ELECTRICAL WORKERS v. LABOR BOARD

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Argument of Benjamin C. Sigal

Chief Justice Earl Warren: Number 321, Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO, Petitioner, versus N.L.R.B.

Mr. Sigal.

Mr. Benjamin C. Sigal: Mr. Chief Justice, Members of the Court, may it please the Court.

The National Labor Relations Board in this case held that the petitioner violated Section 8 (b) (4) (A) of the National Labor Relations Act, as it appeared prior to amendment in 1949, by inducing and encouraging the employees of independent contractors to engage in a concerted refusal to work with an object of forcing the independent contractors to cease doing business with the General Electric Company and in order that the petitioner cease and desist from that conduct, not only as to these independent contractors but as to any other -- as to the employees of any other employer.

Now, the facts are these.

The petitioner represents and there at that time, the production and maintenance employees of the General Electric Company at its Appliance Park plant near Louisville, Kentucky.

There were about 10,000 employees altogether at the plant at that time than -- of which the petitioner represented about 7600.

The principal products of this plant are electrical appliances such as dishwashers, dryers, washers, room air-conditioning units and appliances of that kind.

Now, the Appliance Park plant consists of a collection a collection of 13 buildings on a large tract of land, consisting about 1000 acres.

Six of the buildings are used directly for production purposes and the others for servicing the production processes.

Access to the plant is obtained by five road ways crossing a culvert which surrounds the plant and these roadways are called gates.

Most of the employees, the customers and others wanting to enter the plant do so by way of these roadways.

Now, in 1958 and from time to time prior to that, the company had entered into contracts with independent contractors for work to be done on its buildings in this -- on this site and on the grounds as well and the work consisted of general maintenance work and also for installation, repair and alteration of the facilities in the plants and most important, work in converting to the manufacturer of new models of these various appliances such as retooling, rearrangement of conveyors and so forth.

Some of this work had been done and it could be done by the employees of General Electric if they were available at the time and there was also a unique competitive system within the company by which one of the departments or service department bid on certain types of alterations and maintenance work.

And if their bid was lower than that of the independent contractor, they obtained the work otherwise it went to an independent contractor.

Now, in 1954, the company had issued instructions that one of these five gates, namely which was numbered 3-A to be used only by the employees of the independent contractors whereas the other gates could be used by its own employees and also by the employees of suppliers, other customers and so forth.

Now, the reason for this action was that there had been a number of strikes of the craftsmen of the -- in the employees of the independent contractors which had involved the employees of GE and therefore, they set aside this particular gate for the exclusive use of the employees of the contractors.

Now, this gate was of course used by any contractor and not just by those who happen to be involved in this case.

Now, at the time of the strike which occurred in this case -- which occurred in July of 1958, there were -- contracts had been given to 12 independent contractors, half of whom had already started their work on those particular contracts.

Most -- one of them, they worked on -- one of them had gone -- it begun as far back as January of 1958, none had gone back before that.

However, there were a couple of these contractors who had worked on these premises on other contracts from time to time over a period of two, three, or four years.

As to the other contractors, they hadn't even begun doing the work which they had contracted to do for General Electric at this time.

Justice Felix Frankfurter: As I -- I may have missed, Mr. Sigal but did you state when gate three --

Mr. Benjamin C. Sigal: Yes.

Justice Felix Frankfurter: -- was --

Mr. Benjamin C. Sigal: -- in 1954.

Justice Felix Frankfurter: 1954, in reference to any special situation?

Mr. Benjamin C. Sigal: No, not special except as I indicated.

There had been a number of jurisdictional disputes, strikes among the employees of the independent contractors.

Justice Felix Frankfurter: Yes.

Mr. Benjamin C. Sigal: And that was the reason, but there was -- so far as I think the record -- no, the record does not say there was anything special in 1954.

Justice Felix Frankfurter: Or any -- any prophetic device of this petitioner?

Mr. Benjamin C. Sigal: No.

(Voice Overlap) I don't know if anything -- prior to that time --

Justice Felix Frankfurter: Was this great forethought?

Mr. Benjamin C. Sigal: I'm sorry?

Justice Felix Frankfurter: Was this great forethought?

Was this great forethought with reference to this controversy?

Mr. Benjamin C. Sigal: I doubt it because there had been no strikes by the employees of General Electric Company prior to that time and the one that occurred in this case was a first one that occurred which was four years later.

They --

Justice Potter Stewart: In the record, that's just --

Mr. Benjamin C. Sigal: They said as a matter of fact at that time that the reason they set it up was to insulate their employees from the employees of the independent contractors who had been engaged up to that time in about 22 jurisdictional strikes up to -- from the time the plant opened which was only about four or three years earlier.

Justice Felix Frankfurter: You're not suggesting any -- you're not suggesting any devious purpose about it?

Mr. Benjamin C. Sigal: No, no.

I don't think they had anything like that in mind as to -- as the problem arose in this case.

Now, as to the employees of these contractors, only about half of dozen had testified and three of them said that they had begun -- worked only two days before the strike in this case.

Two others that said that they had began to work at -- after the strike began and one or two testified they -- their work had gone on for about six months or more.

That's all the testimony there was as to the length of work by the employees of the independent contractors.

Now, the work done, as I indicated earlier, was done primarily on the buildings and, in the buildings rather, in which the strikers worked and there was no building, no permanent building for the contractors themselves.

Now, perhaps it would be helpful just to examine for a moment the map which appears after page 170 in the record.

You'll note that this has -- the tract of land is rectangular.

The gates -- the gate involved here, 3-A is on the right hand side of that rectangle.

Now, gate around -- but the middle of that right hand side, you'll note letter A.

That was a gate intended for the employees and visitors.

Above that was Gate B -- was gate number 3 -- that is B -- it was gate number 3 and then above that is C which is 3-A.

Now, that is the gate which is involved in this proceeding.

Now, when the employees of the independent contractors went into that gate, they turned left and a number of them went to work in the first building, in building number 1 and a number of them went almost the whole length of that tract and went to work in building number -- which is marked here as building number 5, 5 dealt with -- manufactured household refrigerators, 1 manufactured the home laundry equipment.

Now, when the -- well, I should note also that in addition to these three entrances, there's one on the far left corner of this tract, that was a gate for employees and there's one at the top of that rectangle which is also a gate which is a -- take gate where truckers came in, employees of suppliers and a gate through which the product of the company was taken out by the employees of truckers and other -- and customers and so forth.

Justice Felix Frankfurter: Would you mind telling me where the gate for the -- for the GE employees was?

Mr. Benjamin C. Sigal: Well, the other four gates could be used --

Justice Felix Frankfurter: Yes.

Mr. Benjamin C. Sigal: -- by GE employees.

Justice Felix Frankfurter: But you indicated that this is a special gate or a -- the most used gate?

Mr. Benjamin C. Sigal: No.

Justice Felix Frankfurter: You said this was a gate for the employees.

Now --

Mr. Benjamin C. Sigal: It was just one of the gates.

I had misspoke if --

Justice Felix Frankfurter: Thank you.

Mr. Benjamin C. Sigal: That's one of the gates, yes.

Justice Felix Frankfurter: I understand that but how many -- through how many gates did the employees, and I take it all the 10,000 and not merely your union employees, come, how many gates were there?

Mr. Benjamin C. Sigal: Well, there was nothing to preclude them as I understand it from using any of those four gates, but as a matter of fact, for the most part, they used the gate which is designated E.

Justice Felix Frankfurter: Oh, in the corner.

Mr. Benjamin C. Sigal: -- at the far left hand corner and they also used the gate which is designated A on the right hand side of that rectangle.

Justice Felix Frankfurter: What's the distance between A and C?

Mr. Benjamin C. Sigal: About -- between A and C, about 500 feet.

Justice Felix Frankfurter: C is 3-A, isn't it?

Mr. Benjamin C. Sigal: C is 3-A, yes.

Now, there is a distance so about a mile between the employee gate E and employee gate A.

Justice Felix Frankfurter: But I infer from what you've said, perhaps earnestly that most of them came through gate E.

Mr. Benjamin C. Sigal: Gate E and gate A.

Justice Felix Frankfurter: Gate E and gate A.

Mr. Benjamin C. Sigal: Which is -- that has been marked E and A.

They are numbered otherwise, yes.

Now --

Justice Felix Frankfurter: And it's 500 feet between A and C?

Mr. Benjamin C. Sigal: That's I think what the record shows, 500 feet between -- I beg your pardon, between A -- between B and C.

Justice Felix Frankfurter: Between D and C?

Mr. Benjamin C. Sigal: B.

Justice Felix Frankfurter: Where is it?

Mr. Benjamin C. Sigal: On the right of that, it's hard to read there but --

Justice Felix Frankfurter: C?

Mr. Benjamin C. Sigal: B.

Justice Felix Frankfurter: C, B, A, I don't see B, where is it?

Mr. Benjamin C. Sigal: Between A and C there's a B.

Chief Justice Earl Warren: There's B.

Justice Felix Frankfurter: Yes.

Well, between B and C there's –

Mr. Benjamin C. Sigal: Between B and C, that's -- I think yes.

Justice Felix Frankfurter: Yes.

Thank you.

