Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 427, AFL v. Fairlawn Meats, Inc.

PETITIONER:Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 427, AFL
RESPONDENT:Fairlawn Meats, Inc.
LOCATION:Congress

DOCKET NO.: 41
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 353 US 20 (1957)
ARGUED: Jan 16, 1957
DECIDED: Mar 25, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – January 16, 1957 in Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 427, AFL v. Fairlawn Meats, Inc.

Earl Warren:

Number 41, Amalgamated Meat Cutters and Butcher Workmen, etcetera, et al., versus Fairlawn Meats Incorporated.

Mr. Ratner.

Mozart G. Ratner:

May it please the Court.

This case is here on writ of certiorari to the Supreme Court of the State of Ohio which sustained the issuance of an injunction, permanently prohibiting petitioners peacefully from picketing at Fairlawn’s three stores.

In the operation of those three stores, Fairlawn annually imports or causes to be imported from states other than the State of Ohio merchandise — merchandise valued at approximately $300,000 each year.

Under the familiar test annunciated by this Court that importation of that quantity of merchandise would be sufficient to establish that Fairlawn’s operations are subject to the National Labor Relations Act.

However, because Fairlawn does not import as much as a million dollars worth of goods merchandise directly or $2 million worth of merchandise annually, indirectly from out of the State, the National Labor Relations Board currently would decline for budgetary or other reasons as the Tenth Circuit recently put it best known to the NLRB to assert its jurisdiction over enterprises which fall in the category of the Fairlawn Meats Incorporated.

The State of Ohio has no statute comparable to the Taft-Hartley Act.

Accordingly, it would be impossible for the National Labor Relations Board under the proviso to Section 10 (a) of the Taft-Hartley Act to see this jurisdiction which at best declines to assert to the State of Ohio.

We’ll return to Section 10 (a) in just a moment, after canvassing briefly the extent to which Ohio’s Labor policy as it was applied in this case, parallels and overlaps in the extent to which it is in conflict, which the policies that Congress would have Taft-Hartley Act determine should be applicable to disputes of this kind.

In one respect, Ohio — Ohio’s policy is identical with the policy of the Taft-Hartley Act.

A strike or picket, which has as it’s object compelling an employer to enter into a union shop agreement at a time when a labor organization represents only a minority of the employer’s employees is regarded by Ohio is unlawful.

Under the National Labor Relations Act that is an unfair labor practice.

However, when the National Board finds that that is the purpose of a particular strike or picketing, although it issues a cease and desist order, it is very careful to limit the scope of it’s cease and desist order so as to leave the union free while it is a minority to engage in peaceful picketing for other than that purpose namely specifically, to engage in peaceful picketing for organizational purposes or to obtain recognition.

And the reason it does so is very clear.

The legislative history of the Taft-Hartley Act makes it perfectly blank that Congress intended to permit labor organizations while they are minorities to engage in strikes and peaceful picketing for organizational purposes and to obtain recognition.

Accordingly, even if we assume in this case that the National Labor Relations Board had made the same — would have made had it handled the case.

The identical findings to the purpose of the strike and picketing that the courts below made in this case.

The Ohio decree is much, much broader than a decree which the Board would have entered on this finding.

But because the Ohio courts operating in their common law sphere, function in a framework of policy so completely different from a policy framework within which the National Labor Relations Board functions, it is not at all clear that this case would have been treated in at all the same fashion, had the National Labor Relations Board considered it under the rules which Congress decided should apply to enterprises whose labor relations affect interstate commerce.

If the National Labor Relations Board had entertained this case, it would unquestionably have found and condemned as unfair labor practices, the acts of interference and coercion engaged in by Fairlawn Meats for the purpose of inducing its employees to repudiate the union, including the circulation by supervisory employees on company time and property of petitions which the employees were asked by the supervisor to sign repudiating the union.

This is a classic kind of unfair labor practice.

And also, the Board would have condemned this an unfair labor practice as constructive discharges.

Fairlawn’s action inducing employees who had joined the union to resign from its employment on the ground that union membership was incompatible with loyalty to an employment by Fairlawn Meats.

Indeed if the Board had handled this case, instead of an injunction, restraining the union from peaceful picketing and from strike, the Board would probably have issued an order compelling Fairlawn to cease and desist from its unfair labor practices and to have bargained collectively in good faith with the union.

Ohio says however, that it must be free to apply its inconsistent policies to this dispute, because it — it is not free to do that.

There will be a no man’s land, in which this economic conflict between these parties, the local union of the Amalgamated Meat Cutters and Fairlawn Meats will go entirely unregulated by any governmental authority.

