The opinion
*451 Frankfurter, J.,
concurring in part and dissenting in part, said:
“The Constitution does not guarantee public employment. City, State and Nation are not confined to making provisions appropriate for securing competent professional discharge of the functions pertaining to diverse governmental jobs. * * -»»
Quotations above related to an ordinance which operated to exclude Communists from city jobs. In American Communications Ass’n, C. I. O., v. Douds, 339 U.S. 382 , at page 413, 70 S.Ct. 674 , at page 691, 94 L.Ed. 925 , the court in upholding the Communist-oath provision, sec. 9(h) of the National Labor Relations Act said:
“The unions’ argument as to bill of attainder cites the familiar cases, United States v. Lovett, 1946, 328 U.S. 303 , 66 S.Ct. 1073 , 90 L.Ed. 1252 ; Ex parte Garland, 1867, 4 Wall. 333 , 18 L.Ed. 366 ; Cummings v. State of Missouri, 1867, 4 Wall. 277 , 18 L.Ed. 356 . Those cases and this also, according to the argument, involve the proscription of certain occupations to a group classified according to belief and loyalty. But there is a decisive distinction: in the previous decisions the individuals involved were in fact being punished for past actions; whereas in this case they are subject to possible loss of position only because there is substantial ground for the congressional judgment that their beliefs and loyalties will be transformed into future conduct. * * * Here the intention is to forestall future dangerous acts; there is no one who may not by a voluntary alteration of the loyalties which impel him to action, become eligible to sign the affidavit. We cannot conclude that this section is a bill of attainder.”
United States v. Lovett, 328 U.S. 303 , 66 S.Ct. 1073 , held to be a bill of attainder, hence unconstitutional, an act of congress which cut off the compensation of three named individuals, congress having found them guilty of disloyal conduct. At page 315 of 328 U.S., at page 1078 of 66 S.Ct., the court said:
“In Cummings v. State of Missouri, 4 Wall. 277, 323 , 18 L.Ed. 356 , this Court said, ‘A bill of attainder is a legislative act which inflicts punishment without a judicial trial. * * * Neither of these cases [Cummings and Ex parte Garland] has ever been overruled. They stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution. Adherence to this principle requires invalidation of Section 304. We do adhere to it.
“Section 304 was designed to apply to particular individuals. Just as the statute in the two cases mentioned it ‘operates as a legislative decree of perpetual exclusion’ from a chosen vocation. [Ex parte Garland, supra, 4 Wall, at page 377, 18 L.Ed. 366 .] This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type. It is a type of punishment which Congress has only invoked for special types of odious and dangerous crimes, such as treason, 18 U.S.C. § 2 ; acceptance of bribes by members of Congress, 18 U.S.C. §§ 199 , 202, 203; or by other government officials, 18 U.S.C. § 207 ; and interference with elections by Army and Navy officers, 18 U.S.C. § 58 .
“Section 304, thus, clearly accomplishes the punishment of named individuals without a judicial trial. The fact that the punishment is inflicted through the instrumentality of an Act specifically cutting off the pay of certain named individuals found guilty of' disloyalty, makes it no less galling or effective than if it *452 had been done by an Act which designated the conduct as criminal.”
It is not alleged here that the Railway Labor Act contravenes the attainder clause, but that the violation is in the collective agreement. The foregoing quotations on the subject of attainder indicate conclusively that attainder applies to punishment. In order to sustain their attainder argument, plaintiffs would have to show that the collective agreement was designed to operate against them as named persons, or as persons easily ascertainable and intended to be penalized. That, however, is not the ground on which they advance the attainder contention, but on the ground that the company and the union have entered into a collective agreement by which they have adopted the age of seventy as the age of compulsory retirement. For all that appears, it is a provision that will apply to every conductor of the railroad when and if he reaches the age of seventy. By any of the tests above defined and discussed by the Supreme Court, that sort of contract provision is not a bill of attainder.
Plaintiffs further contend that the Union violated the duty owed to them as their bargaining agent to represent them as members of a minority group of employees in a fair, impartial, and good faith manner. In support of this contention plaintiffs say that the Union failed to invite them to their meetings and to hear their views on the question of compulsory retirement. It is true that plaintiffs were not invited to the Union meetings to discuss compulsory retirement provisions.
In the case of Steele v. Louisville & Nashville Railroad Company, 323 U.S. 192 , 65 S.Ct. 226 , the court, after stating the duties of a bargaining agent to represent the minority group in good faith, further stated that wherever necessary to that end the Union is required to consider requests of non-union members and the expression of their views with respect to the subject of collective bargaining and to give them notice of or opportunity for hearing on its proposed action.
The record shows that plaintiffs knew as early as February, 1953 that the question of compulsory retirement was being considered by the Union. During the period thereafter until the second vote was taken it was a subject of constant discussion among employees on the streets. Plaintiffs made known by letters their protests to the Railroad before the first vote was taken. They again protested to the Union by letter-through able counsellor. This previously mentioned letter sets forth the reasons why plaintiffs felt that compulsory retirement was illegal. The reasons set forth in that letter are practically the same reasons relied upon in the bill of complaint as amended as reasons why this court should declare the agreement invalid, except plaintiffs did not claim that they were entitled to appear in the meetings of the Union to express their views in opposition to the compulsory retirement provision. Plaintiff Taylor had that right as a member of the Union.
The court concludes that failure to invite plaintiffs to a meeting of the Union to express their views does not invalidate the bargaining agreement.
The court further concludes that the Union acted fairly and in good faith in entering into the bargaining agreement with the Railroad on February 1, 1954.
Let an order be submitted sustaining the motion for summary judgments dismissing the case.