Amicus Curiae Brief — Feaster v. United States

Supreme Court of the United States, cx

OCTOBER TERM, 1969 :

. * No. 558

EP PAE RO ET OP OES aii

‘HOUSTON H. FEASTER, individually and as Director, |

Alabama State Docks Department, and the dione,

OF ALABAMA,

Petitioners, ae ;

versus

| UNITED STATES OF AMERICA and WARREN S.

LANE, as Mediator, National Mediation Board,

<— Respondents.

BRIEF OF THE GEORGIA PORTS AUTHORITY a

AMICUS CURIAE.

EARLE PHILLIPS, ARTHUR K. BOLTON, :

WILLIAM W. ALEXANDER, JR., Attorney General, State of Georgia, :

26 Pryor Street, N.E., Georgia Department of Law, . :

Atlanta, Georgia 30303, 132 State Judicial Building, - ;

Attorneys for Amicus Curiae. Atlanta, Georgia.30334. :

HAROLD N. HILL, JR.,

Executive Assistant Attorney General.

COURTNEY STANTON,

Assistant Attorney General.

INDEX

| Page

STATEMENT OF INTEREST........... ey

ARGUMENT ......... eee cues ae

A Substantial Federal Question Is Presented Which

Shows The Necessity For Uniform Application of |

Railway Labor Legislation Pursuant To A Deter- .

mination By The Interstate Commerce Commis-

A Substantial Federal Question Is Presented As To

Whether Congress Intended The Railway Labor Act

To Apply To Non-Railroad Employees Of The Type

ie a ee is ab ec 9 -

OOMrirenen .. gic. Slee ek: 14°

CERTIFICATE OF SFRVICE.............0.0-00- 15

LIST OF AUTHORITIES.

Cases: . |

Alabama Great Southern Ry. Co. v. Federal Mari-

time Commission, 379 F.2d 100 (D.C. Cir. -

ee i re a Na oA So a 7

Alabama State Docks Department v. Alabama, Ten-

| nessee & Northern R. Co., 323 I.C.C. 185... - 8

Allen v. Ocean S.S.-Co. of Savannah, 123 F.2d 469

(5th Cir. 1941) ......0% Coe eek 5, 9

S28 AAAI IE PS

S Ohh ade eereaetaatia

il

LIST, OF AUTHORITIES— (Continued):

Cases—(Continued): | Page

Brotherhood of Railroad Trainmen v. Jacksonville

Terminal Co.,.... U.S.....,., 22 L.Ed.2d

344 (1969), reh. den... . U.S. ie verre 8

Californiaw. Taylor, 353 US. 663.(3067) .....2.; 4

Central Stikstof Verkoopkantoor N.V. v. Alabama

State Docks Department, ....F.2d....,

No. 24045 (5th Cir. 1969) ............... 7

Denver & Rio Grande Western R. Co. v. Union

| Pecific R. Co., 287 LC.C. Gil... 5. 3... a-@

Garner v. Teamsters, Chauffeurs & Helpers Local

; Union No. 778, 346 U-S. 485 (1953)....... 8

Holy Trinity Church v. United States, 143 U'S.

oe .. yaa ee a ee 9

Interchange of Freight at Boston Piers, 253 I.C.C.

8 Sra eee fay er er ee 7

Interchange of Freight at a Terminals, 2

Sees EO CR vk oo ook es hae ss 7

International Assn. of Machinists v. Central Airlines,

3 Inc., 372 U.S. 682 (1963) reh. den. 373 U.S.

. International Longshoremen’s Assn. v. Georgia Ports

Authority, 217 Ga. 712 (1962), cert. den. 370

a Ek ok ee eee ee ee Se ete ve w och 2

McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 US. 10 (1963) ........... 9

National Council of Railway Patrolmen’s Unions |

v. Sealy, 152 F.2d 500 (5th Cir. 1945)... 9

N.L:R.B. v. Fruit & Vegetable Packers & Ware-

housemen, Local 760, 377 U.S. 58 (1964)... 10

LIST OF AUTHORITIES—(Continued):

Cases—(Continued): Page.

