SUPERIOR COURT v. YELLOW CAB

Print this transcript Transcript: 

Argument of Richard P. Donaldson

Chief Justice Earl Warren: Number 76, the Superior Court of the State of Washington for King County et al., Petitioners, versus State of Washington on the Relation of Yellow Cab Service, Incorporated.

Mr. Donaldson.

Mr. Richard P. Donaldson: Mr. Chief Justice and may it please the Court.

On September 16, 1958, more than a year ago, taxicab drivers in Local 465 (Inaudible) a strike (Inaudible) Yellow Taxicab System.

And as part of the strike (Inaudible) to picket (Inaudible) control the premises of the Seattle Yellow Cab garage which is located at 902 Madison Street in the City of Seattle.

This case raises the question of whether the National Labor Relations Board has exclusive jurisdiction to deal with the strike and picketing which has taken place.

Incidentally, the strike and picketing (Inaudible)

And this case is here by a petition for certiorari.

The set of facts in the case are these.

Seattle Yellow Cab System is composed of 119 corporations.

118 corporations are engaged into the business of operating taxicabs.

Usually, one corporation operates one cab.

The main corporation which is the respondent here, the Yellow Cab Service Company is engaged in the business (Inaudible) the activities of the Yellow Cab Corporation.

It supplies the dispatching, the public relations and advertising, the supervisory, and the bookkeeping services for the other corporations.

And, together, these corporations operate the Yellow Cab Company or the Yellow Cab System in the City of Seattle.

There are approximately 120 Yellow Cabs operating on the streets of Seattle which are under the auspices of -- operate under the auspices of this system.

At the time of the strike, this system employed approximately 160 employees.

About 10 of these employees were employed as dispatchers by the service corporation and the remaining 150 employees were employed to drive the cabs, and all of these employees were members of taxicab drivers, Local 465.

Back in 1956, the Union and the -- the group of corporations began the collective bargaining contract which provided (Inaudible) working conditions for these employees.

This contract ran for two years in 1958 (Inaudible) been set down in the summer or early fall of 1958 and it (Inaudible) new contract but these negotiations were not successful and they (Inaudible) September 16, 1958, the Union called a strike against the Yellow Cab System and placed pickets at the Yellow Cab garage.

As soon as the strike was called, the Federal Mediation and Conciliation Service stepped into the picture and summoned the parties to a -- to a meeting at the offices of the service in Seattle, but this meeting was not successful and the strike continued.

And then a few days later, on September 23rd, 1958, the service corporation filed a complaint in the Superior Court for King County, asking that -- that the strike and picketing be enjoined.

The theory of this complaint was that the service corporation was willing to sign a contract with the Union covering dispatchers only, but it was alleged that the Union refused to sign this contract (Inaudible) all of the corporations participated in the (Inaudible)

That was as soon as the corporation (Inaudible) willingness to enter into this contract, there's no further dispute.

(Inaudible) a trial was held in early October for (Inaudible) Superior Court of King County, and then, a trial was given to introduce evidence showing (Inaudible)

They introduced other evidence showing that the cab company has agreements with the interstate railroads which operate into Seattle by the terms of which agreements, Yellow Cabs are used to transfer passengers from the train depot to the steamship dock, that is passengers who are travelling on a so-called “through ticket”.

We also introduced evidence showing that the cab company had agreements with the airports, with the railroad stations, and with the steamship dock, by which it had the exclusive right to pick up passengers who were arriving at those terminals and that the cab company earned substantial amounts of money from the exercise of these franchise or concession agreements.

At the conclusion of the trial, the trial court ruled that the service corporation's complaint should be dismissed.

The trial court held that it had no jurisdiction and which the employer was -- the cab system is engaged in (Inaudible) commerce and it had a complaint against the (Inaudible) As soon as the trial court dismissed the case for lack of jurisdiction, the service corporation filed an original mandamus proceeding in the Supreme Court of Washington asking the Supreme Court to compel the trial court to take jurisdiction.

And after (Inaudible) submitted, the trial court granted that writ.

The trial -- rather, the Supreme Court granted that writ directed to the trial court.

The Supreme Court of Washington held that the Seattle Yellow Cab System was not subject to the jurisdiction of the Labor Board and that the Superior Courts of the State of Washington had jurisdiction to adjudicate the lawfulness of the strike and picketing.

And then, subsequently, a petition for certiorari was filed here which was granted by this Court in June 1959.

Now, there is no question but that the National Labor Relations Board would take jurisdiction over the Seattle Yellow Cab System.

The Board has announced that it will assert its jurisdiction over any taxicab company which (Inaudible) of more than $500,000.

And the evidence indicates that this cab company has an annual gross business of almost $1.5 million or three times what the Board would require.

Now, this proposition was advanced in the court below.

The court was told that the Labor Board was taking jurisdiction over taxicab companies such as this company, citations -- proper citations were made, and so forth.

But the court below said that this was irrelevant.

The court below stated the test to be whether the Seattle Yellow Cab System was “an integral part of interstate commerce”.

And then, they looked at the record and they noticed that the Seattle Yellow Cabs do not operate across state lines anywhere, and then they concluded that, in their opinion, the Seattle Yellow Cab System was not an integral part of commerce.

And therefore, the Board had no jurisdiction regardless of what position the Board is taking.

This is the conclusion of the court below which we believe to be erroneous.

First of all, we believe that there is evidence in the record, ample evidence, indicating that the cab company is actually engaged in commerce.

