PLUMBERS' UNION v. DOOR COUNTY

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Argument of David Previant

Chief Justice Earl Warren: Number 396, Plumbers, Steamfitters, Refrigeration, Petroleum Fitters, and Apprentices of Local 298, A. F. of L., et al., Petitioners, versus County of Door, a Municipal Corporation, et al.

Mr. Previant.

Mr. David Previant: If the Court please.

This case comes here on writ of certiorari to the Supreme Court of the State of Wisconsin.

It presents the question whether the state court had the jurisdiction to enjoin peaceful picketing at the site of a county building project during the course of a dispute between the union and the private contractors who were under contract with the County to build this project.

It involves the familiar question to this Court of preemption, question of federal v. state powers.

The facts are simple and substantially undisputed.

The petitioners are a local labor union and the Building Trades Council which is comprised of delegates from affiliated local unions.

The respondents are the County of Door, a political subdivision of the State of Wisconsin, the municipal corporation, Arnold Zahn, a plumbing contractor and Theodore Oudenhoven, a general contractor.

Early in 1957, the County determined to build an addition to its existing courthouse facility, and in accordance with Wisconsin's statute, let the job out for bid.

Number of individual craft bids were sought as well as a general contractor bid.

The respondent, Oudenhoven who was the general contractor on the job was an organized contractor.

He was working under contract with the various labor unions, whose members were in his employ.

The respondent, Zahn, the successful bidder for the plumbing contract was an unorganized contractor, neither he nor any of his employees worked under contract with the Plumbers' Union or were they members of that union.

The petitioners, that is the Plumbers' Union here, sought a contract with Zahn upon learning that he was bidding for or had received the bid, but they were unsuccessful.

When the job started, a single picket patrolled the premises of which the addition was being constructed.

They could carry the simple sign saying that the employees were not union and there was -- and there is no charge here that the picketing was other than peaceful and in complete compliance with all relevant laws.

As a result of the picket and as was anticipated, other union working men employed by other union contractors refuse to enter on the job site to perform the services, as a result of which the job came to a stop.

The -- the distinguishing feature here from the cases which have previously come to this Court was here, the County, joined with the two private contractors and filed a joint complaint against the local labor union and its affiliate, Building Trades Council.

Claiming that there was no labor dispute as that term was defined under Wisconsin law, and alleging a violation of Wisconsin statutes, the union defended both on the merits on what is relevant here on the theory of preemption.

There's no -- there's no question in this case, but that there were some $225,000 or almost a quarter of a million dollars of products used on this job which originated at points outside the State of Wisconsin.

The trial court found that the picketing was unlawful, found that it didn't comport with the Wisconsin definition of a labor dispute.

It also found that it was for the purpose of coercing the nonunion contractor to in turn force his employees to join the union against their will.

This is a violation of a statute of the State of Wisconsin.

According, and also, for the purpose of getting a contract for the union, trial court accordingly entered both temporary and finally, permanent injunction against all picketing.

The case was then taken to the Wisconsin Supreme Court.

Wisconsin Supreme Court on the merits found that there was unlawful picketing for an unlawful purpose.

The Court in -- for the basis of its opinion without discussing commerce, assume that there was commerce present, but found that there was no preemption.

And it reason that sense under the definition of “employer”, the political subdivisions of the State were expressly excluded, and since under the definition of “person”, there was no expressed inclusion of the sovereignty of the State.

Therefore, the Taft-Hartley Act in any of its aspect could not be applied to the particular dispute and therefore, there was no basis for it to invoke the theory or to apply the theory urged by the plaintiff -- by the unions that there was preemption.

And coming to this conclusion, it stated its expressed disagreement with a prior holding of the National Labor Relations Board, which is subsequently affirmed by the Court of Appeals of the Third Circuit.

This was the Local 313 case which we have referred to in our brief in which the Board and its brief amicus analyzes very thoroughly.

There was one concurring opinion, which accepted the decision and the construction of the statute as presented by the National Labor Relations Board in the Electrical Workers case as affirmed by the Third Circuit.

But felt that there was no preemption here because what was the application of the doctrine of preemption here would result in an intrusion on the essential functions of local government.

The Court reasoned that the construction of an addition to a courthouse was such an essential function of local government that it was not reasonable, not likely that Congress could have intended or that the Congress has in fact could have prevented the State from protecting that kind of a construction even if a labor dispute arose which under ordinary circumstances would come within the contents of the Board.

There was one dissenting opinion who applied the usual rules that have been expressed by this Court and who have pointed out the danger of conflict of remedies in this large area of public construction in the event the majority has prevailed.

The operating language of the statute -- I would profess it by saying this.

