SAN DIEGO UNIONS v. GARMON

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Argument of Charles P. Scully

Chief Justice Earl Warren: Number 66, San Diego Building Trades Council, et cetera, Petitioners, versus, J. S. Garmon, et al.

Mr. Scully.

Mr. Charles P. Scully: Mr. Chief Justice and Associate Justices of the Supreme Court, may it please the Court.

This is the second occasion upon which this case is before this Court for consideration.

However, I believe that because of issues raised in the brief of respondent, it might be desirable to review very briefly the facts of the case and the determinations of law in the various courts prior to its appears again before this Court.

Now, we believe that the testimony discloses that the union presented a contract to the employer for its examination and advised that it would not request the employer to sign it until the employees joined or agreed to join the union.

And we believe that's verified by the record at page 96, 229, pages 231 and 232, 244, 265 and 309.

And we believe that the reference to page 309 is particularly pertinent because that is the testimony by the plaintiff in the case.

Justice William O. Douglas: That testimony showed what?

Mr. Charles P. Scully: That they presented the contract to the employer for examination and that they stated they would not request him to sign it until the employees joined or agreed to join.

And I think it's critical because we believe that the case of Weber is applicable here and there has been a determination below by the trial court on other evidence binding contrary to this contention by the union.

And we've accordingly believed that the Court should be aware of the fact that there was evidence presented, that it -- in effect this was not a compulsion on the employer to coerce his employees but on the contrary that the union contacted the employees first and advised the employer they would not require him to sign until they agreed to join.

Justice Felix Frankfurter: Would you be good enough to state the case in -- in its chronological sequence so that one gets the full comfort of --

Mr. Charles P. Scully: Yes, Your Honor.

Justice Felix Frankfurter: -- (Voice Overlap) significant in what you've just called our attention?

Mr. Charles P. Scully: All right, Your Honor.

In that regard, then I think its desirable, Your Honor, to point out that with respect to the chronological order of the case that -- with respect to the issue that was involved in this case, the employers attorney testified that a -- a petition for representation was filed with the Board by mailing from San Diego to the Los Angeles office on May 7, 1953, that is page 191 of the record.

That on the same day, a complaint was filed in the Superior Court of San Diego and that is found at page 196 of the record.

That the complaint gave rise to injunctive relief and that thereafter, the regional office of the Board dismissed the petition for representation from which no appeal of any kind was taken and that the trial court then on the ground that there had been a violation of the National Act granted injunctive relief.

The union appealed to the District Court of Appeals of the State of California and I think it's interesting to know that in that appeal, in reversing the determination of the trial court, and this is at page 32 of the record.

The District Court of Appeal found that the picketing was without violence or a breach of peace and did not involve any secondary boycott.

That is at page 32 of the record.

The appeal was then taken from this decision of the District Court reversing the trial court to the Supreme Court of the State of California, which by four to three decision reversed the District Court and sustained the trial court and stated that although the Board concededly had primary jurisdiction, and this is at the record on page 46, and I'm now quoting, “There is no conflict of jurisdiction where the federal Board determines not to adjudicate the issue.”

And that is at page 48 of the record.

And accordingly, because of the letter from the regional office of the Board dismissing the petition on the ground that the amount of business was insufficient toward the exercise of jurisdiction by the Board, it admitted that under the state law, the concerted activity was a proper labor objective.

That's is at page 51 of the record.

But then held that the economic pressure to compel an employer to sign the type of agreement here involved is an unfair labor practice under Section 8 (b) (2) of the Taft-Hartley Act.

That's at page 52 of the record.

And so the first decision of the State Court of California was specifically on the ground that there was a violation of Section 8 (b) (2) of the Taft-Hartley Act and that the conduct was otherwise legal under the California law.

The case then came to this Court and this Court noted that the picketing was peaceful, that the plaintiffs had alleged a violation of the Taft-Hartley Act and together with Guss and Fairlawn reversed the decision with respect to the injunctive relief, reserved its decision as to the failure to exhaust administrative remedies on the ground that it was necessary to reach it and then stated that it did not reach the question of damages.

The case then went back to the California Supreme Court and it conceded that with respect to the injunctive relief.

It was not possible for it to sustain the judgment of the trial court and accordingly, it reversed as to that.

But then it construed the remand of this Court and stated that this Court had invited the California Court, and this is the page 332 of the record.

That it had invited the California Court to examine the state law to determine whether a cause of action for damages in Court could be maintained under that law in a situation which this Court referred to as different from the violence in the Laburnum, stated that the particular case was distinguishable.

And then it's included, and this is at page 337 of the record.

And this is -- quoting, "Based on the foregoing provisions of the statutory law of this State in the findings and conclusions of the trial court which is amply supported by the evidence, the conduct of the defendants constituted unlawful labor practices contrary to and in violation to the laws of the State."

And so I believe Mr. Chief Justices -- Mr. Chief Justice and Associate Justices of the Supreme Court, that summarizes very briefly for you what has transpired in the courts below insofar as the litigation in this case is concerned.

Justice Felix Frankfurter: What do you -- go on --

Chief Justice Earl Warren: I'll just want to say this that you give us, this procedural background, and would you give us the factual effect.

Mr. Charles P. Scully: Yes, Your Honor.

Chief Justice Earl Warren: It wasn't in the very (Voice Overlap) --

Mr. Charles P. Scully: Right.

Chief Justice Earl Warren: -- and just -- just so with the orientation.

Mr. Charles P. Scully: Right.

And that's what I -- that's -- that's what I had started, Your Honor.

I had pointed out with respect to the first item the testimony that the union had presented the contract to the employer for its examination in a statement that would not request its signature until after the employees had joined or agreed to join the union.

Then the union advised the employer that all of the men were agreeable to becoming members of the union and that's in the record at pages 103 and at page 237.

So that the union went out, spoke to the employees, they agreed to become members and the union then advised the employer.

The employer then stated that it wished to speak to each man individually.

That's at page 103 and page 238 of the record.

And the employer spoke to them outside the presence of any union representative.

That -- that's at page 110 of the record.

The employer then stated, and this -- testimony by the employers at page 240 of the record, that he didn't want any union that in the testimony from an employee witness was that the employees drew an inference that the employer disapproved of unions, page 133 of the record.

And in fact, the employer admitted that everyone knew he was not union-minded, page 159 of the record, and that he left the employees know his feeling.

That's at page 269 of the record.

The employer testified also that he had never employed a union member and have never signed a union contract.

That's at page 111 of the record.

The employees then later decided to leave it up to management whether they should join or not join the union.

That's at page 120 and 129 of the record.

But then later on, they changed their minds about joining and the employer advised the union representative that the employees had voted unanimously no union, page 240 of the record.

At that time, the union representative stated that he believe management and I'm quoting, “had influenced the employees in his absence.”

That's page 270 of the record.

Then after the employees had decided not to join the union, there was a raise in wages.

That's at page 131 of the record.

And then it was that the unions instituted what we contend was peaceful picketing with the sign reading and I'm quoting, "Millmen's Union 2020 Teamsters Union number 36, invite employees to join."

That's at page 262 of the record.

The -- as I -- if --

Chief Justice Earl Warren: Was that the only -- it was the only signs?

Mr. Charles P. Scully: That was the only sign and the record will disclose that it is the first time that such type of a sign had been used by the union.

Then the employers' attorney testified with respect to items I have just mentioned that a petition have been filed.

You'll find that at page 191 of the record that there had never been any filing of an unfair labor practice charge.

That's 197 of the record.

That there has never been any appeal from the dismissal of the representation petition by the Regional Director of the Board.

