ATLANTIC COAST LINE RAILROAD CO. v. BROTHERHOOD OF RAILWAY TRAINMEN

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Argument of Paul A. Porter

Chief Justice Earl Warren: Number 220, Atlantic Coast Line Railroad Company et al., petitioners versus Brotherhood of Railway Trainmen, et al.

Mr. Paul A. Porter: Mr. Porter for petitioner.

Chief Justice Earl Warren: Mr. Porter.

Mr. Paul A. Porter: And Mr. Lyons.

Mr. Chief Justice and may it please the Court.

I'd asked the martial to bring forward here on easel a map that we have which I believe will of some assistance in making clear what this case is about.

Chief Justice Earl Warren: Very well.

Mr. Paul A. Porter: This case is here on certiorari from the Court of Appeals for the Fifth Circuit to review the holding of the District Court that without jurisdiction by reason of the Norris-La Guardia Act to issue an injunction against the picketing which suddenly surrounded of the Jacksonville terminal and effectively prevented all rail access through those facilities.

Now, the facts about the turmoil and the picketing, we think are essential for a proper understanding of this case and I will undertake that task.

Mr. Lyons will then address himself to some of the underlying legal issues that are involved.

The Jacksonville terminal, if Your Honor please, is shown in green here on this map.

Now, this represents a -- an expanded version of the map which is on page 9 of our opening brief.

Now, there's a basic concept with respect to these terminals that we believe is important to comprehend and that is this terminal is not a place by traffic stops, it is not a place where traffic terminates.

Brotherhoods most important function is its ways through which traffic moves and the terminal maybe a more appropriately described we think as a gateway or a thrown of commerce to which all the rail traffic to the entire commissioner Florida flows.

Now, the terminal stands upward as you will see of the main lines of the principle carriers.

Here, shown on this map, there's the main line of the Atlantic Coast Line which is in blue and it runs down from the north of Richmond, Virginia onto Tampa and points south of -- in to mention to Florida.

Its main lines enter here at the McQuade Street and exit next to Jonas Street.

That is marked here.

If you cut off the terminal property where these main lines run through thus you cut off the main line of the Atlantic Coast Line.

Here's also the principal main line of the seaboard and this is designated here in Orange.

As you can see the seaboard, enters into the terminal here on Paton Street and exits on Stockton Street.

So, certainly if you cut off the terminal, you cut off the main line of the seaboard.

Now, in addition this main line control operations that move on the coastline and seaboard which do not involved interchanges between any carrier.

The terminal was are placed through which there is a considerable interchange of freight traffic between carriers of plants coal through the terminal properties.

Now, these interchanges of course are necessary to move commodities to Florida or necessary for the vast and space effort and therefore, it orders from the Seaboard and the Coastline to interchange their freight with each other, these cars has must be moved into and through the terminal property and say it was a keys of the southern railway system which lies in within the terminal here and are shown in red.

The same is true on the struck Florida East Coast Carrier whose lands are shown in brown and they come up from the south and terminate across the St. John's River at river side out of it.

That is the northernmost terminal of the Florida East Coast.

It moves on traffic --

Justice John M. Harlan: Is there another carrier designed to realign the (Inaudible)?

Mr. Paul A. Porter: Yes, sir.

Another carrier and the -- or there's the Atlantic Coast Line, the Seaboard, the Southern and the FEC.

Justice John M. Harlan: The Southern and --

Mr. Paul A. Porter: And the Southern, yes.

Now, as I have said, the FEC has no through moves through this terminal and even when you consider the interchange that is involved on the main lines of the Coastline and the Seaboard.

They do not involve interchanges with the FEC plus about 70% of all the freight interchanges involved carriers other than the struck FEC.

That is the Coastline, the Seaboard and the Southern.

And I think that another relevant measure is the fact that the coastline for example generates about a $100 million in freight revenues to and from the Peninsula, Florida and only about $3 million of his revenues are accounted for with the interchanges with the FEC.

Now, of course there are host of other activities are performed in the terminal facilities.

This is where all U.S. mail flowing into and out of Peninsula, Florida is handled.

About 95% of the entire mail volume in fact passes through the Jacksonville terminal and the FEC handles no mail.

So, you cut off the terminal and you stop the flow of U.S. mail into Florida.

Now, on local level, the terminal serves are number of industries through its own facilities as well as the industries that are located around the various yards and near the terminal properties.

The terminal company I should add is a regulated common carrier in its own right.

Now, these industries which are served by the terminal properties cut off the terminal facilities, rail service to those industries is plus terminated.

One quick example perhaps would be useful.

There is up in the northeast direction here from the terminal, a large paper mill that receives about 3,000 cars per month on raw material and ships out about a thousand cars.

It was pointed out at the trial court that it would shutdown within a few days after rail service was discontinued thus eliminating about 1600 jobs in the area.

Now, the terminal is also an important place for having passenger service.

As a matter of fact, the only passenger terminal in North East Florida is located in the terminal premises.

The Seaboard and Coastline moved 42 frames per day through the terminal facilities whereas the Florida East Coast has only one train each day which operates only on weekdays, one train each way I should say.

Now in addition to the internal yards in the terminal property here, in the Y.H. and the Honeymoon Yards, each of the carriers using the terminal as its own yard outside the boundaries of terminal.

For example, Coast Line Mount free yard is marked there and the seaboard as this yard the West Jacksonville yard here to the west.

Whereas I think this is some of significant if the Court please, the FEC as this yard known as the bottom yard across the St. John's River and 12 miles distance from the terminal.

The southern has this yard up near the Mount free yard known as the Simpson yard.

Now, in order for freight movements, one carrier to be interchanged with another, the delivering carrier brings his cars and his own crews to a pre-assigned point either within the terminal or by means of a movement through the terminal to a point in the yards of the other carriers and leaves the cars off at this pre-arranged point then receiving carrier with these groups picks up the cars and begins the process of taking them for their -- to their destination.

Now, in order for the FEC to interchange his crew has bring them from their Dalton yards 12 miles south of the St. John's River across the terminal entering here and then at the terminal property of southern, pick them up, take them and distribute them to the pre-arranged yards and there they're cut in to a through movement.

Justice John M. Harlan: What's the total area of the terminal?

Mr. Paul A. Porter: The -- the total area of the terminal Mr. Justice Harlan, I believe at this green area here is an area of I think three-and-a-half square miles and it includes a division to the passengers stations, the mail ships, mail service, railway express is also located there handling about two-and-a-half million packages per month.

So, the perimeter of this terminal is -- I may have overstated it but it is the orange facility of perhaps that magnitude and the terminal of these other properties whose rights of way as I have said is the regulated interstate carrier in his own right.

I think this Court is familiar because the case that was here the last term, the history of strikes that the Florida East Coast have been involved for the past three-and-a-half years.

The non-operating Brotherhoods have been on strike since 1963 but the FEC has operated in spite of that strike.

Now, after FEC sought to put in a number of rule changes affecting the operating Brotherhoods, those Brotherhoods after the exhaustion of procedures specified in the Railway Labor Act went on strike against the FEC in April of this year.

And the early morning hours of May 4 of this year, without advance notice or warning, the operating Brotherhoods through a picket line along the terminal of the properties and these numbers here show the location and the numbers of the pickets.

Lots of pickets were placed here at the Akron Street crossing where the mainline of the seaboard crosses through the terminal and the Church Street crossing where seaboards, cars were having destined for terminal handling also entered.

And similarly of pickets were stationed at the Jonas Street and the McQuade Street crossing and that is where the Atlantic Coast Line mainlines enter and exit from the terminal.

There are also station around strategically as you can see and a number of rail and food entrances used by the terminal company and their own employees.

Justice William J. Brennan: Where -- where's the so called FEC gate?

Mr. Paul A. Porter: The FEC gate Mr. Justice Brennan ought to be the special gate that was established for FEC employees?

Justice William J. Brennan: Yes.

Mr. Paul A. Porter: That is located, the terminal property here on Bay and Stewart street.

Justice William J. Brennan: Bay and Stewart?

Mr. Paul A. Porter: Bay and Stewart, yes.

And I was going to comment on that -- the fact of that special gate had been set aside since 1963 for the use of FEC employees.

But the picketing of the terminal at the early morning hours of May 4 caused a complete secession of all activity in the terminal.

The employees who were at work worked out their shelves but other employees refused to cross the picket lines including the employees of the coastline, the seaboard and the terminal company.

Moreover, trains that were approaching of the terminal properties stopped and refused to cross the picket lines.

For example the coastline's train number 375 that was running at dawn from Richmond stopped at the Quiad Street entrance and they had to wait until supervisory employees are available to bring into the terminal because the crews would not cross --

Justice John M. Harlan: What was the --

Mr. Paul A. Porter: Excuse me.

Justice William O. Douglas: I don't see a Stewart Street.

Mr. Paul A. Porter: I don't think Stewart Street is marked on the map opposite page 9 Your Honor but the -- it's right at the terminal where the -- where if you will see on page 9 that the map doesn't give that sufficient detail but about where its -- the -- just west of the passenger station is --

Justice William O. Douglas: Which is west?

Mr. Paul A. Porter: West is going that -- to the left.

Justice William O. Douglas: Yes.

Justice Byron R. White: Just where is that?

Mr. Paul A. Porter: No, it was not on this map (Voice Overlap) --

Justice William J. Brennan: Well, I notice in this map for a bay and riverside?

Mr. Paul A. Porter: Yes.

Well, this is a Bay and Stewart Street, Stewart Street is a smaller.

Justice William J. Brennan: Yes, but where was it with respect to the intersection of bay and river side and the bay in Stewart bay to the right or to the left as you look at the map?

Mr. Paul A. Porter: It could be to the left.

Justice William J. Brennan: To the left.

Far left?

Mr. Paul A. Porter: No, it would be just about a block out of this zone.

Justice Hugo L. Black: That's where the green line is?

Mr. Paul A. Porter: That's right.

Justice William J. Brennan: Is it between the Park then and riverside?

You know this part and the riverside seemed parallel in one another?

Mr. Paul A. Porter: Yes, between Myrtle and Park.

Justice William J. Brennan: Between Myrtle and Park?

Mr. Paul A. Porter: Yes.

Myrtle runs down in here.

Justice William J. Brennan: Yes.

About where the words STA tracks?

Mr. Paul A. Porter: That's correct, yes.

Justice William J. Brennan: Is that it?

Mr. Paul A. Porter: Yes.

Now, --

Justice William J. Brennan: Now, we can't just -- could you pinpoint with relation to one of those red marks on that line of Ridge station tracks.