The particular facts which the Court found resulted in the violation of Wisconsin law would if also found by the National Labor Relations Board have resulted in a violation of federal law.

Without arguing the -- whether or not the record would sustain such finding or whether the Board would make such finding, although we believe that is implicit in the whole problem.

If these facts are also in violation of the federal act, then there would be no question of a conflict of remedies and that the superior authority of the Congress would prevail.

The operating statute in the federal act was so called Secondary Boycotts statute 8 (b) (4) (A).

The operating words are that it is an unlawful labor practice for a union to induce the employees of an employer to cease their employment.

It -- and the purpose is to force or require an employer or other person to cease doing business with any other person, of course they're operating in a difficult word is the word “person”, because we must conceive that by definition, neither the State nor its political subdivisions are employers and they come within the reach then of the Secondary Boycott provision of the Act only if they may be called persons.

Justice Felix Frankfurter: Mr. Previant, may I ask whether one is to infer from the opinion of Mr. Justice Currie that if the County were out of the case, if this -- or merely private employer and the union that -- that the Court, your court, would have found preemption.

Mr. David Previant: I believe so.

I believe so.

I think that's -- I think that's implicit in -- in Justice Currie's decision.

Justice Felix Frankfurter: I should think so true but at the core of your statement a little while ago, the opinion indicate that constitutionally they couldn't preempt in the case of a county, I did -- can you correct the statement, is there not?

Mr. David Previant: Yes, I -- I did see that.

Justice Felix Frankfurter: Tell me what the sentence on page 24 mean, the proposing of the open paragraph, we would have an entirely different problem if Congress have legislated that all peaceful picket -- picketing of an employer would engage in a business affecting interstate commerce is a valid activity, not subject to being enjoined by any thought if the -- if the activity is of a nature to call for preemption of state law then one has that situation in this case.

Mr. David Previant: Well, I believe that is the basic inconsistency in Mr. Justice Currie's concurring opinion.

He -- he actually doesn't meet the point.

He does say directly and I -- I don't believe my practical issue is the same as yours, Mr. Justice Frankfurter.

Justice Felix Frankfurter: I'm reading from your -- I beg your pardon.

I'm reading from the print in your petition for certiorari.

Mr. David Previant: Oh, I was looking at the --

Justice Felix Frankfurter: I'm sorry -- I --

Mr. David Previant: -- at the record before the Court which Justice Currie's opinion starts at page 34.

Justice Felix Frankfurter: Yes, alright.

Mr. David Previant: But he does say expressly at page 35 after acknowledging that the County could be a person that under our federal system of government, it is implied in the United States Constitution --

Justice Felix Frankfurter: Yes, he does --

Mr. David Previant: -- that the national government in the exercise of the powers may not prevent the State or any agency thereof from discharging some ordinary functions of government.

I think that both the presenting opinion and the concurring opinion demonstrate the fallacy right within the opinion when they suggest that perhaps if this were a lawful strike, if these were lawful activities, there would be no problem and they could not restrain that conduct even though it was an interference with an essential government, but then they turn to the fact that this is an unlawful activity under the state law.

Justice Felix Frankfurter: Because they don't know whether it's one or the other until the National Labor Board decides subject to court review.

Mr. David Previant: That so.

And we are perfectly willing for the purposes of our argument to conceive that National Labor Relations Board would similarly hold as with the Wisconsin Board, that this is in violation of the Secondary Boycott provisions of the Act, now that the matter had been submitted to the Board to the first instance.

If I have received temporary relief in the federal courts and also issue of desist order.

It seems that the very obvious and short answer to Justice Currie's position is that the entire theory of preemption is an interference with the essential activities of state government.

That is not the question.

The question is whether or not the Constitution has delegated to the Congress the right to act in a certain field and if it has, it cannot unlawfully intrude upon the function of state government.

It is only when it is acting outside of the authority which has conferred upon it by the federal constitution that it had unlawfully intrude upon the reserved powers of the State, and here of course we have the expressed delegated power of regulating the commerce between the States.

Justice Felix Frankfurter: Do you know whether -- can you tell me whether sovereign immunity so-called applies to municipality?

I suppose not.

Mr. David Previant: I -- I don't believe that it does and --

Justice Felix Frankfurter: Justice Currie said state or agency.

I don't think sovereign immunity governs -- preclude suits against cities, what about against county?

Can the case make a distinction?

Mr. David Previant: There is no distinction, at least -- certainly in Wisconsin law, there's no distinction.

I don't believe there is any distinction in the law generally on that point.

