LONGSHOREMEN v. ARIADNE CO.
Legal provision: National Labor Relations, as amended
Argument of Seymour M. Waldman
Chief Justice Warren E. Burger: Mr. Waldman in 231 International Longshoremen against the Ariadne Shipping Co.
Mr. Waldman you may proceed whenever you're ready.
Mr. Seymour M. Waldman: Mr. Chief Justice and may it please the Court.
This case brings up for review an order of the District Court of Appeals in the State of Florida which affirms a permanent injunction against picketing.
The picketing was of the kind that is generally known as area standards picketing.
By which we mean that a union which does not necessarily represent the employees in a particular establishment than in this case the union did not, but which does represent employees engaged in the same work in other establishments in the area pickets to publicize the failure of the employer to meet the wage standards or other employment conditions under which his own employees are being employed.
Chief Justice Warren E. Burger: Does that claim depend upon whether this record does or does not show the participation in Longshoremen work by American nationals not part of the ship's crew?
Mr. Seymour M. Waldman: No, no.
We take the position Your Honor that record is quite clear and that there is no evidence to the contrary that there was participation by American nationals not part of the ship's crew, but we take the alternative condition -- alternative position that have the facts been otherwise and had the record been quite different from what it is and had the record disclosed which it did not, that all of the longshore work but admittedly longshore work was performed by members of the ship's crew than the National Labor Relations Board would still have exclusive jurisdiction and this Court's cases as I shall develop later dealing solely with shipboard relations, labor relations between the crew acting qua crew and the vessel have no applicability to longshore work and do not withdraw jurisdiction from the National Labor Relations Board over longshore labor disputes resulting out of operations wholly within the territorial confines of the United States.
Chief Justice Warren E. Burger: In other words, foreign-flag ship can't bring its own longshoremen as part of the ship's company and escape the reach of the board?
Mr. Seymour M. Waldman: That's correct Your Honor.
As I shall develop, it is no different from any foreign employer employing aliens wholly within the geographical jurisdiction of the United States to sift the Fiat automobile manufacturing company of Italy where to establish an automobile plant then Detroit and try to staff it wholly with Italian nationals as suppose is conceivable.
We have no question and that is what we urge upon this Court that in that situation, that operation would be subject to the federal labor laws as well as other federal regulatory laws, and we are in effect no different.
This is work not traditionally seamen's work.
This is work performed as much on shore as on ship.
It is work wholly within the geographical confines and the considerations which impel this Court to hold in the three cases relied upon by the Florida courts that shipboard labor relations are not within the jurisdiction of the labor board are totally absent here.
Justice Potter Stewart: There maybe one remaining issue may their not which you assume to be resolved and assume to be a fact, and that is that longshoremen's work is involved here.
Now, as I understand as they claim these ships carry no freight, no cargo, no automobiles anymore, and that what's involved here is simply carrying passenger suitcases onboard, didn't --
Mr. Seymour M. Waldman: Well --
Justice Potter Stewart: May there not be an issue as to whether or not that is traditionally work of the crew, the purser staff and so on of ship or whether it is necessarily longshoreman's --
Mr. Seymour M. Waldman: Well, Your Honor again, I have got to distinguish between what the record shows and what they contend.
And again, I have to make an alternative contention.
I have to say that on the basis of this record that point does not arise, but were the record to be otherwise, we would still take sharp issue with them.
First, the record does show and it is the only testimony in the record that there was loading of cargo, automobiles, etcetera.
They claim the contrary; there is no evidence to that effect in the record.
Second of all however, they admit that there was the loading and unloading of baggage and there was the loading aboard of ship stores.
There is actually other work such as handling of lines that is traditionally longshore work and we pointed out particularly in our reply brief that this is work that the National Labor Relations Board has already traditionally and as a matter of it's rulings held to be longshore work, and it has done that on the basis of the industrial practice that prevails in this country.
We have cited for example the NLRB certification of the longshore unit in the port of New York, which is of course by far the largest port in the nation, and that certification in express terms applies to the loading of cargo including baggage and ship stores.
We have cited the case on the West Coast in which the board assumed jurisdiction over a jurisdictional dispute under Section 10 (k) involving expressly the handling of passenger baggage aboard a foreign cruise ship.
And again on the basis of industrial practice where this is longshore work and is historically longshore work awarded this work to the employees represented by the Longshoremen's Union on the West Coast.
Justice Potter Stewart: And you say line handling?
Line handling is traditionally longshore work?
Mr. Seymour M. Waldman: Yes sir, yes.
Justice Potter Stewart: Well, I just couldn't physically be -- have been done by members of the crew because they couldn't get back aboard?
Mr. Seymour M. Waldman: Certainly as a ship is coming in unless they are going to jump ashore before the lines are cast ashore that has to be shore-based employees working is, and what's performed here and was I think here, this is where factually their wrong.
It was performed by shore-based terminal labor.
Actually, there is another record in another case which so indicates on these vessels and that is why we say, Yes, granted the facts as they say, they're still wrong but the facts are not as they say.
And we would say Your Honor that if there is any real issue as to whether or not this work which was admittedly performed as longshore work, that is for the labor board to determine just as the labor board must determine threshold jurisdictional questions such as the status of employees, as supervisors or “employees” within the meaning of act whether an organization is a labor organization within the meaning of the act.
Otherwise, you have opened up the possibility of a state court, perhaps a hostile state court fashioning its findings in such a way as to exclude from the National Labor Relations Board that jurisdiction which Congress intended it to have.
Justice Potter Stewart: Well, a mere claim however doesn't take jurisdiction away from the Courts, does it?
I mean that would violate everything that the Incres case and its companion's stand point which is the labor board doesn't have any jurisdiction whatsoever over the seagoing crew of foreign-flag ships.
Mr. Seymour M. Waldman: That's correct Your Honor.
Justice Potter Stewart: And I think so far as the other crew of the ships.
Mr. Seymour M. Waldman: That's correct.
Justice Potter Stewart: And the mere claim that they are doing some sort of work that somewhere in the United States is done by somebody else except for the cruise ships doesn't take all jurisdiction away from the Courts I should say.
Mr. Seymour M. Waldman: Well, of course, then you get to the question of who decides it if the claim is well found.
At some point, you're starting off with the claim.
Somebody has got to make a claim first in some form before they can be proof for deuced.
