TEAMSTERS UNION v. OLIVER

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Argument of David Previant

Chief Justice Earl Warren: Number 49, Local 24 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, et al., Petitioners, versus Revel Oliver, et al.

Mr. David Previant: The Court please.

Chief Justice Earl Warren: Mr. Previant, is that the way -- you pronounce Previant.

Mr. David Previant: That's right Your Honor.

Thank you.

This is quite another antitrust case, equity case, in quite a different posture.

It is here under the -- to the Ohio Supreme Court and the Court of Appeals of the Ninth Judicial District of Ohio, presents the question of whether a State has the jurisdiction to declare illegal under a State Antitrust Act, a provision of a collective bargaining agreement entered into between a union and employers who are engaged in interstate commerce.

It is, in short, a preemption case.

The petitioners are a local labor union and its officers who have their office in Ohio and whose membership is domicile and principally in Ohio.

The respondent's transportation companies are common carriers.

They are certificated, both by the State of Ohio and the Interstate Commerce Commission.

They are downside in the State of Ohio and they make deliveries in many states outside of that State.

And the court below, they were defendants.

Here, they are respondents since they have taken any position which is the same as the position of the plaintiff in the court below, the respondent, Revel Oliver, who also is a resident of Ohio.

He is a member of the petitioner union.

He is engaged in the business of leasing trucking equipment to the respondent carrier.

I say, he leases trucking equipment.

He himself is not in the transportation business.

He occasionally drives his own truck in the service of the carrier.

The contract which is involved is a collective bargaining agreement between many unions, many carriers, many employer associations in the Midwest area.

It is known as the “Central States Over-the-Road Motor Freight Agreement,” and it covers principally what is known as “Over-the-Road or Inter-City Trucking.”

There are some 3500 employers who are parties to this agreement.

They were at the time that the litigation started some 45,000 to 50,000 truck drivers who were covered by the terms of the agreement.

In Ohio, there are some 500 employers who are parties to the agreement, some 6000 drivers at the start of this litigation who are also covered by the agreement.

From 5 to 10% of those drivers own their own equipment and leased that equipment and drive it in the service of a certificated carrier.

Justice Charles E. Whittaker: May I ask this, if the contract (Inaudible) collective bargaining agreement.

Mr. David Previant: That's right Your Honor.

Justice Charles E. Whittaker: Now that maybe subsequently, was it not, (Inaudible) of Mr. Oliver's contract with the different carriers involved here under this (Inaudible)

Mr. David Previant: Well, they were a series of contracts.

I believe the particular contract was negotiated after those leases.

There were other similar contracts which were negotiated before the leases.

There had been earlier litigation in this matter.

This is the latest of that litigation.

Mr. Oliver had prior to this instant litigation started, other litigation involving the predecessor contract.

Justice Charles E. Whittaker: I thought it might be important to realize that this (Inaudible) that's the Oliver contract with the union (Inaudible) carriers involved (Inaudible) to which you refer?

Mr. David Previant: I -- I can't tell you that directly because I know that there were a series of contracts and we have never been able to enforce this particular contract with respect to the respondent Oliver or with respect to the respondent carrier because of ex parte restraining orders which had been entered against such enforcement which I think puts those leases, those individual contracts in a different situation than they would ordinarily be.

The --

Justice William J. Brennan: But do I understand Mr. Previant that the -- what do you call it?

Kind of a lease, not the actual lease.

Mr. David Previant: Well, there are leases.

Justice William J. Brennan: Lease?

Mr. David Previant: There are -- yes the --

Justice William J. Brennan: (Voice Overlap) underway for the use of his -- this equipment as to that.

Mr. David Previant: Well, the respondent Oliver owns, I think, six tractors and four trailers.

He leases these equipments to carriers who are certificated and are permitted to engage in a transportation business.

Justice William J. Brennan: Not all of it for this particular carrier?

Mr. David Previant: In this particular case, yes.

I think the two respondent carriers were under lease arrangements with the respondent Oliver.

He is not necessarily limited.

He can enter into that kind of a lease arrangement with any certificated carrier.

He needs no certificate to do so.

Justice William J. Brennan: Well now, by whom the drivers of a leased equipment employed by this respondent certificated carriers of -- by Oliver?

Mr. David Previant: That's -- that's the depth of our argument, Your Honor.

The drivers in this case were employed by Revel Oliver contrary to and in violation of the collective bargaining agreement which the carriers had entered into with the union.

But the enforcement of which both the carriers and the union had been restrained from.

That gave rise to this litigation.

Justice William J. Brennan: In other words, when they leased a piece of equipment, the tractors or something, the lessor was -- by the driver, his own employee.

Mr. David Previant: In this particular case, that's right.

And as we shall show, that is not a common practice.

Justice William J. Brennan: And then you said, I think that on occasions or did you say more frequently, Oliver himself drove a piece of equipment?

Mr. David Previant: Very rare occasions.

On very rare occasions according to this record, he would drive himself a piece of equipment in the service of one of these respondent carriers.

The -- I think it is also pertinent to note because of the issues involved in this case that the identical contract provision is found also in a multiemployer, multistate contract, covering some 10 Southern States.

It is also found in a multiemployer, multistate contract covering the New England States.

It is also found in a multiemployer unit in New York and Pennsylvania, and Virginia.

And I think the significance, of course, will demonstrate itself as the points that are involved -- are developed here.

It is only one article of this particular contract which is involved.

Incidentally the contract has been bodily placed into the record at page 144.

The Court will note that it is approximately 100 pages long and at the particular contract provision with which we are here concerned is approximately 7 pages long.

Now, the one article that is involved --

Justice Charles E. Whittaker: Define (Inaudible)

Mr. David Previant: That is the collective bargaining contract.

In order to avoid confusion of -- I will refer to a lease when I refer to the arrangement between the lessor and the carriers, and I'll refer to the contract when I'm referring to this collective bargaining contract or labor contract.

The Article 32 which is here involved deals principally with this relationship between the employers and what is known in this industry as an owner-operator.

It is sometimes referred to with the contract also as an owner-driver.

In other industries, he may be called a vendor or peddler.

He may be called a gypsy but it's essentially a man who owns his own piece of trucking equipment and drives it himself.

And this Article 32, as I say, deals principally with that kind of employee.

And in that regard, as I've said, the respondent Revel Oliver is not typical because he owns more than one piece of equipment and he himself drives infrequently.

The owner-operator incidentally has no certificates and no licenses.

He cannot engage in the transportation business as such.

The only way he can use his vehicle in common carriage is by associating himself by lease with a certificated carrier.

Justice Charles E. Whittaker: Or at least what they call (Inaudible)

Mr. David Previant: Yes.

Yes.

This Court has -- has had before a litigation involving the kinds of leases which the Interstate Commerce Commission thinks it ought to have.

Justice Charles E. Whittaker: Actually, as I understand here, this record is (Inaudible) really an independent contract.

Mr. David Previant: Yes.

Yes.

That's right.

That's right.

Justice Charles E. Whittaker: He couldn't be both, wouldn't he?

Unless it were a device (Inaudible) all to satisfy the (Inaudible)

Mr. David Previant: I think that's right.

And that again is one of our problems here.

Well anyway, in this particular instance, Revel Oliver brought this action to restrain the labor unions and the employers from enforcing this particular provision, Article 32 of the Labor Union Agreement.

It was his complaint that this agreement restrained competition in the leasing of motor vehicle equipment to certificated carriers.

Justice William J. Brennan: And was that --

Mr. David Previant: And is -- excuse me.

Justice William J. Brennan: Was the complaint addressed as a whole of that seven pages or just --

Mr. David Previant: No.

This complaint was addressed to all of Article 32 and it is all of Article 32 which the Court adjudicated.

Justice William J. Brennan: Now, may I ask one other question to you?

Mr. David Previant: Surely.

Justice William J. Brennan: I notice that this agreement is stated, that is quite collective bargaining agreement executed by the negotiating committee with the carriers.

I think it's January 1955 that it became effective later upon gratification by the locals.

But like following that at 145 was the Motor Trade Transportation Agreement between A. C. E. and Oliver and that fair state in December of 1954, is that right?

Oh, 1953.

December 28, 1953, it appears at 149.

Now is that the law that we're concerned with at least as the A. C. E.?

Mr. David Previant: That is one of them.

Now, you will notice that there's a whole series of them Your Honor.

There's one following that, that is dated June 20th, 1955.

Justice William J. Brennan: Well that seems to be the one with interstate.

Mr. David Previant: Interstate.

Justice William J. Brennan: Yes.

Mr. David Previant: I think that you will find that there are others, well --

Justice Charles E. Whittaker: (Inaudible) in the United States, the collective bargaining agreement?

Mr. David Previant: Yes, they do and the record shows that was a series of renewals or substitutions as equipment may have been change or transferred or purchased.

That's right.

The -- and part of the complaint was that this particular provision of the labor of contract was a price fixing device in violation of the Ohio Antitrust Act.

That case was tried before a Court of original jurisdiction which found against the union over the Union's contention that it neither violated the Ohio Act and the principal contention that the lower courts had -- the Ohio Court had no jurisdiction in this matter because it was a matter which is covered solely by the National Labor Relations Act.

And on appeal to the intermediate appellate court in Ohio, the determination of the trial court was affirmed and that Court made these findings and they're set forth in the record at pages 256 to 257 and summarized in our brief at page 23.

Prior to that, Mr. Oliver was an independent contractor in his relationship to the certificated carrier, that this particular provision of the contract, Article 32, was not protected by Section 7 of the National Labor Relations Act.

That Article 32 had violated the Ohio Antitrust Act.

That Mr. Oliver would be damage and injured if it were enforced as against him.

That he has no remedy under the National Labor Relations Act, that the state court has jurisdiction.

And therefore a restraint was entered which restraints the -- both the carriers and the Union from interfering with any of Revel Oliver's leasing arrangements, from interfering with the rates which might be charged for the equipment which is leased and from enforcing Article 32, to fixed rates in any manner.

Upon appeal to the Ohio Supreme Court, it was held that there was no debatable constitutional question we're here now.

The general background of Article 32, I think, is familiar to this Court because of matters that had been before the Court involving the same kind of a provision.

It has been in the -- in this uniform multistate, multiemployer agreement from the inception of multistate negotiations in 1938.

It has been amended and modified from time to time to meet the changing of circumstances, but essentially, it was an effort on the part of the unions together with the employers sometimes willingly and sometimes reluctantly to meet and attempt to cure the various evils which were attended upon in owner-operator kind of an operation.

Justice William J. Brennan: Tell me Mr. Previant, does any of the state court determinations turn on the existence or not of an employment relationship between Oliver and the respondent?

Mr. David Previant: There was a determination in the lower court who thought it was immaterial to the case that Revel Oliver was an independent contractor.

The appellate court indicated the same but it is not clear whether they were talking about him as an independent contractor in the leasing of vehicles plus drivers or whether he was -- they were talking of him as an independent contractor when he himself drove the vehicle in the service of one of these certificated carriers.

Justice William J. Brennan: Well, I'm thinking for the purposes of the advancement point under the National Labor Relations Act, are we going to -- do we have an issue here to determine whether or not any of Oliver, himself or his employees are employees for the purposes in that fact?

Mr. David Previant: I think the issue this Court has to determine is that if there's a debatable question that should have been determined by the National Labor Relations Board and not by the Ohio Court.

Justice Charles E. Whittaker: Now, (Inaudible)

Mr. David Previant: The earlier cases in this Court involving the Milk Wagon Drivers and the Bakery Sales Drivers delineates fairly well, the kind of economic problem that has been created by the so-called owner-operator or vendor system.

And this Court that far back said that the realities of industrial such strike require that the Court take cognizance of the problem of competition for wages that is created with the owner-operator method of distribution as distinguished from an employee-driver distribution.

Similarly, when the American Trucking Association case was before this Court, this Court took judicial knowledge and accepted I should say the findings of the Interstate Commerce Commission and its regulation known as MC-43.

