mr. Luther Hudson: -- you had me at a terrible disadvantage.

The only criminal case I ever tried, I defended 40,000 cases [Inaudible] the only criminal case I ever tried.

Justice Hugo L. Black: I hope you got them all.

Mr. Luther Hudson: I got them in a suspended sentence. [Laughter]

And I don't know that rule, but to be that as it may that the point is here and I don't want to pass it by.

Now, let me --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Luther Hudson: Your Honor, that was to render correct the judgment of the lower court, not to make it incorrect.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Luther Hudson: Then again, Your Honor, I say that to make it correct and to obligate the necessity of the reversal.

I don't question the right of the Court to do that.

I doubt that the Court has -- well, lawyer from the [Inaudible] ought not to say the power of this Court.

I'd say the Court should not use the same power to make the correct judgment incorrect.

But let me pass to the main points in the case.

This is a suit by six plaintiffs, each of whom has an award in his favor and each of whom wants to have that award enforced.

Now, the award is not under the Railway Labor Act in the sense that it's under the Railroad Adjustment Board.

It is not under the 301 of Taft-Hartley Act, that type of thing.

This is a system board of adjustment.

The --

Justice Hugo L. Black: How was it created, under what law?

Mr. Luther Hudson: The -- there is a statute 184-2045 U.S. 184 which orders the parties to enter into an agreement providing for a system board of adjustment.

The --

Justice Hugo L. Black: Federal statute?

Mr. Luther Hudson: Yes sir.

Justice Hugo L. Black: Federal --

Mr. Luther Hudson: Yes sir.

That is no question but what the contract was entered into under that statute and that will let me bring one of the points I want to make.

There are ‘any number' of cases, I'd say any number, there must be 10 or 15 cases in which both this Court and the Circuit Courts have said that a refusal to abide by that law and enter into a contract is a federal right.

That is the cause of action to force a compliance with that statute.

There are no cases which says that -- which say that after you have complied with the statute, a cause of action arises under it.

I can make an illustration Your Honor.

In my state as in most states, there is a statute that says, automobiles must be operated with adequate breaks.

An allegation that the automobile was operated with breaks that were inadequate would arise under that statute, but an allegation that an automobile was equipped with adequate breaks and the statute complied with would not rise under that.

So we come to the single question and I think it is in this case and that is where the plaintiff's cause of action arises under the federal law.

And for that purpose, Your Honor, it makes no difference whether it's 1331 or 1337.

The test arises is the same under both.

First, let's see what the plaintiff's complaint shows.

All he says -- all he says is that back in 1955 or 1957, I've forgotten which, a contract was entered into as required by the Railway Labor Act between the union and the company.

And then as part of that contract, there was a system board of adjustment created that these six individual employees were discharged and each filed his grievance and each was processed up to including the system board of adjustment which deadlocked and a neutral was called in and the neutral entered award which ordered reinstatement with back pay.

And to answer the question which Mr. Justice White asked, this award is not a money award because the amount is not stated in it.

It is merely that is left for determination either by the party's agreement or by litigation.

So that is the lawsuit that he alleges.

He says he wants that award enforced and for the court to determine the amount that he's entitled to, and order the defendant to give him back his job.

Now, let's stop there, attached to the petition is a copy of the award that he's suing on, the award that he says, “Gives him a cause of action.”

The award that he says entitles him to the relief he asked for.

That award doesn't mention the Railroad Labor Act.

It doesn't appear in the award even by inference or by a reference.

It refers to a contract.

It refers to provisions for the working of overtime and the giving of notices for the processing of grievances and for the representation by union representatives of the employees and grievance procedures.

He sues here not by a reason of statute.

There isn't a statute in the books that says that he is entitled to reinstatement.

There isn't a statute in the books that says he's not entitled to reinstatement.

There's not a statute in the book that says he works overtime.

There's not a statute in the book that says we can discharge him if he doesn't work overtime when he's ordered to.

There's not statute in the book that says that the grievances must be handled as they were in this case.

There is no possible statute which says that this man can recover or cannot recover.

Now, on the face of the complaint, what federal question is raised --

Justice Hugo L. Black: What are the keywords of the statute, jurisdictional statute that you think would construe this?

