ATKINSON v. SINCLAIR REFINING CO.

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Argument of Gilbert A. Cornfield

Chief Justice Earl Warren: Number 430, Samuel M. Atkinson, et al., Petitioners, versus Sinclair Refining Company.

Number 434, Sinclair Refining Company versus Samuel M. Atkinson, et al.

Mr. Cornfield.

Mr. Gilbert A. Cornfield: Please the Court.

This case comes before this Court on the original pleadings fi -- filed by the employer in the District Court for the Northern District of Indiana.

In that light, we must take the pleadings as well pleaded at this juncture in the litigation.

The original complaint filed by the employer was in three counts.

First was a suit by the employer against an international union and its local affiliate for breach of a no-strike clause of their bargaining agreement requesting damages.

The second count was against 12 local union committeemen for instigating and participating in the alleged breach of the no-strike clause.

I might say that the allegations of fact against the international and local union in Count I were the same as the allegations against of the 12 local union committeemen in Count II.

Count III of the complaint was against all the defendants, the international, the local affiliate and the 12 local union committeemen.

And it was a request for a blanket injunction operating into the future.

This point I wish to comment that the time the suit was brought there was no alleged breach of a no-strike clause then occurring.

I wish to state the request for the injunction contained in Count III as against the organizations and the individual defendants.

Each of them, their agents, servants, counselors and all to whom notice hereof may come be enjoined and restraint from aiding, abetting, fomenting, advising, participating in, ratifying or condoning any strike, stoppage of work, slowdown or any other disruption of or interference with normal employment or normal operation or production by any employee within the bargaining unit at the employer's East Chicago, Indiana refinery.

I might add that the broad scope of the requested injunction presumably would include new employees which may be hired at the plant in the indefinite future.

I presume that the employer would hand each new employee a copy of the injunction order along with his employment application.

The -- we filed a motion to dismiss these three counts.

The District Court, after reconsideration, dismissed Count II, that is the action against the individual defendants and their individual capacities and the requested injunction leaving Count I.

Chief Justice Earl Warren: We'll recess now, Mr. --

Mr. Gilbert A. Cornfield: Before the recess, I had indicated that the District Court had dismissed Count II of the complaint that is the action against the individual local officials and Count III of the complaint, request for the injunction.

Case at that point went before the Court of Appeals with the Seventh Circuit.

The Seventh Circuit affirmed the District Court's decision as regards to Count III and the injunction request and overruled the District Court in its decision to dismiss Count II.

I might say that the Seventh Circuit's opinion as to the action against the individuals indicates that it is the Seventh Circuit's view that the individuals might be held responsible for breach of a no-strike clause if the unions were not.

Now, in looking over the employer's complaint, Sinclair's claim for relief sounds deceptively simple.

And I believe too many years eminently fair but we submit that if individuals, local union officials are to be brought into state courts or into federal courts under diversity of citizenship jurisdiction and if the injunction requested here to operate into the indefinite future is granted, a Pandora's Box of confusing litigation will ensue before federal and state courts.

We have argued rather extensively we believe in our briefs that the net result of the suit against the individuals and the request for an injunction is continuing conflict with the National Labor Relations Board and the jurisdiction of the federal courts to enforce and develop substantive law under their powers granted by Congress under Section 301 of the Taft-Hartley Act.

Furthermore, the requested injunction not only guarantees the recurrence of such conflicts into the unforeseeable future but flies in the face of the clear language and the spirit of long standing --

Justice William J. Brennan: (Inaudible)

Mr. Gilbert A. Cornfield: Yes, Mr. Justice Brennan.

Justice William J. Brennan: (Inaudible)

Mr. Gilbert A. Cornfield: That is right.

I believe that the employer acknowledges that individuals cannot be sued under Section 301 under the clear language of that Section which allows suits only against labor organizations and only against the organizational assets.

Going back to the injunction request, if --

Justice William J. Brennan: (Inaudible)

Justice William O. Douglas: You request for a stay?

Mr. Gilbert A. Cornfield: No, I'm talking about the employer's requested injunction --

Justice William O. Douglas: Yes.

Mr. Gilbert A. Cornfield: -- into the future.

Justice William J. Brennan: Against the individuals (Inaudible)

Mr. Gilbert A. Cornfield: Against all the defendants, labor organizations, individuals, their agents, counselors, servants, etcetera.

I might say this that the employer's requested relief is -- if allowed would interject trial judges all over the country into labor controversies forcing them to impose their varying views and social policy in an area which properly must lie within the discretion of Congress.

Now, I would like in this oral presentation to discuss the implications of the requested relief by the employer.

First, I would to discuss Count II of the complaint, that is the request for damages against the individual local union officials under a tort, common law tort theory based on joint and several liability.

First, the employer contends that we entered into a collective bargaining contract between the unions, that is the international and its local affiliate, that this contract contains a no-strike pledge.

The employer maintains that we submitted to an arbitration procedure and in return we extracted from the unions a no-strike obligation.

Now, I might say that the employer does not mention also that the unions, in turn, extracted a no lockout obligation on the part of the employers.

If there's a quid pro quo or anything here, it is the no-strike and the quid pro quo for the no-strike is the no lockout obligation on the part of the employer.

Justice William O. Douglas: Is the arbitration provisions -- are they comparable to those in Lincoln Mills?

Mr. Gilbert A. Cornfield: The arbitration provisions set out a grievance procedure.

They first defined the grievances as covering all wages, hours and working conditions and then established a grievance procedure then provide for arbitration.

There was -- this added a clause in this contract which is not discussed in the employer's brief.

Article 27 of the contract also provides for so-called "general disputes" directly between the highest level, the employer hierarchy and the highest level of the international (Voice Overlap).

Justice William O. Douglas: I -- I don't want this -- disturb the train of your argument but I -- it would help me if -- if I knew precisely what issues were before the arbitrator at the time this suit in the District Court was filed by the employer.

Mr. Gilbert A. Cornfield: The employer after the work stoppage occurred docked the local union committeemen for the time of the work stoppage claiming that they were not fulfilling their responsibilities as local union officials.

The employer also took certain action against the local union officials in the form of saying that "From now on, you will not have prearranged to operate the -- around the plant and process grievances."

At the time the suit was filed these grievances had been submitted to arbitration or at least they'd gone to all the stages of grievance procedure and there had been understandings to submit this to arbitration.

Justice William O. Douglas: A joint agreement?

Mr. Gilbert A. Cornfield: Joint agreement and arbitrator has not been selected as yet.

There is this confusion I believe, if I might say, in the employer's brief.

There are two arbitration issues here.

One is that we request a stay based on the fact that the activities, if any, of the local union officials has been brought to arbitration by virtue of the grievances we filed.

But we also say further as in Drake Bakeries that the employer should initiate arbitration against the unions as to the question of the breach of the no-strike clause.

Justice William O. Douglas: I guess that's the thing (Voice Overlap) --

Mr. Gilbert A. Cornfield: That's right.

I would like, if possible, to reserve the question of arbitration to the last since it's been argued rather extensively in Drake Bakeries and we have -- we feel too rather important issues in addition here.

Going on from the contract, the employer says, "I negotiated a no-strike clause with the international and local affiliate."

Now, the employer argues that during this contract term, a work stoppage occurs and it's participated in by over half of the plant.

The employer alleges this complaint that 999 employees out of the 1700 employees at the refinery participated in this work stoppage.

Now, taking the complaint as well-pleaded, there's no dispute about that.

And the employer claims that clearly a work stoppage occurs and we are entitled to fair relief for our loss of production.

And the employer reasons very simply that clearly the courts -- the court's rule is to assure just compensation for this loss of production.

Now, the employer goes on, "The unions with whom we've bargained," that is the international and local affiliate, "clearly should be held responsible for this loss of production."

So they filed Count I of the action, a suit under Section 301 of the Taft-Hartley Act against the unions.

But the employer goes on further than that.

And it hedges against future possibilities.

The employer says, "But what if we can't prove liability against the unions?

A work stoppage occurred.

Clearly we must be able to collect from somebody."

Now, here's an international organization, its local affiliate, "We filed a suit against them, whether we argue the case in the court or we argue it before an arbitrator," all of the arguments in Drake Bakeries, "What if we don't win?

What if we can't prove that the international or -- and/or the local weren't responsible?

