BOYS MARKETS v. CLERKS UNION

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Case Basics

Docket No.

768

Petitioner

Boys Markets

Respondent

Clerks Union

Decided By

Burger Court (1969-1970)

Opinion

398 U.S. 235 (1970)

Argued

April 21-22, 1970

Decided

Monday, June 1, 1970

Term:

1960-1969
- 1969

Facts of the Case

None

Question

None

Argument

Boys Markets v. Clerks Union - Oral Argument

Full Transcript Text Download MP3

Boys Markets v. Clerks Union - Oral Argument, Part 1

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Boys Markets v. Clerks Union - Oral Argument, Part 2

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Conclusion

Decision: 5 votes for Boys Markets, 2 vote(s) against
Legal provision: Norris-LaGuardia

None

Print this transcript Transcript:

Argument of Kenneth M. Schwartz

Chief Justice Warren E. Burger: -- as soon as counsel are ready.

Mr. Kenneth M. Schwartz: Mr. Chief Justice and may it please the Court.

In yesterday's session of the Court there were some questions propounded to counsel for the petitioner by Mr. Justice White.

I'd like to address myself for a couple of moments to those questions and answers.

One of the questions propounded to counsel was whether or not the remedies afforded the parties under the present posture of the law is reciprocal, and I can state that as it stands today the parties to the collective-bargaining agreement do have -- there is no disparity between the parties.

All the Norris-LaGuardia Act does is prevent either the parties to get a judicial order against the other for conduct that they may find is to be an alleged violation of the Act.

The Norris-LaGuardia Act does not prevent either party from getting a judicial order in order to enforce or require the other party to comply with them a provision in their agreement affording the opportunity for a voluntary adjustment of their proceedings.

Chief Justice Warren E. Burger: I'm not sure I track you on that counsel.

Mr. Kenneth M. Schwartz: Norris-LaGuardia simply prevents either the parties to the collective-bargaining agreement to get a judicial order from any court.

Chief Justice Warren E. Burger: Prevents them?

Mr. Kenneth M. Schwartz: Prevents them, they do that, yes.

The only exception is, it does afford the parties an opportunity to go to a court to compel arbitration which is a matter set forth between the parties a voluntary method for them to adjust their disputes.

Justice Byron R. White: But not to enforce the no-strike clause if it's violated by the Union?

Mr. Kenneth M. Schwartz: The no-strike clause in the contract --

Justice Byron R. White: Does or does not the Norris-LaGuardia Act bar any court from enjoining a strike in violation of the no-strike clause while the arbitration goes on?

Mr. Kenneth M. Schwartz: It does bar federal courts from enjoining the action, yes.

Justice Byron R. White: But why doesn't it bar the order to arbitration?

Mr. Kenneth M. Schwartz: Why does it not?

The -- we have a situation in the collective-bargaining --

Justice Byron R. White: Simply enforcing -- they're simply enforcing a term of the contract.

Mr. Kenneth M. Schwartz: They're enforcing a term of the contract but the parties have agreed upon a method of adjustment of their disputes.

In their collective-bargaining agreement, if you had an injunction or temporary restraining order prior to the arbitration you have taken away from the parties the rights they have agreed upon and bargained for in their collective-bargaining agreement.

They have bargained for and this Court said so in Steelworkers Trilogy.

They have bargained for the expertise of an arbitrator.

If they are permitted either party or both parties are permitted to go to courts when they have an argument or dispute under the collective-bargaining agreement, and the defect takes away any of the powers of the arbitrator may have in settling that dispute.

Justice Byron R. White: Well, if they would -- they agreed on an arbitrator to settle the dispute, why does the Union strike?

Mr. Kenneth M. Schwartz: The strike situation is no different than the employer taking a -- himself violating the contract by say discharging some employees or by bringing in as he did in this case, bringing in a crew, none bargaining unit people into a store to do bargaining unit work.

The Union at that time of course could not get an injunction to restrain them from doing that.

They're irreparable injury that was referred to by counsel in regard to the strike activity of the Union.

There's no different than the irreparable injury in so far as an individual his discharge is concerned, then the individual although the counsel says he can recover in damages, we say that in regard to a strike.T

The company can respond in damages in regard that arbitrator finding it to be so.

The idea being that the parties have bargained for a method of adjustment of their disputes.

A strike is a violate -- may be a violation of the collective-bargaining agreement, it may not depending upon what the strike is for.

Contrary to that, the employer can take actions in regard to demotions, promotions, subcontracting and all issues that the collective-bargaining agreement provides for they can violate it.

Now, the Union certainly cannot come in because of Norris-LaGuardia and get an injunction and I'm not saying they should because the Union and employer have agreed upon a method of bargaining.

In that bargain they have said, that we are going ahead and have our disputes resolve by an impartial arbitrator.

Justice Byron R. White: And in the contract the Union has also said, we’ll not strike.

Mr. Kenneth M. Schwartz: Well, the employer had said for example he will not discharge employees without just cause.

He has said he will not subcontract work.

He has said as he did in this case that he will not bring in others not parties to the collective-bargaining agreement and perform their work as suppose to be confirmed by the bargaining agreement.

These are alleged violations to the contract.

Here, the employers alleged to violate the contract and the employers says, the Union has violated the contract by violating to no-strike clause.

Chief Justice Warren E. Burger: But aren't both parties better off if immediately from the occurring the arbitration process is invoked?

Mr. Kenneth M. Schwartz: Well, yes the party agreed --

Chief Justice Warren E. Burger: Of course the status quo remains as it is.

They preserve the status quo and go ahead to arbitrate whatever issue it is, the Union's issue or the employer's issue.

Mr. Kenneth M. Schwartz: You say preserve the status quo, Mr. Chief Justice?

Chief Justice Warren E. Burger: Stay working and no lockout.

Mr. Kenneth M. Schwartz: Let's take a situation of a discharge.

Are you saying that the status quo is that an individual stays on the job until the arbitration takes place?

Chief Justice Warren E. Burger: The status quo is effectively preserve is it not if he is guaranteed back pay?

Mr. Kenneth M. Schwartz: Oh!

No.

Not a bit, not anymore so than it would be in regard to the strike situation for the employer for the simple reason, you say he risk covers damages when he recovers back pay.

That period of time that that individual has to feed his family, he has to wait until the arbitrator’s award comes out.

What irreparable injury he has cannot be determined by me I don't know the status of his economic position.

Most of our people today are -- have credit up to their ears and when they go ahead and don’t get pay while they've got problems.

Now, what irreparable injury he may have, I don't know he may lose his house.

He may not make his car payments and lose his car.

It's very difficult to say any more so than the employer can recover in damages and they make the allegation that their damages are not sufficient and not adequate because they say that the damages cannot be satisfying them because of irreparable injury.

I say the argument is the same on the other side of defense but both of the employer and Union have bargained for this, both of them have bargained for the fact that they'll submit it to arbitration.

They have not bargained that they will go to court for it all and then they know they couldn't.