National Woodwork Mfgrs- (om v. N.L.R.B.,; 386

U.S. 612 (1967), reh. den. 387 U.S. 926... 10

Pan American World -Airways, Inc. v. United

Brotherhood. of-Carpenters & Joiners of

America, 324 F.2d 217 (9th Cir. 1963), cert. <

Ch SIO Be OEE ieee awh es 6, 10

Shields v. Utah-Idaho Central R. Co., 305 U.S. 177

$e pie GA RT chase eee ete ate 9

: ‘Swift & Co. v. United States, 316 U.S. 216 (1942) . 7

Textile Workers Union of America v. Lincoln Mills

_ of Alabama, 353 U.S. 448 (1957)@@..... 8,10 —

Union Stockyard & Transit Company of Chicago, 3 |

N.M.B. 149 (1953); 3 N.M6B. 156 (1953). 7

United States v. Feaster, 410 F’2d 1354 (5th Cir.

| NG. oe ae ee ee a ae 7,9

Walling v. Baltimore Steam Packet Co., 144 F.2d

Se SO: SE sk oe ie eee hee 5

Wirtz v. Local 152, Glass Bottle Blowers Assn., 389

U.S. 463 CE sick oe Ree ee ES 10

- Statutes: 4

Fair Labor eee Act, 29 U.S.C.201 .5.... 5

. Federal Insurance Contributions Act, 26 U. S.C. 3121

SRM etic ce fe Pate Poa ear e ea 5

Georgia Code Annotated, Chapter 98-2... .°... 2%

Georgia Laws, 1945, p. 464..........0... ¥.y

Interstate Commerce Act, 49 U.S.C. 1(3)(a)... 4, #

National Labor Relations Act,,29°U.S.C. 152(2) . SB

Railroad Retirement Act, 45 U.S.C. 228a(a) , oo ae oe

Railroad Retirement Tax Act, 26 U.S.C. 3231 (a),

Peover e PMC LE OE ee ae ee 4

iv

LIST OF AUTHORITIES—(Continued):

Statutes—(Continued): Page

Railroad Unemployment Insurance Act, 45 "7 S.C.

af Oe OW... es ey eee

~« Railway Labor Act: ;

eee We, Neca ees 4, 9

ee, Oe, PS Nes iio

i ee

Report of Hearings of the Senate Committee on In-

terstate Commerce on 8.3266, 73d Congress,

Second RE, oRs: i's 6 a ere 4 Ve oD 11

SUPREME COURT OF THE UNITED STATES

‘a OCTOBER TERM, 1969

No. 558.

HOUSTON H. FEASTER, individually and as Director,

Alabama State Docks Department, and the STATE

OF ALABAMA,

Petitioners,

_ versus

UNITED STATES OF AMERICA and WARREN: S.

LANE, as Mediator, National Mediation Board,

Respondents. ae

BRIEF OF THE GEORGIA POR

AUTHORITY AS .

AMICUS CURIAE. ,

4 STATEMENT OF INTEREST.

The Georgia Ports Authority (herein fter the Authority)

is a body corporate and politic created the General As-

sembly of the State of Georgia and is instrumentality

of the State of Georgia and a public corporation. In the oper-

ation of public ports at various locations\in the State of —

Georgia, it carries out its corporate pur for the benefit

of the peopie of Georgia, performing an ntial govern- —

mental function for a public purpose and for\a publi¢ bene-

fit as a creature of the State. It has authority to acquire,

construct, maintain, and operate harbors and seaports,

.

Lo ee ee, SO tp Seg ee

together with all necessary or desirable facilities therefor,

including rail facilities within its properties. Ga. Laws,

1945, p. 464, as amended; Ga. Code Ann., Chapter 98-2.

The Georgia Ports Authority operates six port termi-

nal facilities at five Georgia cities. At Savannah, Georgia,

it operates two seaport terminals, the Garden City Terminal |

and the Ocean Terminal, through a subsidiary organiza- ~

tion, the Savannah State Docks and Warehouses (herein-

after the Warehouses). Both terminals have berths, sheds,

warehouse and cargo handling facilities and equipment.

