NLRB v. RETAIL STORE EMPLOYEES
Legal provision: National Labor Relations, as amended
Argument of Norton J. Come
Chief Justice Warren E. Burger: The case is submitted.
We'll hear arguments next in the National Labor Relations Board against Retail Store Employees Union.
Mr. Norton J. Come: Mr. Chief Justice and may it please the Court.
This here -- this case is here on certiorari to the District of Columbia Circuit, which sitting en banc and dividing 5-to-4, denied enforcement of the Board's order against the Union, Local of the Retail Clerks International, which the Board found had engaged in secondary picketing in violation of Section 8 (b) (4) (ii) (B) of the National Labor Relations Act.
This Section makes it an unfair labor practice for a labor organization to threat and coerce or restrain any person for an object of forcing him to cease dealing in the products of or otherwise, to cease dealing of doing business with any other person.
A proviso to this Section accepts publicity other than picketing for the purpose of truthfully advising the public that a product or products are produced by an employer of whom the Union has a primary dispute and are distributed by another employer.
The question whether the picketing here violates Section 8 (b) (4) (ii) (B) turns on an application of the principles enunciated by this Court in the Tree Fruits decision in 1964.
The relevant facts --
Justice William H. Rehnquist: Well, it -- it turns basically on the statute, doesn't it?
And naturally, any cases from this Court interpreting the statute but that the basic criteria is the statutory language.
Mr. Norton J. Come: That is correct.
Except that in Tree Fruits, as I will indicate, the Court did interpret that language as applied to picketing of this general character.
But at bottom, we do get back to an interpretation of the statute and that was what Tree Fruits attempted to do.
The Union here is the certified bargaining representative of certain employees of Safeco Title Insurance Company.
And it called a strike following an impasse in negotiations over an initial contract.
In addition to picketing Safeco's office, striking employees also engaged in picketing of five land title companies that sell only Safeco Title Insurance policies.
The signs carried by the picket stated that Safeco was non-union and did not have a contract with the Union and the handbills, which were distributed at the general public, requested that numbers of the public boycott Safeco Insurance.
The Union's activities at the land title companies did not cause any work stoppages or interference with deliveries.
From 90% to 95% of the income of the land title companies is derived from the issuance of Safeco Title Insurance policies.
The remaining 5% to 10% comes from title research and escrow services.
Each land title company operates under an agency contract with Safeco under which Safeco operate -- underwrites all of its title insurance.
And the land title company agrees not to act as an agent for any other title insurance company.
Safeco owns stock in all of the land title companies, 53% in one and amounts ranging from 18% to 38% in the other four.
The remaining stock is held by various individuals.
An officer of Safeco serves as a member of the board of directors of -- of each land title company and two served on the board of the company in which Safeco owns 53% of the stock.
However, each land title company independently establishes its own wages hours and other terms and conditions of employment for its own employees.
And there is no interchange of employees between the land title companies and Safeco.
Based upon these facts, the Board concluded that despite the land title company's economic dependents on -- on Safeco for the underwriting of the title insurance, each land title company retained control over their own labor relations policies and their day to day operations and therefore, they were independent companies and not allied or part of Safeco.
The Court of Appeals sustained this finding and the Union does not challenge it here.
So, for purposes of this case, the land title companies are neutral employers for purposes of second -- Section 8 (b) (4) (B) of the statute.
The Board then considered the application of Tree Fruits, whether this Court ruled that Section 8 (b) (4) (ii) (B) permits an -- union to engage in consumer picketing at the site of a secondary employer directed only at the struck product.
Without laws, a Union appeal with a secondary site which has the effect of causing consumers not to trade at all with the secondary employer.
And the Board, the two numbers dissenting, concluded that although the Union's secondary site picketing was limited to Safeco's products, the picketing violated 8 (b) (4) (ii) (B) because it was reasonably calculated to induce customers not to patronize neutral title companies at all.
Because since virtually all of their business consisted of Safeco Title Insurance, the picketing of successful, would necessarily result in a total boycott of the title companies' business.
Because of the proviso to 8 (b) (4) (B) which I eluded to earlier, the Union's hand billing was -- of the title companies was neither alleged nor found to be a violation of the statute.
The only thing that was interdicted was the picket line in front of the title companies.
