BOIRE v. GREYHOUND CORP.

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Argument of Norton J. Come

Chief Justice Earl Warren: Number 77, Harold A. Boire, Regional Director, Twelfth Region, National Labor Relations Board, Petitioner, versus Greyhound Corporation.

Mr. Come.

Mr. Norton J. Come: Mr. Chief Justice, may it please the Court.

This case is here on certiorari to the Fifth Circuit which sustained an injunction issued against a representation election directed by the National Labor Relations Board.

And the question presented is whether a Federal District Court, under its general equity power has jurisdiction to enjoin a Board representation election at the suit of an employer who challenges its validity.

Now the underlying facts are briefly these.

In April of 1961, the Amalgamated Association of Street, Electric Railway and Motor Coach Employees Union filed a petition with the Board pursuant to Section 9 (c) of the National Labor Relations Act, requesting a representation election among the porters, janitors, and maids working at four bus terminals in Florida operated by respondent Greyhound.

The employees were on the payroll of Floors, a cleaning and maintenance service company which was under contract with Greyhound to provide such service at the four Greyhound terminals.

The Union contented that Greyhound was a joint employer of the employees, along with Floors and requested a single bargaining unit composed of the employees at the four terminals.

Greyhound and Floors on the other hand, contented that Floors was the sole employer of the employees.

After hearing, the Board found that while Floors hires, pays, disciplines, transfers, and promotes the porters, janitors, and maids, Greyhound exercised sufficient common control over their working conditions as to be their joint employer along with Floors.

It further found that a single unit consisting of all the employees under the joint employer relationship was appropriate.

Accordingly, it directed that an election be held in this unit to determine whether the employees desired to be represented by the Union for collective bargaining purposes.

Greyhound, contending that it was not the employer of the employees concerned and thus, that it had illegally been made a party to the representation proceeding, brought this suit in the District Court for the Southern District of Florida to enjoin the election.

The District Court issued a temporary restraining order which after hearing was converted into a permanent injunction.

It predicated this action on the decision of this Court in Leedom versus Kyne which recognized District Court jurisdiction in what I shall try to show later is a very limited situation, totally distinguishable from the situation that we have here.

The --

Justice John M. Harlan: The merits (Inaudible) determinations even though required (Inaudible)?

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

Justice John M. Harlan: We don't have that at all.

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

The Board appealed and the Fifth Circuit affirmed on the opinion of the District Court.

We submit, briefly that the Fifth Circuit was erroneous, that the statutory review provision of the National Labor Relations Act submit a -- provides an adequate way by which Greyhound could have had its contentions reviewed and it was Congress' intention that that would be the exclusive procedure by which those contentions could be reviewed.

And as I mentioned before, that the exception recognized in Leedom against Kyne is not applicable here.

Now let --

Justice Arthur J. Goldberg: Mr. Come, in reference to Justice Harlan's question, how can they declare the answer if the merits of the case are not before us?

The whole case as the District Court asserting its jurisdiction (Inaudible) that the employees in question were not employed by Greyhound, isn't that what this case involves?

Mr. Norton J. Come: Well, Your Honor --

Justice Arthur J. Goldberg: I'm not saying --

Mr. Norton J. Come: Yes.

Justice Arthur J. Goldberg: -- (Inaudible) results would be that (Inaudible)

I take it, what in issue here is, can the District Court as you've stated, doesn't have jurisdiction (Inaudible) to the Board's finding, doesn't have jurisdiction to enjoin the Board's order?

Surely, the basis upon which the District Court proceeded to (Inaudible) the District Court concluded that there is no substantial evidence that Greyhound was the employer.

That is not the case (Inaudible)

Mr. Norton J. Come: Well, the District Court, Your Honor, did not have before it the record of the Board proceeding.

It went on the basis of the complaint that was filed in the District Court filed by Greyhound which, attached to it, the Board's decision without the underlying evidentiary basis for the Board decision.

Justice Arthur J. Goldberg: The allegation --

Mr. Norton J. Come: Now --

Justice Arthur J. Goldberg: -- the allegations in the complaint is a question (Inaudible) on the propriety of the Board taking action in order to (Inaudible) employee, so it was alleged, and that employee (Inaudible).

