AVCO CORP. v. AERO LODGE 735

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Argument of J. Mack Swigert

Chief Justice Earl Warren: AVCO Corporation, petitioner, versus Aero Lodge Number 735, International Association of Machinists and Aerospace Workers et al.

Mr. Swigert.

Mr. J. Mack Swigert: Mr. Chief Justice, and may it please the Court.

This case presents the two questions that were reserved by this Court in footnote 8 of the Dowd Box decision, is a suit filed in state court to enjoin a strike in breach of contract now removable, and due to restraints of Norris-LaGuardia, now applied to state courts as well as to federal courts.

This petitioner operates a defense plant at Nashville, Tennessee and they make in that plant components for airplanes used by the defense forces of the United States.

There are about 2000 employees in the bargaining unit, and these employees are represented by the respondents.

The petitioner has a contract with the respondents, a three-year contract which contains a categorical unconditioned no strike clause effective for the duration to the agreement.

Also it has the quid pro quo, it has a grievance procedure terminating in binding arbitration.

In the summer of 1965, shortly after this contract was executed, members of the bargaining unit covered by the contract including local union officials commenced a series of work stoppages and interruptions of work in this defense plant.

The first stoppage occurred on July 29, 1965 in one department and lasted for a short period of time.

Thereafter, from time to time work stoppages occurred in other departments of the plant, one department after another, interruptions that bottlenecked production in the plant.

Finally, on October 14, 1965 a picket line was placed in front of the whole plant, and the on the following morning the morning of October 15, after this sort of interference had been going on for two and a half months the whole plant was finally shut down by a massive picket line.

Not until then did this petitioner seek injunctive relief and on October 15 they went into the Chancery Court, Davidson County, Tennessee and it filed its Bill of complaint seeking a temporary injunction.

The court granted the injunction, people went back to work and the respondents did nothing for another 20 days.

At that time they filed their petition to remove this case to the District Court.

Subsequently, about a week later they moved to dissolve the state court injunction.

Of course we filed our petition to remand pointing out to the district judge that we had filed our case under Tennessee law.

We had not alleged federal law, we had not intended to invoke federal law, but Tennessee law.

Nevertheless, the district judge after considering the matter for several months denied our application to remand.

He dissolved the state court order.

Justice Potter Stewart: The state court had granted what, a temporary restraining order or --

Mr. J. Mack Swigert: Temporary injunction Your Honor.

Justice Potter Stewart: -- [Voice Overlap] injunction or what?

Mr. J. Mack Swigert: Yes.

Justice Potter Stewart: What did he call it?

Mr. J. Mack Swigert: Temporary injunction, it was a fiat it's called under Tennessee chancery practice, and simply granted our application for a temporary injunction.

Justice Potter Stewart: On an ex parte hearing or was there a --

Mr. J. Mack Swigert: No, well Your Honor there was an ex parte hearing solely because the union didn't choose to show up.

They were --

Justice Potter Stewart: They were given a --

Mr. J. Mack Swigert: -- notified by telephone call although it doesn't show in the record one way or the other, that's the fact.

Justice William J. Brennan: On the Tennessee chancery Mr. Swigert, do these things ever go to final hearing?

Mr. J. Mack Swigert: They can whether anyone ever finds it necessary to go to file a hearing, I don't know.

As Your Honor knows from your own experience, normally when a temporary injunction is issued, the union -- if the union goes back to work and doesn't seek to litigate it further, the matter just hangs there.

But here there's no case to test that because the removal took place before any further proceedings could occur in the Tennessee state court.

Now --

Justice William J. Brennan: Was there any law violations, any violence in the picket --

Mr. J. Mack Swigert: No, no Your Honor, this was a peaceful stoppage and we allege no violation of law in the petition.

We simply allege breach of contract and we allege in the body of the petition that the -- that we were entitled to injunctive relief under the equity practice of Tennessee.

Now in order to -- well this -- I might add that the district judge told you his action and then the case went to the Sixth Circuit and they affirmed the action of the district judge in their opinion they stated that attempting to follow the mandate of this Court in Lincoln Mills and the reasoning of this Court in Lincoln Mills, they said that in enacting Section 301, Congress had preempted, totally preempted the field of breach contract, the contract violation and that therefore our suit necessarily arose under the laws of the United States, and that the District Court had jurisdiction of the cause even though because of the restraints of Norris-LaGuardia, it couldn't grant us the relief that we sought, and the only relief that we sought.

Now in order to understand this case and arrive at a correct decision, I respectfully submit, we must first throw our minds to the Spring of 1947 immediately before Congress enacted the Labor Management Relations Act.

And at that time it is undisputed first of all that state courts of equity could enjoin strikes in breach of contract that they were doing it in many states.

That Congress knew this and that such proceedings were not removable under 1441 (b).

Also it is undisputed that at that time the restraints of Norris-LaGuardia did not apply to state courts or their injunctive orders that's where we start.

And so the only remaining question is whether Congress in enacting 301 intended to change any of that.

And we respectfully submit that the evidence is overwhelming, the legislative history is overwhelming, that Congress had no intention to change any of those three things.

They had no intention to stop state courts from enjoining strikes in breach of contract.

They had no intention to make such proceedings removable under 1441 (b) or anything else and they had no intention to extend the restraints of Norris-LaGuardia to these state court proceedings.

In fact the intention of Congress was precisely the contrary.

Congress intended that these state court remedies would continue to operate and they simply supplemented the existing state court remedies with one more remedy.

Now why did they do that?

They did it because the legislative history shows that Congress was concerned in 1947, with seeing these agreements enforced and they were concerned by evidence in legislative hearings that there were gaps in the law of many states because of the diversity problem and -- the problem are not diversity, but the problem of being unable to sue unions as an additive.