Now, or are you going to come to that, did the employees observed this -- this allocation of gates for them as against --

Mr. Benjamin C. Sigal: Yes, practically so.

In the -- in the hearing in this case, there was some evidence that on a few occasions over the years, the GE employees used Gate 3-A.

However, the Board found and we have not contested the fact that gate 3-A was used exclusively, it certainly was intended for the exclusive use --

Justice Felix Frankfurter: So that --

Mr. Benjamin C. Sigal: -- of the independent contractor.

Justice Felix Frankfurter: One -- one may -- hear the rest or your argument or hear the rest of this case and the argument that the employees streamed through E and B and A, is that right?

Mr. Benjamin C. Sigal: The employees, yes, of GE.

Justice Felix Frankfurter: Employees of GE streamed to those two gates?

Mr. Benjamin C. Sigal: Yes, I think.

Justice Felix Frankfurter: And -- that the conduct is also proved that the employee or the contractors or suppliers went through C?

Mr. Benjamin C. Sigal: The employees of the -- of the independent contractors and the suppliers of the independent contractors --

Justice Felix Frankfurter: Yes.

Mr. Benjamin C. Sigal: -- went through that gate.

Justice Felix Frankfurter: Yes.

Mr. Benjamin C. Sigal: But the employees of other -- other suppliers of GE went through the other gates particularly gate B and gate D which was as marked B and D.

Justice Felix Frankfurter: But it is clear that the -- that Gate 3-A was used by those for whom it was intended --

Mr. Benjamin C. Sigal: Yes.

Justice Felix Frankfurter: -- and not used for whom -- those whom it was not intended.

Mr. Benjamin C. Sigal: Yes.

Justice Felix Frankfurter: Alright.

Mr. Benjamin C. Sigal: That's -- that's a position we're taking here, although we did -- there was some evidence to the contrary in the early parts of the case.

Now, when the strike began, there is no question it was a lawful strike at all times.

It was over the question of unresolved grievances.

The petitioner placed pickets at all five gates, picketed all of them in exactly the same way and carried the same kind of sign, namely “Local 761 on strike, GE unfair.”

There was no question in the case as to the identification of the employer with whom the -- against to whom the petitioner was striking and the trial examiner so found, the Board didn't challenge that fact.

Now, in addition to the -- using the picket signs, the employees on strike also made some oral appeal to the employees of the contractors when they approached the line, the only place where these oral appeals were made when the -- when the employees and the contractors approached the picket line at Gate 3-A.

There was no attempt, no effort on the part of the pickets to halt the operations of any contractor at any place other than at appliance part and the trial examiner so found and there is so -- and the Board adopted that finding.

Now, most of the employees of the independent contractors observed the line and did not go through.

A few of them did come to the line as to -- and asked permission to remove their tools so that they could work elsewhere and this permission was granted.

In one or two instances, they were told to go to the office of the union.

There, they were given a pass, they went through and got -- obtained their tools and left and went to other jobs which the -- their particular employers have.

Now, as I -- I've already indicated gates 3 and 4 were used by the employees of the suppliers of GE by their customers, by visitors as well as by the employees of GE.

During the strike, the company made it very clear through use of radio and television and so forth that it was continuing the operation of a plant and there was -- was open for anybody who wanted to do business with them.

And as a matter of fact about 5000 employees altogether did go through the -- to work in the plant.

That is about 3000 of the non-bargaining unit before and about 2000 of those of the bargaining unit did go in and the plant operated to some extent.

Now, at the hearing before the trial examiner, the representative of the general counsel made -- was quite explicit in saying that the -- if the contractors and their employees had used the same -- that is the employees of the independent contractors, had used the same gate as the other employees, there would have been no case.

It was a bit no unfair labor practice, and the case, as the general counsel presented it to the trial examiner, rested on the distinction between the separate gate set aside for the -- the employees of the independent contractors and the shared gate which was of course the other four gates.

Now, the trial examiner found specifically that the pickets made it clear that their dispute was with the General Electric Company only and that there was no effort to halt the operations of any of the independent contractors anywhere outside that project and he concluded that the object of the picketing at Appliance Park was to halt the operations of the struck plant, that is a GE plant, by appeals directed selectively to the company's employees, to the consuming public and to the employees of neutral employers who were transporting materials in and out of the plant.

And he concluded, after an exhausted review of the precedents, that this was clearly valid primary activity and there was no violation of 8 (b) (4) (A).

The Board reversed the conclusions of the trial examiner.

It adopted his findings and sub -- certainly, didn't set aside any findings of his specifically and held that the -- the -- without expressing any rationality for -- rationality for its action that the object of the petitioners was to enmesh the employees of the independent contractors in its dispute with GE which object was shown by picketing the reserved gate and making oral appeals to those employees.

That was the entire statement of the Board for -- reason for reversing the trial examiner.

No other justification or rationality was expressed.

It issued its order for the petitioners to cease and desist not only from this conduct with respect to the employees of independent contractors, but for the employees of every other contractor, customer and so forth.

The court upheld the Board – no the court below.

Now, the issue in this case as it is framed by the briefs here is as we see it or at least as we see it, is follows.

This is permissible under Section 8 (b) (4) (A), deliberately, to induce employees or customers, suppliers and others who perform services for a primary employer to refrain from rendering services to -- for the benefit of the primary employer at his place of business during a labor dispute between a primary employer and his employees.

Justice John M. Harlan: To that purpose of your argument, you accept the findings or the substituted findings that the Board, do you?

Mr. Benjamin C. Sigal: Well, the purpose of the argument with respect to the question of whether or not Gate 3-A was exclusive you mean?

Justice John M. Harlan: Yes.

Mr. Benjamin C. Sigal: Yes, we -- we accept the finding that Gate 3-A was exclusively for the use --

Justice John M. Harlan: No, no, no.

In -- for the purposes of your legal argument, the question you've just stated, do you accept the findings or fact that the Board made?

Mr. Benjamin C. Sigal: The Board made no findings or facts itself.

Justice John M. Harlan: Well, whatever you call them.

Mr. Benjamin C. Sigal: We accept the findings of fact, yes.

We accept the findings of fact because the -- the -- made by the trial examiner and as we see it, those findings were adopted by the Board.

Now, there's one -- one difference with respect to the findings of fact.

The trial examiner made no finding as to whether or not Gate 3-A had been set aside exclusively for the employees of independent contractors.

He said that for -- in his view of the case, it made no difference.

The Board found, however, that it was set -- that the gate was set aside for the use of the -- exclusive use of these employees, of the independent contractors and we are not challenging that finding.

Now, aside from that, there is no -- so far as we see it, there is no difference between the Board and the trial examiner and of course we are resting on the findings as they are made taking the trial examiner's report and the Board's statement together.

Now, so far as the issue is concerned, petitioner of course says that the -- it did have the right and does have the right to make these -- to deliberately to induce employees or independent contractors to do what was done in this case.

The Board says that sometimes it is lawful to do so and sometimes it isn't, depending on the duration of the work of the employer -- of the independent contractor on the premises of the primary employer.

That's -- we'll go into that -- for what in the course of the argument.

The company here apparently takes the position that there is no right to induce the employees of independent contractors at any time except perhaps -- except an individual employee.

Chief Justice Earl Warren: We'll recess now.

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Argument of Benjamin C. Sigal

Chief Justice Earl Warren: -- Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO, Petitioner, versus National Labor Relations Board.

Mr. Sigal, you may continue your argument.

Mr. Benjamin C. Sigal: Mr. Chief Justice, Members of the Court, may it please the Court.

At the close of the session yesterday, I pointed out what I considered to be the issue in this case, namely, is it permissible under Section 8 (b) (4) (A) of the Act deliberately to induce employees of customers, suppliers and others who perform services for a primary employer to refrain from rendering services or benefit to the primary employer at his place of business during a labor dispute between the primary employer and his employees.

Now, we submit that that question has been answered in the affirmative by this Court in the International Rice Milling case.

Now, in that case, the Court dealt with an offending -- with a picketing of an offending employer in a primary dispute.

The union there sought to organize the employees of a Kaplan Mill and picketed the mill with signs saying, “This job is unfair to the union.”

When two employees of a customer of the Kaplan Mill came in the course of their employment for their employer to the mill, the picket stopped them and told them to turn back.

Now, the Board held that since these activities, this picketing, arose out of primary picketing of the Kaplan Mill and were a carryout in the immediate vicinity of the mill, they were lawful.

The Fifth Circuit Court reversed and then -- and this Court unanimously reversed the Fifth Circuit and upheld the Board.

Now, among other things, it pointed out that Section 7 and 13 of the Act and immaterial legislative history of the Act, supports the Court's statement that nothing in 8 (b) (4) is to be construed to interfere with, impede or diminish the union's traditional right to strike.

And that Congress did not seek in that Section to interfere with the ordinary strike.

And before analyzing this case further, I'd like to mention also the Denver Building and Construction case which was decided on the same day.

Now, in that case, the primary employer was a subcontractor employing non-union laborer.

The union called a strike against the neutral general contractor picketing with signs saying, “This job is unfair,” in order to force him to terminate his contract with the primary employer, namely the subcontractor.

