HANNA MINING v. MARINE ENGINEERS

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Argument of John H. Hanninen

Chief Justice Earl Warren: Number 7, Hanna Mining Company et al., Petitioner, versus District 2, Marine Engineers Beneficial Association, AFL-CIO, et al.

Mr. John H. Hanninen: May it --

Chief Justice Earl Warren: Mr. Hanninen.

Mr. John H. Hanninen: May it please the Court.

The primary question involved in this case is whether the State Courts of Wisconsin can apply state law to regulate primary recognition picketing of marine engineers on petitioner's vessels after the National Labor Relations Board has initially determined that such engineers are supervisors within the meaning of the Federal National Labor Relations Act.

The General Counsel of the Board has determined that the regulatory scheme of the Act cannot be applied due to the supervisory status of the engineers and state law also prohibits this type of picketing.

Petitioner operates vessels on the Great Lakes, actually there are four companies who operate these vessels as an integrated fleet, with one of the petitioners, the Hanna Mining Company designated as the operating agent.

These ships transport cargos between various Great Lake's ports including American and Canadian ports and they are engaged in commerce within the meaning of the Act.

On these vessels, the petitioners employed marine engineers licensed by the Coast Guard who operate the engines and keep them in repair and also supervise the work of unlicensed seamen in their department.

The unlicensed seamen are represented in a bargaining unit which extends over all of these vessels by the United Steel Workers of America.

The petitioners had a labor agreement with the respondent MEBA covering the wages and working conditions of the engineers which expired on July 15th of 1962.

Negotiations were in progress for a new labor agreement in August of that year when virtually all of the marine engineers notified the petitioners in writing that they no longer desire to be represented by the MEBA for purposes of collective bargaining.

When this occurred, the petitioners immediately informed the MEBA and took the position that further collective bargaining should be suspended until the MEBA could by means of a secret ballot election conducted by an impartial third party demonstrated that they actually represented a majority of the engineers.

The MEBA declined and refused to agree to any election and had demanded that the petitioners resume collective bargaining and negotiate a labor contract which the petitioners refused to do.

On September 12 of that year, 1962 the MEBA commenced picketing petitioner's vessels.

The picketing commenced at the port of Duluth in Minnesota where one of petitioner's vessels was unloading a cargo of coal.

The MEBA pickets appeared on the scene with signs stating that the Hanna Mining Company, the operating agent for these vessels, was unfair, refuses to negotiate the contract, District 2, MEBA no dispute with other employer appended to the picket sign and the special receptacle for that purpose was a card with the name of the petitioner's vessels, the Joseph H. Thompson.

As a result of the picketing, the coal dock workers refused to unload the cargo from the steamer Thompson.

The picketing was commenced on that same day at the oil loading docks of the Great Northern Railway Company at Superior, Wisconsin about six miles away from the coal dock where the petitioner's vessels regularly load cargos who buy an ore.

The picketing also commenced in various other Great Lake's ports including Detroit, Cleveland, Ashtabula, and Buffalo with the same type of signs.

None of the engineers responded to the picketing, they all continued working.

The unlicensed seamen aboard petitioner's vessels also ignored this picketing and continued working steadily as did the other offices on this vessel.

Nevertheless, tug crews refused to render towing services to petitioner's vessels because of the picketing activity.

The coal dock workers persisted in a refusal to unload the cargo from petitioner's vessels at the coal dock in Duluth.

There were some short and minor work stoppages among the oil loading crews of the Great Northern Railway Company in Superior.

On September 12th, the date of the picketing started in 1962, petitioners filed an election petition with the Regional Director for the National Labor Relations Board in Cleveland requesting the Board to conduct a representation election to determine whether or not the MEBA in fact represented a majority of the engineers.

The Regional Director dismissed the petition upon a finding that the engineers were supervisors and excluded from the coverage of the Act.

The ruling was appealed to the NLRB itself and was affirmed upon the same ground.

Justice William J. Brennan: How much of the hearing --

Mr. John H. Hanninen: Sir?

Justice William J. Brennan: How much of the hearing preceded the Regional Director's actions (Voice Overlap)?

Mr. John H. Hanninen: The election petition was dismissed administratively after investigation by the Regional Director.

He did not hold the hearing and neither did the Board itself although, in connection with the election petition, the petitioners did request the Board to hold a hearing.

However, the Board's dismissal stated that there was no unit appropriate for collective bargaining because the engineers were supervisors.

And petitioners about three days after the picketing commenced at Duluth filed a -- an unfair labor practice charge with the Regional Director of the Board at Minneapolis which has jurisdiction over the ports of Superior and Duluth.

The charge claimed the violation of Section 8 (b) (4) of the Act which prohibits secondary boycott activity.

Regional Director and the staff at Minneapolis commenced an investigation of the picketing activities and other activities of the MEBA and attorney signed -- assigned to the case took witness statements at Duluth and also at Superior.

The petitioners applied information regarding the activities of the MEBA at Duluth, Superior, and Cleveland to the Regional Director for the Board at Minneapolis and supplemented that information with witness affidavits in connection with the activities of the MEBA.

After the investigation was concluded by the Regional Director at Minneapolis, he dismissed the charge stating that there was no indication of any secondary boycott activity which would violate the Act.

This ruling was also appealed --

Justice William J. Brennan: Well, what that mean is, this was primary picketing in that or that (Voice Overlap) --

Mr. John H. Hanninen: It was on the basis that the picketing was primary and not secondary that it conformed to the Board's standards in a Moore Dry Dock case for common situs picketing and therefore could be regarded as no more than primary.