It seems to me that this Court only -- well, Justice, reiterated some of those principles in discussing the West Virginia case, wherein, in enforcing a tax fee, yes, they -- an employee of the state -- the Court held number one that of course the taxing of an employee of the State carries with it no unconstitutional overtones but number two, that even though in that part of the statute, which permits a levy against a person who is indebted to the taxpayer who owes money.

The fact that the word person does not include the State, did not preclude the collector of internal revenue from attaching wages doing only from the auditor of the State in that case to the -- to the employee.

That was -- that was the problem that concerned the Wisconsin -- the prevailing opinion, not Justice Currie, whether or not where you have an expressed exclusion with respect to the ordinary employer-employee relationship and no expressed inclusion in the term “person,” they could -- they could reasonably hold as did the National Labor Relations Board on the Third Circuit that the city or the County or the State was nevertheless a person within the reach of this Secondary Boycott provision and hence, a person who could seek relief and a person who would -- whose presence in a dispute of this kind would give rise to jurisdiction in the National Labor Relations Board.

Justice Felix Frankfurter: Am I wrong?

Your Chief Justice's opinion doesn't indicate that this raises a constitutional question, Justice Currie give some information --

Mr. David Previant: That's right.

Justice Felix Frankfurter: -- so that the sole question is, is it not when the construction of the word "person" and its adaptability or allocation to include a county of -- a county of the State.

Mr. David Previant: I -- I think so.

I think so.

Justice Felix Frankfurter: There is to it.

I don't mean that's all there is, but that's (Voice Overlap) --

Mr. David Previant: Yes, it's -- it's -- the very -- the very expression of what did the Congress intend.

Justice Felix Frankfurter: Whether this is a violation of your state law or the federal law is beside the point, isn't it?

Mr. David Previant: We -- we believe it is entirely beside the point.

That's right.

That this is a question of construction and this Court in construing the word person and the so-called piggy-back case, the railway case, had no difficulty in finding that the railroad company was a person within the reach of the Secondary Boycott provision although excluded from the definition of employer in a definitional section of a statute.

Justice Felix Frankfurter: But it wouldn't necessarily control a construction and application of the word person, not to exclude the railroad that that word also does not include a state or any branches of the State.

Mr. David Previant: I -- I think that you're right.

It doesn't follow automatically, but it seems the very -- the very reasons however, which led this Court to believe that the word person must embrace the excluded employer on that case should also lead this Court to believe that that same term should embrace the excluded employer in this case.

Now, the --

Justice William O. Douglas: You don't -- you don't argue that a county is a person.

Mr. David Previant: Yes.

For the -- for the purposes of -- of the -- of the Secondary Boycott provision of the statute, which talks about interrupting a contractual relationship or doing business with a person, a county is a person.

Justice William O. Douglas: Definition of a person doesn't seem to fit a county Section 2 (1).

Mr. David Previant: It -- it neither -- it neither includes nor it doesn't exclude.

Justice William O. Douglas: It doesn't exclude, but it -- it's hard to find a -- include it in individuals, labor organizations, partnership, association, corporation, legal represent -- trustee, banks (Voice Overlap) --

Mr. David Previant: I would suggest, Mr. Justice Douglas, that it is a municipal corporation.

Justice William O. Douglas: Well, a county is a municipal corporation?

Mr. David Previant: Yes.

Yes.

Justice William O. Douglas: That's a form of govern -- another Wisconsin law?

Mr. David Previant: Yes, it is.

As a matter of fact, I'd assume that it was a universal form of government for county operation.

Justice William O. Douglas: Corporation.

Mr. David Previant: But all the political subdivisions of the State of Wisconsin are referred to as municipal corporations.

As a matter of fact, the very pleading, if the Court will look at the caption, County of Door, municipal corporations, the County itself, which has described itself as a municipal corporation.

In its bill of complaint, it describes itself as a County of Door, a municipal corporation.

Chief Justice Earl Warren: Yes.

Mr. David Previant: The -- the Court by its questions has drawn out virtually the heart of our argument, the National Labor Relations Board has filed a brief amicus in which it has discussed the meaning of the word “person” as applied to municipal corporation and in support of the case which it had earlier decided and which the Wisconsin Board -- Court thought was bad law.

There is -- I know usually one goes to the legislative sources in all problems of construction and the Board referred during the course of its brief to an effort that was made by Senator Wagner back in 1938 to amend the definition of “person” to include a municipal employer.

The Board considered that is of legislative history.

Earlier, when it said that the term was not embraced, that is the term person did not embrace the municipal corporation and later, when it reversed itself after this Court's decision in the piggy-back case.

I -- I don't know the -- the Board of course says it has no -- no significance, so I agree with the Board.

