COMMUNICATIONS WORKERS v. N. L. R. B.

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Argument of J. R. Goldthwaite, Jr.

Chief Justice Earl Warren: Number 418, Communications Workers of America, AFL-CIO, et al., Petitioners, versus National Labor Relations Board.

Mr. Goldthwaite you may proceed.

Mr. J. R. Goldthwaite, Jr.: Mr. Chief Justice, Your Honors.

It's always a pleasure to be here in this spot.

This case comes here from the Sixth Circuit by way of writ of certiorari.

The principal question for the decision of -- of the Court is whether or not the order of the Labor Board which was enforced by the Sixth Circuit is too broad and that it enjoined the petitioner, both petitioners from interfering with restraining the employees of any employer including of the -- of the primary employer and those of any other employer.

The question is whether or not the language or any other employer is too broad.

The rule which was announced by this Court in 1941 in the Express Publishing Company case has stood and has been adhered to in all subsequent decisions of this Court and of the Courts of Appeal.

It's all for that rule in substance was that the order of the National Labor Relations Board and towards the decree of the Sixth Circuit, to paraphrase, must be bottomed in the record.

The evidence must authorize a conclusion that the unfair -- or they must authorize the Board to issue an order and that the evidence must show what unfair labor practices were committed and the order should be restricted to those unless there are other circumstances of such as a past history of misconduct of a similar type or an affirmative showing on the record that the respondent before the Labor Board intends to extend the conduct to some other employers.

Otherwise, this Court has held that the scope of the Board's order must be restricted to the parties involved.

It's the position of the petitioners as the -- I think the primary collateral question for decision which goes into the principal one that there was no evidence in the record, either by way of direct evidence or by way of history from which a -- a broad order could be based.

And that the counsel for the National Labor Relations Board, when they -- and for the first time injected into the case by way of their briefs in the Sixth Circuit the fact that there had been two previous compromise settlements of other Labor Board cases in which one of the petitioners here, the Communications Workers, had been a party.

Those were compromise settlements and it is our positioned if there was no evidence in the record other than those compromise settlements which should not be considered by the Court.

The case arises out of a strike at Ohio Consolidated Telephone Company in Portsmouth, Ohio which began in July, 1956.

The Communications Workers of America was the collective bargaining representative for the employees of the Ohio Consolidated Telephone Company for a period of 14 years previous to July 1956.

The Communications Workers of America is a National Labor Organization operating through out the United States and also in the Dominion of Canada.

It has about 730 local unions and it has contracts with over 100 different employers.

It also -- seeks to organize and to represent the employees of other employers.

The scope of the order enjoining it from interfering with or restraining the employees of the Ohio Consolidated Telephone Company in the exercise of their rights under Section 7 of the Act or the employees of any other employer would authorize an extension of the order to cover all of those 100 employers and their employees throughout the United States.

When the strike occurred in July of 1956, three local unions who administer the contract with Ohio Consolidated Telephone Company went out on strike.

The petitioner here, Local 4372, it res -- is -- has jurisdiction or has as its members, those employees who reside in Portsmouth, Ohio and vicinity.

The other two local unions who were not made respondents before the Labor Board also went out on strike.

During the course of the strike, Ohio Consolidated continued to operate its telephone facilities enforcement and elsewhere in Ohio by using supervisory employees who were, carried on his own payroll, his own supervisory employees.

Its confidential secretaries to management officials -- management officials and other employees possibly appeal -- grow more of -- of a clerical nature who were not represented by the Communications Workers and its local unions in their bargaining capacity.

It also used in order to carry on the telephone operation during the strike supervisory employees of other affiliated telephone companies.

The record shows that Ohio Consolidated Telephone Company is one of the subsidiary companies or sister companies as referred to of the General Telephone System which is a system of telephone companies roughly comparable or not in -- so as to the American Telephone and Telegraph Company which operates of course a nationwide telephone system composed of a number of operating companies and other facilities.

General Telephone Company is substantially similar.

Among its subsidiary companies are General Telephone Company of Ohio, General Telephone Company of West Virginia, General Telephone Company of Pennsylvania, General Telephone Company of the South West and I believe there's one in Illinois and Ohio Consolidated Telephone Company.

During the period of the strike, supervisory employees from these various sister operating companies were loaned to Ohio Consolidated Telephone Company.

During the period of the strike, they worked side by side with the Ohio Consolidated's own supervisory employees and were under the direction and control of Ohio Consolidated Management.

They did not take any orders or did not receive their orders from the -- their primary employers, the other companies of the general system who carried them on their payroll.

They -- the record shows that they were paid for this work by their primary employer, all of the primary employer did direct the performance of the work.

However, the primary employer with various other operating companies of the general system build Ohio Consolidated for the salaries of their supervisory employees for the work which was performed during the strikes and Ohio Consolidated retained its sister companies for the work performed so that substantially, they will -- the -- borrow the employees were carried on Ohio Consolidated's payroll for all practical purposes.

It's the contention of the Labor Board as I understand it that the fact that these supervisory employees were the regular employees of some other employers, justifies the extension of the order to cover other employers than those or the employees of other employers than the (Voice Overlap) primary employer.

Justice John M. Harlan: Why is the picketing --

Mr. J. R. Goldthwaite, Jr.: Yes, sir.

Justice John M. Harlan: -- in physically tight place?

Mr. J. R. Goldthwaite, Jr.: If the picketing of -- Mr. Justice Harlan, there was a -- there were a number of instances of violence.

They took place at the entrance, it took place entrance to exchanges, it took place at -- play at locations where these supervisory employees were attempting to work on lines and poles and other telephone company facilities.

Justice John M. Harlan: Were these locations that were all operated by the --

Mr. J. R. Goldthwaite, Jr.: Ohio Consolidated.

Justice John M. Harlan: Companies.

Mr. J. R. Goldthwaite, Jr.: The -- everything occurred within the operating territory of Ohio Consolidated and the -- the -- these employees of other sister companies were working right along side of and with and under Ohio Consolidated's own supervisory employees and under the instructions of Ohio Consolidated management at the time.

Now, the --

Justice John M. Harlan: Because they all need is -- do I understand your argument?

The only preference for a broader -- broader fact that some of these employees were operating for the -- for the struck company, have been garnered, gathered in -- is that it?

Mr. J. R. Goldthwaite, Jr.: I understand that is the Labor Board's argument.

It's our position that they were not -- that they were employees of Ohio Consolidated (Voice Overlap).

Sir?