This ruling by the Minneapolis Region was also appealed to the General Counsel of the National Labor Relations Board and after consideration the National Labor Relations Board's General Counsel administratively affirmed the dismissal of the charge on the ground that the investigation is closed that the picketing was merely primary.

It didn't violate the Board's common situs rules and requirements and that the MEBA activity at other locations or other sites did not evidence any unlawful objective within the meaning of the Section of the Act nor it did the totality of the MEBA's conduct indicate an unlawful objective within the meaning of that Section of the Act.

Petitioners also filed a charge with the Board's Regional Director at Cleveland claiming that Section 8 (b) (7) of the federal Act had been violated which regulates recognition and organizational picketing.

This charge after investigation by the Regional Director of Cleveland was also dismissed.

In his dismissal, the -- it was dismissed by a letter and a letter -- the gist of it was that there was insufficient evidence of picketing or they tried to picket which violated Section 8 (b) (7) of the Act.

This ruling was appealed to the NLRB's General Counsel in Washington and the dismissal was affirmed.

The General Counsel stated in the initial letter of dismissal that there was no evidence of any picketing which violated Section 8 (b) (7) of the Act.

Particularly in view of the fact that the Board in a concurrent holding had held that the engineers were supervisors excluded from the coverage of the Act.

In response to petitioner's request for clarifications, the General Counsel issued another letter on December 21st of 1962 in which he stated that his conclusion was predicated solely upon the supervisory status of the marine engineers which precluded any application of Section 8 (b) (7) of the Act and that what the posture of the case would've been had the engineers and employees within the meaning of the Act had not been considered and that this procedure was in accordance with the established practice of his office.

Great Lakes navigation is seasonal and usually extends from the middle of April until the end of November.

At the end of November of 1962 before the final rulings were obtained from the General Counsel, petitioner's ships were withdrawn from operation, laid up, the crews went home and the MEBA stopped picketing.

In April of the following year of 1963, petitioners again placed their vessels in to operation and the MEBA resumed its picketing at Superior, Wisconsin using the same signs, the same pickets appeared, and they stood at the same place at the gates to the oil loading docks of the Great Northern Railway Company.

There was no change whatsoever in the picketing at that time.

In as much as the law of Wisconsin forbids recognition and organizational picketing of this kind, petitioners filed a complaint with the Circuit Court of the State of Wisconsin, at Superior, Wisconsin, seeking injunctive relief against the continued -- continuation of the picketing alleging that it was a resumption of the same picketing upon which the NLRB had passed and its General Counsel had ruled setting forth the initial determinations obtained from the Board and the General Counsel with respect to the supervisory status of the engineers and the inapplicability of Section 8 (b) (7) of the Act together with the ruling that there had been no evidence of secondary boycott activity.

Injunctive relief against the picketing was granted in the form of a temporary restraining order by the Circuit Court.

The MEBA appeared specially and moved to dismiss upon a ground that the state court lack jurisdiction.

Ultimately, the state court did dismiss the action and vacated the restraining order upon the ground that the petitioner's complaint even though amended to clarify the pleadings continued to arguably allege secondary boycott activity that the action of the National Labor Relations Board since this Court decided the case of MEBA versus Interlake Steamship Company had not been so definite and certain as to give state court's jurisdiction in this type of case.

Petitioners affirmed -- appealed in the matter to the Supreme Court of Wisconsin and that Supreme Court of Wisconsin affirmed it Circuit Court.

Noting that the picketing as alleged was illegal under Wisconsin law and probably not protected by the federal law in as much as the engineers were supervisors the Supreme Court of Wisconsin took the position that General Counsel's rulings cannot be given the final legal significance that Board rulings are given within the meaning of this Court's decision in San Diego Unions versus Garmon.

And since the picketing approach being unlawful under federal law as a secondary boycott, the state courts must refuse to enjoin them.

The Supreme Court of Wisconsin indicated that it realized that this result was somewhat of the paradox.

The Supreme Court of Wisconsin also said that the arguability of certain issues as being subject to the National Labor Relations Board continued despite the determinations that were obtained by the petitioners from the General Counsel and the Labor Board.

We believe that the Supreme Court of Wisconsin was in error.

The General Counsel specifically empowered by the federal Act to have final authority, on behalf of the Board in respect of unfair labor practice charges, the investigation of them, and the issuance of complaints.

Until the General Counsel for the Board issues a complaint, the case never reaches the Board itself.

In the ordinary case, a refusal by the General Counsel to issue a complaint does not as was noted in the Garmon case leave the issue with unclouded legal significance for the applicability of the Act to the personnel now involved and to the activity maybe clear.

The charge is merely dismissed because of a lack of evidence.

However in the special circumstances of this case, the General Counsel's rulings coupled with that of the Board itself that the engineers were supervisors does have final legal significance because the General Counsel's ruling meant explicitly that Section 8 (b) (7) of the Act which regulates primary recognition picketing where employees are involved cannot be applied because in essential element for that section of the Act to apply is the presence of employees and the engineers were supervisors.

Consequently, this ruling by the General Counsel did have final legal significance in that.

It said that the Board could never reach the primary recognition picketing of supervisors under the Act because the Act did not apply to such activity.

A possibility of secondary boycott activity should not deprive the state court of jurisdiction over the primary activity in the case of this type.

