TEAMSTERS v. YELLOW TRANSIT
Argument of David Previant
Chief Justice Earl Warren: Chauffeurs, Teamsters and Helpers Local Union No. 795, et al.
versus Yellow Transit Freight Lines, Incorporated, et al.
Mr. David Previant: Mr. Chief Justice, if the Court please?
This case is here on writ of certiorari to the Court of Appeals for the Tenth Circuit.
It presents only one very simple question and that is whether or not the Federal District Courts have the jurisdiction to enjoin peaceful picketing allegedly being conducted in violation of a collective bargaining agreement containing an alleged no-strike clause in view of the provisions of the Norris-LaGuardia Act.
Justice William O. Douglas: In the interest of the two?
Mr. David Previant: Apparently it isn't.
There is a great dispute between both the practitioners and the theoreticians on that as a result of this Court's recent decision in Lincoln Mills.
Justice Felix Frankfurter: Was that simple too?
Mr. David Previant: Lincoln Mills [Attempt to Laughter] -- this Court apparently considered a more difficult problem than the Law Review experts have since.
The Federal District --
Justice Felix Frankfurter: That's the normal course of affairs, that's the normal course of affairs.
Mr. David Previant: Yes, I --
Justice William O. Douglas: Why don't you say some members of this Court have considered it more difficult?
Mr. David Previant: They probably still in most cases.
The Federal District Court in this case and the Court of Appeals in this case found that the answer was very simple and they held that the Norris-LaGuardia Act did not preclude the District Court from issuing an injunction under those circumstances.
The facts too are simple and in large measure undisputed.
The petitioner here is the local labor union in Wichita, Kansas.
The respondents here are some six carriers of motor freight, common carriers, who are engaged in the “for-hire transportation” of motor freight between the states and all of whom have a terminal in the City of Wichita, Kansas.
The employees of all of these carriers in the City of Wichita, Kansas, that is the drivers and the warehousemen are members of the petitioner union.
The office and clerical employees are not.
The union and the employer, I'll use the singular for the sake of simplicity, have entered into collective bargaining agreements, one which covers their interstate transportation of goods and one which covers the local transportation of goods in the Wichita area.
They are known respectively as the over-the-road contract and the local cartage contract.
These agreements are multi-employer agreements.
They are negotiated over a wide area with many employers.
It is the identical agreement which was before this Court in a different posture in the (Inaudible) case.
Pertinent to these proceedings are two provisions of that contract.
One is a so-called protection of rights clause which provides that it shall not be a violation of the agreement if employees covered by the agreements refuse to go through a picket line.
The second provision is a rather lengthy grievance procedure.
It provides that there shall be no strike or legal proceedings without first using all possible means of settlement as provided in this agreement.
It should be pointed out here that the contract itself was in the record in the District Court and in the Court of Appeals, but the contract itself is not here and this particular article of the contract was not unfortunately printed in extenso.
I say this because there are some suggestion that this contract contains as a terminal point, an arbitration provision, it does not.
It provides for a series of appeals through the Local and Area Grievance Committees which are comprised of both employer and union representatives.
It further provides that in the event of a failure to resolve the grievance at the last level, the parties may submit the matter to an umpire, but the parties, both parties must agree and if both parties do not agree then it provides that either party is provided all lawful economic recourse.
In other words, the union could strike in the event they did not agree to submit to umpire handling.
Now that particular provision is not necessarily crucial to the determination in this case, but since there has been so much talk about no-strike clauses being quid pro quo for arbitration clauses, I think we ought to set this picture in this case right, that we do not have here a clause which requires the union to submit its grievance to arbitration.
The clause does require the union to submit to an arbitration or rather a grievance procedure.
Justice John M. Harlan: You say that clause is not found in the record?
Mr. David Previant: The -- only a part of the clause was printed in the record.
I don't think that counsel would differ with me as to what I say that the clause does not require arbitration.
I say that the contracts were in the record in the court below.
They were physically in the Court of Appeals.
In preparing this record, unfortunately, there was some reference only to the contract as it appeared in the findings and therefore the entire article was not printed.
Justice John M. Harlan: Was there any objection to -- how they would provide it?
Mr. David Previant: There is no objection at all.
I would be very pleased to submit the contracts to the Court immediately upon the conclusion of the case today.
Chief Justice Earl Warren: You do that, please.
Mr. David Previant: Thank you.
Justice William J. Brennan: Did you say Mr. Previant, these are the same contracts we had in [Inaudible]?
Mr. David Previant: Yes.
Yes, they -- and the grievance procedure clause is essentially identically the same as the record [Inaudible].
Well, in July of 1959, during the life of this contract, the union decided that it wanted to organize the unorganized office and clerical employees of the employers with whom it had this contract.
Accordingly, a letter was sent to the employers.
The letter advised the employers of the union's interest in the -- in the office and clerical employees.
It stated among other things that to induce your employees to join this union, we shall picket your establishment on or about the 27th of July, stated among other things and engaging in this picketing campaign we're speaking for the members of our organization who are employed in businesses like yours and who feel the brunt of unfair competition of your unorganized employees.
The letter did emphasize that it had no quarrel or dispute with the employer.
It was making no demands upon the employer.
The letter acknowledged that until such time as the union obtained the majority representation status, it could not make any such demands upon the employer for recognition.
Thereafter, within several days, the picketing started.
Picket signs said merely organize.
They urged the office employees of this terminal to join Teamsters Union Local 795.
This picketing was peaceful at all times.
Drivers who were members of the union and employed at these terminals upon approaching the picket line and identifying it as a picket line, established by their Local Union, or other members of Teamsters Unions in other parts of the country who might had been interchanging freight at these terminals refused to go through these picket lines.
Members of the Union refused to work behind the picket line.
The result was of course, the business being conducted by these employers at these terminals was disrupted.
For all practical purposes, I guess the record would permit of a conclusion that it was just as though their employees had gone out on a direct strike.
An ex parte restraining order was entered by the District Court upon application of the employers.
The Union was restrained from violating the existing contract, from picketing in the premises of the employer and from otherwise tying up the operation.
I think it is important to emphasize here also that the employers in presenting their petition to the District Court made no claim that this was a matter which was subject to the grievance procedure.
They did not ask that the matter be submitted to the grievance procedure.
They did not ask for arbitration.
On the contrary, their theory was that there was absolutely no dispute between the employers and the unions.
There was no grievance and that accordingly, the union's activity was in violation of the provision of the contract which said there shall be no strike until all means the settlement have been exhausted.
The union of course denied that its activities constituted a breach of the contract and it challenged the jurisdiction of the Federal District Court under the Norris-LaGuardia Act.
After a hearing on a permanent injunction, the court found that the picketing had caused a concerted stoppage, that the stoppage was a strike.
That there was no controversy between the union and the employers that the picketing which caused the strike was in violation of the contract, that the picket line clause upon which the union relied was not applicable, that the court did have jurisdiction under the Norris-LaGuardia Act because in the lower court's opinion, the suit does not involve or grow out of a labor dispute.
And a permanent junction enjoined, restrained and prohibited the union and its officers from violating the provisions of the collective bargaining agreement by engaging in picketing activity.
When no labor dispute is dissolved -- is involved and which causes its members to engage in a concerted stoppage or interruption of the work.
On appeal, the Court of Appeals for the Tenth confirmed.
It found that there was a breach of contract, that these activities did violate the contract.
It further found that although the controversy might come within the literal reading of Norris-LaGuardia, but nevertheless, the jurisdictional limitations found in Norris-LaGuardia must now be read in light of the provisions of Section 301 of the subsequent Taft-Hartley enactment and found that the policy expressed in 301 would confer upon the courts a jurisdiction to restrain a violation of the contract even though it involved picketing and strikes.
Well, the Court of Appeals did -- did not concur in the finding that there was no labor dispute, but found that 301 nevertheless superseded or repealed or had to be accommodated to the Norris-LaGuardia and that in breaking that, the combination or comparison, there was a legislative intent to carve this kind of strike and picketing from under what had previously been the hospitable scope of Norris-LaGuardia.
This opinion of the court --
Justice Felix Frankfurter: Is the common ground -- is that con -- common ground between you and the respondent would agree all around that 301, its purpose would've been barred by the Norris-LaGuardia Act?
Mr. David Previant: I'm -- I didn't hear the last sentence --
Justice Felix Frankfurter: Is it agreed all around that but for 301, Norris-LaGuardia would've barred this?
Mr. David Previant: I can't speak for counsel.
I think that the courts below would have agreed that it was and we (Voice Overlap) --
Justice William J. Brennan: Both of them, Mr. Previant, I thought you said that --
Mr. David Previant: Well, the court below find -- I think probably so.
Justice William J. Brennan: The court -- the Court of Appeals acted, I gather on --
Mr. David Previant: I would amend that answer.
I believe that the District Court just didn't believe that this came within the definition of the labor disputes.
Justice William J. Brennan: That there was no labor (Voice Overlap) --
Mr. David Previant: That's correct.
Justice William J. Brennan: Whereas the Court of Appeals assumed there was a labor (Voice Overlap) --
Mr. David Previant: Well, it appeared that literally it would be and nevertheless the policy expressed in 301 to make a difference.
Justice Felix Frankfurter: But I was just wondering on what assumptions we must go, there was a labor dispute?
Mr. David Previant: We believe that that is an incontrovertible assumption --
Justice Felix Frankfurter: Alright.
Mr. David Previant: -- under the definitions of the Act and then the cases under the Act.
I point out at this point that three Courts of Appeal, the First, Second, and the Seventh had concluded other than the Court of Appeal for Tenth, all of them after examining the legislative history of 301 concluded that there just was no need for accommodation, no need to find an implied repeal, that important legislation such as the Norris-LaGuardia Act which has been ever in the consciousness of Congress, certainly if it were to be repealed, there would've been some explicit language so indicating.