Mr. Luther Hudson: The -- if you mean 1331 (a).

Justice Hugo L. Black: Yes.

That I think you've just said.

Mr. Luther Hudson: Both of them say -- I can read them to you, but they are so close together that it matters one of them says this 1337 arises under law as regulating commerce.

And the other one says arises under the laws of Constitution and credos of the United States I believe is the phrase.

I'll read them to you if Your Honor --

Justice Hugo L. Black: Well, that's what I thought.

Haven't we construed those in a number of cases, one way or the other?

Mr. Luther Hudson: You have and you have construed them to mean and I think the -- possibly the Pan American case was the latest one, I'm -- one of my greatest fault as a lawyer is not remembering the style of the cases.

I can read them I hope and I think I can read them, I know.

And I hope I can understand them, but I have a hard time remembering styles, but I think the Pan American is probably the most recent case.

Justice Hugo L. Black: I'm having that same trouble now because I wrote one many years ago, from that arising under and I can't remember the name of it.

Mr. Luther Hudson: But the -- under --

Justice Hugo L. Black: But we have to construe it?

Mr. Luther Hudson: But the -- under those cases, the fact that the cause of action has its origin in a federal statute, does not give the District Court jurisdiction.

The cause of action itself must be based upon the statute.

It must show on the face of the complaint under those authorities.

It must show on the face of the complaint that the constitutionality, the construction or the application of a federal statute will be necessarily instant to a judgment in the case and you cannot get that into the complaint in this case.

The counsel for the opposition in effect conceded that yesterday.

He was asked the question whether -- and I believe it's Mr. Justice Potter asking the question, whether or not the failure of Congress to put a provision for federal jurisdiction in the airline portion of the statute with inadvertence and he answered yes.

Now, I concede to some extent the necessity of courts taking care of mistakes but I do not concede the right to include a provision, “suits to enforce awards maybe brought in the federal court.”

I've got a good story that will illustrate my point and I want to tell it because it illustrates it and because it's a good story.

In legislature back in 1930s when I was working away through school, I remember a Senator by name McGregor.

Mr. Justice Clark may remember him.

He was rather powerful and effective State Senator.

And his wife was badly injured in an accident because she got on one of these roads that had a one-way bridge.

And he started to crusade to require bridges in Texas to be wider and he got this bill passed.

And it was a slight mistake and he left out the “G” of “bridges” and the statute required all brides in Texas to be 40-feet between the bucker systems.

Now, that's large even for Texas.

Justice Hugo L. Black: I assume that was not the request that his wife had made?M

Mr. Luther Hudson: No sir may -- I say that the Court would I think, as matter of reading the caption and reading the emergency clause, it'd be justified there in inserting the “G”.

Certainly, I've got married on the assumption that the “G” was in there and my wife could not qualify.

Now, that -- let me make the point I was trying to make a minute ago.

I don't question for a minute that when you have a statute which clearly shows that it regulates bridges and that it is -- deal solely with bridges that you can insert a “G”.

But when you have a statute which plainly does not contain a provision saying, “Suits to enforce the awards of adjustment boards shall be brought or maybe brought in the federal court.”

I humbly say that the Court cannot enact that statute.

Justice John M. Harlan: Does 1331 do that?

Mr. Luther Hudson: No sir.

Justice John M. Harlan: [Inaudible] cause of action established in the federal statute?

Mr. Luther Hudson: That Your Honor is to –

Justice John M. Harlan: [Inaudible] supposing the statute would have said, “The award would be [Inaudible],” what would be your position?

Mr. Luther Hudson: Had the statute said –

Justice John M. Harlan: It should be filed.

Mr. Luther Hudson: Yes sir.

My position would be the same as it is now.

Justice John M. Harlan: Your position would be the same?

Mr. Luther Hudson: Right, yes sir.

Justice John M. Harlan: So, would you say the statute itself doesn't have it in its four corners, a [Inaudible] provisions saying a suit enforced could be brought to the federal court.

Mr. Luther Hudson: No, now you're pushing me a little farther than I want to go Your Honor.

What I say is this statute, you just -- you didn't change the statute except to provide the one additional sentence.

