Oliphant v. Brotherhood of Locomotive Firemen and Enginemen Petition for a Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    No.

IN THE

SUPREME EDURT OF THE UNITED STATES

OCTOBER TERM, 1958

LEE OL1PHANT ET AL.,

v.
Petitioners,

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN ET AL.,

Respondents

PETITION FOR A W R IT  OF CERTIORARI TO THE  
UNITED STATES COURT OF APPEALS FOR THE  
SIXTH  CIRCUIT.

J oseph L. R a u h , J k.,
J ohn  S ilard,

Attorneys for Petitioners,
1631 K  Street, N. IF.,

Washington 6, D, C.



Page
Opinions Below ..............................................................  2
Jurisdiction ....................................................................  2
Questions Presented......................................................  2
Statute Involved ............................................................  3
Statement ........................................................................  3
Reasons for Granting the W rit................................... 8

The Holding- of the Court Below, Which Sanc­
tions Exclusion of Negroes from Their Exclu­
sive Bargaining Agent Under the Railway 
Labor Act, Raises Important Federal Ques­
tions and Conflicts with Applicable Decisions 
of This C ou rt......................................................  8

A. The exercise of exclusive statutory bar­
gaining power for Negroes by officials 
chosen by members of a union open 
only to whites raises a vital Fifth 
Amendment issue .................................. 9

B. Racial exclusion from membership and
participation in the bargaining repre­
sentative raises an important question 
under the Railway Labor A ct.............. 15

C. The holding of the court below disre­
gards this Court’s rulings concerning- 
the private exercise of governmental 
and governmentally derived responsi­
bilities ....................................................  17

D. Negro membership in labor unions will
further the orderly elimination of seg­
regation ................................................  21

Conclusion ......................................................................  22
Appendix A : Opinion of the United States Court of

Appeals for the Sixth Circuit.............  24
Appendix B : Pertinent Provisions of the Railway

Labor Act , , , ....................................... 32

-3146-8

INDEX



Gases Page
American Communications A ss ’n. v. Douds, 339 U.S.

382 ................................................................................ 18,19
Barrows v. Jackson, 346 U.S. 249.................................  20
Betts v. Easley, 161 Kan. 459, 169 P. 2d 831.............  10,16
Brotherhood of Railroad Trainmen v. Hoivard, 343

U.S. 768 ..................................................._...................  3,20
Brotherhood of Railway and Steamship Clerks v.

United Transport Service Employees, 137 F. 2d
817 (C.A.D.C. 1943), rev’d. 320 U.S. 715.................  11

Conley v. Gibson, 355 U.S. 41......................................... 3,7
Graham v. Brotherhood of Locomotive Firemen and

Enginemen, 338 U.S. 232..........................................  3, 5, 6
James v. Marinship Corp., 25 Cal. 2d 721, 155 P. 2d

329 ................................................................................ 12,16
Marsh v. Alabama, 326 U.S. 501................................... 20
McLaurin v. Oklahoma State Regents, 339 U.S. 637. . 14
Pennsylvania v. Board of Directors, 353 U.S. 2 3 0 .... 21
Public Utilities Commission v. Poliak, 343 U.S. 451. . 20
Railway Mail A ss ’n. v. Cor si, 326 U.S. 88.................  12
Ross v. Ebert, 275 Wise. 523, 82 N.W. 2d 315.............  10
Shelley v. Kraemer, 334 U.S. 1 .....................................  20
Smith v. Allwright, 321 U.S. 649............... .................  20
Steele v. Louisville & Nashville Railroad Co., 323

U.S. 192 ....................................................... 3, 5, 8,15,17,18
Sweatf v. Painter, 339 U.S. 629..................................... 14
Syres v. Oil Workers, 350! U.S. 892.............................  3
Terry v. Adams, 345 U.S. 461....................................... 20
TwnstaM v. Brotherhood of Locomotive Firemen and

Enginemen, 323 U.S. 210..........................................  3, 5
United States v. C.I.O, 335 U.S. 106............................. 15
United States v. Rumely, 345 U.S. 41........................... 15

Miscellaneous

Railway Labor Act, 45 U.S.C. 151, et seq.,
2, 3, 4, 7, 8, 9,11,15,16,17,18, 20

28 U.S.C. § 1254(1) ........................................................  2
Handbook of Union Government Structure and Pro­

cedures (1955), National Industrial Conference 
Board, Inc., pp. 63-64 9, 21

i i  IN D E X



IN D EX 111

Page
Hewitt, The Right to Membership in a Labor Union,

99 Univ. of Pa. Law Rev. 919.................................  9
Senate Report No. 2262, 81st Cong., 2d Sess...............  16
Summers, The Right to Join a Union, 47 Col. Law 

Rev. 33 ........................................................................ 9



IN  T H E

SUPREME CDURT DF THE UNITED STATES

OCTOBER TERM, 1958

No.

LEE OLIPHANT ET AL.,

v.
Petitioners,

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINE-MEN ET AL.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 
SIXTH CIRCUIT.

To the Honorable the Chief Justice of the United States and 
the Associate Justices of the Supreme Court of the United 
States:

Petitioners, Negro locomotive firemen, on their own be­
half and as representatives of the class of Negro locomotive 
firemen, pray that a writ of certiorari issue to review the 
judgment in this case of the United States Court of Appeals 
for the Sixth Circuit.

(1)



2

Opinions Below

The opinion of the District Court for the Northern 
District of Ohio is reported at 156 F. Supp. 89 and appears 
at pp. 298-304 of the Joint Appendix.1 The opinion of 
the Court of Appeals for the Sixth Circuit is not yet re­
ported, but is printed as Appendix A, infra, p. 24.

Jurisdiction

The opinion and judgment of the United States Court of 
Appeals for the Sixth Circuit were entered on November 
26, 1958. The jurisdiction of this Court is invoked under 
28 U.S.C. § 1254(1).

Questions Presented

The Brotherhood of Locomotive Firemen and Enginemen 
is the exclusive bargaining representative under the Rail­
way Labor Act for the craft or class of locomotive firemen 
and as such the Brotherhood represents Negro as well as 
white firemen in their collective bargaining relationships 
with the employing railroads. The Brotherhood refuses to 
admit Negro firemen to membership solely because of their 
color and thus denies them voice and vote in the formulation 
of bargaining objectives and the selection of bargaining 
officials. Does this action by the Brotherhood:

(1) Deny to Negro firemen their right under the Railway 
Labor Act to fair and equal representation by their ex­
clusive bargaining representative?

(2) Violate the due process provision of the Fifth Amend­
ment in that it constitutes arbitrary exclusion from the 
statutory bargaining process by an agency sufficiently

1 The Joint Appendix was printed as the record in the Court of Appeals 
and is attached to this petition for certiorari for the convenience of the 
Court.



3

“ governmental”  in nature to warrant the application of 
constitutional safeguards 1

Statute Involved

The statute involved is the Railway Labor Act, 45 U.S.C. 
151 et seq., pertinent provisions of which are set forth in 
Appendix B, infra, p. 32.

Statement

Petitioners, Negro firemen, brought this action in the 
District Court for themselves and others similarly situated, 
challenging their exclusion from their exclusive bargaining 
representative under the Railway Labor Act, the Brother­
hood of Locomotive Firemen and Enginemen, whose Con­
stitution limits its membership to persons “ white born”  
(J.A. 35). Petitioners seek admission into the Brotherhood 
on the ground that the fair and equal bargaining representa­
tion which the Brotherhood is legally obligated to provide 
Negro firemen under the Steele doctrine,2 the Railway Labor 
Act, and the Fifth Amendment, is denied them as long as 
they are excluded from participation in the formulation of 
the Brotherhood’s bargaining objectives and denied voice 
and vote in the selection of its bargaining officials.