Mr. Paul A. Porter: I think it could be the second red mark --

Justice William J. Brennan: Going left?

Mr. Paul A. Porter: Mr. Justice going left, yes.

Justice William J. Brennan: Thank you.

Mr. Paul A. Porter: Just west of the passenger station.

Justice William J. Brennan: Yes.

Mr. Paul A. Porter: And that is where mail express and it's a convenient access of those employees to the terminal.

Now, in our --

Justice John M. Harlan: I want to ask you Mr. Porter.

What's the total lapse time between the commencements of the picketing in the issuance of injunction?

Mr. Paul A. Porter: 13 hours, the temporary restraining order.

There was a -- that was the day that the Jacksonville board got out the bed earlier than their customer hour and immediately there was a complaint filed in District Court with supporting affidavits.

There was oral testimony.

Later in the day Judge McRay issued his temporary restraining order.

Three days later, there was another contested hearing on the preliminary injunction where oral testimony was taken and the preliminary injunction was issued.

Justice John M. Harlan: Did the federal injunction precede or turn after the state injunction?

Mr. Paul A. Porter: The state injunction followed.

That was when the Fifth Circuit denied the stay as this Court subsequently granted.

Now, I would emphasize if Your Honors please that the coastline, the seaboard and the terminal company, they have no dispute with their own labor forces.

The terminal company as well as the coastline and the seaboard they have separate contracts with the Brotherhoods working foreign.

Now, none of these companies has the approach I may say on the FEC to labor relations.

Now, this Court knows the FEC was the only class one carrier in the country that did not accept the management settlement and was this -- with this entire background that the District Court after it contested hearing and which oral testimony received issue this limited preliminary injunction.

I guess the --

Justice William J. Brennan: Now, that as I recall it a restrain of picketing except that the FEC gave, is that it?

Mr. Paul A. Porter: They could picket Mr. Justice Brennan.

The -- at the FEC gate, at the river side having their entrance which they did not picket and up and down the whole length and breadth of the FEC coastline.

Justice William J. Brennan: Yes, but I'm speaking at the terminal now.

Mr. Paul A. Porter: Yes, at the terminal.

Justice William J. Brennan: I thought the restraint ran against every place marked here as location of pickets except the FEC gate?

Mr. Paul A. Porter: That's correct.

Justice William J. Brennan: Is that right?

Mr. Paul A. Porter: That's correct.

Yes, sir.

And it was limited as I say to that extent.

Now, for reason which Mr. Lyons will develop further, it is our position that the decision of the District Court was correct and the inability or the unwillingness or even stubbornness of the FEC to settle this long standing dispute with the Brotherhoods cannot and should not, we submit, be permitted to broaden the area of strike and shutdown carriers who have peaceful relationships with their own employees.

If you will, what the Brotherhoods barely seeking to apply here is a principle of escalation in railway affairs which if carried out logically, we submit could paralyze the rail transportation of this country even beyond the boundaries of the potential of Florida for we cannot even realistically conclude that even if the FEC employees were able to shutdown transportation on a broad regional or statewide basis that such a calamity would result in setting their differences with the apparently intractable Florida East Coast Railway.

We submit that a management which is exhibited and approached to his employees such of the FEC could scarcely be expected to habituate even if the whole commerce of the nation was brought to a granting halt.

Thus, the consequences of making innocent carriers and the public suffer for what might be called the 19th century attitude of a recalls of the carrier is really awesome when you consider the terms and the impact upon the nation's transportation system.

Now, preventing the closing down of the Jacksonville terminal because of a dispute out the brotherhoods, what in our view reduce labor railway relationships to the loss common denominator, it would vastly enlarge the effects of a railway labor dispute rather than containing or confining it as we insist national policy requires.

The picketing of the Jacksonville terminal in our view amounts to a direct use of unlawful economic weapons by the railway Brotherhoods to carriers who are not a party to their dispute and unless the District Court has jurisdiction to limit the picketing which threaten the complete shutdown of all rail transportation to potential of Florida.

Neutral carriers under innocent third parties and the public are threaten with irreparable injury for which no remedy would be available.

Justice John M. Harlan: Are these joint facilities terminal facilities are common phenomenon in the railroad industry?

Mr. Paul A. Porter: I understand they are, Mr. Justice Harlan, yes.

Although, I believe the Jacksonville terminal has some unique characteristics and that it has through movement functions.

Thus, mail express in fact, that all the commerce going to potential of Florida must use of necessity these terminal facilities.

So, therefore as Mr. Lyons will summarize we take the position the federal courts under these circumstances are certainly not impotent to prevent such a disastrous escalation of the struggle between the FEC and his Brotherhoods.

Thank you.

Chief Justice Earl Warren: Mr. Lyons.

Argument of Dennis G. Lyons

Mr. Dennis G. Lyons: Thank you Mr. Chief Justice.

May it please the Court.

The basic position that we take this morning on behalf of the petitioners is the position which the Court recognized in the Chicago River case about a decade ago.

There, after quoting from the legislative of history of the Norris-La Guardia Act and particularly a dialogue that Representative La-Guardia had with Representative Lincoln, the Court said, we hold that the Norris-La Guardia Act cannot be read alone in matters dealing with railway labor disputes.

There must be an accommodation of that statute to the Railway Labor Act.

So, the obvious purpose of the enactment of each is persevered.

We think that the purposes of these acts are reconcilable.

With that in mind, we turn to Section 2 of the Railway Labor Act which declares its purposes as including, avoiding any interruption to commerce or to the operation of any carrier engaged therein and also to provide for the prompt and orderly settlement of all disputes.

As this Court put it, the meaning of the Railway Labor Act in its purpose is to channel -- to setup channels for the forces of economic strike in the railway industry and the special processes which were intended to compromise them.

Under the Railway Labor Act, the procedures are provided which in virtually all cases supersede and replace the right to strike and picket.

Justice William J. Brennan: See Mr. Lyons, we were dealing in Cargo River with minor disputes.

Mr. Dennis G. Lyons: With the minor disputes.

Justice William J. Brennan: For which Congress had provided a terminal procedure in effect in arbitration.

Mr. Dennis G. Lyons: Right.

Justice William J. Brennan: You don't have that here, do you?

Mr. Dennis G. Lyons: Here, we have as between the Florida East Coast and its Brotherhoods, there have been certain procedures.

There have been the major dispute procedures which were setup under Section 6 of the Railway Labor Act.

Now, as between the carriers that are involved here today, the seaboard and the coastline and the terminal company on the one hand and the brotherhoods on the other who not only of course represents the workers of the FEC but also represent the workers at the carriers that are involved here today.

We have had no procedures yet.

There have been no procedures that the carriers that are here today have had benefit some.

It would be our position that if the Brotherhoods wish to attempt to do what they did in morning of May 4 that the procedure that they would have to follow and we would not admit that it's open to them but the procedures that they would follow to test whether they could generate a dispute between these carriers and themselves with respect to the subject matter would be to file Section 6 notices and to take the position that the agreements between these carriers and themselves relating to the work practices within the terminal area should be revised to provide that their employees for the man in the crafts that they represent would not be required to touch FEC cars.

Now, the Brotherhoods haven't initiated any such procedures.

I would like to make very clear that they were to institute them that would be in the first instance the position of the carriers that this is not a bargainable matter under Section 6.

Justice William J. Brennan: Did the pickets represent that they're signs or otherwise what dispute it was the location of their picket?

Mr. Dennis G. Lyons: Their signs represented a referred to the major dispute with the FEC.

However, the first words that appears -- the first words of exhortation to the workers were “do not cross.”

It went on to say do not assist the FEC but the first words on the sign were “do not cross” and what happens was that the Brotherhoods, the men in the trains, the man on foot did not cross.

There was a train that came down from Richmond, Virginia that arrived in the early daylight of powers on the Atlantic Coast Line mainline and it was stopped by picketing at the Quaid Street.

An interruption of the mainline movement or movement there had nothing at all to do with the FEC.

What we suggest particularly in the light of the dialogue between Representative La-Guardia and Representative Lincoln we think it's very revealing.

Congressman La-Guardia said, the “Railroad Labor Act takes care of the whole labor situation pertaining to the railroads.

They could not possibly come under this for the reason that we provided the machinery there for settling labor disputes.”

Now, our position is that if there is a dispute, if there is controversy to which the procedures of the Act do not relate then Congress did not intend that to be recognized as a labor dispute in the rail industry and its intention there was that commerce should go on.

Justice Potter Stewart: That's the answer to your suggestion that the union could've filed another under Section 6, isn't it?

There's no dispute between the Brotherhoods and the -- and your client, is it?

Mr. Dennis G. Lyons: Well, we contend that there is a controversy of a commercial nature.

It may be that they are taking the position that their men should not handle the FEC cars within the terminal.

They have rather of course phrase it in terms of the commercial controversies that they don't wish the railroad managements to do business with the FEC.

Now, the carriers to be the way --

Justice Potter Stewart: That dispute is with the Florida East Coast.

Mr. Dennis G. Lyons: They have a dispute with the Florida East Coast.

Justice Potter Stewart: They have none with your client?

Mr. Dennis G. Lyons: They apparently have a controversy with our clients.

They're asking -- they're asking our client to do something that are -- our client is on the position to do and there are proceedings as far as economic gloss against our clients if they don't do it.

And to me, that's a controversy.

Justice Potter Stewart: But it's not a -- but I think you said that your clients themselves would respond in case of notices filed under Section 6 that this was not a dispute within the meaning of that section.

Mr. Dennis G. Lyons: I think we have first take that position whether our position is right as a matter that would have to be decided.

Our position would be first that this is essentially commercial controversy both the purposes of the Railway Labor Act and for purposes of the Norris-La Guardia Act which has to be read with the Railway Labor Act in railway labor matters and that equally for the same reason that the Norris-La Guardia Act does not prohibit an injunction here against the commercial pressures that are sought to be put on that a Section 6 Norris could not be proper.

However, if it turned out that the Section 6 notice was proper and this raised a bargainable issue, we would then have the situation that presented this Court -- was presented to this Court in the La Guardia case where this Court held that only at the end of the line if the procedures were exhausted or if the carrier refused to bargain with be Norris-La Guardia Act come into play.

Chief Justice Earl Warren: Mr. Lyons, would your position that such a situation would not constitute a labor dispute be consistent with what you're arguing to us today?

Mr. Dennis G. Lyons: For that situation, our basic position Your Honor is that there is not a labor dispute between the coastline and the seaboard and the terminal company on the one hand and the unions on the other that there is a commercial controversy and that the unions desire the railroad to embargo the FEC.

