MACHINISTS v. WISCONSIN EMP. REL. COMM'N

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Argument of Gerry M. Miller

Chief Justice Warren E. Burger: We will hear arguments next in 75-185, International Association of Machinists against the Wisconsin Employment Relations Commission.

Mr. Miller, you may proceed whenever you are ready.

Mr. Gerry M. Miller: Thank you.

Mr. Chief Justice and may it please the Court.

This case is here on petition for certiorari to the Supreme Court of Wisconsin.

The question it poses as we see it is the following; Whether Wisconsin may, consistent with Supremacy Clause of the Federal Constitution, outlaw peaceful, concertedly refusals to work optional overtime in support of Worker Collective Bargaining Demands.

A self-help pressure permitted under the balance of power is struck by Congress in the Federal Labor Statute.

The question arises on these facts.

The company, a machine tool manufacturer within the Federal Labor Board’s jurisdiction, terminated its labor agreement with the Union in June of 1971.

At that time, the parties had reached impasse on a number of the company’s demands for changes in the contract.

One of these was insistence, the company’s insistence on increasing basic work day and work week from seven and one-half to eight hours a day and thirty-seven-one-half to forty hours a week where the commensurate reduction in over time pay.

On March 1, 1972, while the parties were still in impasse on this and other issues, the company announced its decision to implement its work schedule demands unilaterally, just as it had previously changed other established working additions some months before.

This time, the Union responded by holding a meeting on March 7 at which the membership voted to seek strike sanction from the International Union and unanimously resolved that no member should work overtime to find his work over seven-and-one-half hours a day or thirty-seven-one-half hours a week.

Though the company continued to schedule overtime work thereafter, the membership resolution was observed by virtually all of the over 600 members over the next four months until the new contract was settled in late July.

Faced with the Union’s counter to it self-help initiative, the company backed off from implementing its work day and work week demands.

The impact of the Union’s overtime moratorium was to cause severe economic hardship to the company and its effort to deal with temporary pulse increases in production loads while the workers lost substantial additional earnings that they would have receive had the overtime been worked.

For the past 17 years, K&T employees, the company’s employees had worked the seven-and-one-half hour work day and thirty-seven one-half hour work week.

They continued to do so throughout the period March through July 1972, in other words, doing over time moratorium.

By custom and understanding as the commission found, Respondent Commission, none of these employees had been required to work daily or weekend overtime prior to the March 7 membership meeting.

Admittedly, since acceptance of overtime assignments remained optional thereafter, no employee who concertedly refused to accept scheduled overtime, pursuant to the moratorium was even disciplined.

The union rejected the company proposal to settle the controversy by the company’s differing implementation of the new work schedules, if the Union would agree that all daily overtime would now become part of the regular work schedule and cannot be refused, except for reasons acceptable to supervision.

On June 12, 1972, during the overtime moratorium but the same day that it commenced the present action, the company filed a charge with the NLRB, alleging in part that Union’s overtime moratorium restrained the employees in the exercise of their Section 7 rights and violated its bargaining duty to the employer under Sections 8 (b) (1) and 3 of the National Labor Relations Act.

That charge was dismissed by the Board’s director on the ground that the overtime refusals were not violative of the Federal Statute.

The director cited the 1960 decision of this Court in Insurance Agents International Union where various concerted interference with production on the job action were held permissible under the Act though assumed not to be protected from employer appraisal by Section 7 of the National Act.

In this case, in our case, the director made no determination as to whether K&T employees lost that protection by collectively exercising the right to reject overtime work in the circumstances here.

However, the State Commission in the instant proceeding and later the Supreme Court held that the very same peaceful self-help activity permitted by the Board’s director breached the Wisconsin Labor Relations Statute which prohibits workers from engaging in any concerted effort to interfere with production, except by leaving the premises in an orderly manner for the purpose of going on strike.

The Union’s defense of federal preemption was rejected by the state tribunals on grounds that the conduct was neither arguably protected nor arguably prohibited by the Federal Statute and on the authority of this Court’s 1947 decision in Briggs-Stratton dealing with state jurisdiction to enjoin “quickie” strikes within the plenary power of the state to regulate.

That states the case.

On these facts, we desire to emphasize two of the arguments against state jurisdiction presented in our brief.

The first, that Briggs-Stratton is plainly distinguishable from this case.

The second that Briggs-Stratton should be declared overruled or limited to its exact facts and of course the reason supportive of the latter reinforce the former.

The first point; without reaching any issue as to the current survival of any prior decision of this Court, we think state jurisdiction must yield simply because the quality of the conduct here is so different in kind from that which is hereto for ever been held subject to state prohibition in collective bargaining.

Please contrast if --

Chief Justice Warren E. Burger: (Inaudible) matter would seem Mr. Miller if the statute was directed against a typical “sit-down” that is occupying the premises?

Mr. Gerry M. Miller: No, Mr. Chief Justice, it would not be.

I believe --

Chief Justice Warren E. Burger: I am not suggesting a statute that goes to the subject of violence.

