AMERICAN RADIO ASSN. v. MOBILE S. S. ASSN.

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Argument of Howard Schulman

Chief Justice Warren E. Burger: We'll hear arguments next in 73-748, American Radio Association against Mobile Steamship Association.

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

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

I find myself back again in a return voyage, it appears like in the -- on behalf of Merchant seamen.

It was initially I was here and on behalf of questions of their rights under the Federal Labor Act and we have an additional point today which presented to the Court of the free speech First Amendment rights.

We had intended to devote substantial time to both arguments.

Now, whether on the light of a unfortunate reputation by the Solicitor General.

Again, without leave of this Court and submitting an untimely brief as he did in Windward, we then be compelled to devote a little more time to the presumption argument than we had originally contemplated.

Present here as distinguished from the Windward case where in Windward, the claim was by the ship, the foreign ship owner.

The conduct of the unions there interfered with the ship's contract among it seamen and its internal labor relations.

And for that reason, this Court determined that it fell within the parameters of the Benz doctrine that the act was not applicable.

Now, we have a totally different picture here.

In this instance, the association of mobile stevedoring employers brought the action in the Alabama State Court alleging almost the verbatim practical provisions of Section 8 (b) 4 of the Act that these pickets had directed their activities to the stevedore employees of the association, caused them to breach their agreements, induce them not to go to work upon this foreign vessel and claimed at that time that therefore they're entitled to an injunction.

Now, when we look at both the complaint of the respondent in this case and as an additional respondent, I don't want to forget him, a farmer who has had some produce and claimed that his right to do business was interfered within so far as the Longshoremen wouldn't load his grain aboard the vessel or unload his grain to put aboard the vessel.

When we look at it in the final analysis of what has happened in the factual context of this case, you have the Alabama State Court not passing upon their merits in the Windward case of the internal economy of the vessel.

The foreign seamen there contract with their ship owner but on the contrary, you have the Alabama Court regulating the employer-employee relations existing between the Longshoremen American Association Employer and its employees and the American Seaman Unions.

And I say in that respect that this is conduct when you examine the congressional scheme which was left exclusively to the competence of the labor board.

Now, there are many illustrations of this patent of conduct, it is not unique.

There are many areas where under the congressional scheme as determined by this Court and so applied where the underlying dispute, the causes of dispute, the primary dispute is without the competence of the board.

Nevertheless, other aspects of the dispute remained within the sole and exclusive authority and I'd like to just comment upon appeal as I may.

I think for example, the Broome, Hattiesburg case where in that instance, the Labor Board had determined on a standards of commerce that the parties in that instance did not meet the requirements, the caution for commerce and determined under those circumstances that there was no jurisdiction over the primary dispute, there was no commerce.

Nevertheless, this Court held in that case that conduct complained of, the secondary conduct within the congressional scheme of regulating a conduct of American employers and American unions where within the exclusive profits of the board.

And we've had three cases in maritime to that effect and Mr. Chief Justice may recall one of them, he prepared one of the arguments in the Grain Handlers case against local -- against the NLRB.

The first one however comes out of the Fourth Circuit and you get the identical pattern with the Longshoremen in that case and it's the local 1438 NLRB.

The Longshoremen in that particular case were picketing the vessel, claiming political reasons.

The one of the issues presented there was whether or not the board under those instances because it was a foreign flagship owner had competence to process such a complaint or such a challenge and the circuit held yes and what the conduct there complained of nor the conduct the board was seeking to remedy was not the internal affair of the vessel pointing out clearly, that's what Benz inquiries and McCulloch had stood for at that posture in time, then the contrary, the relationship existing among American employers, among American unions and American workers.

Now, the same context came up within the D.C. circuit and in the Seventh Circuit involving Canadian vessels, came out at the same context, one at a preliminary injunction stage and one in enforcement of the board order.

And in those cases, the unions in both instances took the following position.

They said “look, the underlying dispute involved here is one involving a Canadian foreign flag vessel, Canadian ship owner for -- where can I endure that distinction quite clearly between a foreign flagship and a foreign ship owner.

In that instance --

Chief Justice Warren E. Burger: Has the Court made that distinction?

Mr. Howard Schulman: I read Windward, the Court talks about foreign ship owner.

Chief Justice Warren E. Burger: Well, have we ever made the sharp distinction --

Mr. Howard Schulman: No.

Chief Justice Warren E. Burger: -- that you're making between foreign flags and foreign owners?

Mr. Howard Schulman: No, I don't think that there's any sharp distinction, I'm speculating.

Justice Potter Stewart: Well, the Jones Act to context we've talk about deliberately?

Mr. Howard Schulman: And the Jones Act, yes and wrote deed as you have.

Justice Potter Stewart: That sort of the way --

Mr. Howard Schulman: This Court has and also under Rededus (ph), the comments directed by Mr. Justice Harlan and that McCulloch holds that you can't have this evaluation as balancing and nevertheless, the majority -- where dealers majority apparently did not accept that and directed no comments to it and again I assume that they paid attention and disagree.

Now, I think we're talking about Mr. Chief Justice, the Windward opinion talks about foreign ship owner and I assume when the Court use foreign ship owner it means just there.

And it's a different issue and it's a different question that's not before this Court.

And they may very well pose a different issue and on effect you got a foreign flag vessel constructively by lower American owned.