And as I say, there was contrary evidence to some of these items introduced at the trial court and then the trial court made its finding that with respect to the business of the plaintiff, it affected interstate commerce and then found that the conduct of the union was for the purpose of compelling the employer to coerce his employees to join the union in violation of the National Act and issued an injunction and damages in the sum of $1000 with the injunction reading that it should remain, and I'm quoting, “Unless and until the defendants have been properly designated as the collective bargaining representative of the plaintiff's employees or inappropriate unit thereof.”

And that's on the record on page 17, and then it entered judgment in accordance with its finding of law.

And so I believe, Mr. Chief Justice and Associate Justices, I have briefly summarized for you the procedural backgrounds of the case.

I have attempted to give to you the facts of this case as we believe they could be viewed.

We believe that, that is important because as far as we are concerned, we respectfully submit to the Court that this case is governed by the decision in Garner and Weber and the decision in Oliver issued by this Court yesterday and that it is not controlled by the so-called Laburnum doctrine as stated by the respondents in this particular case.

Justice Felix Frankfurter: Do you also state, before you get in argument, what conceive to be issues before this Court.

What do you conceive besides the questions on which you see the favorable --

Mr. Charles P. Scully: I believe that the concise question involved in this --

Justice Felix Frankfurter: They just want -- and they just want that --

Mr. Charles P. Scully: I believe it can be summarized to one and it may have subdivisions, Your Honor, but Mr. Justice, I believe the issue was this.

That where there is peaceful picketing with respect to a labor management dispute, although which this Court has found, the National Labor Relations Board has jurisdiction, may a State Court grant damages for conduct which the National Board must in the first instance determine is either protected or prohibited by permitting a state court to first determine for itself whether it is protected or prohibited and thereby, award damages.

Justice Felix Frankfurter: Exactly the correction I assumed you will try that no decision of this Court, the period of cases even with problems, if we have any, has decided this particular question you just raised, is that right?

Mr. Charles P. Scully: I -- I think Your Honor that while the certain decisions may be construed, I -- I believe that the precise point has not been completely decided in any decision of this Court.

Yes, sir.

Justice Felix Frankfurter: You do not happen to know that we've already reached a favorable result your way.

We should overrule or qualify and if I (Inaudible)

Mr. Charles P. Scully: No, Your Honor.

The respondents in their brief would infer that we're asking the Court to reverse Laburnum.

We believe and we hope to demonstrate that Laburnum is not applicable to this particular case and that Russell and Gonzales and the other cases are distinguishable so it is our contention that we are not asking the Court to reverse itself but rather to -- to apply the doctrine of Garner and Weber to this fact situation and -- and the Oliver doctrine of yesterday of this Court.

Now, in that regard Your Honor --

Chief Justice Earl Warren: Mr. Scully, is there any dispute as to whether there was any violence in there?

Mr. Charles P. Scully: There is no dispute and in the first decision in this case, this Court itself specifically stated that the conduct was peaceful, and you will find that in the appendix to our petition for certiorari and it's on page 50, in which this Court stated, “The union's commence peaceful picketing to enforce their demand.”

And that is found in the decision of this Court in its first opinion.

And so we submit the -- that also in the record both in the court below and in the testimony that there is no dispute but that the conduct was peaceful, you'll recall that I referred to the decision of the District Court of Appeal where not only indicated that was peaceful but that not even any secondary boycott was involved.

The reason I stressed that is because of an inference in the Government's brief which we received yesterday along the lines of secondary boycott.

Then if we may, we believe that the language in the Garner and Weber cases are particularly pertinent here.

In the Garner case, this Court stated and I'm quoting, “The power and duty of primary decision lies with the Board, not with us.”

They also stated, “We conclude that when federal power constitutionally is exerted for the protection of public or private interest or both, it becomes the supreme law of -- supreme law of the land and cannot be curtailed, circumvented, or extended by a state procedure merely because it will apply some doctrine of private rights to the extent that the private rights may conflict with the public ones.

The former is superseded.

And that's at page of 500 and 501.

Then in the Weber case, this Court stated that -- and I'm quoting, “If this conduct does not fall within the prohibition of Section 8 of the Taft-Hartley Act, it may fall within the protection of Section 7 as concerted activity for the purpose of mutual aid and protection.

I do believe I may have misstated, within the prohibition of Section 8 and the protection of Section 7.

And there again, I think the facts of this case as I have outlined from the Court are particularly pertinent because in this case, the union contended that it was a peaceful picketing with respect to organizational activity, the Court found that it was coercive picketing to compel an employer to compel his employees to join the union.

And so we believe that factually, this case squarely counts within the statement of the Weber case namely that it could either be protected activity or prohibited activity and that it is up to the Board and the Board alone in the first instance to make that decision.

But that here, a trial court where no unfair labor practice charge had even been filed steps in and intruding itself in violation of the doctrine of Garner, comes in and makes a determination that it was a violation of Section 8 (b) (2) of the Act.

And I have quoted that portion of the record already to this Court in which the Supreme Court of the State of California specifically found that this was an 8 (b) (2) violation, although what had never even been before the Board and although no charge had ever been filed.

With respect to the decision of this Court yesterday, we believe the language is particularly pertinent insofar as this case is concerned at pages 49 -- 48 and 49 of the -- of the page proof.

The Court has stated in the Oliver decision, “Congress has provided for a system of federal law applicable to the agreements -- agreement the parties made in response to that duty citing Lincoln Mills.

And federal law sets some outside limits not contended to be exceeded here on what their agreement may provide,” citing the Allen-Bradley and other cases.

And then continuing, “There is no room in this scheme for the application here or this State policy limiting the solution that the parties' agreement can provide to the problem of wages and working conditions.”

And then finally, and we believe this is particularly applicable here because of the argument of respondents that it's the nature of the remedy rather than the substance of the dispute that should control.

This Court stated at the bottom of page 49 and at the top of page 50, “Clearly, it is immaterial that the conflict is between federal law and the application of what the state characterizes as an antitrust law.

We believe that's particularly pertinent here because we submit that respondents are now attempting to re-characterize the nature of the dispute.

We submit that as we have quoted the record to you, the California Supreme Court pursuant to the finding of the trial court specifically found that this conduct initially was illegal because it was a violation of 8 (b) (2) even though it had never been before the Board on an unfair labor practice charge that the case is still founded upon that determination.

That accordingly, under the principle of Garner, Weber, and Oliver, if this Court permits a state court under the facts of this case to intervene by awarding damages, it not only will permit a multiplicity of actions to be asserted in the labor management field but also will in effect permit it to -- to give a type, in effect a type of -- of prevented relief because a multiplicity of damage actions can be as equally preventive as an injunctive relief.

Then if we may, Your Honor, we would like briefly to attempt to indicate how we believe the cases relied upon by respondents are not applicable.

First, with respect --

Justice Felix Frankfurter: And before you do that, I was looking -- whether the -- which is just extension opinion, dealt with the bearing of adversity upon problem now before us.

Mr. Charles P. Scully: I do not believe it does, Your Honor.

All right, first, if we may then, Your Honor, the first particular case is of course the Laburnum case itself.

In the Laburnum case, we believe it is to be noted that the conduct was violent and that in accordance with the decision of this Court in the Kohler case, the state court could have awarded both injunctive relief and damages and accordingly, we believe that that case is not applicable to this case because this Court in its first decision has clearly indicated that this field is preemptive insofar as the Garner decision is concerned and has reversed as to injunctive relief.

And so, we believe that Laburnum case is not applicable here.

Secondly, with respect to the remaining two cases, the first one is the Russell decision, and we believe here that the Russell decision is even further removed from the orbit of the so-called labor management field which is involved in this case because that involved the prevention of access to a plant by violence.

An employee was prohibited from entering the plant because of violence.

And we submit that absent any labor dispute at all, assuming there was no labor dispute at all.

That clearly, this would be conduct which would be subject to state action.