Mr. Gerry M. Miller: I think physical obstruction of a plant creates a series of state interest a fortiori of course to trespass that amount of physical obstruction, the exercise of physical force in occupying the premises, I see nothing comparable to that consideration in terms of state interest here, contrast to violence, the property damage, the bombings, the threats and other disorder, traditionally subject to state prohibition with entirely peaceful concerted activity of the workers in this case.

Consider the obvious differences between the sit-down strikes of years passed and even the more recent issues as to state jurisdiction to enforce trespass laws respecting private property in labor dispute situations with the entirely authorized and orderly conduct of the workers at K&T’s plants here.

They did not occupy the premises.

The controversy here arose when the employer wanted them to stay longer than they chose to stay.

Third, compare the conduct in Briggs-Stratton; 26 unauthorized and unannounced mid-shift union meetings, so called, supporting unstated demands designed so that management could not predict their occurrence and plant production around them with the entirely predictable known measured and we might even say subordinate concerted activity in this case.

K&T’s workers arrived at work at the appointed time each day for four months, performed their work without interruption and with customary productivity for the basic work day and work week.

They left work at the end of the established work day and work week merely exercising collectively, their acknowledged right, acknowledged by the employer to reject scheduled overtime work.

Justice John Paul Stevens: What would you say if they all said they are going to go home a half hour early?

Mr. Gerry M. Miller: Mr. Justice Stevens that would present a different situation.

In this case, if the employer were to authorize that or condone it, or to somehow fail to invoke its disciplinary powers to counter it, I would think that that case presents a different circumstance than this case does.

Justice John Paul Stevens: What I am searching for Mr. Miller and I am sure you will spill it up before you get through is what is the bright line that makes this difference in kind from Briggs-Stratton and Trespass.

It is not peacefulness versus violence, I understand that.

Mr. Gerry M. Miller: Absolutely not.

There I believe two theories, a broad and a narrow theory, either of which is sufficient to justify reversal of the judgment below.

The narrow theory so-called is to focus on the character of the conduct here, the character of the overtime, the nature of the worker’s response and say this is right at the heart of federal concern, the kind of activity for which there is no state interest in substituting state judgment or local judgment for what Congress has done.

In fact, what that comes down the same very closely is this is at the center of the federal concern because this is conduct that is actually protected from employer reprisal by Section 7 of Taft-Hartley.

The broader theory -- (Voice Overlap)

Justice John Paul Stevens: If you go that far, that is overruling Briggs-Stratton?

Mr. Gerry M. Miller: No, I do not think Briggs-Stratton, I think Briggs-Stratton really stands today for a very, very narrow holding to the extent it leaves it all and that holding is that in conduct -- that the conduct of the Union of Briggs-Stratton was so crude so without redeeming interest that it could be assimilated to the character of violence in a labor dispute or physical takeover of the plant.

This Court said as much in the O’Brien case cited in the CIO brief.

It analogized what it had been saying and doing in Briggs-Stratton, with labor dispute violence, physical takeover, physical obstruction, the exercise of physical force in a sit-down strike situation.

To that extent, perhaps Briggs-Stratton lives, but not to any greater extent than that.

I do not think anybody can say that the activity in Briggs-Stratton was -- the sit-down strike is protected from employer reprisal.

I am sure violence and labor dispute is not so protected --

Justice John Paul Stevens: Of course, the dissenters in Briggs-Stratton thought it was protected activity?

Mr. Gerry M. Miller: Dissenters in Briggs-Stratton and of course that was a very early decision Justice Stevens.

We are focusing in on Section 13 and Section 501 of Taft-Hartley as whether that kind or whether those statutes preempted state prohibition.

I think preemption analysis has moved a great deal further on since that time.

I think I would have to concede for example that an employer self-help weapon, legal under Federal Statute such as a lockout for example is the very kind of concern at the heart of Federal Labor policy that a state may not directly prohibit.

I do not think the dissenters in Briggs-Stratton were focusing on that kind of an issue at all.

Back to the factual analysis here, management knew in advance in our guess, unlike Briggs-Stratton, precisely what to expect, when to you expect it and the demands that it furthered.

The company would have liked to have had the overtime as well just as the workers would have liked to have the wagers payable for it, but the parties were without a Collective Bargaining Agreement and an impasse and negotiations and economic pressures appropriate to resolve the stalemate.

In some, as this Court later indicated in O’Brien, the Michigan Strike Board case, Briggs-Stratton survives if at all only with respect to concerted activities that can be fairly assimilated to physical takeover of the plant at sit-down strike.

Justice Byron R. White: Is your legal argument going to be that this is actually protected activity?

Mr. Gerry M. Miller: We make that argument Mr. Justice White.

Justice Byron R. White: What is your first argument?

Mr. Gerry M. Miller: Our narrow argument is that in fact in this case, Briggs-Stratton is totally an opposite because the conduct is so close to the center of Federal concern as to in fact be protected.

Justice Byron R. White: You say it is actually protected activity?

Mr. Gerry M. Miller: Yes sir, we say that.

Justice Byron R. White: That is your first argument?

Mr. Gerry M. Miller: That is the narrow argument.

Justice Byron R. White: So that means that the Court should reach whether it is actually protected or not?