And as many these major petroleum and multi national corporations exist, the Liberia where there was no question and admittedly for their own spokesman that these vessels are American owned directed by Americans under a pledge to be kept that way, constructively Americans and subject to their call and I think their concerns for relationships with respect to what I refer to you formistically as a true foreign ship owner and another, I think it differ but in all candid, I do not --this case, with that particular fact pattern is not before this Court.

Now, in addition to maritime and in addition to questions of whether or not the volume of the business keeps a particular employer within the coverage of the act, there are other instances as well.

Example, the railroad, this Courts decision in New York Newhaven, local 25.

There, the underlying dispute involved there was not within any competence of the act.

And yet this Court held as another demonstration then under those circumstances, what the complaint of, what are the party complaining up there was this secondary conduct within the competence of the Labor Board and if this was part of Congress's scheme, I think the last illustration, I'm sure there's many more, the last one that I could possibly come across is the agriculture industry.

That the agricultural industry is not within the board's competence and nevertheless, there are cases and we cite the Ninth Circuit enforcing the San Francisco labor counsel but not withstanding the dispute with the farm labor, the Chavez group.

Nevertheless, American union subject to the act, American employers, the Labor Board has jurisdiction, exclusive jurisdiction at least under Garmon, its arguable prohibited.

Now, this is what I see and but what we see what this case is all about.

The Solicitor General, the Government composes that it doesn't -- the analogy we gave where the authorities doesn't apply and cites Hanna Mining and I think I like to direct a few minutes attention to this Court's holding in Hanna Mining.

Hanna Mining case was an attempt by an American officer's union to engage in picketing waters of the State of Wisconsin to compel the supervisors and compel the employer as well to make these supervisors join the unions.

And the case came before this Court and to go to Wisconsin Court finding that that conduct was arguably within the can off or the exclusive jurisdiction of the board.

Mr. late -- Mr. Justice Harlan made quite clear in that case that the conduct which was sought to be remedy finding no such preemption was conduct which would go unregulated which Congress in its scheme said the Labor Board should not regulate and that to come down with a result and to find that the State Court is preempted by the Labor Board would leave that conduct totally uncontrolled.

And in that instance, on the -- I think that Mr. Justice Brennan held in his concurring opinion.

The union there, we're just complaining incidentally there with secondary conduct but the core is a language I think Mr. Justice Harlan used the vital core of the dispute, was the attempt by the engineer's union to organize these people through economic force and that was any of the desires of their member which was not controllable at all, even under the Federal Court particularly in view of Section 8 (b) 7, and the fact that the supervisors I should say are without the structure of it.

Now, that is a world's apart totally different analogy of context in any sense of arguing with this case.

Here, the foreign ship owner, if he has a cause to believe as a remedy in the State Court, we can take whole of any conduct which interferes with an attempt to breech the agreements between the foreign seamen and the foreign ship owner, the articles, the contract.

And when -- in Hanna Mining, the result as determined by the Wisconsin Court did not permit of that and I am directed to in substance what we are talking about is the congressional scheme, I think we all come back to that again as to what Congress had in mind as motivations in purposes this were.

Congress had in mind that American employers and American unions -- American working men most significantly had certain rights, their accommodations and their adjustments.

And that 8 (b) 4 encompasses all that legislative history on debate so that not only a certain conduct intended to be prohibited involving neutrals but there is also certain rights protected activity which Congress determined should be exercised by American workers.

I find frankly to be subjectively quite along Solicitor General's proposal of what he calls concurrent jurisdiction.

What do you say, but he's asking this Court to do, not withstanding all his legislative history is the following.

He says “insofar what affects the secondary conduct as in this case.”

And you look at page 29 of the appendix of the Alabama Supreme Court's injunction and they don't say a word about the foreign vessel.

They just regulate my client's conduct and this employer for all vessels, American or otherwise as if this was a typical garden variety Labor Board injunction.

And the Solicitor General says by concurrent jurisdiction of that regulation, of that secondary conduct should be in effect by force, not under Federal Law though, not like under Section 301 of the Act for breech of contract or Section 303 for damages for violation (Inaudible) where state courts have jurisdiction, concurrent jurisdiction but must deployed federal law, oh no.

The Solicitor General opts for a situation whereas my friends on the other side get two bites of the apple, not one and maybe other people will get equivalent two bites.

He says there's concurrent jurisdiction between the Labor Board under one hand to take a look into it to see whether conduct is prohibited or whether it's not violative.

And on the other hand, it's a right of the party to go to state courts.

I frankly find this totally at odd with the many decisions of this Court are relative to intent of the act and we're talking about secondary board of conduct and the need for uniformity and Section 10 (a) is command for exclusivity.

I find other interest in fact as coming out of it, you could arrive at a situation where peoples such as the respondents here could go into a state court and get relief under state law where there's a yellow lonely guy and do some breech of contracts of other concept for which the top Court of Alabama may affirm and which there's no federal question to come before this Court.

Yet another party goes before the Labor Board and the Labor Board's case comes before this Court and he get it diametrically uphold the situation.

That's only some of the errors, there's more significant errors.

Here, I believe 30 somewhat to coastal stage, were on water in this country.

I believe they have 30 somewhat interpretations, but then they gave on the states as the impact to secondary boycotts, that would be totally violative at the Congressional intent.

How do you similar problems with the Solicitor General's conduct?

Norris LaGuardia was an intrical part of our labor policy which says federal courts generally are prohibited from issuing injunctions.