And that accordingly, that conduct is totally remote from the conduct to this case, where we have peaceful picketing, which may depend upon the determination of the Board.Be either protected or prohibited under the National Act.

Finally, with respect to the Gonzales case, we believe that also is clearly distinguishable because it involved purely personal rights of the member of a labor organization with respect to his contract with the labor organization.

And so we respectfully submit to this Court that in accordance with the doctrine of Garner, Weber and Oliver, that the State Court in the facts present in this case is without authority to award damages and we accordingly, respectfully submit that that portion of the determination should be reversed.

Chief Justice Earl Warren: Mr. Plant.

Argument of Marion B. Plant

Mr. Marion B. Plant: Mr. Chief Justice and the other members of this Honorable Court.

I think that the case would be a little bit clearer in my mind not in minds of the Court if I reviewed briefly the background as I understand it to be.

There was a picket line established by the petitioners here.

There was a dispute as to the nature of that picketing which dispute was resolved by the trial court.

And this findings of fact were held upon field to be supported by the evidence.

And why when I state the facts, I'm not stating our version of the facts or the union's version of the facts but the facts as found by the Court.

And the facts found were these.

That the unions had presented the employer with a contract which contained a union shop clause that they had demand -- demanded that he sign it.

That's when he refused to do so because his employees had not designated the union as their bargain -- bargaining representative, and apparently didn't want it.

They established the picket line for the purpose of forcing him to sign this contract and thus, to interfere with his employees and their free choice of the bargaining representative and to discriminate them against them for failure to join this union.

Now, those are the facts as found by the Court.

The activity was the activity of a stranger union.

The National Labor Relations Board through its general counsel declined to take jurisdiction of the representation matter because the impact of the employer's business on commerce was so slight that the Board did not think that the matter required its attention.

Justice Felix Frankfurter: Was this -- was affixed to the (Inaudible) to take a case by the Board or anybody seizing for it based, so far as there's any -- avowal of their action, the reasons for their action.

Did they say they did not have jurisdiction?

Mr. Marion B. Plant: No, they just --

Justice Felix Frankfurter: In the technical sense?

Mr. Marion B. Plant: No, Your Honor.

Justice Felix Frankfurter: Did they say exercising the discretion that the Board has as to what cases be taken and what not be taken in the inevitable character making that determination.

They thought this wasn't the case for them to take up, which was --

Mr. Marion B. Plant: They -- and I -- I think that it was in the exercise of their discretion, may determine that the case did not meet their jurisdictional standards, so-called.

Justice Charles E. Whittaker: The monetary?

Mr. Marion B. Plant: Yes.

Justice Felix Frankfurter: Pardon me?

Mr. Marion B. Plant: They determined that the case did not meet their monetary standards.

Justice Felix Frankfurter: Yes, but not the statutes already excluded.

Mr. Marion B. Plant: No, I -- I don't know what case would fall without the statutes.

Justice Felix Frankfurter: But I just --

Mr. Marion B. Plant: Now, the trial court awarded an injunction and damages.

There was an appeal to the California Supreme Court after it -- action by the District Court of Appeal and the California Supreme Court affirmed.

In doing so, it followed a doctrine which had a -- had enunciated some years before in the Park & Tilford case.

It said that -- that this -- it would be against public policy for this employer to enter into a bargaining contract with this union because if it were to do so, or a closed shop contract.

Because if it were to do so, it would be committing an unfair labor practice.

Now, picketing for the purpose --

Justice Felix Frankfurter: The kind of unfair as denounced by what law?

Mr. Marion B. Plant: Under the Federal Act.

Justice Felix Frankfurter: Under the Federal Act.

Mr. Marion B. Plant: Yes.

The picketing for the purpose of forcing an employer to do that which public policy for -- forbids, is for a wrongful purpose and is not privileged.

Justice Felix Frankfurter: May I -- may I interrupt you again --

Mr. Marion B. Plant: Yes.

Justice Felix Frankfurter: -- Mr. Plant?

Up to that point, then we have a situation where the National Board declined to take and please itself of jurisdiction.

And the state court however, found a violation of the National Act.

Mr. Marion B. Plant: Well --

Justice Felix Frankfurter: Is that a fair statement?

Mr. Marion B. Plant: That is not quite a complete statement, Your Honor.

Justice Felix Frankfurter: All right, you go on.

Mr. Marion B. Plant: There were two possible violations that the Federal Act involved.

One would have been the act of the employer in contracting with the union.

If he had done so.

That would have been a violation of the National Act.

And under the law of California, even though the picketing itself would not have been -- been a violation of the National Act, it nevertheless would have tortuous because it was for the wrongful purpose of compelling the employer to violate the paramount public policy.

Justice Felix Frankfurter: Of the State.

Mr. Marion B. Plant: Of the Federal Government.

Now, an additional answer to the union's contention that the picketing, nevertheless was privileged had the Court replied while the picketing itself is an unfair labor practice, and we will not treat as privileged under California law that which the Federal Act condemns.

Justice Felix Frankfurter: Well, I --

Mr. Marion B. Plant: We therefore find the distortions.

Justice Felix Frankfurter: If I press this point, forgive me but I think -- it's my way of thinking about conclusion.

Mr. Marion B. Plant: Yes.

Justice Felix Frankfurter: Whether it was privileged or not, there was the determination that there was a violation of the National Act by the state authority after the National Board had declined to find out whether there was or there wasn't.

Mr. Marion B. Plant: Yes, I think that the California Supreme Court said that this picketing violated the -- the National Act.

Now, the case came up to this Court and this Court decided it the same day as it decided the Guss case and the Fairlawn Meats case and held as it did in those cases that under the doctrine of the Garner case, the state court was without power to issue injunctive relief.

It said that the fact that the case fell in this twilight zone was immaterial because the only way that the National Board can cede to a state its power to prevent was the method proscribed by Section 10 (a) of the Act.

However, the employer argued that though the state court was deprived the power to grant injunctive relief, it nevertheless was empowered to award damages.

And to follow on that question, this Court said this, “Respondents however, argue that the award of damages must be sustained.

We do not reach this question.

The California Supreme Court leaves us in doubt, but its opinion indicates that it felt bound to apply or in some sense follow federal law in this case.

There is of course no such compulsion.

Laburnum sustained an award of damages under state court law for violent conduct.

We cannot know that the California Court would have interpreted its own state law to allow an award of damages in this different situation.”

And the case was remanded to the California Supreme Court for the purpose of permitting it to determine whether there was liability for damages under the state law of California.

The state court reviewed that question and determined that that Section 923 of the California Labor Code, like a similar provision in the National Labor Relations Act, rendered it against public policy for an employer to discriminate against employees because of union membership or left thereof or to otherwise interfere with them in the exercise of their rights.

And that for that reason, the picketing was for the purpose of compelling the employer to a violative public policy of the State of California and it was tortuous.

It therefore affirmed the award of damages, and here we are again.

Justice Potter Stewart: There is no question in this case of any violence at all --

Mr. Marion B. Plant: No violence.

Now, if it please the Court.

In presenting to the Senate the bill which had been reported out of the Committee and which was certain amendments later became the Taft-Hartley Act.

Senator Taft made a -- a comprehensive explanation of its contents to the Senate and right at the beginning of that explanation in his introductory remarks, he had this to say, “I myself feel that large employers can well look after themselves.

But throughout the United States, there are hundreds of thousands of smaller employers, smaller businessmen who, under the existing statutes, have come gradually to be at the mercy of labor union meetings, either labor union leaders attempting to organize their employees or labor union leaders interfering with a conduct of their business for one reason or another.”

Now, throughout the debate, they ran this theme of concern for the small employer of the need to give him additional protection against various union abuses, and it was upon that theme that the debate closed.

In presenting the closing argument in favor of overriding the present -- presidential veto, Senator Taft again said.