Now, the very fact of the matter is this, both of the parties here rely upon the expertise of the arbitrator and the reason they do so is because of the federal labor policy recognizing is this Court did in Lincoln Mills and Steelwork Trilogy that it’s a different type of field.

It's a type of field that courts do not have the expertise that is required in order to resolve his problem.

Chief Justice Warren E. Burger: (Voice Overlap) of no-strike clause, what's the value of administrate clause in the contract if the no-strike clause permits a strike on your theory?

Mr. Kenneth M. Schwartz: Well, I might point out to Mr. Chief Justice that there may be strikes in a shop or in a store that may not necessarily be a violation of the contract.

For example we have those situations where employees may walk off the job because of unsafe conditions.

That would not be a violation of the no-strike clause and the court has held so.

We have situations where there may be an unfair labor practice.

Chief Justice Warren E. Burger: We don't have that here, do we?

Mr. Kenneth M. Schwartz: No, I'm responding to the questions you asked me about the strike situation but we do have these things that we have to take into consideration.

We have a situation where the -- there's always an allegation it’s a violation of a contract if the employer brings in people to do work or subcontract work which is to be formed by contract by bargaining unit people.

That is an erosion of the contract and it has the same effect in regard to irreparable injury as we have on the other side in defense in regard to the employer.

I simply say to this Court that there is a remedy and to say there isn't a remedy isn't so because in Section 301 (b) expressly states that Section 301 confines for a lawsuit or damages can be given against the Union.

Now, when counsel says he doesn't feel that that's an adequate remedy, we can only say that a Union -- a labor organization is no different from any other institution.

They have to have a treasury the same way any other institution has and if they run into a situation where their treasury is depleted they’re pretty much out of business.

So to say that is not adequate it may not be satisfactory.

It may not be totally satisfactory to the employers because the employers may like the idea of having this injunctive relief.

But that doesn't answer the question because if the employers felt that way and if based upon the Sinclair decision they felt that way strongly, from 1962 to the present time when this Court decided that the Sinclair case in Norris-LaGuardia was not repealed by the Section 301 was not intended by Congress to be repealed.

It seems to me, it more or less was a mandate to the parties believing that the decision was wrong or that the law was wrong whatever it may be that the party should have gone to Congress and should have told Congress, we feel that Norris-LaGuardia should be repealed, It makes it very difficult for me to understand this because in the Sinclair case and in legislative history of the Sinclair case.

We have Senator Taft -- the late Senator Taft was certainly was a man skilled in this field.

When he came out of the Conference Committee on the Senate Floor he pointed out that the Section 301 did not prohibit all strikes.

He pointed out that Section 301 did not repeal Norris-LaGuardia Act.

He specifically said that the only two types of strike activities that would be illegal would be the secondary boycott strike and the jurisdictional strike.

Those two aspects and those two strike activities were put in the Section 301 of the Act giving the National Labor Relations Board making it a mandatory injunction on the Board -- on the Board to go ahead and take those actions not to private litigants.

If you recall in the legislative history, in the House Bill, there was a provision that make Section 301 -- Norris-LaGuardia not applicable to Section 301 cases.

It was after it came out a committee that Congressman Hartley who also was the co-author of the Bill, pointed out specifically that this aspect of the Norris-LaGuardia Act was dropped in the Conference Committee.

Now that appears to me and it was cited in the case and it was cited by the majority opinion in this case.

If I were in the other side, I would take that as a mandate to me to get the Congress and have Congress change the law if they didn’t feel it was equitable.

Now nothing has happened from 1962 to the present time, there has been no legislation in Congress in regard to this.

There's no judicial determination which have warrant any reconsideration, the Sinclair aspect.

And I think it's very, very important that we realize when counsel was asked yesterday.

The question is to what status in regard to the business community was since Sinclair was enacted.

Counsel pointed out that there's been very little activity as a matter of fact in the brief of amicus curiae AFL-CIO.

They have a statistic from the U.S. Department of Labor where they show a 1961 which is prior to Sinclair.

There 10.8% a man idle hours due to strikes during the term of a collective-bargaining agreement in 1961.

In 1968, according to same bureau they show at 9.1% of the man hours idle during the term of a collective-bargaining agreement.

This is not say that because of Sinclair there was reduction but I simply say that there is no real impact on the Sinclair decision on the business community which apparently from reading the briefs of amici and the petitioner makes it appear that there are some real reason for changing the posture of the law.

So far as we can determine here that doesn't seem to be that reason as a matter of fact the parties in -- to collective-bargaining agreements have apparently found that this method of voluntary arbitration picking arbitrators with the expertise is a desired way along with the fact that the federal labor law has recognized the fact that arbitration is a matter for the experts in this particular feel because he run into also it’s a complexities in a contract.

We run it to aspects of how many people are actually in the bargaining unit?

Who should have overtime?

Who shouldn't have overtime?

What does the assignment all works?

Are these breaches of the agreement?

As a matter of fact even when we talk about a strike or a lockout.

The arbitrator may have to determine whether in fact that strike was a breach of the collective-bargaining agreement.

If we have a lockout, is it a question of a partial lockout or a complete lockout?

We sometimes think in terms of a lockout meaning the entire plant is shutdown, nobody works but that isn’t necessarily so.

Chief Justice Warren E. Burger: So wouldn't it be helpful to total of industrial peace if in case of a lockout in violation of the contract, the Union could go into the federal courts and get an injunction against that lockout?

Mr. Kenneth M. Schwartz: If we would do that Your Honor and we are talking about when you say lockout, I assume that you're talking about partial lockout as well as any other type of lockout, then I could mention that to you very simply by pointing out the difference.

Chief Justice Warren E. Burger: All lockouts that are prohibited by the contract whatever they maybe?

Mr. Kenneth M. Schwartz: Well, there we have again exactly what I was referring to just on your own comment Mr. Chief Justice, if you say accordance to the contract whatever they are.

This Court has said that the person who can best determine whether or not it is a violation of that contract is the arbitrator.

It is because he works with that -- in that field day and night.

He becomes the expert in the field.

The courts have said time and time again that the type of economy and the type of labor management relations requires some sort of expert.

And admittedly, this Court has said that the courts do not have that expertise.

So, it isn't just a question --

Justice Potter Stewart: Oh!

I don't understand.

I understand your argument --

Mr. Kenneth M. Schwartz: Alright --

Justice Potter Stewart: -- with respect to damage suits under Section 301 which I understood you to concede are permissible certainly --

Mr. Kenneth M. Schwartz: Yes.

Justice Potter Stewart: -- if the court has held so wouldn't the -- any court be face with exactly the same sort of problems that you're telling us are so impossible and so inappropriate for court decision?

In a damage suit, you'd have exactly the same kind of issues.

It will be decided by court and or a jury wouldn't you?

Mr. Kenneth M. Schwartz: Well, that is true.

But the -- in all the cases some Lincoln Mills, Iron, and for the Steelworks Trilogy, this Court has spoken in respect -- they were make into distinction and talking about arbitrators and putting it in a great weight upon the arbitrator’s decision as oppose to the courts and they were talking in terms of injunctive relief primarily when we go back to the fact where the individual comes in with an allegation in the form of an affidavit and asking for an ex parte order in making the allegations that this is agreed to the collective-bargaining agreement and that's the end of it.