And now, I'll discuss that in just a moment, but secondly and more importantly, this -- the test applied by the court below was an erroneous test because the National Labor Relations Board has jurisdiction not only of companies which are actually engaged in commerce but of companies whose activities will affect commerce.

And the (Inaudible) commerce defined the statute as follows.

(Inaudible)

Justice Charles E. Whittaker: (Inaudible)

Mr. Richard P. Donaldson: It's probably a matter of terms, Your Honor.

There are 119 separate legal corporations which together operate, in our opinion, one company.

The Seattle Yellow Cab System (Inaudible)

Justice Charles E. Whittaker: (Inaudible)

Mr. Richard P. Donaldson: No, it supplies the dispatching facilities which are necessary to send the cabs on various calls and so forth, then it supplies bookkeeping facilities where the money comes in once a week and the service corporation has bookkeepers who allocate that income among the various corporations.

The service corporation also supplies advertising and public relations services.

And it has a -- the service corporation employs a man known as the personnel manager and he hires all the drivers for -- for all of the cabs, he disciplines them, he has authority to assign them to shifts and so forth.

Justice Charles E. Whittaker: And he hires them for the service company?

Mr. Richard P. Donaldson: He hires them for the individual corporations.

Justice Charles E. Whittaker: (Inaudible)

Mr. Richard P. Donaldson: Yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. Richard P. Donaldson: (Inaudible) all the corporations that we had in 1956 -- based in 1956.

I can (Inaudible)

Justice William J. Brennan: (Inaudible)

Mr. Richard P. Donaldson: (Inaudible) keeping in mind the Labor Board cases (Inaudible) has held in a similar fashion.

(Inaudible) company even though an examination may be for two, three, four or more separate corporations.

Justice Charles E. Whittaker: (Inaudible)

Mr. Richard P. Donaldson: I'll explain that, Your Honor.

The company's contracts in these franchises, which I have mentioned, all held the name of the service corporation.

That's one of the functions of the service corporation.

All (Inaudible) which all of the cabs (Inaudible) held the name of the service corporation (Inaudible) and the service corporation (Inaudible)

Chief Justice Earl Warren: (Inaudible) opinion, can you dispose of this one (Inaudible)

Mr. Richard P. Donaldson: Yes, there is, yes.

In fact, that's why the trial lasted for three days because --

Chief Justice Earl Warren: But -- but your Supreme Court held that it was one.

Mr. Richard P. Donaldson: They did not -- they adopt that question, Your Honor, yes.

Chief Justice Earl Warren: Oh, I thought you said they did.

Mr. Richard P. Donaldson: No, I said the trial court.

Chief Justice Earl Warren: The trial court did, yes.

Mr. Richard P. Donaldson: The Supreme Court said, assuming that it is one company, it still doesn't affect the commerce.

Chief Justice Earl Warren: Yes.

Mr. Richard P. Donaldson: I might add to that, that that, in our opinion, would also be a question for the Labor Board because that would be a -- a step in deciding whether or not the Labor Board has jurisdiction.

But even though it was for the Labor Board, the trial court went ahead and made a ruling that it was one -- one enterprise or one company.

If you went to Seattle and took the Yellow Cab, you couldn't tell one from the other, they just have a number on them, but that cab belongs to one individual corporation.

I was explaining to the Court about the transfer arrangements with the interstate railroads.

They work in this fashion.

If you were taking a trip from Chicago to, say, Victoria, British Columbia, you could buy a ticket in Chicago, take a train to Seattle.

And upon arrival at Seattle, you could walk out of the depot, there'd be a yellow cab there at a certain spot.

You get into that cab and you take part of your ticket and give it to the cab driver.

This is called a transfer coupon.

But, the cab driver would then drive you to the Canadian Pacific Steamship Dock where you could get on a boat and go to Victoria, British Columbia, all on the same ticket.

And, these transfer arrangements, we believe, are similar to the transfer arrangements which exist in the City of Chicago and which -- which for some time anyway, had been handled by the Parmelee Company where you transfer from one railroad station to another.

This Court held, in the case of Chicago versus Atchison, Topeka, and Santa Fe Railroad in Volume 357 U.S., that those services of the Parmelee Company were an integral part of interstate commerce, constituted interstate commerce.

Justice Charles E. Whittaker: Was that denied if you --

Mr. Richard P. Donaldson: No, I was going to add, the court below admitted that this was interstate commerce.

Justice Charles E. Whittaker: (Inaudible)

Mr. Richard P. Donaldson: I don't know what he'll do now, but he -- the court below did hold that this was interstate commerce but then they dismissed it as being de minimis.

Justice Charles E. Whittaker: (Inaudible)

Mr. Richard P. Donaldson: (Inaudible) in terms of the number of trips that were made.

We can also see that it's not (Inaudible) makes 1400 or 1500 trips in interstate commerce but this do not (Inaudible)

Further, the -- this Court has held and other courts held that the (Inaudible) jurisdiction is not (Inaudible) and of course my opponent makes a -- quite an argument that this is only to a certain percentage of the total business.

That argument has been presented and rejected before.

Furthermore, under principles announced in the (Inaudible) case which is cited in the brief of the National Labor Relations Board (Inaudible)

This held that the Board was (Inaudible) jurisdiction.

Now, additionally, we have the -- the matter of these franchise or concession agreements which exist with the airports, the railroads and the steamship dock.

These agreements provide that the cab company will maintain adequate service at the terminals to service incoming passengers.

And in exchange for this promise on the part of the cab company, the terminals give the Yellow Cab Company an exclusive monopoly of these services.