We -- we just check the congressional record again and we call the attention of the Court to the fact that the time that Senator Wagner proposed his amendment that this was an act which defined only unfair labor practices on the part of employers.

It was some nine years prior to the passage of the Taft-Hartley Act which made it a -- by a par type act so to speak, and at that time, referring to the congressional record.

Senator Wagner was concerned solely with the fact that there are many municipal corporations or political subdivisions of a state, which had been receiving very lucrative contracts from the Federal Government, but that they had been engaging in unfair labor practices or what would have been unfair labor practices had they come within the definition of employer, and he thought that any person doing business with the United States Government should be required to comply with the laws of the Government as they apply to the private person doing business, the individual citizen doing business with the Government.

That was why in 1938, he had proposed that the -- that the definition of the word person be enlarged.

Well, that proposal apparently never was acted upon but it was presented in an entirely different context and an entirely different legislative environment so to speak than what we have today in determining this question.

I think one thing that I might emphasize at this point since the part of the legal question is already before the Court is that when we talk about public construction, we are talking about a tremendous industry in this country, and that when we talk about public construction for a political subdivision, we are talking also about the substantial part of that industry and we cite in our brief a source authority for the year 1957 that there is some $48 billion, $48 billion of public construction.

This was in the year 1957.

Of that 48 billion --

Justice Felix Frankfurter: Billion did you say?

Mr. David Previant: Billion, yes.

Of that $48 billion of public construction in 1957, some 14 billion was for the State or the Federal Government or its political subdivisions.

This is almost 30% of the total public construction in this country.

To sustain the argument of the Wisconsin Court would mean to exclude from the reach of the Act insofar as interruptions of interstate commerce are concerned.

This substantial portion, this 30% of all public construction in -- in this country, and -- and that, we believe is a -- is a compelling reason.

I'm -- I'm going to have to amend my statement.

I said $48 billion of public construction.

It's $48 billion of construction of which $14 million is public.

In other words, of the total construction in this country of $48 billion, 30% falls within the category of the kind of construction that Door County was doing and that -- unless the -- we are going to give the effect to the legislative purpose and scheme here as including the municipal corporation within the definition of the term person as it is used in Secondary Boycott, we are going to take out of the protection of the federal act, public employers, private contractors who are doing business for public employers, the employees of private contractors, because if Wisconsin is right, then even the Section 7 rights of these employees have not been preempted by the federal act.

Justice Felix Frankfurter: If you're right, all construction work by the United States Government directly of it, is it?A person would --

Mr. David Previant: No.

No, because in that instance, United States Government access an employer.

Now, we're not --

Justice Felix Frankfurter: I don't mean as an employer, if public construction done by outside contractors for Uncle Sam would be covered.

Mr. David Previant: Yes, yes, and -- and there had been cases before this Court.

This question has never been raised but there have been cases before this Court involving public construction, the U.S. Army, Atomic Energy Commission's housing projects.

Justice Tom C. Clark: (Inaudible)

Mr. David Previant: Yes, it does.

Justice Tom C. Clark: (Inaudible)

Mr. David Previant: No.

No, it includes a total of public construction.

That's right.

But as I say, the public construction projects upon which these disputes have arisen have been before this Court, but the question in this context has never been raised.

(Inaudible)

Justice Felix Frankfurter: Most --

Mr. David Previant: -- was one of them, incidentally.

Justice Felix Frankfurter: Mr. Previant, most public construction is at least in part and in good part performed by -- is -- is accomplished throughout the employers (Inaudible)

Mr. David Previant: I think that would be the situation, yes.

That -- that usually is performed by private contractors.

Again, the -- the urgency of the -- of the matter is that where the theory advanced by the State of Wisconsin to control this kind of case, we will have eliminated this vast amount of work and these vast numbers of employees and employers engaged in this type of work for the simple reason that on a particular day at a particular time, the very same works they ordinarily and customarily do is being down for a municipal corporation rather than for a private entrepreneur.

Chief Justice Earl Warren: Mr. Howe.

Argument of Donald J. Howe

Mr. Donald J. Howe: Mr. Chief Justice Warren, may it please the Court.

It is the position of the respondent Door County et al. that the essence of this case is the determination of the applicability of the Taft-Hartley Act to the factual situation and I would like to go in a little more in detail to the factual situation.

Door County had in the course of -- of its functioning as a municipal government let contracts for the construction of this courthouse addition.

The contracts were left as Mr. Previant has said to one nonunion contractor and nine or ten union contractors as soon as the nonunion contractor went on the job, a picket was placed on.

At that time, the courthouse was partially in the state of construction.

The record shows that there was interference with the business and conduct of the operation of the governmental offices in the courthouse.