Justice John M. Harlan: What's the third -- what's the third of the Circuits that's gone against you?
Mr. David Previant: The only Circuit that has is Fifth Circuit, the First, the Second and the Seventh.
Justice John M. Harlan: Seventh.
Mr. David Previant: Have --
Justice John M. Harlan: The Bull case in the --
Mr. David Previant: The Bull case is in the Second, Mead case in the First and Sinclair Refining in the Seventh.
Justice Felix Frankfurter: Now, refresh my recollection to (a) go on the grounds first to [Inaudible] and you tell me your position, on the ground that 301 left untouched Norris-LaGuardia or that the policy determination of the courts to call upon to make because of Lincoln Mills continued as a policy attributable to 301 to what Norris-LaGuardia explicitly prohibited, which is it?
Mr. David Previant: I think it could be best summarized that they believe that 301 does not touch Section 4 rights.
Whatever other effect 301 may have had upon other injunctions or restraining orders which might appear to come within the literal language of Norris-LaGuardia, I think they have accepted the holding of this Court that 301 creates substantive law.
Justice Felix Frankfurter: And an injunction in labor cases is procedural law, is that it?
Are we back there, that nice [Inaudible] land of distinction?
Mr. David Previant: We don't believe so.
We don't believe so.
Certainly, under the words of Norris-LaGuardia that appears to deal with jurisdiction, we think that's the subsequent construction of Norris-LaGuardia by this Court would indicate that it is also a --
Justice Felix Frankfurter: [Inaudible]
Mr. David Previant: -- legislation of substance rather than a procedure.
Justice Felix Frankfurter: Do I make my question clear to you Mr. Previant because I believe it's important whether the court that withheld [Inaudible] and you did not -- we don't have to go underground that they go, whether the courts and or you suppose that whatever scope is left for judicial construction or evolution out of 301, it can't touch Norris-LaGuardia or that construing 301 as a mandate of the courts to make appropriate national labor policies, it would -- it would derive from 301 or from its own notions of wisdom, legal wisdom that Norris-LaGuardia is a good national policy.
Mr. David Previant: I think that they accept the latter that Norris-LaGuardia --
Justice Felix Frankfurter: In other words, that not allowing an injunction, denying the federal courts the right to issue an injunction, is still an application of 301, you don't have to bother Norris-LaGuardia, is that it?
Mr. David Previant: No.
No, I misconceived your question, I'm sorry.
I do not believe that they -- that they has taken that position.
I think they have taken the simple position that there are certain kinds of injunctions like requiring an employer to arbitrate, requiring an employer to bargain with the unions under the Railway Labor Act, requiring a union to cease discriminating against its members because of race.
That while these types of restraining orders are mandatory injunctions, although they might come within the literal terms of Norris-LaGuardia, were not contemplated by Norris-LaGuardia, and therefore, the court would not have to apply the stringent requirements of Norris-LaGuardia in testing jurisdiction.
Justice Felix Frankfurter: It's because of 301 that you don't have to construe Norris-LaGuardia that way?
Mr. David Previant: No.
In order to come to the result of 301, they tried to make what this Court has called an accommodation with the Norris-LaGuardia Act.
They feel that this was not the abuse, the type of things which I have enumerated.
They feel are not the kind of an abuse which was contemplated in the enactment of Norris-LaGuardia, but that Norris-LaGuardia stands unchanged insofar as basic Section 4 rights are concerned, the right to picket, the right to strike directed into -- this other.
Justice Felix Frankfurter: Because -- I don't mean to be dialectic about this, but just to me there is a great deal of difference, whether my problem is that 301 doesn't touch Norris-LaGuardia despite the large at leave that Lincoln Mills gives me in construing its scope, that 301 doesn't touch it because Congress has been specific for -- that applying 301 and forgetting all about the Norris-LaGuardia except if there's a light on policy out of 301, disallows such injunctive power.
Mr. David Previant: I believe it would be fair to say that except for the area which is indicated by 301, they believe that the congressional intention was clear that 301 would not touch Norris-LaGuardia.
They do not rely upon 301 to come to the conclusion that Norris-LaGuardia and particularly the Section 4 rights maintain their [Inaudible]
Justice Felix Frankfurter: I don't think you mean not to answer my question specifically, but still I don't understand whether I am to make an independent judgment on the power that is left to the judiciary under Lincoln Mills in construing 301.
So construing it, I would say, it's a bad business to enjoin this kind of a thing or -- and I'd say I don't have to bother by 301, Norris-LaGuardia is a specific statute, this falls within it, never mind 301, I put that undecided.
Mr. David Previant: Well, insofar as the opinion might reflect the process to which these courts have gone through, they have first, I believe, laid Norris-LaGuardia down next to the facts and they have said that this is clearly a Norris-LaGuardia case.
They have then said in view of the determination made by this Court in Lincoln Mills, we now must consider whether Congress in saying that these contracts shall be enforceable in a court of law intended to sap Norris-LaGuardia.
I think that is the process which they go through and that's probably what the decisions would indicate, what the opinions would indicate.
In all of these cases, there was no real dispute as to whether or not there was a labor dispute.
There was no real dispute as to what the result may have been or could have been absent to 301.
Justice Felix Frankfurter: No -- not prior to 301 but Norris-LaGuardia would cover it?
Mr. David Previant: Prior to 301, Norris-LaGuardia did cover it.
Justice Felix Frankfurter: It --
Mr. David Previant: Yes.
There is no dispute.
Justice Felix Frankfurter: And the whole question is what part does 301 play if any in our construction and not a question of writing under the Railroad Labor Act either, is that right?
Is the Railroad Labor Act to put aside?
Mr. David Previant: Well, in these cases, the Railway Labor Act would have no bearing.
Justice Felix Frankfurter: Alright, so that we don't have to deal with that problem of what to do with two statutes which deal with that specific problem, at least two statutes in the same field.
Mr. David Previant: Well, we just have the Norris-LaGuardia and 301, we don't have no --
Justice Felix Frankfurter: That's – I will get more enlightened as you go along.
Mr. David Previant: Alright.
I would, in view of our discussion, just past, overheard either fact that the dispute demonstrates the -- all of the practical accouterments of a labor dispute under Norris-LaGuardia both the dispute between the organized and the unorganized employees and people in the same industry and I would pass on to -- and I would pass also the point that the injunction clearly, clearly restrains the exercise of rights which under Section 4 was -- were too at that, complete immunity under any view of Norris-LaGuardia providing there is a labor dispute.
I would also pass over rather hurriedly the question as to whether or not Norris-LaGuardia did apply in the past to contract violations.
We have set forth the conclusion in our brief that the United Mine Workers case is a clear example of the attempted application of Norris-LaGuardia to a dispute involving a breach of contract and although the decision of the court was not in harmony in the case, certainly I believe all of the justices who participated in that case felt that this was a Norris-LaGuardia case.
The other question was whether or not it applied to the Government.
I think that we then get to the point which one of our brothers mentioned this morning, since the lower court looks to Section 301 to determine whether there has been any erosion on Norris-LaGuardia.
We look at the statute on its face and see what the comfort we can get from examining that.
We believe that the examination of the statute itself demonstrates that Congress knew what it was about, that what it intended to repeal or set aside the application of the Norris-LaGuardia Act, it did so specifically and unequivocally and that we would conclude from that that any other provision of the Act that which Congress did demonstrate, this intention, if it intended clearly that Norris-LaGuardia Act shall continue to apply.
We point out in our brief that the secondary boycott provision for example, the Taft-Hartley, is -- provides that it -- in fact provides mandatorily that the National Labor Relations Board shall after investigation and upon concluding that, there is a violation of the Act, go into the Federal District Court.
It provides as to on a provisions of the Taft-Hartley Act that it has the discretionary power to go into the District Court upon a finding or a belief that there is a violation and we find a specific provision that in exercising either the mandatory or the discretionary power to go to the District Courts for relief from alleged violations of these particular provisions of the Act that the jurisdiction of the District Court is not to be limited by the Norris-LaGuardia Act, the specific provision so holding.
Then we -- we get to the national emergency provisions and we find similarly that after the procedures that are required under the national emergency provisions had been exhausted, there may be an injunction for a limited period of time and again a specific provision that the Norris-LaGuardia Act shall not apply in the application for such injunction against the national emergency strike.
The Taft-Hartley Act further has a provision in connection with trustee funds that in the event there's been a violation of that Section and Section 302, then there may be a restraining order applied for it issued in the Federal District Court and again, expressly stating without regard to the Norris-LaGuardia Act.
I must note it that in each instance, the Government is the party and not the private party, except in the last instance which is not really a dispute kind of a situation and we believe that this demonstrates a considered congressional judgment that if the Norris-LaGuardia Act is to be set aside in any way or in any manner, it would be done only under limited circumstances and it would be done specifically.
We also, certainly on the case of this evidence, would have to conclude that we're not dealing with one of those statutes that one of the courts referred to as obscure or generally forgotten so that we might loosen up on our application of a rule of -- still by implication but this was certainly a statute which was foremost in the minds of the Congress in revising the Wagner Act of 1947.
That appears on the face of the statute itself.
Then move to the other handy like tool for interpretation and look at the legislative history and again we find that there was in the legislative history attempts made to relax the provisions of Norris-LaGuardia particularly in contract violation cases.
That history is set forth in our brief.
That history incidentally is set forth in Mr. Justice Frankfurter's appendix to his opinion in the Lincoln Mills case.
What it shows is that the House Bill 3020 provided specifically that a suit for a violation of the collective bargaining agreement could be brought in the Federal District Court and that the Norris-LaGuardia Act specifically by title would not apply.
The Senate approach and this was a problem, as this Court pointed out in the Lincoln Mills decision, this problem of adherence to contract, the Senate approach was that in the event -- that a contract violation would be an unfair labor practice and would be subject to adjudication by the courts and then -- but then normally follow that under its discretionary power, if and so that a particular contract violation created some situation was -- which would require action, it could then go under the discretionary injunction procedure and the Norris-LaGuardia would not apply in that instance.