(Inaudible)

Unknown Speaker: (Inaudible)

Mr. Richard P. Donaldson: Yes, Your Honor (Inaudible) to service incoming passengers.

The cab companies want this service to take care of their passengers.

So then, they grant to -- to the cab company the exclusive right to occupy a certain space next to the station.

Then, for its part, the cab company promises, as set -- as it's set out in paragraph 4.

The cab company agrees to furnish and keep an attendance at said station during the hours when trains arrive, a sufficient number of taxicabs in charge of sober and courteous drivers to serve incoming passengers and agrees that all passengers shall be transported to and from said station at reasonable rates not to exceed those fixed -- by ordinance in the City of Seattle.

Then, the last paragraph relates to the authority which the superintendent of the station has over the individual cabdrivers.

While they're working there (Inaudible) of the railroad superintendent because (Inaudible) and the Yellow Cab Company realizes more than (Inaudible) franchise agreements.

We believe the services constitute an integral part of interstate commerce.

(Inaudible) this is part of interstate commerce.

But even if this is (Inaudible) even if this is not a part of commerce, it constitutes commerce in itself.

Nevertheless (Inaudible) would certainly affect our (Inaudible)

These are the services which passengers (Inaudible)

There were hundred thousand of passengers.

(Inaudible) interstate passengers.

I believe my point (Inaudible) this proposition because I have noticed that in (Inaudible) and also in the petition -- our petition to (Inaudible) petition for certiorari, my opponent says that (Inaudible) while this might affect commerce (Inaudible) there was any actual interruption of commerce.

Therefore, the Board would have no jurisdiction.

I'm talking now about a comment made at the bottom of page 57 and at the top of page 58 of respondent's brief, particularly this (Inaudible) referring to 1956 when these cabs were sold to the individual corporations, a strike might well have happened in that (Inaudible)

The owners have continued to drive their cabs.

Now, by owners, he's referring to the president of these various corporations who -- who usually drive their cab one shift and then hire somebody to drive at the other shift.

Now, this, we believe, is a totally inconsistent position on the part of the respondent because, in the trial court, they were alleging that the strike was causing irreparable damage.

In fact, in the court below, they filed an affidavit, that is, the president of the corporation filed an affidavit in which he swore that if the picketing continued, we would drive the service corporation and all the other corporations completely out of business, thereby depriving the general public of the services of these cabs.

And, now, in this Court, he implies that the strike has been totally ineffective and hasn't hurt their business at all.

I say that this is a totally inconsistent position on the part of the respondent.

But secondly and more important with respect to the law, and the cases are cited in our brief, the law is clear that the Board does not have to show an actual effect upon commerce before asserting its jurisdiction.

Any other proposition would make the -- would make it impossible for the Board to administer the Act because an employer could hire strikebreakers or could arrange for other services to take the place of his services and then claim that the strike had no effect upon commerce.

Justice John M. Harlan: (Inaudible)

Mr. Richard P. Donaldson: Yes, it is, Your Honor.

Justice John M. Harlan: (Inaudible)

Mr. Richard P. Donaldson: Yes, Your Honor.

It's been going on since September 16, 1958.

Chief Justice Earl Warren: Mr. Cox.

Argument of Kenneth A. Cox

Mr. Kenneth A. Cox: Mr. Chief Justice, may it please the Court.

I apologize for (Inaudible) I've arrived -- acquired a new cold which seems to have settled in the most inconvenient (Inaudible) substantially, correctly and completely, there are just a few additional points I would like to make.

He indicated that the cabs here are operated by 118 separate companies.

This is the case and, in most instances, these corporations operating these which were set up largely for licensing purposes are owned by a single individual.

In a very few instances, one man may own two or three taxicabs.

By and large however, these are separately held by -- by individuals who were formerly members of petitioning union who acquired taxicabs two to three years ago now and became independent self-employed businessmen on their own.

These men, through their corporations, own Yellow Cab Service, which is the only party here before the Court.

It is the respondent-- the true respondent in interest and provides, as Mr. Donaldson has indicated, purely local dispatching and bookkeeping, and other services for the corporations which own it.

Stock is held in respondent by the partners who formerly owned this cab business but who liquidated it three years ago.

But their ownership is exercised largely for maintenance of their security and the record makes clear that in the day to day operations of this taxicab business or 118 taxicab businesses in fact, the decisions made are those of the owners of the 118 corporations.

Now, Mr. Donaldson was in error in suggesting that the service company allocates income.

This is not the case.

We (Inaudible) Although the trial court held that the 118 corporations (Inaudible) operating the business.

Justice Felix Frankfurter: May I ask you, Mr. (Inaudible) had it together to use this service or the -- the service (Inaudible) What -- what's the relevance to our problem?

Mr. Kenneth A. Cox: I don't think the relevance is substantial, Mr. Justice Frankfurter.

I think it is simply that it has some bearing on the -- on the argument as to whether this is de minimis because we reduce it to terms of what this means actually for each one of these individual cab owners, but we -- it is our position that, regarded in either way, the N.L.R.B. would not have jurisdiction.

Justice Felix Frankfurter: From the -- the -- they could be tested as what the service company does and not what the customer's (Inaudible)

Mr. Kenneth A. Cox: That was our position before the trial court.

The trial court, however, has -- has indicated based its ruling in part upon the feeling that they were to be treated together.

Now, we would like to make before this Court very -- two points very briefly and the others at somewhat greater length.

