on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these

cases.

The judgments below, except that in the Delaware case, are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case-ordering the immediate admission of the plaintiffs to schools previously attended only by white children—is affirmed on the basis of the principles stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in light of this opinion.

It is so ordered.

No. 279, Misc. GOLDSBY . MISSISSIPPI. 305 U.S. 925 (1955). Supreme Court of Mississippi. Certiorari denied. Loring B. Moore and William R. Ming, Jr. for petitioner. Reported below: Miss. —.

-

No. 185, Misc. GOLDSBY. MISSISSIPPI. 352 U.S. 944 (1956). Supreme Court of Mississippi. Certiorari denied. Loring B. Moore and William R. Ming, Jr. for petitioner. Joe T. Patterson, Attorney General of Mississippi, for respondent. Reported below: - Miss. 86 So. 2d 27.

BOYER et al. v. GARRETT et al.
No. 6113.

(183 Federal Reporter, 2d Series)

United States Court of Appeals
Fourth Circuit

Argued June 30, 1950.

Decided July 17, 1950.

Action by Philip Boyer, and others, against Robert Garrett, and others, to recover damages and to enjoin defendants, as members of the Board of Recreation and Parks of the City of Baltimore, and others, from enforcing a rule providing for the segregation of the races in athletic activities in public parks and playgrounds subject to the control of the Board. The United States Dis

trict Court for the District of Maryland at
Baltimore, W. Calvin Chesnut, J., rendered a
decision, 88 F.Supp. 353, granting the de-
fendants' motion for summary judgment, and
the plaintiffs appealed. The Court of Ap-
peals, Per Curiam, held that the rule did
not violate amendments to the Federal Con-
stitution.
Affirmed.

Constitutional law 217

Rule officially adopted providing for segregation of races in athletic activities in public parks and playgrounds, subject to control of Municipal Board of Recreation and Parks, which did not deny substantially equal facilities and services to the different races, did not violate the First or Fourteenth Amendments to the Federal Constitution. U.S.C.A.Const.Amend. 14.

Dallas F. Nicholas and I. Duke Avnet, Baltimore, Md. (Edgar Paul Boyko and William H. Murphy, Baltimore, Md., on brief) for appellants.

Allen A. Davis, Baltimore, Md. (Thomas N. Biddison and Hugo A. Ricciuti, Baltimore, Md., on brief) for appellees.

PER CURIAM.

This is an appeal in an action instituted under the Civil Rights Act, 8 U.S.C.A. §§ 43 and 47, against the Mayor and City Council of Baltimore and the members of the Board of Recreation and Parks of that city. Its purpose is to enjoin the enforcement of a rule officially adopted providing for the segregation of races in athletic activities in the public parks and playgrounds subject to the control of the Board and to recover damages alleged to have been sustained because of the enforcement of the rule. The parties entered into a stipulation that for the purposes of this case no contention was made that the facilities and services furnished the different races were not substantially equal. The contention of plaintiffs is that, notwithstanding this equality of treatment, the rule providing for segregation is violative of the provisions of the federal Constitution. The District Court dismissed the complaint on the authority of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; and the principal argument made on appeal is that the authority of Plessy v. Ferguson has been so weakened by subsequent decisions that we should no longer consider it as binding. We do not think, however, that we are at liberty thus to disregard a decision of the Supreme Court which that court has not seen fit to overrule and which it expressly refrained from reexamining, although urged to do so, in the very recent case of Sweatt v. Painter, 70 S.Ct. 848. It is for the Supreme Court, not us, to overrule its decisions or to hold them outmoded.

We need not consider arguments based on the 1st Amendment or the Charter of the United Nations. The 1st Amendment manifestly has no relation to athletic contests, and there is nothing in the Charter of the United Nations which, if applicable here, is of broader scope than the provisions of the 14th Amendment in forbidding

Before PARKER Chief Judge, and SO- racial discrimination. PER and DOBIE, Circuit Judges.

Affirmed.

4 Civil Rights 4-3

The federal District Court for Western District of Pennsylvania had no jurisdiotion, under federal Civil Rights Act, of suit by Negro members of taxicab drivers' unson against taxicab company and union to a enjoin racial discrimination against plaintiffs by means of working regulations agreed to by company and unida acting under authority conferred by Jennsylvania Labor Relations Act, as union acted as its members' bargaining agent:ursuant to their consent as union member, not by virtue of any power conferred by statute. 28 U.S.C.A. § 1343(3); 43 P.S.Pa. §§ 211.1 et seq., 211.7(a).

Harold E. McCamey, Pittsburgh, Pa. (Richard O'N. Duff and Dickie, McCamey, Chilcote, Reif & Robinson, Pittsburgh, Pa., on the brief), for Yellow Cab Co. of Pittsburgh.

3

Chauffeurs, Warèhousemen and Hölpers. of America, of which union they werèmentbers, and two individuala, omt an officer of the Cab Company and the other an officer of the Union. They charged the Cab Com pany and the Union, which was their collective bargaining representative, with a conspiracy to discriminate against them and to segregate them because of their race by means of certain working regulations. They sought an injunction restraining the continuation of the discriminatory, practices, a declaratory, judgment that the working regulations in question were illegal and void, compensatory damages and rein statement of those plaintigs discharged for violations of the regulations. The defend ants filed motions to dismiss the complaint upon the ground that the district court had no jurisdiction to entertain it. The court sustained the motions and dismissed the complaint. 103 F.Supp. 847. Thomas H. Dargan, one of the plaintiffs, has appealed.