Justice John M. Harlan: I didn't (Inaudible)

Mr. J. R. Goldthwaite, Jr.: Well, there's one other thing that we argue.

As I construe the brief and -- and as I construe their arguments in the Circuit Court was that -- may -- may I digress and come back to your answer, Justice?

There were a number of instances of -- of threats and -- and some actual violence on the part of the members and officers of -- of the petitioner, Local 4372.

There was no act of violence shown in the record of intended or alleged by either of the other two local unions who were on strike.

Only the members and officers of that one local union engaged in any acts of violence.

All of the acts of violence which are shown in the record with one exception were directed towards the supervisory employees of Ohio Consolidated and the -- those of the sister companies.

There was one exception, and Ms. Maynard who was a confidential secretary to the vice president of the telephone company was interfered with in going into an exchange on one occasion and she said she didn't want to work anyway and -- and left and came back and went to work later.

But there was a lot of publicity, Mr. Justice Harlan, in answer to your question concerning these various acts of violence which were directly towards supervisory employees.

The -- the Labor Board contended that because employ -- as I construe their contention that because employees of other employers disassociated from the labor dispute may have heard through the radio, the newspaper, of the fact that there was violence at Ohio Consolidated.

They were put on the notice that the employees were -- would engage in an act to violence to prevent somebody from working during the strike.

Now, that I hadn't given much consideration to as been a substantial argument at all because these people, members of the public in general were not in the relationship of employer and employee or labor union to employee of the disputants.

And in that -- all I can say to that is if the Labor Board can -- can restrain, issue a broad -- broad order on that basis, it -- it means that Congress has given to the Labor Board that primary function of controlling violence in -- in general.

Justice John M. Harlan: Could I ask you a question?

Mr. J. R. Goldthwaite, Jr.: Yes sir.

Justice John M. Harlan: The apparent duties of (Inaudible)

Mr. J. R. Goldthwaite, Jr.: Yes, sir.

Justice John M. Harlan: And apparent unions to this injunction prevent the affirmative and I don't know if there is that circumvents (Inaudible)

Mr. J. R. Goldthwaite, Jr.: Yes, sir.

It does.

Justice John M. Harlan: Each conduct against anything, please?

Mr. J. R. Goldthwaite, Jr.: What's our opposition now are based upon the decisions of this Court, particularly the May Department Stores case that it is broad enough, where the Board -- the -- the Board's order says the respondent union, Communications Workers of America, which operates nationally is restrained and enjoined from interfering with course and interfering with the employees of Ohio Consolidated Company or any other employer from the exercise of their Section 7 rights.

That necessarily or the worst or any other employer extend to the entire operations of CWA throughout the United States and it would include the Bell System where they represent some 300,000 or 400,000 employees and --

Justice John M. Harlan: (Inaudible)

Mr. J. R. Goldthwaite, Jr.: Sir?

Justice John M. Harlan: The Board (Inaudible) that the injunction has (Inaudible)

Mr. J. R. Goldthwaite, Jr.: I could -- I think they do.

I think, but how will they say that -- that we've got to show agency.

And my construction of what their brief says is that they agree that it does extend throughout the United States to any employer, yes sir.

But that -- that it would be incumbent upon the Board to -- before we could be held in contempt to show that the union was responsible on that theory's principles or for the violence involving other -- employees of other employers.

These supervisory employees, I think the -- regardless of whose payroll they would carry it on clearly, when the employees of Ohio Consolidated Telephone Company at the time and place where this incidents occurred.

And that's the status of the record at time it went into the Court of Appeals.

We took issue with the enforcement in order to limit the application of the order to the employees of Ohio Consolidated who were the only employees who were involved in the labor dispute.

In the complaint which was filed by the National Labor Relations Board, the only specific acts charged of against the respondents for violating the law in every case, the only specific act is that by a threat or by an actual violence, the company -- the union interfered with supervisory employees of the employer in the performance of their work.

There is no specific allegation in the complaint of any other acts and there is no -- though, as I say, there was no showing in the evidence that any act of violence was directed toward any employees other than the supervisory employees who were working for Ohio Consolidated, other than the one incidents where the secretary of the manager, the vice-president was asked not to enter an exchange.

In that status of the record, we ask the Court of Appeals not to enforce the broad language.

And in -- in the -- in their brief, counsel for the Labor Board took the position that the Board was authorized to issue a Board order because the Communications Workers, not -- not the local.

Now the local was not a party to these agreements because the Communications Workers had previously entered into consent settlements of two unfair labor practice cases in which it agreed that it would not interfere with or restrain the employees of an employer by acts of violence.

Each one of those consented agreements which were unpublished agreements, they were not published decisions of the Board.

Each one of them contained a specific provision that the execution of the agreement concluding our case did -- was not an admission by the Communications Workers that they had violated the National Labor Relations Act.

It was a typical compromised settlement agreement.

Justice John M. Harlan: Was there any argument before the Board is the scope or yours?

Mr. J. R. Goldthwaite, Jr.: No, sir.

Justice John M. Harlan: Or was there any -- the order came down before this -- this enforcement was sought, was there any affidavits filed in?

Mr. J. R. Goldthwaite, Jr.: What -- what happened in all that, the trial examiner heard it, Mr. Justice Harlan, and -- and dismissed the complaint.

He found that the members of the local union may have acted improperly.

However, he found that all of the -- the violence was incited by Ohio Consolidated Telephone Company and that Ohio Consolidated in following the charge with the Labor Board came before the Board with dirty hands, unclean hands.

And as a matter of policy, he found it would not effectuate the policy of the Act for the --

Justice John M. Harlan: Or as in the brief?

Mr. J. R. Goldthwaite, Jr.: No, they didn't.

But -- but that is so -- the first time where this -- the Board order came into it was in the Board's decisions.

The Board --

Justice John M. Harlan: What I'm asking you is --

Mr. J. R. Goldthwaite, Jr.: Yes sir.

Justice John M. Harlan: -- whether there was any effort to get that Board, to get the Board modify the rules.

The Board must (Inaudible)

Mr. J. R. Goldthwaite, Jr.: Not by -- by a formal motion, (Voice Overlap) Mr. Justice Harlan.

Justice John M. Harlan: (Voice Overlap) the Board's opinion for example to discuss the matter to solve it?

Mr. J. R. Goldthwaite, Jr.: In the Board's opinion, they didn't -- they didn't discuss employees of any other employers.

They just say that the supervisory employees were interfered with.