The Court held that that was prohibited under Section 8 (b) (4) (A) and there -- and affirmed the Board.

He pointed out that the only way the union could have obtained its strike objective was to force the neutral employer, the -- to back -- to break his contract with the subcontractor.

And having achieved that -- that was -- would've been the end and was the end in that case of the picketing.

Now, the Court contrasted Denver with Rice Milling in the Denver case.

They declared in Rice Milling, the union was seeking recognition from the primary employer and that its action in seeking to influence the employees of a customer of -- then Kaplan Mill was no more than traditional and permissible in a primary strike.

It said further that the union was not striking against the customer and was not encouraging concerted action by the customer's employees to force the customer to boycott the mill.

Now, this statement in Denver illumines the statements of the Court in Rice Milling, that a union's inducements reaching individual employees of neutral employer only as they happen to approach the picketed place of business, generally are not aimed at concerted, as distinguished from individual conduct by such employees.

And the Court stated that there was no inducement of concerted action there of the kind proscribed by Section 8 (b) (4) (A).

Now, in Denver, the Court also approved the approach of the Board in the several cases which it had presented to the Board in the course of its -- stating its rationality -- and rationality.

One of its -- the cases was the Ryan case.

Now, Ryan was almost identical with the case at bar.

In that case, Ryan was a contractor engaged in constructing in addition to the Bucyrus Plant located on the 35-acre tract, enclosed by a wire fence.

Now, about 500 feet from the main gate and near the construction area, Bucyrus had installed a separate gate for the use of the Ryan employees and for the suppliers of Ryan.

In the course of a strike against the Bucyrus, the union picketed all entrances of Bucyrus including the gate -- the Ryan gate, publicizing a dispute with signs most of which did not identify Bucyrus.

Ryan's employee did not cross the picket line.

The Board held that this was primary picketing and it made no difference whether 1 or 100 employees refused to cross or wished to enter and refuse to cross the picket line.

And the picketing did not lose its primary character in support of a labor dispute with Bucyrus because the Ryan employees were the only ones who didn't cross or that rather the only ones who used that gate.

Now, the Court -- this Court cited that case and the action there as the -- as an ordinary strike.

Now --

Justice Potter Stewart: Do you think it makes any difference, in this connection Mr. Sigal, of what kind of a strike it is that is so long as it is a lawful strike, whether it's an economic strike or strike for recognition or -- or what?

Mr. Benjamin C. Sigal: No, I think it's -- that makes no difference -- if it's a law -- so long as it's a lawful strike, certainly.

And if you're now talking about the -- the question of picketing and so long as the picketing is -- and the conduct is in the traditional fashion, it makes no difference.

Justice Potter Stewart: The strike in this case, which led to the picketing, was over some grievances under a collective bargaining agreement.

Mr. Benjamin C. Sigal: Yes.

And there was no issue raised as to the legality of the strike.

That was conceded by all parties.

Now, in the Denver case, the union sought to have the employees of a general contractor that is the neutral employer, stopped work for the purpose of causing him to terminate his contract with a neutral employer.

Now, it must be pointed out in that case -- that in that case, the employees of a general contractor were not performing work for the primary employer who was the subcontractor.

Now, with the aid of the rationale provided by the Board, this -- this Court said that in the views of the Board as applied in the Denver case, this Court found conformity with the dual congressional objectives to protect -- to preserve the right to bring up labor organizations, to bring pressure against offending employers in a primary labor dispute and to shield unoffending employers and others from pressures in controversies not their own.

Now, a minority of this Court at that time believed that the decision unduly restricted the right to picket and strike.

And that 8 (b) (4) (A) should reach only the case where the industrial dispute spreads from the job to another front.

Now, before examining the extent to which the Board has departed from the views it supported in Rice Milling and Denver in which views were upheld by this Court --

Justice Felix Frankfurter: But the findings -- but the findings were different in Rice.

Mr. Benjamin C. Sigal: I'm sorry.

Justice Felix Frankfurter: The findings were different wherein, the findings in this case were different from the findings in Rice.

Mr. Benjamin C. Sigal: I --

Justice Felix Frankfurter: And the Court in Rice rested on those findings, namely that there was no endeavor to beget concerted abstention.

Mr. Benjamin C. Sigal: The -- but the question is what was concerted abstention among other questions.

Justice Felix Frankfurter: But that's a different question.

I'm now addressing myself to the fact that the findings in this case were directed against concerted abstention.

There were no such findings in Rice and the opinion of the Court rested on the specific findings in Rice.

Mr. Benjamin C. Sigal: If the Court -- if just -- Mr. Justice Frankfurter, the findings of the trial examiner which were adopted -- the findings of fact --

Justice Felix Frankfurter: I'm talking about the order of the Court --

Mr. Benjamin C. Sigal: Yes.

Justice Felix Frankfurter: -- and the findings on which the order of the Board on which the findings were based.

Mr. Benjamin C. Sigal: The order --

Justice Felix Frankfurter: Its purpose of talking at large.

When we talk of -- about courts, we talk about their judgment, when we talk about the Board we talk about its order and decisions.

Mr. Benjamin C. Sigal: The -- the Board did conclude in this case that the intention of the union was to enmesh the sect of the employees of the neutral employers.

Justice Felix Frankfurter: Why don't you use the exact words?

It was -- it used the terms, "concert of action".

Mr. Benjamin C. Sigal: That -- that was a conclusion of the Court -- of the Board, Your Honor.

Justice Felix Frankfurter: But it wasn't the conclusion in Rice.

Mr. Benjamin C. Sigal: But we submit that --

Justice Felix Frankfurter: I'm not saying that -- that this disclosing of the case, I do imply that it doesn't do any good to rely on a case which in its findings is different.

Mr. Benjamin C. Sigal: Well, if the Court please, I will -- I simply want to point that the definition that what the Court meant and when it said that there was no concert of action, it did not -- it was not referring to the type that I think that Mr. Justice Frankfurter is referring to.

It said that the employees, the Action in stopping the two employees was not concerted, the kind of concert of action which was proscribed.

It did not say that there was not concert of action.

Justice Felix Frankfurter: You read me where it said, it isn't the kind of concert of action that disclosed trial.

It dealt with two individuals and said the fact that two individuals of a secondary employer collaborated with the employees of the primary employer, did not bar striking by the primary employer.

That's all it says.

Mr. Benjamin C. Sigal: Well, I -- I will give you the language, Your Honor.

I have it quoted in the brief.

I submit that this language that I suggest -- that I -- that I have just quoted is in the Court's opinion.

Now, if I may proceed, I will return to that in just a moment.

Now, we -- the -- the Court used this language.

Justice John M. Harlan: What page?

Mr. Benjamin C. Sigal: On page 66.

We have quoted in part on page 66 of our brief in which it observed -- at about the middle of the page.

The Court observed that Section 8 (b) (4) (A) proscribes only, “Encouragement to some concert of action greater than the refusal of employees of a neutral employer to cross the picket line.”

The -- the words quoted were, “Encouragement to some concert of action greater then.”

I -- I submit that the Court in that case clearly understood that there was concert of action, but the question was, “Was it concert of action which was prescribed by 8 (b) (4) (A)?”

Justice Felix Frankfurter: But here we have no controversy that the Board did find action directed towards concert of action, have we?

Well, it's in the order --

Mr. Benjamin C. Sigal: The --

Justice Felix Frankfurter: -- isn't it?

Mr. Benjamin C. Sigal: The Board -- the Board found -- yes.

That --

Justice Felix Frankfurter: All right.

Mr. Benjamin C. Sigal: -- there was concert of action.

Justice Felix Frankfurter: I don't see why --

Mr. Benjamin C. Sigal: We submit that the Board was wrong.

Justice Felix Frankfurter: -- the evidences were things that are not controversial, instead of agreeing and then going on in making your argument in reference to it.

Mr. Benjamin C. Sigal: I -- I would simply want to add that so far as the findings were concerned, the Board did not contravene any of the findings of fact of the trial examiner.

Now, if I may proceed.

The Board in its brief here makes certain important concessions which narrow the area of contention.

First, the Board concedes that Section 8 (b) (4) (A) is not to be read literally, since to do so would mean the banning of nearly all strikes.

It concedes that the Congress did not intend in Section 8 (b) (4) to interfere with the ordinary or primary strike.

It concedes that the threshold question is whether the challenged activity is primary or secondary.

And it concedes that the right to engage in picketing in the light activity in a dispute where the primary employer includes the right not only to appeal to the employees of the primary employer, but also to influence third persons to withhold their business or service from the struck employer.

Now, it concedes further that after the decision of the -- this Court in Rice Milling and Denver, it changed its opinions or its views with respect to the -- this matter and began to reevaluate and started on an entirely different course, which ends in part in the case we have here.

It took the position that it could -- that the Denver decision left the three to jettison the original approach which was approved by this Court.

Term -- predicated on the terms of the Act in the legislative history and traditional strike activities.

And it now says that under this new approach, duration of the employment at the place of the primary employer is the criterion as to determine whether the action is secondary or primary.

Under the present view of the Board, it is no longer pertinent whether the situs of the dispute is on the premises of the primary employer and it is no longer pertinent whether the work is done by the neutral for the primary employer.

