Cases by Issue - Picketing

NLRB v. Iron Workers - Oral Argument

Sun, 08 Aug 2010 19:13:24 +0000

Case:

NLRB v. Iron Workers

Media File:

76-719_19771031-argument.mp3

Related Transcript:

76-719_19771031-argument.xml

Transcript:

Argument of Norton J. Come

Chief Justice Warren E. Burger: We will hear arguments next in National Labor Relations Board against Local Union 103.

Mr. Come, you may proceed when you are ready.

Mr. Norton J. Come: Mr. Chief Justice and may it please the court.

This case is here on certiorari to the District of Columbia Circuit which denied enforcement of the board's order directed to respondent union local of the iron workers.

The case involves the relationship between two provisions that were added to the National Labor Relations Act in 1959, Section 8(f) which permits employers and unions in the building and construction industry to enter into agreements before employee has s been hired.

So called pre-hire agreements and Section 8(b)(7)(C) which regulates recognitional and organizational picketing via Labor Organization and in general terms the question presented is whether a pre-hire agreement entered into a pursuant Section 8 (f) privileges recognitional picketing via minority union which would otherwise violate Section 8 (b)(7)(C).

Now, the facts are briefly these.

In May of 73, Higdon Construction Company executed a contract with Glenmore Distilleries to erect the facility in Kentucky.

The contract required Higdon to use union labor in an order to obtain iron workers from respondent union.

It was required to sign an acceptance to the areawide labor agreement which the union had entered into with a multi-employer association.

The agreement purported to cover all the employees who performed iron work for signatory employers within the union's territorial jurisdiction.

It contained no provision requiring employees hired by the employer to become union members.

Union Security Clause, no provision requiring the employer to check off union dooms.

Higdon Construction performed the Glenmore job with some of its own employees who were nonunion and with some employees who were supplied by the union.

Unknown Speaker: But what did the agreement contain Mr. Come?

Mr. Norton J. Come: The agreement contained provisions establishing wage rights, welfare and pension benefits and working rules for these employees.

Unknown Speaker: But--

Mr. Norton J. Come: It did not have a Union Security Clause in it or a check off provision.

Unknown Speaker: Were there pension requirements or suppose there were no union members hired on a job.

would still have to contribute to a pension?

Mr. Norton J. Come: As I mean, the acceptance here you would.

Unknown Speaker: I see, thank you.

And would the board's position be any different if there were a union security clause in the --

Mr. Norton J. Come: The board's position would be different as indicated by the -- if the union security clause were enforced.

Unknown Speaker: By the employer you mean.

Mr. Norton J. Come: By the employer, in that situation the board would treat it like an ordinary collected bargaining agreement which carries with it a presumption that the union has majority status.

The board found and the Court of Appeals accepted that finding, that neither at the time the labor agreement was executed, nor thereafter the union claim to or in fact represent a majority of Higdon Constructions employees at the Glenmore project.

Meanwhile, Higdon Contracting was formed, to perform nonunion iron jobs and it did successfully on two jobs, Grace and Warmet(ph) and began work on them with nonunion labor.

When Higdon refused to apply the prior agreement to these jobs, the union picketed the jobs which signed stating that Higdon Construction was in the violation of the previous pre-hire agreement was entered into at the Glenmoore job.

Higdon Contracting filed an 8 (b)(7) charge and the board found that the violation of that provision.

It preliminarily found that the agreement between the union and Higdon, although it was a pre-hire agreement sanctioned by 8(f) did not privilege the picketing at the Grace job site as a means of enforcing that agreement because there was no showing that the union had ever acquired a majority under the agreement to form a full collective bargaining relationship.

The board in so holding relied on its earlier decision in R.J. Smith holding that a pre-hire agreement without proof that the union had acquired a majority support there under did not carry with it presumption that the union had become the Section 9 (a) or majority representative of the employees.

Court of Appeals which it set aside the board's decision in R.J. Smith, also set aside its decision here.

Now, it is a established principle under the National Labor Relations Act that employee shall be free to select their own bargaining representative, that an employer is obligated to bargain under Section 8(a)(5) of the Act only with the representative designated by a majority of the employees in a appropriate unit and that it is an unfair labor practice for both under part of the employer and the union to enter into a collective bargaining agreement when the union does not represent a majority of the employees.

Even though the parties may in good faith belief that they do and even though subsequently the union may in fact acquire a majority.

Now, Section 8(b)(7)(c) provides significant additional protection or the employees' rights of free choice by prohibiting a union which is not currently certified as a bargaining representative of the employees from picketing to force the employer, to recognize it as the employees representative for more than 30 days unless a representation petition is filed.

If a timely petition is filed, then a provision is made for an expedited election and the whole theory of 8 (b)(7)(c) is to channel disputes concerning the representation status of the union from the picket line into the board's representation procedures.

The union's picketing here came squarely within 8 (b)(7)(c).

It had never been certified by the board as the representative of Higdon's employees, nor had it otherwise been selected by a majority of those employees.

Nevertheless the union picketed here for more than 30 days during which time no representation petition was filed.

The evolved purpose of the picketing was to compel Higdon to adhere to the pre-hire agreement executed for the Glenmore job, the necessary effect of which would have been to recognize the union as the representative of the employees at the Grace job site even though they had never selected the union as their representative.

Now, the basic question that we come down to here is whether the 8 (f) agreement removes the picketing from the reach of 8 (b)(7)(c) on the theory that such agreement by operation of law has established the union as the Section 9 (a) or majority representative of Higdon's employees and thus the representation question is already been resolved.

In the board's view, and 8 (f) agreement does not without more establish that the union is the majority representative.

It is merely a preliminarily step that contemplates further action to establish a full bargaining relationship.

Hence, absent to showing that the union has required such majority support, neither the agreement is enforceable, neither through a bargaining order issued under Section 8 (a)(5) which obligates the imperative bargain with the majority representative, nor does it insulate the picketing from 8 (b)(7)(c) picketing.

Now, the board's position rests upon the following considerations.

In the first place, we start with the language of the statute which is set forth at page three of the board's brief.

It provides that it shall not be an unfair labor practice for employers or unions in the construction industry to make an agreement covering employees engaged or who upon their employment will be engaged in that industry because the majority status of such labor organization has not been established under the provisions of Section 9, prior to the making of such agreement.

Now, nothing in that language suggests that it was intended to confer upon a union that is a party to a pre-hire agreement.

The status of a Section 9 (a) or majority representative.

Congress did not in Section 8 (f) or elsewhere modify Sections 8 (a)(5) or 9 (a).

The former as I have indicated obligates the employer to bargain with the representative of his employees subject to the provisions of 9 (a) and 9 (a) defines the bargaining representative as the representative selected by the majority of the employees in an appropriate unit.

Moreover, while the board's well established contract bar rules would preclude the board from entertaining a representation petition during the life of a collective – an ordinary collective bargaining agreement.

The last proviso of the Section 8 (f) which is on page four of the brief provides that any agreement which would be invalid but for clause one which permits without the majority being established, shall not be a bar to a petition filed pursuant to Section 9 (c) which is a the provision that for determining a representation questions or 9 (e) which is a provision that permits employees to de-authorize a union security clause.

Now, the legislative history, we believe confirms that Congress in authorizing pre-hire agreements intended to do nothing more, because of the peculiar characteristics of the building and construction industry to relieve them from what would otherwise be a clear violation of the National Labor Relations Act.

I have mentioned earlier that --and this court so held in the Garment Workers case a number of years ago, that in the ordinary case, an employer and a union have to have a representative complement of employees on board and the union has to represent a majority of them before you can enter into a collective bargaining agreement.

This did not work for the building and construction industry because of the short term nature of most construction projects, and the fact that the employers ordinarily lacked a steady complement of employees, is necessary for employers to enter into labor agreements before the job is started or the workers are hired.

So, 8 (f) was enacted to relieve them of having to comply with what would otherwise be an impossible rule for the building and construction industry and it caused a lot of trouble under the Taft-Hartley Act in administering because it just did not fit.

But we submit that that is as far as Congress intended to go, it did not intend to relieve unions of the responsibility of acquiring a majority support under these contracts.

Congress thought that in the typical case that would happen because the employer would draw from a pool of skilled craftsmen in the area who are usually are often union members.

Secondly, it permitted the negotiation of union security provisions which gave employees seven days instead of the normal 30, to join the union.

Unknown Speaker: Mr. Come, could I interrupt you for just a minute?

If I understand you are saying that the 8 (f) removed the legal rule that would be an unfair labor practice for the union to enter into such an agreement, but it did not have the effect of making the union, the collective bargaining agent of the employees.

What is the net result of this, the creation of a valid enforceable contract or not?

I gather you are saying it was not.

If not, how would it under – let me get the whole thought out, how then would they determine whether the employees could insist on being paid the wage rates specified in the agreement, for example, or bonuses at the end of these – were these enforcement obligations or not?

Mr. Norton J. Come: Well, if the employer and the union abided by the agreement and if the union acquired the majority support under the agreement, there would be enforcement.

Unknown Speaker: No, my assumption would be that the union never gets the majority status, but toward the end of the contract terms, it is – when they finish the building, the company just decides well, we have decided not to pay you that amount, we think we agreed to pay more than we should have, it is not an enforceable contract, we will give you the reasonable value of your services and that is it.

Will they be free to do that?

Mr. Norton J. Come: Under the board's position, if the union had not acquired a majority support, if the employer failed to abide by the contract there would not be an enforceable obligation under Section 8 (a)(5) of the statute.

The board would not issue a bargaining order requiring the employer to abide by the agreement, whether there would be a suit under 301 or some other suit for the recovery of wages under that contract or the period under which it was observed is a question that the board has not passed on.

But in so far as the board is concerned --

Unknown Speaker: Would not the logical implication to your position be that no such suit could be obtained on the contract even though there might some kind of a quantum meruit claim or something like that.

Mr. Norton J. Come: I think that that would be the logical implication.

Unknown Speaker: Oh, that is much of a contract, in the normal sense of that word, even in the sense of collective bargaining contract, if it is not binding on anybody, that is not an agreement, it is not a contract.

Mr. Norton J. Come: I think Your Honor, that that is the point here that this in the board's view, this pre-hire agreement is not a full contract.

It gives the union, a right to enter into the agreement, but it takes subsequent action to mature that into a full collective bargaining arrangement.

Unknown Speaker: Really, all in your submission, all the 8(f) does is exempt the employer and the union from charges of an unfair labor practice to the extent of what it does.

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

Justice Thurgood Marshall: Well, if the contract is no good, why do you need 8 (f)?

Mr. Norton J. Come: Well, you need 8 (f) because the mere entry into the contract would have been illegal without 8 (f) and you --

Justice Thurgood Marshall: So, the contract as, can not be enforced by either side?

Mr. Norton J. Come: It can be if the union has acquired majority support onto the contract --

Unknown Speaker: That is always true.

Justice Thurgood Marshall: Why do you need 8 (f)?

Mr. Norton J. Come: Well, you needed 8 (f) --

Justice Thurgood Marshall: If it is just as I understand, it is just a piece of paper signed that has no bond and effect on anybody.

Mr. Norton J. Come: You need 8 (f) to give that --

Justice Thurgood Marshall: And that is an agreement?

Mr. Norton J. Come: That initial period to apply a majority, even under the Court of Appeal's position, the agreement does not have much more effect because the Court of Appeals agrees and I do not understand my brother to disagree that the entry into the agreement does not relieve the union of the necessity to acquire a majority support under it.

So that, if the employer were to file a petition or the employees or a union and a union that entered into that contract were found to have a minority status, that contract would be unenforceable and come to an end.