If however, if we are wrong as to that and there is the start of a labor dispute here, I don't think there are actually could be a labor dispute started until the union's channel into that procedure until they serve the Section 6 notice which they haven't done.

Justice Potter Stewart: But they're not going to you because they -- their position is identically to yours.

They don't claim any dispute with your clients, any labor dispute.

Mr. Dennis G. Lyons: Well, in that light of that Your Honor, if that's -- if that remains their position then they --

Justice Potter Stewart: Perhaps I didn't understand their position but I didn't think that they had or that they claim to have any labor dispute with your carriers.

Mr. Dennis G. Lyons: Those circumstances would be the -- the only circumstances under which the actual processes of the Railway Labor Act could be followed here.

The accommodation that we are essentially urging this Court to make between the Railway Labor Act and the Norris-La Guardia Act relates to the definition of dispute in those two acts.

And we urge the Court to follow the same definition of dispute in the two acts and to harmonize the two statutes.

Chief Justice Earl Warren: I've been wondering why you're bear away from Justice Stewart's question as to whether you have any dispute with the unions, these other companies, why do you have to bear away from that?

Mr. Dennis G. Lyons: Well, our position on that is this Your Honor.

First, there is no labor dispute certainly here on the ordinary sense.

There's no controversy as to the wages or hours or working conditions of the employees of the seaboard or the coastline or the terminal company.

There is a however a commercial controversy.

There's obviously controversy here between the seaboard and the coastline and the terminal company on the one hand and the unions on the other.

The unions are putting crosier upon the three carriers to do something that the carriers are not in the position to do and they are proceeding to disrupt their commerce if they don't do it.

That's the sort of controversy that exists here.

What I'm suggesting however is that --

Chief Justice Earl Warren: Is that kind of a controversy contemplated under the Railway Labor Act?

Mr. Dennis G. Lyons: I believe that Congress in passing the Railway Labor Act in short never -- never dreamed that unions would resort to a tactic of the sort involved here.

Justice William J. Brennan: Well, in essence what you're saying is that Mr. Lyons that neither the Railway Labor Act nor the Norris-LaGuardia Act deals with this dispute that this is not a labor dispute under either act but a commercial dispute and in consequence equity is free to deal with it as you as have to do it.

Mr. Dennis G. Lyons: That's essentially our position Your Honor and the reason for that is that the Court has to take the two we suggest to take a two statutes together and give them a harmonizing reading between --

Justice Potter Stewart: So, it's a non-presented situation --

Mr. Dennis G. Lyons: I don't believe in just to try to do this before.

Justice Potter Stewart: I mean the fact is that historically there's been industry-wide bargaining and an industry-wide settlements or at least regional in a railroad industry and there was against that background that this legislature was enacted and that Congress obviously didn't foresee the possibility of this Congress situation arising, wouldn't you agree with that?

Mr. Dennis G. Lyons: Well, besides I think if we go back in to history there probably before the adjustment boards were setup and certainly before the ‘34 Act where the procedures of the adjustment board were made mandatory.

I believe that there were localized strikes over grievances --

Justice Potter Stewart: But not over -- not rates of pay and wages and working conditions.

Mr. Dennis G. Lyons: I think those are generally been on more --

Justice Potter Stewart: And that's what we are talking about here.

Mr. Dennis G. Lyons: -- a broader basis.

Justice Potter Stewart: Of grievances was on a property of an individual carrier but I'm talking about major industry.

Mr. Dennis G. Lyons: Well, there's never been --

Justice Potter Stewart: An industry-wide bargaining and industry-wide settlements --

Mr. Dennis G. Lyons: I don't know of any case and which either on grievance in the 334 era where there was an attempt to impose the secondary boycott of this sort in order to put pressure on the carrier that have grievance.

So, I think this is unprecedented-- as a factual matter because this tactic has not been used by unions.

As I've said they may well in the early areas have been opportunities to use it.

Justice John M. Harlan: Do you think of this to be resolved under National Labor Relation Act (Inaudible)?

Mr. Dennis G. Lyons: I think it's quite clear under the cases interpreting the proviso to Section 84 as this Court said in one of the cases have been decided in the 60's.

I -- here, there was no effort made to minimize the effect of the picketing upon the unrelated operations of the innocent employers.

What we have here is a surrounding of the perimeter of the terminal company including places where their only mainline moves and the closing down of all movements, not simply movements that have something to do with the FEC.

It isn't like the cases where you have a railroad delivering cars to an industry and the industry is struck where the picketing is applied at that point which might beyond the railroads own property but where the effect can be limited.

Here, the effect is not limited and this appears to the case for this held not sort case sought not to be saved by the proviso.

Justice John M. Harlan: We're dealing with a situation (Inaudible).

Mr. Dennis G. Lyons: I beg your pardon Your Honor.

Justice John M. Harlan: If you're dealing with a situation as to here, how would strike operates where the (Inaudible).

Mr. Dennis G. Lyons: That's correct Your Honor and actually the consequences of having the price of further experience would have been pretty dear.

For one thing there was testimony in the record that if the very day that mail facility at the terminal was shutdown and it would take six days to catch up and that was the testimony that was given in the light of the Monday closing and the -- it would not be long before the industrial users in Duval County would be cut off and before the effects of the strike beyond if they felt throughout all the peninsular Florida.

This is the main line of the Atlantic Coast Line that goes through these premises that is one main carriers that serves between this part of the country and in Florida has also a principle line of the seaboard that was closed down by this picketing.

And the -- and neither the facts of these were quite clear indication of what the effects would have been if the striking or picketing if the picketing went on.

The -- to make a first case that this Court decided back in 1960, we think those are clear indication of the way the Norris-LaGuardia Act is meant to operate in the railway labor field.

The way it operates is that when two parties are locked in a major dispute something for which the Act provides procedures but Norris-LaGuardia Act tells them that down at the end of the road that they're traveling the road of negotiation and mediation if they can settle that dispute through those processes that the law is going to leave them free to use economic warfare against each other and that should be a powerful incentive to both of them to bargain in good faith and to attempt to reach the solution.

Now, here we have something that essentially the Railway Labor Act doesn't give any of these mediatory or conciliatory procedures too.

We have an interruption to commerce that doesn't come into play at the end of a long road of bargaining and mediation and perhaps presidential board.

We had here an interruption interstate commerce that started without warning at 3'0 clock in the morning.

Now, the basic answer as I understand it of the respondents to this, is that they have a dispute with the FEC that they and the FEC have exhausted the procedures that the Act provides.

And that therefore they are free to use self help but from that proposition they slide into the further proposition that they are free to use self help upon other carriers, not simply self help that is aimed directly at the FEC.

Now, that is -- there's an attempt to cross over that by the proposition that in strike a lot of innocent people get hurt.

Well, the reason why innocent people get hurt in the strike is it's the result of the direct pressures that one party puts on another people if the strike were successful against the FEC people who were dependent on the FEC for services might suffer.

But the suffering in the turn of the economic screw that's going on here is one that's being aimed directly at the coastline and in the seaboard and the terminal company.

And what the Brotherhoods are saying to those carriers is, that unless you embargo the FEC, unless you stop doing business with them you'll not move any cars through the Jacksonville terminal as far as the coastline is concern they're really saying that the bottom half of their system, the rail system was going to be knocked out.

To the seaboard they are saying that an important part of your system going through Duval County is going to be knocked out.

It's rather a strange paradox to say that in order for the operations of these carriers to be closed down because of a dispute that they have with their own employees that there would have to be these procedures mediation and negotiation of the presidential -- board of the president which so disposed that these procedures which would take years certainly many, many months and which would tend as far as we're practical tend to bring them together but you'd have to go through that if you had a controversy with your own employees yet someone else has a controversy some other rail car has a controversy with his employees that you can be closed down without any of these procedures that you can be closed down 3 o'clock in the morning.

The ultimate test of the -- what I would say primarily to that is the -- further that there's more wrong with that and in fact that it simply paradoxical.

The basic fact is that the coastline, the seaboard and the terminal company have never had any of the benefit of these procedures.

The mediation that takes place between the Florida East Coast and Unions is not a matter to which the carriers that are concerned here are parties to which they could become parties.

They maybe disposed to have good employee relations with their employees and indeed the record shows that they have but that altitude doesn't do them a bit of good in a controversy of this sort.

Justice William J. Brennan: Mr. Lyons does these petitioners among the road for the excepted the national setting?

Mr. Dennis G. Lyons: Yes, there were --

Justice William J. Brennan: And the issue between FEC and the Brotherhood this proof is that FEC has not accepted the national setting.

Mr. Dennis G. Lyons: Well, the FEC is gone further than that.

The FEC is served to Section 6 notice on the Brotherhoods as I understand it seeking to put in to effect to what they call uniform working agreements which is an agreement draft unilaterally by the management of the FEC and which would permit the FEC to operate with about half of the number of employees of the other carriers --

Justice William J. Brennan: So, to that extent --

Mr. Dennis G. Lyons: -- need to operate.

Justice William J. Brennan: -- the Brotherhoods dispute for the FEC is different from the national dispute --

Mr. Dennis G. Lyons: Yes, because of these further notices that the management of the FEC assert.

Justice William J. Brennan: Is that -- do I see somewhere in this record with these petitioners had an injunction against the non-operating union against interference of interchange?

Mr. Dennis G. Lyons: These petitioners as I understand it were the defendants in an injunction suit which the FEC brought against them back in 1963.

Back in 1963, --

Justice William J. Brennan: Is that a federal or a state?

Mr. Dennis G. Lyons: That's a federal court injunction.

Back then the petitioners were concerned there might be a violence or trouble if they continue to do business with the FEC and there was a time during the early days of the strike where I believe they imposed bargain and the FEC got a mandatory injunction against them out of the District Court, the middle district of Florida.

Justice Potter Stewart: They're requiring them to interchange --

Mr. Dennis G. Lyons: Concede interchange and perform their duties under the Interstate Commerce Act.

So, in the first place to have knuckled into the pickets and to embargo the FEC would've presumably resulted in a contempt of court action.

I'm sure the FEC would've move rather trying to impose sanctions.

The ultimate test of the position of the respondents here as Mr. Porter said the fact that it is completely without limit.

This is not the only terminal though there -- it's closer to the FEC's lines and the other terminals in the country.

Now, this is not the only terminal of the country but could be picketed and could be closed down if as the respondents contend the Norris-LaGuardia Act is operative here to bar an injunction.

You can see the FEC's cars and other terminals throughout the country.

I see them at the atomic yards in Alexander is serving Washington every morning as I drive to work.