Let's assume the claim is made that this crew is going inland several miles and picking up ship supplies out of a warehouse and doing work there and that has created a jurisdictional dispute, a labor dispute because this is traditionally teams to work under the teams just contract for that very establishment, and there's a dispute that arises then, a claim is made.
I would have to say Your Honor that I would think that would be for the labor board to determine in the first instance.
I suppose you can get frivolous claims, but I don't read the Court's decisions and Incres and Sociedad Nacional to say that when there is a dispute about the nature of the work whether it seamen's work or otherwise, that is a dispute to be determined judicially.
I don't think those cases pose that question.
Justice Potter Stewart: There was no such thing.
Mr. Seymour M. Waldman: That's right Your Honor and I don't think the question has reached the Court but the answer is how I would say it would be determined which I emphasize is not presented in this case.
Justice Byron R. White: What do you claim that the crew is doing longshoremen's work or that --
Mr. Seymour M. Waldman: No.
Justice Byron R. White: -- some independent shore based crew?
Mr. Seymour M. Waldman: Both.
The record Your Honor and I emphasize the only record in this case of any evidence is the transcript of the hearing on the application for a temporary restraining order held three days after commencement of this action at which the respondents here as plaintiffs introduce no evidence whatsoever but as to which there was a single witness on this issue called by the union and the union's president who testified three things in essence and it's really only kicks up two pages in the record.
First, that the signs were protesting or publicizing substandard wages; second, that the kind of work which was involved which they were protesting was longshore work, loading cargo, loading automobile, the ship stores, --
Justice Byron R. White: Do you claim that even if it was the ship based crew that was doing this work that there is preemption?
Mr. Seymour M. Waldman: Yes Your Honor, we do.
But the third point that I am --
Justice Byron R. White: The side of Incres in those cases?
Mr. Seymour M. Waldman: Yes Your Honor.
If I may just say the third --
Justice Byron R. White: And how about the third point?
Mr. Seymour M. Waldman: The third point he said was, he was asked who is doing this now and he said partly the crew and partly American residents hired locally and specially for the occasion.
So that you -- now, the record does not disclose what combination these two groups worked out in performing it whether there was any functional division, how many they were of one group and how many of the other obviously we know in the nature of the case that handling of ships line, shore-based had to be done by employees other than the ship's crew.
There is no indication at all as to the functional commingling that was involved there, but there is in the record without contradiction that the two groups were involved.
Now after -- the union threw out of course contended both that the issues were preempted by the grant of exclusive jurisdiction to the National Labor Relations Board and that they were abridgements involved in any attempt to enjoin this conduct of the union's rights under the First and Fourteenth Amendment to publicize its disputes, and these issues were preserved for argued throughout.
After a temporary restraining order was issued on the basis of the fact that this work performed for a foreign-flag vessel and after the trial court in the hearing ruled that there was no abridgment of free speech because this was a violative of Florida law, albeit, there was no evidence or claim of violence or obstructionism.
No attribution in evidence or in the record at all of any particular objective to the union's picketing let alone any illegal objective.
No indication by the Court as to what state rule of law, statutory or judge made was violated by the objective or type of picketing involved, merely the naked assertion that this was in violation of state law on the basis of this the Court rejected the free speech argument as well as the preemption contention raised by the union issued a temporary restraining order.
On interlocutory appeal raising the preemption question, the District Court of Appeal the firm the plaintiffs respondents here went back to the trial court, moved for summary judgment without any affidavits.
The union opposed on the grounds that there were factual issues to be developed.
I assume the factual issues of Justice Stewart and Justice White have raised in the questioning here.
The trial judge granted the motion for summary judgment.
Again, we are granted a permanent injunction that was affirmed by the District Court of Appeals.
We are here now on a record that doesn't show a scintilla of evidence, not a line of testimony by a single witness on behalf of plaintiffs as to which a permanent injunction is now outstanding against any area standard to picketing, any substandard wage picketing on the part of this union that I --
Justice Byron R. White: Say do you -- do you challenge the injunction in its entirety?
Mr. Seymour M. Waldman: No Your Honor.
There are provisions of the injunction that relate to so called safety signs which at the time were also being displayed by the union.
After the preliminary hearings and prior to the -- no, I'm sorry.
After the hearings in the trial court, after the grant of the permanent injunction but before the appeal to the Florida Appellate Courts, the union expressly abandoned its objections to that portion of the injunction dealing with safety signs because the federal authorities have tightened safety regulations on foreign cruise ships touching American ports as well domestic ships and the union regard that this no longer important.
Justice Byron R. White: What paragraph of the injunction that are considered to be valid?
Mr. Seymour M. Waldman: One and two.
Justice Byron R. White: One and two, and you challenge both three and four?
Mr. Seymour M. Waldman: Well, four as I read under some ambiguity, as I read the opinion of the District Court of Appeals, I think the District Court of Appeals intended to annul paragraph four in it's entirety, although that's not entirely clear.
So, it is really paragraph three of the numbered paragraphs that is an issue.
Justice Byron R. White: What if paragraph four was not annulled?
Mr. Seymour M. Waldman: A fortiori, we would challenge that, that's even broader than paragraph three.
And we would also challenge the preliminary unnumbered paragraphs which appear to be decreedal in nature, though they don't appear to be enjoining the union for many conduct.
But it is primarily paragraph three that is that issue.
Now on the preemption point, it is our contention essentially that the considerations which led to this Court's decision in the seamen's cases have no bearing here.
In those cases, this Court was persuaded by not the possibility of a conflict with foreign law, foreign regulations, international treaties to which this nation was a party, but the inevitability of such conflict.
The relations between seamen and the ship necessarily continue wherever the ship goes throughout the high seas and that any port of call including ports in the United States and ports in the nation of registry.
They're kind in the nature of the case to be only a single set of laws governing this unitary relationship, a single union representing the crew.
You can't have separate unions depending on which port of the ship is in it any one moment, etcetera.
And for these reasons, there has developed the law of the flag and the principle generally that as a pragmatic expedient that there being one law that must predominate the law of the flag will be that law, and it was this principle in effect that court invoked in the seamen's cases in saying that although the language of the National Labor Relations Act maybe sufficiently broad to cover this type of dispute absent any clearer expression of congressional intent, the Court would not assume that Congress intended to very so the general relations among the nations.
Now this just doesn't apply at all when there is a longshore dispute even if exclusively the ship's crew were involved in performing the work.
Justice Byron R. White: Let me get it straight you -- I thought you said a moment ago that this picketing was as far as this record shows on the evidence was directed in both the ship's crew --
Mr. Seymour M. Waldman: That's correct.
