TRANSPORTATION UNION v. U. P. R. CO.

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Argument of Milton Kramer

Chief Justice Earl Warren: No. 28, Transportation Communication Employees Union, petitioner vs. Union Pacific Railroad Company.

Mr. Kraemer.

Mr. Milton Kramer: Mr. Chief Justice, May it please Court.

In 1951 or there about, the Union Pacific Railroad installed a battery of new machines in its yard at Las Vegas.

These were 11 machines of 7 types.

This battery of machines performed work that prior thereto was performed in part by telegraphers represented by the Transportation Communications Union and in part by the clerks but it assigned all this works to clerks.

Although we performed work, the midi fact was work formally by telegraphers in part.

The TCU (Transportations Communications Union) filed a claim with the railroad claiming that assigning this work or even committing it to be performed by a craft other than the telegraphers was a violation of the Collective Bargaining Agreement.

The claim was in the words of every Labor Act handled in the usual manner and without agreement.

It was then submitted to the National Bureau of Adjustment, the very Division.

We asked the Board to hold that having the communications aspect of the work performed by employees other than telegraphers was a violation of the agreements and that the remedy should be that each time it happened, the senior idle telegrapher, at the time it happened, be paid a day's pay.

The Third Division gave notice of its proceeding to the Brotherhood of Railway Clerks which represented the clerks and offered them an opportunity to participate, to be heard that they care to.

The clerks replied stating that they understood the dispute was over the interpretation of the telegrapher's agreements that is whether the telegraphers’ agreement covered part of this work and our understanding is incorrect said the clerks.

We did not get a response.

The clerks’ response continued that “if my understanding with this dispute is correct, we are not involved and we do not care to be heard”.

They added that the rights of the employees represented by the brotherhood of railway clerks is predicated on the clerks’ Collective Bargaining Agreement and not on any other and that if at any time or for any reason, the carrier should assign work covered by the clerks’ agreement to employees not covered by the clerks’ agreement.

They would take the appropriate steps under the Railway Labor Act.

Now, in the proceeding, the carrier argued to the board, among other arguments that all the work was covered by the clerks’ agreement and they were committed to make that argument.

Now the Court of Appeals in this case is in error in one statement it made.

It says that evidence of the clerks’ agreement was excluded by the Adjustment Board Rules of Evidence.

Now there is not a word in the record to support that and in fact, it is not so.

The regulations of the Adjustment Board commit anybody to submit anything it wants.

Doors are wide open.

About the award of the adjustment board sustained the claim of TCU (Transportation Communication Employees Union) used to be named Order of Railroad Telegraphers.

There's been a change in name.

Justice Potter Stewart: No question about the Collective Bargaining Agreement with the clerks was not before the Adjustment Board in this proceeding.

Mr. Milton Kramer: Oh!

We don't know.

We do know that the carrier argued that the clerks’ agreement covered it.

Justice Potter Stewart: The record doesn't show whether the Adjustment Board had --

Mr. Milton Kramer: The record doesn't show whether they attached a copy.

All these arguments were in writing and have lots of exhibits that were submitted to the Adjustment Board.

Justice Potter Stewart: There was no hearing, they had no oral hearing.

Mr. Milton Kramer: Well, I don't know if they did it in this case or not.

They rarely do it.

They rarely have oral hearing.

Justice Byron R. White: Was the agreement, Bargaining Agreement with the Clerk's Union in the record?

Mr. Milton Kramer: Well, I submit to Justice Stewart just asked me --

Justice Hugo L. Black: Well, you said there were lots of exhibits.

Now, I don't know what exhibits were there.

Mr. Milton Kramer: Well, I don't either.

It's not in the record.

But a member the Adjustment Board as a vice president of the Clerks Union.

Justice Tom C. Clark: Well, Mr. Kraemer, what is the procedure before the Board?

I am intrigued.

I know the composition of the Board so far, he said that no hearing what they do, they just assemble or --

Mr. Milton Kramer: Oh!

No, the party, presenting the dispute gives of intention to file the following claim and then they -- this is slightly from division to division.

Then in 30 days whatever period it is submit the statement of facts, position of the spouses who disputed the facts.

Well, they have the resolve it upon the basis of a written document.

Justice Tom C. Clark: On the basis of the written documents.

Mr. Milton Kramer: They don't have any witnesses.

Justice Tom C. Clark: They don't take any evidence though?

Mr. Milton Kramer: No, the only evidence as written evidence submitted by one side or the other.

Now they sometimes --

Justice William J. Brennan: Now, I'm sure there must be instances of disagreement over what may be controlling fact.

Mr. Milton Kramer: Yes.

But the evidence is written evidence.

Now, sometimes a case is remanded to the railroad for the development of the traditional negotiations, let say.

But they never have witnesses and quite seldom have oral argument.

Justice Tom C. Clark: Do they have affidavits or about an affidavit of--?

Mr. Milton Kramer: Not affidavits in the sense of testimony.

Justice Tom C. Clark: They don't any deposition -- .

Mr. Milton Kramer: Oh!

No.

Justice William J. Brennan: In ordinary labor arbitration, and you have got lot of experience in this, is that valid point?

Mr. Milton Kramer: No, this is quite formal.

In the ordinary labor arbitration you have witnesses.

Justice William J. Brennan: That's what I would suppose -- .

Mr. Milton Kramer: But here they have – they follow a one ritual and one side files papers and the other side files a response.

And so not long ago we could keep on replying to each other to eternity.

But they've cut that short.

Justice William J. Brennan: Where?

Mr. Milton Kramer: In the Third Division, they used to --

Justice William J. Brennan: You mean “cut that shorter”.

What point?

Mr. Milton Kramer: Oh!

I think we can respond to each other about twice or three times.

Justice William J. Brennan: How about the old common law pleading?

Mr. Milton Kramer: Almost.

No somewhat loose in that because common lawyer couldn't file a pleading unless additional facts were alleged not just additional arguments.

Here, they can reply to each other's arguments.

Justice Abe Fortas: Well, if the carrier argued that it was covered by clerk's agreement you would think the carrier would have something in the record?

Mr. Milton Kramer: You would think so.

Justice Abe Fortas: To argue from what --

Mr. Milton Kramer: Yes.

Justice Abe Fortas: You say you don't know whether it was there or not?

Mr. Milton Kramer: No.

Justice William J. Brennan: But you say clerk's vice-president was a member of the tribunal?

Mr. Milton Kramer: Yes.