Mr. Norton J. Come: Well we submit in the first place, Your Honor, as I will try to the -- try to develop, that there is no jurisdiction in the District Court to review, at the suit of an employer, a Board direction of election no matter what the allegation is as to the basis of what are the Board's action.

Furthermore, there is no -- since an election is involved which imposes no irreparable injury, there isn't a case for equitable relief apart from the question of jurisdiction.

Now, Kyne versus Leedom recognized that in the case of a Labor Union which was challenging not an election but a certification and which did not have the adequate remedy that the employer has opened to it that there was jurisdiction where it appeared that the Board violated a clear provision of the statute.

Now, we don't think that you reached that exception with respect to a situation where you have, first of all, a challenge to an election and, secondly, a person like an employer that has an adequate remedy under the statute.

But, our third ground for distinguishing Kyne against Leedom, if it is necessary to reach it is that unlike Kyne against Leedom, this is not a case where it is apparent from the face of the complaint and the exhibits attached to it which includes the Board's decision and order that the Board has acted plainly contrary to the statute.

And therefore to that limited extent, it may be appropriate to look at the basis for the Board's action, but the merits are not here in the sense that it is appropriate for this Court to review the entire evidentiary basis for the Board's decision.

Justice Arthur J. Goldberg: Is there any argument at all on the (Inaudible)

Mr. Norton J. Come: There is not too much argument.

I think that the Board record develops them in much greater details than the Board has set them out in its -- in its decision.

I --

Justice Arthur J. Goldberg: Greyhound -- did Greyhound (Inaudible) and then the contract is now with Floors?

Mr. Norton J. Come: That is correct.

Justice Arthur J. Goldberg: Opposed to Floors in charge of those employees (Inaudible)

Mr. Norton J. Come: As a matter of fact, some of the same employees that Floors are using used to be Greyhound's employees.

Justice Arthur J. Goldberg: They used to work with Greyhound.

Mr. Norton J. Come: Yes.

So, that this is what -- at -- at best, one of these mixed questions of fact and law where -- in order to determine the propriety of the Board's decision, you got to look at the full record.

It isn't a case like Kyne against Leedom where it was open and shot that you had a specific statutory provision involved that the Board had been violating.

I like to say a word about the statutory scheme which this Court is familiar with.

Sections 10 (e) and (f) of the Act provide for review in the Court of Appeals of a final order of the Board which this Court has interpreted to mean an order entered at the culmination of an unfair labor practice proceeding under Section 10.

Section 9 (d) of the Act provides for review of a representation case only when it forms the basis for an unfair labor practice order and that order is itself before the Court for review under Section 10 (e) and (f).

Now, what does this mean in terms of this case?

It means this.

That Greyhound could have had its contentions respecting the invalidity of the election reviewed under the statutory procedure.

What it could have done is it could have proceeded to an election.

If the Union lost the election, there's no injury to Greyhound.

If the Union won and were certified, Greyhound could have refused to bargain with the Union on the ground that the certification was invalid because Greyhound was not an employer of the employees involved.

This would have subjected Greyhound to an unfair labor practice charge alleging that it had refused the bargain in violation of the Section 8 (a) (5).

And were the charge sustained in an order compelling bargaining issued, Greyhound could have obtained review of the bargaining order and the underlying certification under Sections 10 (e) or (f) of the Act.

Now, it couldn't be plainer, we submit, that Congress intended that this would be the exclusive means by which an employer like Greyhound could obtain review of a Board direction of a representation election.

Justice Byron R. White: Even if the employer or even if the Board obviously in the -- on the face of the statute violated it?

Mr. Norton J. Come: We think, yes, Your Honor.

However, this is not such a case, as I've indicated before.

Public Resolution 44 which created the first National Labor Relations Board to administer Section 7 (a) of the NRA provided for immediate judicial review of Board orders and representation proceedings in the Courts of Appeals.

Experience showed that the employers took advantage of such a broad review provision that contest orders directing elections and virtually every case in which the Board had directed one, thereby delaying the commencement of collective bargaining.

