Cooper v. Federal Reserve Bank of Richmond Brief for Petitioners

    No. 560

IN THE

SUPREME EOURT OF THE UNITED STATES

OCTOBER TERM, 1958

LEE OLIPHANT ET AL.,

v.
Petitioners,

BROTHERHOOD OP LOCOMOTIVE FIREMEN AND 
ENGINEMEN ET AL.,

Respondents

PETITION FOR REHEARING

J oseph L. R a n h , J r .,
J ohn  S ilard,
Attorneys for Petitioners,

1631 K  Street, N. W.,
Washington 6, D. C.



INDEX
Page

I. The Record Presents the Issue of Racial Exclu­
sion from the Statutory Bargaining Agent in 
a Concrete Not an Abstract Context.............  4

A. Denial to Negro Firemen of Participa­
tion in the Statutory Bargaining 
Process ..................................................  6

B. Misrepresentation and Nonrepresenta­
tion in the Day-to-day Interests of 
Negro Firemen .....................................  7

C. Primary Disadvantage Suffered by Negro
Firemen under the Brotherhood’s Cur­
rent Major Bargaining Objectives. ... 10

II. Nothing in the Opinions Below Renders Ab­
stract Rather than Concrete the Issue of Ra­
cial Exclusion from the Statutory Bargaining
A gen t.................................................................... 13

III. Since the Questions Are Presented by this 
Record in a Concrete Rather than in an Ab­
stract Context, the Appropriate Course Is 
Either to Review the Case or to Remand for
Clarification ............................................................. 18

Conclusion .................................................................... 20

Cases
Bakery $  Pastry Drivers v. Wohl, 315 U.S. 769........ 2
Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194 20
Brady v. Terminal R.R. A ss ’n., 302 U.S. 678.............  2
Brown v. Board of Education, 347 U.S. 483............  5,17, 20
Cafeteria Employees Union v. Angelos, 319 U.S.

753 ....................................................      2
Chastleton Corp. v. Sinclair, 264 U.S. 543.................  20
Chicago, Milwaukee & St. Paul R ’way v. Tompkins,

176 U.S. 167..................................................................... 20
City of Hammond v. Schappi Bus Line, 275 U.S. 169 19
Ford Motor Co. v. NLRB, 305 U.S. 364.......................... 19

4772-0



IX INDEX

Graham v. Brotherhood of Locomotive Firemen and
Enginemen, 3'38 U.S. 232...........................................

Hood <& Sons v. DuMond, 336 U.S. 525.........................
Interstate Circuit v. United States, 304 U.S. 55. . . . .  .
Missouri ex rel. Gaines v. Canada, 305 U.S. 337..........
Page v. Rogers, 211 U.S. 575.........................................
Steele v. Louisville <& Nashville Railroad Co., 323

U.S. 192 ........................................................................
Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356. .
Sweatt v. Painter, 339 U.S. 629.....................................
Tunstall v. Brotherhood of Locomotive Firemen and

Enginemen, 323 U.S. 210............................................
United States v. Carver, 260 U.S. 482.........................
Zorach v. Clauson, 343 U.S. 306.................................

M iscellaneous

Northrop, Organized Labor and the Negro (1944),
pp. 48-71 ......................................................................

Note, 49 Hai'v. L. Rev. 631, “ The Presentation of 
Facts Underlying the Constitutionality of Stat­
utes ”  ................................................................



IN THE

SUPREME EDURT DF THE UNITED STATES
OCTOBER TERM, 1958

No. 560

LEE OLIPHANT ET AL.,

v. Petitioners,

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN ET AL.,

Respondents

PETITION FOR REHEARING

Petitioners, Negro locomotive firemen, on their own be­
half and as representatives of the class of Negro locomo­
tive firemen, respectfully move for a rehearing of the denial 
of certiorari entered March 9, 1959.

Counsel are not unmindful of the careful consideration 
which this Court gives to petitions for certiorari and this 
is no doubt especially true of the instant petition which 
was sub judice for a substantial period of time. But coun­
sel are induced to file this petition for rehearing because 
the Court’s stated reason for denial of certiorari—“ the 
abstract context in which the questions sought to be raised 
are presented by this record” —indicates both an accept­
ance by the Court of the importance of the questions

(1)



2

raised and a grave misapprehension by the Court as to 
the nature of the record presenting those questions.1