“All we have tried to do is swing that balance back not too far to a point where the parties can deal equally with each other and where they have approximately -- approximately equal power.

I think the largest companies today can deal with their employees throughout the nation.

But the smaller companies are practically at the mercy of a labor union process.”

Now, may it please the Court, you have before you a small employer.

He has been injured by conduct which is condemned both by the federal law and by the law of the State.

He has been denied reliefs under federal law because the impact of his business upon interstate commerce is so slight that the Board does not consider the matter worth its attention.

He has been denied injunctive relief under state law because the Board's power to prevent is exclusive of parallel power upon the part of the states.

And because Section 10 (a) of the Act provides the only method by which the Board can cede to a State this power to prevent.

And now we are here with the petitioners condemn -- contending that not only is this employer deprived of all right with any kind of preventative relief, but that he has -- is also deprived of a right of action for damages.

Now, if the petitioners are correct in this contention, then it means that this employer who has been injured by conduct, which violates both state and federal law and for which each provides remedies, is without any remedy whatever.

If -- and the same is true or will be true of thousands of other employers like him.

Justice Felix Frankfurter: May I -- may I ask again?

Mr. Marion B. Plant: Yes.

Justice Felix Frankfurter: -- of which constitutes, you said a violation of both state and federal law.

Mr. Marion B. Plant: Right.

Justice Felix Frankfurter: But in a way, in saying that and at least, I think pass on or pass over or include what is the essential practice in this case.

Namely, is it also state law if the federal law may determine that there wasn't a violation of the National Labor Relations Act and therefore, the foundation of the state judgment is gone?

Mr. Marion B. Plant: Well, of course you're quite true, Your Honor, that the federal substantive law where it applies supersedes state law and I didn't mean to imply otherwise.

Justice Felix Frankfurter: I -- I didn't mean to -- I -- I think that's a fair enough of with having it appear, if one analyzes it, and that's what it gets down to.

Because if a chance, State Labor Boards had taken or could take jurisdiction, I -- I don't know anything about statute of limitations and all the rest.

Suppose the Labor Board changes its mind and what if they put a jurisdiction precisely at the same time that a case is not (Voice Overlap) --

Mr. Marion B. Plant: It might reach a contrary conclusion as to the facts.

Justice Felix Frankfurter: It might reach a contrary conclusion and then the state court couldn't say -- couldn't start to discourage them, could it?

Mr. Marion B. Plant: Well, I -- I think it could for this reason, Your Honor, that the question whether the employer would be violating the -- well, wait, let's -- let's come back just a moment here.

I'm overlooking something.

The last decision of the California Court was not based upon federal law.

So that, when I am -- when I say that the conduct is condemned by federal law, I am not relying upon the decision of the California Supreme Court to that effect.

Justice Felix Frankfurter: Wasn't it -- wasn't that --

Mr. Marion B. Plant: I'm relying simply on my own knowledge of the Board and the Court's decisions.

Justice Felix Frankfurter: Wasn't that the starting point of the first decision?

Mr. Marion B. Plant: That was the starting point of the first decision.

Justice Felix Frankfurter: Wasn't that -- wasn't that assumed that it were under Section --

Mr. Marion B. Plant: I don't --

Justice Felix Frankfurter: (Voice Overlap) of course, if you --

Mr. Marion B. Plant: It was --

Justice Felix Frankfurter: -- if you defend here and say to us that there is no preemption, there can't be no preemption because California was in the scope of its own state authority as condemned conduct no matter what the Labor Board says in another relationship or another situation.

And the two are not in conflict in the sense in which one talks about conflict, that's a different story.

And I take it that's the -- that's ultimately in what the Laburnum doctrine gets down to.

They're -- they're throwing bricks even though in part involving or growing out over its relation to what some other aspects of the labor controversies, is not the kind of thing unless Congress or where the Constitution could.

No, no -- not that having conflict, take the whole thing over.

It's the not the kind of thing that is involved in the determination of whether there is or isn't of proscribed or a permitted conduct under the Labor Act.

Mr. Marion B. Plant: Maybe --

Justice Felix Frankfurter: You must try in order -- in order to deny -- in order to say no.

This decision does not derive from a violation of the National Labor Relations Act or Taft-Hartley Act.

You must find some independent unrelated prohibition by the State of California which we follow to do so to condemn the conduct that is involved.

Mr. Marion B. Plant: We have that, Your Honor.

There's no question about that.

Justice Felix Frankfurter: When --

Mr. Marion B. Plant: The decision of the California Supreme Court as I say was -- the second decision was based purely upon California law.

The only way the federal authority comes into the picture is through the argument that the thread -- federal authority precludes the State from acting.

Justice Felix Frankfurter: Well --

Mr. Marion B. Plant: In the first --

Justice Felix Frankfurter: Maybe the law was -- the second decision is the state law that you give damages.

Mr. Marion B. Plant: Right.

Justice Felix Frankfurter: But -- but that -- I know the (Inaudible) as I'm talking about, to remedial matters as against subsequent.

But that is merely by two -- whether in the California law, although you can't get an injunction for the reasons that we set forth in the following adjustments, although you can't get an injunction, may under California law, get damages.

But the substantive -- the substantive starting point is this thing or am I wrong about that?

Mr. Marion B. Plant: The same in the two cases?

Justice Felix Frankfurter: Yes.

Mr. Marion B. Plant: Preventative relief and damages?

Justice Felix Frankfurter: No, that's the -- that the damage relief is in relation to the substantive -- the same substantive matter for which an injunction couldn't be granted according to (Voice Overlap).

Mr. Marion B. Plant: Right, Your Honor.

That's correct.

That's correct.

Now --

Justice Hugo L. Black: You are taking somewhat the argument of the dissent in the Guss case --

Mr. Marion B. Plant: Well, I've seen so many arguments I can't recall, [Laughs] Your Honor.

But no, the question which is -- was before the Court, now is not before it in the Guss case.

I would say that I'm taking the line of the majority of the opinion in the Laburnum case.

I haven't got quite to the points of saying why yet.

I've still been engaged in the background that that is our position, that the Laburnum case is controlling.

Now, I just --

Justice Felix Frankfurter: The reason I interrupting you so much is, these are very tricky -- these are very -- almost you might call a subtle distinction the Court has had to go.

Mr. Marion B. Plant: Indeed they are.

Justice Felix Frankfurter: And -- and I think one has to watch each step if he -- if he were to put -- to putting it.

Mr. Marion B. Plant: Yes indeed.

Well now, I just want to point out before launching into some of these questions that have been raised that if the petitioners are correct in their contention in this case, then Congress, instead of succeeding in providing small employers with certain additional relief has succeeded only in depriving them of what protection that they already have until we have an area created -- the Congress has created, a jungle area, in which we have simply an argument.

It's like the Westerns where the sheriff is the only law except up here, we'd have no sheriff.

Now, I think that the arguments set forth in the dissent of the -- of Justice Treanor in the court below fairly represents the arguments in favor of the petitioner's position.

The substance of that argument is that the jurisdiction of the State does not depend solely upon the nature of the remedy, but depends also on the nature of the subject matter.

And that the Laburnum case is distinguishable because it involved violence.

And that Justice Treanor sets forth four or five considerations which he regards as entering into the determination of whether or not there is preemption in the particular case and seems to believe that one or another of those considerations distinguishes our case from the decision in the Laburnum case.

And with that, I respectfully disagree with Justice Treanor.

First of all, he said in the Laburnum case, there was no conflict between the federal and state law because the conduct was a tort under Virginia law and an unfair labor practice under the federal statute.

We have the same case here.

The conduct the Court below has held is a tort under the California law and I think that there is no question that it was also an unfair labor practice.

Even if it were not an unfair labor practice, it's certainly and I -- I believe that I can support this, is not conduct which the Act protects so that there is no conflict in the substantive law.

