STEELWORKERS v. LABOR BOARD
Legal provision: National Labor Relations, as amended
Argument of Jerry D. Anker
Chief Justice Earl Warren: No.89, United Steelworkers of America, AFL-CIO, et al., Petitioners, versus National Labor Relations Board.
Mr. Jerry D. Anker: Mr. Chief Justice, may it please the Court.
This case like the two which have just been argued also arises under Section 8(b)(4)(B) of the Taft-Hartley Act as amended.
The questions presented in this case, however, are quite different from those that are involved in the cases which you have just heard.
We're not concerned here with consumer picketing nor with appeals to high level supervisory employees.
Nor are we particularly concerned with the 1959 Amendments to the Act.
The conduct that's involved in this case is the more traditional union conduct of appealing to employees to withhold services, there's no dispute about that.
And the question is whether the particular appeal in this case is prohibited by 8(b)(4)(B) or is not.
Specifically, the question presented in this case is this, may a union which is on strike at an industrial plant, picket one of the entrances to the that plant which is used by a railroad to provide pickup and delivery services at that plant for the purpose of the preventing the railroad from performing those services.
I will say that there is one fact in this case which it had in common with all the others although it's often said that Section 8(b)(4) was intended to protect neutral employers, not the employer which whom the union is engaged in a lawful dispute.
But I think it's significant though, obviously not controlling that in each of the three cases that -- before the Court today, the employer who's complaining that's he's being -- that the complaining of a violation is the primary employer and yet in each case, the primary employer saying, "We are complaining because you were hurrying, that isn't neutral."
The strike in this case was against Carrier Corporation which is one of the respondents here.At the large plant that company has in Syracuse, New York.
In connection with that strike, the union picketed all the various inferences engaged to the plant but the dispute concerns only to picketing which took place at one particular gate.
A photograph of that gate appears on page 305 of the record.
Its general counsel's exhibit number two and I believe it's easier to visualize the -- what exactly is involved in that case if we look at that photograph.
The chain-linked fence which you see in that picture is the fence which surrounds the main Carrier property.
At one time, Carrier owned all of the real estate which is with -- within that fence.You can see the Carrier plant off the left just behind that clump of trees.
Some years before this particular case arose, Carrier conveyed to the New York Central Railroad, a 35-foot strip along the southern part of that property, just inside this fence on which these railroad tracks run, you'll see the railroad tracks there on the photograph.
Now, those particular tracks are used for two purposes.
As you see, just inside the gate they divide into two-fourths.
The right hand railroad track is used to provide pickup and delivery service not to Carrier but to other -- two or three other industrial plants which are in the immediate vicinity adjoining Carrier.
Justice Potter Stewart: Right and within the -- within the area enclosed by the gate?
Mr. Jerry D. Anker: No, not within the fence, Your Honor, further down.
You can see it in this picture.
There are other gates, other little spur tracks off of that right hand track and other gates through which those tracks run.
Justice Potter Stewart: Just run through another gate?
Mr. Jerry D. Anker: That's correct.
Justice Potter Stewart: Now in the -- the gate itself which is visible on the foreground of a -- exhibit number two at page 305, does that gate belong to the New York Central?
Mr. Jerry D. Anker: I suppose the gate does, that's right because they own the piece of real estate on which gate is.
Justice Potter Stewart: And they own the real estate over which that gate is?
Mr. Jerry D. Anker: Yes, that's right.
Justice Potter Stewart: And the -- and they have the keys, don't they?
Mr. Jerry D. Anker: I think that's right although I -- I -- I'm not sure this makes any difference.
I think there are some guards employed by Carrier that also have keys.
Justice Potter Stewart: By the fact it is --
Mr. Jerry D. Anker: I'll concede for the purpose of this case that the keys are in control of the railroad.
The left hand track, as I said, serves Carrier and further down again out of view in this picture, there are little spurs off of that left hand track which run right into Carrier plant onto Carrier property, into Carrier warehouses where cars are loaded and unloaded.
Now, for the first nine -- ten days of this particular strike, although there was picketing at this gate throughout I believe, the railroad made no effort to provide service to Carrier but used this gate in this right hand track to provide services to its other customers and the union pickets interfered in no way with those operations.
Those operations went on without any difficulty of any kind.
On the tenth day of the strike which was March 11, 1960, by prearrangement between Carrier and New York Central, the railroad attempted to provide service to Carrier.
Specifically, it wanted to move 14 railroad cars -- empty railroad cars into a Carrier Warehouse and pickup from that same spot an equal number or approximately equal number of cars which had been loaded.
On that day, it first provided service to its other customers and so long as it was doing that, the union pickets did not interfere.
Then, it withdrew from the gate that the certain distance where it had left the 14 railroad cars which were destined for Carrier.
It picked up those cars and by the way, also at that point, picked up another crew.
The regular railroad employees were unwilling to provide service to a struck plant.
They were therefore relieved by the New York Central of their assignment for that period and the train was then manned by lower level of supervisory people, and with that new crew proceeded back toward this gate with the purpose of bringing those cars into the struck plant.
It was at that point that the conduct took place which is an issue in this case.
The pickets both by peaceful persuasion, and also, there's no dispute about this by trying to obstruct -- physically obstruct the passage of this train by standing on the tracks, try to prevent this particular service being performed for the company with whom they were on strike.
Now, in the process of moving those cars in and taking the loaded cars out, it caused this fork that's right here and near of the gate.
The railroad had to pass several times back and forth to accomplish those switching operations at that fork and each time that the train came out of the gate or tried to go back in, it was met with the similar kind of conduct by the union pickets.
Justice Potter Stewart: There is attempted physical obstruction of the move.
Mr. Jerry D. Anker: Oh, that's right.
Justice Potter Stewart: By how many people?
Mr. Jerry D. Anker: I don't know, quite a -- quite a number of people.
Justice Potter Stewart: A number of -- several?
Mr. Jerry D. Anker: Several -- yeah, many people.
Justice Potter Stewart: And not all -- a -- an automobile was involved, wasn't it?