A work stoppage occurs.

We must be able to collect from somebody."

This leads the employer to a seemingly logical conclusion that the employees themselves should be held personally responsible for the stoppage.

Now, the employer did not choose to sue the 999 employees because this would apparently seem absurd on its face.

The employer chooses to do and say, "Well, we're only going to sue the employees who led this work stoppage."

Now, I might say these are the same employees who are alleged the agents of the international and local union in Count I of the complaint.

Now, the employer reasons, "We can't bring this kind of suit under Section 301 because clearly the employees themselves, the local union officials aren't labor organizations.

So, what are we going to do?

But it has to come in the state court someway.

There must be a common law cause of action."

This leads the employer to America's feelings of anxiety with the old English common law tort established in Lumley versus Gye.

These individual, union officials stand to the membership as third parties who conspired to interfere with the contractual relationship of these 999 employees and therefore they are guilty of a common law tort.

It comes into the federal court solely by virtue of diversity of citizenship.

Sinclair is a foreign corporation as in terms of Indiana and all the individual members are either citizens of Indiana, some are citizens of Illinois.

Now, the employer basis his argument on the fact that if a stoppage occurs, there must be some type of legal theory which allows us to collect and the employer then makes out a seemingly simple case for relief.

We submit that this simple case of relief opens up direct issues which are in conflict with the principles of federal preemption established in Garmon and reinforced very recently by this Court relative to collective bargaining agreements in Dowd Box and in Lucas Flower.

Lucas Flower and Dowd Box, taken together along with Lincoln Mills, establish the principle that it's true that state courts have jurisdiction over suits for breaches of collective bargaining agreements but the law that is to be applied must be substan -- substantive federal law developed under Section 301 as per set forth in the Lincoln Mills decision.

Now, we submit whatever chain of reasoning the employer chooses to follow establishing some basis of liability against these individuals, ultimately, you're brought back to the collective bargaining agreement.

And being brought back to the collective bargaining agreement there exist only one cause of action and that is against the labor organizations themselves under Section 301.

Under the Lucas Flower decision, a state court cannot entertain an action for breach of collective bargaining contracts that is in conflict with the jurisdiction of the federal courts under Section 301.

Now, I would like to demonstrate that whatever logical position the employer assumes, you are brought back to the collective bargaining agreement.

The employer alleges that the individuals, the individual local union officials conspired, instigated, participated in breaches of the collective bargaining contract.

This was the original complaint.

The employer felt, we believe, that this was so blatantly under the jurisdiction of Section 301 that the employer changed his theory and said, "No, its not that they conspired to breach the collective bargaining agreement but the collective bargaining agreement establishes 999 personal contracts containing no-strike pledge by every individual running to the employer."

And it is these, these contracts that these individuals conspired to breach or instigated people to breach.

Now, if the unions under Count I, whether it's in a District Court or before an arbitrator, are held not to have breached the no-strike clause, how can any court find that the individuals have breached the no-strike clause without running into clear conflict with federal substantive law?

Either the no-strike clause has been breached or it hasn't been breached.

And if it has been breach, it's a collective bargaining issue and it's a suit under the collective bargaining contract that must come within the purview of Section 301.

But the employer may still assert that there's some basic equity involved that a work stoppage occurs and we want to be assured compensation.

The employer argues that we know we can penalize the individuals that caused or participated in the breach.

We know we can threaten them with this charge.

We know we can suspend them or discipline them.

But that's not enough, we want to get money in -- under a joint and several obligation theory.

Now, the employer says, "You see, if we go into Count I and only on Count I, the unions may argue that they aren't guarantors against every work stoppage, that we would have to show that they actually, the international and/or the local, instigated the work stoppage, the wildcat."

Now, if we can't show that, the work stoppage still occurs.

I might say this, if the union is not a guarantor, it's a matter of contract interpretation whether they are guarantors.

And if the union is not a guarantor and the unions are held not to have been responsible for the work stoppage that means that there's been no violation of a no-strike clause.

It's clear it seems to us.

If the unions are guarantors, then the allegations of Count II are moot.

There's no need for them.

The work stoppage occurs, there's been a breach of contract, the unions are responsible.

If the unions are responsible, only if they instigated the walk out, the wildcat, this is a matter of contract interpretation.

Now, let us say that the Court would still maintain and there's some theory, it's not Lumley versus Gye, some equitable concept that the employer is still entitled to relief.

We can't conceive how but let us say this occurs.

What are the consequences of this type of decision?

Our individual union officials then to be forced to defend actions in state courts, the employer indicates that he should be allowed to bring suits against individuals whether or not he has the right to bring suits against the unions.

So, let us say he didn't bring the suit against the union.

He just went in to just -- the state -- the Indiana state courts under this tort theory and sue the individuals.

Does this mean that the individuals have to defend on the basis, "No, I was not acting alone.

I was acting as an agent of the union"?

You would then be forced to the position that individual, local union officials could only defend themselves adequately in a state court by forcing their unions to be the true party's defendant.

Would this mean then that the unions would have to take disciplinary action or expel these men because they unduly charged their unions with the violation?

It's like a corporate official being sued personally and say, "No, you don't want me.

I was only acting as agent for my corporation."

This would be the type of defense.

You're forcing this type of local union officials to submit to if they have to defend tort actions in state courts or under the diversity of citizenship jurisdiction in federal courts.

Even if a local union official would take the position in a state court that it was the union's responsibility, the state court would have to interpret was it the union's responsibly and again, we're brought back to the collective bargaining contract.

What is the no-strike clause?

What did the unions agree to?

It's inescapable it seems to us that the issue is a collective bargaining dispute.

And under Lucas and Dowd Box, there is nothing left, if there ever was, any tort theory to be left with the state courts.

As a final answer to the question of individual liability, if the employer truly believes his remedies are inadequate.

It is not for the courts to mold a new bargaining agreement to meet Sinclair Refining Company's needs.

The employer must return to the bargaining table if the employer feels that the no-strike commitment was inadequate, either the employer believes the no-strike commitment is adequate or the employer does not.

Only the employers' willingness to bargain and the unions' willingness to negotiate will resolve this issue.

Justice William O. Douglas: Could -- could the union go into court to get an injunction against the employer that may lock-out and directing the employer to arbitrate?

Mr. Gilbert A. Cornfield: I would say this that under our arguments relating to Norris-LaGuardia Act, that so long as the Norris-LaGuardia Act is still vital, it covers all areas of labor disputes.

And it's my understanding that if it were a situation that we came in to court requesting an injunction against the lock-out, there'd be a serious problem under Norris-LaGuardia Act.

The same way as the serious problem as far as the employer is concerned in -- in attempting to get an injunction against the union.

Justice William O. Douglas: That -- then what is the -- what is the total purport then of -- of Lincoln Mills?

Does it -- does that substitutes arbitration for the other -- the old system only if the party is voluntarily wanted?

Mr. Gilbert A. Cornfield: Well, I think this, Your Honor, that Lincoln Mills demonstrates that the parties have available to them a multitude of remedies which they can agree to.

Now, in the situation you supposed, let us say that we sued an employer for breach of a no lockout clause then the employer asked for a stay because the issue should be arbitrated, I would say in that case that the employer would be entitled to arbitration if the contract is broad enough to --

Justice William O. Douglas: If -- I'm assuming --

Mr. Gilbert A. Cornfield: -- to allow for them, yes.

Justice William O. Douglas: I'm assuming a broad enough --

Mr. Gilbert A. Cornfield: Yes.

Justice William O. Douglas: -- contract.

Mr. Gilbert A. Cornfield: Yes.

On the other hand, if the employer is locking out the employees and we rush in to court for an injunction against that, there might be a problem because of Norris-LaGuardia Act.

Now, the court could order that the issue be arbitrated but there'd be a serious question whether the court could order the employer to open up his doors again because of the Norris-LaGuardia Act of prohibitions against injunctions --

Justice William O. Douglas: I think the --

Mr. Gilbert A. Cornfield: -- and labor disputes.

Justice William O. Douglas: I think that the injunction of the court would be restricted to directing the employer to -- to arbitrate.

Mr. Gilbert A. Cornfield: At this point, yes sir, if the lockout is to be considered the same as the strike.

And of course, I'm not arguing that issue at this point.