Had the statute provided the mechanics, had it set up the provisions that would be enforced, had it made the provisions that are in the contract and had that provision in it, then I would agree instantaneously that under 1337 at least or under 1331 (a) if there's more than 10,000 involved, there would be jurisdiction.

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: You mean as I had –

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: The -- that would be right Your Honor because then the cause of action would be derived from the statute.

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: Then the question is solved.

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: No sir, but it would be one in which Congress has specifically provided federal court jurisdiction as they haven't –

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: Oh certainly.

I don't question that.

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: No sir, I -- if I may.

Your Honor, you asked me two questions.

Can I answer them separately?

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: All right.

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: Yes sir.

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: I think they are now and I think they would be then, yes sir.

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: Yes sir, I think that's true in both ways.

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: As the complaint was presented to the District Court, the answer is yes.

I say that.

Justice William J. Brennan: [Inaudible]

Mr. Luther Hudson: From this Court, I would like to say it was reference to that particular question, that of course as the substantive law evolves, there is a very little of it now as particularly -- certainly as to this particular type of –-

Justice William J. Brennan: [Inaudible]

Mr. Luther Hudson: I beg your pardon.

Justice William J. Brennan: [Inaudible]

Mr. Luther Hudson: Your Honor I found one District Court case which the --

Justice William J. Brennan: Not in this Court.

Mr. Luther Hudson: No sir.

Justice William J. Brennan: [Inaudible]

Mr. Luther Hudson: Well, I suppose the Court will fashion a law of some sort to cover this.

I will say this, I was hoping that someone would point out to me as I think you're leading up to that the reason this is final is not because this Court says that it's final or not because the statute says it is final but because the party said it was final.

And I was hoping somebody would ask me that so that I could point out that's just what I'm arguing, that that is the point of the whole thing.

If their party's statute says that these boards cannot have jurisdiction exceeding that of a board under the Railway Adjustment Act.

Now, it doesn't say they have to be equal.

It can be anything up to that, but no more.

Consequently this contract could have had a provision to the effect that the award should be prima facie evidence.

It could have a provision that either party could sue on it.

It could have had –-

Justice William J. Brennan: [Inaudible]

Mr. Luther Hudson: It actually says that --

Justice William J. Brennan: [Inaudible]

Mr. Luther Hudson: No sir.

Excuse me Your Honor, I'm sorry, I answered too quick.

If you mean the labor contract, the union contract, yes.

But as far as the arbitration or the adjustment board contract, it says, “The award shall be final and binding.”

Justice William J. Brennan: [Inaudible]

Mr. Luther Hudson: Yes sir.

I'd not -- I do not want say that as in the present status of the situation that they are not part of the same agreement.

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: No, it excludes certain things from arbitration or from the system board.

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: It purports, yes sir.

Justice Byron R. White: As a matter of law, would you say [Inaudible]

Mr. Luther Hudson: No sir.

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: No sir.

I hope to -- I don't want to argue the case on the merits, but to be -- to answer your question truthfully, no sir.

I hope to convince either a state court or a federal court.

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: Your Honor, the field we're in is so scarce of law, I expect to take that position in second, I expect –-

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: Probably, to the extent there is any.

Justice Byron R. White: Federal law interpreted this and [Inaudible]

Mr. Luther Hudson: Your Honor, you cannot argue federal law when there isn't any.

Now, to the extent there is any, I'll be arguing it but to the extent there isn't any, I'm going to be arguing state law.

Justice William J. Brennan: [Inaudible]

Mr. Luther Hudson: Your Honor, I wish I was up here arguing this on the merits now.

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: Correct.

Justice Byron R. White: And it currently involves a [Inaudible]

Mr. Luther Hudson: They are participating and fastening it and to the extent that there is federal law, to the extent that there are decisions, to the extent that there is I suppose policy.

I don't question that that would govern, but to the extent there is none, I will argue a case from Hawaii.

I don't mean that facetiously.

I mean to the extent that there isn't, to the extent that it's logical, to the extent that it fits in with the decided cases.

I will –-

Justice Arthur J. Goldberg: [Inaudible]

Mr. Luther Hudson: I can very easily and I can stay inside the record and do it Your Honor.

