LANDERS v. NATIONAL RAILROAD PASSENGER CORP.

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ORAL ARGUMENT OF CLINTON J. MILLER, III, ESQUIRE ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument first this morning in No. 86-2037, Paul G. Landers versus National Railroad Passenger Corporation.

Mr. Miller, you may proceed whenever you're ready.

Mr. Miller: Mr. Chief Justice, and may it please the Court.

This case involves a subsection in the Union Shop provision in the Railway Labor Act, Section 2 Eleventh (c) passed in 1951 which differs significantly from that in the Labor Management Relations Act as it relates to operating employees only on this nation's railroads comprised of engineers, firemen and hostlers, conductors and trainmen.

On its face, Section 2 Eleventh (c) permits satisfaction of a negotiated union shop agreement with one of the two remaining operating craft unions by membership in the other, the minority union.

The two provisos in Section 2 Eleventh (c) make the alternate membership choice peculiar to railroad operating employees clear beyond doubt.

They provide that an employee not belonging to any union on the effective date of a union shop obligation covering operating employees may be required to belong to the union representing the craft or class, but such an employee in the second proviso or any employee in the operating crafts has the unfettered right to change affiliations to a qualified organization.

There are only two left: the Brotherhood of Locomotive Engineers; and, the United Transportation Union.

No agreement can change these statutory rights.

The petitioner here was an engineer on Amtrak in February 1984, after having been an engineer on the Consolidated Rail Corporation and its predecessor for many years.

The Brotherhood of Locomotive Engineers is the certified representative for engineers on Amtrak.

But the petitioner belonged to the United Transportation Union and in fact was a local officer, and continues to be, of the United Transportation Union.

He performed passenger engineer service for Conrail and its predecessors under an operating agreement with Amtrak until 1981 when the Northeast Rail Service Act mandated direct operation by Amtrak, and Amtrak commenced that direct operation January 1, 1983, as mandated by the Northeast Rail Service Act which does provide in an agreement negotiated pursuant to that Act for flow back rights to Conrail.

In February, 1984, while working as a passenger engineer on Amtrak, Mr. Landers was noticed for an investigation on the property of Amtrak relative to his violation, an alleged violation of an operating rule.

According to what had been his experience, particularly on Conrail, and while working for Conrail providing Amtrak Service, petitioner asked for UTU representative to be present.

His request was denied by the carrier, Amtrak, because the Brotherhood of Locomotive Engineers, Amtrak's collective bargaining agreement had an exclusive representation clause with regard to on-property investigations and with regard to the handling of time and grievance claims on the property.

Whereupon, he filed this action seeking temporary, preliminary and permanent injunctive relief, as well as declaratory relief.

And he sought that relief from the qualification on his right to have his representative, the union of membership present at the most critical moment during employment, an investigation on the property leading to discipline.

During the pendency of this case, an investigation was held, a suspension was issued, it has been served, and the petitioner is now back to work.

After a bench trial on essentially undisputed facts in the District Court, the District Court rejected the jurisdictional challenges of the respondents, finding that the issue was one of statutory construction on the permissibility of an agreement provision.

But it entered judgment for the respondents finding that the right to alternate membership, which it did not dispute, and the legitimate interest in representation by the Union of Membership in disciplinary investigation were subservient to the exclusivity representation principles in the balance of the Railway Labor Act.

On rebut, the First Circuit Affirmed, borrowing heavily from what it referred to as the analogous precincts of the LMRA.

Although it recognized the absolute right to alternate membership and the legitimate interest of an employee in having the union of membership be present at a disciplinary hearing, it decided that on the basis of exclusivity principles in the Railway Labor Act itself, and flowing over from the National Labor Relations Act, that this right could be reduced to an absurdity that petitioner asked this Court to correct.

Before the decision below, the Circuit Court precedent on this issue was uniform in both the Seventh Circuit in the McElroy case and the Fifth Circuit in the recently decided Taylor case decided that Section 2 Eleventh (c) of the Railway Labor Act was key to a resolution of this issue.

Both recognized that a determination that one was entitled to alternate membership only without having the assistance of the union of choice at a disciplinary investigation or to handle a time and grievance claim was a naked legal right unaccompanied by any of the ordinary material benefits of membership.

In fact, the Taylor court stated that it reduced the statutorily protected right to alternate membership to that of membership in a mere social club.

Unidentified Justice: Well, Mr. Miller, Section 153 First (j) provides that in proceedings before the Railroad Adjustment Board, you will have counsel of your choice, doesn't it, or union of your choice?