Mr. Jerry D. Anker: Yes, at one point there was a -- an automobile which was found to be owned by union representative parked on those track.
I don't think there were any feisty cops but there was this kind of obstruction -- attempt to obstruct the track.
On those facts, the NLRB found that while the physically coercive and the violent conduct which took place not here but at other places in connection with the strike, the union did violate Section 8(b)(1) which makes it an unfair labor practice to coerce or restrain employees in the exercise of their statutory rights.
That finding is not involved to these dates, there was a -- it was not challenged by the union in the Court of Appeals and it's no longer an issue in this case.
Justice William J. Brennan: If you --
Mr. Jerry D. Anker: 8(b)(1)(A) --
Justice Potter Stewart: And what was the ground for that?
Mr. Jerry D. Anker: Restraint and coercion of the employees.
Justice Potter Stewart: Which employees?
Mr. Jerry D. Anker: The theory -- well -- there was a general pattern of conduct since this was a plant which was trying to operate during a strike.
There was general pattern of coercive conduct in various inferences and that what the Board said was that this conduct at this gate was part of that pattern and that even though the railroad employees are not employees under the Act, the union by behaving in this manner toward those people, indicated that anybody who could see that if they try to get into that plant, they would -- they would have a problem doing so and that was the essence of the violation.
Justice Potter Stewart: Of the 8th?
Mr. Jerry D. Anker: 8(b)(1) which is not a part of this case now.
Justice Potter Stewart: Which is not a part of this case now?
Mr. Jerry D. Anker: Dropped out of this case now.
On the question which is here, question not of whether this was coercion but whether it was a secondary boycott under Section 8(b)(4)(B), the Board found that it was not and it relies through that decision entirely on this Court's very recent decision in the General Electric Case, where similarly employees of other employers were in -- induced by a striking union not to enter any plant which was on strike.
And this Court said that so long as those employees were performing work which is related to the operations of the struck plant, any such inducement is not a secondary boycott activity.
The Court of Appeals reversed that decision and that's what brings us here.
The major premise of the decision of the Court of Appeals was that Section 8(b)(4)(B) prohibits any efforts by union to seek the support of any employee who was not an employee of the primary employer.
If the -- the union may not have make any kind of request for support to employees who work for other employers unless that appeal is simply an incident to a lawful attempt to appeal for the support of the primary employees which obviously in this case, it was not -- there were no primary employees immediately at the vicinity of this conduct.
We don't contend that there was any object here to appeal the primary employees.
The union was trying to prevent the strength from going in.
Justice Potter Stewart: This is not a -- this is not a common-situs case, is it really?
Mr. Jerry D. Anker: No, I would say not Your Honor.
I'm not sure that anything turns on that as we read the cases.
Justice Potter Stewart: Well, I'm not reading that.
Mr. Jerry D. Anker: I would say it's not a common-situs case.
Justice Potter Stewart: There's a -- how many gates were there in all?
Mr. Jerry D. Anker: There were many gates.
There's a map on page 311 which shows them.
There was one personnel entrance and a couple truck entrances, I think.
There are a couple of personnel entrances, three or four gates at least and they were all well picketed.
Justice Potter Stewart: And those were all well picketed and this gate, as you've -- as I understand it, there's a -- was -- was for the sole use of the New York Central Railroad, is that right?
Mr. Jerry D. Anker: That's correct.
There were also some gates I would -- that were -- I think for the sole use of trucks.
Other company's trucks but they're not involved in this charge either.
The basic question which is involved in this case is where the line is to be drawn between what the statute now expressly refers to as primary strike and primary picketing and what the Act, though it doesn't use the words "intends to prohibit" as a secondary boycott.
Question is not very different from the question that arose in GE or the many, many other cases before the 1959 Amendments.
The language of the statute has been changed but I don't think anybody argues that the -- that the purpose of the statute has been changed insofar as it applies to this kind of a question.
Before General Electric, before 1961, there was a considerable amount of confusion on where that line was to be drawn.
There were many, many cases but it seemed that the more cases there were, the more foggy the line became.
Justice Potter Stewart: Do you think General Electric clarified the whole area?
Mr. Jerry D. Anker: That's right.
We think it did You Honor.
General Electric involved a -- a confrontation of two conflicting lines of -- of development which we've traced in our brief and I don't want to go into the history but I will just state what they were.
One principle which you see running through many, many cases since 1947, was that so long as the union, when it is appealing to secondary employees, is asking no more than that they stop working at the side of a primary dispute at the plant or shop or store where the strike was in progress then even though possibly the literal language of the statute might reach even that kind of conduct that is the normal type of thing which occurs in a primary strike.
That was one line of development.
The second line which began we think we can trace it to about 1953, was quite different and in direct conflict with that.
So the conflict was never really acknowledged.
That second line was, that any appeal and it's essentially what the court below in this case relied on, any appeal to employees or secondary employers is unlawful unless it is merely an incidental or accidental or unavoidable part of what is otherwise justifiable as an appeal to primary employees.
Those two lines sort of existed parallel and the -- the conflict was there though it was never really acknowledged.GE presented the inevitable direct confrontation of those two lines because the picketing was at a gate to the primary premises, there was no question about that, but the gate was used only by secondary employees.
So if it was unlawful to appeal the secondary employees except part of law -- except where it's part of a lawful appeal to primary employees, then the picketing in GE would be unlawful.
And indeed that's what the Board held in that case.
If on the other hand if the earlier cases are correct that it's permissible to ask secondary employees not to work at a -- at a site of the strike then the GE case is easily answered in exactly the opposite way because this was the site of the strike.
This Court, I think accepted neither one of those two theories in full.
It developed instead a third which is in the Court's words that the key to the problem is the kind of work which is performed by these secondary employees.
Then the Court went on to say, borrowing some language from Judge Lumbard in the Second Circuit in an earlier case, that if the work is -- that these secondary employees are to perform, is work which is related to the normal operations of the struck employer then it has a permissible part of a primary strike for union to ask those employees not to perform that work.