That is the nub of this case and it is the thread that ties this case to the companion cases which follow.

Now the Congress which passed the Taft-Hartley Act was familiar with this no man’s land problem which is created when the National Labor Relations Board for reasons of budget or other administrative considerations declines to assert its jurisdiction over an employer whose activities in the interstate commerce bring him within the scope and coverage —

Is there —

Mozart G. Ratner:

— of the National Labor Relations Act.

William J. Brennan, Jr.:

Is there any issue in this case as to whether the Board has the power, the right to decline jurisdiction?

Mozart G. Ratner:

We raised no question, Your Honor, with respect to the Board’s power to decline, to assert jurisdiction for budgetary and other legitimate administrative reasons nor do we in this case ourselves raised the question as to whether the Board’s declination as it affected this case or any of the three cases here pending was in fact for a budgetary or other legitimate administrative reason.

The Labor Board however insists that all of its recent declinations in which they have tremendously expanded the area over which they decline to assert jurisdiction are predicated entirely upon budgetary and other legitimate reasons.

It urges that only if they had expanded this field for illegitimate reasons which we take it in this situation to mean a desire to reallocate authority as between the states and the Federal Government would they be powerless by virtue of the proviso of the Section 10 (a) to do so.

We think the Court need not decide that question here, because we think that 10 (a) is the only way that states can acquire jurisdiction over enterprises subject to the Act for which the Board declines to assert jurisdiction for any reason.

But we do think as the brief of the seven states points out, as a brief of the employer points out on the Garmin case and it seems apparent on the face of a numerous Board decisions that there is at least considerable question as to whether the Board is motivated by budgetary or other legitimate considerations as distinguished from a desire to reallocate authority between the states and the Federal Government in this field labor disputes.

Mr. Ratner, do you think it’s important or not important for one to make up his own mind whether or not the Board has jurisdiction here which is a matter of discretion, it cannot decline.

Do you think that’s an irrelevant question to this problem?

Mozart G. Ratner:

Your Honor in my view, the only relevant question is whether under the familiar jurisdictional test that this Court laid down in Fainblatt and (Inaudible)

The interstate commerce operations of this employer affect the interstate commerce within the meaning of the Act.

If they do, the Act applies to it.

From that point on, the Board may decline to assert jurisdiction for budgetary or other reasons if it chooses.

Why do you say that?

Mozart G. Ratner:

Well, I say that largely because I’m influenced by what this Court said about it within the Building Trades case.

This board applied in a decision written by Mr. Justice Burton —

Felix Frankfurter:

Isn’t that one (Voice Overlap) —

Mozart G. Ratner:

— that the Board had power to do it.

Felix Frankfurter:

That is an — that was the same thing (Inaudible) that, what I want to know is if an agency has jurisdiction conferred by the Congress of the United States, as to include the National Labor Relations Board.

What is the answer to a mandamus proceeding to make it exercisable?

That is what was done in the case, if the ICC can’t say we don’t want to enforce this, can we?

But this Court had issued mandamus, now this Board had said that mandamus would lie.

Mozart G. Ratner:

All I can suggest to you Mr. Justice Frankfurter is that it has been suggested by eminent counsel that mandamus ought to lie.

Felix Frankfurter:

I want to know from you whether I should dismiss that for my mind, if I conclude that mandamus would lie may have one answer, if I conclude that mandamus does not lie, I may have another answer.

Mozart G. Ratner:

Let me say that for the purposes of my argument, I have assumed that mandamus would not lie.

I think that if mandamus would lie, we cannot possibly be heard by it.

Felix Frankfurter:

Why do you assume it?

That’s my next question.

I don’t see (Voice Overlap) —

Mozart G. Ratner:

We assume it because the history of the Board’s declinations of jurisdiction for budgetary and other reasons have been before — before this Court on a number of cases.

Felix Frankfurter:

We never faced this question, so you’re a good enough lawyer to know what may have been said in passing, start with the German issue when it’s actually in front of us.

That’s the whole nature of — of — arm hold of deciding cases, we’re not bound by a parenthetical remark when nobody’s mind would focus on the question.

Mozart G. Ratner:

Well, Your Honor, you’ll — you’ll have to excuse me, because I don’t see the focus in this case, of the question as to the Board’s power to decline for budgetary and other reasons to assert its jurisdiction to begin with, because —

Felix Frankfurter:

(Inaudible)

Mozart G. Ratner:

I don’t see the focus to this issue which in this case is whether the state can act in an area to which the national act applies.

Felix Frankfurter:

You have been at the time, and we haven’t disposed of it but for me, it’s very important, if I conclude that the Board can be mandamus in these cases.