Justice Felix Frankfurter: Then when -- you are very confident about that.

How can one be so sure that the Board wouldn't find that it wasn't --

Mr. Marion B. Plant: Well, if the Board found that it was protected, Your Honor, the Board will be wrong and would be reversed by this Court because I don't think that this Court would ever hold that the Act protects conduct designed to force an employer to do that which the Act forbids.

And that the Act does forbid an employer from entering into a closed shop agreement with a union that does not represent its employees, is very, very clear indeed.

Justice Felix Frankfurter: But -- but does that -- does that conclusion follow from -- or is that not permit the conclusion that -- for them to picket without violence is not compelling the employer to do that?

Mr. Marion B. Plant: Well, it's --

Justice Felix Frankfurter: That's my trouble.

Mr. Marion B. Plant: I don't know.

I -- I don't think that even the Board would hold that that conduct was protected and as I say, I'm quite sure that if the case were before this Court, it would hold that it wasn't protected.

Justice Felix Frankfurter: In what --

Mr. Marion B. Plant: The idea here is of course that it's always possible.

When a factual issue is presented to two bodies for the -- the two bodies to decide that issue differently, that's something we're confronted with everyday.

That's something we're confronted with under the Taft-Hartley Act in actions in part under Section 303 and an unfair labor practice charges while identical issues are presented to the Court and to the Board.

Justice Felix Frankfurter: When you said that, has gone a long way to illuminate the whole problem (Inaudible)

Namely, that if in such a due tribunal, one federal and one state which may without going on a joy ride and without going on a frolic of their own, breach of determination during conflicts then you've got the problem of whether that potential conflict couldn't -- could be avoided by saying that the act of Congress has displaced the power of the State.

Now when you deal with violence, you've got a different story, because as violence plays -- violence plays a different story in all that in a very (Inaudible) of the law, takes the coerced confessions.

One thing to the -- the disputes we have about whether voluntary or not in your dispute if you got without a question of violence.

Mr. Marion B. Plant: Well, Your Honor, I respectfully -- respectfully disagree with you.

As just heard --

Justice Felix Frankfurter: That's one of my questions, to elicit comments and illuminate --

Mr. Marion B. Plant: As Justice Stewart said yesterday, the fact that a man is killed does not mean that there has been a murder.

And the fact that there is violence does not mean that is unjustified, they're wrongful.

And different bodies can reach different conclusions as to whether or not it's wrongful.

And Justice Treanor remarked in this case that here in the Laburnum case, there was violence.

Well, nobody can disagree that violence is wrong, but the fact is that the Board repeatedly in the past, has refused to credit the witnesses which appeared to me to be credible that violence had been committed.

The Board repeatedly in the past has held that violence was justified, that it was justified by some unfair labor practice of the employer or because it was brought about by the employer.

I need refer you only to the Court's decision in the Fansteel case.

Justice Felix Frankfurter: Well, I suggested the fact that is -- what you're doing is to cast some -- that's a very different difficulties about Laburnum as others have raised difficulties.

But I do think the danger that where a case comes to this Court, our unquestioned findings that there was violence, that the Labor Board made in the context of the whole labor strategy of the strike go on controversies, find there wasn't any violence, is a thing that this Court can say.

It is not so important, the danger of potential conflict as in state and federal authority as if the case where conceded and you have no violence at all.

Mr. Marion B. Plant: Well, I -- I just don't see that they differ a bit, Your Honor because if that Laburnum case had been presented to the Board, it might very well.

It's entirely conceivable.

Justice Felix Frankfurter: It might -- well, all of it this which is why we're telling this also --

Mr. Marion B. Plant: (Inaudible)

Justice Felix Frankfurter: -- to a non-demonstration.

Mr. Marion B. Plant: Yes.

Or it might have said, “Sure, there was violence but the employer had goon squads out there beating them up and they were just defending themselves.”

Justice Felix Frankfurter: Well then, this Court have said, that's -- as I would have guessed -- called it in.

That -- that kind of strike did not displace the authority of the States to deal, where you have goon squads on one side and -- and violence on the other but that did not displace what is -- what I might call elementary police power to the State.

Mr. Marion B. Plant: Well now, let -- let me point this out to Your Honor.

After all, we are seeking to solve the question of congressional intent.

If Congress wasn't at least a bit concerned by the possibility that a state or federal court might decide some factual issue differently from the Board then I submit that we shouldn't be concerned.

Now, the fact is that Congress enacted Section 303 of the Taft-Hartley Act which renders certain conduct tortuous in terms practically identical with Section 8 (b) (4) of the National Labor Relations Act which characterizes that same conduct as an unfair labor practice.

Senator Morris on the floor of the Senate pointed out to the Senate that the danger of conflicting adjudications regarding the same conduct and not simply conflict -- conflicting factual adjudications but conflicting interpretations of the same language of the statute.

If you will bear with me just a minute, I'll cite --

Justice Hugo L. Black: What do you had caused the bill?

Mr. Marion B. Plant: He was speaking against it.

He said, “I do want to make the additional argument against the Taft substitute,” that is Section 303.

“That it makes it possible for two different District Courts,” and he omitted state court -- state court too.

“And the NLRB to be dealing simultaneously with the same subject matter.

The Board would be conducted a -- conducting a hearing look -- looking to a cease and desist order.

At the same time, the Board would be required as provided in the committee bill on which I shall comment in the moment to seek injunctive relief which means that -- that there would be two of the actions going on the same time or that there might be.

Well, they acquiesced in this latter provision when it was added to the bill.

I may say that I did so rather reluctantly.

That is an example however of my willingness to enter into reasonable compromise in the committee.

I did -- did so believing that the best procedure would have been to make it discretionary rather than mandatory for the Board to seek injunctions.”

Finally, under this proposal, we have a third agency, probably a different federal court.

And I may interpolate perhaps a state court which also is given jurisdiction by that section.

Deciding whether a damage action lies, such dispersion of authority in my judgment is very -- is very bad legislative policy.

Now, nevertheless, and then base to that warning, the Congress did go ahead and disperse authority.

Justice Felix Frankfurter: And gave us all these troubles.

Mr. Marion B. Plant: Well, I [Laughs] -- sometimes I think we tend to create some of our own troubles, Your Honor.

Justice Felix Frankfurter: That's okay a comment.

[Laughter]

Mr. Marion B. Plant: Now, I submit that Congress was not in the least bit concerned over the possibility that a federal or State Court might decide a factual or legal issue presented under Section 303 than the Board might decide them in a -- an unfair labor practice proceeding under Section 8 (b).

And that very situation has risen.

There was an instance which found its way to the cross appeal in which the Board where there was a proceeding against the employer for having wrongfully discharged some men and who contended that the -- he discharged them because they had been engaged in secondary picketing.

The Board found there was no secondary picketing.

And felt the employer guilty of wrongfully discharging him.

But the jury in an action under Section 303 held that there was secondary picketing and awarded damages.

Both cases went up to the Court of Appeals and to affirm the law.

That is the, our Deena Artware case, that is cited in our brief and also on the brief of the Solicitor General.

Justice Hugo L. Black: Where is it cited?

Mr. Marion B. Plant: What is that?

Justice Hugo L. Black: Well, I don't see it in your brief.

Mr. Marion B. Plant: That's not our brief, Your Honor.

Our brief is the orange one.

Well, it's there but I would take a second to find it.

Justice Hugo L. Black: In the orange --

Mr. Marion B. Plant: Yes, it's here.

Just wait a second and I'll get it for you.

It would be found on page 21.

Now, if you'll pardon me for my repeating myself, I -- I don't think this Court should be too concerned about a problem which apparently didn't bother Congress I think.

Apparently, Congress thought it was all right to have these issues decided by different bodies.