Now, we submit that the Board's application of Tree Fruits is a reasonable application of that -- of the principles articulated in -- in that decision.
The Union in Tree Fruits as the Court will recall, picketed neutral Safeway stores to persuade Safeway's customers to boycott Washington State Apples in support of a dispute that the Union had with the packers and distributors of those apples.
Rejecting the Board's ruling that all such secondary picketing was violative of the statute, the Court determined that enacting -- and in enacting Section 8 (b) (4) (BB) -- (ii) (B), the Court had meant to outlaw a peaceful consumer picketing employed to persuade the customers of the secondary employer and quoting from the Court, “To cease trading with them in order to force them to put pressure upon the primary employer.”
But the Congress did not intend to outlaw picketing which as in this case before it, only persuades the neutral's customers not to buy the struck product.
The Court explained that when consumer picketing is employed only to persuade, customer is not to buy the struck product, the Union's appeal is closely confined to the primary dispute.
But on the other hand, when consumer of picketing is employed to persuade, customer is not to trade at all, but the secondary employer.
The Union does more than merely follow the struck product.
It creates a separate dispute with the secondary employer.
Now, the fact of Tree Fruits, permitted a clear distinction between picketing limited to persuading customer is not to buy this struck product and picketing aimed at the secondary's patronage generally, because apples occupied, but a small portion of Safeway's retail shelves and the Union could urge Safeway's customers from refrain from buying the apples without asking that they cease trading with Safeway altogether.
Here, such a sharp distinction cannot be made, because although the picketing is directed at the struck product, that product constitutes virtually all of the neutral's business.
And in these circumstances, the picketing necessarily is successful with result in a boycott of the neutral's total business.
And in that kind of situation, one interest must yield.
Either the Union's interest in maximizing pressure on the primary, or the neutral's interest in avoiding a boycott of its total business, and we submit that in the light of the legislative history of the 1959 amendments of the Act, which has set forth at length in the various opinions and in -- in Tree Fruits, this history which shows a desire on the part of Congress to protect neutral employers from secondary picketing at least, where it called for a boycott of the neutral's total business, the Board was not unreasonable in striking the balance here in favor of the neutral employer.
Justice Potter Stewart: Were these neutral employers?
Mr. Norton J. Come: They were on the finding of the Board that was sustained by the -- by the Court of Appeals.
Justice Potter Stewart: The fact is they were owned -- or partially owned by the producer of the boycotted product, weren't they?
Mr. Norton J. Come: That is correct.
But it -- under the established principles that are applied with respect to determining neutrality, you'll look at a -- a number of factors, the degree of common ownership and control, the degree of economic interdependence and also, the degree of control over labor relations in the day to day operations of the -- of the entity.
The Board found that looking at a -- all of these factors, they predominated the -- in favor of the finding of -- of neutrality, because although there was some common ownership and some representation of sharing of directors, in terms of the actual control over the labor relations, Safeco had no control over that.
And that is (Voice Overlap) --
Chief Justice Warren E. Burger: Would there be a difference -- Mr. Come, could there possibly be a difference between the branch which was 53% owned and the one on the other end of the spectrum of 17% owned?
Oh -- oh, the Board did not consider that, did it?
Mr. Norton J. Come: The Board did consider that one as well as the other as in found that that --
Chief Justice Warren E. Burger: Well, but did it --
Mr. Norton J. Come: -- it found --
Chief Justice Warren E. Burger: -- did it address itself to that distinction?
Mr. Norton J. Come: Yes, it found that despite the -- the fact that there was more ownership in that case, there was still no showing that there was any -- that that additional amount of stock ownership had resulted in any greater interference or control by Safeco over the labor relations policies of the land title companies.
And therefore, in terms of the finding of neutrality, there was no difference.
Because the essence of what makes a neutral for 8 (b) (4) (B) purposes, is whether or not, the neutral is powerless to resolve the underlying dispute with the primary other than by ceasing to do business with the primary.
And the Board found and the Court of Appeals sustained its finding, that that was the situation of the land title companies here even the one with the 53% --
Chief Justice Warren E. Burger: Well, what you're saying is that the title company could -- Safeco could control the five or six retailers as it were, but the retailers couldn't control Safeco?