Now, in their view, the primary consideration is whether the employer, that is the primary employer, uses the premises -- that is whether the neutral employer uses the premises along with the primary employer in a substantial and continuous manner as a regular workplace.

If he does, then the picketing, if it is not confined to picketing of the employees of the primary employer, the -- maybe secondary -- maybe prohibited because then the union unnecessarily directs its picketing at the neutral employees.

Now, the reason for this as distinguished from principle is that the picketing is focused upon neutral employers who work steadily at the site of the dispute and thereby may injure, may injure the employer more seriously than where he is only a transient.

Now, we say that this approach determining the matter on the basis of injury is entirely outside the Act.

Is not authorized by act and in -- in effect constitutes administrative legislation.

The question is -- should be directed to the question of the right to primary picketing of the -- the picketing of the primary employer and not to the question of injury, this -- or the degree injury of the secondary employer.

Now, the Board feels or takes the position that it has a right simply to balance interests and to determine when the strike pressure is adequate.

We'd say there's nothing in the law that gives -- that says that adequacy of strike pressure is a criterion.

Now, in -- in the guise of administration, it has placed limitations which Congress has not placed on striking and picketing.

Now, it is our view that just as this Court held in the Insurance Agent's case that Congress did not allow the Board in the guise of determining good or bad faith in negotiations to regulate what economic weapons a party might summon to its aid.

And just as in Curtis, it held -- this Court held that the Board could not in the guise of administration condemn picketing for recognition by a minority union, because it disapproves of the economic pressures which were generated.

So we say the Court must not be allowed to condemn primary picketing because it believes picketing is necessary or that the economic consequences on neutrals are too severe.

I would like to save the balance of my time for rebuttal.

Chief Justice Earl Warren: You may.

Mr. Benjamin C. Sigal: Thank you.

Chief Justice Earl Warren: Mr. Come.

Argument of Norton J. Come

Mr. Norton J. Come: May it please the Court.

Section 8 (b) (4) (A) bars a union from inducing employees to strike where an object is to put pressure on their employer to cease doing business with another employer, with whom the union has its basic dispute.

Now, there is little question that the union's picketing and allied activity at Gate 3-A which was reserved the exclusively for the use of the neutral contractors and their employees, meet the literal requirements or a violation of Section 8 (b) (4) (A).

The gate was used only by the contractors and their employees.

The picketing there induced the contractors' employees to stop work.

And as petitioner admits and as the Board found, this was the reason for picketing or induce a concerted refusal by the contractors' employees.

Now, the company which is intervened in the case whom you will hear after I finished within the matter there that is since the picketing at Gate 3-A was or the object described in Section 8 (b) (4) (A).

It was necessarily violative of that provision.

For the Board, it is a little more difficult for the reason that if you applied 8 (b) (4) (A) literally, you could leave no room for the right to engage in primary activity.

And it's well settled that 8 (b) (4) (A) was not intended to obliterate that right.

Now, Congress however, did not define what they -- what it meant by primary activity, but as we read the legislative history and we think our view is supported by the Denver case, Congress issued any of the common law tests for defining that activity because it was something that different jurisdictions differed about, but instead, left the drawing of that line to the Board by the process of accommodating as this Court said in the Denver case, the dual congressional objectives of preserving on the one hand the right of labor organizations to bring pressure to bear on offending employee or employers in primary labor disputes and on the other hand, of shielding unoffending neutral employers in controversies not their own.

In short, we think that with respect to drawing the primary secondary line, this is an area, if I may paraphrase another decision of this Court in the Insurance Workers case, where Congress put the question to the Board to answer.

It is analogous to the situation of balancing the conflicting interests with -- in Republic Aviation, the right of solicitation on company property.

It's analogous to balancing the competing interest in the Buffalo Linen case as to where the right to strike collides with the right of the employers to protect their bargaining unit.

It is not like the situation in Curtis and Insurance Agents where Congress answered the question leaving the Board little to do but to apply the direction of Congress.

Now, I think it's important to view the problem in that setting because I think it makes a lot of difference as to the latitude that the Board has in this area and to the considerations that it can take into account based upon its experience in drawing the line here.

Now, let's see how the Board has attempted to draw the line.

And I think there's no trouble in the situation where the primary employer and the secondary employer are engaged in business at separate locations.

I think the union will agree that in the case where the primary employer is fully operating at one site which is the Rice Milling situation.

Picketing that is confined to that site can be regarded as primer.

If I'll -- and if the secondary employer is operating at another site, you extend that picket line over to the secondary site and there seek to induce refusals to work, that is secondary.

The trouble comes where you have enmeshed employment where the primary employer and the neutral employer are at work on the same job site.

Now, that is not the traditional situation that's encompassed by the concept secondary boycott or -- or primary strike.

Justice Felix Frankfurter: The statute itself doesn't use the word “boycott”, doesn't it?

Mr. Norton J. Come: No, it does not.

It does not, Your Honor.

Justice Felix Frankfurter: And -- and anybody who knows the literature about secondary and primary boycott knows that those terms are not precise terms at bar.

Mr. Norton J. Come: Yes, Your Honor.

And I think the legislature history will show that Congress was aware that they were not precise terms, that there was the unity of interest test in some jurisdictions.

Other jurisdictions had a more rigid rule as Your Honor is -- is well familiar with.

Justice Felix Frankfurter: Indeed, Congress I think consciously refused to leave both then.

Mr. Norton J. Come: That is correct.

However, I should point out that --

Justice Felix Frankfurter: I'm not saying that they're not --

Mr. Norton J. Come: Yes.

Justice Felix Frankfurter: -- valuable terms.

Mr. Norton J. Come: Yes.

Justice Felix Frankfurter: All I'm saying is they're not -- they're not precisely bounded in present terms like the rule against perpetuities.

Mr. Norton J. Come: That is correct, Your Honor.

Now, I said the enmeshed the employment situation is the one that gives the -- the most difficulty, because what happens is that if you picket at those premises in support of the primary dispute, you're necessarily going to have a substantial impact upon the neutral and his employees.

On the other hand, if you don't let the union picket there, its right to picket the primary employer maybe largely destroyed because since he spends considerable time on those premises, that's the only place that you can reach him.

Now, the Board, in drawing a line between primary and secondary is of the view that in these enmeshed employment situations, the union's action will be regarded as primary so long as it has made every effort to confine the activity to the primary employer.

However, -- and if there should be any secondary work stoppage as a result of that, well that is incidental to the primary activity.

Obviously, you can't completely isolate it from the neutral.

However, if the union has gone beyond that and made a -- a purposeful effort to direct its activity at the -- at the neutral, then the Board views that as -- as tipping the scales and bringing -- making the activity secondary.

Now, that was the situation that this Court had before it in the Denver Building Trades case, which was a companion to Rice Milling.

As Mr. Sigal indicated, that involved the typical building and construction situation where the primary dispute was with a subcontractor.

The union picketed the job site that he worked on along with other subcontractors and the general contractor.

And it did not confine its activity insofar as possible to picketing the primary employer, but use signs and other action which made it clear that it was inducing a concerted stoppage of work by the neutrals.

And a violation was found there.

The Board carried that principle over to the situation exemplified by Moore Dry Dock, where you have -- say the primary employer has a ship and that comes into a neutral's dry dock for repair.

And let's say as in Schultz, he has a truck and that goes around making deliveries to neutral stores.

You can picket at that site so long as you do not make a deliberate effort to carry your message beyond the primary employer.

Now, the thing that creates the problem is that when the Board was originally working out these views, it did not apply the enmeshed employment rule to the situation where the enmeshed employment occurred on the premises of the primary employer.

Chief Justice Earl Warren: When was that first (Voice Overlap) --

Mr. Norton J. Come: Indeed --

Chief Justice Earl Warren: -- done, Mr. Come?

Mr. Norton J. Come: Well, I think that you had this done not -- immediately, it involved through a series of cases.

The first case I believe was the -- which is cited in our brief is the PBM case in about 1953.

That was a situation where the primary dispute -- it was a building and construction case -- was with the general contractor has this -- who owned the land and built the buildings as distinguished from Denver, where the dispute was with the subcontractor who was -- who was working for the general who was the neutral.

It was then carried over into the Crystal Palace case where you have the primary employer owning the -- a big building in -- in San Francisco which housed a number of stalls that were owned by independent sellers of -- of wares and then are gradually over into the industrial situation that we have here in -- in GE.

Now, let me try to explain that the --

Justice Felix Frankfurter: Before you do that, may I (Voice Overlap) --

Mr. Norton J. Come: Yes, Your Honor.

Justice Felix Frankfurter: -- go on with the Mr. Chief Justice's line of questions.

When you say the -- the Commission hadn't worked out the -- these enmeshed situations that you actually followed.Do you mean that the Commission in the -- over the years has changed its criteria for judgment or that the facts in the records before it did not bring in -- did not bring into clear and vivid aspect, the problem that we have now before us.

Which is it?

Had the Commission changed its views or have -- have different fact situations brought its attention to a consideration of views more clearly?

Mr. Norton J. Come: Well, I think -- I think that there has been a change of view in -- in this -- to this extent that the situation here is similar to the Ryan case which Mr. Sigal mentioned.