And yet code of that 1635 and congressional legislative scheme Norris-LaGuardia is to reserve solely to the federal system certain conduct which carries with it that state courts are not to act on it and the same state court absent little Norris-LaGuardia act have no such proscription, we wind up again under this opted for policy coming out at the extreme once again.

And finally, in connection with somebody that appears to me to be similar, our stories is the question of Section 10 (a) in its expressed congressional attempt of ceding the board jurisdiction but it's got to be consistent with the act.

There's got to be an agreement consistent with it and the law must be equally applied.

And under the Solicitor General's contention, we totally violate each and every one of those terms and provisions.

I think there is of course an even more significant point.

Mr. Justice Rehnquist in the Windward opinion cited this Courts Lorensen -- Lorensen case.

The footnote there of brush appeals and that brush appeals are the same in those instances who wanted this Court to legislate the fact.

I say this is equally of nothing more a brush attack but the Solicitor General would do that but there's something more significant which was not present in either Lorensen or in (Inaudible).

Since this case, there has been proposed in both houses, legislation which seeks to preserve domestic employment opportunities for American seamen and that's what they we're engaged here.

It's known as the energy Transportation Security Act of 1974, extensive hearings were held.

Solicitor's client state department came before both houses and may each and everyone of the argument he's making subjectively in his brief.

National concern, concerns for the economy, international relations, exacerbation, and the economy was not successful.

For whatever reason, whether they disagree or found no basis or made the adjustment, Congress has moot and Congress has passed out bill in the following manner.

The bill was passed over one merely in a house, rejecting the state department's proposals, overwhelmingly in the senate, the conferees of both houses have met, the reports of the conferees has been acted upon by the house and accept overwhelmingly.

The senate's report will be acted upon by just recently over the recess.

But equally significant is that the Solicitor General recognized.

Now, the prop before and where to go with this sort of argument is not to drag people with this Court.

Justice William J. Brennan: What does that bill do now?

Mr. Howard Schulman: The energy transportation security?

Justice William J. Brennan: Yeah.

Mr. Howard Schulman: And we have it in our brief, cited in another brief.

Justice William J. Brennan: Distinctly what -- how's the --

Mr. Howard Schulman: Well, what the law says is that import of American oil, of petroleum products in this country, it's got to be carried 30% of the 30% in American flagships as the legislative history demonstrates one of the purposes as expressed by senate alone.

The law in colloquy with the Assistant Secretary of commerce was to make sure that there's a domestic employment opportunities for American seamen.

Justice Potter Stewart: Is this what, exports or imports?

Mr. Howard Schulman: Imports of petroleum products.

Justice Potter Stewart: Imports to our country of petroleum products?

Mr. Howard Schulman: Petroleum, carriage of petroleum products into our country.

Justice Potter Stewart: 30% has to be an American balance?

Mr. Howard Schulman: Correct, up to 30%.

Justice Potter Stewart: What do you mean up to 30%, there could be zero?

Mr. Howard Schulman: No by 1977 as a graduated scale.

By 1977, it's got to be full 30%.

Justice Potter Stewart: I see.

Mr. Howard Schulman: Certain rights are reserved in light of emergency obviously to suspend upon action of the executive legislative fringe.

Justice William J. Brennan: None of that has any bearing on the issue we have here?

Mr. Howard Schulman: Doesn't have any bearing on it.

No, other than it demonstrates to me that each and every one of the arguments the solicitor has used here, and its briefs submitted to this Court.

He has used before Congress and we so demonstrate it in our supplemental brief and we cite where it's used.

And then each and every instance, the Court as to the Congress has just rejected.

Chief Justice Warren E. Burger: But Congress is making a policy decision, is it not?

Mr. Howard Schulman: Yes, and that's what I believe however.

Chief Justice Warren E. Burger: Do you think that's what we're making here?

Mr. Howard Schulman: No, I think the solicitor is asking you for -- of course when you read his brief, he talks about their concerns.

He is saying this should be so because of the concern for prior relations.

This should be so because of concern for national affairs.

This should be so because the concern for the economy. Each and every instance that to me it presents an issue purely legislative and equally significant made by secretary, the secretary of the state as well as other agencies administered government taking the branch to Congress and not accept it, and that to me is a brush appeal.

Maybe my subjective pleading as in advert to get us a little color but what appear to me and if you've gone to one forum body and you rejected there, it doesn't suit well to look for another suitor or to go to another forum, you go shopping, and I submit and so submit state, I believe this was the solicitor is doing here, doing just that.

I see I have just a few moments and I just like to direct a few remarks to First Amendment argument, the free speech argument.

The Alabama Supreme Court in talking about the conduct involved here.

The conduct involved was the same conduct we wind, of the same conduct of national policy action of this which is all over the country.

New picket sending out signs, asking for help and assistance protected jobs.

Alabama Supreme Court says in approaching that issue that first of all, it has the right not withstanding I submit, first before to the amendment to seize and issue a notice restricting all picketing pending that's looking in to the purpose of objects where the effects may affect the national economy of the state.

And as I read this, is the prohibited conduct which this Court express, in Thornhil up to Kiff of a blanket provision saying when that affects the national economy of our local area that our state policy is that all injunct or picketing is to be restrained, we know of no such authority to that effect.

I do not think that a state possesses that right on the mere expression that it may affect local economy to stop all free speech.

That has not given, that is not bought, that is not Hankey and the other cases authorizing labor disputes, state valid policy and the demand open to them for specific conduct to restrict the specific conduct such as anti monopolist.

And I think there's more in this case if we find argument in the brief.