Now, certainly, the carrier was not precluded from submitting the clerk's agreement.

It can submit anything it wants and if it wasn't in the record it was only because the carrier did not see fit to submit it.

If it was not in the record, they certainly could've put it in the record.

Justice Hugo L. Black: Did they have an oral argument or they just submit it on the papers?

Mr. Milton Kramer: They normally do not have an oral argument.(Voice overlap)

But sometimes --

Justice Hugo L. Black: It's really on the pleading then --

Mr. Milton Kramer: Well, it's more than pleading, the pleading that these papers contain an argument.

They are both statements of fact and briefs.

It's written argument rather than oral although occasionally there maybe an oral argument.

Well, the Adjustment Board with a new proceeding as a member, sustained this aspect of the telegrapher's claim and ordered the carrier to compensate the senior idle employee each time it happened.

And the Union Pacific refused to comply and it refused to pay the senior idle employee and we brought an action to enforce the award under Section 3 (p) of the Railway Labor Act.

The District Court held that the clerks were an indispensable party to that lawsuit, to enforce this award which said that the telegrapher's contract had been violated, and dismissed for that reason.

The Court of Appeals wrote two opinions.

The first opinion it reversed the holding of the District Court saying that the clerks were not indispensable to the court proceeding but that they were indispensable to the Adjustment Board proceeding and the case should be remanded to the Adjustment Board which would require the clerks to participate.

But then later, withdrew that opinion and affirmed but it affirmed not on the ground that the clerks were an indispensable party to the court proceeding as the District Court has done.

But that the award was invalid because the clerks, I'm quoting, “for all practical purposes became party to the administrative proceedings.

Now, just what the Court meant by that I don't know.

It is unclear what the board should do but I presume what they meant was that the Adjustment Board must make an interpretation of post agreements.

At the same time, whether or not the clerk's participate, they did say that the Board should make a complete disposition of the dispute as to all concerned parties.

And I presumably admit, that you must make a ruling on the meaning of the clerk's agreement.

Well, the first one remanded, reversed and said that the District Court should not have dismissed the case but should have remanded it to the board.

And the second case, it said the award was invalid and therefore, the enforcement suit should be dismissed.

Unknown Speaker: (Inaudible)

Mr. Milton Kramer: Well, what I was saying was that the Board should have made an interpretation of the clerk's agreement.

The clerks who were invited, refused to participate.

Unknown Speaker: (Inaudible)

Mr. Milton Kramer: In the White House Case, White House against Illinois Central, this Court said, now perhaps by way of dictum, in a similar situation where the clerks were not in, where notice had not been given and an attempt was made to enjoin the Board for proceeding, this Court said that -- maybe a decision would be made that doesn't hurt anybody, it doesn't hurt the railroad.

In any event, the only necessary parties are before the Board.

Now, the clerks were not there.

And this Court said the only necessary parties are before the Board.

Justice Abe Fortas: Mr. Kraemer, did the Railroad object before the Board -- I know these proceedings are little baffling -- may be they don't object but did they in some way manifest their objection to the proceedings before the Board in the absence of the Clerks.

Mr. Milton Kramer: No, they did object initially when notice was not given to the clerks.

Then they objected to proceeding without the Clerks being given opportunity to appear if they wanted to.

Notice was then given.

Justice Abe Fortas: That's his letter which is on the record?

Mr. Milton Kramer: Yes.

Justice Abe Fortas: And then the clerks responded and said “No, thank you”.

Mr. Milton Kramer: They said: “We are not interested.

The dispute, as we understand it, has always a meaning of the telegrapher's agreement and we're not interested”.

Justice Abe Fortas: Was there any objection taken and whether the forum by the Railroad be arrested?

Mr. Milton Kramer: I believe not.

Justice Abe Fortas: In other words, you are saying that the Railroad just went ahead after that in the absence of the clerks --

Mr. Milton Kramer: On the merits.

Justice Abe Fortas: On the merits.

Thank you.

Justice Potter Stewart: But you also said that these are matters which you submitted in writing and certainly, the first opportunity in the District Court and the enforcement, the carrier objected and that's the basis of -- they filed and --

Mr. Milton Kramer: The District Court --

Justice Potter Stewart: This is one of –

Mr. Milton Kramer: That the clerks were an indispensable party to enforce and award/ withheld that the telegrapher's agreement covered the work.

Justice Potter Stewart: Yes.

Mr. Milton Kramer: The Court of Appeals did not agree.

Justice Potter Stewart: No.

Mr. Milton Kramer: Most of the argument, Your Honors, is on the record beginning on page 5 through 71 is reported, just about all that was submitted to the Board in writing.

85 and 71 of the record.

The Court of Appeals said that this lays a jurisdictional dispute between two unions.

There is no dispute here between two unions.

The only dispute involved here is, did the telegrapher's agreement covered the work and that the carrier, therefore, violate it when they designed it to other than telegraphers.

The BRC, the clerks thought that they weren't involved in that dispute.

They thought that they had any right just predicated on their contract which has not been violated.

But if you assume that there is a dispute here between two union, as the Court of Appeals held, the Adjustment Board doesn't have a jurisdiction to resolve disputes between unions.

Its jurisdiction is provided in Section 31 of the Act.

It is dispute “Dispute between and employee or group of employees and a carrier or carriers”.

Now, if there is dispute between unions, it doesn't come into that category and the Adjustment Board couldn't decide it.

But in any event there is no dispute here between the unions. Clerks are not disputing the meaning of telegrapher's agreement and vice versa.

Justice Byron R. White: Then that the only reason that the only way they said that they are not in any dispute is that they would both say that, well, the employer has simply contracted with two unions for the same work.

Mr. Milton Kramer: If it was so determined, yes.

Justice Byron R. White: And that then there is no dispute between the unions?

Mr. Milton Kramer: Between the unions there is no dispute.

Justice Byron R. White: That the employer could pay them both.

Mr. Milton Kramer: Yes, and it's all contracted, or were to see to change the agreement but which they did not try do.

This award came out five years ago and they still haven't tried to change the agreement.

They could serve a Section 6 notice and go through the procedures of the Railway Labor Act and if they weren't successful in persuading one union or the other to change the agreement, it could then unilaterally change the rule.

But it has not even tried to do that.

Also the Adjustment Board could not, in this proceeding, issue a final and binding interpretation of the Clerks Agreement because there is no dispute between the carrier and the clerks over that meaning of that agreement.