That the owner-operator created a very serious safety problem in this industry and this Court affirmed the right of the Interstate Commerce Commission to meet that problem by promulgating regulations with respect to what shall be the contents of those leases and what shall be the method of compensation under those leases and what shall be the requirements for examination and inspection in interchange of equipment if those owner-operators or any person leasing vehicles were to lease them to a certificated carrier.

Article 32 generally ensures the employee status of the owner-driver and I will break it down a little bit more in detail.

But just to get a general picture, it assures the payment of union wages and the enjoyment of union conditions, the protection of seniority, it requires payment of social security upon these owner-drivers, workmen's compensation, unemployment compensation.

They must get their health and welfare benefits, their pension benefits, their vacations, their seniority just as any other driver under the particular provision which is now before the Court.

The inquiry of course, now it is whether or not the specific provisions of this article directed to this purposes come within the matrix of collective bargaining which is protected, fostered by the National Labor Relations Act or whether a state may say, “We have an Antitrust Act here, we find this thing to be in violation of Antitrust Act regardless of his repercussions with respect to collective bargaining in this multiemployer, multistate area, regardless of whether the National Labor Relations Board that come to the same conclusion that we have come to.

Whether release rates provided for in this agreement there are reasonable relationship to the protection of wages, whether or not the subcontracting clause, there is a reasonable relationship to the purposes for which Labor Unions are formed that we can ignore the National Labor Relations Act.

And we can assert the illegality of this particular contract clause because for suits that violates the Antitrust Act of the State of Ohio regardless of whether it maybe legal or illegal in any other state or under the National Labor Relations Act.”

It is of course our position that it clearly falls within the area of wages, hours, and working conditions contemplated by the Congress, whether adopted by the National Labor Relations Act.

Justice Charles E. Whittaker: What -- what -- you said (Inaudible) are involved.

Mr. David Previant: I refer to Article 32 and I should like to break down Article 32 and its essential provisions so that you may understand why we take the position we do that this is so closely related.

Justice Charles E. Whittaker: May I (Inaudible)

Mr. David Previant: Surely.

Justice Charles E. Whittaker: Do you confirm that there is no power in the union (Inaudible) to be contained in independent contracts for requirements of services and the leasing of equipments?

Mr. David Previant: Well, I think that if you will permit me to rephrase the question.

The union does have a right to negotiate with respect to employees of that employer.

If in that negation, it should say, there shall be no subcontracting, it has got to affect a transportation contract with someone else because he could not then subcontract.

Justice Charles E. Whittaker: (Inaudible) with respect with all terms and conditions of employment?

Mr. David Previant: That's right.

Justice Charles E. Whittaker: But you have no power, as I understand it, to negotiate in effecting the problem -- that he can say that it is in the contract.

Mr. David Previant: I think that -- that is the entire question if I may say you Mr. Justice Whittaker.

Because if we are right in a particular provision that it does relate -- relate itself directly to wages, hours, and conditions of employment, any other agreement must have necessity yield although we are not trying to inject ourselves into an area in which we don't belong.

And again I say this.

Supposing we say that there shall be no subcontracting, there shall be no use of other equipment until all of the equipment of this particular employer is put in service which is a provision found in this contract.

Now, that of necessity is going to restrict somebody else who wants to lease a piece of equipment to this carrier, from leasing it at anytime when there's unused equipment.

We say in this contract that if equipment is leased we want that equipment to be driven by an employee of the carrier.

Now this affects Revel Oliver because he wants to lease the equipment with a driver.

Now he may do it to anybody he wants, he can enter into that lease.

But if we have an agreement with a particular carrier and this is a legitimate labor agreement, it's legitimate, (Inaudible) clause.

He is going to be inhibited from exercising a privilege of having a lease which has a different term.

And we don't say we have the right to rewrite those leases.

But we say if we have a right which the Act gives us and we insist it does have, to negotiate in the area of wages, hours and conditions of employment, we will on necessity from time to time infringe upon other relationships which our employer may have with other persons.

Justice Charles E. Whittaker: (Inaudible) wages, hours and conditions (Inaudible) enforces upon any collateral independent contractors, you have a right to do that?

Mr. David Previant: I think we're getting into an area of balance at that particular point.

In other words, we wouldn't say that in order to protect our wages, we're going to keep everybody from Baltimore from working in the District of Columbia.

Now that may have a direct effect upon us and it might, under reasonable circumstances be a negotiable matter.

But that -- but again it's a matter of balance if in doing that, other conflicting social or economic interest are involved, that I think the job is for the National Labor Relations Board.

And ultimately I suppose this Court to determine whether or not we are confining ourselves to wages, hours and working conditions in a reasonable and in a contemplated matter or whether under the guise of that kind of negotiation, we have extended ourselves into areas in which we do not properly belong.

Justice Charles E. Whittaker: (Inaudible)

Mr. David Previant: It has -- it has one further jurisdiction in that regard or perhaps two.

There's a provision of the Act which makes it an unfair labor practice for -- in every Union to coerce an employer or an independent contractor into membership in the labor union.

So, we'd have at least that.

I think you would then --

Justice Charles E. Whittaker: The first provision in the Act now --

Mr. David Previant: Relating to independent contractors.

Justice Charles E. Whittaker: (Inaudible)

Mr. David Previant: Well, I think this raise -- it might, within jurisdiction of the board.

It says to the union or it says to the independent contractor.

Should any union try to force you in, this is an unfair labor practice and we'll adjudicate it.

Justice Charles E. Whittaker: In other words they are independent contractors?

Mr. David Previant: Independent contractors and not employees for the purpose of the Act and they -- as they have defined in the Act.

But there are many places in which activities of an independent contractor or matters relating to an independent contractor will come within the jurisdiction of the -- of the Act.

Justice Charles E. Whittaker: In the Ohio Court, you were (Inaudible) Oliver under these contracts that antedated the collective bargaining agreement (Inaudible) contracting relationship (Inaudible)

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

Justice Charles E. Whittaker: (Inaudible)

Mr. David Previant: Well, it's difficult for me frankly to say on what basis with it.

We -- we don't quarrel about it, that Revel Oliver being an independent contractor and so far he is in the leasing business.

But that's not incompatible with his being an employee when he drives a truck.

And that's not incompatible with our saying, we don't care if he leases the equipment but when you do, we want our employees to be driving that equipment and not strangers from the outside because we want to preserve our work for the people who are right here at this plant, working for this carrier.

In other words, if we've got 10 people who are employed by this particular carrier, we wouldn't want that carrier to hire 10 pieces of equipment driven by persons who are stranger to the carrier with our people who are employed.

Now that's a matter for negotiation.

We have negotiated that kind of a provision.

Now insofar as the negotiation of that kind of a provision may do some damage to Mr. Oliver, then we plead guilty.

But we say this is a matter which we have a right to do and we can't conceive of any economic negotiation that it was not going to in some ways embarrass or injure in some way some similar or competing economic interest.

That is what collective bargaining is.

Justice Hugo L. Black: Is that the kind of controversy that we held with the labor dispute within the Norris-LaGuardia Act?

Mr. David Previant: Precisely so.

Justice Hugo L. Black: (Voice Overlap) union against the Meadowbrook Carrier.

Mr. David Previant: Meadowbrook Carrier, precisely so.

You also held so in the (Inaudible) cases involving the bakeries.

You also held so in the -- I think it was another bakery case.

Justice William J. Brennan: Do I understand that on the pleadings, actually this bargaining, the collective bargaining agreement (Inaudible) negotiated on behalf of the fact that the actual employees (Inaudible) under the unit --

Mr. David Previant: No.

Justice William J. Brennan: -- of which you were bargaining.

And that you were insisting upon this provision to protect the wages, hours and other conditions that you would obtained for those who are in the unit for which you bargained, namely, the members of the employees of the certificated carriers.

Is that it?

Mr. David Previant: That is precisely our position, Mr. Justice Brennan.

Justice William J. Brennan: And you insist that that was the kind of issue that would get into controversy which is properly for this position by National Labor Relations Board under the statute.

Mr. David Previant: That -- that is our position and that has been our position throughout this litigation.

Section 4 which we have been talking about at least obliquely and perhaps directly of Article 32, deals with this problem of who shall drive leased equipment.

Now that -- that Section provides that all leased equipment shall be operated by an employee of the carrier.

And it also provides, the language which the National Labor Relations Board in this Court has used.

That the carrier reserves the right to control the manner, means and details often by which the owner-operator performs the services as well as the ends to be accomplished.

In other words, we wanted to make perfectly sure that this man on a piece of leased equipment, usually the fellow who owns just that single piece of equipment.

When he enters the service of a carrier with whom we have a contract will become an employee of that carrier.

Will be subject to and get the benefits of the labor agreement which we have negotiated with that character -- with that carrier.

And so we wrote the right of control test into that particular section so that there could be no doubt that we were talking and not what we wanted and what we negotiated was the fact that only employees of the carrier would be driving leased equipment.

Section 5, incidentally has the other requirement of which I have already spoken that the carrier must use his own available equipment before he goes to the outside and use the equipment.

Justice William J. Brennan: (Inaudible)

Mr. David Previant: There is a union shop provision, I believe it's Article 2, Mr. Justice Brennan.

Justice William J. Brennan: (Inaudible)

Mr. David Previant: It -- well, it so happens that Revel Oliver has been a member of the union for a number of years.

But it would apply to him if under the language of the contract and under the Taft-Hartley Act, if he drove in the service of the carrier for 30 days or more, he would then --

Justice William J. Brennan: (Inaudible)

Mr. David Previant: Yes.

Justice William J. Brennan: (Inaudible)

Mr. David Previant: Yes, it does.

And -- and only however in his situation as a driver of equipment and apparently we were unsuccessful in selling this concept to the Ohio Courts.

They kept on looking at Mr. Oliver as a lessor of equipment.

The -- in our opinion ignored the aspect of his relationship in which he's a driver, driving like everybody else on the highway subject to all of the terms and conditions.

And who -- if we have no right to negotiate his wages and conditions could very well destroy the very wages and conditions we have negotiated for every driver who sits on the same truck and drives on the same highway and is subject to the same environmental problems of stresses and strains, and economic stresses and strains as any other driver.

Justice William J. Brennan: (Inaudible)

Mr. David Previant: They would become -- yes, because they would become employees of the carrier.

They are not his employees.

Justice William J. Brennan: Yes.

But they're not by reason of the agreement, in the collective bargaining agreement (Inaudible)

Mr. David Previant: No.

Justice William J. Brennan: By reason of this.

Mr. David Previant: By reason of our agreement with the carrier that anybody who drives equipment in his service shall be his employee and shall receive the full benefit of the union contract.

Now, as I say this is a subcontracting clause and we have cited in our brief the Board's decisions on the right of the union to negotiate subcontracting clauses, the Court decisions, the arbitration, decisions, I don't think at this date, there can be any argument about it.

Nevertheless, the Ohio Court in voiding Article 32 in toto also voided Article 4 and said that we could not negotiate the employee status of drivers of leased equipment who are operating in the service of an employer with whom we have a contract.

Now the other provisions of this contract and instead of going into detail, we have them analyzed in the brief.

Eliminate a lot of common evils which had grown up in connection with this and we have the record on it.

We have the -- one of the chief employer negotiators who testified section by section as to the origin of the Article.

How it came about.

Why the union wanted it?

What was the specific condition which they were seeking to meet?

All of that is set forth in our brief and I won't burden the Court with it.

I want to get to Section 12 which is the key provision and which we feel the Ohio Courts were so obsessed with that they lost complete cite of the general picture and perhaps this is our fault and not the Ohio Court's fault, perhaps we didn't present it properly.

But Section 12 of this agreement -- of Article 32 sets forth minimum lease rates for a certain described and defined types of equipment.

I want to emphasize that this has no application to any equipment which is not driven by the owner.

When Revel Oliver leases six pieces of equipment to a carrier, he can lease it for any rate he wants.