Unknown Speaker: Well, Mr. Come, on the hypothetical my brother Steven's posed to you and that is a breach is on the wage provision of a 8 (f) contract.

Does not Lion Dry Goods suggest that would be enforceable in the court under 301?

Mr. Norton J. Come: Lion Dry Goods Your Honor and we have addressed ourselves to that more fully in our reply brief, holds that the strike settlement agreement, there is jurisdiction under Section 301 to entertain a suit on a strike settlement agreement, not withstanding the fact that the union does not purport to represent a majority of the employees --

Unknown Speaker: What was in the holding, it is some while since I read, it was not the holding in Lion Dry Woods that the strike settlement agreement was enforceable in this 301 suit and at the holding?

Mr. Norton J. Come: The holding was -- as I read the holding, in parse Your Honor wrote it, so, he probably is more --

Unknown Speaker: I would suggest that, I have read it a while, but my recollection is that I do not know why would we have written a decision if we did not hold that the agreement --

Strike settlement agreement was enforceable.

Mr. Norton J. Come: Well, the precise holding was that there was jurisdiction, that it was not jurisdiction was not defeated merely because it was not a typical --

Unknown Speaker: Jurisdiction to do what.

To decide that --

To decide that it was not enforceable?

Mr. Norton J. Come: Jurisdiction to entertain the suit and I --

Unknown Speaker: Does not mean that the plaintiff would gave won --

Mr. Norton J. Come: It does not mean the plaintiff would have won, similarly even though the court in reaching that conclusion pointed to 8 (f) is another form of minority agreement.

Unknown Speaker: It is definitely, I am reading from your own brief, in looking as to Lion Dry Woods, the court indicated its view, that the strike settlement agreement in that case would be enforceable.

Do you cite through 369 US 27.

Mr. Norton J. Come: But I go on, we go on to point out that it does not indicate under what circumstances it would be and we submit that there are circumstances under which an 8 (f) agreement would be enforceable clearly at the union acquired a majority support on --

Unknown Speaker: That is not because of the initial 8 (f) agreement, that is because of subsequent development.

Mr. Norton J. Come: Yeah, without 8 (f) that agreement would have been illegal to begin with.

Unknown Speaker: That would be an unfair labor practice, yes you have told us that and that is correct obviously.

Mr. Norton J. Come: Similarly, there are circumstances under which even under the Court of Appeal's position the 8 (f) agreement would not be --

Unknown Speaker: Well, because that is explicitly covered by the second proviso.

Mr. Norton J. Come: Well, if that is an 8 (f) --.

Unknown Speaker: Well, I think that is of 8 (f), is not it?

Mr. Norton J. Come: That gets to the question as to whether that is the only way in which congress visualized.

Unknown Speaker: That is really the nub of the controversy between you and your brother, is not it.

As I understand your briefs.

Mr. Norton J. Come: Yes.

Justice Thurgood Marshall: Would an agreement which on its face says that it is unenforceable by each side be an unfair labor practice?

Mr. Norton J. Come: I really can imagine of – I can not image of what is --

Unknown Speaker: Well, I can imaging what you have got here now, that what you have got here now.

Mr. Norton J. Come: Well, we submit that without a --

Justice Thurgood Marshall: You do not really be there after --.

Mr. Norton J. Come: Well, you do, but, I would like to reserve the balance of my time.

Chief Justice Warren E. Burger: Mr. Berger.

Argument of Sydney L. Berger

Mr. Sydney L. Berger: Mr. Chief Justice, may it please the court.

First of all, I would respectfully call to your attention, there are important facts in the record omitted in the opening statement.

One, there is a history of an eight year collective bargaining relationship between this employer and our client local 103 of the iron workers.

Two, the record is undisputed that this employer formed a new company solely “to get around the contract”.

As a result of that the administrative law judge found, the analog B found that the employer was guilty of chicanery of Subterfuge, of the shame and the District Judge, United States District Judge in Owensboro, to whom the board went for an injunction were only had a proof was that the regional director had reasonable cause to believe, he committed a unfair ---

Justice Byron R. White: Yeah, but your position would be the same that had been in the chicanery or subterfuge?

Mr. Sydney L. Berger: Mr. Justice White, I would say yes and no.

I would say yes our position would be the same as far as statutory interpretation is concerned.

Justice Byron R. White: And far as you are right to picket to enforce this contract.

Mr. Sydney L. Berger: Yes.

Unknown Speaker: And what is involved here is statutory construction.

We can just assume that this is the same employer even though there was a change of corporate form but that is conceded now is it not?

We assume that this was the same employer on all three matters.

Mr. Sydney L. Berger: Yes Sir.

Unknown Speaker: Alright, and that is really all this about.

Mr. Sydney L. Berger: Well, may I respectfully suggest this to the court that this is not only accord of law but accord of justice and it says on the precending -- I came in the steps with law and came in to this chamber of equal justice under the law and I suggest that if the Board's position is upheld and if the Court finds that this employee who was guilty of chicanery and all of that subterfuge and shame was right and that our client was wrong and injustice has been done and I think that.

Justice Byron R. White: What if labor board which has first obligation in these matters, did not decide the case on that basis.

Is it in the case at all?

Mr. Sydney L. Berger: You are correct Mr. Justice White in this.

It is not in the decision of the Labor Board.

Justice Byron R. White: And we have many basis for deciding the case on another ground.

Have we?

Mr. Sydney L. Berger: Except that the record is undisputedly administered of law judge use that as a basis for his disagreement.

Justice Byron R. White: Yeah I know but the Board did not.

Mr. Sydney L. Berger: That is right Mr. Justice White.

Justice Potter Stewart: Okay all that language has to deal with as whether or not this was a different employer and you won on that, okay, this is the same employer, Your Honor won that point.

Mr. Sydney L. Berger: Okay thank you Mr. Justice Stewart I will now move from that premise.

Justice William H. Rehnquist: It is a useful footnote in your brief I guess.

Mr. Sydney L. Berger: Thank you sir Mr. Justice Rehnquist.

In any event the record also shows that the only purpose of the picketing was to require the employer to honor its contract with the local union and the record finally is undisputed that this contract covered all of the employers, employees and all of the job sites.

Now this is important.

Justice Byron R. White: Could I ask you if the picketing -- if the contract as you understand it call for the company do bargain with the union.

Was the picketing intended to put pressure on the employer to bargain of the union as the bargaining agent for the employees or just do enforce the wage provisions and other provisions?

Mr. Sydney L. Berger: Just to enforce the wage provisions and to honor the contract.

Justice Byron R. White: And he would not have needed to bargain with the union at all, is it that?

Mr. Sydney L. Berger: That is right.

It only had to do is live to up to his contract.

Justice Byron R. White: What about an arbitration provision, were agreements in arbitration provisions in this pre-hire agreement or not?

Mr. Sydney L. Berger: I do not recall that but it would not have mattered because the employer would not have honored any agreements.

Mr. Justice White, you just said I am not complying with the contract because there is other company that I formed with that.

Justice Byron R. White: Well I understand that.

I understand that but if there were agreements and arbitrations provisions in the contract I suppose the union then would have been in position of acting as the collective bargaining agent in administering the contract.

Mr. Sydney L. Berger: Correct sir.

Justice Byron R. White: But that was not involved here do you think?

Mr. Sydney L. Berger: I do not think so sir.

Now, the Board's interpretation of this agreement is in effect an attempt to rewrite the statute because what the board says Section 8 (f) means is that a contract is not a contract until the union establishes its majority at each job site.

Now if congress had wanted the union to do that.

If congress had intended that an 8 (f) contract is valid only when the union establishes its majority would have said so.

The Act is silent on that, further more, the Legislative History that they speak about was mentioned by the Court of Appeals four years ago on the local 150 case, when they said we confine no sanction in the language, history or policy.

History meaning Legislative History or section 8 (f) to permit an employer to abrogate unilaterally validly executed pre-hire agreement, or to permit an employer to commit one of these otherwise an unfair labor practice, even though at that time the union has not obtained majority status.

Now the question is suggested in the Board's briefs that what about the employees wishes in that.

Well that proviso takes care of that because the proviso says that unlike a normal contract where you can have an election because of the contract bar at any time, at any time after an 8 (f) contract is signed, the employees if they feel the union is not representing and they do not want the union, the employer, if he feels that this is not a union which represents a majority of these employees or any other union can come in and get an election.

Justice William H. Rehnquist: The practical consequences is that the decision one way or the other is just which side has to petition for an election.

Mr. Sydney L. Berger: But it is much more than that in simple case, Mr. Justice Rehnquist because our interpretation, the correct interpretation is the contract is valid until an election is held at which the union loses.

If the union loses and is no longer a majority representative, then the contract is then terminated and no longer effective.

But until then it is a valid contract.

The Board's construed sophistry and in trying to say is this a contract.

It is not a contract and the union has to go and petition for an election means, you do not have a contract.

Everybody signs a document in good faith.

The employer agrees to pay certain wages and working condition and then it can just say I do not have to because you have approved to the union that you have a contract.

Justice William H. Rehnquist: Of course, when you say everybody signs a contract in good faith.

Your typical construction industry contractor signs one of those agreements at the time he may have no employees at all.

Mr. Sydney L. Berger: That is right in the legislative, Mr. Justice Rehnquist.

The legislative history which is relied on since that is the purpose of it, in reading from the standard committee on Labor and Welfare Report which both sides concede is the authoritative document and it is set out at pages many places but in the Board's brief at pages 20 and 21 says that such labor agreements necessarily apply to jobs which have not been started and may not even be contemplated.

The practice of signing of such agreements for future employment is not entirely consistent with Wager Act's ruling and then they said that exclusive contracts can lawfully be concluded only if the lot of people have signed.

He said this is the reason why it has to be different in the construction industry. One is that the employer has to know his labor costs.

Two, he has to have available a supply of skilled craftsmen and, therefore the history shows that the purpose of an 8 (f) contract is to legitimatize the practice of a union and an employer signing a contract for three years as done in this case and is not throughout the contract two or three years or one year to assure a supply of skilled craftsmen to give stability in the industry.

Justice Byron R. White: I doubt if there is much argument about the purpose Mr. Berger.

Tell me it is a fact here the employer did not seek an election.

Is that not right.

Mr. Sydney L. Berger: That is right Mr. Justice White.

Justice Byron R. White: You know why.

You know why.

Mr. Sydney L. Berger: The record is silent on that.

I can theorize but if the record is silent, the employees also did not seek an election.

Justice Byron R. White: And of course, you know why they did not I suppose.

Mr. Sydney L. Berger: I do not know why.

I can guess but I am sure Your Honor is able to do that better than I, but the point is, it is undisputed they had the right to do that at any time.

Instead of tearing up the contract in effect they could have used the remedy which congress gave them to do so.

The Board points out that it is worried about tuck down organizing, yet the Board says that if in this contract there was a union security provision which would have required employees on the job to join the union after eight days which is permitted under the Act then the union would have a presumption of majority statute.

Justice Potter Stewart: That is if the employer enforced it.

The Board says that would be true if the employer enforced the union security provision.

Mr. Sydney L. Berger: Yes Sir.

But the point is Mr. Justice Stewart that I want to make to the court is that this would encourage unions to force employees to join rather than give them a chance to assert their wishes in an election which is freely held as provided in the proviso of the section 8 (f).

Now the Board's interpretation aside from its inconsistency and illogicality has several very bad effects.

They are shown by the fact that they cite in their reply brief, for example, this D.C. case which the Board just handed out.

Now in the D.C. Case you had a similar situation of an employer who had formed another corporation and disregarded union collective bargaining agreement who insisted that if you wanted to keep working for him, the employees would have to drop out of the union.