These two differences among others have to go to conference.
And when that came out of conference, Conference Report repeated the fact that 3020 has specifically set aside Norris-LaGuardia and that the Senate version did not, but it went on to say we have retained only part of that provision and the only part that was retained was a provision that would set aside Section 6 of Norris-LaGuardia which imposed a rather strict test that this Court will recall on imposing liability upon unions for acts of their agents.
This is all that came out of the legislative bill with respect to Norris-LaGuardia and they said that they would then leave the enforcements of contracts to the normal judicial processes.
Justice Felix Frankfurter: As I remember, you would correct me Mr. Previant, but in the course of legislative history that you know, at least relating to the subject matter you've just traversed, those are separate provisions, but there was -- was there any -- were there any amendments proposed with reference to 301 itself dealing with this problem which said that this should include the right to [Inaudible] --
Mr. David Previant: Well, 301 was initially put into the statute at this time, in the Taft-Hartley amendments.
Justice Felix Frankfurter: Yes but there wasn't anything with reference with 301 that tied it up with the question of an injunction.
The problem of enforcing; two problems, one, whether a violation of a contract should itself be deemed a labor -- unfair labor practice; two, what the remedies were put for independent subject matters not relating to 301, is that right?
Mr. David Previant: Well, I think that 301 grew out of this.
Again, there was no parallel provision in the law as it existed.
The law was going through this very extensive overhaul because of a feeling that it had been one sided --
Justice Felix Frankfurter: Yes.
Mr. David Previant: -- and that there had not been enough limitation placed upon the activities of labor unions.
One of the limitations which was desired at that time or rather one of the impositions which was required -- was desired was that both management and labor be held to the contract and the House version and the Senate version were the respective approaches to that particular problem.
They merged in what is now 301.
Justice Felix Frankfurter: And out of it came this -- whatever you call that -- this thing that had to be construed by this Court --
Mr. David Previant: Well --
Justice Felix Frankfurter: -- that after 301 has evolved out of that legislative process, was there any history bearing on whether 301 was construable so as to allow it to be a -- concluding out of which the silkworm of remedies including this one could be woven?
Mr. David Previant: It seems to me that that was the test which this Court set itself to in the Lincoln Mills case.
Justice Felix Frankfurter: But was that -- yes, I know it did and that's why we're here now but was there any legislative light bearing on the scope left to the courts in dealing with 301 so as to say, “Well, we enforce contractors, this may -- you may go into a federal court now to enforce a contract with a federal right and therefore you may have all the implements, all the armamentarium of remedies for enforcing a right?
Mr. David Previant: I don't believe that there is anything in the legislative history which would so indicate.
Justice Felix Frankfurter: Alright.
Mr. David Previant: Certainly, I believe that this Court, both the majority and the dissenting opinions canvass that history very thoroughly in the Lincoln Mills case.
I think that the debates, however, in addition to the -- what finally happened to the Senate and the House version, the debates themselves I think are clarifying and that you had repeatedly a statement by Senator Taft, by Senator Ellender, by Senator Thomas among others.
I think they knew what kind of a political hornet's nest was involved in trying to do violence bodily to all of Norris-LaGuardia.
And they constantly said that they were not doing anything to Norris-LaGuardia in their adoption of these amendments.
Justice Felix Frankfurter: In terms, they weren't doing anything (Voice Overlap) --
Mr. David Previant: Well, (Voice Overlap) --
Justice Felix Frankfurter: [Inaudible]
Mr. David Previant: They went further.
They said, where we did in terms, we did it in the -- in such a posture so that it would be the Government after investigation which would be going into the Federal District Courts and so we have eliminated substantially the evil which was intended upon the promiscuous, if I may use that term, issuance of injunctions prior to 1932, but they said and realizing I believe the -- I think that 193 -- that the Norris-LaGuardia Act had accomplished what its authors had hoped it would accomplish and that even those who opposed it at that time had accepted it as good law for federal jurisdiction.
Justice Felix Frankfurter: And do I infer from what you've just said that if this controversy reached a magnitude towards the -- permits this fragment of the United States to certify it as a national emergency, that then the Attorney General could move in?
Mr. David Previant: I think there would be no question --
Justice Felix Frankfurter: I thought that that is --
Mr. David Previant: -- under the national emergency provision.
Justice Felix Frankfurter: -- a specific statute.
Mr. David Previant: Yes.
And I wouldn't -- I would think there may be elements of this controversy which might have fallen within other provisions of the Taft-Hartley Act which might have enabled the labor board to come in.
Particularly, have in mind the recent amendments on organizational picketing without suggesting that this would've fallen within that language.
Justice Felix Frankfurter: But you couldn't have this procedure any how?
Mr. David Previant: That's right.
While I am on that subject, I think it might be well to point out that there were always instances under Norris-LaGuardia when it was felt that the result was harsh.
People perhaps weren't looking to the policy of the Act and that is to get the federal courts out of the injunction business, but they thought that there was a harsh result and added pressure with respect to those harsh results build up, you did get amendments in the National Labor Relations Act to meet that, the secondary boycott, the jurisdictional dispute, those things where they felt that it was unfair that there was no way of getting relief in the federal courts, all of those things that Congress eventually caught up with.
Justice Felix Frankfurter: But Norris-LaGuardia itself had some of the restrictive features of some liberating people.
Mr. David Previant: Yes.
Yes it did in connection with --
Justice Felix Frankfurter: Is there under no circumstances ever can you have an injunction to labor disputes?
Mr. David Previant: No.
I did not say that, certainly not.
It said under those instances where there may be one that will ever go to avoid strict standards.
The legislative history, we are satisfied just would not support a finding that such an important and controversial, at least initially controversial piece of litigation like Norris-LaGuardia was amended sub silentio or pro tanto or by implication because the Congress was constantly aware of the existence of Norris-LaGuardia and problems under it.
But when it adopted 301, even though there had been the proposals which (a) would've either brought the contract violation cases under Norris-LaGuardia -- in the federal courts without regard to Norris-LaGuardia or would've permitted the labor board to go to the federal courts without regard to Norris-LaGuardia.
They finally wound up with the simple statement that the federal courts could -- that suits for violation of contract could be entertained by the federal courts regardless of residence and regardless of the jurisdictions involved.
The problems that have arisen in connection with Norris-LaGuardia bear not only upon whether or not 301 has -- made the breach, but whether as a result of this Court's decision in what is known as the Chicago River case, a breach maybe made.
I would recall to this Court and in the Chicago River case, it dealt with the problem under the Railway Labor Act, it was a -- what is called a minor dispute.
It involved grievances which were then before the board, the National Railway Adjustment Board which had been created by the Congress to handle minor disputes.
Nevertheless, a strike to hurry up the board I suppose took place and a question arose whether or not under Norris-LaGuardia that particular strike could be restrained.
This Court held it did, but it did so upon the peculiar and unique history of the Railway Labor Act, the circumstances under which it was adopted.
The agreement of all of the parties, both those who favored it and those who were opposed to it that the Congress was actually imposing compulsory arbitration in the railroad industry in cases of contract interpretation grievances and a specific provision and subsequently, the court in explaining it, I think made it clear that they were dealing with a particular industry as distinguished from industry in general, a particular legislative act as distinguished from the general act and found that there was just no basis for a holding that to restraint this strike under this law would cause a breach in Norris-LaGuardia.
Now we suggest that the differences here are manifested.
We have here -- and in the Railway Labor Act, you had a complete absence of history with respect to what was intended with regard to Norris-LaGuardia and that is why the Court was confronted with this problem of accommodation.
Here in the face of the history which I had just recited briefly, it would seem that there is no room, there is no requirement that an effort be made to accommodate.
It is not the kind of a case where we act -- we are at a loss with respect to congressional policy because we say the statute on its face and the legislative history is clear that whatever erosions or intrusions or inroads into Norris-LaGuardia were going to be made, were being made specifically and in a very limited fashion.
And I don't believe that on the basis of that kind of a showing, we can assume that other erosions were made that were not referred to.
There are other cases which this Court considered, I believe in Lincoln Mills in which what appeared to be an injunction covered by the literal language of Norris-LaGuardia was held not to be and these other railway cases to which I referred earlier.
There of course what the Court was trying to do was to accommodate the legislative declaration as to the requirement of the railway employer to bargain, to require labor unions to represent their members fairly.
It found that the kind of injunction that was considered was not the kind of injunction which was before the Congress when Norris-LaGuardia was being discussed and found that the Section 7 test were clearly in apposite and therefore concluded that there would be no erosion, there would no interference with Norris-LaGuardia, there'd be no violation of Norris-LaGuardia Act in the event that injunctions were issued in those cases, I would -- I would emphasize here as distinguished from Lincoln Mills and the other railroad cases other than the Chicago River case that we are dealing with that kind of act which under Section 4 of Norris-LaGuardia is not to be restrained in any way.
And Mr. Justice Frankfurter said, of course Norris-LaGuardia does not inhibit the federal courts from exercising jurisdiction in all labor dispute cases.
That is so, but it does say to the federal court that it has no jurisdiction with respect to particular kinds of activities which are peaceful, non-violent, non-fraudulent, picketing and inducing their right to strike and striking being those kind of activities.
So, we're dealing here with rights which had it special in a particular shelter under Norris-LaGuardia and surely those rights are not to be set aside because a right of action for a breach of contract was placed in the jurisdiction of the federal courts.
Unknown Speaker: : Mr. Previant, [Inaudible]
Mr. David Previant: I was hoping I didn't have to but surely, I would.
The issue was raised on the petition for cert at which time we filed a brief, the issue has been raised again by the respondents here and we have not filed a reply brief.
We think that our brief already on trial would answer it.
The suggestion of mootness is based upon the fact that this particular contract did expire January 31st, 1961.