The Senate Report on the Wagner Act well-aware of the experience under the NRA pointed out, and I'm quoting from a passage that's in our brief, that after almost a year, not a single case in which a company has chosen to contest an election order of the Board has reached decision in any Circuit Court of Appeals.

And in the House Report further pointed out that the abilities of employers to block elections had been productive of a large major of industrial strike.

What had happened was that the Union had build up employee support and with the delay in proceeding to an election, that strength had been worn away and the result was that they had to strike in order to try to maintain their position.

Now, in the Wagner Act, Congress sought to avoid this problem by providing in Section 9 (d) for this indirect review of representation proceedings that I had outlined before.

And, a Senate memorandum, which is in our brief, comparing the previous arrangement with the Wagner Act provision, pointed out that Section 9 (d) is a new provision intended to make it clearer that when the Board orders an election, persons affected by that order cannot come into court until after the election has been held.

And this is where a theme is repeated time and time again in the legislative debates, as we've pointed out in full in our brief.

And the history doesn't stop there because, in 1947, when Congress was enacting the Taft-Hartley amendments, the Hartley Bill contained a provision which would have permitted direct review of representation determinations, not at an election stage as here, but at least at the certification stage.

And one of the reasons for that was that the employer, and these are the reasons that the District Court here relies on for finding an exception for District Court review, could obtain review under the statutory procedure only by cumbersome proceedings that always involve the risk of a strike and a -- and a finding that the employer by following the statutory course had committed an unfair labor practice.

And notwithstanding that, Congress, in conference, deleted this provision, keeping 9 (d) as it was under the Wagner Act and Senator Taft, explaining the deletion, pointed out that other -- that the House provision would have permitted dilatory tactics in representation proceedings.

The nub of this is, we submit, that to permit Greyhound to obtain District Court review in the situation here is the sanction precisely what Congress sought to avoid.

Now, what has come to Kyne against Leedom, which I indicated at the outset, recognized an exception to the general preclusion of District Court review of Board representation proceedings and the case last term, Sociedad, which recognized a further situation for District Court review.

Although the court took great pains, we submit to emphasize that it was not impending thereby to open up the very limited exception that Kyne had -- had created.

The situation in Kyne was this.

The Union won a Board election in a unit consisting of 233 professional and 9 non-professional employees, and was certified as the representative in that unit.

You had the election, you had the certification.

After the certification issue, the Union brought suit in the District Court to set aside the certification on the ground that the nine professionals had been included in the unit without the professionals first having had an opportunity to vote separately on the question of whether they wanted them in unit.

It was alleged that this was contrary to Section 9 (b) (1) of the statute which provides that professional and non-professional employees shall not be included in the same unit unless the majority of the professionals' vote were such included.

In other words, you had a very narrow provision that seemed to be very specific and it seemed like the Board had very clearly violated it.

This Court found that the Board's action was plainly in excess of its delegated powers and contrary to a specific prohibition in the Act.

But the Court didn't stop there, we submit, as we read its opinion.

It further pointed out that such unlawful action had inflicted an injury on the professional employees because the election had already been held and the certification it issued.

And that this we believe is significant, at the absence of jurisdiction of the federal courts would mean, and now I'm quoting from the opinion, "A sacrifice or obliteration of a right to which Congress has given professional employees where there is no other means within their control to protect and enforce that right."

The Court held that, in those circumstances, it could not be inferred that Congress had intended to foreclose a judicial remedy.

Now, as I pointed out, this Court only last term in the --

Justice Byron R. White: (Inaudible)

Mr. Norton J. Come: Was who, Your Honor?

I --

Justice Byron R. White: (Inaudible)

Mr. Norton J. Come: The Union representing them was seeking this pure unit that would be restricted only to professional employees.

Now, there was no dependable way on which they could have gotten their contention as to the invalidity of the unit reviewed under the statutory review proceeding for this reason.

Though they were certified, they, unlike the typical union that is aggrieved by a representation determination and loses an election, were in a position where theoretically they could have insisted that the employer that they would bargain only for the 233 professionals and they wouldn't bargain for the 9 professionals.