This was a blatant unfair labor practice and the Board so ruled but yet the Board said that despite that the agreement which the employer had signed which he violated was not binding on the union because the union did not prove it represented the majority of the employees at each particular site but the employer's unfair labor practice prevented the union from getting majority of employees and that is what the Court of Appeals correctly pointed out 1973 in the Local 150 operating engineers case.

Justice Byron R. White: I take it would not satisfy you if a court were to hold, or if this court were to hold that your pre-hire is enforceable on the courts but not by picketing.

Mr. Sydney L. Berger: Well, you say it is not for my satisfaction of the factor, Mr. Justice White but if you mean what I.

Justice Byron R. White: And that says legally.

Legally would you find that attainable at all?

Mr. Sydney L. Berger: Well if the court so rules it does not only attainable, it is the law but before the court has so ruled it is my position that the First Amendment is still a very viable thing, it is still very important in this country and picketing is still the exercise of the First Amendment Right.

Justice Byron R. White: So you think that this is not a statutory question.

Mr. Sydney L. Berger: It is, but I was trying to answer Mr. Justice White your question as to a possible ruling on the court.

I would prefer the court say that the contract is enforceable by picketing because First Amendment says, you have a right to picket and tell people about facts and the Taft-Hartley Acts itself says so.

Justice Byron R. White: Well, I will put it this way.

Would your aims be -- could you achieve your aims by through legal action rather than by picketing?

Mr. Sydney L. Berger: We could but the problem Your Honor is that this is a small union.

If they have to go to court and legally enforce every violation, you are going to overburden the courts which Mr. Chief Justice has already pointed out, greatly overburden their work, you are going to encourage delay in litigious processes and if it is legal to have such a contract and if an employer breaks such a contract and it is an enforceable contract, why can not the union just have a man and this only one man peacefully were to sign saying, the company violates the agreement.

Justice Byron R. White: Let me ask you once more.

Do you think that you would have been entitled to picket if you had asked the employer to recognize of the union as the collective bargaining agent and the employer has said no I will not, but of course I will pay the wages that the agreement calls for.

Mr. Sydney L. Berger: Absent, absent the contract in this case, of course not, that would be recognitional picketing and hand picketing.

Justice Byron R. White: But what I want to know is with the contract would you say he had to recognize you as the collective bargaining agent.

Mr. Sydney L. Berger: With all due respect Mr. Justice White.

I said he had already recognized it.

Justice Byron R. White: So your answer is yes.

Mr. Sydney L. Berger: Yes sir.

Chief Justice Warren E. Burger: Well the picketing would accomplish your result in about a week probably but the litigation might take a long time.

Mr. Sydney L. Berger: That is right Your Honor.

Chief Justice Warren E. Burger: Maybe not even a week of picketing would be able to with the employer withstand.

Mr. Sydney L. Berger: Well,you are taking an arbitrary time and certainly economic pressure and if I read your question Mr. Chief Justice Burger correctly about withstanding, a union is entitled to bring certain kind of economic pressure where picketing is legal.

Chief Justice Warren E. Burger: I was not questioning that, I was just trying to get out what your alternatives, which alternative you would prefer?

Mr. Sydney L. Berger: I prefer the picketing for the reasons Your Honor stated.

Justice John Paul Stevens: Mr. Berger let me follow up on Justice White's question.

I am not completely sure as I understand your answer.

He was asking by if I follow your dialog correctly, whether it was possible that the contract might be a valid enforceable contract but nevertheless you might have violated section 8 (b)(7) by picketing to enforce it because reading 8 (b)(7) in a very literal way.

How do you get around just the literal language of 8 (b)(7), why does not the language apply to your situation.

Mr. Sydney L. Berger: Because Your Honor the Board has consistently ruled in the Oilfield Research Cases and in other cases and the Court of Appeals ruled that where picketing has been conducted by a union who already signed a contract, it is not recognitional picketing because recognitional picketing only applies to the initial attempt for the union to gain that recognition.

We cite at page 11 of our brief the Dallas case and I quote from the Court of Appeals language there in 1968 that the Board itself there, the Board correctly points out that section 8 (b)(7)(A) is aimed only at a labor organizations picketing to gain recognition for the first time, not picketing designed to retain its representative status.

So under the Board's own prior decisions and we cite them in our brief the Bay Counties case, the Sullivan Electric Company Case.

The Board is previously and repeatedly ruled, Court of Appeals has ruled that picketing such as that in the case at even arguendo it was for collective bargaining purposes was not within the prohibition of 8 (b)(7)(A).

Justice John Paul Stevens: Then let me ask the opposite of the question.

If your argument is valid would it not equally be valid even if the contract is invalid.

If they are not quite seeking to get their first recognition they are seeking really to maintain a recognition they had even though the status before was not as a party to a valid contract, they still were doing something lawful.

Is the validity to contract and controlling importance is it what I am trying to figure out.

Mr. Sydney L. Berger: It is a very sharp question Mr. Justice Stevens and I not sure to answer that because it would appear to me in the first place that it could be argued that once the employer breaches the contract and it is no longer controlling there is a termination of the recognition of the union and of the union then pickets, if the contract is invalid the union is then picketing to get recognitional status for the first time.

If the contract is invalid, the union was recognize because the union could not be recognized by a contract unless it is a valid contract.

So therefore, I would say that the validity of the contract is controlling in that case.

But I have not thought that through, that is my initial reactions.

So therefore my point there is that the Board's interpretation encourages employers to discriminate against union members to make people drop union membership as a condition of employment in order to prevent the union from getting a majority status and thereby saying we can avoid binding effect of a contract.

Justice Potter Stewart: 8 (b)(7) and 8 (f) were enacted as part of the same bill in 1959, was is not?

Mr. Sydney L. Berger: I believe so Mr. Justice Stewart but I am not positive.

Justice Potter Stewart: Because they certainly look in quite different directions, do they not?

Mr. Sydney L. Berger: Right sir but the --.

Justice Potter Stewart: were enacted by the same Congress at the same time.

Mr. Sydney L. Berger: Right Sir and the only consistent explanation of that we submit to the court is the explanation that we in our brief that 8 (f) carves out an exception to the usual rules, the 9 (a) rule, the 8 (b)(7) rule.

Justice Potter Stewart: Well it so.

It clearly carves out an exception and the question I suppose in this case is how big is the exception and what is the scope of the exception?

Mr. Sydney L. Berger: Right sir.

Justice Potter Stewart: It clearly carves out an exception.

Mr. Sydney L. Berger: Yes sir, is opposition and as the Court of Appeals said in the two Court of Appeals, Third Circuit in District of Columbia that it would be an exercise on futility and it is can concede that congress would go to say that a 8 (f) contract with the minority so to speak union before the union has achieved its majority.

It is legal and yet it can not be enforced.

Justice Potter Stewart: Could I ask you, does the record show what conduct does the employer, the union claimed was in breach of the contract and which provoked the picketing.

Mr. Sydney L. Berger: Yes sir, the employer refused to play the wages and wage scale and the contributions to the welfare and pension funds that the employer had agreed to pay in its contract.

Justice Byron R. White: So it was not the refusal to bargain?

Mr. Sydney L. Berger: No there was nothing to bargain Mr. Justice White.

The bargaining was accomplished when the contract is signed.

Justice Byron R. White: And just as a --.

Mr. Sydney L. Berger: But on the other hand, excuse me, I suppose it can be argued that when an employer breaches a contract it is refusing to bargain.

I have no strong opinion.

Justice Byron R. White: Who were the beneficiaries of the pension plan?

Mr. Sydney L. Berger: All of the employees including the nonunion employees.

Justice John Paul Stevens: Mr. Berger would you come in on one of the practical aspect that I want to really understand here.

It occurs to me that these contracts have short duration in time because the jobs are completed relatively quickly.

Is it a practical solution for any of the interested parties to go for an election because election takes even just a couple of weeks.

Maybe the job will be completed is, is this why nobody ever seeks the election if the contracts do not take long enough to perform and is not perhaps then the real question is who may you hire when you start the job rather than what remedy maybe available after a couple of weeks are gone by.

Mr. Sydney L. Berger: There were several questions there and I may answer them some of these jobs are of short duration but if the question is who may you hire when you start.

If an employer does not want to hire union members or does it want to pay the wages in hour and working conditions that have been developed to protect the employees over the years, it does not have to sign a collective bargaining agreement or even if you have an employer then some of the jobs last for a long time.

There is several going on already, and now with the constructing power houses and that which last for two and three years.

The reason nobody files an election is the union represents a majority of employees.

The employer and the union agreed on these wages hours and working conditions and everybody is happy about it.

It is arm's length bargaining and the senate report, the committee report again points out that these contracts themselves are for a long period because that gives stability in the construction industry.

If a new contract had to be signed for every particular job it would lead to endless negotiations and so forth.

So I do not know if that answers your question.

Justice John Paul Stevens: One other thing that occurs to me, it helps me.

I am just -- I find this very puzzling case.

One other problems, I suppose is that in order to get the first job signed up, he is got to sign an areawide agreement and then the problem arises in the subsequent jobs when he -- but he can not do it on a simply a job-by-job basis when the union represents whole territory like this.

Mr. Sydney L. Berger: Mr. Justice Stevens, the employer does not have to sign an areawide agreement.

There are many project agreements that are signed and in some of the cases which are cited in the briefs there were project agreement signed rather than areawide agreements.

So whether the employer signs an areawide agreements, depend on whether he is going to be in the business in that area over a long period of time.

It depends on the facts.

Justice John Paul Stevens: Thank you.

Mr. Sydney L. Berger: The problem with the -- another problem with the Board's position as I say is not only that it would and does encourage unfair labor practices as shown by this case, by the Local 150 case and by the D.C. that's Dee Cee case cited by the board is the fact to that it would create a lot -- it would open a Pandora's box as far as administration under the Act and it would require and employer who signs an agreement with employee.

The employer says you do not have a majority.

The union says we do have a majority.

If the union files does it have to file an unfair labor practice.

Does it have to file for an election.

The Act is silent on all that whereas the Act gives the explicit remedy that anytime the employer or an employee feels that the union is not representing majority of the employees they can petition for the election.

Justice Byron R. White: Well this is not something new on the part of Board, is it.

Mr. Sydney L. Berger: Mr. Justice White, what do you mean by this is not something new?

Justice Byron R. White: Well, I mean this is some new and novel interpretation of the Act for the Board.

Mr. Sydney L. Berger: As far as section 8 (f) is concerned it is.

Justice Byron R. White: Have you ever held this before?

Mr. Sydney L. Berger: Yes in R. J. Smith.

Justice Byron R. White: Yes, well I mean it has it ever held it a contrary.

I mean has this been the Board's consistent position as far as you can tell.

Mr. Sydney L. Berger: Well it had not been the Board's consistent positions we point out in our brief, as the amicus brief points out in Oilfield Research and in other cases, the Board has held that an 8 (f) contract is a valid contract even though the union did not establish its majority position.

There was no --.

Justice Byron R. White: No, apparently the Board's feels that either construction is consistent with the Act.

Mr. Sydney L. Berger: And I submit Mr. Justice White, the Board was previously wrong on that.

Justice William H. Rehnquist: Well, did not the Board distinguish the peculiar circumstances in Oilfield Research from the ordinary construction.

Mr. Sydney L. Berger: They do but I don't think their distinction is valid Mr. Justice Rehnquist.

Their distinction of Oilfield Maintenance, they say in their reply brief that case has been expressly limited by the Board to its particular circumstances.

There is no Board case that has that language.

They said there that the Board has declined to extend that decision to the kind of 8 (f) agreements involved in this case.

That is misleading.

The 8 (f) agreement in this case is the same as the 8 (f) agreement in the Oilfield Maintenance.