There's no question about that.
We would urge the court regardless of that to consider case because it's a Norris-LaGuardia case. Of course the Norris-LaGuardia Act indicates that they want a special treatment of adjunctive case, but we believe that on the law, we are entitled to a review here because under the Act, the employer who petitions for an injunction is required to post a bond not for cause, but for damages.
Unknown Speaker: : Was the bond posted [Inaudible]
Mr. David Previant: That bond was posted.
That bond is still here.
We say that upon a determination by this Court and we have a right to a determination by this Court, we may levy against such bond for the damages that were caused as a result of an improvident or an issuance of the injunction or the issuance of an injunction without jurisdiction.
Unknown Speaker: : I'm not -- I'm holding the wrong the impression. My impression was that no bond had been posted which is wrong and no request for a bond has been made [Inaudible]
Mr. David Previant: I would have to say to you frankly that if that is the fact, it is the first time I hear it.
Unknown Speaker: : Well, I don't know.
Mr. David Previant: I have assumed --
Unknown Speaker: : I thought it was the intent [Inaudible] --
Mr. David Previant: No.
Unknown Speaker: : [Inaudible]
Mr. David Previant: Oh, as I understand the reply that has been filed here -- Mr. Miller had called to my attention at page 14 of the record, there's a reference to a thousand dollar bond.
Unknown Speaker: : [Inaudible]
Mr. David Previant: The other point that is still pendent in connection with this question of mootness is that the union, after having been restrained by the District Court, used the grievance procedure for the purpose of taxing its cost to the employer claiming that when the employer went into court without the employer having invoked the grievance procedure, the employer violated this contract and that it was put to damage.
Before that particular grievance could be processed, the employer brought the matter back to the federal district judge who held that all of these matters were simulated within the judgment which he had entered and restrained the union from proceeding in its claim for damages because the employer has violated the contract in going to court rather than submitting to grievance procedure.
So we believe that on two counts, there is a live issue --
Justice Hugo L. Black: Did you say fourth -- page 14 of the record as [Inaudible] --
Mr. David Previant: That's at page -- at --
Unknown Speaker: : [Inaudible] -- top of 15, isn't it?
Mr. David Previant: I beg your pardon, top of page 16.
Justice Tom C. Clark: 16.
Mr. David Previant: 16, yes.
Justice Hugo L. Black: [Inaudible]
Mr. David Previant: May I reserve, Your Honor.
I would make -- I would make this final observation, if the Court please?
The respondent's brief makes a very moving argument.
Now, what respondents considered to be the injustice of any rule which would permit the enforcement of collective bargaining agreements under Lincoln Mills against the employers and against the union, but not to the full scope of equitable relief.
This is a question which this Court probably knows has been particularly alive since Lincoln Mills, since Bull.
There's a question however that we very, very earnestly suggest is to be presented to the conference.
It is a question which goes to policy not to judicial inventiveness.
We have shown, we believe by the legislative history here, that the Congress was aware of the problem.
It handled it in the manner that it did.
As I suggested in the past, when the Congress felt that certain problems required treatment because of certain injustices which may have arisen as a result of Norris-LaGuardia.
It found ways of relieving in that pressure doing very little violence to the principle which underlies Norris-LaGuardia.
The principle here is a strike, its picketing, and I would emphasize again, it is a non -- a strike or picketing because there has been a claimed wage violation or hour violation.
It's a strike and picketing to organize -- unorganized workers, the precise situation contemplated by the framers of Norris-LaGuardia.
We say under these circumstances, impassioned and moving pleas against injustices which may result should be put to the forum which in our opinion is the only one that is competent to undo that which it did in 1932.
Chief Justice Earl Warren: Mr. Miller.
Argument of Malcolm Miller
Mr. Malcolm Miller: Mr. Chief Justice, if the Court please?
Like in all matters that come before the Court, we come here with some knowns and one big unknown.
We know that the union in this case violated its contract and tied up the respondents' businesses so they had no businesses.
We know that in doing so, they did so when they stipulated in court that it caused irreparable injury, that the employers had no adequate remedy at law and could proceed, if at all, under the Labor Management Relations Act of 1947 which the Court provided as all Your Honors know that either unions or employers can in industries affecting commerce and that includes the one we have here before you now, go to the federal courts to enforce labor contracts.
Our question is, does that statute mean what it says?
Can we enforce the labor contracts which the union had with the employers here?
The District Court said, “Yes.”
The Court of Appeals said, “Yes.”
The matter is now for Your Honors' determination.
Justice William O. Douglas: Was there an agreement to arbitrate in terms of a promise or was it just optional?
Mr. Malcolm Miller: Well, there is an elaborate grievance procedure.
I think that counsel is correct.
Justice William O. Douglas: I don't -- I don't find it in the record.
If -- would you hand it up to the -- would you give it to the --
Mr. Malcolm Miller: Well, the part -- a portion of it if Your Honor please is in the record beginning at page 9.
Justice William O. Douglas: Yes, I -- but I didn't --
Mr. Malcolm Miller: But the entire contract, I will tell you how it has occurred in all likelihood although I had nothing really to do with the record in this Court being the respondent here.
The contracts themselves are printed, one over the road contract and one local cartage contract.
They were under the rules of the Court of Appeals filed in sufficient copies for all the judges rather than reproduced as a record in the Court of Appeals.
They were already printed, we just sent them up five copies each and as counsel indicates at the time it was -- the Court of Appeals worked it in this matter.
And I'm sure -- that sure that the certiorari record here has the entire contracts which are printed attached to it.
But the -- the printing done in this Court only includes the excerpts which Your Honors obviously all know across.
But to answer Your Honors' question as good as I can answer it, I think the grievance procedure is very broad in its beginning that any dispute between the parties, they will endeavor to settle peaceably following the grievance procedure.
Whether or not there is compulsory arbitration, I think depends upon several things besides that contract.
I don't think the contracts have to go to arbitration.
It says they have to go through the grievance procedure.
Here though, if Your Honors please, we don't have any dispute with them.
They didn't make any demand upon us.
They just tied up the whole business.
If we had anything to do at all, it was to go to court under the Labor Management Relations Act to seek relief and what we sought was the only relief possible to get in our situation which was an injunction.
Now, the Labor Management Relations Act says that either the union or the employers can go to federal courts that the federal court has jurisdiction without requirements of diversity in the amount of controversy so long as the case is one to enforce a labor contract.
It does not say that you bring a suit for damages.
It says you bring a suit to enforce the labor contract.
Now, actually, there's only one real way to enforce the contract and that is by equitable power.
There is nothing in 301 that says you -- the court should not have that to be in order to reach the idea, they come up with the theory that under the Labor Management Relations Act of 1947, there is no -- there are no equity power.
Counsel must go back to 1932 and look at Norris-LaGuardia.
Keep going back to an older act to try to say that the plain words in 301, a later Act do not mean what they say.
They say the federal court shall have jurisdiction to enforce labor contracts.
They go back to Norris-LaGuardia and say, “Look, the breach of a collective bargaining agreement is protected activity under Section 4.”
It's a labor dispute under Section 13 of Norris-LaGuardia.
I submit to Your Honors, it cannot be.
It would be the strangest anomaly yet.
If the Norris-LaGuardia which was passed to ensure a more equal mutual bargaining between unions on the one hand and employers on the other, so that they could arrive at collective agreements, were used to ensure that collective agreements once arrived at could be brief within hearing.
Justice Felix Frankfurter: But Mr. Miller, if I may say so, you're leaving out the real purpose and drive and force behind what we say when we say Norris-LaGuardia Act.
It was the concern for parties at tort; it was a concern for the federal courts and their relations to local cont -- other local controversies.
Mr. Malcolm Miller: Well, if Your Honor please, certainly it's true.
Justice Felix Frankfurter: And that is just as valid in 19 -- that was just as valid in 1947 as it was in 1932 and what you're saying is that when we have a statute which says enforce, we must shut our eyes to everything else except to say, here is a contract between two people and enforce -- usually carries with it not only damages, damage remedy but injunctive remedy and that we must shut our eyes completely to a consideration which was wholly unrelated to that namely the place of the federal courts in our scheme of things.
Mr. Malcolm Miller: Well now, if Your Honor please, I'd like to address myself exactly what you say because I don't think this is true.
Most certainly, I agree with Your Honor that ordinarily to enforce means all the two enforcements.
Damages ordinarily are not a way to enforce the contract.
They're to put a bar in it to keep you from violating it but their suit for violation, that's what their purpose [Inaudible] Now, quite obviously in (Voice Overlap) --
Justice Felix Frankfurter: Enforce means mandatory injunction, specific performance --
Mr. Malcolm Miller: Certainly.
Justice Felix Frankfurter: -- is that enforce mean?
Mr. Malcolm Miller: Well, enforce means that (Voice Overlap) --
Justice Felix Frankfurter: When you (Voice Overlap) --
Mr. Malcolm Miller: -- that it means -- that it means equitable power.
Justice Felix Frankfurter: Well, does it?
Mr. Malcolm Miller: Well, that's the only way really to enforce the contract.
A suit for damage is a suit for breach of a contract.
Justice Felix Frankfurter: Well, then lots of -- lots of contracts that are not enforced as a matter of balancing conveniences --
Mr. Malcolm Miller: But that's why -- what it --
Justice Felix Frankfurter: -- and you can go in to the court of equity will refer you to money damages.
Mr. Malcolm Miller: Yes.
Justice Felix Frankfurter: What I'm saying is you -- for me at least, you have to address yourself to the exclusion from your consideration of the, for me, the vital facts about the Norris-LaGuardia Act namely the restriction upon the doing of things by the federal court which brought them into dispute.
Mr. Malcolm Miller: Yes, now, I will like to get just to this Mr. Justice Frankfurter.
It's most certainly true in 1932 the courts were in this dispute so far as Congress was concerned why it passed the Norris-LaGuardia Act.