As we shall demonstrate in Point I of this Petition for 
Rehearing, the record, far from presenting in an “ abstract 
context”  the admittedly important questions concerning 
racial exclusion from the statutory bargaining agent, ac­
tually provides a most concrete, specific and detailed basis 
for decision in as bitterly contested a litigation as has 
come before this Court in recent years. Cf. Steele v. Louis­
ville & Nashville Railroad Go., 323 U.S. 192; Timstall v. 
Brotherhood of Locomotive Firemen and Enginemen, 323 
U.S. 210; Graham v. Brotherhood of Locomotive Firemen 
and Enginemen, 338 U.S. 232. Indeed, so concrete, specific 
and detailed is the record before this Court that the only 
likely explanation of the Court’s use of the words “ abstract 
context”  is a misunderstanding of the record created by 
the confusion in the opinion below. Since the matter was 
before this Court on petition for certiorari and the Court 
thus did not have the benefit of briefs and argument on 
the merits analyzing the record, the Court undoubtedly 
relied heavily upon the decision below for its understand­
ing of the nature of the record and may well have assumed 
that the confusion in that opinion reflected a confusion 
(and thus an “ abstract context”  for the questions pre­
sented) in the record itself. But, as we demonstrate in 
Point II of this Petition, nothing in the decision below can

1 Since this petition for rehearing is predicated primarily upon what 
we believe to be a misapprehension concerning the record revealed in 
this Court’s announced ground for denying certiorari, this petition is 
obviously confined to “ intervening circumstances of substantial or con­
trolling effect”  within the meaning of Rule 58, paragraph 2. The correc­
tion of a misapprehension, revealed by the Court in its announced ground 
for denial of review, has on a number of occasions led this Court on 
rehearing to grant certiorari previously denied. See, e.g., Brady v. 
Terminal R.B. Ass’n., 302 U.S. 678, 688; Bakery £  Pastry Drivers v. 
Wohl, 315 U.S. 769’, 773; Cafeteria Employees Union v. Angelos, 319 
U.S. 753, 778.



3

or does impair the concrete context in which the record 
presents the vital pending questions.

We urge the Court, despite the careful consideration 
which it has undoubtedly already given to this case, to 
consider it anew in the light of the analysis of the record 
and of the opinions below which we present in this peti­
tion.2 This is the last round for petitioners and their 
class. The Southern railroads have not hired Negro 
firemen for many years (J.A. 72, 85, 164), and thus the 
hundreds of Negro firemen involved in this case as peti­
tioners and as a class are elderly men; their overriding 
wish is to live out their working lives as first class 
citizens. The reason given by this Court for the 
denial of certiorari, although it has been widely con­
sidered to indicate this Court’s doubts concerning the 
decision below, does not render that decision any less 
res judicata against the class of Negro firemen. Supreme 
Tribe of Ben-Hnr v. Cauble, 255 U.S. 356.3 The door to

2 In the petition for certiorari, petitioners pointed out that “proof that 
the working conditions bargained are themselves actually discriminatory 
is not a necessary part of petitioners’ case, but petitioners will, if cer­
tiorari is granted, demonstrate on this record the extent to which exclu­
sion from the statutory bargaining agent necessarily results in, and did 
here result in, actual discrimination against them”  (Petition, n. 12, p. 
13). Since no suggestion had previously been made in this litigation 
that the statutory and constitutional questions were being* presented in 
an abstract context, there was no occasion to present to this Court in 
the petition for certiorari an analysis of the state of the record or of the 
effect of the opinions below on the state of the record.

3 Since this Court has made it abundantly clear that the denial of 
certiorari is not in any way to be deemed an approval of the decision 
below (United States v. Carver, 260 U.S. 482, 490), there appears to be 
some justification for the general view that the Court’s indication here 
of a non-jurisdictional reason for its denial of certiorari indicates some­
thing more than the ordinary “ nonapproval” implicit in an unexplained 
denial of certiorari. Although this indication of the Court’s doubts con­
cerning the decision below may conceivably be of assistance to the many 
other groups of Negroes barred from their statutory bargaining agent who 
may at some future time see fit to assert their rights, it will be of no 
assistance to the expiring group of Negro firemen who have sacrificed so



4

first class citizenship is closed forever to these men after 
more than four years of litigation and of expense and after 
decades of discrimination constituting one of the darkest 
chapters in the history of the American labor movement 
(see, e.g., Northrop, Organized Labor and the Negro, pp. 
48-71 (1944)). Only one last consideration by this Court 
can write a just and final chapter to one of the most unjust 
discriminations of our time.

I

The Record Presents the Issue of Racial Exclusion from 
the Statutory Bargaining Agent in a Concrete Not an 
Abstract Context

From the outset of the case, petitioners leveled a two- 
pronged attack (see J.A. 16-17,300-301) upon their exclusion 
from the Brotherhood—first, that their exclusion from 
membership renders them inherently unequal in the statu­
tory bargaining process, and second, that they are entitled 
to admission because as a matter of fact they are receiv­
ing actually unequal representation from the Brother­
hood. As a concrete foundation and base for the 
first theory of inherent inequality, petitioners sought from 
the outset to demonstrate how their exclusion from mem­
bership results in their complete exclusion from any voice, 
vote or other participation in the bargaining process. In 
support of the second theory of actual discrimination, 
petitioners sought from the outset to demonstrate the 
Brotherhood’s hostility, nonrepresentation and misrepre­
sentation, all to provide the most concrete possible context

much to vindicate their constitutional and statutory rights. Furthermore, 
as we point out later (see n. 9, p. 20, infra), the uncertainty flowing from 
the Court’s use of the words “ abstract context”  may actually place addi­
tional hazards in the way of those seeking to raise issues of racial exclu­
sion and racial segregation, contrary, we believe, to this Court’s intention.