At the Ocean Terminal, all rail interchange and switching

is performed by personnel and equipment of the Central of

Georgia Railroad, a privately owned \Class I rail carrier. At |

the Garden City Terminal, rail interchange and switching

is performed by personnel and equipment of the Savannah

State Docks Railroad Company (hereinafter the Railroad.

Company), a subsidiary operation of the Georgia Ports

Authority, pursuant to switching authority granted by the

Interstate Commerce Commission. The organization, oper-

ating officers, employees, property and operations of the

Railroad Company are separate and apart from those of

the Warehouses and the Authority. Under Georgia law

. the State Ports Authority in the operation of the docks

and warehouses at its Savannah terminals (is) without au- -

thority to enter into an’ agreement with any third party fix-

ing the terms and conditions of the employment of person-

nel working for the Authority.” International Longshore-

men’s Assn. v. Georgia Ports Authority, 217 Ga. 712 (1962),

cert. den. 370 U.S. 922. ‘

3

There is presently pending before the National Media-

tion Board (hereinafter the N.M.B.), File No. C-3902, a

petition filed by the International Longshoremen’s Asso-

ciation (hereinafter I.L.A.) for investigation of an alleged

representation dispute among, allegedly, certain em-

ployees of the Railroad Company, but the employees

described include all employees of the Authority at Savan-

nah, Georgia, who are engaged not only in “locomotive

engineering switching’’, but also all those engaged in “‘load-

ing, unloading, warehousing, moving, storing, checking,

clerking and handling of cargo” and even those “operating

and maintaining equipment and facilities.” See Petition —

. for Writ of Certiorari, Appendix U (hereinafter cited as Pet.,

App...). There are only eight persons employed by the

Railroad Company and they are engaged exclusively in pro-

viding rail service and are treated as being covered by rail-

way labor legislation. There are approximately 500 persons

employed by the Warehouses to handle, check, store, load.

and unload cargo traveling by ship, motor transport, and

rail and to maintain the equipment and facilities of the

Warehouses. These employees have never been treated

as covered by railway labor legislation, .but rather as cov:

ered by other federal laws applicable to employees. A hear-

ing in File No. C-3902 was held in Washington, D. C. on

August 13, 1969, concerning the issue of N.M.B. jurisdiction

over the employees involved, and briefs of the parties have

been submitted, but no decision has been rendered.

The Warehouses and the Authority contend that the

N.M.B. has no jurisdiction over any employees other than

those of the Railroad Company. The I.L.A. contends that

N.M.B. jurisdiction extends to employees of all three en-

tities. In the instant case pending certiorari, the N.M.B. as- ©

serted jurisdiction over similarly situated employees of the

a

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‘

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2

Alabama Ports Authority. The decision of this Court in this [

case will substantially affect the Authority, and its sub- |

sidiaries, as well as similarly situated ports authorities of

other states. For this reason, the Authority files this Brief in

‘support of the petition for certiorari, asking that this Court

grant the petition and reverse the Court below. :

ARGUMENT. >

A Substantial Federal Question Is Presented Which-

Shows The Necessity For Uniform Application Of

Railway Labor Legislation. Pursuant To A Deter-

mination By The Interstate Commerce Commission.

State ports authorities generally, as have Petitioners

in this case, treated their railroad employees performing 4y

railroad work as being covered by various statutes relating

to railway labor such as the Railway Labor Act, 45 U.S.C.

151, First (see Pet., App. F); the Railroad Retirement Tax

Act, 26 U.S.C. 3231 (a), (g) (see Pet., App. J); the Railroad

Retirement Act, 45 U.S.C. 228a(a) (see Pet., App. K); the

Railroad Unemployment Insurance Act, 45 U.S.C. 351 (a),

(b), (c); (see Pet., App. L); and the Interstate Commerce

Act, 49 U.S.C. 1(3)(a) (see Pet., App. I). This treats these

employees as part of the “‘a state within a state (which) has

its own customs and its own vocabulary and lives according

to rules of its own making.” California v. Taylor, 353 U.S.

