RAILROAD TRAINMEN v. TERMINAL CO.

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Argument of Neal P. Rutledge

Chief Justice Earl Warren: Number 69, Brotherhood of Railroad Trainmen Et Al., petitioners versus Jacksonville Terminal Company.

Mr. Rutledge.

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

This is another of a long series of cases that have come before this Court with increasing frequency in this century which poses the familiar problem of state's rights on the one hand versus federal control or preemption of economic relations affecting interstate commerce.

This is the second appearance before this Court of this case in the sense of the conduct that is involved.

The prior case came up through the federal court system.

It arises and I will just sketch briefly the factual situation.

It arises out of a long standing strike against the Florida East Coast Railroad which runs in Florida roughly from Jacksonville down to Miami.

The Florida East Coast Railroad is a class 1 railroad covered by the Interstate Commerce Act and the Railway Labor Act.

The strike involved all parties concede is a legal strike arising out of the Railway Labor Act.

It's a strike concerning proposed changes and working conditions, rules and rights of pay, all the procedures of the Railway Labor Act concededly were exhausted.

Now, the three petitioner union, petitioners that are involved in this case are the Brotherhood of Railroad Trainmen, the Order Of Railway Conductors and the Brotherhood of Locomotive Firemen and Enginemen, all unions that represent railroad employees who actually operate trains.

Those unions went on strike against the Florida East Coast Railroad in April of 1966 and within the few weeks following the beginning of that strike, the picketing that was here involved commenced.

The picketing was peaceful and orderly and it went on for a period of only a few hours when it was enjoined in a suit brought by the respondent in this case in the United States District Court in Jacksonville.

That Court issued the temporary restraining order which it subsequently converted into a preliminary injunction.

That injunction was appealed to the United States Court of Appeals for the Fifth Circuit which vacated the injunction in May of 1966.

The respondents then properly filed an application to reinstate the injunction in this Court and this Court expedited the time for filing the petition for cert and reinstated the injunction over the summarizes and set the case down for hearing in October of 1966, at which time, the decision of the Court of Appeals for the Fifth Circuit, the opinion of Chief Judge Tuttle of that Court was affirmed by divided vote, equally divided.

Now, the picketing that is here involved is picketing that concerns for the East Coast certainly and also the respondent, Jacksonville Terminal Company and therefore it is we submit a crucial importance to examine the relationship between those two.

In Jacksonville, the Florida with the -- which is the Northern Terminals of the Florida East Coast.

There is the Jacksonville Terminal Company which is jointly owned by the Florida East Coast Railroad together with the Atlantic Coastline and the Seaboard and the Southern Railways.

Justice Potter Stewart: Mr. Rutledge, if I may ask you to go back just a moment.

The Court of Appeals for the Fifth Circuit set aside the injunction by divided court as I remember it.

Chief Judge Tuttle wrote the opinion for the Court --

Mr. Neal P. Rutledge: That's correct.

Justice Potter Stewart: And was the sole ground for that decision, the Norris-LaGuardia Act, do I read that correctly or --

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

In other words, the holding of that Court as I understand it was that the Norris-LaGuardia Act precluded the injunction in this case because it arose out of and involved a labor dispute.

Justice Potter Stewart: That was my recollection then I just had before.

Mr. Neal P. Rutledge: There were other contentions raised before the Court of Appeals.

Justice Potter Stewart: Yes.

Mr. Neal P. Rutledge: Specifically the contention that we raised here that this is a case arguably subject to the National Labor Relations Act but the Court did not pass on that.

The Jacksonville Terminal Company as I say is owned by the Florida East Coast and its operations are controlled by a document which was approved by the Interstate Commerce Commission, called and operating in guarantee agreement which is in evidence in this case and which in essence is a document which spells out a joint venture by the four owning railroads, whereby, each one is entitled to use without discrimination and own an equal basis all of the facilities and to receive the labor services of the employees of the terminal company.

Operating under this agreement, the Florida East Coast regularly runs its trains under the terminal company and that is the only way that it is able to receive deliveries from other railroads or make deliveries to other railroads at its northern terminals and very significantly on those premises of the Jacksonville Terminal Company.

The FEC regularly and on a regular basis, daily basis receives essential labor services performed for it by the employees of the Jacksonville Terminal Company.

I think the best illustration of that is shown in the record at page 99 where the, Mr. Jennette, the President and General Manager of the Jacksonville Terminal Company formally advises the General Chairman of one of these unions and as follows.

He says, “Jacksonville Terminal Company employees represented by the Order of Railway Telegraphers by expected to perform service toward the Florida East Coast Railway Company in line with their previously assigned duties and you are requested to join with me in seeing that the order of this high court is carried out so that this employees of the terminal company are daily performing labor services for the struck carrier.”

Now, it is significant we submit to examine in detail the nature of the picketing here which is cast in two lights, one by us of course and the other by the respondents.

The respondents throughout their brief and throughout this case and throughout the federal court case have contended that this picketing is secondary picketing whatever that means.

