SEARS, ROEBUCK & CO. v. CARPENTERS

Transcript: 

Argument of H. Warren Siegel

Chief Justice Warren E. Burger: We will hear arguments next in 76-750 Sears, Roebuck against San Diego County Council.

Mr. Siegel, I think you may proceed when you are ready.

H. Warren Siegel: Thank you Mr. Chief Justice and may it please the Court.

The facts of this case are relatively simple.

They arise out of the Sears Chula Vista store which is located somewhat South of San Diego.

The store is a free standing store, not a part of the shopping center, surrounded on three sides by a parking lot and public streets and side walks on the fourth side by block wall separating the commercial property from private residences.

In October of 1973, representatives of the Carpenters Union appeared at the store and demanded of the store manager Mr. Ochoa (ph) that Sears remove its employees from doing work which the union considered to be within the carpenter's jurisdiction and either obtain carpenters from a licensed contractor who would obtain those carpenters from union hiring hall or in the alternative that the store manager should sign what was called a short form contract with the union.

Mr Ochoa indicated that he would get back to the union, apparently for some reason he did not.

The union then placed pickets on the private property of Sears, Roebuck & Co. signs indicating simply that they were sanctioned by the FFL-CIO and that they were from the Carpenters Union.

Unknown Speaker: Mr. Siegel, does the record show whether Sears was a member of the Building Trades Council?

H. Warren Siegel: The record does not show that Your Honor.

Unknown Speaker: Or has it signed the master agreement?

H. Warren Siegel: No. Sears is however -- is not but I do not believe that is in the record.

If it had been so the union, I think would have had other alternatives such as arbitration provisions and so on, Sears would have had also.

In any case, the pickets were requested to leave.

They refused to do so.

They did leave after a while for a very short time, apparently some phone calls were made and they then re-appeared on the property and indicated they would not leave unless compelled to do so by legal process.

Sears did not challenge the objective of the picketing.

It decides themselves we are not precise as to what the objective were but the conversations had before hand indicated several alternative objectives.

Sears did protest the location of the picketing.

Sears then apply to the San Diego County Superior Court for temporary restraining order which in California is a notice type hearing.

The court issued a temporary restraining order subsequently held a hearing which was on written record in California affidavits and in November 1973 issued a preliminary injunction the sole effect of which was to confine the picketing to the public streets and side walks surrounding the store and not the private property.

In doing so the Superior Court considered not only issues that arose under California State Law such as whether this was commercial property or industrial property.

It considered also the necessity for maintaining the peace, the potential for violence in a trespass type situation.

It applied a balancing standard, not unlike the Babcock & Wilcox standard of this court.

After the temporary restraining order was issued, the unions did picket on the public sidewalks surrounding the store.

At this point, we come to perhaps the only issue that was really in dispute in the record before Superior Court.

Sears had affidavits which indicated that there had been effective picketing, people did decline to enter Sears property including some who were making commercial deliveries to the store.

The union said that the picketing on the public sidewalks was not effective, pointed to no specific instance of its lack of effect.

The Superior Court weighing that conflicting affidavits believe that Sears testimony which had pointed to several specific instances of effectiveness and did issue the preliminary injunction.

At no time, during the entire process of this proceeding which began in October finally resulting in the preliminary injunction on November 21st, 1973 or any time thereafter, as the union filed a charge with the National Labor Relations Board.

Unknown Speaker: Is it fairly common in the California Superior Court, injunctive procedures for a temporary injunction to be issued on the basis of the written record with the consideration affidavits?

H. Warren Siegel: Yes.

Your Honor.

It would be unusual.

The court has discretion to take oral testimony but it is highly unusual to do so.

The issue therefore in this case has basically one of the procedure by which the rights of private parties have to be resolved in a peaceful picketing situation.

While this arises in a picketing context, the same problems would of course, be existing and whether its hand building or organizational activity such as Central Hardware solicitation activities.

The same basic problem arises in any kind of activity occurring on private property.

It is the position of the petitioner that the state court should have concurrent jurisdiction with the National Labor Relations Board to resolve these kinds of issues.

In many respects the type of resolution that occurred in this case on a motion for an injunction is not unlike the situation where these issues are presented to a state court, for example, if an arrest have been effected.

If Sears had called the Sheriff and had the pickets arrested for trespass or for some other act, the state court would ultimately and I don't think there would be an issue that it would have jurisdiction to do so, resolve the criminal case and in so doing would have to consider not only the elements of state law that were involved in the particular crime but would also become involved in -- but undoubtedly be a defense and that is that the activity on the property was not some way privileged or protected by the National Labor Relations Act.

Same thing would be true for example, if in the process of ejecting a union representative from the property, there was a lawsuit against the ejector for assault of battery.