The fact that you had to sue everybody in an unincorporated association and for other reasons there were gaps in the enforcement of these contracts among the states.

And Congress wanted to assure that there'd be at least one remedy in every state available to employers and the unions for the enforcement of these agreements.

So they overlaid an additional remedy, but they did not disturb the existing or intend to disturb the existing the state court procedures and remedies.

Now this is clear I think from the previous decisions of this Court based on this legislative history.

This Court for example held in Dowd and stated in Dowd that Congress manifested its complete awareness of both the existence and the limitations of state court remedies for violation of collective agreements.

They knew all about what was going on in the states, they knew they were enjoined.

Senator Taft himself said on the floor of the Senate in the argument that “I want to point out that there is no law against courts issuing injunctions.”

Of course a court may always issue an injunction in connection with the lawsuit except as limited by the Norris-LaGuardia Act, and of course that limitation at that time applied only to federal courts.

So they knew about the injunctions.

Now what was their intention?

This Court has stated in Dowd reviewing the legislative history that the purpose of Congress was not to limit, but to expand to the availability of forums for the enforcement of contracts made by labor organizations.

The court stated in Hughes v. Cardinal that the purpose of conferring jurisdiction under federal courts was not to displace but to supplement the thoroughly considered jurisdiction of the courts of the various states over contracts made by labor organizations.

And subsequently in again in Dowd, the court said in enacting Section 301 Congress did not intend to deprive a party to a collective bargaining contract of the right to seek redress of its violation in an appropriate state tribunal.

They said that they did not intend to take away any jurisdiction of the state courts, did not intend to encroach in any way on the state courts.

This is the finding of this Court and it's based on undisputed legislative history.

So we must conclude that the intention of Congress was to leave the existing state remedies in effect.

Justice Byron R. White: But it did -- there's no doubt that it encroached on the state courts in the sense that the applicable law was changed?

Mr. J. Mack Swigert: Well --

Justice Byron R. White: To some extent?

Mr. J. Mack Swigert: -- I'm coming to that point and I'll be there right now, Your Honor.

Congress did enact Section 301 and it said that suits for violation of labor context may, maybe filed in federal courts.

And this Court has held in a series of decisions that by this language, Congress did intend to create a substantive body of law to be enforced as a federal right and not simply a creation of a forum to enforce state law.

There's no question about that Your Honor, but -- and this Court has further held that in fashioning the law to be applied in federal court or under 301 procedures, this Court will fashion a law and you will adopt law that is not incompatible, state court rules that are not incompatible with national policy.

Justice William J. Brennan: Well that -- you don't think it goes so far, Mr. Swigert as saying that even where an action maybe brought in a state court that the --

Mr. J. Mack Swigert: But I'm reaching that point and this is my next point. Congress did create this law, it did empower you to fashion a substantive law and you have done it.

Justice William J. Brennan: Yes but that --

Mr. J. Mack Swigert: But it did not --

Justice William J. Brennan: -- substantive federal law, whether the action is brought in a state or federal court.

Mr. J. Mack Swigert: If it's brought in a state court under 301, but what if the petitioner doesn't elect to bring his action into state court under 301?

He can because federal law can be enforced in state courts.

Justice Byron R. White: You mean if to suggest that if the suit on the contract that is brought on the state court and 301 is never mentioned?

Mr. J. Mack Swigert: I'm sorry Your Honor.

Justice Byron R. White: It still has a suit on a collective bargaining contract --

Mr. J. Mack Swigert: Apply --

Justice Byron R. White: -- in fact 301 itself doesn't even mention state court?

Mr. J. Mack Swigert: No Your Honor but --

Justice Byron R. White: So there would be no -- is there any really -- does anybody every mention301 on suing on a collective bargaining contract in a state?

Mr. J. Mack Swigert: Yes Your Honor, I've done it many times.

Justice Byron R. White: Why?

Mr. J. Mack Swigert: I have brought -- well I won't say many times but you can,.

I've seen litigants do it, but we didn't.

Justice Byron R. White: But why would anybody do that?

Mr. J. Mack Swigert: Well I don't think you'd be very well advised to do it in view of the suggestion now that that automatically makes it removable.

But my -- position is that our two coexisting of systems of law for enforcing of contract now because otherwise all of this language in the legislative history that Congress didn't intend to deprive -- didn't even intend to deprive a party of their right to seek redress for its violation --

Justice Byron R. White: Is this position critical to this case for you?

Mr. J. Mack Swigert: No I don't I think it necessarily is.

Justice Byron R. White: I mean you're going to make the same -- even if you said that the substantive law governing suits of collective bargaining contracts in state courts is federal law.

Even if you said that you're going to be making the same argument about --

Mr. J. Mack Swigert: Yes sir, this is an additional string to our bow.

And I know -- and I want to make this point, because this is not been considered by this Court to my knowledge heretofore and I think that it is basic in reviewing what Congress intended and what happened here?

In Pan American Petroleum decided several years ago by this Court, it was held of course, but there was a -- there was a federal remedy created by Congress, but the plaintiff elected to bring his pursuit under state law.

And of course a writ of prohibition was in the state court and saying the state, that matter had been preempted, the federal remedy was exclusive.

And this Court there held that a plaintiff is master of his suit, you will look solely to the language of the petition to see whether he elected to come under federal law or a state law that there the petitioner, even though there was a federal remedy and it was arguably exclusive, had elected to come under state law by his petition and that the question of removability doesn't turn on the ultimate outcome of the case or whether the plaintiff was right.

The Court said that where the plaintiff has pitched here suit under state law, it is not removable because he has not alleged something that arose under laws of the United States.