It is significant in this respect however to note that our picketing was limited exclusively to points around the perimeter of the terminal company where either Jacksonville Terminal Company employees reported for work.

In other words, reported to begin their day in which they would be asked to do labor services for this struck carrier or to entrances where employees of connecting carriers would come under the premises either to make delivery to or take delivery from the Florida East Coast Railway and there is one particular crossing, the Denis street crossing which is referred to in here which we did not picket, there is no evidence of our picketing of that crossing.

There was a dirt road next to it that we picketed which was a place for Jacksonville Terminal Company employees came on the premises but the Denis street crossing which was used exclusively by the Atlantic Coastline for movement was not picketed and we submit that this is significant in showing that we were not here going to the Atlantic Coastline Railroad and saying, “look, we want you to stop making deliveries to the FEC and picketing the Atlantic Coastline wherever it operated in order to put pressure on it to stop doing business.”

We were picketing as close as we could to the actual site where work was being performed before the FEC or where deliveries were being made to or taken from the FEC.

Now, under these -- this situation, the federal court in litigation as it proceeded as very rapid form begun in May of 19 -- the picketing actually begun in May, May 5th of 1966 and the Court of Appeals for the Fifth Circuit vacated the injunction.

A matter of weeks later, that same month in May of 1966 and after the injunction was vacated and while the respondent was applying to this Court to reinstate the injunction, the respondent filed the state court suit in the Court of General State Court jurisdiction -- Court of General jurisdiction in Jacksonville.

That Court after hearing testimony over the memorial weekend, May 30th, entered a preliminary injunction.

We sought a writ of prohibition in the Florida Appellate Court contending that state court had no jurisdiction.

That was denied, we came to this Court to petition for cert reviewing the order of the Intermediate Appellate Court and that petition for cert was denied.

Meanwhile, the state court case proceeded on to final hearing, a permanent injunction was entered in July of 1966, that was appealed to the Intermediate Florida Court that injunction was affirmed and the Florida Supreme Court refuse to review it.

The holding of the Florida Court was that the picketing here involved was illegal under Florida State Laws, primarily two Florida statutes.

One, a little Sherman Act, and one, a little Interstate Commerce Act regulating for local Florida business relations and was also illegal under Florida Common Law -- Labor Law which according to the Court makes illegal under Florida Law any secondary boycotts.

Significantly, the Florida state court did not rely on either the Florida statute which regulates public utility labor relations and which provides for compulsory arbitration because the Florida legislature in passing that law had expressly exempted railroads and employees covered by the Railway Labor Act.

Significantly, the Florida Court did not rely on the expressed Florida Statute that regulates labor relations generally in Florida because that statute also expressly exempts that the railroads or any industry airlines covered by the Railway Labor Act and their employees.

Now, the questions that are posed for this Court, initially, the underlying question in this case is whether federal law or state law governs the conduct here involved.

If federal, then the question has to be reached as to whether this conduct is legal or illegal under federal law and in addition, I -- we would submit, the question has to be reached as to whether the Norris-LaGuardia Act applies to a state court which is adjudicating a labor dispute case controlled by federal law.

Is such a Court under those circumstances a Court of the United States covered either expressly by the Norris-LaGuardia Act or is it in any event a Court which must apply the principles of the Norris-LaGuardia because these are the principles of controlling federal law.

If on the other hand this Court should decide that state law applies here, then the question must be presented, be raised, face we submit squarely as to whether or not this is a case which is arguably subject to the exclusive primary jurisdiction of the National Labor Relations Board and that therefore, under the San Diego Building Trade versus Gardner in the Gardner decision and the many progeny of those decisions, the state court lack jurisdiction to even try the case, much less, to enter the injunction.

Underlying the entire case is the contention raised in the trial court, passed upon by the state courts that the conduct involved in this case is protected conduct by the First and the Fourteenth Amendment.

In this regard, it is important to note that the trial court made a finding in this case that there was absolutely no force, violence, treat of violence, mass picketing or any untoward incident of any sort involved in the picketing.

It was peaceful, it was orderly, there were single pickets stationed at various places around a perimeter of miles and there was no kind of violence or blockage of traffic or interference in any way with peace and order of the state.

Petitioners contend that federal law controls here and that that federal law makes the conduct here involved legal and that therefore, the decision below must be reversed and remanded in order that the case be adjudicated in accordance with the controlling principles of federal law.

The problem here is what is and what is not legal picketing in a strike arising out of a Railway Labor Act major dispute.

Which picketing is entirely peaceful and does not entrench on any of the areas of prime state concern of preserving the law and order and peace.

Congress has regulated labor relations in the railroad industry since 1888.

It would we submit be anomalous indeed to have a situation where in interstate and industry generally which has not been regulated by Congress -- where the labor relations have not been regulated by Congress since 19 -- until 1935 and where the type of the regulation is neither so extensive, so detailed or so integrated.

It would be anomalous to say that those labor relations are completely preempted by federal law but that the labor relations in the railroad industry which is directly in interstate commerce not merely affecting it.

That those labor relations have not been preempted and are subject to varying state policies, 50 different policies and particularly was --

Justice Byron R. White: Was this case subject to removal?

