OIL WORKERS v. MOBIL OIL CORP.
Legal provision: National Labor Relations, as amended
Argument of Laurence Gold
Chief Justice Warren E. Burger: We will hear arguments next in Oil, Chemical and Atomic Workers International Union against Mobil Oil Corporation.
Mr. Laurence Gold: Mr. Chief Justice and may it please the Court.
Unknown Speaker: Mr. Gold, before you start, your reply brief came in this morning, did it not?
Mr. Laurence Gold: No, it was filed on Friday sir.
Unknown Speaker: Even though it is marked March 29, it was filed here on the 25th?
Mr. Laurence Gold: Yes sir.
Unknown Speaker: On the 26th?
Mr. Laurence Gold: 26th.
Unknown Speaker: I suggest you straighten that up with the Clerk because it is late the way it is filed.
Mr. Laurence Gold: Oh! Yes, it would have been late today, but unless I am misinformed, it was filed Friday afternoon.
Chief Justice Warren E. Burger: As a matter of business hours, they do not get marked?
Mr. Laurence Gold: Right, we will check with the clerk’s office and apologize.
Unknown Speaker: That would be marked with clerk’s office on Saturday too?
Mr. Laurence Gold: Yes.
This case is here on a writ of certiorari to the Fifth Circuit.
That Court en banc reversed the panel decision and held that the agency-shop clause in the Collective Bargaining Agreement in question here contravene Texas’ law prohibiting such forms of union security.
That clause is as common required the payment of dues by employees who have completed 30 days of employment as a condition of continued employment.
The collective agreement here is between the Oil, Chemical and Atomic Workers’ Union and it is local and the Mobil Oil Corporation and the agreement covers unlicensed seamen who work on the corporation’s tankers which ply the high seas between Texas and the Eastern ports and also on occasion between foreign ports.
The clause in question is set out at page 281 of the printed appendix and the entire agreement is at pages 280 through 329.
We believe that two questions are presented.
The first is whether is what is the test for determining whose law applies when you have a situation in which an agreement is negotiated and administered in the different states and work is performed in still another jurisdiction and there are contrasting union security policies in all three.
We suggest that the answer to that question is that the law of the jurisdiction where the bulk of the work is performed is the law that should apply.
There is a second question and that is whether the test we have just stated applies in a case such as this where one of the jurisdictions is the high seas or whether its application is limited to cases in which the work is land-based within the United States.
Justice William H. Rehnquist: Mr. Gold, you do not rely, do you, on the constitutional conflicts, principles that would say Texas did not have enough contact with this contract even apart from federal preemption?
Mr. Laurence Gold: No, we view this as a Federal statutory case. Section 14(b) sets the framework for the case and we do not think that it is a case which is in the area of constitutional conflicts of laws.
Very summarily, the facts are these.
The District Court found and it is a conservative estimate that the covered seamen do 80 to 90% of their work on the employer’s tankers that I have just described while those tankers are on the high seas and outside the boundary of any state.
Justice Byron R. White: But every employee does some of his work in Texas?
Mr. Laurence Gold: They are on --
Justice Byron R. White: 20%?
10 to 20%?
Mr. Laurence Gold: 10 to 20% is the estimate.
Our figures, we note at page 3 and 4 of the record would indicate that perhaps it is closer to 5%.
I would also note in light of the question that that time import is approximately the same amount of time spent in Northern Ports where again, the seamen are on ship when the boat is under pilot and when it is being loaded and unloaded and those are non-right to work.
Unknown Speaker: (Inaudible)
Mr. Laurence Gold: They are hired principally in two different locations as the record shows, perhaps 60% in Texas and 40% in Northern Ports.
Justice John Paul Stevens: You would not distinguish between the 60 and the 40 in your presentation?
Mr. Laurence Gold: The Lower Court would not make such a distinction.
We do not believe that the point of hire or the point of residence are the points which indicate who is covered.
However, if you had a unit where you had people working in one state and other people working in another state, then we would think that there would be a difference and the leading NLRB case which we rely on makes just that distinction.
There are bargaining units from time to time which are in more than one state.
The District Court held that since the Mobil Oil Corporation’s headquarters for -- administrative headquarters out of which it ran its American flag tanker fleet was in Texas that the greatest part of the administration of the agreement took place in Texas when you compare that state to any another state.
Neither the District Court nor the Court of Appeals majority, however, gave any weight to any of the activities which occurred on shipboard in reaching that conclusion.
As I have already stated, it is our view that really the only operative fact that is relevant here is the fact that the overwhelming bulk of the work takes place on ships which are on the high seas.
We suggest that the job situs is the appropriate test for four separate reasons.
First of all, the job situs test, we believe is the test which most accurately reflects the language of Section 14(b) which is the operative provision of the Federal Labor Law in question here.
Before getting to that, if I may digress, in 1947 there was a complete review of the entire question of union security by the Congress in connection with the passage of the Taft-Hartley Amendments.
And the resolution of that review was that as a matter of Federal Law, uniform throughout employment in this country, the close-shop which requires union membership at the time of hire was to be barred that no employee who is not a union member at the time of hire could be required to join the union for the first 30 days or pay dues, that thereafter there was nothing in Federal Law which prohibited as a condition of continued employment the requirement that employees pay dues, but that the states were free to enact their own policy on the question of whether after the 30th day of employment, employees could be required to pay dues or become union members as a condition of continued employment.
We think that that background is relevant because it indicates a Congressional determination to be neutral between right to work and union security states.
Both policies are valid under the National Labor Law and since both policies are valid, it seems to us clear that there has to be a circumscribe scope for the policy of a right to work state or of a union security state and the limitation has to be one concerning what employment relationships are centered in that state because if one state could unless export its policy to cover employment relationships and another that would be contrary to the basic policy of neutrality and the question, therefore, is what is the meaning of the employment relationship?