Justice Byron R. White: Well what if you just had asked to go injunction of this suit for damage in state court, not asking 301 or anything --

Mr. J. Mack Swigert: I think --

Justice Byron R. White: Would've had been removed from it?

Mr. J. Mack Swigert: Only if we had elected to file that suit -- oh but that's just Your Honor, this is what Pan American says and what (Inaudible) says and other cases, only if we had elected and stated in our petition that we were bringing the suit under federal law, would that damage suit had been removable?

Now that is unnecessary to a decision of this case, but it does elucidate the theory that I am presenting to you here.

Justice Abe Fortas: But if federal law applies here, I assume that it is -- that it compels the decision of the state court.

Mr. J. Mack Swigert: Your Honor my point is that federal law does not apply here because we brought a suit under state law.

And state law has not been preempted by -- totally preempted by 301.

Justice Abe Fortas: You mean to say that the choice of forum determines which law applies?

Mr. J. Mack Swigert: No Your Honor, not the choice of forum, but the allegations of the petition and that's what this Court said (Inaudible) it's what you said in Pan American Petroleum and in a number of other cases.

Justice Abe Fortas: And your position then is that the plaintiff can determine where the federal law or state law will apply?

Mr. J. Mack Swigert: He can determine what law he wants to bring his suit in.

We determined that we want to bring ours under Tennessee law and nobody -- and the Tennessee chancellor impliedly found there was a Tennessee law still because he granted us our relief, and nobody took an appeal from his decision.

Justice Abe Fortas: But if we should conclude that it was the intention of the Congress that federal law should apply here, I don't assume you would urge that despite that, the plaintiff's choice would govern?

Mr. J. Mack Swigert: No Your Honor, but up to now the Court has determined the contrary.

The Court has determined in Lucas and Dowd and Hughes v. Cardinal that the intention of Congress was to preempt only pro tanto, only to the extent that local rules are inconsistent with the overriding national policy as set forth in this law.

Justice Abe Fortas: But in your opening statement you did say that the questions in the present case were expressly reserved in Dowd in the last footnote.

Mr. J. Mack Swigert: The general question of whether a state court suit could be removable was reserved and this is a facet of that question, yes sir.

Justice Abe Fortas: And also the applicability of Norris-LaGuardia.

Mr. J. Mack Swigert: And the applicability of Norris-LaGuardia, yes sir.

Now we contend that if the Lucas and Dowd and Hughes v. Cardinal mean what they say, and incidentally in Hughes v. Cardinal by substantive this Court made a definition and the definition was that something is substantive within this preemptive concept only if it affects the formation of a contract with a private settlement of disputes under that contract.

Anything outside that area is not preempted that's why I read these decisions.

Now, here a contract had been formed so Tennessee law didn't affect in any way the formation of the contract, and the private settlement of disputes as set up in that contract had broken down just as they had in Hughes v. Cardinal, because we're in court, they are obviously broken down.

Now the minute we get into that area of remedy, this is an area that is not been preempted and therefore the state remedy would remain in effect just as the state statute of limitations was recognized as effective in Dowd.

Now it's true that in Dowd, the suit was initiated in the -- I mean in Hughes v. Cardinal, the suit was initiated in the federal court so you had no removal problem there and naturally if the suit is brought in federal court it can only be brought under 301 only under federal law.

You have indicated your election by filing this suit in federal court.

Now there's one more point here.

As Your Honors have suggested, even if you do -- you think that no state law now exists, surely we were entitled to allege the contrary.

We didn't attempt or purport to allege a federal suit, and so it wouldn't be removable if we were wrong and alleged only a state cause of action.

That wouldn't make it removable.

We can't be compelled to seek a federal remedy if we don't want one.

Now, however even if federal law, as we pointed out in our brief, even if federal law is considered as preempting the whole substantive field, it still would not be removable because even if the Tennessee court was being asked by us, as it wasn't to apply federal law, this was not a law arising under laws of the United States because it was fashioned law, fashioned by the federal courts and adapted from the states and so it was created by the states and not the courts and not Congress and it would not arise under federal in any event.

That is our contention as set forth in great detail in our brief.

Now, there's a second facet to this and I just want to allude to this briefly.

In Sinclair this Court has held that Congress in enacting 301 simply intended to leave Norris-LaGuardia the way it was.

And it didn't intend to make any exemptions to it, just continue it.

Well, the way it was, it didn't apply to state court injunction proceedings, and we contend therefore that a federal court does not have jurisdiction, original jurisdiction over a suit to enjoin a strike in breach of contract.

Norris-LaGuardia of course was enacted back in 1932 before the merger of law in equity in federal courts.

At that time we had an equity side and a law side, and these injunction suits had to be brought under the equity side.

So Congress was concerned obviously only with withdrawing jurisdiction from the equity side of the court and any reference to equity in the legislative history arose from this circumstance.

But Congress did use the big word jurisdiction because as this Court said in Sinclair they wanted to use the biggest possible language in order to block any possibility of misconstruction or a narrowing construction by the courts.

They wanted to take jurisdiction away from federal courts to issue injunctions in labor disputes.

We say they did, and take the jurisdiction away and if that is true, then such a suit would not be removable under 1441 (b).

Chief Justice Earl Warren: Mr. Swigert.

Mr. J. Mack Swigert: Yes.

Chief Justice Earl Warren: May I ask if you claim that the federal courts do not have jurisdiction because of the facts that you allege in your complaint or because of the remedy that you assert?

Mr. J. Mack Swigert: We did not, Your Honor, allege the jurisdictional prerequisites to an injunction suit under federal law which would have been that unlawful acts were threatened or had been committed, and secondly that public officers charged with the protection of property could not or would not protect.

This is no -- neither of these and these allegations to our mind are like a $10,000.00 allegation where a $10,000.00 minimum is required for federal jurisdiction.