Mr. Neal P. Rutledge: It was removed Your Honor to the U.S. District Court where the federal case was pending and was remanded back to the state court.

Justice Byron R. White: On what basis?

Mr. Neal P. Rutledge: On the basis of lack of jurisdiction.

Justice Byron R. White: You challenged that?

Mr. Neal P. Rutledge: We had no way to challenge it Your Honor.

It was not on appeal with the lawyer.

Justice Byron R. White: Oh I see.

Mr. Neal P. Rutledge: And we did seek prohibition against the state court's proceedings and --

Justice Byron R. White: And what was the basis for holding no jurisdiction?

Mr. Neal P. Rutledge: Excuse me?

Justice Byron R. White: What was the basis for there was lack of jurisdiction?

Mr. Neal P. Rutledge: The basis, the contention was that the state court suit was a suit purely to enforce local Florida law and that the federal court even though it had a case involving this identical conduct and in that case allegations concerning the local law were made except that there was no -- no jurisdiction.

Justice Byron R. White: So that federal court decided contrary to what you're urging here is to the applicable law.

Mr. Neal P. Rutledge: The -- no, I don't think that the Court necessarily reached the merits of it.

I think the Court simply looked at the complaint and said, these are the allegations and under these allegations and I have no jurisdiction.

Justice Byron R. White: So that wasn't a good federal question allegation, I guess you --

Mr. Neal P. Rutledge: Excuse me Your Honor?

Justice Byron R. White: It wasn't a good federal question allegation?

Mr. Neal P. Rutledge: Well, the complaint that was filed scrupulously stayed away from federal law and the judge McRae who remanded the case from the federal court back to state courts said he could not anticipate federal questions that might be raised in the outset and there is doctrine of cases to that effect which he relied upon.

We submit that in deciding which law applies here, state or federal that this is again a situation such Mr. Justice Holmes referred to were at page of history is worth a volume or logic and the history here, its quite clear that in -- with passage of the Interstate Commerce Act in the late 1880's and passage of the Sherman Act in the 1890's.

The very kind of conduct that is here involved was subjected to federal control and there are series of cases following enactment of those federal statutes which -- in which rulings were obtained that the type of picketing that is here involved, in other words, picketing, seeking to interrupt an exchange of cars between two railroads was illegal conduct.

The history following those decisions of the passage of the Clayton Act in 1940 and the Norris-LaGuardia Act in 1932, the Railway Labor Act in 1926 and 1932, the Wagner Act and the Taft-Hartley Act and the Landrum-Griffin Act, we submit, shows that Congress has repeatedly taken under consideration whether to make this kind of conduct legal or not legal and it has on a pragmatic basis pass laws which although originally making the kind of conduct here illegal from 1914 or at least from 1932 on legalized this kind of conduct and that the state of Florida cannot by its law make illegal that which Congress in regulating the railroad industry has deliberately made legal.

Justice William J. Brennan: Is there something specific Mr. Rutledge which you say evidences of congressional determination that they shall believe?

Mr. Neal P. Rutledge: Yes Your Honor.

The legislative history of the Clayton Act, the frustration of what the proponents of the Clayton Act felt was its purpose by this Court's decision in the Deering case that then the legislative history of the Norris-LaGuardia Act, then the passage of the Taft-Hartley Act in 1947 in which the legislative colloquy and setout in our brief in which Senator Taft said that with passage of the Clayton and Norris-LaGuardia Act, it became impossible to stop a secondary boycott and that the purpose of Taft-Hartley was to make secondary boycotts in businesses affecting interstate commerce illegal and then the question came up, “well, what about in the railroad industry?”

And the colloquy there was that -- well, through the same situation here, in other words with passage with the Clayton Act and the Norris-LaGuardia Act, secondary boycotts did not become illegal and --

Justice William J. Brennan: That's what I'm trying to get to.

There was explicit reference then to the situation of picketing for the purpose of stopping and interchange of cars between railroads?

Mr. Neal P. Rutledge: No, no Your Honor.

The reference that we cited was a colloquy as to whether the passage of Taft-Hartley regulating type of picketing which could be called secondary, should be applicable to the railroad industry and the railroad employees.

And then there in addition to that, there is legislative history in 1959 as to whether Congress in '59 meant to apply secondary boycotts to railroad workers and we submit that that Congress has had this before.

There is no question that under the decisions of this Court in the Delves case and in the many cases of that era that any kind of picketing that interfered with interchanged railroad cars was illegal as an interference with interstate commerce, is a restraint of trade and there was no problem of the federal power to reach because you were dealing with the railroad industry and that situation was expressly changed with the Clayton Act and the Norris-LaGuardia Act and this Court's decision in the Hudson case we think establishes that fact that the intent of the Clayton Act and the Norris-LaGuardia Act was to change -- was to change the decision of this Court in Duplex theory and in other words, was to adopt the view of the descenters, Mr. Justice Brandeis in the Duplex case so that we say that this has been a matter of a very close federal attention over in Congress for decades and that for the state now to come in and thinker with the balance of economic power that Congress with great difficulty has reached over 50 years, 60 years, will create an intolerable situation particularly when you magnify that 50 times, particularly when you have in this era this large mergers.