The problem then was what to do.

We had let the bids as the Wisconsin statute states to the lowest responsible bidder as a requirement of the law.

The law required that there be separate plumbing, heating and ventilating, electrical and construction contracts so that there was no opportunity to join the plumbing contract with the general contract.

The -- I believe that the cases under Wisconsin law states that we couldn't use tax money to buy us contract or to pay them the profit on this contractor and say we're going to give them another contract because I believe that that would be an illegal use of funds.

The -- although I didn't know it at the time that the case was in the no man's land.

So the process of construction in the courthouse was at a standstill.

The only recourse that we had was to apply to the Circuit Court for an injunction.

And the injunction was granted within ten days, which of course did not impede for commerce, rather, accelerated them.

It's those facts --

Justice Potter Stewart: Did the courthouse get built?

Mr. Donald J. Howe: Yes sir, it was finished in like October, yes Your Honor.

It's -- it's that factual situation to which we have to relate the interpretation of a person, an employer-employee under its federal act.

The 20 -- Local 25, the piggy-back case of course referred to railroads and because the Railway Management Act excludes employer-employee relationships.

That was carried through into the 313, the Electrical Workers 313 case, which is the stumbling block in this case.

If the Third Circuit Court of Appeals was right and their decision didn't go into basis with the decision.

It merely said the National Labor Relations Board took jurisdiction and we will go with that.

The Board had -- in a case involving a municipality, similar to this.

The Board had previously said a municipality is not a person under the Act.

The Local 25 case changed the determination of the Board and under the 313 case, the Third Circuit Court says, no, you may in a situation like this bring your action before the Board where it involves a municipality because a municipality is defined as a person under the act.

The peculiar situation it seems to me involved here is that under the definition of the Act, the State has control of its employer-employee relationships, but when a stranger picket comes on the job affecting the aberration of the municipality, there is no control, and it would seem that in the aberration of the municipality, it would be more important, or at least as important to have control of stranger picketing as -- such as took place in this particular case.

The Board -- the -- this Court has many times stated that the areas of control by the State are left open.

There is no determination made which rules this case other than the Third Circuit Court case.

Justice Hugo L. Black: What is the present controversy between you and the union?

Mr. Donald J. Howe: There is no present controversy, Your Honor, except in -- that there is a permanent injunction of fact at the moment, but the --

Justice Hugo L. Black: Did the County give a bond?

Mr. Donald J. Howe: No, that isn't the controversy, Your Honor, the courthouse is completed the -- everything is done.

It's just that the injunction is --

Justice Hugo L. Black: There was an injunction issue.

Mr. Donald J. Howe: Yes, Your Honor.

Justice Charles E. Whittaker: (Inaudible)

Mr. Donald J. Howe: The only thing pending is the fact that the permanent injunction is still on effect, but it has no actual effect because the courthouse is complete.

Chief Justice Earl Warren: I suppose -- another contract tomorrow though, they would be bound by the permanent injunction.

Mr. Donald J. Howe: If there were another contract or -- or additional construction, the injunction would still be effective.

Justice Tom C. Clark: (Inaudible)

Mr. Donald J. Howe: That's right, Your Honor, it would only be if it were the same factual situation where you have the union another contract.

Justice William J. Brennan: (Inaudible) is against conduct, only at that side of that particular courthouse, isn't it?

Mr. Donald J. Howe: I didn't understand you, Your Honor.

Justice William J. Brennan: The injunction restrains conduct only at that particular courthouse site, does it not?

Mr. Donald J. Howe: I would say that that's right, Your Honor, and it would be an additional work upon that particular courthouse.

It would be only be effective --

Justice William J. Brennan: That's what you have -- have before that restraint could be applicable.

Mr. Donald J. Howe: That's right, Your Honor.

The injunction is specific, I believe, and that it states that no picketing at this courthouse construction site.

Justice Charles E. Whittaker: (Inaudible) what does it operate?

Mr. Donald J. Howe: I don't believe it operates on anything, Your Honor.

Justice Hugo L. Black: The injunction runs -- runs against any picketing on the job site known as Door County courthouse, I think --

Mr. Donald J. Howe: Yes, Your Honor.

That courthouse addition is now completed.

Justice Felix Frankfurter: The men lost their job?

Mr. Donald J. Howe: Yes, Your Honor.

Justice Felix Frankfurter: It's all closed up.

Mr. Donald J. Howe: The courthouse is functioning, everything --

Justice Felix Frankfurter: The courthouse is functioning.

Mr. Donald J. Howe: Yes, Your Honor.

Justice Felix Frankfurter: This contractor may be, God knows on what other job?

