LABOR BOARD v. DRIVERS LOCAL UNION

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Argument of Dominick L. Manoli

Chief Justice Earl Warren: Number 34, National Labor Relations Board, Petitioner, versus Drivers, Chauffeurs, Helpers, Local Union Number 639, etcetera.

Mr. Manoli.

Mr. Dominick L. Manoli: May it please the Court.

This case is here on writ of certiorari for the Court of Appeals for the District of Columbia Circuit.

In general, the case deals with the legality of picketing under the National Labor Relations Act to force an employer to recognize as the bargaining representative of these employees, a union which represents either none of them or only a minority of these employees.

Section 8 (b) (1) (A) of the Act makes it an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of their rights under Section 7 of the Act.

Included among these rights is the right of employees to bargain collectively through a representative of their own choosing or to have none at all.

The question presented in this case is whether a union which pickets to force the employer to recognize it as the bargaining representative of its employees, even though it represents none or only a minority the employees, constitutes restraint and coercion of the employees in the exercise of their statutory rights within the meaning of Section 8 (b) (1) (A).

Now, let me briefly summarize the facts which give rise to this question.

In 1953, the Board certified the respondent union as the bargaining representative of some 21 employees of the Curtis Company who worked as warehousemen, truck drivers and furniture finishers.

The Company is engaged in the retail furniture business.

Shortly after the union was certified by the Board, it entered into negotiations with the Company with the view to working out a collective bargaining contract, but they were unable to arrive with an agreement.

The union went out on -- called a strike, in which nine of the 21 employees joined.

The union established picket lines around the Company's stores, its retail store and the adjoining warehouse where the employees who were involved in this matter worked.

The Company replaced the nine strikers and continued its operations and the union meanwhile, continued its picketing.

Some 15 months or so later, in 1955, the Company filed a petition with the Board, asking the Board to hold an election to determine whether the employees wished to be represented by the respondent union.

The Board held that election and of the 29 votes that were cast in that election, 28 of the votes were against the union and only one for the union.

The -- despite its overwhelming defeat at the polls, the union, nevertheless, continued to picket, this time, only in front of the Company store.

The Board found that one of the purposes of the union in continuing to picket and I might say that there is really no question about this finding here, the Board found that one of the purposes of the union in continuing to picket after the election was to compel the employer to recognize it as the representative of the employees, despite the fact, despite the fact that these employees had decisively rejected this union as their -- as their bargaining representative.

Justice Charles E. Whittaker: And that was finding (Inaudible)

Mr. Dominick L. Manoli: Well, no.

The banners which they said were two kinds, Your Honor.

Before the election, the banner proclaimed that the Company was on strike and it was unfair to organize labor.

After the election, the banners were changed.

One of them read, as I recall it, that the Company was unfair.

It employed nonunion -- nonunion men, working men and the other banner was to the effect that -- that they wanted -- the union wanted employees to join the union, so that they could enjoy, enjoy union working conditions.

But the Board found, and as I said, there's really no challenge here, the Board found that despite whatever the signs may have said or despite the claim of the union that it was not seeking immediate recognition from the employer that the union was in fact, picketing for the purpose of requiring the employer to recognize it, notwithstanding, notwithstanding the fact that these employees had decisively rejected this union as their bargaining representative.

Now, the Board further found that picketing by a union, which represents either none or only a minority of the employees, to force the employees to accept it as their bargaining representative, constitutes an invasion of the employees' rights under the statute and constitutes restraint and coercion within the meaning of Section 8 (b) (1) (A).

The Board accordingly entered an order directing the union to refrain from this conduct.

The court below disagreed with the Board.The court below took the position that Section 8 (b) (1) (A) of the statute was not intended -- was not intended by Congress to reach this kind of picketing.

And that accordingly, the Board below set aside the Board's order.

I may add in passing, that of the three Circuit Courts that have dealt with this issue, they have split out.

Two of them including the court below in the Second Circuit had disagreed with the Board.

The -- and the third one which the Fourth Circuit has upheld the Board's views in this respect.

Now, before I go on to discuss the considerations which underlie this controversy, I should like to say, a preliminary word concerning the order of my remarks.

This case arose under the National Labor Relations Act as amended in 1947.

And the question as I've been to -- as I've indicated, is whether Section 8 (b) (1) (A) of the statute reaches this kind of picketing.

Now, following the Board decision, as well as the decision of the court below in this case, Congress passed it.

I'm sure the Court is aware.

Congress passed the 1959 amendments to the statute and included -- included in these amendments is a provision which I'll merely say in general to state it again.

The general regulates -- regulates organizational and recognition picketing whether it's by a majority or minority union.

Now, the Board believes -- the Board believes that these amendments do not affect -- do not affect its conclusions that it reached in this case and further that they do not affect its order.

Justice William J. Brennan: The Board mistaken this however that they're not relevant?

Mr. Dominick L. Manoli: Oh, no, not at all.

We are -- I was going to say.

We did -- we do take the position that they do not affect the conclusions which the Board reached in this case and do not affect its order.

And that if the Board's views prevail as to the meaning of Section 8 (b) (1) (A), then its order is entitled to stand.

Now, I should like to address myself first.

Justice William J. Brennan: Well, I -- I just want to be clear to the fact.

Mr. Dominick L. Manoli: Yes, sir.

Justice William J. Brennan: Determining immediately of 8 (b) (1) (A) --

Mr. Dominick L. Manoli: Yes.

Justice William J. Brennan: -- the Board concedes that we'll have to take into account the 1959 amendments.

Mr. Dominick L. Manoli: I think it's inescapable.

The --

Justice Felix Frankfurter: And may have to give me a -- a preview of what you're going to argue just to the statement.

Are you saying that the amendments have left the matter wholly unchanged?

Are you saying the amendments are neutral or are you saying is anything that points your way or against your way?

Mr. Dominick L. Manoli: If I may just briefly summarize --

Justice Felix Frankfurter: Just state -- state --

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: -- part of is -- what your conclusion.

Mr. Dominick L. Manoli: One, we will say that the amendments -- our position is that the amendments do not impute the Board's authority to deal with this kind of picketing under Section 8 (b) (1) (A).

That Congress has not resolved that problem, determine where the Board has that power under 8 (b) (1) (A) or not, by passing the subsequent legislation.

And our second point with respect to those amendments is that these amendments do not displace the Board's power to deal with this kind of picketing under Section 8 (b) (1) (A).

They supplement it and I'll come to that --

Justice William J. Brennan: But this is not to standing to be arguable as to the amendments, in terms would cover the very picketing under the terms.

Mr. Dominick L. Manoli: They would.

That's right, notwithstanding that.

Now, as I said, I would -- I would like to first address myself to the issue presented by this case in the context of the 1947 amendments.

Obviously, the Board did not have the power to deal with this thing here under 1947.

We never reached the issue of what, the subsequent amendments do.

And secondly then, I would like to address myself to the significance and the impact of the -- of the 1959 amendments along the lines that I've just suggested to Mr. Justice Frankfurter.

Now, one of the fundamental policies of the statute is to afford to employees full freedom in the selection of a bargaining representative of their own choosing.

Section 7 implements this policy and guarantees to employees the right to select a bargaining representative for purpose of collective bargaining or to have none at all.

The picketing in this case was in defiance of that statutory guarantee for it sought to force upon the employees, a union which it did -- did not want.

Indeed, one which they had decisively rejected in a Board election.

If the employer had recognized this union and assisted in forcing it upon the unwilling employees, he would have committed an unfair labor practice.

His action in that respect would have constituted restraint and coercion within the meaning of Section 8 (a) (1) of the statute.

Now --

Justice Felix Frankfurter: You mean by that that 8 (b) says, I want to get rid of these pickets and therefore, I would recognize the union, that's what you mean?

Mr. Dominick L. Manoli: That's what I mean.

Now, is it in the less restraint or coercion, within the meaning of Section 8 (b) (1) (A), on the part of a union to resort to picketing for the purpose of compelling the employees to surrender their right of self-determination and to conscript the assistance of the employer in shaping this illegal objective.

Section 8 (b) (1) (A), as I have said, makes an unfair labor practice for labor organization to restrain or coerce the employees in the exercise of Section 7 rights, including their right of self-determination.

The two elements -- the two elements of the offense are, one, that the union's action constitutes restraint and coercion and secondly, that such restraint or coercion cuts in -- cuts into to the employees' right of self-determination.

Now, I think there can be no question.

Indeed, I don't believe that the other side seriously challenges this, that taking Section 8 (b) (1) (A) literally at least, literally, it can be read -- it can be read to encompass this kind of picketing, where its purpose is as I have said, to override the employees' self-determination in these questions of representation.

Now, the purpose of the picketing was for the union to force itself upon these unwilling employees and the union sought to achieve that objective.

It sought to achieve that objective by threatening the livelihood of the workers.

One of the purposes, an obvious purpose of the picketing, of course, was to turn away both customers and suppliers of the Company and to work economic loss upon the Company.

And of course, such economic duress -- such economic duress, not only -- not only tends to force the employer's hand and to recognize the union which as an -- not entitled to recognition, but it also tends -- it also tends to force the employees however unwillingly, to forgo their statutory rights and to acquiesce in representation through a union which they do not want.

Now, it seems to us, Your Honors, there can't be -- that there can't be a more unequivocal way of restraining or coercing employees in the exercise of their rights than to cause them to fear the disappearance of their jobs.

Now, nothing in the statutory policy that seems to us justifies -- justifies removing this kind of picketing, this kind of economic duress from the reach of Section 8 (b) (1) (A).

One of the foundations of collective bargaining which the statute has adopted is a national policy, either the employees shall be free to select or reject a bargaining representative without employer restraint or union coercion.

Now, it seems to us, Your Honors, that this kind of picketing, the economic duress, that was behind this kind of picketing, abridges that right of the employees, their right of self-determination and subverts that national policy.

Indeed, where as here, you have a Board election and the employees have turned the union down and the union seeks to override the -- the subversion -- the subversion of the -- of the national policies even more flagrant.

As even far more flagrant, because the union is seeking to override by means of economic pressure, the employees' deliberate and solemn choice which they have made in the Board election.

Now, no policy of the statute is -- moreover, I might add, as I've said before that if the employer were to recognize the union in these circumstances, he too would become -- he too would be committing an unfair labor practice.

No policy of the statute seems to what is served, by permitting picketing which has these consequences.

It seems to us that in the absence of any legitimate interest, any legitimate competing interest of the contrary and we submit, there is none, there is no reason why Section 8 (b) (1) (A) should not be given unqualified effect to reach this kind of picketing.

It seems to us that the statutory policy is almost required.

Now, let me turn, I've spoken about the literal language of Section 8 (b) (1) (A) and, of course, I'm fully aware that we don't stop there.

Let me turn now to the legislative history of Section 8 (b) (1) (A).

This history has been set out in full in our brief and I will not attempt to retrace it step by step.

I'm sure that each side will be able to quote some scripture to its purposes.

Indeed, one court has recently said that perhaps the legislative history of Section 8 (b) (1) (A) is inconclusive.

But I believe, Your Honor, that there are three hard and meaningful facts that do emerge -- that do emerge from this legislative background of Section 8 (b) (1) (A), which, I think, are significant for our purposes.

The first of these is that the sponsors of Section 8 (b) (1) (A) intended to impose upon unions, insofar as it was practical, the same kind of restrictions which Section 8 (a) (1) already imposed upon employers, with respect to employer-intrusion upon protected employee interest or rights.