Mr. Gerry M. Miller: The Court need not reach that issue.

Justice Byron R. White: I know, but that argument indicates that you should.

If you say that is your first argument?

Mr. Gerry M. Miller: Well, our argument –- the first argument is that because this conduct is so different from Briggs-Stratton, it does not fall within the rule.

Justice Byron R. White: Forget Briggs-Stratton for a minute.

Will you just talk about the Federal Labor Law, what is your first argument?

Mr. Gerry M. Miller: The first argument is Your Honor that this the broad argument is the first argument, the most important argument and that is that this is a self-help activity permitted by Congress in Taft-Hartley.

It is therefore part of the balance of power that Congress struck when it enacted and amended this basic labor statute, and therefore, since it is crucial of the balance of power, it cannot be subject to state preclusion or prohibition.

Justice Byron R. White: What you are saying is that generally a state intervention in the area is generally preempt?

Mr. Gerry M. Miller: I think it depends on the area of peaceful economic weaponry.

Justice Byron R. White: You think the federal labor policy in this area is no regulation?

Mr. Gerry M. Miller: No sir.

The Federal Labor Policy in this area is free play of economic force.

That is a regulation.

Justice Byron R. White: Well, I know, but the government should not touch it.

I think government should not touch any --

Mr. Gerry M. Miller: Certainly not the State Government, Justice White, certainly not the State Government and certainly not for no interest other than to second guess the Federal balance.

Justice Byron R. White: Let us assume we disagree with you on that point, is your next argument that is actually protected?

Mr. Gerry M. Miller: The next argument is yes, it is actually protected.

Justice Byron R. White: It is not that it is arguably protected?

Mr. Gerry M. Miller: That is correct.

Arguably protected --

Justice Byron R. White: You do not argue the arguably protected point at all.

I gather in your brief?

Mr. Gerry M. Miller: Your Honor, arguably protected in our view is simply shorthand for the broader category and the broader theory we are referring to which is self-help weaponry, what Congress intended to permit no state can set aside.

Justice Potter Stewart: As in the Morton case?

Mr. Gerry M. Miller: As in Morton Justice Stewart, as in Insurance Agents at least for the clear implications from it, and as in Florida Power and Light.

Justice Byron R. White: But if we disagree with you on your first point, you then say, we should look and see if whether it is actually protected of not?

Mr. Gerry M. Miller: Your Honor, what I am trying to get across with the respect of the first point is that because the Labor Board has found to be actually protected --

Justice Byron R. White: I understand your first point.

I understand, I think do.

What if I disagree with you?

What if we disagree with you?

Mr. Gerry M. Miller: You still have to face whether or not Briggs-Stratton, the rule on Briggs-Stratton is sufficient to cover the kind of conduct here to be prohibited by state regulation and the entire thrust of my first argument is presented here was to try to dispel the notion that on the facts this can be compared at all.

I believe I reserve some more time to Mr. Come.

Chief Justice Warren E. Burger: Very well, Mr. Miller.

Mr. Come before you get on the way to answer this question under the hypothetical variation.

Suppose the employees decided the way they handle this problem was to work four hours a day, five days a week.

That would make it probably I think you would agree not feasible to bring in another good work the other to round out the work week.

Do you think that would be protected activity?

Argument of Norton J. Come

Mr. Norton J. Come: I do not think that that would be protected by Section 7 of the Act against employer discharge.

But it does not necessarily follow from the fact that it is not protected by Section 7 against employer discharge that the state under our Labor Relation statute would be empowered to prohibit it.

I think that that was Insurance Agents because in that case, as the Court may recall these agents engaged in a series of partial strike which involved reporting late and leaving on their own time and the Court, although it was willing to accept the Board’s concession that that would not be protected by Section 7 in the sense that the employer could discharge them, nevertheless found that the Board could not without upsetting the balance of economic weaponry that Congress had left go farther and prohibit it.

And I submit that --

Justice John Paul Stevens: Is there any issue about prohibiting the conduct or was it merely a question whether it was consistent with the good faith bargaining?

Mr. Norton J. Come: In Insurance Agent the question was whether or not the Board could find that that was a violation of the duty of the bargain.

However, in finding that the Board could not through 8 (b) (3) outlaw this conduct because of its own feeling that this was more effective than a strike and hurt an employer more than a strike would, the rationale of the Court’s holding is based upon a consideration of the economic weapons that were left in reserve at the bargaining table and the Court concluded that although Congress had regulated the use of economic weapons for particular objectives, its failure to specifically prohibit the use of this tactic indicated an intention to leave it to the parties as part of the economic weaponry that they have to back-up their bargaining demands.

So that although Insurance Agents rested on 8 (b) (3), the rationale, we submit of it goes beyond 8 (b) (3).

Now, I would like to just back-up a moment and give a little of the historical background here.

Briggs-Stratton was decided 27 years ago when the Doctrine of Preemption was in its infancy.

The Court undertook to decide for itself whether activity was protected by Section 7 or prohibited by Section 8 of the Federal Act and on finding that was neither.

It concluded that the intermittent work stop which is there were left the state regulation.

Now, what is wrong with this approach?