The two brief ones are that it is as important as ever to maintain a proper balance between the elements of our federal system and, secondly, that it is clear in the law and in the decisions of this Court that the Congress has not entrusted to Congress, in the National Labor Relations Act, regulation of all aspects of the labor problem, although it certainly, we concede has exercised its constitutional authority to its broadest limits in terms of the various phrases it chooses to use in reaching commerce.

The Commerce Clause of course is one of the principal sources of the power of the federal government.

It serves the very useful function of holding the Nation's (Inaudible) desirable and applaud all of the activities of the federal government to that end.

But like many other good ends, uniformity which is one of the goals thus sought, can be carried too far and can reach a point where we feel it poses an actual threat to the (Inaudible) of this relationship.

(Inaudible) maybe this was a power, is one of the (Inaudible) as to the states.

But we believe this case presents a situation at the other extreme, a local business, quite within the competence of the local courts and having no impact upon the national interest to justify a federal intervention.

As for our second point, we have cited at pages 31 and 33 of our brief a number of decisions of this Court which make it crystal clear that Congress has not given to the National Labor Relations Board exclusive jurisdiction in the labor field.

This necessarily means, as these cases also state that much authority is left to the states, although this has to be spelled out on a case by case basis.

It is our contention that at least three things, however are clear.

First, that the states, by virtue of the Constitution, have exclusive power over labor disputes not affecting commerce in the constitutional sense.

Secondly, that by virtue of the act of Congress itself, it has chosen to make only certain labor management conduct subject to the control of the National Labor Relations Board and to this other (Inaudible) nor protected by the federal Act.

And thirdly, that by virtue of the management (Inaudible) should materially its interest, otherwise (Inaudible) exercised in the Constitution.

(Inaudible) made perfectly clear not only in its grant of power for the Board in Section 10 (a) to prevent -- defined unfair labor practices.

But in its preliminary declarations and findings that what it is concerned with are Labor Relations labor disputes and practices affecting commerce and these are the only matters entrusted to the Board.

This is the clear import of the statutory language and it is also the holding of this course in the Santa Cruz case, the Fainblatt case, the Polish Alliance case, and a number of others.

Now, petitioners speak even here, and in their brief of industries affecting commerce and of business (Inaudible)

That has not happened here.

As we have suggested, none of respondent's activities are in commerce.

But the court -- the trial court felt that it should consider the activities of all these corporations to look at the basis.

(Inaudible)

Justice Felix Frankfurter: (Inaudible)

Mr. Kenneth A. Cox: I'm sorry --

Justice Felix Frankfurter: Could been filed for lesser amount --

Mr. Kenneth A. Cox: (Inaudible)

Justice Felix Frankfurter: (Inaudible)

Mr. Kenneth A. Cox: (Inaudible)

Justice Felix Frankfurter: (Inaudible)

Mr. Kenneth A. Cox: (Inaudible)

Justice Felix Frankfurter: That as alone don't --

Mr. Kenneth A. Cox: No.

You view this in terms of the national interest.

What is Congress' interest in interstate commerce?

We believe that Congress' interest in interstate commerce reaches out to those matters of substance with which Congress should be concerned but that there is not involved in this limited segment of the business -- of a group of local taxicab companies in Seattle, Washington, that essential thing which Congress must take hold of and must handle for the interest of the people.

Justice Felix Frankfurter: Well, now do the statute -- a fellow who doesn't know when to-- what taxicab he can get in Pennsylvania and New York Central station.

(Inaudible) New York, you wouldn't exclude him because you're a part of the taxicab company itself from the service, wouldn't you?

Mr. Kenneth A. Cox: The dispatcher is employed by Yellow Cab Service.

They employ 10 --

Justice Felix Frankfurter: Well, suppose this -- suppose that was taken over by an independent agency.

Mr. Kenneth A. Cox: Well, this is -- this is a local operation.

That is in other words, they -- they maintain a -- a radio system but it -- it emits a signal which is only obtained locally, and I don't think (Inaudible)

Justice Felix Frankfurter: (Inaudible)

Mr. Kenneth A. Cox: We concede if the strike had in fact (Inaudible) and that therefore, (Inaudible)

Although the strike is called, no (Inaudible) where interstate passengers are to be found.

And, that the strike was in its 24th day when the record was closed in the trial court and, yet, there is not a scintilla of evidence in this record that any single passenger was inconvenienced because they overlooked the fact which we have tried to make clear, that these are driver-owned cabs, these men are struck.

They are inconvenienced but they are making an effort, a successful effort, we say and certainly, the record does not contradict this, to maintain the -- the service that they feel they owe the public.

There is no evidence that the -- that service to interstate passengers has been in any way burdened or obstructed.

And although this recourse is obviously outside the record, it could not be established to this day, nearly a year and a half later.

Justice Felix Frankfurter: But if there were such inconvenience, you think the --

Mr. Kenneth A. Cox: Yes.

Justice Felix Frankfurter: -- that the case would be different?

Mr. Kenneth A. Cox: Yes, if --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Kenneth A. Cox: If -- if they were established on this record that interstate travelers had been inconvenienced.

Now, we make the point that the cases which petitioner cite here and they are good cases the Bradford Dyeing case holding that the Board may anticipate to prevent burdens on commerce, that those do not apply where by the acts of fortune or accidence, the strike -- a work stoppage has actually occurred.

Here (Inaudible)

Now, and this is true both as to what we regard as the purely local adjunctive functions of the companies, that is the -- the taking of people to the railroad stations or to the airport and from these terminals and no interruption is shown as to this through service, the linkage service, which these companies provide.

Justice Felix Frankfurter: But doesn't the various of places, the various attractive (Inaudible) commerce imply potentiality and not actual results?