The only way this contract infringes upon that is we say that the driver of that equipment must be an employee and receive the benefits of this contract.

But he is free to negotiate any kind of a lease rate he wants for the use of his equipment.

But when he drives his own equipment, this minimum lease rate applies just as it applies to the more typical owner-operator who owns only one piece of equipment and comes to the service of the carrier who has a contract with us and starts to drive that piece of equipment in the service of that carrier.

And I -- and I think the reason is so simple perhaps that's why we -- we haven't persuaded the Ohio Courts.

And let me give you -- we have the exact example in the brief with the exact rates which are set forth in the brief.

But in the interest of simplicity, let me give you a simple example.

In this kind of operation generally, the rate of pay is per mile.

Over the road long distance drivers and they get paid per mile as to the total number of miles which they may have driven during the course rule.

Now let's assume that this particular driver's rate is 10 cents a mile.

Now he has leased his equipment to the carrier, and understand this again, it is only when he is driving his own equipment that this particular Article 5 Section applies.

Now, he has leased his equipment to the carrier, too and he has leased this equipment to the carrier for 5 cents per mile.

Now he's getting a total of 15 cents a mile for every mile he is driving in the service of carrier.

But lo and behold after several weeks he finds out that it is costing him 8 cents a mile to operate his equipment.

In other words, he is taking a beating in his equipment pocket for 3 cents a mile.

Where does it come from?

Now, the 10 cents a mile driver's rate is no longer a 10 cents a mile driver's rate.

It's a 7 cents a mile driver's rate.

Because he has had to take that 3 cents subtracted from his driver's rate and put into his equipment pocket so that he comes out on the equipment.

This kind of a thing is what this contract was designed to prevent and only that.

Justice John M. Harlan: (Inaudible) there was no power (Inaudible) of a truck.

Mr. David Previant: That's right.

Justice John M. Harlan: Therefore those (Inaudible) for other trucks not driven by Oliver did violate the Ohio law.

Mr. David Previant: Yes, you're right Your Honor but they didn't decide that.

We -- we would not have complained if they had said that because we haven't tried to fix the rates on the other trucks.

We haven't tried to fix the rates on any truck belonging to Revel Oliver except the truck which he himself drives.

Justice John M. Harlan: (Inaudible)

Mr. David Previant: I -- I doubt that that is sufficient but I say it is not because again, if we are right in our basic premise, that what we have done here is negotiated wages, hours, and working conditions, the fact that one person maybe an employee only occasionally would not mean that we were wrong in principle or that the National Labor Relations Board has lost its jurisdiction because he's only a sometime employee as compared to a full-time employee.

And that's all that -- that's happened here and he was a sometime employee.

But he was no different than any other employee who might drive occasionally.

We want to make sure that he does not undercut the contractual provision whether he's an owner-operator or whether he's a driver himself.

If we're right in our basic theory and believe we are that we've got a right to protect these wages and that what we have done here is not negotiated a profit for anybody.

But have merely established a minimum lease rate to assure the payment of wages and incidentally owner-operators can go out and negotiate anything about the minimum they pleased.

There is no inhibition on that.

The record shows that this minimum lease rate is set so low that as a matter of practical effect, most carriers are paying more than the minimum lease rate.

And the one carrier who testified is one of the largest carriers in the country.

He said that he could not operate his equipment for what we establish as a minimum lease rate in order to protect wages.

In other words, we may not actually be giving those drivers all of the protection that we try to give them.

We may have set a lower rate than is required by the circumstances.

But in setting that rate and the record shows this, intensive studies were made of the various factors which entered into determining how much it does cost to operate trucks of various sizes over their normal life span.

The carriers did most of the work I believe and the union did some on their own.

We -- we have to find out the cost of the equipment and depreciate it.

The gas, the oil, the tires, the maintenance, everything that enters into the cost of operation of the piece of equipment was considered when we set the minimum lease rate and we tried to fix it right there.

Justice Charles E. Whittaker: (Inaudible)

Mr. David Previant: Well, he's not an independent contractor Mr. Justice Whittaker because under our contract he becomes an employee.

Justice Felix Frankfurter: (Inaudible) by a subsequent contract, dealing with his employment would abdicate that he is an independent contractor.

Mr. David Previant: I think the answer is that we were in the very unfortunate position of not being able to enforce the contract that made him an employee so the Court said that he's an independent contractor.

But the very courts that said we can't make him an employee, the courts have found he was an independent contractor.

In other words, and it's in the record, but for the restraining orders that had been entered in this case, the carriers, and they so testified, would have complied fully with the provisions of our contract.

Have they complied fully with the provisions of our contract?

It would have been no doubt that Revel Oliver when he drove his own truck was an employee and we had established a minimum lease rate only for that piece of equipment.

And again, I beg to emphasize just as strenuously as I can, we have no interest in any other piece of equipment which Revel Oliver may own or lease to anybody except the piece he drives and then we are interested in the rates.

The only other interest we have is that when he leases that equipment to somebody else, that equipment be driven by an employee of that one and that Mr. Revel Oliver, not the brokery, human services, as well as equipment.

That's our interest.

Justice Hugo L. Black: Your -- your argument is based on the act of preemption, is all you are arguing.

Mr. David Previant: We -- we have another argument here on -- I see preemption but it's preemption of one form or the other, that's right.

Justice Hugo L. Black: Preemption, what do you claim as preempted?

What could the board do?

Mr. David Previant: Well, first let me say that I don't believe that whether the board could do something or not is necessarily pertinent because as I read the decisions of this Court, it makes no difference whether there's a remedy.

Justice Hugo L. Black: Suppose he did something.

Suppose --

Mr. David Previant: Well, there are many things -- there are many things --

Justice Hugo L. Black: As a whole that this contract is a kind that's not protected by the Act, what would be the result then?

Should it do that?

Mr. David Previant: I think -- I think the board can do that.

Justice Hugo L. Black: And suppose it did?

Mr. David Previant: If -- if the Board did that, we would have to find some other way in which we could afford protection through this particular kind of thing.

Justice Hugo L. Black: Then what you are saying is as I understand it, the sum total of what you're saying and the consequence of what you're saying would be that the board has the right to pass on this rather than the State of Ohio --

Mr. David Previant: That's right.

Justice Hugo L. Black: -- in the first inference, at least.

Mr. David Previant: That's right Mr. Justice Black.

And if the board disagrees with that, then we're subject to the Antitrust Act in Ohio and every place else.

If the board disagrees with us that, number one, we've got a right to get the subcontracting clause.

Number two, that these minimum lease rates, if the board disagrees, says that these minimum lease rates do not in its opinion, have a reasonable and direct relationship to this entire matrix of collective bargaining which has been confided to them by the Congress then we're through with this kind of provision in any State unless the State has more than an Antitrust Act.

Justice William O. Douglas: How about the Interstate Commerce Act?

Mr. David Previant: Unless we have the other preemption trial in which we have raised here and we think that there's great merit because of the fact that we do have this detailed regulation of leases at least up to this point made by the Interstate Commerce Commission and MC-43.

Justice William O. Douglas: But getting back to the (Inaudible) do I gather, what you're telling us is, your primary interest on these lease rates (Inaudible)

You don't care how much Oliver to get for the lease (Inaudible) of the equipment --

Mr. David Previant: Excuse me.

Justice William O. Douglas: -- operated by other drivers because all of the other drivers had to be paid the regular employee rate that the (Inaudible) contract driver, is that right?

Mr. David Previant: That's our sole interest.

Justice William J. Brennan: But in the case of Oliver (Inaudible) he gets no rights than any driver (Inaudible)

There's a threat to the wage structure --

Mr. David Previant: That's right.

Because if you multiply Revel Oliver by many hundreds or thousands in this area then we have of course lost the protection of the contract because each one of those fellows driving his own equipment, taking a beating on the equipment then, has got to take a beating on the wage end and he's undercutting our wages and he does that.

We're not getting the benefits of our agreement.

Now, to show that there is some reasonable relationship to what we're doing into collective bargaining, we only point out that the Board has said that items like stock ownership options are vulnerable.

The cost of meals in company-owned cafeteria, the rent paid for company-owned homes, group insurance, pension, all of these things while they are not stated in terms of 8 cents an hour or 8 cents a week have a direct relationship to the wage structure at a particular place, and we say that this too has that direct relationship.

And this Court has said in this seniority case involving the Ford Motor Company that the union has a wide discretion in dealing with both exceptional and typical employment conditions.

And this is one of the unusual employment conditions which -- at least it's an -- it's unusual in industry generally.

It's peculiar to the trucking industry.

It's a matter which as I've said, the unions have been negotiating on and had tried to protect the employees and the owner-operators on for some 20 years already under this contract.

Justice William J. Brennan: (Inaudible)

Mr. David Previant: Well -- and I -- I would not want to have my answer considered in agreement that a charge is necessary because there -- there are many areas --

Justice William J. Brennan: What you're arguing is --

Mr. David Previant: Yes.

Justice William J. Brennan: -- that is properly exclusive to the jurisdiction of the Board.

Mr. David Previant: Well, yes.

Justice William J. Brennan: (Inaudible)

Mr. David Previant: I think that's true but we also argued that whether or not there's a remedy is not important because just like picketing and striking is within the jurisdiction of the board.

But where the board or this Court has had --

Justice William J. Brennan: Protected activity.

Mr. David Previant: Yes.

And they're not to be -- need not be remedied.

But -- and we have set this forth I believe more extensively in our reply brief, Revel Oliver could have complained that when we went up on a strike in 1955, we were trying to compel him, an independent contractor to join a union under the provision of the statute which I referred to.

He could have filed a petition for an election trying to establish a unit of his own trucks and the people who drove his own trucks.

The employers might have filed a charge of unfair labor practice saying that this was not a bargain of the matter to begin with.

We went on strike among other things to get this.

Now, the employers at that point might have -- might have gone to the board and said, “Wait a minute, these fellows are striking to get us to violate the Ohio Antitrust Act.

We want to file an unfair labor practice charged against them.”

This is not bargaining matter that's why they're not bargaining collectively in good faith.

They could have done that.

There were and are remedies available that that becomes important.

We don't believe it is.

I think what is important is what was the intent?

Is there a reasonable relationship to that intent and have we gone about our business in such a manner although we may have violated a state law.

That state law should not be part of us, a right which the Federal Act gives to us.

Justice Charles E. Whittaker: What significance would that (Inaudible)

Mr. David Previant: I think initially it has some significance that he might had been bound by the contract that was made.

It was never seriously urged and -- but I don't believe it has -- has any significance except that it may very well be so that in other relationships in past years under this contract, he did become an employee and became a member of the union.

The -- I suppose the thing that I or I should keep on emphasizing because again I -- I'm afraid that we didn't do it hard enough, is that we don't care what Revel Oliver gets for his equipment.

If he is an owner-operator like every other owner-operator, he is driving his own piece of equipment.

We want to be sure he gets the wages.

And we believe we have a right to say that when he leases his equipment to somebody under contract with us and he doesn't have to but when he does, then the people who drive those trucks shall be employees of the carrier and come under this contract.

And at that point, of course we don't care what the -- what Revel Oliver is getting for the piece of equipment they drive.

Again, we're interested principally in the man who owns and drives his own single piece of equipment and that's all that this contract is about.

And we don't know if it's immaterial, whether the state property in terms of this Antitrust Act.

It's immaterial whether the State was right or wrong under its law, as to whether or not this man is an independent contract.

The inquiry didn't have a jurisdiction to make those determinations and come to that result without impinging upon rights which we have under the Federal Act or which the Federal Government has said shall be adjudicated solely in the federal process.

Justice Hugo L. Black: Is anything unique in the holding, if there should be a holding that in the labor appeal that a man specified as an independent contractor by state law is an employee under this Act?

Mr. David Previant: Oh no.

It happens in all fields and especially in the labor dispute.

I mean it's cited in our brief.