The dispute must be between the carrier and the union and they have no dispute over the Clerk's Agreement and unless there is a dispute, the Adjustment Board would not have jurisdiction to render an interpretation of it.

And secondly, even if there were such a dispute, before the Adjustment Board can exercise jurisdiction, the Railway Labor Act required that the dispute be handled in the usual manner up to and including the Chief Operating Officer of the carrier designated to handle such disputes.

Until that's done, the Adjustment Board does not have jurisdiction.

And that hasn't been done with respect to the Clerks Agreement.

In fact, the National Railway Adjustment Board Regulations in conformity with that provision, said that it will not entertain a petition, will not consider a petition unless the subject of it was handled in the usual manner on the property up to and including and so forth.

So they couldn't issue a final and binding interpretation of the Clerks Agreement within their jurisdiction under the Railway Labor Act.

There was no dispute so they had no jurisdiction and it was not handled and so they did not have jurisdiction.

Very easy, they -- Well, if the Railroad agrees with them, they would let them go on doing the work, pay twice but they could seek to plea -- pardon?

Well, they could seek to change one of the agreements.

Unknown Speaker: (Inaudible)

Mr. Milton Kramer: If the work is taken away from them and they claim to work.

You have two proceedings.

I wouldn't say it's quite complicated.

Unknown Speaker: (Inaudible)

Mr. Milton Kramer: If the Adjustment Board holds and it contracted to give the same work to two different crafts, yes.

And, but if the Adjustment Board holds that and the adjustment rulings are not reviewable on the merits, then it must seek to change one of the agreements.

And under the Railway Labor Act, you can change it unilaterally after you follow certain procedures.

But it hasn't made any effort to do that.

What it really should have done is before installing these machines, was to negotiate.

But it didn't try.

Justice John M. Harlan: I suppose that what you're telling us may be put this way that Railroad has a contract with the telegraphers and the Railroad has a contract with the clerks and those don't necessarily have to be synchronized or consistent.

And it is the Board dysfunction to attempt to do so, is that it?

Mr. Milton Kramer: It is distinctly not the Board's function, that Board has no authority to change agreements.

Its jurisdiction is limited to the interpretation or application.

And that's perfectly clear from the statute.

Believe it, if it weren't perfectly clear from the statute, the legislative history, the draftsman and the chief proponent told Congress that they would definitely have no authority to cleanse the rules.

All they could do would be to interpret/agree on rules.

And the Adjustment Board just can't synchronize or accommodate one to the other or what have you.

It could only interpret and nothing else.

Also, the carrier says that they are entitled to be protected, if they could comply with the award.

Of course here if they comply, it's only paying money but sometimes they are ordered to get someone to work.

And they are entitled to be protected.

Where will they get that right, if they contract with more than one organization for the same work?

Why shouldn't they be liable to both?

And if the Adjustment Board can relieve them of their liability under one, which has no jurisdiction to do, it would simply destroy Collective Bargaining on the subject and the scope of the agreement.

Every Union, I came to -- asked that certain work be included in this contract, would give an affirmative answer.

(Inaudible) put it in new agreement and (Inaudible) new agreement, anybody who wants it.

And then when one of them says you violated my agreement, we go to the Adjustment Board, the Adjustment Board awards it to one and they're home free with the others.

Well, there is nothing in the Railroad Labor Act that does that?

The Adjustment Board can't set aside agreements, can't change them.

They simply destroys Collective Bargaining if they could do that.

Now, under the National Labor Relation Act --

Justice Hugo L. Black: Why would they destroy collective bargaining?

Mr. Milton Kramer: On this subject?

Justice Hugo L. Black: No, but the system did not put on the basis that Railroad only can to a contract with one person.

Mr. Milton Kramer: Oh!

No, it would not.

But if it in fact -- that might have been its intents but if in fact, it contracted with another one, all they say is (voice overlap)

Justice Hugo L. Black: But the system that they are trying to get arbitration, trying to get an agreement between – try to prevent strike that the system, based on the idea that they would only employ one person to do one job.

Mr. Milton Kramer: Well, the Railway Labor Act has no interest on how many people, are employed for any number of jobs, it's sole interest is to try to avoid strikes.

Justice Abe Fortas: Is it the point though that this is not an arbitration proceeding.

Mr. Milton Kramer: It is an arbitration proceeding.

This Court has held.

Justice Abe Fortas: This is not an arbitration proceeding in the sense that the Board has the power to make rules.

Mr. Milton Kramer: No.

Justice Abe Fortas: The Board's function is confined to construing contract, is that --

Mr. Milton Kramer: That's right.

That's all it can do.

It cannot change it.

The only way you can change contracts by arbitration of railroad evidence is displayed by an agreed arbitration would be one exception the Congress enacted three years ago.

But if the carrier's contention is right that they could be relieved of liability on their other agreements, if it's found out that one covers it, I said they can deliberately contract with anybody who wants it.

And then have the Adjustment Board bail them out, the Act wasn't designed for that.

Justice Hugo L. Black: The Act was designed to sort of break in piece.

Mr. Milton Kramer: Yes.

Justice Hugo L. Black: And one of the things that have been bringing about the most unfit is jurisdictional dispute.

Mr. Milton Kramer: Well, I think that is probably not so in the railroad industry, we do have jurisdictional dispute.

But we don't have any strike here.

There's no strike or federal strike.

Justice Hugo L. Black: I am not saying you are not right; I am just throwing attention to the fact -- jurisdictional dispute has been a long time --

Mr. Milton Kramer: Mr. Justice Black, there were three cases in 320 U.S. which repeatedly said that, “Congress provided that administrative remedy for certain disputes.

Judicial remedy could be availed of in certain situations and in many areas left it entirely to negotiation, mediation, conciliation and there was to be no administrative or judicial remedy in large areas of disputes in the railroad industry.

This Court has said it several times -- (Voice overlap)

Justice Hugo L. Black: How can anything like this be settled?

Mr. Milton Kramer: How can it be settled, by negotiation or mediation?

Justice Hugo L. Black: Of course, they won't negotiate/mediate, is that it?

Mr. Milton Kramer: Well, they have to negotiate.

Justice Hugo L. Black: Two unions.

Mr. Milton Kramer: The union has to negotiate with the employer.

Justice Hugo L. Black: Well, if they won't negotiate with each other and settle and divide the job, how can it be done?

Mr. Milton Kramer: Well, I suppose one way to be done would be for the railroads to decide which union it ought to have it and so the other union, with a notice to change its agreement.