Mr. Norton J. Come: That is correct.
Our second point is that if the Board's interpretation of the statute as applying to -- as interdicting this type, picketing is upheld, we do not believe that as the Union urges, that a substantial constitutional problem is presented.
The Union has devoted a substantial portion of its brief to this contention, but we believe that the constitutional phase of this case was settled by this Court many years ago in Hughes against Superior Court.
And in which principles have been followed as recently as several months ago in Babbitt against Farmers Workers.
The nub of the point is that it's -- as we read the cases, it is settled law that picketing is a mode of communication that is inseparably -- that while picketing is a mode of communication, it's inseparably something more indifferent.
It's more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line, may induce action of one kind or another quite different from the nature of the ideas which are being disseminated.
And that --
Justice William H. Rehnquist: Well, does that go all the way back to Thornhill against Alabama that picketing is free speech plus?
Mr. Norton J. Come: Well, I think -- I think that it -- it does -- Thornhill of course, held that a point had been, on all picketing, would be unconstitutional and --
Justice William H. Rehnquist: But it also recognized that picketing wasn't --
Mr. Norton J. Come: Well, first -- first, certainly, since Wohl, which came on a year or two after Thornhill and Ritter's Café which followed Wohl and then we move to the -- this was in the early 1940s and then we moved up to the early 1950s with -- with Hughes and Gazzam and -- and Henke.
Justice Potter Stewart: Giboney -- Giboney is the one I seem to remember?
Mr. Norton J. Come: Well, Giboney --
Justice Potter Stewart: It's the ice company, Mr. Come?
Mr. Norton J. Come: That is -- that is the ice company.
Now it's argued here that Giboney is distinguishable because in Giboney, the picketing sought an action which was itself made unlawful under a state law, namely, it was in support of an objective that would violate the state antitrust laws.
Justice Potter Stewart: Right.
Mr. Norton J. Come: It's argued here that the objective sought by this picketing is not unlawful in that sense because there is nothing unlawful for a consumer to boycott a -- a title company or a retail store for reasons of his own, nor by virtue of the publicity proviso to 8 (b) (4) would've be unlawful for a union by publicity, other than picketing to seek to induce such a boycott.
We submit however though, that Hughes shows that you don't have to have an objective that is unlawful in that sense for a state or the Federal Government to restrict its attainment by a form of coercion such as is represented by secondary picketing.
In the Langer case, the Court sustained the constitutionality of the ban on picketing that (i) (B) imposed against peaceful picketing that induced employees, secondary employees to strike in furtherance of a secondary boycott objective.
The Court held that Congress in furtherance of its legitimate objective of avoiding interferences to interstate commerce which are caused by bringing coercive pressures on neutrals and labor disputes that they are powerless to -- to resolve, could restrict that form of secondary picketing and furtherance of that legitimate governmental objective.
Similarly, we submit that Congress could likewise proscribe secondary consumer picketing at least.
Whereas here, it calls for a total boycott of the neutral's business in furtherance of its objective of freeing neutrals from these pressures and indeed, in the Farm Workers against Babbitt case, in which this Court -- to be sure was interpreting or was considering a state statute, the Arizona farm labor statute and they had a publicity proviso there and the question was whether that was unconstitutional?
The Court in setting aside the lower court's holding of unconstitutionality indicated that publicity stood on a different footing than picketing.
That Hughes had recognized that picketing was more than publicity and that -- that it would certainly be constitutional to prescribe picketing that would cut off the entire business of a neutral employer.
Justice Harry A. Blackmun: Mr. Come, in Safeco's brief here, there is a suggestion and indeed more than a suggestion that we -- we reconsider Tree Fruits.
You stopped short of that recommendation, I take it.
Mr. Norton J. Come: We do.
The Board has lived with Tree Fruits for 16 years.
It feels that it can continue to live with it, but it feels that this case is distinguishable from the situation in Tree Fruits and is asking for affirmance on -- on that basis.
Justice Byron R. White: Well, Mr. Come, is there any question with what if in Tree Fruits, the picketing had said instead of don't buy apples, but don't deal with Safeway because they are buying apples from the bad person.
Would that -- the picketing had been secondary and --
Mr. Norton J. Come: As I -- as I read the decision, I -- it would be.