Section 8 (b) (1) (A) was intended to vest in the Board the same broad power that deal with union restraint or coercion that the Board already possessed with respect to employer restraint or coercion which trenched upon the employees' rights.

Now, this -- the parallel purpose -- the parallel purpose of Section 8 (b) (1) (A) and Section 8 (a) (1), I think, is significant for our purposes.

An employer who forces upon his employees a union which they do not want, an employer who exerts economic pressure to force the employees to accept an -- an unwanted union, he commits an unfair labor practice.

Such recognition -- such or a -- such economic duress from the part of the employers is a classic example of restraint and coercion in violation of Section 8 (a) (1) -- of the Section 8 (a) (1) provisions.

Now, the union's action in this case is the counterpart of that employer action.

For both types of actions involved, they involve economic pressure for the purpose of achieving the same illegal objective, the denial of the employees of their right of self-determination in these matters.

Now, it seems to us, that if 8 (b) (1) (A) is to -- and 8 (a) (1) are to be given the intended evenhanded application that the sponsors or the -- of the sponsors of the -- of this -- of this provision intended, then there's no reason for differentiating between economic pressure by a union or economic pressure by an employer, where the purpose of that kind of pressure is to settle the employees, the unwilling employees with a union that they do not want.

In either case, well, it seems to us, you have restraint or coercion in violation of the statute.

Now, secondly, the second major -- the second fact that I think does emerge form the legislative history which is of some significance is that Senator Taft and Senator Ball, who among the principal sponsors of Section 8 (b) (1) (A), made it clear that they intended 8 (b) (1) (A) to reach, both stranger and minority picketing for the purpose of compelling an employer to grant them recognition.

They illustrated the reach of Section 8 (b) (1) (A), during the debates as follows, Senator Taft said --

Justice John M. Harlan: What page is this?

Mr. Dominick L. Manoli: I'm now -- I'm now reading from page 29 of our brief, Your Honor, where it's quoted.

As the union went to a plant in California and said, “We want to organize your employees, call them in and tell them to join our union."

The employer said, "We have not any control over our employees.

We cannot tell them under the Act, under National Labor Relations Act -- we cannot tell them under the National Labor Relations Act."

They said, "If you don't, we will picket your plant," and they did picket it and closed it down for a couple of months.

And then we go on to say, he concluded with a statement that there are plenty of methods of coercion, short of actual physical violence.

And again Senator Ball, who was as I say one of the principal sponsors of this legislation, he illustrated the reach of Section 8 (b) (1) (A) with this example, and again, the same page, Your Honors, of our brief.

He said that, “That was intended to reach the case where the Teamsters Local 86 had been picketing an establishment, although no members of the union were employed there in an effort to coerce those who were employed there into joining a union, which they did not want to join.”

Now finally, the third fact -- the third fact that I think has significance for us does emerge from this legislative background is this, when Section 8 (b) (1) (A) was being debated on the Senate floor, some misgivings work expressed that perhaps Section 8 (b) (1) (A) might be read to cover peaceful persuasion or peaceful picketing for -- peaceful picketing for legitimate purposes.

Senator Taft assured these -- assured these Senators, assured these Senators that 8 (b) (1) (A) was not intended to reach that kind of conduct.

But nevertheless, the sponsors of the bill, they never wavered -- they never wavered from their view -- from their view that Section 8 (b) (1) (A) was intended to reach -- was intended to be given as broad, a meaning, as broad as interpretation as Section 8 (a) (1) had received in protecting employers against intrusion with respect to their rights through employer coercion or through union restraint.

Now, I think finally, it is instructed, it is instructed to look to the circumstances which gave birth to Section 8 (b) (1) (A).

The House bill, though which had passed the House, contained some very broad provisions concerning organizational and -- and recognition of picketing.

The House bill prohibited picketing, where there was no dispute between the employer and his employees.

It prohibited picketing to compel an employer to recognize the union, which had not been certified by the Board and finally, it prohibited picketing to compel an employer to violate any law.

The Senate bill, the bill which had been reported of the Senate Committee, contained no similar provisions.

The only provision that the Senate bill contained in this area was the provision which subsequently -- eventually became Section 8 (b) (4) (C) of the statute.

And 8 (b) (4) (C) makes an unfair labor practice to engage in picketing for the purpose of displacing, for the purpose of displacing a union which has been certified by the Board.

Now, when the Senate bill was reported out of the Committee, five members of the Committee expressed concern that the Senate bill didn't -- has against the -- as reported out the Committee, did not go far enough -- did not go far enough in regulating union organizational activity and particularly as the sponsor stated, did not go far enough in regulating minority or stranger picketing for the purposes of obtaining recognition.

Now, it was to remedy that deficiency, it was to remedy that deficiency that 8 (b) (1) (A), that 8 (b) (1) (A) was proposed and in part, the intention was to bring into the Senate bill, to bring into the Senate bill albeit in a somewhat modified form, some of the restrictions of the House bill contained with respect to picketing.

And it was with this understanding, it was with this understanding that the Conference Committee, the Conference adopted the bill -- approved the bill and of course, then the bill was passed.

Justice John M. Harlan: You mean to say 8 (b) (4) (C) can be regarded as the resolution of the conflicting views.

Mr. Dominick L. Manoli: No, Your Honor.

You will find -- I will answer that -- I will answer in just a few moments, if I may finish at this point because I was just coming to it.

Now, to conclude the legislative history, we think, we think that taking the legislative history as a whole, that it supports and then a strong support to the Board's interpretation of Section 8 (b) (1) (A).

Now, in essence, this is our affirmative case, so I will now turn to the case on the other side.

The other side contends that there are specific provisions, 8 (b) (4) (C) among them, in the statute which evidenced a congressional intention not to reach this kind of picketing under Section 8 (b) (1) (A).

And, of course, the principal source of this argument is Section 8 (b) (4) (C), which, as I have stated, Section 8 (b) (4) (C) makes an unfair labor practice for a union to picket for the purpose of displacing a certified union.

Now, the argument is that the inference to be drawn, the inference from -- to be drawn from the specific regulation of recognition picketing is that Congress, as a matter of deliberate choice, refrained from imposing any further restrictions upon other types of recognition picketing.

Justice William J. Brennan: Well, tell me, Mr. Manoli, do you think that 8 (b) (1) (A) is ambiguous to be brought about to cover Section 8 (b) (4) (C) covers?

Mr. Dominick L. Manoli: No.

We think that there, doesn't make them redundant.

And we think there's room for both of them to play.

And if I may finish my answer to Mr. Justice Harlan, I will come to that next.

The -- now, as I said, the argument is that 8 (b) (4) (C) evidence as a -- delivered in purpose on the part of Congress to have only this restriction upon recognitional picketing.

Now, it seems to us, Your honor, that in view of the circumstances which I have stated that gave birth to Section 8 (b) (1) (A) that this inference is not a proper one.

And as I've already indicated, Section 8 (b) (1) (A) was inserted in the statute because of misgivings or concern expressed by the Committee members that the bill which already included Section 8 (b) (4) (C), did not go far enough in -- in the regulation, in the regulation of organizational activities on the part of the union.

Now, in view of those circumstances, it seems to me -- it seems to us that Congress was intending to add to supplement 8 (b) (4) (C) and to include within the -- with -- within Section 8 (b) (1) (A), minority or stranger picketing for personal recognition where there was no certification in the picture.

Now, the argument is --

Justice Felix Frankfurter: When did (C) come into the statute?

Mr. Dominick L. Manoli: It came in, in the -- in the Senate bill, Your Honor.

In the Senate bill which was the bill which was reported out of the Senate Committee.

After the Senate bill Committee containing 8 (b) (4) (C) was reported, then on the floor of the Senate, the five Committee members proposed 8 (b) (1) (A).

Justice Felix Frankfurter: And do you happen to know as a matter of chronology whether the quotations that you gave us from Senator Taft, whether it fitted in as to the cause --

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Dominick L. Manoli: They were early in -- they -- the early stages of the discussion on 8 (b) -- on 8 (b) (1) (A).

But as I indicated, Your Honor, while there were some concern expressed as the reach of Section 8 (b) (1) (A) that it might reach peaceful persuasion or peaceful picketing for legitimate purposes to sponsor this bill, never waiver -- never waivered from their view that Section 8 (b) (1) (A) was to have the same broad interpretation that 8 (a) (1) had had to reach economic duress, that cut into the employees' rights.

Justice Felix Frankfurter: 8 (b) (1) (B) came in after (C), was later than the (C) provision?

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: And was later -- and these utterances by Senator Taft?

Mr. Dominick L. Manoli: No, no, no.

These utterances were in connection with the Section 8 (b) (1) (A) proposal.

Justice Felix Frankfurter: Well, then I misconveyed my question.

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: These utterances were made by Senator Taft after (C) was already in the proposed bill.

Mr. Dominick L. Manoli: Yes, sir.

Yes, sir.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Dominick L. Manoli: That's correct.

Now, turning to Mr. Justice Brennan's question that doesn't -- this interpretation to make 8 (b) in effect, I think what Your Honor is saying as the court below did.

Justice William J. Brennan: Was (C) necessary?

Mr. Dominick L. Manoli: Doesn't make 8 (b) (4) (C) redundant, if we had this.

We don't think it does.

There maybe some minimal overlapping, I think, but we think that there is room.

The Board's interpretation of 8 (b) (1) (A) gives both sections the room to play.

Section 8 (b) (4) (C) applies only -- only where you have a Board certification of the union and in it applies even though the union that is seeking recognition is a majority union as long as that -- that certification, picketing by a union whether it'd be minority or majority, is a violation of that -- of that Section.

Section 8 (b) (1) (A) as interpreted by the Board applies where there is no certification, where there is no certification and it reaches minority picketing for the purpose of compelling the employers to have a union which they don't want.

So it seems to us that the interpretation which the Board has placed upon 8 (b) (1) (A) does not displace 8 (b) (4) (C), but there is room --

Justice William J. Brennan: I get the (C) situation as the Board applies on the property charged him and that also involving 8 (b) (1) (A)?

Mr. Dominick L. Manoli: I don't recall any case where we have concerned ours -- the Board is concerned for ourselves -- itself with 8 (b) (1) (A) and an 8 (b) (4) (C) situation.

I don't know of any.

Justice Felix Frankfurter: Well, are you suggesting -- do I understand you to say that (C), if I may use that.

Mr. Dominick L. Manoli: Yes, sir.

Justice Felix Frankfurter: (C) relates displacing a recognized union.

Mr. Dominick L. Manoli: A certified union.

Justice Felix Frankfurter: Well, what a certified (Voice Overlap) --

Mr. Dominick L. Manoli: That's right.

Justice Felix Frankfurter: -- whereas the -- what you are arguing is in relation to a desire to become -- of majority to become a recognized --

Mr. Dominick L. Manoli: There were -- there is no -- where there is no certified union in the picture.

Justice William J. Brennan: In other words, we might have a situation where you have to certify it and yet in fact, another union who is representative of the -- that charges the employees.

Mr. Dominick L. Manoli: That's right.

And 8 (b) (4) (C) would cover that kind of picketing.

Justice Felix Frankfurter: Or might the -- both as Justice Brennan suggests or might be a rival union?