Where is the center of the employment relationship?
As I have indicated before, I started that digression, we believe it is the place where the employees are working and we believe that that is the test first of all which does the best service to the language.
Among other places, Section 14(b) is set out in full.
It is a short provision at page 14 of our opening brief, the brown brief for petitioners.
It is phrased as a permission to the states and it is phrased also in terms of covering numerous states.
To put it in focus, we think that a fair paraphrase of the language is that each state may prohibit the execution or application of an agreement requiring membership in a labor organization as a condition of employment in that state or territory.
And we think that on the normal and accepted concept of where is somebody employed for purposes of determining what his permissible conditions of employment are 30 days and thereafter during his tenure of employment, it is a place where he is working.
That just seems to us to be the common sense of the matter.
It is true as the company points out that the statute prohibits -- permits the state to prohibit both the execution and application.
It is in the disjunctive.
Either one or both may be prohibited by a state, but we do not think that that cuts against our argument that the prohibition has to relate to employees who are working in that state because with the common sense of that, we believe is that a state may prohibit execution of an agreement covering employees in the state in question in order to assure that the agreement can be declared unlawful before anybody is discharged.
If the state were only to prohibit application, the argument could have been made we take it, that the mere execution of the agreement if no one is discharged is not illegal and we so not --
Unknown Speaker: Mr. Gold, is the language of 14(b) set out in full somewhere in you say your brief?
Mr. Laurence Gold: Yes, on page 14 set out as an indented quote and as I have indicated --
Unknown Speaker: Adapted these statutes --
Mr. Laurence Gold: I think it is 17, if I have my numbers corrected.
In the Fifth Circuit, I believe that all aside from Louisiana are right to work states.
On the other hand as I have indicated, these voyages typically go from Texas to New York, Rhode Island, and New Jersey, all of which are union security states.
Justice Potter Stewart: They would be -- say that we are on the high seas, actually they would be in the Florida territorial waters for the real, would they not?
Mr. Laurence Gold: I do not think so --
Justice Potter Stewart: If they follow the same course that we used to?
Mr. Laurence Gold: My understanding of the record is —
Justice Potter Stewart: In the Straits of Florida?
Mr. Laurence Gold: You mean, below Florida and under T-West?
Justice Potter Stewart: The east coast of Florida?
Mr. Laurence Gold: All I can say Mr. Justice Stewart is that my understanding of the record is that it is conceded or found rather that 80 to 90% of their work takes place on the high seas outside the territorial waters of any state.
Justice Potter Stewart: Therefore while in the territorial waters of Texas, while they are in the Gulf?
Mr. Laurence Gold: That is right.
They come into --
Justice Potter Stewart: They pilot each area?
Mr. Laurence Gold: That is right.
Justice Potter Stewart: And they are in the territorial waters of Florida, I must say if they follow the normal traders for a while?
Mr. Laurence Gold: I am afraid that your expertise on that matter is greater than mine.
Justice Potter Stewart: On whose expertise?
I do not think the geography has changed.
Mr. Laurence Gold: Okay.
But as I --
Justice Potter Stewart: Even though I have.
Mr. Laurence Gold: [Laughter]As I have indicated the record, the facts as we understand them as the District Court found them are that such vessels are located on the high seas or in ports, other than ports located in the State of Texas approximately 80% to 90% of the time and that finding is set out at page 8 of our brief and that has been the basis upon which we have understood the case.
Justice Potter Stewart: (Inaudible) non-right to work states, although the crew generally goes to the shore on leave during the loading and unloading operation?
Mr. Laurence Gold: Well, the record indicates that the crew is permitted off the ship when they are not standing watches or otherwise working for 8 hours at a time, that indicates that the time found during which the seamen are in territorial waters aside from the point you have raised Mr. Justice Stewart is probably less if anything in view than the Court found, if we look at working time.
Justice William H. Rehnquist: Mr. Gold, what if you had a collective bargaining kind of executed in Houston or Beaumont covering workers who as conceded were trained in Texas for 25 days and then sent somewhere else which did not have the right to work law, would you say that Texas could not forbid the execution of that sort of an agreement?
Mr. Laurence Gold: Yes, I would --
Justice William H. Rehnquist: Are you telling that you probably would?
Mr. Laurence Gold: Your Honor and I would say by the same token that if all the facts you stated were true and the occurrence took place in Louisiana and the employees were then sent to Texas, the Texas could prohibit application of that agreement or it was executed solely to cover such employees.
Justice William H. Rehnquist: Surely Texas could not prohibit its execution in Louisiana?
Mr. Laurence Gold: Prohibit its execution maybe an improper term, but what I was trying to say was I believe that Texas in the situation we are talking about, if you had only a single unit of such employees, could enjoin its application to those employees and I would think that it was true if the agreement was negotiated in Louisiana, whether if both of the signatory parties, namely the union and the employer were located in Louisiana so long as the work was taking place.
In Texas, that is a consequence of our theory and we think that that neutral principle is the best application of Section 14(b) not because we believe we are going to when every case under it, but because it makes the most sense for all the reasons that I am trying to state.
Obviously, I do not go so far as to say that we would be here arguing this point if it did not result in this --
Justice Byron R. White: What would you do if the contract is executed in Texas and exactly 50% of the work was done in Texas and 50% done in the state that does not have a right to work law?
Mr. Laurence Gold: Well, if you get to a point where the balance is absolutely equal, the Labor Board and to sort of move into my second point and try to answer that question, the Labor Board very early on had to deal with the administration of a provision requiring union-shop elections in order for a union-shop provision to go into effect and it had to deal with the variety of questions which kind of rise in determining which law applies and basically what the Labor Board did was set down two rules.