Mr. Kenneth A. Cox: The language of the statute itself is that their concern was something that has led -- had led to a labor dispute.

Now, if you're to measure the impact of a labor dispute in existence then, we contend that you are dealing with actual existing demonstrable facts and that you are not concerned with a situation.

There may be, for instance, a claim that an employer has wrongfully discharged an employee for Union activity and no strike has yet taken place.

If the Court can foresee reasonably that this might lead to a strike and that that strike would clearly burden commerce, then it is perfectly entitled to sustain the jurisdiction of the Board.

But whereas here, there was an opportunity for -- to present it, to prove that commerce had been burdened and no such proof is adduced, we contend that there is a total failure to establish an essential ingredient of the claim of exclusive jurisdiction.

Justice Felix Frankfurter: Having read or tending to leave --

Mr. Kenneth A. Cox: Yes, but the --

Justice Felix Frankfurter: Tending to leave --

Mr. Kenneth A. Cox: -- the tending to leave would speak --

Justice Felix Frankfurter: Is the potentiality.

Mr. Kenneth A. Cox: That is the potentiality that has not yet resulted in a work stoppage because the work stoppage is the ultimate thing that can happen.

Beyond that, there is nothing else that could have impact.

Justice Felix Frankfurter: But I suggest that tending to leave mean the kind of proof that you suggest is necessary, namely that in fact, and I want a fact here, I couldn't get one.

Mr. Kenneth A. Cox: I would think that if the strike has been in effect, Your Honor and if the statute is to have the meaning, the -- the -- that the word “state,” it should be proved that it has in fact impaired the points at which it has claimed these local activities have a bearing on interstate commerce.

Chief Justice Earl Warren: Well, the plan to obstruct -- and for 23 days, they -- they operated from stockpile that -- that they has and every order is filled, there's been no interference with interstate commerce as a reality up to that time.

Would you -- would say that it's not within the statute?

Mr. Kenneth A. Cox: No, you could look ahead there, Your Honor, because that is an entirely different thing.

You can't stockpile cab rides.

As in other words, either the cab is there when -- when the -- the travelers require service or it is not.

Chief Justice Earl Warren: Nor can you say the effect of a -- of a strike, 23 days after it starts, it might -- the end of a certain period, that situation might change.

Mr. Kenneth A. Cox: I think the impact of a strike of this kind is almost always the greatest at the outset.

Chief Justice Earl Warren: Well, it might -- it might be but it does have to always be that way?

Mr. Kenneth A. Cox: I think it would be in this case, Your Honor, and we submit that if counsel for the petitioners felt that there had been any actual burdening on commerce, that it was incumbent upon them to go into this matter and to make proof.

Now, they might have made proof that as it suggested for instance in the amicus brief of the Board, they might have proved that this was -- that there was no impairment of this service because substitute facilities were called into play.

But we suggest in our brief that this again is speculation that if that is why no one was inconvenienced, it should have been proved.

Our -- our theory and what we would have proved if this issue was raised was that those people were being serviced by Yellow Cabs, driven by their owners, driven perhaps somewhat longer hours than they had done formerly, but still being driven so that the public was served.

Now, as to this matter of the admitted interstate commerce, the $1400, the Supreme Court of Washington regarded this as being in interstate commerce but held it de minimis.

As -- as we suggest in the brief, this Court has recognized in the Fainblatt case, that de minimis should be considered in determining the jurisdiction of the Board and we feel that it should be applied here because, otherwise, we find it hard to imagine a case of -- of any significance even locally, which would not involve more money than is involved here, and we have cited the Freiburg case in this connection.

We believe the further ground for treating this amount as insufficient to invoke the Board's jurisdiction is contained in the very press release of the Board upon which petitioners rely so heavily, because this states that as to instrumentalities, links, and channels of interstate commerce, the Board will take jurisdiction only if $50,000 a year of gross revenues are realized.

Obviously of course, the sum here in question falls far below that and therefore, under 14 (c) as added by the 1959 amendments, the states will be permitted to take jurisdiction of that much interstate commerce because the Board has stated it will not do so.

Justice Charles E. Whittaker: (Inaudible)

Mr. Kenneth A. Cox: The language of the -- the language was that they would take jurisdiction with respect to instrumentalities, links, and channels of interstate commerce if $50,000 is derived from the interstate or linkage part of the enterprise.

And it is our contention of course that it is not proved here.

Justice Charles E. Whittaker: (Inaudible)

Mr. Kenneth A. Cox: That is the alternative ground on which we argue that -- that the $50,000 figure, we argue only as indicating that even the Board regards $1400 as de minimis.

And that under the 1959 amendments, it would be willing to concede this to the state courts if this were the only factor.

Now, when we come to the other, we concede that we have a gross volume of business in excess of the $500,000 specified by the Board.

But quite obviously, the Board, by announcing its jurisdictional standards, cannot extend its authority one which beyond that which Congress has given it.

And Congress has said that it shall have jurisdiction to prevent unfair labor practices affecting commerce.

And we contend that this strike which was -- was in effect, for a substantial period prior to the decision of the trial court, was not shown to have affected commerce, an actual work stoppage which was effective, as the record shows, to prevent the dispatchers of respondent and the employed drivers of the 118 companies from going to work.

Justice Charles E. Whittaker: What you mean, as I understand it, does not affect commerce from (Inaudible)

Mr. Kenneth A. Cox: We say that there is no evidence it is -- it has affected it at all, the commerce that they are entitled to reach here.