Justice William H. Rehnquist: Well I suppose this case is a prime example of the Board's refusal to extend Oilfields. Since the Board did not came out the way it did.

Mr. Sydney L. Berger: Well, Mr. Justice Rehnquist the argument would then be over extend.

I would say it is a an instance of the Board refusing to follow Oilfield, not extended because it is directly contradictory.

So I do not regard that as extension but aside from that it is just court's function.

We respectfully submit to construe of the Act and the Board has has been wrong five times.

It was wrong in R. J. Smith.

It was wrong in Local 150, the Operating Engineers it was wrong and this Dee Cee case in construing 8 (f) of the Act to make it a nullity.

What good is the contract if it is not enforceable.

I mean you are dealing with people.

People who work for living in that and I would hate to go out and talk to my clients.

Guys, where iron work is to put up buildings, they work with their hands for living and say, look your business agent signed the contract with this employer but the contract is worth the paper it is printed on, if the employer does not want to enforce it.

Justice William H. Rehnquist: All 8(f) says is that it shall not be an unfair labor practice for an employer to do this.

Mr. Sydney L. Berger: That is correct.

Justice William H. Rehnquist: It is the government's submission , that is its purpose just to exempt the employer from a charge of engaging an unfair labor practice.

Mr. Sydney L. Berger: But Mr. Justice Stewart, the language in the Committee Report indicates that the purpose of that is to legitimatize and sanction and encourage, encourage the reaching of collective bargaining agreements in the construction industry which is sue generis.

Justice Potter Stewart: There is no argument I think about what the legislative history says or what the purpose of this is.

Mr. Sydney L. Berger: But as I submit that is all the Act had to say was what it says.

I mean if you have a contract or you do not a contract and I submit that.

Justice Potter Stewart: Well, do you have an unfair labor practice or do you not have an unfair labor practice.

That is what 8 (f) is directed to, by its terms.

Mr. Sydney L. Berger: But we submit that that question depends on whether you have a valid contract or not, therefore we submit that in this particular case, the only reasonable interpretation of section 8 (f) is to provide that when the Congress --.

Chief Justice Warren E. Burger: Very well.

Mr. Come do you have anything further.

Rebuttal of Norton J. Come

Mr. Norton J. Come: Just a small point Your Honor.

I would like to close by calling the court's attention again to the Garment Workers Case.

One, that was the case that held that there was an unfair labor practice for employer and union entered into a contract where the union did not have a majority, even though the parties in good faith believed that they did and that shortly thereafter the union did acquire a majority and the court not only so held but it went on to find that since that contract was an unfair labor practice to enter into it, it was not even enforcible with respect to the members of the union only.

And we submit that you have to look at what Congress did against the backdrop of the Garment Workers Case.

Justice Potter Stewart: Well, Mr. Come how would it derogate the interest that you think support your side of the case to hold the substantive provisions of the contract rather than the recognition provisions or the bargaining provisions to be enforceable in a 301 suit.

As long as the union did not purport to be representing all the employees or demand that it would be recognized as such, why not permit the wage provisions for example, to the enforcement on 301 suit?

Mr. Norton J. Come: Off hand, I do not see too much of a problem with that but you do get to the point where how much of the contract is being enforced and if you get to enforcing beyond that then you get the union equivalent of recognition.

Justice Potter Stewart: Well, the union apparently was complaining here about his failure to live up to the wage and the welfare and pension agreement.

Mr. Norton J. Come: Your Honor, as we read the record the union was complaining about a lot more than that.

They wanted the whole contract applied and as a matter of fact filed a refusal of bargaining charge with the Board when the employer took the position that this project was a different project and had no obligation to recognize the union on their project.

So this is a recognition dispute, whatever maybe the answer in one where recognition is not so.

The other point that I wish to make is that the second proviso to 9 (f) provides a means by which the contract can be brought to an end.

Namely petitioning for an election and the question is whether that is the only means.

There again we submit, that the answer is afforded by looking at the scheme of the Act and the scheme of the Act is that traditionally there have been two ways by which an employer can withdraw recognition from a union.

He can either do that by filing a petition under Section 9 of the Act which is explicit or he take his chances in an unfair labor practice proceeding.

That is not specifically set forth in the Act.

We submit that Congress did not intend to take away that avenue from the employer which is what happened in this case.

Justice Potter Stewart: Mr. Come, how often would that situation like we have in this case arise as a matter of the fact.

That very rarely, would not normally an 8 (f) be complied with by both sides and would it not normally be assumed that the employees represented were a majority of the union that it made an 8 (f) bargaining in advance.

Mr. Norton J. Come: I think that is the normal situation.

That is what Congress contemplated what happened and the question is how do you take care of --

Justice Potter Stewart: Of this Board case.

Mr. Norton J. Come: Of this Board case and there you have to balance 8 (f) against 8 (b)(7)(C).

As Your Honor pointed out the same Congress enacted it.

They look in different directions.

We submit that the Board made a reasonable accommodation here in the balance that it struck for the support or a typical case.

Justice Thurgood Marshall: Do you mean that in the Building Industry it is normal for building contractors to prefer not deal nonunion labor.

Mr. Norton J. Come: Your Honor, I think that what has happened is that there are several different parts of the Building and Construction Industry.

There is residential construction where as I understand it, it is not uncommon to use nonunion labor because they can not complete by using union labor.

In big construction, commercial construction that is more unionized.

As a result of that you have had the practice of these double-breasted corporations being set up in the Building and Construction Industry where they operate union on the big jobs and nonunion on the small jobs and this is really the problem in this case and there is nothing unlawful under the Act in setting up these different methods.

Justice Thurgood Marshall: So if we rule with you on this then we will see more of that.

Mr. Norton J. Come: Well, whether you will or not.

I do not know the answer to that Your Honor because as I pointed out Mr. Justice Stewart, the typical case is not this one.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Atlantic C. L. R. Co. v. Engineers - Oral Argument, Part 2

Wed, 10 Aug 2011 14:44:20 +0000

Case:

Atlantic C. L. R. Co. v. Engineers

Media File:

477_19700303-argument-2.mp3

Related Transcript:

477_19700303-argument-2.xml

Transcript:

Argument of Dennis G. Lyons

Chief Justice Warren E. Burger: Atlantic Coast Line Railroad Company against Brotherhood of Locomotive Engineers, and pick up where we left off last evening.o

Mr. Dennis G. Lyons: Mr. Chief Justice, may it please the Court.

Yesterday afternoon, we were to the point where we were discussing the -- what we take to be the principle contention of the respondents here and that is that the April 26, 1967 order of the Federal District Court and that was the order that denied the Atlantic Coast Line a preliminary injunction that that order was being protected or effectuated by the subsequent injunction, the 1969 injunction against enforcement of the May 1967 order of the state Court and that on that basis, they contend there is an exception here from Section 2283.

Our basic answer to that preposition is that the Federal District Court never purported to pass upon the availability of state rights or state remedies to the Atlantic Coast Line.

His decree amounted to a denial of the injunction, which was sought solely under federal law.

Their argument which was made for the first time two years later that the state injunction of May 1967 contravened the federal denial of an injunction is we submit simply a setting up of the federal law defense based on this Court’s subsequent decision in Jacksonville Terminal against the injunction in the state court proceedings.

Now, there are number of subsidiary reasons why that April 26, 1967 order could not be the basis of the claimed exception here from Section 2283.

In the first place as we read the order, there is some dispute about it, but most of the cases that it cites are Norris-LaGuardia Act cases and that it appears to us to proceed primarily on the basis of the Norris-LaGuardia Act.

We contend that the federal court order simply declined an injunction by reason of the Norris-LaGuardia Act and of course, the legislative history of that Act is clear that it leaves open the remedies under state law and in the state courts.

The respondents contend that the federal court order somehow constituted a comprehensive declaration of the party’s rights.

And in effect, I suppose held that Coastline, the neutral road had no right to injunctive relief here on any basis.

On its face, the order simply doesn’t say that.

The most you could say, if the order were a declaration of rights and we read it that way if at all we'd be to this simply a denial on the basis of the Norris-LaGuardia Act, all it denied were rights under federal law.

There is the further point that it is simply an order made upon application for at the most preliminary injunction, indeed it might have been an order simply denying a temporary restraining order.

The record is a little unclear, but giving the respondents the benefit of the doubt it's an order the denying a preliminary injunction and the laws, we submit quite black letter on the point that you cannot have a determination of the party's substantive rights through a preceding on a preliminary injunction application.

We submit then that really what the respondents are trying to do here is to adjudicate this federal law defense, call it preemption or super session or maybe perhaps simply called the insertion of a federal law defense to the state court injunction by enjoining the proceedings in the state court and this we submit is at the core of what Section 2283 says that federal courts are not to do.

Justice John M. Harlan: Well, on what reasons it must rely under the District Court give in denying your application for the --

Mr. Dennis G. Lyons: He said that since the respondents had filed the hand written answer which they did very shortly before the notice of dismissal that it was dismissible as of right and he then declined to grant the injunct -- the order for a voluntary dismissal upon motion.

And he said that since the Court was of opinion that the defendants motion for preliminary injunction, that is their counter motion seeking to enjoin the state court proceedings has merit, our motion for voluntary dismissal will be denied.

Chief Justice Warren E. Burger: What page is --?

Mr. Dennis G. Lyons: That's on page 195 of the appendix Your Honor.

In effect, he is assigned the reason that he wants to pass an injunction against the plaintiff as a reason for denying the plaintiff's motion to dismiss.

Justice Byron R. White: What was your application, the railroad's application for an injunction that was denied?

Mr. Dennis G. Lyons: Back in 1967, yes Your Honor.

Justice Byron R. White: And was the case dismissed?

Mr. Dennis G. Lyons: No, it was not.

The case simply laid dormant for two years.

Justice Byron R. White: And that is the case in which this current order has been entered?

Mr. Dennis G. Lyons: That is correct Your Honor, and that is the case that we now have before this Court.

If the contentions that we make as to the applicability of Section 2283 are not well founded, the Court must still reach the question whether the defense that the respondents have urged to the state court injunction is a good defense.

Now of course, if the Court is in agreement with us, that Section 2283 is applicable here and that none of the exception is applicable, then the Court need not reach this point.

Justice John M. Harlan: And I suppose what happens is the right to the union to review state courts, state court is still available?

Mr. Dennis G. Lyons: Yes, it certainly is, the --

Justice John M. Harlan: That's no judgments, no final judgment?

Mr. Dennis G. Lyons: That's correct.

If I might amplify a little bit on my answer to the Chief Justice yesterday, one of the basic reasons why we did not proceed to have an final judgment entered ourselves right away, was that Judge McCray's order out of the federal District Court enjoined us from proceeding further with the state court proceedings.

That injunction followed on the heels fairly closely of the statement by the state judge that he would be willing to enter a final order and --

Chief Justice Warren E. Burger: And you think that is broad enough?

Do you think that was broad enough to preclude the state court implementing its own decision by a judgment?

Mr. Dennis G. Lyons: Well, he restrained us Your Honor from taking any further action in furtherance of the rights that we have in the state court and that --

Chief Justice Warren E. Burger: Was that the court too or just you?

Mr. Dennis G. Lyons: Just us.

But the state court judge indicated to one of the parties to prepare a decree and that went under the federal court injunction, we were there shortly thereafter.

But our position is plain, the respondents are entitled to a final judgment that they could feel --

Justice William J. Brennan: Is that very clear Mr. Lyons?

Mr. Dennis G. Lyons: Yes, that's -- I think is completely clear Your Honor.

Justice William J. Brennan: Is that conceded?

Mr. Dennis G. Lyons: Yes.