The --these cars are carried through Saint Louis, carried through Chicago to the great terminal complex is there.

They moved there as part of a three-carrier or four-carrier interchange but if those carriers didn't handle the FEC cars presumably that will be the same sort of pressure put on the FEC.

And under the basic legal theory that the respondents are espousing a federal district court would be equally without power to pass an injunction against interruptions to commerce that would be involved to picketing if any of these terminals.

Justice Byron R. White: Well, Mr. Lyons, as I gather that your position wouldn't -- this isn't necessarily a picketing case as I gather in the injunction runs to get any kind of secondary --

Mr. Dennis G. Lyons: They -- can certainly its secondary.

Justice Byron R. White: So that even if the -- if all picketing stop and all patrolling stop and the officers of the Brotherhoods asked those employee of the other lines not to work the other line and they didn't, this injunction would --

Mr. Dennis G. Lyons: If they were inducing them on a concerted way --

Justice Byron R. White: Well, it's really general injunction if any secondary --

Mr. Dennis G. Lyons: Yes.

If it's a part of the individual employees, individual privileges I will tell from the story but just as if the amendment themselves decided to -- in a concerted way to not to come to work because they didn't like the way that the adjustment board settle a grievance.

They don't have to picket in order to get injunction in that circumstance.

Let's say an activity is prohibited under federal law.

Justice Byron R. White: So, that under any other circumstances then where there was secondary activity involved, you would think an injunction would not be barred by any endorsement carrier.

Mr. Dennis G. Lyons: That's correct Your Honor.

Consorted --

Justice Byron R. White: The general -- solicitor general, the exception in Norris-LaGuardia, no secondary activity is within the protection of --

Mr. Dennis G. Lyons: What we say is done, so much of an exception to the Norris-LaGuardia Act but consequence of the way that Congress has passed the basic substantive statute dealing with the railway labor hearings.

Justice Byron R. White: -- accommodation.

Mr. Dennis G. Lyons: Yes.

Justice William J. Brennan: Well, let me see Mr. Lyons it would be further, if you focus on secondary activity or is your focus on this is not a labor dispute?

Mr. Dennis G. Lyons: I think the focus is essentially that this is not a labor dispute as between the petitioners on the one hand.

Justice Byron R. White: They're both the same thing.

Mr. Dennis G. Lyons: I think they come down to the same thing.

Now, I'm a littler carried at the term secondary activity because it's terribly loosely used.

But what I mean is that you have conduct of the sort that you have here shutting down a facility or --

Justice Byron R. White: Can I just (Voice Overlap) to indicate that it wasn't limited to this kind of conduct.

Mr. Dennis G. Lyons: No, not this particular -- not the picketing any sort of concerted activity that's aimed at shutting down one employer's activity in an effort to get him to put pressure on other employer.

Justice Byron R. White: Well, I take it that the -- would you or wouldn't you permit direct appeal to the other employees?

Mr. Dennis G. Lyons: To the other employees?

Justice Byron R. White: Other employees.

Mr. Dennis G. Lyons: Oh --

Justice Byron R. White: What if the -- what if the Brotherhoods just appeal to your client directly?

Mr. Dennis G. Lyons: I don't suppose there'd be any problem with that.

You don't concert it --

Justice Byron R. White: You know can do it?

Mr. Dennis G. Lyons: You don't concerted activities among the labors in that case but they are certainly free to do that.

If Your Honors please, I will save the rest of my time for rebuttal.

Chief Justice Earl Warren: You may.

Mr. Rutledge.

Argument of Neal Rutledge

Mr. Neal Rutledge: Mr. Chief Justice and may it please the Court.

I would like to first address myself to a few factual considerations concerning the situation here before going into the main question before Court namely the application of the Norris-LaGuardia Act to this dispute.

I would like to say also that if the Court goes passed the Norris-LaGuardia Act.

In other words, if the Court rules contrary to our position on Norris-LaGuardia there are other legal issues which the Court would then necessarily be based with one of course being in the basic legality of the conduct here and secondly the -- which is been briefed by the both parties and secondly another jurisdictional defect which we claim to with that this conduct is at least arguably subject to the National Labor Relations Act and therefore must be presented to the National Labor Relations --

Justice William J. Brennan: What legality point, is that the constitutional?

Mr. Neal Rutledge: It's constitutional and the Clayton Act and Norris-LaGuardia statutory both.

The green block on this map here starting here and running down to here an area which was described in the record that having a perimeter of about one and a half to two miles is the Jacksonville Terminal Company.

We say it is the house in which the FEC does business.

This is not we submit respectfully a unique situation at all.

The situation that comes up and has been presented before this Court time and time again under the National Labor Relations Act in the far broader area that the National Labor Relations Act defies to, this is a simply common situs situation.

Justice Potter Stewart: Well, except -- wouldn't you -- am I entirely wrong in thinking that this as a factual matter is rather unprecedented in the railroad industry because isn't it -- am I not correct in thinking that railroad labor disputes are generally settled on an industry-wide phases and that was true at the time this legislation was passed, National Labor Act.

Mr. Neal Rutledge: Your Honor, I'm -- my information is to the contrary as I understand the pattern of industry-wide bargaining in the railroad industry did not develop until the 1930's.

It happened during the 30's, during the depression when the railroads asked the unions to cut back on wages, to cut wages down.

And in regard to that, this pattern of area or industry-wide, I don't know that there's any industry-wide completely in (Voice Overlap) --

Justice Potter Stewart: No, Regional.

Mr. Neal Rutledge: But there is regional bargaining and that is a pattern that has developed but subsequent the passage of the Railway Labor Act in 1926, the Norris-LaGuardia Act in 1932 and the amendments to the Railway Labor Act in 1934.

So, this pattern of industry-wide bargaining was not an established pattern when these statutes were passed by Congress and Congress we respectfully submit did not pass these acts with that idea in mind.

Now, it is true that Congress recognized as we submit is very obvious that an interruption of commerce on any class one railroad is going to have effects on other class one railroads.

This Court in the case of California v. Taylor which concerned a state owned by California Terminal Company and the California State Law absolutely forbid the employees of that state owned railroad as state employees to strike and the question was whether or not the Railway Labor Act applied to that terminal company.

And this Court held that it did that the federal law superseded the state law even thought the federal law guaranteed in certain circumstances the right to self help and to take strike action.

And Mr. Justice Minton in the course of that opinion expressly stated that it -- that it's obvious and the Congress knew it and that this Court was well aware of the fact that when a terminal company is faced with a strike or when it's involved in a strike it's going to have area-wide effects.

Now, we submit that the fact that this particular kind of situation has not been before the Court in a railroad context before is eloquent testimony to the effectiveness of the Railway Labor Act.

This is the longest strike, this is the first rail major breakdown since 1926 in the functioning to the Railway Labor Act.

You had a strike in the RLN that ran for about 60-70 days after that sort you had the Toledo case back during the war, that also with the primarily a terminal type railroad that ran for quite of period of time.

But with those very rare exceptions, the Railway Labor Act has worked and it has worked effectively.

Now, the problem that we're faced here is where for one reason or another, parties are totally unable to get together.

Now, we submit as the record shows that breakdown in collective bargaining here lies on negative side.

I don't think that's particularly irrelevant.

We've offered arbitrate, the railroad refused to arbitrate.

We've offered to mediate even though the strike is already gone on to continue mediation.

Justice Potter Stewart: Of course you're talking now about your dispute with somebody is not a party to this lawsuit.

Mr. Neal Rutledge: We're talking about our dispute with the FEC and we say that this case is clearly and undeniably arises out of that major dispute.

And that it involves it and it arises out of it.

The FEC when before going into this, I would like to make extremely clear that this is not the same strike that was before this Court last spring in the Clerk's case.

That was the non-operating union strike that is going on since 1963 and is still going on.

This is the operating Brotherhoods, non-operating people of course referred to Clerk's like for these people that worked in the railroad industry but don't actually operate trains, the operating crafts or people like engineers and trainmen and switchmen who actually run the train.

And the operating strike did not begin until April 24.

The reason it began at that time was because that was the 30-day-period after the National Mediation Board released the parties to self help and the FEC as of midnight, April 24th implemented on a wholesale basis, it's Section 6 proposals and actually the Brotherhoods here involved took strike action in response.

However, going to facts two, and I think this is background material which is very irrelevant to the situation before the Court.

Going back to 1963 when the none of strikes first began, what happened was the FEC shutdown completely as the airlines did this summer during the machinist strike.

They didn't try to operate for period of days.

And they pursuant to the association of American Railroad Rules and that have been adopted by Interstate Commerce Commission apparently the FEC embargo all the traffic with its connecting carriers and we're not going to take it, we're not going to send it, we're not going to take it.

We've -- we have an embargo because we have labor trouble.

And as a result all traffic stopped here at the beginning of the premises and there was no question at that point of any picketing, spreading around the green area, the Jacksonville Terminal Company.

The FEC then apparently made its determination that it was going to commence operations despite the strike and it went into Court and brought a lawsuit against the terminal company and the other connecting carriers and stated the analogy I thought was very apt.

They said, where FEC said, we're like a bachelor in an apartment shared by five bachelors and we're sick and they are trying to throw us out because we're sick and we don't -- we think we have the right to a court and a right to remain here so that we can get well.

What they wanted was safe harbor.

They wanted to use of this terminal free from the effects of the primary picketing.

They did not make the unions party that proceeding.

The unions tried to intervene later, they refuse intervention.

The result of that proceeding which is still at this very time still at the temporary injunction sanction is that the Court order the terminal company of these other carriers to provide various services to the FEC, to provide direct labor services to the FEC, to interchange cars with the FEC, to make deliveries to the FEC, to take deliveries from the FEC.

In short, this was the place where the FEC not only did business with the public this is the place where the FEC does business with its connecting carrier by contract that it setup, it obligated itself to do business that these other carriers at this place --

Justice Potter Stewart: Well, doesn't that -- isn't that true all of the country in compass places, every time there's an interchange of east coast car they're doing business with another carrier?

Mr. Neal Rutledge: That's true Your Honor.

Every time two railroads buck up against each other, they're going to be doing business with each other.

Now, we say that this is the same thing as in industrial situation where deliveries are made to the industrial plant.

In other words, there's always -- there is a nexus, there has to be a place where one person does business with another person.

If you don't do business in the vacuum and it is that place which traditionally going back for hundreds of years ever since labor organizations have been operating that unions have addressed their appeal.

Justice Potter Stewart: Well, you're talking about that place.