This time, I don't mean to tell the Court because when we try this case, there will be amended pleadings.

But under the current pleading, the easiest one to state, the one that I think shows on the face of the record is that these six employees were discharged for two reasons.

They were ordered to work overtime and refused.

Second, they were told to report and give their reasons for their refusal which they refused to do.

The award in this case decided only that they were justified in refusing to give their reasons because the union representative wasn't present.

He expressly refused to pass on the right to discharge these men for refusal to work overtime.

My point is, as I put it in the brief, an employer fires an employee for murdering his foreman, burning down the plant, and wearing a red tie.

And the arbitrator decides that wearing a red tie to work is not grounds for firing him. Consequently, he needs not to decide whether murdering the foreman or burning down the plant were sufficient grounds.

Justice Arthur J. Goldberg: In other words, if you [Inaudible]

Mr. Luther Hudson: Under the contract that on the face of the award, he refused to decide something that was necessary to dispose of the case.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Luther Hudson: On the base of the plead -- basis of the pleadings now filed, I would argue that the award is not within the scope of the contract that he had no right to decide only one issue before him of necessity if he had decide both issues.

I may, as I say, I don't mean to mislead the Court when it gets back up here.

I don't want to be somebody to remember what I said and say, “No, that's all you're going to claim,” but under the present pleadings, that's based to the Court, all right.

Justice Arthur J. Goldberg: May I ask you another question, Mr. Hudson.

Mr. Luther Hudson: Surely.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Luther Hudson: Your Honor, in the few cases that we had in the past, that was true partially.

It was not true in the situations where, for example, insurance contracts provided for arbitration of damages.

Those were executory agreements.

There is -- it isn't true on the other hand, the State of Texas after the arbitration agreement has been made between parties enforces it.

And here again, I'd like to say that counsel has howling before he's hurt.

There is, to my knowledge, no case in Texas to cause him heartburn over the Texas rule with reference to arbitration of labor disputes.

There's only one that ever got to the Supreme Court that I know about in the last ten years.

And there's certainly nothing in that case to cause him to worry and I think that we would be much better off here to criticize the Texas courts if we had to try this case on the merits and they had done something real bad.

They may do something bad to me Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Luther Hudson: Yes sir.

Justice Arthur J. Goldberg: [Inaudible] and there they simply brought to the state court to require [Inaudible]

Mr. Luther Hudson: Yes sir.

Justice Arthur J. Goldberg: The whole state law will provide [Inaudible]

Mr. Luther Hudson: I'm not there either.

Justice Arthur J. Goldberg: [Inaudible] but suppose the state law was [Inaudible] importance, what was done on the situation under this contract and under this statute?

Mr. Luther Hudson: I don't think there's any question Your Honor.

But what the federal law would govern and the court -- state court could and would issue an injunction requiring it.

Justice Arthur J. Goldberg: Now, where will that authority rely?

Mr. Luther Hudson: It would be --

Justice Arthur J. Goldberg: Would it rely on the statute?

Mr. Luther Hudson: It would Your Honor.

That's the reason and the distinction in this case.

That is the situation where there is a violation, the right given by statute.

The statute says, “You shall set up this board and these disputes shall be submitted to it.”

Now, when you don't do that, you have violated an obligation by the statute.

When you do it, it's just like my illustration about the breaks, Your Honor.

Justice Arthur J. Goldberg: Now, this is not the fact the federal court would want [Inaudible]?

Mr. Luther Hudson: I don't know what you mean intimately.

There is nothing in the statute that says what the contract shall contain.

There's nothing in the statute that says the parties must do this and must do that in any detail.

These can -- these contracts can be as the Court said about labor contracts or railroads, it's just as bad as the parties will stand for as good as they'll agree on.

Justice Arthur J. Goldberg: [Inaudible] National Labor Relations Board.

Mr. Luther Hudson: I think about equally in this -- but there's a difference.

You remember that Congress in 301 says that those suits shall be brought on the federal court.

Justice Arthur J. Goldberg: I understand that.

Mr. Luther Hudson: And you remember that before Lincoln Mills, all the district courts held that there was no federal question but right after Lincoln Mills, when they turn around, and now there was federal question.