And then when you have the negotiations and you have your mediation and possibly other procedures under the Railway Labor Act, including a proper arbitration and to be detected and the carrier can make the change in a lot of ways, once it's going through those procedures.

And the TCU agreement would thereby be changed -- when that provision would be out.

Now, whether they would strike over, I don't know but not likely.

It's only a handful of jobs involved.

They might.

But at that time, some years hence, we would first have the possibility of strike.

But it just doesn't happen that way.

Strikes do not eventuate over things like this.

Justice Hugo L. Black: Strikes don't occur when jurisdiction is -- .

Mr. Milton Kramer: Well, of course, they do.

I don't know of any strike in the railroad industry over jurisdictional dispute.

Well, there may have been a few one or two day strikes perhaps.

Justice Byron R. White: Mr. Kraemer, is your position that the Board cannot, in any event, force the clerks under the proceeding.

Mr. Milton Kramer: That's right.

Justice Byron R. White: Is the rule now that they have to get the notice though --

Mr. Milton Kramer: We came around to that.

For a long time, we disputed and when --

Justice Byron R. White: You even did it in White House.

Mr. Milton Kramer: Yes.

Justice Byron R. White: You won at White House -- .

Mr. Milton Kramer: I won on a different ground, not on that ground. (Voice overlap)

Justice Byron R. White: Your position was that they didn't give notice.

Mr. Milton Kramer: That's right, at that time.

But this Court denies certiorari in an earlier case in which the Union won.

And then the case after White House, it denied certiorari when they lost over that issue.

So we then gave up and the lower courts were holding against this --

Justice Byron R. White: What is the purpose of giving the clerk's notice -- they got the permit that they wanted.

Mr. Milton Kramer: That's right.

Justice Byron R. White: Now what if the clerks did come in?

Mr. Milton Kramer: They could come in and say anything they want.

Justice Byron R. White: What if they come in with an agreement in their hand and said, “Now look, we didn't expect the employer to assign -- , to agree to pay people for the same work and I'm sure they selected people either didn't like to (Inaudible)either.

But one of the -- (Inauidlbe) since we have got a dispute with the employer and one of the either of it hasn't and the Board said “Well, we think the (Inaudible) got disputed and just trying to get the employer, and you don't.

Are the clerks bound?

Mr. Milton Kramer: Well, you don't what?

Justice Byron R. White: Are the clerks bound?

Mr. Milton Kramer: Well, I didn't get the implication.

Justice Byron R. White: Well, they say that the clerks -- You have no claim against the employer at all, it's not your work.

If I would interpret your contract to mean that it doesn't cover this work.

Mr. Milton Kramer: The Adjustment Board would not have jurisdiction to do that.

Justice William J. Brennan: Well then, I don't understand, Mr. Kraemer.

You say they can't force the clerks in because they wouldn't have jurisdiction to do that.

How do they have jurisdiction if they are invited in and they come in?

I don't follow that.

Mr. Milton Kramer: They were invited in to make any presentation they want.

Justice Byron R. White: Well, they do and they come in and they say, look, that we have a dispute with the employer and he is not of this Court to -- This is our work.

We ask you to interpret our contract if this is our work.

Mr. Milton Kramer: But they can't ask them to interpret their contract because it has not been negotiated/handled in the usual manner on the property.

Justice William J. Brennan: Well then what is it the -- what function does the clerk serve that they did come in -- would they have said that --

Mr. Milton Kramer: They could come in and argue that they know that the Board would be reluctant to find that same works in more than one agreement.

They might come in and argue that telegraphers' agreement doesn't cover it or they might argue that this performs work that is not really communications work.

Justice William J. Brennan: -- The telegraphers doesn't cover because our contract does.

Mr. Milton Kramer: No, no.

They say the telegraphers doesn't because it doesn't.

Because the work superseded was not communications work and --

Justice Byron R. White: What's the backlog of the Board?

Mr. Milton Kramer: Tremendous.

Well, it depends on the division.

Justice Byron R. White: It's not like this as one could reach --

Mr. Milton Kramer: No.

But it's not to remain that way because Congress amended the law and we can get a special Board anytime we want it.

Unknown Speaker: (Inaudible)

Mr. Milton Kramer: No.

Three of the Divisions have each five members appointed by the Railroad and five by the Unions and if they deadlock, they are permanent members.

Now, if they deadlock, as they usually do, the mediation board appoints a neutral to sit as a member of the board.

Justice Byron R. White: If the clerks were in there and if the board did take cognizance in the clerk's agreement and there really was a fight between the two unions, the Labor --

Mr. Milton Kramer: Well, that would give the carrier to -- right every case its way.

They would win every case without these at least six votes.

Justice Byron R. White: Well, they just have to decide which union it was.

Mr. Milton Kramer: But it would get the vote of one union.

Justice Byron R. White: They still need the work done by somebody.

Mr. Milton Kramer: Yes, but the carrier would decide every case as they wanted it.

The Union would never win --

Justice Hugo L. Black: What's so good in giving them notice that you can't bind them?

Mr. Milton Kramer: Well, the only reason we gave is to give notice to anybody involved.

Justice Hugo L. Black: And what's the reason you give it to them?

Mr. Milton Kramer: To come in and then make such presentation as they care to make.

Justice Hugo L. Black: But they can't present the thing which is at the bottom of the controversy and that is, that there are two contracts.

Each one of them claim to get this work and you said that they can't present anything at all.

Mr. Milton Kramer: They can't get a binding interpretation of their agreement when nobody is disputing what their agreement means and they have not negotiated such a non-existent dispute on the railroad.

Justice Hugo L. Black: The dispute is the fact that you claimed it?

Mr. Milton Kramer: No, we don't say they doesn't --

Justice Hugo L. Black: Well, you claimed it for yourself and, all common sense practice.

Mr. Milton Kramer: Sure.

Justice Hugo L. Black: -- that do not have people deal.

That means, as you claim, the other people are not covered by that.

Mr. Milton Kramer: Well, would you say that the clerks would be bound by the Adjustment Board decision, it would be bound by the only decision the Adjustment Board would have jurisdiction to make –- that is whether or not the telegraphers' agreement covers it.

If they hold the telegrapher's agreement does cover it.

Justice Hugo L. Black: Just the procedural block, that can't become moot.

Mr. Milton Kramer: That's right.

Justice Hugo L. Black: That came in more as Amicus.

Mr. Milton Kramer: Well, any way they want.