We concede that they are entitled to have a final judgment here.

Justice William J. Brennan: And are they satisfied, they do?

Mr. Dennis G. Lyons: I believe they are, although, I can't speak for them.

We submit that the Jacksonville Terminal case which is the respondent's principle, perhaps, sole authority for the preposition that they have a federal law defense is not applicable to the situation involved here at the Moncrief Yard, which is a yard, wholly owned by the Atlantic Coastline, a non-struck carrier.

Now, we do not intend to take the liberty of parsing for the Court's opinion rendered only one year ago, but we do call the Court's attention to the fact that there was very, very extensive discussion of the very peculiar facts involved in the Jacksonville Terminal case in that opinion.

The fact that, there we had a joint terminal facility which was jointly owned and jointly controlled by the carriers including the struck carrier and the struck carrier had a right to veto over the major decisions that might be undertaken with respect to those premises.

Those --

Justice Potter Stewart: Mr. Lyons, if we agree with your basic argument with respect to Section 2283, we don't get it all to the question of whether or not there's any difference that --

Mr. Dennis G. Lyons: That's correct, Your Honor.

Justice Potter Stewart: Truly in this case, that -- do it?

Mr. Dennis G. Lyons: You do not -- you don't have to reach this --

Justice Potter Stewart: At all.

Mr. Dennis G. Lyons: -- point of argument at this point.

Justice Potter Stewart: If we agree with you on your primary.

Mr. Dennis G. Lyons: That's correct, Your Honor.

Justice Potter Stewart: Contention.

Mr. Dennis G. Lyons: I should have belabored the point but the opinion in Jacksonville Terminal as we read it at least, it seems to us to turn on these unique factors at this jointly owned facility.

This is a facility where FEC employees report for work everyday on foot which was jointly controlled by them, which was in effect the FEC passenger terminal at the northern end, which sold tickets for the FEC, which were repaired FEC cars, which performed extensive switching and rowing services for them.

The Court discussed at some length the analogy with the common situs cases under the Taft-Hartley Act and in effect as we read the opinion, the Court concluded that in that context, the rather tangled involved context of a joint facility that the Court did not believe that it could make a judgment as to what extent the parties self help rights were properly exercisable and to what extent they were not.

The Court took the view that we submit in that area at least that that essentially had to be a legislative judgment.

Now here, we have gone beyond the exercise of self help rights against the primary parties to the dispute.

We have gone beyond the situation where the primary party, the FEC is involved in the joint use and control of a terminal facility.

What we have here is essentially hot car picketing.

At first, it did not start out that way and there are still in this Court protestations that that is not what was going on.

But particularly in the last few days of the picketing here, what you had was an attempt and a successful attempt to induce the employees of the Coastline, operating within the Coastline's own yard, not to handle cars which had originated on the FEC, and not to handle inbound cars coming down from the north that were ultimately destined to the FEC.

Now, there is some talk by the respondents that this was done in a limited way that they only refused to handle long solid blocks of cars, that they only refused to make the very next move down to the point where the interchange would take place.

But the record is plain particularly in the last few days of the picketing that the refusals by the employees went well beyond that.

That they were beyond simply involving this last move down back from the interchange point.

That in one case they declined to move a road train that was destined up to go through way cross Georgia, which is fully made up simply because it had FEC cars in it.

And in the court below in the -- before the state court I should say, the counsel for the respondents took the view that this Court's opinion in Jacksonville Terminal was to the effect that it was no longer any question of how far you can go or how far you can't go, that there was no longer any body of law available to any employer doing business with the FEC, that would in any way restrict their right to picket his business.

Now, we contend that if you read the Jacksonville Terminal case that way, what you have is picketing which I think anybody would consider secondary picketing.

That's not a magic word, but it is a word that expresses sort of judgment about what it is when people who are essentially strangers to a labor dispute have their businesses interfered with by the parties to a labor dispute.

And it is a practice which the Congress has outlawed and outlawed in increasingly stringent terms for the last 23 years, starting at 1947.

And which, the legislatures in virtually all the states and the state courts of common law have outlawed.

What the position of the respondents is as I understand is that despite that because of the fact that the Taft-Hartley Act is not as we concede not applicable here in the railroad industry that there is no agency of Government state or federal, judicial or administrative that can any way regulate or any way deal with these practices regardless of how far removed they are from directly operating upon the party that they have the dispute with.

In other words, the hot car approach, or the hot cargo approach, or the so-called hot property approach is outlawed in firstly every industry by the Taft-Hartley Act and the Landrum-Griffin Act, but not in the railroad area and what is more to say the respondents that the states cannot do anything about it either.

Chief Justice Warren E. Burger: Mr. Lyons, if the District judge relied, if at all, on the business relationships between the Florida East Coast and Atlantic Coastline?

Mr. Dennis G. Lyons: It's a -- I assume you have those before him because that transcript was available to him from the hearing two years before and he did refer two certain findings that the use of the Moncrief Yard was an integral and necessary part of the FEC's operations, which is clear if they cannot receive cars coming down from the north or if they can't, if there is a blockage of the way in which their cars go up to the north, they simply can't operate.

Chief Justice Warren E. Burger: But that reasoning would apply equally if this facility had been owned by completely independent entity with the Florida East Coast and Atlantic Coastline leasing the common facilities apparently with it, is that true?

Mr. Dennis G. Lyons: Well, I suppose that would be the case Your Honor, but of course here, we do have an independent owner, we have the ACL which is completely independent to the FEC.

Chief Justice Warren E. Burger: Well, but I mean independent of each of them, if there has been a complete independence --

Mr. Dennis G. Lyons: Yes.

Or indeed these have --

Chief Justice Warren E. Burger: The reason if the Court would have been the same?

Mr. Dennis G. Lyons: Yes or indeed I would think it you've the same result had they gone up to way cross Georgia or whatever the next junction point, or the next point where they conveniently could have blockaded the trains, getting through these other points going up to the north are similarly integral and essential to the FEC's business.

Unless it can have some way of getting its cars through the points that it is suppose to get them to, beyond its own line, it is not going to continue operate.

Your Honors, we --

Justice Byron R. White: Mr. Lyons, you would making somewhat the same argument if this case wasn't a railroad labor case, but was a under the NLRB, NLRA regime, wouldn't you?

Mr. Dennis G. Lyons: Well, we wouldn't have gone to state courts, but we would have made a similar argument --

Justice Byron R. White: Let us assume the state court purports -- reports to enjoin a union from doing something that is either arguably or actually protected or prohibited by the Labor Act and at the National Labor Relations Board has exclusive jurisdiction to deal with it and the -- but the state court nevertheless purports to deal with it by an injunction.

Mr. Dennis G. Lyons: Yes, Your Honor.

Justice Byron R. White: And I suppose you would be making the same argument that the employer or that the union may not resort to the federal court for an injunction to prohibit the state courts from doing that.

Mr. Dennis G. Lyons: I certainly would.

I'd make the Section 2283 argument.

I do not really see how I could make an argument on the merits --

Justice Byron R. White: That's right.

Mr. Dennis G. Lyons: -- in support of the state court's action because that -- that's a very clear area.

Justice Byron R. White: But the fact the state court had no jurisdiction or would -- it would be said to have no jurisdiction to deal with it, would it make any difference to your case?

Mr. Dennis G. Lyons: To the Section 2283, not at all, Your Honor.

We submit lastly that if the Jacksonville Terminal decision means what the respondents say that it means, it should be reconsidered by this Court, though, clearly we think the Court need not reach that point at all.

Our final contention takes us into an area which is relatively unchartered by this Court's decisions and that is that the Norris-LaGuardia Act here as well as Section 2283 precludes the injunction that the federal court granted.

The relationship between the non-struck carriers and the rail unions has been held by the lower courts and this Court in a four to four decision once upheld that as being a relationship arising out of a labor dispute.

And hence, in the Jacksonville Terminal case by this Court and then this case, the Moncrief case by the lower court, the non struck carriers have been held not to be entitled to have a federal court injunction.

We say that the Norris-LaGuardia Act works both ways.

If the federal courts may not pass an injunction against the unions, we submit that in this situation, they may not pass an injunction against the non struck carriers restraining them from the use of the state courts.

It is clear on the face of the Norris-LaGuardia Act that it does work both ways, that it does inhibit injunctions against management just as it inhibits injunctions against unions.

And in fact, we quote in our brief considerable dialog in the floor of Senate and the House which indicate the Congress recognized that this was a two-edged sword when it was passed back in 1932.

Indeed, some of the practices that can't be enjoined are practices that only an employer could commit i.e joining an employer organization.

So, we submit that the very broad contention that the respondents make that the Act doesn't apply at all to injunctions against management is not correct.

We also say that Section 4 (d) of the statute makes it plain that injunctions against the ordinary course of judicial proceedings were one of the evils that Congress was trying to deal with when it passed the statute.

That being so, we are confronted with the very flat prohibition in Section 7, which flatly restrains the Courts of the United States from granting any injunction or labor dispute unless certain findings were made and those findings were not made here, including findings which certainly were very relevant to the subject matter here.

Namely, there was no finding that the complainant has no adequate remedy at law, certainly his appellate rights in Florida state courts would have precluded the making of that finding.

Indeed, there was no attempt to comply of Norris-LaGuardia Act at all.

So for this reason as well, we contend that the injunction here should not have been granted against the state court proceedings and that the judgment of the Court of Appeals should be reversed.

Your Honors --

Justice John M. Harlan: They just -- there is a -- going on that?

Mr. Dennis G. Lyons: No, there is not.

The -- we do have a stay of the federal court order which is in fact --

Justice John M. Harlan: As was said by Justice Black?

Mr. Dennis G. Lyons: Yes.

Yes, Your Honor.

With the Court's permission, I'll reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Thank you, Mr. Lyons.

Mr. Milledge.

Argument of Allan Milledge

Mr. Allan Milledge: Mr. Chief Justice, may it please the Court.

We will demonstrate in our argument that this case, this injunction issued by Judge McCray against inconsistent state court action is not an isolated case, but it arises out of a totality of regulation of the Florida East Coast dispute that goes back to 1964 and involves every aspect of this strike including regulation of good faith bargaining, regulation of the self help rights of the railroad, regulation of the self help rights of the unions, the actual operations of the railroad itself, and that all of these are interrelated and all bear upon each other.

Justice Byron R. White: You mean that, you'd have some problem with the state court enjoining a violent picketing?

Mr. Allan Milledge: Not violent picketing, but --

Justice Byron R. White: Well, then the federal court didn't take over the entire controversy?

Mr. Allan Milledge: With that exception.

With the -- that exception --

Justice Byron R. White: Why not the exception for secondary activity?

Mr. Allan Milledge: Because this Court has held in the Jacksonville Terminal company case that that is not only preempted or that a state law may not apply in that field --

Justice Byron R. White: Well, it is not preempted of the -- it is not preempted to the --

Mr. Allan Milledge: Of jurisdiction --

Justice Byron R. White: -- of the federal court either.

What can the federal court do about it?

Mr. Allan Milledge: Well, it is -- as we interpret the opinion, it is protected conduct to engage in whatever reasonable conduct that the organizations --

Justice Byron R. White: So, what jurisdiction does a federal court have about that --?

Mr. Allan Milledge: Well, the railway --

Justice Byron R. White: Federal court is preempted too, isn't it?

Mr. Allan Milledge: In the opinion, there's the area of course of damages which would be an area that the federal court could deal with.

But in the opinion of this Court of the last term is, as we read it, that there is no limitation upon the self help rights so long as they are reasonable and that is a matter that has been of before the District Courts, a number of times and I think I can develop also the interrelationship.