But, in that situation unlike the case that -- the traditional case of the employer, the chances of a charge being filed against the Professional Union for refusing the bargain were slim, if not indeed, largely academic because --

Justice Byron R. White: (Inaudible)

Mr. Norton J. Come: What is that, Your Honor?

Justice Byron R. White: (Inaudible)

Mr. Norton J. Come: In the Kyne case, we made the argument in a Footnote in our brief that we thought that the Union in Kyne was in a position where it could have availed itself of the statutory review procedure because theoretically possible, it was possible that a refusal of bargain charge could have been filed against that Union.

However, the Court of Appeals in the Kyne case found and we believe that this Court accepted that finding in affirming the Court of Appeals, that in the circumstances presented in Kyne, the statutory review procedure was not as dependable and as reliable as is the statutory review procedure for the case of the employer in the situation here for the reason that, if the Professional Union refuse to bargain except in a Union -- in a unit which was different from the unit certified by the Board, it was most unlikely that the employer would file an unfair labor practice charge against that Union.

It was much more likely, the Court of Appeals found, that the employer would be content or just not bargain at all as he was free to do prior to the Board certification because the employer could hardly be subjected to an unfair labor practice on his part for refusing the bargain in the unit other than the one that the Board had certified.

Secondly, there was a possibility that the nine non-professionals could have filed a charge against the Professional Union for refusing to bargain on their behalf, but the Court of Appeals found that that was very remote and unlikely in view of the fact that these nine represented such a minority in the total picture that they would not be wanting to jeopardize the already bad relations that they had with the Professional Union.

Now, the case of the employer, which is what we have here, is totally different.

It's not only different analytically, but experience has shown that it's different.

Namely, a Union is in the business of -- of representing employees of that Union is certified for a particular group of employees and the employer refuses to bargain, it is virtually inevitable that that Union will file a charge with the Board alleging a refusal of bargain and experien --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Norton J. Come: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Norton J. Come: The Union could -- the Union could strike, Your Honor, but I submit that, in the first place, if it strikes, it's virtually as likely as it was in the case that I heard earlier today that the Union is going to couple that up with a refusal to bargain charge because if it doesn't do that, it's going to jeopardize the status of these strikers.

They would be only economic strikers who would be subject to replacement.

Furthermore, the Union might get into some problems under 8 (b) (7) which limits the time that you can strike-picket for recognition if you haven't gotten an unfair labor practice writing.

Secondly, the fact -- whether or not the Union gets review at the district -- or whether not the employer gets a review at the District Court or not of the Board's representation determination is not going to avoid the likelihood of a strike because the setting aside of the representation determination is not going to preclude the Union from striking.

And as a matter of fact, it was Congress' judgment that the chances of getting a strike were much more likely if you bottled up the representation proceeding at the election stage and let things drag for two to three years before you get that resolved and then look at the situation that you have.

If ultimately, the Board is to prevail, the employer gets a second bite at the apple because he still cannot be ordered to do anything until the Board issues a bargaining order and then we got to go back up to the statutory procedure.

And I leave on this note.

Senator Wagner, in the course of the debates in the Wagner Act, pointed out that the Act here does not stoop to the following of having the Board fall in the court twice, once before the election and then a second time after the election.

And that is precisely what would happen under the situation that we have in -- in this case.

And for the reasons indicated, we submit that the judgment below should be reversed and the case remanded with directions to dismiss for lack of jurisdiction.

Chief Justice Earl Warren: Mr. Hall.

Argument of Warren E. Hall, Jr.

Mr. Warren E. Hall, Jr.: Mr. Chief Justice, may it please the Court.

At the outset, I should like if I may to respond to a few of the questions that Mr. Justice Goldberg posed to Counsel for the Government to explain a little bit further about the facts of this case.

In the first instance, the inquiry, Mr. Justice, with reference to the record before the Court, there was no point in there being a record before the Court because this was not an action to review a finding of the Board.

This was an action to vacate an -- an act unlawfully taken by the National Labor Relation Board.

I will elucidate on that in a minute.