Again the state court would be called upon not only to resolve the state elements of those torts but undoubtedly have to resolve the factual issues that would be raised in defense that the activity of the person being ejected was not some way protected.

Viewed in that context, the type of issues that the state court would resolve on an injunction motion are no different than those issues which very clearly and as to which there is no argument, the state court already has jurisdiction, even though the matter may have originated out of a labor dispute at some time.

Under Garmon, if we view this in the context the backdrop of state law, these are the kinds of issues that state courts have been resolving, since before there were states in effect, going back to the very earliest common law actions involving trespass.

The advantage of allowing the state court to resolve this type of dispute is of course that it channels the dispute into a neutral form avoiding the necessity of self help.

The court would be very concerned that should self-help be exercised that that could very quickly lead to an active violence.

There is no issue under the current state of the law that the ejector could use (Inaudible).

That has been suggested by many of the commentators, and it has been mentioned in decisions of this court.

If in fact one could use self-help to affect the removal of pickets from the premises and thereby channel the dispute at least as to the criminal aspects or the tort aspects of the case in to the state court, it seems illogical not to allow Sears in this particular circumstance, property owner to go into state court initially to have that dispute resolved without the necessity of exercising self-help.

The significance or the benefit of state court in this particular circumstance, I think is very obvious under the act for two reasons.

First, under the particular factual circumstances under which this case arose, there was no availability of any NLRB relief.

Since Sears was not challenging the objective of the picketing, merely its location, there was no way that Sears initially obtain a forum before the board to resolve this dispute but even if there were some procedure for doing that, at best, the board might at sometime find that in fact the union activity on Sears premises was not protected.

Sears, at that point would simply have to go into court to enforce the board orders since the board order is not self executing and would be right back where we were fighting it out in a court at some later time rather than at some earlier that at least would have the advantage of placing the issues at peace between the parties without exercising self-help.

If this proceeding for example, had gotten back into the California State Courts or to a Federal District Court to enforce a board order, the board -- rather the court would not of course necessarily be bound by the NLRB decision.

There might be other issues that would have to be raised either under state law or federal law.

One would hope that the court would give due deference to the board decision but the fact of the matter is that a determination of the board on and on for a labor practice charge is not res judicata or collateral estoppel in a subsequent precision.

So neither from terms of an access to a forum nor if they were a forum is a proceeding before the board and a remedy, an effective remedy where the circumstances involved location of the picketing rather than its objective.

Unknown Speaker: What if 30 days have gone by before Sears moved?

H. Warren Siegel: That would be fine if the sole object was organizational, of course, at that point the union could simply change the object of the picketing to informational picketing and therefore that would not be in a fairly good practice.

Unknown Speaker: Do you want to pursue to my question.

Let us suppose that there were picketing for organizational purposes.

H. Warren Siegel: Solely?

Unknown Speaker: Yes.

H. Warren Siegel: If they were picketing solely for organizational purposes at that point in time, Sears could have gone to the board however --

Unknown Speaker: Well, I know but what if it would have gone to state court?

H. Warren Siegel: I submit Your Honor that our position would be the same for this reason.

Unknown Speaker: That is what I want to get to -- why?

H. Warren Siegel: Because in the interim of time, between 30 days Sears could have exercised self-help and removed the pickets from the premises.

Now granted that may have engendered the quicker filing of an unfair labor practice charge by the union although it did not do so in this case.

But if that had happened, if an unfair labor practice charge had been filed, the issues as to the exercise of self-help which still have had to been resolved in state court.

If Sears for example had affected --

Unknown Speaker: I suppose, nothing had started, Sears just did not get around to doing anything until after 30 days and then it decided that it was tired of this recognition picketing and went to state court for an injunction, claiming that they were trespassing and the union answered, well this is arguably prohibited by -- if these have not --

H. Warren Siegel: Your Honor, I think the circumstances would not change in effect --

Unknown Speaker: So, you would say, you are just urging us then to go even that far and saying that even if it is arguably prohibited or is prohibited on anybody's prediction that the state court should be free to go ahead or even though the general council in that circumstance can go right to court and get an injunction.

H. Warren Siegel: All the more reason, Your Honor why access to state court should be permitted.

I think it is unreasonable to assume that a state court will ignore the implications of the act or any other principle that would be brought to its attention either by the union or the board in an appropriate case, if the state court should err in the balancing of the effectiveness of the location of the picketing or in any other issue.

Ultimately, the remedy of the board would be to go in and get an injunction against the further effectiveness of the state court injunction.

There is a remedy for the board and the union under those circumstances.

There really is no remedy for the employer, if one must to wait any ultimate determination of the board.

But Your Honor's question, I think points out the necessity of the position that we have taken in this case.

In effect, when these issues reach state court on the self-help or a tort claim and the courts are considering the defense, the activity is protected under the act, there is in effect, a determination whether the activity is actually protected rather than merely arguable.