The second thing that we will demonstrate is that the power of the District Court to enjoin the state court action here under 2283 in this Court's opinions is beyond question that it has that power.

Chief Justice Warren E. Burger: Do you agree with Mr. Lyons that Norris-Laguardia is a two-way street, --

Mr. Allan Milledge: Well, --

Chief Justice Warren E. Burger: -- in its prohibitions?

Mr. Allan Milledge: We think that with the two -- really, there is only one provision in the Norris-LaGuardia Act that applies to management and that is the one he sited about employer organizations.

But, we think our basic position on that is that the tail will go with the hide, that once the 2283 problem is dealt with, the Norris-LaGuardia Act problem -- the Norris-LaGuardia Act just basically is not designed for this type of a problem and will develop that later, but our position is not that the Norris-LaGuardia Act can not apply to an employer.

Now, the third position that we will develop is that this case is the strongest case for the application that is the should aspects.

We will demonstrate that there is the power of the District Court to do this, but this is the strongest case for the application of an injunction against a state court that has ever come before this Court or a lower court in a reported opinion and it is a stronger case for the granting of such injunction than any reported case granting one.

In connection with the totality of regulation of -- by the federal court, there are four separate cases, cases that is with separate file numbers, that the jurisdiction of which, is aided by this injunction and orders are need to protection of this injunction.

Now, the types of matters which have been before the court below are absolutely legend.

This Court recalls the clerk's case that was before this Court, that was a case brought by the United States Government.

It is a case in which it was determined that the Florida East Coast railroad for the first two years of its operations, its post strike operation was operating in violation of the Railway Labor Act.

There was an order entered in that case requiring good faith bargaining.

There was an order in that case granting to the railroad certain limited exceptions or deviations from its collective bargaining contracts in aid of its self-help rights.

That case still pends that there is a trial commencing our final, another final hearing in that case commencing the first week of April to go on for all of April and all of May and the issues are again, the good faith bargaining that is all in contempt citations, the good faith bargaining, massive violations of the injunction since the strike, and on other issues.

All of that still pends and the good faith order, the good faith order depends on economic sanctions.

As Justice -- Mr. Justice Brennan has written in the Insurance Agents case, and has written in other cases too, and it is in the Galveston Wharves case the decision of the Fifth Circuit in the same area of 2282, that bargaining, the motive power in bargaining is economic sanctions.

Now in this case, that is the Florida East Coast strike, there are as there are in all railroad or other situations two types of economic sanction.

One is the withdrawal of your people at the commencement of the strike and the second type is picketing aimed at those persons, the employees or persons making pick ups and deliveries to the struck employer.

Its -- in other industries, it's more general than that, but in the railroad industry, the place where you put the pressure on is where the railroad gets its freight from another railroad.

Now, from the commencement of this strike up until the present, there has not with the exception of a few hours in 1966 and a few hours in 1967 any use of the economic sanction to stop pick ups and deliveries from other railroads by asking the employees of other railroads not to do so.

That has been prevented by an injunction initially issued by the United States District Court for the middle district to Florida and that is another case in which in that case still pends.

Now Mr. Lyons in his brief has talked about that case.

That's a case in which the United States District Court has assumed jurisdiction over interchange and the organizations, labor organizations were never allowed to get into that case, and as they say, it mandates interchange.

Now, what is happened since that time is, there was a lawsuit filled in 1965 by the organizations to construe that injunction as not to apply to employees who had -- of the connecting carriers.

Then in 1966, the Trainmen strike against -- the Trainmen picketing of the terminal area began and effectively, there was a construction of that assumed jurisdiction over interchange to initially not permit picketing of the terminal company and ultimately to permit picketing of the terminal company.

And then in 1967, in this case with the different file number nonetheless, the Court has again, but with a different file number assumed jurisdiction to determine whether or not we and I say in this case we, it is the Brotherhood of Locomotive Engineers, can picket the Moncrief Yard.

All of these cases are all interrelated and they all have impact back and forth on each other.

Justice John M. Harlan: Can I ask you a question?

Supposing the Judge McCray allowed dismissal of Atlantic Coastline to or supposing that particular suit would not been petitioners [Inaudible].

Would you go in to the state court or to the federal courts to bring an original action bypass the state judge and appellate court procedures out of the view here rather --

Mr. Allan Milledge: If there were -- if there was no jurisdiction that had been assumed by the United States District Court or no orders that needed to be protected or effectuated, I would say that we could not.

Now, the difference --

Justice William J. Brennan: [Inaudible] any of these other pending suits?

Mr. Allan Milledge: I think that we could.

I think that we could have gone into the Government's case, the good faith bargaining nexus is exactly the same there as it is in the Galveston Wharves case, which we will discuss after a bit.

We could have gone in if permitted into the case in which there was already assumed jurisdiction.

The -- what's called the 6316 case or the initial case assuming jurisdiction over interchange.

Once in as we come later as I'll get into as quickly as I can into the 2283 question, once there is federal jurisdiction to determine the controversy, wherein far enough so that an injunction maybe issued.

Now in a case like that, you probably wouldn't get into the area of should it be issued.

This case makes as we'll show later an overwhelming posture for the “should aspect” of it, but what the statute says on the could or the power is simply a case in which it is necessary to a jurisdiction or a case in which an order needs protecting or effectuating, that's what the Congress say.

Justice William J. Brennan: This petitioner is not, however, a party in any of these actions that you're talking about, is it?

Mr. Allan Milledge: Petitioner is a party to all of the interchange actions.

Justice William J. Brennan: And Atlantic Coastline --

Mr. Allan Milledge: Atlantic Coastline railroad is --

Justice William J. Brennan: Is it the only one or --?

Mr. Allan Milledge: No.

All the railroads are --

Justice William J. Brennan: All are.

Mr. Allan Milledge: -- to the initial case upon which the federal court assumed and mandated interchange.

All of the carriers are, possibly Southern is not, but Atlantic Coastline, the Seaboard, of course it is all one railroad now, and the Jacksonville Terminal are all parties to that and the Southern was too, I recall that Southern --

Justice William J. Brennan: Is that a litigation that involves this labor dispute with FEC?

Mr. Allan Milledge: It was -- it is and that's the petition that is the complaint was filed in that case on January 27, four days after the strike commenced by the FEC against these other carriers saying that, they -- the other carriers were refusing interchange that they had imposed an embargo and indeed they had imposed an embargo and the labor organizations were not parties, but the justification given by the defendant railroads, that is the other railroads, was -- if there was a labor dispute and that these people, that is our people would picket the interchange and so they want --

Justice William J. Brennan: Now, you've probably already said it, but will you repeat for me again?

How was it that we could get into that as I understand your argument that there is a judgment which in that case which will entitle the union now, the relief in that action of the kind you got here against the state court suit, how does that come about?

Mr. Allan Milledge: Alright.

That, the injunction in that case applies to the Atlantic Coastline and its employees, the terminal company and its employees.

Now, that is an injunction -- the jurisdiction of the Court is over the question of interchange and it applies to employees as well.

Justice William J. Brennan: But how are you going to get into that suit, that is what I am interested in?

Mr. Allan Milledge: We would be by intervention but the question is a question simply of how does 2283 read. For instance, in the Capital Service case --

Justice William J. Brennan: Well, I appreciate, but you answered Mr. Justice Harlan and if there -- if this present proceeding hadn't been brought at all the federal court that nevertheless you would be able to get in as I understood you would say?

Mr. Allan Milledge: Yes.

Justice William J. Brennan: Under this interchange case.

Mr. Allan Milledge: Well, the way --

Justice William J. Brennan: In a way which would entitle you to have the same relief that you could actually got in this case.

Is that your argument?

Mr. Allan Milledge: Yes.

Now, the way we actually went about it, the way we went about it was in 1965, we filed another case to construe -- we sought intervention and we are denied and Judge Tuttle discusses that in the case, one of the Jacksonville Terminal company cases.

So, then we filed a suit to construe it.

Justice William J. Brennan: Where did you bring that one?

Mr. Allan Milledge: Before the same judge in the same Court.

Now, that one didn't reach any file determination because in the mean time in 1966, the Trainmen went on strike and began to picket the terminal which was nominally in violation of the injunction and the same judge, Judge McCray and enjoined it initially and then later reversed -- his injunction was reversed by the Fifth Circuit.

So, that for -- as a practical matter that that original case, 6316, the original embargo injunction case has been modified by the 1966 case and by the 1967 case, this case is presently before the Court.

All of which deal with these really the same problems, the interchange between the connecting carriers and this railroad.

Justice William J. Brennan: Well, basically then your argument is it -- I'll let the – you -- to the 2283 problem is that this interchange action has a judgment, which this present proceeding protects or effectuates, is that it?

Mr. Allan Milledge: No.

Our basic answer is that Judge McCray has -- as he says, “Determined the rights of the parties.”

In this order on appeal, he says, “I delineated the rights of the parties.

I did make a substantive determination between the parties.”

Now assume that, he was wrong about that, that he really hadn't done that, that Mr. Lyons is somehow right that all his order was was an Norris-LaGuardia order.

Certainly, he has assumed jurisdiction to do that.

He's had jurisdiction to do --

Justice William J. Brennan: I know, but what -- to protect or effectuate, what judgment?

Mr. Allan Milledge: Well, the language of the statute does not require that there be a judgment to be construed, to be protected or effectuated.

The language of the statute is -- were necessary in aid of its jurisdiction.

For instance, --

Justice William J. Brennan: Oh, I see.

Is that the one you're relaying on?

Mr. Allan Milledge: We -- there -- we rely on both of them because they are both in point.

What I was saying is that even if his 1967 order wasn't an order that required protection in first place, well, even if it was and we say it was because he says it was.

Even if it wasn't, he certainly had assumed jurisdiction to determine the legality of this conduct.

So, he certainly has the jurisdiction.

Now, we've heard over here that everything was done, everything was done in this litigation to entitle them to a final judgment.

I forget the exact terms, but you recall what Mr. Lyons says, talked about it and says Mr. Friedman that after this injunction against the state court proceeding was entered that they asked Judge Scott, the other district judge, to either set it aside or to give them a final judgment because everything that had been done, all the facts were in and all he had to do is just enter a file of order.

I mean that's true, I mean, that's where the case is.

It is a question of either our conduct is legal or illegal, Judge McCray says his ruled that its legal conduct and when he made that ruling back in 1967 and this is along the line that there is a judgment to protect or effectuate.

He -- this Court had not yet ruled in Jacksonville Terminal, but you will see in his opinion or order that he cites Section 20 of the Clayton Act.

Now, this Court has heard about Section 20 of the Clayton Act from us since 1966 that Section 20 of the Clayton Act as discussed by the Hutcheson case in Norris-LaGuardia breathing life back in the Clayton, it's been our position on legality from the beginning.

And that's what Judge McCray said in his order in 1967 and that was before the order of this Court to be sure, but that is what his determination was.

He determined that Norris-LaGuardia applied, but he went much further than that.

He also in terms of this order being an order which is necessary to protect or effectuate, he cites -- defines that we were engaged in a major dispute and he cites the B&O case, which is a standard fairly recent then, casing that once you had exhausted the procedures of the Railway Labor Act, once there was a major dispute, then you are entitled to self help.

You had a legal right to self help.

Now, the content of self help is something else, but it's -- we -- it is certainly been said often enough by this Court that -- that self help implies as it does -- as it must, since there is the duty to bargain in the Act, it must imply primary strikes and primary picketing.

Now, he cited the B&O case, this is a major dispute, he talks about what we did.

Now, I haven't got into the facts and I may never have a chance to get very far into the facts, but we've heard over and over again and this Court has heard over and over again, this great tale of horror.

The world is going to come to an end.