The essential facts concerning petitioners’ exclusion from 
Brotherhood membership and the consequent denial of 
voice, vote and even information with respect to collective 
bargaining are not in dispute. The Brotherhood’s exclu­
sive bargaining relationship status under the Railway Labor 
Act (J.A. 20), its limitation of membership pursuant to 
the Brotherhood Constitution to persons “ white born”

2 Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192; see also 
Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 
219; Graham v. Brotherhood of Locomotive Firemen and Enginemen, 338 
U.S. 232; Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768; 
Syres v. Oil Workers, 350 U.S. 892; Conley v. Gibson, 355 U.S. 41.



4

(J.A. 34, 35), and the exclusion of Negro firemen from 
the elections wherein the bargaining officials are chosen 
(J.A. 218), are all conceded by respondents. Not only do 
respondents admit the denial to Negro firemen of voice and 
vote in the selection of the bargaining officials, but they 
concede further serious disadvantage to Negro firemen aris­
ing from the denial of opportunity to participate in the 
Brotherhood’s deliberations or even to be informed thereof: 
In answers to petitioners’ interrogatories prior to trial 
(J.A. 32-33), respondents admitted (Interrogatories 1 and 
2) that monthly or quarterly reports to lodges and local 
chairmen by the General -Chairman of the Brother­
hood, which reports are not “ readily available”  to non­
members, include information about “ demands served 
upon railroads for agreements on new matters and 
changes in the existing collective agreement, served under 
Section 6 of the Bailway Labor Act, and also infor­
mation regarding the progressing of such demands in col­
lective bargaining” ; that “ the President of the Brother­
hood is required by the Constitution of the Brotherhood to 
issue monthly bulletins or circulars to other Grand Lodge 
officers, recording secretaries of lodges, legislative repre­
sentatives, General and Local Chairmen, and Secretaries of 
General Grievance Committees, of the work of collective 
bargaining conducted by the Brotherhood on a national or 
regional scale, and of other matters of interest to the mem­
bership as a whole”  (Interrogatory 3), which sources of 
information are not readily available to non-members (In­
terrogatory 4) ; and that non-members cannot attend Local 
Lodge meetings where “ matters of general interest to 
locomotive firemen are discussed”  including “ reports of 
negotiations with carriers regarding changes in the govern­
ing agreement, decisions on time claims and grievance cases, 
assignments of runs and possible or impending changes in



5

assignment of runs, the set-up of pools, etc.”  (Interroga­
tories 5 and 6).3

Petitioners could have rested upon these admitted facts 
of their exclusion from membership and thus from all 
voice and vote in the formulation of bargaining objectives 
and the selection of their bargaining officials. At the trial, 
however, petitioners went even further to show the various 
forms of hostile discrimination and unfair treatment to 
which they have so long been subjected by the Brotherhood 
and which they will continue to suffer so long as they are 
denied political power within the the agency which controls 
their conditions of employment. Petitioners demonstrated 
that for over fifty years the Brotherhood and its officers 
have sought to limit the employment rights of Negro fire­
men and to eliminate them from the railroads and replace 
them with white Brotherhood members (J.A. 211-215; 238- 
243; 306-322).4 Petitioners’ witnesses produced evidence 
of continuing discrimination and hostility by the Brother­

8 The respondents have had the temerity to suggest throughout this 
litigation that an appropriate substitute for the information supplied 
to Brotherhood members in these different ways is the availability to 
Negro firemen of the Brotherhood’s monthly magazine and of the weekly 
newspaper “ Labor” published by sixteen railway labor organizations 
(see e.g., Brief On Behalf Of Appellees in the court below, pp. 14-15). 
Nothing could better demonstrate the cavalier attitude of the Brotherhood 
towards Negro firemen and the consequent impossibility of fair and equal 
representation without membership.

4 This Court has expressed itself vigorously upon the Brotherhood’s rec­
ord of discrimination and hostility. Steele v. Louisville <& Nashville Rail­
road Go., 323 TJ.S. 192; Tunstall v. Brotherhood of Locomotive Firemen 
and Enginemen, 323 U.S. 210; Graham v. Brotherhood of Locomotive Fire­
men and Enginemen, 338 U.S. 232. The latest case in this series, Graham, 
involved the refusal by respondents to accept this Court’s earlier deci­
sions in Steele and Tunstall, evoking this Court’s sharp comment on the 
discriminatory practices of the Brotherhood:

“ It is needless to recite additional details of the present ease. What 
it adds to the governing facts of the earlier cases is a continuing and



6

hood, right down to the present day: special privileges 
recently accorded white firemen over Negroes (J.A. 48-50); 
white firemen regularly permitted to earn more pay than 
Negroes (J.A. 104); a bribe the Brotherhood offered so 
that a white fireman could take a Negro’s job (J.A. 86-88); 
a Negro fireman unable to get his days off on the weekend, 
so he could go to church, a privilege accorded to white 
firemen (J.A. 130-132); a white “ swing man”  recently 
added to a run to reduce the mileage of Negro firemen (J.A. 
137-143); the Brotherhood’s refusal to take up grievances 
for the Negro firemen (J.A. 54-55,159-161) and to its failure 
to help equalize facilities for them (J.A. 56, 89, 129-130). 
A  dramatic piece of evidence of the Brotherhood’s attitude 
towards the voteless Neg'roes it represents in collective 
bargaining was the testimony of a seventy-year-old fireman 
on the Gulf, Mobile & Ohio Railroad. He related the state­
ment made to him by the Brotherhood’s General Chairman 
in 1951 after Federal District Judge Mullins had entered a 
decree pursuant to the Steele doctrine for the protection 
of Negro firemen: “ Judge Mullins gave it to you but I 
will sure as hell see you don’t keep it ”  (J.A. 75).5

willful disregard of rights which this Court in unmistakable terms
has said must be accorded to Negro firemen.”

The Court’s view of the Brotherhood’s conduct can be seen also in its un­
usual action in Graham of ordering its mandate to go down “ forthwith” , 
thus seeking to end “ continuing and willful disregard of rights”  of Negroes 
at the earliest possible moment.

The Brotherhood sought below to shrug off this Court’s decisions with 
the comment that its arguments had not “ stood much chance of being heard 
above the cry of race prejudice that dominated this litigation”  (Brief, 
p. 5).

5 Respondents attempted no direct refutation of this demonstrated con­
tinuing hostility and discrimination. None of the local brotherhood 
officials to whom petitioners’ witnesses aseribed hostile and discriminatory 
conduct were called i n . rebuttal. Respondents’ case, as presented by 
three of its highest officials, amounted to no more than a series o f self- 
serving generalizations concerning Brotherhood policies which provided 
no refutation whatever of the specific testimony concerning specific acts 
of discrimination by specified Brotherhood officers (J.A. 168, 243, 271).



7

In the light of the conceded exclusion of petitioners from 
the meetings where firemen deliberate upon and formulate 
bargaining objectives and select and elect the bargaining- 
officials, the District Court was compelled to find and found 
that petitioners’ exclusion from the Brotherhood denies 
them equality in the statutory bargaining process: “ There 
is no question 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 conditions of employment and other 
matters relating to such employment”  (J.A. 300). Never­
theless, the Court could find neither statutory nor consti­
tutional authority to require admission of petitioners into 
the Brotherhood. In enacting the Bailway Labor Act, the 
Court said, “ Congress did not intend to require admission 
of Negroes to membership”  (J.A. 301). As concerns the 
Fifth Amendment’s due process guarantee, the Court found 
it inapplicable because “ the certification of the Brother­
hood of Locomotive Firemen and Enginemen as exclusive 
bargaining representative . . .  is not sufficient to change 
the character of the organization from that of a private 
association to that of a governmental agency”  6 (J.A. 303).