In addition to that, Alabama says, wrongful interference and nothing more, just the two words, wrongful interference, the person's right to do business with the matter of state policy may enjoin picketing.

I submit or patent in the economy, I submit, that runs directly about this Court's decision in Kiff where the man was engaged in business at his house.

That goes the problem I believe.

Alabama may not so broadly restrain, have not established the confines, the valid state for the policy assuming the domain is open to them, assuming there's no preemption.

And finally, we have involved here what I think in the final analysis is Alabama making a finding by its Supreme Court when the District Court and the Local Court made no findings effect and the Alabama Supreme Court in answering objection to that say, well, they must have made certain findings otherwise they wouldn't have issued the injunction.

I guess under those circumstances, we don't need appellate Courts but not withstanding that.

The issue which we have presented there and we enumerated quite bit in our brief is that they've hit upon a personal hope and desire of a very low official who testified under very scheme for cross examination my good friend prompt me corrected it, as to his personal hopes and desires, what he would personally like to see and admittedly have nothing to do with the campaign other than to serve the picket lines and carry the instructions out.

And based upon that, the Court said, the purpose of this picketing may have been to tie up the whole harbor until Congress brought some legislation to bring the whole harbor down.

And I say, under this Courts decision in Grain, we need to search the record to find subsisting facts, essential facts to warrant the restrictions of the First and Fourteenth Amendment should be made in this case and I think when they're made in this case, there is no finding that the conduct of this individual, his own personal hopes and expectations could be charged against the conduct of this committee and his thousands of American seamen was merely exercising a fundamental right.

I reserve the few moments left if I may Mr. Chief Justice.

Chief Justice Warren E. Burger: Very well Mr. Schulman.

Mr. McRight.

Argument of Frank Mcright

Mr. Frank Mcright: Mr. Chief Justice and may it please the Court.

I quite frankly thought with this Courts issuance of decision in Windward the petitioner's preemption argument wouldn't be urged.

The picketing in Windward was the same as the picketing in Mobile.

It was furtherance the same national program involving the same unions, the same picket signs, having the same effect, using the same leaflets.

The same consequences in Windward as this Court noted in Windward were noted by the Alabama Supreme Court as to the picketing in Mobile.

Was either the force are raised in the internal standards of those vessels or to block those vessels from the use of US ports.

And of course this Court held that in Windward, under those circumstances, the picketing was not subject to the jurisdiction of National Labor Relations Board.

Essentially, the petitioners argued two distinctions between this case and the Houston picketing in Windward.

One, they have apparently abandoned here an oral argument, that is the allegation that the vessels involved who are constructively American owned.

So we won't need to talk about that.

The other distinction is that although the primary dispute here may not be in commerce, there were secondary effects which are in commerce and which are subject to the jurisdiction of the National Labor Relations Board.

Of course, in Windward, we were talking about the picketing not being in commerce.

It's the same picketing here that was involved.

So, this Courts determination that the picketing was not in commerce, certainly should carry some weight beyond the allegation that the primary dispute was not in commerce, and it was the picketing here that was the subject of our complaint.

The allegations of the state court complaint were against the picketing specifically.

Paragraphs 20, 21, 22 of the complaint “complained of picketing and other interference directed at the foreign flag vessels and of Mobile.”

So it was the picketing itself that was a basis of the Mobile Steamship Associations complaint.

The fact that there maybe secondary aspects involved here has pretty well been disposed off.

I think this Court in Hanna versus MEBA indicated that where the primary dispute in that case, a dispute involving efforts to organize supervisors, employees not covered by the National Labor Relations Act, indeed foreign crewmen not covered by the National Labor Relations Act here where the primary dispute was not in commerce as this Court held in Windward, the fact that a state court injunction might in fact regulate some conduct arguably subject -- arguably violative of Section 8 (b) 4, did not prevent the States Supreme Court from -- state court's from acting.

The Court indicated Mr. Justice Brennan in the concurring opinion that the issue was where the Congress had excluded state regulation of picketing outside the coverage of the Act when the picketing also has secondary aspects arguably within the rates of Section 8 (b) 4 and the Court said no.

That in that area, federal occupation of the matter is at the minimum and state power is at peak.

Justice Byron R. White: Well, let's say then you're just saying the preemption doctrine shouldn't apply rather than arguing that it was -- that the impact on the stevedores for example was not arguably within the jurisdiction of the forum?

Mr. Frank Mcright: Yes.

I am saying that the complaint that the stevedores made was against the picketing.

Justice Byron R. White: You would concede and still make your same argument.

You would concede that at least arguably the stevedores would have a remedy under 8 (b) 4 before the board?

Mr. Frank Mcright: Your Honor I think we might allege it but I'm very much afraid that under the --

Justice Byron R. White: Arguably you could, because you are a neutral employer -- you're appealing the pinch?

Mr. Frank Mcright: Yes sir.

Justice Byron R. White: And maybe the primary employers are subject to the act, but nevertheless, you are the --

Mr. Frank Mcright: I don't think under those circumstances that the board under Windward could get its hands on the real problem though.

And the real problem here being the picketing, the coerce at picketing directed at the foreign flag vessels.

Justice Byron R. White: Well, a neutral employers in commerce and it's subject to --

Mr. Frank Mcright: Well, I think the situation there would be --

Justice Byron R. White: But anyway, you're argument primarily is, even if that's true, the preemption doctrine shouldn't apply?

Mr. Frank Mcright: Yes sir.