Mozart G. Ratner:

Well, Your Honor if —

Felix Frankfurter:

(Voice Overlap) —

Mozart G. Ratner:

If I may —

Felix Frankfurter:

(Voice Overlap) member of the Court.

Mozart G. Ratner:

If I may say —

Felix Frankfurter:

How much for me?

Mozart G. Ratner:

If I may say so, Your Honor, I do no think in my mind and of course I’m not a member of the Court, but in my mind, decision of this case does not turn and whether the Board has discretion to decline to assert its conceded jurisdiction in this case.

If they do have —

Felix Frankfurter:

Doesn’t have to do — doesn’t it in your mind have to do whether I conclude that implied legally, the Board may carve out as though Congress in terms have set too, does not mean — matter to you?

Mozart G. Ratner:

Yes, that would matter to me —

Felix Frankfurter:

(Voice Overlap) —

Mozart G. Ratner:

That would matter to me a great deal.

Felix Frankfurter:

(Voice Overlap)

raises the question whether that is implied if you jump a new hurdle in the fashion of no man’s land stability.

Mozart G. Ratner:

Your Honor, all I can say is, that it is for that reason that I turn to the history, and to the history of the proviso of Section 10 (a) because Congress assumed when it enacted the proviso of the Section 10 (a) on the basis of what this Court said and reserved in the Bethlehem case, that the Labor Board did have power for budgetary or other legitimate reasons, to decline, to assert jurisdiction over the so-called borderline or predominantly local industries to which Congress knew and intendedly acted would apply.

Felix Frankfurter:

Is it the same thing apart from final report?

Mozart G. Ratner:

Yes, it did Your Honor.

It said it specifically in the report of the Senate Committee that presented the draft of Section 10 (a) the proviso to Section 10 (a).

But before we get to that, let me point out that the history is that from the very beginning of the days, when the (Inaudible) extent of the Boards jurisdiction became plain, the Board decided that for budgetary and other administrative reasons it simply could not, as a practical matter take every case in every industry that it had to husband its resources and it therefore must decline to assert jurisdiction over some industries which it regarded as principally local in character.

Felix Frankfurter:

I’d like make a distinct — I’d like to make a discrimination with your consideration.

It’s one thing for an agent of any law enforcing agency whether a court or a board U.S.Attorney as a practical matter of administration, the company’s resources of the private and then government resources, that every case with that discretion of an independent jurisdiction and practically not to administer the full scope of its power.

I understand that very well.

That’s not the answer to the question whether if somebody says you take my pay, it didn’t say I decline to take it.

Mozart G. Ratner:

Well, Your Honor —

Felix Frankfurter:

You — I don’t want to take any more of your time, I just want you to —

Mozart G. Ratner:

The history —

Felix Frankfurter:

(Voice Overlap) —

Mozart G. Ratner:

The history shows that Your Honor’s last question, I decline to take it, is just exactly what the National Labor Relations Board did from 1937 to 1947.

They did it on a case to case basis, and they did it on industry wide basis.

They refused flatly to take cases in the construction industry no matter who came to them with the cases.

And then Your Honor’s opinion in the Bethlehem case, you attached an appendix — as an appendix, a memorandum of understanding which had been entered into before that case arose between the New York State Board and the National Board.

Now the — a footnote in that — in that memorandum of understanding makes it perfectly plain that the National Board didn’t believe that by entering into this agreement, it was ceding it’s jurisdiction over this borderline industries to New York.

But what it does indicate very clearly is that the National Board had set on a United States wide basis with respect to certain industries like construction and any of it.

No matter who comes to us with the case in one of those industries, we will take it.

The whole reason we won’t take it as budgetary and other administrative consideration, but we won’t take it.

And the classic in the light of the nature of the questions presented and argued on the other side to this case today, the classic is the minute of August 16, 1946 which appears in that appendix.

This is the minute where the National Labor Relations Board says to a union that once they filed an election petition on behalf of employees of brokerage houses, the Board concluded that it would not at this time entertain a petition filed on behalf of the employees of (Inaudible) and company or other such brokerage houses, because the budgetary and other administrative considerations.

The Board further concluded that in view of this disposition, it had no objection to having the State Labor Relations Board of the State of New York entertain such petitions filed under the State Act.

Now, the majority opinion on the Bethlehem case as the Court will recall, reserved specifically this question, whether the states have power to assert jurisdiction in these areas which the Board flatly declined for budgetary or other reasons to enter or to handle.

Felix Frankfurter:

The reason I put my questions to you is because the Bethlehem case, in the first break for the case in which the Court found that in fact there had been a ruling by the Board, by the National Board which would have been subverted, by which would have become inconsistent with —

Mozart G. Ratner:

No question about that.