As this Court has recognized over the years, is it that it required the courts and ultimately this Court to decide in each case for itself whether activity was prohibited or protected and this was a difficult task that Congress entrusted primarily to the Board to determine and for which the Court was not too well-equipped to handle.

Secondly, it overlooked the fact that Congress may have designedly left some activity unregulated to the free play of economic forces.

Now, Garmon which came 10 years later was an effort to deal with this problem.

It enunciated the test that whether an activity is arguably subject to Section 7 or Section 8 of the Act, the states as well as the Federal Courts are ousted of jurisdiction and since this approach was inconsistent with Briggs-Stratton, the Court dropped to footnote in which it indicated that the Briggs-Stratton test is no longer of general application.

Unknown Speaker: In the Garmon opinion?

Mr. Norton J. Come: That was on the Garmon opinion.

Now, Garmon has been easy for the courts to apply and in my judgment and experience it has worked well in minimizing state intrusion into matters that are clearly regulated by the National Act.

Justice William H. Rehnquist: There has been some dissatisfaction expressed with it, has it not?

Mr. Norton J. Come: Yes.

I am getting to that.

However, recently some members of the Court have indicated a disposition to reexamine Garmon because although there is a ready means of getting to the board to determine whether activity is prohibited by Section 8, in order to get a board determination of whether it is protected by Section 7, the employer asked to commit an unfair labor practice and in some cases you may not even have an employer involved.

Justice Potter Stewart: That was pointed out by Justice White in the Ariadne case?

Mr. Norton J. Come: That is correct.

However, we believe that you do not have to resolve that issue here.

That is a question that if it is to be reexamined, it should be in a case where it makes a difference as to whether or not a finding that the activity is not protected by Section 7 against employer discharge would leave it open to State regulation.

Now, in the area that we have in this case where you have the use of a peaceful economic weapon as part of the arsenal of weapons that are used at the bargaining table, I submit that the reasons that I indicated earlier, Insurance Agents makes it plain that that is an area that Congress left to the free play of economic forces.

Unknown Speaker: (Inaudible) in your interpretation, you do not need to reach the arguably protected or the Garmon?

Mr. Norton J. Come: That is correct because no matter how you decide that, it is still preempted and I think that in Morton case which came in 1964, indicates that where you are dealing with the type of activity that you have here where a consequence of finding that it is not protected still leaves it in the field preempted by the Act, the proper analysis really is whether or not it is preempted and in Morton you have a very similar situation.

Instead of using a refusal to work overtime as a bargaining weapon, what happened was that the union appealed to the customers of the company that they were negotiating with for a voluntary boycott.

Voluntary boycott is not proscribed by the National Act, although a coercive boycott is.

The State of Ohio gave damages for that and this Court found, upset that damage award finding that do so even though this was not protected against the employer discharge by Section 7 would upset the balance of power and similarly here --

Justice Potter Stewart: Now based on a very specific legislative history that Congress had considered this and rejected it, and therefore, clearly left this to the area of self-help?

Mr. Norton J. Come: That is correct, Your Honor.

However, I submit as I attempted to point out in answer to Justice Stevens’ inquiry that insurance agent shows that Congress did focus on the question of collective bargaining.

Justice Potter Stewart: The Insurance Agents case involved the question of whether or not that slow down, if that is what it could be called in that case, amounted to a violation of what 8 (b) (5) or --

Mr. Norton J. Come: 8 (b) (3).

Justice Potter Stewart: 8 (b) (3), a refusal to bargain?

Mr. Norton J. Come: That is correct.

Justice Potter Stewart: Which is a different question?

Mr. Norton J. Come: It is a --

Justice Potter Stewart: It is a discrete question, it is simply a question?

Mr. Norton J. Come: It is a discrete question, but the root by which the Court came to that conclusion required an examination of the basic policies of collective bargaining that Congress had embodied in the Act and it is the rationale of Insurance Agents which we submit covers this case.

Justice Byron R. White: May I ask you, was there an injunction issued in this case or was there a state finding of an unfair labor practice?

Mr. Norton J. Come: There was a state finding or unfair labor practice, the state issued a cease and desist order which --

Justice Byron R. White: There are Unions that removed the case to the Federal Court?

Mr. Norton J. Come: I do not know.

Justice Byron R. White: But if --

Mr. Norton J. Come: Yes, I doubt it because as I understand removal, you have to have concurrent jurisdiction in the Federal Court and if you are going to turn around and argue that the case should be dismissed on the grounds that is preempted, you do not have jurisdiction.

Usually that is why when we have a preemption problem, if we are not appearing the state --

Justice Byron R. White: But if it had been removed that issue instantly the question of injunction is not under the Norris-LaGuardia, would have been --

Mr. Norton J. Come: Unless the Wisconsin Statute --

Justice Byron R. White: But this was under the Wisconsin Law was it?

Mr. Norton J. Come: This was under the Wisconsin Law.

Yes, Your Honor.

Justice John Paul Stevens: Mr. Come, if I understand your argument is a little broader than Mr. Miller’s.

You take the position that all nonviolent collective activity in connection with collective bargaining is preempted?