Justice Byron R. White: -- and third party longshoremen work?
Mr. Seymour M. Waldman: Correct.
Justice Byron R. White: Both.
Mr. Seymour M. Waldman: Your Honor --
Justice Byron R. White: Well then, you don't agree Mr. Waldman or maybe I misread this footnote six in the Government's brief.
The Government's brief --
Mr. Seymour M. Waldman: Insofar --
Justice Byron R. White: Says here, “American longshoremen will locally hire to do the longshore work and the union was seeking to carry its dispute to them.”
Mr. Seymour M. Waldman: Well, that is correct partially.
We were objecting to whoever was performing the longshore work and on this record, it was two classes of people.
Insofar as this footnote indicates that we were only -- we might have only been objecting to the work insofar as performed only by --
Justice Byron R. White: But we already answered this Mr. Waldman, but let me ask it again?
Mr. Seymour M. Waldman: Yes sir.
Justice Byron R. White: Even if the ship's crew were the only ones doing this longshore work --
Mr. Seymour M. Waldman: Correct.
Justice Byron R. White: It'd still be here with us?
Mr. Seymour M. Waldman: Absolutely.
Justice Byron R. White: All right.
Mr. Seymour M. Waldman: Absolutely.
Justice Byron R. White: Let's assume you're wrong on that, that and it was only the ship's crew, there is no preemption on your inquest in those cases.
Assume that that is the law, then, what would should be the result if both the ship's crew and third parties are being picketed?
Mr. Seymour M. Waldman: Then it should go to the National Labor Relations Board to determine how the combined set of facts and the considerations that apply to the combined set of facts yield a result consonant with the terms of the act and this Court's decisions beginning --
Justice Byron R. White: Well Mr. Waldman for that extent, then do you-- you do agree with this sentence in Footnote 6 to the Government's brief, were there any risk of improperly involving the ship's crew that could be accommodated in the first instance by the board in any proceedings before it?
Mr. Seymour M. Waldman: Mr. Justice White has in his question assumed I was wrong on my primary legal thesis.
Justice Byron R. White: I am too, but I am dismissed here --
Mr. Seymour M. Waldman: Yes.
If I make that same assumption, the reason I have to those, I didn't know whether that assumption implicit in your part.
Justice Byron R. White: With that assumption but a mixed mixture of it.
Mr. Seymour M. Waldman: With that assumption, I agree with Footnote 6.
Justice Byron R. White: I see.
Mr. Seymour M. Waldman: Without that assumption and on my argument as it is, I disagree with Footnote 6 of the board's brief.
Perhaps the board was burned a little too much in Incres in this withdrawing more than it should.
I would not say that this should be a balancing of contacts in longshore disputes any more than the Court felt contrary to the position expressed both by the Department of Justice and the board in Incres that a balancing of contacts to some extent should apply in the seamen's case.
I think the balancing of contacts if we're going to talk of that should be performed by this Court as it did in the seamen's case but with the opposite result.
We say the labor board does have jurisdiction, we would be here complaining if they decline jurisdiction whether the work were performed by the ship's crew or by a mixed group.
This work has no extraterritorial consequences.
The board's assumption of jurisdiction applies totally within American territories.
There is no indication in this record or in any brief that the -- any foreign nation has sought to regulate purely longshore labor disputes in ports of another country.
This would be contrary not only to the international law, the law of the flag and its converse, the law of territorial jurisdiction.
It is contrary to industrial reality throughout the world because when we emphasize this in our briefs, the longshoreman is not a uniquely American industrial creation.
We haven't cut out excised a portion of the normal seamen's trade and given it to some other group of people.
The longshoremen and the seamen are functionally and individually diverse in every country of the world in every major part of the world as far as I know.
We've cited international conventions, international labor enactments which apply to the work of a longshoreman, the loading and unloading of cargo.
We've cited domestic laws to the same effect.
We are dealing here with an American situation which parallels the international situation and in other countries as well, they expect to and do regulate their longshore labor disputes under their own laws no matter who is performing the work, and that is precisely what we say should apply here.
We have -- may I just raise one other point in connection with the record?
Now this relates primarily to something that Mr. Justice White mentioned.
In terms of the state of the record, I do want to emphasize what we pointed out in our briefs that the District Court of Appeals in Florida seemed to view this case somewhat as the Government's Brief Footnote 6 does, it although affirming described the picketing as protesting the employment of American residents; perhaps I can say that is more favorable to us than need be.
I merely emphasize that certainly the District Court of Appeal did not rest its decision on the ground that this was the foreign crew performing the work.
They seem to exclude the foreign crew as longshore labor or entirely in the District Court of Appeals opinion.
They rested exclusively on the fact that this was a foreign-flag vessel, so that we do not have a case where the state courts contrary to the record adopted the position urged by respondents.
This is not one of those --
Justice Byron R. White: It sounds like the factual matters aren't very well taken care off, but we have to disagree with you on what the results should be if with respect to a ship's crew doing longshoremen's work, wouldn't there have to be some clarification in the facts?
Mr. Seymour M. Waldman: I would think Your Honors that they should still be reversal on the ground that this records shows without contradiction that this work was being performed at least impart by American residents hired locally.
In which case, we would urge that Footnote 6 of the Government brief correctly sets forth the result, namely that the NLRB still has jurisdiction in the first instance to consider that.
And this is not the case where the record facts are in contradiction.
They're very clear as to what they show.
Respondents may disagree, but respondents did not bring that disagreement to the trial court or to any other Florida state court in the form of evidence or the like.
Justice Potter Stewart: The only problem that the Government's brief and in it stating the facts as it does in Footnote 6 is that it was filed many days before the respondent's brief and the Government wasn't aware of the claims, at least that the respondent was going to make in it's brief about that or --
Mr. Seymour M. Waldman: That's correct, that's correct Your Honor.
Now, I just want to emphasize what I said earlier.
If one were to immunize the work performed by the ship's crew from labor board jurisdiction when that work is not seamen's work, when that work is performed within American territorial confines exclusively, when that work is performed on shore, then I think a Pandora's Box has been opened.
The ship's crew of foreign-flag vessels that traditionally paid well below American standards, their conditions generally are well below American standards, and there would be no problem at all in the ship went in port, assigning its crew to do terminal work, to do not only the loading and the unloading of the ship but to do the loading and unloading of the trucks, bringing in cargo or taking cargo away, to do ship repair work and dry dock, and as I say even to go inland and pick up supplies.