Whereas the actual fact of the matter is it requires -- it may require an arbitrator to decide and the court doesn’t really have the time.

If these cases were open to the courts, there'd be no use for arbitrators anymore because by the time the parties come into the court and get their injunctive relief there is really nothing for the arbitrator to decide.

Because we found time and time again that where the injunctive relief was issued by a court there really wasn't any problem for the arbitrator at that particular time.

In so far as determine damages in a 301 suit there is no questions that the court has to take the evidence very much the same of the arbitrator.

But we're talking about matters relating to the expertise of the arbitrator and deferring to arbitration as such.

It seems to me that this Court has said from Lincoln Mills and Iron, down that they deferred to the arbitrators and the Steelworks Trilogy makes it very clear.

Justice Byron R. White: What about referring to the arbitrator disputes over a breach for the no-strike clause?

Mr. Kenneth M. Schwartz: Well, that's fine and the arbitrator can assess damages.

Justice Byron R. White: Isn't that -- wouldn't that be covered by the normal arbitration clause?

Mr. Kenneth M. Schwartz: Yes, it is.

Justice Byron R. White: And if the Union --

Mr. Kenneth M. Schwartz: In this case incidentally has been referred to arbitration --

Justice Byron R. White: If the Union strikes allegedly in violation of the no-strike clause it goes to the arbitrator.

Mr. Kenneth M. Schwartz: That's correct, sir.

Justice Byron R. White: And what is the arbitrator to do about it?

Mr. Kenneth M. Schwartz: The arbitrator can assess damages, he can do anything.

Justice Byron R. White: So the courts don't get in at all?

Mr. Kenneth M. Schwartz: That's right.

Justice Byron R. White: Except for the confirmation of the award.

Mr. Kenneth M. Schwartz: It's a little -- it seems to me that when parties have agreed upon the set scope of conduct, and they violate and they have agreed in the collective-bargaining agreement that any dispute under the collective-bargaining agreement goes to arbitration.

That's exactly what it means.

Now, if in fact the strike is a violation of the collective-bargaining agreement the parties, the employer can and did in this case make a motion to compel arbitration that motion is granted.

Now, the fact of the matter is that is what we bargained for, we did not bargain for any type of status quo situation and the Norris-LaGuardia makes it -- the Act makes it very clear that Section 301 in the matter of collective-bargaining in Section 301 (b) speaks in terms of damages.

Now, I'm sure without knowing that counsel --

Justice Byron R. White: What if the Union strikes and the issue goes to the arbitrator right away assuming an arbitrator was available right away?

Mr. Kenneth M. Schwartz: That does happen by the way, the Longshoremen have --

Justice Byron R. White: But can arbitrator -- can the arbitrator issue an injunction?

Mr. Kenneth M. Schwartz: Arbitrator issued an injunction?

Justice Byron R. White: And they ordered -- can his award say that Union to go back to work?

Mr. Kenneth M. Schwartz: His award can say that and if the Union fails to put his man back to work, the employer can go to the court for conformation of the award.

Justice Byron R. White: You -- do you agree that the Norris-LaGuardia Act does not bar an injunction in enforcing an arbitrator’s award?

Mr. Kenneth M. Schwartz: I conceded that in my brief sir.

Chief Justice Warren E. Burger: What's the difference then?

Mr. Kenneth M. Schwartz: Oh!

The difference is that in the arbitrator's award the parties have bargained for the arbitration.

The parties normally in the arbitration clause provide for the fact that the arbitrator's award shall be a final and binding award.

If after they have gone to the procedure --

Chief Justice Warren E. Burger: I wasn't talking about the mechanics of it I'm familiar with the mechanics.

What's the difference in principle?

Mr. Kenneth M. Schwartz: One is before the fact and one is after the fact.

The matter of the --

Chief Justice Warren E. Burger: Can the Union go into District Court and get a directive whatever you might call it to arbitrate?

Mr. Kenneth M. Schwartz: Certainly, to compel arbitration.

They've done it many times.

Chief Justice Warren E. Burger: And the employer can do the same thing?

Mr. Kenneth M. Schwartz: Yes sir, they've done it many times.

Chief Justice Warren E. Burger: But how do you distinguish the power to get invoke the authority of the federal court to compel one clause of the contract but not another?

Mr. Kenneth M. Schwartz: The --

Chief Justice Warren E. Burger: It's a specific performance equitable enforcement isn't it whenever you invoke it?

Mr. Kenneth M. Schwartz: Yes, it is.

Chief Justice Warren E. Burger: What's the difference between a mandate for specific performance of the no-strike clause and a mandate for the specific performance of the arbitration clause, in principle now, in legal principle?

Mr. Kenneth M. Schwartz: Let me se whether I understand it Mr. Chief Justice.

What is the difference between the mandates for specific performance?

Chief Justice Warren E. Burger: What's the difference in the power of a federal court sitting as a court of equity to invoke the extra ordinary equitable remedy to command one or the other or both of the parties to arbitrate and the command to fulfill some other clause of the contracts specifically by specific performance decree?

Mr. Kenneth M. Schwartz: The -- in Section 301, of course the federal courts do have jurisdiction and the dispute between a parties and collective-bargaining agreement.

The parties have agreed by contract to go to a form being the arbitration voluntarily.

Parties have infused to do that.

The court actually can and does compel arbitration, compel the parties to comply with the provisions of the collective-bargaining agreement which says they have agreed upon a form of adjustment which is quite different from enjoining the parties from doing something else.

The difference being and as I thought I mentioned previously that the Norris-LaGuardia Act does not prevent the parties from going to federal court to seek compliance with their agreement to arbitrate when it does prevent the parties going to federal court to have the federal courts in effect require them to take certain conduct under their collective-bargaining agreement -- comply with conditions of that.

That is expressly set out in the Norris-LaGuardia Act where it says that there can be no federal District Court can issue an injunction against certain activities.

This is not one of those activities expressed in Norris-LaGuardia and so I think there is a difference.

I think the federal court doesn't have the power because of Norris-LaGuardia as oppose to what we find here in Section 301 in regard the motion to compel arbitration.

Does that answer your question Mr. Chief Justice?

Chief Justice Warren E. Burger: Well, I want to have your analysis.[Laughter Attempt]

Justice Hugo L. Black: Let's assume you would say that probably that's the way Congress in intended that?

Mr. Kenneth M. Schwartz: This is what -- this is the way I understand it and that the way the law and the way the courts --

Justice Hugo L. Black: And that it might be bad but it was the act of the Congress that at least in some field ought to be above us.

Mr. Kenneth M. Schwartz: That is my position Mr. Justice Black that it's just a matter of -- if there is going to be a change in the statute where the statute is clear and not ambiguous.

It seems to me that that change has to be performed by Congress and not by judicial legislation so called.

And in this particular instance, as I say I recognize the fact that this Court can change its opinions in regard to cases.