The first rule is the job site of the employees in question is determinative.
The second rule which arouse in a slightly different way than you state, but it is equivalent to it is that the headquarters of the employees, the place where they are paid, receive their instructions and report controls.
And that arouse in the case of truck drivers going through many states, some like to work, some union security and the Board’s conclusion that there was not any way to really find out where the preponderant amount of the work was, the Board nevertheless said that since we are focusing on the situation of these employees whose condition of continued employment is in question was the issue that it would look to the employee headquarters in the absence of a clear job site.
We think that that was a sensible principled reading of the statute and enjoys and gives the argument we make, the added weight set out in cases such as North Region (ph), Nitrogen (ph) and other cases which talk about the effect of a rule developed by an administrative agency at the --
Justice Byron R. White: How much of the job has to be performed in the state with the right to work law before that law is applicable?
Mr. Laurence Gold: We would think that whichever state the preponderance of the work was done ought to be the state whose law control and I would take it that there will be some cases where you may get into as close a situation as you envisage, but I do not think that they will be --
Justice Byron R. White: (Inaudible) the bargaining contract covers workers in two different states and some workers do all their work in one state and other workers do all their in another?
Mr. Laurence Gold: That was precisely the issue that first faced the Board in a case called Giant Food which we cite and the Board said that the employees who worked entirely in a right to work state were covered by the right to work law and the employees in the union security state could have the union security provision applied to them and we think that that makes the very best sense that can be made in this area in terms of --
Justice Byron R. White: (Inaudible) the bargaining contract has to reflect both things, I take it?
Mr. Laurence Gold: Well, that is right.
There are agreements such as the one you had before you in General Motors where you have plants, I have no idea how many states, but in a very vast number of states and the basic reaction of the Court was that obviously the Indiana Law would apply as to the plants in Indiana, but that would not have negated the agreement as to the employees in Michigan.
Justice Byron R. White: And (Inaudible) the place of contracting is not very important?
Mr. Laurence Gold: No, we would not believe that it ought to be important.
The one thing that is clear in employer-employee relationships is that we can count on the employer who have people work where he needs them and on the other hand, where an agreement is negotiated, may have nothing at all to do with the situation of the employees and what is the rule most fairly attuned to their situation.
Obviously, if the rule where the place of negotiation, it might be test of strength about where an agreement was to be negotiated.
Justice William H. Rehnquist: Of course one could conceive your two-state analogy, I suppose, saying that the Union Security State has a very bit as much right to have its policy enforced as does the right to work state and still feel that here the result might come out differently than you suggest because as you say the Federal Policy is neutral.
You do not have a pro-union security state pooling against a right to work state, but it is basically Texas versus the Federal Government?
Mr. Laurence Gold: Well, I think it --
Justice Potter Stewart: You do not say that the Federal Policy is neutral, do you?
Mr. Laurence Gold: No, I say the Federal Conflicts Principle is neutral, but --
Justice William H. Rehnquist: I thought earlier you said that the Federal Policy was neutral with respect to right to work?
Mr. Laurence Gold: What I was attempting to say Mr. Justice Rehnquist was that the Federal Policy is neutral between law givers.
Normally, if the Federal Government does something, it is supreme by the fact of its action.
Here in 8(a)(3), the Federal Government has not utilized the preemptive powers it has on the basis of the Commerce Clause, but again because it seems to wrap up so many things, I go back to the first labor board case, this Giant Food case which --
Justice Potter Stewart: Which involved District of Columbia?
Mr. Laurence Gold: -- which involved the District of Columbia.
Now, the Congress has never enacted a right to work law for any Federal Jurisdiction in which it has the same type of exclusive control that the State of Texas has within Texas.
And in that sense, the Federal jurisdictions are Union Security jurisdictions just the way New York is.
Most Union Security States do not have a law saying that Union Security is permissible.
There is the absence of a law prohibiting agreements between employers and unions which require condition of continued employment and the Federal jurisdiction such as the District of Columbia is that type or jurisdiction.
Now, it is the second point of our argument that the high seas, an American Flagship on the high seas is within an exclusive Federal jurisdiction of Federal Maritime Jurisdiction which is just the same for present purposes as Federal jurisdiction over the District of Columbia.
So you do have in terms of the neutrality of Conflicts Principle, the same type of interests at stake that you would have in a case where the employees spent 80 or 90% of their time in the District of Columbia, but 10% of their time in Virginia.
Justice William H. Rehnquist: Do you think you can draw this same inference from Congress’ failure to legislate with respect to Union Security on the high seas that you could from its failure to legislate with respect to union security or its absence in the District of Columbia?
Mr. Laurence Gold: Yes sir, Mr. Justice Rehnquist.
We think it is proper to do so for the reason that as we point out at length in our brief and as Judge Ainsworth who is an Admiralty and Maritime lawyer of some note, pointed out in his dissent.
The Federal Government has always regulated the employment conditions of American Flagship Sailors on the high seas in the way that states have regulated employment conditions within the states.
Indeed the Federal Law regulating that employment relationship was far more detailed I think, far less laissez-faire than a comfortable state policy.
Justice William H. Rehnquist: But you could get a number of Federal Labor or Federal Maritime Enactments that would apply to a worker within a 3-mile or 10-mile territorial limits of Texas waters, could you not?
Mr. Laurence Gold: Well, we make the point in our reply brief that we think -- the only thing we claim and I hope we made it clearly in our opening brief too, the only think we claim is that there is exclusive jurisdiction on the high seas.
When you get into territorial waters, you get into all the complexities of the extent to which the State Law and the Federal Law are concurrent.