So in this particular circumstance that decision as to whether the activity is truly protected would be made at an earlier stage which is to everybody's advantage.

Again, if the state court errs a petition could be made to modify the injunction under state law and ultimately if the board or the union felt that the state court was not properly deferring to some federal principle, there are remedies available right now under the presence to that law for going in, getting injunction and on the principles of supremacy of the state court injunction would dissipate.

Unknown Speaker: Mr. Siegel, help me out a little bit -- Sears asked the pickets to leave premises.

At that time was the union in a position to file an unfair labor practice claim under 8 (a) (1)?

H. Warren Siegel: I would suggest Your Honor that if they felt that they truly were engaging in activity which was protected or arguably protected, yes they could have.

Unknown Speaker: But, would Sears then be satisfied if we had a rule, let me put in another way, if Sears feel adequately protected. If we held that the union could not claim pre-emption unless it had filed an unfair labor practice claim.

H. Warren Siegel: That effectively is the alternative suggested by the union after the long discussion on the basic pre-emption doctrine.

Unknown Speaker: Would you believe it is fine with it?

H. Warren Siegel: No, I would not Your Honor because under the current state of the law where you exercise self-help, the burden of a delay in obtaining a board decision is already with the union.

So allowing this dispute to be resolved in a civil proceeding does not shift the burden of a delay, anymore than it is under current law.

It makes it a more peaceable forum but it does not shift the burden of delay, and as I mentioned before even if the board decided in Sears favor in this particular case and refused to issue a complain, that would not resolve the underlying issue.

Sears would still have to go into court at that point and obtain some type of injunctive or other relief as to which the board --

Unknown Speaker: Unless it wanted to exercise self-help?

H. Warren Siegel: Unless it wanted to exercise self-help which you could do from the very beginning.

Unknown Speaker: Why did Sears not protect itself that way?

Just the threat of violence?

H. Warren Siegel: I would submit Your Honor that it would be unwise policy to encourage violence and that is why we try to get this dispute into some forum to resolve it without the physical force that would be involved in self-help.

Chief Justice Warren E. Burger: Well, when you ordered them off the premises, was that not the first step in self-help?

H. Warren Siegel: Yes it was.

Although I would not characterize it as an order, it was a request ultimately and in fact the invitation to go to court might be said to abend the unions and because they said they would not get off without legal process.

Well, at that point in time, self-help is not legal process in the sense of any kind of a judicial or administrative proceeding.

We could not go to the board, we had to go to state court.

I submit that the policy should be since there is already these kinds of issues being resolved in state proceedings of various kinds, the policy should be to encourage the dispute into a neutral forum into a forum that will be able to hear the issues, decide the issues and as to which the burden of delay and the resolution in the state court is already with the union.

It is simply an alternative between self-help and a peaceable resolution.

Unknown Speaker: Well, I suppose if the union were arguing that just an order to get off was not an adequate premise for filing a charge that when you went to court, would add something substantial for that action, I suppose?

At least then the union's right to file if it had one, should mature?

H. Warren Siegel: I believe it would have existed at both stages Your Honor but most certainly I would not dispute that they could have chosen the file charge, if they wanted to.

The fact that they did not do so is discussed in the trial court record and may have been one of the factors that the court considered in determining whether in fact the location to which the court ultimately limited the picketing would be an effective one or whether the union really believed that it was engaging in protected activity.

We do not know that but it is discussed in the Superior Court record.

If in fact, we had a rule in this situation where, in response of Justice White's question Sears had to wait until the board resolved the issue, which I have indicated would not truly protect Sears right.

In effect, we are condoning what may be in proper conduct by the union and leaving the property owner without a remedy.

It seems that it would be more effective to channel it into the forum of the state court.

Now, it is interesting to note that all of the briefs in this case including the brief of the board do concede, I believe that trespass, the regulation of trespass is a valid state interest, a very one deeply routed state interest.

So I submit that under Garmon, under one of the exceptions that the court announced that the fact that trespass has historically been a matter of deep state interest, every state has laws concerning trespass is a valid ground for invoking the jurisdiction of the court.

Unknown Speaker: It used to be that the board had no declaratory judgment procedure and like some agencies does it have any now?

H. Warren Siegel: Only in jurisdictional questions Your Honor, and rarely exercised but again even if it did have declaratory --

Unknown Speaker: But, my question is does it have any?

H. Warren Siegel: No it does not Your Honor.

Even if it did, we go back to the problem, I mentioned earlier --

Unknown Speaker: I understand that.

Justice Thurgood Marshall: If they did, it would take so long --

H. Warren Siegel: I believe that is true Your Honor but still would not be self executing and that is the essential problem here.

Unknown Speaker: Mr. Siegel, may I ask you a factual question?