If it is unrelated, on the other hand, then even though the work might be at the struck site itself, the union cannot go out of its way but picketing a separate gate used by employees who perform work unrelated to normal operations.
Justice Potter Stewart: Of course every secondary employer who would ever be involved in this kind of a situation, I should think, would be related in someway to the primary employer unless there wouldn't be any -- there wouldn't be any point.
Mr. Jerry D. Anker: The work would be related?
Justice Potter Stewart: Yes, he being his supplier or his customer.
Mr. Jerry D. Anker: Well, let me tell you what I think is meant by work which is related in normal operations and the Court didn't have to define it in GE because it was remanded to the Board for that purpose.
It doesn't have to define it here really because there's no dispute that at least that delivery and pickup work is so related.
But, the definition that I think is what the Court had in mind is that work which without which it would be more difficult for the employer to conduct his operations or impossible for him to conduct his operations.
Now, that's not true for example of construction worker.
If the employer was in the -- was building a -- a new addition to his plant, the non-performance of that particular work would not prevent him from carrying on his own ordinary operations that's unrelated to ordinary operations.
Now, the railroad in this case certainly the -- the performance of deliveries to these neighboring employers is work unrelated to the operations of Carrier.
If the union had made any effort to interfere with that work, I would have to concede it would be in violation of the Act.
Justice Potter Stewart: But of course, there would have been no point -- nowhere all of the union doing so either.
Mr. Jerry D. Anker: Well, sure there would have been.
Justice Potter Stewart: And then what?
Mr. Jerry D. Anker: The point would be exactly the point which the statute was intended to prevent, to force the railroad to stop making deliveries to Carrier.
Justice Potter Stewart: Well, but you --
Mr. Jerry D. Anker: Now, it happened then we tried -- the union tried not to force the railroad to stop making deliveries in the sense of the President of New York Central but simply to stop the very people on the spot from performing that work.
And I would say they were unsuccessful even though they went beyond the bounds of the law in that effort.
If the union had really gone around to everywhere that railroad operates disrupting its operations and saying we're going to continue doing this until you stop providing service to Carrier, they might have been successful.
At that point, the President of New York Central said, "Well our service to Carrier is just not that important."
We've got to run a railroad.
And that would have been what a -- what -- what the Act was intended to prevent.
It's like --
Justice Potter Stewart: Unless you're not only --
Mr. Jerry D. Anker: -- a general disruption of the railroads' operations, but that's not what was involved here.
Here, we were simply asking people, not a railroad.
We're not trying to put pressure on the railroad.
We're asking people or trying to prevent people from doing work, which work was directly involved in the operations of the employer where we had a strike going on.
The object really of picketing this gate was no different than the object of picketing to keep out Carrier's employees.
Justice Potter Stewart: Well, the object would have been the same if you picketed the New York Central's Office too.
Mr. Jerry D. Anker: I don't think so, Your Honor.
Justice Potter Stewart: Well, the object would have been to stop this train from making deliveries to Carrier Company.
Mr. Jerry D. Anker: Well, we don't have to resolve that because of the primary picketing proviso which Congress put in to make clear that primary picketing is exempt -- I would say the object is different because the objects here is not to put pressure on the railroad but to put pressure on Carrier by provide -- by depriving it of service.
But that the -- that argument is no longer really a part of this case.
Now, there are three distinctions which are suggested by respondent.
The three bases for distinguishing the General Electric case and -- and holding that the rule in the General Electric case is not applicable here.
I want to deal with those only in the very briefest way.
One, is the distinction relied upon by the court below, that because this little 35-foot strip was owned in fee simple by the railroad, that somehow makes the difference.
In our view, it -- it can't make a difference really on any theory either on the General Electric theory or indeed on any of the other two theories which preceded the General Electric resolution because what the statute deals with is not where you picket as such, but what you're trying to accomplish by picketing.
Now, sometimes, where you picket, tends to show just as the case we were just talking about.
If the union picketed the New York Central Depot, somewhere 20 miles away, obviously the purpose of that would be to cause or disruption of operations there.
And in that sense, the location of the picketing, of course is relevant.
But it's relevant not in itself but only to the extent that it reveals what the purpose of the picketing is.
Secondly, there is an argument made in this case that when Congress amended the Act to include railroad employees, it intended to reach this kind of conduct.
There's just no evidence to that, really.
All the Congress intended to do as the Solicitor General explained in the earlier argument, was to close a loophole which exempted any kind of disruption of railroad operations entirely.
But there was no intention to give railroads a special status different from trucks or from any -- anybody else that provide service to a said plant.
Justice Potter Stewart: Is it that?
You said all you going to say about the fact that this occurred on New York Central property.
Mr. Jerry D. Anker: I think I have --
Justice Potter Stewart: They had -- had a gate which was for the exclusive use of the New York Central and not for the use of (Voice Overlap).
Mr. Jerry D. Anker: I think the fact that it was for the exclusive use of the New York Central makes no more difference in this case.
Justice Potter Stewart: And along with the New York Central as you told us in the beginning.
Mr. Jerry D. Anker: Well, the fact that it's a very exclusive use of the New York Central makes no difference --
Justice Potter Stewart: But it belongs to it, it was in front of the --
Mr. Jerry D. Anker: -- the fact that it belongs to it makes no difference either.
Not because that question was involved in General Electric but because that has nothing to do with the statute.
Justice Potter Stewart: Well --
Mr. Jerry D. Anker: Where you picket has nothing to do with the statute.
There are many case and now just for a moment, if you look at the common-situs cases at which you referred to before Justice Stewart, all of those are cases where the union is picketing somebody else's premises.
At gates owned by other people but they are all cases in which the -- the picketing is held or to be primary, if it follows the rules because it is intended to accomplish no more than picketing is suppose to accomplish and that's exactly this case.
I think I'd like to reserve the balance of my time, if I may.
Chief Justice Earl Warren: Mr. Manoli.
Argument of Dominick L. Manoli
Mr. Dominick L. Manoli: May it please the Court.
I'm not sure Mr. Justice Stewart, exactly how much GE clarified this entire area.