But in this case the petition -- the direction of election which was attached to the complaint which was the only thing before the Court besides certain affidavits and other attachments to the complaint, showed on its face that the Board had made finding of fact which as a matter of law required under the expressed congressional intent in enacting the Taft-Hartley Act in 1947.

The Board had made a finding which it was prohibited from making as expressly as did the Board make in its error of statutory construction in the Kyne case.

The history of the case goes a little bit further than behind the date of the petition for an election in this case.

Attached to -- and also attached to the complaint and made a part of the record in this case is also a finding -- a set of findings of fact and conclusions of law and an order of the United States District Judge for the then Southern District of Florida, now Middle District of Florida, wherein when this contract came up in 1954, not just 1960 when the petition for election was filed, in 1954, the -- the employer told the Union that it was going to format this work to an independent contract.

The Union said that if you do -- and this a matter of record in this case, may it please the Court.

The Union said, "If you do, we will have a system-wide strike which will continue until you breach your contract with the pro -- proposed independent contract."

Therefore, rather than experiencing that, the Union and the employer agreed to forbade either putting the contract into effect or to instigating a strike until a declaratory judgment complaint was filed with the District Court and resolved.

Such declaratory judgment complaint was filed with Judge Simpson.

He made findings of fact, conclusions of law, including that this was a contract established in an independent contract to employee-employment relationship rather than an employer-employee relationship, insofar as Greyhound and Floors were concerned, and that the company was not violating this contract by forming this workout.

So those matters, Mr. Justice Goldberg would -- were determined some five years prior to the initiation of the petition for -- for election in this case.

Now, we have much of and we live much with legislative histories, but I should like very much to call the Court's attention what the legislative hence -- history as of the time of this case, as of the present time, really is.

The early legislative history, as Counsel for the Government has pointed out quite correctly, arose in the enactment -- the preparation for the enactment of the Wagner Act in 1935 because of this Court's declaring the Section (7) (a) of the Industrial Recovery Act and Public Resolution 44 implementing that Act unconstitutional.

In the history of that Act, the legislative history the -- of the Wagner Act, it was pointed out and quite correctly, that the -- that Resolution 44 under which the Government had theretofore proceed, had permitted anyone aggrieved by any order at any stage of the proceedings to go to a Circuit Court of Appeals of the United States and obtain relief.

And that the history had been up to the time of the enactment of the Wagner Act that employers did frequently go, more often than not, take a direct review prior to any further administrative proceedings and that that was bad, that the National Labor Policy was not properly being implemented.

So to correct that situation, the legislative history is full of language referring to employers and employers seeking an injunction but not one bit of all that legislative history refers to employers as distinguished from -- from Unions only because it was not until the enactment of the Taft-Hartley Act in 1947 that Unions and employers had comparable responsibilities and duties under the Act.

Therefore, their effort to distinguish between the right of an employer, on the one hand, to go to a District Court, if there'd be such a right in anyone, as against that of a Union is not a valid distinction.

There is no legislative history, let me say, that establishes that as a valid distinction.

The early cases which came before this Court on this subject matter and with regard to which this Court withheld jurisdiction to act, withheld the question until the Leedom v. Kyne case.

Did not decide this question nor did any decision of this Court at any time ever hold that action of an administrative agency, acting beyond the scope of administrative authority, that is within the confines of the authority and powers vested in any such agency by Congress.

At no time had this Court ever held that that was not judicial -- judicially subject to a complaint of petition to a District Court of the United States under the judicial code on its general powers of equity to review an Act taken up pursuant to an act of Congress.

And to obtain relief if that were contrary to a statute.

Now, when we got into the actual enactment of the Taft-Hartley Act in 1947, and you, legislative history, may it please the Court, began to take place.

We began for the first time to subject Unions to the same sort of responsibility in their acts as employers that they have theretofore been subjected to under the Wagner Act, did more than that.

A lot of this -- a lot of this legislative history that predates the Taft-Hartley Act is based upon the fact that the Wagner Act said that the authority to enforce unfair labor practice proceedings was exclusively within the National Labor Relations Board, that's in 10 (a) of the Wagner Act and 10 (a) of the Taft-Hartley Act effective August 23, 1947.