Secondary activity which is left to the jurisdiction of the National Labor Relations Board is something more than primary picketing.

It amounts to activity which is calculated to urge neutral employees of secondary employers to cease working for their employer in an effort to put pressure on the primary employer and this of course is something more than primary picketing.

The two activities can exist simultaneously but they're separable.

Consequently, the primary picketing could be left in the case of recognition picketing of supervisors to the jurisdiction of the state court and the secondary activity could remain within the jurisdiction of the Board to be regulated if there is any such activity.

It would not advance the policies of the Act to deny the state court's jurisdiction of the primary recognition picketing for the Act does not extend to such activity.

The National Labor Relations Board perceives no encroachment upon its jurisdiction if this course were followed.

A parallel situation arises in the primary picketing of foreign vessels usually ship picketing occurs at a common situs when the ship is tied up to a dock.

The common situs includes many employers other than the shipowner.

By the decision of this Court in the Incres case, it was held that the National Labor Relations Act is not applicable to foreign ships and their crews.

Consequently, state courts have commenced regulating the primary picketing of such foreign vessels and the Courts of Wisconsin have also done so.

In the meanwhile, it is arguable that there might be secondary boycott activity connected with the picketing of such foreign vessels and if such activity exist then arguably, at least, it would be but within the jurisdiction of the National Labor Relations Board because even though the shipowner may not be subject to the Act there maybe many other employers within that common situs who are subject to the Act and who maybe affected and anyone affected by the secondary boycott activity would give the Board and its General Counsel the right to take action.

Since state jurisdiction in the foreign ship picketing cases does exist side by side with arguable NLRB jurisdiction, the causes of action have as a practical matter have been shown to be separable and can be acted upon by the state and the National Labor Relations Board as the case maybe without infringing upon the jurisdiction of each other.

There is nothing in the history or the policies of the National Labor Relations Act which suggest that Congress intended to prohibit the states from regulating recognition picketing involving supervisors.

In the 1947 amendments to the federal Act, the supervisors were removed from its coverage.

The reason for excluding supervisors was that Congress considered it anomalous to require an employer to bargain with the front line of his own management that there could be dual loyalty, a conflict of interest.

And for that reason, Congress removed supervisors from the Act and to make it plain that no employer should be required to bargain with the union representing such supervisors and in Section 14 (a) to the Act which provided that such bargaining shall not be compelled by any national or local law.

Efforts to organize supervisors are not protected by means of the federal Act because Section 7 of the Act which confers such protection applies only to employees and thereby supervisors are excluded by definition.

Similarly, Section 8 (b) (7) of the federal Act which regulates recognition and organizational picketing applies only to employees due to the general exclusion of employers from the coverage of the Act.

In Wisconsin and other states, there would now be parallel remedies under federal state and -- under federal and state law for the regulation of recognition picketing.

Section 8 (b) (7) of the federal Act regulate such picketing.

The Wisconsin law under the Vogt case also regulates such picketing.

Consequently, there is no repugnancy between the state and the federal law in this area and there would be no reason for prohibiting the states from regulating recognition picketing as a matter of policy, federal policy where the states have jurisdiction of course.

In the legislative history of Section 8 (b) (7) of the federal Act, it appears that Congress considered the technique of recognition picketing as alien to the policies of the Act which sought to provide a free determination of their bargaining agent to employees within the Act, consequently, Section 8 (b) (7) was enacted to forbid or regulate such picketing.

State law has also based upon the same considerations in Wisconsin.

The Wisconsin law is founded upon the public policy that it would be unfair to permit recognition picketing which would compel an employer to coerce his employees in a choice of a bargaining agent or otherwise pays economic lost or economic run perhaps in a particular case.

This type of picketing has not been left to the free interplay of economic forces because it is against public policy as coercive and unfair.

Furthermore, there is nothing to suggest that Section 14 (a) of the Act which relieves the employer of compulsion to bargain with supervisors provides any protection for this type of conduct.

The stated purpose of Section 14 (a) was to relieve the employer of the duty to bargain with supervisors.

It does not in anyway preclude a state from protecting an employer against organizational recognition picketing where supervisors are involved.

Unknown Speaker: Do you understand (Inaudible) that's your position?

Mr. John H. Hanninen: Yes.

Justice William J. Brennan: I gather what -- if I understand the Board to be correct then, it was immaterial that you went as to the 8 (b) (4) aspect of this case.

Mr. John H. Hanninen: Yes.

Justice William J. Brennan: Just went to the Board or the Regional Office or General Counsel or anybody else, the state court accorded to the Board to the extent this was primary picketing had jurisdiction to enjoin it whether you ever want to be -- afford or not, that's the way you read it?

Mr. John H. Hanninen: On the 8 (b) (4) charge?

Justice William J. Brennan: Yes.

Mr. John H. Hanninen: Yes, that is my understanding of it because they are separate cause of action, the recognition picketing being one cause of action, the secondary boycott activity being another cause of action.

Unfortunately, this case became trammeled up with the 8 (b) (4) rulings of the General Counsel because that possibility was presented to the Board for determination.

Justice William J. Brennan: Well, I'm interested whether you had the Board's brief as I did that that's immaterial which it was.

Mr. John H. Hanninen: Yes.

That is petitioner's view because of the separability of the cause of action.

Justice Potter Stewart: That is one-third -- had been a Board determination that these people were all supervisors (Voice Overlap) --

Mr. John H. Hanninen: That was a determination of the Board.