The Court of Appeals affirmed. Although recognizing 
that a “ Negro fireman cannot become a member of the 
Brotherhood under existing provisions of the Brother­
hood’s Constitution, nor may any firemen who are not mem­
bers of the Brotherhood attend meetings of its Local

6 While petitioners’ ease was pending on appeal in the Court of Ap­
peals for the Sixth Circuit, this Court had under consideration Conley v. 
Gibson, 365 U.S. 41. Because the briefs in the Conley case appeared 
to raise a question of exclusion from union membership, petitioners 
sought certiorari before judgment in the Court of Appeals so that the 
two cases might be considered together. The Conley case was decided, 
however, without reference to the issue of denial of union membership 
and thereafter this Court denied certiorari before judgment. 355 U.S. 
893.



8

Lodges” , a two-judge panel7 ruled against petitioners “ for 
the reason that this record does not show an agency of the 
federal government to have been responsible for appellants’ 
plight,”  Denominating the Brotherhood “ a private asso­
ciation”  not subject to “ judicial control” , the Court adopted 
the view of the trial court that sufficient “ federal action”  
was not presented to “ subject the membership policies of 
the . . . Brotherhood to judicial control. ’ ’ 8

REASONS FOR GRANTING THE WRIT

The Holding of the Court Below, Which Sanctions Exclu­
sion of Negroes from Their Exclusive Bargaining Agent 
Under the Railway Labor Act, Raises Important Federal 
Questions and Conflicts With Applicable! Decisions of 
This Court,

Solely because of their color (J.A. 35), petitioners are 
denied membership in the Brotherhood which is their exclu­
sive bargaining representative under the provisions of the 
Railway Labor Act with the various railroads upon which 
petitioners are employed (J.A. 20). Without membership 
in the Brotherhood, petitioners cannot participate in the 
selection and election of the Brotherhood officials who do 
the bargaining and cannot attend the Brotherhood meetings

7 The case was argued to a panel of the Court consisting of Circuit 
Judges Martin, Miller and Stewart. While the case was awaiting 
decision, Judge Stewart became an Associate Justice of this Court and 
did not participate in the decision, opinion or judgment below7. See 
p. 31, infra.

8 Neither court below questioned the fact that under the Steele case 
the Brotherhood is sufficiently “governmental” to warrant judicial in­
validation of agreements bargained in violation of its duty of equal 
representation. But both courts held that the Brotherhood is not 
sufficiently “governmental” to warrant judicial relief to secure equal 
voice in the bargaining process by all members of the craft. Although 
petitioners’ counsel continuously urged the applicability of Steele and 
following cases, neither court examined or sought to distinguish Steele.



9

where the bargaining objectives are discussed (J.A. 33, 
218). The courts below refused to hold that this dis­
crimination in “ representation and participation”  (J.A. 
300) flowing from the exclusion of petitioners from Broth­
erhood membership violates their rights either under the 
Fifth Amendment or the Railway Labor Act.

The constitutional and statutory question thus presented 
is an important one calling for this Court’s review.9 The 
racial exclusion still practiced by some of the nation’s 
largest labor unions, renders a substantial number of 
Negroes second class citizens in collective bargaining under 
federal law.10 See Sections A & B, pp. 9 to 16, infra. 
This racial exclusion continues despite the repeated deci­
sions of this Court holding statutory bargaining represen­
tatives and analogous agencies to standards of non-discrim- 
inatory conduct no less rigorous than those constitutionally 
imposed on governmental bodies. See Section C, pp. 17 
to 21, infra. Finally, the day-to-day racially discrimina­
tory exercise of federally-supported exclusive bargaining 
power is wholly inconsistent with public acceptance of this 
Court’s decisions requiring elimination of segregation in 
state-supported institutions. See Section D, pp. 21-22, 
■infra.

A. The exercise of exclusive statutory bargaining power 
for Negroes by officials chosen by members of a. union 
open only to white raises a vital Fifth Amendment 
issue.

Without membership and participation Negro workers 
are denied the equal representation which the Constitu­

9 Informative discussion may be found in Hewitt, The Bight to Mem­
bership in a Labor Union, 99 Univ. of Pa. Law Rev. 919, and Summers, 
The Bight to Join a Union, 47 Col. Law ’Rev. 33.

10 See Handbook of Union Government Structure and Procedures 
(1955), National Industrial Conference Board, Inc., pp. 63-64.



10

tion guarantees to all persons regardless of race in the 
exercise by a statutory bargaining representative of feder­
ally-created exclusive bargaining power. Available judicial 
authorities support this proposition.

In Betts v. Easley, 161 Kan. 459, 169 P. 2d 831, the Su­
preme Court of Kansas was of the opinion that a collective 
bargaining agent under the Kailway Labor Act cannot “ law­
fully exclude eligible Negro workmen from full participa­
tion in privileges incident to the Act and admit them to 
membership only in a ‘ separate lodge ’ which ‘ shall be under 
the jurisdiction of and represented by the delegate of the 
nearest white local.’ ”  The Court held:

“ The petition alleges not only that Negro employees 
are denied the right to take part in such local affairs 
of the union as the election of officers and the fixing of 
dues, but are denied the right to participate in deter­
mining the position to be taken by the union, as bar­
gaining agent for all employees, as to wages, hours, 
working conditions, and other such matters vitally 
affecting their economic welfare. . . . The acts com­
plained of are in violation of the Fifth Amendment. ’ ’ 11

An eloquent exposition of the difference between 
equal representation through equal participation and un­
equal representation through non-participation is found in 
the late Chief Judge Groner’s concurring opinion in

11 Respondents below cited Ross v. Ebert, 275 Wise. 523, 82 N.W. 2d 315, 
a decision of the Wisconsin Supreme Court, as holding to the contrary. 
That decision, however, has no bearing upon the instant case because the 
defendant union there was not the statutory bargaining representative for 
the aggrieved Negro workers. Petitioners here predicate their right to 
membership on the ground that respondent Brotherhood, the exclusive 
statutory bargaining representative, may not bar Negroes from participa­
tion in the statutory bargaining process. The decision in Ross is thus not 
in any sense inconsistent with the petitioners’ cause of action.



11

Brotherhood of Railway' and Steamship Clerks v. United 
Transport Service Employees, 137 F. 2d 817, 820 (C.A.D.C. 
1943), reversed by this Court on other grounds, 320 U.S. 
715. Judge Groner compared the system of representation 
without participation employed by certain national labor 
unions with the “ taxation without representation”  to whose 
evils history gives eloquent attestation. Speaking of the 
effect of the action of the National Mediation Board in 
placing Negro employees in a bargaining unit represented 
by a Brotherhood in which they could not become members, 
Judge Groner said :

“ The effect of the action of the Board is to force 
this particular group of employees to accept represen­
tation by an organization in which it has no right to 
membership, nor right to speak or be heard in its 
own behalf. This obviously is wrong and, if assented 
to, would create an intolerable situation. That the 
rules of the Brotherhood make Negroes ineligible to 
membership is not a matter which concerns us, but 
that the Brotherhood, in combination with the em­
ployer, should force on these men this proscription 
and at the same time insist that the Brotherhood alone 
is entitled to speak for them in the regulation of their 
hours of work, rates of pay and the redress of their 
grievances is so inadmissible, so palpably unjust and 
so opposed to the primary principles of the [Railway 
Labor] Act as to make the Board’s decision upholding 
it wholly untenable and arbitrary . . . nothing in the 
Act nor in its construction by the courts can be found 
to justify such coercive action as to force upon any 
class of employees representation through an agency 
with whom it has no affiliation nor right of associa­
tion. ’ ’



12

The Supreme Court of California has said of such 
racially-exclusive “ representation”  as here involved:

“ It is difficult to see how a union can fairly repre­
sent all the employees of a bargaining unit unless it 
is willing to admit all to membership, giving them the 
opportunity to vote for union leaders and to partici­
pate in determining union policies.”  James v. Marin- 
ship Oorp., 25 Cal. 2d 721, 735, 155 P. 2d 329.