Mr. Dominick L. Manoli: It might be a rival union.

That -- that's right.

8 (b) (4) (C) would -- does not permit picketing by another union, minority or majority, where there is a Board certification.

Justice Felix Frankfurter: I raised that already a legal voice for the men.

Mr. Dominick L. Manoli: Yes.

That's right.

That's right.

Now, the further argument is made, Your Honors, that Section 13, Section 13 of the statute also militates against the Board's reading of Section 8 (b) (1) (A).

Section 13 of the statute provides that the right to strike shall not be impaired or diminished except as specifically provided in the statute.

Now, the argument is made on this phase of the case is that picketing is a base of strike action, that Section 8 (b) (1) (A) does not specifically cover picketing and that therefore, the immunity that Section 13 gives to strike and by hypothesis to picketing, cannot be, cannot be denied under -- under Section 8 (b) (1) (A).

It seems to us that this argument is, first, question-begging and in any event, unsound.

Section 8 (b) (1) (A) is a specific provision of this statute and if this kind of picketing can fairly, can fairly be read into Section -- into Section 8 (b) (1) (A), then it is a specific impairment of the right to picket.

And Section 13 does not serve to protect it against that specific impairment.

Now, I can illustrate this by other sections of the statute.

Section 8 (b) (2), for example, makes an unfair labor practice for a union to cause or to attempt to cause an employer to discriminate against his employees in violation of the statute.

It says nothing.

There's nothing about a strike action or picketing and yet no one has ever suggested that 8 (b) (2) would not reach a strike or picketing for the purpose of compelling an employer to discriminate against his employees.

Or take Section 8 (b) (1) (A) itself, Section 8 (b) (1) (A) itself doesn't say any at all about mass picketing or mass strikes or violent strikes and yet, here again, no one has suggested that Section 13 would protect that kind of a thing because there was no specific provision in Section 8 (b) (1) (A) covering that sort of -- that sort of activity.

Now, finally --

Justice Felix Frankfurter: (Voice Overlap) you say specifically provided --

Mr. Dominick L. Manoli: Yes, sir.

Justice Felix Frankfurter: -- that Section 13 doesn't mean as much as you spelled in (Inaudible)

Mr. Dominick L. Manoli: Exactly.

And then I might add that the kind of strikes that Congress sought to protect were strikes for legitimate purposes, not strikes for illegal objects so that Section 13 wouldn't apply this kind of thing anyway.

Justice Charles E. Whittaker: What about the (Inaudible) is coercion of any form means in violation of their rights to call any position to -- violates (Inaudible)

Mr. Dominick L. Manoli: Right.

Justice Charles E. Whittaker: And wouldn't have the (Inaudible) provisions.

Mr. Dominick L. Manoli: Yes, sir.

Justice Charles E. Whittaker: Has tried to accomplish what the Act (Inaudible)

Mr. Dominick L. Manoli: That's right.

Now -- yes, Mr. Justice Brennan.

Justice William J. Brennan: No, that's all right.

Mr. Dominick L. Manoli: Yes.

[Laughs]

Justice William J. Brennan: Thank you.

Justice Hugo L. Black: When did the Board first applied 8 (b) (Inaudible)

Mr. Dominick L. Manoli: This was the first case, Your Honor, in which the Board has dealt specifically -- has dealt specifically with record with -- with -- shall I call it for shorthand for minority or a stranger union picketing for the purposes of obtaining recognition.

Now, it is true --

Justice Hugo L. Black: Had it been asked to (Inaudible)

Mr. Dominick L. Manoli: It is true, Your Honor, that in 1948, the Board had the so-called Perry Norvell case.

Now, the Perry Norvell case did not, did not present this question of a minority union or a stranger union seeking to compel an employer to recognize it as a bargaining representative of the employees, however, however, the Board did say in that case and, of course, this is heavily relied on by the other side, the Board did say in that case that Section 8 (b) (1) (A) was intended to reach union conduct such as, violence, mass picketing or union with threats of reprisal -- of direct economic harm and that it was not intended necessarily, not intended necessarily to reach, to reach union conduct which was peaceful and -- and coercive even though such conduct had an illegal purpose, an illegal object.

Now, as I've said --

Justice Hugo L. Black: (Voice Overlap) opinion brought.

Mr. Dominick L. Manoli: Your Honor, I don't believe it was, I don't recall.

I -- I was checking the case a few days ago, but I don't recall it as unanimous or not.

My recollection is there was one dissent, but I'm not certain at the moment.

Justice Hugo L. Black: There would have been any case, before this one or indicates as the Board upheld this decision.

Mr. Dominick L. Manoli: We have none, Your Honor.

We have this language.

The Board has had --

Justice Hugo L. Black: When was this one decided?

Mr. Dominick L. Manoli: 1957 -- 1957.

Justice Hugo L. Black: And when was the Act passed?

Mr. Dominick L. Manoli: 1947.

Perry Norvell came a year -- approximately a year and a half or so after the 1947 amendments were passed.

Justice Hugo L. Black: I assume there had been efforts to get the Board to pass this (Inaudible)

Mr. Dominick L. Manoli: There may have been charges filed, Your Honor.

Charges filed with the general counsel, but none of these cases came to the Board.

Apparently, I think it must be said in all candor, in all candor that the general counsel, apparently between Perry Norvell and this case, that the general counsel has read the Perry Norvell case to mean, to mean that 8 (b) (1) (A) did not reach this type of conduct.

So, the Board never had occasion, never had occasion to --

Justice Hugo L. Black: What about the Board in Perry Novell case?

Mr. Dominick L. Manoli: Well, there was the N.M.U case, but that, Your Honor, while the Board dealt with 8 (b) (1) (A), that involved a strike on the part of a union --

Justice Hugo L. Black: I'm just (Inaudible) what efforts have been made through the years to get this done, either the attorney for the Board or anyone else.

Mr. Dominick L. Manoli: The Perry Norvell case is the -- was the -- or the one, the first cases that came, that came to the Board, dealing with 8 (b) (1) (A) and whether 8 (b) (1) (A) reached, reached peaceful union conduct which was coercive and had an, and had an illegal objective.

That was one of the first cases to reach the Board, after the 1947 amendments were passed.

And in that case, as I have said, the Board said that, 8 (b) (1) (A) did not reach union conduct which was coercive and peaceful, even though, even though it had an illegal object.

Justice Hugo L. Black: And that's what they said, what did they hold?

Mr. Dominick L. Manoli: That's what they held.

Justice Hugo L. Black: That's what they held.

Mr. Dominick L. Manoli: That's what they held.

Now --

Justice Felix Frankfurter: I thought, you said the question was -- I thought you indicated that the case that you present this situation that they talked to.

Mr. Dominick L. Manoli: That's right.

It did not present this case.

There was a case where a group of workers --

Justice Felix Frankfurter: I understood Justice Black's further questioning of you to lead you to say that the Board held this.

Mr. Dominick L. Manoli: Well, when I say the Board --

Justice Felix Frankfurter: Well now, I believe -- I just want to know whether there was any.

Has there been a decision of the Board, apart from what you said that they say in which they dealt with this problem?

Mr. Dominick L. Manoli: With my -- with a -- a demand for recognition by a minority union?

Justice Felix Frankfurter: Yes.

Mr. Dominick L. Manoli: This is the first case, Your Honor, in which they have specifically --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Dominick L. Manoli: -- dealt with that issue.

Justice Felix Frankfurter: I understood your answer to Justice Black's question.

The matter had or as I did not understand your answer.

Did it or did it not come before the Court -- the Board and then the Board take action?

Or did you indicate as I heard you that in view of the ruling of the general counsel has never came before the Board?

Mr. Dominick L. Manoli: Let me rephrase just a bit.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Dominick L. Manoli: Sorry --

Justice Felix Frankfurter: -- I didn't understand.

Mr. Dominick L. Manoli: -- and make -- make myself clear.

In the Perry Norvell case, the Board -- there was a situation there where the employees were striking, were striking to displace a union which was being recognized by the employer.

And during the life of the contract, they'd simply --

Justice Hugo L. Black: Never thought an illegal purpose.

Mr. Dominick L. Manoli: They -- they wanted to take over and presumably in seeking to take over, whether minority or majority doesn't appear in that case, Your Honor.

Well, even --

Justice Hugo L. Black: Was that for an illegal purpose?

Mr. Dominick L. Manoli: For an illegal purpose.

That's right.

Now, the Board addressed itself to the meaning of 8 (b) (1) (A) in that case and it said, "It doesn't reach this kind of conduct."

But the Board there was not faced, was not faced with the specific issue of this case until this case came along.

Now --

Justice Hugo L. Black: You mean for the illegal purpose, what you call the illegal purpose of -- it's by the --

Mr. Dominick L. Manoli: This kind of illegal purpose.

Justice Hugo L. Black: -- recognition when they didn't have a minority or majority?

Mr. Dominick L. Manoli: That's right.

That's right.

Justice Hugo L. Black: But the practice was over through the years whether both -- where the counsel that --

Mr. Dominick L. Manoli: The issue --

Justice Hugo L. Black: -- such would not violate this Section.

Mr. Dominick L. Manoli: The specific issue was not brought to the Board and it was not until --

Justice Hugo L. Black: But what was the practice is?

How do you bring them?

I thought the counsel had a lot to do with it, maybe I'm wrong?

Mr. Dominick L. Manoli: Well, the way its done, Your Honor, is someone comes in and files a charge with the general counsel.

Then the general counsel determines whether he will issue a complaint.

If he decides not to issue a complaint on it, the matter never gets to the Board, the matter never gets to the Board.

Justice Hugo L. Black: And even those years, that he, that's the position he took?

Mr. Dominick L. Manoli: That was his reading of Perry Norvell that it didn't --

Justice Hugo L. Black: That was -- that was in practice, was it not?

Mr. Dominick L. Manoli: Yes.

Justice Hugo L. Black: During those years?

Mr. Dominick L. Manoli: That's right.

Justice Felix Frankfurter: Did the Board initiate -- suppose the Board -- did the Board know about the rulings of general counsel?

Mr. Dominick L. Manoli: Oh, it -- some -- some matches of the general counsel where he didn't refuse to issue a complaint in some cases, is officially noted.

They are aware of it, but the Board can't do anything about it.

Justice Felix Frankfurter: If the Board legally can't do anything about it.

Mr. Dominick L. Manoli: That's right.

Justice Felix Frankfurter: He is the initiating prosecutorial or -- or a complaining body?

Mr. Dominick L. Manoli: Exactly.

Justice Felix Frankfurter: He doesn't issue a complaint?

He can't get before -- before the Board?

Mr. Dominick L. Manoli: That's right.

That's right.

And --

Justice Hugo L. Black: Is he on the Civil Service?

Mr. Dominick L. Manoli: Pardon me?

Justice Hugo L. Black: Is he on the Civil Service?

Mr. Dominick L. Manoli: He is the presidential appointee, Your Honor.

The --

Justice Felix Frankfurter: That's the purpose -- that continues to be the situation?

Mr. Dominick L. Manoli: That is the situation, yes.

Justice Felix Frankfurter: But as has the --

Mr. Dominick L. Manoli: The general counsel has --

Justice Felix Frankfurter: (Voice Overlap) about as whether he should be an independent problem in that way, hasn't it?

Mr. Dominick L. Manoli: Oh, Yes.

Yes, couldn't quite debate on it.