Justice Byron R. White: Is there some -- are there some -- are there some cases here that say that that would be?
I -- I guess the Board can -- the Board certainly would say that that was illegal secondary picketing, right?
Mr. Norton J. Come: Yes, Your Honor.
Justice Byron R. White: Are there any cases here that say that it would be?
Mr. Norton J. Come: Any --
Justice Byron R. White: Except to -- except by negative inference from Tree Fruits?
Mr. Norton J. Come: I don't --
Justice Byron R. White: For Justice Harlan's dissent in Tree Fruits.
Mr. Norton J. Come: Well, as to whether the dissent accurately interpreted the majority opinion of course is -- is the question that we have now.
Judge Friendly once put it, “Dissents often are more accurately reflect Cassandra's gloom than her -- than her accuracy.”
Unknown Speaker: Yes.
Mr. Norton J. Come: And -- but the Board -- since after -- after Tree Fruits was not faced with a -- a single product situation, the way the progression developed was the first cases that we got -- the Board got involved of so-called, merge product situations.
Where for example, you had a dispute with a bread company and you'd picket a restaurant and asked the patrons not to use the bread when they went to the restaurant.
And the -- the Board held and the courts uniformly agreed that in that kind of a situation, you couldn't separate out the struck product and therefore, you necessarily were calling for a total boycott of the business.
And the Court below accepted the -- the merged product distinction in an earlier case, Honolulu Typographical Union, but it bought that carrying what we feel was the logical progression of the merged product cases to a situation such as we here where the struck product constitutes the neutral's entire business.
Chief Justice Warren E. Burger: Very well.
Argument of Laurence Gold
Mr. Laurence Gold: Mr. Chief Justice and may it please the Court.
The point of agreement between the Board and ourselves is that this case raises an issue which is a variation on that considered in the Tree Fruits case.
And that in deciding Tree Fruits, the Court construed Section 8 (b) (4) (ii) (B) and stated its construction and the meaning of that statutory provision at 377 U.S. 72.
We have --
Justice William H. Rehnquist: Mr. Gold, do you have any doubt that on the -- on the record before us, the Union in this case violated the literal language of the prohibition?
Mr. Laurence Gold: If -- yes, I do have a doubt of that and for the reasons stated in -- in Tree Fruits.
The literal language says that you can't restrain and coerce.
Tree Fruits tells us that at least some picketing designed to get consumers not to purchase a -- a struck good is not restraint in coercion within the meaning of those words.
Those words don't have one meaning and the Court accorded them the meaning that it believed was fairest and the most rational given --
Justice William H. Rehnquist: Well, but what -- what if Tree Fruits had never been decided?
Would you still -- would you still say that there is a great deal of room for argument that the Union did not violate this statute as written?
Mr. Laurence Gold: Obviously, the argument was made and accepted as an initial proposition.
It has to be an initial proposition at some state.
After the statute was passed, the argument was made and eventually, it was accepted that those words don't include a product -- struck product picketing.
Obviously, I believe that that construction is both rational and possible.
I'm confirmed on that as I stand here by the fact that a majority agreed with it, but before that was true, the argument had to be made based on the language, the general meaning of those words, the legislative history of the statute, the overall approach towards construing the statute and that was done.
Justice William H. Rehnquist: Yes.
But, what I was asking was the enacted will of Congress as Holmes put it at one time, the language that Congress actually enacted apart from legislative history or anything else.
Mr. Laurence Gold: I -- I would answer that question by saying that the words restrain and coerced are not self-defining words and that if we had no legislative history, I would certainly agree with you that it's possible to include peaceful picketing by a single person asking a consumer not to buy a product.
But if I were charged with interpreting the statute, I would not so construe it.
And as I say, the Court did not so construe.
Justice Byron R. White: What about the -- the question I asked Mr. Come, is there -- is there any question that -- that if in Tree Fruits, the picketing had been directed at Safeway generally saying -- saying to consumers, “Don't deal with Safeway because Safeway is dealing with the apple grower.”
That would be an illegal --
Mr. Laurence Gold: Yes, sir.
We understand the statement of the rule in the case to be that the -- that Section 8 (b) (4) (ii) was intended to cover picketing, persuading customers of the secondary employer to cease all trading with him.