My point are there not countless places where the Florida East Coast Railway in conducting its business so long as it is operating does business with other carriers every time there's an interchange of the car the Florida East Coast Railroad from that railroad to another in any places in the country as they're going on business between the two railroads.

Mr. Neal Rutledge: That -- that's correct.

Now, it so happens in the FEC situation that there are.

Justice Potter Stewart: In yards the terminal and --

Mr. Neal Rutledge: Many other connecting points.

There are some connecting points down at the south end but and there's one immense injunction about a third to the way down the line but this is the -- I would say that --

Justice Potter Stewart: That's perhaps there's more that goes on it.

Mr. Neal Rutledge: Yes.

Justice Potter Stewart: But -- but that's not the place, there are many places.

Mr. Neal Rutledge: That's correct.

There are other places and those other places, there is picketing going on except for it's been joined.

There's been other injunction set of course.

But --

Justice William J. Brennan: Well, for example could Chicago be one of those places?

Mr. Neal Rutledge: No, Your Honor.

Justice William J. Brennan: Did not?

Mr. Neal Rutledge: You see the distinction, the argument has been made, District Court, Court of Appeal and here this morning that our theory is that we can picket anywhere in FEC cars.

Well, now of course that's what Eugene Debbs purported said that he had the right to do in the Pullman strike way back in 1894.

That is not involved here.

We make no claim to that.

That's not -- that's far beyond anything that we claim here.

We claim only the right to picket where the FEC itself is operating with FEC crews, with FEC employees, where the FEC is itself conducting its operations.

Now, of course there is a --

Justice Byron R. White: And what you're really saying as I gather is that in -- and then NLRA language in the way that (Voice Overlap) says that for this is primary picketing.

Mr. Neal Rutledge: Precisely Your Honor.

Justice Byron R. White: Right across the board --

Mr. Neal Rutledge: Precisely.

Justice Byron R. White: -- those secondary activity whatsoever and that was in, if these were subject for the NLRA this would be ruled primary picketing -- subject to injunction of your or damages under (Inaudible).

Mr. Neal Rutledge: And this is exactly what the petitioner has told the Court of Appeals in their brief at page 21 to the Court of Appeals.

They were talking about the Wagshall case and Mr. Justice Frankfurter's comment about the secondary board cutting involved there.

This is what they've said to distinguish the Wagshall case.

The reasoning does not apply here because appellees do not alleged secondary boycott.

In other words, they told the Court of Appeals, there's no secondary boycotting here and that's what we say.

We say that this is traditional primary picketing because the FEC, I would like to very respectfully differ with my brother when he said that the FEC does not operate its trains through the terminal.

As I understood and perhaps I misunderstood, counsel he said, the FEC came up to here then the terminal company took the FEC cars.

The record conclusively shows the FEC trains daily come in and run all the way through here and up into here on a daily regular basis and under that injunction, entered back in 1963 the terminal company employees must throw switches for those train movements.

They must maintain tracks to those train movements.

They must give signals for those train movements.

In other words, the terminal company people are operating the terminal premises here as an adjunct, as an indispensable integrated part and inseparable part of the FEC system.

Justice William J. Brennan: Mr. Rutledge, we now know where that FEC gate is, how many employees on the FEC payroll, does the record indicate work in terminal?

Mr. Neal Rutledge: Your Honor, I'm not sure that -- the record does not indicate that.The FEC --

Justice William J. Brennan: Well, it must indicate that there are some FEC employees.

Mr. Neal Rutledge: The -- the record indicates only this, that the manager of the terminal company in three years never saw anybody used that gate.

They're none speculative foryear and a half for so and nobody uses that gate, it's like picketing the blind alley.

There's no useful as completely --

Justice William J. Brennan: Well, I thought you just told Justice White that the distinction you draw between Chicago situation in this is that FEC operates with its own personnel a number of the activity within the terminal then surely then the record just tell us what the number -- who the FEC personnel on it.

Mr. Neal Rutledge: Your Honor, perhaps I wasn't clear.

The -- the FEC, these men, the FEC employees that are far more here by -- to the great extent to come on --

Justice William J. Brennan: You mean they're just a train crew?

Mr. Neal Rutledge: On train.

Yes -- yes, sir.

They are train crews.

Justice William J. Brennan: And is that all FEC has working in the train?

Mr. Neal Rutledge: No.

The -- there are some employees that do, there is one crew per day that does report toward Jacksonville Terminal Company and that's the crew that runs the passenger train but that crew where they come in is not shown by the record because nobody as the -- Mr. Jeanette the manager of the terminal company when they asked him where are those people come in, those are the only FEC employee that come in by foot and he said, “Well, as you can see there are a lot of entrances to the terminal company.”

In other words, that reserve gate, we submit is --

Justice William J. Brennan: Well, does the record show the FEC has an office or any kind in the terminal?

Mr. Neal Rutledge: The record shows that the -- that under the contract that the FEC has with the terminal company and other railroads, the FEC has a right to use in common with all the other railroads every facility and every office and every part of the terminal company.

Now, this is where the public comes on to buy tickets to ride the FEC train.

This is -- they -- this is a common office building, it's like a place where poor people who get together and --

Justice William J. Brennan: How about switching is there anything in the record -- switching equipment, is there anything in the record about FEC switching equipment in the terminal?

Mr. Neal Rutledge: Yes.

Yes, there is Your Honor.

The -- the switching is done to certain extent by automatic towers and the tower operators, they're scattered throughout the terminal -- our terminal company employees.

However, it's significant that during this 13-hour period.

The people that man those towers were FEC supervisors.

They're at least in park.

They were supervisors from the FEC and from ACL and seaboard.

Justice Byron R. White: Well, do a lot of -- I take it a lot of passenger movements originate here for the FEC.

Mr. Neal Rutledge: Not a great volume now.

Pre-strike or pre-1963 --

Justice Byron R. White: And -- and then terminate?

Mr. Neal Rutledge: And terminate.

Justice Byron R. White: Now, how about trade?

Mr. Neal Rutledge: Now, the trade business here is the largest aspect to the FEC business here.

In other words, 30% of all interchange done in this green area is done with FEC.

Justice William J. Brennan: But by -- not by FEC employees I gather.

Mr. Neal Rutledge: Yes, Your Honor.

The FEC --

Justice William J. Brennan: Well, now, that's what I'm trying to get at here.

Mr. Neal Rutledge: Let me see if I can get that.

The -- the FEC has a yard down here called (Inaudible).

The FEC puts as its cars down there and it puts its engine up to its cars and with FEC crews comes on in here.

Now, if it's going to interchange the seaboard or with southern if runs on in to these yards here, Honeymoon and wide inside the green area.

Justice William J. Brennan: In the acts to interchange is done by those on the train who came into that area, is that it?

Mr. Neal Rutledge: And the FEC crews go on in there and they make interchange --

Justice William J. Brennan: I get it.

Mr. Neal Rutledge: -- in that point.

That's where the FEC crews meet face to face with the seaboard and the southern crews.

If the case of the ACL, the FEC crews come up embargo with their cars on their engines and they run that train all the way on up in here, operate back and forth and switch and cut powers and do regular railroad movements up here and then come on all the way back on.

So, that the northern terminals of the FEC railroad in a very real sense is upon green yard up here.

Justice Byron R. White: Well, if in the ordinary labor dispute under the NLRA if I -- the unions got a dispute with the manufacturer, it's picketing the manufacture its gate and the manufacture is operating with replacements and producing goods and the goods come out at gate and they go down to street to a customer, to a processor and there's a sale transaction and you deliver to that processor.

The union wants to picket that transaction between selling manufacturer with whom they have a primary dispute and the processor.

And they go down there and picket the point of delivery I gather.

Mr. Neal Rutledge: Yes, Your Honor.

Justice Byron R. White: And then how about going around to the other gate of the processor where the processor's employees come from?

Mr. Neal Rutledge: Your Honor, they may --

Justice Byron R. White: And you're on a little bit of trouble, aren't you?

Mr. Neal Rutledge: They may do that also. First of all, they may do that very differently in the garment industry.

The garment industry has special rules that Congress has made for it under --

Justice Byron R. White: Well, we're not talking about the garment industry.

Mr. Neal Rutledge: No.

But -- but for I mean, the answer to your question depends upon what industry we're in and the garment industry there's no question they can completely surround the man that for delivery is being made.

Justice Byron R. White: So, the rules that you make about secondary or primary what the line between primary and secondary is may well depend on the industries.

Mr. Neal Rutledge: Exactly.

Justice Byron R. White: And it may well depend on a particular practical aspect of either company relationship.

Mr. Neal Rutledge: Very -- very definitely, Your Honor.

Justice Byron R. White: That's exactly what this argument about.

Mr. Neal Rutledge: That's exactly what this argument is about.

Yes, Your Honor.

Justice Potter Stewart: If you can run it from the statute not upon -- it depends on a derivatively upon the industry.

There's a particularized statute for the garment industry, isn't it?

Mr. Neal Rutledge: There's a particularized statute for the garment industry --

Justice Potter Stewart: In response to the particular peculiarized need to that industry but it's the statute, it's not any court-made exception.

Mr. Neal Rutledge: Well, the statute makes an exception from the laws that existed before and then the garment industry is an exception to the --

Justice Potter Stewart: The exceptions, yes.

Mr. Neal Rutledge: That's correct.

But --

Justice Potter Stewart: Done by the legislature?

Mr. Neal Rutledge: But -- but what I would like to emphasize here is that Congress has ever since 1914 the Clayton Act in 1914 and again in 1926 and again in 1932 and again in 1934 and then again in 1935 when the Wagner Act was passed and again in 1947 when (Inaudible) was passed and again in 1959 when the Landrum-Griffin Act was passed Congress that has been dealing with this problem has never used the word “secondary boycott” in the statute.

Never.

The reason is because it is so imprecisely one of the chief draftsmen of the Clayton Act was John W. Davis and the chief draftsman of the Norris-LaGuardia Act was Justice Frankfurter.

He was the man of tremendous legal draftsman skills and they shied away, it's the courts that have used the term “secondary boycott” and the reason for that is because the term “secondary boycott” is so vague because all picketing has secondary aspects.

There is an even the most limited kind of picketing has an effect on somebody else on a neutral.

And so, where you draw that line and you can draw it in at least 50 different places and we say that that is a legislative determination and that Congress in this case has drawn that line and has not drawn it anywhere --

Justice Byron R. White: Are conceding Mr. Rutledge that --

Mr. Neal Rutledge: What?

Justice Byron R. White: Are you conceding that you have a problem as somebody put this to the picketing secondary aspect?