However, the thing that --

Justice Felix Frankfurter: Is that your case or case of this Court?

Is that --

Mr. Norton J. Come: No, that was not a case of this Court, Your Honor.

I might say that Ryan never did get to Court.

Justice Felix Frankfurter: Where is that?

Mr. Norton J. Come: The Ryan decision is cited in our -- in our brief.

Sorry.

It's at page 22 of our brief, page 22.

Justice Felix Frankfurter: On charges --

Mr. Norton J. Come: Yes, Your Honor, but --

Justice Felix Frankfurter: But you got to explain the positions and the change of that.

Mr. Norton J. Come: Yes, Your Honor.

I was going to add though that it was an evaluation of the effect of this Court's decisions in the four cases that were here in 1951, plus the evolving nature of the different fact situations that chained to it, that prompted the Board to reevaluate the situation in Ryan because --

Justice Felix Frankfurter: Would you be good enough -- I don't know what Ryan --

Mr. Norton J. Come: Yes.

Justice Felix Frankfurter: I don't know what Ryan is.

Maybe (Voice Overlap) --

Mr. Norton J. Come: Well --

Justice Felix Frankfurter: -- I don't.

Mr. Norton J. Come: Well --

Justice Felix Frankfurter: Could you tell us what the position was.

Mr. Norton J. Come: Yes.

Yes.

Justice Felix Frankfurter: And what changes became and why the changes in the relation of all that to this case.

Mr. Norton J. Come: Yes, Your Honor.

Ryan was a situation where the union had a dispute with Bucyrus and Ryan was an independent contractor who was doing work for Bucyrus on Ryan's premises.

Justice Charles E. Whittaker: (Inaudible) he's building a building.

Mr. Norton J. Come: He was building a building there.

Yes, Your Honor.

I may have the names reversed, but anyhow the fellows were the two entities.

There was a separate gate on the premises that was used only by the contractor --

Justice Charles E. Whittaker: Ryan.

Mr. Norton J. Come: -- Ryan.

The Board held that even the picketing at that separate gate would be regarded as primary.

In other words, they drew the line simply on the basis of --

Justice Felix Frankfurter: Geography.

Mr. Norton J. Come: Of geography.

Now in Rice Milling, this Court --

Justice Felix Frankfurter: Well, now (Inaudible) or it never --

Mr. Norton J. Come: Yes.

Justice Felix Frankfurter: -- it's not only a separate, but an exclusive gate?

Mr. Norton J. Come: There was -- for all practical purposes, it was, Your Honor.

Yes, Your Honor.

Justice Felix Frankfurter: Yes.

Chief Justice Earl Warren: And what year was that, Mr. Come?

Mr. Norton J. Come: Well, I -- I have the (Voice Overlap) -- Ryan was a -- Ryan was in 1949.

Chief Justice Earl Warren: 1949.

Mr. Norton J. Come: This Court decided before boycott cases in 1951.

Justice Felix Frankfurter: You mean Rice and company?

Mr. Norton J. Come: Rice and company.

In Rice, this Court -- we try to make a sole geographic pitch.

In defense of Rice, this Court rejected that.

It said that geography, although relevant, was not controlling.

Moreover, in the Denver case, the basis on which the unions sought to privilege that activity, as this was the picketing at the -- at the construction project.

And the basis on which Judge Fahy for the Court of Appeals had found that it was privileged.

And the basis upon which Judge Clark had dissented in the Langer case which was the companion was that since it had been confined, all the activity to the job which gave rise to the dispute, it was primary activity.

In other words, the job, geography was a decisive consideration.

This Court rejected that view.

It was the view of the three dissenters.

It was not the view of the majority opinion.

Moreover, interestingly enough, Judge Clark who I mentioned, had dissented in Langer, pointed out that he couldn't see any logical difference between the Board's Ryan view and the Denver case that they held that it was primary.

In Ryan, they ought to be holding that it was primary in the Denver situation.

Well, all of those factors played a part in the Board's reevaluation of its position.

Moreover, you begin to get cases as you frequently do while your -- while you're dealing with an accommodation problem.

You get fact situations to test the validity of your initial assumptions.

You begin to get cases like the PBM case which I indicated, where it's a converse of the Denver case.The general contractor is the one that you have to dispute with.

You get cases like Crystal Palace where the primary owns the building.

And those factors, those add a shadings effect test your initial premises.

It may induce you to change them, the Board did change.

Those positions where sustained by the Courts of Appeals.

This is not a situation where we're coming up here naked.

It was a shift from Ryan to GE in saying, “Take it, because we now today say this is -- this is better.”

This is something we -- we have labored with, we've tried to work out and accommodate and I think that it has met the test of the -- of the Courts of Appeals.

As a matter of fact, we can't see any meaningful difference between the situation here and the situation in -- in Denver.

And I think it's -- it's heightened by petitioner's concession.

They concede in their -- in their brief here that had the dispute been with the contractors, GE could properly have confined the picketing to Gate 3-A.

And if the union had gone to any of the other gates, the Board could have found a secondary boycott.

Now, what meaningful difference does it make to turn the tables around?

Is there anything more here than the fact that in the one case, the primary employer owns the premises and in the other case, he does not?

And petitioner at points in its brief says that they don't regard that as a -- as a decisive consideration.

Justice Felix Frankfurter: Mr. Come, ay -- has the Board had a case or cases in which the secondary employer actually had, other than the construction case, the building case, in which the secondary employer had its own self-contained activity take place on the premises of the primary employers, reference in such, some subcontractor as install or temporary erected of the house in which he does the manufacturing for the primary employer?

But on the type, these vast, huge GE's land like the one, (Inaudible) the one here which was (Inaudible)

Have you had any such case?

Mr. Norton J. Come: Well, I think this case, Your Honor --

Justice Felix Frankfurter: I'm not talking about principles.

I am talking about industrial facts, then we'll get to the principles.

Have you had any such case?

In this case, there wasn't -- that wasn't the situation here, was it?

Mr. Norton J. Come: No, you didn't -- you didn't have it to --

Justice Felix Frankfurter: I'm talking where he has a building --

Mr. Norton J. Come: -- your --

Justice Felix Frankfurter: -- in which he does, the secondary employers have worked for the primary employer.But why is an independent -- independent industrial (Voice Overlap) --

Mr. Norton J. Come: Yes.

Well, the closest case that I can -- I can recall at the moment is one that we have cited in our brief here, so called Hoosier Pete case, which was sustained by the Seventh Circuit.

Now, that is not a construction industry situation, but what happened is, you had Hoosier Pete, who was hauling -- I believe Floyd, I guess his name is.

Who was hauling gasoline or a concern called Hoosier Pete, and what he did was he -- he set up at one of -- of Pete's, a gas station, his on garage and that became his -- his regular place of business and he operated out of that.

Justice Felix Frankfurter: That's the kind of case I --

Mr. Norton J. Come: Yes.

Justice Felix Frankfurter: -- was wondering if you have had.

Mr. Norton J. Come: Yes.

We had such a case --

Justice Felix Frankfurter: What was that case?

Mr. Norton J. Come: The Hoosier Pete case.

It's -- it's cited in our -- in our brief, Your Honor, at pages -- page 25.

Justice Felix Frankfurter: And what was found there?

Do you know?

Mr. Norton J. Come: Well, the Board treated that as an enmeshed employment situation.

And finding that the union had not confined its picketing so -- insofar as possible Floyd, found that there was a -- it was secondary activity, violative of 8 (b) (4) (A) and that was affirmed by the Seventh Circuit.

Justice Felix Frankfurter: The -- your citation only gives --

Mr. Norton J. Come: The Seventh Circuit --

Justice Felix Frankfurter: I believe the text only gives the N.L.R.B.

Mr. Norton J. Come: The next footnote, Your Honor.

Justice Felix Frankfurter: I take it.

All right, thank you very much.

Mr. Norton J. Come: Now, as I say, when we point out that the -- that the only difference between the situation that we have here and the -- and the converse which petitioner concedes, the Board could properly find the violation in his -- his ownership of property and when they realized that, they say, “Oh no, we're not -- we're not -- we don't think that should be decisive.”

And say the -- the other fact here is that the -- that the contractor was -- was doing work which directly benefits the primary employer.

Now, let's -- let's test that and see whether that really is any different from the situation that we had in Denver.

With the interdependence of the crafts on a building and construction project, we submit that it cannot be said in any realistic sense that the neutral contractors in Denver were not involved or directly benefiting the non-union subcontractor.

Indeed, the relationship on a building and construction project is -- is much closer than it is in an industrial situation, because of the control of the contract -- the general contractor over the job.

It's -- it's so close that you can make a very substantial argument to the fact that you don't have any -- any neutrals in such a situation that are really joint ventures.

And as a matter of fact, there are presently pending in the Congress, bills that would reverse Denver Building Trades on -- Denver Building Trades decision on -- on that very basis.

Significantly enough, they are not drawn so as to include this kind of a situation.

Of course, that is causing great concerns of the industrial unions, but in any event, in the -- in the current thinking about this thing.

It is that the situation in -- in Denver that the relationship between the -- the various contractors is at the even closer one than you have in this type of situation.