Justice Byron R. White: So you're -- the Solicitor General seems to compel to say that this is arguably within the -- in the jurisdiction of the board but nevertheless there should be concurrent jurisdiction in the state court, is that your argument?

Mr. Frank Mcright: I think that's the substance of what he is saying.

I'm saying that the real problem here with the picketing was -- and we'll get into that in a few minutes on the constitutional question.

The real problem with the picketing here was that it interfered with the operation, the Alabama state docks had shut it down and it virtually close the port of Mobile and could close the ports to this country to foreign shipping.

I don't think the National Labor Relations Board has jurisdiction to entertain that kind of objection.

Justice William J. Brennan: So that you don't agree with the Solicitor General?

Mr. Frank Mcright: Not entirely, no sir.

Justice William J. Brennan: You say that there's no preemption at all, not even to the extent of allowing the board to have concurrent jurisdiction?

Mr. Frank Mcright: Not as to the -- not as to the complaint we made in the state court, no sir.

Justice William J. Brennan: But if before or after the boards could enjoin the picketing to protect the neutral employer which is pretty close to the certain problem?

Mr. Frank Mcright: Secondary -- if we could prove secondary motive, perhaps but they couldn't get to the problem that we complained of.

Justice William J. Brennan: Well anyway, you'd rather not have to track salary and approve an 8 (b) 4 case before the board?

Mr. Frank Mcright: That's essentially the case.

That's the way with most trained employers.

Justice William J. Brennan: You're happy with the state court having exclusive jurisdiction?

Mr. Frank Mcright: Yes sir.

Now, the -- as to the constitutional issue, and I want to hurry because we've agreed to divide argument, we've got another respondent, the farmer that was injured by the picketing too.

But as to the constitutional issue, I think the evidence is pretty clear that the picketing was not really published to but it -- but really intended, designed and conducted to signal, other organized workers not to go to work.

The picketing commenced within a very few minutes after the ILA, in fact was ordered to return to work by the Federal Court.

It was timed and located to be in the path of the ILA.

The ILA is an affiliated union with the six maritime unions of the petitioners here.

Indeed, the masters made some pallets, one of the petitioning unions is a part of the ILA, the division of the ILA.

They knew, they said they had more than a reasonable expectation that the ILA would not cross the picket lines.

When they -- the unions witness was asked why he didn't time and locate the picketing so as not to interfere with the work cause of the ILA, the comment was made by counsel that that kind of question shows an incredible ignorance of what a picket line is supposed to do, what that particular picket line was supposed to do.

And it was admitted in the brief that the petitioner's picket line meant essentially do not work, do not work in these vessels rather union members and the objective was to in effect was to shot the state docks down to foreign shipping.

It came out a very critical time because at that particular time, the sore being promised --

Justice Byron R. White: Just in case here, do you think that the closest to worthy injunction against this kind of so called information picketing?

Mr. Frank Mcright: Well, I think Hankey sir.

I think this Court in a number of cases has indicated that picketing by organized labor in the plot of other organized labor is more than free speech.

In the Hughes case, the Court said, picketing by the organized group is more than free speech.

The presence of such a picket line may induce action.

In Gibonni, it is clear that the unions were doing more than exercising a right of free speech.

And I would like, because there was reference in the reply brief to the Logan Valley case, indeed the briefs in Logan Valley where the petitioners indicated that there was signal picketing involved there to state for the Court that in Logan Valley, we only had one issue.

The Court only was faced with one issue and that was a pure property question.

There was an appeal to union members but union members as consumers are not union members as employees and I think that's a significant difference.

I think union members as employees or any members of any organized group tend to act by virtue of petitions, tend to act by virtue of to boost and solidarity that aren't involved in a situation where the appeal is purely to consumers asking for by virtue of the persuasive nature of the message individual action.

But in --

Justice Byron R. White: Is there a state court finding here as to the public picketing?

Mr. Frank Mcright: In the state trial Court, no sir.

There was a discussion of the purpose of the picketing and its conduct in the Alabama Supreme Court.

Justice Byron R. White: Was that finding critical to your argument?

What I mean some sort of finding as to what the purpose was, that it really wants to give information about picketing?

Mr. Frank Mcright: Yes sir and I think that finding is contained in the Alabama Supreme Court.

Justice Byron R. White: Where is that?

Without it-- without it you would be urging us to make our own -- do our own reading directly?

Mr. Frank Mcright: Well, I think --

Justice Byron R. White: In the first instance?

Mr. Frank Mcright: Yes sir.

I think there is enough -- enough for the facts shown that the - that the picketing was located in the path of ILA labor that Mr. Nary wanted to shutdown --

Justice Byron R. White: How suppose should the Alabama Court come to proving what you say the fact shows?

Mr. Frank Mcright: Well, on page 14 A of the appendix, the dispute was either one between the union and the foreign ship owners to force a rise in the internal standards of those vessels or one where the intent was to block the use of those ships to force congressional action.

The -- on page 21, the appellants contend that the only purpose was to carry out publicity picketing to inform the public of the flight of American seamen.

The appellee contends picketing was done for the purpose of inducing and encouraging the appellees employees to seize loading.

Justice Thurgood Marshall: What did the Court say as between those two statements?

Mr. Frank Mcright: Sir?

Justice Thurgood Marshall: What did the Supreme Court say to those two statements, did they pick one and there's two, and we'll end this full?

Mr. Frank Mcright: I'm sorry to use the time.

On page 25 at the bottom of the page.

Justice William J. Brennan: 45?