Finally, this Court itself has said of collective bargaining 
“ representation”  without participation that:

“ To deny a fellow-employee membership because of 
race, color or creed may operate to prevent that em­
ployee from having any part in the determination of 
labor policies to be promoted and adopted in the in­
dustry and deprive him of all means of protection from 
unfair treatment arising out of the fact that the terms 
imposed by a dominant union apply to all employees, 
whether union members or not.”  Railway Mail A ss’n. 
v. Corsi, 326 U.S. 88, 94.

Denial of voice and vote in the election of bargaining 
representatives and the formulation of bargaining objec­
tives manifestly denies Negro firemen equal representation. 
Equal participation in a fair hearing before a representa­
tive tribunal is the sine qua non of a fair decision. It was 
the judgment of the founding fathers, one repeatedly valid­
ated by the teaching of experience, that without the right 
of free participation before a representative tribunal, sub­
stantive determination is necessarily tainted.

When the respondent Brotherhood deprives Negro fire­
men of membership, closing to Negroes the doors of the 
Brotherhood meeting where bargaining objectives are for­
mulated and forcing upon them exclusive representation



13

by bargaining officials in whose selection they have no vote, 
it denies rights without which the bargained conditions of 
employment are constitutionally tainted, whether or not 
those conditions of employment be fair and equal or unfair 
and discriminatory.12 Equal statutory bargaining represen­
tation for Negro workers requires equal participation in the 
bargaining process, regardless of race, no less than it re­
quires that the bargained agreement afford equal treatment 
to all workers, regardless of race.

And while participation in the bargaining representative 
and the bargaining process is constitutionally required in 
order to afford Negro firemen equality of representation, 
membership and participation is constitutionally required 
for its own sake as well. Membership in a union which is 
the statutory bargaining representative affords vital ad­

12 There is no question in this case that petitioners are discriminated 
against in the sense that they are denied voice, vote and information in 
the determination of their working conditions. Proof that the working 
conditions bargained are themselves actually discriminatory is not a neces­
sary part of petitioners’ case, but petitioners will, if certiorari is granted, 
demonstrate on this record the extent to which exclusion from the statutory 
bargaining agent necessarily results in, and did here result in, actual dis­
crimination against them. The court below indicated that there was no 
“issue of actual discrimination by the Brotherhood” in this case. See 
pp. 26, 28, infra. In so indicating, the court misconstrued the findings 
of the District Judge who had apparently found actual discrimination in 
the day-to-day operations of the Brotherhood (J.A. 300) but was unable 
to “ state definitely” (J.A. 299) that certain major bargaining changes 
negotiated by the Brotherhood reducing mileage and the like, were adopted 
“ for the purpose of discrimination against the Negroes”  (J.A. 299). 
Since the testimony concerning day-to-day discrimination was never con­
troverted (see n. 5, p. 6, supra), the District Court did not find, and 
indeed could not have found, an absence of actual discrimination. Further­
more, whatever may have been the purpose of some of the major mileage 
changes negotiated by the Brotherhood, it is undeniable that their primary 
effect is upon Negro firemen, who hold the highest seniority in their craft, 
and who have been reduced in mileage for the benefit of junior white fire­
men. Given political power within the union to select bargaining officials, 
it is by no means inconceivable that some of these mileage changes having 
primary adverse effect upon Negro firemen might successfully have been 
resisted by them.



14

vantages to the member. Participation with fellow workers 
in the formulation of bargaining objectives through debate 
and persuasion and the possibility of election to officership 
with consequent participation in negotiations with the em­
ployer is in itself a right not to be lightly discounted. 
The assumption of collective responsibilities through officer- 
ship and participation in the group deliberations which 
precede negotiations with the employer provide experience 
and relationships essential to the growth and advancement 
of the individual among his fellow workers and in his em­
ployment.13

We think it clear that the Fifth Amendment forbids the 
exercise of exclusive statutory bargaining power for 
Negroes by a union open only to whites and compels statu­
tory bargaining representatives to exercise their bargaining 
power only through a process of free membership partici­
pation available to all regardless of race.14 In any event, 
the question is of such manifest importance as to require 
review by this Court.

13 It is advantages of this sort upon which this Court based its earlier 
determinations against segregation in higher education, which deprives 
Negroes of social and psychological benefits available to persons attend­
ing white universities. McLaurin v. Oklahoma State Regents, 339 U.S. 
637; Sioeatt V. Painter, 339 U.S. 629.

14 Respondents argued below that petitioners would not benefit from 
membership because the Brotherhood’s bargaining officials are unrespon­
sive to the will of the membership. They said that members of the Brother­
hood do not determine Brotherhood policy or decide upon its collective 
bargaining objectives since the officers responsible for such matters arrive 
at their own decisions, uncontrolled by any form of direct dictation from 
the membership (Brief, pp. 15-17).

Perhaps undemocratic practices of the union will render petitioners’ 
membership in the Brotherhood less valuable than hoped, but this hardly 
excuses denial of the right altogether. Racial exclusion cannot be justi­
fied by the circumstance that, once admitted, the Brotherhood will refuse 
petitioners effective control over the Brotherhood’s bargaining decisions 
not because they are Negroes, but because the bargaining officials do 
not heed the expressed desires of the membership. Indeed, respondents’ 
insistence that its bargaining officials determine bargaining objectives



15

B. Racial exclusion from membership and participation in 
the bargaining representative raises an important 
question under the Railway Labor Act.

A construction of the Railway Labor Act which avoids 
the necessity of a constitutional adjudication (see United 
States v. Rumely, 345 U.S. 41; United States v. CIO, 335 
U.S. 106) is readily available here. Petitioners urged the 
courts below and ask this Court to read the Railway Labor 
Act to forbid racial exclusion by the statutory bargaining 
representative, and thus to avoid the necessity of a constitu­
tional adjudication. Indeed, petitioners ask for little if 
any extension of the construction of the Act already adopted 
by this Court in Steele, for racial exclusion from participa­
tion is necessarily precluded by the very requirement of 
equal representation this Court there found implicit in the 
Railway Labor Act,

Moreover, denial of participation is not only incompat­
ible with implied requirements but is likewise precluded by 
the language of the Railway Labor Act. Congress provided 
in that Act (45 TJ.S.C. 152, Fourth) that “ Employees shall 
have the right to organize and bargain collectively through 
representatives of their own choosing.”  The very term 
“ representatives”  denotes persons chosen by vote of the 
class whom they represent. The right to bargain “  through 
representatives of their own choosing’ '1 is plainly denied 
petitioners by virtue of their exclusion from the Brother­
hood whose members alone select and elect the bargaining- 
officials.

The courts below refused to find in the Railway Labor 
Act a proscription of racial exclusion, declaring that “ Ap­
uncontrolled by any dictation from the membership defeats their argu­
ment ; if respondents’ claims of benevolent union paternalism by the bar­
gaining officials are correct, denial to Negroes of the ballot in the election 
of those officials subjects them not only to racial paternalism but to racial 
autocracy as well.