Mr. Miller: That is correct, Mr. Chief Justice.

Unidentified Justice: So that the alternate representation certainly means something there.

Mr. Miller: That is correct, Mr. Chief Justice.

However, I would hasten to add that subsection 3 First (j) is applicable to all unions, non-operating crafts as well as operating crafts, which this Court was at pains to point out in Pennsylvania Railroad against Rychlik.

This alternate membership provision has no applicability whatever to virtually 70 percent of railroad employees.

It only covers operating crafts.

Three first (j) is applicable across craft lines.

Unidentified Justice: But it does mean, doesn't it, that the right to be represented by the union of your choice is effective at that level?

Mr. Miller: Yes, Your Honor.

Unidentified Justice: So it's not just a social club.

Mr. Miller: That is correct to an extent.

However, the record in railroad proceedings leading to discipline, as this Court knows, is fixed by the investigation on the property.

The record cannot be changed.

Arbitration under Section 3 of the Act, mandatory arbitration, cannot change that existing record.

It is basically a de novo review of the record made on the property of the carrier, and in that respect is materially different from arbitration under the NLRA.

I would also like to point out that 3 First (j) grants an unqualified right to any representative of choice.

Counsel may be present at that point at the NRAB.

And while it is true that the union of membership may take over at that point, so many any representative.

And that does not give effect to the plain meaning of the later enacted provision, subsection 2 Eleventh (c) because it provides that one may satisfy union shop obligation by being a member and have the assistance of that member in making the record that will serve as the basis for any further proceedings with regard to discipline or a time or grievance claim.

Unidentified Justice: Counsel, in the Adjustment Board Hearing, is the employee entitled to introduce new evidence at any time, or is he always confined to the record below?

Mr. Miller: Justice Kennedy, the general rule is often stated that one may not raise anything in arbitration that has not been dealt with on the property, that has not been raised on the property.

Unidentified Justice: Well, are there ever hearings in which the employee is allowed to introduce evidence at the Adjustment Board level?

Mr. Miller: Not that I'm aware of, Justice Kennedy.

He is allowed to appear and plead his case but the record is made by the handling on the property.

The Court below also made much of the fact that there is no so-called shuttling between a fireman craft and an engineer craft on Amtrak as a new employer.

Because in the corridor operation from which these facts arise, there were no firemen.

However, the presence of shuttling would be equally applicable to any analysis as to whether alternate membership was permitted.

And the Court below did not dispute at all, and in fact held consistent with virtually uniform precedent that the petitioner in this case did have a right to alternate membership.

The absence of presence of shuttling is not contained anywhere in section 2 Eleventh (c).

The lower court did not think it had any effect with respect to membership.

It should not have any effect with respect to the assistance of the union of membership in an on-the-property investigation.

Three decisions from this Court are a key to the resolution of the issue present here.

The first case is Pennsylvania R.R. v. Rychlik where this Court limited the applicability of the alternate membership choice to those unions having qualified electors on the first division of the National Railroad Adjustment Board in accordance with Section 3 First (h) of the Act.

That qualification did not appear plainly on the face of the Statute but as this Court noted, it was the established unions which drafted the language into Eleventh (c).

Moreover, the purpose of the passage of the Statute was not to open up the field to brand new unions such as existed in the Rychlik case.

Unidentified Justice: Mr. Miller, I wonder whether the Court in the Pennsylvania Railroad case didn't take a much more limited view of Section 2 Eleventh (c) than you are advocating here.

I thought the Court said it had a very narrow and limited purpose?

Mr. Miller: Justice O'Connor, I would agree that there was much discussion about the limited purpose to eliminate the problem of free riders, but I would point out that the issue that was in front of the Court was itself a very limited one at that time.

The only holding in the case was that UROC, the brand new union, was not a union that was qualified to be available for alternate membership.

Unidentified Justice: Well, it strikes me that you're asking for a much broader interpretation of that section than I thought the Court had given it.

Mr. Miller: Justice O'Connor, I guess all I can say in response is that I don't believe that the Court was required to go as far as we are seeking here because of the limited issue that was involved.

But I do think that--

Unidentified Justice: Well, do you think that Section 3 First would possibly take precedence here in telling us what to do on these specific grievances?

Mr. Miller: --No, Justice O'Connor, I don't, because I believe you're referring to 3 First (i), the usual manner handling which was passed in 1934.

The point here is that we have a very specific statute with very plain language with regard to membership which is the later enactment which is specifically keyed to a problem existing only among operating employees.