Complexities which we do not think are answered by any of this Court’s precedence that we know and nothing that we are arguing here would prejudge the question of whether the state right to work law would be pre-eminent to somebody who worked solely within the territorial waters are primarily within the territorial waters of a given state.
I would like to reserve --
Justice Potter Stewart: Before you sit down, perhaps if you have not thought about this, you would be thinking about it while you are sitting down.
This is a matter of construing the language of 14(b) which appears on page 14?
Mr. Laurence Gold: Yes.
Justice Potter Stewart: Do you think the phrase in any state or territory in which such so on modifies employment or does it modify execution or application of agreements?
Mr. Laurence Gold: In our view it modifies employment or there would have been no need to go on to say in which such execution or application is prohibited.
In other words, we think the respondents wish to suggest that this provision reads “nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment where such execution or application is prohibited by the state or territorial law.”
and we think the second reference indicates that the focus is on the employee who we are trying to determine may have to pay dues as a condition of continued employment.
Justice Potter Stewart: You say the employment must be in any state or territory --
Mr. Laurence Gold: Yes.
Unknown Speaker: -- rather than the execution or application, execution specifically in this case in any state or territory?
Mr. Laurence Gold: And again to go on with some of the examples I was discussing with Mr. Justice Rehnquist and Mr. Justice White, we do not believe that it would make very good sense to say if you have a situation in which an agreement is negotiated in Texas and all the work is to be done in Louisiana, that this was intended to permit Texas to cancel Louisiana’s choice by saying you are foolish enough to wander into our state to execute the agreement even though the people who are really affected by it are not really working here, we are going to invalidate the agreement.
Justice Byron R. White: The agreement, I suppose, means collective bargaining agreement, there is enough clearly?
Mr. Laurence Gold: Yes.
Justice Lewis F. Powell: Mr. Gold, has the petitioner abandoned the primary jurisdiction issue that was raised in the petition?
Mr. Laurence Gold: In light of your opinion in Kennel, so we have not pressed it.
Chief Justice Warren E. Burger: Mr. Hambright?
Argument of James W. Hambright
Mr. James W. Hambright: Mr. Chief Justice Burger and members of the Court.
The issue in this case is whether the State of Texas has sufficient interest in the employment relationship between respondent and the employees in its Tanker Fleet Headquartered at Beaumont so that under Section 14(b) of the NLRA, as amended, that Texas right to work law applies to the agency shop-clause in that agreement.
The Trial Court said that it did.
The Fifth Circuit said that the Trial Court was correct.
We urge this Court to affirm primarily for the reason that Congress has made no exception as to seafaring of maritime employees under the Taft-Hartley Act as it did under the Railway Labor Act for Airline Pilots and Train crews and for the further reason Your Honors that the employment relationship in this case is centered in Texas.
We start with the problem --
Justice Byron R. White: You would not, I take that you would not be here if none of the work was done in Texas?
Mr. James W. Hambright: Your Honor, I think in this case we have so much more than the work.
We have the hiring, firing, and paying.
Unknown Speaker: (Inaudible)
Mr. James W. Hambright: Your Honor, the 14(b) speaks in terms of execution or application and I cannot conceive of a situation where under the phrase “application” that I could be here before you if there was utterly no work done in the state where I was urging that the contract was a duplication.
Justice Byron R. White: If an agreement is negotiated and executed in Texas, covering employees working in two different plants, one in Texas and one in Louisiana, the law of Louisiana rather than in Texas would govern the employees working at Louisiana plant?
Mr. James W. Hambright: In that connection Your Honor, we come back to the phrase “execution” and that is what your question is directed toward and in looking through the legislative history, I found nothing to indicate whether they meant execution to mean signing the document or performing the work because execution when you execute a contract, sometimes it means you carry out the terms of the contract.
So, without research in that area and looking out has turned out nothing, I would have to say Your Honor is correct.
Justice Byron R. White: So the only difference in this case is that 10 to 20% of the work in addition was done in Texas?
Mr. James W. Hambright: Oh! No, Your Honor.
We take the position that under the phrase “application” there comes things such as enforcement of the agency-shop clause itself.
Justice Douglas held that in the Schermerhorn the second, the second Schermerhorn case which this Court unanimously decided in 1963 when he said that if there could be any doubt that the language of the Section means that the Act shall not be construed, authorized any “application” of a union security contract such as discharging an employee which under the circumstances is prohibited by the state.
The legislative history of the Section would dispel it.
So therefore, Your Honor, I think that when we speak of application, we cannot just look at work as my colleague has suggested, but we must look at things such as the enforcement of a union security clause and this Court has squarely noticed of that distinction.
Now, it is our contention that we start with the proposition laid down by this Court in the Cooley case that a state can enact a law regulating Maritime Commerce, if the State Law covers the matter and not requiring a single uniform rule nationally and if the State Law is not conflict with the National Law.
Now, in this situation, on the question of uniformity Congress says there shall be this uniformity in the area of right to work.
Again, in the Schermerhorn the second opinion which I have referred to, Justice Douglas wrote for the unanimous Court that there is a conflict between State and Federal law, but it is a conflict sanctioned by Congress with directions to give the State the right of way to state laws barring the execution and enforcement of Union Security Agreements and he used the word enforcement.
He did not say execution and application as the statute does, he departed just a little bit and said the execution and enforcement.
Justice William H. Rehnquist: Would you feel --
Justice Potter Stewart: So that was not a departure from the true meaning of the statute?
Mr. James W. Hambright: I think, Your Honor that --
Justice Potter Stewart: That is your point?
Mr. James W. Hambright: Mr. Justice Stewart, I think that the enforcement is part of the application, yes sir.