I'm presuming that this is implied in your questioning.

Going on to the injunction question, the employer argues that aside from the assurance of money damages, the employer wants the courts to assure him that work stoppages, wildcats will not occur in the future so long as there's a no-strike pledge.

Now, we have pointed out that this Court is not a proper forum or any federal court for the debate of social policy as to whether Norris-LaGuardia is good, that the Clayton Act was good, whether it should be amended.

We have argued extensively, we feel in our brief legislative history, the impact of Norris-LaGuardia.

We have argued extensively the matters leading up to Norris-LaGuardia and have analyzed the classic work on the subject of labor injunction by Frankfurter and Greene.

Justice Potter Stewart: Just a --

Mr. Gilbert A. Cornfield: Yes.

Justice Potter Stewart: I'm sorry to back track a little bit.

Before you get into the Norris-LaGuardia, I'm going little further with Justice Douglas' inquiry, a little different aspect of it with respect to the individual employees when you say for several reasons cannot be made defendants here, could an individual employee covered by collective bargaining agreement which contained a no lockout clause sue as an individual, sue the employer -- employer under Section 301 if he were locked out?

Mr. Gilbert A. Cornfield: I would say this Your Honor that the commitment regarding the lockout runs to the union.

And this is my own view of the matter that the proper party would be the union to sue.

Now, the individuals' claim I would suggest would have to operate through the grievance procedure.

Justice Potter Stewart: Assume there wasn't --

Mr. Gilbert A. Cornfield: This is --

Justice Potter Stewart: -- a grievance?

Mr. Gilbert A. Cornfield: This is my view of the subject.

Justice Potter Stewart: What --

Mr. Gilbert A. Cornfield: This is my view of the subject.

Justice Potter Stewart: What -- what grievance procedure?

I'm assuming there is no grievance procedure.

Mr. Gilbert A. Cornfield: There is no grievance procedure but there's no-lockout --

Justice Potter Stewart: There's been no-lockout (Voice Overlap) --

Mr. Gilbert A. Cornfield: I think it is the responsibility of the unions to bring that suit.

Justice Potter Stewart: Do you think an individual employee could not bring a suit?

Mr. Gilbert A. Cornfield: No.

I would say this that if the union did not bring the suit and there was a fair basis that the suit should be brought that the individual maybe able to prevail upon the courts to force the employer's hand -- the unions hand rather at that.

Justice Potter Stewart: Kind of a derivative suit.

Mr. Gilbert A. Cornfield: Yes, of some kind.

Now, you do have this situation occurring, Your Honor, the Westinghouse, that there is this area where the Court say, "Well, individuals have certain vested very personal rights, like a claim for back wages, they've been fired."

And the union shouldn't be forced to bring this type of action as a very personalized matter.

If the individual was bringing the suit in order to question the validity of a lockout under the collective bargaining contract, I would say that the appropriate party is the union because the issue basically is the collective bargaining one.

If there was no question of the lockout was illegal and this individual said, "Well, it's been proven the lockouts been illegal.

I haven't got my wages."

This might be considered a very personalized dispute, no longer a collective bargaining issue.

I think what we have to look at here is the issue raised an issue under the collective bargaining contract.

Justice Potter Stewart: Well, if the union hasn't been locked out, the employees have been locked out.

Mr. Gilbert A. Cornfield: Yes but the commit --

Justice Potter Stewart: And this fellow says, "I've been locked out and I'm not suing for wages.

I'm suing for the right to get in there and work for not only wages but for the -- all the other things that come to me under the collective bargaining agreement."

Mr. Gilbert A. Cornfield: I submit, Mr. Justice Stewart, that the no-lockout pledge runs to the contracting party and the contracting party in this case is the organization.

Now, if we presumed that the employer, as was said in the Drake Bakeries case, signs an affidavit that I breached the no-lockout clause and there's no collective bargaining dispute and the individual says, "I should get money for it" then possibly we've taken it out of the area of collective bargaining disputes.

But I think otherwise, if there is a question, has the employer actually locked out the employees or breached the contract or if it said the no lockout pledge, the appropriate party is the union.

This is my belief.

Otherwise, I think we will have state courts deciding major collective bargaining issues by virtue of one individual filing an individual lawsuit that -- that this collective bargaining contract has been filed.

Justice Potter Stewart: Well, could this -- could -- could an employee bring this suit in the federal courts under Section 301?

Mr. Gilbert A. Cornfield: I can't see how Your Honor, because Section 301 provides for only suits between employers and --

Justice Potter Stewart: No, it doesn't.

Mr. Gilbert A. Cornfield: -- labor organizations.

Justice Potter Stewart: No, it doesn't.

Now, you look at the -- look at the -- what is written, suits for violation of?

Mr. Gilbert A. Cornfield: Of collective bargaining contracts between --

Justice Potter Stewart: Of contract --

Mr. Gilbert A. Cornfield: -- employers --

Justice Potter Stewart: -- by labor organizations.

Mr. Gilbert A. Cornfield: -- and labor organizations.

Justice Potter Stewart: It doesn't say who shall bring them or who -- who shall be the plaintiffs or who shall be the defendant?

Mr. Gilbert A. Cornfield: Well, I would say this, Your Honor, that in this -- the way I would interpret the import of Section 301 is that if an individual brought a suit for breach of the collective bargaining contract, unless the individuals made a party to the collective bargaining contract, he doesn't have sta -- stature to be a party to that lawsuit.

Justice Potter Stewart: Would this matter standing be something which the Federal District Court should refer to state law to determine the answer to it?

Mr. Gilbert A. Cornfield: As -- I would -- I'm not sure I understand your question, Your Honor.

Justice Potter Stewart: You say -- I think you said he didn't have stature and I suppose --

Mr. Gilbert A. Cornfield: That's right.

Justice Potter Stewart: -- he didn't have standing.

Mr. Gilbert A. Cornfield: That's right.

Justice Potter Stewart: Is this a question of federal law?

Mr. Gilbert A. Cornfield: As to whether or not he is a party to the collective --

Justice Potter Stewart: He has standing to sue.

Mr. Gilbert A. Cornfield: Well, I think the federal courts could make a determination whether the individual is a party to the collective bargaining contract.

And if the federal courts where to make such determination, then the individual would have a standing.

I would suggest that --

Justice Potter Stewart: The statute I think --

Mr. Gilbert A. Cornfield: -- under section (Voice Overlap) -- yes.

Justice Potter Stewart: I -- I think I'm right in saying that the statute doesn't, certainly by its terms, specify who the plaintiff needs to be.

I think it says suits for violation of contracts made by labor organizations.

I was wondering if an individual employee could bring such a suit in a federal court under Section 301 --

Mr. Gilbert A. Cornfield: Yes.

And --

Justice Potter Stewart: -- if he had been locked out by an employer who would sign a collective bargaining agreement saying he would not lockout his employees.

Mr. Gilbert A. Cornfield: My answer would have to remain, Your Honor that if an individual brought a suit for breach of the collective bargaining contract, the first question that would have to be asked, "Are you a party to the collective bargaining contract?"

And I would say that an individual, unless he is representing the party to the collective bargaining contract, is not a party.

He might be, what we might call a third-party beneficiary --

Justice Potter Stewart: Yes.

Mr. Gilbert A. Cornfield: -- of some kind.

Justice Potter Stewart: He might, I think.

And he's the one who's been hurt, isn't he?

Mr. Gilbert A. Cornfield: Yes, but he -- I would say this that he is not bringing a suit for breach of the collective bargaining contract.

If that determination has been made and he says by virtue of this breach of the suit -- of the collective bargaining contract, "I have been deprived of certain wages", then I think we no longer have a collective bargaining dispute.

Justice Potter Stewart: Well, I think we're -- I've alleged a little appeal but I -- I was just testing out the first part of your argument that no suit could be ever be brought against individuals.

I wondered if individuals as plaintiffs could bring them in according to you.

Mr. Gilbert A. Cornfield: I would say this, Your Honor that I think that'd be very, very unfortunate if the courts were to interpret Section 301 as to allow individual union members to flood the federal courts with suits of breaches of collective bargaining contracts.

There are 1700 employees of this one refinery.

I would like to make some general comments on the injunction issue.

As I was saying, I don't -- do not -- I think that the Norris-LaGuardia and Clayton Act clearly applies to the requested injunction relief in Count III.