Your Honor, what the carrier wants to do is to write into the Railway Labor Act; Section 10(k) of the National Labor Relations Act.

In 1947, Congress added Section 10(k) which holds that the National Labor Relations Board can decide which union will do the work.

But even then, it has jurisdiction only when there is a strike over it.

What they are trying to do is to bring that division into the Railway Labor Act and expand it.

And say the Adjustment Board --

Justice Hugo L. Black: Who is going to work now?

Mr. Milton Kramer: Clerks.

Justice William J. Brennan: And it's like the clerks would be paid if you won -- while the clerks did the work, is that it?

Mr. Milton Kramer: That's right until they changed our agreement.

Justice William J. Brennan: Strikers would be paid for not doing the work while the clerks are being paid for the work.

Mr. Milton Kramer: That's right until they changed the agreement.

That's the award of the Board and that award is final and binding.

Certainly, on the merit, it's final and binding.

Justice William J. Brennan: Funny way to run a Railroad.

Mr. Milton Kramer: Pardon?

Justice William J. Brennan: Funny way to run the railroad?

Mr. Milton Kramer: We've been running at this way for some 60 years and this has never caused havoc so far as I know.

Chief Justice Earl Warren: Thank you.

Mr. Wilcox?

Argument of James A. Wilcox

Mr. James A. Wilcox: Mr. Chief Justice, May it please the Court.

It's quite understandable why the telegraphers here and other unions in other cases are very anxious that this case be reversed. They've got a good thing going.

They don't care as long as we have the clerk's perform the work and they and the telegraphers get paid, they've got a real fine chance of continuing this horrible what I call a horrible scandal.

We call it the railroad double payrolling.

And the four regions of this case --

Justice Byron R. White: What expiration date is your agreement with the telegraphers?

Mr. James A. Wilcox: Mr. Justice White, in the railroad industry --

Justice Byron R. White: (Inaudible) did get notice and change anytime they want it.

Mr. James A. Wilcox: We can serve such as --

Justice Byron R. White: What was it?

Mr. James A. Wilcox: Well, in the first place, we don't believe that it's necessary.

We believe that the Adjustment Board has the full power and the full jurisdiction and the duty to resolve these work assignment disputes.

There is no need to serve a section --

Justice Byron R. White: I get the feel where you have to readily decide this issue otherwise, you are admitting what your agreement means.

Mr. James A. Wilcox: Well, I should find out to you right away.

But we are not speaking of the explicit/unambiguous agreements.

These agreements simply describe a job and the clerks come along and tell us that this is clerks work.

The telegraphers come along and tell us that this is telegraphers work.

And when we denied the claim, they progress it to the board as simply a dispute under the Clerks Agreement or under the Telegrapher's Agreement, and refused to recognize that any other party has any interest.

It is our position, however, that ever since 1934, the Adjustment Board was given this power and the duty to resolve work assignment disputes.

Indeed, this Court, in a very early case, the Pitney case, 326 U.S. was just as Black speaking for on that point a unanimous court, held that the N.R.A.B. -- the Adjustment Board, had jurisdiction over a jurisdictional dispute, and I'm quoting, involving the railroad and two employee accredited bargaining agents.

Mr. Justice Black also stated that the Board was specially creative to interpret contracts such as these in order finally to settle a labor dispute.

A few years later in the Slocum case again, Mr. Justice Black, he said that the Board's jurisdiction in these work assignment disputes was exclusive.

This Court in the Slocum case was presented with the precise dispute that you have before you.

In that case, the clerks and the telegraphers were each claiming, respectively, that their ambiguous contract covered in the work in question.

The railroad got a little tired of this and went into a New York State Court for a declaratory judgment.

The New York Court affirmed for, I believe, the clerks and the telegraphers obtained certiorari from this Court.

The question presented there was whether or not the Courts should have jurisdiction over these type of disputes which depend for their resolution on an interpretation of the collective agreement.

And this Court in Slocum said that the Courts do not have jurisdiction.

But went ahead to point out that the Adjustment Board does have jurisdiction?

Indeed, in our brief, we haven't the exact page, we quoted from the telegraphers' brief before this Court in Slocum in which they told this Court that the Adjustment Board has jurisdiction over all the parties.

Justice William J. Brennan: Mr. Wilcox, did you ask the Board to bring the clerks claim?

Mr. James A. Wilcox: Yes, we did.

That's what I was going to cover that, Mr. Justice Brennan, in our first submission and I might point out that in the record as the page just mentioned by Mr. Kraemer appeared what we call the Railroad and the Union's first submission.

Then there are other responding submissions.

But only the first submission of each party is included in the record and included in the printed award.

And at page 35, you will notice that the carrier, the Union Pacific, pointed out that for the Board to sustain these claims would be to deny the clerk employees their rights to perform the work would abrogate the agreement negotiated between the carrier and the Clerk's organization and would seriously affect by such action the rights of Clerk employees.

Justice John M. Harlan: What are you reading from?

Mr. James A. Wilcox: Page – This is in our first submission or Brief to the Adjustment Board in this dispute, page 35 of the record.

Now, petitioner challenges the Board's jurisdiction and the controlling effect of Slocum and Pitney by relying entirely upon one of the perplexing questions which Mr. Justice Frankfurter placed in the White House opinion, a question incidentally which he never answered and which, of course, would be dictum.

The question that has not been answered since.

But in any event, I think it's quite clear that while White House asked many questions, if answered none of them, except that, that case like the Carrie case was a premature matter and that the matter should proceed to arbitration.

Justice Byron R. White: What do you make of this statement of Mr. Justice Frankfurter that certainly the court and adjoined them by majority of the Court, the Board has jurisdiction over the only necessary thing to the proceeding in all the subject matter.

Mr. James A. Wilcox: Reading that in context, Mr. Justice White, I take it to mean that --

Justice Byron R. White: This was also a dispute between the clerks and the (voice overlap).

Mr. James A. Wilcox: The telegraphers and the Railroad, yes.

I take that to mean that clerks --

Justice Byron R. White: The question is whether the Clerks should submit notice to them?

Mr. James A. Wilcox: Yes, sir, notice to them.

I take that statement to mean that the Board did have jurisdiction.

In the event it issued a denial award namely denying the telegrapher's claim.

In the same fashion in your Carrie case recently arbitration should proceed which went ahead to point out --

Justice Byron R. White: It also to refers that the clerks with an outside related interest that cannot be compulsorily enjoined according to the proceeding.

Mr. James A. Wilcox: I think that they can be compulsorily joined.