Justice Felix Frankfurter: I don't mean generally in this dispute, in the exercise of this jurisdiction or --
Mr. Malcolm Miller: That is right.
Justice Felix Frankfurter: -- butting into labor controversy which really belongs to the state courts.
Mr. Malcolm Miller: And the Congress -- the Congress felt so insensitive by it that they did and I think it was for the first time, at least it's for the first time according to some of the commentaries, I haven't checked if these -- if this is true.
For the first time, passed a public policy statement right, in line and right along with the Norris-LaGuardia Act, Section 2 of the Act in which they pointed out that the court had gotten into labor relations where the Congress felt they should not be and had kept the real forces which would make for mutual bargaining between [Inaudible] from taking place.
They pointed out that it was the policy of Norris-LaGuardia to ensure that workers could band together, could join unions so that they could collect doubly, bargain with the equality, but the employer --
Justice Felix Frankfurter: I don't agree with that.
Mr. Malcolm Miller: -- with [Inaudible]
Justice Felix Frankfurter: I don't agree to that.
Mr. Malcolm Miller: That's what the public policy statement is, if Your Honors please.
Justice Felix Frankfurter: Yes, I know it says that with the driving forces, you will read the most powerful speech in the Senate, for that matter in either house in support of that Act, it is from Senator David Reed from Pennsylvania, one of the most conservative men then in politics who spoke that of -- practitioner of extensive practice on behalf of heavy industry in which he said forth his experience why it was undesirable to have things -- this kind of litigation in the federal courts.
Mr. Malcolm Miller: Well, I understand Your Honor that you -- your point is that the federal courts were not to enter this area.
I think the public policy statement bares it out.
They followed it in Section 3 that the Congress itself and they provided that this is what should be read by the courts in construing this Act, that the contracts not to join unions, not to collective bargaining would be unenforceable.
But if Your Honor please, that's not our situation as we're here before you today.
The Congress has spoken again, they spoke in 1947 and this time, they also had a policy in mind.
They changed their minds.
They decided there was a place for the court in labor relations and that ways -- was one [Inaudible] narrow one so far as we're here and that was to ensure that labor contracts once they were entered into would be enforceable.
Justice Felix Frankfurter: Show me a single statement in the debate on the Taft-Hartley Act in which there's any indication of a change of view by Congress that the federal court should not as a matter of equity go and make injunctive relief except where Congress specifically made that change.
Mr. Malcolm Miller: But if Your Honor please, Mr. Hartley himself in answering a question on the floor and it's in the (Inaudible).
That exactly, that it embraced both equitable relief injunctions and actions for damages.
Justice Felix Frankfurter: So, that some of it -- there were some specific changes that they particularized --
Mr. Malcolm Miller: Well, now -- I would like to (Voice Overlap) --
Justice Felix Frankfurter: -- and Judge -- and Judge Clark -- as Judge Clark sets forth in the Bull case.
Mr. Malcolm Miller: I would very gladly go to that one right now.
Most certainly, the House believed in mutuality of remedy so far as a labor agreement, once the bargaining process was over, the labor agreement was made for any in violation of that rule, there's no question this is true, they specifically so provided in what they passed in the first instance.
The Senate version was somewhat different.
It's certainly also true.
They provided both for suits in federal courts and for administrative action so that you go first to the board and from the board to the federal courts.
With the difference between the arguments, the matter was referred to Congress, but if Your Honor please, they had both determined already that the courts had a place in labor relations and it was to enforce with injunctions if necessary labor contracts so that neither the employer or the union would violate those contracts.
Justice Felix Frankfurter: But Mr. Miller, you can't --
Mr. Malcolm Miller: Now --
Justice Felix Frankfurter: When you talk at large, the -- what the House proposed they threw out and what the Senate did was restricted.
Mr. Malcolm Miller: But now if Your Honor please, the Conference had to put the two together.
They took from the -- actually, they passed the Senate version taking away the administrative portions before the NLRB, that's what they passed.
Justice Felix Frankfurter: A little thing like that, a little thing like that.
Mr. Malcolm Miller: But, if Your Honor please, isn't it more important that the House as it both already made up their mind what they did, it isn't the Conference Committee that passed this Act, it's the Congress that passed this Act.
Both Houses had decided that this was a place for the federal court.
The Conference Committee report said, “We will leave the enforcement of labor contracts to the usual processes of the law -- by the usual processes of the law.”
Justice Felix Frankfurter: Did they say that, “We leave it to the usual process of the law?”
Mr. Malcolm Miller: That's what the Conference Committee report says.
Justice Felix Frankfurter: The usual processes of the law?
Mr. Malcolm Miller: Yes.
Justice Felix Frankfurter: Those words?
Mr. Malcolm Miller: That is correct, if Your Honor please --
Justice Felix Frankfurter: The discussing of -- without any record to the Norris-LaGuardia (Voice Overlap) --
Mr. Malcolm Miller: Without any reference to the Norris-LaGuardia Act, they just said we will leave it to usual processes of the law.
Justice Felix Frankfurter: Without any reference -- you say that by that statement, they impliedly repealed the Norris-LaGuardia Act?
Mr. Malcolm Miller: I don't say by that statement they impliedly repealed the Norris-LaGuardia Act but they don't think the Norris-LaGuardia ever applied in the situation in the first place.
Justice Felix Frankfurter: But that's a different story, isn't it?
If that's true then we haven't got a (Voice Overlap) --
Mr. Malcolm Miller: I think if that's true, it's the easy the way to go in it and I think it is true.
Justice Felix Frankfurter: Alright.
I'm not (Voice Overlap) --
Mr. Malcolm Miller: I think it is true, if Your Honor please, because there is nothing in what we are here asking this Court to answer that stops any union, any employee from banding together and making a collective agreement.
All we are here concerned with is whether once that agreement is made, can you hold them to it?
Now, Norris-LaGuardia wasn't that keeps such agreements from being made.
Most certainly, no one ever suggested that in the legislative history of Norris-LaGuardia certainly indicates, no one, I'm certain to suggest that those collective agreements, the unions were so anxious to have the right to make and that Congress agreed most certainly, this is a good thing.
They were supposed to then violate.
They were concern to Norris-LaGuardia although you're going to violate a collective agreement.
They were concerned in your right to make such an agreement.
We are here concerned with -- can you hold them to the bargain that they made.
Justice Felix Frankfurter: Really Mr. Miller, they were concerned in Norris-LaGuardia no matter how [Inaudible] the agreement is, you cannot get in an injunction in a labor controversy in the federal court subject to qualification but must go to the state court because you don't want to embroil the federal courts in this kind of business.
Mr. Malcolm Miller: But the Congress put the federal courts in business.
Justice Felix Frankfurter: Yes, but whether it did it by way of injunction is the issue here.
Mr. Malcolm Miller: Yes, I understand if Your Honor please, it may be and I maintain in this part of my argument in our brief that Norris-LaGuardia never applied to our situation here.
Justice Felix Frankfurter: No, I was (Voice Overlap) --
Mr. Malcolm Miller: So, you don't have to get to the problem of accommodation although more certainly I think you could arrive at it in this direction and it may be that for many minds have not used, to say look, we see the real abuses, the real feeling for Norris-LaGuardia on the one hand and the Labor Management Relations Act on the other and we can reconcile it.
We can accommodate the two to make out of two labor statutes, one, cohesive hold.
If one went to the state court to enforce then we have the problem of getting into -- we have 50 states, are they all going to come out alike?
I understand that the Court has such a case either on its docket now or it would shortly be on this docket, I have deliberately stayed away from this portion of it because that is the entire case, we went to the federal court and the Labor Management Relations Act --
Justice William J. Brennan: Mr. Miller, may I ask --
Mr. Malcolm Miller: Surely.
Justice William J. Brennan: I gather the procedure, whatever its steps are under this agreement was not in fact followed, was it?
That is, were any steps of this grievance procedure followed?
Mr. Malcolm Miller: That is correct if Your Honor (Voice Overlap) --
Justice William J. Brennan: They were not --
Mr. Malcolm Miller: There were none of them followed.
The union first wrote the letter and said, “Look, going to picket your plant.”
The next thing they -- everybody walked off the job, they were placed, they were all tied up.
Business is -- was done (Voice Overlap) --
Justice William J. Brennan: Do you make any point even though this has no terminal compulsory or binding arbitration, do you make any point that nevertheless under Lincoln Mills and 301, the failure of the union to resort to those procedures or what they were of itself justified under Lincoln Mills and 301 and statutes --
Mr. Malcolm Miller: Let me give Your Honor please, when they bypass any grievance and instructions, I've got no quarrel with them putting up a picket and to advertise anything under the sun.
I only quarrel with violating their agreement to keep workers.
When they struck, tied up the respondent's business, I think -- and bypassed any grievance, of course they agreed and stipulated in open court, there was no grievance.
It's the reason why they didn't go there but when they tied that up, when they struck those plants, I think we had a right at that time to go to court.
Justice William J. Brennan: Although -- let me get this, you say there's a stipulation in the case that there was no grievance --
Mr. Malcolm Miller: They have --
Justice William J. Brennan: – which would make this procedure applicable?
Mr. Malcolm Miller: They have agreed then so that they had no grievance without any particular reasons.
Justice William O. Douglas: But they did go before the joint state committee at some time or other, didn't they?
Mr. Malcolm Miller: Yes.
Yes Mr. Justice Douglas.
If I want -- and I'll tell you where this came about if I may please.
Justice William O. Douglas: Please.
Mr. Malcolm Miller: Once the employers had brought their suit under Section 301 and had obtained after hearing and the putting on of evidence for both sides, a permanent injunction restraining the union from violating the contract, then the unions sent notice to the employer that it elected to go before the joint state committee and claim damages by virtue of the employer getting an injunction against the union to keep it from violating its contract.
They did not go to the joint state committee until the District Court in this action had already acted, until it had already issued its permanent injunction.