iii illumination of the very real and immediate need for 
membership and participation in their statutory bargaining 
representative.4

Petitioners filed a lengthy complaint detailing their com­
plete exclusion from any voice, vote or other participation 
in the bargaining process and the various types of non­
representation and misrepresentation of their interests to 
which they are subjected by the Brotherhood (J.A. 5-19). 
Prior to the trial, petitioners obtained various admissions 
and answers to interrogatories from the Brotherhood, par­
ticularly with respect to their exclusion from the Brother­
hood, its meetings, its elections, its bargaining deliberations 
and even its information (J.A. 30-39). At the trial itself, 
which consumed an entire week in the District Court, eight 
witnesses appeared for petitioners to testify from personal 
experience to the hostility, nonrepresentation, misrepre­
sentation and discrimination to which Negro firemen 
are subjected by their statutory “ representative”  (J.A. 
39-167).

By pleading, interrogatory and proof, petitioners 
provided a concrete context in the three major areas 
of disadvantage and discrimination to which they 
are subjected by virtue of their exclusion from the 
Brotherhood: (a) denial to Negro firemen of all participa­
tion in the statutory bargaining process; (b) misrepresen­

4 This two-fold approach o f course parallels the two-fold judicial ap­
proach in the analogous area of racial segregation in public education. 
Petitioners’ first theory— that racial exclusion from the statutory bargain­
ing representative and the statutory bargaining process is inherently a 
denial of equal protection and equal representation— is analogous to the 
grounds for this Court’s decision in Brown v. Board of Education, 347 
U.S. 483. Petitioners’ second theory—that the Brotherhood’s consistent 
and unrelenting discriminations against Negro firemen requires admission 
to equal political power within the union—is analogous to this Court’s 
■pre-Brown decisions requiring admission where separate was tangibly 
unequal. See Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sweatt 
v. Painter, 339 U.S. 629.



6

tation and nonrepresentation in the day-to-day interests of 
Negro firemen; and (c) primary disadvantage suffered 
by Negro firemen under the Brotherhood’s current major 
bargaining objectives. A  brief examination of the record 
on each of these three major areas of disadvantage and 
discrimination will, we submit, demonstrate that there is 
nothing in any way abstract in the “ context in which the 
questions sought to be raised are presented by this record. ’ ’

A. Denial to Negro Firemen of Participation in the Statu­
tory Bargaining Process

Petitioners’ complete exclusion from the bargaining 
process and any voice or vote therein was extracted from 
the Brotherhood in the course of the litigation. The 
Brotherhood’s President admitted on cross-examination 
(J.A. 218) that Negro firemen are denied any voice or vote 
in the election of Brotherhood officials responsible for the 
bargaining and implementation of the working conditions 
of all firemen. And the Brotherhood was forced to con­
cede, on written interrogatories (J.A. 32-33), that Negro 
firemen may not even attend, much less participate in, the 
meetings where white Brotherhood members are given 
“ reports on negotiations with carriers”  and where firemen 
discuss “ matters of general interest to locomotive fire­
men,”  including decisions on “ time claims and grievance 
cases,”  and “ impending changes in assignment of runs, the 
set up of pools, etc.”  Indeed, even when the Brotherhood 
conducts votes among firemen on questions of general im­
portance, such as a change in the work week, Negro firemen 
are denied the ballot (J.A. 125-128).

The question whether exclusion from membership is in­
herently a denial of equal protection and equal representa­
tion under the Constitution and the Railway Labor Act is 
thus presented to this Court upon a record of carefully



7

detailed and admitted facts extracted from the Brotherhood 
in the course of a prolonged litigation. The record is ex­
plicit in demonstrating exactly how exclusion from member­
ship results in exclusion from voice, vote and other par­
ticipation in the statutory bargaining process. We respect­
fully submit that the care and detail with which the inherent 
inequality of exclusion has been demonstrated on this record 
is as far removed from an “ abstract context”  as night 
from day.