Now, the line between primary and the secondary and perhaps we of the Board are not entirely in agreement with all the implications that the petitioner may seek to read into that case but we are in agreement on this one issue, that GE does control this case.
And the issue as we see it in this case is a relatively narrow one as Mr. Anker has indicated here.
The picketing here took place in immediate vicinity of the struck Carrier plant.
The picketing took place at the gate which led -- which led to the -- to the Carrier premises and the pickets made their appeal to the neutral railroad employees as they approached that gate.
And that gate was the nearest place -- was the nearest place to the Carrier plant where the strikers and the pickets could publicize to the railroad employees their dispute with Carrier.
And again, the railroad employers who were performing services, pickups and deliveries which were incidental than normal everyday operations of Carrier, and finally -- finally the pickets asked them to discontinue only that service to Carrier.
That -- many --
Justice Potter Stewart: There was a little bit more than -- but they're not of any importance of -- a little bit more than merely publicizing if you look at the pictures on -- pages 308, 309 and 310.
Mr. Dominick L. Manoli: Oh, they were seen by -- there was some question and some coercive -- coercive activity that went on that it -- it's that such easily --
Justice Potter Stewart: That's really so --
Mr. Dominick L. Manoli: Yes.
But either -- we think that that for purposes of 8(b)(4)(A) --
Justice Potter Stewart: Probably is irrelevant.
Mr. Dominick L. Manoli: -- it makes no difference.
It makes no difference.
In fact, this Court so held in the International Rice Milling case back in 1952 as I recall.
Now, the issue which this Court has called upon to decide in this case and I think it's a very narrow one, is whether -- is whether picketing at the scene of the -- at the scene of the industrial dispute having delivered appeal that it had in this case and having what I may mention to say nearly all of the -- virtually all of the indicia -- all of the indicia of traditional primary activity is converted into secondary and unlawful activity merely because -- merely because the title to the railroad right away happened to be in the Railroad Company rather than in Carrier.
Justice Byron R. White: (Inaudible)
Mr. Dominick L. Manoli: It was used on -- it was not used by Carrier employees and I will indicate that that is a --
Justice Byron R. White: (Inaudible)
Mr. Dominick L. Manoli: -- except the railroad, I will indicate that that's irrelevant under the -- this Court's decision in GE.
Now, GE made it perfectly plain -- made it perfectly plain that a union or employees who are picketing at the scene of an industrial -- of a labor dispute, may appeal directly to neutral employees -- to neutral employees to honor the picket line and to refrain from performing services for this struck employer behind the picket line which are incidentally the normal everyday operations of that particular employer.
That case said that that kind of -- though -- that kind of an appeal, that kind of picketing was unquestionably legal, lawful, traditional primary activity and beyond the sanctions of the statute with respect to secondary boycott activity.
Justice Byron R. White: (Inaudible)
Mr. Dominick L. Manoli: Well, the Court said that that this is a -- this has been a traditional form of picketing that employees will -- will not only hope when they're picketing a particular plant -- not only hope, that the second neutral employees will not perform services behind the picket line, but that also that they may go ahead and ask them not to perform those services behind the picket line.
As in GE, I think I made that perfectly clear.
Justice Potter Stewart: Does the gate there in GE in question, what was it -- who was it used by?
Mr. Dominick L. Manoli: Well, the problem in there arose in connection with a separate gate that had been setup by those independent contractors.
And Your Honor, may I recall, the question was whether the union could picket there since the -- since title to the premises was in the primary employer --
Justice Potter Stewart: All right.
Mr. Dominick L. Manoli: -- but the gate, however, was reserved exclusively, was reserved exclusively for an independent contractor who's performing some kind of construction work on there.
And then the Court drew the line between work which was incidental, the normal everyday operations, and work which was not.
Justice Potter Stewart: Was that --
Mr. Dominick L. Manoli: If --
Justice Potter Stewart: --gate used at all or I just -- I just forgotten the facts.
Was that gate used to -- used at all by employees of the primary contractor -- primary --
Mr. Dominick L. Manoli: No sir, no sir.
Justice Potter Stewart: Not at all, was it?
Mr. Dominick L. Manoli: No sir.
That's -- that's the point that I -- that I sought to emphasize is that, that case as I say made it clear that the union could appeal to the neutral servicemen of all kinds who were -- to honor the picket line and to refrain from performing services behind the picket line for the primary employer which have --
Justice Potter Stewart: That is delivery people (Voice Overlap).
Mr. Dominick L. Manoli: -- don't yet -- and particularly for example, in connection with delivery people --
Justice Potter Stewart: Alright.
Mr. Dominick L. Manoli: -- a union could appeal to track employees --
Justice Potter Stewart: But not -- but not to people say who were doing new construction in there, is that right?
Mr. Dominick L. Manoli: That's correct.
Justice Potter Stewart: Is the distinction in that case true?
Mr. Dominick L. Manoli: If that -- that's -- the distinction of the case is true.
Justice Potter Stewart: And it's a very realistic distinction and is the gate was used interchangeably by both kinds of employee, how about the employee?
Mr. Dominick L. Manoli: Not, in that -- in that case, it was not used interchangeably.
In that case, there was a separate gate setup exclusively.
Now, if it were used by both --
Justice Potter Stewart: No, no.
Well, let's say it was used by delivery people --
Mr. Dominick L. Manoli: Yes.
Justice Potter Stewart: -- and also by building trades people who were building their construction in there.
Was that the fact in that case?
Mr. Dominick L. Manoli: The delivery people for the primary?
Justice Potter Stewart: Yes.
Mr. Dominick L. Manoli: In that case I think the implication is that the union could picket that at that place, but the union could picket at that place.
And contrary -- contrary if the employer under that case, the -- if an employer setup a separate gate -- a separate delivery entrance, if I may use that instead of a gate or either one, a separate delivery entrance which was only for neutral truck drivers which were making pickups and deliveries for the primary employer.
The fact that that gate was not being used by the employees, the primary employer, this Court said would make that kind of picketing any the less primary.