And to me at least, it would be unthinkable but given a statute which is expressly designed to eliminate or minimize disruptive industrial disputes and to secure uniformity that the national board would be powerless to step in to the kind of labor disputes that would inevitably ensue in that kind of a situation.
We just think that it's perfectly clear that the board has and must have jurisdiction.
And if I may just very briefly touch on the free speech point, this Court has held that in applying the constitutional protections of free speech to picketing.
Picketing is free speech plus and therefore one must balance the union's rights to express and publicize its disputes and the states rights to control the plus element.
But in doing that, this Court has set forth certain conditions to circumscribe the state because there are constitutional considerations.
First, the state must define the unlawful objective.
Second, the evidence must be federally reviewable and must support the conclusion that there has been this unlawful objective.
And third, the unlawful objective must pass federal constitutional muster.
For example, the states may not demand contract privity as a necessary condition of picketing; that is an archaic economically unrealistic limitation of the boundaries of labor dispute and this Court as so held for 30 years.
Here, there is no evidence.
There is no state articulation of the unlawful objective.
There is no state finding or conclusion or expression in any opinion as to what objective they do think the union had, and there is no indication what particular rule of law the union is supposed to have violated.
There is no opportunity for this Court or any court to pass upon the states standards because they never express.
And we think that this record fails so abysmally to meet the standards of the Court has set in the picketing cases.
It almost reaches a due process point of the kind expressed in Thompson against Louisville and Gregory against Chicago and similar cases.
Unless there are further question, if I had time, I would like to reserve that for rebuttal.
Chief Justice Warren E. Burger: Very well Mr. Waldman, thank you.
Mr. Leslie you may proceed whenever you're ready?
Argument of Richard M. Leslie
Mr. Richard M. Leslie: Thank you.
Mr. Chief Justice, honorable Justices; May it please the Court.
There is no longshoring here.
There is no cargo here.
There wasn't in 1966, there isn't in 1970 and if there was cargo here, if there were cars here, we'd have a different case.
In fact, we might even go so far to say maybe the injunction should be dissolved unless you want to increase Incres.
These aren't the facts before this Court.
Justice Potter Stewart: Where are the facts in the records?
Mr. Richard M. Leslie: All right, well that's what I want to point out Mr. Justice Stewart.
Since I have had the privilege to represent this client since the first day which was the 23rd of May in 1966, the virtue who verified complaint, I feel it's my obligation to this Court to state all the facts and circumstances and to avoid any risk that this Court could be misled into a ruling on a basis of inaccurate facts.
Justice Potter Stewart: Of course, where confined to the facts of record and what we --
Mr. Richard M. Leslie: All right, let me start with --
Justice Potter Stewart: made traditionally know which isn't very much in this case.
Mr. Richard M. Leslie: All right, let me start with Tim Kaine's deposition.
This is a record at page 53-54.
Tim Kaine is a Vice President of Eastern Steamship Line.
Now, this is in this case before you.
It's Mr. Gutman who had been the Union Attorney all the way through asking about the loading and unloading, and he says in the middle of the page about the ship's crew with the Bahama Star, what else do they do?
And it goes on to say that the ship's crews are employed to --
Chief Justice Warren E. Burger: Now where -- excuse me counselor, are you in the appendix on page 53?
Mr. Richard M. Leslie: No, no.
I'm in the record on page 53-54.
Chief Justice Warren E. Burger: Where is it?
Mr. Richard M. Leslie: Inadvertently, I can't understand this.
But inadvertently, the deposition was left out in the appendix, this whole deposition testimony, although you'll find it related in the record.
The entire 25 -- 35 pages of questions by Mr. Gutman of Mr. Kaine have been left out of the appendix, but they are in the record.
And let me read you from that because this is extraordinarily --
Chief Justice Warren E. Burger: It's not a printed record is it?
Mr. Richard M. Leslie: I beg your pardon.
In the printed record before this Court, yes Your Honor.
Chief Justice Warren E. Burger: But not in the appendix?
Mr. Richard M. Leslie: It's not in the appendix --
Justice Byron R. White: Pardon me --
Mr. Richard M. Leslie: -- and I didn't realize that before -- until I got before you all today that that somehow was omitted, it must have just have been an error in my part because I didn't put together the appendix.
Justice Potter Stewart: Well, it's up to the parties to get to the end of the appendix what they want to bring to the attention to the Court --
Mr. Richard M. Leslie: That's right Your Honor but I understand Mr. Justice Stewart, according to the rules that it is still before the Court, even if not including appendix.
I believe if you also obtain --
Justice Potter Stewart: Now, if you also relied with the Court but it does.
I have met the rules before me but as I have -- because I have them in mind and recollect them, those rules may can come that upon the parties to put in to this printed appendix such parts of the record that the parties, they want to bring before the Court.
Mr. Richard M. Leslie: Well respectfully Your Honor, I check that rule because I saw that this wasn't here in the Rule 17 on page 15 of the Supreme Court rules and it says that everything in the record is before this Court.
But that's why I want to tell you what the facts are because this has been found three times as to this no cargo, no cars and therefore no longshoring.
Chief Justice Warren E. Burger: Well, in doing so, you may represent properly only matters which are in the record itself?
Mr. Richard M. Leslie: Surely Your Honor, and that is why I put the record at pages 53 and 54 which at pages 28 and 29 of the original transcript which I have and be reading from and unfortunately, I have not done it.
Justice Hugo L. Black: When is that before it?
Mr. Richard M. Leslie: Yes, it is Your Honor because it is in the record of this case.
Justice Hugo L. Black: It's in the record on this case.
Mr. Richard M. Leslie: Yes Your Honor.
Justice Hugo L. Black: And that record is on file but is not printed?
Mr. Richard M. Leslie: That part unfortunately was not printed with the appendix.
It is on file but not printed with the appendix.
And Mr. Gutman ask exactly what the crews do and they went on and said about the passenger baggage and told about that area and the record page 54, page 29, they asked, “What else that ship's crew does?”
And they say, “some are employed the load stores.”
He said, “Does that include food?”
And he said, “yes.”
Question, “Is that all sir?”
“That is all.”
Now, that's the point we're trying to make because Mr. Gutman, the Union Attorney, knew this very well because this is on this record on the 16th of August, 1966.
He recalled this case started with our injunction in May of 1966.