Since this case begun for example, the seaboard and the coastline have merged.

There is a merger going on in the Pacific Northwest which will create a railroad system spanning some thousand and thousands of miles and if you have we submit individual state legislatures and individual state courts legislating the balance of economic power in the railroad industry, we submit It'll create chaos.

Justice William J. Brennan: I gather from what I read this morning, there are corresponding mergers on the union side.

Mr. Neal P. Rutledge: That's correct Your Honor, that's correct and as Mr. Justice Frankfurter stated in his descent in the Burley case.

The railroad world is a world unto itself and it is governed by a law, special law and is one that congress with great care has developed and we submit that this is the kind of a case which must be controlled by federal law deriving its source from the many federal statutes, the Clayton Act and Norris-LaGuardia, Railway Labor Act and from the entire scheme of those statutes.

Justice William J. Brennan: But I gather you argue that even if you fail in that argument that nevertheless, sufficiently federal law that Norris-LaGuardia's provision either explicit or the basic ones should be applied to deny state court's any power to issue injunctions in situations.

Mr. Neal P. Rutledge: That's correct Your Honor.

We -- our basic contention in this case is that conduct involved is controlled by federal law and that federal law has deliberately legalized this type of conduct.

Now, we don't concede in this that what we are doing here is a secondary boycott at all.

First of all, the word secondary boycott is a very vague one.

Congress has never used it in any of its labor statutes.

What it means, nobody can say with precision but what it -- what the idea of a secondary boycott is the idea of what happened in the Duplex case.

You have manufacture -- labor union has a dispute with the manufacturer, he sells to a costumer a hundred miles away and if you go pick up the costumer in order to keep them from doing business with the prime person, that's a secondary boycott, we don't have that here.

Here, we were picketing as close as we possibly could come without trespassing to the actual place where work was being performed for the prime contractor and therefore we say this is primary conduct and not secondary but even if its secondary --

Justice Potter Stewart: Yes, suppose you were also picketing up the whole length of the line of the Florida East Coast --

Mr. Neal P. Rutledge: We were picketing South of Jacksonville sir.

Justice Potter Stewart: All the way along the line?

Mr. Neal P. Rutledge: That's correct.

Justice Potter Stewart: And there has been no injunction of that activity?

Mr. Neal P. Rutledge: Yes Your Honor, we faced injunctions all up and down the line and we've had litigation which is cited in our brief in which the state courts down in Miami have accepted that this -- that they don't have any jurisdiction but the state court in Jacksonville refused to follow the (Inaudible) of their sister Court.

Justice Potter Stewart: But that was -- there was no claim of secondary work on --

Mr. Neal P. Rutledge: Yes, there was a claim.

Justice Potter Stewart: There was?

Mr. Neal P. Rutledge: That's in the brand, that's the case cited in our brief, its for Brower County Port Authority versus Order of Railway Telegraphers.

Its not reported and since it was a trial in Florida trial court's decision, its only reported in the LRRM but it appears on page IV or brief.

So that -- and there was of course picketing at Cape Kennedy which was enjoined at the instance of the National Labor Relations Board.

Thank you Your Honor.

Chief Justice Earl Warren: Mr. Lyons.

Argument of Dennis G. Lyons

Mr. Dennis G. Lyons: Mr. Chief Justice, may it please the Court.

With respect to the facts of this matter, there are three factual questions to which I would like to speak a little further than counsel for the petitioners has.

Those three questions are, first, what goes on in the terminal?

Second, what was the conduct of the petitioners?

Third, what the effect of that conduct?

The Jacksonville Terminal, its name rather is rather a misnomer.

The Jacksonville Terminal is not simply a terminal, a place where train movement stop.

It is primarily a place where train movements go through.

The principle main line of the Atlantic Coastline Railroad is this line here, this blue line coming down going through the terminal properly which is shown in green and exiting here into the south being shown in blue.

One of the principle main lines of the seaboard railroad is this line coming through here in this orange line coming from the north or from Savannah and going through the terminal here and exiting here eventually going to the south.

The terminal stands at fort the main lines of the railroads that serve the state of Florida.

If you cut of the terminal due to a very substantial extent cut off all rail service to and from peninsular Florida.

Florida is a peninsula, there is basically one way of getting into it by land from the north and accordingly the State of Florida is highly vulnerable to a cutting off of the Jacksonville Terminal.

We've heard a great deal of talk about the work done for the FEC within the terminal.

To put into perspective, the FEC uses the terminal in two ways.

In one way, its freight trains, its freight cars are interchanged.

This cars are brought across the bridge across the Saint John's river, so-called the cluster bridge up from the FEC yard which are down about another 12 miles to the south and they are brought here by their crews and in various places around here if they meet the carriers to whom they are to be delivered and the delivery is made, similarly in the pick up, the cars are brought into the terminal or elsewhere around the perimeters of the terminal and an interchange takes place and the cars are brought back down.