Mr. Neal Rutledge: We have more of a problem Your Honor but I don't think we have a fatal problem.

Justice Byron R. White: Do you think that -- do you think the Railroad Labor Act previews to -- wasn't it to disallow a secondary, honest to goodness secondary activity, secondary picketing?

Mr. Neal Rutledge: I don't think --

Justice Byron R. White: Against the neutral or enacted prohibited appeals neutral -- to the employees of neutral employers.

Now, is that what you're trying to do despite the Norris-LaGuardia Act?

Mr. Neal Rutledge: No, Your Honor.

We -- we on our position is that the Railway Labor Act does not prohibit that.

But that's not this case because here we have primary picketing --

Justice Byron R. White: If someone might picket it.

Mr. Neal Rutledge: It may -- it maybe -- it's our contention that it is not that this is not this case because this is picketing which is addressed to people approaching the place where the FEC regulate and daily does business.

And this is the only place for that appeal could be make, if the District Court injunction stands no appeal can be made in the FEC crews coming on the premises here.

Justice Byron R. White: But why not?

Mr. Neal Rutledge: It -- it's --

Justice Byron R. White: Why can't -- why can't do it -- it's under the FEC trains all if FEC come in and leave by one gate.

Mr. Neal Rutledge: They come in over this bridge, they come in a variety of tracks.

Justice Byron R. White: Well, why don't you -- why can't you just picket if it most to the FEC employees which are really the people you're making your appeal to.

I mean, it force a -- if you really relying on the fact that is primary rather than secondary.

I knew I got you're totally relying but is that what you relying on or what you really have to do is to say you're appealing to FEC employees, don't you?

Mr. Neal Rutledge: Your Honor, we submit --

Justice Byron R. White: Why don't you just picket those gates where the FEC employees who really do that work in its premises?

Mr. Neal Rutledge: The first --

Justice Byron R. White: because they have know -- there apparently no other FEC employees for any significance better on it accept on those pay, why don't you just picket those gate?

Mr. Neal Rutledge: The first answer to that Your Honor is that we're limited in picketing this point right here.

That's the only place that we can picket down here under that injunction.

The second answer to that --

Justice Byron R. White: Well, what he could?

Chief Justice Earl Warren: That is in the terminal is it?

Mr. Neal Rutledge: Your Honor, it's an entrance to the terminal.

It's as much an entrance to the terminal --

Justice Byron R. White: What if he could?

Mr. Neal Rutledge: Well, that would not -- our position isn't that that's --

Justice Byron R. White: -- wouldn't that be the limit, why wouldn't that be the limit of so called primary picket?

Mr. Neal Rutledge: We submit Your Honor the answer to that question is the primary picketing is not limited by definition by definition that this Court has made to appeal just to employees of the primary employer.

We are making appeals here to people who are making deliveries to the primary employer and the only place we can make that appeal is put the pickets for where we have.

The only place we can appeal is the ACL employee not to make deliveries to the FEC is here.

Justice Byron R. White: You're saying you have a right to appeal to anybody who is regularly contributing to the running of the establish of which you have at primary dispute?

Mr. Neal Rutledge: Yes, Your Honor.

Justice Byron R. White: And this is one of the places where the FEC has regularly nourished?

Mr. Neal Rutledge: Yes. Your Honor.

Yes.

This is where -- this is where the FEC is regulating argue.

Now, I would like to move on into the question of the application of Norris-LaGuardia to this conduct whether you call it secondary or primary.

We submit that the history which is familiar to this Court certainly leading up to the passage of Norris-LaGuardia shows very clearly that Norris-LaGuardia was very deliberately designed to apply to situations which would be called secondary under the National Labor Relations Act definitions.

The -- the Clayton Act of course was passed in 1914, Section 20 of that purported to make lawful that is to make not in violation of any law of United States certain described kinds of consorted conduct and the Clayton Act at that time was passed in the setting of three railroad labor cases which involve interchange such as this, there was the earliest case was a Circuit Court case decided by Circuit Judge Taff, later Chief Justice in the Toledo case and back in 19 -- 1893 in which he require employees about connecting carrier to make interchange with these struck carrier and of course there was the debts injunction in 1894 affirmed in 1895 where there was clearly secondary boycott and that Mr. Davis at the Chicago Terminal was trying to like consorted action stopped trains that had Pullman cars in it that were simply pulling Pullman cars, remote from the scene of the actual primary dispute and there was the ex parte Lennon case cited by the parties, cited in 1897 where an engineer was held and contempt in jail for violating an injunction compelling a connecting carrier with a struck carrier to interchange cars.

And the Clayton Act was passed in the back of those cases and said out described type of consorted activity and as Mr. Justice frankfurter described it added the catch all phrase that those consorted activities would not be a violation of any law of United States.

Those earlier cases the Debbs and the Lennon and the Toledo case were all decided on the basis that the conduct enjoin there was a violation of the Interstate Commerce Act or the mail statute or of the Sherman Act.

And the Clayton Act of course by that catch all phrase remove the basis of those decisions.

The -- what happened after that of course is familiar in the duplex case.

You had clearly secondary type activity, you had a manufacturer at Michigan making printing press and you had picketing in New York against people who had bought those printing press we're using in the clearest type of secondary activity under a before the majority of this Court held that that was not covered by the Clayton Act that could be enjoin as a violation of the Sherman Act.

The dissenters Justice Brandeis, Justice Holmes, Justice Clark held that this was a misreading of the Clayton Act, a misconstruction of it and of course in 1932 in the Norris-LaGuardia Act we submit that Congress that adopted the views of the dissenters in the Duplex case as this Court as itself so ruled in case of the Milkwagon drivers case versus lake farm cited in our brief and United States the Hudson case.

Now, the fact that the legislative history of Norris-LaGuardia on this point is unusually clear because as described by Senator Norris in his book.

The Act, the Norris-LaGuardia Act was an off spring of the old ships that Act and the outside help was called in and the -- of course the book, the written by Justice Frankfurter and professor Green, the labor injunction that was published in 1932 and was backgrounds of the Norris-LaGuardia Act and it has in the appendix of that book is that draft to the bill not as finally passed but substantially as finally passed in -- there's a considerable discussion of it and in that book, it's quite clear that the commentary at that time when the act was being formed that they contemplated secondary that the Norris-LaGuardia Act would apply to secondary activity.

The --Justice Frankfurter refers to the line of New York decision which referred to a unity of interest and he discusses a great length in the book where you draw the line and where that act, it was the line was within the same industry that if you were within the same industry that neutrals made the appeal to the New York line of cases is described in that book as follows and I just like read one sentence from it, in New York if justification for economic pressure has found legal recognitions a strike or a threat to strike maybe brought to bear upon neutrals provided that the neutrals does use is a lever are with in the same industry as goes and who's coercion is union is primarily interest and it was that New York rule which is referred is being embodies with in the Norris-LaGuardia Act and we submit that the definitional of the literal application is Chief Judge Toddles stated in his opinion below if you look just to the language of Norris-LaGuardia it applies to this situation and clearly applies regardless of whether you call this common side is picketing primary or secondary.

Justice Potter Stewart: Do you look just to the language of the Norris-LaGuardia Act and nothing else in Chicago River case would not and could not have been decided the way it was, isn't that correct?

Mr. Neal Rutledge: That's correct Your Honor and I would like to move on under that of this Court of course has held that the later passed Railway Labor Act in the sense that it was extensively amended in 1934.

Thus, must be accommodated as a fellow or a companion labor statute with the Norris-LaGuardia Act where the need is obviously apparent where it is a need that cannot be denied because if you applied Norris-LaGuardia the explicit provisions of the Railway Labor Act could not be operative.

Now, there are two places, two situations where that occur; one of course is the minor dispute situation.

If you have compulsory arbitration of minor disputes obviously that would be totally frustration if you also permitted strikes over minor disputes.

In other words, there is a square opposition there.

That is one place, the other place is where you have a major dispute that hasn't been refined through the mandatory procedures of the Act where you attempt to exert economic pressure without going through bargaining and mediation and the tender anyway of voluntary arbitration.

In those two instance, in those two instance only we submit the procedures of the Railway Labor Act for which have worked so successfully would be totally frustrated unless the prohibitions of the Norris-LaGuardia Act were eliminated in those specific situations.

But we have here of course the major dispute which has gone through the procedures, there is no provision of the Railway Labor Act that has been pointed to in any stage of this litigation that we have been in violation of it that the picket words have been in violation.

Now, they say they that we should observe Section 6 notes on the terminal company but we don't represent the terminal company employees.

The BRT does represent some terminal company employees but conductors don't and the firemen don't and not only that the employees for instance who moved these switches for FEC train movement were not represented by BRT.

We can serve Section 6 notice so that the idea that there are procedures here which are open to us which have not been exhausted we submit is --

Justice William J. Brennan: Well, anyway Mr. Rutledge as I understand it the panel of your argument is you have no dispute with this section in any sense if it requires Section 6.

Mr. Neal Rutledge: That's correct.

Justice William J. Brennan: But your real dispute is with FEC and that derive from it is the authority legally to put the questions you are on these petitioners and that you're protected by Norris-LaGuardia against the injunction against that kind.

Is that it?

Mr. Neal Rutledge: That is correct Your Honor.

Now, again our dispute, our major dispute of course with the FEC you can say that we have a dispute with the terminal company in the sense that terminal company employees are performing day to day labor services for the benefit of the FEC.

We are appealing to those employs not to do that but that's a collateral dispute that arises out obvious if the major dispute with the FEC.

But for the major dispute with the FEC this entire problem would not leave before the Court.

The suggestion which perhaps to be derive from the part of the legislative history of Norris-LaGuardia referred to the colliquy between Congressman LaGuardia and another congressman about the Railway Labor Act.

We submit is not decisive here in any sense this Court of course has twice squarely held the Norris-LaGuardia Act applicable in a railroad situation where all of the procedures of the Act had been exhausted.

One of course was the Lega First case in 1960 against the Chicago in Northwestern Railroad Company.

The other case was the earlier 1944 case Trainmen against the Toledo and the Diorio railroad and of course there was during the course of Norris-LaGuardia a specific amendment submitted to Congress specifically exempting the railway industry from Norris-LaGuardia.

This was voted down and was voted down.

Now, in summary we submit first of all that on a factual basis this is in the tradition and history of the labor movement primary conduct at the very most it is common situs which may or may not be called secondary depending on where you should draw the secondary line that this is the very type of conduct which Norris-LaGuardia does cover was designed to cover.