16

parently the Act itself would not have been acceptable to 
the Congress if Negro membership in the agent had been 
required,”  (J.A. 302-303; p. 27, infra). This conclusion 
was predicated on the Senate’s rejection, fifteen years after 
the enactment of the Railway Labor Act, of an amendment 
proposed by Senator Jenner which would have prohibited 
racial exclusion by the statutory representative.15 But 
the Senate Committee Report on the bill which Senator 
Jenner sought to amend (Senate Rep. No. 2262, 81st Cong., 
2d Sess.) specifically preserved the vitality of the doctrine 
in the Steele case at a time (1950) when the Supreme Courts 
of Kansas and California had already found that doctrine 
to preclude racial exclusion by the bargaining representa­
tive. Betts v. Easley, supra; James v. Marinship Corp., 
supra. The rejection by the Senate of Senator Jenner’s 
amendment is properly construed as having been intended 
merely to leave the problem of union racial exclusion in 
the hands of the courts, which had already asserted judicial 
authority to grant relief against discriminatory and exclu­
sionary practices.

Judicial comity towards the legislature and the presump­
tion that Congress acts in good faith compels the conclusion 
that Congress has not authorized the racially exclusive ex­
ercise of statutory power by the statutory representative. 
At any rate, the question whether Congress has authorized 
or prohibited racial exclusion by the bargaining agent under 
the Railway Labor Act should not longer be left in doubt.

15 This amendment was proposed during the enactment of the union- 
shop amendment to the Railway Labor Act. Act of Jan. 10, 1951, 64 
Stat. 1238.



17

C. The holding of the court below disregards this Court’s 
rulings concerning the private exercise of govern­
mental and government ally derived responsibilities.

The court below rests its decision on the assertion that 
“ the Brotherhood is a private association, whose member­
ship policies are its own affair . . . ”  (p. 30, infra). Though 
recognizing petitioners’ plight, the court below insists that 
petitioners did “not show an agency of the federal govern­
ment to have been responsible for . . . [this] plight” (p. 
30, infra) and affirmed the District Court’s holding that 
“ sufficient federal action was not present to subject the 
membership policies of the . . . Brotherhood to judicial 
control”  (p. 24, infra). We respectfully submit that the 
holding, below that the exclusive statutory bargaining 
agent under the Railway Labor Act is a “private asso­
ciation”  free from judicial control in its exercise of statu­
tory bargaining power conflicts with the applicable decisions 
of this Court.

In Steele v. Louisville & Nashville Railroad Co., 323 U.S. 
192, this Court interpreted the Railway Labor Act to im­
pose upon the very Brotherhood here involved the duty of 
fair and equal representation of Negro firemen and it 
found this duty imposed by the Railway Labor Act because 
grave constitutional questions would have accompanied any 
other result. Speaking of the respondent Brotherhood, this 
Court stated that it is “ clothed with power not unlike that of 
a legislature which is subject to constitutional limitations 
on its power to deny, restrict, destroy or discriminate 
against the rights of those for whom it legislates and which 
is also under an affirmative constitutional duty equally to 
protect those rights”  (323 U.S. at 198). In the same vein, 
the Court pointed out that “ Congress has seen fit to clothe 
the bargaining representative with powers comparable to 
those possessed by a legislative body both to create and re-



18

strict the rights of those whom, it represents . . (323
U.S. at 202). The Brotherhood’s argument that it was a 
“private association” , not subject to judicial review of its 
discriminatory practices, received short shrift in this Court 
for the precise reason that the Court found the Brother­
hood clothed “with powers comparable to those possessed 
by a legislative body . . Certainly, if the Brotherhood is 
sufficiently “ governmental” in nature to require that it 
give equal representation to Negro firemen, it is sufficiently 
“ governmental”  in nature to require that it give those 
Negro firemen the membership and participation indispen­
sable to afford them equal representation.16

In American Communications A ss ’n. v. Douds, 339 U.S. 
382, 401-402, this Court made clear that labor unions clothed 
“ with powers comparable to those possessed by a legislative 
body”  are, for some purposes at least, to be treated as 
“ governmental.”  The Court there said:

16 Respondents have sought to make much of the statement in the 
Steele case that the Railway Labor Act “ does not deny to such a bargain­
ing labor organization the right to determine eligibility to its member­
ship . . .”  323 U.S. at 204. But this statement could hardly have been an 
approval by the Court of the very racial discrimination which it had 
just termed “ obviously irrelevant and invidious” (323 U.S. at 203). 
Furthermore, if this statement could conceivably be construed, contrary 
to both the letter and spirit of Steele, as a dictum permitting racial 
exclusion, it certainly could not have survived this Court’s recent decisions 
that separation of the races is inherently unequal treatment. Indeed, 
the enforced inequality of racial segregation is far clearer in the labor 
area than in education. In finding segregated schooling inherently un­
equal, this Court emphasized the resulting psychological and social 
barriers for Negroes. The inequalities involved here are even more 
obvious; petitioners do not sue for the right to non-segregated instruc­
tion, but for the right to participate with their white fellow-workers 
in the meetings and elections at which their most vital and fundamental 
rights are determined—the hours of labor, wages, retirement age, runs, 
assignments—all the working conditions bargained with the employers. 
I f the Fifth Amendment precludes segregation and exclusion of Negroes 
in public education, it necessarily precludes segregation and exclusion 
of Negro firemen from the election of those who exercise statutory 
bargaining power on their behalf' and from participation in the statutory 
bargaining process whereby their employment rights are determined.



19

“Because of the necessity to have strong unions to 
bargain on equal terms with strong employers, individ­
ual employees are required by law to sacrifice rights 
which, in some cases, are valuable to them. See J. I. 
Case Co. v. Labor Board, 321 U.S. 332 (1944). The 
loss of individual rights for the greater benefit of the 
group results in a tremendous increase in the power 
of the representative of the group—the union. But 
power is never without responsibility. And when 
authority derives in part from Government’s thumb 
on the scales, the exercise of that power by private 
persons becomes closely akin, in some respects, to it's 
exercise by Government itself. See Graham v. Brother­
hood of Locomotive Firemen, 338 U.S. 232; Steele v. 
Louisville & N. R. Co., 323 U.S. 192; Tunstall v. Brother­
hood of Locomotive Firemen, 323 U.S. 210; Wallace 
Corp. v. National Labor Relations Board, 323 U.S. 248, 
255; Railway Mail Association v. Corsi, 326 U.S. 88, 94.

We do not suggest that labor unions which utilize 
the facilities of the National Labor Relations Board 
become Government agencies or may be regulated as 
such. But it is plain that when Congress clothes the 
bargaining representative ‘with powers comparable 
to those possessed by a legislative body both to create 
and restrict the rights of those whom it represents,’ 
the public interest in the good faith exercise of that 
power is very great.”

Certainly, the minimum obligation that the Brotherhood 
incurs for the Government’s “ thumb on the scales” is allow­
ance of equal participation by all whom it represents, 
irrespective of their race, creed or color.17

17 By establishing the statutory bargaining scheme and empowering 
the representative exclusively to act for all, Congress has not only put its 
thumb on the scales but has itself created the scales and prescribed the



20

Actually, this Court went even further in Brotherhood of 
Railway Trainmen v. Howard, 343 U.S. 768, than in either 
of the two foregoing cases. In Howard, this Court squarely 
held that a union given statutory bargaining rights under 
the Railway Labor Act could not use its “position and 
power to destroy colored workers’ jobs in order to bestow 
them on white workers” (343 IJ.S. at 774) even though the 
union had no statutory bargaining relationship to those 
colored workers. The Court stated unequivocally that 
“ bargaining agents who enjoy the advantages of the Rail­
way Labor Act’s provisions must execute their trust with­
out lawless invasions of the rights of other workers” (343 
U.S. at 774). The Howard case thus holds a statutory 
bargaining agent under the Railway Labor Act to a far 
higher standard of conduct than that for which petitioners 
here contend; it holds that a. statutory bargaining agent 
may not arbitrarily exercise its power even against those 
for whom it holds no statutory responsibility. Certainly, if a 
union is held to standards of fairness in its action towards 
those it does not legally represent, it cannot be subject to 
less stringent standards in its exercise, for those whom it 
does represent, of the federally-derived statutory power 
itself.