For that reason, I do not believe that Section 3 First (i) could be construed to be an absolute bar to the later enactment of Section 2 Eleventh (c).

And in that regard, the usual manner that is referred to and is usually under the control of the carrier and the organizations on the property must be modified by the plain meaning of the membership provisions and the alternate membership provisions of subsection 2 Eleventh (c) if it's to have any real meaning.

This Court has before and two years after the Rychlik case invalidated other provisions in collective bargaining agreements which inhibited another right under subsection 2 Eleventh (b).

That right was the right to revoke a dues checkoff assignment for the benefit of the organization with the carrier.

The facts of the case were such that the union holding the agreement, so to speak, the representative, the Brotherhood of Railroad Trainmen, in its bargaining agreement with the carrier required that the employee use the union's form only to make the revocation.

This Court found no support in either the plain meaning of the statute itself or in the legislative history to support such a view, and therefore invalidated that provision.

And I might note that in so invalidating that provision, this Court in Felter specifically recognized that one of the reasons an employee may revoke was to give effect to the second proviso of subsection 2 Eleventh (c) which was left open for solicitation by the remaining two rival unions.

The third case from this Court that is important to resolution of the issue in this case is the Elgin, J. & E. Ry v. Burley case where this Court decided that individual rights under the Railway Labor Act are materially different than they are under the National Labor Relations Act.

The union does not control arbitration.

Arbitration under the Railway Labor Act is statutory.

And an individual does not have to go to the union to exercise his or her right to that arbitration under the Act.

And any qualification on that right by means of a settlement between the union and the carrier without the knowledge or consent of the railroad employee was nullified by this Court's decision on the Burley case.

In that respect, we would submit that the statutory right to alternate membership under subsection 2 Eleventh (c) cannot be nullified by reducing the right that these operating employees have to an absurdity or to mere membership in a social club, or relegating them to the same rights that all railroad employees have when the Statute is so specific with regard to the rights to alternate membership.

In this regard, this Court has before recognized that great care must be taken to import principles under the LMRA over into the Railway Labor Act arena.

And we would submit that that is certainly true in this case.

This is a very specific right to alternate membership key to a narrow class of operating employees on the railroad.

It quite clearly gives them the right to alternate membership.

That cannot be qualified by requiring the union not of their choice to handle the claims on the property.

The LMRA cases cited by the respondents, those arising before the effective date of subsection 2 Eleventh (c), those not dealing with subsection 2 Eleventh (c) because they deal with nonoperating employees are totally inapplicable to a resolution in this case.

What we are dealing with here is a right to alternate membership plain on the face of the statute and with nothing in the legislative history to suggest otherwise.

This case is truly devoid of the mischief that is claimed will be worked by the respondents.

The petitioner here did exactly what he had done for years while performing service on Conrail.

And that carrier was recently successfully sold by the government and no peculiar labor relations problems occurred on that property.

If there is to be the full exclusivity that is present in the LMRA and with regard to non-operating employees to be applied in this case, we would submit that that is for the Congress to decide.

It is a policy matter.

There was no dispute even by the court below that the petitioner in this case had an absolute right to alternate membership.

And although the court below recognized his legitimate interest in having his own union establish the record at the most critical moment of employment leading to discipline on the property, it effectively overrode that legitimate interest by applying exclusivity principles from an Act in this case clearly not an analogous.

I reserve the remainder of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Miller.

We'll hear now from you, Mr. Ross.

ORAL ARGUMENT OF HAROLD A. ROSS, ESQUIRE ON BEHALF OF THE RESPONDENTS

Mr. Ross: Mr. Chief Justice, and may it please the Court.

The respondents, Amtrak and the Brotherhood of Locomotive Engineers cannot agree with the petitioner's position that one may weave out of the fabric of the alternate union membership provisions in Section 2 Eleventh a suit that treats with grievance handling by rival union.

It is generally accepted that management and labor enjoy a wide freedom to develop their own collective bargaining relationship through the process of collective bargaining.

As a corollary to that freedom, they have the authority and in fact the responsibility to provide a cost effective and efficient method for the processing and administration of the collective bargaining agreement.

That system in the railroad industry is well developed.

It is a system that is administered by laymen, not lawyers.

It is a system in which claims and grievances are handled upon a documentary evidence, evidence which laymen prepare through the exchange of letters.

In the event there is discipline or dismissal involved, the railroad may hold an investigative hearing on the property.