Mr. Donald J. Howe: That's right, Your Honor.

Unknown Speaker: (Inaudible)

Mr. Donald J. Howe: The county state of Door County is Sturgeon Bay, Wisconsin, Your Honor.

Justice Hugo L. Black: Is your county suable for getting the injunction if it were wrongfully obtained?

Mr. Donald J. Howe: Yes, Your Honor, we had to provide bond.

Justice Hugo L. Black: You did provide a bond.

Mr. Donald J. Howe: Yes, Your Honor.

Justice Hugo L. Black: (Inaudible)

Mr. Donald J. Howe: Yes, Your Honor.

Justice Hugo L. Black: There is an outstanding bond.

Mr. Donald J. Howe: I believe the bond is probably ceased to --

Justice Felix Frankfurter: From what?

Where --

Mr. Donald J. Howe: -- construction.

No -- yes -- the injunction bond would, I assume, still be outstanding.

Justice Felix Frankfurter: For -- for what -- what's the bond?Secure cost on appeal or what, or damages --

Mr. Donald J. Howe: To secure damages as I recall it, Your Honor.

Justice Felix Frankfurter: Damages to the improper issue of the bond?

Mr. Donald J. Howe: Yes, Your Honor.

Justice Hugo L. Black: That was the first question I asked.

You didn't understand if there was any outstanding bond and there is Wisconsin -- under Wisconsin law, the man getting an injunction has to give a bond.

Does it --

Mr. Donald J. Howe: Yes, Your Honor.

Justice Hugo L. Black: -- pay any damages that may be suffered by the wrong -- issued for the injunction?

Mr. Donald J. Howe: Yes, Your Honor.

I'm sorry I misinterpreted your question.

Justice Charles E. Whittaker: (Inaudible)

Mr. Donald J. Howe: It -- to the best of my knowledge, it was a principle in the bond.

I'm quite sure it was.

Chief Justice Earl Warren: The -- on page 2 of the record, the memorandum decision of the -- of the Court is it follows from what has been said that the temporary injunction will be issued, and a bond of $2,000 to be furnished by the plaintiff Door County and file with the court -- the city court of Door County prior to the presentation of the Court and the filing of the temporary injunction.

Mr. Donald J. Howe: Yes, Your Honor, I would call upon them.

Chief Justice Earl Warren: So it did -- it did run from the County to --

Mr. Donald J. Howe: Yes, Your Honor.

Justice Hugo L. Black: That bond I assume, in fact the ordinary one would give the -- if you should lose -- if the County now should lose, their adversaries could sue for attorney's fees and expenses of -- to which they've been put in connection with the case, does it not?

Mr. Donald J. Howe: I assume that that's a provision of the bond, Your Honor.

I -- I'm not certain whether attorney's fees would be part of it or not.

Justice Hugo L. Black: The cost of the (Voice Overlap) --

Mr. Donald J. Howe: Cost, I would assume, Your Honor.

Justice Felix Frankfurter: Would that cover the -- the course of litigation through whatever courts it may go including this Court?

Mr. Donald J. Howe: I believe that there may be provision in the statute for enlarging the bond if necessary in order to keep the injunction.

Justice Felix Frankfurter: Specifically to pursue Justice Black's question.Should the County lose in this Court assuming the litigation that relied that could go on or rather if we cut that out because if it's allowed, it will not depend on my question, would you say the counsel for the County that is the petitioner should succeed in this Court and therefore, the judgment of your Supreme Court would set aside that it could on the basis -- it could invoke the bond to get the course of having gone to the Supreme -- having had to go to the Supreme Court of Wisconsin, and then having been allowed to come to the Supreme Court of the United States.

Mr. Donald J. Howe: To the best of my knowledge, that would be one of the provisions of the bond to cover such costs, Your Honor.

Justice Felix Frankfurter: Therefore, the -- therefore, the money value of what is involved is still alive although everything else is closed up at the courthouse.

Mr. Donald J. Howe: That's right, Your Honor, the bond is about anything like that.

Justice Felix Frankfurter: Right.

This is really a suit of taking $123, isn't it?

Mr. Donald J. Howe: I don't know what the amount --

Justice Felix Frankfurter: I mean if there was.

Mr. Donald J. Howe: But I -- if I my proceed --

Chief Justice Earl Warren: Yes, proceed, please.

Mr. Donald J. Howe: It -- it's really a suit for a great deal more than that, Your Honor.

It involves the area of no man's land, which was instituted by the Guss case, which is of course a source of a great deal of problems.

In the petitioners' argument, they cite the fact that their great deal of instruction will be affected by this decision.