The appellant alleges that the Union was recognized by the Cab Companyĝas the extclusive bargaining agent for all of its taxicab drivers. Agreements were negotiated by the Union covering rates of pay and

Hymen Schlesinger, Pittsburgh, P., for working conditions "between the company appellants. and its drivers * on a uniform and equal basis and without discrimination." In October 1947 the Cab Company established its uptown garage and employed only Ne groes to operate taxicabs from that garage. All these Negro taxicab drivers joined the Union. At a meeting attended by the representatives of the Cab Company, the Union and a committee which represented

Ben Paul Jubelirer, Pittsburgh, Pa., for Union and Charles Weber.

Before MARIS, KALODNER and the Negro drivers of the uptown garage, HASTIE, Circuit Judges.

MARIS, Circuit Judge.

The plaintiffs, Negro taxicab drivers now or formerly employed by the Yellow Cab Company of Pittsburgh, an operator of a fleet of taxicabs in Pittsburgh, Pennsylvania, brought suit in the United States District Court for the Western District of Pennsylvania on their own behalf and on behalf of other Negro taxicab driver-employees, against the Cab Company and Taxicab Drivers Local Union No. 128 of the International Brotherhood of Teamsters, 40361 0-59-pt. 4-27

certain additional working regulations were promulgated. The appellant claims that the defendants conspired by means of these additional working regulations to deprive the plaintiffs of rights equal to those which the white taxicab driver-employees enjoyed by prohibiting them from cruising to pick up passengers; by relegating them to inferior, discriminatory status in picking up passengers; by requiring them to leave a railroad station orb stand if another cab driven by a while driver arrived, by denying them equal rights under a general seniority list in assignments to new taxicabs,

days off and selection of another garage; by unfairly relegating them to one garage in a particular section of l'ittsburgh in habited largely by Neguses and by imposing discriminatory penalties upon them. On this appeal the appellant relies, as the plaintiffs did in the district court, upon basis for asserting fedéral juriidleHow The first basis for jurisdiction relied pon by the appellant is Section 1331 of Title 28, United States Code, which gives district courts original Jurisdiction of all clit actions wherein the matter in controversy exceeds the sun or value of $3000 and arises under the laws of the United States. The appellant's proposition is that this case arose under Section 9(a) of the National Labor Relations Act, as amended, a law of the United States, and was, there fore, cognizable by the district court under Section 1331. The appellant contends that the Union was granted by this section of the act the right to represent as their exclusive bargaining representative all the drivers of the defendant company, both union and non-union members, white and Negro, in connection with the negotiation of collective agreements governing rates of pay and working conditions and that the grant of this right was conditioned by an obligation to bargain fairly and without discrimination. By agreeing to the additional working regulations under which the plaintiffs were employed and segregated in the uptown garage the Union, argues the appellant, violated this federal statutory obliga

tion.

The appellant relies primarily upon the cases of Steele v. Louisville & N. R. Co.,

1. (a) Representatives designated or se. lected for the purposes of collective bargaining by the majority of the employeen in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in rexpect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to preBent grievances to their employer and to buve such grievances adjusted, without the

1944, 223 US. 102, 65 S.Ct. 226, 89L.Ed. 173, and Tunstall v. Brotherhood, 1944, $23 U.S. 210, 65 S.Ct. 235, 89 LEd 187, to tain his proposition. In these cases the Supreme Court held that the Brotherhood of Locomotive Firemen and Enginemen, exercising the power granted by the way Labor Act to act as the statutory rep resentative of the craft of firemen, composed of white members of the Brotherhood and Negro non-members, was under a duty imposed by the act to protect equally the interests of all the members of the craft in behalf of whom it acted. The court said that the power conferred on the Brotherhood by the act must be exercised fairly and without discrimination between its own member employees and those employees who were not its members. This rule does not preclude the statutory representative of a craft from making contracts the terms of which vary in their application to individual employees by reason of differences in seniority, competence, type of work done, or other relevant factors, but the court pointed out that discrimination based on race alone is irrelevant, invidious and unauthorized. It is clear that the duty thus imposed upon a statutory collective bargaining representative by the Railway Labor Act is likewise imposed by the National Labor Relations Act upon representatives exercising similar power by virtue of that act.

The Supreme Court has said that Congress, by those acts, has created the relationship of principal and agent between the members of the draft and the bargaining representatives.3 Thus in Wallace Corp. v. Labor Board, 1944, 323 U.S. 248,

intervention of the bargaining representative, as long as the adjustinent is not inconsistent with the terms of a collective bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment." 29 U.S.C.A. § 159(a).

2. Wallace Corp. v. Labor Board, 1911, 323 U.S. 248, 65 S.Ct. 238, 9 LEI. 216.

3. Steele v. L. & N. R. Co., 1944, 823 U.S. 192, 65 8.Ct. 226, 59 LEd. 173.