System Federation No. 91, Railway Employes' Department v. Wright/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER concur, dissenting in part.

This controversy commenced in 1945 prior to the time when so-called union shop agreements were authorized by Congress. Act of Jan. 10, 1951, 64 Stat. 1238, 45 U.S.C. § 152, Eleventh, 45 U.S.C.A. § 152, Eleventh. Since the date of that law, which we upheld in Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112, employees and carriers may negotiate that type of agreement, though they are not required to do so. Id., 351 U.S. at page 231, 76 S.Ct. at page 717. Prior to that date, however, a union shop was barred by law in this industry; and a union that discriminated against nonunion members was accountable to them. See Steele v. Louisville & N.R. Co., 323 U.S. 192, 207, 65 S.Ct. 226, 234.

Twenty-eight nonunion members sued petitioners, in 1945, claiming damages in the amount of $140,000. The complaint purported to state a class action. But the case never came to trial. A settlement was reached which provided for (a) the payment of $5,000 in cash; (b) the waiver and release by the 28 plaintiffs of all their claims; and (c) a consent decree which would protect 'the undersigned' against future acts of discrimination by petitioners.

The consent decree did not purport to protect future employees. By its terms it protected only 'the plaintiffs in this action and all other employes of the defendant Railroad employed in' designated crafts or classes and not members of the union. The petitioners agreed to refrain from discriminating 'against the plaintiffs and the classes represented by them.'

I do not think the consent decree, read in light of the settlement, did more than settle claims of then-existing employees. Employees hired in the future were, by its terms, not included. Yet apparently a host of them have intervened, seeking the protection of the statute quo created by that decree. I use the word 'apparently' because the record does not show which intervenors were on the payroll of the carrier in 1945. Those who became employed after that date plainly are not entitled to the protection of the decree. Of those who were employed at that time, we know that some are still employed. Of the latter group, at least seven of the original 28 employees are still on the payroll. These seven released valuable claims for settling their disputes. It is harsh and unjust to deprive them of those fruits of the settlement. Whether there are others employed in 1945 who have a like claim to fair dealing is impossible to tell from the record.

We are all agreed that there is power in the District Coujrt to modify the consent decree, whether or not the power to modify was reserved. United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462. I agree with the Court that the union should not be disabled by that decree from carrying out the new union shop policy which Congress has made permissive. Cf. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 435-436, 15 L.Ed. 435. Certainly all employees who have joined the ranks since 1945 have no claim to its protection, as they are not included in its terms and gave nothing up in exchange for it. To construe it to include them would as a result of changing circumstances turn the consent decree 'into an instrument of wrong.' United States v. Swift & Co., supra, 286 U.S. 115, 52 S.Ct. 462. But when we set aside the decree as respects those who gave up something of value to get it, we do an injustice. I think the applicable principle is stated in United States v. Swift & Co., supra, 286 U.S. 119, 52 S.Ct. 464: 'The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making.'