The fact situation which can't be overlooked is that there are many, many areas of illegal activity, which have no recourse under the present law.

The operation of the Guss case in taking away from the state courts any jurisdiction even though the National Labor Relations Board has said it cannot exercise jurisdiction because of a limited ability, has multiplied the problems of everyone who has to deal with labor relations problems because you have illegal activity, which is uncontrolled and uncontrollable and the -- apparently, there is no legislation, which is in the process now to control that situation and I would suggest that I would take the position that this area should be limited rather than extended because if this case is decided for the petitioner, it will extend this area of no man's land all through any contracts dealing with counties and extend it beyond the position of the Board before the Local 25 case because under the 25 case of course, the County will then -- if the amount of construction was too small being a no man's land area.

Justice Potter Stewart: This -- this case was in the so-called no man's land because of the amount of money involved did not meet the minimum --

Mr. Donald J. Howe: It was stipulated --

Justice Potter Stewart: -- jurisdictional requirements self-imposed by the Board, is that it?

Mr. Donald J. Howe: Yes, Your Honor.

Justice Potter Stewart: And your suggestion is that a great deal of this 30% of $48 billion, whatever that is, $15 billion would actually be in packages below the minimum monetary jurisdictional standards of the Board.

Mr. Donald J. Howe: A municipal construction of the cities, I would suggest that that may be very well be true.

And in addition to that, Your Honor, there may very well be other statutes and other jurisdictions that affect the letting of contracts in the same manner that the letting of the contract was affected by the Wisconsin statutes, so that it has to be left in a certain manner to the lowest responsible bidder.

The petitioner suggests that there's an alternative under Wisconsin law that the County can directly employ labor, which of course removes the safeguard that the statute was designed to impose to protect the taxpayer's money and not to have a contract that's open so that people can enter into it without the competitive bidding and without the controls that the statute imposes on the bid of contracts.

I believe that's about all the argument I have.

Chief Justice Earl Warren: Very well (Inaudible).

Rebuttal of David Previant

Mr. David Previant: I just address myself to the whole question I believe I have a minute or so.

Chief Justice Earl Warren: Yes, yes, you may.

Mr. David Previant: It appear -- appears to me that while the -- the courthouse may have been completed, the dispute has not ended.

There is still a dispute which we have been prevented from pursuing and we could still pursue that suit at the courthouse today, still protesting the fact that nonunion work and nonunion material went into that courthouse or if this gentleman should ever return to the courthouse to complete whatever he may not have completed or to repair whatever he may have done poorly.

In addition to the other points suggested here is the bond.

There's also the great public question involved in this kind of a matter and I -- I can recall that when we argued the Wisconsin public utility cases here.

There was one involving the arbitration and one involving the strike.

This Court held that the Wisconsin law has been preempted insofar as the strike was concerned, even though that strike had been over for some two years, it held that there was mootness on the arbitration award because the contract term during which the arbitration award would have been effective had been expired and a new contract had been negotiated.

Justice Charles E. Whittaker: (Inaudible)

Mr. David Previant: Well, I -- I'm not so sure that the bond itself was not required by Wisconsin statute to remain in effect pending the final appeal and determination of the matter, but further that under Wisconsin statute, even though through carelessness on either side, the bond has been permitted to expire, we were nevertheless if we prevail here, be permitted to -- to tax our cost and damages from the Circuit Court on through the Wisconsin Supreme Court.

So, that -- that's the point I'm sure would never be moved, and it also appears to me that if the Court is acting wholly without jurisdiction, as we believe this Court did, that there must be a way to get a pronouncement of this Court that such holding without jurisdiction action shall not be repeated in the future.

Otherwise, we would never get determinations in this Court on very vital public questions.

Justice Potter Stewart: Mr. Previant, in answer to your question addressed to you by Mr. Justice Douglas as to how a county fits in to the statutory definition.

It's not -- I appreciate it's not an exclusive definition.

Mr. David Previant: Yes.

Justice Potter Stewart: Section 2 (1) (2) of the Act quoted on page 23 of your appendix.

You -- you pointed out to the Court that in Wisconsin at least, a county is a municipal corporation, but I suppose a state is not a corporation, is it?

Mr. David Previant: I don't know whether it is called a corporation.

I think the -- the term corporation is used very loosely as it is applied to any governmental function.

I -- I would suggest this Mr. Justice Stewart in addition to the fact that this is a municipal corporation that again, taking the broad intention, which this court must spell out from the act of Congress, that the term "person" would include a -- an entity whether it is a live or an artificial entity, whether it is a corporate body or an unincorporated body.

