WINDWARD SHIPPING v. AMERICAN RADIO ASSN.

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Argument of Howard Schulman

Chief Justice Warren E. Burger: We'll resume arguments in Windward Shipping against American Radio Association.

Mr. Schulman, you have 27 minutes left.

Mr. Howard Schulman: Mr. Chief Justice and may it please the Court.

Of the -- just before the recess at yesterday’s session, discussion was had relative to the wages being paid the seamen aboard these foreign vessels and I want to make it quite clear that is not an issue in this case.

The only purpose of that is to show the truthfulness of the picketing pursuant to this Court’s dictates in Linn versus Plant Guards.

The underlying issue in this case, as we see it, is really one of jurisdiction.

We do not think there's an issue present here of access to court, but one of applying jurisdictional standards.

As we see it, this case breaks down into a dichotomy on the one hand of what we refer to as conduct of the trilogy nature, meaning the Benz, Incres, and McCulloch.

On the other hand, we have present, this Court’s holdings in Marine Cooks and Panama and Ariadne as to whether it really is the exercise of Section 7 rights, and I'd like to direct my attention to that dichotomy.

It is clear that in McCulloch, Benz, and Incres present there was an attempt and conduct by the Unions to organize, represent, in effect, be the statutory bargaining agent for the people aboard that -- those vessels.

And this Court, in Ariadne, summarized that conduct in the holdings.

And, contrary to what my friend says, the -- there are only certain maritime operations of a foreign-flag vessel which are without the reach of a statute and Congress never intended the statute to be applicable.

And when the Act was construed in the trilogy cases, it was held that the construction they have sought not requested, this Court said, would necessitate inquiry into the internal discipline and order of a foreign vessel.

And, it was that intervention and only that intervention, that this Court felt and the holdings go, would bring about the possible conflict in international law.

Thus, as this court went on further in Ariadne, the Act never had any intention to cover in its coverage disputes between foreign ships and their foreign crews.

That is what is referred to as to the internal order and discipline.

The court again, referring to the Ariadne case, said, “The conduct, there present, belied any intent of involvement in that relationship and it is that relationship which could possibly lead to the conflict with foreign or international law and, in effect, present in the trilogy cases was our exporting of American law upon the vessel.

Now we turn to the other part of the dichotomy, the activity of American citizens here in the United States and the exercise of their Section 7 rights and, that, we have in Marine Panama -- Marine Cooks versus Panama and in Ariadne.

In those cases, we have American citizens saying -- paraphrasing as follows, “Look, we have had employment here in the United States for many, many years.

And we now find ourselves in a terrible situation economically.

For many reasons, truthful reasons, our employment has been taken from us here.

Right here in New York Harbor, in Seattle Harbor, in San Francisco.

And we ask you as fellow citizens.

Please do not patronize these vessels which, we are truthfully saying, are taking our employment.”

That's Section 7 rights as we see it and that is the exercise by American seamen, as a class of working people, the rights to which they are entitled.

Now within that dichotomy, and that's what we're faced with, the State Court has the jurisdiction.

As this State Court below did, it took the case and the court said, “Where does this proverbial apple fall?

Does it fall within the trilogy conduct and, therefore, there is no Labor Board's jurisdiction as McCulloch, Benz, and Incres hold or does it fall on the other side of the orchard which, in effect, is the preservation of their domestic employment?”

The court made the decision.

The Court concluded that the conduct engaged here was not trilogy conduct and that, under those circumstances, having exercised jurisdiction and having found that it is activities to protect their domestic employment, the Court concluded that based upon this Court’s decision such conduct is suggested as actually protected conduct and certainly arguably protected.

Chief Justice Warren E. Burger: You've spoken, Mr. Schulman, of the message that picketers were undertaking to give to Americans, that is, “Don't try to -- don't patronize these people.”

But, the -- is there -- would it be fair to say that there is another message involved here to foreign-flag ships, that is, “conform to American standards or keep out of our ports”?

Mr. Howard Schulman: No.

Chief Justice Warren E. Burger: Is that the other message?

Mr. Howard Schulman: No, Mr. Chief Justice.

What the message --

Chief Justice Warren E. Burger: But if they conform to American standards, you would then -- are you saying that you then have no basis for picketing?

Mr. Howard Schulman: No, what I am saying is if we, as American seamen, have our employment opportunities, then we have no protest.

Now, but what we are seeking is our American opportunities.

To give a classic example, yesterday, in reference to a question referred to my friend, he mentioned a case in Mobile, Alabama, before the Alabama Supreme Court.

And in that case the record shows, Your Honor, while these people were protesting for their loss of employment, two American vessels were laid up looking for work.