Chief Justice Earl Warren: How many general counsels have they had, since --

Mr. Dominick L. Manoli: Taft-Hartley?

Prior to Taft-Hartley, Your Honor.

There was not a division between the general counsel and the Board.

Chief Justice Earl Warren: Yes.

Mr. Dominick L. Manoli: There was one agent --

Chief Justice Earl Warren: I don't want to insist that that's all.

Mr. Dominick L. Manoli: But since Taft-Hartley -- one about four -- four -- four with the present incumbent.

And if I may illustrate this just a little bit, I don't want to use up my time, but for example, in the “hot cargo” cases which this Court decided.

Now, the Board at one time held it doesn't show, then, of course, the matter could have rested there.

The general counsel is seen fit and never issued another complaint.

But yet, the whole -- because of the nature of the problem, the general counsel felt that it was appropriate to bring the matter to the attention of the -- of the Board and issued the complaints in order to that.

And that's happened here.

And it seems to us, Your Honor, that where you have a statute, where you have a statute which is phrased in such a broad and general terms as 8 (b) (1) (A) is, with restrain or coercion, that the Board is entitled, is entitled to reexamine the statute of this kind of general language and its legislative origin in the light of its experience and the insights that it gains from that experience.

Now, I've already touched upon the Perry Norvell case in which they say the other side and places a great deal of reliance and I want to finish this and then I'll get to the 1959 amendments.

I want to finish this by calling -- by saying a word about the so called -- with the report of the so called, "watchdog committee.”

The watchdog committee, as is colloquially known, was set up by the 19 -- by Congress to oversee -- oversee the operation of the 1947 amendments to the statute.

Now, the watchdog committee's report after citing the Board's decision in Perry Norvell -- after citing the Board's decision in Perry Norvell said this and I'm quoting now from page 51 of our brief, Your Honor.

This is a quotation from the -- from the report of the watchdog committee.

They said, "Present law, in no way, limits the primary strike for recognition except in the face of another union certification.

A labor organization may lose an election and which it was the only union on the ballot and the next day call a legal strike to force the employer to recognize it as a bargaining agent for the -- those employees who have just rejected it."

I don't know, what this sentence means, Your Honor.

It may mean on the one hand that this was the Committee's understanding of what Congress intended, of what Congress intended with Section 8 (b) (1) (A).

On the other hand, it seems to us, it seems to us more likely that this is merely a restatement, a restatement of what the Committee thought that the Board had held as to the meaning --

Justice Hugo L. Black: Or the -- how do you get there?

Mr. Dominick L. Manoli: Pardon me?

Justice Hugo L. Black: I -- I don't understand the great significance of it but I don't see how you quite read it that way?

Mr. Dominick L. Manoli: Because, Your Honor, I don't have the full quotation here.

But in the full quotation, it's preceded by a reference to the Perry Norvell case and as I say --

Justice Hugo L. Black: Whether this report criticize this statement, criticized this action or this opinion.

Mr. Dominick L. Manoli: It didn't say anything at all.

It just has this full statement after, quoting or after citing Perry Norvell.

And as I say, it is hard to tell whether this is merely the Committee's understanding of what Congress intended or whether this is merely the Committee's restatement.

Justice Hugo L. Black: Who'd it report it to?

Mr. Dominick L. Manoli: This was reported to Congress.

Justice Hugo L. Black: For what purpose?

Mr. Dominick L. Manoli: This Committee, Your Honor, was set up, was set up to oversee the operation of the 1947 amendments and to report back to Congress to see how it was working and on the basis of which, Congress might or might not want to make some adjustments or amendments in the law.

Justice Felix Frankfurter: It does this annually, doesn't it?

Mr. Dominick L. Manoli: Pardon me?

Justice Felix Frankfurter: Does this annually, doesn't it, or more or less?

Mr. Dominick L. Manoli: First year, Your Honor, the first year, no.

Justice Felix Frankfurter: Is it out of the Commission?

Mr. Dominick L. Manoli: Yes, sir.

Yes, sir.

Now, but whatever this statement means -- whatever the statement means, it seems to us that we cannot place a great deal of reliance upon it as an index, as an index to the intent of the 1947 Congress when it passed 8 (b) (1) (A) --

Justice Hugo L. Black: On what --

Mr. Dominick L. Manoli: -- because --

Justice Hugo L. Black: Why not?

And who was this watchdog committee?

Mr. Dominick L. Manoli: Pardon me?

Justice Hugo L. Black: I said who was this watchdog committee?

It made this report.

Mr. Dominick L. Manoli: They were composed of various --

Justice Hugo L. Black: Have you got the list in the --

Justice Felix Frankfurter: Members of both houses (Voice Overlap) --

Mr. Dominick L. Manoli: Member of both houses, I've --

Justice Hugo L. Black: You've just been quoting to us Senators Taft and Ball's report now, as to -- to show the meaning of the bill.

Mr. Dominick L. Manoli: Yes.

Justice Hugo L. Black: Were they on this?

Mr. Dominick L. Manoli: Senator Ball and Taft were on -- were on the Committee, that's right.

Now, whatever the meaning of this sentence is, it seems to us that we can't rely upon it too heavily because this report, this report did not issue until 18 months after Congress passed the 1947 amendments.

And indeed, this Court has set, that this report is no part of the legislative history of the 1947 amendments.

Now, this brings me to the 1959 amendments.

The Section 8 (b) (7) of these amendments adds a new unfair labor practice to the statute.

It makes it an unfair labor practice for a union, for in a none, a none certified union, a none certified union, whether it's a majority union or a minority union to pick -- to force the -- or to force or require the employer to recognize it as a bargaining representative of the employees or to force or require the employees, force or require the employees to join it.

One, where the employer is already recognizing legally, legally recognizing another union.

Two, within 12 months of a Board election and three, where it needed these two situations prevail from a period not to exceed -- for a period not to exceed 30 days unless -- unless within that period, a representation petition for an election has been filed with the Board.

Now, this provision, as Mr. Justice Brennan pointed out earlier, this provision would've covered the picketing in this case.

Now, I think that this new amendments suggest for several lines of thinking.

The first is that they evidence the congressional notion that the Board did not have the power under Section 8 (b) (1) (A) to deal with minority picketing as it has in this case.

And that Congress now, for the first time, has supplied that deficiency.

A second line of thought is that Congress has not attempted to determine whether or not, the Board had this power to regulate minority picketing for recognition under 8 (b) (1) (A) but now, has sought to -- has displaced whatever power the Board may have had under 8 (b) (1) (A), has displaced it and for -- now has -- and Section 8 (b) (1) -- 8 (b) (7) provides the sole and exclusive method for regulating this kind of conduct.

Justice Potter Stewart: At the time 8 (b) (7) was enacted last summer, suppose the state of the law on this subject.

This case of course had been decided by the Court of Appeals.

Mr. Dominick L. Manoli: Yes.

Justice Potter Stewart: And you said there were two other Courts of Appeals decisions --

Mr. Dominick L. Manoli: There were --

Justice Potter Stewart: -- in conflict (Voice Overlap) --

Mr. Dominick L. Manoli: -- three altogether.

Justice Potter Stewart: Yes, two others.

Mr. Dominick L. Manoli: And, of course, there are -- or -- either were three rather, but in one of them, in the Ninth Circuit case, in the Alloy case which is presently pending before this Court, the Court did not deal with the picketing aspect of the case, it dealt with some other aspect of the case involving black listed, but those were the three cases when 8 (b) (7) was --

Justice Potter Stewart: Granted.

Mr. Dominick L. Manoli: -- was adopted.

Justice Potter Stewart: And -- and considered.

Mr. Dominick L. Manoli: Curtis in the court below or Sullivan or the Rubber Workers in the Fourth Circuit and the Alloy (Voice Overlap) --

Justice Potter Stewart: So the law was unclear, in other words.

Mr. Dominick L. Manoli: That's right.

That's the point that I was bringing up.

Justice Potter Stewart: Granting conflict,

Justice William J. Brennan: Were they discussed in (Inaudible)

Mr. Dominick L. Manoli: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Dominick L. Manoli: Yes, they were.

Now --

Justice Felix Frankfurter: What's the name of the Second Circuit case?

Mr. Dominick L. Manoli: I'm sorry, sir.

Justice Felix Frankfurter: What is the name of the Second Circuit case?

Mr. Dominick L. Manoli: I have it here somewhere.

Justice Felix Frankfurter: Don't bother -- don't bother.

(Inaudible)

Mr. Dominick L. Manoli: Alling -- Alling & Cory --

Justice Hugo L. Black: Oh, yes.

Mr. Dominick L. Manoli: That's the name of the company, but I would say union.

I have not forgotten the name of the union.

Justice Felix Frankfurter: All right, Teamsters.

Mr. Dominick L. Manoli: The Teamsters.

That -- that's right.

Now, I said there were several lines of -- thinking about the effect of 8 (b) (7) and I wanted to finish the third one which is ours.

[Laughs]

And that is that again, Congress has not attempted -- it did not attempt to impugn the Board's power to deal with this thing here under 8 (b) (1) (A), but that it has passed 8 (b) (7) -- 8 (b) (7) for the purpose of supplementing, supplementing the Board's power, supplementing and enlarging.

Justice Hugo L. Black: It wanted to supplement it, why didn't it say so, why didn't it include that?

Mr. Dominick L. Manoli: Well, they've supplemented, Your Honor, but -- for this reason that 8 (b) (7) covers more than minority picketing for recognition.

It covers picketing by either a majority or minority --

Justice Hugo L. Black: Does it -- does it cover this, what they passed?

Mr. Dominick L. Manoli: It would have covered this situation, that's --

Justice Hugo L. Black: Does it cover?

Mr. Dominick L. Manoli: Pardon me?

Justice Hugo L. Black: Does it pass?

Does it cover?

Mr. Dominick L. Manoli: It would've covered this situation as it passed --

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

Mr. Dominick L. Manoli: -- that's right.

Justice Hugo L. Black: And it didn't pass.

Mr. Dominick L. Manoli: Oh, yes.

They passed this (Voice Overlap) --

Justice Hugo L. Black: Well, does it cover it then now for a new situation?

Mr. Dominick L. Manoli: If -- yes.

If the -- if the -- the union here was picketing within 12 months of the Board election which --

Justice Hugo L. Black: That's right.

Mr. Dominick L. Manoli: And if their charge had been filed then under 8 (b) (7), this would have covered it.

Chief Justice Earl Warren: We'll recess now.

Justice Hugo L. Black: There will be a certain time.

Mr. Dominick L. Manoli: Pardon?

Print this transcript Transcript: 

Argument of Dominick L. Manoli

Justice Hugo L. Black: Mr. Manoli, I was just about to ask you a question.

Mr. Dominick L. Manoli: Yes, sir.

Justice Hugo L. Black: As I understand it, you say and maybe your advisory, the statute as now enacted would make what has been done -- what was done here an unfair labor practice.

Mr. Dominick L. Manoli: Yes sir.

Justice Hugo L. Black: And you have an order against them?

Mr. Dominick L. Manoli: Yes sir.

Justice Hugo L. Black: What would happen that if you did there under Court of Appeals, what is the result, what are the consequences to the Government in this -- is this – is this the only case?

Mr. Dominick L. Manoli: Oh, no, no.

There are a number of cases Your Honor of this kind.

There are --

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

Mr. Dominick L. Manoli: -- sir?