Mr. Norton J. Come: I think that basically that is --

Justice Potter Stewart: That would include a sit-down strike?

Mr. Norton J. Come: A sit-down strike, I would say by practice has gotten into the same category as violence.

Justice John Paul Stevens: I see, but it you get them out of that extreme form of conduct --

Mr. Norton J. Come: An example that you gave me of going home early --

Justice John Paul Stevens: That would be preempted.

Mr. Norton J. Come: -- that would be preempted.

I am not saying that that would be protected against employer?

Justice John Paul Stevens: I understand.

I understand that.

Justice Byron R. White: But what about, what if the dispute were an arbitrable dispute?

Mr. Norton J. Come: Well, now you get into a problem of whether 301 would give a separate set of remedies.

I think that the question of preemption under the National Labor Relations Act --

Justice Byron R. White: But it was a collective bargaining for a new contract, was it not?

Mr. Norton J. Come: This was.

The contract had expired.

Justice Byron R. White: Okay.

Mr. Norton J. Come: Thank you.

Chief Justice Warren E. Burger: Mr. Mallatt.

Argument of James C. Mallatt

Mr. James C. Mallatt: Mr. Chief Justice and may it please the Court.

We respectfully submit to this Court that we are walking into the new no law, no man’s area.

The State of Wisconsin afforded a remedy against coercive, harassing tactics in a plant.

I am not going to waste this Court’s time with argument as to whether or not the overtime here was voluntary or required.

We take the position that the record would support the argument that it was required, but I mention this point to demonstrate the absolute necessity for hearings in these types of cases.

We urge this Court strongly to adopt the views of Justice White in Lockridge, Ariadne and Nash-Finch.

We ask this Court to use this case and there must be a reason we are here.

We ask this Court to use this case to limit Garmon to preemption only where activity is actually protected.

Prohibited activity there is a forum, the National Labor Relations Board.

Arguably protected activity, there is no law.

It is a no man’s area and we are going to do the same thing we did in Guss versus Utah Labor Board which Congress for once acted quickly and change and filled the no law, no man’s area.

Justice Byron R. White: But this is not really responsive to your friend’s argument that as a general manner there is preemption here in Insurance Agents sense?

Mr. James C. Mallatt: Insurance Agents in my judgment has no play in this case because what this Court held in Insurance Agents was that this type activity is not sufficient evidence for the Board to find the 8 (b) (3) bad faith bargaining.

Now, Insurance Agents held different that employer’s would have a forum to at least get a hearing as to whether or not this conduct is lawful.

Justice Byron R. White: I know but the argument from the other side is whether this is -- even if this is not protected and even if it is not prohibited the state cannot touch it?

Mr. James C. Mallatt: I understand that.

Justice Byron R. White: Well, what is your response to that?

Mr. James C. Mallatt: What we are concerned with here --

Justice Byron R. White: Because if on that basis, it would not make any difference whether you got access to the Board or not?

Mr. James C. Mallatt: Our position is Briggs-Stratton clearly covers this.

Justice Potter Stewart: The argument as I understand it, as I understand Justice White’s question to be indicating of your counsel on the other side is simply that whether or not this is argued, this is not arguably or actually protected in the sense of the Act nor arguably or actually prohibited, but it is simply something that Congress left to self-help and for that reason it cannot be touch by the state, is that not the argument?

Do you understand that to be the argument?

Mr. James C. Mallatt: Yes, that is clearly their argument.

I disagree with that.

Justice Potter Stewart: Yes, I know that.

Mr. James C. Mallatt: I disagree firmly.

This Court looked at the legislative history in this area and much detail in Briggs-Stratton and I do not --

Justice Byron R. White: It is not a question of limiting Garmon, that is another issue --

Mr. James C. Mallatt: I understand it.

Justice Byron R. White: And you better, I think if that is the question of the case --

Mr. James C. Mallatt: I wanted to make that point right away because I believe by my reading of the cases that it is one of the reasons we are here today is this Court is extremely concerned with uniformity in the labor law, but it is also very concerned about affording the people of the United States, including employers a right to some sort of forum if they have what we feel is a legitimate grievance.

Unknown Speaker: (Inaudible)

Mr. James C. Mallatt: That is absolute possibility.

There is no question about that Your Honor, no question about that.

I would hope to try to persuade you otherwise.

I would like to point out to this Court if I may some practical problems an employer faces when he is faced with concerted activity in the plant.

It is too risky for him to discharge his employees.

It is too risky for him to discharge the Union Stewards and it is not a practical remedy.

Just last week we had concerted activity, partial strike activity is what we are talking about here, at the Panama Canal the ships were backing up, would it have been an effective remedy of any kind to fire the ship pilots?

It could have gotten those ships through the canal.

So the self-help remedy is not practical.

It puts the employees in the middle.

It puts them right in the middle between the Union which is telling them, on threat of fine do not work overtime and the employer on the other hand is telling them, you better work overtime or we are going to discharge you.

Who is in the middle?

The employee is in the middle.

Justice John Paul Stevens: Mr. Mallatt, I think the question is why is this different in an all out strike?

Do those arguments not equally apply to the strike itself?