That hearing is conducted by a lower echelon carrier official.

That document becomes... that is the transcript of that hearing becomes part of the documents or the record before the National Railroad Adjustment Board in disposing of that discipline or dismissal.

All parties here, including the petitioner, recognize that the collective bargaining representative has the authority to administer the collective bargaining agreement.

They all agree that the individual employee may not insist upon his interpretation of the collective bargaining agreement He can only insist, under the Railway Labor Act, upon access to the grievance process so that his claim can he fairly resolved.

This right of access to the grievant is a personal one.

It is a procedural right.

Therefore, the parties, that's the collective bargaining parties, may enter into a collective bargaining provision which precludes a minority union, an attorney or any other third party from handling claims and grievances for the individual employee at the company level.

The fact that the parties can enter into such a restrictive provision, however, does not mean that the collective bargaining representative may act arbitrarily at the company level, nor does it mean that the carrier may deny the individual a full and fair hearing, or deny him consideration of his grievance.

The former would permit an action against the union for a breach of its duty of fair representation.

The latter would permit the arbitrator, in this case, the First Division of the National Railroad Adjustment Board.

Unidentified Justice: Mr. Ross, you emphasized, the company level?

Mr. Ross: Yes, Your Honor.

Unidentified Justice: What other levels are there?

Mr. Ross: There are two levels: the company level would be where you go through the stages of handling grievances.

Under the National Labor Relations Act, those industries for example, they bar everyone except the certified bargaining representative processing grievances at that level, that is through the foreman on up to the next immediate supervisor and finally with the chief operating officer who has authority to handle claims and grievances.

If that chief operating officer denies the claim, refuses to sustain the claim at that point, then the individual has the right to go to arbitration.

I'm talking about that stage with the carrier official.

Unidentified Justice: And is there any representation at any other level?

Mr. Ross: Once it goes beyond that level, then the individual, as Mr. Miller indicated, may represent himself before the arbitrator, the First Division of the National Railroad Adjustment Board, or he may be represented by any union of his choice, or by an attorney.

Of his choice.

But I'm drawing the distinction here that at company level proceedings, the collective bargaining agents may enter into a provision which restricts access to that grievance procedure to the individual himself or to the certified collective bargaining representative, which in this case, would be the Brotherhood of Locomotive Engineers.

That system is analogous to the system of grievance handling under the National Labor Relations Act, except contrary to what is done in other industries, the individual may handle his own grievances at these beginning stages on the property handling.

And as I was going to say, not only does the individual have a right to bring an action against the union if it breaches its duty of fair representation in arbitrarily acting against him in these beginning stages, but in addition to that, if the employer denies the individual a full and fair hearing or refuses to consider a claim or grievance, the First Division of the National Railroad Adjustment Board may set aside the action that was taken by the carrier.

And we submit that there are three basic fundamental premises that uphold the right of the collective bargaining representatives to enter into such restricted access to the grievance process.

The first reason is is that judicial interpretations of the National Labor Relations Act, and also the Railway Labor Act, do not sanction minority or rival union representation in the processing of claims and grievances.

The second reason is, contrary to what petitioner asserts, the language of the Railway Labor Act does not promote minority union handling of grievances at the company level.

As a matter of fact, if I may make an aside here, Congress specifically knew how to use language, as recognized by the lower courts, when it did anticipate that an individual could be represented by more than himself or by the certified collective bargaining representative, when it used the specific language that it did in Section 3 First (j) of the Railway Labor Act.

Insofar as company handling, on-the-property handling, it used different language and that language was, the usual manner of handling up to and through the chief operating officer of the railroad designated to resolve or adjust grievances.

We submit, and this would be consistent with all the cases that have been cited by the petitioner, that where you have a usual manner here with a railroad that came into existence with its own employees on January 1, 1983, and entered into agreements with all of the unions providing for exclusive handling of their grievances by the certified collective bargaining representative or by the individual, that that becomes the usual manner of handling on that property.

And therefore the Court would never have to reach the other issues that have been raised in this case, although we think that the First Circuit was correct when it ruled that operating employees of railroads, just as employees covered by the National Labor Relations Act, and also employees who are considered to be non-operating employees, are no different.

That under those circumstances, as I indicated previously and as accepted by leading scholars of the labor law, the collective bargaining representatives enjoy this peculiar relationship in devising a grievance procedure for on-the-property handling.

And as a result of that, in this case, Amtrak and the Brotherhood of Locomotive Engineers had a right to enter into such an agreement and they did do so, and they've applied it consistently.