The question to what extent private agencies may be held 
to governmental standards of conduct has been many times 
considered in recent years. See, e.g., Smith v. Allwright, 
321 U.S. 649; Marsh v. Alabama, 326 U.S. 501; Shelley v. 
Kraemer, 334 U.S. 1; Public Utilities Commission v. Poliak, 
343 U.S. 451; Terry v. Adams, 345 U.S. 461; Barrow,s v.

weights to be put thereon. If in a day when federal laws have reshaped 
entire areas of personal activity and economic reality, as they have in the 
labor field, basic constitutional prohibitions do not accompany statutory 
powers vested in private persons, then Congress may do by indirection 
in the most fundamental and far-reaching conditions o f employment what 
it could not do directly with respect to the smallest and least significant 
matter of federal concern.



21

Jackson, 346 U.S. 249; Pennsylvania v. Board of Directors, 
353 U.S. 230. Certainly the consistent trend of this Court’s 
decisions is towards holding those exercising governmental 
or governmentally-derived power to a standard of non- 
discriminatory conduct. Petitioners ’ case requires no more 
than the reiteration of a principle to which this Court has 
adhered in a firm line of prior decisions.

D. Negro membership in labor union,s will further the 
orderly elimination of segregation.

Racial exclusion is still practiced by some of the Nation’s 
largest labor unions.18 The corrosive effect of racial 
segregation and exclusion by these powerful statutory bar­
gaining representatives is not limited to the Negroes who 
are deprived of a voice in the determination of their rights, 
nor to the whites who close the doors of the union hall to 
their Negro fellow workers; the racial exclusion practiced 
by these unions is a continuous threat to the elimination of 
segregation in public schools, public facilities, and other 
vital areas. The picture of a labor union exercising feder­
ally-created exclusive bargaining power over disenfran­
chised Negro employees is a constant reminder of federally- 
sanctioned second-class citizenship, wholly inconsistent 
with and contrary to public acceptance of federal equality 
guarantees.

A reversal of this picture through the accomplishment of 
labor union integration would be an important forward step 
in that process of orderly adjustment which this Court is 
seeking to insure by its “ deliberate-speed”  mandate. Inte­
gration in the field of labor would advance public acceptance 
of integration in other areas of community life where, unlike

18 See Handbook of Union Government Structure and Procedures 
(19-55), National Industrial Conference Board, Inc., pp. 63-64.



22

the situation found in the labor movement, the races have not 
previously had regular contacts and common interests. 
What we have here are white and Negro workers who work 
together, eat together, go on strike together, and share those 
personal ties which render the continued exclusion of the 
Negro firemen from the Brotherhood a cruel and corrosive 
vestige of a bygone era.19

An authoritative determination by this Court that statu­
tory bargaining representatives may not exclude Negroes 
from membership would at once eliminate an ugly racial 
practice ostensibly carried on under federal auspices, and 
at the same time promote the program of “ deliberate- 
speed”  desegregation by demonstrating the ability of whites 
and Negroes to engage in constructive common activity in 
an integrated union hall.

Conclusion.

Petitioners and the others in their class, all advanced in 
age because almost no Negro firemen have been hired for 
many years, desire first-class union citizenship before 
they are forced to depart from the railroads by death 
or retirement. The present action has been pending in the 
courts for over four years. Recognizing that petitioners 
have long suffered hostile discrimination at the hands of the 
very men who are authorized by federal law to represent 
them, this Court has in the past seen fit to take speedy 
action to protect their rights. See, e.g., Graham v. Brother­
hood of Locomotive Firemen and Enginemen, 338 U.S. 232. 
We respectfully urge that the Court grant certiorari to

19 Continuing exclusion of Negroes is rendered all the more anomalous 
by the fact that it is practiced primarily by large national unions neither 
controlled nor dominated by Southern members, and defended on no better 
grounds than the antiquity of the racial barrier in the union’s constitution.



23

determine the vital issues here involved and that it set the 
case for argument at this term of Court.

Respectfully submitted,

December, 1958.

J oseph L . R a u f , J r .,
J ohn  S ilard,
Attorneys for Petitioners,

1631 K  Street, N. W
Washington 6, I). C.



24

APPENDIX A

No. 13,387

UNITED STATES COURT OF APPEALS FOR THE 
SIXTH CIRCUIT

L ee Ol ip h a n t , E t  A l , Appellants,

v.
B rotherhood of L ocomotive F iremen  and E n g in em en , 

E t A l ., Appellees.

Appeal from the United States District Court for the 
Northern District of Ohio

Decided November 26, 1958

B efore M artin  and M iller , Circuit Judges.

P er C u riam . Appellants are Negro firemen who brought 
suit in the United States District Court for themselves 
and others similarly situated, seeking admission to mem­
bership in the Brotherhood of Locomotive Firemen and 
Enginemen whose constitution limits membership to appli­
cants “ white born” . This appeal is from an order of the 
United States District Court denying the relief requested, 
for the reason that sufficient federal action was not present 
to subject the membership policies of the Appellee Brother­
hood to judicial control. The opinion of the district court 
may be found at 156 F. Supp. 89; certiorari denied, 355 
IT. S. 893.

The Brotherhood is and for many years has been desig­
nated, in accordance with the Railway Labor Act [45 U. S. 
C. A., 151, et seq.], as the statutory bargaining repre­
sentative for the locomotive firemen, hostlers, and hostler 
helpers, hereinafter collectively referred to as “ firemen” . 
A Negro fireman cannot become a member of the Brother­
hood under existing provisions of the Brotherhood’s Con­
stitution, nor may any firemen who are not members of 
the Brotherhood attend meetings of its local lodges.



25

Appellants advance a double-barreled hypothesis, which 
roughly parallels the two judicial approaches to racial seg­
regation in public education. Their first argument is that, 
inasmuch as racial exclusion from public schools is in­
herently a denial of the equal protection of the laws guar­
anteed by the Fourteenth Amendment [Brown v. Board 
of Education, 347 U. S. 483 (1954)] and of due process of 
law guaranteed by the Fifth Amendment fBolling v. 
Sharpe, 347 U. 8. 497 (1954)] it follows that denial of 
membership in the duly elected statutory bargaining rep­
resentative, based upon race, is inherently incompatible 
with the rights afforded by the Fifth Amendment to the 
Constitution of the United States and by the equal protec­
tion and equal representation guaranteed to them by the 
doctrine of Steele v. Louisville and Nashville Railroad Co., 
323 U. 8. 192 (1944). There, the Supreme Court held that 
“ the language of the [Railway Labor] Act * * * read in 
the light of the purposes of the Act, expresses the aim of 
Congress to impose on the bargaining representative of a 
craft or class of employees the duty to exercise fairly the 
power conferred upon it in behalf of all those for whom it 
acts, without hostile discrimination against them. * *
[323 U. S. 192, 202-3]. In short, appellants’ first argument 
is that, as a matter of law, their constitutional rights and 
those enumerated in the Steele case are denied them as 
long as they are ineligible for membership in the exclu­
sive collective bargaining agency which undertakes to rep­
resent their craft. They state in their brief: “ Denial of 
voice and vote in the election of bargaining representa­
tives and the formulation of bargaining objectives in and 
of itself denies Negro firemen equal representation.”

If denial of membership in the Brotherhood is held to 
be not in violation of their rights as a matter of law, ap­
pellants assert that they are entitled to membership on a 
second and alternative ground. Cases decided under the 
earlier “ separate but equal”  doctrine of public schooling 
proscribed racial exclusion where in fact equal schooling 
was denied. See Missouri ex rel. Gaines v. Canada, 305 
U. S. 337 (1938) ; Sweatt v. Painter, 339 U. S. 629 (1950). 
Analogizing their case to the stated doctrine, these appel­



26

lants assert that the Brotherhood is in fact guilty of dis­
criminatory practices and that the removal of the racial 
barrier to Brotherhood membership- alone will afford them 
some measure of relief from discrimination.