This Court has so held in the Milkwagon driver's case and the Hudson case, in the Wagshow case and Marinecooks and Stewards repeatedly situations each of those involving what would be called secondary activity under it before today, Milkwagon, Hudson, Wagshow and Marinecooks each involving secondary activity, each Norris-LaGuardia being applied.

And finally, we say that there is no specific provision of requirement in the Railway Labor Act itself, search the man which even suggests that there must be in accommodation between these two labor statutes.

Justice Potter Stewart: I understand your -- the relative lines of defense of your argument to be that if we're persuaded that you're right about the Norris-LaGuardia Act effect in taking away any power of the federal court to issue an injunction in this case that -- then that's true whether or not this is secondary boycott, isn't that -- that is your argument, isn't it?

Mr. Neal Rutledge: That's -- that's true.

Justice Potter Stewart: You -- you put them in summary in a different order but I understood your argument to be I so understand it that if you're right about the Norris-LaGuardia Act that is true even if this is a boycott which would be illegal under the National Labor Relations Act in an industry affected by that Act?

Mr. Neal Rutledge: Precisely.

Justice Potter Stewart: Is that -- do I understand it correctly?

Mr. Neal Rutledge: That -- that's correct.

Justice Potter Stewart: Yes.

Mr. Neal Rutledge: Now, I would like to refer to what we call the degree of oral argument, the argument that we're going to go up to Atlanta or going to go to Chicago and go up here and shutdown terminals all over the country because there are FEC cars went through that.

Now, that would be conduct which I would suppose under anybody's definition would be secondary conduct.

And whether that would be so close whether the unity of interest there would be so close is an entirely different far weaker case from our stand point.

Justice Potter Stewart: But wouldn't the logic of your argument also say that there could be an injunction there by federal court?

Mr. Neal Rutledge: Not necessarily particularly if the view that the Court of Appeals took of Norris-LaGuardia is adopted namely that the -- there must be a unity of interest even perhaps more close and more direct than total industry wide.

Now, we would -- that is an entirely different --

Justice William J. Brennan: What do you mean specifically to that to do kind of operation that goes on to Jacksonville namely of FEC train with FEC crews coming in?

Mr. Neal Rutledge: That --

Justice William J. Brennan: Unless you don't have it in Chicago I gather.

Mr. Neal Rutledge: That would be the relevance as I understand it of Chief Judge Tuttle's discussion of the fact that the seaboard and the ACL are in competition with the FEC.

The majority opinion below went into discussion at some length and as I understand that it was showing that unity of interest --

Justice William J. Brennan: I must say Mr. Rutledge I don't quite understand why the principle has any different depending upon whether FEC crews goes to the terminal or not.

Why should that be different?

Mr. Neal Rutledge: We -- we say that that is a significant fact Your Honor because that shows that this is a regular place of operation for the FEC.

In other words, if it was merely FEC cars on a lease basis it would then have by analogy of landlord-tenant situation, you have a situation, you had at Hudson where the union picketed the lessee of the primary party which is we say more remote than what we have here where the primary party is actually doing business with its own employee.

Justice William J. Brennan: Incidentally, if you prevail what -- what's the position of the petitioners when respect to an injunction that FEC get against?

Mr. Neal Rutledge: Well, Your Honor we've been trying to get into that litigation, our position is this, we petition to intervene before all these occurred.

We -- our petition was denied that's on appeal.

We then filed a declaratory judgment suit in the District Court asking for a construction of that injunction specifically as to whether we would be deemed and contempt to that injunction if we both picket that and the FEC on the record in that case came in and said in the declaratory decree case said, we don't construe that injunction that we obtained back in 1953 as having anything to do with picketing.

It doesn't ban picketing.

All it does is require an employee of the terminal company if he does come to work to perform services for the FEC but it doesn't say that he got --

Justice William J. Brennan: Mr. Rutledge, if the Atlantic Coast Line had a separate terminal through which if through train went and the Atlantic Coast Line used this terminal only for purpose of interchange with FEC and other railroads, you wouldn't claim the rights to go and picket Atlantic Coast Line separate terminal, would you?

Mr. Neal Rutledge: No, we would not Your Honor and the facts in this case show we submit and of course this can be developed much more clearly on a more extensive theory.

The ACL mainline runs here and up on here.

We did not stop the trains on that mainline there.

The picket here is to a little drive way going in there as the record shows and as a matter of fact --

Justice Byron R. White: Do you --

Mr. Neal Rutledge: -- trains came in --

Justice Byron R. White: -- you must admit though that within this terminal not only to FEC doing a lot of business but so of the other lines?

Mr. Neal Rutledge: That's correct.

Justice Byron R. White: And also doing -- FEC is doing a lot of business in that terminal with has no connection with the other line and somewhere to the other line to do a lot of business at terminal absolutely no connection with FEC.

Mr. Neal Rutledge: That's correct.

Justice Byron R. White: So, this is addressed to the ordinary case of an injunction to where you seal off the primary employer from all the connection.

Here, you're now in sealing off the primary employer of employer connection but -- has independent business in the terminal which you claim to have the right to inhibit also.

Mr. Neal Rutledge: Your Honor, so the long as the integrated and inseparable that's a necessary by product of addressing the primary pressure --

Justice Byron R. White: Well, it's already admitted that you let the Atlantic trains to go there without any interruption.

Mr. Neal Rutledge: That's very clearly it can be done and we submit that --

Justice Byron R. White: But you say this is really is the old common side of problem that the demands on the primary employer or had custom over the damage does --

Mr. Neal Rutledge: Well, we submit that that there are numerous ways that the operations here can be arranged so that our right to picket, what we claim are right to be to picket primary employer will have minimum effect.

Justice William J. Brennan: Well, that is the petitioners would embargo all FEC's staff.

Mr. Neal Rutledge: Not embargo is only one solution which we --

Justice William J. Brennan: What you want -- you want them to stop handling any FEC interchange?

Mr. Neal Rutledge: We -- we want Your Honor, that's correct.

We want the employees of the connecting carriers not to make deliveries to or take delivers from FEC.

Justice William J. Brennan: But not an embargo?

No?

Mr. Neal Rutledge: Where an embargo is technically I would understand to be something imposed legally under the Interstate Commerce Act for requirement by commission action.

Now, one way for example would be to have all interchange take place down here, down in (Inaudible) and then our appeal to the connecting carriers could be limited to one spot and had no effect on the lessee if you had interchange taking place down here.

We can then appeal to seaboard and ACL employees not to make that interchange but in other words, there are numerous ways and certainly discussions where has -- had preliminary had during the proceedings in the District Court.

We went to personnel managers and the general counsel of these railroads and said we don't want to hurt you and we're willing to work in any way we can to minimize the effect of this on you but we do want to appeal to your employees not to make deliveries to take deliveries from or perform services for this trucking carrier.

Justice Potter Stewart: If you're right Mr. Rutledge that you're under no -- there's no incentive at all for you to limit the impact of what you're doing if you're right if the Norris-LaGuardia Act would then say a federal courts from enjoining anything, whatever you want.

Mr. Neal Rutledge: Your Honor, there's a very significant interest for us to limit this as much as we can and that interest is our own self-interest because when we for instance put picket lines around the entire terminal company in order to reach the FEC operation this puts our own people out of work if they are out to picket lines.

I mean, they put our brother employees out of work and we have a very material interest of the honoring of the picket line hurts the laboring man as much as it hurts the employers.

Justice Potter Stewart: Well, but that's what you are doing.

Mr. Neal Rutledge: That certainly is what we're doing in this dispute because were compel to by the integrated operation here but if we can work out in arrangement where it won't be integrated we have very motive of self-interest to limit as much as we can.

Justice William J. Brennan: Incidentally, Mr. Rutledge even if you we're not here don't you have a -- the most identical state court injunction?

Mr. Neal Rutledge: We do have Your Honor, yes.

Justice William J. Brennan: Where is that case?

Mr. Neal Rutledge: That's on appeal.

Justice William J. Brennan: Where?

Mr. Neal Rutledge: To the District Court of Appeal in Tallahassee and it was also before this Court on a probation proceeding.

Justice William J. Brennan: But what you said now, was it?

Mr. Neal Rutledge: Yes, it's pending before this Court.

Chief Justice Earl Warren: Mr. Milledge.

Argument of Allan Milledge

Mr. Allan Milledge: Mr. Chief Justice, may it please the Court.

I'd like to turn our attention for a moment to a rather fully separable jurisdictional failure of the District Court.

If there is any legislation of the Congress of the United States which does regulate secondary conduct certainly the Railway Labor Act does not itself in terms regulate secondary conduct if there is any such regulation, it is the National Labor Relations Act.

Now, there is a question and we say it is that the conduct of the respondents here is arguably subject to the National Labor Relations Act.

The conduct is characterized as being secondary activity, it wasn't so characterized in the lower court, it is here characterized as secondary activity.

Certainly, it is arguably secondary activity under the National Labor Relations Act.

The real question then is, are we a labor organization and that is the Brotherhood of Railroad Train?

The statute says that labor organization may not appeal to employees of any person, a railroad is such a person.

Now, we don't think that we are with in the secondary provisions prohibitions of the National Labor Relations Act but we are a labor organization because we represent bus drivers and a labor organization is an organization which represents employees in whole or impart an employees are employees of an employer under the Act.

So, we are within a literal language of the act labor organizations.

Now, we wouldn't have thought that this was even arguable except for a recent decision, IDEW versus NLRB and which this Court denied certiorari.

There, the entire dispute was in the railroad industry, it was the same 11 non-operating organizations.

Two of them who were pure Railway Labor Act organizations picketed and the effort of picketing was cooperative of some organizations that were impart railway labor and impart that partly.

But there, they were representing solely railway labor but the holding of the Court of Appeals for the District of Columbia this Circuit rather was that the railway organizations were labor organizations and therefore subject to these provisions of the act.

Now, this is the same point which is before this Court now in the companion state case because it is a jurisdictional at fundamental jurisdictional matter it is here on prohibition rather than to appeal because we couldn't obviously get it ran it through a state system as that will go through a federal system but we do have it here on prohibition on the same jurisdictional basis.

Justice Potter Stewart: Well, it's the preemptive issue there --

Mr. Allan Milledge: It is preemption.

Well, in a sense it is preemptive here because a federal court would have no under the holdings of this Court no more jurisdiction to enter an injunction that there has to be a private party than with state court.

So, certainly within a literal language and with in the holding of IDEW and also in terms of the holding of this Court in the MEBA versus Interlake in which there, the MEBA representing only a few employees was there representing only supervisors.

Chief Justice Earl Warren: We'll recess now.