And on this uniformity point, he further said that Congress in other words chose to abandon any search for uniformity in dealing with the problems of state laws barring the execution and application, he is back, Mr. Justice he is back on state laws and application of agreements authorized by 14(b) and decided to suffer a medley of attitudes and philosophies on the subject.
So in that regard, I think it will be well to see what we have here on the subject of uniformity from the Solicitor General who filed a brief at the invitation of this Court.
In his brief and that is the Solicitor General’s brief on page 14, he said that he agreed that the United States agrees that a state right to work law can be applied to the Maritime Industry.
That is what he came up with Your Honors, after looking it over.
Now, he filed three briefs with you.
The first, he filed a memorandum urging you to grant this writ.
Then he filed a brief with you and then he filed a reply to our brief.
So I am talking about his primary brief.
He says in there that the United States agrees that a state right to work law can be applied to the Maritime Industry.
Then he further says on that same page that Section 14(b) of Taft-Hartley contains no exclusion for maritime workers as does the Railway Labor Act.
Then he further said that Congress expressly permits diversity of regulation as to union security and then his grand finale which I think is most pertinent here, he says Maritime Commerce would not necessarily be disrupted or hindered by the application to different ships or different employers of different union security rules.
Justice Thurgood Marshall: In the grand finale, he agreed that job sites have control?
Mr. James W. Hambright: Sir, he seemed to find nothing wrong with the idea that Texas Law might well apply to these employees.
He only felt that Texas had an insufficient contact.
Justice Thurgood Marshall: He -- says?
Mr. James W. Hambright: Yes sir.
His test on --
Justice Thurgood Marshall: Is in control?
Mr. James W. Hambright: Yes sir, his test, the Solicitor General’s brief on page 15 and I quote his test, “A state has sufficient interest in the employment relationship only if the employee performs some work within the state.”
Unknown Speaker: (Inaudible)
Mr. James W. Hambright: Yes sir.
Justice Thurgood Marshall: (Inaudible)
Mr. James W. Hambright: Yes sir.
Justice Thurgood Marshall: That is the final word from him?
Mr. James W. Hambright: Yes sir, Mr. Justice, it is.
He said that Texas does not have sufficient interest then at the job situs in his view is predominant, but let me explain how I think he arrived at that and perhaps dropped the bowl.
In his brief, on page 15 and I am speaking of his primary brief, seven lines down, he states, “these employees perform no work whatever in Texas.
He is quoting there Judge Ainsworth from the Fifth Circuit.
Now, that is one thing he says on page 15 then on page 18 --
Justice William H. Rehnquist: Which brief are you referring to?
Mr. James W. Hambright: His primarily brief Your Honor --
Unknown Speaker: 15?
Mr. James W. Hambright: Yes sir, Solicitor General’s brief, page 15.
Unknown Speaker: (Inaudible)
Mr. James W. Hambright: Yes sir.
That is right, seven lines down in the footnote.
I am sorry.
He says these employees perform no work whatever in Texas.
Then Your Honor, on page 18 which is coincidentally 18 lines down, he says you can only perform a Union Security Clause where work is done or where dues are collected and all these events take place outside Texas.
The work is performed at sea.
The dues are deducted from wages paid at sea.
Then he goes on and on page 7, line 5, he says in referring to this workforce, a group of workers who perform their work outside the boundaries of any state.
Justice Harry A. Blackmun: Well, he acknowledges all these in the supplemental memorandum, does he not?
Mr. James W. Hambright: He acknowledges that he has misstated the facts.
Justice Harry A. Blackmun: Did they do some work in Texas?
Mr. James W. Hambright: Yes sir, but the thrust of his job situs test is that there is no work done in Texas because he says Your Honor that it must be a state where some work is done.
He lays that down in his primary brief there.
Then again in his primary brief on page 11, line 8, he says Texas cannot impose its judgment on a seaman, all of whom work and are paid outside its borders.
Now, if it pleases the Court, this is not in accord --
Justice John Paul Stevens: Excuse me, I just want to be sure I follow with your current attention is.
As I read the brief, the first thing on page 15 was a quote from Judge Ainsworth, rather than a quote of the Solicitor General himself and I do not think you directly quoted the language on page 11 either, does it say exactly what you said?
Mr. James W. Hambright: I think it does Mr. Justice Stevens.
Justice John Paul Stevens: I did not find, let me just put it that way.
Mr. James W. Hambright: On page 11, he says, how can it impose, he is speaking of Texas, how can it impose its judgment upon the seaman involved in the instant case, all of them work and are paid outside its borders?
Unknown Speaker: (Inaudible)
Mr. James W. Hambright: Yes sir, it is about seven lines down.
So, my point is that on four different pages of this brief --
Justice John Paul Stevens: That is a statement that they all work outside its borders, it is not a statement that none of them were within its borders?
Mr. James W. Hambright: Alright Your Honor, yes sir.
Now, in point of fact, the findings of fact show that all of these seamen do work in Texas.
They all come there regularly and repetitively.
It shows that the voyages normally start and stop in Texas.
It shows -- the statement of findings of fact on appendix page 29, states that a more substantial part of the administration of the bargain agreement occurs in Texas than in any other state.
Now, on the question of payment, the solicitor speaks about collection of dues, he says, they are deducted from the wages paid at sea.
The facts show that these dues are computed and deducted in Beaumont, that they are mailed off from Texas.
Justice William H. Rehnquist: But it is almost a semantical point, is it not?
I mean, they are deducted from wages, the residue of the wages being paid at sea, but the union dues are in fact deducted in Beaumont.
You can state it either way, but it does not seem to me the evidence is a real or factual dispute?