In his carefully considered opinion, Chief Judge Paul 
Jones decided the facts pertaining- to discrimination ad­
versely to the contention of appellants. He stated the 
position of the Negro firemen to be that the “ Brother­
hood continues to exercise discrimination in its repre­
sentation, particularly in (1) reducing the minimum mile­
age requirements for firemen, which has the effect of re­
ducing the monthly income of the Negroes; (2) applying 
the ‘ gouge’ rule in such a way as to reduce earnings of 
the Negroes; (3) applying the mileage rules to firemen 
and not to demoted engineers; and (4) bargaining for a 
compulsory retirement at ag-e 70.”  The Judge continues: 
“ * * * these alleged acts of discrimination will not be dis­
cussed in detail, but it should be noted that as to (3) above, 
proof was mainly in the form of opinion and was denied 
by Brotherhood officials, while (1), (2) and (4) are legiti­
mate practices used by most unions for reasons other than 
discrimination, and since they apply to all who come 
within the terms of the rule involved, whether the indi­
viduals are white or colored, this court cannot state defi­
nitely that this Brotherhood adopted these practices for 
the purpose of discriminating against the Negroes.”  156 
F. Supp. 89, 90.

A meticulous examination of the detailed record in this 
case has been made by us, resulting in our opinion that 
the above findings of the district court are eminently cor­
rect and are supported by substantial evidence. There is, 
therefore, no occasion for further consideration of appel­
lants’ second argument.

Accordingly, we address ourselves solely to the conten­
tion advanced by the appellants that exclusion from mem­
bership in their collective bargaining representative based 
upon race is inherently a denial of their rights as a matter 
of law.

The appellee’s authority as collective bargaining “ rep­
resentative”  of the fireman craft is derived from the Rail-



27

way Labor Act, which contains, inter alia, the following 
definition: “ Sixth. The term ‘ representative’ means any 
person or persons, labor union, organization, or corpora­
tion designated either by a carrier or group of carriers or 
by its or their employees, to act for it or them.”  45 U. S. 
C. A. 151. The Brotherhood was duly elected as bargain­
ing representative in accordance with provisions of the 
Act. Nowhere does the statute manifest the intention of 
Congress to establish criteria for membership in the bar­
gaining representative. Nor can it be said that the atten­
tion of the Congress was not directed to the fact that 
some craft members were being denied membership in cer­
tain railway labor organizations by virtue of their race. 
An amendment to the Act (later tabled) proposed to re­
fuse certification to any such organization which denied 
membership on the basis of race. The able district judge 
observed: “ Apparently the Act itself would not have been 
acceptable to the Congress if Negro membership in the 
agent had been required.”  156 F. Supp., at page 93. The 
Supreme Court points out in its opinion in the Steele case, 
supra, that “ the statute does not deny to such a bargain­
ing labor organization the right to determine eligibility to 
its membership * * *.”  323 IT. S. at page 204. In our
judgment, the language of the statute does not support 
reasonably any other interpretation.

A perusal of the Railway Labor Act makes it abun­
dantly clear that no means of direct control over the actions 
of the agent selected by a majority of the craft was re­
served by the statute to the individual employees. Appar­
ently, the only supervision which any individual may exer­
cise over the duly-elected bargaining representative is the 
threat of casting his vote in favor of a different repre­
sentative at a subsequent election. The objective of Con­
gress was industrial tranquility in the arteries of com­
merce. In choosing the method by which this goal could 
be achieved, it was deemed necessary to take from indi­
vidual employees the right to negotiate their own contracts 
of employment. The question presented on the record be­
fore us is whether or not the Congress transcended the 
constitutionally protected rights of individual employees



28

when it stripped them of their bargaining privileges as 
individuals and conferred that function upon a majority- 
elected representative, over which the individual has no 
direct control and in which he is not eligible for member­
ship. It is not contended that the Negro firemen are de­
prived of their voting rights in the election of a bargain­
ing representative. Their complaint is that they are a 
minority group whose rights are abridged, for the reason 
that, as a result of their ineligibility for membership in 
the appellee Brotherhood, they have no control over the 
internal affairs of the representative elected by the ma­
jority.

Although these proceedings have been punctuated by 
accusations of racial discrimination, it would seem that we 
are really concerned only with ascertaining the rights of 
any person who, for any reason, finds himself in a minor­
ity or out-voted status, the issue of actual discrimination 
by the Brotherhood having been subtracted from the issue 
by the findings of the district judge, as hereinbefore stated. 
Various facets of the collective bargaining process involv­
ing the rights of the minority have already been litigated 
before the Supreme Court. That tribunal has decided 
against the validity of agreements respecting changes of 
pay negotiated by individuals after pay rates had been es­
tablished by collective agreement. Order of Railroad Te­
legraphers v. Railway' Express Agency, 321 U. S. 342.

Individual contracts of employment have been held to 
be superseded by collective agreements subsequently en­
tered into by the employer and the craft representative. 
J. 1. Case Co. v. N. L. R. B., 321 U. S. 332. There, the Su­
preme Court discussed at length the underlying principles 
of the collective bargaining process, with no indication of 
Constitutional infirmity: “ The very purpose of providing 
by statute for the collective agreement is to supersede the 
terms of separate agreements of employees with terms 
which reflect the strength and bargaining power and serve 
the welfare of the group. Its benefits and advantages are 
open to every employee of the represented unit, whatever 
the type or terms of his pre-existing contract of employ­
ment'. * * * The workman is free, if he values his own bar-



29

gaining position more than that of the group, to vote 
against representation; but the majority rules, and if it 
collectivizes the employment bargain, individual advan­
tages or favors will generally in practice go in as a con­
tribution to the collective result.”  321 U. S. 332, 338, 339.

There are other decisions of the Supreme Court ap­
proving Acts of Congress which, in a limited way, inter­
fere with the right of an individual to negotiate for em­
ployment-contract provisions palatable to his individual 
taste. On the subject of the power of the Congress to fa­
cilitate the flow of interstate commerce by enacting the 
union shop amendments to the Railway Labor Act, the 
highest tribunal said: “ Industrial peace along the ar­
teries of commerce is a legitimate objective; and Congress 
has great latitude in choosing the methods by which it is 
to be obtained. * * * The task of the judiciary ends once 
it appears that a legislative measure adopted is relevant 
or appropriate to the constitutional power which Congress 
exercises. The ingredients of industrial peace and stabi­
lized labor-management relations are numerous and com­
plex. They may well vary from age to age and from in­
dustry to industry. What would be needful one decade 
might be anathema the next. The decision rests with the 
policymakers, not with the judiciary.”  Railway Employees’ 
Department v. Hanson, 351 U. S. 225, 233, 234.

The wisdom of this policy of judicial self-restraint wras 
recognized here in the opinion of the United States Dis­
trict Court: “ * * *. To compel by judicial mandate 
membership in voluntary organizations where the Con­
gress has knowingly and expressly permitted the bargain­
ing agent to prescribe its own qualifications for member­
ship would be usurping the legislative function. The Con­
gress has entered the field of, and made provision for, 
labor relations and furnished means of adjusting labor 
disputes between employers and employees of interstate 
railways. For injustices due to discrimination or inade­
quate representation and participation to employees who 
are not members of the bargaining agent, the employees 
must look to the legislative, not the judicial branch of 
constitutional government.”  156 F. Supp. 89, 93.