That is the statement of the rule --
Justice Byron R. White: Yes, but --
Mr. Laurence Gold: -- in the case.
Justice Byron R. White: -- your -- if -- you picket -- you picket Safeway, you're asking consumers, don't deal with Safeway.
And -- and then you say, because you asked the consumers generally, don't they deal with Safeway, you'll say that's enough of the pressure on Safeway not to deal with the apple grower the amount to restraint the coercion within the meaning of the section, is that it?
Mr. Laurence Gold: That -- that is the construction of the statute as I understand.
In other words -- and this was the point I was going to get to and I believe it's responsive to the question you're asking now.
Both -- in our brief and in the Board's brief, we set out in full in our brief at pages 16 and 17 are the ultimate rationale of the Court from 377 U.S.72.
We start at the same place, we end at the same place and there no elisions in either brief.
What that passage says we believe, is not simply that picketing aimed at the secondary's patronage generally is unlawful, but it also explains why it's unlawful.
And thereby provides a basis for deciding future cases.
Justice Byron R. White: Are you saying that and would you say that that kind of an application of the statute if it -- that I just proposed would be constitutional?
Mr. Laurence Gold: No.
Justice Byron R. White: I beg your pardon?
Mr. Laurence Gold: No.
Justice Byron R. White: So, so your constitutional argument says that even you picketed Safeway generally and said, don't deal with Safeway generally because Safeway is dealing with the apple -- you say that's unconstitutional?
Mr. Laurence Gold: Yes.I want to make it clear that I can imagine a path of a decision, very much like the common law which would distinguish between what was called, “fair persuasion limited to the goods.” And going beyond that, now, I've -- for the reasons, I'll express, we will suggest that such a line is unsound on a constitutional --
Justice William H. Rehnquist: How -- how --
Mr. Laurence Gold: -- basis.
Justice William H. Rehnquist: -- can you justify your answer to -- to Mr. Justice White's question in light of Giboney?
Mr. Laurence Gold: Well, there are several justifications.
First of all, in Giboney, the Union was seeking two unlawful objects.
It was a crime under the law of -- of the State under the law of Missouri for the picketed employer to refuse to deal, to -- to join a concerted boycott.
In addition, it was a crime for employees to engage in concerted refusals to work.
But there is just --
Justice William H. Rehnquist: But that just makes the tail follow the dog and I --
Mr. Laurence Gold: I don't --
Justice William H. Rehnquist: -- believe the -- the State in effect, had -- decides what is protected and what isn't protected on the First Amendment.
Mr. Laurence Gold: Well, I -- I think that's always true.
It seems to me that the tail wags the dog if you don't begin that way.
If the conduct isn't unlawful to ask for conduct, would seem to be protected by the First Amendment or else, it's difficult to understand what the First Amendment is about.
On the other hand, the First Amendment doesn't protect me if I threaten to punch somebody in the nose or invite somebody to engage in the crime of murder.
And that's been understood ever since Fox versus Washington, is a class of verbal acts which are unlawful, but it is a very strange First Amendment, I would suggest to you.
That bars a -- a request to a member of the general public to do something which under state law, he has every right to do.
And indeed, as I intent to argue, under Virginia Pharmacy Board and cases like Glenmark, the First Amendment has been recognized to protect the right of individuals to truthfully state a fact which is relevant to a buying decision.
Price or the fact that it was made on the struck conditions, at least so long as the recipient of that message, the consumer is free to take it into account or not and we don't understand how it could be otherwise.
And we don't understand how that can be a rational distinction in terms of the right of unions to state such a message and the right of pharmacists to state the price at which they sell goods.
Justice Byron R. White: What about the -- what about the message to the employees of the secondary?
Mr. Laurence Gold: Well --
Justice Byron R. White: Picketing -- picketing for the employees --
Mr. Laurence Gold: If --
Justice Byron R. White: -- of the second -- of the secondary employer.
Just giving them information.
Mr. Laurence Gold: Yes.
Well, if -- if they have a right not to work, I would be up here making precisely the same argument.
If they had the right to engage in a concerted refusal to work, but I understand that Congress and the States have the right to regulate concerted refusals to work.
That's been understood for a very long time.