Unless you allege these things, you have not stated, you have not invoked the jurisdiction of a federal court under Norris-LaGuardia, and we didn't allege --

Chief Justice Earl Warren: I'm not quite clear about your answer yet.

I want to know if your claim of lack of jurisdiction on the part of the federal court was because of the facts that you alleged or because of the injunction remedy that you're assert?

Mr. J. Mack Swigert: Both Your Honor.

Chief Justice Earl Warren: Now let's just assume that in your case, you allege all the facts that you alleged.

You did not ask for an injunction.

Would the federal courts have had jurisdiction in those circumstances?

Mr. J. Mack Swigert: No Your Honor because in the body of our petition, we allege that we were entitled to injunctive relief.

Chief Justice Earl Warren: No, I say in the absence of your asking for injunction relief.

Would the facts of the case as stated in your complaint give the federal court jurisdiction?

Mr. J. Mack Swigert: No Your Honor because --

Chief Justice Earl Warren: Why?

Mr. J. Mack Swigert: -- I'm not referring to the prayer, I'm referring of our petition, I'm referring to the body where we set forth the facts that entitled us to relief under Tennessee law.

Chief Justice Earl Warren: Well, that's what I'm asking you if it is -- if the request for an injunction was not made in your case, would the federal courts and had jurisdiction over the facts?

Mr. J. Mack Swigert: No Your Honor because we, as I've indicated sought to invoke only Tennessee law, not federal law, and unless you allege a federal cause of action you can not have federal relief.

You can not state a federal cause of action unless you elect to do that, and we didn't --

Chief Justice Earl Warren: Well if your facts, if your facts as you state them would entitle to -- entitle the federal courts to jurisdiction, would the fact that you -- you will have a prayer for an injunction divest the federal courts of jurisdiction?

Mr. J. Mack Swigert: Well Your Honor, my answer would be that if we allege the facts necessary to allege a federal cause of action and had it elected by the language of our petition to rely on the federal cause of action then the fact that we didn't pray for injunctive relief would not mean that it wasn't the federal cause of action.

Justice Potter Stewart: You're not, Mr. Swigert before you sit down, you're not asking the Court to reconsider the Sinclair case are you?

Mr. J. Mack Swigert: No Your Honor.

Justice Potter Stewart: You're not.

Mr. J. Mack Swigert: I don't think it's necessary for the decision of the case, because in Sinclair all as I understand -- I consider Sinclair an authority for us and not against us because in Sinclair you specifically stated -- it was a agreed by the conferees that no change in the existing and the injunction provisions of Norris-LaGuardia should be made.

As I pointed out the existing restraints applied only to federal courts, we're in the state court.

Chief Justice Earl Warren: Mr. Dunau.

Argument of Bernard Dunau

Mr. Bernard Dunau: Mr. Chief Justice, and may it please the Court.

An employer claims that during the term of a collective bargaining agreement, a strike takes place in violation of the no strike commitment.

Based on that claim of contract violation, he brings a suit in a state court and requests a strike injunction as relief for the contract violation.

The union removes that action from the state court to the federal court and our only question is whether that action is properly removed.

Now that action is properly removed if two requirements of removal are met.

One, the action must be within the original jurisdiction of a federal court, and two, the action must be founded on a claim or right arising under the laws of the United States.

Now with respect to the requirement, the arising under requirement, a -- when you have a collective bargaining agreement in an industry affecting interstate commerce that an action for violation of that agreement must rest on Section 301 of the Labor Management Relations Act.

There is no other law on which that action can be based.

There is no law, but federal law which can be invoked with respect to a claimed breach of a collective bargaining agreement in an industry affecting interstate commerce.

And that is true even if we were to assume that a state court, if the action stayed in the state court would have the authority to issue a strike injunction, because the state court on that hypothesis would have authority to issue a strike injunction only because the federal law said it had that authority.

Whether or not the state court can issue a strike injunction is a question of federal law.

So which ever way this action is sliced, it can only arise under our law -- under a -- it can only arise under a law of the United States.

Justice Byron R. White: But we don't need to decide here in this case, do we, whether a state court may issue that injunction?

Mr. Bernard Dunau: No sir.

I do not believe that question is in this case.

Justice Potter Stewart: But you discuss it in some length in your brief.

Mr. Bernard Dunau: Yes we do, only because we cannot be entirely sure what -- (Inaudible)

Justice Byron R. White: You would be delighted if we did decide that --

Mr. Bernard Dunau: I would be delighted if you --

Justice Byron R. White: -- your way.

Mr. Bernard Dunau: -- decided the state court had no jurisdiction.

Though authority, the issue will strike it Judge, yes sir.

Justice William J. Brennan: Now, while you mean that as a matter of federal law?

Mr. Bernard Dunau: As a matter of federal law.

Justice William J. Brennan: Even a state court which has no little Norris-LaGuardia Act?

Mr. Bernard Dunau: The --

Justice William J. Brennan: May not because it has to apply federal law?

Mr. Bernard Dunau: That's correct.

Justice William J. Brennan: Grant an injunctive remedy?

Mr. Bernard Dunau: If the court --

Justice William J. Brennan: But you didn't -- the union did not take that position as I understand it, they took no position did it in the Tennessee state action?

Mr. Bernard Dunau: No, no response of pleading was ever filed in the Tennessee action --

Justice William J. Brennan: But if you had, I gather, that's the kind of response to pleading you'd filed?

Mr. Bernard Dunau: We would certainly would have claimed that federal law precludes a state from issuing a strike injunction in a suit under a collective bargaining agreement, yes sir.

Now the other question necessary to removal requirement we must satisfy is that the action be within the original jurisdiction of the federal court.