But petitioners did not rest their case merely on the 
inherent inequality in the denial of voice, vote and other 
participation with respect to the formulation and imple­
mentation of their conditions of employment; they went on 
to demonstrate the special need for equal political power 
within the statutory bargaining representative by virtue 
of the continuing hostility, nonrepresentation, misrepre­
sentation and discrimination to which Negro firemen are 
subjected by the Brotherhood:

B. Misrepresentation and Nonrepresentation in the Day-to- 
day Interests of Negro Firemen

The record abounds with unrebutted demonstrations of 
the hostility, nonrepresentation, misrepresentation and dis­
crimination to which the Brotherhood subjects Negro 
firemen in their most vital interests;

1. Although practically no new Negro firemen have been 
hired on any railroad since 1941, when the Brotherhood 
forced the Southeastern Carriers Conference Agreement 
on the railroads, its officials refuse even to make repre­
sentations to the railroads to request renewed hiring of 
Negro firemen (J.A. 72-73, 84-85). As one Brotherhood 
official informed a fireman who had asked for help to get 
a Negro relative hired, “  there wouldn't be any more Negro



■8

firemen, hired, therefore it was just a matter of time we 
was out”  (J.A. 85).5

2. The Brotherhood never informs Negro firemen, nor 
solicits their views, concerning prospective changes in 
the governing contract or in its implementation and ap­
plication; petitioners’ witnesses, some of whom have been 
employed as firemen for thirty or forty years, testified that 
no Brotherhood official has ever solicited their views with 
respect to their conditions of employment (J.A. 43-44, 57, 
71-72, 75, 85-86, 88-89, 99-100, 105, 109, 126, 132, 137, 
142-43, 144).

3. Some Brotherhood officials have even openly declared 
their policy of discriminating against Negro firemen (J.A. 
73-75, 84-5, 86-88, 106-109, 306 et seq.). One Brotherhood 
G-eneral Chairman, Thad S. Lee, who initiated a strike vote 
of the white firemen on the Atlantic Coast Line Railroad 
because of the railroad’s violation of a 1925 “ gentlemen’s 
agreement”  against hiring of Negro firemen (J.A. 309- 
316), continues as the highest officer of the Brotherhood on 
the railroad (J.A. 211-15). Another General Chairman, 
after Federal Judge Mullins entered a decree in 1951 
pursuant to the Steele doctrine for the protection of Negro 
firemen, told one of the petitioners: “ Judge Mullins gave 
it to you but I will sure as hell see you don’t keep it”  
(J.A. 75).

4. Although segregated facilities made available by the 
railroads to Negro firemen are unequal to those afforded

5 There could hardly be a less “ abstract” need for equal voice within the 
statutory representative than the very survival of the class of Negro fire­
men. Yet, since practically no new Negro firemen have been hired on 
any railroad for many years (J.A. 72, 85, 164), i f  petitioners cannot 
by this Court’s mandate obtain political power inside the bargaining rep­
resentative and thereby obtain renewed hiring of Negro firemen, in the 
foreseeable future there will be no Negro firemen left to be represented 
by the Brotherhood either as members or non-members.



9

white firemen, the Brotherhood has not sought to obtain 
their equalization (J.A. 56, 89, 129-30).

5. Disregarding the seniority rights of Negro firemen, 
the Brotherhood has given preferential treatment in the 
assignment of runs, jobs, etc., to junior white firemen over 
senior Negroes (J.A. 52-53, 86-88, 100-107, 130-132, 140-142, 
149-153).

6. The Brotherhood has refused to take up grievances 
with the railroads on behalf of Negro firemen, or to rep­
resent them on an equal basis with their own members 
in grievance proceedings 0 (J.A. 52-54, 54-55, 102-3, ISO- 
32, 159-61). Indeed, when it was brought to the attention 
of the Brotherhood’s President that its officials were 
actually requesting fees to represent Negro firemen’s 
grievances, the Brotherhood nevertheless refused to send 
out instructions for the discontinuance of this discrimina­
tory practice (J.A. 225-226).

What is as significant as this detailed showing of hostil­
ity, nonrepresentation and. misrepresentation by the 
Brotherhood is the total absence of any attempt at 
refutation. None of the local Brotherhood officials to whom 
petitioners’ witnesses ascribed hostile and discriminatory 
conduct were called in rebuttal.6 7 Thus, the Court has 
before it the detailed and unrebutted testimony of eight 
victims of the Brotherhood’s continuing discrimination as 
a concrete basis for decision of the question whether peti­

6 Since labor representatives on the National Railroad Adjustment 
Board, the ultimate statutory arbiter of grievances, are appointed by the 
Brotherhood (and other unions barring Negroes from membership), Negro 
firemen are denied any voice in the selection of their representatives on 
the exclusive statutory forum for the consideration of their employment 
grievances.

7 The Brotherhood’s case, as presented by three of its highest officials, 
amounted to no more than a series of self-serving generalizations con­
cerning Brotherhood policies which provided no refutation whatever of 
the specific testimony concerning specific accounts of discrimination by 
specified Brotherhood officers (J.A. 168, 243, 2.71),



10

tioners’ exclusion from membership violates the Constitu­
tion and the Bailway Labor Act because it results in
actual discrimination against Negro firemen.