But even before that, there was a case called Easter versus Longshoremen.
Same ships, same facts.
And that same facts --
Justice Thurgood Marshall: And what about this loading of stores?
Mr. Richard M. Leslie: I beg your pardon Your Honor?
Justice Thurgood Marshall: The loading of stores, food, alcoholic beverages, all type of food beverages supplies of all nature, this is your idea?
Mr. Richard M. Leslie: Yes sir.
Justice Thurgood Marshall: Of page 53?
Mr. Richard M. Leslie: Right.
Justice Thurgood Marshall: Was that true?
Mr. Richard M. Leslie: That's true.
The ship's crew does that.
They take aboard the provisions of the ship; no doubt about it.
And they also handle the baggage; no doubt about that.
But that's why I'm pointing out on these three different occasions not only this time, but three days before this Court in Eastern and that is why I put that in my brief because it was laid out so clearly there.
In there when Mr. Gutman asked the question about cargo, he was told by the same man again under oath, no cargo at all.
Answer, “No, Mr. Gutman has no cargo at all.”
Question, “On either vessel?”
Answer, “Either vessel.”
Question, “Do you load or ship automobiles?”
“No, sir not anymore, I haven't done it for a long time.”
“You used to?”
“Don't take charge either way.”
Now, there was a third time that Mr. Gutman and I won't bore the Court with the details, but there was a third time that this man was on a deposition again that was June '66, May, June and August, and he was asked again about cargo and again, there was nothing there.
Justice John M. Harlan: Is there uncontradicted testimony if they were American longshoremen?
Mr. Richard M. Leslie: No sir.
Justice John M. Harlan: Likely do this operation?
Mr. Richard M. Leslie: No sir and I would like to read that testimony because I think that is very important.
In the transcript, the hearing, now this is 44 (a) of the appendix.
It starts with Cleveland Turner being sworn.
Apparently, this is somewhat of an omission here too because the first thing that Mr. Gutman asked was permission to proffer this testimony, but then Mr. Turner was sworn --
Chief Justice Warren E. Burger: What page in the appendix again?
Mr. Richard M. Leslie: 44.
And when -- and let me give you one further fact on this that is going to be helpful in your understanding of what this testimony is.
There where at that time two ships involved, the Bahama Star which sailed out of Miami, that is Dade County, Florida.
The Ariadne, which is what's before you now, Bahama Star no longer operates.
It's not owned by this company, it's not even here.
The Ariadne operates out of Fort Lauderdale, Broward County, Port Everglades, 25 miles apart and I point that out because when you seer what Mr. Turner who newly took over this union, apparently, he succeeded the Judge Henderson.
You'll see that his testimony is only as to Miami and it's only as to the type of picketing.
He's asked at the bottom of page 44 specifically what type of work were you interested in.
He wasn't asked what work was done on that ship.
He wasn't asked whether there was cargo or cars, but what type of work were you interested in.
And he says the loading of the ship; stowage, loading of automobiles, loading of cargo, ship stowage.
Justice Byron R. White: What about the question and answer to the top of 45?
Mr. Richard M. Leslie: 45 he says, where these performed by employees of the ship?
Part of it by employees of the ship and some of it but outside labor.
These words outside labor are the only words that give comfort to the union's position.
Justice Byron R. White: Well, that's right now because --
Mr. Richard M. Leslie: All right.
Well, let me answer that.
That's why I pointed out Fort Lauderdale and Miami.
If you'll notice, I only asked him a few questions because I saw he had his days mixed up and I went down in here and this is question in the middle of the page and I said, “That's the one you've been enjoined”, I mean enjoining the other cases.
“I mean did you have a sign saying the area and they paid substandard wages.”
“Monday I didn't, but I had on the ship Monday in Miami.”
He means the Bahama Star.
This is the first time we ever heard of wages.
Our compliant asked for an injunction as to safety.
But even there, it shows that this, the Bahama Star in Miami, 25 miles different from Port Everglades and the Ariadne.
As far as we know, there was never a sign of this.
But what we're trying to say is this outside labor is not the fact in this case, and I go so far to say if there's a question outside labor, if you think that we hire people to do it, then that's why I said since I have been it since 1966, I have to bring the true facts to you at the risk of going outside the record, of course with your permission.
Chief Justice Warren E. Burger: Well, if you go outside the record, I remind you again it must be within the four corners of this transcript or else we don't want you to go outside the record.
Mr. Richard M. Leslie: But Mr. Chief Justice, what I mean is if you think there is outside labor here, we'd ask that the case be remanded for further testimony.
There is not outside labor here.
Justice Byron R. White: You mean in connection with the Ariadne?
Mr. Richard M. Leslie: In connection with either ships.
I pointed out with Ariadne here --
Justice Byron R. White: There is the testimony outside labor and I didn't see -- I didn't see that you are going to be used testimony the -- to contradiction.
Mr. Richard M. Leslie: Frankly Your Honor, we didn't because it has never been raised until we came up here because there was never any question in the counsel's mind who was in Miami, nor in the judge's mind.
Justice Byron R. White: What's the -- what did the state court say?
Mr. Richard M. Leslie: That's why I'd like to further go with the sequence so you see what happened in this case.
After we are at temporary injunction which of course is a fairly quick proceeding, then, and this is a verified complaint by the way Your Honors.
It wasn't as if there was no evidence before the Court, and the answer which came a few weeks later while after the order was entered was not verified.
It was just the denial.
But when it went to the appellate court, the appellate court affirmed on the basis of the same facts that there was no outside labor and this is what we have argued all the way through.
Justice Byron R. White: Where is that -- where is it that the state court say there was no outside labor?
Mr. Richard M. Leslie: I couldn't pull it out of the decision.
But as my understanding from arguing the case that they accepted opposition, I can't point to a word in there where they said there is no outside labor involved.
I didn't mean to say that if I did.
But then this case came back again, and it came back again under our summary judgment procedure when we asked for a temporary injunction.
We asked for temporary injunction in May of ‘66 and then a permanent injunction March 31, 1967, nine months later.
Under our procedure, we have to allow a minimal of 20 days for hearings.
We have to allow the other side to put in affidavits.
If there was any cargo, if there are any automobiles, if there was any outside labor certainly of the side that had lost, the union would bring this in.
But there were no further facts because these have never been argued, because at that time, we were only talking safety.
If you notice the hand billing in there, that says the safety.