That is if -- if we get beyond the de minimis point --

Mr. Kenneth A. Cox: If --

Justice Charles E. Whittaker: (Inaudible)

Mr. Kenneth A. Cox: -- if we're beyond that, then we say that all we're doing, under the case of United States against Yellow Cab Company, which is relied on by the State Supreme Court and which is good authority for this proposition, that all of this other business is a local business.

At most, it could be said to affect commerce.

We concede therefore, that a strike could affect commerce if it were shown that it had been so effective that the service to interstate travelers was impaired.

And we concede that this might well have been the case prior to 1956 when this company was liquidated.

Justice Charles E. Whittaker: (Inaudible)

Mr. Kenneth A. Cox: It has to burden or obstruct it.

That's the way “affecting” is defined.

And we -- we contend that “to burden or to obstruct” must mean that you produce some observable results that this does not mean -- if it -- it does not mean this, then in every case, you are asked simply to speculate what -- on assumed sets of circumstances, if something happened, what might happen to commerce.

Now, that is appropriate where the preventive jurisdiction of the Board is sought.

It might have been appropriate at one stage here.

It is not appropriate however, when there has been sufficient time to test the actual impact of this unfair labor practice upon commerce.

Chief Justice Earl Warren: Are you going to discuss the effect of those contracts that Mr. Donaldson spoke of concerning the -- the keeping their -- their cabs there at the railroad companies and the superintendent of the station having jurisdiction over them and so forth for the accommodation of interstate passengers?

Mr. Kenneth A. Cox: It is our position, Your Honor that this simply indicates that this volume of business would be brought within the ambit of that which might be regarded as possibly affecting commerce.

It makes the cab companies a local adjunct to interstate commerce.

It does not make it, as for instance, I'm sure that in the Yellow Cab Company case, where the court was deciding issues raised under the antitrust laws which has narrower statutory language, what they held was that a conspiracy to monopolize this linkage function between the terminals was a conspiracy in interstate commerce.

But that a charge of a conspiracy to monopolize local service even though many of those companies no doubt perhaps had such arrangements because I'm sure that many of the stations in -- in Chicago have seen the wisdom of making such arrangements as they have in other areas.

That all this does is to indicate more clearly perhaps that this cab company is performing a service to interstate travel which, if the record shows to have been impaired, will justify the intervention of the National Board.

Chief Justice Earl Warren: Well then, as I understand you, if -- if some of those cabs had stopped and were not available for those railroad stations, that -- that it -- it would affect commerce and --

Mr. Kenneth A. Cox: Yes, it would have --

Chief Justice Earl Warren: -- it would have jurisdiction.

The Board would have jurisdiction.

Mr. Kenneth A. Cox: Yes.

Chief Justice Earl Warren: But the fact that none of them did stop running under this particular kind of picketing that they engaged in, that the Board has no jurisdiction.

Mr. Kenneth A. Cox: We contend that, as between this (Inaudible) and this respondent and, because they seem to be brought here by virtue of circumstances, the 118 separate cab companies.

As between these contestants, this labor dispute, this unfair labor practice which we charge and claim to be outside the purview of the statute, is not one which affects commerce.

That, if it had affected commerce, if this language is to be given any practical effect, that where you have this concurrence of an actual work stoppage for a substantial period of time, the absence of the quite common preliminary injunction which prevents you from testing the impact of this stoppage, that where you have this, that unless words are to have no meaning, the court must look at what actually happened to determine whether this is a labor dispute which has had an impact upon commerce, which has affected commerce which has burdened or obstructed.

And we can find in this record no evidence whatsoever that this 24-day-old strike had in any way burdened or obstructed commerce.

Justice Felix Frankfurter: Mr. Cox, may I put this to you.

Argument affecting commerce is in its very nature an argumentative criterion.

What you're arguing, if I follow you, is that, as against argumentative determination, whether this has or has not affected commerce, there has been a test of that and, by proof, it is demonstrated that it has not affected commerce.

That the -- that --

Mr. Kenneth A. Cox: Yes, Your Honor.

In thought --

Justice Felix Frankfurter: May I put this to you.

As I understand you, the record deals with only 24 days.

Mr. Kenneth A. Cox: Yes, Your Honor.

Justice Felix Frankfurter: The strike has lasted how many days?

Mr. Kenneth A. Cox: Nearly a year and a half, Your Honor.

Justice Felix Frankfurter: Nearly a year and a half.

I could understand and -- and it's an interesting argument to me, I could follow it more readily.

I follow it -- I follow it I think but I could respond to it more sympathetically if we had a record in which an undertaking was made to prove by substantial or impressive evidence that, in fact, an argumentative conclusion to the certain interference for a certain conduct would affect commerce.

In fact, appealing from speculation to experience, experience demonstrates that the argument is wrong.

But this record -- on this record, we are restricted to 24 days, isn't that right?

Mr. Kenneth A. Cox: That is correct, Your Honor, although, as I stated a while ago, I've cited the record --

Justice Felix Frankfurter: Yes, I know.

Mr. Kenneth A. Cox: We represent that --

Justice Felix Frankfurter: I understand.

Mr. Kenneth A. Cox: -- it would be even more difficult today within --

Justice Felix Frankfurter: Yes, but I understand that.

But the record on which one must act in applying or construing or -- or getting meaning out of what affects commerce which to me does express the potentiality.

We've got only 24 days.

That in 24 days, there's nothing in the record affirmatively to show that any interstate traveler, any interstate passenger has been adversely affected.

That is your argument, isn't it?

Mr. Kenneth A. Cox: Yes, Your Honor.