Did the the union represent any Sears employees?

H. Warren Siegel: None whatsoever Your Honor.

I would reserve the rest of my time.

Chief Justice Warren E. Burger: Very well, Mr. Siegel, Mr. Williams?

Argument of Jerry J. Williams

Mr. Jerry J. Williams: Mr. Chief Justice, may it please the court.

I want to start, if I May, by responding to some of the contentions made by the council for the petitioner with which we are in dispute.

There is nothing in the record, for example, to show that the Superior Court believed that the Sears affidavits were correct and that the union affidavits were incorrect, that kind of determination was not made.

As a matter of fact, I was unaware until after the ruling had been made that any affidavits have been filed to effect that anyone had interrupted deliveries assuming that that was a union objective in the course of the picketing at the relocated areas.

Chief Justice Warren E. Burger: What order did the court issue on those affidavits?

Mr. Jerry J. Williams: Well, there is a temporary restraining order which was issued, as I recollect ex parte whereas we remember the forum going down on the matter because it seemed so simplistic nature.

Then there was a preliminary injunction after hearing, then there was demur on the basis of the court's jurisdiction.

And we had two different Superior Court judges involved in those proceedings which were unduly progressed and rather prolonged.

The union sue sponte discontinued the picketing as being totally un-factual, after the court had ordered that the pickets to be relocated to the outlying areas.

I think the briefs in the appendix show that there is a great distance from the sidewalks around Sears store to the actual so called public sidewalk, if that is an appropriate term in this context.

So that the cars where they were shooting in out from the public street to the public areas which were in all respects identical to any other area of Chula Vista which was in fact public.

Some of them perhaps just going to the red, white and blue mailbox in the so called private area of the Sears sidewalk which was the sidewalk around the store.

I had no idea that there have been any interruption under those reasons, so I read the affidavits after the order had been issued.

Chief Justice Warren E. Burger: Well is it not a reasonable assumption that the judge believed them or he would not have signed the order?

Mr. Jerry J. Williams: No.

I think Your Honor what the judge believed and I think, he was demonstrably incorrect in this regard as evidenced by the finding of the California Supreme Court and also case has later cited, that Section 552.1 of the California Penal Code required that the issue at injunction on the theory that the union was trespassing on property other than posted industrial property.

The California Supreme Court decisions been raised in Schwartz-Torrance Investment Corporation versus Bakery's union dealing with Shopping Center type situations and also providing an interpret of judicial loss to 552.1 make clear that those exceptions on behalf of labor organizations apply not only to posted industrial property but fortiori, as the court has itself a reason, I am speaking of the California Supreme Court.

As the court has itself a reason if it applies an exception in favor of labor organization picketing to the general trespass statute, section 602 of the California Penal Code to posted Industrial Property, a fortiori that exception applies to property other than posted industrial property.

That was the mistake that the court made as I said the case started out --

Unknown Speaker: This point urged upon the Superior Court judge in San Diego County in the hearing before the preliminary injunction was issued.

Were these decisions of Supreme Court of California called those attentions?

Mr. Jerry J. Williams: The end result of the case was I have no independent recollection as to whether Schwartz-Torrance case was, it is my recollection however my best guess that it was --

Unknown Speaker: Is it not reasonable to assume that he would have followed the decision of Supreme Court of California that you contend is right in the forum?

Mr. Jerry J. Williams: No Your Honor I wish that had been the case.

It would not be here now.

What happened as the appendix, I think clearly indicates in those portions of the transcript which were cited by counsel for the petitioner, the Superior Court judge said in effect, well I really hate to issue this injunction.

It seems wrong to me but this is not posted industrial property and under 552.1 the exemption for labor organization trespass picketing apparently applies only to posted industrial property.

He was clearly wrong in that.

Unknown Speaker: Do you think to review that sort of a point here.

What the California Law was on the subject?

Mr. Jerry J. Williams: Well, the question was asked, I was responding to a question from the Chief Justice.

Yes, I think we quite clearly had raised the question of an independent state ground as a basis of this decision.

Unknown Speaker: Well, as I understood, the opinion of the Supreme Court of California, it falls a little bit under the mold of the human cannonball case that my brother White wrote for us last term, that is that -- where it appears that the State Court may feel itself bound to reach a particular conclusion as a result of a principle of Federal Law.

This court will decide the principle of Federal Law and send it back so that the state court will -- if federal law does not preclude the state court from reaching its own result and its own law but state court is then free to do that?

Mr. Jerry J. Williams: Well, I think perhaps, if this is response Your Honor.

The short answer is the trial judge made a mistake and the record clearly shows that, the appendix which is before this court clearly shows that.

The law of the State of California quite clearly in Schwartz-Torrance Investment Corporation places an interpretive loss on 552.1.