Only 30% of the interchange movements within the terminal property or using the terminal facilities are FEC connected.

So in one side, we have all these three movements which are for the account of the none struck carriers, the seaboard, the coastline, the southern terminal company itself, none of which has any labor dispute with its employees.

We also have the interchanges which do involve the handling of the cars from one railroad to another, only 30% of those are for the account of the FEC.

We also have or used to have some FEC passenger train activity within the terminal.

The other carriers run 42 trains a day, passenger trains through the terminal, the none struck companies.

The FEC run two cares, two passenger trains a day into the terminal and in that connection they receive the same terminal services, the selling of tickets, the washing of the cars that the other none struck carriers received.

These passenger movements accounted for less than 1% of the total passenger cars handled through the terminal.

Incidentally, after the making of the record in this case but there is no dispute about it, the FEC received permission to suspend all passenger service and so according to them, there is currently no use whatsoever of the terminal by the FEC's passenger trains.

Now, as to the conduct of the petitioners, what did this picketing consist of?

The picketing consisted as the trial court found of the placing of pickets at every entrance to the terminal, every entrance by rail, by road or on foot.

The trial court's finding is broad enough to cover the entrance of Denis Street for railways there where only main line movements of the coastline exit and enter.

It is undisputed that there was picketing at A. Corn Street which is right here where only seaboard mainline movements enter.

As you see, we need to distinguish this, a copy of this map at page 9 of our brief of the seaboard's terminal movement would have to come in this way or come across from its yards and come in this way of this line cuts right across the terminal and its used by the mainline trains and that line was cut.

The picket signs did not simply say please don't handle FEC cars.

The picket signs contained two exhortations on them.

The first exhortations on those signs was do not cross and that exhortation was lived up to.

The railroad men honored that picket sign, they did not cross the picket line.

The condition and it was stated later on and indeed stated in papers filed in this Court by counsel was that the solution to the matter was the placing of an embargo on the FEC by the other carriers, in other words, a refusal to handle their cars but the appeal that the pickets made to the employees in order to make their employers hurt enough to do that was do not cross, do not go within the terminal.

The effect of this picketing as the trial court found on very ample evidence was to threaten the economic strangulation of the state of Florida.

95% of the U.S. mail passing to and from Florida comes through the terminal.

If the terminal were shutdown for as much as one day, it would six days to catch up on the U.S. mail.

A very substantial portion of the citrus crop and of the other basic products that Florida exports, the phosphates from the fields in Florida have to pass through the terminal if they are going to move by rail and rail is one of their primary means of moving.

There are numerous industries that have settled in Jacksonville either directly adjacent to the terminal property or on spurs leading off from the terminal property where cars to get to them would have to go through the terminal property which would be cut off from all rail access if the terminal were shutdown.

So we have here -- I don't purport to give an exhaustive definition of secondary picketing but I think if anything is secondary picketing, the conduct here was secondary picketing.

It was an appeal by these employees of the FEC and former employees of the FEC, two other carriers employees to induce them to stop work not to go within the terminal until such time as their employers saw fit to stop doing business with the FEC.

Now, at appropriate time, the terminal company which is the respondent here and in the federal case the other none struck carriers sued both in the federals courts and after a finding by the Fifth Circuit that there was no federal court jurisdiction sued in the state court for an injunction against this conduct.

I might say that while the basis if remand to speak to the question that Mr. Justice White raised.

One of the basis on which the remand from the state court, from the federal court back to the state court of this action took place was the finding of he Fifth Circuit that there was no federal court jurisdiction in that the Norris-LaGuardia Act precluded federal court jurisdiction and that was one of the basis for the remand by judge McRae.

Justice John M. Harlan: (Inaudible)

Mr. Dennis G. Lyons: I suspect not Your Honor but that was the -- we are faced also with the fact that there was no jurisdiction in the federal court as he viewed at that time and that the complaint was brought solely under state law which was the alternate basis.

Justice John M. Harlan: I thought what was here, what's in question here is the judgment here that we affirm findings of trial court.

Mr. Dennis G. Lyons: The judgment was the judgment of the Fifth Circuit to the effect that the preliminary injunction out of the federal court of the District Court had to be reversed because there is no jurisdiction in the federal courts by reason of Norris-LaGuardia.

That was the Fifth Circuit judgment which was a judgment in favor of the present petitioners which was affirmed.

Justice John M. Harlan: Same facts?

Mr. Dennis G. Lyons: On the same facts, yes Your Honor.

So it has been held that there is no jurisdiction in the federal courts by reason of Norris-LaGuardia.

Now, whether that is binding very purposes in this present case, being afforded for decision is a matter.

This case comes before the Court in this posture.

There is a state court injunction granted under state law.

Clearly no question can be raised with respect to the issues of state law in this Court.

The only question is whether there are some basis in the federal law either in the federal statutes or the federal constitution that precludes the state courts from doing what they did.

Now, the petitioners mentioned five or six basis, I'll try and take them up in order.