553, at 565 (1957). Because divergent rule<and standards

for railroads, varying with public versus private ownership,

could destroy the “uniform method of dealing with the

_ labor problems of the railroad industry” and because rail-

road problems are often settled on a national basis, this

Court has held that such state owned railroads are ‘‘a vital

er ae

»

link in the national transportation system” and their

“continuous operation is important to the national flow of

commerce,”’ thus. requiring application thereto of the uni-

form federal scheme of railway labor legislation. [bid., at

566, 567.

Conversely, state ports authorities, like Petitioner

here, have applied a totally different legislative scheme to

their non-railroad employees. This scheme is a mixture of

state laws on such matters as collective bargaining, civil

service status, wages, etc., together with pertinent federal

laws such as the. Federal Insurance Contributions Act

(Social Security Act), 26 U.S.C. 3121(b) (9) (see Pet.,

App. M); the Fair Labor Standards Act, 29 U.S.C. 201

(see Pet., App. ©); and the National Labor Relations Act,

29 U.S.C. 152 (2) (see Pet., App. N). This treatment of

non-railroad employees has long been implicitly or

explicitly endorsed and approved by federal agencies and ,

courts and should not be lightly disturbed in order to

apply to maritime operations a specialized code of

relationships, designed for and appropriate for, only a

separate industry, the Nation’s railroads. Walling v.

Baltimore.Steam Packet Co.; 144 F.2d 130 (4th Cir. 1944);

Allen v. Deeari S.S. Co. of Savannah, 123, F.2d 469

(5th Cir. 1941).

_ The choice of schemes inherent in a decision

determining Railway Labor Act applicability carries

its own inherent arid inevitable choice of the entire scheme

of federal railway labor legislation, as the definitions of

“carriers” and ‘employees’ .is closely analogous,

indeed identical in effect, among these statutes. A

substantial federal question regarding the scope of

”

ey

erailway labor legislation is presented in a _ context

of attempted expansion of that scope to encompass

employees and activities which have never been, treated

_as subject thereto. The rationale applied to bring a state

railroad within the scope of the federal railway labor

legislation is inapposite to the question of coverage of

state maritime facilities whose total concern is with maritime

trade. In regard to these maritime facilities, there is not the

problem of interconnecting carriers with differing rules nor

of state enclaves where the federal writ does not run to

identical activities performed . by identical employee

classifications. |

Further, the varied state port authorifies compete with

one another for trade. Yet, dependent upon the vagarities -

of railroad ownership, one might be covered by rail-

way labor legislation in its entire operation, while another

might be free to operate under a different, and perhaps

. competitively advantageous, scheme. Thus, were the rail

services at a state port performed solely by a privately owned —

railroad, thereswould presumably be no basis for “‘carrier”’

status of the §, >: Conversely, simple operation by a

subsidiary of rail tacilities should not be the sole factor de-

termining ‘‘carrier”’ status of all activities carried on by the

parent organization. Cf. Brief of Solicitor General of the

United States as Amicus Curiae, in Pan American World

Airways, Inc. v. United Brotherhood of Carpenters & Joiners -:

of America, 324 F.2d 217 (9th Cir. 1963), cert. den. 376 U.S.

964. :

Further, the state ports authorities are subject to reg-

- ulation by the Federal Maritime ‘Commission. The juris-

diction of this Commission may easily overlap and conflict

with the claimed jurisdiction of the N.M.B. or the Inter-

state Commerce Commission. Some determination must be

made of the jurisdictional claims, for it is clear that the

“jurisdiction | of the I.C.C. ceases where that of another fed-

‘eral agency begins. Alabama Great Southern Ry. Co. v.

Federal Maritime Commission, 379 F.2d 100 (D.C. Cir.

1967); Swift & Co. v. United States, 316 U.S. 216 (1942). The

NM. B. recognizes the jurisdictional limits of the L.C.C.,

once determined, as the limits of its jurisdiction. Union |

Stockyard and Transit Company of Chicago, Cases Nos.

ae C-2073, 3 N.M.B. 149 (1953), 3 N.M.B. 156 (1953).