Justice Potter Stewart: But you had to have that.

Mr. John H. Hanninen: Yes, you have to have that.

And the only way that it could be obtained from our understanding of Board procedure is to file an election petition.

Justice Potter Stewart: Yes.

Mr. John H. Hanninen: And have the Board make an investigation and rule upon that question.

Justice Potter Stewart: Yes.

Mr. John H. Hanninen: Because there's no provision in the Act that we know of that would provide for advisory opinions as initial determinations in this area.

It's necessary to file petitions and file charges using the ordinary procedure of the Board and then the Board will determine the issue.

It's only in the limited area where the amount of commerce in which the employer is engaged in might be the subject of an advisory opinion but not these questions that are presented here.

And in this area, there seem to be some question in the mind of the Supreme Court of Wisconsin regarding the procedure for obtaining initial determination such as required in these federal labor preemption cases to resolve arguable issues where arguably the NLRB may have jurisdiction for the Supreme Court of Wisconsin stated that employer -- the petitioners conceded the arguability of the engineer's status as employees within the meaning of the Act by filing a Section 8 (b) (7) charge and asking the General Counsel to prohibit such activity.

Well, the only way that there could be a determination by filing a charge and this did not indicate that that petitioners' felt that engineers were employees within the meaning of the Act.

Furthermore, the time element that's involved, the charges having been filed in September and the final rulings on the charges not being issued until December and that the cessation of the shipping season for the winter months on a Great Lakes have caused some difficulty to the courts below now that the facts may not have been the same.

Well, petitioners believe that the point where facts are being determined was never reached.

There was never any hearing held by any tribunal.

The rulings were made on a motion to dismiss the amended complaint.

When a sup -- when the sufficiency of a complaint is challenged, the pleader is entitled to the favorable inferences which can be drawn from the facts, they are considered in the most favorable light as far as the pleader is concern so that there was no justification for speculation regarding the facts.

The proceedings never reached the point where evidence was adduced.

Petitioners believe that the MEBA versus Interlake Steamship Company decided by this Court is distinguishable from the present case because in Interlake, no initial determinations were sought or received from the National Labor Relations Board in the instant case attempting to follow the requirements laid down in the Interlake case.

Petitioners sought these initial determinations and then presented them to the state courts of Wisconsin for application to the factual situation which was involved.

Justice Byron R. White: Do you say the state could enjoin the strikes by the supervisors?

Mr. John H. Hanninen: No, I would not say that because under the Wisconsin view, it remains as recognition picketing only when a minority of the supervisors or employees are involved.

If majority are involved in the picketing activity then it's regarded as a labor dispute and not enjoinable by the state.

Justice Byron R. White: That's about Wisconsin and that's maybe about state law but what if the state law purported to permit the enjoining strikes and the only reason that state couldn't -- wouldn't or didn't enjoin the strike was because its preempted in doing so.

Do you think the labor law would permit the --

Mr. John H. Hanninen: No, I think the constitutional guarantees in a situation where a majority of the supervisors took action in a concerted fashion would protect them.

It's only in the limited area where a minority is attempting to impose their will on the majority that this Court have stated that Wisconsin in the Vogt case could validly enjoin such picketing which was coercive and not violate constitutional guarantees.

Chief Justice Earl Warren: Mr. Pressman.

Argument of Lee Pressman

Mr. Lee Pressman: May it please the Court.

I think the crucial issue that presented in this case as the respondent see it is simply this.

May a state issue an injunction to enjoin peaceful picketing and at this point I raise a very crucial issue, peaceful picketing at a common situs which this case involves where arguably the activity involved is subject to the provisions of 8 (b) (4) of the Act.

Unknown Speaker: I thought the issue was whether or not the state could issue an injunction where the General Counsel of the National Labor Relations Board has held that this union is not a labor organization.

Mr. Lee Pressman: Up to the contrary when this union is a labor organization.

Unknown Speaker: Yes.

Mr. Lee Pressman: I mean this union hadn't held to be a labor organization.

Unknown Speaker: Well, it's a --

Mr. Lee Pressman: That was about that Your Honor.

Unknown Speaker: Not -- you're putting on your different suit now because this General Counsel held that it was composed only of supervisory employees.

Mr. Lee Pressman: Well, not quite in this case but may I add, I was about to add --

Unknown Speaker: And not in this -- not in this case technically because he wasn't a party to this case but I mean --

Mr. Lee Pressman: All the General Counsel has held in this case is that the employee individuals involved in the primary dispute are supervisors.

Unknown Speaker: But do we have --

Mr. Lee Pressman: There's no issue in dispute that we are labor organization.

Unknown Speaker: Well, if your supervisory employees (Inaudible) -- ipso facto not a labor organization.

Mr. Lee Pressman: I'm sorry sir.

In the -- the Labor Board has held that if we have two or more workers as members who are employees --

Unknown Speaker: But he held that you didn't?

Mr. Lee Pressman: When -- and we have -- in this case there was no such issue by the General Counsel.

The General Counsel had only two matters before him.

One was a charge of 8 (b) -- violating 8 (b) (4).

He held in the particular situation presented to him that in his judgment there was no such violation.

The other charge that was filed with him was whether or not there was a violation of 8 (b) (7) and he held there that since supervisors were involved there could be no violation of 8 (b) (7).

There was no issue of the labor organization sir, none in this case.