They then went before the joint state committee or sought to, maintaining they had a right to damages by virtue of the employer's action in going to court in getting an injunction.
Justice William O. Douglas: Now, what happened to their claim before the (Voice Overlap) --
Mr. Malcolm Miller: Well, as soon as that happened, they said the -- we have a right to damages because you have -- you went to court and gotten an injunction.
We went back to court that now if the Court please, we've determined this matter, the controversy between the union on the one hand and the employers on the other, right here is this Court and now they're going before a joint state committee seeking to have a -- that matter which you have determined – redetermined.
The court that it looked that way to me, the union agreed that what they were doing and stipulated that they themselves shall be enjoined from proceeding before the joint state committee and should instead if they differed with the District Court's decision appeal to the Court of Appeals and if the courts didn't like that, it would -- here's the certiorari in this Court.
Justice William O. Douglas: Did they -- did they then asked the District Court for damages?
Mr. Malcolm Miller: No sir.
If Your Honors please, they have never asked the District Court for damages in their original pleading or anything filed subsequently.
Justice William O. Douglas: But the bond is a thousand dollar bond.
Mr. Malcolm Miller: Now, the reason for the bond if Your Honor please is not because of the Norris-LaGuardia Act at all because we didn't proceed pursuant the Norris-LaGuardia Act.
We proceeded under the Labor Management Relations Act and we posted a thousand dollar bond clearly and simply because this is a requirement in our court on a temporary restraining order.
Justice Felix Frankfurter: If this case could be reversed, the liability could be addressed on that bond?
Mr. Malcolm Miller: I take it this is possible if Your Honor please.
Justice Felix Frankfurter: So the case did not -- were moot.
Mr. Malcolm Miller: If Your Honor please, again, you're bringing up the point.
I filed a suggestion for mootness because I thought it's my duty to file a suggestion.
I am not up here arguing.
I would much prefer that your -- Your Honors answered the merits of this case and I would proceed (Voice Overlap) --
Justice John M. Harlan: Would you go so far as to withdraw it?
Mr. Malcolm Miller: I --
Justice John M. Harlan: [Inaudible]
Mr. Malcolm Miller: It is in the manner.
I didn't file a motion so I can't withdraw.
I did what I conceive to (Voice Overlap) --
Justice John M. Harlan: (Voice Overlap) -- you're not pressing it?
Mr. Malcolm Miller: I am not pressing it.
Justice Charles E. Whittaker: You do concede that if the case should be reversed, damages to the extent of the penalty of the bond might be assessed on it.
Mr. Malcolm Miller: If Your Honor please, I have not briefed this point but I think it's entirely possible that that is correct.
Justice William J. Brennan: Mr. Miller, may I just come back a moment --
Mr. Malcolm Miller: Surely.
Justice William J. Brennan: -- to the question I asked you.
I just want to be clear about this.
You said that the union had stipulated that the -- there was no grievance which was -- should have been the subject of this grievance procedure.
Well, do you say the union stipulated, do you mean that the parties have stipulated this (Voice Overlap) --
Mr. Malcolm Miller: Well, the union -- the union asserted, I should put it this way.
We in our complaint allege that they had not sought to go to -- through the grievance procedure where [Inaudible].
They came back and said, “Well, we didn't have any grievance with you.”
So of course, we didn't seek any redress under the grievance procedure in this contract.
Justice William J. Brennan: Well then I'm clear you're not relying on their failure to proceed under the procedure as a basis upon which you're entitled to a restrain.
Mr. Malcolm Miller: I think when they bypassed it, if for no other reasons, we had a right to go to court.
Justice Tom C. Clark: You are relying on that though.
Mr. Malcolm Miller: This isn't true.
Justice Tom C. Clark: It didn't go through the procedures so you say you have a right to go to court.
Mr. Malcolm Miller: When they didn't go through the procedure and they went out and in effect struck as counsel very, very (Voice Overlap) puts it.
Justice William J. Brennan: That's what I (Voice Overlap) --
Mr. Malcolm Miller: We had a -- we had a right because of their action not to initiate the grievance procedure but to go straight --
Justice William J. Brennan: Well, that's what -- that was my original question Mr. Miller, whether --
Mr. Malcolm Miller: I'm sorry Your Honor.
Justice William J. Brennan: -- whether you're relying to support the restraint [Inaudible] on the failure of the union to go through this procedure, notwithstanding it has no terminal arbitration provision, as a support on the authority of Lincoln Mills in 301 for the restraints you've got entirely apart from Norris-LaGuardia consideration.
Mr. Malcolm Miller: Well, if Your Honor please, there are -- I think there are three good questions in -- behind what Your Honor is getting at.
I think the simple way of going at it is exactly the way I put it.
When the union bypassed grievances, assuming that there was anything there to have a grievance [Inaudible] I think when they bind it we had a right to go to court under 301.
Justice William J. Brennan: And on the authority of Lincoln Mills.
Mr. Malcolm Miller: And this would be true under the (Voice Overlap) --
Justice William J. Brennan: Even though Lincoln Mills involved a contract with a terminal arbitration procedure and this one does not.
Mr. Malcolm Miller: Yes, and I think there comes the second question I mean, since Lincoln Mills, when you have agreed to proceed in this manner is, is there in the law which Your Honors maintained must grow up in this area.
Does this contract really provide for compulsory arbitration, albeit, it doesn't say so in so many words.
I can't answer this question if Your Honor please because I didn't reach this point.
I have not gone into it except (Voice Overlap) --
Justice William J. Brennan: Well, I know (Voice Overlap) --
Mr. Malcolm Miller: [Inaudible] of the question.
Justice William J. Brennan: But I'm asking this on the premise that this procedure does not provide for terminal arbitration, does not provide for terminal arbitration (Voice Overlap) --
Mr. Malcolm Miller: This contract does not have the compulsory arbitration feature --
Justice William J. Brennan: It does not.
Mr. Malcolm Miller: -- which (Voice Overlap) --
Justice William J. Brennan: Nevertheless, finds several steps of a procedure under rather a lot of procedures.
Mr. Malcolm Miller: That's right.
That is correct.
Justice William J. Brennan: And your point is that under the 301 the failure of the union to proceed in that manner if they had a grievance under this contract --
Mr. Malcolm Miller: Certain --
Justice William J. Brennan: -- entitles you to injunctive relief on that Lincoln Mills -- the decision of Lincoln Mills supports you even though in Lincoln Mills there was a terminal --
Mr. Malcolm Miller: I think this is correct Your Honor.
I think there is another theory we could also go on.
As long as -- and this one aside from the arbitration cases, that if a union by -- or an employer and hasn't -- this is not a one way street I am arguing for, if a union or an employer violate its labor contract, its collective bargaining agreement, one with the other, either one, the injured party may go to court to obtain an injunction restraining such violation.
It may well be and I am aware that they -- we are here -- it's very difficult to make a pure case for it because there may well be a problem as to whether or not the contentions of the parties show that there is a matter which needs to be arbitrated before the Court can determine whether there is a violation of the contract.
We don't have that in this case and I therefore have not gone into that which I consider it's quite a matter by itself.
Justice William J. Brennan: But do you think 301 would go so far as to entitle the party claiming a breach immediately to go into court without first exhausting the grievance procedure whatever it may be whether it ends up in terminal arbitration or not.
Mr. Malcolm Miller: I think it's quite possible Your Honor for it to be either way depending upon what the violation is.
Justice William O. Douglas: I notice your complaint though isn't the counts in terms of seeking specific enforcement of a contract to submit to the grievance procedure is much broader than that.
Mr. Malcolm Miller: Yes it is, if Your Honor please.
Justice William O. Douglas: You didn't draw it in light then of 301.
Mr. Malcolm Miller: We -- its brought under 301 if Your Honor please.
Justice William O. Douglas: It doesn't confine to the --
Mr. Malcolm Miller: It was -- it was -- I didn't --
Justice William O. Douglas: -- to the enforcement of --
Mr. Malcolm Miller: -- myself draw the complaint.
I have read it many times.
The theory of the complaint was that the court had jurisdiction under Section 301 to enjoin a violation of a collective grieve -- labor contract.
The Section is itself called to the court's attention.
Now, I think it is -- the case has been withheld every time you go under the step, you refine it a bit more.
And by the time it gets down to the argument here, sometimes it's -- it looks a little more appealing from where it began.
But to answer Mr. Justice Brennan's question, it is my view and it is my position that when they bypassed grievance and struck first, that we had a right under Section 301 to go to court --
Justice Hugo L. Black: Why would that --
Mr. Malcolm Miller: -- speaking to enforce --
Justice Hugo L. Black: Why would that have given you any more right to an injunction then it would've been given on to something else?
Mr. Malcolm Miller: Well now, if Your Honor please, you've touched a real good point.
Justice Hugo L. Black: Do you not -- do you not still have to meet the problem of whether or not 301, that Act, implicitly repealed theNorris-LaGuardia Act?
Mr. Malcolm Miller: Well, we still -- we -- this -- as you put it, Mr. Justice Black, only entitle us to go to court.
We still have to then show that we have such a case or the 301 is such a statute that we are entitled to an injunction.
Justice Hugo L. Black: Do you -- despite the Norris-LaGuardia and that therefore it's to that extent explicit to repeal Norris-LaGuardia Act?
Mr. Malcolm Miller: Now, I don't think if Your Honor please (Voice Overlap) --
Justice Hugo L. Black: I mean, implicit (Voice Overlap) --
Mr. Malcolm Miller: -- to get them into a repeal of Norris-LaGuardia, but I would gladly address myself to Your Honor's problem.
When we file such a complaint, we must, number one, forget Norris-LaGuardia with me for just a moment because it has this -- there's a two-edged sword here.
We must number one show we're entitled that relief in any event.
This of course depends on many things, as everyone of us are well aware, you're not entitled to go to equity as long as you have an adequate remedy at law.