I recognize the fact that they are not necessarily bound by stare decisis, but it is my feeling that Sinclair was an expression by this Court.

Not in regard to a policy change of a matter left opened by Congress.

It seem to me that what the Court said in Sinclair what they are deferring to Congress and that is that have been clearly set forth by the intent of Congress that they're saying to the parties that if this has to be changed then it maybe an inequity and may be changed.

The place to get it is not in the courtroom but to get it from Congress.

Congress has failed to act in this matter and therefore it seems that there is no other answer but that without Congress acting, we must take the intent of Congress applied to law and say, that’s where we stand today.

Justice Potter Stewart: Except that this case involves not Sinclair directly does it but rather the situation that the court dealt with in the Avco case?

Mr. Kenneth M. Schwartz: I don't believe so.

Justice Potter Stewart: This was a case -- no, I'll make premise on this.

Mr. Kenneth M. Schwartz: I'm sorry.

Justice Potter Stewart: I understood that this was originally brought in the state court and then moved to the federal court.

Mr. Kenneth M. Schwartz: That's correct.

Justice Potter Stewart: And that in the federal court, the order previously granted by the state court was set aside if I'm not mistaken about it?

Mr. Kenneth M. Schwartz: No, it was not sir.

The federal court read its own injunction federal District Court and that was the court I appealed to Circuit Court and the Circuit Court reversed on the basis of Sinclair.

Justice Potter Stewart: Well, I know the Court of Appeals did on the basis of Sinclair just as the Court of Appeals for the Sixth Circuit had to decide of the Avco case on the basis of Sinclair.

Mr. Kenneth M. Schwartz: Right.

Justice Potter Stewart: But in this Court, in this Court we left the question open --

Mr. Kenneth M. Schwartz: That's correct.

Justice Potter Stewart: -- with respect to a removed case, did we not?

Mr. Kenneth M. Schwartz: That's correct sir.

Justice Potter Stewart: And I think the last footnote of the court's opinion.

Mr. Kenneth M. Schwartz: I think footnote 4 is the reason we're here.

Justice Potter Stewart: Yes.

Mr. Kenneth M. Schwartz: And I --

Justice Potter Stewart: So, it's not as so this had all been decided in Sinclair?

Mr. Kenneth M. Schwartz: Oh!

I think the principle to decide was Sinclair.

Justice Potter Stewart: Well, I know you submitted to attach then but it's not all that are in bound the stare decisis.

We have in fact left the question open with respect to removed cases in the Avco opinion, didn’t we?

Mr. Kenneth M. Schwartz: Well, the way I understand it, I may have understood or think correctly Mr. Justice Stewart, but in the Avco case, all the Avco case just cited was a matter of procedure when a case is removed to the federal court from a state court and there is no remand.

We had remand before, but at that point it took care of that problem and all I did is established in my opinion a method of federal labor law but isn’t a matter of forum shopping anymore.

Once you go into state court and it's removed you applied the federal labor law which you should have applied in the state as well but because Norris-LaGuardia did not speak to the state we had a different situation when a case is filed in the state as oppose in federal law.

But the principle can't be any different if in Sinclair as this Court found the Congress expressly set forth its intent unambiguous then the Avco doesn’t have anything to do with it.

The fact that the remedy may be different because this Court happened to see fit, to find an Avco that there would be no remand.

It seems that under those circumstances the principle -- underlying principle in Sinclair is no different because if the intent of Congress is so expressed that Congress must do something to change the law then I don't see where Avco is a matter of procedure affects it at all.

I never did quite understand the footnote there from the system.

Justice Potter Stewart: Or really all Avco held was that issue remove, that was a removable case --

Mr. Kenneth M. Schwartz: I think.

Justice Potter Stewart: Period.

That was the holding in Avco.

Mr. Kenneth M. Schwartz: Yes, but what I mean I didn't understand the impact that Avco might have in regard to Sinclair other than the fact as we did here.

We removed the case from the state court to federal court and they could --

Justice Potter Stewart: Yes and it couldn't be remanded back to the state court that's what Avco holds?

Mr. Kenneth M. Schwartz: That's right.

And that's all --

Justice Potter Stewart: Maybe beyond that in Avco, in the Avco it so happened that the federal District Court set aside the order for use to be granted by the state court.

It wasn't clear on the record why the court had done so.

The Court of Appeals for the Sixth Circuit as I remember in the Avco case had held yes it was -- now the property didn't so but it was required to do so by the Norris-LaGuardia Act and that's the question that we left opened and decided the court left open in deciding the Avco case here, am I wrong about that?

Mr. Kenneth M. Schwartz: No, you're correct.

As a matter of fact when counsel for the petitioner was arguing in this case, it sounded as if he was not concerned with Sinclair but he’s unhappy with Avco.

And as a matter of fact, in his reply brief it seems to me that he’s unhappy with the entire arbitration proceeding because in citing this one case from we’re talking about picking arbitration counsel points out that the -- while the contract hold for 72 hours and then a 12-hour decision he said, well, my god it took four days for hearing.

Well, how long it would take if you went to court, and then the fact that there was a decision in December, the only way that they have a decision in December if the parties agreed.

So, I simply say that by pointing to that particular case in the same quick the arbitrations are not the answer.

I don't agree because in the Longshoremen when you have a dispute on the dock, they have a provision in their contract where the arbitrary comes right down to the dock right there.

It says, go back to work and that's the end of it.

So there is an answer to these things and people with the expertise in labor and management can bargain for that.

And I failed to see and where the situation has changed from 1962 to today as I mentioned previously, I can find no legislative history, no legislate act, incidentally legislative history in 1962 as the same legislative history we have today.

So, under those circumstances, absent anything else it seems to me that the Sinclair case should not be reversed and I think that’s it.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you Mr. Schwartz.

Mr. McLaughlin, you have about three minutes left.

Argument of Joseph M. Mclaughlin

Mr. Joseph M. Mclaughlin: Mr. Chief Justice and may it please the Court.

In the very brief time remaining to me, I'd like to make two or three points.

First of all, with reference to the statements and the contentions that have been made on account of the failure of Congress to act following the decision of this Court in Sinclair and also with respect to the idea that Sinclair is some kind of a stare decisis impact.

I would like to direct the Court’s attention to decision of this Court which is not cited in any of the briefs.

We didn't cover this point Helvering versus Hallock this case is to be found in 309 U.S. 106.

The decision in the case was offered by Mr. Justice Frankfurter joined in by Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Stone, Mr. Justice Reed, and Mr. Justice Murphy.

On page 118 of the Official Report and if the Court will indulge me, I would just like to read three or four sentences.

This case involved a situation where there had been three different decisions of this Court with respect to a tax matter and the Court was faced with the question as to whether it should further proliferate these decisions or whether it should just take the three decisions that come on before and in fact overturn them.

“Our real problem, therefore, is to determine whether we are to adhere to a harmonizing principle in the construction of 302 (c), or whether we are to multiply gossamer distinctions between the present cases and the three earlier cases.”