Mr. James C. Mallatt: Several reasons.

In an all out strike, employee risks replacement, apparent replacement.

Now, this is very significant because --

Justice John Paul Stevens: Does that not also happen in a slow-down and discharge, would not the same thing happen?

Mr. James C. Mallatt: As I read the law, the employer has the right to discharge the employees because this is unprotected activity.

I say that remedy is not practical, is not effective, and it will create industrial warfare.

Justice Potter Stewart: Discharge and replace, so far as his legal rights go?

Mr. James C. Mallatt: That is my understanding.

On the other hand, other employees may well have the right to may have right to strike in protest to the discharge.

Unknown Speaker: (Inaudible)

Mr. James C. Mallatt: I believe that the overtime in this case was not wholly optional.

Justice Byron R. White: I understand that.

I know, but you started out by saying in this case it does no make any difference whether it was required or not.

Now, let us assume it was not required, that overtime as this frequently the case is optional.

Mr. James C. Mallatt: Right.

Justice Byron R. White: Now what do you say?

Can he be fired for saying, I will not work overtime?

Mr. James C. Mallatt: I say if it is concerted and I also say Your Honor --

Justice Byron R. White: It may be concerted, but could you then fire him for doing it in a concerted way?

Mr. James C. Mallatt: I would say yes under John Swift case, the Board case.

I view that case as the employees have the right to voluntarily individually refuse, but not concertedly.

Now, there are other problems, practical problems the employer faces.

It is suggested that a lockout is a proper remedy or defense to this type of activity?

We take the position that an employer should not be forced to close his plant to protect himself against activity in the plant, but we also take the position that this raise is a very serious problem in a legibly questionable area as to whether or not you can permanently replace locked out employees.

We think that when a employer is faced with another legally unfair area, in our judgment, under United States Pipe and Foundry, the Board and the DC Circuit said an employer may not reduce or withhold benefits once the contract expired in order to pressure his employees to reach agreement with his bargaining position.

An employer may not do that, at least that is what the Board says and that is what the DC Circuit says.

Your Honor, on the other hand, I guess today, we are considering and according to the petitioners the Union may use partial strike in plant, strike tactics to pressure the employer.

All we say is if we put pressure on the employees, the Union has a remedy.

They can file a piece of paper with the United States Government, the National Labor Regulations Board, but if we preempt this area, the employer is going to be left without any legal remedies.

He still has self-help and what have you.

We do not believe that Congress intended this.

I realize the problems involved with local states in Courts whatever it is, deciding the question of actually protected.

I concede there is a --

Justice Byron R. White: You made a written rule that overtime is required and people refuse to obey it, I suppose you could discharge them and replace them?

Mr. James C. Mallatt: That is true.

Justice Byron R. White: In the Wisconsin Court’s, was there a finding in the courts on whether it was required or not?

Mr. James C. Mallatt: The Wisconsin Court took the view that it was not protected activity whether or not it was voluntary.

Justice Byron R. White: Whether or not it was voluntary?

My question was did they find whether or not it was voluntary or required?

Mr. James C. Mallatt: They did not make that finding.

The problem was -- Your Honor, when the case was first tried, which is why the Wisconsin Employment Relations Commission -- the Union took the position that it was preempted on the grounds that the activity was prohibited.

So the hearing was conducted on that basis.

The voluntary argument was not raised until the State Supreme Court.

And I say this is a perfect example of why there should be some hearings in these type of cases because if it is going to be turn on whether or not it was voluntary.

That cries our for a need of some sort of a hearing is our position.

Chief Justice Warren E. Burger: I thought you told us earlier and clarify it if I misunderstood you that if there was a refusal collectively to work overtime that was not protected, but individually it would be protected.

Now in response to Mr. Justice White, I did not think you made that distinction.

Mr. James C. Mallatt: Well, you just made it for me.

That is our position.

Chief Justice Warren E. Burger: Do you mean that if one employee that will not work overtime; he could be fired and replaced?

Mr. James C. Mallatt: That is correct.

Here you have 350+ who refused to work overtime for four months except three who worked on one Saturday.

This was a little bit different ballpark than Dow Chemical where you have just a few employees who refused to work one weekend of voluntary overtime which had not even been posted on the posting board before they made their decision not to work.

There was no union direction or ban or order there.

Justice William H. Rehnquist: Is this distinction you are making a practical one or is it a legal one?

Are you saying as a practical matter, the employer cannot fire 350 people where it could fire one, is that you are saying?

Mr. James C. Mallatt: No way, one or two, he may.

Justice William H. Rehnquist: So it is a practical one and not a legal one.

Mr. James C. Mallatt: Well it is a legal argument Your Honor because they raised the question, the defense, that this is in fact protected in their view because the employee may voluntary refuse anyway.

My argument is a response to that.

Chief Justice Warren E. Burger: When you say it is not practical to replace several hundred people, it has been known that people had been replaced in hundreds, 200s, 300s, some of that very close to it here?

Mr. James C. Mallatt: It is not practical in Milwaukee Your Honor.

Chief Justice Warren E. Burger: Milwaukee is a bigger city than Washington, D.C.