Their most serious basis or at least one that they spend the most time on is that by reason of the Railway Labor Act and certain other statutes regulating railway labor relations, they refer Boiler Inspection Act and the Safety Appliance Act which don't seem to have much to do with the case but by reasons of this federal railway labor statutes, there is a supersession of state law and of state court jurisdiction here and they rely for analogy on this Court's ruling under the Taft-Hartley Act, whereas, we know in a long line of case after the passage of the Taft-Hartley and after particularly the addition of Section 8 (b) (4) to the Labor Management Relations Act in 1947, there was a long line of cases in this Court holding that the states could not enjoin conduct which was either arguably prohibited by Section 8 (b) or arguably protected by Section 7.

Our basic contention is that this whole line of argument is a false analogy.

There is simply not a comparable situation here between the Taft-Hartley Act and the Railway Labor Act.

Under the Taft-Hartley Act, you have a detailed code of the sort of conduct that is addressed against none struck employers that is prohibited.

That code is found in Section 8 (b) (4) of the Act, a very lengthy, a very involved section.

It is also found in Section 8 (e) of the Act.

There is another side to that coin.

There is Section 7 of the Act which to a great extent says that conduct which is not prohibited by Section 8 (b) is protected under Section 7.

besides that very detailed substantive code, there is also an administrative agency which is charged with the duty of adjudicating matters under that code and which has the duty of drawing the dividing line in the place where Congress intended it.

There is nothing like that under the Railway Labor Act.

There is no regulation whatsoever -- no regulation whatsoever under the Railway Labor Act of the sort of weapons that a union can use against management and certainly none whatsoever of the regulation of the weapons that you can use against third parties to labor dispute.

And while there are certain administrative agencies that had been set up by Congress under the Railway Labor Act, the adjustment board and the mediation board and the AD HOC Presidential Board under Section 10, there is no administrative agency set up under that Act which is charged with the duty of passing on whether specific union weapons or specific management weapons of self-help are protected or prohibited.

This is an area in which Congress simply has not moved.

And our contention is that justice in the case that was decided by the Court a few weeks ago involving the state full approval of this that there is room for concurrent regulation here both by the states and by the federal government in an area where the federal power has not specifically asserted itself.

And here, the federal power has not asserted itself by regulating the sort of weapons that the unions can use and particularly the sort of weapons that they can use against third parties.

Justice Hugo L. Black: Has the state passed a law against picketing?

Mr. Dennis G. Lyons: There is no general Law against picketing in the state of Florida Your Honor.

This is not a case like Thornhill were they simply said that you shall not picket.

The --

Justice Hugo L. Black: Well, have they passed one that says they can?

Mr. Dennis G. Lyons: I don't under -- I believe that there's a little --

Justice Hugo L. Black: And is there prior to law, I understand you're moving towards the court of the law, is the one which provides that railroads can picket or employees can picket?

Mr. Dennis G. Lyons: There is a little Taft-Hartley Act or there is a State Labor Relations Act in Florida which gives workers the right to engage in concerted activities.

Justice Hugo L. Black: Picketing?

Mr. Dennis G. Lyons: Yes, it would cover that.

The -- it does not apply directly to workers in the railway labor field.

The basis of the injunction here was the state common law against secondary boycotting.

This was not -- the injunction was not passed against the picketing as such, it was passed against it because it violated state substantive law.

Justice Potter Stewart: The -- what were the terms of the injunction?

Did it -- did it enjoin all picketing at every entrance of the terminal?

Mr. Dennis G. Lyons: No, there were exemptions.

The first place curiously enough the petitioners did not picket at the main rail entrance used by the Florida East Coast Railroad.

The picketing is permitted at the reserve gate for the use of the FEC employees.

There has been a reserve gate at the terminal for years and the injunction was limited and did not cover that entrance and they are free to picket there at which post free to picket at the main rail entrance and of course free to picket up and down the line in Eastern Florida where the FEC runs.

Now, my argument of course would have a fallacy in it if we could deduce a basic intention by Congress affirmatively to sanction secondary picketing on the railroads.

In other words, if we could say that Congress wanted to protect this sort of conduct.

The fact that it hadn't set up an administrative regime which was designed to regulate it would not of course support the state court injunction.

Justice Hugo L. Black: Has one of the issues between you and your adversary whether this was secondary picketing?

Mr. Dennis G. Lyons: I think that's an issue, I'm not sure it's a disputative issue.

I think -- I feel in my case is easier if it was and I'm sure my brother feels that his case is easier if it was not.

Just in terms of the -- I suppose the fact that cases like the Caboni case back in the 1940's seem to hold that states have a very definite and very recognizable interest with respect to preventing the extension of labor disputes to persons who are not party list to them through the application of their antitrust laws such as was done here or through the application of other valid state statutes and I think that does affect the issues though I would not say that it was disputative of them.

We contend that there is absolutely no evidence that congress ever intended affirmatively to sanction the use of the secondary boycott on the railroad industry.

The petitioners as I understand it point to approximately four statutes.

The Clayton Act, first, under which it was held that the secondary boycott was not lawful.