But in this part of the oral presentation, we believe that it is important to stress the considerations involved in deciding whether federal courts should be allowed to embark upon this species of injunction.

I wish to remind the Court that there was no work stoppage at anytime during the -- during the course of this lawsuit unlike in Yellow Transit.

This injunction is only towards future activities which have not occurred and may never occur.

Now, the employer argues regarding Norris-LaGuardia, the Norris-LaGuardia was never intended to cover unlawful labor disputes.

That's not a question of whether Section 301 has impliedly repeal Norris-LaGuardia.

But in Norris-LaGuardia, it never meant to cover this area, and that Norris-LaGuardia was concerned only with so-called "lawful disputes".

Now, we concede in -- and this -- the number of cases on this point.

The Norris-LaGuardia wasn't meant to interfere with injunctions where violence has occurred or criminal violations have occurred.

But this area of legality is another question.

Now, we submit that the employer misconceives the purposes in Norris-LaGuardia.

The Clayton Act was passed in 1940.

Clayton Act as applied to labor organizations or labor disputes stated that injunctions couldn't be issued in disputes between employers and employees.

Now, it's a matter of history that by and large, the Clayton Act was interpreted by the Court as to be applied only to legal labor activities.

And by and large, the courts before 1932 had interpreted the Clayton Act in such a way that said injunctions are only prohibited on those activities, labor activities that were lawful before Clayton Act.

Now, the Norris-LaGuardia Act was passed basically to cure this defect in the Clayton Act that has been interpreted by the courts.

The classic work on the subject, the labor injunction by Frankfurter and Greene, the entire thesis of the book is that the need for the Norris-LaGuardia Act is because the courts had been deciding that the Clayton Act applied only to illegal disputes.

And the entire thesis of the book was that there was a need to stop injunctions from occurring by the courts in situations where the courts would issue preemptory restraining order solely on employer affidavits without a hearing.

And then several months later, there'd be an argument of the merits but by now, the labor dispute had already been broken and whether or not the unions had a valid claim, had already been vitiated.

I wish to give an example of the effect of Norris-LaGuardia Act.

Let's take secondary boycotts.

Before Clayton Act and after Clayton Act, the courts by and large held that for unions to participate in any form of secondary boycott was illegal.

Now, Norris-LaGuardia did not make secondary boycotts legal.

But after Norris-LaGuardia, the courts could no longer issue injunctions to restrain secondary boycotts.

This would allow, presumably, employers to sue -- sue the unions or individuals for participating in breaches of secondary boycotts where there was no labor contract.

It wasn't until 1935 with the passage of the Wagner Act that secondary boycotts or at least a variety of them so-called were legalized.

And here, you have a joining of the anti-injunction provisions and the -- the legalization of secondary boycotts.

Now, in 1947, Congress held that secondary boycotts, at least a good number of them, were unlawful.

But Congress did not then simply say, "Well, from now on, Norris-LaGuardia doesn't apply and from now on, you can sue."

By then there have been established the National Labor Relations Board.

Congress allowed for restraining orders but had to be done through the procedures of the National Labor Relations Board and the National Labor Relations Board has to be the initiating party.

So that the argument, the Norris La Guardia, applies only to so-called "legal disputes" is clearly incorrect in terms of the history before and after Norris-LaGuardia and the reasons for passing it.

Now, even if we are satisfied that a wildcat that is, as Mr. Meyer in the Drake Bakeries argument adequately showed, not a strike for economic purposes, any kind of work stoppage that takes place during the course of the collective bargaining contract developing out of the spontaneous friction and interaction of employees and supervisors.

Even if we say it is socially undesirable, I do not submit that the answer lies in allowing the courts to issue wholesale injunctions or allowing the courts to exercise injunctions preliminary restraining orders, preempting restraining orders on a basis of affidavits.

What -- even if we said, and as a matter of social policy, that some type of restraint should be put on this type of work stoppages, what are the possibilities?

Our restraining orders and contempt citations to run against individual union officials as well as members of the organization and the organization themselves, the type of injunction requested here would run against organizations, would run against union officials, would also run against members and any new employees that come in the plant.

Do we really mean that granting the injunction request here would allow contempt citations to issue preemptory against all these people?

But what if we say be such an injunction should issue?

Does this mean that a work stoppage occurs three, four, five years from now?

The employer comes running in to court with a contempt citation for this injunction, the employer has requested.

The people are out on the street.

This means that if they refuse to return to work, they are then in contempt of court.

This would be solely clearly -- so clearly violative of Thirteenth Amendment, I don't think we have to discuss it.

It would be specific performance of personal service commitments.

But what does it mean to say you're having an injunction running against individuals?

Then we ask ourselves, "Well, we won't issue injunction against individuals only be against the organizations."

What is it mean to say that the in -- organizations are enjoin from encouraging strikes?

These are wildcats remember.

In Yellow Transit, there was no question that the company called the work stoppages a dispute whether they have the right to.

Here, it's a wildcat situation that happened and has stopped.

By its very nature, the union maintains we didn't call it.

This is the nature of wildcats.

Now, if you issue the injunction, if the courts were allowed to issue the injunction against the organizations against encouraging the wildcats, does this mean that a labor organization could be held in contempt of court if six employees temporarily refused to work because of a job assignment dispute?

73 three employees refused to work for one hour because of same type of dispute, 24 employees for the same reasons for an hour and a three quarters and 24 employees again for two hours.

But these are the allegations of work stoppages that are contained in a plaintiff's complaint.

This would mean that the complaint -- the plant -- the employer would be allowed to run into the local federal court that issues the injunction and get contempt citation against the organizations for everyone of these occurrences.

And what about these type of disputes?

Justice William O. Douglas: Well --

Mr. Gilbert A. Cornfield: Disputes --

Justice William O. Douglas: -- suppose -- suppose underlying all these was the refusal of the union to arbitrate, I suppose that you would agree that the injunction would run to the union requiring it to arbitrate, assuming that the agreement provided for it, the collective bargaining agreement.

Mr. Gilbert A. Cornfield: Oh, there's no question, Mr. Justice Douglas that the employer has the right to bring the union in the court and ask for a specific performance of arbitration.

Justice Potter Stewart: Just Lincoln Mills, isn't it?

Mr. Gilbert A. Cornfield: That's right.

Justice Potter Stewart: That's a Lincoln Mills case.

Mr. Gilbert A. Cornfield: Yes, that's correct.

Justice William O. Douglas: You're not asking for any --

Mr. Gilbert A. Cornfield: But the question of whether or not these work stoppages occurred and the unions can be held in contempt of court because they occur is another matter.

Justice William O. Douglas: But in terms of the -- of power of contempt, I suppose that would be implicit in the -- if the court had the power to issue an injunction, directing union to arbitrate and the union didn't arbitrate.

Mr. Gilbert A. Cornfield: Yes, Your Honor.

But what the employer is requesting here is a blanket injunction operating into the future --

Justice William O. Douglas: I understand.

Mr. Gilbert A. Cornfield: -- over any work stoppages that occur.

Now, it doesn't mean that because the work stoppages occurred that the union is refusing to arbitrate.

The union official may get out in the plant after they've already stopped.

This size for a dollar and three-quarters and the -- in fact the union may say, "Stop if those will arbitrate the issue."

But in the meantime, the employers run into court with a contempt citation.

And as Mr. Meyer pointed out, the employer's main thesis is, it's not so much that he wants the opportunity go into court but he wants the opportunity to use the threat of contempt citations.

It seems to me that a type of injunction requested here would cover this type of situation.

Justice William O. Douglas: You -- your type of injunction if you think would be proper and the only one as concerns the union would be one that directed the union to arbitrate and held the union responsible for the things that happened --

Mr. Gilbert A. Cornfield: (Voice Overlap) --

Justice William O. Douglas: -- during the period when the arbitration was supposed to be going on that might fairly be said to be an indirect method of defeating arbitration.

Mr. Gilbert A. Cornfield: That's right, Your Honor.

I would say this that the employer took the matter to arbitration, said there had been a work summon dispute and the union brought them into arbitration and the employer would indicate before the arbitrator why the employees were not justified in refusing to take certain jobs because they weren't in their job classification and so forth.

The union would have to argue that point.