Now, as we see this case -- as we see this case, it's in essence reduced to its essentials that comes down to this, of a case of picketing at the scene of a -- of a labor dispute designed to induce railroad employees instead of truck drivers -- railroad employees instead of truck driver to refrain from making deliveries or pickups to the primary employer.
Now, what meaningful distinction can we draw between the railroad employees and the truck drivers in this context?
If this be the appeals -- if this kind of picketing when directed to neutral truck drivers to honor the picket line and to refrain from performing services, deliveries, and pickups with the primary employer, if that kind of picketing is lawful primary at picketing, then it seemed to me that it's very difficult to conceive of any sensible basis upon which we can draw distinction and say that the picketing becomes illegal when for truck drivers, we substitute railroad people.
Now, of course the argument is -- the argument is that the difference lies in the fact that here, the railroad employee -- the Railroad Company own the title to the -- to the right-of-way -- to the railroad right-of-way --
Justice Potter Stewart: And to the gate?
Mr. Dominick L. Manoli: Sir?
Justice Potter Stewart: And to the gate apparently?
Mr. Dominick L. Manoli: And to the gate -- and to the gate and the railroad had the gate too -- had the key to the gate too.
The -- that that -- that that makes -- that makes the difference within this case and the case of the truck drivers coming out on the primary employers' premises for the purpose of making deliveries or pickups.
But I submit Your Honors -- I submit Your Honors from the stand -- from the standpoint of either business relations or from the stand -- of business operations, from the standpoint of the Labor Relations, this factor, this fortuity -- this fortuity that the title of the right-of-way happen to belong to the Railroad Company, affords no meaningful -- no meaningful basis for distinguishing between the two cases.
Justice Potter Stewart: It -- it seems to me that you can't -- that -- that just by calling up --
Unknown Speaker: (Inaudible)
Justice Potter Stewart: It doesn't -- doesn't make the argue -- it doesn't make the fact go away and the matter of who owns property is of importance and most areas of the law including the criminal law.
Mr. Dominick L. Manoli: It's important either --
Justice Potter Stewart: I just got my own property and I'm not guilty about anything -- but if I pickup somebody else's then I'm guilty of a criminal offense.
Mr. Dominick L. Manoli: I strike the word fortuity but the -- I had no -- well, except there's a fact.
I will accept there's fact that this right-of-way belongs to the railroad.
But we think that that fact, it does not really make for any practical or significant -- it does not furnish any significant or meaningful basis for distinguishing this case from what I call the truck case because in both cases -- in both cases, the picketing is taking place in the immediate vicinity of the -- the struck plant.
In both cases, the appeal is made to honor the picket line and to refrain from performing services which are incidentally the normal operations of the primary employer.
And in both cases -- in both cases, if the picketing is successful, the result is the same.
Namely in the case of the truck drivers, they will refuse to make pickups or deliveries, and the same follows in the case of the railroad employees.
Now, I don't mean to suggest Your Honor --
Justice Byron R. White: But picketing -- the picketing that was done back where they made up the train on the railroad property in those yards, then -- then you have a different question, I suppose.
Mr. Dominick L. Manoli: Yes sir.
Now I --
Justice Byron R. White: As it gets way -- if a train gets to the gate, that fortuity circumstance -- it -- it may -- it becomes as the primary technique.
Mr. Dominick L. Manoli: That's right.
Now, Your Honor, I was going to --
Justice Byron R. White: Outside the provisions of the secondary --
Mr. Dominick L. Manoli: Correct.
I was about to say, that I am not suggesting the geography of the title of the picketed premises was always irrelevant.
But this Court, however, in GE said that if the title of the premises does not necessarily mark the boundary line between secondary and primary -- and primary picketing.
In that case, Your Honors will recall that premises were owned -- were owned by the primary employer but not -- if the work that was been -- being done by the independent contractor on those premises met the test that this Court laid down, then the union could have pick -- could or could not have picketed, without regard to whether it was owned by the primary employer depending upon the nature of the work that was being done by the independent contractor.
Now, of course -- of course, if the union here were to -- if the union were to extend this picketing away from the primary premises, and it could extend this picketing to the terminal -- to the terminal of the neutral trucker -- trucker or in the case of the railroad employees extended its picketing to the -- to the warehouse or the terminal or -- or a railroad station, or what have you, of the Railroad Company, then I think in that situation -- in that situation, geography, time of the premises might give you a meaningful basis -- a meaningful basis for drawing a line between permissible pressure upon the primary employer and the involvement of a neutral dispute on its own.
And the reason for that --
Justice Potter Stewart: The purpose is identical.
Justice Byron R. White: Well, no -- no.
Justice Potter Stewart: Isn't it?
The purpose and the only purpose is to stop the New York Central from making deliveries to this struck plant, isn't that right?
Justice Byron R. White: True.
But there is an added factor when they get away from the primary -- from -- from the primary -- from the scene of the primary dispute and that is this, that when they are picketing at the trucker's terminal or when they are picketing at the terminal of the other New York Central then there is a very -- a very serious risk -- a very serious risk that the picketing will not merely stop -- will not merely stop at disrupting the services that New York Central is performing for Carrier.
But then it will involve the -- the railroad's operations more generally and particularly its relations with other customers of the Railroad Company who has seen the picket line there may -- may respect it.
That is the critical difference.
Now here, those factors are not present because as I have said -- as I have said here, the picketing here was at the scene -- it was at the scene of the Carrier -- of the struck Carrier plant.
The -- the thrust -- the thrust of the -- pressure of the picket line was against Carrier.
And finally, the involvement of the Railroad Company -- the involvement of the Railroad Company in a case of this kind, in the primary dispute is no greater.
It is no greater in scope or effect than it would've been the case of the truck driver is precisely the same.
It's precisely the same.
Now, we submit that the key to this problem is not really to be found in what I've described but I've modified it as the fortuitous fact that the title of right-of-way is in -- is in Carrier.
The key to this case is to be -- is not to be found in that factor but the key in this case, as in the General Electric case, is to be found in the nature of the work that the neutral employees are performing or are being asked to refrain from performing behind the picket line.