I think the Board has been given the power --

Justice Byron R. White: This is right where we join issue.

Mr. James A. Wilcox: This is right where we join issue, yes, sir.

Justice John M. Harlan: We have to overrule White House--

Mr. James A. Wilcox: Sir?

Justice John M. Harlan: We have to overrule White House.

Mr. James A. Wilcox: No, you would not.

That is not the holding of White House.

Those were a series of questions that are dictum statements that Justice Frankfurter made.

The only holding in White House was that the injunction which the Railroad has obtained against the Board proceeding any further because of failure to give notice should be reversed and that the Board should proceed to determine that dispute.

Justice Byron R. White: As you would to hold or disavow that basis --

Mr. James A. Wilcox: Sir?

Justice Byron R. White: You would have to disavow that statement in White House?

Mr. James A. Wilcox: In White House?

Well, yes.

I have no --

Justice William J. Brennan: Well, I got to use your argument is, am I correct, Wilcox, that statement is inconsistent with the holding in the Pitney and Slocum.

Mr. James A. Wilcox: Of course, absolutely.

The petitioner's crucial argument here is that the Union Pacific may have bound itself by contract in the same work to both clerks and telegraphers.

It is our position and we think quite clear under the law that this is not possible under the National Labor policy.

It may be impossible as a common-law but it is not under the National Labor policy as spelled out in Sections 2, 2nd, 3rd, 4th and 9th of the Act, especially 2.9.

Briefly that section provides that a carrier upon receiving a union certification as a representative of some of its employees, the carrier shall treat with the representative as so certified for the purpose of collective bargaining.

From the earliest back in 1937, this Court said that 2/9th of the Railway Labor Act imposes the affirmative duty on the railroad to treat only with the true representative and the negative duty to treat with no others.

This Court re-stated that in the General Committee case at 320 U.S.

Justice Abe Fortas: Now with whom does the Railroad statute (Inaudible) as a result of this suit, reduction in the force.

Mr. James A. Wilcox: The railroad here says that it's the (Inaudible) the clerks.

We feel that we made the correct assignment of this work.

And, we also feel that that for the telegraphers to obtain via an interpretation of their agreement and alleged an exclusive right to this work is simply contrary to the labor policy because we could not vote.

Justice Abe Fortas: The Labor policy then -- posed nevertheless somebody makes a mistake and you have two Collective Bargaining contracts that cover the same work as the Adjustment Board have power to resolve the conflict.

Then it's got the power to say that the reason in contract A shall be disregarded.

And that contract B -- employees in contract B can get the work.

It seems to me and really hard to believe --

Mr. James A. Wilcox: That's right, Your Honor.

But as I stated earlier, we are not dealing with explicit contracts; we are dealing with ambiguous contracts.

Justice Abe Fortas: Well, I know but let's suppose that -- these contracts are explicit or ambiguity is resolved so that both contracts cover the same work.

Now, you are telling me that in those circumstances, the Adjustment Board would have power to overriding one of the contracts.

Mr. James A. Wilcox: Yes, it wouldn't be overriding the contract, Mr. Justice Powell.

We would be interpreting it -- accommodating it - and that furthers the labor piece which the Act speaks.

Justice Abe Fortas: It's on clearly the lawyers mind is a wonderful thing.[laughter]

Justice Byron R. White: Mr. Wilcox, what -- if you would prevail, what would prevent the carrier from sitting down with two groups rather than to reason that out at the bargaining table would make the two agreements ambiguous enough so that it might be interpreted either way And then, when there was a disagreement between the unions to have it and one of them brought a proceeding before the Adjustment Board and the railroad said, “well, we have just emphasized and I only let you two unions find that out and which ever one prevails and it's alright with us”.

Now, what would prevent you from doing that?

Mr. James A. Wilcox: Well, first of all I should point out Mr. Chief Justice, that that is not the case before us -- But --

Chief Justice Earl Warren: If it would flow, it would flow naturally from decision in your favor, I would say.

Mr. James A. Wilcox: Well, only if are willing to ascribe an ulterior intent to the railroad industry which I am not prepared to do.

We don't do business that way.

Secondly, we would be --

Chief Justice Earl Warren: We don't -- we are not dealing with how you do business but how you could do business under an opinion that this Court writes?

Mr. James A. Wilcox: It would be a most flagrant violation of Section 2 of the Railway Labor Act which requires us under the Virginian decision to treat with the true accredited representative and no other --

Chief Justice Earl Warren: What would the penalty be if you did that under Section 2 that you just mentioned?

Mr. James A. Wilcox: Section 2 has some penal sanction -- I don't know.

It has some penal sanctions -- it could also be enjoined I would imagine.

We have no right to bargain with --

Chief Justice Earl Warren: Here you have got that situation, except for the matter of intent that I put in -- you've got two situations where these people claim, at least, that the ambiguities in the two contacts raise an issue as to which one of the unions is entitled to the work.

And the railroad just steps aside and says, “Alright now, that's no problem of ours; you just find it out before the Board here and what every one gets, it's alright with us”.

Doesn't that be tracked from a collective bargaining -- the integrity of bargaining?

Mr. James A. Wilcox: If that should occur, it would certainly be tracked from the integrity of bargaining but bear in mind that only one of those two unions is entitled to the work.

Chief Justice Earl Warren: I know but would you have the right to say, “Well, we don't care.

It isn't essential for us to bargain right down to a final determination of rules entitled to this.

The board would take care of that and we don't have to worry about it, we are not preferring a proceeding before the Board and the Board will let it go to the -- let the two unions find that out and whichever prevails for the Board, it's alright with us”.

Mr. James A. Wilcox: Well, we must.

Under the law we can only deal with the true unions.

The other union -- the other representative would even have a right to serve Section 6 for the work which the other -- for example the clerks have the right to perform.

Chief Justice Earl Warren: But you've got the situation here where you claim you, then I have no doubt you bargain on a plea and here, there are two unions that you say ought to be brought before the Board to have it determined which one shall have a work.

Now, that's an issue.

I would say that's an issue that could well have been determined at the bargaining table.

Mr. James A. Wilcox: Without the possibility of creating a lot of strike, I don't see how it could be worked out at the bargaining table.

We're not -- we're going to get either of the two unions to agree that the work belongs to the other.

Chief Justice Earl Warren: Aren't you obliged in your bargaining agreement to determine what work an individual union is entitled to have and what work another union is entitled to have.