We plead we did not have one.
The union agreed with us that we did not have one.
They said most certainly, “We'll agree” and they did stipulate in open court that we were caused irreparable injury and had no adequate remedy at law because the union had no funds with which to refund the damages.
Therefore we got down to one problem where we had two before, now we just have one, does 301 allows the court to issue an injunction?
We got an injunction kind of case now if it only is broad enough to encompass the injunction.
Justice Hugo L. Black: Don't you have to add one clause to that kind of -- despite the prohibitive statements of the Norris-LaGuardia Act?
Mr. Malcolm Miller: Well, I know that this is where Your Honor wants to get [Attempt to Laughter] and I'm not ignoring Your Honor in getting (Voice Overlap) --
Justice Hugo L. Black: Well now, how could you get away from it?
How could you get away from it?
Mr. Malcolm Miller: I think that -- I think what you have to do number one, if Your Honor please, is look to the Labor Management Relations Act.
I think you look to the Norris-LaGuardia Act, not want.
My difference with Your Honor is not that I wanted to keep what obviously would have to be in it, but it's the procedure in which you get there.
Justice William J. Brennan: Well, Mr. Miller, if I may interrupt just this much, would there not have been an intermediate statute, not that you sought an injunction but sought a mandatory injunction if you please, requiring the union to proceed in compliance with the contract grievance procedure?
Mr. Malcolm Miller: I think this is a possibility.
I think this is another means of getting at the problem.
Justice William J. Brennan: Well, I'm just wondering why wouldn't that come before you finally got to the ultimate of a -- of the injunction.
Mr. Malcolm Miller: Well, if Your Honor please, I think because of a principle of law which we went into below which nobody has brought up or even made a point here until Your Honor brought it up and I thought this is what Your Honor was getting at in the first instance when you first started asking these questions.
There is if one side first violates a contract here, striking to that going to grievance, that what duty the other side has to go to grievance is excused because of the first violation and there is quite a body of law in this area and I don't mean to get around with Your Honor's question at all because I think this is one other way of going at it.
For example, let's assume that they go into arbitration in the first instance, and I'm aware that we have compulsory arbitration because this is a bit different than -- which Your Honors asked in Lincoln Mills and the arbitrator had determined that there was not here any dispute between the parties, that's the most certain they had agreed that they weren't going to stop the works.
In the light of this contract, they were going to remain on the job if they wanted to advertise and get other people in.
They're going to have to make a deal with their own union so that they did work behind those banners.
And notwithstanding that they determined this, the union had members decide, “We're not going to work behind those banners will also lost the job” then I think we would again have the problem of [Inaudible] -- to try this specifically enforced the arbitrator's word or you can try to get it.
It was pending and had (Inaudible) -- an injunction from the court restraining and holding the status quo until it has then determined.
But I think in -- while those are definitely procedures that might take place, if -- and this matter comes here with this already determined, if there has been a violation of that collective agreement, of the labor contract, the big problem we have to answer is, can the federal courts enforce that contract whether they go into arbitration or not, is at this point I think not material, it might be.
Justice William J. Brennan: Well, I'm wondering for your purposes that there has been -- that you had sought and obtained here an order requiring the union to go with you through the grievance procedure and meanwhile, to restore the status quo, if you wouldn't have accomplished what you needed without [Inaudible] against this LaGuardia problem.
Mr. Malcolm Miller: I think you're going to hit the same kind of problem (Voice Overlap) --
Justice William J. Brennan: They wouldn't be anyway --
Mr. Malcolm Miller: -- the way that you go at it if Your Honor please.
Justice William J. Brennan: After all under --
Mr. Malcolm Miller: I think --
Justice William J. Brennan: As I recall the Norris-LaGuardia where its applicable would require you in the first instance to establish you as a plaintiff speaking injunctive relief does it not that you establish that you have exhausted all the (Voice Overlap) --
Mr. Malcolm Miller: If these --
Justice William J. Brennan: -- procedures before you get injunctive relief.
Mr. Malcolm Miller: That is one of the prerequisites but I think it gets back what Mr. Justice Black started to ask and the first thing, that you've got this -- get in to both of these statutes and we're not going to be able to forget either one of them.
On the one hand, to read with me, the Labor Management Relations Act first, and the Norris-LaGuardia Act then second put them together.
While as I understood his question, he got the Norris-LaGuardia before I got to court because I got the court with the Labor Management Relations Act.
Is that --
Justice Felix Frankfurter: Mr. Miller --
Mr. Malcolm Miller: Surely.
Justice Felix Frankfurter: Just as a matter of information, Kansas has a little Norris-LaGuardia Act, has it?
When was it passed?
Mr. Malcolm Miller: Kansas does not have --
Justice Felix Frankfurter: Does not have.
Mr. Malcolm Miller: -- a Little Norris-LaGuardia Act.
New York has, I know, I've --
Justice Felix Frankfurter: Well --
Mr. Malcolm Miller: -- read some of the cases and then cited some to the court with you but Kansas doesn't have.
Justice Felix Frankfurter: (Voice Overlap) -- Kansas doesn't have.
Mr. Malcolm Miller: Kansas does not.
Justice Felix Frankfurter: Does Missouri have one?
Mr. Malcolm Miller: I don't know Mr. Justice Whittaker would be able to tell me.
I do not recall whether they do or not.
But if Your Honors please, I just like to leave you with just one thought and I know the problems aren't easy, and I probably read on the appendix to the point where no longer am -- I could, if ever I could be as a lawyer with an adequate -- anybody who had outcome biased it that I had upon it.
Justice Charles E. Whittaker: May I ask you Mr. Miller, does the union concede -- did they stipulate that you had no adequate remedy at law?
Mr. Malcolm Miller: They did, if Your Honor please, explicitly.
Justice Charles E. Whittaker: Well now, what does that do towards eliminating any possible need for exhaustion of any contract provisions?
Mr. Malcolm Miller: I think it has a definite bearing on it, if Your Honor please.
I think when I started to answer Mr. Justice Black's question.
When they did this, we got over the first big hurdle which otherwise we've had through and they weren't doing it to be cure at all.
They're only doing it because they agreed this was the situation.
We then had a case ripe for equity if indeed, Mr. Justice Black, that the federal court could exercise equitable powers.
Justice Charles E. Whittaker: So thereby this stipulation as I understand, you have taken out everything except the question that you're arguing here namely is there power under 301 to enforce the agreement once it was made.
Mr. Malcolm Miller: I think if Your Honor please, that is exactly correct.
Justice Hugo L. Black: You would say to enforce the agreement by issuing an injunction?
Mr. Malcolm Miller: That is correct if Your Honor please.
Justice Charles E. Whittaker: Well, if that's the only way it could be enforced, why of course, enforce does just as well.
Mr. Malcolm Miller: I understood you both to say the same thing.
Justice Charles E. Whittaker: How do you enforce the breach of a contract -- you prevent the breach of a contract normally except by enjoining it's [Inaudible]
Mr. Malcolm Miller: I don't know any other way if Your Honor please.
But I can't say that Mr. Justice Black's question, because I'm quite well aware that doesn't make any difference if the court doesn't have any jurisdiction against using injunction.
I maintain and it is of course my position that you can't read out the broad version of 301 passed in 1947 by the Norris-LaGuardia Act of 1932 particularly when you've got to keep in mind, we aren't trying to keep the union from bargaining the thing which Norris-LaGuardia was brought.
We're only trying to hold them to their bargain that they already made.
Justice Felix Frankfurter: Do you think the only way of stating the problem is that you have to read out 301? Is that the real issue or they have to read it out?
Mr. Malcolm Miller: I think you have to read it out, yes, if Your Honor please.
Justice Felix Frankfurter: Well --
Mr. Malcolm Miller: 301 says --
Justice Felix Frankfurter: You think no other collocation of words would fairly state the issue.
Mr. Malcolm Miller: Well, I cannot say that that's true if Your Honor please.
There's no doubt in many ways to state it but I think that you've got to start with the -- what 301 says and it says that a union or an employer may go to federal court and that court does have jurisdiction regardless of diversity to enforce labor contracts, that's a broad conviction.
Justice Felix Frankfurter: That's right.
But in any legal -- if anybody can decide any problem -- if only one principle is involved, that's easy.
Mr. Malcolm Miller: I don't want to stop there.
Justice Felix Frankfurter: Every question -- every question that comes here usually has a multiplicity of factors which have to be dealt with and because 1947 is later than 1932, it doesn't mean that the language of 1947 has such commanding literalness of meaning that that is the overriding consideration.
Mr. Malcolm Miller: I don't mean to suggest if Your Honor please that that is the only consideration.
I think that's the starting point.
Most definitely I agree with you that then you must examine Norris-LaGuardia Act to see if in fact if on its face, from its public policy statement, from the contracts it maintains are not enforceable which most certainly aren't collective agreements?
Justice Felix Frankfurter: But when you come to -- come to the question when we deal with the question of construing a statute and we construe it one way rather than the other, I suggest respectfully that it isn't the most illuminating way of putting it to say that you read out the construction that you find is not in it.
Mr. Malcolm Miller: Well, but if Your Honor please, you're not -- you aren't getting what I thought I would say.
What I say is that to maintain that the Labor Management Relations Act does not include injunctions, requires you to read something in that statute that isn't already there.
Justice Felix Frankfurter: It maybe for you but not for me.
Mr. Malcolm Miller: Well, I don't know any (Voice Overlap) --
Justice Felix Frankfurter: Because I (Voice Overlap) --
Mr. Malcolm Miller: (Voice Overlap) Your Honor please --
Justice Felix Frankfurter: Because as I say, it's a question of construction, and when I have one statute which clearly has to be considered with another statute, I don't begin with either the reading out or reading in.
I go through the elaborate complicated process of finding out what that statute means and when I have found that in relation to all of relevant factors, I haven't read anything out that I have concluded isn't in it.