_ The L.C.C. and.the F.M.C. have even jointly determined

their respective jurisdictions in the past. Interchange of

Freight at Boston Piers, 253 I.C.C. 703 (1942); Interchange

of Freight at Boston Terminals, 2 U.S.M.C. 671 (1942). 7

\ | ony

The consequences of diverse determinations is shown

in the case of Petitioner. Thus the N.M.B. has determined

Petitioner is a “carrier” and has asserted jurisdiction over

Petitioner’s non-rail employees. This determination, while

not com} letely endorsed by the court below, was found not

to be ‘ “enor of the magna or summa quality” which could

now be reviewed and the N.M.B. result was allowed to

stand. United States v. Feaster, 410 F.2d 1354, at 1368- ©

1372 (5th Cir. 1969) (see Pet., App. B). On the other hand,

the same court has just determined in a subsequent case

that the Alabama State Docks Department is not a common

carrier under the Interstate Commerce Act. Central Stik-

stof Verkoopkantoor, N.V. v. Alabama State Docks Depart-

ment, .... F.2d .... (5th Cir., No. 24045, decided August

15, 1969). The I.C.C. has allowed state ports such as Peti-

tioner to avail themselves of the rate adjustment complaint

procedures of Section 3(1) of the Interstate Commerce Act,

49 U.S. C. 3(1), see Alabama State Docks Department uv. Ala-

. bama, Tennessee & Northern R. Co., 323 1.C.C. 185, while

denying the same right to rail carriers, see Denver & Rio

Grande Western R. Co. v. Union Pacific R. Co., 287 I.C. C.

611, thus differentiating rail carriers from state maritime

authorities.

- Thus a substantial federal question of state-federal

: relationships arises under the Railway Labor Act present- °

ing the question of federal control of a state’s employment

and personnel policies. The substantial interests of the sev-

eral states, which both parallel and oppose one another, re-

quire a uniform code to govern the relationships of all states

with all their port employees. This Court has recognized of-

ten that there is a manifest need for uniformity in the appli-

cation of federal labor laws, including railway labor legis-

lation. International Assn. of Machinists v. Central Airlines,

» Inc., 372 U.S. 682, 691-692 (1963), reh. den. 373 U.S. 947;

Textile Workers Union of America v. Lincoln Mills of Ala-

bama, 353 U.S. 448, 456-457 (1957); Garner v. Teamsters,

‘ - Chauffeurs and Helpers Local Union No. 776, 346 U.S. 485,

_at 490-491 (1953). This Court has this year reiterated this

need for uniformity in regard to state regulation of railroads

clearly subject to the Railway Labor Act. Brotherhood of

Railroad Trainmen v. Jacksonville Terminal Co., .... U.S.

, 22 L.Ed.2d 344 (1969), reh. den. .... U.S. ..... This

uniformity can be attained only by consideration and reso-

lution of this question by the Interstate Commerce Com- -

mission, the one tribunal whose’ determination, perhaps

jointly made with other involved agencies; will settle all

questions of jurisdiction and whose expertise to make the

determination of ‘‘carrier’” and “employee” -status has

been — recognized by the Congress and the Courts.

i

+45 U.S.C! 151, First, Fifth; Shields v. Utah-Idaho Cen-

tral R. Co., 305 U.S..177 (1938); National Council of

Railway Patrolmen’s Unions uv. Sealy, 152 F. 2d 500 (5th

- Cir. —

Such a determination wil] settle a substantial and deli-

cate question of federal-state relationships, a considera-

tion which looms as large in the interests of the Nation as |

the delicate questions of international relations involved

in McCulloch v. Sociedad Nacional de Marineros de Hon-

duras, 372 U.S. 10 (1963).

z A Substantial Federal Question Is Presented As To

Whether Congress Intended The Railway Labor Act me

To Apply To Non-Railroad Employees Of The Type |

Here re

~ The correct approach to federal labor legislation is to

‘consider the legislative background of the statute and to

"give it “a broad common-sense construction rather than

a Narrow one, sounding in mere logomachy.” Allen v. Ocean

S.S. Co. of Savannah, supra, 470.-The assertion of jurisdic”

tion by the N.M.B. over the non-railroad employees of Pe-

_ titioner has been based entirely upon a literal interpretation

of Section 1, First of the Railway Labor Act, 45,.U.S.C. 151,

First, and has been endorsed by the Court below on such

a basis, see United States v. Feaster, supra, at 1368-1372.