That's certainly regulating conduct and I would not argue otherwise.
And if that conduct is regulated and within the limits of the imminent danger test of Brandenburg, if you -- inviting those employees to engage in an illegal act or as the cases all have been in effect ordering them to do so at the pain of union discipline is -- can be made unlawful compatible with the First Amendment just the way conspiracy can, invitations to engage in a murder or any other unlawful activities.
So, to that extent, we don't believe that unions or anyone else are protected by the First Amendment.
But what we find and which -- what we suggest to be the novel and important issue here is whether a communication to members of the general public under -- at least under non-coercive circumstances can be interdicted even though the request made contains truthful information and asked for an entirely lawful response.
We don't understand how it can be and we would suggest that there has not yet been a case in this Court which says that it can be or that it should be.
Justice William H. Rehnquist: Where were -- where were this picket stationed?
Were they all on -- on some sort of public --
Mr. Laurence Gold: They were all on public thoroughfares which ever since Hague versus CIO has been recognized as a public forum in business areas where the problems of privacy and so on which you were discussing in this morning's case are -- are not present.
Justice William H. Rehnquist: Well, certainly not all public thorough -- public property is a public forum.
Mr. Laurence Gold: No, but --
Justice William H. Rehnquist: Are you (Voice Overlap) --
Mr. Laurence Gold: -- the streets, the parks --
Justice William H. Rehnquist: -- you say here -- here all -- all the pickets were stationed at places which were would be public forum under our cases?
Mr. Laurence Gold: Yes.
To return if I could to the -- the statutory argument which as Mr. Justice White has pointed out is far narrower than the constitutional argument that we make.
The Court at 377 U.S. 72 which is I have noted was -- it's set out at pages 16 and 17 of our brief, not only stated that picketing carried out at the -- picketing aimed at the secondary's patronage generally, is unlawful, but also, stated what it meant by that term.
The Board approach in this case assumes that that phrase was uttered and that the Court did not explain it all what it meant.
We think that that's an unfair reading of the opinion.
It seems to us that what the opinion says in its own words is, “On the other hand, when consumer picketing is employed to persuade customers not to trade at all with the secondary employer, the latter stops buying the struck product not because of the falling demand, but in response to pressure designed to inflict injury on his business generally.”
In other words, if the Union goes beyond the product and asks people not to buy other products sold by that employer, it is why deemed the dispute.
And in that sense, it has acted improperly for statutory purposes.
Chief Justice Warren E. Burger: Where do we find Mr. Gold, the language that the customers are not very analytical when they see the picket sign to decide whether you're picketing particular brand of oleomargarine or apples or whether you're -- they're just picketing -- picketing generally.
Mr. Laurence Gold: I -- I believe on the next page, the Court dealt with that and said that be that as it may, if the Union is meeting its obligation namely, to fairly advise the public what its dispute is that it is within the statute.
As we point out in our brief, the situation is not different from the line drawn in so-called common side of situations where union does or does not violate the law depending on whether it fairly advises the limits of the dispute and who would the dispute is -- is with.
I think the theory of the opinion is that the wrong -- is if the Union extends the dispute not of people choose to ignore what the sign says and go beyond it.
Chief Justice Warren E. Burger: Now, for nearly 24 years, almost exactly 24 years, I have heard arguments including some of yours Mr. Gold at the Court of Appeals and here that on these fine shadings, the Court should rely on the Board.
Now, the Board has engaged in all that process here, but you're telling us that the Boards -- I don't think the word, “expertise” appears in your brief --
Mr. Laurence Gold: No.
It won't cross my lips today.
Chief Justice Warren E. Burger: No, I -- I don't -- I didn't think it would, you know.
What's happened at the Board's expertise in this -- in this very subtle and sophisticated area that we've been told for so long, should be the problems of the Board and not the judges.
Mr. Laurence Gold: There -- I -- I would argue that what has happened is Tree Fruits.
It -- as I understand the -- the nature of judicial review at the initial stage, the Court gives deference to the agency's expertise.
But that process has not allowed I think, the term is to slip into inertia.
And once the Court has acted, the agency's obligation is to fairly read the opinion, our whole first point.
Chief Justice Warren E. Burger: Well, did I hear you earlier that suggest that -- the literal language of the statute that the Boards construction was consistent with the literal language of the statute here?