They -- they didn't discuss this publicity argument or they did not mention or discuss the compromise settlements.

There was nothing in the Board's order to show that a broad order was justified.

Chief Justice Earl Warren: Mr. Manoli.

Argument of Dominick L. Manoli

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

The Labor Act provides that whatever the Board's -- they'll find that any person is engaging in or has engaged in unfair labor practice that the Board shall issue an order requiring such a person to cease and desist from engaging in such unfair labor practice.

This Court has held that the statute empowers the Board to -- to enjoin not only the particular unfair labor practice found but also like or related conduct which maybe fairly and reasonably be anticipated from the offender's past misconduct.

In exercising --

Justice William O. Douglas: But -- but and if you --

Mr. Dominick L. Manoli: Sir?

Justice William O. Douglas: Does the Court -- I -- I've looking for the -- these cases suffer, of course in my recollection.

Have we ever held that in cases of the unfair labor practice against the employer that he should not engage in those practices against any other union?

Or if as what -- all that I remember are those that pertain to the particular union, is done -- is transgressed in -- in A and B.

And -- and the Court -- and the Board has said, “Well, he may -- he has a proclivity or a tendency so we'll -- enjoining from A and B and also C is always against the same union not against another union.”

Mr. Dominick L. Manoli: Oh, they -- what are -- generally over the years Your Honor, had been -- one that had been in -- directed against the employer, say, an who has discriminated against a certain employee because he was member of union A.

The Board's order will generally read that will enjoin them from discriminating against the employees by reason of its membership in union A or any other labor organization.

Now, the type of cases that this Court has had from the Labor Board, one, was the Express Publishing case.

And there, the problem was whether the Board's finding that the employer had failed to bargain in good faith justify the Board order which required the employer from in any other manner to invade the rights of his employees under the statute.

And the Court their held that the -- any -- that the refusal to bargain did not sustain anything more than an order direct through the employer to refrain from refusing from -- refusing the bargain (Voice Overlap) --

Justice Potter Stewart: Are those words --

Mr. Dominick L. Manoli: -- by restriction.

Justice Potter Stewart: -- were restricted to the parties who were before the Board.

Mr. Dominick L. Manoli: Yes sir, in -- in that case of course and the bargaining order would be --

Justice Potter Stewart: Yes.

Mr. Dominick L. Manoli: And with respect to that particular union.

But they say though over the years, we've had no difficulty on this score.

There had been any number of cases where the Board's order directed against the employer who has in somewhere other infringed the right of some employee because of his membership in a particular union.

The Board's order will say, refrain from interfering or restraining employees in the exercise of their rights or they exercise their right to belong to a particular union or any other labor organization.

Justice Felix Frankfurter: Mr. Manoli.

Mr. Dominick L. Manoli: Sir.

Justice Felix Frankfurter: Section 7 creates the question.

Interestingly, that was in my mind and I'm not the only who figure (Inaudible).

I understood you can say that if the employer was guilty of an unfair labor practice by discriminating against members of AU --

Mr. Dominick L. Manoli: Yes, sir.

Justice Felix Frankfurter: -- and of MU.

Mr. Dominick L. Manoli: Yes, sir.

Justice Felix Frankfurter: That your -- the order of the Board would enjoin him from -- in the future, discriminating against members of M or X, Y and Z, comprehensive.

In other words, there -- there is a great distinction between and is far greater.

There is a distinction in fact between enjoining an unfair labor practice and hindering types of practices.

And the scope and the range of the application of the enjoined factors --

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: -- to the parties outside those before the Court and I can -- even for the Board.

I can even see a difference between enjoining the employers from unfair labor practices against all sorts of union because all sorts of different relationships is this between employers and specifically familiar to you, and enjoining a particular employers, at least with unions against practices of the same kind no matter where those practices maybe operated.

And I -- this is as far as I know of and must have been -- this is the first case in which we have, is it not?

Which is type of order and before us.

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

Justice Felix Frankfurter: Namely, where there is a finding and for our purposes, unquestioned findings.

We're here dealing merely with the remedy.

Where there is a finding of coercive or violent practice, exercised by union as against the employer A, may even say the union we -- you'll -- will also enjoin against asserting or exercising that factors against any other employees.

Mr. Dominick L. Manoli: That's the issue in this case.

Justice Felix Frankfurter: That issue is a very different one from enjoining light tight and between the same parties.

Mr. Dominick L. Manoli: I -- we think analytically, Your Honor, they're the same.

Justice Felix Frankfurter: Well, I'm not denying it.

Mr. Dominick L. Manoli: And I will address --

Justice Felix Frankfurter: What I'm saying is that you start with the different and external fact, don't you?

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

That's right.

Now --

Justice Felix Frankfurter: Why do you say it's the same?

Mr. Dominick L. Manoli: I will continue.

Justice Felix Frankfurter: Well, but that's your argument.

Mr. Dominick L. Manoli: That's my argument, Your Honor.

The -- this Court has also said that in exercising the power to restrain unfair labor practice which the statute vest in the Board.

That the Board shall look to the particular case and in Mr. Justice Douglas' words that he shall make an informed judgment as to the extent to which a particular violator should be fenced in.

Now, the Board in this case concluded that effectuation of the statutory policies were required that the petition should be enjoined from restraining and coercing not only the employees of Ohio Consolidated, the immediate employer involved in this case, but also the employees of any other employer in the exercise of their rights under the statute.

Chief Justice Earl Warren: And any place in the United States?

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

There is no -- there os no limitation upon the Board's order.

Justice Felix Frankfurter: And the offending party in this case is the International Union not a local?

Mr. Dominick L. Manoli: Both.

Justice Felix Frankfurter: Well, I know, but -- but --

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: The essential -- you wouldn't be enjoining a local which only operates within a given area outside of its area.

Mr. Dominick L. Manoli: It -- the order has significance particularly for the international.

That is true.

Now the Board in making in making -- arriving it as conclusion, did not specify the reasons for its order.

But presumably, it must have concluded that the record warranted such an order and I think that when -- that the record does support -- does give support to our view and while the Board may have come close to the edge, it did not over step the permissible limits of its discretion in this area.

Now, I'll probably need that -- that the issue before this Court is not whether a reviewing Court considering the matter de novo would have made a similar judgment.

I believe that the issue is whether the Board has acted within the perimeter of its -- of its admittedly, of its admittedly broad discretion in this area or whether it strayed so far from that perimeter that a reviewing Court cannot permit its judgment to stand.