But I was about to add when the I say the crucial issue to us is whether peaceful picketing at a common situs which is arguably subject to the provisions of 8 (b) (7) maybe enjoined by the state court because the dispute involves supervisors.

The Government concedes in the memorandum presented --

Justice William J. Brennan: You said -- was the 8 (b) (7)?

Mr. Lee Pressman: 8 (b) (4).

Justice William J. Brennan: Argued that (Inaudible)

Mr. Lee Pressman: Argued the 8 (b) (4).

Justice William J. Brennan: Argued the 8 (b) (4).

Mr. Lee Pressman: (Inaudible) 8 (b) (4).

Justice William J. Brennan: Yes.

Mr. Lee Pressman: The Government concedes in the memorandum that there were aspects of this activity to common situs which were arguably subject to the provisions of 8 (b) (4).

That stems obviously from the complaint, in the amended complaint in the affidavits filed which indicates that the specific picketing on which this suit was predicated was picketing at a common situs.

That was the only picketing covered in the specific complaint for which the injunction was sought.

The injunction sought down below was to enjoin picketing at a common situs.

Now, further the Government concedes that the picketing at the common situs on which this suit was based occurred in April of 1963 that no charges have ever been filed by the petitioner nor has the General Counsel or any agency of the Board ever reached or evaluated the picketing of 1963.

So that the Government states on the basis of that record that the National Labor Relations Board hasn't reached that activity and that arguably that activity, that picketing of 1963 is within the purview of Section 8 (b) (4) of the Act.

Now, the Government states that the policies -- and I now quote from the memorandum, “The policies of the National Labor Relations Act are further by excluding all state regulation at least until the Board has evaluated the activity, that is the activity of usual case of picketing at a common situs.”

Unknown Speaker: Well, the General Counsel found against you on these issues, didn't he?

Mr. Lee Pressman: Only on the issue that --

Unknown Speaker: Of primary and secondary?

Mr. Lee Pressman: No.

Your Honor, the General Counsel found that there was no violation of the 8 (b) (4) provision with respect to 1962 picketing.

He also found that there was no violation of 8 (b) (7) because supervisors were involved and 8 (b) (7) only covers employees.

The General Counsel according to the Government never reached the 1963 picketing of the common situs.

Justice William J. Brennan: Well, if -- 1963, was that Superior (Voice Overlap) --

Mr. Lee Pressman: That's correct Your Honor.

Justice William J. Brennan: And 1962 was at Duluth?

Mr. Lee Pressman: At Duluth.

Justice William J. Brennan: And all the proceedings that involved the Regional Director and the General Counsel concerned the Duluth picketing, is that it?

Mr. Lee Pressman: That's correct Your Honor.

Justice William J. Brennan: And there's never been any proceeding about that?

Mr. Lee Pressman: Absolutely no proceeding and the Government states on page 14 of their memorandum that the General Counsel of the Board had no opportunity to evaluate the 1963 picketing at Superior which forms the basis for the present suit because Hanna did not file an 8 (b) (4) (b) charge with regard to that picketing.

The Government goes on to add at that repugnance memorandum on page 14 accordingly, the 1963 picketing arguably contains some secondary elements which the Board could reach under Section 8 (b) (4) (b).

Justice William J. Brennan: Well, do you understand the Board's position Mr. Pressman if I asked your adversary, he did as meaning that independently of any proceeding --

Mr. Lee Pressman: Under 8 (b) (4) --

Justice William J. Brennan: -- a situation like this, a state court may determine in the first instance whether there are primary aspects to the picketing and enjoin if it finds that there are even though you've never -- even though no one's ever been to the Board on an 8 (b) (4) charge.

Mr. Lee Pressman: I agree -- I understand the Government's position to be exactly that and which we would submit would be a frustration of the principles enunciated in Garmon and all the cases which came subsequent to which I'd like to refer to in a moment.

Justice William J. Brennan: I suppose so as Mr. Justice Stewart suggested earlier (Voice Overlap) to this that --

Mr. Lee Pressman: (Inaudible)

There'd have to be a declaration of a finding --

Justice William J. Brennan: -- determination -- yes.

Mr. Lee Pressman: -- that the employees involved were supervisors.

Justice William J. Brennan: Yes.

Mr. Lee Pressman: And I assume also that it was -- well, a labor organization wouldn't be involved just they were supervisors that all be required.

Now, I submit as I said the essence of the entire question is when we have picketing of the common situs, can there be this division of what we call the indivisible activity of picketing at a common situs any more than Solomon could've divided a single child.

All the cases that we have, I start with Interlake and there's a case which I'd like to call the Court's attention that were not cited in our brief but came to our attention after the brief was filed namely, Hattiesburg Building Trades versus Broome at 377 U.S.

We point to those two cases because in both you have a situation where there is picketing at a common situs and arguably a violation under Section 8 (b) (4).

In both cases, in Interlake as well as in Hattiesburg, extensively, there were so-called activity which a state could attach and enjoin.

In Interlake, we had precisely the situation we have here.

We had the state law which forbids so-called “Minority picketing or minority organizational activity as well as an arguable secondary boycott."

The state court and Interlake issued the injunction on the ground that it believed that no labor organization was involved.

Now before this Court, you held that the issue of labor organization had to go to the Board first.

However, the basic issue would've been as Mr. Justice Brennan just indicated, the Board's position would be that regardless whether there had been a violation of 8 (b) (4) the mere fact that they were so-called primary aspects the state could attach to those primary aspects.