Now, if the union refused to arbitrate this issue, I would suggest that the employer could come into court and say if the union should -- should go to arbitration.

But let us even think in terms of this contempt citation that say you have a dispute over safety and employees spontaneously refused to work because the -- they felt that the condition weren't safe.

Under this type of blanket injunction operating into the indefinite future the employer could go into court and say the local federal court, not an arbitrator, not the National Labor Relations Board and say, "I want contempt citation against all these individuals refusing to work and the union organizations.

And I must have it immediately because my production, I have orders to fill and it's not -- there's no time for a hearing two months from now."

This was a sort of thing that now Justice Frankfurter described in his classic work that existed before the passage of Norris-LaGuardia.

The Court without any contrary way, the local court will make a decision as to whether the action was unlawful.

And then a couple of months later would -- or two or four months later will have a thorough hearing on the matter.

Or let's say there's an honest difference of opinion regarding overtime, the employer says to a group of employees, "I want you to work overtime tonight."

The employees say, "I don't have to work overtime under the contract."

And no one -- and everyone refused to work overtime.

Under this type of injunction, the employer could go into the local federal court, cite the injunction that they -- they have and -- and get contempt citation against all individuals.

Justice William J. Brennan: (Inaudible)

Mr. Gilbert A. Cornfield: That if --

Justice William J. Brennan: (Inaudible)

Mr. Gilbert A. Cornfield: This would be at a formal union meeting clearly.

Well, let us say that an injunction issued against formal strike action against the organization, this would mean that the court would issue an order saying, "Do not take such action, it is not lawful under the contract."

Now --

Justice William J. Brennan: (Inaudible)

Mr. Gilbert A. Cornfield: The thing -- the point would be this, Mr. Justice Brennan, that say the employees still insisted on striking, the union issues a telegram --

Justice William J. Brennan: (Inaudible)

Mr. Gilbert A. Cornfield: Well, Mr. Justice Brennan, I think that there would be problems in Norris-LaGuardia.

I think as a practical matter, the farthest the court could go would be to issue an order that the union could not call a strike but if a strike occurred, if the people still insisted on going out --

Justice William J. Brennan: (Inaudible)

Mr. Gilbert A. Cornfield: I would say this, Your Honor, that if we were to say that a court could make a determination if they threatened, breach of the contract was legal or illegal the court certainly has that power to do so.

Now, if the court were to --

Justice William J. Brennan: (Inaudible)

Mr. Gilbert A. Cornfield: Well that is a declaratory judgment as to whether or not the union is about to threaten a breach of the contract.

Now, if the court went further and said, "You cannot strike."

What we're talking about is whether these employees have the right to leave the job.

And we again get back to the problem what does this mean and who is to effectuate an order that the employees are not or let's take a situation that we have here where it's a wildcat.

Justice William J. Brennan: (Inaudible)

Mr. Gilbert A. Cornfield: I would say this that the -- under the Norris-LaGuardia Act, I would suggest that the farthest the court could go under that situation would be a declaratory judgment of some kind as to whether or not a threatened strike was in breach of collective bargaining contract.

Justice William J. Brennan: (Inaudible)

Mr. Gilbert A. Cornfield: Well, we again get back to the question of who we -- who the court would be restraining.

If it's restraining the people from walking out, I would say no.

I think (Inaudible) --

Justice Hugo L. Black: I -- I presume what you are saying is that you do not think 301 repeal the Norris-LaGuardia Act in whole or in part?

Mr. Gilbert A. Cornfield: That's right Mr. Justice Black.

But the employer further contends that there was no need for repeal because the Norris-LaGuardia Act never covered this situation.

The thesis of the --

Justice William O. Douglas: I -- I thought you've said that you did agree that it at least repeal that in part as far as the injunction went to the union.

Mr. Gilbert A. Cornfield: Oh, not Section 301 but the Taft-Hartley Act has repealed it in many instances where you can get restraining orders against unions for breach as a secondary boycotts and another type of activities with the --

Justice William O. Douglas: But under 3 --

Mr. Gilbert A. Cornfield: -- National Labor Relations Board --

Justice William O. Douglas: Under 301 I understood you to say that an injunction, an issue against the union requiring it to arbitrate.

Mr. Gilbert A. Cornfield: Well, I -- I submit, Your Honor, that that term was not used by me but by the court.

They could get an order for a specific performance to arbitrate.

Justice William O. Douglas: Well --

Mr. Gilbert A. Cornfield: I don't suggest that this is an injunction and I think in Lincoln Mills, it was made clear that a specific performance did not fall within the purview of injunctions under Norris-LaGuardia.

Justice William O. Douglas: Well, that would be a -- that -- that then takes something out from what is in Norris-LaGuardia prior to 301.

Mr. Gilbert A. Cornfield: Well, Norris-LaGuardia contains specific provision encouraging the use of arbitration and this was referred to in Lincoln Mills.

And the thrust of Lincoln Mills was that ordering arbitration was not meant to be covered under the Norris-LaGuardia Act.

And I think that Lincoln Mills made it very clear that the decision was not meant to imply that there had been a partial repeal of Norris-LaGuardia by virtue of Section 301.

The employer doesn't rely upon that theory either.

The employer relies upon the theory that Norris-LaGuardia never covered these situations.

Justice William O. Douglas: You want -- you want your cake and you want to eat it, too.

Mr. Gilbert A. Cornfield: No, Your Honor.

I think the employer has the right to force us to arbitration.

The employer does not have the right to come into court in this instance and ask for an injunction against all future work stoppages.

And I think that we admitted quite clear what the implications of such an injunction would be.

And I also further suggest that if there is social value in allowing this type of injunctions to issue that is not clear that the court should be just placed wholesale back in the injunction business that if there -- if this country feels that there's a social need for some type of restraining orders, it's up to Congress to determine what particular method of restraint that it -- is going to exist and whether its going to be through the NLRB or through the courts.

There had been a bill at the time of Taft-Hartley coming out of the House that would have made every breach of no-strike clause an unfair labor practice.

This in effect would have given the Board restraining powers by virtue of its general powers to enforce unfair labor practices.

That bill did not get through the Senate and was not made apart of Taft-Hartley.

Now, certain members of the House at that time had felt apparently some type of need for something more than damage suits in this area but Congress chose does not to add.

We feel wisely.

I think at this time that although there are many other issues involved in this proceeding, I would like to reserve what -- two minutes I have left for a reply.

Chief Justice Earl Warren: Mr. Christensen.

Argument of George B. Christensen

Mr. George B. Christensen: If it please the Court, I would like to apologize for not being here on time this morning.

We had decided to not risk the vagaries of air transportation for the first time and I don't know how many years the (Inaudible) limited was over two hours late.

That's why these cases had to be rearranged.

Chief Justice Earl Warren: Very well.

You may proceed, Mr. Christensen.

Mr. George B. Christensen: I was somewhat doubtful at times as to what case Mr. Cornfield was arguing.

It certainly was not the case I was in.

Now, to comeback to what the Court is confronted with and what this complaint alleges or what is admitted by the motion to dismiss.

You had a contract that had a complete flat no-strike, no-stoppage clause in it.

It had an elaborate grievance procedure terminating in compulsory arbitration in complete accord with the policy expressed in the National Labor Relations Act and that no point in that arbitration procedure is there any provision for the filing of employer grievances against the union or its member.

Secondly, the injunction Count, Count III --

Justice William J. Brennan: May I ask if you (Inaudible)

Mr. George B. Christensen: No, I think -- I -- I --

Justice William J. Brennan: (Inaudible)

Mr. George B. Christensen: Well, I think its in -- inherent, Your Honor, because the contract provides any grievances must.

It's in mandatory language that's quoted at page 4 of our brief in the white cover.

And at page 4, under grievance procedure, the second sentence, "Therefore, when a grievance arises, the following procedure must be followed."

And that coupled with the no-strike agreement which appears on page 3.

"There shall be no-strike or work stoppages for any cause", which is or might be the subject of a grievance under this completely settles that I believe.

As to the injunction count, this complaint alleges that in a period of approximately 19 months, there were nine work stoppages at this refinery.

Some of them involving a department, some of them involving many employees or one, two or three shifts as the case might be.

The place was a constant scene of irresponsibility and turmoil.