Mr. Frank Mcright: It's 25 Your Honor.

Justice Thurgood Marshall: Well Mr. McRight, the Court that issued the injunction, didn't it find, is it anytime?

Mr. Frank Mcright: No sir.

Justice William J. Brennan: How can you do that?

Mr. Frank Mcright: Well, I'll say this Your Honor.

In Alabama, the practice in custom has not been for the state court to -- as a matter of custom and/or findings of fact, conclusions are low, granted that in the federal system, this is required under Rule 54 or 51, I'm not sure which.

Justice Thurgood Marshall: Well, what are left to do on those cargos because they could make their own finding?

Mr. Frank Mcright: Your Honor I think there's ample findings in the Alabama Supreme Court opinion to sustain the position that you heard.

Justice Thurgood Marshall: You got some more arguments that I've already read I see?

Mr. Frank Mcright: On page 25 and I think there that they take that the Court takes the position that under either alternative, if the purpose was to block the use of Port Mobile to foreign vessels or to force foreign ship owners to increase their wages, either of those would be violative of Alabama public faults.

I don't really --

Justice William H. Rehnquist: Mr. McRight, does the Supreme Court of Alabama followed the custom of many other state courts in reviewing both on fact and law and equity appeal whereas they wouldn't damaged action?

Mr. Frank Mcright: Yes sir and they certainly would because the Court -- the case was tried to a judge and in that event, evidences presented to the Court in the appeals instance is -- can be read just as well as heard by the trial court.

Justice Thurgood Marshall: And we submit it to?

Mr. Frank Mcright: I don't think it's that much there Your Honor and I do think that it's largely uncontroverted.

Certainly, as to the signal effect to the picketing and certainly as to its ultimate purpose, I don't think there's any real controversy of fact over those two points.

And I think that with that in mind that this Court applying Hankey where you have a situation that union members were appealing to union deliver, not make deliveries in order to force recognition of a union by self-employed persons that this Court indicated that balance has to be struck and that balance comes to this Court bearing a way title of respect.

I would like to say that the petitioner's reference to the amicus brief filed by the -- to the briefs field in the Logan Valley case, a very helpful and in particular would ask the Court if it would to take a look at the amicus brief filed by the AFLCI on that case who appeared as amicus here.

I think they recognize the point that we are making that is that signal picketing, because it's by nature so very coercive can be limit even though the act sought is lawful of itself uncoercive solicitation of that particular act would be constitutionally protected free speech.

That statement and other statements begin on page 16 of the brief and our very enlightening on the different kinds of picketing and how my friends on the other side of the table view picketing generally in terms of the constitutional context.

I think the real question here, certainly the Alabama policies, the Alabama state docks is a public facility.

Certainly the picketing interfered with the operation of that public facility.

Their decisions to this Court that indicate that intentional interference with the operation of public facilities maybe constitutionally limited interference with court systems, the jail systems were the subject to the cases of cuts and the appellee decisions.

Beyond that, these unions by their announced purpose could and would close the ports of this country including the port of Mobile, the only seaport in Alabama to foreign shipping.

Foreign shipping comprises by tonnage, I think something like 95% of the commerce, foreign commerce to country, something like 70%, 80% of the vessels that call the port of Mobile fly the foreign flag.

I think any society acting in itself interest can establish a policy.

Indeed Congress could establish a policy if he so wish.

Alabama through its judiciary has recognized that policy that the interference on such a large scale with essential economy of a society can be regulated.

And the question presented is whether or not the petitioners have a constitutionally protected right to use signal picketing to close the port of Mobile, indeed, the ports of this country to foreign flagship.

Thank you Your Honor.

Chief Justice Warren E. Burger: Very well.

Mr. Lankford.

Argument of Alex F. Lankford Iii

Mr. Alex F. Lankford Iii: Mr. Chief Justice, may it please the Court.

In response to Mr. Justice Marshall's inquiry as to what the record show as to the purpose and intent.

And Mr. Right -- McRight commented that there was really no dispute on it and on page 1 -- 126 A, the question was put to the petitioner's only witness.

My hope is to clod up the port of Mobile with foreign ships, Liberian, Panamanian to bring sufficient pressure on the United States Government to do something about the American merchant marine.

That is your intention?

Yes sir.

That is your purpose?

Yes sir.

This is in the record to me and to anyone.

It's unequivocal.

The witness was a sole witness presented by petitioners as a live witness in the Court in Mobile.

This is the fifth Court that followed along, has been on this issue.

And each Court we go, the higher we go, the lower Mr. Nary goes.

He is a -- has been the port agent for the petitioner SIU in the Port of Mobile for 15 years, it is he who called all the coordinating unions together and told them what they were going to do.

It is Mr. Nary who put the pickets out of the line and told them what to do.

But when we get to the highest Court in the land, he is reduced to a man of menial murdering vagrant murdering, just been able to find his way in an out of the union hall.

This testimony is so damaging that the man has been belittled, and belittled and belittled the higher we go on Court.

The time and the place of these pickets are extraordinarily interesting.

It came at the height of the grain season where the grain must be harvested, it cannot be left out there.

These farmers don't have enough storage to store the grain.

The only place in South Alabama, Northwest Florida and Mississippi for export grain in the public grain elevator at the state docks in the state of Alabama in Mobile, when that gets stopped up, the grains face in the field and it rots.

The pickets were put up within minutes of the time that a federal judge in Mobile ordered a sister union, the ILA is back to work.