The Norris-LaGuardia Act which in its terms only regulates the jurisdiction of the federal courts.

The third and to me the most amazing is their reference to the legislative history of the Taft-Hartley Act in which they appear to contend that Congress declined to outlaw the secondary boycott on the railroads because they thought that the secondary boycott was a good thing.

The entire colloquy and we printed starting at around page 45 of our brief and it's a discussion by Senator Taft.

He begins by saying in this bill we prohibit secondary boycotts all over the country and then one of the other Senators raised a question and said, “well, what about the railroads, why do you not prohibit the secondary boycott on the railroads?”

And the discussion quoted is that railway workers are not that engaging in such practices and that there was no abuse here and no need for Congress to alter the scheme of the Labor Act in relation to --

Justice William O. Douglas: What page is that?

What page?

Mr. Dennis G. Lyons: We quote that on our brief starting at page 45.

Justice William O. Douglas: Thank you.

Mr. Dennis G. Lyons: That's precisely at page 48, he said, “we saw no reason to change that situation” Mr. Senator Taft speaking, because there were no abuses which had a reason in connection with the operation of the Railway Labor Act.

Indeed, this is really a unique case.

There is really no trusting for a situation like this in which there is a picketing of the none struck carriers on an interchange point.

Chief Justice Earl Warren: Recess.

Mr. Lyons, you may continue your argument.

Mr. Dennis G. Lyons: Thank you Your Honor.

Before recess, we were developing the point that Congress never affirmatively sanctioned the use of secondary conduct against none struck carriers by rail unions.

And we discussed the history of the Taft-Hartley Act.

The paradox in what the petitioners are contending for if Congress through some process of silence or some process of silent approval of this form of extended self-help against third parties made this conduct lawful in this context, we would have the paradoxical situation in which it would be unlawful to engage in this conduct in an industry regulated under the Taft-Hartley Act, a toy factory, a candy factory, any factory producing goods for interstate commerce in the jurisdictional minimum but it would not be unlawful to practice this conduct against a railroad, against an instrumentality of interstate commerce against one of the more vital and basic of American industries.

I think really the point needs no further development.

There is no evidence whatsoever that Congress ever put its stamp of approval on this conduct.

Congress happened not to regulate this conduct.

It happened not to provide an administrative agency for its regulation but that does not mean under these circumstances that it meant to leave it completely unregulated.

Now, there are three further basis of contention that that petitioners make.

They contend first that the Norris-LaGuardia Act, second, that the Taft-Hartley Act and third, that the Fourteenth Amendment preclude the injunction that was granted here by the state courts.

I will give our responses to those briefly because we frankly submit that this are make weight contentions.

Justice Byron R. White: Is this the same as saying -- is it -- are you just saying here in addition that federal law doesn't control?

Mr. Dennis G. Lyons: Yes, this is an additional basis on which it doesn't control the other statutes that the petitioners bring in with on somewhat basis.

Justice Byron R. White: But couldn't the -- if you maybe right in all those points you just made and the federal law can still control and you still have the question left to what the federal law is.

Mr. Dennis G. Lyons: Well, you would.

The -- well, their basis, the various basis that we're submitting that we have submitted or negations of the applicability of federal law in any basis.

We contend that it doesn't apply because of the Railway Labor Act and it doesn't apply because of the Taft-Hartley Act.

Justice Byron R. White: Well, would you say that -- would say that if the Court decided the federal law does govern in this case that you'd lost the case?

Mr. Dennis G. Lyons: I wouldn't so submit Your Honor because the -- that would then for one thing throw open this questions, these additional questions.

First, whether the Norris-LaGuardia Act would have to be applied by the state court in applying the federal court.

Second, whether the Norris-LaGuardia Act prohibits this injunction and the only holding on this is the four to four decisions by this Court which of course is not a binding precedent.

On that we'd submit everything that we said before and that would -- those would be our submissions even if the federal law did apply, I don't think it necessarily means that the state court judgment will have a third --

Justice Potter Stewart: Under your third question would be what is the substantive federal law?

Mr. Dennis G. Lyons: Yes, and that could very well be as we contended in the other case where we sought an injunction under the Railway Labor Act and the Interstate Commerce Act that those statutes which are aimed at minimizing the conflict on the railroads and trying to confine industrial disputes.

Certainly never contemplated that there'd be any secondary boycott against a none struck carrier, just to person who never had advantage of the processes of the Railway Labor Act and we would also contend for the reasons that we contended before that the Norris-LaGuardia Act would not apply even if this case were govern by federal law.

If it's governed by state law under state court, we submit there is no basis whatsoever for saying that it applies.

There is a somewhat different argument that the petitioners make.

It develops that the petitioners that the union basically did the picketing, the Brotherhood of Railroad Trainmen, it also represents bus drivers.

7% of its membership are bus drivers and the bus drivers of course had nothing to do with this dispute and they are not in the lodges, they were involved in this picketing but the petitioners contend that it is therefore arguable that the National Labor Relations Board has jurisdiction.

Now, they further contend that it does not have jurisdiction that is our contention too.