Wages never came up until a cold record was read, that's why I said I felt that my obligation since I had started this case in 1966 to try and tell you all of the facts.
Now, this is March 31, 1967.
The order for a permanent injunction isn't until May 1, 1967 almost 11 months.
Justice Potter Stewart: Mr. Leslie , if I can interrupt you a moment.
I didn't get the -- you are interested in telling us all the facts that record pointing out, all the facts of the record and you referred to pages in the original record showing that there was no outside labor involved here.
I am afraid I did get those pages.
I have the original record here in front of me now and I will be interested in getting.
Mr. Richard M. Leslie: No Your Honor.
What I said or what I meant to say if I misunderstood -- if I didn't express myself clearly was that this was the only testimony as to outside labor.
This gentleman, Mr. Turner said outside labor, those words --
Justice Potter Stewart: Plot wise, the only testimony?
Mr. Richard M. Leslie: That was --
Justice Potter Stewart: Plot wise, where does it appear?
Mr. Richard M. Leslie: Oh, it's his testimony Your Honor.
Justice Potter Stewart: But where can I find it that you say is the only testimony as to outside labor?
Mr. Richard M. Leslie: His testimony is in the appendix on page 45.
Justice Potter Stewart: Yes, well I have seen that.
Mr. Richard M. Leslie: Where he says some but -- by outside labor.
Justice Potter Stewart: I've seen that.
Mr. Richard M. Leslie: That's all.
Justice Potter Stewart: No, that's not my question to you at all.
My question is this.
You began early in your argument by saying that telling us that the record, the original record and here it is --
Mr. Richard M. Leslie: Right.
Justice Potter Stewart: Shows that in fact there was no outside labor and I simply didn't get the pages of the original record to which you refer this.
I am interested in getting those copies.
Mr. Richard M. Leslie: No sir.
I meant to say there was no cargo, there was no cars, and I took that on the original record from what I have as page 28 and 29 which is the record --
Justice Potter Stewart: 28 and 29?
Mr. Richard M. Leslie: -- which is the record page 53-54.
Justice Potter Stewart: But now, which is it?
Mr. Richard M. Leslie: Both of those pages.
That is the two pages that --
Justice Potter Stewart: Page 28 and 29 and pages 53 and 54?
Mr. Richard M. Leslie: That's right.
I think I just right you down --
Justice Potter Stewart: Now that past information I have has one.
Mr. Richard M. Leslie: -- 28 and 29 of the original deposition.
That is the record, pages 53 and 54.
Justice Potter Stewart: So you are referring me to the same thing; 28 and 29 is the same thing that I defined on 53 and 54.
Mr. Richard M. Leslie: Yes sir, yes sir.
Justice Potter Stewart: It's 28 and 29 of the original deposition --
Mr. Richard M. Leslie: That is right.
Justice Potter Stewart: -- which is 53 and 54 of the original record?
Mr. Richard M. Leslie: Right, which I just respectfully can't explain why --
Justice Potter Stewart: Well, I have it here.
I just wanted to get the pages.
Mr. Richard M. Leslie: All right.
But our point is since we have this all the through, three times that there were no cars, no cargo, there is no longshoring.
There's no one to hire and what is before this Court is basically the case as it was before Incres, and I would like to go down some more of the factual part to --
Justice Thurgood Marshall: What about all the machinery on the dock and the man to handle it?
He was dock side wasn't he?
Mr. Richard M. Leslie: Your Honor, there is no machinery in the dock.
There's no man to handle it.
There are no hoists --
Justice Thurgood Marshall: I meant in this record here that there was a man that was hired specifically to make sure that the machinery, the belts and all didn't breakdown, am I wrong?
Mr. Richard M. Leslie: Respectfully, I don't know where that is, I know of no such machinery.
Justice Thurgood Marshall: On the series?
My brother Stewart gets away with it.
I'll help you.
Mr. Richard M. Leslie: There are no hoist, there are no cranes, there is no cargo hatches.
These are three and four day cruises to Nassau and sometimes await cruise to the various ports there.
But what I want to show again about the time sequence was the injunction May of '66, the summary judgment asking for a permanent injunction in '67, 11 months later.
When he grants this, when Judge Lee grants this May 1, 1967, then the union has 10 days to ask for rehearing.
They did this, that's May 9, 1967.
It went all the way until September 1967, 16 months later before the rehearing was denied.
Again, no affidavit by the union, no fact; no fact of cars, cargo, outside labor.
What we are saying is the only words in here that this case could be reversed on respectfully are Cleveland Turners words on page 45, some of it by outside labor.
He didn't say American residence, he didn't say union, he didn't say non-union, he said outside labor.
All the way to here in for years, there's been no contention on this because those are the facts, and that's why I went so far opening statement to say if you had any idea these were the facts, remand this case for testimony.
I'll even go so far as to say if we've carried a car in four years dissolve injunction as the cars, if we've carried cargo, it doesn't happen.
We are talking about 15 room stewards on the Ariadne.
These people stay with the passengers throughout the trip.
Justice Byron R. White: Are any of the residents of the United States?
Mr. Richard M. Leslie: They are all foreign crew members.
As far as these room stewards go --
Justice Byron R. White: No, they're all board or any of them reside in this country?
Mr. Richard M. Leslie: None of the room stewards and I cannot relate every crew member.
Some of the other crewmembers might.
It's nowhere in the record.
It's only that they're totally foreign crews.
Justice Byron R. White: There's none of the citizens here?
Mr. Richard M. Leslie: I don't think so, but I hesitate on that because that has never been raised because they were under the Liberian articles and they were signed as foreign crewmen and they worked as foreign crewmen.
Justice Byron R. White: Well, the opinion as the Florida District Court of Appeals says that the facts tended to show the following that the union was attempting to inform the public that the American residents who were working on the cruise ships were being paid substandard wages?
Mr. Richard M. Leslie: Mr. Justice White --
Justice Byron R. White: I think if they are referring not to the room stores or anybody but I think that they're referring to some American residents who are doing longshoremen's work.
Mr. Richard M. Leslie: All I can say is they adopted the union position and they adopted the words American residents.
You'll never see the words American residents in this transcript.
I mean in the record anyway.
Justice Byron R. White: Well then, I don't -- but here's the Florida court they say we've look to the testimony, the testimony tends to show the following that there were American residents working on the cruise ships.
Mr. Richard M. Leslie: Well, we could never explain that.
All I can say as they said those words.
It's not in the record.
Their decision as has been all the way through five court's now.