Mr. Allan Milledge: Please the Court.

The suggestion has been advanced by petitioners has there, the primary suggestion in their brief that the Railway Labor Act or that the Norris-LaGuardia Act must be somehow accommodated to the Railway Labor Act.

I think it's important to point out that while there have been a number of cases in which the Railway Labor Act has been accommodated to Norris-LaGuardia rather vice versa and that there have been injunctions issued in railway labor matter they have all been to enforce specific duties in the Railway Labor Act and what we say is that here there are no specific duties.

The Railway Labor Act doesn't deal with the subject of the post strike conduct of labor unions.

Now, the cases in which the rather clear language of Norris-LaGuardia has been accommodated to Railway Labor Act or to enforce the duty bargain which is said out the duty to represent such as in the Howard and Steal cases, the duty to arbitrate under of minor disputes and the duty to mediate a major disputes up until a breakdown of mediation but no where is there any suggestion by petitioners of any heart of the Railway Labor Act that here requires accommodation what they have asked, what they asked to this Court to do is to legislate in the Railway Labor industry a type of post strike limitation of activities similar to 8 (b) (4) regulation of other industry.

It's a rather -- we think a rather Blanton request to this Court to legislate.

Now, whenever this -- the issue of secondary versus primary conduct whenever it is come up in the Congress there have been fears, battles and arguments as to what is best for the country and it hasn't always been the same up until 1947.

We didn't have any federal inhibitions on secondary conduct and even under territorially there is a different rule has been pointed out for the garment industry.

There are bills now pending dealing with the different rules for the construction industry.

So, the content what should be the content of such judicial legislation.

What should this Court say, should you have -- should you make up now some special one for the railway labor industry, should it turn on the fact for instance that the FEC owns 25% of its terminal, should it turn on whether the crews are operating there or what should it turn on?

All these questions are matters of very primary public policy question which have been left to the Congress quite appropriately because it is a battle of economic forces.

Congress has regulated the Railway Labor industry quite differently that it has the rest of industry.

That's needs no further for explanation.

Railway labor is tied up much more tightly before it comes to the point of a strike and certainly Congress contemplated that when we got to a strike situation and there's railway labor industry that it would affect not only the struck carrier but other carriers in the duty section, the duty of a railway labor carrier is to prevent a breakdown of mediation so as not to interrupt itself and other carriers.

Now, --

Justice Potter Stewart: The duties under the Interstate Commerce Act also aren't they are carriers?

Mr. Allan Milledge: There are duties but of course this Court has held on many occasions particularly we would cite telegraphers in which the labor policy of the United States is not to be subordinated to the transportation policy.

Justice Potter Stewart: How about the case of last term involving this railroad in this --

Mr. Allan Milledge: The Clerk's case?

Justice Potter Stewart: This predecessor in this tribunal?

Mr. Allan Milledge: That was a specific provision of the Railway Labor Act 27 which required carriers to make and maintain agreements and we interpreted that to mean that that is the none ups the railway labor movement that you couldn't change them without a Section 6 notice and of course that was essentially the holding the of this Court with the modification of reasonably necessary about of a case of a specific duty which --

Justice Potter Stewart: Well, I'm referring to the train particularly to that case with rule as to my question as to the duties of railroads -- of carriers under the Interstate Commerce Act to operate wasn't this some of lines in the opinion of the Court on that statute?

Mr. Allan Milledge: Right.

But the opinion of the Court was that that duty is not absolute duty and that is been held also by the interstate commerce commission in a case we cite here.

It is an absolute duty, the FEC as most railroads with a strike situation can operate.

Justice Potter Stewart: But in this whole grab bag of sometimes inconsistent statutes, that statutes is one of that to be thrown into I suppose, isn't it?

Mr. Allan Milledge: The Interstate Commerce Act.

We would say that it should not and that has been held by this Court to not to be that the labor policy of the United States is not to be accommodated to the Transportation Act by itself.

Justice Byron R. White: I -- I suppose that if that have an injunction is issue here against here union a damage action would lie also, wouldn't it?

Mr. Allan Milledge: I would presume so.

Certainly, that it would seem to us that the Clayton Act makes this conduct legal unless there is some specific provision to make it illegal.

Certainly, this comes within the terms of the Clayton Act, no such restraining order injunction shall prohibit any person from seizing to perform --

Justice Byron R. White: But doesn't damage action is been forbidden under the same provisions because injunction can damage action sits down on the same two feet with respect to this activity there under the antitrust laws or guess maybe --

Mr. Allan Milledge: Hudson would be a good example of that --

Justice Byron R. White: So, we're dealing -- we're talking about damage is an injunction?

Mr. Allan Milledge: I think so, yes.

There could be of course a situation here, it's conceivable it could be -- the situation in which Norris-LaGuardia prohibits the injunction and yet it might still be illegal some other way, that would be a -- we think an incorrect determination and particularly in view of the Hudson case which is the holding of this Court Norris-LaGuardia reads like back into the Clayton Act which makes the conduct of this type legal.

Chief Justice Earl Warren: Mr. Lyons.

Rebuttal of Dennis G. Lyons

Mr. Dennis G. Lyons: May it please the Court.

I should like initially to call attention to the fact that what is before the Court today is a preliminary injunction.

The preliminary injunction that was issued by the District Court and which was reversed in the Court of Appeals on the basis that there was no jurisdiction on the part of the District Court to entertain the lawsuit at all.

The --

Justice Potter Stewart: How to issue an injunction?

Mr. Dennis G. Lyons: Right.

Pardon me.

To issue the injunction.

The discussion today to considerable extent is gone beyond that and got into the niceties of what forms of relief would be appropriate here in this to whether the injunction perhaps should've been less for all have been it was.

This is the -- as I understand it the second line of defense of the respondents here.

Now, what we suggest is properly before the Court on this review of a preliminary injunction like any review of preliminary injunction on appeal is the essential jurisdiction of the District Court and whether the District Court abused its discretion in passing the relief which it passed.

There will be if there is jurisdiction in this case a further hearing before the District Court on the question of what shape or what form the permanent injunctions to be passed would take.

Now, what we have undeniably in this case is interference with an enormous volume of rail traffic that has nothing at all to do with the FEC what the pickets carry on teir signs, the first words of that were “do not cross”, do not cross this picket line.

They stopped the mainline coastline movement that was coming down from Richmond, Virginia.

They stopped it here at this Plaid Street crossing.

There were pickets placed at the Acorn Street crossing, it was only function is to carry the seaboard's mainline across the terminal at the Stockton Street crossing which has that function as well as some interchange functions and at the Dennis Street crossing where the only function of the coastline to mainline movements.

Now, there's some dispute is to whether the pickets were on the line or whether they were ride along side on dirt road there.

If there is any serious question as to about our and as to having a materiality in terms of relief I would think the District Court could resolve and if there is jurisdiction in this case.

Of course we don't claim that the picketing here was what's called belly to back picketing or the sort of picketing that physically interrupts commerce what you have here is picketing that induce the petitioner's employees concertedly not to work and not to work at all and indeed counsel for the respondents recognized that.

They said that one of the reasons that might someday if there was an injunction lead them to limit the scope of the picketing Ex (Inaudible) or as the matter of their own economic interest was the fact that if the picketing would do a way with a lot of jobs of their own craftsman.

Well, the reason why it does a way of a lot of jobs there that because it involves enormous amount of work throughout the terminal.

That is nothing to do with the FEC, they don't want their crafts members to handle FEC cars but they say here, admits that a great bulk of what their crews do has nothing at all to do with the FEC and that's worth that they might let them continue though they wanted to -- they want to be masters of whether they will continue or not.

The essential point then in this case is the question of jurisdiction and I believe counsel admitted or came very close to admitting that the jurisdictional question that the Jacksonville terminal is the same jurisdictional question that would surround this if there were picketing over this dispute at atomic yards and Alexander Arena if there were picketing in Richmond, if there were picketing in Chicago, if there were picketing in Saint Louis.

Once we address ourselves to the jurisdictional question, it doesn't matter how secondary or how tertiary or how much further we go.

We have the same issue presented here and --

Justice Byron R. White: (Inaudible)

Mr. Dennis G. Lyons: We contend that on the substantive side, first that there is on the jurisdictional side, we say that you have to read the Norris-LaGuardia Act definition of labor dispute with the definition of the dispute in the Railway Labor Act.

Then, we also further say that on the merits once we got passed the jurisdictional question that the complaint stated the cause of action under the Interstate Commerce Act by way of removing an obstruction to the petitioner's duties under that act and we contend that even though as we've heard many, many times on the respondents that there is no specific provision of the Railway Labor Act that we can point to and said they're flatly broken.

I don't suppose this case would've been here if there were.

Still that this is in violation of the general scheme of the Railway Labor Act which only for seize consorted activities with respect to disputes that take place with in its framework between labor and management in the railway industry.

Now, to allow very little further on one of the both on the question of the essentially secondary if I may use it in exact expression make sure of the picketing here and also the point of the fact that we are getting into questions that are characteristically reviewed by an appellate court on a preliminary injunction.

Counsel raised in fact that the injunction that broad enough to prohibit the picketing at this point here which is where the FEC's cars come across the river, St. John River on the bridge and enter the terminal property caused a verbal matter it might to that I suspect one of the reasons why there was an exception drafted for that was the fact that the unions never sought to picket there which I believe emphasizes the essentially secondary again nature --

Chief Justice Earl Warren: Well, what reason I didn't get that Mr. Lyons could you state that again-- do you -- you say you suspect the reason they didn't do it for something and I missed that?

Mr. Dennis G. Lyons: Well, I think this point it's up to the fact they're not directly attempting to picket the FEC's operations here because the one place where the FEC cars all enter the terminal and where all the moves crossing the particular point are FEC moves is right here.

And there's no effort made to picket there which is most direct place where picketing that was aimed directly against the FEC whether it's been made.

Now, there are certain physical problems there but I don't think those problems are in superbly, it's an overpass and they could've picket it on the overpass.

Justice Hugo L. Black: So that place in (Inaudible)f--

Mr. Dennis G. Lyons: They picketed here what you have at the Plaid, the basic activity just goes on to Plaid is the mainline movement of the Atlantic Coast Line Railroad Company.

But you will see an FEC face at Plaid Street because they do pick up the cars here from the Coast Line.

But once again there, the picket signs said, “Do Not Cross” and what happened, the crews did not cross.

The mainline trains did not cross and the major activity is that take place at that crossing just like these relatively minor ones that have to do with the FEC.

They were brought to a halt as well as the activities having to do with the FEC.

Thank you Your Honor.