Mr. James A. Wilcox: That would depend, Sir, on whether they're -- who they represent and the scope of their representation.

Clerks would represent clerical work.

Telegraphers --

Justice Byron R. White: The clerks could what?

Mr. James A. Wilcox: The clerk's organization would represent employees performing clerical work.

The signalman's organization represents employees performing signal work which I think answered that question.

Chief Justice Earl Warren: Well, I suppose that bargaining agreements would and probably should determine the extent of signal work and the intended clerical work, didn't they?

Mr. James A. Wilcox: Now that I believe, Mr. Chief Justice, it's decided by the authority of the clerk representative.

In other words, the signalman, for example, has the authority under the law to represent signal employee, i.e. those that perform signal work.

The only place where we get into trouble is in the clerical-telegrapher field because there even a telegrapher does performs some clerical work and we get this cross.

And as a result the clerks and the telegraphers have dreamed up this what we call “double barreling” -– one goes the Board, gets its claim sustained then the other goes to the Board for the same work, gets that claim sustained.

Indeed, the MKT Railroad had, I believe four or five enforcement actions pending against it in different courts by the clerks and telegraphers on the same work.

Justice Byron R. White: Am I correct if this award is enforced, at least one man who belongs to the telegraphers' union will get paid as if he worked when he didn't work.

Mr. James A. Wilcox: That's right, sir.

Justice Byron R. White: Is that what the words are -- for the court to hear it.

Mr. James A. Wilcox: No, sir.

If the award is enforced as it was sustained by the Adjustment Board, the Union Pacific will be forced to pay a telegrapher around the clock - that would be three telegraphers a day all the way back to 1951.

Justice Byron R. White: How far (Inaudible)?

Mr. James A. Wilcox: Continuing according to the claim, until the violation is corrected.

Justice Byron R. White: Or until a new contract is negotiated, I suppose with that --

Mr. James A. Wilcox: That is not the real answer.

That only invites further strike.

Justice Byron R. White: No, but I suppose that there will come a point of time when this new contract/negotiation between the telegraphers and the Railroad, correct?

Mr. James A. Wilcox: Yes, Sir.

Justice Byron R. White: No, the contracts don't run out.

Mr. James A. Wilcox: They don't run out but we could speak to amend them.

I have a little doubt that the telegraphers would not give this out.

Justice Byron R. White: Well, they just tell you that change your clerk's agreement, was that?

Mr. James A. Wilcox: Yes.

Justice William J. Brennan: Tell me this, Mr. Wilcox, if the clerks were in this case and could be forced into it, what would be the composition of the tribunal?

We've been told that ordinarily you get five of the union and five, is that right?

A division is five union representatives and five --

Mr. James A. Wilcox: And five Railroad.

Justice Hugo L. Black: Now, if you had both unions then what would the composition of the union be?

Mr. James A. Wilcox: It would remain the same.

Justice William J. Brennan: I thought I heard Mr. Kraemer say that if they were forced inevitably, the railroad would decide which would win because the union at the Railroad picked out, would vote for the Railroad and thus -- it would be to one.

How would that come about?

Mr. James A. Wilcox: Well, if it did, Mr. Justice Brennan --

Justice William J. Brennan: How could it come about?

Mr. James A. Wilcox: It could come about, yes.

If the telegraphers progressed a clerks claim for clerical work to the Adjustment Board, the clerks' representative on the Board would lawfully vote for the five carrier men.

Justice William J. Brennan: Well, what I want to get cleared is that the union members always include a representative of the union staff?

Mr. James A. Wilcox: The composition of the Board is not based upon union membership.

There were to be five labor members and five carrier members.

Indeed, there's a legislative history to the fact that it was never intended that any -- whether the clerks' vice-president was on the board or not.

It was not intended that he represents solely clerk's interest.

Justice William J. Brennan: I see.

He is just a labor representative.

Mr. James A. Wilcox: He is just a labor representative.

Justice William J. Brennan: As the carrier is supposed to be a carrier generally.

Mr. James A. Wilcox: In our appendices to our Brief, we have attached evidence showing the arrangement that the labor executives had for progressing these claims under a single contract theory, and the arrangement in Appendix C, indicates that they will let this dispute go to a referee.

Now, should this situation occur --

Justice William J. Brennan: Now, let me get that.

In other words, what you're telling me if you had them both in, what ultimately would happen when you said the impartial referee is a single individual would be more or less the arbiter finally, is that it?

Mr. James A. Wilcox: They could let him do that.

Justice William J. Brennan: But suppose they didn't?

Well I can't -- I don't quite understand – how can the telegraphers or the clerks be the victim of the choice of the railroad that has to be because you don't bring in impartial referee in it.

Mr. James A. Wilcox: There would be am an impartial referee here if the labor unions want it.

All they would do is to join together with 5 votes.

Justice Byron R. White: What if they don't?

Mr. James A. Wilcox: If they don't, that's their own doing.

Justice Byron R. White: If they insist on voting with the employer that's the end of the case.

Mr. James A. Wilcox: Yes, and that is exactly, Sir, what happened, a number of years ago, the telegrapher's (Inaudible) voted with the railroad and he was quickly taken off the Board and ever since then, then the labor members voted as a union ; block voting and by that simple device, they can continue to get the neutral to decide and resolve this dispute.

Justice William O. Douglas: Is the personnel on the Board permanent or adhoc?

Mr. James A. Wilcox: Well, the partisan members served at the pleasure of their employer, the labor members of the labor organization.

Justice William O. Douglas: (Inaudible) on the labor side of the more or less permanent.

Mr. James A. Wilcox: No, not necessarily.

No, as a matter of fact, over nine, the telegraphers man is off the Board because he voted with the railroad --

Justice Byron R. White: I mean in practice.

Mr. James A. Wilcox: In practice they can do take him off anytime.

Justice Byron R. White: I know but are they usually permanent?

Mr. James A. Wilcox: Well, they stay for quite a little while.

Yes, Sir.

Justice Byron R. White: Why they don't set up a board for taking as a dispute, we already have a board law?

Mr. James A. Wilcox: Yes, the board is permanent and the referee is generally -- well they are picked on an ad hoc basis for a docket of say, 30 cases.

Justice Byron R. White: Well, how do you suggest that the -- you think that this award should be enforced?

And your idea is that both unions should be before the Board.

How does the Board get them to court when the clerks say, “sorry we have notice by we don't want to come in, in the first place you do not have jurisdiction.

We want -- we have no dispute with the carrier at all”.