Yet this Court has consistently pointed out the dangers of a

literal reading of federal labor legislation, noting that it is

_ often the product of compromise between strong conflicting

views and reiterating the warning of Holy Trinity Church .v.

United States, 143 U.S. 457, 459, that “a thing maybe with-

in the letter of the statute-and yet not within the statute, be-

cause not within its spirit, nor within the intenfion of its

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makers.’ ”* See, National Woodwork Mfegrs. Assn. v. N.L.R.B.,

386 U.S. 612, 619° (1967), reh. den. 387 U.S. 926, and cases

there cited; Wirtz v. Local 153, Glass Bottle Blowers Assn.,

389 U.S. 463, 468 (1968); Textile Workers Union of America v.

Lincoln Mills of Alabama, supra, 458. Such a literal approach ~

to the Railway Labor Act by the N.M.B, in its Case No.

C-2202 was condemned by the Ninth Circuit-in Pan Amer-

ican World Airways v. United Brotherhood of Carpenters

& Joiners of America, supra, and by the Solicitor General |

in his brief as amicus curiae on the petition for certiorari

therein, and certiorari therein was denied by this Court.

Yet this thoroughly discredited approach. to the complex

questions of*national labor policy has again been success-

fully (thus far) espoused, requiring that this Court grant

certiorari to determine if such a literal approach is correct

° x S~]

-inthiscase. ° ° *

' Turning to the legislative history of the current

‘Railway Labor Act, we find that in enacting the definition of

a4 “carrier” in a form more expansive than predecessor def-

initions, Congress appears to have had a “narrow focus”

aimed at a specific character Df abuses and at a specific class.

of ‘isolated evils’, Cf. N.L.R.B*v. Fruit & Vegetable Packers

& Warehousemen, Local ..760, 377 U.S. 58, 63 (1964). The

abuse sought to be corrected was the-use by railroads of

_ subsidiary organizations which the railroads controlled to

perform work that otherwise would have to be performed -

by railroad employees and thus to escape application of .

railway labor legislation to/ large groups of employees

whose employment was, in’fact, under the control. of the

railroads through their subsidiary shells.

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11 . So

_ That this was the evil understood by Congress to be cor-

rected is shown by the testimony of the sponsor and author of

the Railway Labor Act, Joseph B. Eastman, the Federal

Coordinator of Transportation, before the Senate, as con-

tained in the Report of Hearings of the Senate Committee on —

Interstate Commerce on S.3266, 73d Congress, Second Ses- —

sion. In his original appearance, Mr. Eastman noted that

‘ the new “carrier” definition sought to cover such companies.

as refrigeration car companies and structures and equip-

ment maintenance companies which functioned as “‘an inte-

gral part of the railway transportation system.” The defi-

om then proposed incorporated into the term “carrier”

companies who were “operating any equipment or facili-—

ties or furnishing any service included within the defini-

tion of the terms ‘railroad’ and ‘transportation’ as defined

in the Interstate Commerce Act.” Ibid., 10-11. George M.

Harrison, testifying on behalf of 21 railway labor unions,

- stated their primary concern to be with broadening the Act

to encompass “railroad owned and operated refrigerator

car lines.” Ibid., 35. The railroads’ spokesman, M. W.

Clement, objected to the scope of the definition as bringing

under the Act companies which did not belong there. [bid.,

56-59. Mr. Eastman then redrafted the definition of a

“carrier” in the bill to read as it now reads in pertinent

part. He testified that he had so drawn it to avoid “‘possible

conflicts with N.R.A. Codes” which covered non-rail indus-

tries and ‘“‘not to go beyond carriers and their subsidiaries

engaged in transportation.” This narrowing of coverage

to “railroad subsidiaries” was to avoid getting “into the

outside field.”’ [bid., 145-146. Congres then passed the

bill containing the definition as finally er by Mr.

Eastman.