The language was intentionally stricken by the Congress to remove the implication that the Board had exclusive jurisdiction.

Now, the court -- the Taft-Hartley Act did two of the very important things which as I say, do violence, if not destroy a lot of the previous legislative history with regard to judicial review.

First, the only -- the early cases, including the Myers case, the first one in 1938, Myers versus Bethlehem Shipbuilding Corporation, expressly relied upon the fact that the -- whoever was involved, be it an employer or a Union, had adequate judicial recourse by commitment of an unfair labor practice and going through the entire tortures proceeding of an unfair labor practice and then having the case reviewed prior to being made to do anything.

Now the Taft-Hartley Act stopped that.

The Taft-Hartley Act included a new section known as Section 10 (j).

And Section 10 (j) of the Taft-Hartley Act that says -- says, "Prior to a hearing, at any time when the Board has issued a complaint that a -- an employer or a Union has committed an unfair labor practice that the Board may go to the United States District Court and obtain an injunction."

And the court -- and the Board and the courts have repeatedly granted injunctions, compelling both Unions and employers to bargain before any Circuit Court of Appeals has ever had a shot at that -- to review such an action.

Justice Byron R. White: Well, are you -- you're saying that if the Board ordered an election, say, in a -- in a unit that was to cover two plants instead of one, and the employer thought it ought to cover only one plant or that the two plants ought to be in separate units, that the employer could go into court and stop that election and have it tried out in court before the certification?

Mr. Warren E. Hall, Jr.: Mr. Justice White, I'm not making that contention.

To the contrary, I'd say that this would apply to only the most exceptional case where on the face of the direction of election, it showed that the Board had acted beyond its authority and without statutory power.

Justice Byron R. White: But that's true in the -- in the case you have here, it's true only because you -- you're just saying it's clear that these are independent contractors.

Mr. Warren E. Hall, Jr.: I'm saying that the Board found facts which compel a legal conclusion that these employees were not the employees of the respondent here but the employees of someone else.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Warren E. Hall, Jr.: I understand, Mr. --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Warren E. Hall, Jr.: No, Mr. Justice, it does not.

Justice Arthur J. Goldberg: Except (Inaudible)

Mr. Warren E. Hall, Jr.: No, sir.

I do not -- I -- I disagree, Mr. Justice.

Justice Arthur J. Goldberg: Well, why do you?

Mr. Warren E. Hall, Jr.: Because there's a contrary finding which does -- that -- that does not offset earlier in the opinion and direction of election.

First, whatever control that the Board finds, and they only find by way of conclusion that there was control in Greyhound over these employees of Floors, they first found --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Warren E. Hall, Jr.: I agree, Mr. Justice.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Warren E. Hall, Jr.: I agree, Mr. Justice, with each of the findings there as being even more than conclusions.

But that as the matter of law and as a matter of constitutional -- I mean of congressional proscription against the Board, that one cannot be an employer of employees with regard to whom he cannot have, pay, discipline, transfer, promote, discharge, etcetera, which the Board made a specific finding with regard to Floors, Inc. and not to Greyhound.

These other elements are quo -- are controlled -- are elements of control which are insufficient to establish the control necessary to be an employer with regard to employees over whom someone else exercises these basic controls without -- without for instance the power to discharge, one cannot bargain with regards to those things which are covered by Section 9 (a) of the Act.

Justice Arthur J. Goldberg: Is there -- I can assume (Inaudible)

Mr. Warren E. Hall, Jr.: As a ---

Justice Arthur J. Goldberg: -- (Inaudible) this as a matter of law.

Mr. Warren E. Hall, Jr.: I do, Mr. Justice.

And I say that not just because of the general law with regard to what constitutes an employer-employee relationship.

I say it with specific regard to the legislative history of Section -- to the enactment or adoption of Section 2 and 3 of the Taft-Hartley Act.

That legislative history is set forth in pages 10 and 11 of the brief of the respondent.

That legislative history says it believes that the National Labor Board and this Court, in the Herz case way back in 222 U.S., had this Court relying upon the Board's alleged expertise, had defined an employee to be someone who was not in fact an employee.