Now, skipping Your Honor, “We recognize that stare decisis embodies an important social policy.

It represents an element of continuity in and law and it’s rooted in the psychologic need to satisfy reasonable expectations.

But stare decisis is a principle policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, where such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder and verified by experience.”

Skipping now for one more sentence to what would be page 121 of the Official Reporter.

“This Court, unlike the House of Lords, has from the beginning rejected the doctrine of disability and self-correction.

Whatever else may be said about want to congressional action to modify by legislation the result from the St. Louis Trust cases, it will hardly be urged that the reason was Congressional approval of these distinctions” and then the Court goes on.

Justice John M. Harlan: What's the full citation?

Could you give it to us?

Mr. Joseph M. Mclaughlin: Yes, Your Honor.

Helvering versus Hallock it’s to be found at -- in the Official Reporter as I said at 309 U.S. 106.

Justice John M. Harlan: 309?

Mr. Joseph M. Mclaughlin: Pardon me sir?

Justice John M. Harlan: 309 or 301?

Mr. Joseph M. Mclaughlin: 309.

Now, also I would like to direct the Court’s attention the decision of Girouard versus United States 328 U.S. 61.

The first case I cited I believe was a 1940 case.

This is a 1946 case.

This involved a matter arising under the Immigration and Nationality Act.

The opinion in that case written by Mr. Justice Douglas joined in by Mr. Justice Black, Mr. Justice Murphy, Mr. Justice Rutledge and Mr. Justice Burger.

One sentence from that case if I might please once again a prior --

Justice John M. Harlan: What is that citation issue?

Mr. Joseph M. Mclaughlin: 321 U.S. 61 Your Honor.

One sentence, “It is, at best, treacherous to find in congressional silence alone the adoption of a controlling rule of law.”

Now, I see that my time is up and so I can't make some of the other points I'd like to make but suffice it to say that the only remedy that’s going to effectuate the policy of Section 301 is going to be the availability of the injunction against the strike in breach of contract.

Thank you, Your Honors.

Chief Justice Warren E. Burger: Thank you Mr. McLaughlin.

Mr. Joseph M. Mclaughlin: Oh!

One thing Your Honors if I might, I apologize.

I will direct your attention with respect to this idea about equality to Section 2 on page 3 of our reply brief.

We have covered this so called imbalance situation and I would ask you to read it with some care.

Thank you.

Chief Justice Warren E. Burger: Thank you.

Thank you Mr. Schwartz for your submission.

The case is submitted.

Print this transcript Transcript:

Argument of Joseph M. Mclaughlin

Chief Justice Warren E. Burger: Next case on for argument is Number 768, Boys Market against Retail Clerks Union.

Mr. McLaughlin, you may proceed whenever you're ready.

Mr. Joseph M. Mclaughlin: Mr. Chief Justice, may it please the Court.

This case presents an issue which this Court faced eight years ago in Sinclair Refining Company versus Atkinson.

The question is again here today as well as an additional questionnaire to the -- was not present in Sinclair.

The issue basically is whether federal courts have jurisdiction under Section 301 of the Labor Management Relations Act of 1947 to enjoin strikes and work stoppages by labor organizations in violation of their promises contained in their labor agreements not to engage in strikes or work stoppages during the term of the labor agreement and to submit such disputes to arbitration.

This involves the question as to whether the Norris-LaGuardia Act should be accommodated to Section 301 and held not to bar the issuance of injunctions against strikes in breach or promise to arbitrate and not to strike.

So the continuing validity of this Court's decision in Sinclair is squarely at issue here today.

Also, there's a subsidiary question and that relates to the continued vitality of state court injunctions in the federal court after removal under Avco, that is assuming that this Court finds that Sinclair was rightly decided.

The factual background is simple, the petitioner and the respondent, at all times material hereto, were parties to a collective bargaining agreement.

On that agreement provided in pertinent parts that all disputes involving in any way the interpretation and application of the agreement shall be submitted to arbitration.

It further contained a specific agreement that there would be no strikes, cessations of work, picketing, boycotts or lockouts during the term of the contract.

It contained yet another specific provision namely that matters subject to the arbitration procedure should be settled and resolved by that established procedure.

The employer operates a chain of some 35 supermarkets.

On a particular day in 1969, the employer was utilizing some non-union -- some non-bargaining unit personnel to stock a frozen food case.

A union business agent observed this and objected, demanded that the employer cease.

The employer believing that he was not in violation of the contract refused.

The union called a strike.

All the employees left the store.

Picketing commenced.

The customers were told that the store has closed.

There is no service.

Pickets carried signs saying, “Local 770, this store on strike, please respect our picket lines.”

The employer demanded arbitration.

The union refused and continued to picket.

The employer went to the Superior Court, County of Los Angeles and obtained a temporary restraining order and also an order to show cause by preliminary injunction was issued.

Now in connection with this state court procedure, union counsel was notified as provided by local court rule after argument in chambers in consideration of the verified complaints, the affidavits and the likes, the order was issued.

Now the temporary restraining order enjoined the work stoppage.

The union responded promptly by removing the case to the federal court and in the federal court filed a motion to dissolve the temporary restraining order.

In opposition, the employer filed in the federal court a motion for an order compelling arbitration for an order requiring specific performance of the agreement to arbitrate and application for a preliminary injunction against the strike.

Now the district judge was well aware of Avco and was well aware of this Court's decision in Sinclair.

And after consideration of the arguments of the parties in the various documents submitted, he denied the union's motion to quash the state court injunction.

He granted the employer's motion for an order compelling arbitration in enjoining the work stoppage.

The union appealed to the Ninth Circuit Court of Appeals which reversed the District Court on the ground of Sinclair.

Now Your Honors, the underlying premise of the trilogy in Lincoln Mills of the law which this Court has developed under Section 301 is that arbitration is the most favorable solution, the most feasible solution to industrial warfare.

Adjudication on the merits is to be substituted for muscle.

This Court has said that the no strike agreement is the quid pro quo for the employer's agreement to arbitrate.

Now, if unions are free to strike and the employer is bound to arbitrate, this does not only mean that the employer doesn't receive his bargain, the benefit of this bargain which is really about the only thing an employer gets from a labor agreement but also most serious imbalance results.

This Court has said that arbitration is the kingpin of the federal labor policy under Section 301.

Well, the kingpin is destroyed by the strike in breach of contract where the union is obligated to arbitrate the underlying union.

Chief Justice Warren E. Burger: Are you asking us to overrule the Sinclair case?

Mr. Joseph M. Mclaughlin: Yes, Your Honor, I am.

Chief Justice Warren E. Burger: When was it decided?

Mr. Joseph M. Mclaughlin: 1962 Your Honor.

Chief Justice Warren E. Burger: Is to statutory decision?

Mr. Joseph M. Mclaughlin: Your Honor it was a decision of the -- decision of this Court.

Chief Justice Warren E. Burger: Is it based on a statute?

Mr. Joseph M. Mclaughlin: Yes, sir.

Chief Justice Warren E. Burger: Nothing but a statute.