Where that work, pickups and deliveries in this case is incidental to the operations of the primary employer, then it seems to us -- it seems to us that it would really be exalting form over substance to say -- to say that this case is different than the case of the truck driver, merely because in the case of the truck driver, he may be approaching the plant via public highway or via premises owned by the primary employer.
But that in this case here, he'd -- the delivery man -- the railroad -- the railroad man is approaching a primary employee and then the primary plant on premises that are owned by the -- by the Railroad Company.
Justice Byron R. White: (Inaudible)
Justice Potter Stewart: No, it did not, Your Honor, but I think you -- if I may call attention -- if I may call attention that I have the advance sheet and it may have be -- I don't have the -- the spot citation, but in that case, the argument was made and I -- let me read from the opinion.
The union claims that if the Board's ruling is upheld, employers will be free to erect separate gates for deliveries, customers, and replace from the workers which will be immunized from picketing, theory is baseless.
Chief Justice Earl Warren: Mr. Kammholz.
Argument of Theophil C. Kammholz
Mr. Theophil C. Kammholz: Mr. Chief Justice Warren, may it please the Court.
The proposition which Mr. Anker and Mr. Manoli so eloquently espoused here is really one of extending the separate gate doctrine as enunciated by this Court in General Electric, and as applied to a common-situs property owned by General Electric to a secondary employer in carrying this approach to its logical conclusion, it would resolve in an obliteration of the 8(b)(4) protections against secondary boycotts.
Now, before I address myself to the legal principles involved, I should briefly like to get back to the factual circumstances.
Justice Byron R. White: Your (Inaudible) certainly lead to no picketing at special gates of the primary employer.
Mr. Theophil C. Kammholz: Not necessarily.
Justice Byron R. White: But they pretty follow the --
Mr. Theophil C. Kammholz: Not necessarily Mr. Justice White.
Justice Byron R. White: That's what you (Inaudible)
Mr. Theophil C. Kammholz: Carrier Corporation in Syracuse has an operation with some eight gates for use of employees and suppliers surrounding the premises.
On the easterly side of the Carrier property, the spur line of New York Central Railroad crosses Thompson Road.
Thompson Road is in North South Highway, about 35 feet in width.
The gate, as has been noted here, granting access to Carrier, to Western Electric, to General Electric, to Brace-Mueller-Huntley is owned by the New York Central Railroad.
It has been so owned for 11-years prior to the hearing in this case.
The key to the gate is in the sole possession of New York Central personnel.
Carrier employees never use this railroad gate for ingress or egress to the premises and to their work places.
In the course of the strike which occurred in 1960, in March 1960, the steelworkers union picketed the railroad gate.
And significantly Your Honors, not only the railroad gate on the Westside of Thompson Road but also picketed on the eastside of the road removed from Carrier property engaged in mass picketing there, some 30 to 60 pickets at one time, they've lay down on the railroad tracks.
The international representative of the union drove his automobile on the tracks and it had to be removed by the police officers.
One of the pickets threatened the supervisor who is at the throttle of the locomotive and invited him to come down off the locomotive for the purpose of getting his back knocked off as the record indicates.
The trial examiner in this case also noted that three track links of New York Central right-of-way, east or -- or rather west of the road of Thompson Road, opposite the Carrier property and the General Electric and the Western Electric property were greased during this incident.
Justice Hugo L. Black: (Inaudible) there putting on the -- this automobile on the track that happened to be taken off irrelevant to the legal issue?
Mr. Theophil C. Kammholz: I think they are only, Mr. Justice Black if we get to the question of balancing of interest here which argument is made in the board brief.
I think they're quite irrelevant otherwise.
But if there must be a balancing of interest, namely the interest of secondary employers, secondary employees if you will, then I think it's highly irrelevant because in all of the adjudicated cases including General Electric, there was nonviolent picketing and the Court made special note of this fact.
Justice Hugo L. Black: (Inaudible) of proving conduct like that?
Mr. Theophil C. Kammholz: No.
But I think you should certainly put this on the scales if you get to the question of balancing interest and weigh it in the context of rights of a union striking at primary premises vis-à-vis the right of secondary employees and employers not become enmeshed in some somebody else's labor dispute.
Well, this is --
Justice Hugo L. Black: Was it done for the -- anything on that account?
Mr. Theophil C. Kammholz: I'm sorry, Your Honor.
Justice Hugo L. Black: Has any charge been made against the union on account of this conduct which you've just outlined to us?
Mr. Theophil C. Kammholz: Yes Your Honor, the union was charged with this conduct.
It was found guilty of this conduct by the trial examiner of the NLRB.
It is found guilty by the Board before the case came up for hearing in the Court of Appeals for the Second Circuit.
The union stipulated that there had been a violation of the law and it agreed to post the customary notices so that this --
Justice Hugo L. Black: Well that's not before us at all.
Mr. Theophil C. Kammholz: -- fell out of the case.
It's no longer an issue here insofar as the conduct as such is concerned.
Unknown Speaker: (Inaudible)
Mr. Theophil C. Kammholz: These were the circumstances as they occurred in Syracuse on March 11th and on these facts, the trial examiner initially found a violation of Section 8(b)(4) because as he put it, the picketing union induced railroad employees and of course the railroad, to not handle the Carrier products falling within the prescription of 8(b)(4) single (i) and double (ii).
Majority of the Board reversed the Second Circuit, the majority of the Second Circuit reversed the Board.
Now, we are here, I submit, only because of the General Electric decision in which in 1961, this Court dealt with the problem of a reserved gate reserved by an employer at primary premises, his gate if he will, and dealt with the question is to whether or no it was appropriate for an employer to reserves such a gate for tradesmen, secondary employees, not engaged in the normal plant operation functions.
The Court held, the majority of the Court, that if indeed the gate was reserved for work not related to normal plant operation, then the ingress and egress at that gate was protected and under Section 8(b)(4), it was an unfair labor practice for a union to -- to seek to prevent ingress or egress.