This is what we are talking about.

We are not seeking under any circumstances, to tell to any foreign nation that they cannot come to the American -- was what we are seeking is a protection of our employment, our domestic opportunities to give us an economic opportunity.

And I realize that lying around is fine but we are also cognizant, equally so, of repercussions.

We recognize that Congress possesses the power, if it sees fit, for example, recently in the railway labor industry, where the given federal right to strike was exercised and Congress recognizing a particular situation, moved to it, and passed a legislation accordingly.

We're not engaging in that conduct, Your Honor.

Anymore so than in the famous Court Everett Board holding in the exercise of the Section 13, a right to picket, there is a rippling effect.

Chief Justice Warren E. Burger: Let's get back to my question.

If the foreign ships in question met American standards, do you say, do you conceive that you would not have any right to picket them?

Mr. Howard Schulman: Oh! I would say the -- they would not be substandard but not be truthful, Your Honor, and we've got to have truthful picketing.

That's the direct answer to that.

Chief Justice Warren E. Burger: Now -- then from that, on the basis of what either what you said yesterday or perhaps what your friend said, would you say that it is a fact that no country in the world, having maritime activity meets our standards, are paid?

Mr. Howard Schulman: I would say we -- I don't know of no country, I would say we enjoy one of the highest standards of living and that's why we're referring to.

Chief Justice Warren E. Burger: Isn't it almost so widely recognized in maritime circles that it would be judicially noticed that if --

Mr. Howard Schulman: I think it is a fair statement.

Chief Justice Warren E. Burger: No one -- no country in the world matches our standard.

Mr. Howard Schulman: That's a fair statement.

Chief Justice Warren E. Burger: Then, that means that no ships of any country in the world can come into our ports free of this kind of demonstration, is that not so?

Mr. Howard Schulman: That's an assumption I would not accept because if any responsible American citizen exercise that power, that's a political question and I think Congress would move to the issue and probably so.

And this picketing demonstrates it, Your Honor, contained in our brief as the Port of Houston authority case.

In there, the Court refers to an attempt -- and I'll refer to very shortly.

There are 49 docks in that harbor, legions of ships.

Chief Justice Warren E. Burger: And now you're talking about the economics of it.

Mr. Howard Schulman: No, there were three vessels being picketed, that's what I am saying, Your Honor.

The situation comes about anymore so than if you have domestically, in the United States, Steel Mills and organized Steelworkers stand in front of another place and saying, effect to them that their standards are below.

This argument I think, is analogous.

For example, then you could have no more steel mills unless they pay those prices.

I don't think that is the fundamental argument and I think, fundamentally, that is more addressed to a political argument.

As I review Section 7, Congress said, and it's announced in this Court’s Benz decision, that when they passed the Act they gave the American worker rights of dignity, an economic rights to be exercised here in the United States.

And Congress has taken away rights when the exercise has become extreme and people act irresponsibly -- irresponsible.

There is nothing in this case, Your Honor, to indicate at any stretch of the imagination of irresponsible conduct particularly in light of this record of the loss of employment and the literal fight of these American seamen to preserve those which are remaining.

That is the issue involved.

To 8 Nth degree.

Yes, of course, any power possessed by any worker in the United States in the combination may conceivably lead to a result which may not be beneficial.

But, is that not an issue for Congress to determine rather than a question for our judiciary to determine if that occasion never arises.

It has not arisen and that's the important issue here.

Chief Justice Warren E. Burger: Who decides now which foreign-flag ships are to be picketed and which ones are not to be?

Mr. Howard Schulman: I would say the issue resides where there is the greatest degree of unemployment and (Inaudible) opportunities.

If it happens to be in a particular harbor, like in Mobile where there are legions of American seamen unemployed, then it may be that the activity may take place frequently there and perhaps in the Port of New York no activity because of unemployment situations.

I think it's no different than you have what we refer to as are stand, it's picketing in the United States unrelated to maritime.

Where does that take place?

Maybe it's down the south where there's unorganized people.

This is what I'm referring to and in our case, it takes place in instances and that's what's taken place but there's been unemployment.

And further significant to that, Your Honor, those questions have been raised about the Mobile case.

Number one, questions have been set -- raised about two other cases appearing in the Government’s amicus brief referred to and one in Wisconsin and one in Minnesota.

And in all those instances, the Court pleases, that the record shows some people cooperate and some didn't.

Some longshoremen worked and some didn't work, and that's the record.

What I am saying is the weighing we have here, as I view it, upon the one hand, the right of American seamen is a federal right given to him.