Has it been presented in Congress to change it?

Mr. Joseph M. Mclaughlin: Well, Your Honor in Sinclair, this Court --

Chief Justice Warren E. Burger: You try -- you're trying to get the -- a dissent in that case of 1962, reinstated as the law today under the statute.

Mr. Joseph M. Mclaughlin: That's correct sir, yes because I believe the dissent was correct.

The decision of 1962 is simply out of harmony with the congressional policy which this Court has found in Section 301 that is that the federal courts under Section 301 are to develop a body of federal labor law.

And as I'm pointing out before, arbitration has been declared to be the kingpin of that policy.

Now the objection at the Norris-LaGuardia Act forbids what almost every commentator what agrees is necessary and desirable is simply not sound because you can adopt, you can accommodate Section 301, Norris-LaGuardia Act so as to give the fullest possible effect to the central purpose of those statutes.

The courts done this before, it's done in -- on the field of antitrust.

Justice Frankfurter writing for the court accommodated Norris-LaGuardia to the antitrust laws and the Hutcheson case.

In Chicago River, this Court accommodated Section 301 with the Railway Labor Act and I submit that in Lincoln Mills this Court likewise accommodated the Norris-LaGuardia Act with Section 301.

Chief Justice Warren E. Burger: Have you filed or joined and then request to Congress to change this statute --

Mr. Joseph M. Mclaughlin: I'm sorry Mr. --

Chief Justice Warren E. Burger: -- as it was construed?

Mr. Joseph M. Mclaughlin: I'm sorry Mr. Justice, I didn't hear you?

Unknown Speaker: Have you joined and then request to Congress to change this statute as we construed it?

Mr. Joseph M. Mclaughlin: No, Your Honor neither --

Chief Justice Warren E. Burger: That (Inaudible) eight years ago?

Mr. Joseph M. Mclaughlin: Neither I nor anyone I represent has opposed the Congress on this matter sir.

Now, no viable distinction, it seems to me at least can be made between the accommodation of Chicago River and the failure to accommodate in Sinclair with Section 301.

The only distinction is that in Chicago River the arbitrator was a National Railroad Adjustment Board.

And here under Taft-Hartley Section 301, it's an arbitrator who was selected through the contractually agreed upon procedures.

I respectfully submit that the question that was asked or the question rather that was stated in the Court's opinion in Sinclair was the wrong question.

The opinion of the court starts off stating the question as being whether Section 301 and I believe the phrase used is “impliedly repealed” Section 4 of the Norris-LaGuardia Act.

I think the answer to that is obviously no.

I think the proper question, I would respectfully suggest, is a question as to whether the statute should be accommodated to each other and I think the answer there is just as obvious and its yes.

Now, the legislative history of Section 301 --

Justice Byron R. White: I suppose that you would say that as a threshold matter before a court could issue the injunction to enforce the no-strike clause, you would -- the court would have to pass on the arbitrability of the dispute.

Mr. Joseph M. Mclaughlin: Well, obviously Your Honor and as this Court has pointed out it is the function of the court to determine arbitrability.

Justice Byron R. White: And pass on the scope of the no-strike clause?

Mr. Joseph M. Mclaughlin: That would -- that's undoubtedly the case because, Your Honor --

Justice Byron R. White: Well, are any exceptions to it and things like that?

Mr. Joseph M. Mclaughlin: I can't think of any at the moment Your Honor, there would --

Justice Byron R. White: And then about an unfair labor practice strike, I suppose --

Mr. Joseph M. Mclaughlin: Well, in unfair labor practice strike of course that's something else the court --

Justice Byron R. White: So the courts going to end up to be doing a lot of arbitrators work just to get to the injunction question, aren't they?

Mr. Joseph M. Mclaughlin: I don't think so, Your Honor because unless an agreement specifically confides the question arbitrability to the arbitrator.

It is the court's function to determine arbitrability.

Now, in determining arbitrability, you have to interpret the scope of the arbitration clause and it's not unusual on contracts for matters to be accepted from the scope of the arbitration clause.

Now likewise with respect to a no-strike clause, it seems --

Justice Byron R. White: Is this contract still that -- I mean, which this dispute arose still in effect?

Mr. Joseph M. Mclaughlin: This particular contract expired was replaced after a strike by a successor contract.

The language of this section and the language of the contract which relates to and which would have anything with the issues before this Court are identical.

They haven't been changed they are enforced in effect.

Justice Byron R. White: And the -- no one has to know -- nobody has to determine whether or not there is any contract about the -- about this?

Mr. Joseph M. Mclaughlin: No, there's no -- there is no issue in this case at all and union counsel for example will not deny one that there was a labor agreement at certain points to the language of the no-strike clause.

If you're -- as is clear as language can possibly be and it would be extremely --

Justice Byron R. White: And the dispute was arbitrable?

Mr. Joseph M. Mclaughlin: Yes, sir.

Chief Justice Warren E. Burger: Now, to get it in focus, what would happen if the employer locked out the employees and the union wanted to grant a remedy what are their alternatives, what are their remedies?

Mr. Joseph M. Mclaughlin: Under this contract and under similar contracts, if the union business agent had come in the store and he had said, "You're improperly stocking the frozen food cases, it's a violation."

And the employer had said it is not and you better forget about it and then the union business agent refused to it, and then the employer lock the people out or something like that.

Then the union could have gone to court under this contract and under the law as I think it is and should be, could have gone to court and could have obtained a restraining order against the employer.

In fact, I would stipulate --

Chief Justice Warren E. Burger: But now, doesn't Norris-LaGuardia forbid injunctions against both employers and unions?

Mr. Joseph M. Mclaughlin: It most certainly does sir but I don't that Norris-LaGuardia forbids --

Chief Justice Warren E. Burger: Well, you -- I know your argument here that it doesn't but what is the present state of the law under Sinclair?

Mr. Joseph M. Mclaughlin: Oh, under Sin --

Chief Justice Warren E. Burger: Under Sinclair, could the employer -- could the union get an injunction against the employer?

Mr. Joseph M. Mclaughlin: No, sir.

Chief Justice Warren E. Burger: So that at least as of now, under Sinclair both the employer and the -- and union are in the same posture?

Mr. Joseph M. Mclaughlin: Well, they're in the same posture with respect to getting the injunction but they're not in the same posture with respect to the objectives of arbitration and with respect to what the real meaning of the situation.

Chief Justice Warren E. Burger: Well, let me strip it away then.

Are they in the same posture in terms of the enforceability of the no-strike clause or the no-lockout clause?

Mr. Joseph M. Mclaughlin: Legally speaking in terms of their right to access to the court or lack of right, they are the in same position, yes, sir.

Chief Justice Warren E. Burger: So that if we overrule Sinclair, you'd put them again in the same posture but that they'd both have access, each would have access to the injunctive power of the courts to compel arbitration?

Mr. Joseph M. Mclaughlin: Absolutely, Your Honor.

Unknown Speaker: Would that have been true when Sinclair was argued and --

Mr. Joseph M. Mclaughlin: Yes sir, I believe so.