Justice Hugo L. Black: A number of cases where the judgments have already been rendered in cases of this kind?

Mr. Dominick L. Manoli: Where the Board had issued orders.

Justice Hugo L. Black: The Board had issued orders?

Mr. Dominick L. Manoli: And some of these cases are pending in the various Courts of Appeals and some of them of course, the Court of Appeals has enforced the Board's order.

We have the Sullivan case from the Fourth Circuit is (Inaudible) and in others like this one here or the Second Circuit case that I referred to the Court of Appeals has set aside, has set aside those orders.

Justice Hugo L. Black: Now, you have the statutes -- the statute now that covers it.

What I was interested in is what is the very importance of keeping those orders, it -- it may be very important keeping those orders out, when you have a statute with that law is the same to that?

Mr. Dominick L. Manoli: Well, Your Honor, I think it is important to determine the reach of the Board's power under 8 (b) (1) (A) because the Board believes that -- that the -- the new -- the new statute -- the new amendments do not displace its powers under 8 (b) (1) (A) to reach picketing of this kind.

Justice Hugo L. Black: But if -- if they are the same as I understood you to say, just what difference does that make?

Mr. Dominick L. Manoli: In this particular case, it would have made not, but there are cases where it can make a considerable difference.

In the first place --

Justice Hugo L. Black: But what -- what is the circumstance (Inaudible)

Mr. Dominick L. Manoli: Yes, let me explain if I may.

The -- this question here is part of a broader play and that is whether the union may use coercive economic weapons for the purpose of obtaining recognition, of obtaining recognition when it's a minority or a stranger union.

Now, though these other coercive devices maybe such things as the blacklisting of the employer appeals to consumers to boycott him.

Now, the Board has held in the cases pending before this Court on petition for certiorari, the Board has held that 8 (b) (1) (A) reaches that kind of course.

Justice Hugo L. Black: Although we decide that in this case -- those cases in this --

Mr. Dominick L. Manoli: Pardon me?

Justice Hugo L. Black: But we decide those cases in this --

Mr. Dominick L. Manoli: This case will go very far towards deciding those cases.

The decision of this case will go very far in deciding -- in deciding those cases.

Justice Hugo L. Black: -- well would the Government -- does the Government get any advantage for as consequences are concerned, can it find unfair labor practice under circumstances, under 8 (b) (1) (A) if you should be sustained?

Mr. Dominick L. Manoli: Yes.

Justice Hugo L. Black: That it cannot find unfair labor practice --

Mr. Dominick L. Manoli: Yes.

Justice Hugo L. Black: -- under the law as now --

Mr. Dominick L. Manoli: That's right.

It can.

Justice Hugo L. Black: And so, the result -- what you are asking is they are not the equivalent?

Mr. Dominick L. Manoli: No.

Not -- not --

Justice Hugo L. Black: What you're asking is that this be decided on the basis that would -- would give you right to find an unfair labor practice under circumstances which Congress did not include and exempt.

Mr. Dominick L. Manoli: Or would -- either that 8 (b) (7) would not be practical to apply to a situation where it wouldn't be practical to apply to it or situations where it didn't apply at all.

Let me explain that.

Justice Hugo L. Black: Well, that doesn't necessary.

Mr. Dominick L. Manoli: Let me explain that if I may, Your Honor.

Now, as I've said, Section 8 (b) (7) makes it illegal to picket, to force or require recognition of the employers to join in three situations.

One, where the employer is lawfully recognizing another union, there of course, the picketing would be bad from its inception.

It would be legal.

We could move in with an injunction against that sort of picketing.

The second situation is where the -- within 12 months of the Board election if there is a picketing or recognition or you get the employers to join within 12 months, there too we can move in.

But if the last section, Section 8 (b) (7) (C) I believe it is, which says that a -- when --where either of these two situations that I've just described obtains -- obtains, that the union may not picket for a period to exceed 30 days unless within those 30 days, there is a representation petition has been filed.

Now, con -- it -- it is possible that under that section, picketing may go on for 30 days or more whether it's there's a representation petition has been filed, but there maybe situations where the special circumstances of the situation may make it desirable and appropriate for the purpose of effectuating the statutory policies to move against picketing --

Justice William J. Brennan: Well, Mr. Manoli.

Mr. Dominick L. Manoli: -- from its very inception.

Justice William J. Brennan: The very picketing that we're concern with here --

Mr. Dominick L. Manoli: Yes, sir.

Justice William J. Brennan: -- were this be repeated by this very union for 30 days starting March would be reached by Subsection (c), isn't it that --

Mr. Dominick L. Manoli: It could go on and picket for 30 days --

Justice William J. Brennan: Yes, right.

Mr. Dominick L. Manoli: -- provided that in those 30 days, there was a representation petition filed.

Now, under 8 (b) --

Justice William J. Brennan: No, my point is --

Mr. Dominick L. Manoli: Yes.

Justice William J. Brennan: -- if -- if it the very the very Congress which (Inaudible) if it started to act and duplicate it starting March, it could be reached under this (Inaudible).

Mr. Dominick L. Manoli: Within -- it would have here -- it would have 30 days within which the --

Justice William J. Brennan: No, I appreciate -- as I say, the (Inaudible) 30 days?

Mr. Dominick L. Manoli: Well, here, they were within 12 months of the election.

They would have been reached under the second -- under the second provision of 7 -- Section 8 (b) (7).

Justice William J. Brennan: Well, then, why -- why should we decide this question which admittedly is reached by the amended facts?

Why should we wait until the other situation can come before us?

Mr. Dominick L. Manoli: Well, Your Honor, if this statute, if Section 8 (b) (7) as the Board believes, merely supplement -- well, if you're suggesting that 8 (b) (7) displaces -- displaces the Board's power under 8 (b) (1) (A) --

Justice William J. Brennan: That's not what I'm suggesting though.

I'm suggesting of the fact situation here.

Mr. Dominick L. Manoli: Yes.

Justice William J. Brennan: That next time the Board confronted it --

Mr. Dominick L. Manoli: Yes.

Justice William J. Brennan: It has explicit statutory authority to deal with it.

Mr. Dominick L. Manoli: But Your Honor, this union had violated the law, if we are correct in our reading of 8 (b) (1) (A) and it violates the law and we're sustained in that view, then, we're entitled to have this order enforced and that's been set aside by the Court of Appeals.

Justice William J. Brennan: The results then (Inaudible)

Mr. Dominick L. Manoli: There are other cases that are pending.

There are at least -- the Board itself has a dozen or more cases and there are number of cases pending in various Courts of Appeals.

Justice William J. Brennan: Before the Board, it can be reached under the statute (Inaudible)

Mr. Dominick L. Manoli: The -- not unless, no.

Those charges were filed those under the old law.

Justice William J. Brennan: (Inaudible)

Mr. Dominick L. Manoli: "Well, there would have to be new charges under the new Act and of course, the picketing would have to be continuing in order to avoid the six months statute of limitations.

Justice Potter Stewart: Certiorari was granted in this case of course before the enactment of the new statute?

Mr. Dominick L. Manoli: That's right, sir.

That's right.

Now, as I was -- when the Court arose, I was addressing myself to the question of whether Congress by passing this new legislation has indicated at the Board did not have this power under 8 (b) (1) (A) to reach this kind of picketing.

I don't believe -- we don't believe that Congress made that judgment --

Justice Tom C. Clark: Mr. Manoli, I don't like the other (Inaudible).

One other thing I intended to ask you --

Mr. Dominick L. Manoli: Yes, sir.

Justice Tom C. Clark: (Inaudible)

Mr. Dominick L. Manoli: Yes, sir.

Justice Tom C. Clark: Were there any amendments of the provisions of them from the 1957 since the amendment of the statute?

Mr. Dominick L. Manoli: No.

Justice Tom C. Clark: 1958 and 1959 that would have grown as far as you say in the (Inaudible) us to the whole review here.

Mr. Dominick L. Manoli: There were a number of --

Justice Tom C. Clark: And what action was taken on it?

Mr. Dominick L. Manoli: There were a number of amendments and I'm not -- not sufficient familiar Your Honor to answer that specific -- that -- that specific question.

The --

Justice Tom C. Clark: Maybe the other counsel?

Mr. Dominick L. Manoli: Perhaps he can.

But I am not --

Justice Tom C. Clark: Were there some others offered?

Mr. Dominick L. Manoli: Oh, there had been others offered over a number of years but they have been very extensive kind amendments reaching both organizational and the so-called recognition picketing.

Justice Tom C. Clark: I mean at the time -- in 1959.

Mr. Dominick L. Manoli: Yes.

Justice Tom C. Clark: When they passed what they did, did they reject something that could have gone further in your direction that --

Mr. Dominick L. Manoli: No, no.

Justice Tom C. Clark: -- the one they've had.

Mr. Dominick L. Manoli: No.

As a matter fact, it didn't go any far enough.

The Senate -- the Senate had no provision in -- in its bill -- in the Kennedy-Ervin bill had no provision governing this sort of thing.

Then, the House Committee -- the House Committee had a bill and it was criticized by -- it was criticized as not going far enough --

Justice Tom C. Clark: It's not going far enough in your direction?

Mr. Dominick L. Manoli: In -- not going far enough in -- in dealing with --

Justice Tom C. Clark: But, was it -- was it criticized because it didn't go further than that one did to come approach (Inaudible) the position you take here now?

Mr. Dominick L. Manoli: That's -- I don't know whether the criticism was put in those terms, Your Honor.

Justice Tom C. Clark: But, I -- I don't mean the terms.

If it was an amendment also in which it passed --

Mr. Dominick L. Manoli: Yes.

Justice Tom C. Clark: -- would have made the unfair labor practice, given the right to find an unfair labor practice on a less state of facts than here than under the one there?

Mr. Dominick L. Manoli: I have matter -- I don't know.

Justice Tom C. Clark: You don't know?

Mr. Dominick L. Manoli: I don't.

Justice Felix Frankfurter: Isn't the situation that if your claim and the new -- the provision of the new Act that you read on the generality of condemnation of unfair labor practice by invoking the purposes of the Act regarding the free bargaining and the provision that the new Act makes is a specific dealing with the segment of their thought.

Mr. Dominick L. Manoli: That's right.

That's right.

Now, the -- I have said that -- Mr. Justice Stewart I think suggested that at the time that these amendments were passed, there was no -- the Court -- I have suggested that there was no intention on the part of Congress to judge the Board's power under 8 (b) (1) (A).

And the situation was this that two Courts of Appeals, the Fourth Circuit, and the Court of Appeals below -- Court of Appeals below have reached in 50 answers on this and as Mr. Justice Stewart stated, he's wrong with the very words of one of the dissenters.

The law was uncertain.

This Court had granted certiorari in -- in this case and Congress did not attempt -- was not attempting to determine this issue but is simply wanted to make sure that whatever the outcome of this litigation, the Board would have some power to deal with both organization and recognition picketing.

Now, further, the Board believes that Section 8 (b) (7) does not displace whatever authority -- the authority which we claim that we have under 8 (b) (1) (A), but that its supplements and adds to it because 8 (b) (1) (A) as we read it, reaches only minority picketing.