Now, in order to make that assessment, I should like to focus attention very briefly upon the illegal activity in which petitioners engaged in and the implications of that misconduct.

As counsel for petitioner has stated, the unfair labor practice here occurred during the course of a rather protracted strike against the Ohio Consolidated Company.

The -- beginning shortly after the commencement of the strike and extending over a period of three months, the agents of the petitioners engaged on at least 12 separate occasions in coercive acts against company personnel who were seeking to carry on its business, its functions during the term of the strike.

These coercive tactics included not only violence -- not only threats of violence but also actual violence.

On various occasions, union agents followed the company personnel to their homes in an effort to intimidate them.

They also prevented access as well invest and egress to and from the company premises to employed company personnel who were seeking to perform services and also to make deliveries.

Justice Felix Frankfurter: To what -- to what general offices did you bring now in this -- of this conduct shown?

To what -- to what offices of the international?

How high in the hierarchy of its issues then do you trace responsibility for this conduct?

Mr. Dominick L. Manoli: This conduct, Your Honor was carried on by so-called strike directors and picket captains and the trial examiner for the Board found and the Board agreed with him and there is no dispute here that this misconduct was part of a joint effort upon the part of the international and the local.

Justice Felix Frankfurter: Yes, I don't -- you're talking in -- in corporate term the international.

I want to know to what name of the officials among the top officers of the union did you bring home this conduct?

Chief Justice Earl Warren: We'll recess now.

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Argument of Dominick L. Manoli

Chief Justice Earl Warren: Mr. Manoli, you may continue.

Mr. Dominick L. Manoli: When the Court arose, I had summarized briefly the misconduct which constituted the basis of the unfair labor practices found here by the Board.

Mr. Justice Frankfurter had asked the question as to the basis, I believe, of the liability of the International for the particular acts of misconduct and the trial examiner in the Board --

Justice Felix Frankfurter: Not quite that.

Specifically how high among the office of the International, did you trace responsibility because the International might be liable on principles and agents for local people representing the International, is that right?

Mr. Dominick L. Manoli: The misconduct here, Your Honor, the record shows was largely engaged in by people who belong to the local, to the local affiliated with the International.

The International's connection with this rests upon a number of things: One, the fact the International is part of the contract which had expired, that the strike was called here by the International as well as the local in support of their new contract demands.

Secondly, that the International had supported the strike, paid strike benefits, furnished bail to the strikers, furnished bails to the strikers who had engaged in misconduct and there's some showing that they --

Justice Felix Frankfurter: I'm not --

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: The point of my question is blank.

I'm not worrying about the justification for holding the International but for me, at least it is relevant in determining what kind of restriction you place upon the International in the future to note what extent the directing blame or in part at least to high officers of the International?

Mr. Dominick L. Manoli: The record does not show Your Honor that any officer any officer the International participated in the misconduct in this case.

And there is -- there is, as I say, the record show that the misconduct was engaged in by people who were connected with the local and the International's responsibility rests upon the factors that I've indicated although as I say, the record does not show that any official of the International actually participated or that there is any showing that there was any overt instigation.

Justice Felix Frankfurter: Would you think, from your point of view, you think my inquiry is a relevant one?

Mr. Dominick L. Manoli: Yes indeed it is Your Honor because as I -- I will address myself to some of the fears that had been expressed by the other side, and I think the question that you ask underlies those fears.

Now the Board found that these tactics that were engaged in by the petitioners constituted restraining coercion within the meaning of Section 8 (b) (1) (A).

And the Board's order is couched in the language of Section 8 (b) (1) (A) which makes it unfair labor practice for a union or its agents to restrain or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act.

Now the Board's order to begin with complies literally with the command of the statute, namely, that the Board shall enjoin the commission of such unfair labor practices found here to restrain and coercion of employees in the exercise of their rights under -- guaranteed by Section 7 of the statute.

But more important, I think, the nature of the misconduct lends support to the breadth of the -- to the Board's order.

The Court would have noted that the misconduct here was directed not only against the employee and employees personnel against personnel and the immediate employee of Ohio Consolidated but the results are directed particularly and especially against personnel which Ohio Consolidated had recruited from the affiliated enterprises, affiliated (Inaudible) companies for the purpose of conducting its operations during the strike.

In fact it was the advent of these outsiders that precipitated in large part the misconduct in this case.

Justice William O. Douglas: But I gather that the word employer is not restricted here to the respondent or its client.

Mr. Dominick L. Manoli: No sir, it is not.

It is not.

But I think that the implications of this conduct I would try to bring out do support the breadth of the Board's order.

Now these -- these outsiders -- these outsiders were regarded by the petitioners as strikebreakers and it's particularly reprehensible because they had taken over their jobs.

Now the coercive tactics in this case were not due to any unique or special circumstances peculiar to this case.

We think -- we think that they evidence a purpose on the part of petitioners to intimidate anyone whether or not in the immediate employee or the consolidate company to intimidate anyone who's sought to perform services for the company during the strike and thereby impair the effectiveness of their strike.

And undoubtedly, even though the Court did not -- the Board did not specifically address itself to the -- to this problem, this must have been one of the factors which weighed with the Board, which weighed with the Board in concluding that the protection of its order should extent not only to the employees of Ohio Consolidated but also to the employees of other employers.

Justice John M. Harlan: Is this form of order a common one, Mr. Manoli?

Mr. Dominick L. Manoli: Your Honor a -- it's hard for me to give a general answer to that because the Board's orders depend pretty largely, of course, upon the special facts of the case, but there are orders -- there are orders of the Board in various types of cases where it -- the protection of the order extends beyond, beyond the employees of the immediate employer or beyond even the geographical jurisdiction of the particular local or labor organization that maybe involved and perhaps I can answer your question Your Honor best in the words of the Board itself.

Unhappily, unfortunately we didn't cite this case in our brief and I'd like to cite it now.

It's at 110, NLRB, 287, and the union involved there was the International Brotherhood of Teamsters.

Justice Felix Frankfurter: What's the case?

Mr. Dominick L. Manoli: 110 NLRB, 287.

This case came down in 1954 but I think that what the Board said then is as true -- is also true of its orders today.

The Board had been stressing itself to this problem of the breadth of its orders and after citing this Court decision and Express Publishing Company, the Board then generalized its order – (Inaudible) generalized concerning his orders in this language.