Under that very -- because of the fact that their court had been given -- the District Court had been given jurisdiction of that action.

Now, I don't mean to catch you all, but I'd like to carry the point a little further.

The provision there is not applicable to airlines specifically.

There is a provision with reference to the railroad adjustment board that's not applicable to airlines.

And I don't, for the life of [Inaudible], why the fact that they say that we're not subject to this one which says federal jurisdiction and we're not subject to that one, which says federal jurisdiction, you can construe that as mean -- they meant that we're to be subject to federal jurisdiction.

I don't -- it just seems to me that it indicates a pattern, but I'll go a little further and answer your question that I'm -- I hope that was going to be asked to counsel and that is, if it was an oversight, if it was a rank oversight, I don't think that gives District Court jurisdiction.

I don't think there is jurisdiction by oversight.

I think that the District Court, United States District Court is the court with limited jurisdiction.

Justice William J. Brennan: It doesn't mean we have to [Inaudible]?

Mr. Luther Hudson: Yes sir, Your Honor.

But you're assuming the answer.

And if you let me illustrate I can --

Justice William J. Brennan: [Inaudible] why the right to remedy doesn't arise under the federal statute?

Mr. Luther Hudson: The -- because of two reasons, Your Honor.

Factually, under the allegations in the complaint he says, “By contract, I have certain rights.”

But secondly, there are many instances where the man's rights are determined under federal law where it is exclusively state court jurisdiction.

The one that I know best is the Federal Employers Liability Act which is part of the Railway Labor Act.

It has a safety appliance provision in it.

Now, that same act says when an employee is injured, he has the right to go into either state or federal court.

But when a non-employee, when a passenger on a highway is injured or I mean a driver on a highway or passenger or someone working on the car is injured by a safety appliance defect, then it has to go into state court but there isn't any question but what that state court would be applying federal law to decide the rights of the parties.

There's another illustration that goes out of the same section and that is the three cases as I remember them.

There's the Moore case and the Caldwell, and the Slocum, in which this Court said that the same plaintiff, Mr. Cornstubble, has the option when he's fired.

He can file a grievance procedure or he can say, “I'm fired.”

And he can walk in to the State District Court and sue for wrongful discharge.

If he sues, he sues under the same contract that he's suing here and that is exclusive state jurisdiction.

I don't know whether I answered your question Your Honor, but that's –-

Justice Byron R. White: [Inaudible]

Mr. Luther Hudson: Yes sir.

Justice Byron R. White: Right?

Mr. Luther Hudson: Yes sir.

Justice Byron R. White: And one of the statutes [Inaudible]

Mr. Luther Hudson: No sir, it was.

I wish the Court had so held but unfortunately, this Court has held and I have lost two cases based on that holding, that somebody goes down to unload a car, a box car, or this particular one was a tank car, and there is a defective running board and that third person that the employee of the consignee is injured because of a defect in that running board which the Safety Appliance Act said must be good, this Court has said he got a cause of action under the Safety Appliance Act but it's also said that he's got to bring it to the state court.

Now, I hope that you're -- well, I say I lost two cases on that holding, I had to –-

Justice Byron R. White: These are employees?

Mr. Luther Hudson: No sir, these are not employees.

Now, if they were employees then the statute as I remember Section 52, says that, “An action to recover, maybe brought in either the state or federal court.”

There's a statute that specifically provides for concurrent jurisdiction.

And I want to say this that as counsel said yesterday, there were two lawsuits.

We filed one in the state court.

He filed one in the District Court.

He removed it and the Court held that the removal was wrong, at the same time they dismissed this one.

It's pending down there and I know no reason since it's rather obvious, since the Dowd and Lucas cases, that they would be at most concurrent jurisdictions that I can set that case down for trial.

I can set it down in April and try it, and we'll come up here, I don't -- through the state courts.

And I didn't -- I haven't thought of it until -- frankly, until I heard the counsel arguing yesterday, but I think maybe that's what I ought to do.

And then we'll find out how bad the state courts are.

We'll find out whether or not they -- they tried this case, they applied federal law.

We'll find out whether we tried it on something that didn't involved federal law.

We'll find out whether they correctly applied it.

And then we will have before this Court a fair sample of the treatment or the mistreatment that supported the airlines and their employees under the system board of adjustment award.