Unknown Speaker: Why did not the Supreme Court of California reverse on that basis?

Mr. Jerry J. Williams: I have asked myself that question.

Unknown Speaker: They did?

Mr. Jerry J. Williams: No.

They did not.

They seemed determined to raise this specific question whether or not the Garmon doctrine as recently restated in the Farmer & Hill case, the Hill case which became a Farmer case and now perhaps the Farmer and Hill case.

Whether or not the doctrine of federal pre-emption or the supremacy clause of the United States constitution applied to trespassory picketing, a question specifically reserved in the Fairline contrary against the assertion of counsel that has uniformly conceded that this is interest deeply rooted in local feeling.

Certainly is not an interest deeply routed in local feeling of California which has both, a line of cases saying that labor unions may trespass so to use that word advisedly on private property and also as most recently enacted a statute after the submission of briefs to the California Supreme Court, 527.3 of the California Court of Civil Procedure to further illuminate the judicial gloss placed on 552.1 to it.

The labor organizations may trespass for labor organizational purposes and no preliminary injunctions may be issued to stop them.

Unknown Speaker: Well, all of those grounds would remain open for the California Court's decision if we were to reverse on a federal ground here?

Mr. Jerry J. Williams: I am not sure I can answer that in the manner which it is posed Your Honor for this reason.

As I understand that one of the questions which is raised by petitioners whether or not trespassory picketing is in fact deeply rooted in local feeling.

California says it is not.

The issue was reserved in Fairline.

We are talking here about arguably protected activity under section 7 of the amended Labor Management Relations Act.

Unknown Speaker: Do you suggest that the pre-emption doctrine will vary from state to state depending on how deeply rooted the trespass feeling appears from an examination of state statute?

Mr. Jerry J. Williams: On the contrary Your Honor, I am suggesting that in a line of the decisions starting with Garmon 2 at least in 1959 reiterated most recently in the Farmer Hill case if I may use that terminology.

Last term the court has been unanimous on the point that what we are talking about arguably protected activities, here peaceful picketing, concededly peaceful picketing that the activity is pre-empted and that the NLRB's jurisdiction is exclusive or as the court has itself said the NLRB may not have the last but they must have the first.

Unknown Speaker: What is the deeply rooted state feeling got to do with it at all that you mentioned a moment ago?

Mr. Jerry J. Williams: The point had been made by petitioner Your Honor that everybody knows or everybody conceives which I pick issue with that this is an area deeply rooted in state feeling and that area is deeply rooted in state feeling are exemptions to the Garmon doctrine of federal preemption.

Everybody does not know that, I do not know that.

The State of California does not know that.

That is a point that I was making.

Unknown Speaker: Well, so then your response to petitioner would be, even if he is right, it would go on a state to state basis?

Mr. Jerry J. Williams: No Your Honor.

I am saying this, I am saying that from Garmon 2 to Farmer Hill, even though in Garmon 2, there were Justice Harland wrote a concurring opinion on the point of arguably protected activity in contradistinction to arguably prohibited activity.

The court was unanimous in holding that as to arguably protected activity under section 7 and in this case section 13, the board's jurisdiction is exclusive and state court's must deal.

Chief Justice Warren E. Burger: Could the union have gone to the board as soon as they were requested or ordered to leave the premises and terminate the trespass, allege trespass?

Mr. Jerry J. Williams: Frankly Your Honor I did not know that in 1973.

I have discovered it from reading the board's amicus brief, that that is the board's position from the moment that the employer orders the union off premises that gives rise to an arguable 8 (a) 1 thereby providing a forum for the employer which has been apparently a concern of the petitioner in this case providing a forum for the employer to determine whether the picketing was trespassory in nature or whether it was protected under section 7 --

Unknown Speaker: But only if the union filed.

Mr. Jerry J. Williams: Yes, Your Honor if the 8 (a) (1) were filed.

However, I might add in response to question asked earlier by Your Honor that with regard to the 30-day rule had that occurred of course that would give immediate rise to 8(b)(7) petition and a consequent 10 (l) injunction under the Board's jurisdiction to apply in Federal Court for a subject 10 (l) injunction and those injunctions --

Unknown Speaker: That is after 30 days?

Mr. Jerry J. Williams: Yes, Your Honor that was the question as I recall it.

Unknown Speaker: If in your view, and belief at that time there was no basis for going to the board when you were ordered off the premises, did you have a basis for going to the board when the Sears went to the state court?

Mr. Jerry J. Williams: When Sears obtained the injunction Your Honor?

I would suppose, as I now understand the board's position that in 8(a)(1) injunction -- an 8(a)(1) unfair labor practice charge will be entertained by the region on the basis of any action to interfere with the section 7 rights of the picketers.

That we did not understand at the time of the case.

As a matter of fact, as I say because it was very simple matter since the state law was so clear.