And after all, it is the intent of the Congress with which we are concerned.

And I might add that there is much less danger of conflict between a State applying state law and the federal Board applying state law -- federal law, then there is a conflict between two bodies applying the same federal law.

There is nothing unnecessarily inconsistent or necessarily inconsistent between a State's holding that -- that conflict -- conduct does violate state law and the Board's holding that it does not violate federal law, nor is there anything inconsistent between a State's holding that conduct does not violate state law and the Board's holding that it does violate federal law.

Well now, the fact is -- furthermore, with respect to this question of violence which arose a moment ago that the Laburnum case did not go off on the basis of violence.

Now, true, there was violent conduct involved in that case, but the Court's decision was not based upon that ground.

The rationale of the Court's decision was simply that a judgment for damages did not present any potential conflict with preventative relief by the Board.

Justice Felix Frankfurter: What is your distinction between giving injunctive remedy as an expression of state policy which this Court have included in this kind of a case and giving money damage.

Mr. Marion B. Plant: The main distinction is this, Your Honor.

An injunction of course controls future conduct.

And if you violate the injunction, you're likely to end up in jail.

The Board is given similar power to prevent.

I say similar, it's not quite similar in this respect that there is one area in which the Board is given a wide discretion.

I don't think that the Board has given any discretion in determining whether or not there has or has not been an unfair labor practice.

There, the function is simply as a Court interpreting and applying the law.

But when it comes to fashioning the preventative remedy, it is given a discretion.

And what the State does by way of a preventative remedy may very well interfere with what the Board sees fit to do by way of prevention.

Now, that is not true in the case of a judgment for damages.

A judgment for damages represents an attempt to compensate a person for injuries already sustained, something with which the Board has nothing to do.

It has no power of any kind or nature with respect to conduct already committed.

It can give no relief of any kind with respect to such conduct.

It has no power to award damages and there is just no possibility of conflict between the two remedies.

Now --

Justice Felix Frankfurter: Except as to the starting point from which the money damage flows, and be ascertained by the state court's order says and within refusal of the Board to give a cease and desist order because on their view of the testimony, find out of it and what the state court is on.

Mr. Marion B. Plant: There's always that possibility, Your Honor.

We have already discussed the possibility of conflicting findings of facts.

Now, if the substantive law conflicts, that presents no danger because if the act -- if the state endeavors to take a right -- away some right, which is conferred by the Federal Act, then that will be corrected upon appeal and by this Court as it was corrected yesterday in the case which came up from Ohio.

Justice Felix Frankfurter: Well, can we assume that if the Board found -- the fact that the state courts found this, it wouldn't grant this in this order if the Board -- when does the Board, finding that there was a violation of the Federal Act, decline to issue a cease and desist order.

When before -- which this conflict arise being a remedy denied by the Board within its discretion and yet granted analogous to by the state court by way of injunction?

Mr. Marion B. Plant: An example doesn't occur to me off hand, Your Honor.

The usual refusal of the Board to grant relief would be based presumably upon finding of fact or an interpretation of its statute contrary to what you might expect.

Justice Felix Frankfurter: You helped me to be more troubled than I have already been about that.

Mr. Marion B. Plant: [Laughs]

Justice Felix Frankfurter: (Inaudible)

Well now, Justice Treanor's next point was that the State in the Laburnum case was enforcing a law of general application rather than one and specifically at labor relations.

And in this connection, he refers to the Court's -- this Court's statement in that case that if petitioners were unorganized private persons conducting themselves as did petitioners here, Virginia would have undoubted jurisdiction of this action.

Well, that to me is a distinction which makes no difference.

It really isn't a distinction because here, the California Court was not applying a basic rule of law which is simply the product of a labor relation statute.

It, like the Virginia Court, was applying a rule of law which says in substance that an unprivileged interference with the business of another is tortuous.

It has no particular application to labor unions and here, as in the Laburnum case.

If a group of private unorganized citizens had gotten out in front of this man's place of business and conducted themselves as to these pickets, it would have been tortuous.

Their conduct would not have been privileged.

Suppose they had been picketing, they were employees of the competitor and were picketing to drive business to the competitor, would that have been privileged?

Now, here, just as in the Laburnum case, picketing by unorganized individuals would have been tortuous and there would have been liability.

The fact that conduct such as that about which we're here complaining is simply a violation of this rule against unprivileged interference, is exemplified by a decision written by Justice Brandeis.

In the case of Dorchy versus Kansas, 272 U.S. 306, where there was a strike to force payment of a disputed wave plan -- wage plan.

And Justice Brandeis said this about it, “The right to carry on business, be it cause liberty or property has value.

To interfere with this right without just cause is unlawful.”

Now, that's simply the basic rule which has been applied here just as in the Laburnum case.

And I cannot see that there is any distinction on that respect between them.

But let us suppose that the California law were a law, simply a labor relation statute, that's happening in some States.

Why would that make a difference?

Why would the nature of the statute and the source of the substantive rule, which we're applying make a difference as to whether or not there was or was not preemption?

I just don't see any materiality to the problem before us.

And the fact is that this Court in the Anheuser-Busch case seem to say that the nature of the statute is immaterial.

Whether the State is enforcing an antitrust law or a labor statute, the result is the same and that's what we're interested in.

Now, having concluded that the Laburnum case was not in point and that the question for it there had or had not been decided, you would have thought that the dissent would have then looked to the statute to see if there was anything to justify the conclusion that this man was left without any remedies.

But it didn't look at the statute from the premise that the point had not yet been decided by this Court has simply dealt to the conclusion that there was preemption.

Now, that conclusion I submit as well as the premise, the conclusion is unjustified.

The Garner case, if I read it correctly, was based upon the language of the Act which confers power upon the Board to prevent unfair labor practices.

And this Court concluded that a State Court injunction might conflict with the Board's exercise of this parallel preventative power.

The Guss case and this case, one of these before you before held that this preemption extended to the twilight zone.

Because the only way in which the Board's power to prevent could be seated to a State was through the -- the session proceedings provided for -- for by Section 10 (a).

Now, that reasoning of course simply could not justify the conclusion that the State was deprived the power to award damages.

The State's power to act, certainly, cannot depend upon session by the Board of a power which the Board does not have and it does not have the power to award damages.

The very section which confers upon the Board its power to prevent provided that this power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.

Now, this seems to contemplate that there may be other means of adjustment.

And it says that the fact that there are other means of adjustment shall not affect the Board's power, shall not deprive it of power.

Now, just what did Congress understand that provision to mean?

It didn't leave us in the dark as to that.

It said something which has been quoted in prior opinions of this Court.

It said that, “By retaining the language which provides the Board's powers under Section 10 shall not be affected by other means of adjustment.

The conference agreement makes clear that when two remedies exist, one before the Board and one before the courts, the remedy before the Board shall be in addition to and not in lieu of other remedies.”

Now, I don't know what clearer statement we could possibly hope for.

That statement couldn't be referring simply to remedies in the Courts under Section 303 of the Act because the language to which it refers and which it was explaining had been contained in the Wagner Act at a time when there was no Section 303, so they couldn't simply have been talking about remedies in the courts under 303.

Chief Justice Earl Warren: I might say, have been talking about federal courts as distinguished from the state courts.

Mr. Marion B. Plant: I find nothing to indicate it, Your Honor.

I don't know what remedies they had in the federal courts.

There weren't any before -- before Taft-Hartley.

Chief Justice Earl Warren: Well, but the section didn't say that there were, does -- had it?

It never said that they should now because there have to be any.

Mr. Marion B. Plant: Right.

Chief Justice Earl Warren: That would -- would be an addition.

Mr. Marion B. Plant: Right.

Chief Justice Earl Warren: But -- but did it say either in the federal or in the state courts?

Mr. Marion B. Plant: No.