We were not excluded as a class from Section 7 rights.

Congress did not say everyone is entitled to Section 7 rights except American seamen.

Congress gave us the rights like everybody else, and if we're going to be excluded let's be excluded by Congress where we have an opportunity to argue the merits of the case.

Let's not be excluded by the courts.

This is what I find the heart of the issue and that's taking place, as I see it, is a studied attempt by these interests to do just that, take away our Section 7 rights and our right to strike and protect our interests.

Let me give you the example of what I'm referring.

Port of Houston authority case is one of the steps they did.

They went into the Federal Court in Houston and said to them, “Look, you are going to make an exception to Norris-La Guardia.

What is the exception?

The exception is international treaties, international relations, and all our ports will be tied up.

District Court and the Circuit unanimously affirmed and this court denied Circuit and the Circuit said, “Look, don't come to us with that.

Go to Congress.

Come and see what the second step is.”

They didn't turn around to us here and say, “Look, we have articles, ship’s articles, whatever they're referred.

They're being interfered with.

We want to export that law into your jurisprudence and give honor to that,” and this Court (Inaudible) cases said “we won't do that.

This is our jurisdiction.”

Now, let's move to the third area of what they're saying.

They're then saying carve out an exception from Section 7.

Everyone in the United States is entitled to Section 7 rights but not the American seamen.

Carve that out in the interest of international relations.

Then they hit what they think is the last point and they say in the Merchant Marine Act of 1970, Congress passed some legislation to help the American seamen, therefore, that should be justification, an implicit repeal of Section 7 rights.

And, this is what we are faced with.

We are faced with the rights of American seamen.

We have done good service as American cities -- citizens and I need not plea that right.

We've lost our jobs.

We have come to the only place we can come, the American Public.

You've said to them, “Please help us.

Here is the truth and here are the facts.”

This is what we think we have a fundamental right to do aside from constitutional issues, and the opposition has the opportunity, have access to the courts.

If we're engaging in conduct of the trilogy nature, then we should be enjoined.

We make no bones about it and we're not.

In fact, we want to austersize these vessels.

We want no part of them.

Really, where the case boils down to in the final analysis is do American seamen have Section 7 rights or are they excluded?

I don't think they're excluded and I don't think any court, not jurisprudence in our country should make that determination.

I say it most respectfully.

This is a right we have had and this is a right, if we're going to lose it, let's lose it in the Halls of Congress where we can make our points.

Yesterday, Mr. Chief Justice, you asked me about an analogy if the United Automobile Workers put up a picket line and I think their proper association of that is follows.

Assuming Volvo move their factory to Virginia and paid the substandard wages, I think United Automobile Workers will have the perfect right to protect it and that's what's happening to us.

They are moving, these factories in on us day after day and we have no employment.

This is the thrust of my argument.

There is one last argument.

Not really an argument, a request to make and I am absolutely embarrassed to make it.

Last Thursday, I came to my office.

I was served with a supplemental memorandum from the Solicitor’s Office as amicus.

I called the clerk’s office on Friday to protest the fact that I know no provision and any rules for this, there was no lead made to this court, no lead was granted and equally significant in plain fairness and fair play to have an opportunity to reply.

Directed by the clerk to make my request to the courts to find unusual in circumstances.

And my press request is just, fundamentally, either that that supplemental memorandum be rejected as not following the rules or have a reasonable opportunity in fairness to reply to.

As to the last issue on the case, not really in the case, the issue with respect to our constitutional rights to picket.

That was not tried below though we pleaded it.

We have no reason to believe that Texas Courts would deny us our constitutional rights but we do believe, however, that present in this case is activity which has found by the court below falls in the orchard, as I call it, of Section 7 protected activity and it's Section 7 Act protected activity which is actually preempted which the court may not go into.

I have nothing further to add to it, Mr. Chief Justice.

Chief Justice Warren E. Burger: Mr. Schulman, if you would like to respond, you may do so in a week or 10 days, of course sending a copy to your friend.

Mr. Howard Schulman: Yes, of course. Thank you, Mr. Chief Justice.

Unknown Speaker: But I gather, in responding, you are not withdrawing your application to us to reject.

Mr. Howard Schulman: No, I am not, Your Honor, because I think that's essentially political arguments contained in our brief.

Unknown Speaker: Well, but your ground, I gather is that there's nothing in our rules which support it.

Mr. Howard Schulman: No.

Unknown Speaker: Solicitor General is firing about it.

Mr. Howard Schulman: No, there was no authority.

This was filed 90 days after the rules provide.

Chief Justice Warren E. Burger: Thank you, Gentlemen.

The case is submitted.