Mr. James W. Hambright: Mr. Justice Rehnquist, it ties in with this concept we think the -- there is an exhibit that shows that in the representative year, there is about a $6 million payroll and of these amount money, only about $1,900,000.00 is carried aboard ship for payment in cash to the seamen, but the other $4 million, the payment of that occurs within Texas.
Justice Thurgood Marshall: Where is the money earned?
Mr. James W. Hambright: Partially, in Texas Your Honor and --
Justice Thurgood Marshall: (Inaudible)
Mr. James W. Hambright: Yes sir, more so than in any other of the states though.
Justice Thurgood Marshall: And not more so than on the high sea?
Mr. James W. Hambright: Oh! No sir.
That is correct, but this money is paid in this manner.
The seamen can designate an allotment to their families, so that they do not take the money themselves.
It is mailed direct to their families and all of this handled in Beaumont and there is well over a million dollars a year disbursed in that manner.
Furthermore, the record shows that these seamen worked for 90 days in their our own vacation 30 days, but they remain a continuous employee all along and the 30-day portion of their wages of course comes directly from Texas too and then of course the withholding tax is deducted in Beaumont and paid in Austin at the IRS office.
Chief Justice Warren E. Burger: (Inaudible) residences of these men, how many of them reside in Texas?
Mr. James W. Hambright: Your Honor, the record shows that out 289, 123 reside in Texas.
It shows that 10 in Rhode island, 10 in Maine, 13 in Louisiana, 16 in Florida, 21 in New Jersey and 60 in New York and then there are 36 others in 16 other states each having fewer than six.
Now, the designated shipping port for these men, a 152 of them have designated Beaumont as their shipping port.
The others are Providence, Rhode Island and some in New York, but the residence of these gentlemen of course is a matter that the authors of the Harvard Law Review took into account when they discussed this case.
They held our opine much as the Attorney General did that Texas does have the right to have this right to work law and that there is no exemption for Blue Water Maritime Seaman.
In fact --
Justice William H. Rehnquist: Are Harvard Law Review's opinions regarding as holdings in Texas?
Mr. James W. Hambright: [Laughter]We view them a lot more attention than we do than some of the reading matter, Your Honor.
In this particular case, I viewed it with great authority as it came down point by point in support of what the en banc panel said until they got again to the bottom-line in which they said, apart from my brother here, they said -- the Harvard Law Review article does not say that job situs is the test.
They said that residents ought to be the test.
They said that the Court did have power to expunge this agency-shop clause, but they suggested that perhaps it would be better if we did it only in part and if we split it up and let it go away with respect to the Texas residents, but those from the, as the authors there said, the New York contingent, let it remain as to them.
Now, of course the thing wrong with that bottom-line approach is as this Court knows in the HK Porter Company case, this Court held that the Court cannot tell parties what to put in their labor contract and cannot tell them to modify their clauses, but can only tell them to bargain.
So, I think the Harvard people were on the right track until they got down to the theory part of it and of course there is another impediment to that also.
Union Counsel at the trial of this case told Judge Fischer said, Your Honor, that there is no way the Court can carve on this case with sufficient delicacy to split up the coverage of this clause.
That is in the record here, but that is what he told the Trial Court and then again the Harvard people I think may have disregarded the fact that it is not just Texas and New York, but that some of these people live in seven or eight other states as well.
Now, if it pleases the Court, I would like to speak just a moment about --
Justice Byron R. White: May I ask you, I take that your position is that the Act should be construed so that only one law applies under any contract?
Mr. James W. Hambright: No sir, I do not believe Mr. Justice White that you should in this case go into a sweeping decision as to -- of that nature and the reason, if this is so, it is that this case does not concern very many people.
The Solicitor told you in his initial memo that maybe 50,000 seamen could be affected by it, but in a footnote he told you that about 20,000 of that figure which he got from the Bureau of Labor Statistics were Supervisors and not under the Act so that cuts it back to maybe 30,000, but the biggest distinction is he was speaking of people that work under maritime contracts as we normally view amount of of hiring halls where they have no particular company, no particularly job --
Justice Byron R. White: Do you think this position has only to do with Maritime employment?
Mr. James W. Hambright: Your Honor it has to do with a company headquartered and centered with its employment relation as this company.
It is --
Justice Byron R. White: Well, suppose, would you have the same problem, would you not, if you had exactly the same facts except that 80% of the employment was not done on the high seas, but in another state without it right to work law, everything else is the same?
Mr. James W. Hambright: Your Honor, I think it is possible it could.
If you had shoe salesman who worked on in another state --
Justice Byron R. White: Then it might have a quite wide impact?
Mr. James W. Hambright: It might have Your Honor in that regard.
No one has considered that approach in the briefs here to fore.
I know counsel for the Union asked the clerk for an extension of time to file his brief here so he could check with the other Maritime Unions.
Justice Byron R. White: But if all the facts were the same except that 80% of the work was not done on the high seas, but in another state without a right to work law, would you -- your position would be the same that Texas would be entitled to import the right to work law?
Mr. James W. Hambright: That is correct, Your Honor.
It would be, if all -- if every fact was the same data, indeed, I think so.
Justice Byron R. White: Thank you.
Mr. James W. Hambright: I would like to correct if I may, a few expressions from counsel for the petitioner.
He says this labor contract is with Mobil Oil Corporation.
Your Honors, this is with Mobil Oil Corporation and Marine Transportation Department Gulf East Coast operations.
The importance of that is that this was a separate employing unit and the multi-state reciprocal act which is cited in our brief and recognizes that in maritime employment, unemployment compensation coverage can be handled with the state where the headquarter is located.
It refers to employing unit and of course, I think we have rather Texas flavor to the case perhaps without saying that.
He also told you that 5% is closure to the mark as to the amount of work done in Texas.