Felix Frankfurter:

— the State (Inaudible)

So you have a square this on the record as the Court’s finding that that was applied to it, that there was a determination, not a declination but a determination by way of declination by the National Board.

The Court let go (Inaudible)

The first time I think was in 1946 as you point out, before the present change of personnel and outlook in one in which they called the Republican point of view into the question to and the discussion of this case, except on some aspects because this matter of declination antedated the training of personnel.

Mozart G. Ratner:

It certainly did.

Felix Frankfurter:

And the Board of this Court explicitly left open the question to which you now addresses with the other counsel in the case, is that right?

Mozart G. Ratner:

That’s right, but I address —

Felix Frankfurter:

Isn’t that what (Voice Overlap) —

Mozart G. Ratner:

— myself to it, Your Honor.

Felix Frankfurter:

And put to mind, it becomes extremely important to get what authoritative ruling be — or authoritative likely said from the legislative history that 10 (a) isn’t the exclusive determinant of the problem of what the law and what is left to the states all though it could belong to the National Board.

Mozart G. Ratner:

Well Your Honor —

Felix Frankfurter:

Is that a fair statement?

Mozart G. Ratner:

Well, I think it’s a fair statement except to say that the legislative history, the — the heart of the legislative history of the proviso to the Section 10 (a) lies in this reservation of this Court in Bethlehem.I do not say this Court passed on it.

Mozart G. Ratner:

The election of the National Board to decline jurisdiction in certain types of cases for budgetary or other reasons presents a different problem which we do not now decide.

Felix Frankfurter:

(Inaudible)

Mozart G. Ratner:

That problem was left over —

Felix Frankfurter:

I didn’t mean —

Mozart G. Ratner:

— and that problem —

Felix Frankfurter:

I didn’t meant to say it was foreclosed or that my mind is closed because it is — to me a very difficult, complicated and far reaching problem.

I do mean to direct your attention to the fact that when that question you have left open was 10A existent, it certainly was left open to the discretion and that’s why we’re here today whether or not if there is no mandatory power capable of compelling the Board to take impliedly, that doesn’t mean a delegate to where the Board explicitly declined to take it and they had to know conflicts between state and federal authority in this specific case.

Mozart G. Ratner:

Well Your Honor, let me simply say that Congress when it amended 10 (a), undertook to write the amendment 10 days after Bethlehem and they attempted to answer the problem.

I’ll admit that it wasn’t posed in your — in the terms you post it namely is there no one — where there is no administrative, no judicial authority maybe to mandamus the Board.

They posed it from a point of view not of the individuals affected, from the interest, and from the stand point of effectuating the National Policies.

They said, “Let’s turn to an answer this question on what happens in the no man’s land.”

Because there was a no man’s land, Lord knows.

In many states other than New York, in the vast majority of states there were no laws comparable to the Wagner Act.

When the Board declined to assert jurisdiction there, there was no state agency or state law that could step in and Congress was faced with that specific problem.

And they said, “What shall we do?

How shall we resolve this question of state power in this areas where the Board declines to act.”

And they undertook the results by enacting the proviso.

Now, the legislative history to which Your Honor referred shows two things, one, that the proviso to Section 10 (a) was drafted to cover the borderline industries in which traditionally as I’ve said before declined to assert jurisdiction.

And two, that it was directed specifically that the question reserved in Bethlehem namely the question of the jurisdiction of the states to enter this field where the Act apply because the business affected interstate commerce but over which the Board declined for whatever reasons, budgetary or anything else to assert jurisdiction.

Felix Frankfurter:

It is your position (Inaudible) your position that the proviso of 10 (a) exhaustedly and comprehensively and exclusively covers that which maybe left for the state courts to the state agency.

Mozart G. Ratner:

It does.

Felix Frankfurter:

That’s your —

Mozart G. Ratner:

That is our position.

And I shall now like to turn to the proviso and read it.

Provided that the Board is empowered by agreements with any agents of any state or territory to cede to such agency, jurisdiction over any cases in any industry, other than mining, manufacturing, communications and transportation except where predominantly local in character, even though such cases may involve labor disputes affecting commerce, unless the provision of a state or territorial statute, applicable to the determination of such cases by such agency is inconsistent with the corresponding provision of this Act or has received a construction inconsistent therewith.

Now, the argument that is presented on the other side of this case that distinguishes that the legislative history of 10 (a) shows some that the proviso does not refer to the areas of industry over which the Board traditionally declined to assert jurisdiction, but did it applies only to those areas of industry over which the Board prior to Bethlehem consistently assertive jurisdiction.