And while we are listening to all this vague thought about social benefits and about how the law should not be enforced and what a harsh thing lawsuits are and what a evil an injunction would be.

The fact is, this does not appear of record, but I think the issue is serious enough so that I am entitled to say so that since we have had a potential injunction in the form of a lawsuit pending, there has not been any legal stoppage at that plant.

Now, I cite that also because we are going to discuss this question of wildcats.

Counsel says these were all wildcats, maybe, maybe not.

In any event, the union, since the pendency of this suit, has been able to give us effective discipline and uninterrupted production.

One never knows whether it is a wildcat or is not a wildcat.

Justice William J. Brennan: (Inaudible)

Mr. George B. Christensen: Yes, sir.

Justice William J. Brennan: (Inaudible)

Mr. George B. Christensen: Yes.

Justice William J. Brennan: (Inaudible)

Mr. George B. Christensen: Yes.

Justice William J. Brennan: (Inaudible)

Mr. George B. Christensen: Yes.

Justice William J. Brennan: It's only arbitration.

Mr. George B. Christensen: Yes.

Justice William J. Brennan: That means (Inaudible)

Mr. George B. Christensen: Quite no more than --

Justice William J. Brennan: (Inaudible)

Mr. George B. Christensen: No more than -- than any plaintiff is compelled to present any claim.

It means if they -- if they want to settle that, contract means, as I would read it, if they want to settle that grievance and they think it's good, here is the way to do it, to set up an arbitration.

They can't strike.

They're absolutely bound not to strike and this is the procedure they must follow.

Now --

Justice William J. Brennan: You could not under 301 (Inaudible)

Mr. George B. Christensen: No, I think not only --

Justice William J. Brennan: (Inaudible)

Mr. George B. Christensen: Well, we could compel them in what we are seeking as to establish a procedure by indirection to compel --

Justice William J. Brennan: Well, what I got at is, could you make -- may assume specific requirements of arbitration (Inaudible)

Mr. George B. Christensen: I presume that you could.

I don't know why you would and there's a very practical difference in the situation of the employer and the employee.

We run the plant.

We have made our managerial --

Justice William J. Brennan: I know but there are (Inaudible)

Mr. George B. Christensen: Yes.

Justice William J. Brennan: And that they contract --

Mr. George B. Christensen: They have contracted --

Justice William J. Brennan: (Voice Overlap) --

Mr. George B. Christensen: -- not to strike and if they have anything they --

Justice William J. Brennan: (Inaudible)

Mr. George B. Christensen: If they wished to progress one of these grievances.

If not, they may abandon them.

Just the same as -- as if I'm dealing with my grocer and he says that I owe him last month's grocery bill and I say I paid it.

I can't compel him to file a lawsuit.

Some states, I could --

Justice William J. Brennan: Well, I think (Voice Overlap) --

Mr. George B. Christensen: -- file a declaratory judgment action.

Justice William J. Brennan: Of course the fact that is -- that is (Inaudible)

Mr. George B. Christensen: There is no doubt about it, whatsoever.

Lincoln Mills has clearly established that.

They could -- they could carry us right --

Justice William J. Brennan: (Inaudible)

Mr. George B. Christensen: Well, I don't think that is so unusual, Your Honor, and I think you will find a substantially similar framework.

This is exceptionally strong, it says, "If they want to progress a grievance, they must use this procedure."

And the difference comes from the fact that as to grievances, the situation of the employer and the union is totally different.

Here's a man that says he has a grievance.

We say he hasn't.

We've made our managerial decision.

Now, on the one that led to this particular thing, these three fellows have been docked, a total of $2.19 some 73 or 4 cents a man.

We said they were properly docked.

We had made that decision.

They said we were wrong.

If we were wrong, they had the option if they really believed it to file a grievance to prosecute it so far as they wished through this test.

If they thought it was no good they could drop it at anytime.

And of course in normal industrial practice many grievances are --

Justice William J. Brennan: I gather the factor that this is -- they did file (Inaudible)

Mr. George B. Christensen: No.

Justice William J. Brennan: -- for arbitration.

Mr. George B. Christensen: No they did not.

They did not.

The facts are -- that's why I said that at times I will --

Justice William J. Brennan: (Voice Overlap) -- did they not ultimately (Inaudible)

Mr. George B. Christensen: Well, they did ultimately.

Now, I can give you the time schedule on that Your Honor.

First on the so-called "riggers", these three riggers who were docked, this two -- $2.19 cents, they got a thousand people to go out for them.

They -- that occurred on the 13th and 14th of February, the dock.

The riggers and then the strike, we've got them back, the matter wasn't settled.

The riggers then on March the 4th, some roughly three weeks afterwards thereabouts, filed grievances that appear at record 35 and 36.

Now, the next thing that shows up -- of the record is that on March 4, nine of the defend -- people who became defendants in this lawsuit filed grievances which appeared at record form -- record pages 37 and 38.

They say they were entitled to more pay on the days of the strike.

The suit was filed on March the 12th.

Now, the -- the coincidence of these dates is more than coincidence.

I am quite sure that these gentlemen understood lawyers were drafting papers.

On March the 25th, some two weeks after the suit was filed, three more of the individual defendants filed grievances, these committeemen saying they didn't get all their pay for the days of the strike.

And on April 22nd, two more of them did so that ultimately, the riggers filed grievance, three fellows have been docked and ultimately, nine defendants immediately before the suit was filed and five of them at periods of two weeks to a month and half afterward filed grievances.

Justice William J. Brennan: Well, if the strike (Inaudible)

Mr. George B. Christensen: Out of 24 defendants.

Justice William J. Brennan: At page 118 of the record (Inaudible) the question for whom you're talking about (Inaudible) the matter to decide of course, that's the question (Inaudible) does the matters involve (Inaudible) pending arbitration and they decided to filed to an arbitrator pending to hear the appeals, could such grievance can be made against (Inaudible)?

Mr. George B. Christensen: What page is that, Judge?

Justice William J. Brennan: Page 118 (Inaudible)

Justice Hugo L. Black: That's not 118, pages in my record says --

Mr. George B. Christensen: No.

Justice William J. Brennan: (Inaudible) but was that the fact?

Mr. George B. Christensen: No, it's not the fact.

Now the -- those affidavits are contradicted.

You'll find at page 35 and 36 of the record commencing at page 33 is the affidavit of Robert D. Clark.

And the actual grievances that were filed are attached.

No arbitration has yet taken placed and I doubt whether one ever will.

No umpire has been na -- named, no steps have been taken to prosecute it.

But there'd been no arbitration here and an arbitration board hasn't even been set up and that affidavit is vigorously contested by the affidavit of Mr. Robert D. Clark which is as factual as we could make it attaching the actual grievance forms that were filed.

Now, the two issues that are presented here is of course one by ours at the dismissal of the injunction count.

The count obviously was based upon and is still based upon a filling of a proclivity for illegal conduct in this particular bargaining unit, nine illegal stoppages in 19 months demonstrates the necessity for something.

When the case was filed, Judge Swygert originally overruled the motion to dismiss the injunction count.

Then this Court decided the North Western Railroad Telegraphers case.

There was a motion for reconsideration.

Judge Swygert believed that North -- the North Western Telegraphers case stood for a blanket pronouncement that under no circumstances in anything remotely smelling of a labor dispute could there be an injunction.

We think he was mistaken for the reasons that we have set forth in our brief.

And that this case is the counterpart in the industrial field of the Chicago River and Indiana case in the railroad field that you're governed by the Railway Labor Act.

Now, in railway labor, you have the so-called "major disputes" that the parties are free following process of mediation to do what they please and go on out on strike if they can't agree.

And you have the so-called "minor disputes" concerning terms, applications, contracts of employment that they are at liberty to take to the Railroad Adjustment Board and have determined precisely the situation that is provided here in the industrial field by a contract providing for binding arbitration and that's precisely what happened here.

These were all that disputes.

The complaint so alleges and the motion to dismiss so agrees.

If Norris-LaGuardia does not stand in the way of enjoining strike and illegal action for minor disputes under Railway Labor, a fortiori it should not be held to do so on -- in the industrial field under Labor Management Relations Act because the 1947 Amendments spoke so strongly, not merely in Section 301 but in 203 in the various other places, are the desirability of having contracts that are substantially like this one, with a no-strike clause or no-lockout clause with grievance procedure ending in compulsory arbitration.