The Board said, “Rely upon this test, namely, the Express Publishing test of like or related conduct, relying upon this test, the Board has with judicial approval extended geographically that coverage of cease-and-desist orders to protect the employees of employers other that those a party to the proceeding where the respondent unions had committed similar violations against other and unrelated employers or planned a program or had a planned program to apply the same techniques to the operations of other employers or had committed the unlawful acts during a general organization campaign in which such acts were typical.

However, the Board has also issued such orders in several recent cases in which they have heard to be no evidence that the respondent unions had committed similar unfair labor practices against employers other than those involved in the proceeding.

In most of these cases the unlawful conduct occurs as a result of respondents' adherence to trade rules constitutions and by laws or agreements which conduct by reason did they expected it be continued against other persons unless enjoined.

Justice William O. Douglas: I don't finally like -- like paragraph in this Court order view, is it here in the present case?

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

It says cease and desist from restraining of coercion the employees --

Justice William O. Douglas: The discussion of this -- the problem and the dimensions in which you've just read.

Mr. Dominick L. Manoli: There is no discussion of this in this decision, in the Board's decision, no, sir, Your Honor.

The Board did discuss it.

Justice William O. Douglas: In the instant case.

Mr. Dominick L. Manoli: In the instant case, but I think that what I have reported from its decision in the 110 NLRB pretty much generalizes what the Board's position has been with respect to these orders.

Chief Justice Earl Warren: Mr. Manoli, I -- I understood counsel to say that the hearing examiner refused to find the unions guilty of an unfair labor practice because he found that they've been goaded into this by the -- by the employer or some to that effect.

Now when the Court made its order or when the Board made its order did it find that the company did not go with the unions into this conduct or did they just -- did it just find that on balance they were still -- they were still liable?

Mr. Dominick L. Manoli: No Your Honor the Board rejected the trial examiner's conclusion on the ground.

Chief Justice Earl Warren: It's conclusion.

Yes, I understood.

Mr. Dominick L. Manoli: That's right, on the ground -- on the ground that the union had engaged in a conduct in misconduct which had not been -- which had not been provoked -- provoked by the company's -- by the company's own misconduct and then if the union -- if the company had engaged in such misconduct, then there was relief open to the union, namely, to file a charge with the Board and have that process in the usual fashion.

However, that we have this Mr. Chief Justice that there were number of instances on which the Board of misconduct or a violence, let me say, or threats on which the Board did not rely, the Board excluded those from its consideration because in those particular instances apparently the record show -- the record shows that there had been some provocation on the part of company-employees that led to the particular misconduct in those particular instances.

But the instances, there are dozen instances on which the Board relied, there is no showing there that there was any provocation, any provocation on the part of the company personnel.

Chief Justice Earl Warren: And did the Board so find?

Mr. Dominick L. Manoli: Yes -- well the record clearly shows that Your Honor.

As I say by necessary inference the Board must have found that because the Board specifically did not rely upon a number of instances set forth in the trial examiner's report in which there had been -- there was some evidence of provocation upon the part of the company's employee and personnel.

Now, as I said the misconduct here or the petitioner's evidence as a purpose to intimidate anyone whether or not in the regular employee of Ohio Consolidated was sought to perform services for the company during the strike.

But beyond this, we also think that the evidence is a purpose upon the part of the union to engage in like conduct whenever it caused a strike against any employer.

That makes fine (inaudible)

Chief Justice Earl Warren: Now you are speaking of the national now?

Mr. Dominick L. Manoli: Largely of the -- of the international, that's right.

Chief Justice Earl Warren: Yes.

Mr. Dominick L. Manoli: Now you see the membership of the CWA, it is confined to the employees of the Ohio consolidate company into Portsmouth, Ohio area.

And as a practical matter, the local will have little or no case and to operate outside of that geographical jurisdiction.

And therefore as a practical matter the order of the Board insofar as it applies to the local really applies to it only within this limited geographical area and petitioners have indicated they have no quarrel with an order that so limits it.

But the International, the CWA however as petitioners pointed out, does operate under nationwide scale.

It represents employees all over the country and it deals with numerous employers.

Now it was the CWA which called the strike in this case.

And the misconduct, the misconduct was part of a joint effort upon the part of the CWA and the local in order to ensure the effectiveness of this strike.

Now the record -- there is no suggestion in the record that given a similar situation involving another -- involving another employer, a strike situation involving another employer that the CWA but not engage in similar conduct in order to ensure the effectiveness of a strike there.

Certainly this danger we think is not so remote nor so improbable that the Board cannot of proper be safeguard against it.

Now it is common practice in the telephone industry whenever one company is in difficulty of one kind or another to recruit -- to recruit personnel from affiliated concerns.

Now it was the recruitment of personnel from sister companies that as I've said precipitated in large measure the misconduct in this case.

In this particular case, these outsiders were regarded as the strike breakers, and is there any reason to suppose that the attitude of the CWA in the situ -- or the attitude or the conduct of the CWA the International here in a strike situation involving either Ohio Consolidated or any other employer, is there any reason suppose that its attitude would be any different who respected these outsiders that are brought in to continue the operations of the affected employer.

Now we say --

Chief Justice Earl Warren: Who paid the salaries -- who paid the salaries and wages of these -- these outsiders who came in during the strike?

Mr. Dominick L. Manoli: The record shows Your Honor that the salaries of these people were paid by Ohio Consolidated, but I may also add that I'm quite sure that the unions did not know anything at all but the time they were engaging in this misconduct.

Chief Justice Earl Warren: Well I know but -- but under those circumstances, what difference would it make whether these people came from another telephone company with which these people were affiliated or were friendly or whether they -- they came from an entirely different source, what, so far as the -- the conduct of the international union, what difference does it make?

Mr. Dominick L. Manoli: Well I think Your Honor it evidences a purpose as I've sought to suggest.

It evidences a purpose of this that the union here will seek to intimidate anyone, anyone whether or not an immediate employee of this company who seeks to perform services for a struck employer, and thereby lessen the effectiveness of the strike.

That I think is what the sort of conduct evidences.

Chief Justice Earl Warren: Yes.

But that -- but the point I'm trying to get at, is there anything in the record to indicate that the main reason or -- or the reason that -- that the unions performed these acts on the -- the outsiders was because they came from affiliated companies instead of just being employed at large from other sources?

Mr. Dominick L. Manoli: Your Honor, there are a number of places where the -- the people who were engaged in this misconduct explained it on the ground that these people were outsiders that they were taken over their jobs.

We have set that forth in our -- in our brief.

Chief Justice Earl Warren: Yes.