Now, I can’t square that kind of a distinction with the language of a proviso on its face, over any cases in any industry with the exception of the predominantly national ones even though such cases may involve labor disputes affecting commerce.

I can square it still less with the legislative history, the actual history of the amendment, of the proviso and of the Bethlehem case which show that prior to Bethlehem the Board declined for budgetary or other reasons and that it was the status of state jurisdiction in the areas over which the Board declined that Congress passed the proviso to Section 10 (a) declarable.

Felix Frankfurter:

Mr. Ratner, would you be — tell me what the explanation of the exception in the paragraph about mining, manufacturing, those categories, what were they?

Mozart G. Ratner:

These categories of cases are cases which the Congress told the Labor Board, “You cannot transfer to the states —

Felix Frankfurter:

Any —

Mozart G. Ratner:

— no matter how con —

Felix Frankfurter:

I want to know why —

Mozart G. Ratner:

— consistent (Inaudible)

Felix Frankfurter:

I want to know the reason for that restriction.

Mozart G. Ratner:

The reason for that restriction was that Congress believe that in the national interest, only a National —

Felix Frankfurter:

Well, I (Voice Overlap) —

Mozart G. Ratner:

— Board should handle those cases.

Felix Frankfurter:

I was going to — but why — of course that would’ve been — but why were those — why are those — why do those industries, those businesses have that — had that — why did Congress speak that about those particular industry.

Mozart G. Ratner:

Your Honor, all I can say is that I’m speculating if I give you an answer to the question, it’s probably historical.

The Board always handled cases in those industries prior to that time and that’s about it.

Felix Frankfurter:

But I’m wondering whether Congress put into the limitation that which in the history of the Court had special consideration in its enforcement and as to which you had it declined.

Mozart G. Ratner:

This is probably so.

Felix Frankfurter:

All right.

It seems to me (Inaudible) light on the scope of the 10 (a).

Mozart G. Ratner:

I — I think you’re right, Your Honor.

I can’t give you a more definite answer because I can’t be absolutely positive if that is true, I think that’s true.

Now, this Court has set and it has said so in connection with cases which have canvassed the legislative history of this statute, that the purpose of the newly enacted proviso to Section 10 (a) was “to meet situations made possible by Bethlehem where no state would be free to take jurisdiction over cases of what kind over which the Board had declined jurisdiction.”

To leave out any category of cases Mr. Justice Frankfurter, any category at all from the exclusive sweep of that proviso is to frustrate the reason that Congress put the consistency limitation is, this Court pointed out in the Amalgamated Association case that the purpose of that proviso was to ensure that the National Labor Relations Policy will not be thwarted even in the predominantly local enterprises to which the proviso applies.

There is I think a touch of items in the attempt of the respondents in these cases and of the State Board say nothing of the National Labor Relations Board itself, to manufacture in ambiguity with respect to the purpose in history of this proviso at this time, because this Court has itself referred to the Section 10 (a) proviso, as the classic example of clarity, in trend, in congressional supersedure of state power.

In California versus Zook this Court said, when stated enforcement mechanisms, so helpful to federal officials are to be excluded, Congress may say so, as in the Taft-Hartley Act Section 10 (a).

The entire argument that the State should be permitted to come in within consistent laws despite the proviso rest on a balance and the fallacy is this that to keep them out is to impute the Congress would pass 10 (a) an intention to create a no man’s land, but the premises is false.

Congress created no “no man’s land.”

It invited the states to step in and to take over in these areas which the Board declined for budgetary or other reasons to handle it.

It invited them to pass consistent statutes so that the Board could see jurisdiction to them that’s the reason Congress passed the proviso.

Felix Frankfurter:

It still leave — it would still leave a judicial question as to whether state laws are or are not in conflict, wouldn’t it?

Mozart G. Ratner:

And Congress envisioned it and took care to see that that question would be much narrower than otherwise, because the way the proviso was drafted, it requires the Board to determine before ceding that the State’s statute is consistent and that it does not receive the construction inconsistent.

Certainly there is a judicial question even remaining after that but it’s a far narrower one, than the one that would be in present in thousands of cases, before this Court ab initio without a prior administrative determination, if this Court let the States in free to act, regardless of the failure of the Board to determine if there was consistency on the first instance.

Congress has known for 10 years that the effect of a proviso is to exclude the states from acting in this borderline field.

The most authoritative report we have on the Taft-Hartley Act, the report of the joint committee to the second session of the 88th Congress which we reprint in full at pages 80 to 81 of our brief, says in so many words we understand that session of a proviso will not be possible unless the States undertake the passed laws consistent with the Taft-Hartley Act.