Now, since 1963, one road train has been 32 minutes late and the yard in this case was 15 hours late.

But that's all that's ever happened and all that has ever happened is that the -- in the exact place where the Florida East Coast railroad ends, and I am not talking about ownership, I'm talking about where its railroad trains run?

In this case, they run into the Atlantic Coastline property where they complete their business.

They make a delivery and they make pick ups in the employees of the neutral.

The Atlantic Coastline, are people that under any idea of primary picketing, we are entitled to ask, “Don't pick up and do not make deliveries to the primary.”

Now, this happens to be a case.

This Moncrief Yard picketing in which every effort was made to limit the manner of picketing so that it would have the effect only on pick ups and deliveries.

Now, we didn't even use a picket line.

If we put a picket line up at the one and only entrance, the only place that employees of Atlantic Coastline go to work in the Moncrief Yard is at this one employee entrance.

If we put a picket line there, those employees whose duty it is to make pick ups and deliveries to the FEC within that yard, where the FEC engines come, no other place to reach those people, if we will put a picket line there, that closes the yard down.

Now, there is this assertion over here made that that's really what we had in mind doing that we just want to close the yard down.

And what we did, I might say was we let the people go to work, we just asked them simple thing, “Don't handle the interchange” and that is what they did.

Now, that relates back because that's what Judge McCray found in his order, now, I'll show you that in just a moment.

But --

Chief Justice Warren E. Burger: Does that go to any issue other than the character of the picketing --

Mr. Allan Milledge: It really -- no, it is really doesn't.

This conduct here in question, however, is more primary than the conduct in the Jacksonville Terminal Company case, that's about all it really does go to.

We are not some villains that are out to close down the world or close down the railroad or anything else.

We do want to apply the economic power, the economic sanctions to the place where the railroad gets its traffic.

It doesn't go really any farther than that in this case.

Chief Justice Warren E. Burger: It doesn't really touch the 2283 issue or --

Mr. Allan Milledge: Or the Norris-LaGuardia.

Chief Justice Warren E. Burger: It is --

Mr. Allan Milledge: No, sir.

Now, just to go because there was this business about we want to close the yard down or something that's what they say over and over in the brief.

They quote a man named Jeanneth who is quoting a man named Sims, Jeanneth is their overall man and Sims is our overall man.

Now of course, Mr. Sims testified and as Judge McCray found all we were doing was stopping the interchange movements.

But Mr. Jeanneth in cross-examination said, my question to him was and you had some conversations I believe, I am reading from page 109 of the appendix, and you had some conversations I believe with other different union people or at least, they were there like Mr. Sims answered.

I talk to you and to Mr. Sims question, “You understood did you not that the purpose of this activity was only to stop FEC traffic?”

And sir, “That was my understanding.

Yes sir.”

That's the man there quoting earlier for that, we were going to close the world down.

Now, in connection -- well I just might, since I got started on it, just tell you that Judge McCray's order, the order of 1967, paragraph number six which is on page 66 of the appendix, finds if that is what we were doing.

That we were asking people not to make pick ups and not to make deliveries and that was that.

Now --

Justice John M. Harlan: How many cases did you get when you filed case [Inaudible] Court --?

How many cases that you have been able to find where there's 2283 power has been exercised --?

Mr. Allan Milledge: Alright.

The Galveston case in the Fifth Circuit which certiorari was denied by this Court this past term, the picketing very similar to this on the grounds the state enjoined to the secondary and the nexus was a good faith bargain order.

There is that case, there is the Capital Service case. Capital Service is a case which came before Richman Brothers.

And in Capital Service, the board had invoked the jurisdiction of the District Court, hadn't entered any orders at all, but had invoked it, invoked the jurisdiction for the purpose of entering some orders pertaining to alleged secondary conduct.

And this Court held that that was proper under 2283 then the injunction against the state court was proper to unfetter the federal Court so that it could make a determination.

There is that case, there's -- I have a list, if I can pick them up quickly.

Justice John M. Harlan: Are they connected in brief?

Mr. Allan Milledge: Yes.

The Looney case is the case that this one -- this case is most similar to.

It's very similar -- this case is very similar to really three cases.

It's very similar to Galveston Wharves.

It's very similar to Capital Service because the difference there, the Board invoked the jurisdiction as only the board can under that Act.

Here, it is private parties who may invoke the jurisdiction of the Court.

But the Looney case is case that goes back quite a number of years, but the Looney case is a case in which this Court approved an injunction against the state court case -- state court injunction in a Texas rate dispute that is the way I think of it in any event.

And that case, the Looney case is discussed, it is quite significant because it is like Capital Service in that an injunction was issued, it was in aid of jurisdiction but of the Court rather than to protect or effectuate a judgment.

But the Looney case is of particular significance because it is discussed at length in the Toucey decision.

The Justice Frankfurter opinion for the Court, and Justice Reed's opinion for the minority, and in both the majority and the minority, the same conclusion is reached about Looney.

Justice Frankfurter in that case said that, that case was granted merely to protect its jurisdiction until the suit brought by the carriers was finally settled.

Now the significance of that is this.

2283, Mr. Lyons has suggested to us that 2283 has a lot of pigeon holes and this does not fit a pigeon hole.

The pigeon hole for a race, there is a pigeon whole for a removed case, there is a pigeon hole for fully adjudicated case and that is all he said, the pigeon holes were in his main brief.

Now, a lot of cases don't happen to fit in those pigeon holes, but 2283 isn't a pigeon whole statute.

The history of 2283 is that, it initially was a flat blanket statement by the Congress, “the District Court shall not enjoin state courts” and then eventually the bankruptcy addition came into it.

And then finally in 1948, it was changed because of Toucey, but what had this court done in the mean time?

This Court had said that obviously, there are situations in which it is necessary that having jurisdiction, a District Court has got general equity jurisdiction in it has got to be able to protect that jurisdiction.

And so, various cases came along and Looney was one of them that where it was necessary to protect the jurisdiction.

Now, Justice Frankfurter in 1941 in the Toucey case said that, the policy against enjoining state courts was so great that even a fully litigated case that was a money judgment diversity case, but the policy of the United States against enjoining state courts was great enough to require somebody who would fully litigated the matter in the federal courts to go ahead and just plead res judicata and go on all the way up again through the state system and back around.

Now, that was reversed by Congress and they -- so, you no longer, you have an entirely different statutory format starting in 1948.

It isn't a question anymore of the Court having to look to its some general equity considerations, but the Congress has said and the reviser says the same thing and they do not limit it to pigeon holes, but particularly the language of Congress, a District Court may enjoin where necessary in aid of jurisdiction or to protect and effectuate judgments.

You have both here and really the question is the question of the should aspect.

Justice Potter Stewart: You don't suggest, do you that this 1967 judgment was res judicata on the railroad, do you, insofar as precluding it from going into the state Court, under the state court --

Mr. Allan Milledge: No.

What our position is with regard to the state court matter is that whatever that Court does or does not do, right, wrong or indifferent that that impinges upon the jurisdiction of the federal court which was assumed to make those determinations.

Justice Byron R. White: Why -- Why --

Mr. Allan Milledge: We also say that it did happen.

Justice Byron R. White: Why does it if is acting under state law?

Mr. Allan Milledge: Well, we now know --

Justice Byron R. White: The federal Court -- was the federal court dealing on a state law problem?

Mr. Allan Milledge: Well, the federal court could deal with the state law problem.

Justice Byron R. White: Well, it didn't purport to be?

Mr. Allan Milledge: Well, if (f) under ASCO decision of this Court, what you plead is a set of operative facts?

You do not plead all this business that comes from the other side of the table about the federal court couldn't deal with the state court with state law.

Justice Byron R. White: Was there diversity in this case?

Mr. Allan Milledge: No, I am not quite sure.

Justice Byron R. White: Well, what jurisdiction would this federal court have had to deal with the state law of question?

Mr. Allan Milledge: Well, there is no longer a state law question but I would assert base upon last year's determination of this Court.

But at that time, if the Court had jurisdiction as it did under the Railway Labor Act and under the Interstate Commerce Act, it could use whatever body of law that there was that was applicable under pendent jurisdiction or ancillary jurisdiction.

District Courts of the United States everyday apply state law and it is usually in diversity cases, but they also apply state law in pendent jurisdiction cases where in this case it would be the Railway Labor Act.

Justice Byron R. White: What you are saying is that in 1967, the District Court in effect declared that this is protected conduct to free from interference by any Court under the federal law?

Mr. Allan Milledge: That is what we say he did.

Justice Byron R. White: What?

Mr. Allan Milledge: Correct, yes.

Justice Byron R. White: And you're saying that the railroad going into the state court is maybe enjoined because of its acting contrary to the -- at least the declaratory judgment that was entered against it?

Mr. Allan Milledge: Yes.

Defendants can win, I mean, the position that Mr. Lyons is “If you don't rule for the plaintiff and don't grant an injunction, then nothing has happened.”

Defendants can never have the benefit of this doctrine or benefit of protection if it had been -- let us say a fully litigated case with res judicata, I suppose that would be something different, but that somehow if the defendant gets rules for that that isn't an order requiring some kind of protection.

Well, he did rule the question of the legality, the issue of legality of our conduct was submitted to Judge McCray in 1967, about that, there can be no question.

Now, there was a question up until this past year as to whether or not there might be some independent state remedy as it was thought that could intrude into railway labor.

Now as long as that was the case, and there the suggestion is made, well, if it required protection -- If it is what you say it is, why didn't you go in 1967?

Well, you're into the area then of the question of really a should preposition.

Until this Court has ruled and incidentally the arrangement was with counsel that we would let the 1967 picketing cases lie until this Court had ruled and when this Court had ruled within about two weeks we were in before Judge Locke.

So, why the reason for not going in, in 1967 is that a Federal District Court with that question remaining as an open question would be reluctant to enjoin not because it couldn't, not because it didn't interfere but because that just would not -- you never get somebody to do it is really what's involved, but once its clear that that interferes it's not a question of trying a res judicata defense, it's not a question of under the statute, it is not question of any of those things.

It's simply a question that the state court action fetters the federal court in making its determination or it is contrary or in some -- it does not really even need to be contrary as long as it's necessary to some reason or to be necessary for the court to take action and here, that is really very clear.

Now, it is said by Mr. Lyons that Richman Brothers ends the matter and that Richman Brothers says that there is a forbidden fruit here that you can't try a preemption court -- a defense in the Federal District Court, that you got to let that go on up.

Well, that isn't what Richman Brothers says.

In Richman Brothers, there was no jurisdiction of the United States District Court.

That jurisdiction had been preempted by the National Labor Relations Act.

Justice Potter Stewart: There was no jurisdiction in either state court order or federal court?

Mr. Allan Milledge: No.

There is no jurisdiction anywhere around.

So, there was no jurisdiction to aid and no order should have been entered.

So, 2283 could not apply.

It really is just about as simple as that.

Now, the language --

Justice Potter Stewart: [Voice Overlap] the opinion of the Court has been written quite that simply?

Mr. Allan Milledge: No.

The opinion of the Court in “the should” area is Justice Frankfurter again writing the author of Toucey and he writes a lots of reasons why it shouldn't be done.

But fundamentally, it all does come back down to the question of there was no jurisdiction to aid or a judgment or order to be protected.

Now, Professor Moore has something to say about this.

Professor Moore says the -- and this is on page 43 of our brief, “The second exception permits a federal court to grant an injunction against state proceedings where necessary in aid of its jurisdiction.”

This puts back into 2283 some of the judicial flexibility which Toucey had removed from the statute.