What the Board had done and what it has done for sometime before was to consider economic and social purposes as governing the question of the employment relationship for the purpose of the National Labor Relations Act.

The Congress changed the Act in 1947 and the legislative history shows that it's expressly intended and directed to Congress -- the Board to not thereafter call someone who is an employee -- who was not an employee within the concepts described in the very legislative history, namely that one who works for another for hire.

Together with the elements of control which show an employment relationship, not an employment relationship for general purposes necessarily but the employment relationship necessary to bargain, which is the ultimate, to bargain with regard to wages, working conditions, hours of employment, etcetera.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Warren E. Hall, Jr.: And --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Warren E. Hall, Jr.: In a number of ways, Mr. Justice.

In the first place, as I say the record reflects in this case that if the -- if a -- my client were not protected by an order of the court that says he is not the employer in the case, he would be the employer.

And his right to not be an employer came into being the instant that the Board granted this decision of direction of election.

Therefore, he went to the court the very earliest time that right came into being.

He destroys -- destroyed that right.

The history in the record of this case shows that the Union would probably more than -- probably, rather than probably not because of their threats existing when the employee -- when the court held that the employer was not the employer.

That they would then go into a system-wide strike and shut him down.

Now, I would like to buttress that with one further argument along that line and that is the simple fact that what does happen, we have all of these legislative -- legislative history and all these rules of probability and possibility.

What happened in this case for instance?

There certainly no labor strife that arose from the granting of this injunction.

That was the thing that has caused this Court to act very cautiously in this field of jurisdiction.

Secondly, and adverting again to jurisdiction, the legislative history of the Act from its very inception, including the old RIA.

The legislative history was related to the Congress' desire that these actions of the administrative agency not be reviewed, where?

In the United States Courts of Appeals.

Not one bit of it is addressed to the right of the United States District Court acting under the authority and the only authority they have and that is that which is granted to them by the Congress to vacate any order which is found -- has been made in excess of legislative power, which is precisely what the District Court did in this case.

There were --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Warren E. Hall, Jr.: If the Union had struck, Mr. Justice, in this case, in a case where the -- where Greyhound was not the employer, the Union would have been violating Section 8 (b) (4) (b) of the Act automatically.

Justice Arthur J. Goldberg: The workers would strike the contract (Inaudible)

Mr. Warren E. Hall, Jr.: They had a right to strike the contract.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Warren E. Hall, Jr.: They could still strike the contract.

Justice Arthur J. Goldberg: I know but they are the same contract to (Inaudible) --

Mr. Warren E. Hall, Jr.: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Warren E. Hall, Jr.: I don't know.

I don't know whether the -- the Union which did not represent them would've respected their picket line or not.

That's speculative.

But one further characterization of the relationship here which I think is extremely important. What is the nature of Floors Incorporated, the independent contractor in this case?

As the briefs pointed out, as the records point out, this is an organization, a corporation engaged in the cleanup and related types of business including the repair of vehicles and that sort of thing.

It's engaged generally -- as a matter of fact, it was actually engaged in the cleanup under a contract in the federal building both in -- in Jacksonville and in -- in Tampa, where we tried this case once before the Fifth Circuit and once before the District Court.

These -- these people rotate these employees.

That's why it's most important that there is a finding by the Board that they transfer them.

That means they transfer them to work all over everywhere.

These people do not work just for Greyhound.

These people are transferred.

These people represented at the time of the hearing less than 6% of the total employment of Floors' employees in each of the four areas described without regard to any other areas.

Therefore, we get to the real point is that, why was Greyhound ever named in this case as an employer?

No.

It was named as a practical problem.

First -- first, the Union filed a petition for election in which it named Floors, Inc. as its employee -- employer and setup the same proposed unit, Jacksonville, Miami, St. Petersburg, and Tampa.

Those -- those employees of Floors working at Greyhound's terminal but they named Floors as the employer.

Well, of course, it was not an appropriate unit.

They could never have gotten any.

Mr. Justice Berg -- Goldberg will understand that completely.

It was an inappropriate unit.

They could not have gotten an election order under those circumstances.

Therefore, in order to get an election or attempt to get an election over employees whom they could not otherwise represent, they brought in Greyhound, called Greyhound a joint employer.