Unknown Speaker: You answered my brother White that only if the union had filed -- had gone to the board, at page 17 of its amicus brief, board says the union's activity here was arguably prohibited, Sears could have filed the charge.

Mr. Jerry J. Williams: Yes Your Honor.

I recall that portion in the brief, Sears did not file a charge.

Unknown Speaker: You had answered my brother White, only if the union filed a charge.

The board's position is that Sears could have filed a charge?

Mr. Jerry J. Williams: Yes Your Honor, the board's position is we were both remiss in not filing charges.

Unknown Speaker: Well, now what would have been the basis for an employer to file a charge prior to the end of 30 days?

Mr. Jerry J. Williams: The board suggested that a charge could be filed under 8 (b) (2) and that we are trying to coerce the employer and to discharging employees in favor of union adherence.

The board suggested several other basis on which section 8 (b) unfair labor practice charges could have been filed, outlined I believe at page 17 of that petition.

Unknown Speaker: But, would have had to do very little with where they are picketing?

Mr. Jerry J. Williams: With the location of the picketing Your Honor, it might depending on what charge was filed and what action the board sought to take.

Unknown Speaker: Mr. Williams could you help me on the theory of the union's 8 (a) (1) charge which someone suggested had been filed.

If the union did not represent any employees, how could they file an 8 (a) (1) charge?

Mr. Jerry J. Williams: On the theory that the section 7 rights of the union adherence, the picketers were being invaded.

As I understand it, everyone has section 7 rights of employees and non-employee organizers, parking back to Babcock & Wilcox, also Republic Aviation and alternative line of cases.

Unknown Speaker: Is that settled I am just -- I have to confess my agreements on it -- because the statutory language speaks of employees and I did not realize it.

Mr. Jerry J. Williams: Yes.

As I say, the board takes the position of both the petitioner and the respondent were equally remiss in not filing charges under those circumstances.

Of course, it has never part of the Garmon doctrine or the doctrine of federal preemption under the Supremacy Clause that the filing of a charge was a condition perceiving to the exercise of arguably protected a contradistinction to arguably prohibited activities.

Also under the circumstances of this case, since we were dealing with arguably protected activities which were nullified by the effect of the preliminary injunction, it was seemed clear that this was a matter which fell within the line of cases originating with Garmon 1 in 1953, I believe and recently expressed by this court in the Farmer Hill decision.

Another point that has been made or urged is that after all its much more expeditious for an attorney representing an employer to go to Superior Court and get an injunction.

Well, that is true, it certainly is but the vice of that is that the injunction is almost invariably dispositive, the terms temporary injunction or preliminary injunction are misnomers.

That of course was a point made years ago by Justice Frankfurter and Mr. Greenan (ph).

The labor injunction which led to the Norris-La Guardia Act.

We had no similar such statute in California until the recent passage of the statute adverted to in our brief CCP section 527.3, pointing out that the so called preliminary injunction is anything but preliminary or was said to me when I was going to law school there is nothing more permanent than a temporary building.

If I may then de into resume the order of my argument, I should like to point out to the court that what we are talking about here are arguably protected activities, the activities is beyond dispute and I think conceded by council.

We are talking about peaceful picketing on walkways generally open to the public.

There was a US mailbox, big red, white and blue mailbox in the area denominated by the petitioner as private.

There was no obstruction of traffic whatsoever at anytime.

Chief Justice Warren E. Burger: Does that make it to public because they put a mailbox there?

Mr. Jerry J. Williams: It seems to me Your Honor that the term private property -- it raises a tautology when we are talking about section 7 rights.

Chief Justice Warren E. Burger: But a hotel has a mailbox in the side of it.

Mr. Jerry J. Williams: Red, white and blue mailbox, US mailbox?

Chief Justice Warren E. Burger: I do not know what colors they are and that is a mailbox outside the hotel.

Mr. Jerry J. Williams: There may be a mail slot Your Honor, one of those brass things with a slot in it.

Yes, in a hotel.

Chief Justice Warren E. Burger: What is the difference?

Mr. Jerry J. Williams: Well, the difference is that the big red, white and blue mailbox mounted anchored to the curb of a sidewalk is an invitation to all comers to come on the premises and to say under those circumstances that the property is private --

Chief Justice Warren E. Burger: It is an invitation to come on the premises to mail a letter perhaps.

Mr. Jerry J. Williams: Well, may be some of the pickets wish to do so.

Chief Justice Warren E. Burger: Is that shown in the record here?

The claim of that was --

Mr. Jerry J. Williams: The red, white and blue mailbox is part of the appendix picture D.

It came out very poorly in the Polaroid, I wish I could do something about that.

I think the fact that there was a red, white and blue mailbox anchored to the sidewalk denominated by the petitioner as --

Justice Thurgood Marshall: Let me put it in another way, any difference if it was green?