As I to start to say the legislative history of this statute doesn't indicate the congressional disapproval of this accommodation that we're suggesting here today.

In Sinclair this Court read more into that legislative history than it can properly bear.

Justice Frankfurter and his dissent in Lincoln Mills I believe said that the legislative history of Section 301 leaves us in the dark.

In Lincoln Mills, the majority opinion of this Court said that the legislative history of Section 301 was cloudy and confusing.

One thing, Lincoln Mills did said about that legislative history though was that Congress interested in promoting collective bargaining that ended with the agreements not to strike.

Now, if Congress was interested in promoting collective bargaining that ended with agreements not to strike, the enforcement of those agreement or the enforcement of those agreements must be provided for so as to make them meaningful because one thing Congress obviously wasn't doing, it obviously wasn't engaging in an idle exercise to encourage people to make agreements which were meaningless in practical effect.

If arbitration is going to work, the federal scheme must permit the effectuation of labor policy in the field of arbitration by means of the injunction against the strike and breach of contract.

Now, it's been suggested that this is not necessary.

It's been suggested that there are other and alternative ways to handle this problem.

For example, the remedy of damages has been suggested.

Well, damages as a remedy against a union, Your Honors, if I can bring 15 years of intimate experience about it to bear, damages against a union with whom a -- an employer has a collective bargaining relationship are meaningless.

Unknown Speaker: Why don't you -- how about arbitrating and then enforcing the award?

Mr. Joseph M. Mclaughlin: Well, first of all, to arbitrate in the face of a strike is difficult.

Secondly, a strike defeats the arbitrator's jurisdiction.

And thirdly, --

Unknown Speaker: It what?

Mr. Joseph M. Mclaughlin: A strike.

Unknown Speaker: Oh, you wouldn't say the arbitrator didn't have jurisdiction --

Mr. Joseph M. Mclaughlin: Well, jurisdiction Your Honor in the sense that the -- his ability to consider the matter on the merits to adjudicate the thing sanely and in a civilize fashion is defeated because, Your Honor, the employer in this case over who was right.

Unknown Speaker: Well, the fact remains you could arbitrate, could you?

Mr. Joseph M. Mclaughlin: Pardon, sir?

Unknown Speaker: The fact remains you could arbitrate your dispute?

Mr. Joseph M. Mclaughlin: Oh, yes but in this case for example, if --

Chief Justice Warren E. Burger: But you could arbitrate it, if I may interrupt you, you could arbitrate if both parties agreed to arbitrate --

Mr. Joseph M. Mclaughlin: That's right.

Chief Justice Warren E. Burger: -- except, otherwise.

Mr. Joseph M. Mclaughlin: That's another point.

If --

Chief Justice Warren E. Burger: Well, if you could get an order to arbitrate?

Mr. Joseph M. Mclaughlin: Well, but only -- that's my point; we should be able to get an order to arbitrate.

Justice Byron R. White: Or you could get an order to arbitrate, --

Mr. Joseph M. Mclaughlin: Yes.

But at the same time --

Justice Byron R. White: And you -- then you can arbitrate and you can enforce the award?

Mr. Joseph M. Mclaughlin: Alright.

Justice Byron R. White: I take it the -- your opponents can or am I wrong, do they -- don't they concede that a court could issue an order enforcing an arbitration award?

Mr. Joseph M. Mclaughlin: Well, --

Justice Byron R. White: Without violating Norris-LaGuardia?

Mr. Joseph M. Mclaughlin: I don't know what their position would be with respect to that.

I have three comments that I would like to make.

First, with respect what would've happen here, the dispute involved the propriety of the way a frozen food case was being stocked or rather a large frozen food case but nevertheless that.

Now, the collective bargainingship -- relationship or the collective-bargaining relationship with these parties is made up of hundreds and thousands of disputes like this over the years.

Now, if the employer in this case had to wait while somebody got an order to arbitrate and then had arbitration hearing and then came back with an order and that leaves still unanswered Your Honor the question of the courts ability to specifically enforce the award of the arbitrator.

That's a question that came up in New Orleans Steamship and the Philadelphia Marine.

In any event, my employer in this case, it isn't worth it.

He's loss the benefit of his bargain.

He can't have a store shutdown with the enormous overhead of a modern supermarket for a period of two or three months while an arbitrator decides a dispute.

It has defeated the jurisdiction of the arbitrator.

Justice Byron R. White: Well, let's take another situation, suppose an employer discharges an employee and the union goes on a strike, do you think that you should be able to enjoin the strike while the union arbitrates?

Mr. Joseph M. Mclaughlin: Absolutely and the reason for that Your Honor is that the --

Justice Byron R. White: Well, don't you think that -- what do you think about putting the man back to work while you're arbitrating?

Mr. Joseph M. Mclaughlin: Well, the point is that this things --

Unknown Speaker: You don't do that do you?

Mr. Joseph M. Mclaughlin: No sir, we do not and I do not think we should have to.

Now I'd be glad to explain why, if I may.

The reason is this, is that when the arbitrator renders his award and he says for example that that the employee was wrongly discharged that employee can be made whole because he is awarded reinstatement, he is awarded back pay.

Whatever happened can be quite readily remedied.

Now a strike in breach of contract is something of an entirely different order.

It's not the same thing at all.

And so that's why Your Honor I don't think that there's -- an inequality as Your Honor at least to me seem to be suggesting.

Unknown Speaker: Could I ask you a question, its perhaps drawing more on your own experience, what would say was a fair estimate of what impact Sinclair has had during the eight years of the union management relations, is that a question that you can draw any light on?

Mr. Joseph M. Mclaughlin: I can throw some light on it from my own experience.

I personally do not think that at least in the areas where I have practiced that Sinclair itself has had much in effect at all until Avco came along.

But you see, that was because for example in the southern district of California which is now the central in the south district, the courts there refused to accept removed cases from the superior court.

Now, the gimmick in combination, Sinclair and Avco, you see, we removed the case from the superior court and the anomaly of that is and Congress could never have intended this, that an employer actually ends up with lesser means of effectuating his rights under the contract than he had before Section 301 and this I -- I'm -- I don't think anyone could say they were intended.

Chief Justice Warren E. Burger: May I ask you one question?

Is there any difference in circumstances or conditions with reference to this case, now and eight years ago when its decided except that the members of the court have changed and that the personnel is different by --

Mr. Joseph M. Mclaughlin: Well, Your Honor I think a number a things have happened to change it.

For example, first of all as I made it plain, I think the decision was wrong and if it was -- if I'm correct sir I may respectfully suggest if it was wrong then, it's likely to be just as wrong today.

Secondly, if I may say so with --

Chief Justice Warren E. Burger: Is it any more wrong now than it was then?

Mr. Joseph M. Mclaughlin: I believe it is because of Avco.

You see --

Chief Justice Warren E. Burger: Because of what?

Mr. Joseph M. Mclaughlin: Because of this Court's decision in Avco.

You see previously as it --

Chief Justice Warren E. Burger: In which case?