Justice Byron R. White: And by the very same token Mr. Pressman your position is that irrespective of whether there's been a Board finding about the secondary features of this picketing that the state may not enjoin the primaries.

Mr. Lee Pressman: No, to the contrary that the aspects --

Justice Byron R. White: I thought they've said -- I thought you were -- the burden of your argument was that the federal law meant to that there was to be a hands off -- hands off of activities of supervisors in the picket line?

Mr. Lee Pressman: No, Your Honor.

I said this, that I'm picketing at a common situs where there's arguably a violation --

Justice Byron R. White: Right.

Mr. Lee Pressman: -- of Section 8 (b) (4) --

Justice William J. Brennan: Independent of the facts that --

Mr. Lee Pressman: Regardless --

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

Mr. Lee Pressman: Regardless whether there are supervisors --

Justice Byron R. White: Right.

Mr. Lee Pressman: That the Board has primary jurisdiction to determine the issue of violation of Section 8 (b) (4).

Justice Byron R. White: I understand that.

Now, what if the Board has already -- has gone ahead and decided there are no secondary aspects?

Mr. Lee Pressman: Well, of course, in this case it had not.

Justice Byron R. White: Now, but what about it had?

Mr. Lee Pressman: Now, if it had we submit the following.

Under the Morton doctrine where there are secondary aspects as in this case but the Board want to find that it was kind of secondary aspects that did not violate specifically Section 8 (b) (4).

As we read Morton that activity would be permissible though not prohibited and if it be permissible we don't think that any face of that activity could be enjoined by the state and respectfully submit that is the doctrine of Morton.

Justice Byron R. White: So that it wouldn't make any difference to you whether the Board had adjudicated this a secondary or not?

Mr. Lee Pressman: Well, I -- this is immaterial I would say either they would adjudicate as a violation of 8 (b) (4) in which event the Board would issue the injunction or if they would hold that though there are secondary aspects nevertheless 8 (b) (4) would not violate it --

Justice Byron R. White: So the (Voice Overlap) --

Mr. Lee Pressman: -- that under Morton it would be permissible to -- activity.

Justice Byron R. White: But the Board -- both the Board and you think that it's beside the point perhaps if they've adjudicated (Inaudible)

Mr. Lee Pressman: I do think that I differ from beside the point.

I think there's a significance depending with the Board hold the violation or no violation.

Now the Board seems --

Unknown Speaker: I note -- I know two picket lines, one primary and the other secondary picket.

Mr. Lee Pressman: Your Honor, there is no two picket lines at a common situs.

Unknown Speaker: There's one -- If one picket line and if the state has jurisdiction to enjoin picketing for one of those reasons why isn't it on solid ground?

Mr. Lee Pressman: To be -- for this reason Your Honor, if the state were to be permitted to enjoin picketing at a common situs, all picketing --

Unknown Speaker: By supervisory employees?

Mr. Lee Pressman: By supervisory employees.

All picketing ceases which means the Board then is never -- can reach nor does it ever have the opportunity to pass upon the issue whether or not the facts though arguably a violation of 8 (b) (4) did (Inaudible) -- they did not constitute a violation.

Now, may I point out why that is of importance?

We submit that there is a definite national labor policy that matters pertaining to secondary boycotts which fall within the Section 8 (b) -- 8 (b) (4) that those matters rest in the primary competence in the primary jurisdiction of the National Labor Relations Board.

Unknown Speaker: I suppose the management of US Steel Corporation could picket constitutionally but they wouldn't have the protection of the National Labor Relations Board.

Mr. Lee Pressman: Well, I submit supervisors do not have the protection of Section 7 or Section 8 (a) that is correct Your Honor.

But I don't think that that is the issue before us.

Justice William O. Douglas: For one, the picketing is like Solomon's child or whatever you phrase you used (Voice Overlap) --

Mr. Lee Pressman: Precisely.

Justice William O. Douglas: -- inseparable I don't see how you can separate it.

Mr. Lee Pressman: I don't see how you can separate picketing at a common situs between so-called primary aspects and secondary aspects.

It's one act of picketing.

Here, in --

Unknown Speaker: The cases are balanced you cite are little different because there you can enjoin picketing validly or (Voice Overlap) --

Mr. Lee Pressman: Your Honor I would say this, violence cases are different with the following reason, this particularly the Government --

Unknown Speaker: Well, that's one reason why they're different.

Mr. Lee Pressman: It's different because you can extract the difference between violence conduct and peaceful conduct even more important.

I think as I read the cases beginning with the Russell case, the Laburnum case and the Youngdahl case, what this Court has done in the violence cases to say, where there is activity and if the prohibition are the same is so deeply rooted in local tradition you have permitted the states to attach jurisdiction to that activity even though the very same activity maybe subject to certain provisions of the National Labor Relations Act.

That's the violence case.

I think it's aptly different from this case.

Justice William J. Brennan: Well, one thing I don't quite follow here Mr. Pressman.

If I had correctly understood your argument, it was that the Board might find that does not involved any prohibited secondary activity and did you then suggests that from that finding is an inference that there might still be secondary activity whether it's permissive?

Mr. Lee Pressman: There would still be secondary -- there might be in the case, secondary aspect.

Justice William J. Brennan: I don't --

Mr. Lee Pressman: Your Honor --

Justice William J. Brennan: I think secondary activity was either prohibited or it didn't exist?

Mr. Lee Pressman: That's not correct Your Honor.