Now, we submit that, although 24 days is not perhaps as satisfactory as three months, that it provided ample time --

Justice Felix Frankfurter: A year and a half.

Mr. Kenneth A. Cox: Or a year and a half.

And we would be happy to try that issue today but we submit that there was time in the nature of this kind of an operation where the impact of the strike is immediate.

There is not any backlog or raw materials on which people who continue to work can work.

There are only cabs which can be driven and these cabs were driven and they were driven to the extent necessary to provide the service.

We could have proved this at the time of trial if it had been required.

Justice Felix Frankfurter: But, I can't just -- my imagination is an equal to the effect of this -- with this (Inaudible) illegal to giving some reasons why they might not have been some interruption.

The man in which the strike -- when the strike was conducted, the response of the owners to the strike, etcetera, etcetera.

So that the mere fact that there was no inconvenience or dislocation for the passenger doesn't prove that there is -- that this is outside of the criterion or scope of what potentially may have affected commerce.

Mr. Kenneth A. Cox: Well, Mr. Justice Frankfurter, the record makes clear that the effect of the picketing was that the respondent's 10 dispatchers did not come to work and that the employed drivers of the 118 corporations did not come to work.

They didn't come to work the 1st day or the 24th day or any day in between.

Despite that fact, the record also shows that the owners took over the dispatching function, that the owners drove their cabs.

This would have been impossible in a -- a system which only employ drivers.

But, here, it was not impossible.

They -- they maintained the service.

They maintained the service at the same level that existed prior to the strike.

Justice Felix Frankfurter: Well then, maybe (Inaudible) that they put up -- put up with difficulties or waiting or whatnot.

What I'm suggesting is that if the argument invites a lot of speculation of what did happen in 24 days, beyond the naked fact that there was no complaint about to be the terms.

Mr. Kenneth A. Cox: We don't invite any speculation, Your Honor.

We just point to the fact that there were -- the petitioners who could have proved these things, who could have raised these issues did not do so.

That if they had felt that if that were the explanation, they could have offered it just as they might have sought to prove that the reason that interstate travelers were not inconvenienced was that other cab companies were taking over the service and there is authority for the proposition that that would not affect the jurisdiction of the Board.

Justice Felix Frankfurter: But that doesn't take care of that local situation, whatever it may have been in (Inaudible) maybe a special order of the magistrate, resourcefulness or whatnot.

That doesn't take care of what I might call the argument or the consideration before we (Inaudible) does it?

That this may be a local instance of a national (Inaudible)

Mr. Kenneth A. Cox: Well, counsel suggested that by -- by posing the possibility of sympathy strikes.

This is simply sheer speculation because there is no community of ownership.

Justice Felix Frankfurter: Not sympathy but (Inaudible) happening in Detroit, Kalamazoo etcetera, etcetera.

Mr. Kenneth A. Cox: But I would think, Your Honor, that the mere fact that you might have a -- situations each local and each in itself, not affecting commerce.

Justice Felix Frankfurter: Local in the limited sense and to indicate it, namely not that it had no relation to the stream or whatever figure of speech you choose to use, inevitably (Inaudible) that it had a -- your argument is that is to attenuate it.

It's too -- too local, no part of the -- the interstate locality.

Mr. Kenneth A. Cox: We say that it is so local and so unrelated to the sort of interference with commerce that Congress had in mind.

That was, petitioners had been totally unable to prove it.

Justice Felix Frankfurter: All I'm suggesting is that the local -- that the act of locality may be repeated mandatorily making it more than local than nation in that in the District Court.

Mr. Kenneth A. Cox: To that -- to that, Your Honor, we would answer that these being local disputes, the courts of each of these areas would work out these matters as we have submitted that the Court should hear.

Chief Justice Earl Warren: Mr. Cox, would you -- would your argument carry us far as to say that in any -- any business that merely affects commerce, that the jurisdiction of the Board depends upon whether there actually has been stoppage of -- of commerce by a strike and that they can't --

Mr. Kenneth A. Cox: No.

Chief Justice Earl Warren: -- their jurisdiction doesn't attach until there has been?

Mr. Kenneth A. Cox: No, as I suggested, Your Honor.

If -- if for instance, the issue were one that an employer had wrongfully discharged a man for Union activity --

Chief Justice Earl Warren: Well, on a strike?

Mr. Kenneth A. Cox: And there is no strike yet.

Chief Justice Earl Warren: Let's just take a strike like we have here.

Mr. Kenneth A. Cox: Alright, take a strike.

Chief Justice Earl Warren: Yes.

Mr. Kenneth A. Cox: It is our position that if there is a strike, that if the strike has gone on, and we'd like to think 24 days is a substantial period of time without any judicial restraint, that the first interest of any agency, whether it's the Board when its jurisdiction is invoked or the local court when it is asked to intervene, its first interest should be, now that we have an actual accomplished fact, a work stoppage which will impose the ultimate possible impact on commerce, has there been an impact on the interstate movement of goods or of passengers or one which as in Your Honor's example, will surely come when they head over the accident of having had some raw materials on hand.

Chief Justice Earl Warren: But suppose that -- suppose the Board wanted to exercise jurisdiction the first day of the strike, would it have had jurisdiction?

Mr. Kenneth A. Cox: It would have -- it would have had jurisdiction if it could have been convinced over our proof to the contrary because even on the first day of the strike, we would have been able to offer some evidence that the owners had responded to this situation by providing through their own efforts, not bringing in any outsiders, they have provided whatever was necessary to maintain the interstate service.