Justice Byron R. White: I think it though that they couldn't have been saying suggesting that part of the crew that some members of the crew were American residents.
Mr. Richard M. Leslie: If they were Your Honor --
Justice Byron R. White: You do deny it?
Mr. Richard M. Leslie: If they were, they were guessing.
All I checked so I could represent this to you because it's not in the record was these 15 room stewards.
I didn't check every one of the -- I think it is 180 crew members to see if they're foreign.
They all were hired foreign as foreign crew members; they are all under foreign articles.
Chief Justice Warren E. Burger: We'll Mr. Leslie if you will look at the 52 (a) which I believe is what Mr. Justice White is looking at, the Florida court did not say that there was any evidence of American residents.
They said the union was attempting to inform the public that there were American residents involved.
It is not a suggestion of fact but merely a statement of what the union was claiming to be the fact that justifies it's picketing?
Mr. Richard M. Leslie: Apparently, the union has said that Your Honor.
We find that nowhere in the record, we don't think it's factual.
It's just as the union has said throughout that there were American longshoremen, but those words are never in the record.
They're relying on the two words outside labor by Cleveland Turner who we say is mistaken.
We're saying that the judge on a verified complaint saying this was a passenger ship and on the testimony of deposition of Tim Kaine that all the crew was doing was baggage and ship stores that this is enough to sustain in our position.
Justice Potter Stewart: Who handles the lines on the dock when the ship?
Mr. Richard M. Leslie: Well, that was interesting Mr. Justice Stewart when you ask that because there has never been any handling of lines in the case.
I have no ideas.
I agree with you.
Somebody have to do it from there.
Justice Potter Stewart: For where?
Mr. Richard M. Leslie: But my note on when you asked that question before and the opposing counsel replied is that there is no handling of lines.
I don't know.
I am sure lines are throwing off.
If they're throwing off the longshoremen, I don't know.
It's certainly never been in our case.
As a matter of fact right before that as long as I'm addressing this to Your Honor, you hit the what we thought was the point of our case exactly was that here as an interest.
You have a foreign crew doing acts and there is never been any doubt of that, and the only acts of their doing that could be in contention are the 50-feet that they move the baggage from the customs area to the gangway, everything else was aboard ship.
Justice Potter Stewart: Well with respect to this question I just asked you, it couldn't possibly be aboard ship.
Mr. Richard M. Leslie: I agree.
Justice Potter Stewart: Because if you are aboard --
Mr. Richard M. Leslie: They have --
Justice Potter Stewart: the ship, you can't --
Mr. Richard M. Leslie: -- to leap off the ship.
Justice Potter Stewart: -- be on the dock and somebody has to be on the dock to handle the lines?
Mr. Richard M. Leslie: That's never come up in this case, but I agree there must be someone in the dock.
I don't sell it could be ship's crew.
Well, they theoretically sure they could because we have a long pile of both, they could go in that way, but --
Justice Potter Stewart: Be very in most rig and dig corporation to do that.
Mr. Richard M. Leslie: All right.
I just -- I don't think its' possible.
I think what have to be somewhere or other than the ship's crew.
Chief Justice Warren E. Burger: But I don't know that it's relevant Mr. Leslie , but it is not unknown for a ship in considering itself in a hostile port so send a line crew aboard by attainder, ashore by attainder.
Now, I don't suppose we can speculate on that here.
Mr. Richard M. Leslie: No that was point respectfully Mr. Chief Justice is that we can't speculate on that.
But, this isn't a hostile port.
This is work that has always been done by these people.
I heard the comments of counsel about what happened in Europe and other places.
It doesn't happen here, and that's why I want to tell this Court what these room stewards do.
When someone comes to the ship, they buy a ticket and they are on a dock there, and they have hand baggage.
They don't have steamer trunks, they are not going to Europe, and this room steward comes down asking what room their in and he carries their bags to 50-feet, that's in this record that Tim Kaine testified to, the 50-feet from a customs area to the gangway, up the gangway into their room.
The same room steward is with these people throughout the trip.
He moves the bags when they get ready to get off, whether it's in Nassau or foreign port, to the rail and down on the gangway, and then maybe 50-feet in the customs area.
Nobody else goes into the customs area.
There just isn't any longshoring in this case.
Well, I've heard longshoring out my ears and there isn't any longshoring.
There aren't any cargo carriers.
There isn't any longshore of men employed, and I don't mean to make that point so strongly and I would like to go down some of the points that were raised in opposing counsel's argument.
When Mr. Chief Justice Burger asked, he received this comment from counsel that foreign-flag ships can bring their own longshoreman and avoid the board.
Well, if he will agree to that, heavens, we haven't even done that.
We've just brought our crew.
Chief Justice Warren E. Burger: Of course Mr. Waldman did not agree with that.
Mr. Waldman said if you bring your own longshoremen your still -- those longshoremen are subject to the act.
Mr. Richard M. Leslie: Oh, I misunderstood of him because that's even further than we would go.
We just have a crew.
It does one thing.
It takes orders from its foreign officers who tell it its responsibilities.
And unlike American crews, it works probably a longer day.
Wages, I don't know if these people get more or less, the record is bear of this.
The unions never told you about wages.
They've never said that our people get more or less.
There are no facts like this before Your Honors.
It's a guess, a conjecture.
I conjecture we get more.
I don't know.
If these were the facts again in the 16 months from a temporary injunction which naturally is granted a little bit in haste, in those 16 months couldn't some of these facts been brought up?
We suggest that the only reason why this case is here is that of a union says we have the titled union and we want to organize people and therefore, we'll try it on these ships in spite of Benz, in spite of McCulloch, Sociedad, and in spite of Incres, and there's no use to argue Your Honor what those cases held.
I can see from your questions that they are even six years old, their vivid in your mind.
And under Incres, you can't do what they're doing.
So they try and get away from Incres and say this isn't a ship's crew.
This is longshoremen.
And your questions point that out.
It's not longshoremen.
It's the ship's crew that is almost --
Justice Hugo L. Black: Can I ask you one and two questions and see if I can get my mind here.
I don't quite understand quite the difference between here.
Suppose you are wrong and the facts which they say are true, should you win or lose?
Mr. Richard M. Leslie: No.
If I am wrong on the facts, if they are American residents doing longshoring work, if it's not the crew, then I've got a good chance to lose.
The only way I could win then is for you people to say as you said in Incres that well it is still basically a foreign crew.