Justice Hugo L. Black: May I ask you that?

I don't understand why you continue to say compulsory arbitration.

I did not understand you to say that the union was compelled to arbitrate.

Mr. George B. Christensen: I'm using it in the sense, Your Honor they can compel us to arbitrate.

Justice Hugo L. Black: That's right.

Mr. George B. Christensen: And I am thinking always in the terminology that the fellow who brings the grievance is the employer or his agent because the management has the right to make the working decision.

It makes at its peril as to whether it's right or wrong but it has made its decision.

Here, it was to dock three guys, guide 74 cents a piece.

But whatever it maybe, the -- the position of the parties in this grievance matters is -- is not the same because the employer can fire a man if he thinks he's been bad enough or suspend him or whatever he does.

And when I use compulsory arbitration, it was in the sense that the grievant could compel the employer to submit to and accept the results of arbitration.

Now, we make an argument in here that I'm not going to burden the Court for trying to recite the cases because I probably couldn't and I think you will want to read them more closely.

Prior to the adoption of Norris-LaGuardia, there weren't too many cases because contracts of this nature of course we're not so general in as they are now.

But so far as we have been able to discover, there was never any question that in no lockout, no-strike contract could be enforced by injunctive relief either against strike or against lockout.

And the courts held such contracts were commendable.

We had one in Illinois, (Inaudible) Workers which we cite in our brief and it had a compulsory arbitration provision in it and a no-strike, no-lockout clause.

That case was decided in 1931.

There were a series of cases in New York in the 1920s.

There was never any question during the very heated Norris-LaGuardia debates over the wisdom, the social soundness and the legality of those decisions in that limited field.

That's all I'm talking about.

Now, it's perfectly true that a great deal of ingenuity from some very agile minds went into drafting the definition of labor dispute that is contained in the Norris-LaGuardia Act.

And I would be the last man in the world to say that you can't take that sweeping definition of back-end of the statute.

And dialectally, you can read it to cover nearly anything you can think.

But this Court through the Virginia Railway case, through the Chicago River, Indiana, through Lincoln Mills as gradually been holding that the definitions of Norris-LaGuardia are to be read in the light and against the evils it was aimed to -- to cure.

Roughly, they were the stifling of organization.

Now, no labor union has ever had a right, constitutional right, common law right, any kind of a right to violate a contract that it is freely entered into as a result of collective bargaining.

It's grossly illegal conduct.

It does the country great harm.

Norris-LaGuardia by none of its proponents was ever intended to legalize that type of conduct nor to takeaway a beneficent remedy that would stop it because you may have all the talk you want, all we can sue this union, we can do this or that.

No court in the land including this high can restore lost production.

No amount of damages you could give this employer for an illegal strike would compensate the innocent employers who were involved in nearly every illegal strike that takes place.

And there is nothing heinous or unfair or socially undesirable about stopping an illegal course of conduct before it goes too far and brings about that irreparable damage that no one including this High Court can ever cure.

There is no real answer to our injunction prayer here except for counsel to assert, "Oh, what a horrible thing.

There'll be contempt, perpetual injunction running on, we didn't ask for that."

We ask only one single thing.

We used enough words so we hoped we didn't leave any loose ends.

But we asked only one thing, an injunction against any further strikes or stoppages over matters which could and if valid might be submitted to arbitration under this contract grievances falling within this contract.

It couldn't go out on strike over that either under this contract or any renewal or extension of it, that had be identical or substantially the similar language.

Now, to the extent that we asked for one beyond the then life of the then contract, we were reaching into the future in accordance with what I think are generally recognized the facts that these contracts generally and this one in particular provide for renewal.

And they usually are renewed.

The basic framework of many of these contracts stays the same year after year after year for grammar ambiguous clauses and everything else because anyone who's anything experience with collective bargaining knows that changing some simple little thing in there is the hardest thing in the world to do and it's about as broad as it is long.

This injunction was not a sweeping.

The injunction prayed for was not broad or sweeping.

Now, let me go to the damage comment.

Justice William J. Brennan: Clearly, that Mr. Christensen, I gather the Court of Appeals at least, you asked alternatively in any event for declaratory judgment, didn't you?

Mr. George B. Christensen: Yes, sir.

Justice William J. Brennan: Well, what does the Court of Appeals had referenced to?

I'm looking at 39 of your petition.

And it said -- when it denied you declaratory relief on the ground that the conduct of defendants, count sets forth alternative conclusions that the conduct of defendant shows either that they do not regard the provisions valid and binding have deliberately violated them.

Such allegation fails to charge the existence of controversy of a validity or enforceability requisite to support action for declaratory judgment.

Mr. George B. Christensen: Your Honor, with due respect to the Court of Appeals, I don't understand that anymore than you.

Justice William J. Brennan: Well, it didn't have --

Mr. George B. Christensen: And --

Justice William J. Brennan: -- reference to the fact that there was no live grievances, did it?

Mr. George B. Christensen: Apparently, I -- I don't know, but we were faced with this problem when we sought to come here, that we wanted certiorari granted and we didn't want to bring up too many questions and we brought up only the injunction question on our petition.

The question isn't opened here.

It hasn't been briefed.

Justice William J. Brennan: Then this matter of declaratory judgment is out of the case?

Mr. George B. Christensen: That's out of the case here.

We -- we did not raise it in our petition for certiorari.

We thought if we came up here with too many questions that we might not fair so well upon our petition.

Now, I go from our injunction count on which we asked you to grant certiorari to the union side of the case and they are complaining over the fact that the Court has held that we state a good action at law against the 24 committeemen.

And again, with your permission, let me be pretty practical.

The problem that is presented here is a very real one.

You have had congressional hearings on what has happened at the missile bases, or unions have said they can't control their men but there have been these stoppages that have been deadly serious to the national welfare.

You have plants such as this one, not typical of Sinclair's operation, praise the Lord, but typical for a time of this plant of nine stoppages in some 19 months.

You have one that I happen to know something about because it's occurring right now.

A plant of about some 800 men and I suspect in this case, what's going on is a -- is a political ruction within the union, very responsible union supposedly.

But 800 men walked out of that plant in Chicago, Friday and they haven't been back yet.

They're -- I haven't been at a telephone this morning, I don't think they are back.

And in that case, we have filed a suit, and the union lawyers told us there yesterday, "We aren't going to put in an appearance for those rascals.

They're out.

If they want to defend against that suit, they will have to defend it themselves."

Slightly different from the situation here which is why I say that a court and an employer is entitled to look with some degree of skepticism at the complaints that all of these wildcats are wholly the work uninstigated and unapproved by the union that may hold title to the collective bargaining contract.

In our brief, we set forth what some students have said about the number and volume of so-called "wildcat strikes".

They continue in great number throughout the country.

That's perfectly apparent that the illegal remedies thus far used had not been successful or the evil would have been abated a long time ago.

Yet, they continue.

So you come down to meet the legal propositions that are urged here.

They say, "Oh, don't sue these men, don't sue these men, sue the entity."

And this whole existence of the entity is as the agent or the man.

No union can go out on a strike.

It takes live people in a factory minor meal to leave their place of employment and go out on a strike.

No union per se can possibly breach a no-strike contract.

Only people can do it.

And the cases are legion that the committeemen of a union have a special sense of responsibility, arbitrator after arbitrator says, "It's alright to pick on them if you have one of these things and they go out, fire them."

It's a pretty harsh remedy in a good many cases.

That's a pretty difficult remedy in a good many cases because you might pick the wrong man and you end up with the Labor Board proceeding against you and an order to reinstate them.

That is not necessarily so bad in and of itself if the man is entitled to reinstatement, he should be reinstated.

But the fact that you have been -- have just wrong and have been compelled to do it, gives you a bad name with your employees that you have a hard time living down for many years.

It said, "Penalize this people.

Well now take the situation that my office is concerned within Chicago today, 800 people out on an illegal strike."

Now, who are we going to penalize there?

Let's say they are out the balance of this week.

We've lost a week's production at a time when we need production.

Are we then going to penalize ourselves another week's production?

We can't run the plant without them.

Or these 24 men that we have sued here, said, "Well, give them a month's layoff."