Cases in which the National Labor Relations Board has said, “This man can be a lessor when he leases his equipment but he can also be an employee when he drives it.”

And --

Justice Hugo L. Black: I'm not talking merely about drivers but is there anything unique in holding in other types of activity?

Mr. David Previant: I don't believe so --

Justice Hugo L. Black: I think we have some cases on that a number of times.

Mr. David Previant: Well, I'm sure.

This Court has -- has always said that what maybe an employee under the Internal Revenue Act may not be an employee under the Wagner Act or vice-versa.

I think this Court has always looked upon the -- that question in the context of the particular law which is before of the Court and what was the purpose and the intent of the Congress when that law was drafted?

Who did they intend to encompass within the reach of that law?

And it can depend also upon the different facts but surely it should not depend upon the different adjudications in 48 different states which is what we would get into if we say here Ohio is going to make the adjudication under its Antitrust Act.

And then per chance New York at a later date and per chance Kansas at a later date and per chance Mississippi at a later date.And we think --

Justice Hugo L. Black: If it be true that -- there has to be a review of a -- of the decision as to whether or not a man is an employee or an independent contractor, should we decide that before the board act upon it?

Mr. David Previant: Well, this Court has in some cases made the ultimate determination and in some cases it has said it is not for this Court to make a determination but for the Labor Board.

It would seem to me that in these kinds of cases where you -- you do have a lot of room for expertise because the question of what is directly related to negotiable matters, it would be well for the board to make the initial determination rather than for this Court to do so.

But I would not presume to say to this Court that it has to be one way or the other because I believe this Court in preemption cases has in some instances made the determination without the matter as going to the National Labor Relations Board.

That this was a protected activity or this was in a preempted field and therefore the States had no jurisdiction.

In other instances, this Court has said, “Well, we don't know what the board will do when it gets to it.

When the particular matter gets to the board but we do know that the State can't do anything about it.

That it is a matter for board adjudication."

They say what the -- what the Court feels might be appropriate and in this case -- well, it doesn't matter what the Court feels because just reading the Court's decisions, you -- you would then adjust to that in -- in different types of situations.

In the short work stoppages, you -- you said no, you called a halt right there.

In the strike situations, in the public utility situations, you said no right there.

In some of the secondary boycott situations, you said, “Well, we don't know what the board will do but surely the State has no right to do anything about it.

We will let the board make the final decision in these kinds of matters.”

Justice William J. Brennan: Bringing out that, how far would it cover?

Are you suggesting (Inaudible) will subcontract to -- any subcontracts in Ohio or unless the employee or that firm should pay (Inaudible)

Mr. David Previant: Well, I don't think we've done this Mr. Justice Brennan.

I think that the automobile workers like any other union can go to their employer and say, “We've got a machine shop.

We've got confident help.

Don't you find this workout?

We want it here.”

I think they've got a right to do it.

They do it particularly, I think you'll find it in most major contracts in the country.

We haven't tried to set a price for anybody.

We could -- I believe that we had wanted to.

I believe that we might have forced a nationwide strike and said that we'd do it in under any circumstances on any carrier under contract with us to ever use an owner-operator.

I think that is a legitimate marketing demand.

It always has been.

Now, we affected the compromise.

Chief Justice Earl Warren: We'll recess now, Mr. --

Print this transcript Transcript: 

Argument of David Previant

Justice Hugo L. Black: Uelmen, you may proceed with the case which you have before us.

Mr. David Previant: If the Court please.

I think that I have some five minutes left of my time.

I was so advised and I should like to devote that very brief time to making more definitive answer to a question which was put by Mr. Justice Whittaker at the beginning of the argument yesterday.

The question as I recall it was whether or not there was any significance to the fact or should be attached to the fact that these leases or contracts of transportation or at least the one which appears in the record was executed prior to the execution of the 1955 contract which was the subject of litigation.

I feel that the findings of the Ohio Courts and the judgment of the Ohio Courts make it clear that this case was not litigated on the idea of any malicious interference with an existing contract right, but that it was litigated on the idea that this contract was per se in violation of the particular statute of the State of Ohio which is here involved.

At Page 256 of the record, it appears the findings of fact in the judgment of the Court.

And I would call to this Court's attention, finding 2 (d) that Article 32 squarely is in conflict with the public policy of the State of Ohio as reflected on Section 1331.01 Revised Code.

And it is void and unenforceable.

The Court goes on in its judgment and it's the first paragraph of its judgment to say that the defendants are hereby perpetually restrained and enjoined from entering into any agreements one with the other or carrying out the effects, requirements or terms of any such agreement which will require the alteration, cancellation, or violation of plaintiff-appellee's existing lease or leasing agreement or any such agreement hereafter renewed or renegotiated and entered into.

The Court then goes on in subsequent paragraphs to restrain these defendants from any such contracts in the future and perpetually enjoins and restrains us from it anytime enforcing Section 30 -- Article 32 of the contract.

I think throughout the litigation, the opinions of the Court, the findings of the courts below, the judgment of the courts below, the question presented was whether or not, this article of this contract was per se void not whether or not it happened to interfere with any particular existing lease arrangement of Revel Oliver or anybody else is.

I might say in that regard that if that were all that were involved in this case, that matter could have and probably would have been settled in the collective bargaining table.

And I would assume that we do not have any right to enter into a contract at this time which would completely destroy existing contracts which a carrier may have with someone else.

That's a matter for bargaining and I supposed it's a matter for exclusion of existing contracts during the course of bargaining.

But that isn't this case.

This is not the case of where the plaintiff comes in and asked only that we refrained from maliciously interfering with an existing agreement.

He comes in and says that our collective bargaining contract is completely void contrary to the public policy of the State of Ohio as expressed in the Antitrust Act of the State of Ohio and therefore we are perpetually restrained from enforcing that contract as to him and as to anybody else.

Not only as to existing contracts but as to contracts he made, enter into with carriers in the future.

So we believe that that particular point was not an issue.

I would further point out as I indicated yesterday that the 1952 contract containing the identical provision, Article 32 was restrained upon its execution and while it was under the cover of that restraint, that the 1953 lease was entered into.

And then that restraint was again imposed upon the 1955 contract subsequently litigated all the way through to completion.

So, as I said yesterday, if these restraints have not been imposed, the carrier as he testified would have been in compliance with the contract and many of the issues which were adjudicated in Ohio under -- under those facts would not have been subject to adjudication in our opinion.

The --

Justice William O. Douglas: Where is Article 32 in the record?

Mr. David Previant: Article 32 is set forth --

Justice William O. Douglas: (Inaudible) of discussion.

Mr. David Previant: -- bodily at page 144 of the record in which the contract itself appears --

Justice William O. Douglas: Thank you.

Mr. David Previant: -- and the particular article itself Your Honor.

Justice William O. Douglas: I'll find it here.

Mr. David Previant: Can be located it at page 38.

It is also set forth in each opinion of the -- of each Ohio Court and it is also set forth I think at length that in the brief of the respondents here.

Justice John M. Harlan: Mr. Previant, what if preemptions were held here, what could the Labor Board do about it?

Mr. David Previant: Well, if the -- I think there are number of ways in which it can be submitted to the Labor Board.

It can be submitted in the posture of whether or not when we ask for this kind of an agreement whether we are bargaining collectively and in good faith.

In other words, is this within the area of either compulsory or permissive bargaining which this Court refer to in the Borg-Warner case.

Now if we are insisting that an employer signed this agreement with this article in it and if the Labor Board is satisfied that it so unrelated to wages, hours, and working conditions, it could find us guilty, so to speak, of an unfair labor practice under the Taft-Hartley Act.

And do an order restraining us from seeking to negotiate this particular article.

That is one way in which it could have been presented to the board.

It could have been presented to the board by Mr. Oliver in one or two postures.

He might have gone to the board and said that we were committing an unfair labor practice because we were insisting that he, as an independent contractor, become a member of our labor union.

That is a specific unfair labor practice under the Act.

Labor union has no right to force an independent contractor to become a member of a labor union.

He could have complained about that.

He might have filed a petition for representation claiming that he and his employees or rather that his employees were a separate unit for the purposes of collective bargaining.

And the board in that proceeding could have determined whether or not he was an employer, whether or not his employees -- were employees of his and whether or not, we could make them employees of someone else.

As a matter of fact, there's a proceeding now pending in the Court of Appeals, growing out of these very same circumstances although the parties are not identical, in which as a result of this restraining order, the union did make a request upon the so-called fleet owners to bargain with the union pending the resolution of this problem in the courts.

And when the fleet owners refused to bargain with the Union, the Union struck the fleet owners and picketed at the premises of A.C.E.

Now the board, contrary to the finding of what I should I say this.

The trial examiner found that A.C.E. and the fleet owners were co-employers.

And therefore, this was not a secondary boycott situation.

The Board reversed that finding of the trial examiner.

The Board found that the fleet owner was the sole employer and therefore when we picketed at the A.C.E. premises.

We were engaging in a secondary boycott.

We have taken that matter on appeal, but I would like to emphasize two things, number one, this is a fine example of how productive of strike the interference of the state court and the state agencies has been in this case because were it not for the restraining order entered in this case which is now before this Court saying that we could not enforce the provisions of this contract, there would have been no question but that these people would have been employees of A.C.E. and that we would have been in the legitimate labor dispute.

Thank you.

Justice Hugo L. Black: Mr. Denlinger.

Argument of Stanley Denlinger

Mr. Stanley Denlinger: May it please this Honorable Court.

I will devote the time allotted Your Honors to the position of Revel Oliver, the owner operator and plaintiff below in the trial courts of Ohio.

And Mr. Iden will devote his time to the position of the carriers, Interstate and A.C.E. and we will try to keep our arguments and positions as to those respective parties are separate as we can.

Throughout the briefs of the Teamsters Union and their position in this Court, they have studiously and methodically ignored the keystone of foundation contract on which this litigation began.

Justice Whittaker has saved me some time in ascertaining that the contracts on which the plaintiff relied in the trial courts and the contract which was given interpretation on the question of relationship and status was the contract existing and in full force and effect for more than three years prior to the execution of the collective bargaining contract known as the “Over the Road Agreement” attached as an exhibit to this record.

This contract between Revel Oliver and the carriers with A.C.E. was dated December 28th 1953 as appears on Pages 145 and 149 of the record.

For a period of many years before that, identical contracts were in existence varying only in description and license number of the tractor and trailer leased.

Oliver's lease dated June the 20, 1955 for the Mac Truck in Ohio Body Trailer with Interstate, was a replacement of equipment that he had leased at this company's business since 1952.

And so we reached the conclusion that the contracts between Oliver and the carriers where all existing prior to the collective bargaining agreement.

Now the A.C.E. contract with Oliver provides among other things on Page 147 of the record the relationship created is that of independent contractor and not that of employer and employee, the operator is a contractor only and not the employee of the carrier and that is the quote from that contract.

Secondly, the Interstate calls Oliver the leasor and provides an addition to the lease of the equipment that Oliver and I quote, “Will also furnish one or more competent drivers as maybe the case,” from page 150 of the record.

We conclude that the independent contractor relationship was established by the wording of these contracts themselves existing at the time that the collective bargaining arrangement was entered in to between the carriers and the union.

Justice William J. Brennan: May I ask you Mr. Denlinger?

Mr. Stanley Denlinger: Yes, sir.

Justice William J. Brennan: If no such contracts had existed, would there have been any application of the Ohio Antitrust statute?

Mr. Stanley Denlinger: If no contracts are existed we would not have had this lawsuit either --

Justice William J. Brennan: But I --

Mr. Stanley Denlinger: -- in respect to the --

Justice William J. Brennan: (Voice Overlap)

Mr. Stanley Denlinger: -- Valentine Act or the --

Justice William J. Brennan: No, that's not my question.

My question is whether the existence of those contracts is necessary to establish a case under the Ohio Antitrust statute.

Mr. Stanley Denlinger: No, we think not.

Justice William J. Brennan: Think not.