Now, the nub of it, if the Court please is the fact that this was a primary premises situation and what we're dealing with here is a secondary employer, secondary premises situation involving an employer here at the New York Central engaged in its normal function of transporting goods.
Justice Byron R. White: Apparently, under the findings of General Electric, just came in Carrier-owned property, at least a dictum in General Electric, it's clearly company-owned.
Mr. Theophil C. Kammholz: I agree with the statement Your Honor, yes.
Justice Byron R. White: And to hold for you, that dictum would have to be repudiated if this were on Carrier-owned -- Carrier-owned property.
Mr. Theophil C. Kammholz: If it were a Carrier-owned property but we don't come to that question under the facts in this case.
Justice Byron R. White: I see.
Here you got a -- so your whole case rest on the ownership of the property.
Mr. Theophil C. Kammholz: The ownership of the property and the fact that this is a secondary employer controlling his property.
Justice Byron R. White: I understand.
Mr. Theophil C. Kammholz: I think as the -- as it's noted in the amicus brief of the Association of American Railroads, noted perhaps a bit plaintively, the right of ownership, the incidence of property are recognized in torts, taxation, property law, criminal law as Mr. -- Mr. Justice Stewart noted.
Justice Byron R. White: Now, how many companies were reserved through this gate, four?
Mr. Theophil C. Kammholz: Four.
Justice Byron R. White: Four, --
Mr. Theophil C. Kammholz: Four.
Justice Byron R. White: -- and do you -- do you -- is there -- is there any suggestion on the facts that there was any interference with the railroads that -- withstanding the other company besides Carrier?
Mr. Theophil C. Kammholz: No, there is no such contention, there is no such -- such showing and our position is simply that that --
Justice Byron R. White: But this might as well have been a gate only for Carrier.
Mr. Theophil C. Kammholz: Yes, because if the protection of the statute, if 8(b)(4) applies only to the customers, other customers of the railroad, then in effect we're dealing with a tertiary situation and not a secondary.
Justice Byron R. White: Yes, yes.
Mr. Theophil C. Kammholz: Now, on the question of the applicable law contrary to what my distinguished colleague noted earlier, this matter was dealt with at length during the course of the 1959 Amendments to the Act, the Landrum-Griffin Amendments.
Prior to that time, the Labor Board had repeatedly held that spur line picketing of precisely the type that is involved here, and I'm referring to the International Rice Milling case decided in 1949, and referring also to the Great Northern case decided in 1960 but which had it inception before the amendments.
In these cases with identical spur line picketing involved, the Labor Board had held that because of the employer definition then existing in the Act, the railroad employees were not subject to the coverage of the Act.
The Congress dealt with this problem and dealt with it on a basis of rather startling unanimity.
Senator Morse, Senator Dirksen, the then Senator Kennedy, Congressman Griffin, all addressed themselves to this question of the closing of loopholes because of findings of the Board that railroad employees were not employees within the meaning of this Act.
They were not prisons within the meaning of the Act.
And the unanimous statements documented at that time were to the effect that it was the intent of the Congress to close this loophole.
I think it is put in most graphic terms by Senator Goldwater who also joined in the colloquy and I am referring to page 13 of the amicus brief.
And if I may, I should like to read one paragraph which I think puts the congressional intent in sharp focus.
This is quoting Senator Goldwater, "Suppose you get a situation like this, the union has a dispute with employer A.
A, in order to finish his economic processes to make his profit has got to ship his goods by a railroad to its ultimate destination.
So the union throws a picket line around the railroad spur at which Employer A's products would normally be loaded into the freight car."
The purpose of that picket line is to induce the railway employees to refuse to load that stuff for handling.
The Board has said that under the present language, that is not a violation because railroad employees and railroad employers are not employees or employees under the Taft-Hartley Act.
Now, under this new bill instead of using the term "to cease doing business with another employer" it says, "to cease doing business with other person, person includes everybody that closes that loophole."
In 1960 --
Justice Hugo L. Black: Was he chairman of the committee or anything like that?
Mr. Theophil C. Kammholz: I beg your pardon.
Justice Hugo L. Black: Was he chairman of the committee that handled this?
Mr. Theophil C. Kammholz: No, he was not a chairman of the committee.
Justice Hugo L. Black: So what -- what was his relationship?
Mr. Theophil C. Kammholz: He was on the conference committee which finally hammered out the final provisions of Landrum-Griffin.
He was one of the Senate conferees, Your Honor.
Now, it's interesting to note also that in 1960, the distinguished general counsel for the International Union Department of the AFL-CIO, writing in a law review of a distinguished Midwestern Law School had this to say, this is the now Mr. Justice Arthur Goldberg, I refer to this in page 16 of our brief.
Advocates of tightening the secondary boycott restriction however argued that the National Labor Relations Board and the Courts had so interpreted Section 8(b)(4) as to leave a number of gap in loopholes through which genuinely neutral employers and their employees continued to be victimized by the use of the secondary boycott.
The new law closes these so-called loopholes in the following manner.
Formally, Section 8(b)(4) did not apply to inducement of the employees or the employers not covered by the National Labor Relations Act as amended, citing International Rice Milling.
The new Act prohibits inducement of employees of any person engaged in commerce including railroad employees.
Now, as I noted earlier, the Board decision in International Rice Milling referred to by now Justice Goldberg, continents the same type of adjacent spur picketing as it's involved in this case on the facts identical in the adjacent spur.
Rice Milling went to the Fifth Circuit and on this aspect of the case, the Fifth Circuit reversed and on remand, the Board without further comment enforced the secondary boycott prescriptions.
The Fifth Circuit differing with the Board on the question of construction of who was covered by the Act or not but as to the business of whether or not a secondary boycott was involved, there was no word of dissent raised by the Board.
Similarly in 1960, an identical situation occurred on the Great Northern Railway case where the Board found adjacent spur picketing not covered by the earlier Act because of the definition of employer.
This went to the Ninth Circuit.
The Ninth Circuit reversed and remanded and here again without a word of dissent, the Board enforced the prescriptions and held that this type of picketing was indeed covered by the prohibitions of 8(b)(4).