Justice Arthur J. Goldberg: I suppose that the [Inaudible]

Mr. Luther Hudson: They did.

Justice Arthur J. Goldberg: Would you go to the federal [Inaudible]?

Mr. Luther Hudson: I think I could.

Justice Arthur J. Goldberg: On what basis?

Mr. Luther Hudson: On the basis that –

Justice Arthur J. Goldberg: [Inaudible]

Mr. Luther Hudson: On the basis that the statute provides for compulsory arbitration, therefore, makes a strike illegal or any matter that is subject to the grievance and arbitration procedures.

Justice Arthur J. Goldberg: And that then would [Inaudible]

Mr. Luther Hudson: No sir.

That --

Justice Arthur J. Goldberg: Why not?

Mr. Luther Hudson: Because the statute says the parties shall submit grievances involving working conditions and those kinds of things to Board of Arbitration.

They say that we must, so the statute says you must do that.

Justice Arthur J. Goldberg: Does the statute --

Mr. Luther Hudson: The statute –-

Justice Arthur J. Goldberg: [Inaudible]

Mr. Luther Hudson: No sir.

It lets the contract say what the parties will have contract for.

Justice Arthur J. Goldberg: So that the -- those were [Inaudible]

Mr. Luther Hudson: It derives from the statute.

Now, I will say --

Justice Potter Stewart: It is the Chicago River case, isn't it?

Mr. Luther Hudson: Yes sir.

I will concede that the cases have not gone into the very point you're making, Your Honor, that all of the cases I have read, make no distinction between the railroad adjustment cases bound for the railroad adjustment or the board there or one that's in or bound for the system board.

They have been as I -- I'm not conscious in any case that makes the distinction that you're asking me about.

Now, I wanted to give back the Court some time and I think I've said pretty nice -- pretty everything I came to say, but I want to offer again if there's -- if our position isn't clear and I have not pleased the Court to the extent of conviction.

I want to give the Court an opportunity to ask me a question so that I may please the Court.

Thank you very much.

Argument of Bernard Dunau

Mr. Bernard Dunau: May it please the Court.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Mr. Dunau.

Rebuttal of Bernard Dunau

Mr. Bernard Dunau: I think Mr. Justice Black that the case you were thinking of that you had written was Bell v. Hood.

We haven't cited in our brief, but it appears at 327 U.S. 678.

This action to enforce a system board award does not exist in limbo.

Some law must apply which says that this action is good or is no good.

That law, by everybody's concession is federal law.

There seems to us inescapable that once it is said that it is federal law which makes this action good, the case arises under a law regulating commerce or under a federal law.

If that is correct, then the general jurisdictional statutes give us a right to be in a Federal District Court.

It doesn't matter whether the airport or the Railway Labor Act omitted a specific conferment of jurisdiction by inadvertence or not.

Our question then would be not was there an inadvertent omission of jurisdiction as specific to confirm it either in the airport or the Railway Labor Act rather is there anything you can draw from the Railway Labor Act which would show an implied repeal of the general jurisdictional statutes.

And unless there is something in the airport or the Railway Labor Act to show an implied repeal, we are properly in a Federal District Court because Congress since 1875 has said, “If you have an action arising under a law, regulating commerce or under a federal law, you maybe in a Federal District Court.”

Now, let's illustrate it in this case by the very point Mr. Hudson says, he wants to make whenever he gets to a court to try this case on the merits.

He says that an arbitrator here made a mistake because as he concedes that there were two issues to be decided.

The arbitrator decided one issue and rendered a judgment based or rendered an award based solely on that one issue.

That award is therefore void because it didn't decide all the things that should have been decided.

The contract here says that the award shall be final, binding, and conclusive.

How far back a final, binding and conclusive responding can go to show error becomes a question of federal law, because it is federal law which will spell out whether our contract, when it says final, binding and conclusive means utter finality so that you cannot go back of it at all.

It means almost utter finality so you can go back off it, somewhat to show some basic prejudicial defect, like bias of the arbitrator or fraud, or it can go back a good deal further to show that there was not enough evidence to support the award, or it can go all the way back and redo the whole thing de novo.