Mr. Stanley Denlinger: We think not.

Justice William J. Brennan: If this arrangement had just been at will of some kind between Oliver and the sophisticated carriers, you might nevertheless have had a lawsuit under the Ohio Antitrust Act.

Mr. Stanley Denlinger: We think that any citizen or the State might have brought such an action, but Justice Brennan we feel that the finding of the Court relative to the invalidity of Article 32 is not necessary to the determination of the case and that the state court neither the trial or the appellate court relied wholly upon the Valentine Act to find that the existing agreement should not be interfered with.

Justice William J. Brennan: Well, that was going to be my next question.

Mr. Stanley Denlinger: I'm sorry.

Justice William J. Brennan: Whether the existence of the contracts would have been the basis for the relief you had with --

Mr. Stanley Denlinger: I -- I -- I say that --

Justice William J. Brennan: -- in state court without reference to the State's Antitrust Act.

Mr. Stanley Denlinger: Yes, I say that, if Your Honor please, for the reason that the trial judge who I might say off the records, spent an entire summer in looking up this question and writing his opinion after careful study found in his opinion, it was not absolutely necessary to determine either the question of independent contractor of the violation of the antitrust laws of Ohio because Oliver was being damaged by an interference with his existing contract.

Now that is the basis of our claim and the angle of the voidness or illegality of Article 32 is something on which the carriers themselves I think rely more than we as an owner-operator felt was necessary to establish the remedy which the Courts of Ohio purported.

Justice William J. Brennan: I gather then that under your Ohio law, interference with the contract of this kind entitles due to a remedy by way of restraint and not limited to damages.

Mr. Stanley Denlinger: That is correct.

Justice William J. Brennan: Now did this restraint run also against the certificated carriers or just against the union?

Mr. Stanley Denlinger: It ran against both the certificated carriers, apparently the union and that was based on two reasons, that Article 32 itself required a modification, cancellation, or obliteration of the existing agreements within 30 days after the collective bargaining agreement went into effect.

In addition to that, these characters particularly notifying Mr. Oliver and all other owner-operators at A.C.E and interstate that they were advised that the leases would have to be canceled because of the agreement.

Justice William J. Brennan: Can I ask one other question?

Mr. Stanley Denlinger: Certainly.

Justice William J. Brennan: (Inaudible) -- these are lengthy opinions of the court below and I --

Mr. Stanley Denlinger: Yes.

Justice William J. Brennan: -- don't know that I have done a good a job of studying it as I should.

Do you suggest that they're actually based, the lease you have was based upon interference with the contract independent of the Valentine Act?

Mr. Stanley Denlinger: Oh, I think the Courts tied the two together.

Both the Court of Appeals and the trial court because in each instance, the courts found that this Article 32 was on its face, a tendency to create a monopoly under the Valentine Act of Ohio by establishing rates which all owner-operators had to charge throughout the State of Ohio.

Justice William J. Brennan: Was that specifically Subdivision 4 of the Valentine Act --

Mr. Stanley Denlinger: Yes.

Justice William J. Brennan: -- which has a standard of figure, is that it?

Mr. Stanley Denlinger: Yes, Your Honor.

Justice William J. Brennan: Well, did the -- do we -- does either opinion suggest that these are alternate grounds?

Mr. Stanley Denlinger: I don't think it shows any alternate grounds at all, Your Honor, I think they're tied together as I understand it from reading the opinions and findings of both Courts.

Now, if I can go back to the point of discussion of independent contractors neither the trial court nor the appellate court trying this case de novo.

And I say that Your Honors because this matter was not carelessly litigated in either courts but quite fully and carefully and the Teamsters brought new testimony into the appellate court by way of Mr. James Hopper of Detroit testifying in the Court of Appeals.

But from the evidence and not standing alone on the name or designation given to the relationship in the contracts of the carriers and the owner-operator, the Court found that Oliver purchased his equipment in his own name, this was of his own choice, make, type, and horsepower.

That he paid the drivers the union scale, that he withheld the withholding tax and accounted to his -- the Revenue Department for it.

He paid the Social Security and unemployment benefits under the federal and state firms.Oliver alone discharged or fired employees, the carriers never did.

And Oliver pays the Ohio Drivers Insurance.

He pays for the fuel permits for all oil, gas, tires, and repair, collision, fire, and prep insurance.

He pays his driver's health and welfare benefits.

He pays all the bridge tolls.

He takes his equipment to service station of his own choice for service.

His trucks are dispatched at the terminals of the company on the basis of first in, first out along with company equipment.

His drivers comply with all of the rules and regulations of the ICC and Oliver pays for all fines or charges or any violation of any kind.

The trial court had complete authority to determine the status and relationship of the parties under the lease contract without going into the collective bargaining agreement in anyways, shape, or form.

And, this was a contract entered into or wholly beyond the authority, jurisdiction, or direction, or enforcement of any kind for the National Labor Relations Board because it was a contract dealing not with wages, hours or working conditions of employees.

Justice John M. Harlan: Do you think that the Norris-LaGuardia Act had anything to do with this case?

Mr. Stanley Denlinger: We think not Your Honor because this was not a labor dispute.

We do not think that an attempt upon any third party combining with a contracting party to breach an existing agreement presents a problem of labor dispute.

Justice John M. Harlan: That would depend would it not on whether -- what the status is -- of your client was in fact that the contractors (Inaudible)

Mr. Stanley Denlinger: No.

I can't accept that Your Honor.

I don't think it makes any difference.

As the trial court said, whether Mr. Oliver was an independent contractor or whether he was some other name you might assign to him.

He had a contract, perfectly bona fide regarding the leasing of equipment and driver and so forth and no one, union, anybody.

It -- it didn't have to be a union who brought about a breach of this contract.

In other words, the question of labor and strife and the prevention of stoppages of work and so on is no feature of a contract of this nature between a carrier and an individual or between anyone in industry.

That is our position, I think largely --

Justice John M. Harlan: (Voice Overlap) antitrust provision --

Mr. Stanley Denlinger: -- was that of a --

Justice John M. Harlan: Do you think the antitrust provision -- do you think the Federal Government could have brought an antitrust suit to enjoin this contract -- enforcement of this contract being restraint of trade?

Mr. Stanley Denlinger: Yes, Your Honor.

I --

Justice John M. Harlan: You do?

Mr. Stanley Denlinger: -- think that it might have.

But I -- I do not think that, that was the remedy afforded to a citizen of Ohio entering into a contract between citizens of the same state and involving subject matter to be enforced into the State.

I do not think that the fact that the Federal Government might have instituted a suit for violation of the antitrust laws federal wise was a remedy which preempted the hearing of the matter in federal court as distinguished from the right of the State of Ohio to pass upon the question just before it.

That is --

Justice John M. Harlan: Well, if the Federal Government couldn't have brought such a suit, it might be, might it not, that the State would similarly be foreclosing, bring such a suit in a theory of preemption there.

Mr. Stanley Denlinger: In -- if I may say this Your Honor, on the Valentine Act of Ohio.

Justice John M. Harlan: I noticed --

Mr. Stanley Denlinger: It may be enforced by individuals and with the damage arising in connection with it as distinguished from enforcement solely by the Attorney General or the State.

Justice John M. Harlan: The reason I --

Mr. Stanley Denlinger: That is possible under the Act.

Justice John M. Harlan: The reason I raised the question is I didn't see any discussion in either side in these briefs to the Norris-LaGuardia --

Mr. Stanley Denlinger: Well, that is true, Your Honor.

Justice John M. Harlan: -- Act, (Voice Overlap).

Mr. Stanley Denlinger: And it had not occurred to me to discuss that until Your --

Justice John M. Harlan: Your opponents don't either.

Mr. Stanley Denlinger: -- Honor has presented the question now to me --

Justice John M. Harlan: (Voice Overlap) --

Mr. Stanley Denlinger: -- but I feel that -- that in the light of your decisions lately in Gonzales and Russell that the fact that even though there might have been a remedy from a federal wise action to be taken that unless that remedy gave all of the relief which our state court might have given Oliver in this case that it would present no question of preemption to the federal courts, to the ouster of the Courts of Ohio.

That's our position on that, but it doesn't answer Your Honors question, but it's the best answer I have.

Justice Hugo L. Black: May I ask you a question following up --

Mr. Stanley Denlinger: Certainly.

Justice Hugo L. Black: -- on the question by Mr. Justice Harlan.

I -- I do not quite understand the ground on which you say the Norris-LaGuardia Act has no relationship to it.

As I understand it, you say that because this was not a labor dispute within the meaning of the Norris-LaGuardia Act.

Is that --

Mr. Stanley Denlinger: That is not my point Your Honor.

Justice Hugo L. Black: I thought that was what you said.

Mr. Stanley Denlinger: I said there was no labor dispute as we understood our transaction, but that -- if the --

Justice Hugo L. Black: Well, how do you --

Mr. Stanley Denlinger: If the Norris-LaGuardia Act did take application here and the Court or the Government sought to find the carriers and the union in violation of the Sherman Antitrust Act, that all of the procedures furnished either by the Sherman Antitrust Act or by the application of the Norris-LaGuardia Act to federal labor disputes would not here furnish a basis of ouster of our state courts and the preemption of the federal jurisdiction for the reason that the remedy under either the Norris-LaGuardia Act or the Sherman Antitrust would not furnish the remedy to which we are entitled under a set of facts of the nature here presented.

Justice Hugo L. Black: I understand your latter argument that it has nothing to do with the first one.

But if you are saying it is not a labor dispute within the meaning of the Norris-LaGuardia Act, I'd like you to explain why it was not under our opinion which I had thought I wrote.

I had thought you said that negotiating over with independent, whatever you call them, buys -- buy their own goods and have their own wagon.

I thought we he had said that was a labor dispute in the Drivers' Union against Lake Valley Company, 311, United States.

Mr. Stanley Denlinger: Yes.

But there your problem was not an existing agreement between the -- one of the party's defendant and the plaintiff Your Honor.

We do not think that applies to our set of facts here at all.

Justice Hugo L. Black: Well, do you think there's any difference in the type of contracts that were made there and here?

Mr. Stanley Denlinger: Oh, yes.

Justice Hugo L. Black: (Voice Overlap) -- what are they?

Mr. Stanley Denlinger: Well, I -- I don't understand that the problem of contract is presented here is in the case Your Honor cited at all.

Justice Hugo L. Black: But the argument was that it couldn't be a labor dispute because these were vendors of milk, they bought milk.

Mr. Stanley Denlinger: Yes, but the parties were different.

There you -- you'll have in effect what would be the carriers here in that position.

You do not have the owner-operator as the party plaintiff seeking the relief, as I understand it.

Justice Hugo L. Black: But wasn't -- what was held there was that that was a labor dispute.

Mr. Stanley Denlinger: Yes, Your Honor.

Justice Hugo L. Black: And it involved that system of doing business.

Mr. Stanley Denlinger: That was a dispute between the employer and the union.

And the employer was making the claim that it was not a labor dispute because it involved independent contract.

Justice Hugo L. Black: Well, does it make any difference who raises the question of whether or not it's a labor dispute?

In negotiation was in connection with the system that was conducted.

Connection with the wages and said that these independent vendors were breaking down the wage scale.

Therefore, they negotiated in connection with that matter.

Mr. Stanley Denlinger: Yes.

I think it makes a great difference whether the man who has a contract, that whose -- which breach is sought and complete it by third parties or whether it is the employer and the union if Your Honor please, who raises the question?

I think the rights of parties are very distinguishable there.

Justice Hugo L. Black: Well, I can't understand how there'd be a -- if your Court had found that there was -- what's generally termed the tort of malicious interference of contract rights.

If they had based their ruling on that, you would have a different argument here, I suppose.

Mr. Stanley Denlinger: Well, that is one of the findings the Court has made Your Honor.

Justice Hugo L. Black: But I understood you to say that it was not an independent basis for this.And even if it were, you would have other questions that come up.