The pickets were put in an isolated place at the state docks.

Information to the public, the only public that was there were the ILA members, the petitioner's sister union members who wouldn't cross their picket lines and load and unload the vessel.

The other element of the public was there where the foreign seamen assumed they wanted to see the signs and who Mr. Nary again testified that that's what we wanted to do, we wanted to see him, we wanted them to start a dispute where there are foreign owners, so that those owners would pay them the equivalent of American wages.

This was testimony right in to the Windward case where it was held or noted that the very least that the petitioners in that case, the petitioners in this case would hold to accomplish would be to make the foreign ship owners raise their wage and pay them equivalent wages.

The results were dramatic.

The whole port was shutdown.

And when at a time when the only vessels in port were foreign flag, every one of them picketed.

Every one of them, every single of them.

That stopped the port, it stopped the Grain Elevator.

It puts the farmer's grain out in the fields to rot.

On the free speech, free speech with pickets is free speech plus and can be regulated by the state within reasonable bounds.

Logan Valley tells us that we must not un-deal or interfere with the normal use of public property.

Here, the respondents were denied the use of state docks property entirely, public property.

The decisions are federal decisions, require the Court to balance this freedom of communication, freedom of speech against the states power to reasonably curtail that freedom of speech.

And this is what the trial court and Mobile did was to balance these competing interest.

There were four competent lawyers representing petitioners in that trial when the decision was announced, not one of them said, or judged.

How about telling us what you find, the client did wrong.

They were sitting in the Courtroom, they all knew and if they wanted findings, they could have at least requested it from the judge.

And I submit --

Justice William H. Rehnquist: Does your Alabama rules of procedure in equity cases provide that either party may request findings?

Mr. Alex F. Lankford Iii: Yes, they may request them but they are not always given.

If I had thought as a trial lawyer that the Court had no basis for finding anything against me, I would have requested findings and to prepare the case for appeal.

I'm simply saying that when the Court and as to decision and send here on the record and ask for comment from counsel, there was no complaint that you haven't defined exactly what you said our clients did wrong.

Justice William H. Rehnquist: Does the circuit judge, I gather from your answer have discretions to refuse finding if they know the request?

Mr. Alex F. Lankford Iii: Yes, that is true.

Recently the federal -- essentially the federal rules of civil procedure have been adopted in the state but they were not so enforced at the time.

Justice Harry A. Blackmun: Mr. Lankford, was a permanent injunction ever obtained in this case?

Mr. Alex F. Lankford Iii: No sir, this is a preliminary injunction.

That was the nature of it, and then the case is still to be tried under merits.

But as the Alabama Supreme Court pointed out, the Court has wide discretion as to whether or not to grant a preliminary injunction and must weigh these facts that I submit the Court did way.

The trial court in Alabama did weigh.

Justice Harry A. Blackmun: So that preliminary injunction remains in effect to this day?

Mr. Alex F. Lankford Iii: Correct.

Justice Harry A. Blackmun: As between your side and the other side, which has the burden of converting it in to a permanent one?

Mr. Alex F. Lankford Iii: It's his move.

If he wants to go back and fight a lawsuit, we are ready.

However, he's got the farmer Malone in the federal court, suing him for millions dollars in punitive damage for an alleged violation of the Civil Rights Act of 1871.

So, this is a case pending in the United States District Court in Mobile where Mr. Chairman filed the same that these petitioners against farmer Malone saying, he went into state court under color of law and maliciously and wantingly got me enjoined.

We want $15,000.00 normal damages from farmer Malone and we want a million dollars, punitive damages from following Malone and I want farmer Malone to pay my attorney's fees.

We're talking about how many bites you get out the apple.

That case is been -- has been stayed pending the decision of this case before this Court, and I have a copy of the complaint if the court would like to see it, I'll present it orderly but suggest that.

If free speech, if what they have done under the gasp of free speech is permitted, then it's going to be the select committee of the petitioners who set the wages, the working conditions and everything about foreign seamen or board, foreign flag vessels calling in the United States of America.

If this count, if this free speech claim is approved by this Court, that's what's going to happen.

Also what's going to happen is that this select counsel of the petitioners are going to tell the American business man what he can export, to whom he can export and the price he can charge.

Because if they run all the foreign flag vessels out of here, he is going to be in a pickle and this is what they are trying to do.

And they will if the free speech is approved in this case.

Justice Harry A. Blackmun: Mr. Lankford, suppose that instead of picketing and they had place the ads in the newspaper and send out letters and things, would there be a violation to state law by way of unlawful interference?

Mr. Alex F. Lankford Iii: No sir, I do not think so cause I gave the purely informational picketing at one set in the path of the sisters unions ILA man going to and from work, it didn't take the port and tie up and clod up the whole port with foreign vessels, far different Your Honor from simply notifying the public.

If this free speech is approved, then these select committees of the petitioners are going to be writing this country's treaties with every maritime nation in the world?

Because they're going to be changing what happens to a foreign flag vessel when it calls to this and our ports if they have the right to run them off of our ports and they will if this Court gives them the right.

Chief Justice Warren E. Burger: Well --

Justice Thurgood Marshall: Don't you think Liberia, what do you think Liberia knows about the Liberian flag ships?

Mr. Alex F. Lankford Iii: I think Liberia has a treaty with the United States.

Justice Thurgood Marshall: What do you think Liberia knows other than a little flag on lawyer's door?