And despite the strict reading of 2283 by Richman Brothers, flexibility still remains for Richmond as we shall see held only that the District Court had no jurisdiction to aid. But if on the other hand a federal court has jurisdiction, then under the terms of 2283, it may enjoin state court proceedings where necessary in aid of its jurisdiction.

Now, since that time there has been the Galveston Wharves decision of the Fifth Circuit.

It's possible that it is very round decision is since that time as well which -- but perhaps not.

The Galveston Wharves decision was a case like the FEC in this regard that it had been to the Fifth Circuit Court of Appeals three times.

It is -- it was a case that had spawned considerable litigation.

The state court had enjoined picketing, the federal court had mandated that the carrier engage in good faith bargaining.

The federal court enjoined the state court from enjoining the picketing because of the impact that that would have regardless of considerations of secondary conduct and Galveston again was a decision before this Court's decision in Jacksonville Terminal and that case is essentially in terms of the power under 2283, essentially the same case as this one.

The Sperry Rand case is a Court of Appeals case in that case an injunction was issued against the state court to protect a discovery order of the federal court.

In the Brown versus Pacific Mutual case, which is a case which goes back prior to the 1948 Amendments, Justice Parker issued an injunction against a state court or rather he affirmed an injunction against a state court in a case which only involved cancellation of an insurance policy.

The suit in the federal court was for cancellation, the suit in the state court was on a $450.00 claim arising under the policy and he discusses at great length and this is back when there were no exceptions to 2283.

He discusses the Kline case which is a case Kline, and Toucey, and Richmond are really the cases most often talked about, but when you come through all of it and that injunction was sustained, but it never reached this Court, but when you come down really to all of it, certainly the Looney case is still the law.

The Looney case does not fit into any body's pigeon hole.

The Looney case is simply a case in aid of jurisdiction.

This is what the respondents say about Looney and the Sperry Rand case.

What they teach is that an interlocutory order of a federal court is as much entitle to protection by injunction against interference from a state court as a final order.

That's certainly true under Looney.

Looney -- the principles of Looney were certainly carried forward and probably broadened in the, but at least carried forward in the 48 revision, and that is certainly within the language of 2283.

Now, the reason that this case is the strongest case that of any case for the application of 2283 is this.

There are at least 0 or 40 separate cases the District Court has had, innumerable cases involving this.

The Fifth Circuit has had opinions that, I don't think you can number on two hands.

All of these matters ultimately come down to one thing that the Florida East Coast strike will be settled only if there is bargaining, when you finally come down to it.

Now, there has been no economic power, no economic sanction that could be put to bear upon the Florida East Coast Railroad since the first two years of the strike, except the economic sanction of asking the employees of the neutral railroads not deliver cars to the FEC.

Now in a situation like this and what, the reason really I think that the economic sanctions initially didn't bring any kind of settlement, was because the FEC immediately started all these illegal operations for which there is a proceedings now about restoration of the status quo and so forth, but they effectively through illegal conduct wanted that, that is not the fault of the Atlantic Coastline.

But also from the very beginning, the other form of primary activity and surely there must some way in the railroad industry that you are entitled to ask the people who make pick ups and deliveries in the terms of the Steelworker case or in the terms of this Court last year not to do that and of course, one knows that in this industry that they won't do it if you ask them not to.

So, there is an economic power that has never been used.

That is what is involved in this case and this Court has decided that state courts have no business in this field.

That interferes with not only the federal scheme, but that interferes and with jurisdiction assumed over the bargaining, over the self help rights of the railroad and over the question not only of interchange between the carriers, but interchange as it affects the rights of this people and it is all one ball of wax.

But if for instance, let us assumed that a state court tells the federal court that the railroad cannot deviate one iota from its contract and we know that Judge Simpson who is originally the District Judge following the mandate of this Court, allowed the railroad to get away in its operations from certain matters, I forget exactly what they were to long, but some matters of its collective bargaining agreement.

Now, there wouldn't be any hesitation, I dare say, that that injunction by a state court would come within 2283 and be stopped.

And this is simply the other side of the coin and the only reason it looks any different in perspective is because the order says, “Okay, do it.”

Or at least, “I'm not going to give relief against it” and so you can say, well that isn't some kind of an affirmative duty, but it bears on it -- the Court assumed jurisdiction over the legality of this conduct and as a state court order that impinges upon that and it isn't tangential at all, it's the heart of the whole business and no bargaining will ever make any sense until the day that there is some economic power on the part of the organizations.

I mean, the basic dispute still pends it's over 10 cents an hour.

A demand made in 1961 and for 10 cents an hour the hold up strike can be settled for 10 cents an hours in an economy that from 1961 to 1969 has expanded 25 -- on inflation 25%.

I mean, so something is wrong in this strike and it is that this traditional weapon of labor, primary picketing against people who make deliveries and pick ups has never been able to be applied.

Justice Byron R. White: Did I understand you sometime back and say that after 1967 injunction suit by the railroad in the Federal District Court that you might have some problems here if you had to start a new suit to enjoin a --

Mr. Allan Milledge: Well, I think that in the totality of this situation that with the perspective in the first place.

The perspective of the statute is not litigant's contentions or anything else.

The perspective of the statute is the power of the Court and it's whether the power of the Court depends on whether it is assumed jurisdiction and it has assumed jurisdiction over the bargaining orders which --

Justice Byron R. White: Wouldn't you have some problem with Richman Brothers at least, if there had not been any suit in the Federal District Court at all and that the employer went right to the state court got an injunction and then you started action in the federal court?

Mr. Justice Harlan asked you awhile ago I think about that.

Mr. Allan Milledge: Well --

Justice Byron R. White: I thought you answer was you might have the answer to the problems with that?

Mr. Allan Milledge: Well, the Capital Service case, this case, if that were so if there was no prior litigation at all, I believe that is your assumption of no litigation at all, you would then have a situation which is like the Capital Service case.

The difference would be in Capital Service, it is the Board that invokes the jurisdiction of the court and then in the Capital Service, the Court unfettered itself first.

Under the Railway Labor Act, it is private litigants who invoked the jurisdiction of the Court to make a determination under the Railway Labor Act.

And if Capital Service is analogized to the Railway Labor Act, then an initial proceeding brought by a private litigant to have the federal court determine a question of Railway Labor Act law would be entitled, once the Court had assumed jurisdiction to do that would be within 2283.

Now, that doesn't make a stronger case for the “should aspect” as we have in this case because of the totality of all of the different factors.

Now, it has been said several times all we need to do is just go ahead and follow our appellate remedies and it is true the appellate remedies are there and we can take an appeal and we'll get back around here.

Justice William J. Brennan: You agree if you get a final judgment?

Mr. Allan Milledge: Oh, yes we can.

Well, if Judge Locke would do what he said he would his letter and enter a final judgment, we could appeal from that, that's quite true.

That is true in every 2283 case and that doesn't affect the policy of 2283, and that is a singularly inappropriate way to deal with a labor dispute.

If a federal court has taken jurisdiction and had orders, then we'll be back here two years from now so that this Court can say that Jacksonville Terminal, when it says that state law can apply, means act, and then when some state judge wants to take jurisdiction over something again, well, we'd be back in another two years after that and so forth and so on.

Now, the federal interest in the settlement of the Florida East Coast strike is enormous.

The Federal Government has been in the case since the beginning not the one with this case number on it.

It does affect whole regions and to have that procedure and that's really what the decision I think that this Court comes down to, really the question that is, is this the type of a case, like a money judgment case in a -- it's already been determined that Toucey was wrong that fully litigated diversity, but personal money judgment case that you could and should enjoin a state court.

Congress said that, Congress was upset to think that you couldn't do that.

Now --

Chief Justice Warren E. Burger: Your time has expired now, Mr. Milledge.

Mr. Allan Milledge: But this case if that's so, then this case is just overwhelming for that in -- I didn't discuss the Norris-LaGuardia Act at all, but our position is stated in the brief.

Chief Justice Warren E. Burger: Thank you, Mr. Milledge.

Mr. Lyons, you have about five minutes left.

Rebuttal of Dennis G. Lyons

Mr. Dennis G. Lyons: Mr. Chief Justice, may it please the Court.

Mr. Milledge referred to a number of other proceedings besides the case at Bar which presumably the District Court was protecting orders in -- by enjoining the state court proceedings here.

Now, the District Court itself never cited any of these other cases.

I don't believe they were cited to it by counsel.

They were mentioned for the first time in this Court.

There are three proceedings essentially, one of them is the so called the Clerks case to which the neutral carriers are not even a party.

The other is a proceeding in which there's never been any order entered of any affirmative or even negative sort it and the only other one is this 1963 case and the only order that has ever been entered in that and we discuss all of these in our brief.

The only order that has ever been entered in that is an order that the FEC got against the Atlantic Coastline and the other neutral carriers requiring them to interchange and we scarcely see how the state court order in any way contravenes that order since the picketing that the state court sought to enjoin was designed to disrupt the interchange by getting the Coastline stop the interchange.

This case is quite different than from the Looney case which was mentioned frequently by counsel in his oral argument.

In Looney, there was an affirmative interlocutory injunction granted by the federal court.

Then a state court ordered the taking of certain action which was inconsistent, completely inconsistent with the federal court injunction and it was held that the federal court could enjoin proceedings upon that state court injunction notwithstanding that the federal court injunction was interlocutory.

This is an entirely different case.

There is no order whatsoever that the injunction under review protects or effectuates the assertions of the federal court's jurisdiction in this case, have been solely assertions as to the federal law rights.

There is no diversity, the state law claims were never pleaded.

We get down to the final point in this case that what the respondents are trying to do here is to adjudicate this defense based on their reading of the Jacksonville Terminal case by way of brining an injunction against the state court proceedings.

Now, they have stated that the argument we're making is essentially a pigeon whole argument that they have to point to a specific exception to the statute.

Well that is the way the statute reads, pigeon whole is a kind of a tendentious way of saying it but it's a general statute with specific exceptions.

As the Court said in Richman Brothers, legislative policy is here expressed in Section 2283, in a clear cut prohibition qualified only by specifically defined exceptions.

The exception I think that the respondents are trying to urge on this Court is the exception that we heard much of the very end of Mr. Milledge's argument and that is that they just can't wait for the orderly adjudication of their federal defenses in the state courts.

They have not joined with us in entering a final judgment.

They admit that they could have had one entered.

They have left that situation stand now for nine months.

They have not lifted a finger to take an appeal in the state courts.

The preposition we submit that the respondents are urging upon this Court cuts at the very heart of what Congress tried to do back in 1793 and ever since when it is enacted and reenacted this statute.

Justice Byron R. White: Mr. Lyons, let me ask you, if this -- if in 1967, the federal court had said expressly or in effect that this issue before me is governed exclusively by federal law and if the railroad has no right to an injunction under federal law.

Now and then, the railroad promptly resorted to state courts and asked the state court to adjudicate the controversy under state law and asked for an injunction under the state law.

Mr. Dennis G. Lyons: If he had purported to -- had purported to exercise the power adjudicate state law claims or deny their existence, then --

Justice Byron R. White: Well, we can say federal law preempts at all --

Mr. Dennis G. Lyons: -- and it's exclusive, then we would have quite a different case.

You could make the argument that what we were trying to do then was to re-litigate that order and that we should have appealed that order.

Now, we didn't appeal his order and if it said something else from what it had said, presumably our decision as to appeal would have been quite different.

Thank you ,Your Honor.

Chief Justice Warren E. Burger: Thank you, Mr. Lyons.

Thank you, Mr. Milledge.

The case is submitted.

Featured:

Atlantic C. L. R. Co. v. Engineers - Oral Argument

Thu, 23 Aug 2012 18:14:31 +0000

Case:

Atlantic C. L. R. Co. v. Engineers

Related Transcript:

477_19700303-argument