Mr. Joseph M. Mclaughlin: In the Avco case, Your Honor.

It was concerning the right of removal from state courts to federal courts of Section 301 actions.

See, what actually happened was and this is the other anomaly if I may say so.

That here we have a situation where I suppose that, Your Honors don't agree with me and that Sinclair remains with continued vitality and then you put it together with Avco then we come up with this next question.

Alright, then we have to decide or rather this Court has to decide what effect does Norris-LaGuardia have on state courts.

What is the effect upon an injunction issued by a state court after it's been removed to the federal court?

Does Norris-LaGuardia command that order be dissolved?

If not then the anomalous situation arises of having Section 301 under which the federal court system was to create a body of federal law of having results that have forced plaintiffs into state courts where state courts would do the body of 301 business under Section 301.

And then the other side of it if you say, “Well, Norris-LaGuardia will require those injunctions to be dissolved.”

As I've said before, an employer has less ways of effectuating his agreement than he had before 301, that's not right.

And then thirdly, if you say, “Well, state courts are bound by Norris-LaGuardia.”

And we know we can't say that from Norris-LaGuardia.

We would have to import through an interpretation of Section 301.

Chief Justice Warren E. Burger: What year was Avco decided?

Mr. Joseph M. Mclaughlin: Avco, I believe was 1969 or 1968, Your Honor.

It's a rather recent case.

Chief Justice Warren E. Burger: But you -- did I understand you to say that Sinclair created no particular problems of consequence until --

Mr. Joseph M. Mclaughlin: Oh, I think Sin --

Chief Justice Warren E. Burger: -- it was combined with Avco?

Mr. Joseph M. Mclaughlin: I think Sinclair probably created or gave rise to serious problems of difficulties.

For example in the District of Columbia or in states --

Chief Justice Warren E. Burger: Where you have no state courts?

Mr. Joseph M. Mclaughlin: Yes or in states where they have anti-injunction acts that might have been interpreted to not give this relief.

I didn't mean to say sir that Sinclair had not given rise to difficulties.

What I meant to say was that whatever difficulties Sinclair gave rise to, they have been terrifically increased with the decision in Avco.

Justice Hugo L. Black: May I ask you -- I understand your strong feeling on this, mostly misinterpreted and we misinterpret in the will of Congress but has Congress yet made any complaint about it?

Mr. Joseph M. Mclaughlin: Well, to my knowledge sir I don't think that Congress has passed any resolutions or enacted any statutes that would indicate a complaint however --

Justice Hugo L. Black: Don't you think that might be the best place to go for people who feel that the will of Congress has been perverted?

Mr. Joseph M. Mclaughlin: Well, Your Honor --

Justice Hugo L. Black: On statutory matter?

Mr. Joseph M. Mclaughlin: This Court has interpreted statutes in various ways.

For example, if you take a look at the legislative history of Lincoln Mills as you most certainly have, not Lincoln Mills of Section 301, we find in there practically no mention of arbitration.

Now what I think happened here is likewise --

Justice Hugo L. Black: Well, why do you find it there if it's not in the Act?

Mr. Joseph M. Mclaughlin: Well, I think the court in interpreting the statute found it.

Justice Hugo L. Black: You think the court added it to the statute?

Mr. Joseph M. Mclaughlin: No sir, I did not say that.

I said, “In interpreting the statute the court found it.”

But what I'm saying is that in the legislative history of that statute, you don't find very much and also in looking at the wording of 301, you don't find too much.

Now, my point --

Justice Hugo L. Black: Now what do you think about this position of the court on cases where you decide nothing but statutory question changing from time to time not according to change conditions but because you changed the membership of the court?

Mr. Joseph M. Mclaughlin: Well, sir I don't know and I can't agree that that's correct, that is if your assumptions are correct.

Justice Hugo L. Black: What?

Mr. Joseph M. Mclaughlin: Mr. -- what -- Mr. Justice Black, I'm saying, I can't agree that there would be a change simply because the composition of the court has changed?

Justice Hugo L. Black: Well, wouldn't that be it if there are no differences?

Mr. Joseph M. Mclaughlin: I said Your Honor, I think that it -- the same Justices could conceivably have come to the conclusion and this Court has done this before.

Come to the conclusion that it did something incorrectly some years ago and rectify it.

I don't think there's anything unusual about that either in the -- our legal system in the United States or in the decisions of this Court.

Justice Hugo L. Black: Was not usually done eight years afterwards but sometimes it is (Voice Overlap) --

Mr. Joseph M. Mclaughlin: Your Honor it's been done lately --

Justice Hugo L. Black: (Voice Overlap) those of the statutes just because as the court change.

Mr. Joseph M. Mclaughlin: Now another thing that's been suggested is that discipline is a means of controlling this.

Sir, you can't fire your whole warehouse crew.

I don't have enough time to dwell on these things.

Its illusion, it's a snare.

Disciplining employees doesn't do any good because you need them.

You're in business to produce goods or to sell goods as the case may be.

Next, they talk about quickie arbitrations.

Quickie arbitrations are misnomer, they're an illusion, the best illustration of that, we covered it in our reply brief, the best illustration of it though is to be found in the New Orleans Steamship case where they had a quickie arbitration procedure, quickie, yes.

The hearing lasted for four days and the decision didn't come out until over two months later.

Now, in summary --

Justice Hugo L. Black: Do I understand that you're talking against arbitrations now?

We might have somewhat the same language?

Mr. Joseph M. Mclaughlin: No, Your Honor, you don't understand me or if you do understand me to be saying that you misunderstand me.

What I'm saying sir is that there has been a suggestion particularly in the brief of AFL-CIO amicus that perhaps a proper substitute would be the negotiation of so-called quickie arbitration provisions and we've been at some pains in reply brief to point out why this isn't so and I was just in my argument passing by and adverting to that fact sir.

In any event --

Justice Hugo L. Black: Or rather will --

Mr. Joseph M. Mclaughlin: Pardon me, sir?

Justice Hugo L. Black: Or rather will be.

Mr. Joseph M. Mclaughlin: Sinclair was wrongly decided and as I say, we think it should be reversed.

And I pointed out what I think or the really the thorny thicket that -- I mean this business of really painting the court and the profession and the law into a corner if we continue down this path because of the fact that we now have to decide if Sinclair remains viable, we have to decide what we are going to do about remove state court injunctions.

We get by that, what are we going to do about the power of state courts to issue injunctions particularly, well for some reason they aren't removed.

Now, I would suggest that a proper accommodation of Norris-LaGuardia and Section 301 sanctions the injunction in this case, it's a vital part of Section 301's effectuation.

I would say that the availability of the injunction is far more necessary to Section 301 than it is detrimental to Norris-LaGuardia and therefore its respectfully submitted that the judgment of the Court of Appeals for the Ninth Circuit should be reversed with instructions to affirm the order of the District Court.

Chief Justice Warren E. Burger: You'll have three minutes left tomorrow morning for rebuttal counsel and we'll suspend now until tomorrow morning.

Mr. Joseph M. Mclaughlin: Thank you.