30

The Fifth Amendment to the Constitution of the United 
States protects the fundamental rights of individuals from 
invasion by federal governmental action. Unlike the Four­
teenth, that amendment contains no equal protection guar­
antee. See Steward Machine Co. v. JJavis, 301 U. S. 548, 
584 (1937); Hirabayashi v. United States, 320 U. S. 81, 
100 (1943). Appellants insist that we, by interpretation, 
should expand the due process clause of the Fifth Amend­
ment to encompass an equal protection guarantee in the 
same manner that the Supreme Court recently accom­
plished that result in the field of public education, in 
Bolling v. Sharpe, 347 U.S. 497. Assuming (without de­
ciding) that we should place such an interpretation on the 
Fifth Amendment, appellants, in our judgment, are still 
not entitled to the relief sought, for the reason that this 
record does not show an agency of the federal government 
to have been responsible for appellants’ plight.

The accusing finger is pointed at the Congress. Only 
one analysis could tend to lay the responsibility for ap­
pellants’ situation on our national legislative branch of 
government: that is, the violation of the Fifth Amend­
ment by the Congress, in its enactment of the Railway 
Labor Act without including therein a provision requiring 
a labor union—-when duly elected as collective bargaining 
representative of a craft—to extend membership privileges 
to all members of the craft, regardless of race. We cannot 
accept this fine-spun hypothesis, which charges the Con­
gress with federal action of a type proscribed by the Fifth 
Amendment.

Recent decisions of the Supreme Court in the field of 
administration of public schooling are not analogous to 
the instant case. Brown v. Board of Education and Bolling 
v. Sharpe, supra, were predicated on the fact that affirma­
tive legislation of the states and the District of Columbia, 
respectively, denied Negroes access to schools supported 
by public tax funds. These decisions are not applicable 
here.

The Brotherhood is a private association, whose mem­
bership policies are its own affair, and this is not an ap­
propriate case for interposition of judicial control. A de­



31

cision to the contrary could be frustrated by the simple 
expedient of the majority’s electing directly those indi­
viduals presently designated by the union to negotiate with 
the employer railroads. There is no requirement that em­
ployees be represented by persons of the same race. In 
National Federation of Railway Workers v. N. M. B., 110 
F. (2d) 529, 538; certiorari denied, 310 U. S. 628, it was 
said that “ under the Act, employees are guaranteed the 
right to select a common bargaining representative and 
that representative may be a person of any race or color 
(or association made up of persons of any race or color). 
The quality of opportunity thus guaranteed is the com­
plete antithesis of discrimination. To hold that colored 
employees could be represented only by colored persons 
for bargaining purposes would be to introduce into the 
administration of the Act the very discrimination which 
the Federation seeks to avoid.”

For the reasons stated herein and those found in the 
opinion of the United States District Judge, the judgment 
is affirmed.

This case was argued to a panel of the court consisting 
of Martin, Miller and Stewart, Circuit Judges. Judge 
Stewart became an Associate Justice of the Supreme Court 
of the United States before a decision was reached or this 
opinion was prepared. He, therefore, did not participate 
in the decision, opinion, or judgment in this case.



32

APPENDIX B

P ertinent  P rovisions of th e  R ailw ay  L abor, A ct 

45 U.S.C. § 151.

Sixth. The term “ representative”  means any person or 
persons, labor union, organization, or corporation desig­
nated either by a carrier or group of carriers or by its or 
their employees, to act for it or them.

#  #  #  #  #  *  #

45 U.S.C. § 152.
Second. All disputes between a carrier or carriers and 

its or their employees shall be considered and, if possible, 
decided, with all expedition, in conference between repre­
sentatives designated and authorized so to confer, re­
spectively, by the carrier or carriers and by the employees 
thereof interested in the dispute.

Third. Representatives, for the purposes of this chapter, 
shall be designated by the respective parties without inter­
ference, influence, or coercion by either party over the 
designation of representatives by the other ; and neither 
party shall in any way interfere with, influence, or coerce 
the other in its choice of representatives. Representatives 
of employees for the purposes of this chapter need not be 
persons in the employ of the carrier, and no carrier shall, 
by interference, influence, or coercion seek in any manner 
to prevent the designation by its employees as their repre­
sentatives of those who or which are not employees of the 
carrier.

Fourth. Employees shall have the right to organize and 
bargain collectively through representatives of their own 
choosing. The majority of any craft or class of employees 
shall have the right to determine who shall be the repre­
sentative of the craft or class for the purposes of this chap­
ter. No carrier, its officers, or agents shall deny or in any 
way question the right of its employees to join, organize, or 
assist in organizing the labor organization of their choice,



33

and it shall be unlawful for any carrier to interfere in any 
way with the organization of its employees, or to use the 
funds of the carrier in maintaining or assisting" or con­
tributing to any labor organization, labor representative, 
or other agency of collective bargaining, or in performing 
any work therefor, or to influence or coerce employees in 
an effort to induce them to join or remain or not to join 
or remain members of any labor organization, or to deduct 
from the wages of employees any dues, fees, assessments, 
or other contributions payable to labor organizations, or 
to collect or to assist in the collection of any such dues, 
fees, assessments, or other contributions: Provided, That 
nothing in this chapter shall be construed to prohibit a 
carrier from permitting an employee, individually, or 
local representatives of employees from conferring with 
management during working hours without loss of time, 
or to prohibit a carrier from furnishing free transporta­
tion to its employees while engaged in the business of a 
labor organization.

Sixth. In case of a dispute between a carrier or carriers 
and its or their employees, arising out of grievances or out 
of the interpretation or application of agreements concern­
ing rates of pay, rules, or working conditions, it shall be 
the duty of the designated representative or representa­
tives of such carrier or carriers and of such employees, 
within ten days after the receipt of notice of a desire on 
the part of either party to confer in respect to such dispute, 
to specify a time and place at which such conference shall 
be held: Provided, (1) That the place so specified shall 
be situated upon the line of the carrier involved or as 
otherwise mutually agreed upon; and (2) that the time so 
specified shall allow the designated conferees reasonable 
opportunity to reach such place of conference, but shall not 
exceed twenty days from the receipt of such notice; And 
Provided Further, That nothing in this chapter shall be 
construed to supersede the provisions of any agreement (as 
to conferences) then in effect between the parties.

Seventh. No carrier, its officers, or agents shall change 
the rates of pay, rules, or working conditions of its em­
ployees, as a class, as embodied in agreements except in



34

the manner prescribed in such agreements or in section 
156 of this title.

Ninth. If any dispute shall arise among’ a carrier’s em­
ployees as to who are the representatives of such employees 
designated and authorized in accordance with the require­
ments of this chapter, it shall be the duty of the Mediation 
Board, upon request of either party to the dispute, to in­
vestigate such dispute and to certify to both parties, in writ­
ing, within thirty days after the receipt of the invocation 
of its services, the name or names of the individuals or 
organizations that have been designated and authorized to 
represent the employees involved in the dispute, and certify 
the same to the carrier. Upon receipt of such certification 
the carrier shall treat with the representative so certified 
as the representative of the craft or class for the purposes 
of this chapter. In such an investigation, the Mediation 
Board shall be authorized to take a secret ballot of the em­
ployees involved, or to utilize any other appropriate method 
of ascertaining the names of their duly designated and au­
thorized representatives in such manner as shall insure the 
choice of representatives by the employees without inter­
ference, influence, or coercion exercised by the carrier. In 
the conduct of any election for the purposes herein indicated 
the Board shall designate who may participate in the elec­
tion and establish the rules to govern the election, or may 
appoint a committee of three neutral persons who after 
hearing shall within ten days designate the employees who 
may participate in the election. The Board shall have ac­
cess to and have power to make copies of the books and 
records of the carriers to obtain and utilize such informa­
tion as may be deemed necessary by it to carry out the pur­
poses and provisions of this paragraph.

(3146-8)