Your Honors, this has been a creeping percentage.
In the union’s initial answer they said, less than 5% of the work was done in Texas, but when it came time to submit findings of fact after two-day trial, they submitted a proposed finding in which they got it up to 10% and then when they submitted am amended -- a proposed amended conclusion of law, they got it up to 20%.
And we have evidence here Your Honors that puts it up higher than that because these ships come to Brownsville, Corpus Christi, Houston, and Bay Town.
They are adding topping off to their cargo, then they go up East and discharge and they come back in Ballast and the proof shows there is a grievance here where a man -- that ship loaded in three different ports and he (Inaudible) in Beaumont and he wanted penalty pay for an overtime matter because it had been in all those ports.
So, what I am saying to this Court is that more than 20% of the work in fact is done within the territorial waters of Texas in the normal trade and further, some of the works is done on the shore in Texas.
The labor contract which --
Justice John Paul Stevens: You are disagreeing with finding 18(a) that they quote that says, “80 to 90%” is on the high seas or in ports other than Texas?
Mr. James W. Hambright: No sir, I am not disagreeing with that because the Court uses the 80 to 90 to show that there is some divergence or some variation.
These are averages, Mr. Justice Stevens.
Justice John Paul Stevens: Is there any other finding with respect to the percentage of work that is within or without Texas other than 18(a)?
Mr. James W. Hambright: No sir, there is not.
Justice John Paul Stevens: So to go beyond that we have to go to the record, the original record?
Mr. James W. Hambright: That is correct Your Honor, that is correct.
Another matter that we have is this business of the old Board cases where he indicated that the test used by the Board in 1948 which was one year after Taft-Hartley and it is never reverted to those is where they report for work, where they are paid and where they get their instructions.
I would like for the Court to know that these ships are controlled by radio from Beaumont where the fleet manager is located and the fleet marine superintendent speaks everyday on the radio to the ship’s masters, that is in the record on appeal.
The only place a man can be terminated is in Beaumont, Texas and there is an exhibit showing a letter where an employee was indeed terminated in Beaumont to illustrate that.
The only place that these people are covered by unemployment compensation insurance is in Texas, nowhere else.
Justice Potter Stewart: The early Board cases were to which you are referring are the Giant Food and Northern Greyhound and Western Electric?
Mr. James W. Hambright: Yes sir, Your Honor and they were decided under provision that was repealed by Congress within a year or so after that and it has never been reenacted.
Justice Potter Stewart: That is the requirement of a boat?
Mr. James W. Hambright: Yes sir, prior to the --
Justice Potter Stewart: That basic issue is the same?
Mr. James W. Hambright: I think in that case it was not Your Honor for this reason.
In those cases, the question was which state law applied and not whether any state law applied.
So I think they can be distinguished in that manner as well.
Justice Potter Stewart: I am not -- it is not clear to me whether or not you think those cases where rightly or wrongly decided?
Mr. James W. Hambright: Your Honor, under the facts then before the Board, just from reading the cases, I would say that they were decided in accord with expediency for the Board’s --
Justice Potter Stewart: Well, I do not know if that is right or wrong, but --?
Mr. James W. Hambright: [Laughter]Your Honor, I do not think this will ever be a problem to the Board.
Justice Potter Stewart: My second question is do you think these cases help you in your position in this case or hurt you?
Mr. James W. Hambright: In those cases Your Honor, I think they help us because they say you look to the focal point of the relationship and they examined everything, not just the work.
They examined where are they paid, where are they instructed, where do they report and the record shows that all 289 of these employees regularly report to Beaumont at one time or another to catch their ship, for the beginning of the voyage, that is in the record.
So they use a multi-dimensional analysis and I think that is what this Court should do and like the Fifth Circuit did and if that is done, if you look at the whole employment relationship, Your Honor, I submit there will be no problem whatsoever to the Board in future deals in this area.
Justice Thurgood Marshall: Did these 67 men in New York go to Beaumont every time they get on the board?
Mr. James W. Hambright: They regularly and repetitively go to Beaumont.
Justice Thurgood Marshall: For every trip?
How do they go there, by plane or something?
Mr. James W. Hambright: Yes sir, they get report --
Justice Thurgood Marshall: One of the boats?
Mr. James W. Hambright: Oh! Your Honor, they do at times, but they also fly.
Sometimes, they fly to catch the ship there because they get a --
Justice Thurgood Marshall: (Inaudible)
Mr. James W. Hambright: When their work cycle is over, Mr. Justice Marshall, the 90 days is over and they go ashore.
Thirty days later, they have to catch a ship again.
That decision is --
Justice Thurgood Marshall: How often?
Mr. James W. Hambright: Very often.
That is the case Your Honor.
Justice Thurgood Marshall: Always did?
Mr. James W. Hambright: No sir, I said that regularly and repetitively, they do catch ships in Beaumont, not every time, I did not mean to say that Your Honor.
Another thing that it has to do with the application of a labor contract is the handling of grievances.
The record shows that 23 out of 27 top level grievances were heard in Beaumont, Texas in this case and only four went to arbitration.
Now, that is a pretty important aspect of labor relations.
All of the employees get their mail in Beaumont.
The ones in New York, they are no exception when they come, when the first come with company, this did not show up in the appendix too well, but they get this welcome aboard (Inaudible) and in there, it says that your mailing address shall be P.O. Box so and so, Beaumont, Texas, So that it just one more indication of the fact that the employment relationship is actually centered in Texas and I hope that the Court will bear in mind that these are not hiring hall seamen.
These are not seamen who were sitting around waiting and hoping that the might get a job.
So, where the arms of admiralty around these people with the special privileges affording seafaring men when they do not have a job at all and in our case, these men have a permanent lifetime job.