Mr. James C. Mallatt: We do not believe that Congress intended that the parties engaged in warfare I think Congress intended that there ought to be a hearing to determine whether or not certain activity of this nature is not lawful.

If it is lawful, I am out of Court.

There is no question.

If this activity is permitted, I am out of Court.

What we are asking for is a way to make that, find that out, because you see what happen here is typical.

We file a charge; the Regional Director dismisses relying on Insurance Agents; sort of implies that we go see the State about it.

Justice Byron R. White: I am probably as usual confused.

If you say the activity that that overtime was required and that these people were breaking then a work rule and therefore you had the right to fire them?

Mr. James C. Mallatt: That is correct.

Justice Byron R. White: Then why do you not just discharge them and replace them like you would in general strike, rather than trying to seek some general relief against the Union?

Mr. James C. Mallatt: Because very candidly if we did that Your Honor, we would be putting yourself right out of business.

To discharge 350 employees and fire them would have create the kind of industrial strife in West Allis, Wisconsin like you have never seen before, we would just have to shut it down.

Justice Byron R. White: Well, that may be so.

That may be so and if the Union struck, I suppose, generally, you would probably have to -- you would be shut down, would you not?

Mr. James C. Mallatt: That is correct.

Justice Byron R. White: Well, you could fire a few.

Mr. James C. Mallatt: I would like to make this point, if I may.

When a company and a union -- and I have been negotiating labor contracts for 20 years representing employers.

When a company and union reach an agreement at the bargaining table, any professional in the union business will tell you that if they can go to the membership and say this is the company’s last offer, you accept it, it is fair or you must strike and lose wages and possibly be replaced, then the employee will accept it, if it is fair.

But if we have a middle ground where they do not have to accept, they do not have to strike, but they can do these things in the plant.

Then I say as I practical matter, we are opening up a vast area that is going to fill us with all kinds of legal problems.

We would hope --

Justice John Paul Stevens: Is there a middle ground on your response?

I am not sure you answered Mr. Justice White.

Would there be a legal objection to discharge of a handful of employees out of the 350 or do you have to discharge either all or not?

Mr. James C. Mallatt: You are asking me questions that I really have not been decided because you see all these unprotected cases come up as an employer is defending himself against an unfair labor practice charge.

Then in those instances the Board says, decided whether the activity was protected or unprotected and it becomes a very close factual decision.

But the employer is always defending himself.

So it may turn out on a lot of different factual, but generally speaking the Labor Board takes the position that a concerted refusal to work overtime is not protected.

Now if I have 350 employees involved in it, I have a problem.

Do I fire them all?

Am I discriminating in between?

Do I fire just the stewards?

I have a very serious problem and I just, as a practical matter, would not even know how to answer it.

I supposed the safest way legally is to fire them all.

Justice William H. Rehnquist: But even if you can fire all of them I --

Mr. James C. Mallatt: Pardon.

Justice William H. Rehnquist: Even if you can fire all of them, I suppose you can subject yourself to a charge you are firing on a discriminatory basis, just pick out the union leaders?

Mr. James C. Mallatt: That is right.

It would take some very, very risky decisions and we say that is not an effective remedy.

Chief Justice Warren E. Burger: Let us suggest that you fire every ten employee and making sure that by coincidence not too many of the number 10 people where shut towards or some sectioning?

Mr. James C. Mallatt: Well I would face the problem because I know of charge would be issued in the –- I would guess that an examiner, an administrative law judge would say I discriminate it, but even if he did not, I would probably have a strike on my hands because the others that I did not fire would walk out and protest.

So these are serious problems, very serious problems for employers.

Justice Byron R. White: If you are really right that you have the right to discharge here, I do not know why you are really getting very much trouble picking and choosing, or if you did every tenth or every third or something?

The union is stopping short of closing you down completely, and the question if they could use stop short of a total discharge or a total lockout?

Mr. James C. Mallatt: I believe the Board would take the position that I was violating Section 8 of the Act.

I believe the Board would take that position in U.S. Pipe.

In U.S. Pipe, the employer did not engage in any kind of firing.

He said, “If you guys are not going to accept my offer and you are going to keep working, then you are not going to get paid holiday pay.

You are not going to get paid holiday pay and I am not going to pay vacations.”

Now that is a rather mild approach.

But what happens.

The D.C. Circuit tells us we have violated Section 885, we are bargaining in bad faith.

But on the other hand, we hear -- and maybe it is Insurance Agents that caused all the mischief here.

We hear that harassing tactics may be put on us and we have no remedy except self-help.

This is bothersome.

It is bothersome out there at the level where we have to negotiate labor contracts.

Chief Justice Warren E. Burger: Do you say that self-help is self-destructive?

Mr. James C. Mallatt: Absolutely.

It is the worst thing we can do if the purpose of the Act, the central purpose of the Act, is to avoid industrial strife.

I cannot think of anything that creates more strife than firing members of a trade union, a political organization.

They must do everything they can to get those employees their jobs back.

And there is nothing that is more destructive of good faith collective bargaining than for an employer to start firing the members.