Why --

Mr. Stanley Denlinger: The -- but first --

Justice Hugo L. Black: Do you -- do you say that they cannot negotiate on this with the different employers there and this man who drove the truck part of the time and hired others to drive it part of the time?

Mr. Stanley Denlinger: We say that he -- that he cannot enter into such an agreement as is provided in Article 32, Your Honor.

We -- we say to Your Honor that the destruction of an existing contract terminated by the terms of an agreement of third parties is not a negotiable subject for a collective bargaining agreement.

We say that a clause in a collective bargaining contract that requires an owner-operator are independent contractor to vary the terms and conditions of his existing agreement at the peril of having his contract cancelled is not a negotiable subject for unions and management.

Justice Hugo L. Black: Well then I suppose that the driver did all his driving in spite the equipment, every bit of it.

And many of them did.

And the union went to the employers and said, “Now, this system is destroying our wage scale and our working hours scale, we want to negotiate.

We don't want you to do business with them.”

Would you say that was not a labor dispute?

Mr. Stanley Denlinger: No, I don't say that's not a labor dispute.

Justice Hugo L. Black: Well, would you say that the -- that wouldn't come within the range of things about which they could negotiate?

Mr. Stanley Denlinger: Well, I -- I would say that if they negotiated such an agreement, it would then be subject to the objections of the contracting parties who would be affected by such a change of --

Justice Hugo L. Black: Well, there are many --

Mr. Stanley Denlinger: -- configuration to which they were not a party.

Justice Hugo L. Black: There are many regulatory laws that do not -- that involve contracts either directly or incidentally.

And suppose that -- suppose you assumed for the moment, that this is a proper subject to negotiation between a labor union composed of drivers and composed of companies who drive -- who employ them.

Supposed it's a proper subject to negotiation for them to say, to make a contract, to try to make a contract to the effect that they've got to amend in that system entirely or else they've got to pay a certain amounts.

Would that be an improper question to negotiate under the Taft-Hartley Act or the other Act?

Mr. Stanley Denlinger: We think so, definitely.

Justice Hugo L. Black: Do you think it would definitely could not be done?

Mr. Stanley Denlinger: That is correct.

Justice Hugo L. Black: Now, who do you think should pass on that?

Who should have the jurisdiction to determine whether that's within the range of things that are permissible?

Mr. Stanley Denlinger: Well, may I answer Your Honor this way.

We have not attacked the collective bargaining agreement.

Justice Hugo L. Black: You collect -- you have attacked one term then?

Mr. Stanley Denlinger: We have attacked one clause that is separate and distinct, completely dealing with a specific classification that on its faces thereby admitted by the terms of the agreement is not a part of wages, hours, or condition of employment of employee.

Justice Hugo L. Black: Well, supposed it were, suppose Congress had made it such, would you say that Ohio could make -- could punish a man or a company or a union or anybody else for entering into an agreement or negotiating over an agreement that Congress had permitted to be negotiated in connection with interstate commerce?

Mr. Stanley Denlinger: If Your Honor please, our Court said not sought to punish anyone.

Our Courts have taken the position that such a contract interferes with a valid agreement existing in the State and therefore we will protect the existing contract against the onslaught.

Justice Hugo L. Black: But supposed -- suppose it would be decided.

Suppose the Labor Board had decided and the courts had sustained the decision that this is a proper subject of negotiation under the circumstances here.

Would you still say that Ohio could make it an illegal part of a contract and nullify it?

Mr. Stanley Denlinger: If Your Honor please, I'll have to answer that question by saying, “I don't know how this question could have gotten to the Labor Board.”

I see no way that we could have had a determination of the fact on which Your Honor bases the question on what our courts of Ohio might do.

Justice Hugo L. Black: Well, that's a different argument that you're making now.

Suppose it had gotten before the Labor Board and it decided it and the Court sustained it.

Would you say that still that Ohio could nullify the contract on the ground that they shouldn't have negotiated it even though the Federal Government permitted it in connection with (Inaudible)

Mr. Stanley Denlinger: No, I would not go that far Your Honor.

Justice Hugo L. Black: Then it is --

Mr. Stanley Denlinger: In other words, we have meticulously tried since your decision on the (Inaudible) case in Ohio to follow the admonitions that you have on preemption on jurisdiction and I am guessing of course, but I do not think that our courts of Ohio would run crosswise to a declaration of this Court or of the board as to a contract that we might otherwise feel interfere with our operations in Ohio.

Justice Hugo L. Black: I'm asking you this question frankly because I don't know, but I'm wondering.

I had supposed that this was a very common type of contract and the people negotiated quite all the time.

I haven't written or given also which is quite a different case but I had suppose it were rather come as -- say at least since the Milk Wagon Drivers' case that there were negotiations about people, where they call them independent contractors or anything else but it was interfering with the wage system claimed to be that the parties would negotiate that.

And sometimes it might result in saying if these contracts -- where you're not going to make these contracts, not going to -- you -- you're not -- we'll negotiate with you on whether you will bar this kind of -- or whether you can do business this way.

Mr. Stanley Denlinger: If Your Honor please, we think that that problem was not presented under the facts of this case.

And we are --

Justice Hugo L. Black: I thought it was.

Mr. Stanley Denlinger: -- attempting to --

Justice Hugo L. Black: I thought that was the -- the heart of it.

Mr. Stanley Denlinger: No.

We think that is not the heart of it.

We think the heart of this case is, may the union enter into a contract with the carrier who already has an existing contract with which requires by its very terms a complete elimination or modification of an existing bona fide enforceable contract that would result in the complete elimination of that legal agreement.

We think that that is our plaintiff's case here.

Now this -- this arrangement of leasing, if Your Honor please, is just as common a business as this so-called collective bargaining of the Teamsters over the various states.

And this very Court in the MC-43 case held that it's perfectly proper for a carrier to operate on the basis of owning his own equipment or leasing equipment.

And there, the majority of this Court found that the regulation of the ICC with reference to trip leases was the perfectly validly regulation which the Commission was authorized to make and which this Court would approve.

Two of the members of this Court took the position that even that interfered with the legal right of the carrier to choose, whether or not he should use leased or company-owned equipment.

Now, in that very case, this Court approved the leasing of equipment in accordance with ICC regulations.

And if there is any question here on the part of the union as to inroads into wages or other conditions because of the lack of proper regulation with the ICC, then the task lies not in making contracts which compel the elimination of existing agreements, but lies in the Teamsters' approach to the ICC for such a regulation as will correct the evils that they may charge is being perpetrated.

Now, we --

Unknown Speaker: (Inaudible)

Mr. Stanley Denlinger: Sir?

Unknown Speaker: (Inaudible)

Mr. Stanley Denlinger: All right.

Now if Your Honors please, unless you have some questions I will stop with that and not bear upon the time of Mr. Iden who desires to present the carriers' position.

If there are any further questions, I shall honestly attempt to answer them before Your Honors.

Justice Hugo L. Black: Well, thank you very much, Mr. Denlinger.

Mr. Stanley Denlinger: Thank you, sir.

Justice Hugo L. Black: Mr. Iden.

Argument of Charles R. Iden

Mr. Charles R. Iden: I think the question that you have asked was probably more important to you than the subject that I might discuss and I would like to continue on if nothing to answer the question which you have raised.

Now, you're a supposition, of course, it isn't in the case.

It didn't occur.

Justice Hugo L. Black: What is that?

Mr. Charles R. Iden: The supposition would be that the carriers, let's say, did not sign the contract, so that the question could have been presented to the board.

See the facts are that this contract is negotiated in -- in the Chicago for very few deputies representing these 3500 carriers, so that my two clients would have very little voice in the ultimate result of the negotiation.

Justice Hugo L. Black: Well, there's any challenge to the fact that this is a contract --

Mr. Charles R. Iden: No.

Oh, no.

Justice Hugo L. Black: -- insofar --

Mr. Charles R. Iden: Oh, no.

Justice Hugo L. Black: -- as it's valid, it's binding.

Mr. Charles R. Iden: I -- this could have gone to the board if we would have refused to sign the contract.

And then there would have been a complaint made that here that there was a demand that the negotiated contract which is made by our agent should be put in writing.

That could have gone to the board that way if we had refused to sign.

The union could have taken it there.

And under the law and the board would had only one duty to perform.Had the contract been negotiated?

Was it made on our behalf?

Had our agents agreed to it?

They would have ordered us to sign it.

Now bear in mind that the board, the National Labor Relations Board is a statutory board, it does not have the jurisdiction that any court has.

It has that narrow jurisdiction of looking at one statute, interpreting that statute and enforcing that statute with blinders on the side of its heads as to the other laws affecting the relations of the parties.

That Board has no antitrust jurisdiction.

It has no duties or responsibilities to enforce the antitrust laws.

So that when this question would come up as to the narrow issue then we either had refused to bargain on this Article 32 or we refused to sign a contract with that in it, all the board would have said, it was a -- they probably would have said that it was a subject to bargain.

That one was requiring subjects but a permissible subject to bargaining.

It would have told us to bargain on it.

Justice Hugo L. Black: On this (Voice Overlap) --

Mr. Charles R. Iden: That Board (Voice Overlap) --

Justice Hugo L. Black: -- on this subject?

Mr. Charles R. Iden: It -- I would say that possibly the board could have ordered us to bargain on it.

Justice William J. Brennan: Can I suggest (Inaudible) --

Mr. Charles R. Iden: On this?

Justice William J. Brennan: (Inaudible)

Mr. Charles R. Iden: Oh no, I'm -- I'm --

Justice William J. Brennan: Prior to that.

Mr. Charles R. Iden: No.

I'm making an assumption to approach --

Justice William J. Brennan: (Voice Overlap) -- you said it was hardly permissible.

I'm wondering if you find (Inaudible), this subject before us.

Mr. Charles R. Iden: Oh, I don't think that if -- they would have -- I wouldn't go so far as to say that the -- that the -- all of those requirements that you will find in Article 32 never been required except in bargaining required that we give up --

Justice William J. Brennan: The general -- the general subject, Mr. Iden, I ought -- suppose those would require subject to bargaining namely whether or not an employer with whom a union is bargaining for its members or the group that represents shall or shall not subcontract the out part of the employers work.

Mr. Charles R. Iden: Well, that maybe the case where there was an accusation that we were affirming it out to interfere with the union or interfere with some of their rights.

This was --

Justice William J. Brennan: Whatever that reason maybe --

Mr. Charles R. Iden: This has been historical.

Justice William J. Brennan: -- informing of the practice has certainly been the subject of collective bargaining.

Mr. Charles R. Iden: Well, I'll go along with your assumption that they would have ordered us to bargain on it because that won't change my result.

The Board still would have been looking at the narrow issue of A.C.E. in the one case, Interstate in the other case versus the board and the employees and it still would not have had at any jurisdiction under the antitrust.

The question wouldn't even been presented to them.

Now, I wanted to discuss just a little bit the ICC Section, the question in which it was raised in brief and wasn't argued here and I'm only saying that now because a decision of this Court germane to that subject, I believe will answer the question we're on.

In the southern rate case, the State of Georgia versus The Pennsylvania Railroad, that's not cited in my brief, 324 U.S.439.

In that case, the State of Georgia was accusing the northern railroads of preferring northern industry and northern states above the interest of the southern States particularly State of Georgia and their industry.

And so they made a request to file an original action in this case, in this Court under the constitution.

And this case was a discussion of that -- of the right of the State of Georgia to bring that action in this Court under that constitutional provision.

There was no question in this -- in the decision to what the ICC was the only body that could remove the rates or could control the rates.

This Court had no authority on that subject.

But the Court recognized this and said this.

That these subordinate congressional boards do not have antitrust jurisdiction.

And so while the ICC would look at an isolated rate by a particular railroad and would say the rate was good or bad, the ICC would not look at the whole picture to see -- say whether or not, there was a conspiracy which affected the filing of these rates.