But that is why I go so far.
Justice Hugo L. Black: And now you say that you are right on the facts?
Mr. Richard M. Leslie: Exactly.
Justice Hugo L. Black: Although, they are not printed in this printed parts; now what do you ask us to do to find out who's right on the facts?
Is there any part of the records that is before us that we can tell who's right or wrong?
Mr. Richard M. Leslie: Mr. Justice Black, what I would say to that is number one you take the verified complaint which says passenger ships and this three or four-day trips and nothing about cargo or anything like that.
Then you go to the deposition of Tim Kaine which is not nearly as clear in this case.
Justice Hugo L. Black: Where is it?
Mr. Richard M. Leslie: That's the part that we had so much trouble with the record that the pages 20 --
Justice Hugo L. Black: That's the part --
Mr. Richard M. Leslie: That's the pages --
Justice Hugo L. Black: That's the part which is type written here before us?
Mr. Richard M. Leslie: That's right, 53 and 54 of the record.
And the reason why I quoted the other two types --
Justice Hugo L. Black: Now, is that the part you're relying on 53 and 54?
Mr. Richard M. Leslie: Yes Your Honor.
Justice Hugo L. Black: Does that show all that you claim it shows and can we look at that page 53 and 54 and decide this disputed question between here?
Mr. Richard M. Leslie: Not as clearly as if when you also read 53 and 54.
You looked at the other two depositions of Tim Kaine under oath by Mr. Gutman where he sets his questions out little better.
You see, that's why we pointed out to this Court --
Justice Hugo L. Black: And you claim that shows what, that don't talk likes you pay.
Mr. Richard M. Leslie: All right.
That shows that there was no cargo, but there were no automobiles, that the ship hadn't carried these.
And therefore, there could be no longshoring work.
Justice Hugo L. Black: That's the crucial point in your judgment in this case?
Mr. Richard M. Leslie: Yes Mr. Justice Black.
Justice Hugo L. Black: As to which side we should decide for?
Mr. Richard M. Leslie: That's right.
We would ask that if you did not affirm this case that you remand it for that testimony because --
Justice Hugo L. Black: But why would we need the testimony if you say it is on these pages?
Mr. Richard M. Leslie: Because the clearest testimony is the Eastern versus Ariadne -- is the case where Eastern Steamship Lines was against this union.
You see these people took their signs --
Justice Hugo L. Black: But that's another case.
Mr. Richard M. Leslie: Yes Your Honor, but it has been considered by each of the courts so long as a companion case and Judge Lee when he decide this case was aware of the Eastern case and stated that he was aware of it.
And of course, it's in the same Circuit Court in Dade County in the same court house, its public record and we would say judicial notice.
Because I can't express this strongly enough, the signs started out saying Eastern Safety Conditions.
They pasted over the sign and put the word Ariadne and put the word Bahama Star.
They didn't even change their signs.
They were not aware of Incres, they were not aware of the foreign-flag cases.
They said that they just have the wrong defendant when they had Eastern; that's the ships agent.
You would think Eastern own the ships probably if you just looked at sales brochure that says our general agents.
That's why I'm trying to show you the sequence of this over these four years because the facts are so clear and the record only has these little bitty parts, the outside labor contention that the union relies on and our two pages of deposition and our verified complaint.
Justice Hugo L. Black: Is there any other part of the record which we could ask the court below to send to us that was absolutely dispute between you two?
Mr. Richard M. Leslie: The other two depositions which I have in my brief taken by the same attorney, Mr. Gutman for a union for the same man Mr. Tim Kaine, and that's the part I read.
No cargo, not at all.
No cars, not at all.
Without cars and cargo, you have no longshoring -- Mr. Justice White asked in spite of Incres, if the crew did this, could that get around Incres?
That's our point exactly.
The crew is doing this.
You said in Incres, foreign-flag ships, foreign crews that is a little area that has been carved away.
That's taken out of the preemption.
That's exactly our position.
I can't even say it as well.
And also Footnote 6 of the Government's brief, we didn't have the Government's brief when we wrote our brief, and consequently, I wrote to the Government and said heavens, how can you write this kind of a brief?
And I was fortunate in getting back two letters from the Solicitor General Mr. Griswold saying if under Footnote 6, it was the crew, then there might be a different result and he put it very, very clearly.
Justice Thurgood Marshall: Is that in the record?
Mr. Richard M. Leslie: The two letters --
Justice Thurgood Marshall: Is that in either the appendix or this type written record or is it in this Court room at all?
Mr. Richard M. Leslie: No Your Honor.
Those were letters, the first one is dates December 30, 1969, the second one was send up to me when I got here was dated January 1, 1969.
The last sentence says we have made it clear in Footnote 6 of our brief that if the facts are as you have stated the result might have been different.
That's the point that Your Honors brought up on Footnote 6.
We say that is the case and we say it has been through five courts, a judge for a temporary injunction, an appeal that for that same judge 12 to 16 months later, another appeal.
If the facts were different and I was on the losing side, certainly, I would have brought in those facts.
But they're not, and that's why I said to begin with, I didn't want this Court to possibly be misled because it isn't as clearer record as it could be.
It never is in a temporary injunction.
Chief Justice Warren E. Burger: Thank you Mr. Leslie.
You have one minute Mr. Waldman.
Rebuttal of Seymour M. Waldman
Mr. Seymour M. Waldman: I can't do too much in a minute but may I just make these brief points.
Mr. Justice Marshall and Mr. Justice Stewart asked the question about handling of lines.
Mr. Leslie 's memory failed him because of the deposition of Mr. Kaine's in the Eastern case, not in this case and I don't think it is properly before the Court, but it is there on pages 12 and 13 of that deposition.
Mr. Kaine said, “The handling of lines is done by a shore side employees; not by ship's crew by a shore gang” so that is in the record of the Eastern case.
But this Kaine deposition baffles me.
This is a deposition taken in a lawyer's office in another case that apparently somehow is filed in this case; I can't see the slightest procedural way that it ever came to the attention of the Court in this case.
I see no reference to it in any motion preserving order, statement by the Court or by counsel, I don't think the judge was ever aware of it, I don't see how any counsel can argue to a Court let alone the Supreme Court that facts are established by a deposition taken in another case by a lawyer in his office that never comes to the attention of a Court.
Your Honors I won't trespass any further.
Chief Justice Warren E. Burger: Thank you Mr. Waldman.
Thank you Mr. Leslie.
The case is submitted.