But whether you give it utter finality or give it no finality at all, depends upon what the federal law is.

So it seems to us inescapable that what we have here is a question of federal law, a case arising under it.

We have a claim which must bring -- which must have support from some law and the only law we have is federal law.

Now, this is not a question of invidious comparison between state courts and federal courts as one better than the other.

Congress has said when it enacted the general jurisdictional statutes that for the enforcement of federal rights, you can go into a federal court.

Now, if there's any invidiousness in this field, it's because the general jurisdictional statutes have said they want -- the Congress wants two court systems at work here and we're not here saying we want to be in a federal court because we like federal courts better than state courts or we think state courts are worst than federal courts.

We are in a federal court because Congress says with this kind of a claim we can be in a federal court.

Now, in any specific case, the lawyer make -- may have a big mistake as to his choice are forum and not know until he's all through, that he has made a mistake, but obviously, one doesn't decide jurisdictional questions on that kind of an invidious basis.

Justice William J. Brennan: [Inaudible]

Mr. Bernard Dunau: No sir, we are not arguing that.

We are arguing that we -- there is concurrent jurisdiction.

If we bring it in a state court or if the other party brings it in the state court, there can be a remand to a federal -- there can be a removal to a federal court, so in that sense there is a control over the forum if a party wants to be in any federal court.

Justice Potter Stewart: Now, that's a question not before us.

Mr. Bernard Dunau: That is not a question before you.

No sir.

Justice Potter Stewart: (Voice Overlap) complicated.

Mr. Bernard Dunau: The question here is the plaintiff having sought -- started his suit in the Federal District Court has he based it on a law regulating commerce?

If he has, he has a right to be in the Federal District Court because Congress has said he can be there.

Now, let me point out –-

Justice John M. Harlan: Can I ask you?

Mr. Bernard Dunau: Yes sir.

Justice John M. Harlan: This is with regard to [Inaudible]

Mr. Bernard Dunau: The statute doesn't say specifically when it confers jurisdiction on a Federal District Court to enforce an NRAB award that it's exclusively in the Federal District Court.

I read it that way, but I think it's open to argument that it may not be that way.

I read it that way because there are certain other perquisites to getting into a Federal District Court like attorney's fees that can be paid if you prevail, the cost of the suit are borne out of the appropriations of the United States Courts, these things may show that under the -- when you bring a suit in effect -- that the only place you can bring an NRAB suit to enforce an award is in a Federal District Court.

Now, what we say here is that if you want to distinguish between what you can do with the system board award and an NRAB award, the differentiation would be that for an NRAB award, you must go only into a federal court.

With a system board award, you may go either into a federal court or into a state court.

But the differentiation does not argue in favor of saying that the only place you can go with this kind of a suit is into a state court which is the argument that is made here by the respondent.

Now, I think I can illustrate this by two things which have already been adverted to and may profitability perhaps be repeated.

Now, the court below bases its view on two things.

It speculates that in 1936, state courts were hostile to the enforcement of an executory agreement to arbitrate, but favorable to the enforcement of an award once it is rendered.

Now, in Texas, it happens -- the law happens to be the common law rule that you can revoke in executory agreement to arbitrate at any time prior to actual submission.

Now, the Court says because the state courts were hospitable to the enforcement of an award, we imply that Congress was willing to have this whole system, at least with respect to the enforcement of an award, be committed exclusively to the state court system.

But you take that same speculation and the Court has been saying because the state courts are inhospitable to the enforcement of the executory agreements to arbitrate, well that kind of a suit you can get in to a Federal District Court.

That means if you carry it out, that I can sue Central Airlines to force them to go through arbitration and get into a Federal District Court to do that.

Having done that, if an award issues then the Federal District Court has no power to bring to fruition the very thing that it has the power to start, we can't cut this baby in half there.

If the Federal District Court has the power to enforce the executory agreement to arbitrate, it surely must have the power to carry through the process and enforce the award and the other part is the one that Mr. Justice Goldberg mentioned.

If a Federal District Court has the power, as we think it has, to enjoin a strike if a dispute is pending before an adjustment board, certainly it has the power having protected the process, then bring it to fruition by enforcing an award which eventually raises from that procedure.