Justice William J. Brennan: (Inaudible)

Mr. Dominick L. Manoli: It -- I won't know as --

Justice William J. Brennan: It's supplemental --

Mr. Dominick L. Manoli: It supplements in this sense, Your Honor, that 8 (b) (7) (D) is not only with in picketing by a minority union for purposes of recognition, it deals with picketing by any kind of a union for purposes of either organization organizing the employers or for purposes of obtaining recognition.

Now, and the Board believes, the Board believes that this statute sought to preserve the Board's power under 8 (b) (1) (A) to reach this kind of minority picketing and that this purpose is evidenced by the -- by the Savings Clause of 8 (b) (7).

And the Savings Clause provides that this is on page 67 of our brief at the very bottom, nothing in this paragraph shall be construed to permit any act which would otherwise be an unfair labor practice under this Section 8 (b).

Now, the Board reads that certain sentence as ordered to mean that -- that whatever power the Board have, under 8 (b) (1) (A), to deal with minority picketing is not displaced by this statute.

Now, finally, I want to turn to a statement that appears in the conference report on the 1959 amendments.

Justice William J. Brennan: Were there any (Inaudible) to that effect?

Mr. Dominick L. Manoli: No, there isn't and I'm coming to the conference report Your Honor which is perhaps the only bit of history that we've got on this and that is the conference report on these amendments -- this is as quoted at page 59 of our brief at the bottom.

The conference report had this sentence.

Section 8 (b) (7) overruled the Curtis and Alloy cases to the extent that those decisions are inconsistent with Section 8 (b) (7).

But if the Court please, the statute has itself as many ambiguities and I'm afraid this sentence is as much if not more ambiguous in the state -- in the statute itself.

But, as we read this -- this sentence and I'm not so sure if there is any other legislative history that you -- that (Inaudible) or reading of it.

I will finish in just one moment Your Honor, as we read this -- this statement, Congress -- the conference report or Congress was simply saying the credit -- the force of the -- the Court of Appeals of the District of Columbia in accordance to the Ninth Circuit in the Alloy case have indicated the Board doesn't have the power to deal with minority picketing under 8 (b) (1) (A) for purposes of recognition.

We are overruling those cases and I am now -- and they're supplying and they're supplying whatever deficiencies they may have been but we're not determining, we're not determining whether or not the Board did or did not have the power to deal with this kind of picketing under Section 8 (b) (1) (A).

Thank you.

Chief Justice Earl Warren: Mr. Thatcher.

Argument of Herbert S. Thatcher

Mr. Herbert S. Thatcher: May it please the Court.

It's the position of the Labor Board here but not of the Solicitor General as I understand his position from his plight of petitions of -- to the petitions for certiorari in the Rubber Workers case, he believes that the new law, 8 (b) (7) or the new law disposes of this case and disposes --

Justice Tom C. Clark: What case is that?

Mr. Herbert S. Thatcher: That's the Rubber Workers case or Sullivan Hill, the number of which set forth in our -- in our brief here I can get it --

Justice Tom C. Clark: (Inaudible)

Mr. Herbert S. Thatcher: You would held up on that I think, no action in that case or in Alloy.

The Solicitor General has suggested that the new law dispose of all these cases, but it's the position of the Board at least here --

Justice Tom C. Clark: How did he suggest what purpose (Inaudible)

Mr. Herbert S. Thatcher: He specifically indicated that in Court that authority before a new law has passed which disposes of an issue pending before the Court that -- and in a particular order before a Court that the Court had power or the Board would have power to so modify its order and to conform to -- to the new law and then --

Justice Felix Frankfurter: He wanted it sent back?

Mr. Herbert S. Thatcher: Pardon?

Justice Felix Frankfurter: He wanted the case is sent back to court --

Mr. Herbert S. Thatcher: He wanted the cases sent as that, yes, Your Honor.

Justice Hugo L. Black: Mr. Thatcher would it -- this range of kind of argument to state the question of whether or not the Congress in 1959 was asked to and rejected or accepted in any way broader powers of the Board than the amended case.

Mr. Herbert S. Thatcher: Yes, it did, Your Honor.

There were legislative proposals in both the House and Senate which would have --

Justice Hugo L. Black: At that time?

Mr. Herbert S. Thatcher: At -- in 1959 during the discussions and during the proposals for a law dealing with recognition and organizational picketing by minority unions, the subject we have here, there were proposals and they're set forth in our brief which would've gone farther -- further than 8 (b) (7) now goes which would've been included for instance all picketing for recognition or for organizational purposes by any union, any union which represented less than 30% of an employer's employees.

That, a particular additional restriction I remember was included in several bills.

Now, they made -- may have been more.

Justice Hugo L. Black: But that has been --

Mr. Herbert S. Thatcher: But that was proposed and rejected.

Justice Hugo L. Black: Would it have covered this --

Mr. Herbert S. Thatcher: That would've covered it this --

Justice Hugo L. Black: (Inaudible)

Mr. Herbert S. Thatcher: That would've covered the situation here in this case, Your Honor.

Justice Charles E. Whittaker: But would it have covered the case (Inaudible)

Mr. Herbert S. Thatcher: It -- Your Honor, it would have if that union as here represented less than 30% of the employer's employees.

Justice Charles E. Whittaker: This act --

Mr. Herbert S. Thatcher: Picketing the sort of proposal, proposal which exceeded what 8 (b) (7) did, yes.

This Act -- this Act which was passed would have precluded or prohibited the picketing here had to go on for one hour because the picketing followed an election which the union had lost and this law proscribes picketing to secure recognition in the face of that circumstance.

Justice Charles E. Whittaker: 7 does (Inaudible)

Mr. Herbert S. Thatcher: 7 does, Your Honor.

Justice Charles E. Whittaker: (Inaudible)

Mr. Herbert S. Thatcher: B is set forth in the Board's brief page 67, subsection (b) where it was in appreciating 12 months the ballot election under 9 (c) had been conducted.

Reading that was -- was the substantive language in 7 where it means unlawful to picket specifically for purposes of recognition.

So, clearly, the picketing here would've been -- could've been enjoined within one hour after it commenced.

Justice Charles E. Whittaker: (Inaudible)

Mr. Herbert S. Thatcher: That is right, Your Honor.

Justice Charles E. Whittaker: (Inaudible)

Mr. Herbert S. Thatcher: No.

It's -- it's prohibited in three specific areas and they're rather broad areas.

The first is where the -- the employer is recognizing or dealing with the union whether it is certified or not that it has a right to deal with, but it already had a contract for instance even though that union hasn't been certified.

In that case, picketing is instantly enjoinable.

Then the second instance is where there has been an election within the previous 12 months.

There picketing can be instantly enjoined.

Justice Charles E. Whittaker: That's (B).

Mr. Herbert S. Thatcher: That's (B) and third, (C), in where those two situations don't exist which often happen, then, picketing can go on for a reasonable period not to exceed 30 days.

The case was decided three -- three or four days ago in the District Court up in Connecticut where picketing was enjoined after, it's been 12 or 15 days of the -- and no petition had even filed.

So, the courts already are reading this to perhaps prohibit picketing within a period much less than 30 days, even (C).

Justice Felix Frankfurter: Mr. Thatcher, the amendment which you say was proposed and rejected it would've allowed what you call an injunction and order if it lasted only an hour or a day, is that right?

Mr. Herbert S. Thatcher: No.

The -- the injunction could've been obtained within an hour after picketing started, that's what I meant to say.

Justice Felix Frankfurter: Oh!

No matter how short the period of picketing --

Mr. Herbert S. Thatcher: Yes.

Under (A) and (B) of the present statute no matter how short the picketing may have been carried on, one hour is sufficient time for the picketing to have been carried on, and then the Board can go into Court and get an injunction.

Justice Felix Frankfurter: Yes.

But the statute as I understand you, the statute would've made no limitation such as it now makes, is that right, such is made on the (Inaudible)

Mr. Herbert S. Thatcher: Well --

Justice Felix Frankfurter: (Inaudible)

Mr. Herbert S. Thatcher: Well, that was one of the proposals.

There was a further proposal from that which would instantly have prohibited picketing.

And then, in any situation where the union did not represent more than 30%, is that what Your Honor --

Justice Felix Frankfurter: It -- if it lasted only a few minutes, you could've rush before the Board under the mandate of the statute it didn't put any conduit, is that right?

Mr. Herbert S. Thatcher: Yes, Your Honor.

Justice Felix Frankfurter: Now, what I want to ask you is whether now, the complaint under -- under what the Board now is urging, the -- a written discretion regarding the length and nature of the picketing that was (Inaudible) the counsel to take notice of and bring by way of complaint for the Board, is that right?

Mr. Herbert S. Thatcher: Is this meant to --

Justice Felix Frankfurter: It's the statute is mandatory because it doesn't say -- I mean, unfair labor practice and they have to decide whether --

Mr. Herbert S. Thatcher: The Board is required or the general counsel for the Board is required to go onto Court to seek an injunction and he can do that within minutes after the picketing has started.

So, that that --

Justice Felix Frankfurter: Do you mean, now?

Mr. Herbert S. Thatcher: Now.

Justice Felix Frankfurter: Under 8 (b) (7) contention?

Mr. Herbert S. Thatcher: Now, under 8 (c).

Under 7 --

Justice Felix Frankfurter: I'm not talking about 7 (c).

I'm talking about -- forget 7 (c).

Mr. Herbert S. Thatcher: Oh.

Justice Felix Frankfurter: Under the -- under the legal view of the Board here --

Mr. Herbert S. Thatcher: Or 8 (b) (1) (A).

Justice Felix Frankfurter: 8 (b) (1) (A), the general counsel has discretion what complaint he will file before the Board.

Mr. Herbert S. Thatcher: That would've been discretionary Your Honor, yes.

Justice Felix Frankfurter: That would've.

Mr. Herbert S. Thatcher: That would've been.

Justice Felix Frankfurter: Now, if the amendment which was rejected as such, wouldn't it?

Mr. Herbert S. Thatcher: No, it would've not been.

Justice Felix Frankfurter: Alright.

Mr. Herbert S. Thatcher: There's that difference?

Justice Felix Frankfurter: So, you got that --

Mr. Herbert S. Thatcher: They do have that.

Justice Felix Frankfurter: There's also a provision that nothing in paragraph (C) shall be construed to permit any act which would otherwise be an unfair labor practice.

So, that might imply, at least my reading of it implies that there must be act which is otherwise be an unfair labor practices, although, this had -- the order makes it an unfair labor practice.

Mr. Herbert S. Thatcher: That's maybe correct Your Honor.

There is this an interesting better informal post legislative history in the form of an address by Professor Cox who was the adviser to Senator Kennedy through out this at the University of Minnesota I think it is which we have set forth in our brief and in which he states that there had been a statement prepared but was distributed too late which indicated the precise meaning of this last proviso which you just read as meaning that it -- that it protects only the 8 (b) (4) sections of the Act from possible misconstruction by virtue of the enactment of many words in 8 (b) (7) and in which it was expressly stated that it was meant by 8 (b) (7) to dispose completely of the litigation in Curtis, Alloy and other cases.

Justice Felix Frankfurter: Are we not going to include among legislative history the speech by somebody whom I respect gratefully apart from the fact that he is been student of mine, are we going to include among legislative practice or the speech made by Professor Cox months later including the statement of (Inaudible) need an ample time I think on the floor and ask some of these statements made by Senator Walsh which he did argue senatorial sponsor to reply to it.

Are we going to include that on the legislative history?