Nobody contends that the National Labor Relations Board has jurisdiction in this case.

But they submit that because 7% of their membership all fund these other lodges or bus drivers are not under the Railway Labor Act that therefore as I understand it in every case involving this large union that there is an arguable applicability of the Taft-Hartley Act and that accordingly, the state courts would have to state their hand and I will assume also that the agency is set up under the Railway Labor Act, the mediation board and the adjustment board would be in the same posture.

We think that to state that sort of contention is really to answer it that the Courts have generally looked to the particular aspect of the union and the particular aspect of the work that's involved.

This is a dispute wholly within the railroad union, railroad industry.

The Brotherhoods are predominantly railroad brotherhoods.

They are predominantly -- their lodges were entirely railroad workers and the employers are all common carriers, we submit there is no basis arguable or otherwise for the applicability of Taft-Hartley.

On the First Amendment applicability, our contention is that this is not a state law against picketing, this is a state law against specific abuses and the injunction was so limited.

I think I -- I just well just to take a moment to see what it is that the petitioners are contending for in this case before this Court this morning.

If they prevail this morning, they will have established that there is no agency of government federal, state or local, traditional or administrative that can regulate their conduct then applying this measure, these economic warfare measures to this none struck carriers.

Let me recap, it is common ground I believe that none of the agencies set up under the Railway Labor Act have jurisdiction.

This is not a case for the adjustment board or for the mediation board.

Both parties agreed that the labor board has no jurisdiction.

This Court in its four to four decision in 1966 held that federal courts have no jurisdiction.

That leaves -- that was the sole basis on which the petitioners conduct can be regulated or if it is not applicable left wholly unregulated the state courts and it is that last avenue of relief against this action which would tie up the entire economy of Florida which would be unlawful if practiced in any other industry.

It is that last avenue of relief to these none struck carriers that the petitioners are trying to close it.

Thank you Your Honors.

Chief Justice Earl Warren: Mr. Rutledge.

Rebuttal of Neal P. Rutledge

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

Chief Justice Earl Warren: Would you mind saying a word in response to this last point that counsel has made.

Mr. Neal P. Rutledge: To the point Your Honor that of the --

Chief Justice Earl Warren: That would --

Mr. Neal P. Rutledge: That there is no authority --

Chief Justice Earl Warren: -- no man's land with no regulation of any kind.

Mr. Neal P. Rutledge: Your Honor, the -- our response to that is that what Congress has deliberately left free to competing economic forces, the states cannot move in an outlaw and as Senator Taft stated and quoted, “there have not been abuses in the railroad industry.”

When there are abuses, it will be time enough and I don't think it would take very long for Congress to act, to make Section 8 (b) (4) of Taft-Hartley applicable to railroad unions.

That's been proposed, it could be passed in a matter of days by Congress and Congress has acted on a -- in situations in the railroad industry where national disputes have occurred.

It set up the -- just recently the unprecedented situation of compulsory arbitration on working conditions prospectively.

So we say that this certainly isn't a matter that's beyond completely all regulation and the Congress has left this kind of thing free and that Congress can act if there is an abuse.

I would like to say -- point out also in rebuttal that the decree in answer to question of -- for Mr. Justice Stewart, counsel has stated that the decree here did not prohibit all picketing here and we can still picket at the reserve gate, we can and the decree does accept that.

The evidence is also admitted by stipulation that that reserve gate is not enforced.

People go in there who are not FEC people, FEC people go in other places so the reserve gate we say is in a loser issue here.

The decree does prevent us from picketing where the FEC comes on there so the decree here admitted we submit must be construed as prohibiting both primary and secondary if you can see that this is secondary and we don't.

Picketing now, in answer to question from Mr. Justice Black, counsel for respondent stated that it was not determinative here whether this picketing be deemed secondary or primary and we agree that.

In other words, what counsel for respondent is saying by his answer to that question is that the states have power to regulate peaceful orderly picketing in the railroad industry regardless of whether it's secondary or not secondary.

So we say the whole question here about whether this picketing is secondary or not is really a question only designed to appeal to the emotions.

In short, we say that if this picketing is to be called secondary, its not outlawed by the controlling law.

We say it is not secondary and we say that regardless of whether you call it secondary or not, it certainly is not irresponsible conduct.

It is conduct which was designed by us to limit as closely as we could the effect of this peaceful economic action to the party that we have to dispute with the FEC and in that regard, I would like to correct if I may what was referred to in respondent's brief as an inadvertent implication on part.

It was not an inadvertent implication.

Footnote 12 page 10 of the brief, respondent says that we inadvertently imply that we had proposed ways to limit this picketing to make adjustments in other words so that this picketing would be limited to only FEC movement.

Now, it should be remembered that the picketing begun in the early morning hours and that within hours after that, everybody responsibly concerned with it was in Court trying a federal court case on a TRO and the TRO issued that afternoon so that the picketing here only went on a few hours and at page 264, when that injunction was lifted, we stated on the record in this case our willingness to make any kind of adjustment possible and the railroad stated that it was possible to do so.

Thank you.