Mozart G. Ratner:

We understand that, we know it and we also know it that no State has yet done it.

And then they say, the desirability of letting the states into this field is obvious, but it can only be done by an amendment to the Act which would permit inconsistent regulations in this many different policies as there are states having Labor Relations Acts, the desirability appears questioned.

It has appeared questionable to every subsequent Congress which has also read the provisions of 10 (a) as I have indicated as the exclusive map by which the states can obtain authority to apply their Labor Relations’ Policies in the areas to which the Act applies but over which the Board has declined to assert jurisdiction.

Earl Warren:

Mr. Denlinger.

Stanley Denlinger:

Mr. Chief Justice and Associates of this Honorable Court.

The respondent in this case, a small butcher and at one of the crossroads of Ohio never expected to reach the stage of judicial questioning when we started an action in Summit County, Ohio too and joined stranger pickets.

And I use that word because it becomes important in the discussion of the trespass angle of the case.

The respondent in this case operated a three retail stores not doing any butchering but bringing in the products for sale over the counter and no sales beyond the immediate County of Summit.

Upon the filing of this petition, a temporary injunction was requested by motion and notice and hearing and at that time, a temporary was entered with reference to two of the stores and immediately.

The petitioner here removed the case to the federal court in Cleveland, Ohio.

There on motion to remand Judge McNamee found that the petition contained no allegations of a federal question or allegations from which a federal question might be inferred is the same court that just a few weeks prior to that had refused an injunction against the Common Pleas Court of Cuyahoga County proceeding in the Richman Brothers case which eventually reached this Court on his right or authority to enjoin or not.

When he got back into the state court, the issue was made by answer and reply under the fact of some of our procedure in Ohio revived varied question of affecting commerce became an issue and there was a lack of evidence and testimony received on that very issue and the trial court found on the evidence that commerce was not effective.

The trial court brought into play at that time also the declaration of the National Labor Relations Board setting forth its yardstick and found that the figures which were presented did not fall outside of the yardstick.

Now this case then went to our Court of Appeals not on questions of law but it was tried anew, de novo.

And there both sides offered and have the opportunity to offer further testimony if necessary or desirable.

And there our Court of Appeals of three judges, unanimously found that commerce was not affected and that this union and its stranger and its business agents strangers to the play were not entitled to trespass supply, the land of the plaintiff to carry on their organizational effort to insist and compel the employer to sign a contract which contained the union security clause and require the membership in the union as a condition precedent to his employment.

Now the Policy of Ohio has been as not enunciated by legislative act as we have no little Wagner Act in Ohio and no labor board.

And in this case gentlemen, neither party appealed to the Label Relations Board either by way of representation request or by charging that any unfair labor practice had been committed by either.

In that case, the Court of Appeals revived as you might say the order of the Common Pleas Court holding that it was against the policy of the State of Ohio to picket to compel an employer to sign an agreement embodying the union security clause where the union did not represent a majority of the employees.

That is the Policy of Ohio which Mr. Ratner had said to your Court, Your Honors agrees with the Labor Relations Board and the — their decisions in the Act.

Now when they were dissatisfied with the order of our Court of Appeals, this went to the Supreme Court of Ohio on questions of conflict between certain Court of Appeals decisions on the similar question and that is what our Court meant in Ohio when it said there was no constitutional question presented to it in the Supreme Court because their claim was a conflict between two judicial determinations within the State and on the weight of the evidence.

And our practice in Ohio is that our Supreme Court may or may decline to consider the weight of the evidence.

On the rehearing motion, they urged that the decision in the Fairlawn case was contrary to the Grimes and Howard decision which had previously been upheld — upheld the union’s contention in the Supreme Court of Ohio based on the decision of this Court in the Garner case.

And so, it is on that basis that we get into this Court.

And here, we want to urge upon Your Honors, what we feel is a justification for the decisions of our state courts.

We think that affecting commerce is not a mere obstruction.

We think as Judge Harlan said in this railroad case last month in the United States, the tariff is not merely an obstruction.

That affecting commerce as a question of fact which a state court has a perfect right to hear the evidence upon and that this Court may rely upon the fairness judicial temperament and honesty of our state courts to determine that question under the politic particular facts of the case before it.

And we have stated to Your Honors in our brief the judicial determination of this Court which we feel justifies the right of the Courts of Ohio to go into that problem and determine it.

Now, merely for the sake of correction and not that it really matters, Mr. Ratner said our imports were $300,000 a year or as the record clearly shows that a $103,000 worth of meat was shipped in from various states on orders given to the salesman in the County of Summit where the account was carried and the transaction completed except for the transportation of the merchandise from Iowa or whatever state it came.