Mr. Laurence Gold: No more or less than it was in Tree Fruits.
Chief Justice Warren E. Burger: Okay.
Mr. Laurence Gold: But certainly, whether it is your opinion in Catholic Archbishop of Chicago or the more recent opinion in the Yeshiva case, the Board's expertise as obviously never given complete sway.
Chief Justice Warren E. Burger: No.
Mr. Laurence Gold: And --
Chief Justice Warren E. Burger: Well, of course when you're dealing with the Catholic Bishop's case for example, you're dealing with what is or was -- not is or is not in the statute.
Not with the nuances and shadings of the language of the statute.
Mr. Laurence Gold: Well, but that is precisely what we are dealing with here and in Yeshiva, we were dealing with the nuances of -- of a term, managerial employees.
It doesn't even appear in the statute and the brunt of the opinion as I understand it was that the Court having treated with that issue.
In -- in prior cases, the Board had an obligation to follow with deference and with respect -- what the Court has said.
We believe quite clearly that the Board hasn't fulfilled that most central function to an orderly system of -- of federal statutory interpretation and elaboration.
As I say, my first reason, our first reason for that is the fact that the Board has given no reference to the context in which the critical phrases were used in the opinion and has ignored absolutely the example we set out from the Court's opinion in -- on page 17 of our brief, which we think makes its intent absolutely lucid.
In addition, I would like to point out on this portion of the case that the Board has indeed adopted the very theory of the Tree Fruits, Court of Appeals rejected in this Court.
The Court of Appeals in that case said that the Board was wrong, but said also that the case should be remanded to determine economic impact, possible economic impact on Safeway.
The heart of the Board's theory here in its leading case is that Tree Fruits rest on the minimal impact of the picketing on Safeway as compared to the predictable economic effect of the picketing here which would cause the agencies to abandon the primary, in favor of a new source of supply.
That is precisely the test we would suggest, that was rejected in Tree Fruits.
I would -- I have 10 minutes left.
I would like to discuss both of the constitutional arguments that we make.
Interestingly enough, Justice Black concurred in Tree Fruits on the ground not of statutory interpretation, but that and I'm quoting from his opinion as set out at page 33 of our brief, “While others are left free to picket for other reasons, those who wished to picket to inform Safeway customers of their labor dispute with the primary employer are barred from picketing, solely on the ground of the lawful information they want to impart to the customers.”
The -- the Court of course eventually in Mosley and then Erznoznik the Chief Justice's opinion in City of Madison has adopted Justice Black's view of the special consideration that has to be given to an antidiscrimination principle in the First Amendment area.
Justice John Paul Stevens: Mr. Gold, can I ask you a question?
You distinguished the Hughes case in your brief by quoting at some length from Professor Cox's article.
And he in turn draws a distinction between picketing back by the threat of economic sanctions and picketing which appeals only the reason.
In this case, I guess there were no -- there was no interference with delivery involved.
Now, had you had a situation in which -- although your message was precisely the same, the teamsters cut off delivery because they have crossed the picket line.
Would that be a different case or would it be the same case?
Mr. Laurence Gold: I -- I would consider it would be a different case.
In other words, I don't believe that Congress in regulating signals to organized employees not to engage -- excuse me, signals to organized employees to engage in a concerted work stoppage need adopt an intent as opposed to an effects test.
But, we do argue that labor unions or any other organization in this society unions have one out of every four working people in their ranks.
There are many who aren't even organizable, who have no control over the individuals they're appealing to, can carry a placard which is the essence of picketing, asking members of the general public to do something they have a right to do.
Justice John Paul Stevens: But the problem is it, it seem to me you might have two cases in which the message is precisely the same in terms as addressed just a consumers who are around the stores, one of them might produce economic consequences that the other one did not.
Would they be equally lawful or whether legality turn on -- on and whether there were economic -- adverse economic consequence.
Mr. Laurence Gold: I -- I would argue that their constitutionality would turn, (a) on whether the conduct that they stimulated has been regulated and banned.
And (2), on whether the message can be fairly whereas addressed to create a consumer -- I mean, to create a concerted work stoppage.
I'm not saying that we -- we will never be here arguing that it is so unfair to read it, if we won this case.