Well now despite our differences of opinion with them, it may be assumed they're pretty good competent workmen and that they're doing a good job in fulfilling valuable service, should we deprive ourselves of train -- 24 trainmen occupying responsible positions in a refinery where you need trained people?

The factory makes that for all this talk about the disciplinary powers that an employer has the proof of reporting this that they don't work very well.

They work so poorly and the threat of them rest so lightly upon the conferences of people inclined to make trouble that we have nine stoppages in 19 months at this plant.

But with the rather mild threat of this lawsuit, which if you divided the damages up, we prayed amongst these defendants that would amount to I think $510 a piece if my arithmetic is correct, I'm not -- if I were wrong with it.

Anyone of those men I think could pay that $510 and without too much effort cause refinery workers are pretty well paid.

Peace has been restored.

I don't think, Your Honors, if I were to exhaust my whole time, unless there be some questions that you have to ask of me, I could bring anything to this that you have not already considered.

My argument has have been pretty much down to earth to try to give the Court in -- I'm afraid a little rough and ready fashion, the real social production problems that exist behind this thing and the seriousness of this issue.

This notion that working men can be the beneficiaries of a contract whether you adopt the theory that they are a third-party beneficiary or that they are the actual party to the contract which has been made by their collective agent.

That they are not bound by that contract and that their breaches should be ignored as a legal matter, which is the position that the AFL-CIO amicus brief here takes and seems to be the position that Mr. Cornfield is taking this afternoon, is one that would be destructive of all stability in industrial relations.

Justice William J. Brennan: Mr. Christensen, that second count of your rest only on diversity of course, doesn't it?

Mr. George B. Christensen: It is so stated, it need not -- it need --

Justice William J. Brennan: What -- what -- what law would it to apply on the matter, the substantive claim?

What substantive law?

State or --

Mr. George B. Christensen: We proceeded on the theory that we would go upon -- upon state law.

I'm not at all sure we were right.

You can bring --

Justice William J. Brennan: You have a claim in the first count which is not before us I gather, it's still to be tried.

That's against the union for damages, isn't it under --

Mr. George B. Christensen: Correct.

Justice William J. Brennan: -- 301?

Mr. George B. Christensen: That's right.

Justice William J. Brennan: And that's plainly federal law, isn't it?

Mr. George B. Christensen: That's correct.

Justice William J. Brennan: You suggest as against the individuals, are these individuals officers or whatever?

Mr. George B. Christensen: They are committeemen.

Justice William J. Brennan: Well, in that sense, they are --

Mr. George B. Christensen: Yes, sir.

Justice William J. Brennan: So you're suing them in their representative capacity, aren't you?

Mr. George B. Christensen: No.

Justice William J. Brennan: No?

Mr. George B. Christensen: Not in the sense that by suing them we are binding the organization.

We are suing them --

Justice William J. Brennan: Well, I know but I --

Mr. George B. Christensen: We are suing them --

Justice William J. Brennan: Well, are you -- are you suing them as individuals allegedly who did things as union committeemen?

Mr. George B. Christensen: Yes, having the powers of union leadership, they did these things and were able to exercise an influence on leading people out.

Justice William J. Brennan: But why -- why isn't that then suing in a representative capacity?

Mr. George B. Christensen: Well, it -- it -- I think it is.

I -- I didn't want to -- in answering your question, we aren't suing them as a representative of the organization to bind the organization.

Justice William J. Brennan: But you suggest that state law can govern that claim whereas federal law would govern the claim against the union as such.

Mr. George B. Christensen: I -- I am not at all sure, Justice, that we are correct about that.

I'm not at all sure.

A case this count could just as well as not have been founded upon 301.

Now, we all learn as time goes on and there has been a lot learned about 301 since this complaint was drafted some three years ago.

I would not draft it this way again.

And it seems to me, it's inevitable from Lucas and Dowd that you are going to hold that a suit for breach of a contract must be determined by federal law.

You -- you passed that in Lincoln Mills.

Now, when you get to interference with that, we're suing these people in a combined equity in law theory or combined theory here of breaching their own individual contracts and inducing others too.

I don't see in logic any stopping point to that theory nor should there be.

I would think that tortuous interference of the contract would have to be decided by this body of federal law that the Court is creating roughly build around 301.

Justice William J. Brennan: Well if that so, I suppose it's possible then to say that since we have 301 then that obviously contemplates actions only against labor organizations.

And indeed permits recovery as there is a recovery only from the assets of the labor organization as such and to get around Danbury Hatters not from the individuals that we might conceivably fashion federal law that you couldn't bring this kind of action against the individuals.

Mr. George B. Christensen: I -- the answer to a question saying conceivably has to be yes.

The answer to a question is to what you are likely to do or should do is no.

Justice William J. Brennan: Well, as we should be.

Mr. George B. Christensen: Now, you -- you're -- you're faced basically with the proposition, are you going to hold that -- that a collective contract containing a no-strike clause is binding upon the employees who were the beneficiaries of it.

If you answer that it is not --

Justice William J. Brennan: Well, you have to agree that Congress certainly wanted, in an act in 301, to make very clear that Danbury Hatters was no longer law.

Mr. George B. Christensen: Correct, correct.

Now, and under -- under Count II, whether you consider it as determined by federal law or state law, under Count II, those individual defendants will not suffer a Danbury Hatters fate if we prevail.

Justice William J. Brennan: Because you get only $510 (Voice Overlap) --

Mr. George B. Christensen: Because we get -- we get only a judgment against men that we can prove participated, not a Danbury Hatters whole conspiracy thing where you bring him in and they're responsible for everything.

Danbury Hatters doesn't come into this or the evils of Danbury Hatters under any theory that I could conceive of that could apply to Count II, federal or state.

There is no Danbury Hatters evil in this case.

Justice William J. Brennan: Well, is that -- that you asked for a judgment jointly and separately against the individual defendant.

Mr. George B. Christensen: Yes.

Justice William J. Brennan: $12,500 --

Mr. George B. Christensen: Now --

Justice William J. Brennan: -- of cost.

Mr. George B. Christensen: What's wrong with that?

If you've got --

Justice Byron R. White: (Voice Overlap) 5000 suppose that would be, what (Inaudible)

You're really holding them for the damages that were caused by the failure -- awful lot of breaches (Inaudible)

Mr. George B. Christensen: No, no we don't say a awful lot of people to show up for work.

We say in here and we'll prove this.

Now, I don't know whether to be as to John or Henry.

These people let them out of the plant, took them out.

This isn't the Drake Bakeries case --

Justice Byron R. White: Alright, put it that way then, they might have got 5000 people afterwards.

It might be a much larger sum of 20.

Mr. George B. Christensen: Sir, and the sum of money -- the sum of money rises only with the evil of their own conduct.

Now, if they let out so many people at such a critical time that they did these things, there is no reason in the world why they like any other man, could not be responsible for his evil acts.

Well, I thank the Court for extension.

Chief Justice Earl Warren: Very well, Mr. Christensen.

Mr. Cornfield.

Rebuttal of Gilbert A. Cornfield

Mr. Gilbert A. Cornfield: I'll be very, very brief.

Justice William J. Brennan: Can you tell me quickly Mr. Cornfield, is it your view that there were no live grievances that did everything that involved in this the way the grievances has been resolved in arbitration?

Mr. Gilbert A. Cornfield: Oh, no, Your Honor --

Justice William J. Brennan: (Voice Overlap) --

Mr. Gilbert A. Cornfield: -- there are still the grievance spending regarding the -- the counties against --

Justice William J. Brennan: Well I --

Mr. Gilbert A. Cornfield: -- individuals.

Justice William J. Brennan: That's all I -- that's all I want to know.

Don't go into the detail.

Mr. Gilbert A. Cornfield: Alright.

I just wish to say this to the Court.

It is apparent that the so-called "sued against the individuals", the request for an injunction operating only into the future a blanket injunction, Mr. Christensen calls it limited but it refers to every contract in the future between these parties has concerns.

It is apparent that the intent of the employer is to have federal trial judges supervise the day-to-day operations of the workforce.

I agree, this isn't the best of all possible world, the situations in the -- the mills and the plants do not run as smoothly as -- as we would like in a fairy tale.

But it is not the place for federal district judges at this juncture why through contempt citations to be the administers of the day-to-day operations of the workforce.

Thank you.

Chief Justice Earl Warren: Very well.