So that to say that in Denver, there wasn't any direct involvement of the -- of the neutrals with the primary employer as you have here is we submit, to be very unrealistic about the practicalities of the situation.

In any event, 8 (b) (4) (A) bans partial as well as total work stoppages and therefore, it's irrelevant to its application whether or not, the neutral is -- the employees are being asked to stop work for their employer wherever it may be or just the work that they happen to be doing for the primary employer.

Justice Felix Frankfurter: Mr. Come, suppose in this case, everything else being the same, except that only two trucks belonging to the second -- to one of the secondary contractors for the GE that gone through -- that gone through or started to go through 3-A gate, does two named drivers of the trucks and pickets that directed themselves by the finding of the Board merely against those two.

Would that be -- would that -- am I right in putting that would be a Rice identity, even though it's a separate gate or would it be Denver?

Mr. Norton J. Come: I think that the Board would have treated that as -- as different, Your Honor, if they belong to the contractors who are working on -- on these premises to the extent that -- that this contract, if they were the contractors' trucks.

Justice Felix Frankfurter: It wasn't the contractors' trucks, but the Board would've found that just as it found in Rice, that two designated employees of the -- of a secondary employer sought to go through and they simply said you don't (Inaudible) helping an unfair employer.

Mr. Norton J. Come: Because they both -- they were part of the business of the independent contractors who were sharing those premises.

In other words, the -- the way the -- that the -- the Board distinguishes Rice on the ground that there, you did not have any other employers who were working on that premises.

Justice Felix Frankfurter: I don't follow that.

Mr. Norton J. Come: Well, in Rice Milling, the premises were occupied solely by the primary employer.

Justice Felix Frankfurter: I understand that.

Mr. Norton J. Come: There were no competing interests that had to be accommodated because you didn't have another neutral employer who was working at those premises.

Justice Potter Stewart: These are deliverymen in Rice Milling, weren't they?

Mr. Norton J. Come: They were -- they were deliverymen in Rice Milling.

Justice Felix Frankfurter: You mean they weren't -- these fellows didn't go in, in order to work on the premises?

Mr. Norton J. Come: That is correct, Your Honor.

Justice Felix Frankfurter: I understand that too, but I want to confine it --

Mr. Norton J. Come: Yes.

Justice Felix Frankfurter: -- to a finding by the Board that they were not directing their activity or their stoppages to the contractors as such whether they're against two individual people.

Mr. Norton J. Come: Yes.

Well, I would like to answer that by pointing and calling Your Honors' attention to one development that should be pointed out and that is that subsequent to -- well, in the 1959 Amendments to the Act, the Landrum-Griffin Amendments.

Congress amended 8 (b) (4) in order to plug up what they regarded as -- as loopholes in 8 (b) (4).

And in doing that, they took out the word, “concerted.”

That's set forth in our -- in our brief.

The reason they took out the word "concerted" was that in some -- some of the courts had found that if you'd stop only one secondary employer even at a secondary site, you didn't have a violation because it -- it wasn't concerted.

So they -- they took out the word, concerted.

Justice Felix Frankfurter: And that -- does that mean that Rice Mill came up today, we would have to decide --

Mr. Norton J. Come: No.

Justice Felix Frankfurter: -- in the contrary?

Mr. Norton J. Come: No, Your Honor.

In doing that, other Congressmen were fearful that that would result in that.

So, what they did was they added a proviso which is also set forth in our brief that nothing construed herein, should affect the right to engage in primary strikes or primary picketing.

And the legislative history of that which is also set forth in our brief at -- set forth in our brief at page 46, points out that they did this in order not to disturb the principles that had been developed that primary activity was not to be covered by 8 (b) (4).

They were not adding to your clarification as to what is primary and what is secondary, but they -- they intended to remain frozen whatever limitations there were and whatever privileges there were.

So that I think that they have not overruled Rice Milling, but they've taken away the concerted problem.

Justice Felix Frankfurter: Well, I must say I'm glad I don't have to decide that case here because to me, that's properly mumbo-jumbo and properly be going -- trying to go at same time in opposite directions.

Mr. Norton J. Come: Well --

Justice Felix Frankfurter: Because for me, Rice Milling largely goes on the non-finding has considered this.

The Court so said and just referred to (Inaudible) on so many words, doesn't he?

Mr. Norton J. Come: I -- I think -- I think that he did, Your Honor.

However, that has caused the -- an awful lot of difficulty with the lower courts who --

Justice Felix Frankfurter: All I'm saying is the -- the -- exactly what you referred them on page 46.

Mr. Norton J. Come: Yes, Your Honor.

Justice Felix Frankfurter: Test that a lot of words and then say see for example and the (Inaudible) are Denver Building, Moore Dry Duct, etcetera.

It doesn't say see Rice, does it?

Mr. Norton J. Come: Well, there is some other history which is set forth I believe in the Aron article which is on the preceding page that specifically talks about Rice Milling as -- as well.

Justice Felix Frankfurter: (Inaudible)

It was in the Committee?

Mr. Norton J. Come: Yes, Your Honor.

Justice Felix Frankfurter: You referred to --

Mr. Norton J. Come: Well I --

Justice Felix Frankfurter: -- Committee report by way of an article of law review.

I must say I greatly respect of origin your article's signature, but I didn't know reached that light.

Mr. Norton J. Come: Well if, Your -- if the Court will permit, I'd be glad to supply those after the -- the argument.

Justice Felix Frankfurter: I think you're obliged to it.

Mr. Norton J. Come: Yes, Honor.

I'm -- I'm afraid that I'll have to sit down because I've trespassed already on Mr. Reilly's time.

Chief Justice Earl Warren: Mr. Reilly.

Argument of Gerard D. Reilly

Mr. Gerard D. Reilly: May -- may it please the Court.

Petitioner is relying rather heavily here on a concession which appears in the Board's brief in which Mr. Come has adverted, namely that if you read Section 8 (b) (4) (A) literally, it would seem to ban all primary strikes.

Now, I submit that even though that observation was taken from opinion of Judge and the later opinion by Judge Hand, that that's not a fair reading of the statute granted that the draftsmanship of the Section 8 (b) (4) may have practically it would be desired.

I still think that is a rather strained and almost a perverse interpretation of Section an 8 (b) (4) (A) to say that it would -- prepared primary strikes unless tested out in this case.

If one should ask the employees surveying this construction companies why they were striking, they probably would have said they didn't want -- they wanted their employer to stop doing any work for General Electric during the strike or if should asked any of the General Electric employees why they were striking, I doubt very much that anyone of -- any of them would've said, “Well, we want General Electric to cease doing business with everybody.”

They probably would have said, “We want to General Electric to remedy our grievances or give us better contracts.”

Something of that sort, so I think it's -- that to give the statute its literal meaning which is what the court below did, that is positive of the case because the court below said “It's the intent that counts.”

And here of course, the intent of the union is pinpointed by the fact that they selected this segregated gate for picketing.

And -- and as further shown by the fact that if this conference -- while the picketing was going on and when the representative of this building trades unions attended the conference, the leader for petitioner's union pointed out that they had a picket line there and -- and he didn't want any of these construction workers to cross it.

So there's no doubt as to the intent here and I think that's really dispositive of the case and would avoid getting into all these complications of situs and common situs and roving situs which Mr. Come has had to advert to.

It's a -- it's rather strange if this section could be construed as prohibiting primary strikes that neither Senator Pepper or Senator Morse for the principal opponents of the Taft-Hartley -- of building the committee and who played a large part in the drafting of the minority report and spoke extensively against Section 8 (b) (4) on the floor, that never occurred to them.

They objected to Section 8 (b) (4) and that they call it -- went further than to prohibit what economic writers spoke of as a secondary boycott.

And they would have limited a secondary boycott to situations where the employees were not working on the same premises or where there wasn't so much unity of action or whether the strike was for an illegal objective.

The petitioner's brief relies rather heavily upon some remarks of Senator Taft which were taken out of context in which he said that his bill was not intended to prevent people from striking over wages now as in other working conditions under -- engaged picketing on them.

And when Senator Taft made those remarks, he was not saying this because he felt that some people on the floor believed that Section 8 (b) (4) (A) was prohibiting a primary strike.

Quite the contrary, what he was doing was defending the bill on the ground which was perfectly obvious to anyone reading it that it didn't go so far as to prohibit striking.

They remembered that that legislation was written during the period of the great wave of post-war strikes which succeeded a period of government regulation of wages and prices in which there hadn't been a -- strikes had been illegal.

And -- and there was this certain amount of public sentiment for going back to that situation.

So when Senator Taft made the remarks which quoted in petitioner's brief, he preceded them and I'm quoting from page 1107 of volume 2 of the legislative history, “We have considered the question whether the right to strike can be modified.

I think it can be modified in cases which do not involve the basic question of wages, prices and working conditions, but if we impose compulsory arbitration or if we give the Government power to fix wages in which men must work for another year or for two years to come, I do not see how in the end we can escape a collective economy.

We give the Government power to fix wages.

I do not see how we can take from the Government the power to fix prices and so forth.”

Now, one thing of course that gives petitioner's arguments a certain amount of support was that there was a period shortly after Taft-Hartley Act passed in which the Board, not looking at the full legislative history, not doing any research apparently upon the evolution of the Senate Committee Bill from S55 into the Taft-Hartley Act.