It says before the courts.

Chief Justice Earl Warren: Well, do you -- you take it from that -- that the Congress gave courts right to the states to prescribe for any remedies they chose from their reports and that this should -- this act should only be in addition to those rights?

Mr. Marion B. Plant: No, I will not generalize to that extent, Your Honor.

Chief Justice Earl Warren: Well, to which (Voice Overlap) --

Mr. Marion B. Plant: My point is -- my point is simply this.

We can qualify that by saying, “Well, when they said remedies in the courts, they didn't mean remedies parallel to those granted by the Board.

And therefore, the courts have no power to grant a parallel remedy.

But if we go --

Chief Justice Earl Warren: If any would submit.

Mr. Marion B. Plant: What is that?

Chief Justice Earl Warren: Shall any, would submit, grants --

Mr. Marion B. Plant: That's right.

Chief Justice Earl Warren: -- a parallel.

Mr. Marion B. Plant: That's right.

But we can interpret it to that extent and I take that the Court has done so in the Garner case.

But when we go further and say that there is no right to any remedy at all, then we have deprived this language of all meaning.

Justice Felix Frankfurter: (Inaudible)

Mr. Marion B. Plant: What is your --

Justice Felix Frankfurter: I'm much interested in the use to making it to your brief, I say I'm much interested in the use to making it to your brief.

We -- we're not interested on that because I just thought there's no -- that section to me is nothing but confliction.

Mr. Marion B. Plant: Well, I think it demonstrates the congressional approach, Your Honor.

I think it demonstrates that the Congress wasn't much worried about this thing we're talking about now, the possibility of conflict.

Well now, I think that about includes me, I'm looking through my notes.

I think I've covered in answer to questions, most of the things that I've intended to say, if not all of them.

There has been considerable talk in the opinions about the uniformity of the federal law.

And I think that if we are too general in such talk, we're liable to be misled because the Labor Relations Act does not attempt to impose and I think it's clear from the decisions of this Court that it does not attempt to impose a uniform form of code of labor law, which is to be exclusive of all other laws.

It establishes substance -- certain substantive rules.

For example, the rule that certain conduct is to be protected and it intends uniformity in the sense that it means that that is to be protected in all of the States and all of the states must observe those rights so protected.

It is as for uniformity, in the sense that it creates certain to the wrongs called unfair labor practices which are to be unfair labor practices in all the States and not just some and creates a Board to enforce them.

But I don't think it goes so far as to say that the States may not also enact law which does not conflict with the substantive law or that it might not -- may not provide remedies for violations of its own law.

Now, that I think is -- about covers the ground unless there are some further questions.

Justice Felix Frankfurter: Before you sit down, I'd like to ask you a few words.

I'm not sure I have it clearly in mind, what significance, if any, you would have found the element of violence which certainly was present in Laburnum and it dealt with.

Mr. Marion B. Plant: The only significance I attribute to the presence of violence in that case was that in the circumstances of that case, it rendered the union's conduct tortuous.

Now, that was not the only reason however, the union's conduct was tortuous.

And to speak of the Laburnum case as involving violence and violence only is wrong because it involves something more.

You will recall that Laburnum was a contractor, that he had some contracts with some mining companies to do some construction work and that he had the promise from those companies of further contracts.

He was awarded damages because the mining companies terminated his contracts and because they reneged on their promise of further work.

That was his damage, the loss of business suffered by that means.

Now, why did they terminate their contracts and why did they renege on their promise?

Because they were threatened that unless they did so, you might have mine workers, would pull their own employees out on strike and they would be shut down.

And the damages awarded in the Laburnum case were in fact and you will see this from reading the Court's opinion, the result of the threat of a secondary strike and consequent yielding by the mining companies.

Now, that language is in the opinion of the Supreme Court of Virginia and some of it was quoted in the opinion of this Court.

Now, in answer to your question, I can't distinguish violence from any other sort of tortuous conduct.

It is not tortuous per se.

Whether or not it's tortuous, depends upon its purpose usually upon the factual context in which it's committed just like any other context.

It is not peculiar in that respect.

Thank you, Your Honor.

Justice Felix Frankfurter: You --

Chief Justice Earl Warren: Mr. Scully, go on with your -- with your argument.

Rebuttal of Charles P. Scully

Mr. Charles P. Scully: If the Court please, I believe that we should reply briefly to certain portions of Mr. Plant's arguments and I do not believe it's necessary for us to repeat our contention with respect to the primary determination being made by the Board rather than the state court where there is protected or prohibited activities in our factual -- in our reference to the transcript as the evidence which under Weber, we believe, would clearly indicate a protected rather than a prohibited activity.

We believe we've adequately covered that.

I do believe however, we should point out that with respect to Mr. Plant's contention that this Court should consider the small employer and that even though the field is preemptive that it should permit damages, because otherwise that he is without any protection.

That with respect to that item, it should be stressed that this employer never even filed an unfair labor practice charge.

The facts indicate that at the time he -- he mailed his charge, he already was in Court.

Correction, at the time he filed his petition for representation, the same day he was in Court.

He had no time to file the charge.

Secondly, that the argument he presents has been disposed of by this Court in the initial Guss, Garmon, and Fairlawn cases by saying that it is not even necessary for Congress to meet this problem because the Board can correct the problem by adjusting its discretion as to the scope of activities.

And in fact, we now know that they have revised in a substantial way their rules in regard to asserting jurisdiction and it may well be that an employer of this type, and there is the fining as the $250,000 here will well be subject to Board jurisdiction.

And so we submit that the argument overstates itself that there is not a question of no relief being available.

But assuming -- assuming in spite of the action of the Board and assuming in spite of the failure of the employer to file any charge that there is this avenue still open, then we believe that this Court has already answered that argument in the first Garmon case with respect to the 10 (a) argument by saying that that's a matter that must be corrected by Congress and certainly, that this Court should not permit the award of damage in violation of the overall principles of a uniform National Act solely because in that particular refined area, an employer may not be afforded relief.

Justice Felix Frankfurter: What do you say -- what do say to Mr. Plant's suggestion that the relief the remedy which is available to the Board at least in to this Court is analogous to it and therefore maybe in conflict with an injunction by the state court, but those in conflict can possibly arise in giving damages -- that's with damages.

Mr. Charles P. Scully: Well, I think the first answer is the argument which we have pressed and which I believe you indicated to Mr. Plant, namely --

Justice Felix Frankfurter: I hope --

Mr. Charles P. Scully: -- that it is not --

Justice Felix Frankfurter: -- (Voice Overlap) argument, I hope I indicated difficulties.

Mr. Charles P. Scully: That -- that it is not the form of the procedure as this Court noted in -- in Oliver yesterday.

It's not whether you call it damages or -- or any item like that or in the Baxley case.

It's not the state procedures that you look to.

The question is what is the substance?

And the substance here is that if this state court is allowed to award damage, this court -- state court then has said, “We find in the record as without dispute on page 52 that they specifically found that it was a violation of 8 (b) (2) of the Act.

Now, we believe that is the --

Justice Felix Frankfurter: That's the first -- is that the first –-

Mr. Charles P. Scully: That's the first decision, yes.

And I'm sorry, I gave you an erroneous citation, Your Honor.

It's on page 52, it's correct, on the middle paragraph.

The Court said, "The assertion of economic pressure to compel an employer to sign the type of agreement here involved is an unfair labor practice under Section 8 (b) (2) of the Act."

And so our main answer is, Your Honor, that to permit the State Court to make that determination which is the primary function and duty of the Board is to create the worst possible types of conflict and we believe as already then precluded by the Garner and Weber decisions.

Now secondly --

Justice Felix Frankfurter: Is there anything -- is there anything in the second opinion, the January 16th of last year except inferentially that the Court still stands on that?