Mr. Malcolm Miller: I have -- I don't have any quarrel with Your Honor at all.
It's purely and simply that I don't speak as well because I am most certain that this is the way to construe a statute.
And when I was speaking to Mr. Justice Black, I felt like a authority with the Labor Management Relations Act and purely and simply because it's much easier for me to do [Inaudible] already, from the 1932 Act.
Justice Hugo L. Black: Have you started after -- then you start with it because before that, you could not possibly have gotten an injunction.
Mr. Malcolm Miller: Well, before that, I couldn't go on the federal court at all.
Justice Hugo L. Black: You didn't -- well, you couldn't have gone to the federal court and you've gotten an injunction.
You specifically could've gotten an injunction in a labor dispute.
Mr. Malcolm Miller: If --
Justice Hugo L. Black: Now, the question is whether this enabled you to get an injunction in a labor dispute despite the Norris-LaGuardia Act?
Mr. Malcolm Miller: Except for one thing if Your Honor please, there's a violation of a collective agreement.
Is that --
Justice Hugo L. Black: Suppose there is, it's still a question of whether you can get an injunction under the -- despite the Norris-LaGuardia Act.
Mr. Malcolm Miller: Yes, that's the question.
Justice Hugo L. Black: That is the only question.
Mr. Malcolm Miller: That is the question, most definitely.
Justice Hugo L. Black: You agree -- you agree amongst yourselves that you've got an equity -- you've got a right to bring action, to enforce your contracts but you disagree on whether or not the Norris-LaGuardia Act says you cannot enforce this by means of an injunction.
Mr. Malcolm Miller: That is certainly true.
Justice Hugo L. Black: That's all that is (Voice Overlap) --
Mr. Malcolm Miller: That's certainly true.
Justice Hugo L. Black: [Inaudible]
Mr. Malcolm Miller: And I maintain that for two reasons.
The Norris-LaGuardia doesn't do it, doesn't stand in the way of enforcing the contract by the injunction and it's because a violation of a collective agreement which we have here.
That's the matter we have before the court isn't Section 4 protected activity or a Section 13, may be a dispute and if there is any real question of that, that you must read the two statutes together and see if you can't do harmoniously, harmonize the two to make -- to ensure that the purpose of Norris-LaGuardia and is for a basic purpose to promote collective bargaining agreements.
If not, curtail and I submit it would not be by enforcing the provisions of the collective bargaining agreement.
See we are here tampering with bargaining, we're here in trying to ensure that the bargain made is kept.
Justice Hugo L. Black: You're trying to ensure it like in an injunction.
Mr. Malcolm Miller: And the only way --
Justice Hugo L. Black: (Voice Overlap)
Mr. Malcolm Miller: -- we can ensure is to get the injunction.
That's the only thing -- its only the way we could ensure it if Your Honor please.
Justice Hugo L. Black: And you couldn't do it if this other Act hadn't in some way taken the appeal or cut out a part of the Norris-LaGuardia Act, couldn't you?
Mr. Malcolm Miller: Well now, this is --
Justice Hugo L. Black: Could you?
Mr. Malcolm Miller: I think you can if Your Honor please.
Justice Hugo L. Black: Well, you think (Voice Overlap) --
Mr. Malcolm Miller: I think (Voice Overlap) --
Justice Hugo L. Black: -- the Norris-LaGuardia Act doesn't apply.
Mr. Malcolm Miller: That's right.
Justice Hugo L. Black: But assuming it applies.
Mr. Malcolm Miller: Oh, then we most certainly would have to call it repeal, call it accommodation, call it whatever word one wishes to use, your -- well, Your Honor, would most certainly be correct.
Justice Felix Frankfurter: In an ordinary Norris-LaGuardia in a conventional regarding the ordinary -- leave out 301 altogether where there is an agreement and an injunction is sought which was enforceable by injunction up to 1932.
All the things that you stress so much that you have a collective agreement that you've got an enforceable agreement -- enforcement.
All those things are planned.
And then Norris-LaGuardia came along and put a barrier against enforcement to injunction not because you didn't have an ironclad agreement, but because -- in my point of view, I cannot repeat it too often because the federal courts were not to be pulled into that kind of a controversy.
Mr. Malcolm Miller: But if Your Honor please, the contract, they were considered were not collective agreements. They were contracts that won't join the union.
We won't bother to get --
Justice Felix Frankfurter: Well, if that --
Mr. Malcolm Miller: -- to get a collective agreement.
Justice Felix Frankfurter: But they were also -- the state of -- laid by industrial relations was a little different, considerably different if you will --
Mr. Malcolm Miller: Yes.
Justice Felix Frankfurter: -- in 1932 from what it wasn't, 1947 as today, but even 1932, there were outstanding collective bargaining agreements.
To my knowledge, the unions that I know most about, the Amalgamated Clothing Workers and the Dress and Waste Industry, the United Mine Workers, they were collective agreements outstanding and an injunction was brought to enforce those agreements and they were enforceable by injunction and specific performance.
And 1932 came along and put a stop to it not because Congress wanted to minimize the integrity of contracts or the duty to obey them, but because they didn't want there the federal courts in that kind of litigation.
And that can't be said to all.
Mr. Malcolm Miller: If Your Honor please, there is nothing in the congressional history or Norris-LaGuardia Act dealing with collective agreement only with these restrictive things on making collective agreement.
Justice Felix Frankfurter: Do you think that before Norris-LaGuardia --
Mr. Malcolm Miller: There weren't any collective agreements though I know there were some.
Justice Felix Frankfurter: And you didn't take --
Mr. Malcolm Miller: But that wasn't the problem.
Justice Felix Frankfurter: And you think -- and you think they didn't go to the federal courts to try to enforce them.
I can assure you from personal knowledge with the Congress.
Mr. Malcolm Miller: Well, I am sure that they endeavored to enforce collective agreements and I'm right here in this Court seeking to enforce a collective agreement, but most certainly, we aren't endeavoring to keep any union any employees from banding together to make such agreements.
Justice Felix Frankfurter: No.
That's unrelated to the problem of why the federal courts were sought to be withdrawn from this area of litigation.
Mr. Malcolm Miller: Well -- but if Your Honor please --
Justice Felix Frankfurter: Well --
Mr. Malcolm Miller: The Congress puts them back in 1947 even if they did withdraw.
Justice Felix Frankfurter: [Inaudible] right about that.
Justice Charles E. Whittaker: As I understand, in 1947 long after Norris-LaGuardia, Congress said in subparagraph (a) of Section 301, suits for violation of contracts between an employer and a labor organization may be brought in any Federal District Court etc.
Now, that doesn't say that the District Court shall have -- shall enforce labor contracts except when enforcement requires an injunction, does it?
Mr. Malcolm Miller: You are correct Your Honor.
This is my point.
Justice Charles E. Whittaker: It says that they shall have jurisdiction to enforce the contract.
Mr. Malcolm Miller: It doesn't take anything away from it in enforcing it.
Justice Charles E. Whittaker: Now, do you have -- Congress surely would have the power if it had gone on, nobody would dispute it, I take it and said, all of this despite the Norris-LaGuardia Act --
Mr. Malcolm Miller: That's your --
Justice Charles E. Whittaker: -- now, did it have to say that?
Mr. Malcolm Miller: I don't think so Your Honor.
They submit it didn't that the way they wrote it, if you read the statutes together, this is what they had to mean despite the fact they diffused the words which Your Honors have given.
Justice John M. Harlan: Well, then how come they had those?
Mr. Malcolm Miller: Almost certainly Your Honor we probably wouldn't have to be --
Justice Hugo L. Black: If Congress had passed 302 (e) of the House bill --
Mr. Malcolm Miller: This would (Voice Overlap) --
Justice Hugo L. Black: You wouldn't have to be here, wouldn't you?
Mr. Malcolm Miller: This would have done it.
We would not have had to be here at all.
Justice Hugo L. Black: [Inaudible] and that the Congress had passed that bill as it was -- up to that time, it would've said the Norris-LaGuardia Act is inapplicable.
Mr. Malcolm Miller: That's right.
And you see the House --
Justice Hugo L. Black: They didn't pass --
Mr. Malcolm Miller: -- had it in their bill (Voice Overlap) --
Justice Hugo L. Black: They didn't pass --
Mr. Malcolm Miller: -- Conference Committee struck it out.
Justice Hugo L. Black: That's right. They didn't pass it, did they?
Mr. Malcolm Miller: Well, the House had passed it.
Justice William J. Brennan: Yes, I know.
Justice Hugo L. Black: I know but they --
Mr. Malcolm Miller: But their Conference struck it.
Justice Hugo L. Black: But it -- it was not passed in the bill.
Mr. Malcolm Miller: No.
Actually (Voice Overlap) --
Justice Hugo L. Black: So you have (Voice Overlap) -- you're asking for the benefit of that part of the bill which they wouldn't pass.
Mr. Malcolm Miller: I wouldn't say they wouldn't pass, Your Honor please (Voice Overlap) --
Justice Hugo L. Black: Well, they didn't, did they?
They didn't and it was the end of it.
Mr. Malcolm Miller: They didn't pass those particular words but like Mr. Whittaker said, I think when the (Voice Overlap) --
Justice Hugo L. Black: (Voice Overlap) -- it did it by indirection, that implicitly.
Mr. Malcolm Miller: Well, most of the time, they don't do it in the way we like them to do it.
I take it all Your Honors have given many of these more than I'll ever see.
But anyway, I think I've at least I've endeavored to make my point clear and I surely thank you Your Honors.
Chief Justice Earl Warren: Mr. Previant.
Rebuttal of David Previant
Mr. David Previant: Oh, just to inquire of the court -- how the court would like me to handle this matter of the contracts shall have multiple copies sent to the clerk here for distribution to the Court.
Chief Justice Earl Warren: If you can do -- if you can do that, it would be helpful.