Stanley Denlinger:

Now, I would not be able to stop here with clear conscience and fail to discuss with Your Honors the second question which is important.

We thought we were safe on the first ground I have stated to you, but this Court has permitted the entrance of this case and two others on what we feel a very tougher reason that this Court tell all of us, the relationship which of the courts of the various states has with the Labor Relations Act and the problems arising under labor.

And I concede from the later two cases from California, the Garmon and the Guss case which follows us that Your Honors have apparently had that in mind.

And so when we get into that tag match so to speak, we find in the briefs filed in this case in the Fairlawn case on the one team as the AFL-CIO and the petitioner of the unions.

On the other — at the invitation of this Court, the Solicitor General has filed a brief and the National Labor Relations Board in conjunction with him.

The Ohio Chamber of Commerce, the Ohio Retail Merchants Association, the National Retail Merchant Associations in seven states through their Attorney Generals, the States of Wisconsin, Georgia, Texas, Vermont, Virginia, Wyoming and Florida and by numbers we outlay them.

We trust our reasoning outweighs them because all of these boards and the National Labor Relations Board and the Solicitor General have stated unequivocally and without reservation that the Courts of Ohio had jurisdiction and full right to proceed here under the facts of this case.

And the same position is taken by this gentlemen from the Government and from the State Boards in the cases where the Board — State Board is involved or where there has been an actual declination by the proper officer of the Board to accept the case which problem is not in our case because there was no declination and because we relied upon the announced declaration of the Board that they will not accept jurisdiction in a case in which are import sales and no exports were involved.

We see no great distinction of weight between the problem in our case and in the Guss case and in the Garmon case.

What distinctions there are, we think are not sufficient weight for Your Honors to spend any time upon.

We are all of the same opinion that Congress has not swept the field of labor as this Court has said that there are certain delegated power which lies dormant and unexercised and the Board has the right not to exercise.

Particularly where jurisdiction has been declined all of the Attorney Generals of all of the states that have State Boards have found that Section 10 (a) of the Labor Management Act does not preclude them from taking jurisdiction where the yardstick prevails as to the facts.

This Court has repeatedly held from Gibbons against Ogden on down to the present time that conflict is the cheap consideration or at least a very strong consideration to determine thus impasse which might arise between the courts of our state and the Boards and courts of our Federal Government but that equally traditional that labor is a field and labor problems that affect the community locally.

And unless there is a clear inference which the courts may draw that Congress did intend clearly to preempt the field that preemption does not apply.

I don’t know whether Your Honors may want to consider this question on the basis of preemption or on the question of primary jurisdiction, a subject this Court just discussed last week, where Judge Harlan has thought this primary jurisdiction exist where there are two places where authority originally existed but a — an agency has come along with regulatory power and the discussion of that case I get some heartening out of as to the possible thinking of this Court.

When he said, that not — not in all cases must we look to a commission for a definition of the thing it’s regulating or enforcing but where it has made a pronouncement such as the Labor Board, I will use for analogy here has made in the declination of jurisdiction.

We have the right to rely upon that and courts and not the commission, does have the right and the jurisdiction to proceed to hear the case relying upon that pronouncement.

I have stated in my brief and the briefs of both the State and the Board and the Solicitor General clearly established there was no conflict between what happened in Ohio and what the Board would have done.

I prefer to take that statement coming from a Representative of the Boards than to statement of counsel guessing what the Board might have done.

Gentlemen, I felt of all cases where oral argument properly was not necessary.

This might be one of them in view of the fine briefs that have been written by many eminent counsel in this case and I — as I have read my own again, I have been odd by the artistry of those for the Government, the State Boards.

Earl Warren:

Mr. Denlinger, are you going to discuss the proviso 10 (a)?

Stanley Denlinger:

Yes, Your Honor, I should go into that because it has been so heavily argued here.

I want to point out to the Court that in all of your decisions since this proviso became an enactment it has never been previously cited or considered or offered to this Court by anyone or anyone of this Court using it as a basis for preempting this field.

Now I cannot concede that if Section 10 (a) since its existence these many years would have assisted this Court in promptly disposing of many of its labor cases coming from our state courts involving various questions that if it were considered by the Court or counsel in the cases that it was the thing that prevented any state court or Board from hearing a matter that someone before now would have brought it to this Courts attention.

Do you know how many times the Board has resorted to its powers under the proviso?

Stanley Denlinger:

As I understand Judge Black, there has been no cession agreements during this period that is my information.