Justice John Paul Stevens: I suppose that counter argument is that if you make the union fish or cut bait on the two extreme alternatives, that they may find they have to strike instead of engaging in some lesser activity like this.

Does the argument not -- the same argument can be made on the other side of the coin, it seems to me?

Mr. James C. Mallatt: Well, the Union has two choices: It can accept the company’s last proposal or it can strike, or it can continue to negotiate with the company and not make unilateral changes in the plant.

You see, the employer cannot do that, why should the union be able to do it?

The employer cannot pressure his employees if they are working after a contract has expired.

He may lock them out.

Justice John Paul Stevens: Could you not unilaterally adopt a new overtime program?

Mr. James C. Mallatt: We never put it in.

Well that was a little pressure, but it did not work.[Laughter]

Chief Justice Warren E. Burger: We will resume at this point at 2 o’clock.

Mr. Mallatt you may continue, you have about seven minutes left.

Mr. James C. Mallatt: Mr. Chief Justice and may it please the Court.

In our view, Briggs-Stratton has served this country well since 1949.

There was very little partial strike activity in the industrial scene in the industrial area.

Contrast that to the public area where in most cases, it is unlawful for municipal employees to strike.

You find a very common problem of partial strikes. Sickens blue flu, these things are common in the industrial area.

And we submit because of the holding of this Court, the partial strike activity is not legally sanctioned under the National Labor Relations Act.

We have had very little of this type of activity.

Justice William H. Rehnquist: By your hypothesis though that would mean that the other 49 states went along with Wisconsin in making a state unfair practice?

Mr. James C. Mallatt: I am urging this Court to sustain Briggs-Stratton which I believe has the effect of ruling that the -- it has the effect of ruling that these states may regulate partial strike activities.

Justice William H. Rehnquist: But there still ought to be a solution on any national basis unless the other 49 states did rule Wisconsin.

Mr. James C. Mallatt: That is absolutely correct.

We are asking the Court to balance the problem of lack of uniformity against the problem created of no effective avenue to get this kind of issue litigated.

Chief Justice Warren E. Burger: Suppose part of your answer to be that this is a matter up to the states if they want to get the benefit, kind of the law Wisconsin has, they can do what some of the states did as a right to work law?

Mr. James C. Mallatt: That is correct.

As a matter of fact, Colorado and Hawaii copied the Wisconsin Law which has been law since 1939, and I believe that this is the only second or third time that statute has ever been used.

We feel that it is appropriate that the state have the right to afford a hearing so that we may get a cease and desist against the perpetrating union which banned the overtime versus requiring us to take action against individual employees.

This Court’s concern for an available remedy was, I believe, one of the reasons for its decision in VACA versus Sipes activity which was clearly prohibited under the National Labor Relations Act.

I also believe that this Court’s concern that some avenue of judicial remedy be available was part of its reason for its decision in Linn versus Plant Guard Workers or the Court stated in a footnote that refusal to redress an otherwise actionable wrong creates disrespect for the law and encourages the victim to make matters into his own hands.

And I think that we would not like to be encouraged as representatives for employers to use the kind of self-help remedy which would create the kind of industrial warfare, which the central theme of the National Labor Relations Act is to put the parties together at the bargaining table and say, you negotiate in good faith.

We believe that if there is a third avenue, do not accept, do not strike but play games in the plant, we feel that this will upset that delicate balance that is evolved over the years in many decisions, Board and Court decisions.

We feel it will tip the scales.

I have nothing further.

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

You have one minute left on your side of the table counsel, if you wish to use it.

Rebuttal of Gerry M. Miller

Mr. Gerry M. Miller: Thank you Mr. Chief Justice.

I will be very brief.

I would like to refer to the Court and this is in response to a question asked by Mr. Justice White.

The petitioner’s Appendix Page A-32, paragraph 12, we will find a finding by the Commission’s examiner affirmed by the Commission with respect to the non-required optional nature of the overtime.

The answer to Justice Stewart --

Unknown Speaker: (Inaudible)

Mr. Gerry M. Miller: Yes, Your Honor.

In answer to Justice Stewart’s question about focusing is our legislative focus on partial strike activity, the answer of course is first of all that Mr. Come gave you and secondly, I would point out that the broader test must be used with respect to the Morton analysis because where are you going to find the legislative focus in so many words and quite the same way you found on 8 (b) (4) Secondary Boycott Pressures with respect to employer weaponry, the lock out, the unilaterally change, the right to replace.

Third, and this is my basic answer to Mr. Mallatt, the Insurance Agents rationale disposes of every argument Mr. Mallatt made here because they were made by the Counsel for the NLRB in support of its decision finding it to violate Federal Law.

Every point he made was argued by the Board and Insurance Agents and rejected in an opinion by Justice Brennan by this Court for considerations that must oust state power as well as federal agency regulation of that conduct.

If I may 14 (b), Mr. Chief Justice permits the states to regulate union security.

Section 10 (a), as this Court just got to recognizing in the Immigration Act case, presents a very comprehensive and preemptive legislative scheme under Taft-Hartley that the next Section14 (b) in Union Shop, a very, very limited exception in favor of state jurisdiction.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.