These say some of the things that Mr. Sigal is saying here today.

But I submit Your Honors that the Ryan Construction Company case falls into that same class of cases like the lock-out cases, Communist disclaimer cases, the hot cargo cases and the professional employee cases.

Cases in which in the early period of the Act, the Board was not giving the statute its -- its plain meaning and a result, this Court had occasionally reverse the Board in all four of those cases.

And now the shift of the Board's position from the Ryan case to this General Electric case wasn't a judgment of Board expertise.

Section 8 (b) (4) is identical to Section 303 which is a Section of course which could come up in the District Courts and reached this Court and review that way.

So what we really have here is not a question of expertise, it's a question of statutory construction.

Now, Mr. Sigal has conceded that if he's correct in his position, this could also apply to a secondary -- to a -- this type of picketing in a strike for recognition.

Strike for recognition of -- prior to the Landrum-Griffin Act at least, were lawful as this Court found in the Curtis case.

Now, in the -- Senator Ball, one of the managers of the Taft-Hartley Bill in the Senate floor refers to -- and this is mentioned on page 29 of our brief.

He refers to a situation in which a picket line was formed around the premises of a non-union employer.

And thereby sends -- his supplies were chopped-off, the men were forced to enter the union.

And he was referring to this as -- as in connection with his proposed amendments which resulted in the adoption of Section 8 (b) (4) (A) which this Court construed in Curtis.

Apparently, the Court construed it correctly in Curtis because Senator Ball said that another section of this bill -- and of course he must have meant Section 8 (b) (4) (A), the very question here, deals with this situation.

So that here, if we apply the obvious congressional intent, it's -- it would seem that any picketing directed at -- at shutting off suppliers and costumers -- as to the employers and costumers, which would be prohibited by Section 8 (b) (4) (A).

I want to go so far as to say that in every primary strike if there's a picket line and some odd suppliers don't come in, that that is necessarily a violation of the Section 8 (b) (4) (A).

I would say that's possibly a windfall that the primary strikers have.

But -- but where the pickets were out of location, where it's perfectly clear that their impact is simply upon the employers or secondary employers, whether those employers are resident employers on the premises like this contractors or whether they're simple employers of trucking companies who, coming in to make regular deliveries and pickups, it seems to me perfectly clear that that's a violation of Section 8 (b) (1) (A).

Now, there's nothing inconsistent as Mr. Justice Frankfurter has pointed out between this position and what -- on the conclusion this Court reached in the Rice Milling case.

Remember the -- at some point of the main petitioner's brief that there were two people involved in this, but one of them was just a passenger or a helper on the truck, so that you couldn't say the two men were leaving in concert because by the very physical location of the helper, he had to leave when the driver left.

Now, what that case was about was a -- it was concerned with a picket line on a railroad site in which they're certainly concerted activity, certainly an encouragement of concerted activity there.And this particular plant, the Kaplan Mill, was primarily supplied by rail.

The Board in its original decision had held that the picketing at the railroad site was not an unfair labor practice because a railroad was not an employer within the meaning of the Act.

The Court of Appeals reversed the Board on that as well as the Board's situs doctrine on the truck driver.

But when it reached this Court, the Board did not apply for certiorari on that.

In effect, a confessing error, let the decision of the circuit stand so that all that was before this Court was this rather odd incident of -- isolated incident since the whole thrust of the picketing was at the railroad of the pickets suddenly move -- moving over it and attacking this single truck.

The point has been raised as to whether or not the new legislation has any bearing on this case.

It -- it is a question which the Court I think, must consider to this degree.

Since this order or decree or the court below operates respectively, if the new legislation had harshly repealed Section 8 (b) (4) (A), then conceivably, the order should be modified.

Justice Felix Frankfurter: What is your view, Mr. Reilly, as to the bearing of the new legislation to the precise issue in this case?

Mr. Gerard D. Reilly: I -- I think that it makes this case a stronger case for the position of the court below because one of the cases which is cited has a limitation which the -- well, if there -- there are two case that is cited.

They're four in all, but --

Justice Felix Frankfurter: You mean the -- in the report?

Mr. Gerard D. Reilly: In the report, but they're two cases which have a great deal bearing here.

One of them is the Denver Building Construction Trades case which of course was a case involving the same premises.

The other is the Moore Dry Dock case.

Now the -- one of the limitations in Moore Dry Dock -- that was a case which the Board is also relying on as a common situs case.

They recalled a primary strike, was a strike on a ship which was in the dry dock for repairs.

The -- when the seamen union came around to picket in aid of their strike, the owners of the ship and the owners of the -- wouldn't let them come up to the place where the ship was Moore.

So they had to picket outside the dry dock.

The effect of their picketing was to cause a number of the ship building employees and not to cross that picket line, employees of another employer.

The Board in that case said that it was not holding that to be an illegal inducement because the strike which was called on the ship was a lawful primary strike.

And these strikers or pickets were not permitted by management to approach the (Inaudible) and as to limit their picketing to the place where the actual dispute was occurring between the ship master and the crew.

And -- but here, in contrast to them, this picket line could have been limited to the entrances frequented by the employees of the struck employer.

And if it's not -- so there, I would say that under the legislative history, it's crystal clear that Congress intended that's -- the situation here was illegal.

I also think that for this reason, the House conference report is -- is very (Inaudible).

But as -- it's prefaced by the remarks that Congress didn't intend once they put in this proviso about picketing, permitting primary strikes and primary picketing to change the existing law or rule to the decision, allowing that -- limiting it when they gave this case, illustrative.

Now, this particular case and another case in which -- an earlier case, this Crystal Palace case in which Ryan and Fishman (ph) overruled or limited, had received very wide publicity in the weekly labor relations report, at which the kind of a bible of the most lawyers and -- and congressional staff people who work in this field.

So that is extremely unlikely that Professor Cox who was running the -- was negotiating of what was on the House conference report in the Senate with Mr. Ryan, the able and experienced House counsel, were unaware of -- of this case.

Justice Felix Frankfurter: As I read that and restricting myself to the reading of what is quoted on page 46 of the Government's brief, the -- that merely speaks -- that's in dearly, an affirmation of declaratory law --

Mr. Gerard D. Reilly: Thus --

Justice Felix Frankfurter: -- and withstand --

Mr. Gerard D. Reilly: Yes.

Justice Felix Frankfurter: They wanted to make clear that the 8 (b) (4) doesn't involve picketing at the site of a primary labor dispute as to the involvements of what that authorizes and leave it more common -- this Court ultimately working out of the common law of the meaning of the statute (Inaudible), is that right?

Mr. Gerard D. Reilly: Yes, it throws no light upon -- upon a situation where the intent of the picketing, it's primary site is really directed at employees of secondaries.

Justice Felix Frankfurter: It shows no light, one with neither light nor darkness.

Exactly.

I think that the real light is thrown by going back to the debates on the Taft-Hartley Act and -- and reading Senator Taft's remarks in context in -- in recognizing that he was defending his bill because it didn't go too far rather than -- rather than asking some contention that the effect of Section 8 (b) 4 (A) was to prohibit primary strikes.

Justice Felix Frankfurter: But I find every time we have a case, I have to go back to the legislative history all over again.

Mr. Gerard D. Reilly: I know that it is rather --

Justice Felix Frankfurter: I certainly don't trust my memory a lot.

Mr. Gerard D. Reilly: Yes.

Chief Justice Earl Warren: Mr. Sigal.

Rebuttal of Benjamin C. Sigal

Mr. Benjamin C. Sigal: Mr. Chief Justice, may it please the Court.

Now, I'd like to advert to several of the arguments that were made.

Now, first when Mr. Justice Frankfurter asked, “Did the Board change the criteria?

When did the Board change the criteria applicable to this case?”

Now as a matter of the fact, so far as -- as we read the brief of the Board, those criteria have been enunciated for the first time in the brief of the Board to this Court, it was only in the brief, in that brief that there was any enunciation of the principle which the Board now think -- think should be applied, namely, the duration test.

That is never, prior to this case, been applied, certainly, never considered by any other court in any case prior to this one.

In the Board's decision, the question was related simply to the exclusiveness of the use of this gate and the oral appeals at this gate.

Now, in -- in the argument to this Court, the Board is now -- has set aside the question of the exclusive gate, as the Board itself did in cases which came up after this one.

And it says merely that the link that if the service of the -- of the independent contractors was regular and permanent, then the picketing at -- the picketing of those employees -- of the independent contractors would be of a secondary nature, relating the entire matter to the duration of employment.

Now, we say there's absolutely no warrant in any of the -- the legislative history nor anything that this Court has said to justify what in our view is simply administrative legislation.

Now, the impossibility of the application of that rule to the -- is shown by this case itself.

Here, we have a dozen contractors or six of them actually at work.

One of them had been on the premises for two years or two and a half years, one of them had been on the premises for one month, others have been for periods in between.

What constitutes permanent or regular?

So far as the employees are concerned, of those employees, none of them, perhaps with one or two exceptions, had been there for more that a month or in most cases, for a few days.