Thank you, Your Honors.
Justice Potter Stewart: In your colloquy with Mr. Justice White, did you agree that this case was properly decided and should be confined to Maritime employment or did you take the view that it has a considerably broader application?
Rebuttal of Laurence Gold
Mr. Laurence Gold: Mr. Justice Stewart, in my --
Justice Potter Stewart: You said that in those early NLRB cases, which were decided, one in 1947 and one in 1948 and one in 1949 I think, you said they were different because they involved two competing -- two or more competing states whereas in this case you just have the State of Texas on the one hand vis-a-vis no state?
Mr. Laurence Gold: That is correct Your Honor.
Justice Potter Stewart: And is this a case that just involves, the State of Texas, a state versus no state or should it -- does its impact go further involving -- two cases involving a competition between or among two or more states?
Mr. Laurence Gold: Mr. Justice Stewart, I think absolutely the case only involves Texas vis-à-vis the admiralty.
There is no showing that any substantial part of the administration of this labored contract occurs elsewhere.
In the matter of money for instance, it is $6million.
The proof shows that only $67,000.00 was disbursed from any other office, less than 1%.
So it is so tied in with the State of Texas that you really need not bite off anymore than just that one problem, that is our view.
Justice Byron R. White: Mr. Gold is that possible between states, is there -- if the state does not have a right to law, the Federal law governs, so it is always a question of either State or Federal Laws.
It is not a question which state law.
It is a question of state or federal law, is it not?
Justice Potter Stewart: The right to work law or 8(a)(3)?
Mr. Laurence Gold: Yes sir and of course they --
Justice Byron R. White: So, I do not understand.
I thought you indicated to me that this decision that you would be here even if 80% of the work was done in Louisiana rather than on the high seas?
Mr. Laurence Gold: Well, if it was in the same fact situation Your Honor, it may --
Justice Byron R. White: Yes, and you said you would be here, (Inaudible) Louisiana?
Mr. Laurence Gold: I am not sure exactly what.[Laughter]
Your Honor, on the legislative history, you wrote the opinion in Schermerhorn I and you stated in that case which was a unanimous opinion of this Court, you stated in that case that the connection between 8(a)(3) and Section 14(b) is clear and whether they are perfectly coincident, we need not now decide, but unquestionably they overlap to some extent.
Justice Byron R. White: (Inaudible) you are at 80% of this work; all the facts were the same except the work here was done -- 80% of it was done in Louisiana on dry land?
Mr. Laurence Gold: Yes sir, I would be here under those circumstances.
Unknown Speaker: (Inaudible)
Mr. Laurence Gold: (Laughter)Thank you.
Justice Potter Stewart: That was the question, if I am wrong --
Chief Justice Warren E. Burger: Mr. Gold, let me put my hypothetical to you about 80%.
Assume that 20% more or less of the same kind of work and same kind of contacts were in Texas with A company and 80% more or less, towing oil rigs across the gulf and around Florida and over to the Adriatic Sea and off to the North Sea as it is done as you know and otherwise all of the contacts are the same, no states other than Texas,just -- high seas, and the Adriatic Sea and the North Sea in selling these rigs and coming back and loading them and taking some more, what would you say about that?
Mr. Laurence Gold: In our theory Mr. Chief Justice, the result ought to be the same because the work would be on American Flag Vessel where 80 or 90% of the work was being done on the high seas and we think that that is a Federal jurisdiction equivalent to the District of Columbia.
May I very quickly if I have the time make two points.
First of all up until in 1962, this employer had its headquarters in New York.
All the administrative details that are now performed in Texas were performed in New York, but the work that the covered employees did then is now was 80% on the high seas.
We do not understand, if we look at this in terms of the covered employees in their situation why there should be a different result because the employer unilaterally is doing his paperwork and other such facts, other such aspects of its business in one state or another.
The one factor that is simple, relatively easy to understand and to find the facts about is where is the work being done?
Justice Byron R. White: Do you think you are plunking for the same standard the Board applied in those older cases?
Mr. Laurence Gold: Yes.
Justice Byron R. White: The headquarters sort of approach?
Mr. Laurence Gold: Yes Your Honor because --
Justice Byron R. White: That certainly involved more than where the work was done?
Mr. Laurence Gold: Well, Mr. Justice White, the first case as I have indicated was the Giant Food Case where you had employees who stayed in a particular place.
Half of them in Virginia and half of them in the District of Columbia and the Board said that the job site was controlling.
Then in the more complicated situation, where you could not say with assurance where the preponderance of the work was, they went to the standard that you are discussing and we agree with both of those holdings.
We think there is sound and is close to equity as one is going to get in this area.
And the last point I would like to make is that we are not arguing that Maritime Employees are exempt from right to work laws.
As I have indicated in trying to answer Mr. Justice Rehnquist question, we think it is an entirely different matter if they are working in territorial waters and we do not think that this case gets into that and finally, just to give an analogy so far as I understand it, Casinos are only legally run in Nevada, that is the right to work state, the job situs of those employees is Nevada.
Justice Byron R. White: Is it on the drilling platforms?
Mr. Laurence Gold: On the drilling platforms I would say that it depended on the location of the drilling platforms and application of one of your cases whose name escapes me now where the Court went into the question of the extent to which under a statute of Congress those are an extension of the state or within the Federal Maritime Jurisdiction.
Justice Thurgood Marshall: So would you argument be the same if this tankers stayed within territorial waters all way up the coast?
Mr. Laurence Gold: No, Your Honor, I think in that case you would be into the situation of --
Justice Thurgood Marshall: In state?
Mr. Laurence Gold: That is right and that would be like bus drivers driving through many states and the headquarters test of the Greyhound case would apply.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.