And as a matter of fact, the United Transportation Union entered into similar provisions which they have consistently applied in the crafts that they represent, the National Railroad Passenger Corporation.

In addition to the specific language of the Railway Labor Act which we assert does not promote minority union handling of claims and grievances, we also submit that both the 1934 amendments to the Railway Labor Act, and also the 1951 Union Shop Provisions had as their sole purpose the elimination of labor turmoil and the promotion of stability of industrial relations in the railroad industry by the elimination of competition between unions.

That proposition was stressed a number of times in the 1934 hearings, both by the draftsman of the legislation, Commissioner Eastman, Joseph Eastman, and also by the chief spokesman for labor, George Harrison, who was the President of the Brotherhood of Railway and Airline Clerks, and also Chairman of the Railway Labor Executives Association.

The very purpose of the Section 2 rights and Section 3 process was to eliminate degrading the competition between not only various unions in the industry but also company unions.

And it was stressed that these grievance procedures and the other procedures in the Act had that as their very purpose.

During the questioning at the hearings, both Commissioner Eastman and Mr. Harrison were asked questions in regard to handling of grievances by more than just the individual and more than the certified collective bargaining representative.

And both those gentlemen said that maybe we should open it up, so that you could have minority unions handle grievances at company level proceedings.

And Mr. Harrison specifically said that there is certain language that could be incorporated into Section 2 Fourth.

And some of that language has been taken out of context by the Courts in McElroy and the Court in Taylor and used as a basis for the decisions in those cases.

But if one goes back and looks at the record, the Eastman-Harrison proposal which would have allowed what the United Transportation Union is asking for today was rejected by Congress.

That language was never inserted into the Railway Labor Act of 1934.

Then we proceed to 1951.

And in the hearings on the Union Shop amendments in 1951, one of the purposes was to do away with the freeloader.

But Mr. Harrison again spoke in favor of the union shop amendments.

He was like Methuselah, I guess.

He was around for along period of time.

And he brought forward a lot of amendments to the Railway Labor Act.

But again he stressed the fact that there should be an elimination of this competition between unions.

And he indicated on several occasions during his testimony in response to the conflict that existed between the operating employees as to the application of Section 2 Eleventh (a).

See Section 2 Eleventh (a) would have required the individual, even though he was involved in this very narrow problem that existed of temporary transfers, and as Justice O'Connor's question of my brother, Miller, indicated, this Court in Rychlik did state, at least on three occasions, that the purpose of Section 2 Eleventh (c) was to handle a very narrow problem, a very specific problem and that was solely for the temporary transfer of firemen to engineers and back, because they would only work a few days in the craft, and then they would flow back into the firemen's rank, or the other way, trainmen going in as conductors, and then back.

The idea was for that two week period, it was testified to by Mr. Sea, he didn't have to change into the other union.

But there was no indication in any of the opinions of this Court that the individual could hang out the rest of his life and belong to the Brotherhood of Railroad Trainmen or the Brotherhood of Locomotive Firemen and Enginemen.

And Mr. Harrison said that in his testimony.

He said that on several occasions that it is expected that an individual, once he is regularly assigned as a locomotive engineer, will join the Brotherhood of Locomotive Engineers.

The United Transportation Union is now attempting to change that reading of the Statute, now broadening it--

Unidentified Justice: You're not asserting that that's required by the Statute, are you?

Mr. Ross: --Your Honor, I believe that that was the intent of the draftsman that yes, that the Brotherhood of Locomotive--

Unidentified Justice: Well, that may have been what they expected, but you mean that we have to read this section so that if you're permanently assigned to one of the crafts, you have to join the union for that?

Mr. Ross: --For the purposes of deciding this case, Justice Scalia, I don't believe that the Court has to go that far.

I'm saying in response to Mr. Miller's comments that I believe that when one sits down and reads the legislative history of the 1951 Union Shop Amendments and knows anything about the railroad industry, it was never intended that that language was to go beyond the temporary transfer.

But this Court in ruling in this case doesn't even have to deal with that because Section 2 Eleventh (c) has nothing to do whatsoever with grievance handling.

And as I've indicated, Mr. Harrison, the chief spokesman on Union Shop indicated that.

As a matter of fact, neither of the respondents, no one has cited to a statement that Mr. Harrison made in the Senate Committee Hearings on the Union Shop Amendments, but he stated at page 16 of those 1951 hearings that if the Union Shop Amendments were passed, the grievance procedure will cease to be a battleground for rival unions; his language, not mine.