Now with respect to the original jurisdiction of a federal court, we have I think a very plain setting.

A federal court has the power decide contract claims, violations, alleged violations of collective bargaining agreements.

A federal court, if it defines that there has been a contract violation is empowered as the, whatever if that is the appropriate remedy to compel arbitration, to confirm or vacate an arbitration award, to render a money judgment, to render a declaratory judgment.

The one thing it may not do by reason of the Norris-LaGuardia Act is to issue a strike injunction.

And our sole question therefore with respect to the requirement of original jurisdiction is whether the lack of authority of a federal court to issue a strike injunction is a divestiture of subject matter jurisdiction or is a limitation of equity jurisdiction.

If it is solely a limitation of equity jurisdiction that is not the kind of lack original jurisdiction of which the removal statute speaks.

If it's a limitation of subject matter jurisdiction then we cannot remove this type of action.

Now the Norris-LaGuardia Act aside, it is crystal clear that a limitation upon the power of a federal court or the authority of a federal court to issue an injunction is -- does not go to the subject matter jurisdiction of a federal court.

It goes to equity jurisdiction.

It goes to the merits of the claim.

If that is correct, then what we need to ask ourselves is, does the Norris-LaGuardia Act itself make an alteration in that analysis.

And the sole basis upon which it can be said that the Norris-LaGuardia Act itself relates to subject matter jurisdiction rather than equity jurisdiction, it is because the Norris-LaGuardia Act talks in the language of jurisdiction.

But the talk in the Norris-LaGuardia Act in the language jurisdiction is just as fully explicable as a reference to equity jurisdiction and much more clearly a reference to equity jurisdiction than to subject matter jurisdiction.

Every place in the Norris-LaGuardia Act that the word jurisdiction is used, one can insert equity jurisdiction and make no slightest alteration in the sense of the Congress in enacting the Norris-LaGuardia Act.

Let's take a look the statute.

The Norris-LaGuardia Act does not say that a federal court is not empowered to adjudicate controversies arising out of or involving labor disputes.

What it says is that you have such a controversy, therefore a federal court you can not get injunctive relief unless you satisfy certain prerequisites.

This statute, the Norris-LaGuardia Act begins with a public policy which expresses national labor policy.

It was enacted in 1932.

In 1935 in the National Labor Relations Act, the same virtually in so many words, the same national labor policy expressed in the Norris-LaGuardia Act was expressed in the National Labor Relations Act.

We therefore deal with a statute which is (Inaudible) on Congress' recognition in its view of what was important to national labor policy.

This statute has substantive import.

On its face, it outlaws the “yellow dog contract”.

On its face it prescribes rules with respect to vicarious responsibility.

It has requirements which are -- which pertain to traditional equity practice, the requirement of substantial irreparable injury, the requirement of no adequate remedy at law.

It has procedural requirements.

Before you can get an injunction you have to have a bond.

Before you can get an injunction findings of fact must be made.

Now it says that certain acts under no circumstances will be enjoined, this strike being preeminent illustration, but even in describing certain non-enjoinable acts is carefully qualified.

You cannot restrain picketing or other publication of a labor dispute unless there's fraud or violence.

You cannot prohibit assembly unless it's unlawful.

So it seems to us that the entirety of the Norris-LaGuardia Act necessarily speaks not of a divestiture of the power of the court to deal with the controversy but a circumscription of the manner in which it will exercise that power.

Now we didn't invent this distinction between equity jurisdiction and subject matter jurisdiction, and we didn't invent its application to the Norris-LaGuardia Act.

Throughout the passage, the deliberations in Congress which preceded the enactment of the Norris-LaGuardia Act, the legislative refrain was, we are dealing with the equity jurisdiction of the federal court.

For example on page 33 of our brief, Congressman Bank (ph) speaking.

He says of the Bill which became the Norris-LaGuardia Act “It does not undertake to withdraw from the federal judiciary, any of its functions in equity, but it nearly imposes conditions upon them and restraints upon them with reference to the issuance of injunctions and labor disputes.”

And in the House Bill, there was attached a memorandum by then Professor Felix Frankfurter which described in detail the constitutional power that Congress would be exercising in the enactment of the Norris-LaGuardia Act, and in that memorandum then Professor Frankfurter said “The Congress would be exercising its power over equity jurisdiction of the federal courts.”

And this Court speaking through Mr. Justice Frankfurter in Bakery Drivers Workers Union v. Wagshal said “The question is whether the complaint subjects the Court to the limitations imposed by the Norris-LaGuardia Act upon its equity jurisdiction.”

We think therefore that clearly this action meets the two requirements for removal.

One that the action arise under a law of the United States, there is no other under which it can arise in this case and two that it be within the original jurisdiction of the federal court because the only limitation in this case pertains to the equity jurisdiction and that is not a requirement which goes to original jurisdiction.

Justice Potter Stewart: Now, there is some question about whether the original action arose under the law of the United States, is there not?

Mr. Bernard Dunau: Only sir if one takes the position that if a complaint is silent, it does not mention Section 301 then there exists somehow a state law which may still be invoked.

Justice Potter Stewart: You don't need to mention 301 in the state court, do you?

Mr. Bernard Dunau: You do not need to mention 301 but your silence on the subject doesn't remove 301 as being the only law under which such an action can arise.

Justice Potter Stewart: I don't understand that.

When does this Court ever held anything like that?

Mr. Bernard Dunau: Well, I thought that that was settled with respect to --

Justice Byron R. White: Well just because the federal law is -- applies to suits on collective bargaining contracts doesn't mean that it arises under 301?

Justice Potter Stewart: Precisely.

Justice Byron R. White: Nor does it mean that it arises under federal law within the meaning of the jurisdictional statute?