Petitioners might have rested on their showing of in­
herent inequality (Point IA, supra) and of actual day- 
to-day discrimination (Point IB ). But, in an especial 
effort to give the courts a clear and concrete picture of 
the impact of exclusion from membership upon Negro fire­
men, petitioners went even further—they demonstrated that 
the current major bargaining objectives of the Brotherhood 
actually work to the primary disadvantage of the Negro 
firemen, emphasizing the indispensability to their self- 
protection of the political power that goes with member­
ship :

C. Primary Disadvantage Suffered by Negro Firemen 
under the Brotherhood’s Current Major Bargaining 
Objectives

As important as petitioners’ demonstration of day-to-day 
misrepresentation and nonrepresentation of their interests 
by the statutory bargaining representative, is petitioners’ 
showing that the Brotherhood is using its broad bargaining- 
power to the primary disadvantage of Negro firemen. Peti­
tioners proved at the trial that the Brotherhood has recently 
bargained and is continuing to bargain “ spread the work”  
modifications in working conditions inuring to the particu­
lar disadvantage of the group of senior firemen, which 
necessarily includes most or all the Negroes. In particu­
lar petitioners emphasized 1) the reduction, for the benefit 
of junior firemen, of the monthly mileage made available 
to senior firemen, 2) the application of a “ gouge”  rule 
to take mileage from a high-mileage, senior fireman, 
for the benefit of junior firemen, 3) the special privi­
leges recently accorded to white engineers “ demoted”



11

to firing, and 4) the bargaining of a compulsory retirement 
age of seventy with immediate impact on the older, senior 
firemen (J.A. 42-52, 85-86, 101-105, 120-121, 136-137). 
Since on all the railroads where Negro firemen are 
employed they constitute the senior group of firemen 
(by virtue of denial in the past of opportunity for pro­
motion to engineer and the failure of most railroads to hire 
any new Negro firemen since 1941), everyone of these major 
policies of the Brotherhood, designed to reduce working 
opportunities of senior firemen, operates to the primary 
disadvantage of the Negroes. And while there was sharp 
disagreement between the parties as to whether these 
major Brotherhood policies are racially motivated, there 
was no conflict whatever concerning the fact that the 
Negro firemen are primary losers under these current 
objectives of the Brotherhood. As the Brotherhood con­
ceded in its District Court brief (at p. 23) :

“ On those seniority districts on which Negro firemen 
are employed, the Negroes are usually the oldest fire­
men and have the greater seniority. Hence, they hold 
the preferred runs, which is generally tantamount to 
saying that they hold the jobs on which the largest 
earnings can be made per month. When the mileage 
limitation rules are applied to these jobs on the south­
eastern railroads, it is usually the Negro firemen who 
are adversely affected  ̂ by the rule”  (emphasis sup­
plied).

Thus, whether racially motivated or not, the Brotherhood 
is bargaining changes in the mileage rules under which it 
concedes that “ it is usually the Neg*ro firemen who are 
adversely affected.”  It is difficult to conceive of a more 
tangible need or a more concrete basis for affording Negro 
firemen equal political voice and power within their statu­



12

tory representative than the fact that the statutory power 
is presently being used to the primary disadvantage of the 
excluded Negroes. And the fact that the very Negro firemen 
who are excluded from the bargaining process are the fire­
men most adversely affected thereby, gives concrete empha­
sis to petitioners’ showing both of the inherent inequality 
of exclusion and of the discriminatory impact of exclusion.

* * * * * *  *

The record thus provides this Court with a specific, de­
tailed and unrebutted showing (i) that exclusion from mem­
bership results in exclusion from voice, vote and every phase 
of participation in the statutory bargaining process; (ii) 
that exclusion from membership results in actual dis­
crimination through hostility, nonrepresentation and 
misrepresentation; and (iii) that the current bargaining ob­
jectives of the Brotherhood, whether racially motivated or 
not, primarily disadvantage excluded Negro firemen. 
This would appear to be not only an ample but an optimum 
context for a decision by this Court on the statutory and 
constitutional issues flowing from both the inherent in­
equality of exclusion and the actual discriminatory results 
of exclusion.

We turn now to demonstrate that this unrebutted record 
of inherent and actual inequality in the statutory bar­
gaining process remains unimpaired; nothing in the opin­
ions below could have, or has, rendered, “ abstract”  the 
very real, tangible and concrete record of racial inequality 
which cries out for the remedial hand of this Court.



13

II

Nothing in the Opinions Below Renders Abstract Rather 
than Concrete the Issue of Racial Exclusion from the 
Statutory Bargaining Agent

We have just demonstrated that the record presents 
the issue of racial exclusion in a concrete not an abstract 
context. Nothing" in either of the opinions below renders 
this issue any less concrete.