So this -- this principle or criteria has not been spelled out so as to be possible at all of applications.

Justice Felix Frankfurter: What are you criteria?

Does the -- the site and is the site --

Mr. Benjamin C. Sigal: Two, two criteria, one, the fact that the -- the site and the second is the purpose with relation to the whether or not the primary employer -- whether the secondary employer rather, was doing work for the primary employer.

We had those two -- those two situations.

Justice Felix Frankfurter: Suppose you had a secondary -- suppose you had a secondary employer at his own site miles away, does work exclusively or produces good exclusively for the primary employer.

What would you -- what --

Mr. Benjamin C. Sigal: Well if --

Justice Felix Frankfurter: What would be the relevance in your view of that type?

Mr. Benjamin C. Sigal: If the secondary employer is away from the -- entirely away from the site and certainly that would not fall within our criteria of --

Justice Felix Frankfurter: Well, I'm --

Mr. Benjamin C. Sigal: -- primary picketing.

No.

Justice Felix Frankfurter: I'm suggesting that therefore, the -- doing work for or helping forth is (Voice Overlap) --

Mr. Benjamin C. Sigal: They're not in itself sufficient.

Justice Felix Frankfurter: All right.

Mr. Benjamin C. Sigal: Not in itself, no.

Justice Felix Frankfurter: Or is just a comparison (Voice Overlap) --

Mr. Benjamin C. Sigal: With the combination of --

Justice Felix Frankfurter: Did they in fact or which by itself, they do just as much damage or be just as much help to the primary employer and yet would not fall within the right to picket.

Mr. Benjamin C. Sigal: True.

True.

But, we're -- that is only one of the two essential factors.

The other is that here, the -- as -- as here, the dispute was at the premises of the primary employer.

Justice Felix Frankfurter: But why should geography be still (Inaudible)

Mr. Benjamin C. Sigal: Because the -- the question comes down to what is the traditional picketing, what is the purpose with relation to the picketing?

Now, we say that the purpose is to bring pressure on the primary employer.

Justice Felix Frankfurter: When you say traditional, what do you mean by that? Does it (Voice Overlap) --

Mr. Benjamin C. Sigal: By traditional and permissible, we used the terms as this Court used it in Rice Milling, the -- what is the ordinary -- what was done in the ordinary strike at the time the Taft-Hartley was adopted?

Justice Felix Frankfurter: The -- I'm sure you know that -- that the four legislation dealt with these problems, traditional vary from state to state.

Mr. Benjamin C. Sigal: True --

Justice Felix Frankfurter: And traditional varied from labor organization to labor organization.

Mr. Benjamin C. Sigal: But generally speaking -- generally speaking --

Justice Felix Frankfurter: How do you determine that?

I couldn't to save my life.

Mr. Benjamin C. Sigal: Well, this Court indicated what it considered to be an ordinary strike in the Rice Milling case, by referring to the Ryan case and the Pure Oil case.

It referred to those two cases of the Board as being illustrations of primary -- of the traditional and permissible type of picketing.

Now, while the -- of course, the -- there are --

Justice Felix Frankfurter: But if (Voice Overlap) --

Mr. Benjamin C. Sigal: -- there were.

Justice Felix Frankfurter: -- how traditional this thing was, secondary boycott and you look at the -- look at the cases of the -- at the time of (Inaudible)

Look at the whole materials of this or in those are to their statements in the federal courts.

Mr. Benjamin C. Sigal: Where there is --

Justice Felix Frankfurter: I think it's a very treacherous ground to talk about what is traditional and this subject of -- of the extension which strike picketing as has been used by the organizations.

Mr. Benjamin C. Sigal: Well, true the -- there was no precise definition.

But it is clear that the legislative history shows that Congress was considering and this Court pointed out to the fact that Congress did consider the -- the distinctions between primary and secondary boycott.

Justice Felix Frankfurter: But the -- the 1959 Act shows how at large, Congress left it by saying whatever the law is, it shall be the law, whether the law is, is what courts evolve the law to be, including this Court.

Mr. Benjamin C. Sigal: Now, of course, in the 1959 Amendments, the -- the Congress did make specific reference to preserve -- preservation of primary strikes and primary picketing.

Now, of course didn't define them.

That's true, but of course the -- the implication was certainly that they were preserving and making sure there was no interference with those as distinguished from what would constitute secondary picketing and secondary strikes.

Now, may I point out there are some other amendments in the Act which illuminate if they do not -- do not control on this question.

Now, if the -- if Congress had intended to prohibit the type of picketing, the appeals to third parties as the Board would want the courts to do in this case.

They could -- would certainly have said so because they did say so with reference to other sections of the amendments as they were adopted in 1959.

Now, for example, with respect to the question that this proviso appears in 8 (b) (4) as adopted in 1959 additional amendments --

Justice John M. Harlan: Where are you reading from?

Mr. Benjamin C. Sigal: Well, I'm reading from the Act.

Justice John M. Harlan: (Inaudible)

Mr. Benjamin C. Sigal: I'm sorry.

Justice John M. Harlan: (Inaudible)

Mr. Benjamin C. Sigal: Well, I think there was (Inaudible) of quotation in the brief of the amicus here.

I -- they're not actually quoted.

These amendments are not quoted in our brief, but they are quoted in the amicus brief, page -- page through -- beginning at page 30 and going over to 33.

At the bottom of page 33, he noted the brief from that.

That at the end 8 (b) (4), the -- there is a provision protecting a union's right to publicize the fact that one or more employers are handling or selling products of another employer with whom there is a labor dispute.

That provides us -- though specifically provides, however, and with the right to publicize that fact exists only, “As long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to pick up, deliver or transport any good or not perform any services at the establishment of the employer engaged in such distribution.”

Now, we submit that if Congress had intended any such limitation to apply and this is the type of limitation that in fact, that the Board here wants.

It would certainly have said so in the very section which is involved here.

Now, another -- a similar proviso appears in Section 8 (b) (7), which deals with organizational or a recognition picketing.

And there says that picketing for the purpose of informing the public that is protected, unless any effect of such picketing is to induce any individual employed by any other person in the course of employ -- employment, not to pick up, transport or perform services.

So that so far as the legislation is concerned, so far as the amendments are concerned, whatever affect they may have certainly support the petitioner's position.

And that -- and we submit that that position of course is strongly supported by -- in other ways as well by this Court.

Now, getting back to the question of this criterion, this new criterion which the Board wants to apply, I think a question was asked by Mr. Justice Frankfurter as to what would happen in the Rice Milling case under this new criterion.

And I think the answer was that if there were a separate gate and the Kaplan employees had gone -- had been stopped at that gate, that would had been illegal if there had been other contractors on the premises.

I think that was the answer.

So that this is a new wrinkle in this criterion which doesn't appear before, that is if there is only one independent contractor on the premises for a regular period of time.

It's not illegal if I understood counsel, whether there are two or more contractors, not employees, if there are two more contractors on the premises it becomes illegal.

We submit this is -- this is sheer anarchy.

It will be impossible and there is nothing in the law which justifies the -- that kind of interpretation.

Now, so far as geography --

Justice Felix Frankfurter: I take it -- I take it, what was implied, as I understood it was that the Rice Milling was treated as an isolated instance.

I have no more knowledge or I -- that Rice Milling can mean no more to me then it can to you, because once an opinion is added, that's what we look at.

And that's what I read Rice Milling, was an isolated adversary.

Mr. Benjamin C. Sigal: Well, I --

Justice Felix Frankfurter: But that's the --

Mr. Benjamin C. Sigal: I'm Sorry.

Justice Felix Frankfurter: The fact that there were two, rather than fighting what was (Inaudible)

The fact that it's isolated rather than directly at all -- the second thought, what is normally thought, the secondary boycott is a different story.

So that the thing doesn't turn on me and the numbers to one way or another, but the effect might different.

Mr. Benjamin C. Sigal: Well, I -- I -- we've --

Justice Felix Frankfurter: I don't see how -- I don't see how we are -- how we are not compelled to make distinctions of that thought in view of -- in view of present Congress didn't make them, when you say this is the question of -- (Inaudible) statutory construction on which the Board is only have to do is to read these provisions of either Taft-Hartley or the original act we get the action.

Of course, everybody knows if you don't and every also knows that the great measure of building in so to speak, in delegated legislation, was left to the Board.

(Inaudible)

Mr. Benjamin C. Sigal: Yes, but there were certain guidelines, Your Honor, as shown by the material legislative history.

Now, we -- we simply have to refer to that and we've discussed that at length in our briefs.

Now, I would like to make just one more point.

Board counsel suggests that originally, the criteria was -- were -- was geography alone.

Now, I submit that that was not the situation because if geography alone was the criterion, then the Denver case would have been decided the other way because then, all the employees were right on the same premises.

Likewise the Moore Dry Dock case, which was mentioned by counsel, would have been decided the other way because the -- the both employees were on the same premises.

So that as a matter of fact, the -- they did not have to change their position in order to conform to the decisions of this Court.

And finally, I would like to say that in Rice Milling, the Court said that geography was significant, but not controlling.

And we say geography is significant, but not controlling.

The other factor is that the secondary employer was working for the primary employer on the premises of the primary employer.

Thank You.