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Thus it appears probable that Congress did not intend

.that a company which was engaged primarily in another

business should be treated as a “carrier’’ because it might

own or control a small railroad, but rather that subsidiaries

of railroad companies, performing work closely related to

railroad transportation, should not escape coverage merely

because of technically separate incorporation. The coverage

was to flow down from a central controlling stream, not

percolate upward from a minor spring. The literal approach

- espoused by the N.M.B., in the case of the Authority, pre-~

sumably makes the status ‘of the eight employees of the

Railroad Company contyol the status of nearly 500 employees

of the Warehouses where the Railroad Company does not

— and it is not able to control or manipulate the Ware-

ouses or the Authority. The “tail wags the dog.” Such an

absurd result does not appear intended by Congress nor

does it evidence a rational approach to the complex prob-

lem of the industrial relations of a maritime facility.

This Court should not decline to decide the questions

here presented, as did the court below, on the ground that

the administrative processes have not yet been finally ex-

hausted. Slavish deference to that essentially sound principle ©

will only result in an extensive period of uncertainty and

multitudious litigation for the many state ports authorities

over whom the N.M.B. now appears to be asserting juris-

diction.: Such uncertainty may itself forment labor strife.

It will upset delicate balances in federal state relationships

which rank as high in national priority as the relationships

of the Nation to.other nations. The exhaustion of the admin-

istrative process will not preclude judicial review of the ul-

timate question of whether the N.M.B. has acted in excess of

its delegated authority. The court below found only an ab-

13

4

sence of error of sufficient magnitude to invoke its juris-

diction, leaving open for later review the question of error

itself. From the history of the present case, and the pend-

ency of similar proceeding involving other state ports

authorities, the conclusion is inescapable that this precise

Question will ultimately be presented for determination.

Additionally, there is no substantial interference with

administrative discretion of decision making in now pro-

ceeding to determine “‘carrier” status. This determination

of status by the N.M.B., in the case of Petitioner, has been

made and an election directed. Only the ministerial certi-

fication of election results remains as part of the admin-

istrative process. Thus this court may review and decide

the “carrier” question at a time when it will enhance the

administrative process rather than impede it.

eer oe

’ *

Ce ep) err ene

’ °

P acme

14

a

CONCLUSION. S

For the reasons shown, granting of a writ of certiorari

by this honorable Court is clearly justified, and the petition

for a writ of’certiorari should be granted to settle the sub-

stantial federal questions involved.

Respectfully submitted,

*ARTHUR K. BOLTON,

Attorhey General of the State of Georgia,

132 State Judicial Building,

Atlanta, Georgia 30334.

HAROLD N. HILL. JR..

Executive Assistant Attorney General. _

COURTNEY STANTON.

? _ Assistant Attorney General.

\ | ERLE PHILLIPs.

WILLIAM.W. ALEXANDER. JR..

26 Pryor Street, N.E..

Atlanta, Georgia 30303. \

©

~ October. 1969

15

CERTIFICATE OF SERVICE.

I, Erle Phillips, one of the attorneys -for the Georgia

Ports Authority, amicus curiae herein, and a member of

the Bar of the Supreme Court of the United States, hereby

certify that, on the .... day of October 1969, I served cop-

ies of the foregoing Brief of the Georgia Ports Authority .

as amicus curiae on the several parties thereto, as follows:

On the United States and:on Warren S. Lane, as Medi-

ator, National Mediation Board, by mailing a copy thereof

in a duly addressed envelope with air mail postage prepaid

to Charles S. Whitespunner, Esquire, United States Attorney

for the Southern District of Alabama, at Room 311, Federal”

Building, Mobile, Alabama, and by mailing a copy in.a duly

addressed envelope with air mail postage prepaid to The

Solicitor General, Department of Justice, Washington, D. C,

20530. | :

“On Houston H. Feaster, individually and as Director

Alabama State Docks Department, and on the State of

Alabama by mailing a copy thereof in a duly addressed en-

velope with air mail postage prepaid to Willis C. Darby,

~. Jr., Esquire, Post Office Box 2565, Mobile, Alabama 36601,

and by mailing a copy thereof in a duly addressed en-

velope with air mail postage prepaid to Hon. MacDonald

Gallion, Attorney General of the State of Alabama, Mont-

gomery, Alabama. =

ERLE PHILLIPS}

Attorney for Amicus Curiae,

26 Pryor Street, N. E.,

Atlanta, Georgia 30303.