Well would -- what -- did they -- did the unions make any distinction as to whether they came from other telephone companies or whether they came off the street?

Mr. Dominick L. Manoli: Well Your Honor, of course, the rank and file employees of the company had gone out on strike and the only ones that were left performing services for the company were largely its own supervisors, its own supervisors, and these outside supervisors from affiliated concerns.

Now as I've said as I've said for the most part the misconduct it was directed against these outsiders who were regarded as, may I say, as reprehensible strike breakers taken over the jobs of the -- of the striking employees.

Chief Justice Earl Warren: Yes but the point -- point is, as I understand it, you -- you sustain this order because as against the other employers because you say there were -- there were employees of whether employers were engaging in these so-called strike breaking --

Mr. Dominick L. Manoli: Yes.

Chief Justice Earl Warren: -- business.

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

Chief Justice Earl Warren: Now what I want -- what I want to know is, is there any distinction in law between those people and people who were recruited in some other way or if they -- and if there is, was there any distinction made between the two classes of employments by the union?

Mr. Dominick L. Manoli: The only thing that I'm trying to suggest, Your Honor is, this these evidences -- this evidences and I would believe that this is the rationale of the Board's order that this evidence is a purpose -- a purpose to extent this kind of misconduct to anybody to all employees -- to all employees and that is the basis why the Board has extended this order beyond the needy employers of Ohio Consolidated because it must have felt concluded and say so, it must have concluded that the unions conduct to hear evidence to purpose to intimidate any employees of any employer --

Chief Justice Earl Warren: Alright.

Mr. Dominick L. Manoli: -- who were seeking to perform services during a strike called by this particular union.

Chief Justice Earl Warren: Yes.

Now I don't want -- I don't want to take anymore of your time now.

Give me a couple of minutes where the time I take it from Mr. Manoli but, then you may have a couple of minutes extra too counsel, but -- but my point is -- is this.

Suppose that in this case, these outsiders had no connection of any kind with any telephone companies --

Mr. Dominick L. Manoli: Yes.

Chief Justice Earl Warren: -- and the conduct on both sides was the same and the order is as it is in this case.

Do you think that that -- that set facts would have the same effective purpose of sustaining your injunction as this one where they just happened to come from other companies?

Mr. Dominick L. Manoli: Well I think the case, Your Honor poses might be a more favorable thing for me to be having here than the instant one that -- but --

Chief Justice Earl Warren: You may pick the weakest --

Mr. Dominick L. Manoli: Oh I think the case that you suggest Your Honor is stronger than two cases I must be -- I must say (Voice Overlap)

Chief Justice Earl Warren: You say if they didn't come from other --

Mr. Dominick L. Manoli: But they come from -- from other employers who had no connection whatsoever with this company.

Chief Justice Earl Warren: No, I'm not talking about coming from employers, they were just employed.

They were just employed for the purpose of filling with places of these strikers.

Mr. Dominick L. Manoli: Yes.

Chief Justice Earl Warren: That would not weaken your -- not weaken your position at all?

Mr. Dominick L. Manoli: Well I don't know what the Board would have done with the case of that kind.

Chief Justice Earl Warren: No I'm talking about legal, the legal position.

Mr. Dominick L. Manoli: Yes.

Chief Justice Earl Warren: Would that weaken your legal position?

Mr. Dominick L. Manoli: I think that under the circumstances the Board might draw the inference that this was a kind of strike activity, the kind of picketing activity that would not be confined to this particular strike and to this particular employer.

That the Board might draw the inference to say this was the kind, the kind of activity directed against so-called scabs.

Chief Justice Earl Warren: Do you mean by that then that it would make no difference?

Mr. Dominick L. Manoli: Analytically no.

No.

Chief Justice Earl Warren: Now how about legally?

Mr. Dominick L. Manoli: Legally --

Chief Justice Earl Warren: That's what we're talking about here.

Mr. Dominick L. Manoli: Legally, my answer is that the Board could appropriately find in that situation that the kind of an order that was necessary was one that would protect the employees of any employer.

Chief Justice Earl Warren: Does that mean there's no distinction between the two legally?

Mr. Dominick L. Manoli: I think Your Honor, I'm just --

Chief Justice Earl Warren: But just yes or no, that's all I'm asking.

You can get rid of me in a minute if you just tell me yes or no.

Mr. Dominick L. Manoli: It's not easy to answer that question by yes or no --

Chief Justice Earl Warren: Alright, alright.

(Voice Overlap)

Mr. Dominick L. Manoli: -- because largely the kind of an order that you entered in this case depends upon the particular circumstance of the particular case and that this is why I hesitate to make a categorical yes or no answer.

Justice Felix Frankfurter: Are you saying you are (Inaudible)

Mr. Dominick L. Manoli: Yes sir.

Justice Felix Frankfurter: Are you saying an answer to the inquiry of the Chief Justice that the record shows that in this case the International for appropriate official combined them for that matter controversy is it?

Mr. Dominick L. Manoli: No sir.

Justice Felix Frankfurter: That the International for those capable of binding them, did bind them in this situation, brought in and they were brought in (Inaudible) -- toward in certain countries volunteers from other employers --

Mr. Dominick L. Manoli: The company did that.

Justice Felix Frankfurter: I mean the company and that in this connection you're trying to safeguard by a general order, that kind of repetition.

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

That's right and we think that the evidence here gives a basis for interfering inference that given a strike situation against other employers whether or not Ohio Consolidated that the union here would engage in similar activity against employees who continue to perform services and who would be regarded by the unions in the parlance of the -- of the labor organizations a scabs.

Chief Justice Earl Warren: Well Mr. Manoli, am I quite -- is not taken care of there at all because you made the major argument in your brief --

Mr. Dominick L. Manoli: Yes sir.

Chief Justice Earl Warren: -- on the basis that these people were recruited from affiliated companies.

Now what I want to know is could you make the same argument and would you be here making the same argument based on the same legal premise if those employees had not come for those companies and if they have been recruited in some other manner?

Mr. Dominick L. Manoli: You Honor, I do not know what kind of an order the Board would have entered in the case that you suggest.

That's the --

Chief Justice Earl Warren: Well I didn't asked you what --

Mr. Dominick L. Manoli: That's the --

Chief Justice Earl Warren: It would have ordered.

Mr. Dominick L. Manoli: I understand sir.

That's the best answer I can make.

Chief Justice Earl Warren: That's the legal question should be the same.