Mr. Jerry J. Williams: It would not have been a mailbox then Your Honor and I do not think it would have been -- well if it were green then we would be back to prior to Garmon I think we would be in serious trouble.

Chief Justice Warren E. Burger: Well, to our plan, what difference it makes to your case whether there was or was not any mailbox there?

Mr. Jerry J. Williams: Just this Your Honor, I think it is a tautology to talk about section 7 rights versus private property rights because it is a true as a jury's prudence then in a true sense when we are talk about private property, we are talking about the right to exclude others.

What we are talking here is under what circumstances do individuals be the union adherence, employees of the employer or otherwise have the right of access and to use, I know that the term private property is sacrosanct in English common law and it has been carried over to United States but no matter how metaphysically we treat it, property has no rights.

So we are talking here about rights of access of individuals be the union adherence or otherwise in a situation of peaceful picketing which is arguably protected, admittedly peaceful picketing under section 7 and 13 of the Act.

Unknown Speaker: I think that the trial court did not agree with you on California Law ?

Mr. Jerry J. Williams: I think the trial court was confused and I think the record indicates that.

Unknown Speaker: Well, anyway the answer is they did not agree with you.

Did you ever present a claim under California Law Court?

Mr. Jerry J. Williams: I did not personally.

Unknown Speaker: Or did the Union say that it was contrary to California law to reach the injunction?

Mr. Jerry J. Williams: Yes.

Unknown Speaker: Did it present that claim to the District Court of Appeals?

Mr. Jerry J. Williams: Yes.

Unknown Speaker: And to the Supreme Court?

Mr. Jerry J. Williams: Yes.

Unknown Speaker: And neither court reached it?

Mr. Jerry J. Williams: The State of California decided the case of course on the basis --

Unknown Speaker: How about the District Court of Appeal?

Mr. Jerry J. Williams: The District Court of Appeal distinguished the Schwartz-Torrance and the other cases.

Unknown Speaker: So it disagreed with the union also on the California law?

Mr. Jerry J. Williams: Yes.

That is correct.

Unknown Speaker: But you say, you are correct?

Mr. Jerry J. Williams: I say that the California Supreme Court is correct in holding that under state law there is a proper basis for allowing the so called trespassory picketing.

They did not choose that basis of decision.

Unknown Speaker: But they did not hold that in this case.

Mr. Jerry J. Williams: No they have held it --

Unknown Speaker: And it did not say whether the District Court of Appeals was correct in distinguishing the priorities?

Mr. Jerry J. Williams: No, it did an interesting thing, the first time they assumed jurisdiction --

Unknown Speaker: Well they did not say that the District Court was wrong.

Did they?

Mr. Jerry J. Williams: In effect they did.

They remanded to the District Court with instructions to view the case in light of Musicians Local 6 versus Oakland Stadium in which those kinds of issues were raised.

The District Court of Appeals made a second decision in which they chose not to follow that direction and that second time the California Supreme Court asserted jurisdiction, they decided it exclusively on the basis of the federal preemption issue.

Unknown Speaker: But never did say the District Court was wrong on the California Law?

Mr. Jerry J. Williams: No Your Honor.

Unknown Speaker: Mr. Williams, you started out by pointed out that either the record was unclear there was no finding as to whether the picketing had any effect on interrupting deliveries?

What difference does that make, do we not have to assume that the picketing is for some reason either interfere with the patronage of the store, ought to interfere with delivery?

Mr. Jerry J. Williams: Oh, surely Your Honor.

Unknown Speaker: I do not know what point you were making that is why I did not write that.

Mr. Jerry J. Williams: The point, I was contesting the observation of the petitioner that the court believed the employer --

Unknown Speaker: But did we not assume for the purpose of decision that he did, would that not be better?

Mr. Jerry J. Williams: Yes.

Unknown Speaker: May I continue?

Chief Justice Warren E. Burger: Very well.

Mr. Jerry J. Williams: I think also there has been an equation made between trespass and other kinds of tortuous activity which this court has found to be exceptions to the Garmon doctrine now and each one of those cases such as Linn versus Plant Guards dealing with malicious libel or the Farmer Hill case dealing with outrageous infliction of emotional distress or even Youngdahl versus Rainfair dealing with violent picketing.

We've dealt with outrageous, particularly outrageous conduct.

You might even say unconscionable conduct and even there the court has been careful to distinguish between the unconscionable conduct and the conduct which is protected as in Youngdahl for example, which says that the violence is certainly subject to the police power of the state but not the right to picket it.

So in sum, on that aspect of our case Your Honor contrary to the contentions of the petitioner, the exclusive jurisdiction of the National Labor Relations Board under Garmon is not displaced by the mere incantation of the phrase violence, liable, tortuous infliction of emotional distress or trespass.