Mr. Charles P. Scully: I -- I think that the whole reading of the opinion indicates that that is still the underlying thought of the Court and that it is not privileged conduct because it is violative of the National Labor Relations Act.

Now, with respect to Mr. Plant's second main point, this 303 argument, we would like to make it clear first of all that in this case, we believe 303 is a no way involved.

The District Court of Appeal as we have noted indicated not only that it was peaceful, but there was no secondary boycott.

Secondly, we -- we believe that Mr. Plant has misconstrued Section 303.

In this regard, it is to be pointed out that this Court in the Juneau Spruce decision at page 238 of the Supreme Court Reporter series stated, "Congress was here concerned with reshaping labor management legal relations and it was taking precise steps to declare an announced objective,” and then continuing, “for the jurisdiction dispute proscribed by Section 303 (a) (4) are reserved, -- are -- are made unlawful "for the purpose of this section only, thus setting apart for private redress acts which might also be subject to the administrative process," and then the Court continued and this is at page 239.

"These prohibitions limiting and curtailing the administrative power find a counterpart in the provisions for private redress in 303 (a) (4).”

And so we submit first of all that Section 303 on its face says and I'm quoting, "It shall be unlawful for the purposes of this section only and that the Court in the Juneau Spruce case emphasized and stressed that point.

Secondly, that rather than being weighed against the position of petitioners before this Court, it supports us because it shows that where Congress wished to afford rights to private parties under the Act, they knew how to provide them.

And that when they wished to provide rights to private parties, they called out only these specific items, put them in Section 303, and as this Court has noted, and said, “You can have these private rights.”

And we submit certainly rather than arguing that all private rights exist under the Act, the 303 argument will support our contention that having so limited and specifically stated for the purpose of this section only that you certainly cannot argue that 303 supports the contentions of respondents.

Now, further, with respect to Mr. Plant's contention that the decision of the Sixth Circuit Court of Appeals in the Deena case where on the same day it said, "We affirm the order of the Board and we affirm the order of the Court," created a conflict.

We believe that the very statement in the Juneau Spruce indicate that Congress purposely stated we are going to proscribe two separate types of remedies (1) the Board and (2) we're going to restrict the wide broad discretion of the Board and provide private remedies and of necessity, where Congress purposely gave two forums the same subject matter upon which to act, then inconsistency might result.

But in this case, Congress has confined to one forum, the ability to act.

Now, we --

Justice Felix Frankfurter: But the inconsistency here results except wholly abstractness?

In other words, not only in this case but in this type of case, whether -- and forgetting for the moment Guss, as you said affirming this case.

Putting that to one side for the moment, compares that.

In this case, in this very case or in this type of case, namely where the Board refused to take hold in accordance to this administrative restriction, self imposed, the administrative restriction, than you'll ever have a conflict.

Mr. Charles P. Scully: Well --

Justice Felix Frankfurter: Except abstractly considered.

Mr. Charles P. Scully: Well, first of all, Your Honors, so that our position is clear.

This is not a case where the Board refused to take jurisdiction.

And as the footnote to the original decision will show, the failure to exhaust administrative remedies was reserved in the first Garmon case.

And as we stated before, we believe that question is still before the Court at this time, namely, can a person simply file a petition for representation, have it rejected and thereafter, do nothing so that he can escape the state courts to get damage actions?

But with respect to the particular issue you raised, we wish to know that in this case as we stated the facts to the Court, it may well be that this was coercion by the employer against the employees to prevent them from being unionized.

And so we would have a state court awarding damages against the union where the employer had itself violated a protected right, which under certainly a National Act, should not only have been privileged but should have been protected.

And so you have the unique result that assuming that the Board would not take jurisdiction either of a representation case or of an unfair labor practice case from either side, the Court could then be granting relief to an employer where in fact the Board would have disciplined the employer and we think --

Justice Felix Frankfurter: Where in fact, it refused to take hold and where in fact the San Diego State Council didn't press that or didn't try to assert to that unfair labor practice, is that right?

Mr. Charles P. Scully: That's right.

Justice Felix Frankfurter: So that in fact, now, I'm asking to whether this can be the fact that -- that the Congress, on which your whole argument ultimately stress, isn't an abstract conflict.

Mr. Charles P. Scully: No, Your Honor.

For this reason, that if you agree with this particular case, then as the individuals who have written articles on the subject matter of damages have indicated, it would be permissible for an employer to follow the very tactics involved in this case to file a very weak petition for representation, never file an unfair labor practice charge, and thereby avoid ever having litigated before the Board, the question of protected or -- or prohibited and then go into Court and get damages.

Justice Felix Frankfurter: That is why the union are helpless creatures and can't show that the complaints that was sought to be filed was -- was purposely diluted or that they can't actively themselves file as you claim, a violation of the Labor Board as well.

Mr. Charles P. Scully: Well, but I understand Your Honor is that where the Courts -- where the Board declines to accept it.

Justice Felix Frankfurter: Well, that's what I'm saying.

Mr. Charles P. Scully: And -- and --

Justice Felix Frankfurter: And the Board, the remedy is always that the Board could take hold, then there's no problem, is there?

Mr. Charles P. Scully: No.

No problem.

Justice Felix Frankfurter: All right.

And the Board doesn't take hold presumably, thus refuse to take hold for some -- for some sound and must refused it at some -- some -- not unworthy reasons of administration, is that right?

Mr. Charles P. Scully: Or -- well, if that's -- if that is the approach Your Honor is --

Justice Felix Frankfurter: (Voice Overlap)

Mr. Charles P. Scully: -- Mr. Justice have taken, then I suggest this, Your Honor, that if the Board for some sound reasons, some sound reason, says, "We do not wish to take and occupy this labor management sphere," it therefore remains unregulated.

And that when the State then comes in, and by a damage action, takes over and regulate it, the very conflict of the Board saying, "We are going to leave this to the free occupancy of economic contest in the labor management field" is in fact conflicted by a State Court coming in and saying, "We are going to assess damages where the Board said that this field should go unregulated."

Justice Felix Frankfurter: I'm saying here that the statute is -- it construe in the administrative application made of it by the Board that this thing is to be modeled out instead of litigated out, is that right?

Mr. Charles P. Scully: Well, let's say that it is to be left unregulated by the State, Your Honor.

Justice Felix Frankfurter: Well, I say -- or that I don't think that -- I'm -- I'm going to be real, what is called realistic.

That's what it gets down to, doesn't it?

Mr. Charles P. Scully: Well, but you could have an argument.

Justice Felix Frankfurter: You appeal for the intention of Congress and you must rest on the proposition that Congress, by allowing the Board, will shed itself of -- of actions or revolve any actions.

Congress meant to say they should be left to the economic context.

Mr. Charles P. Scully: I think that's what the first Garmon case can be construed as wholly.

Justice Felix Frankfurter: That is what I'm saying.

Mr. Charles P. Scully: That's correct.

The first case can so be construed.

Justice Felix Frankfurter: I just wan to know what this gets down to.

Mr. Charles P. Scully: So that we submit if I may go back to the 303 argument, Your Honor, because Mr. Plant has inferred that for the purpose of supporting his arguments, 303 also covers state courts.

We do not believe that that argument is involved in this case.

But we wish to point out that the legislative history at page 1368 in discussing this bill clearly indicates that when they talk about District Courts or comparable courts that they are talking about federal courts.

And that the decision of this Court in the Juneau Spruce case also would -- would infer that particular situation.

Finally, with respect to Mr. Plant's construction of the Laburnum decision in the state court below, we wish to point out that the state court did not find and did not consider any secondary boycott being involved and instead, it specifically stated through Justice Edelstein that there was no redress of any kind as to what -- under that particular case with respect to any violation of the Act.

And so we do not believe that Laburnum can be distinguished on the ground that a secondary boycott was involved.