Brotherhood of Maintenance of Way Employes v. United States (366 U.S. 169)/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

This case is a minor episode in an important chapter of modern history. It concerns the impact of economic and technological changes on workers and the manner in which government will deal with it. The courts do not determine that policy; it is a legislative matter. But the judicial attitude has much to do with the manner in which legislative ambiguities will be resolved.

There are some who think that technological change will produce both our highest industrial and business activity and our greatest unemployment. Dr. Robert M. Hutchins recently stated the basic conflict between individual freedom and technology:

'Individual freedom is associated with doubt, hesitancy,     perplexity, trial and error. These technology cannot countenance. Liberty under law presupposes the     supremacy of politics. It presupposes the possibility, for     example, that political deliberation might lead to the      decision to postpone the introduction of a new machine. Technology, on the other hand, asserts that what we can do is     worth doing; the things most worth doing are those we can do      most efficiently *  *  * .' Two Faces of Federalism (1961), p.      22.

The measure of the conflict is seen only in a broad frame of reference. As Dr. Hutchins said:

'Technology holds out the hope that men can actually achieve     at last goals toward which they have been struggling since      the dawn of history: freedom from want, disease, and      drudgery, and the consequent opportunity to lead human lives. But a rich, healthy, workless world peopled by bio-mechanical     links is an inhuman world. The prospects of humanity turn     upon its ability to find the law that will direct technology      to human uses.' Two Faces of Federalism (1961), p. 24.

The Secretary of Labor, Arthur J. Goldberg, recently put the problem in simple terms:

'The issue being joined in our economy today-one that is     present in some form in every major industrial negotiation-is      simply stated: how can the necessity for continued increases      in productivity, based upon labor-saving techniques, be met without causing      individual hardship and widespread unemployment?'

This case is a phase of that problem.

This is not the first instance of a controversy settled in Congress by adoption of ambiguous language and then transferred to the courts, each side claiming a victory in the legislative halls.

The Senate passed a bill which required the Interstate Commerce Commission in approving a railroad merger to make 'a fair and equitable arrangement to protect the interest of the employees affected.' The House Committee adopted the same language. When the bill reached the floor of the House, Mr. Harrington suggested the following proviso:

'Provided, however, That no such transaction shall be     approved by the Commission if such transaction will result in      unemployment or displacement of employees of the carrier or      carriers, or in the impairment of existing employment rights      of said employees.'

That amendment would have prohibited permanently the displacement of employees as a result of mergers. It was adopted by the House. But in Conference that proviso was eliminated along with the merger provisions that gave rise to it. The House recommitted the bill with instructions that the provisions relating to combinations and consolidations of carriers be included in the bill, and be amended to provide that the Commission must include in its orders authorizing mergers 'terms and conditions providing that such transaction will not result in employees of said * *  * carriers being in a worse position with respect to their employment.'

The Congerence accepted this version, limiting the protective clause to four years. The Conference Report emphasizes that the change made in the Harrington proposal was in limiting its operation to four years. Mr. Lea, Chairman of the House Conferees, stated the same in the House:

'The substitute that we bring in here provides two additional     things. First, there is a limitation on the operation of the     Harrington amendment for 4 years from the effective date of      the order of the Commission approving the consolidation. In     other words, the employees have the protection against      unemployment for 4 years, but the Commission is not required      to give them benefits for any longer period. If the employees     themselves make an agreement with the railroad company for a      better or a longer period, that is a matter between the      railroad men and the railroads, but this 4-year limitation is      established by the pending conference agreement.

'There is another limitation on the protective benefits     afforded by the amendment. The benefit period shall not be     required for a longer period than the prior employment of the      employee before the consolidation occurred. In other words,     under the original Harrington amendment, if a man was      employed for 6 months, he would indefinitely be subject to      the benefits of the amendment from the railroad company. We     have changed that so the railroad company will not be      required to maintain him in no worse condition as to his      employment for any longer period than he worked before the      consolidation occurred.

'We believe that is a very fair and a very liberal provision     for labor. We believe that railway labor substantially agrees     in that viewpoint. We take nothing from labor by this     agreement.' (Italics added.) Mr. Wolverton, another House Conferee, stated:

'It was recognized that the real intent of the sponsors was     to save railroad employees from being suddenly thrust out of      employment as the result of any consolidation or merger      entered into.' (Italics added.)

These are the statements which, the Court says, 'are entitled to the greatest weight' in interpreting the proviso. I do not think that these statements-nor any part of this legislative history-'clearly reveal an understanding that compensation, not 'job freeze,' was contemplated.' Instead I find this legislative history-as the Court elsewhere seems to recognize-to be, at best, ambiguous. Compensatory relief will result in the employees' bearing the initial shock of the railroads' reduction in plant. The Commission and the railroads contend for a philosophy of firing first and picking up the social pieces later. The Court seizes on ambiguous materials to impute to Congress approval of that philosophy. I would resolve the ambiguity in favor of the employees. I would read the proviso as meaning that nothing less than four-year employment protection to every employee would satisfy the Act, though not necessarily a four-year protection in his old job. In a realistic sense a man without a job is 'in a worse position with respect to' his 'employment,' though he receives some compensation for doing nothing. Many men, at least, are not drones; and their continued activity is life itself. The toll which economic and technological changes will make on employees is so great that they, rather than the capital which they have created, should be the beneficiaries of any doubts that overhang these legislative controversies when they are shifted to the courts.