May I point this out in the --

Justice William J. Brennan: Well, have we any -- have we ever said?

Mr. Lee Pressman: Yes, in Morton.

In the Morton case you had this situation, there was secondary or rather picketing at a common situs.

Employees of a secondary employer were induced to stop work but in addition the Union also appealed to an employer, a secondary employer.

A suit was begun the federal District Court under diversity I believe and damage is sought on the basis of violation of the state statute with respect to -- one item of the damages was the activity addressed to the secondary employer.

This Court held that appeals to a secondary employer is not a violation under Section 8 (b) (4) but nevertheless the state could not justify or attach jurisdiction over that activity because in the language of the Court Congress had focused on the entire field of secondary boycotts and even where Congress has not prohibited a certain phase nevertheless, the states were restrained from entering that field and therefore that conduct couldn't be restrained or damages obtained in a state court nor was it a specific prohibition under Section 8 (b) (4).

It had become permissible conduct under Morton.

Justice William J. Brennan: But what about 303 suit after that?

Mr. Lee Pressman: Pardon?

That was a 303 suit --

Justice William J. Brennan: Yes.

Mr. Lee Pressman: But I'd call to your attention Your Honor that the principles of 303 are precise and the same as the principles under Section 8 (b) (4).

As a matter of fact now, Section 303 simply refers to 8 (b) (4).

Now, interesting enough, the Hattiesburg case which is not a situation where we have here of organization picketing.

There was a clear cut situation.

Justice William J. Brennan: That was a per curiam?

Mr. Lee Pressman: Pardon me?

Justice William J. Brennan: Is that a per curiam?

Mr. Lee Pressman: It was per curiam and that's what interest me and that its the last case on the subject, it follows Incres and it follows Interlake.

There is a situation where the primary employer was established to be in intrastate commerce, therefore, obviously not within the purview of the Act.

Picketing was conducted at a common situs and extensively secondary employees had been induced not to work.

The Court have and under a state law, state right to work statute, the picketing conducted in that against in that common situs was in violation of the state law.

The state court issued an injunction enjoined the picketing at the common situs.

This Court by per curiam decision granting certiorari and dismissing the injunction held the phone said the mere fact that there was interstate commerce on the part of a secondary employer established in effect jurisdiction of the Board for the secondary boycott.

You prevented the state from acting against that intrastate employer.

In even insofar as so-called primary aspects of the picketing were concerned because, basically, I think in Interlake and the Hattiesburg case this Court has maintained where there is picketing at a common situs and where such picketing contains elements which arguably in violation of Section 8 (b) (4), the state cannot attach to any face of that activity even though supervisors are involved until the Board has a chance to rule on that issue.

The significance of the ruling would depend on whether it held to be a violation in which event there's no problem, in its final adjudication or if the Labor Board would hold that there is secondary aspects but no prohibition.

I submit the doctrine -- the Morton which might still restrain the states.

But certainly no state has been permitted in that situation to issue an injunction enjoining picketing so-called primary aspects when the effect of the injunction is to completely prevent and negate the Board from ever exercising jurisdiction over this field clearly given to it by Congress under Section 8 (b).

Unknown Speaker: Why do you say to the Incres --

Mr. Lee Pressman: The Incres case, Your Honor, I --

Unknown Speaker: -- international (Voice Overlap) --

Mr. Lee Pressman: I would say this.

I think that Government offers that as a case in point I think it's clearly inapposite for this reason.

As I read Incres in light of Benz, this Court has stated the following, in primary disputes between or rather disputes between the primary parties, the primary employer and the primary union where the dispute involves the labor management relations of a foreign vessel and a crew by a foreign crew neither the primary aspects nor the secondary aspects insofar as these basic parties are concern are within the purview of the Act in that those local labor management relations are not involving affecting commerce.

In Benz Your Honor, you may remember you issued your dissent and you pointed to the majority opinion which did the following.

In Benz, where we had this very situation, a state court was permitted in Benz, in a suit by the primary employer against the primary union to get damages on the basis of a state law for inducing secondary employees.

If the Act had covered that situation, that could not have obtained because the suit should have been on the Section 303.

To the contrary, this Court sustained of state suit in Benz where damages were awarded for inducing secondary employees.

And finally, in Incres I point to the Court, that you cited Interlake with approval certainly thereby not counting the suggestion of the Government that Incres in some fashion modify Interlake.

In (Voice Overlap) --

Unknown Speaker: Well, it's difficult for me -- I mentioned Incres because it's difficult for me to imagine any picketing that doesn't have primary and secondary aspects.

Mr. Lee Pressman: Oh, Your Honor that considerable picketing where there might be a primary picketing and no secondary aspects.

Secondary aspects, I don't say a violation, I say secondary aspects arise only in the event secondary employees are induced.

But you might have picketing and even in maritime circles, you have picketing where there are no secondary aspects at all.

For example, just the other day, the same union was picketing.

Unknown Speaker: It maybe, yes, but I say it's difficult for me to imagine many cases of that kind.

Mr. Lee Pressman: No, I say there are maritime fleets that have their own docks and there are no secondary employees and those -- the longshoreman there but the longshoreman may not be there.

There'd only be primary employees involved.

Or on the other hand, when -- we submit where there are secondary employees, where there are secondary aspects --

Unknown Speaker: How -- those people driving trucks with provisions and bringing oil and gas and things of that kind of?