And I suggest that actually that was the intent and purpose of 2 Eleventh, and it had nothing whatsoever to do with grievance handling.

Unless the Court has any questions, I think that all I have to say is that the cornerstone of the Federal labor policy has been majority rule.

This Court as early as 1937 in the Railway Labor Act case of Virginia RR v. System Federation stated that a carrier had the duty to meet and treat with the collective bargaining representative of the craft, and no other.

That concept in the negotiation of agreements has been extended to the enforcement of those agreements.

It was extended to the enforcement of those agreements in Hughes Tool v. National Labor Relations Board, which has been cited with approval by this Court on a number of occasions.

In Black-Clawson Co. v. International Ass'n of Machinists, another case that seems to be cited by the Court frequently, that Court went so far to accept an argument of Professor Cox of Harvard Law School, and stated that the collective bargaining representatives covered by the National Labor Relations Act could, by collective bargaining, eliminate not only a minority union handling grievances and arbitrations of employees' claims under that Act, but they could go so far as to eliminate an employee having the individual right to confer with the employer concerning the claim or grievance.

There's a very complex scheme of Federal labor policy that has evolved over the years.

There are rights that the individual employees have.

I've indicated two of those rights previously.

In addition to the two that I mentioned, the duty of fair representation, and also the ability of the arbitrator to set aside the carrier's failure to allow an individual a full hearing, we also know that Section 2 Ninth of the Railway Labor Act was inserted so that if a group of employees was dissatisfied with the majority representative, they had a way under the procedures before the mediation board to do away with that union.

We also know, as this Court emphasized in several cases including NLRB v. Allis Chalmers, that there have been other statutory limitations or provisions for the protection of individuals and among those would be the Lander and Griffin Act which allows certain bill of rights to those individuals and that would be applicable in this case.

On the basis of all of this, the respondents, National Railroad Passenger Corporation and Brotherhood of Locomotive Engineers would request that the Court affirm the judgment of the United States Court of Appeals for the First Circuit.

Chief Justice William H. Rehnquist: Thank you, Mr. Ross.

Mr. Miller, you have eleven minutes remaining.

ORAL ARGUMENT OF CLINTON J. MILLER, III, ESQUIRE ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Miller: Mr. Chief Justice and may it please the Court.

Mr. Ross continues to not give effect to Section 2 Eleventh (c) of the Railway Labor Act.

It is not enough to say what Professor Cox or other legal scholars think about exclusivity principles.

It is not enough to cavil with regard to the legislative history.

In fact, the legislative history is supportive of the position here.

We're not talking about the 1934 amendments, we're talking about 1951 insertion of subsection 2 Eleventh (c) into the Railway Labor Act.

The point of the McElroy and Taylor Courts' discussion of the Eastman and Harrison testimony and its relationship to other sections of the Railway Labor Act such as 2 Second, 2 Third and 2 Sixth is that all of those sections are keyed to the designation of representatives.

There is only one class of employees in the entire country that have a right to designate a representative other than the representative certified by either the NLRB or the National Mediation Board and those are operating employees.

They designate that representative by opting for the alternate membership provisions of subsection 2 Eleventh (c).

They are the only ones that have that right.

If they have that right to alternate membership, it must come with something other than a mere defense to a union shop charge that could be brought by the contract holder.

It is, as both the McElroy and Taylor courts point out, something that must come with more attributes than one would get by belonging to a social club.

With regard to the 1951 Amendments, it was not Mr. Harrison's testimony that was critical at all.

In fact, Mr. Harrison was a non-operating craft president.

The statute was left in a state of disarray until January 1, 1951, when all of the operating craft unions except the Brotherhood of Locomotive Engineers agreed on the language in Section 2 Eleventh (c).

It is no answer to say that an employee choosing the alternate membership has a right to sue the contract holder for breach of the duty of fair representation where bad faith has to be shown.

The right to alternate membership must carry with it the attribute of representing on the property in minor disputes, only.

This works no intrusion whatever into the general exclusivity with regard to the negotiation and administration of agreements, and all of the courts have recognized that, McElroy and Taylor included.

In sum, Your Honors, when in doubt as to the legislative history, we consult the statute, and on that basis the petitioner seeks reversal of the judgment below.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Miller.

The case is submitted.

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Argument of Justice White

Mr. White: In the Landers case we affirm the judgment of the Court of Appeals for the First Circuit for the reasons stated in an opinion on file.

The opinion is unanimous.