In other words, there is another such equation that has been made and that particular blunderbuss approach has been studiously avoided by this court in a line of decisions as recently as the Farmer case.

I should also like to point out Your Honor that with regard to the reply brief, I had hope that the court would regard it is untimely since it apparently does not comply with the time requirements of Rule 41 that -- since that apparently has not occurred that hastily reviewed that brief and I find that there is at page 9, the misstatement of the law.

Last sentence of the first paragraph arguably protected has been the pre-emption rule not actually protected.

Also the two cases cited --

Unknown Speaker: Say that again whether you on the top of page 9?

Mr. Jerry J. Williams: Yes Your Honor

Unknown Speaker: I do not See the sentence to which you are referring.

This court has consistently recognized in effect?

Mr. Jerry J. Williams: Yes this court has consistently recognized in effect that even though conduct is arguably protected it may nevertheless not be preempted absent the determination that it has actually protected.

Well, that with all due respect Your Honor for the concurring opinion in the Ariadne case, such has not been the Garmon doctrine rule.

The two cases which were cited are in opposite at page 11, one deals with the public employees strike, the other deals with violence and mass picketing, neither deal with the interpretation of 527.3 appropriate here.

That Your Honor concludes my presentation.

Thank You.

Chief Justice Warren E. Burger: very well.

Do you have anything further Mr. Siegel?

Rebuttal of H. Warren Siegel

H. Warren Siegel: Yes Your Honor.

In response to the question I believe as asked by Mr .Justice White, the problem with the proposal of the board that Sears file a charge under 8(b) is of course I believe, I mentioned earlier that that goes only to the objective.

It does not deal at all with the location, so even in this case, if the board had found some impermissible objective, the union could simply have changed that objective to a valid one and we would be right back where we started now.

It is interesting to note that both the board and the union have conceded in the briefs that there are some trespass situations which are already subject to injunction under state law, They give the example, of the Marshall Field case where you actually have people coming in to physical confines of the store, having made that concession that the state would have jurisdiction there, I assume that must be on the basis that there is already a board decision that that activity is actually not protected, therefore it is not very far adjunct to allowing the court to determine that same thing in the context of a preliminary injunction.

For the very reasons, I mentioned earlier, that whenever a court either a state or federal, ultimately resolves these issues.

In effect, they are deciding whether there is actual protection, not merely arguable protection and many times of course they do disagree with the board, as to that concept.

I do not want to burden this argument too lengthy by arguably state law because, I do believe that that The California Supreme Court had an opportunity to resolve the issues of state law raised by the union.

As a matter of fact the statute to which they refer became effective January 1, '76.

So this case was argued, if my memory serves me correct that before the California Supreme court April of '76, the California Supreme court decision was in September of '76.

If the court had felt compelled by any of the arguments under state law, that were raised now by the union, it is to be assumed they would have resolved them not having done so, apparently there was agreement with the Court of Appeal in this case the California state law did not preclude the issue of the injunction and in fact we have cited two Court of Appeal decisions in California interpreting the new statute, while although they deal with somewhat factually different situations in construing the intent of the law, the new law, say was not intended to change preexisting law, there still must be a determination for example whether the pickets have a right to lawfully be at the location of which they---

Unknown Speaker: Did the union present the state law questions to the state supreme court ?

H. Warren Siegel: Not the new statute Your Honor.

Unknown Speaker: But the one the Court of Appeal decided.

H. Warren Siegel: Yes.

In any case both of those California Court of Appeal decisions which indicate that the new law does not change the preexisting law were denied hearings by the California Supreme court which in California is equivalent to a decision on the merits, not necessarily agreeing with the reasoning of the court but with the decision, and citable as precedent.

Unknown Speaker: Well, that statute seems to prevent injunctions where the union is entitled to be where it is --

H. Warren Siegel: Where it may lawfully be and therefore still leaves open the entire issues presented in this case, can they lawfully be where we say they could not lawfully be, correct.

Chief Justice Warren E. Burger: Do you think your situation in terms of the trespassers, any different from hotel workers lobbying -- the picketing in the lobby of the hotel, because there is a mail box there?

H. Warren Siegel: I do not think, the mail box situation has anything to do with this case at all.

I had the impression that we were perhaps re-arguing Central Hardware and those cases during the argument of that issue, certainly it is not --

Chief Justice Warren E. Burger: I am wondered why counsel is resting so much on mail box.

H. Warren Siegel: I do not know, the post office requested serious permission to put it there according to the record and Sears said yes, there is -- stack situations does not prevent the union from requesting permission, at least conceivably, I doubt it, but conceivably getting permission, but the point in there is even the post office recognized Sears property right to that location by requesting permission to put it there and Sears did consent.

I see my time is up and I really have nothing further there.

Thank you .

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.