We're doing our work, he is paying our people.

And if we did have one, the negotiations should have to start on the profit, like the Act said”.

Mr. James A. Wilcox: Well, if the Board was told to performance duty, the clerks would be in there very short --

Justice Byron R. White: I didn't understand you.

Mr. James A. Wilcox: If this Court affirms Pitney and Slocum and tells this Board, this Adjustment Board, to perform a duty that Congress intended of it, I can assure you that the union performing the work, the clerks in this case, will be in there to protect that work.

Justice Byron R. White: What you're saying is that you would expect the Adjustment Board to make this decision and to interpret both contracts.

Mr. James A. Wilcox: Yes, sir.

Justice Byron R. White: And then if the clerks wanted to stay out while their contracts were being interpreted, let them stay, but they would be bound?

Mr. James A. Wilcox: I think so, yes, sir.

Justice Potter Stewart: They had an opportunity -- give a notice to them and they stayed out?

Mr. James A. Wilcox: They stayed out.

And we've talked about Mr. Kraemer's argues that we are asking for 10k.

It's our position that we had 10k all the time but because of these devices have not been able to utilize it.

However, it is interesting to note that when 10k was before the court, before the Congress -- representative Gerald W Landis -- on the floor stated, “This conference report will take care of labor abuses without destroying laborers' rights.

It completely outlaws jurisdictional strikes, wild cat strikes and secondary boycott.

These are labor evils and not laborer's rights.

In order to stop the strikes which threaten the national welfare, we have set up a plan, referring to 10k like the Railway Labor Act in many ways –-

Justice Byron R. White: -- many ways as you said.

Mr. James A. Wilcox: We have set up a plan in many ways like the Railway Labor Act.

From the earlier, the Adjustment Board has had this jurisdiction and should exercise it.

Chief Justice Earl Warren: Mr. Wilcox, I'm just going to ask you this.

Would you tell me specifically how many members would be on the Board if you prevailed and the clerks must be brought in and how these people are selected?

Mr. James A. Wilcox: The membership, Mr. Chief Justice, on the Board will not change whatever this Court does in this case.

The Third Division where this case was before, it was a permanent; you call a permanent board although they are subject to removal by their own employer.

Five labor members and five carrier members, each side paying their own members, and those would be of the same union, of their union.

Mr. James A. Wilcox: They don't have to be no.

Justice Byron R. White: So they don't have to be.

Mr. James A. Wilcox: No, it wasn't intended that way.

Justice Byron R. White: But they can be?

Mr. James A. Wilcox: They can be--

Justice Byron R. White: -- often are?

Mr. James A. Wilcox: They often are.

The Third Division, however, has I believe jurisdiction over 12 crafts -- that would be 12 different unions.

We have only five unions here represented on the Board.

Chief Justice Earl Warren: Now, let me ask you this.

Who will approve of those five members, that carrier, the telegraphers union or the clerks union in this case?

Mr. James A. Wilcox: All operating together, sir.

Chief Justice Earl Warren: Well, suppose that they don't operate, suppose they can't operate together?

Mr. James A. Wilcox: Well, if they can't pick them in, then the National Mediation Board picks a man from that side of the table.

In the same respect that if a carrier fails for 30 days to appoint a member of the Board, the Mediation Board does if for us.

And that's the same way with the labor members.

In practice, however, this organization or as a Railway Labor Executive Organization, they pick the membership.

Chief Justice Earl Warren: And that Railway Labor Executives has membership of whom?

Just the brotherhood or –

Mr. James A. Wilcox: All railroad unions.

Chief Justice Earl Warren: Non-operating as well?

Mr. James A. Wilcox: Except I believe the engineers, but all the non-operating -- indeed, it's essentially -- more of it in the non-operating field.

Justice Byron R. White: Well, I suppose that if they pick them jointly that it would be assume that some of them would come from the clerk's union and some would come from the telegraphers.

Mr. James A. Wilcox: Well, perhaps, I -- It would be up to deliver union labors.

Chief Justice Earl Warren: Well, you wouldn't expect one of them to say, will you take telegraphers to say, “Will you take all clerks, that's all right.

We don't care”.

Mr. James A. Wilcox: Oh!

No, it would not be that way.

Chief Justice Earl Warren: It wouldn't happen --

Mr. James A. Wilcox: NO.

Chief Justice Earl Warren: Whether be some or both?

Mr. James A. Wilcox: Yes, that's right.

Chief Justice Earl Warren: Now, in this case for instance, you assigned this work to the clerks.

Isn't it entirely natural that your five people in voting for the railroad would join with those who were friendly to the clerks and therefore you would win in every situation?

Mr. James A. Wilcox: That could happen and it could be perfectly lawful.

But as I stated, it was never intended that any member of the Board look after only one certain interest.

In other words, the labor union members have the duty to look after the whole of the labor union side.

And if they want to avoid this, it would be simple matter for the five labor members and the five carrier members.

It's a deadlock and allow this to go a neutral for a decision, which is exactly their practice today as we outlined in appendix C.

Justice Potter Stewart: What you're saying really -- they really act not as a tribunal of ten but of a tribunal of two because they blocked vote, is that it?

Mr. James A. Wilcox: Yes.

They have up to now.

The only time as I pointed out that they didn't when the telegrapher member on the Board voted with a railroad to deny a clerk's claim; that night, he was removed from the Board in emergency session –

Justice Potter Stewart: By whom?

Mr. James A. Wilcox: The Railway Labor Executives meeting and took him off the board.

For a number of years, the telegraphers did not have a representative on the Board.

Justice Potter Stewart: And what happened on that case, does that decision sticks?

Mr. James A. Wilcox: Yeah, as far as I know.

Justice Byron R. White: I mean the decision that the telegraphers voting with the carriers.

Was that set aside or --

Mr. James A. Wilcox: Perfectly valid decision.

Justice Abe Fortas: Did that Court therefore behind (Inaudible) now?

Mr. James A. Wilcox: I am fairly familiar with the Board's docket and I would say that the Third Division, which is the one you are merely concerned with, is approximate 2 ½ years behind.

But it is fast catching up.

Responsible people on our side of the table indicate that within a year-and-a-half, they should be on a current basis of say 6 months.

Justice Abe Fortas: How many divisions it has?

Mr. James A. Wilcox: Four, sir.

Justice Byron R. White: Mr. Wilcox, may I just ask one more.

Well, I think it's the luncheon time.

Well recess now.

Mr. James A. Wilcox: Thank you very much.