It might be an association, maybe -- maybe an unincorporated state is an association of citizens, but it seems to me that the touchstone is not whether we come within the literal language because obviously, they don't even refer to municipal corporations in the -- in the --

Justice Potter Stewart: Well --

Mr. David Previant: -- language.

It becomes a problem of construction and this Court has never hesitated to put municipal corporations, states, federal agencies within the meaning of a term “person” as used in many other laws.

Justice Potter Stewart: Yes.

Mr. David Previant: And certainly every reason would suggest that it should not hesitate in this kind of a case.

Justice Potter Stewart: It's true though, isn't it, that the -- up until this Court's decision in Local 25, the National Labor Board had view opposite to the position that your (Voice Overlap)

Mr. David Previant: Yes.

Yes.

Justice Potter Stewart: And that it changed that view only upon the -- only upon the basis of and after this Court's decision in Local 25.(Voice Overlap) --

Mr. David Previant: Yes, and -- and on reconsidering the policy questions which had led to (Voice Overlap) --

Justice Potter Stewart: In -- in the light of this Court's opinion.

Mr. David Previant: Yes, that's true.

Justice Potter Stewart: Now, there of course, verbally, there was no difficulty at all in -- in holding that a railroad, which is quite obviously a corporation, was in the meaning of the statutory definition of person.

Was that relied on in the opinion?

I don't know.

I read the opinion.

Mr. David Previant: Well, the -- the Board did exactly what --

Justice Potter Stewart: (Voice Overlap) --

Mr. David Previant: -- this Court did.

The -- the Board said, “Although a railroad is -- is,” -- the Court said, “Although the railroad is not within the definition of an employer, obviously, Congress didn't want the Secondary Boycotts running rampant throughout our economy.”

And -- and the Board said that reasoning makes a lot more sense than our original reasoning when we said if we can't control the unfair labor practice which the municipality might commit against its employees, then we shouldn't control the Secondary Boycott when somebody commit against the municipality.

The Board originally thought it was balancing the convenience and the equities.

After this Court's decision, pointing out that there was no sound reason to balance those equities in the railway labor case, it decided there was no sound reason to do so in the municipal case and I think correctly.

Justice Felix Frankfurter: Mr. Previant, before you sit down.

I should like to revert to the moot problem.

Seeing for myself (Inaudible) to whom I can speak, you have to satisfy me on the bond and on no other grounds to satisfy me that this case is not moot and I refer you to Barker Painting Company against Local Number 734, 281 U.S.462.

And if I want to pursue a little bit more, the bond question.

Will this bond go to the temporary and the permanent injunction?

I suppose the best way to (Voice Overlap) --

Mr. David Previant: I think we -- I think we would have to check that.

I --

Justice Felix Frankfurter: The best -- one of the best ways in my difficulty is to really get the bond or bond or bond.

Mr. David Previant: Well, I'm sure that we can make that available to the Court.

Justice Felix Frankfurter: And if you'll be good enough to look at 281 and --

Mr. David Previant: We surely will.

Justice Felix Frankfurter: -- and with Chief Justice's permission make such comments as you wish to as to controlling relevance of that decision.

Mr. David Previant: Might be with the Chief Justice permission make further comment on other aspects of the question of mootness --

Justice Felix Frankfurter: All right, yes.

Mr. David Previant: -- only.

Chief Justice Earl Warren: Yes, counsel of course may respond --

Unknown Speaker: (Inaudible)

Chief Justice Earl Warren: Sure.

Surely.

Justice Charles E. Whittaker: (Inaudible) isn't it?

Mr. David Previant: I think -- I think possibly at that point, that's true, but --

Justice Charles E. Whittaker: (Inaudible) isn't it that right?

Mr. David Previant: In the event, it was improvidently granted, that's right, but I -- I would hesitate to make an affirmative or answer or denial until I've had a chance to check it.

I would say in either event, if we are talking now about what the bond is supposed to do, the -- the County of Door is a very responsible litigant in this case, and if we are entitled to collect damages for what the County of Door has put us through from the Circuit Court on through this Court, then certainly, this case should not be mooted.

Justice Charles E. Whittaker: (Inaudible)

Mr. David Previant: I think -- I think the bond is merely a device of securing the liability.

I think whether the bond is posting -- whether it's posting sufficient quantity, it makes no difference.

If -- if they were not entitled to prevail in the cost, we are entitled to collect our cost in damages.

Justice Hugo L. Black: May I suggest that you refer to that when you send in your brief?

I'm sure that in some of the States, bond is not necessary (Inaudible)

Mr. David Previant: Thank you.

Justice Hugo L. Black: I don't know about Wisconsin.

Mr. David Previant: Thank you.