Mr. Herbert S. Thatcher: I -- I set that part from the brief Your Honor only to indicate the reasonableness of -- of our argument and position that in --

Justice Hugo L. Black: That might -- that might be the reason that sometimes to say that in any other things which we don't have something else of that specific plan.

Mr. Herbert S. Thatcher: Right.

We suggest that the same --

Justice Felix Frankfurter: I was wondering whether that's part of the legislative history and you (Inaudible) --

Mr. Herbert S. Thatcher: I --

Justice Felix Frankfurter: -- great reporting of the -- report of the legislative adviser (Inaudible) attempt.

Are we going that far (Voice Overlap) --

Mr. Herbert S. Thatcher: I -- it -- it certainly is not formal legislative history.

It's not part of the congressional -- it's informal legislative history.

Justice William J. Brennan: But would that (Inaudible) and this is from the House Report as I understand it, the statement of the managers on the part of the House, Section 8 (b) (7) overruled the Curtis and Alloy cases to the extent that these decisions were inconsistent to sections of law.

Mr. Herbert S. Thatcher: In the first place, it doesn't indicate whether they mean the Board's position and the Board's position is being overruled or the Court's decision in those cases which is contrary to the Board's position which is overruled.

What I think they've meant is that, regardless of what it --the Board have held -- what the Court have held, those decisions were overruled and this is now the law that Curtis and Alloy are now things of the past and that we now have before us 8 (b) (7) and that is determinative, that's our position here.

Justice William J. Brennan: Okay.

Mr. Herbert S. Thatcher: Proceeding, just to restate now the Board's position, so the real extent to which it does go that notwithstanding Section 8 (b) (4) (C) of the Act which deals specifically with recognition picketing, but in a very limited way and notwithstanding, 10 solid years of legislative effort every year in Congress to enlarge 8 (b) (4) (C) to include the type of picketing we have in this case and notwithstanding the fact that in 1959 after discussing the same up and down and back and forth for months in Congress last summer, last Spring, Congress did finally draw the line that seems -- thought should be drawn, the Board states not that it had this authority all along.

In fact, all of these that it had, this authority but it had even broader authority.

I think the error of the Board's position is implicit in its own very statement and can be shown within the four corners of the Act itself about resorting to much legislative history.

First, Section 13 had to be paid a great deal of attention to.

This State strikes and picketing which is equated with strikes by this Court in the Rice Milling case and specifically by other circuits under 13.

It states that picketing or strikes can be proscribed only if it specifically provided for another sections of the Act.

Section 8 (b) (1) (A) certainly does not by its terms specifically proscribe any concerted activity such as those for instance Section 8 (b) (4) which can be said to be a specific prohibition of picketing or striking, because it deals specifically with striking and picketing as such.

The Section merely states in a general way that it's an unfair practice to restrain or coerce -- restrain or coerce employees in the exercise of rights set forth in Section 7.

Now, for nine solid years, the Board held that the reach and the scope of Section 8 (b) (1) (A) was not to interdict or -- or condemn within the phrase coerce any aspects of peaceful striking or picketing.

Perry-Norville, the NMUK decided before Perry-Norville and six cases decided after that time between the time of that first decision and now, all held specifically that regardless of how illegal the object might be, the object of union's activities to get a closed shop for instance although a closed shop was proscribed by the Act or other directly admittedly illegal objectives, nevertheless, picketing to secure those objectives could not be indicted or proscribed under Section 8 (b) (1) (A) because peaceful picketing could not be deemed and was never thought to be included within the term coercion.

Now, for the first time, the Board argues -- argues flatly that because picketing has -- which we all admit, picketing has the effect of attempting to reach an employer economically and the Board then says that that may reach the employees indirectly in their economic position that the employer loses business.

They might suffer -- in their employment conditions that by that indirect means, there has been a accomplished a coercion within the meaning of the term coerce as set forth in Section 8 (b) (1) (A).

Well, that was --

Justice Charles E. Whittaker: (Inaudible) what possible purpose of the picketing is struck (Inaudible)?

Mr. Herbert S. Thatcher: I'll dwell on that at -- at a little more length later.

I'll answer you very briefly now though Your Honor.

A readymade and a very traditional objective of union -- unions generally is reached by attempt by minority unions to achieve recognition and indeed, a contract with unorganized employers namely, extending the scope of organization beyond the single shop or extending the scope of organizations -- of organizations and try to bargaining to reach all the shops within an industry or within an area as a means of eliminating the competition from the -- the wage -- capital -- wage competition from the unorganized shops.

Since the beginning of trade union history, that's been an objective, there has been picketing carried on to that end by minority unions since the beginning of trade union history, this Court has protected it, the Norris-LaGuardia Act has protected it, the Wagner Act protected it, this Act protects it as I will show later and that is the objective and the -- the matter which unions seek to achieve when they engage in this minority picketing.

That is -- is what -- that is the portion of the Section 7 rights.

Section 7 goes both to union people and nonunion people.

That is of course in the Section 7 rights which is we think protected or preserved in the Act for unions.

There maybe other matters in the -- in Section 7 of -- of -- for the nonunion employers such as the right to engage in strike making such activities, but they are certainly at least are correlative rights and we think if Congress wanted to outlaw that traditional right, they would've not done so by a vague, ambiguous, broad sweep of an 8 (b) (1) (A), they would've gone after it directly as they finally have an 8 (b) (7).

Justice Charles E. Whittaker: But assuming (Inaudible)

Mr. Herbert S. Thatcher: That is right, Your Honor.

Justice Charles E. Whittaker: How is the need to continue as before and (Inaudible) that the union insisted that the employee become members of the union?

Mr. Herbert S. Thatcher: That is right, Your Honor.

Justice Charles E. Whittaker: Was there any purpose saying (Inaudible) must require to enforce these to become members of the union.

Mr. Herbert S. Thatcher: Yes, Your Honor.

In addition to the general objective that I just stated which I think is an extremely important one, there was this further objective.

The union had won an election in that plant and it wanted rather substantially to engage in bargaining.

Bargaining collapsed on certain issues.

A strike was engaged in.

The strikers were replaced by nonstrikers.

The nonstrikers or the employer, not that the nonstrikers, the employer at that time called for an election when the people rather on strike as it had the right to do on a much criticized section of this Act.

That election obviously was lost.

Does the union thereby lose its right to protest or to seek to achieve what it thinks necessary to preserve conditions in the city?

We think not.

Chief Justice Earl Warren: Mr. Thatcher, I wonder if I heard correctly, I understood Mr. Manoli to say that the Perry-Norville case was the only case in -- in which the Board maintained -- sustained the position that you now advocate here and I thought I understood you to say that there were some six cases following the Perry-Norville case?

Mr. Herbert S. Thatcher: Well, there are some six cases and we can supply them which held this principle.

Chief Justice Earl Warren: Yes.

Mr. Herbert S. Thatcher: And it went all the way up to just before the decision in this case which upheld the principle that 8 (b) (1) (A) does not reach peaceful picketing no matter what the objective of the picketing might be, whether admittedly or in the illegal objective including --

Chief Justice Earl Warren: Yes.

Mr. Herbert S. Thatcher: -- in some cases picketing by a minority unions --

Chief Justice Earl Warren: Yes.

Is that --

Mr. Herbert S. Thatcher: The minority union is present in Perry-Norville and I think in one or two or the other.

I'm not -- I can assure that, but the basic principle at least upon which the Board relies here namely that 8 (b) (1) (A) can include peaceful picketing as coercive when the purpose of the picketing is to achieve an unlawful objective, that principle, that's the basic principle here, that has been flatly denied in at least state board decisions running all up to the time of the decision here.

Chief Justice Earl Warren: Are those in your brief?

Mr. Herbert S. Thatcher: No.

They -- actually Your Honor, I'll be glad to supply them following that.

Chief Justice Earl Warren: Would -- would you?

And of course Mr. Manoli if you have any counter opinions, you may cite those.

Rebuttal of Dominick L. Manoli

Mr. Dominick L. Manoli: Thank you.

Rebuttal of Herbert S. Thatcher

Mr. Herbert S. Thatcher: Now, as Mr. Manoli indicated the legislative history of Section 8 (b) (1) (A) is the -- you can point the statements either way, we think the later legislative history following the statements by Mr. -- by Senator Taft has reported here which occurred prior to the time that the words interfere with were taken out of 8 (b) (1) (A).

8 (b) (1) (A) is originally proposed and it was only in the Senate that it was debated and prepared in the House.

8 (b) (1) (A) as it originally arose said that there is an awful interfere with restrain or coerce.

And Senator Taft was speaking about this -- what he was speaking there at that time then interfered with -- the word “interfere” was taken out and after that, you'll find the debates much more limited and the fact that Senator Taft itself speaks about people can now -- can patrol carrying signs and it can now seek to organize by any peaceful means.

He makes that by statement too.

But, the legislative history as set forth at length in our brief and I don't think any thing that will be gained by discussing it here further.

I -- I think so that we take 8 (b) (A) -- 8 (b) (1) (A) read with the prohibition in Section 13 that the Act can't -- that broad phases in the Act can't be read to proscribe picketing that proscriptions have to be flatly stated or specifically set forth in the Act.

If you read those two together, I think there alone, we have an answer to the Board's entire argument here but --

Justice Charles E. Whittaker: (Inaudible)

Mr. Herbert S. Thatcher: You're -- you're right Your Honor.

The Section 13 speaks only of strikes -- striking.

But --

Justice Charles E. Whittaker: Yes.

Indeed the right to strike.

Mr. Herbert S. Thatcher: That is right, Your Honor, but this Court had a case at length to consider Section 13 on its application in the Rice Milling case, that's set forth in our brief here.

That case involved a -- a situation were picketing alone was involved, picketing of a plant which was not organized or where -- where none of the employees were on strike, not a single one was on strike and this Court protected that picketing within using Section 13 as the means of protecting that picketing.

There are other Circuit Court decisions set forth in our brief here, in which the Courts have held one is the Campbell (Inaudible) in the Court of Appeals law here in which the Court have held that picketing as such is directly embraced within Section 13 of the Act.

The Board was held so within the term “striking” in Section 13 of the Act.

The Board was held so in many decisions and I don't -- and they haven't controverted that proposition in the brief here and I don't understand until now.

Justice Charles E. Whittaker: Well, I understand that no (Inaudible)

Mr. Herbert S. Thatcher: Well, when the trouble first arose, they represented all of them.

Nine went out on strike --

Justice Charles E. Whittaker: (Inaudible)

Mr. Herbert S. Thatcher: That is right, Your Honor.

That is right, Your Honor.

Justice Charles E. Whittaker: Not a simple striking power?

Mr. Herbert S. Thatcher: Well, there is a continuing strike.

There was a -- the strike which gave rise to this whole trouble and which resulted in the replacement of the strikers and then the following election, that was the continuing strike.

They never stop picketing pursuant to that strike.

We have the strike here at all times.

Even if we have only one -- one man still left, there's still a strike and they still were seeking to -- to get their contracts which they never did get following the certification.

So we have a strike, but it's -- it's clear that picketing is -- can be equated with striking under Section 13 and the Board doesn't controvert that here.

But --

Justice Charles E. Whittaker: Who is --

Mr. Herbert S. Thatcher: I think that the -- the key to this whole litigation and the key to this case is Section 8 (b) (4) (C) and then even more strongly Section 8 (b) (7).