And I would like for Your Honors to recognize this a little aside from Section 10 (a) that the brief of the New York Board will establish to you by statistics that 90% of the field and labor will go wholly, ungoverned, a no man’s land in which the majority of the people of our nations will be lepers who have no recourse to any place for relief if the position that has been maintained by the petitioner herein should prevail.

Earl Warren:

What did Congress intended in — by 10 (a), what they mean to do and why did they do it?

Stanley Denlinger:

We think Judge Warren that 10 (a) passed hurriedly after the Bethlehem case where the Court had found that the National Labor Relations Board had said foreman or not a proper unit for bargaining.

Stanley Denlinger:

And the State of New York came along and considered that they work and argued the cession arrangement with the — to this Court and this Court found there had been no agreement to cede the question of whether or not it was an appropriate unit to the State Board that Congress intended to leave the practice that the Board had been indulging in from its very beginning to decline certain cases that he had meant merely to give them the empowering, if you please, it does not direct them Your Honors.

Empower the Labor Relations Board to make agreements with those boards that it desired to use to assist them in the caring of their load of cases they would otherwise assume.

Earl Warren:

Is there anything in the language of the Section or in the legislative history to which you can refer us that would (Voice Overlap) —

Stanley Denlinger:

Your Honors, I think not.

I think we can say here that again, Congress has left a lot for you in this Court and us lawyers to guess about.

That is my best guess is the most I can say for it Your Honor.

It has been passed upon however, this very thing by a Circuit Court and a very, very honorable one which we cite on page 62 of our brief where the Ninth Circuit says, “By the expressed language of Section 10 (a), the Board was and still is empowered not directed to prevent persons from engaging in unfair labor practices affecting Congress.

Its discretionary authority in respect to its assertion of jurisdiction was never so far as we are informed questioned under the Act as it existed prior to 1947.

The Board has wide discretion in the issuance of complaints.

It is not required by the statute to move on every charge, it is merely unable to do so.

The Board itself without judicial challenge acted on the assumption that it could or reasons of policy or for budgetary or other reasons decline to issue an unfair labor practice and so forth.”

Now that’s a decision since the provision was enacted which we think supports our position but does not answer the question of what Congress had in mind.

What —

Stanley Denlinger:

I —

What was the — had you finished the —

Stanley Denlinger:

Yes, Your Honor.

What — what was the facts of what took place here, was it violence or mere — or a mere trespass?

Stanley Denlinger:

There was no violence Your Honor, it was mere trespass and the —

And that the trespassers consist of employees and also non-employees?

Stanley Denlinger:

There were seven employees that engaged in picketing from time to time.

The main picketing was done by the union which is composed of butchers from many adjoining counties not locally at all.

So that’s it Your Honor and this — this picketing was done —

Well, did this injunction run —

Stanley Denlinger:

— on it’s face between the —

Did the injunction run against only the union and its members?

Stanley Denlinger:

That — against the union and these two business agents, that’s against whom they — it was.

And the employees were probably members of the union picketing.

Stanley Denlinger:

Well, there was considerable question under the evidence on that Your Honor.

The union was claiming that once a man had signed up in the butchers that he was forever a member of the union whereas some eight or nine of these men who testified in the proceeding stated they were no longer members of the union although the union claimed them from the fact that had one time they had joined.

And they had continued to picket from off the employers’ ground?

Stanley Denlinger:

No, they continued on the —

Under the injunction were they allowed to picket?

Stanley Denlinger:

Yes, for a freedom about — for the period about 20 or 30 days Your Honors between the time that the case was heard in the federal court down to the time of remand.

They picketed in direct violation of the existing order of the Court.

Yes, but after — after the remand and — then they —

Stanley Denlinger:

They discontinued, that is correct.

And they did — didn’t picket even away from the grounds of the employer?

Stanley Denlinger:

That is correct.

There was no picketing after or at the time this case was originally heard on the merits.

And there’s no picketing going on now.

But they — they just stopped picketing entirely instead of — the injunction however didn’t require them to stop, did it?

Stanley Denlinger:

The injunction did not require them, that is correct.

Only — only required them to stop on the grounds of the employee.

Stanley Denlinger:

That’s right.

Sir?

(Inaudible)

Stanley Denlinger:

Well, that was evidenced that seven or eight would gang up at the time Your Honor, but the mass picketing I think as Your Honor and I consider it of many dozens probably at gates, there was nothing of that nature.

There was no violence.

(Inaudible)

Stanley Denlinger:

Yes, that’s right.

Change of shift and so on that occurred.

If there’s no other questions Your Honor, I shall relieve the time at this moment.

Earl Warren:

Very well.

Stanley Denlinger:

Thank you.