Mr. Dominick L. Manoli: Now I do know -- I do know that there are cases of the Board where there's been -- where the union has engaged upon misconduct not upon some outsiders but against the employees who'd refused to go out on strike, who refused to go out on strike and remained at strike, and the strikers have engaged in misconduct against those employees.

In that kind of a case, the Board would enter a broad order like it did here and did reason for it.

The reason for it is because this kind of conduct up in the strike and during a strike on the picket line is not atypical you might say with strike situations.

Very often, you will find unions that will engage in misconduct against people that they regard as scabs and strikebreakers.

Now as I say I don't know the particular situation that Your Honor suggests where the Board would enter order of this kind of an act.

I know that the Board has but it's largely dependent of course upon the particular flavor of that record.

Now --

Chief Justice Earl Warren: Mr. Manoli, I'm concern you're wasting your time talking to me about what the Board would do. I didn't ask you that.

I asked you what your legal position was and if you can't answer that why?

We just forget about it?

Mr. Dominick L. Manoli: The -- I've made the best answer I could.

Chief Justice Earl Warren: Alright, go on.

Mr. Dominick L. Manoli: Now before I close I think my time is coming to -- to an end.

I'd like to address myself to some of the fears that have been expressed by the other side in connection with these orders.

The argument has been made that in order of this kind exposes the International to concept -- contempt sanctions for misconduct in the part of any of its local conduct which the International may have neither authorized nor have been able to prevent.

I believe that these fears are not really well founded.

In the first place -- in the first place, the CWA, the International cannot be held accountable, legal responsible for the acts of its local except upon traditional common law principles of agency.

It must be shown that the CWA has authorized, instigated, participated, or supported such misconduct in the part of its locals and secondly as the cases make quite clear in order to get in the contempt adjudication, there must be this showing, the showing of such responsibility on the part of the -- of the International must be made by clear and convincing proof.

Now in these circumstances, I think that the fears they say which have been expressed by the CWA are not really well founded.

Finally, there's been some concern expressed, expressed that an order of this kind tends to shift the primary responsibility for administering the statute from the Board to the courts and that, the Courts of Appeals would be called upon to make initial determinations of fact and perhaps even on the law and this is an undesirable development.

Now we think that this contingency to some extent is on aboard And in any event, we think that it is minimal.

Justice Felix Frankfurter: You haven't said a word about the potential hazard of such a broad order, the changes of a contempt proceeding.

Mr. Dominick L. Manoli: The potential danger.

Justice Felix Frankfurter: Had it been such a broad order in relation to contempt?

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: That's it.

We have to really fight on this difficulty, isn't it?

Mr. Dominick L. Manoli: The broad order Your Honor, you mean to -- the part of the order it says the employees of any other employer.

Well Your Honor, I have suggested that the CWA will not -- cannot be held accountable for the misconduct of any of its locals with respect to the employees of any other employer except upon a showing on -- on the basis of common law agency principles that it is responsible for that misconduct and those principles require that the CWA as should have required show it.

And in the contempt proceedings a showing by clear and convincing evidence not mere by preponderance but by clear and convincing evidence as the cases say there is showing that it has instigated, participated, or supported such conduct.

Justice Felix Frankfurter: This Court had had from experience with a problem of establishing it or disapproving.

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: That's a kind of connection Mr. Manoli as you well know?

Mr. Dominick L. Manoli: Yes.

Now addressing my -- continuing where this other phase of the argument that this kind of an order tends to shift the primary responsibility from the Board to the courts and contempt proceedings as I've indicated I will end it just a moment You Honor.

As I've indicated, we think that this is unavoidable and in any grant, it's minimal.

These orders can only be enforced to the contempt sanctions and in enforcing them through contempt sanctions, courts must necessarily make findings of fact and they may even be called to make findings of law, but in any event, this is minimal because the exclusive part to institute contempt proceedings is in the Board and the Board before invoking the contempt proceed -- before instituting contempt proceedings does make the initial determination of fact and of law.

Thank you.

Chief Justice Earl Warren: Mr. Goldthwaite.

Argument of J. R. Goldthwaite

Mr. J. R. Goldthwaite: Before I answer Mr. Justice Harlan's question a few minutes ago, I'd like to make it clear that the allegations of the complaint filed by the Board in this case did not allege any factors such as those referred to by Mr. Manoli as -- that is a history of violence on the part of CWA, a planned program of violence on the part of CWA or any internal rule that was being adhered to -- to in the balance which was conducted in this case.

Neither did they allege that the employer is or any other employer except Ohio Consolidated had been interfered with.

To the contrary of the complaint specifically was restricted to interference with supervisory employees of Ohio -- of the employer that is of Ohio Consolidate.

The Labor Board made no finding that anybody other than supervisory employees of Ohio Consolidated and the confidential Secretary Maynard had been interfered with.

There was no mention in the Board's decision of employees or any other employer.

Justice Felix Frankfurter: Are you -- are you before the Board?

Was there a hearing on the examiners before, an oral hearing?

Mr. J. R. Goldthwaite: No sir

Justice Felix Frankfurter: Exceptions were taken by the Board I take it through the test examiner's finding (Voice Overlap)

Mr. J. R. Goldthwaite: By the general counsel.

Yes sir.

Justice Felix Frankfurter: Of general counsel.

Mr. J. R. Goldthwaite: Yes sir.

Justice Felix Frankfurter: And you replied I take it.

Mr. J. R. Goldthwaite: No sir.

I don't think the union responded.

Justice Felix Frankfurter: The union didn't respond.

Mr. J. R. Goldthwaite: I was not in the case at that time but so far as I have been able to find in the trial there was no response.

Justice Felix Frankfurter: There was no response?

Mr. J. R. Goldthwaite: No sir.

Justice Felix Frankfurter: So that nothing was asked by the union, no findings were requested, they stood patterns were on the examiner's report, is that it?

Mr. J. R. Goldthwaite: He ruled for us and dismissed the case sir.

Justice Felix Frankfurter: Well I know but they don't usually assume that they must learn about.

That's not on this very part.

Mr. J. R. Goldthwaite: There was no request in the general counsel's exception as to the trial examiner's report for a broad order.

Justice Felix Frankfurter: No.

But as to the facts which -- which you are now pressing on us and you answered it so far as I'm concerned that the report of the -- that the union just relied on the --

Mr. J. R. Goldthwaite: The trial examiner's decision which was in its favor and which the Board brushed off as being irrelevant, the fact that the company had engaged on the pattern of misconduct which brought on all of the misconduct.