Mr. Alex F. Lankford Iii: I think Liberia knows that it collects yearly tonnage taxes and enrollment taxes and it likes the taxes that the ship owners pay to Liberia.

Justice Thurgood Marshall: And never seen the ships?

Mr. Alex F. Lankford Iii: Sir?

Justice Thurgood Marshall: And has never laid eyes on the ship, nobody in Liberia has ever laid eyes on one of them?

Mr. Alex F. Lankford Iii: I really -- I couldn't answer that Mr. Justice Marshall but if the tax laws are going to be changed so that you don't have foreign tax savings.

So that you don't have control to foreign corporations, then this is something that Congress oath to do, not a select committee of the petitioners who have before this Court.

The planting and the harvesting and the movement of grain by the American farmer is going to be controlled by the select to committee of the petitioners because if they get all the foreign bottoms where they won't call at our ports, this is not going to be anyway for other carriage of these goods from our shores to foreign shores.

And on behalf of farmer Malone, I appeal to this Court not to permit this kind of activity to choke the American farmer because this is what's going to happen to him if the stamp of approval of this conduct that happened in Mobile is given by this Court.

Thank you.

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

Do you have anything further Mr. Schulman?

Rebuttal of Howard Schulman

Mr. Howard Schulman: Yes, a few things Your Honor.

I would have thought at listening to my friends, I wonder Windward case not lost.

Well as calamities talk about tangled ports, well that's what this Court decided in Windward, the foreign ship owner can go into Court and enjoin the picketing.

I don't understand why all this foreign vessels are not going to call at their ports.

There isn't any basis at all to their argument and I think any question about the motivations of the people I represent or the farmer involved as to what's concerned there, that should be better directed to congress.

The elected director remarked that both Mr. Justice Marshall or Mr. Justice White I believe asked my friends relative to the findings being made by the state court.

I'm reading now from page 28 of the appendix.

The trial judge decree granting writ of temporary injunction made no finding of fact from the evidence that is complete and absolute.

But apparently, the trial judge found from the evidence that there was wrongful interference by the appellants, with the appellees business or other wise, he would not have ordered the writ of temporary injunction to issue.

And the answer to that, there was no finding and the Alabama Supreme Court just makes that indication on an assumption.

Justice William J. Brennan: You say 28?

Mr. Howard Schulman: 28 of the --

Justice William J. Brennan: Of the --

Mr. Howard Schulman: Of the appendix.

Justice William J. Brennan: That's what I --

Mr. Howard Schulman: I'm sorry.

Justice William J. Brennan: 28.

Mr. Howard Schulman: 28.

Justice William J. Brennan: 28.

Mr. Howard Schulman: Yes.

Justice William J. Brennan: -- over to page 23 of it.

The Court says, this necessitates our deciding whether or not there was any evidence to support it protrusion.

It's picketing here that is the purpose or object.

The wrongful interference with the appellees business and then doesn't the Supreme Court go on examined the record?

Mr. Howard Schulman: Yes and from which it says we --

Justice William J. Brennan: And the clue that there was no abuse of discretion?

Mr. Howard Schulman: Yes.

Justice William J. Brennan: -- based on that evidence?

Mr. Howard Schulman: That that it may have been at the Court below may have based upon that.

Justice William J. Brennan: Well, I gather, it would appear at least Mr. Schulman that maybe we don't do this in the federal courts when there are some state courts that I'm familiar with one which did the same thing, equity cases.

We didn't need findings of chance for court, we examined the record and made our own determination based on the -- on the record inequity?

Mr. Howard Schulman: Inequity, yes.

Justice William J. Brennan: That's what this is I guess?

Mr. Howard Schulman: Yes, but whether that meets the standards necessary of the First and Fourteenth Amendment, I think it's a different question.

Justice William J. Brennan: Well, maybe.

Mr. Howard Schulman: With respect to the situation involving Hanna and the Windward, in both those instances, the state court regulated otherwise unregulated conduct.

That is not the case here.

Otherwise unregulated -- the otherwise conduct involved here is the secondary aspect regulate above the Labor Board.

Now, with respect to this talk about the record as to the position of witnesses and an intend to place this Court's time and discussing that other minute set forth in the record, in the position of this Mr. Nary and whether there was adequate evidence upon which a Court could move in and say all these rights of this tens of thousands of American seamen suddenly abrogated.

I think it's a requirement to search their record and determine that under the Grain case, whether or not there was in fact the necessary quantum to warrant such restriction as the Alabama Court did here.

Thank you.

Justice William J. Brennan: Before you sit down Mr. Schulman, on your preemption point, I gather you distinguished Windward, of course the plaintiffs here are not the foreign ships?

Mr. Howard Schulman: No, that is not the -- it isn't because of titles, no, it's because of the substantive nature of the complaint.

In the Windward case, the unions were accused of interfering and trying to change the contractual.

As this Court said, they must have hope or expected.

They would have given more money.

Therefore, it falls under Benz which holds, it involves the internal operation of the vessels.

Justice William J. Brennan: That's the difference to you?

Mr. Howard Schulman: And the difference here is that there's -- this is not the issue of this plaint here -- plaintiff here, is not to regulate the conduct to foreign ship owner.

He is saying picketing is stopping him from doing business.

That's referring with this.

Justice William J. Brennan: -- 8 (b) 4.

Mr. Howard Schulman: And that's an 8 (b) 4.

Justice William J. Brennan: And that's exclusively for the --

Mr. Howard Schulman: And that's exclusive in Labor Board, Mr. Justice Brennan.

Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.