Mr. Lee Pressman: Well, except this Your Honor, there might be a distinction between a common situs which is this case and the picketing at a primary situs with other employees maybe servicing that first.

Unknown Speaker: I was thinking just to the (Voice Overlap) --

Mr. Lee Pressman: That might be -- that maybe a difference there.

No, I'm not suggesting a difference result should eventuate, all I'm pointing out that in this case we specifically had picketing at a common situs because the picketing -- the only picketing that's involved in this case occurred at the docks of a secondary employer.

Justice Abe Fortas: Counsel, (Inaudible)

Mr. Lee Pressman: Your Honor, I can conceive of a situation where the Board might hold that there are simply were no secondary aspects.

Justice Abe Fortas: (Inaudible)

Mr. Lee Pressman: No, Your Honor.

They held here they were secondary -- you're talking about the 1962 picketing now because there was no action in the 1963 picketing.

Unknown Speaker: (Inaudible)

Mr. Lee Pressman: I conceive of a situation where the Board might find that there were absolutely no secondary aspects as distinguished made violation of a secondary boycott.

When I say no secondary aspects I mean this.

They may well affirm that not secondary employees, that no secondary employer had in anyway been induced or in anyway involved in the controversy thereby translating the situation into one exclusively that of a dispute and the only activity being confined to the primary union and the primary employer.

Unknown Speaker: And the primary (Inaudible) -- that there are no secondary (Inaudible)

Mr. Lee Pressman: Your Honor --

Unknown Speaker: (Inaudible)

Mr. Lee Pressman: May I put it this way -- may I put it this way, Your Honor.

Whether or not if you have activity or picketing at a second -- at a common situs, whether or not you're in violation of Section 8 (b) depends exclusively or primarily on whether there is an object to induce the secondary employees, so that the same physical Act of picketing at a common situs and it's a question whether there is an object which is purely mental on the part of the (Inaudible), whether that ob -- an object is to induce to secondary employees.

Unknown Speaker: And that (Inaudible)

Mr. Lee Pressman: In the 1962 picketing, the General Counsel said, there was no evidence to show an object addressed toward the secondary employer or the secondary employees.

There's no finding on the 1963 picketing.

Unknown Speaker: (Inaudible)

Mr. Lee Pressman: That's correct and (Inaudible) -- isn't it question whether it's a year or not, I say that there were certain picketing at a common situs in 1963.

Unknown Speaker: (Inaudible)

Mr. Lee Pressman: No, Your Honor.

For two reasons, First, this Court has held very clearly in Garmon that the General Counsel's decision on such a matter is not a final decision by the Board and that the Board has failed to give the so-called “final legal significance to a set of facts.”

The General Counsel specifically is -- does not suffice.

Secondly, even assuming a complaint had been issued and after a hearing the Board had dismissed the complaint on the ground that there was no object addressed to the secondary employees.

I give you my answer, I gave previously to Mr. Justice Brennan but under the Morton doctrine that may well be construed as permissible activity which again the Board could not attack -- the state could not attack jurisdiction.

Now, lastly may I comment briefly if I may, on the issue which up until now we've been assuming arguendo that --

Justice Potter Stewart: Mr. Pressman, may I ask you -- interrupt for one moment to ask if you happen to have the citation of the Morton case which you've cited to us earlier.

Mr. Lee Pressman: I think it's in my brief Your Honor.

Justice Potter Stewart: I didn't see but --

Justice Hugo L. Black: 377 U.S. 252.

Justice Potter Stewart: Very good, thank you.

Mr. Lee Pressman: I say -- I pause briefly to comment on the issue as to whether or not Congress has actually left the regulation of organization or recognition activity of supervisors to the states.

We submit that a fair reading and interpretation of the Act whereby supervisors have been excluded from the term employees.

But in light of Section 14 (a), Congress designedly established a national policy pursuant to which policy supervisors were not to be left open for regulation by the states.

Now, what the Government suggests is the mere exclusion of supervisors from the definition employees certainly signifies Congress' intent that supervisors be left to the states.

But the Government fails to give heed to Section 14 (a) under which supervisors are given the right to join and become members of unions.

The only limitation on Section 14 (a) is that there maybe no state or federal law which would compel an employer to recognize a union representing supervisors.

It is our unders -- interpretation as we read the Act in light of the amendment to Section 7 or the amendment on the definition and Section 14 (a) that what Congress did is to decide that a nice balance between employers and supervisors in terms of their relative economic forces was to leave the regulation of their activities to the free play of economic forces.

I honestly and voluntary believe that if the question have been asked on the floor of Congress, what is the intent of Section 14 (a) at the time it was passed, at the time that supervisors were omitted from the definition of the term employees the idea of Congress was that employers and supervisors could take care of their own problems and that let it to be free -- to the free play of economic forces.

Certainly, if you read the reports of the House and the Senate on the issue of 14 (a), it's made clear that Congress intended to establish a National Labor policy for supervisors.

Not a policy such as we have for employees of what is prohibited and what is permitted but nevertheless a National Labor policy which is in effect that is left free as distinguished from any state being able to attach jurisdiction over the same.

May I point out Your Honor lastly that when Congress intended to see jurisdiction over any group of employees or any area of conduct or activity, Congress had no difficulty.

And so legislative namely, when they enacted 14 (b) and they enacted 14 (c) Congress knew exactly how to incorporate a specific provision that would permit the states to have jurisdiction over a specific area of conduct that Congress wished to give to the states.

Thank you, Your Honor.