Justice Felix Frankfurter: I don't see -- I don't see how you can say brushed at all but it ends on more on the assumption that -- that there was something to it.

Mr. J. R. Goldthwaite: It brushed off the company's misconduct judge.

Board just says that the findings of the trial examiner as to the company's misconduct are irrelevant and set aside these conclusions.

Justice Felix Frankfurter: But the order is based on the assumption that there was some basis for making it in the evidence, was there not?

Mr. J. R. Goldthwaite: The trial examiner found specific misconduct on the part of the union, but excused it on the basis that the company incited it all in the beginning.

Justice Felix Frankfurter: And the Board then rejected that deduction.

Mr. J. R. Goldthwaite: That's right.

Justice Felix Frankfurter: And entered an order on the basis of the union misconduct?

Mr. J. R. Goldthwaite: On the specific findings of misconduct, yes.

Justice Felix Frankfurter: And that included the interrelationship between not only the employees of this company, but also outsiders, is that right?

Mr. J. R. Goldthwaite: No sir.

There was not a thing said in this in this -- in this whole case until the Board's order came down about the employees or any other employer.

There's not a thing in the record about it until the Board's order came down and the Board in its decision makes no findings of fact which were sustained in that broad order.

Justice Felix Frankfurter: I know they didn't themselves to the broad order, but the fact in the record they made their order drawn out of the facts in the record.

Mr. J. R. Goldthwaite: They made their order based on the findings of the trial examiner that they were about 12 instances of misconduct directed against supervisors, yes sir.

Justice Felix Frankfurter: What -- what is your real grievance abstractly, the questions aside, I -- I don't mean to disregard them because I (Voice Overlap)

Mr. J. R. Goldthwaite: The real grievance is that (Voice Overlap) there was no action --

Justice Felix Frankfurter: What would hurt you if this order stands?

What would hurt you?

Mr. J. R. Goldthwaite: You Honor, I think the -- the thing that would hurt us is the fact that potentially as this Court found in May Department Stores, potentially this is an initial proceeding which maybe instituted in any court, I mean in the Sixth Circuit for on account of acts which occur in any circuit in the United States.

In other words, the Board may now, on the basis of this order, go into the Sixth Circuit and ask the CWA to be adjudicated to be in contempt because of things that happened in California or Maine or Florida or anywhere in the United States insofar as they constitute violations of Section 8 (b) (2) (A).

Justice Felix Frankfurter: Well is it then --

Mr. J. R. Goldthwaite: 8 (b) (1) (A).

Justice Felix Frankfurter: Suppose we said that such suit was instituted in the place where they are alleged to have occurred, would that help you in interest of venue problem for you?

Mr. J. R. Goldthwaite: No sir.

It's a -- it's a substance problem.

I think they have to go in the Sixth Circuit for enforcement of contempt proceedings but I'm saying that they can extend -- extend the jurisdiction of the Sixth Circuit throughout the United States in other unrelated cases which Ohio Consolidated is not interested in it where other local unions other than the one which is here petitioner.

Justice Hugo L. Black: You mean in contempt charges?

Mr. J. R. Goldthwaite: Yes sir.

Justice Hugo L. Black: But they could bring them that in California across the country?

Mr. J. R. Goldthwaite: Well that's what this Court said in May Department Stores as I construed it, Mr. Justice Black.

It said -- the Court said that the trail of contempt proceedings is of sufficient weight to justify anybody except into the breadth of a Board's order.

And based on -- if in this case Mr. Justice Frankfurter the only basis of responsibility of CWA was purely derivative.

The only thing that they were held responsible for was because they were the bargaining agent, they approved the strike, they did not cut off strike benefits when this violence occurred, and they made bonds.

There is no -- furnished the money for bonds.

There was no showing that anybody specifically ratified of approved on behalf of CWA, the misconduct.

Now if those principles of vicarious libel responsibility can be applied, that is negative principles of responsibility, failure to take any action, can be applied to whole CWA libel in this case they certainly could be applied to actions occurring on -- done by any law, done by union anywhere in the United State.

Justice Felix Frankfurter: Well you didn't -- you didn't ask this Court to review the order of the Board on the ground of it, that in that it is grounded in having found the -- the International --

Mr. J. R. Goldthwaite: No sir.

I'm just saying (Voice Overlap) we complained about the thing.

I think that there was a negative vicarious responsibility at least we did not bring that in question, yes sir, but it is a negative one which could be applied positively in contempt proceedings and therein is our grievance in as much as the Board didn't find any history on the part of CWA in adjudicated cases or in the record to commit violence, found no planned program, found no internal rule that was adhering to in the violence.

We submit the only thing that they could have done was adhere to what is the prominent obvious policy on the part of the Board in recent cases to use broad orders in our brief we set up 12 cases where they're precisely the same language or any other employer has been used by the Board.

There are two more which we do not cite, which are very recent Morrison-Knudsen Company versus NLRB CA9 and decided on February 19th, 1960 and NLRB versus Carpenters Union, CA7 decided on March 22nd, 1960.

Justice Hugo L. Black: What is the earliest one that you know of in which they did that?

What --

Mr. J. R. Goldthwaite: The earliest one that which I cite Mr. Chief Justices 1955 case.

There's one that goes back but I'm not sure that it falls in that category in 1953, but predominantly there in recent years, 14 cases where this language has been stricken down by Circuit Court of Appeals relying on this Court's ruling in the Express Publishing Company case and the May Department Stores case.

Justice Potter Stewart: Then there was again the style of two cases you say is not part of or not in the brief.

Mr. J. R. Goldthwaite: They're not in the brief, Mr. Justice Stewart, yes.

Morrison-Knudsen versus NLRB --

Justice Charles E. Whittaker: Morrison-Knudsen?

Mr. J. R. Goldthwaite: K-N-U-D-S-E-N.

Yes, sir.

CA9 dated 2, 1960 45 L.R.R.M 2907.

NLRB versus --

Chief Justice Earl Warren: What pages is that you say?

Mr. J. R. Goldthwaite: 2907.

Chief Justice Earl Warren: 2907

Mr. J. R. Goldthwaite: Yes sir, NLRB versus Carpenters Union, CA7 322, 60 45 L.R.R.M. 3014, 3014.

The courts in those cases have held that -- that where there wasn't -- where there was no showing of facts in the record or on past conduct of a planned program or a contempt for the processes of the Board that the -- that language based on the decisions of this Court is too broad, and we submit they were correct and urge the Court to reverse.

Thank you sir.