After the trial, the parties filed detailed requests for 
findings and conclusions of law in accordance with Rule 
52(a) (J.A. 2). Instead of making such findings and con­
clusions, however, the District Judge filed a memorandum 
opinion (J.A. 298-304) containing certain findings of fact 
and legal conclusions which he deemed “ compliance with 
Rule 52(a)”  (J.A. 304). Apparently the District Judge 
did not feel called upon to make detailed findings on ques­
tions of nonparticipation and of discrimination, for lie 
stated that “ the factual questions respecting inequality, 
discrimination and other related complaints presented in 
evidence have no bearing upon the single question to be 
resolved”  (J.A. 299) and “ the presence or absence of actual 
unequal treatment by the representative is immaterial”  
(R. 302). What rendered the factual questions concerning 
unequal treatment and discrimination “ immaterial”  in the 
District Judge’s mind was his belief that the union was a 
“ private association”  and a “ voluntary organization”  
which was not subject to statutory or constitutional limita­
tions of fair play (J.A. 303).

But even though the District Judge found it unnecessary 
to go into detail on the factual issues of nonparticipation 
and discrimination because his view of the law rendered 
such proof immaterial, he nevertheless made clear his own 
views on these factual issues. He assumed (R. 300), and



14

of course he could not have done otherwise in view of the 
Brotherhood’s admissions, that Negro firemen are denied 
any participation whatever in the statutory bargaining- 
process. He found, in so many words, that “ the evidence 
presented establishes the fact that these plaintiffs and the 
members of their class are discriminated against in respect 
of their representation and participation; their condition of 
employment, and other matters relating to such employ­
ment”  (R. 300); and, to the same effect, he expressly 
accepted petitioners’ “ showing of actual discriminatory 
representation by the Brotherhood”  (R>. 301) (emphasis 
supplied). Finally, he assumed, and again he could not 
have done otherwise in view of the Brotherhood’s admis­
sions, that Negro firemen are the principal losers from 
the Brotherhood’s major bargaining objectives in spread­
ing the work (J.A. 298-299), although he was unwilling to 
“ state definitely that this Brotherhood adopted these prac­
tices for the purpose of discriminating against the Ne­
groes”  (J.A. 299) (emphasis supplied). Thus, the only 
and extremely limited factual determination which the Dis­
trict Court made against the petitioners was that, with re­
spect to the Brotherhood’s admitted bargaining objective 
in spreading the work, the Court was unable to “ state defi­
nitely”  that it was racially motivated.

In sum, the posture of the case as it left the District 
Court was as follows :

(a) The petitioners’ undisputed proof that exclusion 
from membership resulted in complete nonpartici­
pation in the statutory bargaining process (Point 
I A, supra)—i.e., inherent inequality—was as­
sumed by the District Court.

(b) The petitioners’ unrebutted proof of hostility, mis­
representation, nonrepresentation and discrimina­
tion (Point I B, supra,)—i.e., of actual inequality



15

—was found as a fact in so many words by the 
District Court.

(c) The petitioners’ proof, conceded by the Brother­
hood, that Negro firemen are primary losers under 
the Brotherhood’s major bargaining objective of 
spreading the work (Point I C, supra.) was as­
sumed by the District Court.

The two-judge per curiam opinion of the Court of Ap­
peals likewise accepts petitioners’ showing of nonpartici­
pation in the bargaining process, for it recites at the out­
set that “ a Negro fireman cannot become a member of the 
Brotherhood under existing provisions of the Brotherhood’s 
Constitution, nor may any firemen who are not members of 
the Brotherhood attend meetings of its local lodges”  (Peti­
tion, p. 24). But, on the issue of discriminatory represen­
tation as distinguished from nonparticipation, the court 
below misread the District Court’s opinion. What it did 
(see Petition, p. 26) was to treat the District Court’s in­
ability to “ state definitely”  that the spread-the-work bar­
gaining objective of the Brotherhood was “ for the purpose 
of discriminating against the Negroes”  as if the District 
Judge had “ decided the facts pertaining to discrimination 
adversely to the contention of appellants”  (Petition, p. 
26). In other words, the Court of Appeals mistook the 
District Court’s limited finding that the spread-the-work 
objective of the Brotherhood was not racially motivated, 
for the broader finding that there had been no actual dis­
crimination whatever and did this in the face of the specific 
recitals by the District Court that such actual discrimina­
tion had been shown (see p. 14, supra). The court below, 
by quoting the limited adverse holding by the District 
Judge on the question of racial motivation for the Brother­
hood’s spread-the-work objective, and by failing to quote 
or even mention the District Judge’s affirmative findings on



16

actual discriminatory representation, gave the District 
Court’s opinion an interpretation directly opposite to that 
expressly stated by the District Court.