Mr. Bernard Dunau: Sir.

Justice Byron R. White: Or rather the removal statute?

Mr. Bernard Dunau: I think it does.

I think --

Justice Byron R. White: I know you do.

Justice Potter Stewart: You said that but I just wondered why?

Mr. Bernard Dunau: I think this Court said in an International Association of Machinist v. Central Airlines when it discussed not a 301 action, or a 301 contract, but when it discussed a Section 301 Railway Labor Act contract, it was the same question under a 301 contract as under a Railway Labor Act contract as the action arise under federal law or under the state law, it is true that in the Central Airlines case the action was initially begun in a federal court.

Justice Byron R. White: That's the same rule?

Mr. Bernard Dunau: It's the same question whether the -- or the arising under question is the same whether you're concerned with does the federal court have jurisdiction if the action is brought originally in the federal court, or does it have jurisdiction on removal.

And this --

Justice Byron R. White: And the -- just the fact that the federal law might control a case doesn't mean it arises under as a general proposition, is it?

Mr. Bernard Dunau: Well no, in the sense that if you in truth could allege a state action but the result of that action would be, or the aim of that action would be defeated by bringing in federal law as a defense.

And if in that sense that action is controlled, it doesn't arise under, but we have no such or we certainly take -- do not take position in this case.

We are not saying that we are defeating a state action by invoking a federal defense.

What we are saying is that there is no law but federal law under which you can in an industry affecting interstate commerce claim a breach of a collective bargaining agreement.

Justice Byron R. White: Now would you say that -- what would you say if this case had -- if this complaint had alleged violence or mass picketing?

Mr. Bernard Dunau: We would say that the state court had jurisdiction to reach the questions of violence in mass picketing and that's all that they would have the power to reach.

Justice Byron R. White: Would it have been removable?

Mr. Bernard Dunau: Yes sir, I think it would have been.

I think you would have an additional question in that circumstances to whether the federal court -- the state courts on doubt of the violence aspect whether that would on removal empower to federal court to say “Well since it's got hold part of this controversy let it dispose the whole of it and remand on that ground.”

But aside from such a question, I think it would be clearly removable in ignorance.

Justice Byron R. White: Do you know of any cases that have dealt with the question of whether state courts may award to punitive damages in 303 actions?

Mr. Bernard Dunau: In a 303 action?

Not offhand sir, I couldn't answer that question.

Now --

Justice William J. Brennan: Gibbs I gather didn't -- Gibbs was a 303 but a Federal Court 303.

Mr. Bernard Dunau: It was a federal court 303.

Justice William J. Brennan: There was something said in 303 generally about in case of violence state power to award punitive damages, wasn't it?

Mr. Bernard Dunau: If I remember correctly, but this is really off the top of my hat.

This Court decided either in Gibbs or in another case that you could not have punitive damages in a Section 303 action, but that is clearly off the top of my head.

I thought that by the time this Court --

Justice Byron R. White: But you don't recall any cases in the -- that have been decided in state courts?

Mr. Bernard Dunau: No sir, but I'm just reminded that Morten Saw, this Court decided that you couldn't award punitive damages in a Section 303 action and my recollection --

Justice William J. Brennan: And yet if there were violence, I take it in that very situation a state court could be empowered, would it not, to allow punitive damages?

It would not be a 303 action it would be a state action.

Mr. Bernard Dunau: With respect to the violence, but not with respect for example to a claim of a 303 claim.

Justice William J. Brennan: Wasn't that Gibbs?

Mr. Bernard Dunau: Gibbs had --

Justice William J. Brennan: Well I mean don't waste your time on that?

Mr. Bernard Dunau: I'm sorry I just --

Justice William J. Brennan: Yes.

Mr. Bernard Dunau: No, with respect to the arising under requirement, I think that what this Court said in Machinist v. Central Airlines controls here, the Labor Management Relations Act, Section 301 contract is a federal contract and is therefore governed and enforceable by federal law, and I think that ends the question of arising under in this case.

Now if we were in this case, now I should add this one word before I leave the removal subject, we think the removal of a Section 301 action fits the purpose of Congress in providing for removal.

The object of removal when you have questions, the federal questions which is at the foundation of the claim is to give a defendant an opportunity to bring it into a federal court just as the plaintiff has an opportunity to bring that same case into a federal court by bringing it into the federal court in the first instance.

Both are supposed to have access to a federal court and the object of giving both the plaintiff and the defendant access to a federal court is to get lower interpretation and fact determination by an independent federal judiciary.

It promotes uniformity.

It promotes informed adjudication and it promotes an unparochial administration of federal law and we think that that idea is as much needed in a Section 301 action as in any other, and is as much needed whether a strike injunction is sought or is not sought.

Now if this Court were to reach the question of the power of a state court to issue a strike injunction, we think that the consequence of this Court's decision in Sinclair is that a federal -- a state court like a federal court has no authority to issue a strike injunction and for this reason.

When this Court decided Sinclair, it had to face the question whether the enactment of Section 301 impliedly repealed the Norris-LaGuardia Act.

This Court concluded that it did not and in reaching that conclusion it rejected the argument that a strike injunction was important to the enforcement of a no strike promise.

It said with respect to the -- it rejected the view “that injunctions against peaceful strikes are necessary to make the arbitration process effective.

”Whatever might be said about the merits of this argument, Congress itself has rejected it.

In doing so, it set the limit to which it was willing to go in permitting courts to effectuate the congressional policy favoring arbitration, and it is not this Court's business to review the wisdom of that decision.

Now it seems to us that once that it was decided that in the enforcement of this federal right, Congress concluded that a strike injunction was not necessary, was not important to the enforcement of that right, Congress could not have made a different determination of that question just because the suit was brought in a state court rather than in a federal court.