So that this Court said that this Court sitting here is the only Court that can look at the whole picture to inquire as to whether or not there is a conspiracy behind these moving the railroads in filing their rates tothe Interstate Commerce Commission.

And so this Court said this, “This action will free the rate making function of the influences of a conspiracy over which the Commission, the Interstate Commerce Commission has no authority, but which he had proven to exist can only hinder the Commission in the tasks with which it is confronted.”

And the Court said, further if -- this Court, it will eliminate from ratemaking the collusive, the practices which the antitrust laws condemn and which are not sanctioned by the Interstate Commerce Commission.

So I say here, assuming that the board had said that this was a proper subject to bargain and assuming the board said, “Sign the contract,” in the case it would been negotiated when we refused to sign it.

Still, the National Labor Relations Board would not have the jurisdiction to inquire into the broad subject to determine that this identical clause affecting the lease of equipment was being enforced and put as against every carrier in the State of Ohio.

That's the jurisdiction of Board wouldn't have.

So that under your decision in the southern rate making case, the antitrust laws are still enforceable by the Court because we can't make the assumption that Oliver is not an independent contractor.

That fact has been found by the trial court.

It's been found by a three-judge appellate trial court.

It's been confirmed by the decision of the Supreme Court.

This identical lease was at issue in the National Labor Relations Board at about the same time.

In the 120 NLRB, 150, identical lease, after the decision --

Justice William O. Douglas: Were the parts are the same?

Mr. Charles R. Iden: Oliver for some reason that I do recall now was not a party to it.

But as a result of this decision --

Justice William O. Douglas: Were the other respondents parties to that?

Mr. Charles R. Iden: A.C.E was.

The identical lease that's in effect between Oliver and A.C.E was at issue in the NLRB case.

You see after this injunction, the union then decided to exercise the rights which it had under the law and organized and seek a contract with these employers.

And in their zeal, instead of -- they say we should -- that Oliver and the owner-operators should have petitioned for an election.

Well, that right is -- they have that right to petition with the election, too.

They chose to strike the owner-operators and A.C.E and they also chose to strike A.C.E.

And so the owner-operators, a large group of them and big companies filed charges for the secondary boycott with the board.

And that the identical leases were in effect and the trial examiner found that these leases made the lessees independent contractors, the one that was appealed to the board, the board confirmed that position.

So we have -- we've had four people that have examined the relationship between these lessors and A.C.E, four courts, four tribunals and everyone of them just said that they're independent contractors that we can't beat them.

Justice William J. Brennan: What's the difference -- what's the -- what --

Mr. Charles R. Iden: I'm not making the assumption that removes that from the case.

Justice Hugo L. Black: What difference does that make on the issue here whether you call him an independent contract or something else?

If there's a power to negotiate to do this, what difference does it make whether he calls himself an independent contractor or just a contractor or something else?

Mr. Charles R. Iden: When he's called a contractor, he was a -- he was a separate employer.

What are you going to do with each case, where the union would make a contract and with -- a rubber company to determine the price of tires or the wages of their suppliers or that type of thing, they wouldn't call him an independent contractor in the contract but he was an independent employer.

He was an employer under the Act, that's -- that's the reason.

Justice Hugo L. Black: Well, the problem -- isn't the problem whether they have a right to negotiate over that and enter the contract.

And may I ask you this, I don't -- maybe you're right.

Can it be true that you can assume that it's unlawful to enter into a contract and yet that the Labor Board or the other board has the power to force you to negotiate it over it in the other end of a contract?

Mr. Charles R. Iden: Because the board has the jurisdiction to enforce the antitrust laws.

Justice Hugo L. Black: Well, I understand that but in determining whether it's a negotiable thing and whether they should enter into it, is the board barred from saying, “We'll, we're not going to let you negotiate over this because that's a plain violation of the law.

Suppose there's a -- negotiating on whether seven people should be assaulted."

Mr. Charles R. Iden: I -- I would -- well, assaulting would be a little different.

But I would like to agree with you on that but following my piece of though, I can't, that board does not have an antitrust jurisdiction whereas the Interstate Commerce Commission.

Justice Hugo L. Black: I understand it.

It doesn't have antitrust jurisdiction but does it have jurisdiction to decide whether or not this is a legitimate subject to negotiation --

Mr. Charles R. Iden: Well, probably --

Justice Hugo L. Black: -- on a legitimate subject of contracting.

Mr. Charles R. Iden: Now that, it was properly presented but there was no opportunity to present this.

Justice William J. Brennan: Well, there wasn't because you agreed.

You agreed to (Inaudible)

Mr. Charles R. Iden: Yes, we agreed.

But that is (Voice Overlap) --

Justice William J. Brennan: (Voice Overlap) --

Mr. Charles R. Iden: -- the fact that it was accomplished fact.

As --

Justice William J. Brennan: Mr. Iden, may I just ask you this.

Doesn't this case really come down to this simple question?

If this case, a legitimate subject to collective bargaining as a protective right under federal law, to what extent may the State, through its courts, by this Valentine Act or otherwise enforce this agreement of Oliver's in such why as to nullify the agreement made between you and the union?

Mr. Charles R. Iden: We'd get down to the --

Justice William J. Brennan: Doesn't it go down with that?

Mr. Charles R. Iden: We get down to the Garner decisions and the decisions in your (Inaudible).

Justice William J. Brennan: Well, how -- what about Hill and Florida?

That was a matter that they couldn't possibly have gotten before the Labor Board and yet this Court held that the basic federal policy to allow employees to complete premium of choice of representatives so preempted that subject matter --

Mr. Charles R. Iden: But that was --

Justice William J. Brennan: -- that the State of Florida could not require union agents to register in Florida.

Mr. Charles R. Iden: Well, that was a protective matter that -- (Voice Overlap) --

Justice William J. Brennan: Does that pertain to the issue we have here?

Mr. Charles R. Iden: No, that was --

Justice William J. Brennan: I'm not suggesting the result but isn't that basically the issue?

Mr. Charles R. Iden: That was a protective matter in protecting the right of organizations.

That question isn't in this.

Justice William J. Brennan: No, no, isn't it basically the same issue?

If this is the proper subject to collective bargaining protected by federal law made the State in anyways interfere with through enforcement of these independent contractors.

Mr. Justice Black said what difference does it make, whether this independent contract is all we have?

Mr. Charles R. Iden: Now, let me --

Justice William J. Brennan: The problem is whether the State may enforce that independent contract in place of the superior federal right to bargain collectively upon the matters covered by 32.

Mr. Charles R. Iden: Let me answer it this way.

The theory of the Act is to protect employees in their right to organize and in the negotiation for contracts and upon the negotiation of the contract, the aim of the Act is to require it to be reused to writing and signed for the parties that that request was made.

There the Act stops.

The entire debate in the Congress, the decision to this Court have inclusively emphasized that once the contract was made then it is subject to the supervision of the Courts, provision shall be enforce with the Court.

Justice William J. Brennan: Well actually, supposed it's been a breach of this agreement.

Where would have been action as against the union on the part of your client?

Mr. Charles R. Iden: They -- they could have been sued in any Court with which jurisdiction --

Justice William J. Brennan: Well, could have been --

Unknown Speaker: (Inaudible)

Justice William J. Brennan: Could have been sued at all under Section 3 of the Labor Act, isn't it?

Mr. Charles R. Iden: It could have suable in federal court under that Section of the Act.

Justice William J. Brennan: Federal law would've applied?

(Inaudible)

Mr. Charles R. Iden: In -- in that case, the federal law would apply, he could have been sued in the state court because in the debate in the House and that debate is --

Justice William J. Brennan: Can you sue him (Inaudible)?

Mr. Charles R. Iden: Oh, yes.

The -- the reason for 301 in the examination of the debate in the House which appears as a supplement in a -- to an opinion in a recent case, that was the -- yes, Textile Worker -- Lincoln Mills, the debate is largely there.

Originally, they provided that the breach of a contract would be an unfair labor practice and that was taken out because for the definite reason that the suits for damages or the enforcement should be in the Court.

At one time, they said it should be -- could be brought in the courts of any state and in the United State's Courts.

And the -- and the reference to the States was withdrawn for this reason.

Why -- Congress tell they could not impose their will upon the States because some states you can't sue labor unions without serving every individual union.

That doesn't -- in Ohio we don't have that.

Mr. Charles R. Iden: We can sue an incorporate organization for suing (Inaudible)

Justice William J. Brennan: (Inaudible)

Mr. Charles R. Iden: Yes, it's right.

And so that -- we're not as familiar with that.

Justice William J. Brennan: But in order to apply (Inaudible) with the Ohio courts?

Mr. Charles R. Iden: Oh, Ohio courts can --

Justice William J. Brennan: (Inaudible)

Mr. Charles R. Iden: -- would apply state law and federal law where the federal law had preempted.

Justice William J. Brennan: (Inaudible) by the state laws?

Justice William O. Douglas: A State would not (Inaudible)

Mr. Charles R. Iden: To the interpretation of the contract -- we certainly couldn't interpret the state law to the extent of saying something with -- was unlawful which the Congress had said was lawful.

I don't go that far but certainly the forum would apply its own procedure and its own rule.

And the reason that they took out and the state courts is for the very reason that in -- I think 35 of the States, the debate determined that -- you could bring the action in a state court.

Some of the debate would -- well, what the federal court didn't act at all because you can sue it in a state court to get plenty of jurisdiction historically there, bringing that action there, and it's up to those remaining states if they want to get in line so that the action should -- can be brought there.

That's their problem.

Well, they -- the debates still went on.

That -- and they quote it from Truman's report and that all is in there that there should be a remedy.

If you're going to have a contract, it should be enforceable.

And so that we are going to -- the Congress is going to put some jurisdiction in the federal courts so that even in those states where you can't sue in the state courts, you're going to be able to go the federal court without worrying about the jurisdictional amount or citizenship.

And they -- so that there's no question if Congress intended that these contracts be enforced in this -- in the courts where the broad picture could be had.

Justice John M. Harlan: That's a -- oh, you assumed that there's no -- assume for the moment that there's no preemption under the Labor Act or under the Interstate Commerce Act.

Where do you come off under the Norris-LaGuardia Act?

Mr. Charles R. Iden: The --

Justice John M. Harlan: Or, maybe more specific.

Supposing you reached that stage and one reaches the conclusion that an antitrust suit could not be brought in the federal courts to enjoin this contract because it runs afoul in the Norris-LaGuardia Act.

Where does that leave you in the state courts?

Mr. Charles R. Iden: I'm -- I'm assuming that this case was tried as an antitrust case and as an antitrust case it can be enforced in the state or federal courts depending which anti --

Justice John M. Harlan: Do you think the Norris-LaGuardia Act has got nothing to do with it?

Mr. Charles R. Iden: That's what this Court has said in Allen Bradley and in Gibbony, the whole line of antitrust cases.

I have discussed Norris-LaGuardia not directly but in my section of my brief in the application of the antitrust statutes on page 31.

I see that I've mentioned the Act, I had it in my mind, and I went on to cite Allen Bradley where a union contract was held to violate the federal antitrust laws.

Certainly a tribunal not the board interpreted that contract and this Court said they have the authority.

Then in the Gibbony case, the state courts of Missouri interpreted the State -- a union contract that held what was contrary to Missouri antitrust laws and this Court affirmed it.

I like to refer this Court to one case that I think says -- gives my argument better than I can and that's the Massachusetts case of Commonwealth versus McCue.

The decision obviously is not binding upon this Court.

It wasn't binding upon the courts of Ohio.

But that was the basis where the decision in the Court of Ohio is in the McCue case.

In that case, the state court told that certain activities violated the Massachusetts antitrust laws and then they arrested the union leaders and tried them under the federal antitrust laws and found them guilty.

That -- it -- if this Court would read Common Law versus the McCue cited in my brief and if they can find that that Court was right, then it will have to find that the courts in the State of Ohio were right.

Every issue was in there.

Every argument made and fought bitterly.

In that case they even removed it to the federal courts, and the federal court remanded it back.