It was this misunderstanding* of the District Court’s 
opinion that led the court below (Petition, p. 28) to state 
that “ the issue of actual discrimination by the Brother­
hood”  had been “ subtracted from the issue by the findings 
of the district judge.”  Quite possibly it is this sentence 
which caused this Court to conclude that there was some­
thing “ abstract”  about the record. We respectfully submit 
that this misstatement by the Court of Appeals can not 
render abstract what we have been at such pains to show 
is in fact a concrete record of discrimination. The District 
Judge found and, on the admitted facts had no choice but 
to find, actual discrimination in the representation which 
excluded Negro firemen are receiving from their statu­
tory bargaining agent. The Court of Appeals’ mis­
reading of the District Judge’s opinion cannot alter the 
state of the record adduced before and recognized by him.

Moreover, even if this Court should, contrary to the show­
ing just made, believe that the court below correctly read 
the District Court opinion when it said that the “ issue of 
actual discrimination”  had been “ subtracted from the issue 
by the findings of the district judge,”  this would by no 
means place the questions presented in an “ abstract con­
text” . Let us assume—contrary, we submit, to the record 
and to the opinions below—that both the District Court and 
the Court of Appeals found that there had been no actual 
discrimination by the Brotherhood and as a- result the 
“ two-court rule”  (see, e.g., Page v. Rogers, 211 U.S. 575, 
577) excludes this issue from the consideration of this 
Court. Even in this circumstance, however, there would 
nonetheless be presented to the Court the extremely con­
crete issue of inherent inequality based upon the detailed



17

factual account of deprivation of participation in the 
statutory bargaining process extracted from the Brother­
hood in the course of this litigation. The issue whether 
racial exclusion in the exercise of statutory bargaining- 
power renders excluded Negroes “ inherently unequal”  is 
no more abstract than the issue presented in Brown v. 
Board of Education, 347 U.S. 483. Indeed, as this Court 
pointed out in Brown (at pp. 488, 492), it was precisely be­
cause the lower courts had found equality in school facilities 
(i.e., that the issue of actual discrimination had been 
subtracted from the cases) that the Court was required to 
decide the question of inherent inequality. This Court made 
clear in Brown that it is only when no immediate inequality 
in tangible matters is presented that it will decide the 
“ abstract”  issue of racial segregation; to imply that this 
Court will not decide the question of inherent inequality 
in the statutory bargaining process in the absence of 
findings below of actual discrimination is to say that it 
will never decide that question, for the presence of such 
findings of discrimination will always render decision of 
the general (i.e., inherent inequality) question unnecessary.

To reduce the existing situation to its simplest terms, 
either the court- below was wrong or it was right and in 
either event the questions presented are in a concrete 
rather than an abstract context. If the court below was 
wrong, as we confidently assert, and the issue of actual 
discrimination in the day-to-day bargaining could not be 
and has not been subtracted from the case, then obviously 
this Court has an appropriate record before it for deciding 
the vital questions presented in a context of both actual 
discrimination and inherent inequality. If, on the other 
hand, the court below was right and the issue of actual 
discrimination has been subtracted from the case, the ques­
tion of inherent inequality is nonetheless presented to the



18

Court in the concrete context of detailed facts on nonpartic­
ipation and in the only form in which it can ever be decided, 
namely, after the issue of discrimination has been re­
moved from the case. While a determination whether the 
court below was right or wrong may have some effect 
on the questions that would be before the Court, it does 
not have any effect upon the nature of the record which is 
concrete, specific and detailed in either event.

I l l

Since the Questions Are Presented by this Record in a 
Concrete Rather than in an Abstract Context, the Appro­
priate Course Is Either to Review the Case or to Remand 
for Clarification

There are three alternative approaches to petitioners’ 
case in its present posture before this Court:

1. If petitioners are correct—as we confidently assert— 
in urging that the showing of actual discrimination has not 
been impaired by the decision of the court below, the 
questions presented are before this Court in the most con­
crete manner possible. If this Court, on reconsideration, 
now agrees with petitioners on this point, the appropriate 
remedy—the questions presented being of obvious and ad­
mitted importance—would be to grant the petition for 
rehearing, issue the writ of certiorari and review the case.

2. I f petitioners are incorrect and the decision of the 
court below could and did substract the issue of actual 
discrimination from the case, the question of inherent in­
equality is nevertheless presented for decision in the most 
concrete fashion in which that issue can ever be presented. 
In this event, too, the appropriate remedy—the questions 
presented being of obvious and admitted importance—



19

would be to grant the petition for rehearing, issue the writ 
of certiorari and review the case.