Chief Justice Earl Warren: Well, do that mean that the Board must determine before it assumes jurisdiction whether the strike is to be successful or not?

Mr. Kenneth A. Cox: No, Your Honor.

There may never be a strike and if --

Chief Justice Earl Warren: But there was -- we got one here, the one we're talking about.

We got one and it's the first day.

Mr. Kenneth A. Cox: The first day.

Chief Justice Earl Warren: It's the first day, not that they --

Mr. Kenneth A. Cox: We would -- we would say, Your Honor, that, at that point, the Board would proceed to consider the possibilities --

Chief Justice Earl Warren: Not would, but could proceed.

Mr. Kenneth A. Cox: Yes.

Chief Justice Earl Warren: We're talking about jurisdiction and --

Mr. Kenneth A. Cox: Yes.

Chief Justice Earl Warren: power.

We're not talking about what they would do.

Mr. Kenneth A. Cox: We -- we would concede that, in any case, in this case even.

Chief Justice Earl Warren: Yes.

Mr. Kenneth A. Cox: It was entire and we did not object on the grounds of irrelevance to the proof that we service as these -- these terminals.

This is all relevant to the issue.

If -- if this had been presented to the Board on the first day of the strike, we think that the Board could and should consider the reasonably inferable impact.

But we think that the employer, if he feels that his labor dispute is not within the Board's jurisdiction and can be more properly handled at the local level, if he can prove, based on something about this first day, facts which will raise a doubt in the Board's mind that these inferences are in fact reliable, that that is of the essence of this whole situation.

Chief Justice Earl Warren: That would oust the Board of jurisdiction?

Mr. Kenneth A. Cox: If the Board felt that the proof given by the employers was that there would not be the interruption which reasonable inference might have seem to indicate, that it would oust them of jurisdiction.

Chief Justice Earl Warren: Alright, that's all.

Thank you.

Mr. Kenneth A. Cox: Thank you, Your Honor.

Chief Justice Earl Warren: Your -- Mr. Donaldson, you have a few moments, five minutes, I think, to respond.

Rebuttal of Richard P. Donaldson

Mr. Richard P. Donaldson: Thank you, Mr. Chief Justice.

I won't use all of that time, but I do feel I should comment now on this -- this narrow issue to -- to limit -- the narrow issue now before the Court because my opponent stated clearly that he would concede that if the dispute had interfered with transportation to and from the airport and so forth, then the Board would clearly have jurisdiction.

So, the issue then is, what is the proper test for the Board, and I submit that the proper test for the Board or the exercise of the Board's jurisdiction is whether a dispute could reasonably tend to affect commerce and not whether a dispute has actually affected commerce.

There -- the Board has been administering the National Labor Relations Act for 24 to 25 years now and this question has come up many times before the Board and no -- no Board case has ever held that the test depends upon the actual impairment of Congress.

No court case has ever held that the test depends upon the actual impairment of Congress -- of -- of commerce.

And, my opponent is unable to cite any cases in support of this somewhat ingenious argument.

There had been cases where strikes have taken -- taken effect for several months, even years, and where the employers have argued that there was no effect on commerce, and therefore, the Board had no jurisdiction.

If the Court is interested in some of those cases, and these are not cited in the -- in the brief, I researched this matter after I noticed the -- my opponent making this argument in his answering brief.

One case is Gibson County Electric Membership Association, 65 N.L.R.B. 760.

Another case is N.L.R.B. versus Henry Levaur, that's the case in the First Circuit, 115 F.2d 105.

The --

Justice Felix Frankfurter: To what point do you cite these cases?

Mr. Richard P. Donaldson: Pardon?

Justice Felix Frankfurter: To what point do you cite these cases?

Mr. Richard P. Donaldson: These are cases where a strike has been in effect for some time.

Justice Felix Frankfurter: And -- and no --

Mr. Richard P. Donaldson: And -- yes, and where the employer argued that because there was no showing that the strike actually impaired commerce, that the Board had no jurisdiction.

Justice Felix Frankfurter: What page of the First Circuit case?

Justice Felix Frankfurter: 115 F.2d.

Mr. Richard P. Donaldson: 115 F.2d 105.

Justice Felix Frankfurter: 105.

Mr. Richard P. Donaldson: Yes.

The -- the First Circuit there said that the employer's argument had absolutely no merit.

Those are the words the court used.

Now, with respect to the facts -- I might say, before going to the facts that of course, that's the reason we didn't put in any evidence on this because it was -- it isn't required as a test of the Board's jurisdiction.

With respect to the facts, I would call the Court's attention to pages 38 and 39 of the printed record because there, you will find a sworn affidavit which was filed in the court below by the president of the service corporation.

This affidavit was filed on October the 17th when they were attempting to get a writ of mandamus from the court below.

And, you will read several paragraphs of this -- of this affidavit and realize that the service corporation was pleading that it was being tremendously damaged by this strike and picketing.

Here is one of the paragraphs.

“That none of the employees of any of the 118 independent cab corporations have reported for work resulting in substantially reduced operations, both of the plaintiff-relater and of the said 118 corporations.”

Next paragraph.

“That as a result of the foregoing considerable delays on the part of the customers seeking cab service, have resulted to the damage both of the plaintiff-relater, the 118 corporations, and the general public.”

And lastly, it says “The time is of the very essence of this matter since continued picketing may put the plaintiff-relater and all of the cab companies out of existence, thereby, diminishing competition and injuring the general public.

So, I say, as a matter of fact, that the position assumed by the respondent in this Court is totally inconsistent with the position assumed by it in the court below and in the trial court.

Thank you very much.