They used every device in that case to test jurisdiction.

I would entirely rely in my case on that Massachusetts' decision to Commonwealth versus McCue.

That was -- in that case the State was the plaintiff.

There was the common pleas decision in Ohio in which the same statute was enforced that the -- an action of the prosecuting attorney so that the State can bring antitrust actions against unions.

But in my section on page 31 on the antitrust statute this is a question that the courts had the jurisdiction to interpret the statutes.

Now, where are we going to get if that isn't the law?

Last week, the Supreme Court of Ohio held that the union contracts providing for supplemental unemployment benefits was contrary to the statutes of Ohio with respect to unemployment compensation.

Well, certainly are we going to close every contract that the union makes with a complete immunity from scrutiny?

Could the -- the antitrust divisions of the Government is always looking down their nose if the rubber companies enacting for their pricing method.

Now, if we're taking the argument that only the National Labor Relations Board could even view and review a union contract, all we have to do to get around any law is to have the union sign the contract fixing the price of tires with the company.

Certainly the price of tires affects the ability to cut, I mean, to pay wages to their employees.

And so if the rubber workers can make a contract with Goodyear fixing the price of their tires and then go to the Goodrich and fix with identical price with Goodrich tires and for Firestone, and if this Court or any other court would say, “Well, you can't inquire in, I'll bring your prosecution on the antitrust laws nor can you easily inquire into it because the union is a part of that contract,” where are we going?

Once the contract is negotiated, the functions of the board has ceased.

There's no way to go there.

There is no provision in which the board can review the provisions of the contract.

It's only left to the courts --

Justice Hugo L. Black: Is your --

Mr. Charles R. Iden: -- and this Court has said that in all this antitrust cases.

Justice Hugo L. Black: Is your argument based on the fact that this was a combination of a union with competing companies?

Mr. Charles R. Iden: Neither of them were competing.

Certainly, there's 500 carriers in equity.

Justice Hugo L. Black: I'm not talking about so far as your client is concerned.

That -- that --

Mr. Charles R. Iden: In my view, this is an antitrust case.

This is not a labor case.

This is an antitrust case and the view of the Court in my opinion while they don't -- without question the Court was taking into consideration that it violated the prior existing contract.

But it also was an antitrust case that in my view of it --

Justice Hugo L. Black: Where --

Mr. Charles R. Iden: -- it was primarily an antitrust case.

Justice Hugo L. Black: Did you -- what -- what did your client have to do with it?

Did he sign the contract?

Mr. Charles R. Iden: The contract was enjoined before we signed it then the Court from the journal entry authorizing the provisions of the contract to be signed, saved, Article 32 would not be effective.

So then we signed it.

But we had not signed it until the Court authorized it to be signed freed of Article 32.

Justice Charles E. Whittaker: Oh, I didn't understand that, I'm sorry.

Mr. Charles R. Iden: The action was brought, an injunction was granted against signing the contract.

We did not sign it because we were enjoined and then -- there was a motion made and the contracts had with the Court and the Court put -- signed an entry which is part of the record in which it authorized the contract to be signed by our -- by our clients and the carrier.

Justice Charles E. Whittaker: The contract -- I'm talking about the (Inaudible)

Mr. Charles R. Iden: The union contract.

Justice Charles E. Whittaker: (Inaudible)

Mr. Charles R. Iden: That's right.

Justice Charles E. Whittaker: (Inaudible)

Mr. Charles R. Iden: And it saved -- and except Article 32.

So the entire contract became then effective.

Justice William J. Brennan: May I ask Mr. Iden, does it appear whether you're willing to sign it, the 32 in it, that your clients were willing or not?

Mr. Charles R. Iden: I think the evidence showed that we have negotiated it with -- by our agents and the -- under the law once the contract -- we couldn't -- we knew we couldn't refute the authority of --

Justice William J. Brennan: (Voice Overlap) --

Mr. Charles R. Iden: But for the restraining order, we wouldn't have signed.

That's in the record, no question about it.

This journal entry I was referring to appears on page 14 of the record in which the contract -- the party -- carriers were authorized to sign it.

Originally --

Justice Hugo L. Black: Who signed it, the carrier and the --

Mr. Charles R. Iden: And the union.

After the --

Justice Hugo L. Black: Anybody else?

Mr. Charles R. Iden: What?

Justice Hugo L. Black: Anybody else besides the carrier and the union?

Mr. Charles R. Iden: No, that was -- it was a contract -- the labor contract between the union and the carriers.

It's signed by every carrier in the State.

That's in the record.

Justice William J. Brennan: Well, the restraint actually was against carrying out the (Inaudible).

Mr. Charles R. Iden: Well, yes, which was -- mostly the same.

Justice William J. Brennan: In other words, the contract was signed including (Inaudible).

Mr. Charles R. Iden: Well, yes.

Justice William J. Brennan: Against you're carrying it out.

Mr. Charles R. Iden: Yes, it's saved -- it's saved Article 32.

So that the labor contract portion of it which have affected our employees was in effect.

The -- the federal court in C.L. Mead versus Teamsters, 230 F.2d 576 was not in my brief.

There was a strike contrary to this union contract in effect between the Teamsters and the C.L. Mead and they had a strike and the carriers sued the Teamsters for breach of contract and that case in the federal court.

And the -- in that case it was held that the action would lie.

Well, certainly whatever you're suing for damages under any contract, union or otherwise there's certainly a requirement that the Court look at the contract and interpret it to see whether there's a -- the plaintiff show this to the defendant.

This certainly -- implicit in all these cases is the fact that courts can interpret these contracts.

But I say Allen Bradley is the leading case, you got Gibbony which is the reverse that the state antitrust laws can be enforced.

We got the Plasterers case.

Justice William J. Brennan: Was that a picketing case?

Mr. Charles R. Iden: By the -- no, it was not a picketing case.

If you start getting strike, then you get an unfair labor practice.

Justice William J. Brennan: But what -- I mean, those cases you've mentioned, aren't they all picketing?

Mr. Charles R. Iden: Oh, the Allen Bradley knows the combination between the electrical contractors and electrical unions and New York provided that the contractors wouldn't purchase any electrical equipment by what was manufactured by the unions in New York then effectively cut everybody else out of the electrical field in New York City and the -- this Court held that was contrary to antitrust laws and certainly you permitted some court to interpret and interfere with the union contract and it wasn't the board.

And the same thing happened in Gibbony.

There's no strike there.

They thought about a strike here.

No question about it.

It's been an unfair labor practice but there was no strike.

The Plasterers case was a similar combination between the plastering contractors and the unions in Chicago.

These are antitrust cases.

The Massachusetts Fisheries case was an antitrust case which arose -- the facts are identical other than in the case, when we're talking about boats and fish, in this case we're talking about trucks and freight.

It was the same combination.

Justice Charles E. Whittaker: But may I ask you this?

It's a part from the question (Inaudible)

I understood that all of Mr. Oliver's (Inaudible) was outside the provisions of the Article 32, saved such of it, and he asked he might drive (Inaudible) with himself.

Is that not correct?

Mr. Charles R. Iden: This case was tried in theory that the -- that the union contract so far as in my opinion affected all of his equipments and certainly affected of all, he was driving it.

Well, he was driving it that it gets within the contract and he did drive it.

Justice Charles E. Whittaker: Well --

Mr. Charles R. Iden: And that he -- that was the theory it was tried on.

Justice Charles E. Whittaker: If I may (Inaudible) -- do you notice from the note in -- on page 239 of the record that (Inaudible), it means owner, driver-owner and nothing in this article argued here, shall apply to any equipment you leased, it's not fair upon these (Inaudible) employed as driver.

There's no doubt about it, specifically as possible to take out of the provisions of Article 32, all of the lease except that which have been provided (Inaudible)

And it precludes as found by (Inaudible) that as respects the interstate carrier -- company before (Inaudible) and that respects the A.C.E Company (Inaudible)

Now, what trucks would he drive about those times when there's some -- get the truck -- how would you know whether one truck that he might be driving -- which truck Oliver's would be driving?

Mr. Charles R. Iden: He assumed the right and did drive any truck indiscriminately.

So that certainly the -- this contract would -- and the union's view would have been effective while he was driving this -- this -- the little truck he was driving.

So, that I would say that while he is driving a truck and as long he assumes that right then as to those trucks that those days then this contract that the union attempted to put in would have been effective had it been signed in but for the injunction.

Justice Hugo L. Black: Your time is up.

If either one of you -- either one of you desire to supplement by any kind of brief or memorandum which you have said about the Norris-LaGuardia Act.

Some of the Members of the Court have asked questions about that, either argue or wish to supplement what you've said about it.

Let us know.

Mr. Charles R. Iden: We should be pleased to do so Your Honor.

Justice Hugo L. Black: When?

Mr. Charles R. Iden: Within the limitations established by the Court.

Justice Hugo L. Black: What -- what limitations?

Mr. Charles R. Iden: On the time limitation.

Justice Hugo L. Black: How much will you -- when could you do it?

Mr. Charles R. Iden: I think we can have it here within 10 days, Your Honor.

Justice Hugo L. Black: Take 10 days?

Mr. Charles R. Iden: Seven days.

I assume that you would prefer to have it printed, that -- that would be the only problem, printing it.

Justice Hugo L. Black: Well, if it's not printed, when could you do it?

Mr. Charles R. Iden: Have it here in five days.

Justice Hugo L. Black: A weekend, (Voice Overlap) --

Argument of Attorney

Attorney: The Court's order -- well, it points out there's a weekend intervening.

Rebuttal of Charles R. Iden

Mr. Charles R. Iden: Would you want simultaneous memos or you want to chance to reply to each other?

It makes no difference to me.

Well, --

Justice Hugo L. Black: Well, maybe that you are satisfied.

Some of the members have expressed an interest in the last question --

Mr. Charles R. Iden: If our -- if our reports, we'll put a memo in, I'm sure we will exercise the same prerogative.

This is -- we don't give a quarter in this case.

We have to get -- we're not starting.

Justice Hugo L. Black: Well, you say you can get the memorandum --

Rebuttal of Attorney

Attorney: We can.

We -- we think there's a very simple (Inaudible) to the Norris-LaGuardia Act.

We think only jurisdiction of the federal court in this case was not presented in the federal courts but we -- we could get that in here very properly Your Honor.

Attorney: That would --

Justice Hugo L. Black: Why would it take you five days then?

Why would it take you five days?

Attorney: We'll -- we'll mimeograph it, we can have it over the weekend Your Honor, we'd do that.

Justice Hugo L. Black: Why not do that?

Rebuttal of Charles R. Iden

Mr. Charles R. Iden: There's a -- there's a weekend intervening, I've been in Washington for -- since Monday and [Laughs] --

Justice John M. Harlan: Perhaps the view of Mr. Previant --

Rebuttal of Attorney

Attorney: We can have it --

Justice John M. Harlan: If I got it, you don't think the Norris-LaGuardia Act has got nothing to do with it.

Rebuttal of Charles R. Iden

Mr. Charles R. Iden: I think that that refers only to the jurisdiction of the federal court with the matter of litigated in the Court, I believe that's the answer to it.

Justice John M. Harlan: If you take that position, I'm not sure but so as far as I'm concerned, I want the brief.

Justice Hugo L. Black: Well --

Mr. Charles R. Iden: We will have it right here about Monday morning Your Honor.

Our position --

Justice Hugo L. Black: If that's what it's going to be, why, you know that.

There's no -- I see no reason, just fine.

Justice Charles E. Whittaker: (Inaudible) Mr. Previant?

Rebuttal of David Previant

Mr. David Previant: I believed that's the answer to the problem with Norris-LaGuardia that affects only to jurisdiction of the federal courts and not the state courts.

Justice Hugo L. Black: Yes.

Mr. David Previant: It's a limitation on federal court jurisdiction.

Rebuttal of Attorney

Attorney: That's right Your Honor.

Attorney: (Inaudible)