That it's so unfair to read our sign as directed to employees that we went up and we pleaded with them.
Let's take that case.
Suppose there's a case where the Union officials go up and plead and the district judge finds in good faith with the employees not to engage in a concerted work stoppage.
And nonetheless, the picketing is enjoined on a pure effect test.
I think that's a difficult constitutional case if it's -- if that effect is used to ban all communication to everybody in the area of both -- on many steps from having a luxury of arguing that case to you or Mr. Come argues that we can't even appeal to consumers, if we don't cause a single illegal consequence.
Justice John Paul Stevens: Well, but, it seem to me that the Cox's distinction didn't turn on the legality of the economic sanction.
I think, if I understood him correctly, he was suggesting that picketing would be unprotected if it had this economic consequences even though it were perfectly lawful for the -- say, the teamsters to cut off deliveries because they don't want to cut.
Mr. Laurence Gold: Well, I -- I don't read his -- his article to -- to get to that point.
His -- he -- that portion of his article is arguing against equating, picketing for -- picketing address to consumers was so-called signal picketing addressed to -- to workers.
In other portions of his article, he questions cases like Henke and Gazzam and so on which we discussed in our brief, which seem to relax the Giboney standard and which suggest that picketing can be banned even though it causes no unlawful end.
But only an end in a very strange sense which is against public policy even though the public policy doesn't ban the conduct which takes place.
That would be like saying that you can ban leafleting, asking people to do something lawful because you disagree with the ultimate social utility of the message.
We think that's an entirely wrong and terribly dangerous idea.
Justice John Paul Stevens: Well, I -- I wonder if the Hughes case isn't pretty close to that.
Mr. Laurence Gold: Well, the Hughes case -- can be read as being close to that.
It may be a case in which there was an unlawful ultimate object though you can read the California cases differently.
Justice John Paul Stevens: The unlawful ultimate object there is to urge affirmative action as I remember it.
Mr. Laurence Gold: Well, that's right.
And at that point, the supposition was that California could ban affirmative action and the California opinions can be read as either banning it or not.
Justice Frankfurter says two different things in two different passages.
We do believe for five separate reasons that Hughes has been passed by, that its analysis is unsound.
We think first of all that without acknowledging it, it expands Giboney to change the requirement from an unlawful object to one which is against public policy in this very unusual use of that term.
That secondly, Hughes rest on a proposition that speech which is not an appeal to reason can be banned of a view which is absolutely incompatible, we would suggest, with cases such as Cone and Spence versus Washington.
Next, Hughes rest on the premise which we think is absolutely contrary to the test stated in United States versus O'Brien that picketing can be banned because it involves conduct and without regard to whether the ban is absolutely necessary to prevent wrongful conduct and doesn't cut into express of speech anymore than is necessary.
And I want to say something at this point about the meaning of picketing and the meaning of compulsion.
Mr. Justice Marshall in its opinion in -- in the Mosley case noted that picketing can be an act by a single person walking back and forth with a placard.
Now, there can be statements and opinions and statements by the Board that that is inherently compulsive in the sense that it would frighten away somebody from crossing.
But we don't think that there is an iota of reality to that.
That is no more threatening than going up to someone and asking him if they'll sign a petition.
It's no more threatening than going up and asking him if he will take a leaflet.
We ask you to look at the record in Number 88, 1964 term, “Tree Fruits” at the two rather dignified ladies picketing in Tree Fruits and we ask you if it is fair to say that they were engaged in compulsive activity.
Chief Justice Warren E. Burger: Do you have anything further, Mr. Come?
Rebuttal of Norton J. Come
Mr. Norton J. Come: I just wanted to make one point and that is that the distinction between signal picketing and publicity picketing was rejected by the Court in -- in Hughes.
There, Justice Frankfurter speaking for the Court and talking about publicity picketing said that it no less than signal picketing was speech plus and it was because of the plus aspects that it could be regulated by the legislature in furtherance of a legitimate narrow objective and certainly eliminating coercion on neutrals in labor disputes is an objective within the prerogatives of Congress as this Court has recognized.
I have nothing further to add unless the Court has any questions.
Chief Justice Warren E. Burger: Thank you, gentlemen.
The case is submitted.