In 8 (b) (4) (C), Congress have before it the specific subject of picketing by minorities or by unions for recognition.

And at -- at the first proposal broadly prohibited all picketing for recognition unless the union had a certification and the debate from the proposal ran the whole gamut up and down from the most extreme and finally, after much debate, Congress came out with 8 (b) (4) (C) which restricted recognition picketing only in a very narrow area.

Justice Hugo L. Black: What -- what Act was that?

Mr. Herbert S. Thatcher: Well, that's set forth in our -- our brief.

Justice Hugo L. Black: Well, I mean the --

Mr. Herbert S. Thatcher: The proposal of which sought to --

Justice Hugo L. Black: The Act that -- the Act of this (Inaudible), is that the one with those too much controversy --

Mr. Herbert S. Thatcher: 8 (b) (4) (C) was the original Taft-Hartley Act in 1947 in which there was --

Justice Hugo L. Black: But I'm talking about the 1959.

Mr. Herbert S. Thatcher: That 8 (b) (4) (C) -- that 8 (b) (7) that --

Justice Hugo L. Black: What Act was that?

Was that the Landrum-Griffin Bill?

Mr. Herbert S. Thatcher: Well, I'm coming to that later.

I'll give you a legislative history on that shortly.

Justice Hugo L. Black: I don't care about legislative history, I'm interested to know if that's the Act.

Mr. Herbert S. Thatcher: That's the Act.

The Landrum-Griffin Bill was the Bill in the House and there were various versions in this Senate starting with the Kennedy-Erwin Bill and then we finally came up with 8 (b) (7), there.

As I indicated earlier, there were, after 8 (b) (C) was enacted, there were nine solid years, each year of which there were attempts in Congress to expand 8 (b) (4) (C) to include all types of minority picketing, each time these proposals were rejected.

We have a joint Committee Report a portion of which -- in which Senator Taft was a member of that Committee.

Senator Ball, other Senators who took leading part in the debates were members of that Joint Committee and that Joint Committee flatly stated that that is in addition to what Mr. Manoli read, finally stated this the Taft-Hartley laws, I reading at page 36 of my brief, the Taft-Hartley law's only limitation upon minority of such strikes, minority strikes they were talking about is that provided by Section 8 (b) (4) (C).

The right to strike of recognition is only foreclosed when another union has been certified.

And it goes on to say that the union can strike recognition the day after it loses an election.

That's the Joint Committee that Senator Taft, that Senator Ball's view, the people that proposed and got passed Section 8 (b) (1) (A).

And they didn't put it on the basis of Board's decision.

That is what they regarded the law as standing for it.

There is no doubt about that.

Then -- then we come now -- then in 1958, there was a -- an even more strenuous effort to get the legislation and appeal of recognition picketing and we set that forth at some length in our brief, but all of those proposals were rejected finally in 1958, including the very 8 (b) -- the Section 8 (b) (7) which finally was enacted in 1959 and efforts were continued to 1959 and again, the proposals run a whole gamut of prohibition and after a long debate, much controversy, and much discussion, Congress finally came out with Section 8 (b) (4) with -- with Section 8 (b) (7) which -- that means, anything that needed the Congress to take in the matter in hand after much study as set what it thinks are the proper boundaries.

It thinks now that after there has been an election, union should not take a bet now to the law.

But Congress did so by direct language of proscription.

It regarded Section 13, it -- it took a counter Section 13 and in proscribing recognition picketing did so by very precise language and it did so in the very areas that are involved in this case.

We think that's determinative of this litigation.

There is a very recent -- there is only one decision since the passage of the 1959 law which takes up -- which discusses the effect of the 1959 law on the Board's position in this case namely that 8 (b) (1) (A) also can be used to -- to enjoin minority picketing.

And the Second Circuit's, it's the Board versus Teamsters Local 182, case is decided November 27, not reported yet except in L.R.R.M. and we've got the citation in our brief, the Court unanimously rejected the Board's reasoning here and said, of course, Congress has taken this matter in hand and -- but it -- it is now enacted and this is the law and 8 (b) (1) (A) cannot be used to permit the Board to have a (Inaudible) commission to -- to deal with other unregulated areas of recognition picketing.

Unknown Speaker: (Inaudible)

Mr. Herbert S. Thatcher: Pardon?

Unknown Speaker: (Inaudible)

Mr. Herbert S. Thatcher: It's in our brief I have in here.

It's -- it's unreported -- it's a step -- it's reported in 45 L.R.R.M. --

Justice Hugo L. Black: What's the name of the --

Mr. Herbert S. Thatcher: It's N.L.R.B. versus Teamsters Local 182, Second Circuit, Justices Clark, Moore and Smith unanimous decision, 45 L.R.R.M. 2205.

Justice John M. Harlan: (Inaudible)

Mr. Herbert S. Thatcher: 45 L.R.R.M. 2205, set forth on page 54 in filing of our brief.

Now -- now, coming out of the answer to some of the Board's contentions here on the policy -- in the policy area namely that we're seeking to interfere with employees' rights not to join unions and we're seeking to reply our employers to commit unfair practices.

But to answer that, we've got to go back a little -- a little -- to earlier decisions of this Court and to other enactments in the field of federal legislation in the field of labor relations, bearing in mind the administrative court in U.S. versus Hutchinson.

Perhaps, we have to consider all of these federal laws in the labor field of the comprehensive code to see this what -- how the Congress considers and regards the various rights that are asserted from time to time.

As I indicated in an answer to a question from Mr. Justice Whittaker, it is traditionally since the beginning of trade union history than the customer practice of unions to seek to extend organization beyond the single shot.

To seek to get all within an all industries, all trades, all shops, within an area organized to prevent the – the wage competition from the nonunion shop, the wage competition for the nonunion shop.

That principle has been upheld by this Court in the American Steel Foundries case Chief Justice when Mr. Taft was Chief Justice.

In the Apex case, Justice -- Mr. Chief Justice Roberts both dealing with Antitrust, Sherman Act and Clayton Act attempts to -- to prevent unions from picketing by -- in -- in -- the minority situations that we have here and the Court -- this Court expressed its understanding of the principle of attempting to spread organization by minority picketing.

In a Swing case, this Court expressed similar views in connection by the free speech considerations.

The Norris-LaGuardia Act, Section 104 and Section 113 (e) specifically protects minority picketing for recognition from the injunction process at least.

And in this connection, we refer the Court to the Fur Workers case, we have it cited in our brief, affirmed here where there was minority picketing and on that premise alone, an injunction was sought and no minority picketing for recognition and the Court denied it.

And then in these same Sections to the Norris-LaGuardia Act which protected as against injunctions, the past picketing we had -- we had here before the 1959 amendments were carried on to the both the Wagner Act and to the Taft-Hartley Act.

Justice Felix Frankfurter: If the statute in this argument that I'm about to sustain comment on it bears directly on our problem, but there is no contradiction between things that the effort is suggesting to organize the whole (Inaudible) and this unit of it in order to -- you have to get this unit also here in order accomplish what you say is one of the purposes and that by doing that you also get recognition if you can get to organize that shop or that factory, then, there will be majority in the strike and they also have increase the range of the union's domain.

Mr. Herbert S. Thatcher: That is right.

Justice Felix Frankfurter: You explain two things up with --

Mr. Herbert S. Thatcher: Well, I'm --

Justice Felix Frankfurter: Use together.

I mean, just to the matter of investigative fact, I don't see what's the -- what would be the argument?

Mr. Herbert S. Thatcher: Well, the argument is that the Board was --

Justice Felix Frankfurter: That is what the argument is but I don't think that's the relevance here.

I'm saying of course, it has two purpose namely to -- to organize that shop and thereby, you increase the rate of the --

Mr. Herbert S. Thatcher: But -- that's right.

But these rights which are recognized by the Congress, have been recognized by this Court.

And I think of Congress before 1959 and 1947, Congress wanted to -- also that right or restrict it in any way would done so by direct language.

Justice Felix Frankfurter: The answer of that is part of the argument.

I just don't see why you don't say why a court (Inaudible)

Mr. Herbert S. Thatcher: That's what I -- but of course we (Inaudible)

Justice Felix Frankfurter: (Inaudible)

Mr. Herbert S. Thatcher: I -- I don't mean -- I don't needed to deny that for a minute.

Justice Felix Frankfurter: Alright.

Mr. Herbert S. Thatcher: Of course, I think it was to get recognition and a contract.

Justice Felix Frankfurter: I know, but you're arguing either (Inaudible)

Justice Charles E. Whittaker: Mr. Thatcher, may you lawfully do that by coercing the employees?

Mr. Herbert S. Thatcher: That depends on whether coercion, the term coercion as used in 8 (b) (1) (A) can be said or read to include peaceful picketing.

Up to this case, it never has been -- Congress never -- up until 1959, never considered peaceful picketing as being coercive or admittedly has -- it brings economic pressure on employer and then maybe on employees and the Board for nine solid years specifically held that picketing cannot -- peaceful picketing cannot be held to the coercion.

That all of it was embraced within the term “coercion” was physical violence, mass picketing, beating, things like that.

And the legislative history is replete -- is very illuminating on that aspect also Your Honor.

Justice Charles E. Whittaker: (Inaudible)

Mr. Herbert S. Thatcher: I argue this Your Honor that within the meaning of the term “coerced” as used in Section 8 (b) (1) (A) that takes violence in fact or threat of violence in the fact or some means of direct retaliation against an employer -- against union -- against nonunion people or employees something other and in addition and involving some more element of intimidation than peaceful picketing.

Peaceful picketing has never in the long history of litigation on this subject and been considered per se coercive and that in the intimidatory sense.

It has been recognized as having consequences, economic consequences in bringing pressures, yes.

Justice Charles E. Whittaker: (Inaudible) to take these employees in the union.

Mr. Herbert S. Thatcher: That is right.

But if -- again, 8 (b) (1) (A) was not concerned with purposes.

It was concerned with means, not purposes.

It was concern primarily with - -with means of interference and purposes of strikes and so on were directly on 8 (b) (4) where objectives were spelled out as being unlawful and where striking was spelled out.

Picketing was spelled out as being dealt with unlike the situation on Section 8 (b) (1) (A).

Now, the -- the only reason I am reciting all this Norris-LaGuardia Act in the history and to carry on of those protection during the Wagner Act and Taft-Hartley is to show that Congress did consider minority picketing a protected activity and certainly, at the very least, if it up until that time, up to the time of Taft-Hartley, the very least it would've done if it didn't want to consider protected anymore would be to out -- outlaw it specifically and that it did not do.

And it did not do that until 1959 when it did it at great length in Section 8 (b) (7).

There are two other factors in conclusion which would acquire any court to go slow and broadly extending 8 (b) (1) (A).

In addition to Section 13, we had Section 8 (C) of the Act which protects the right of peaceful picketing under the Act unless specifically proscribed.

Again picketing which is an aspect to free speech is not specifically proscribed under Section 8 (b) (1) (A) and finally, we have the overall considerations stressed so strongly by this Court in the Hot Cargo case that the (Inaudible) American Iron cases which is that since Taft-Hartley is the product of better compromise, better argument in which strongly contending forces were pressing for their various positions, the Court should go extremely slow and should be extremely reluctant to extend the scope of the Act merely by construction and were not clearly commanded by expressed language.

We have no such express language in Section 8 (b) (1) (A).

Thank you, Your Honor.