3. There is the likelihood, however, as we indicated at 
the outset of this Petition for Rehearing (p. 2, swpra), 
that what the Court took for abstraction was the confusion 
in the decision below and that the Court’s real difficulty is 
that it cannot determine whether the issue of actual dis­
crimination has in fact been subtracted from this case. 
We respectfully suggest, however, that petitioners ought 
not be penalized for the confusion in the decision below. 
Rather, if what is troubling this Court is the fact that it 
cannot determine whether the issue of actual discrimina­
tion has been subtracted from the case, the appropriate 
remedy would be to remand to the court below for the 
clarification of its opinion or to the District Court for more 
specific findings of fact upon which the Court of Appeals 
could base its clarification.

Indeed, in circumstances similar to those presented 
herein, without deciding the merits this Court has remanded 
for appropriate clarification of the facts. Its practice in 
this regard is reviewed, with pertinent citations, in Ford 
Motor Co. v. NLRB, 305 U.S. 364, 373:

“ It is familiar appellate practice to remand causes 
for further proceedings without deciding the merits, 
where justice demands that course in order that some 
defect in the record may be supplied. Such a remand 
may be made to permit further evidence to be taken or 
additional findings to be made upon essential points.”

Particularly where questions of constitutional or general 
public importance have hinged on facts not determined or 
announced with sufficient clarity by the lower courts, this 
Court has remanded for the necessary clarifying action. 
See, e.g., City of Hammond v. Schappi Bios Line, 275 U.S.



20

169; Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194; 
Chastleton Corp. v. Sinclair, 264 U.S. 543; Interstate Circuit 
v. United States, 304 U.S. 55; Chicago,Milwaukee^St. Paul 
IVway v. Tompkins, 176 U.S. 167.8 These precedents are 
especially applicable here where the questions presented are 
of such vital public importance, the injustice of the decision 
below so great, and the effect of denying review so final.9

Conclusion

The record which petitioners built in the District Court 
was as detailed, as specific and as concrete as any that will 
ever come before this Court on the concededly important 
issues here presented. The record contains the detailed 
admissions of the Brotherhood as to the complete exclu-

8 Cf. dissenting opinions of Mr. Justice Frankfurter in Hood <& Sons 
v. DuMond, 336 U.S. 525 at 574; Zorach v. Clauson, 343 U.S. 306 at 
322; and see Note, 49 Harv. L. Rev. 631, “ The Presentation of Facts Un­
derlying the Constitutionality of Statutes.”

9 There is an additional and compelling reason for this Court to adopt 
one of the three above alternatives rather than to leave this case in its 
present posture: The Court’s stated ground for denial of certiorari 
creates a very real two-fold uncertainty as to this Court’s future dispo­
sition of racial exclusion and segregation cases. First, this Court’s 
characterization as “ abstract”  of a record of discrimination as “ concrete” 
as humanly possible will doubtless be effectively pressed upon lower courts 
as grounds for abstention in identical or analogous racial situations 
wholly unintended by this Court. Second, the Court’s refusal to review 
the issue of inherent . inequality, when contrasted with its action in 
reviewing that very issue in Brown and subsequent cases (see pp. 16 
to 18, supra), can only create confusion in the lower courts in numerous 
racial exelusion and segregation eases. In an area of litigation already 
fraught with major difficulties, it becomes doubly important that this 
Court, if it intends to apply as yet unstated justiciability requirements, 
provide sufficiently detailed guidance to avoid confusion and uncertainty 
in their application. Whatever may have been the reason for this Court 
announcing its grounds for denial of review and whatever may have been 
intended by the words “ abstract context” , it is submitted that only a 
full review of the record and an elaboration of this Court’s difficulties 
therewith, if any should remain after such a review, will provide others 
with the guidance necessary to avoid fatal pitfalls in this critical area 
of constitutional litigation.



21

sion of Negro firemen from the statutory bargaining proc­
ess, admissions carefully extracted from the Brotherhood 
on every facet of nonparticipation. It contains detailed 
and unrebutted evidence of actual day-to-day discrimina­
tion by the bargaining agent. It contains detailed and 
unrebutted proof that the major bargaining objectives of 
the Brotherhood primarily disadvantage the excluded Ne­
gro firemen. We respectfully submit that, on such proof, 
any confusion in the decision of the court below ought not 
penalize the petitioners and their class—elderly Negro fire­
men whose last chance for first class citizenship rests on 
this petition.

It is respectfully submitted that the petition for rehear­
ing should be granted, the writ of certiorari issued, and the 
questions raised reviewed by this Court. If, however, the 
Court should desire clarification of the decision of the court 
below, it is respectfully submitted that the appropriate 
remedy is remand for purposes of such clarification.

Respectfully submitted,

J oseph L. R a u h , J r .,
JOHK SlLARD,
Attorneys for Petitioners,

1631 K  Street, N. W.,
Washington 6, D. C.

Certificate

I hereby certify that this Petition for Rehearing is pre­
sented in good faith and not for delay and that it is re­
stricted to the grounds specified by Rule 58 of this Court.

J oseph L. R a u h , J r .

(4772-0)