And Greyhound, on the very face of the Board's decision and directly I submit, may it please the Court, is not an employer.

Chief Justice Earl Warren: Is that the end of your argument?

(Inaudible)

Mr. Warren E. Hall, Jr.: I was stopped because of the light, Mr. Chief Justice.

Chief Justice Earl Warren: (Inaudible)

We'll recess now.

Mr. Warren E. Hall, Jr.: I will --

Print this transcript Transcript: 

Argument of Warren E. Hall, Jr.

Mr. Warren E. Hall, Jr.: This is about -- of what -- of how this case fits into the theory of the doctrine of the case of Leedom versus Kyne is most important.

We say that without the Leedom -- with the Kyne case, without that, because of general principles of equity in -- in the United States District Courts, as recognized, this Court -- by this Court all the way back and I'll do as one of the earlier counts that did refer back all the way to Marbury versus Madison.

As a matter of fact, I do in my brief.

But the jurisdiction of the District Court in the current case was predicated upon at least six of the identical facts which -- or situations which exist here.

First, the Board's action was contrary to statute, and it was just as contrary to statute as it was in Kyne case, and in direct conflict with an expressed statutory prohibition which the legislature had reflected in amending the definitive section of employee.

It was not an action for review, as was the case in -- neither in Kyne or in this case wasn't an action for a rule -- a review.

It was an action set aside acts taken by an agency in excess of statutory authority.

In both cases, the Board exercised powers which the Congress had specifically withheld.

And that's reflected in the legislative history.

In both cases, the rights of the parties were adversely affected by the act of the Government.

And if one is deprived of a right granted by a statute, he is per se, may it please the Court, damaged, and this Court so held in Leedom versus Kyne.

This employer had no more and no less recourse to unfair labor practice proceedings and the Section 9 review proceedings then did the Union in kind.

They both had exactly the same rights and they both have exactly the same rights.

There is no basis, whatsoever, upon which to distinguish between the status of an employer and the status of a Union in this case.

You -- probability is merely probability.

The fact is that the Union, and as the Board contended in its brief in kind, which we've set forth in a footnote in our brief.

The Board contended there, and they contended strongly, that the Union had recourse elsewhere, but that it didn't make any difference if they had recourse on the unfair labor act proceeding.

I respectfully submit that what the respondent here, what I'm doing, my client is doing here, is not to try to enlarge the doctrine set forth in the Kyne case.

Justice Byron R. White: Mr. Hall, it seems to me, you are -- the Board's position is (Inaudible) did say that the Board had some control over Greyhound (Inaudible)

That adds up --

Mr. Warren E. Hall, Jr.: That's correct.

Justice Byron R. White: (Inaudible)

Mr. Warren E. Hall, Jr.: Not as a matter of law, Mr. Justice, nor, as a matter of the legislative history as to what employment is.

Justice Byron R. White: So, it's you against the (Inaudible)

Mr. Warren E. Hall, Jr.: Well, there is a violation right on the face of this order which is a violation of an expressed --

Justice William J. Brennan: (Inaudible)

Mr. Warren E. Hall, Jr.: No, sir.

I --

Justice William J. Brennan: (Inaudible)

Mr. Warren E. Hall, Jr.: Mr. -- Mr. Justice Brennan, may --

Justice William J. Brennan: (Inaudible)

Mr. Warren E. Hall, Jr.: No, Your Honor.

Justice William J. Brennan: Nevertheless, as I understood (Inaudible)

Mr. Warren E. Hall, Jr.: May -- may I, Mr. Justice Brennan, simply say this, and my contention why it is directly in violation of the statute.

When read in the light of the legislative history, which is set forth at pages 10 and 11 of our brief, in taking everything that the Board said, both pros and cons, there is not an employment relationship between Greyhound and the employees of Floors, either joint or otherwise.

Thank you for your indulgence.

Chief Justice Earl Warren: Mr. Come.

Argument of Norton J. Come

Mr. Norton J. Come: Unless the Court has some questions, I don't have anything further to add.

Chief Justice Earl Warren: Very well.