So we say that what the Congress dealt with here in amending the Act in 1959 was the identical problem that we're talking about here convincing the Board that railroad employees were subject to the Act indeed and paying not further attention to the fundamental question of whether or not it's secondary boycott because everyone assumed it was.
Now, if indeed it was the intent of the Congress to close a gapping loophole, what is sought here is to enlarge that old loophole very substantially indeed.
This additional comment about the General Electric case as I have noted earlier, it clearly is a common-situs situation.
It is General Electric's property.
And in that case, this Court simply placed additional restrictions on primary situs picketing, added rules as to what must be done if a reserved gate occurs.
In General Electric, this Court dealt with Crystal Market Palace, Crystal Palace Market with more dry dock and by inference at least the proof of these and in each.
The basic principle is stated that it is an obligation of a union engaged in a primary labor dispute to minimize the impact of its picketing on secondary employers.
And certainly here, if the steelworkers union was entitled to picket west of Thompson Road removed from the Carrier property, then why could it not picket on the westerly city limits of Syracuse or on the westerly limits of Grand Central Station in New York City.
Indeed, in this case, if the Court please, for the first time, for the very first time, as it was enunciated here by Mr. Manoli with the Court apply an Oedometer test to whether or no the picketing was primary or secondary.
The test under the statute is the purpose and the purpose here was clear, to induce New York Central employees and to coerce the New York Central Railroad not to handle Carrier's goods and this Your Honors is prescribed by the statute.
Chief Justice Earl Warren: (Inaudible) Mr. Anker (Inaudible)
Rebuttal of Jerry D. Anker
Mr. Jerry D. Anker: I would just like to comment on two points which you have been made by Mr. Kammholz.
One and the first really was the question has been dealt with both by the Court and by Mr. Kammholz, the question of the relevance of where the picketing takes place.
The other point I want to deal with is the question of loophole closing with respect to railroads.
Turning to the first point first, the statute that we're dealing with is not at least, portion of it that applies to this case, does not regulate picketing as such.
It prohibits inducing employees to take certain conduct for certain purposes.
Now, I think you can clarify this question of what the relevance of the location of the picketing is if we look at another form of inducement.
Picketing, it's clear for purposes of what we're talking about now, is just one of several kind of inducement, another kind is letter writing, another kind is speech making.
Now, suppose the union had made a speech to the brotherhood of railroad trainmen at their union hall at the westerly boundary of Syracuse if you like and had said "please do not, please do not make deliveries and pickups at the Carrier plant."
That conduct is lawful or not for the same reason that the conduct in this case is lawful or not, has nothing to do with where the speech was made.
Question is, "are you asking for the employees to do something which the Act is intended to prevent you from asking them to do?"
Now, the location of picketing has one point, has one aspect which is not present when you're talking about a public address, of course, and that is that Mr. Justice Black has made this point that the picket is requesting usually at a particular place where the picketing takes place.
Therefore, many, many cases which you will read will rely as a point of evidence on where the picketing took place.
If we did picket the depot, the normal inference would be we were asking for strike action, refusals to work at the depot, and that would be illegal, that's why the location of the picketing is relevant not in itself but as evidence of what the union was asking people to do.
In this case, it's perfectly clear and conceded by Mr. Kammholz, what we were trying to get people to do.
We were trying to get railroad people to stop servicing Carrier.
Now, that may be lawful, we believe it is, the Board believes it is.
That may be unlawful, but it has nothing to do with where we make that request or engage in that inducement.
That whole issue of title of the property and location of the picketing has nothing to do with the statute or the issue in this case and that's why Mr. Manoli says that's a fortuity.
It just makes no difference.
Justice Hugo L. Black: Then you --
Mr. Jerry D. Anker: I would make out --
Justice Hugo L. Black: Undoubtedly -- undoubtedly, these people would have a right to go into the brotherhood to make a speech if their brotherhood wanted them there.
But there might be times when they were at the place but it didn't have the right to be, to speak or not to speak.
Mr. Jerry D. Anker: Well, I -- that's true but not under this statute.
I make this point in a general way that under this statute and under the -- as it has been interpreted by this Court in General Electric, when the union is appealing or inducing to -- appealing to or inducing employees of other employees, there is one test and that test is, is the union simply asking those people to refrain from work related to the primary employers' operations or is it asking them to do something else, engage in some other kind of stoppage which is injurious to their employer and which has nothing to do with the -- directly with the operations of the employer that's on strike, that's the test.
Now, to the extent that the location of picketing is relevant, in applying that test is relevant.
But in this case, the location of the picketing has nothing to do with it at all.
Now, turning to the other point very briefly on the -- what the Act -- the 1959 Amendments intended to do when they closed loopholes, I want to correct Mr. Kammholz on a couple of factual statements.
First of all, a quotation by Mr. Goldwater, it's not Mr. Goldwater.
It is something which Mr. Goldwater inserted in the record after the Act was passed.
The words are not his, the words or the words of one of the members of the staff of the Senate Labor Committee specifically the Republican Minority Council.
Justice Potter Stewart: Goldwater or Goldberg? (Voice Overlap)
Mr. Jerry D. Anker: Goldwater, yes, yes.
On the rights -- on the -- the Rice Milling decision for whatever relevance it has, the facts of that case were not the same as this because insofar as railroad picketing was concerned, the union was -- the union picketing interfered with deliveries not only to the struck employers but also other employers who had nothing to do with the dispute.
The union picketed a point of the railroad which just stops railroad operations.
And the reference on that is 84 N.L.R.B. 369 where that fact stated very clearly.
As to the Great Northern case which was a later case, I agree, that case is on all force with this one on its facts.
And it -- it come from the period when the Board define a secondary boycott as any request to employees of other employers.
They applied that rule not only in that case but in the General Electric case, in a case which involved truck drivers indeed called McJunkin which is cited in the brief.
That was the rule at that time, at least the dominant view of most of the Board cases.
It has oppositely in light of this Court's decision under General Electric case and therefore has no bearing.
Chief Justice Earl Warren: You're welcome.