Justice Abe Fortas: If an action for damages were brought against the union for breach of contract in the state court, is it your -- would you contend that that could be removed?

Mr. Bernard Dunau: Yes sir.

That is virtually conceded by all.

There is no case where -- there is one case where when there was a jointer of an action for damages with a strike injunction, the federal court remanded the action part and retained the -- the federal court remanded the strike injunction aspect of the action and retained the damage action.

But the current authority is virtually uniform that whether -- whenever you either have damages alone or conjoined damages with a request for a strike injunction, the action is removable.

Justice Abe Fortas: What is the jurisdiction that would be left to the state court not subject to removal to the federal court?

Mr. Bernard Dunau: None.

Justice Abe Fortas: None.

Mr. Bernard Dunau: Now we think that when Congress made the determination that a strike injunction was not important to the enforcement of a no strike promise, it could not have said that it is important to the enforcement of a no strike promise if you bring your action in a state court, but it is not important if you bring your action in a federal court.

The ideal in the administration of Section 301 is uniformity.

It is not a fetish, but it is an ideal.

Justice William J. Brennan: Mr. Dunau, may I?

Mr. Bernard Dunau: Yes.

Justice William J. Brennan: I must confess, did you in answering Mr. Justice Fortas, embrace a suit where actually there had been violence and violence alleged and injunctive relief or damages based on violence were sought?

Mr. Bernard Dunau: No sir.

Justice William J. Brennan: You did not.

Mr. Bernard Dunau: No sir.

Justice William J. Brennan: That would not be removed.

Mr. Bernard Dunau: No sir because violence is a matter which is within a state court jurisdiction and as to which state law continues to be applicable.

Justice Byron R. White: Yes, and it does not arise and that sort of nature would arise under federal court.

Mr. Bernard Dunau: Does not arise under federal court, precisely sir.

Now it may the federal defenses may come in but we would not say that it would arise under federal law.

Now there maybe outlandish restrictions, for example, on picketing as a result, and then we --

Justice William J. Brennan: Well then you'll be getting into First Amendment area wouldn't it?

Mr. Bernard Dunau: -- getting into a First Amendment area.

We'd also be getting into the question as to the extent to which the National Labor Relations Act, but these would be matters of defense that we could not remove because of anticipatory federal defenses.

Justice Abe Fortas: Well I probably did misunderstand you earlier, because I thought you said that if there were violence and suit were started in the federal -- in the state court, and there could -- for injunction let's say, then there could be a removal to the federal court and the federal court would also take the issue of violence as in on the pendent jurisdiction theory which I think some third paragraph of 1441.

Mr. Bernard Dunau: Well I ought to them differentiates three separate situations.

One, if there is violence alone it is not removable.

Justice Abe Fortas: Yes, you mean to say if the --

Mr. Bernard Dunau: If the actions are --

Justice Abe Fortas: -- lawsuit is for what, the damages for violence alone just like it's an action for damages on account of assault and battery or trespass and etcetera?

Mr. Bernard Dunau: That's correct sir.

Justice Abe Fortas: Alright, now that would be kind of rare, wouldn't it, in these disputes?

Mr. Bernard Dunau: It's hard to imagine violence associated from someone --

Justice Abe Fortas: Yes it is.

Mr. Bernard Dunau: -- dispute.

If we had only a claim for a breach of contract which is the kind of suit we have here, it is always removed.

And if we have an ad mix claim, I think we then begin to have problems under the -- of (c) of 1441 as to whether these are independent claims and should be remanded or removed, but these are special problems which arise only because of the ad mixture of two --

Justice Abe Fortas: So actually would it be a correct summary of your view taking in to account your previous colloquy with me and the colloquy with Mr. Justice Brennan that your argument leads us to the position that state courts would have no jurisdiction that would be immune from removal to the federal courts except possibly a simple, plain vanilla action for damage on account of violence?

Mr. Bernard Dunau: That I think would be correct, yes sir.

Now I said that the ideal that the court seeks and the Congress seeks and the administration of Section 301 is uniformity and if that is the ideal, you can not have uniformity if you have a strike injunction attainable in a state court but not in a federal court.

Justice Potter Stewart: Plus Hughes v. Cardinal departed from that ideal, didn't it?

Mr. Bernard Dunau: It departed from the ideal and that's why I say it's an ideal, it's not a fetish.

Justice Potter Stewart: Well if it were an ideal, how did we decide Hughes v. Cardinal the way we did?

Mr. Bernard Dunau: It seems to me --

Justice Potter Stewart: We could've very easily decided it the way we were asked to decide it in conformity with the ideal that you now suggest should be the touch stone?

Mr. Bernard Dunau: I think that the Court could have decided it the other way and then would have had a very difficult problem of formulating what shall be the rule of limitations if it is a federal rule which shall be uniform throughout country shall --

Justice Potter Stewart: It just take five votes in this Court, we could have set any rule of limitations you wanted, couldn't we?

Mr. Bernard Dunau: But I assume sir that five votes takes a lot of thinking before justices vote, and so that I don't suppose it's quite so easy before the vote gets cast.

However, I think you had two things in Hughes which quite clearly differentiated from this case here.

One traditionally where Congress does not specify a statute of limitations, there is reference to the state law, and in that posture I think the Court would then be faced with the question, why should we innovate a different general rule in a Section 301 action and conclude it that the impact of a state by state statute of limitations didn't encroach so severely on administration of Section 301 action as to require a departure from the general rule.

I don't think that same kind of analysis can hold water in this kind of a case, because not only do you have lack of uniformity from state court to federal court, you have lack of uniformity from one state to another.

In Maryland there are no strike injunctions.

In the District of Columbia you could not get a strike injunction.

In Virginia you can if you had a strike straddling, those three localities your strike would be partially enjoinable in one place but not in the other.

It seems to us that the uniformity which this Court generally seeks could not be achieved and then our question becomes, does it matter that there is no uniformity with respect to a strike injunction?

And on that I think our industrial history has made quite clear that one of the things which is basic to a labor dispute is to whether a strike is won or lost, is to whether you get a temporary restraining order or you do not.

Justice Potter Stewart: I thought this Court had said many, many times in recent years that the real basic ideal of federal labor law and federal labor policy is the peaceful, orderly, lawful adjustment of labor disputes and the fostering of atmosphere conducive to the making of collective bargaining agreements and the enforcement thereof.

That's the theme on the --

Mr. Bernard Dunau: I certainly would not disagree with that expression of federal labor policy.

It leads us to ask however an additional question, one which we think the Court answered in Sinclair certainly for the federal courts and which we think must also be answered the same way for the state courts.

Is it true that Congress thought that a strike injunction was important to the peaceful adjustment of disputes under a collective bargaining agreement?

And while it's taken as datum on one side of the table that it is important, we think that we have a powerful argument that it is really not important that what makes collective bargaining work and what makes grievance and arbitration adjustment work is the self commitment of the parties to it.

You could throw out Section 301 and I think you could throw out state law and this system would still work.

But aside from all this, it grew up and it flourished before there was any law really applicable to this kind of a matter.

What we suggest on that aspect of the matter is when we balance our competing considerations, if legal sanctions are important, we've got legal sanctions aside from strike injunctions, the discharge or discipline of strikers is no means sanctioned for the enforcement of a no strike promise.

The recovery of damages is no means sanctioned in the enforcement of a no strike promise.

The abuses to which we know strike injunctions have been and are subject is no mean consideration in determining whether we are going to loose more by having a strike injunction than we're going to pay benefit by getting it.

Justice William J. Brennan: I suppose if this view prevails that this action is removable, as a practical matter, we will probably never see a case where we have to test the authority of the state court to issue a strike, except in violence cases, would we?

Mr. Bernard Dunau: I'm not sure Your Honor because I suppose there may be lawyers who would feel that in a particular state court with particular state judges that they would get a more understanding adjudication of their problem than they would get before a particular federal judge, and therefore would not remove so it could still come up.

I would suppose, realistically, that these actions are going to be removed by any lawyer who's informed on the subject.

Now what we do suggest however with respect to the competing considerations as to whether their strike injunction is desirable or is undesirable, when you get all through with marshaling them, I think you come out with the question for the people across the street and a question here.

That was true when Sinclair was decided.

I think it is even more true five and a half years from Sinclair there has been no action by Congress on this subject.

There have been a couple of Bills introduced and nothing has been done, and we think therefore it might be just as well to embrace what seems to be the congressional judgment to leave well enough alone.

Chief Justice Earl Warren: Mr. Swigert.

Rebuttal of J. Mack Swigert

Mr. J. Mack Swigert: Central Airlines relied on with the respondents turned solely on the intention of Congress, and this Court held that Congress intended there to establish an exclusive remedy, but here Congress didn't.

And let me draw your attention very briefly to the legislative history once again.

In 1947, the House passed a Bill that provided for enforcement in Federal District Courts of suits for violation of labor contracts, and also contained a specific exception to Norris-LaGuardia to cover those suits in federal suits and that was the Bill as it passed the House.

In the Senate, they also provided for injunctive relief on the original Bill.

They provided a suit in federal courts and they also provided a -- that there would be a -- to become an unfair labor practice which would bring it under Section 10 (j) of the Act.

So both Bills originally had facility to enjoin a strike against breach of contract.

They'd said it to the committee and the committee came up with a compromise and they decided to drop the exception to Norris-LaGuardia out of the House Bill, and to drop the unfair labor practice out of the said Bill on the representation that they were going to leave the enforcement of these contracts to the usual processes of the law.

Now those usual processes were state court injunctions as well as state court damage suits.

And so they created an additional, they supplemented it and that was the intention that Congress, and the congressmen would have put an exception to Norris-LaGuardia in this Bill, but for that representation and that compromise.

So what the respondents are asking us to do here today is to frustrate the clearly expressed and agreed intention of Congress, and I'm confident that the Court will not do that.

Now --

Justice Hugo L. Black: May I ask you a question?

Mr. J. Mack Swigert: Yes, yes sir Mr. Justice Black.

Justice Hugo L. Black: Basically, so far as these differences are concerned are there any difference between what you're asking what the other side is asking, accept that your method will permit by a filing of a state suit to avoid the Norris-LaGuardia prohibition against the injunction?

Mr. J. Mack Swigert: Your Honor, that was true in 1947 that you could.

Justice Hugo L. Black: Now you said the effects, what -- if that's what's involved --

Mr. J. Mack Swigert: I believe --

Justice Hugo L. Black: -- what else is involved?

Mr. J. Mack Swigert: -- I believe, if I understand your question, I believe that so because before 1947 you could always avoid Norris-LaGuardia by filing an injunction suit in the state court and I think Congress intended to continue that so today you can still do it.

Justice Hugo L. Black: So you're reaching it, the discussion now, on arguing that the 301 federal limit is not exclusive, you just reach it that way?

Mr. J. Mack Swigert: It is not exclusive.

You recall that this Court pointed out in Guss and Webber and Dozer and Garner that the preemption and the exclusive jurisdiction of the National Labor Relations Board under the National Labor Relations Act grew out of Section 10 (a) where Congress specifically said that he board remedy would dominate and would in effect be exclusive.

But here, there is no similar provision in Section 301, may is the word that Congress used.

They intended to supplement and not to encroach, that is our position.