Beasley v. Food Fair of North Carolina, Inc. – Oral Argument – February 19, 1974

Media for Beasley v. Food Fair of North Carolina, Inc.

Audio Transcription for Opinion Announcement – May 15, 1974 in Beasley v. Food Fair of North Carolina, Inc.

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Warren E. Burger:

We will hear arguments next in 72-1597, Beasley against Food Fair of North Carolina.

Mr. Eubanks.

Larry L. Eubanks:

Mr. Chief Justice, may it please the Court.

This matter comes on to be heard here on the writ of certiorari from the State of North Carolina.

Simply, it involves our right-to-work law in the relationship with that right-to-work law with the Federal Substantive and the Federal National Labor Relations Act.

A factual situation is one where three individuals who were employed at some food stores in North Carolina were terminated right after a union election that was conducted by the National Labor Relations Board.

Now, our right-to-work law provides simply that in North Carolina a person who has a right to live, has a right to work there but after the union won the election, these three individuals was fired.

And it’s our position simply that there is a coexistence as possible between a right-to-work law in the State of North Carolina that protects supervisors and a federal law which protects employees.

Now, the case is dealing with the right of people that belong to unions and whether or not there is a constitutional right for that approach, have been dealt with many times by this Court.

First of all in the Morton case back in 1940 — Tomas v. Collins in 1945, the Court stated that “Union membership is protected by the right of association under the First and Fourteenth Amendments.”

Well what that meant as it had been interpreted later was as true so long as you know government interference.

In other words, government interference came in if you have the right to association.

And that gave rise to a lot of cases involving people excluded from coverage on the National Labor Relations Act.

For example teachers, policeman, garbage workers and a lot of cases they have extended all up into the present day time.

Well, it’s our position simply that in North Carolina as in about 19 to 20 other states, we have a law that says one of the group of people and that is supervisors have a right to belong to a union.

That does not say nor does our law say that a company or an employer is required to bargain within the union of any body because that’s been covered by the federal law.

There is no credit.

It simply provides that everybody in North Carolina has a right to belong to a union without fear of being fired.

Now, if in fact this case is preempted or the state law is preempted by federal law and I would agree with the defendant and the respondent in this case that the state courts have no business dealing with.

But it is really our position that this Court in 1967, in the Hanna case has already answered this question.

We submit that the Hanna case in Section 14 (a) of the National Labor Relations Act really determines and answers the question whether or not a supervisor can join a union and damages for his discharge because of his union membership can be given in a state court.

And that’s the question we have here.

In the Hanna case, the Court dealt with Section 14 (a) and I would like for the Court if I might to point out all of the words of 14 (a) of the National Labor Relations Act and it reads this way and I quote “Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization.”

But the second phrase of that same Section is what the Court exactly dealt within Hanna Mining company that such statement says, “But no employer subject to this Act shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.”

Now the point I’m making by reading this to the Court is this.

First of all Congress says when it removes supervisors from the coverage of the National Labor Relations Act in 1947 by the Taft-Hartley Amendment, supervisors can still belong to union but no longer will employers be required to bargain collectively with unions made up wholly or partially a supervisor.

Now, if that approach is maintained under the federal scheme presently, it is our position that there is no conflict with our right-to-work law and a protection of a supervisor and the federal scheme or the federal law is passed in Section 14 (a).

And this is one, in 1964 in the Morton case, this Court dealt with federal preemption.

The Court has dealt it many times and I am referring to case as generally cited in our brief.

Warren E. Burger:

We’ll resume there at 1 o’clock counsel.[Noon Recess]

Warren E. Burger:

Mr. Eubanks you may continue.

Larry L. Eubanks:

Mr. Chief Justice, may it please the Court.

Thank you very much.

You recall just before the luncheon recess I quoted to you a quotation from the case called Tomas v. Collins which provides “Union membership is protected by the right of association under the First and Fourteenth Amendments.”

That was the 1945 case and that was in that posture of the situation that Congress chose to amend the Wagner Act.

It was then called the Taft-Hartley Amendment.

Now, I think it’s reasonable for the Court and we submit to the Court if reasonable for us to assume that Congress when it included 14 (a) into the Act, it had some reason for all of the words it put in that provision.

You recall what I read to you just before the recess also Section 14 (a).

The only time, I confine the case in which the Court had the actual situation where 14 (a) was an issue is the case called Hanna Mining which occurred in 1965.

In that case, the Court talks about the Garmon decision, a 1959 decision to this Court which I’m sure the Court deals with often in preemption setting out in effect that conduct which is protected or by Section 7 or prohibited by Section 8 that the National Labor Relations Act is certainly preempted from any state control.

But in that case and then the Hanna case mentions that there may be some other areas in which it may be better that state regulation not apply.

Now, I would like to point out that one quote from Hanna Mining which raised that “The grand rules for preemption in the labor law emerging from our Garmon decision that the case that is mentioned should first be briefed or summarized.

In general a state may not regulate conduct arguably protected by Section 7 or prohibited by Section 8 of the National Labor Relations Act.”

Well, that’s clear and it’s been clear now since the Garmon decision.

In Hanna Mining, the Court goes on to point out “The legislative purpose may further dictate that certain activity, neither protected nor prohibited be deemed privilege against state regulation and continuing for the reasons that follow, we believe the Board’s decision that Hanna Engineers are supervisors removed from this case most of the opportunity for preemption.”

Now it is right there if the Court please that the appellant plaintiff in this case rests its position.

In the Hanna case, the Court dealt with a situation where some supervisory engineers were attempting to picket, to obtain a recognition from an employer.

The employer really in that case just said, “Well, I don’t believe you represent a true majority.”

It did not take really the position that was ended up to start with but in that situation the Hanna engineers were doing exactly what the last part of Section 14 (a) of the National Labor Relations Act says says “it cannot do.”

In other words that it cannot, no employer said that this Act shall be compelled to treat supervisors as employees for the purpose of collective bargaining.

And the Hanna Engineers were simply trying to get this employer to do exactly that.

Well, in the Hanna case, the Court mentions that it’s not dealing in that case with the situation where a person could become a supervisor and be fired for being a union member.

It says it’s not — specifically not dealing with that situation and this Court did.

Well, the situation we have before this Court right now is the one the Court in Hanna said it wasn’t going to deal within that case.

In 1967, a case called U.S. versus Morton before this Court pointed out that — or Teamster Local versus Morton, this is in 377 U.S., in dealing with the question of preemption 1964, I’m sorry, it says to explain the preemption doctrine further “The answer to that question ultimately depends upon whether the application of state law in this kind of case would operate to frustrate the purpose of the federal legislation.”

Now, we submit to the Court that in light of Hanna, the Hanna case and in light of the statement in the Morton case explaining what is and what isn’t preempted that the activity of these three individuals who signed membership cards to the Union and were fired as a result thereof is not the kind of activity if regulated by the states would frustrate the National Labor Policy.

In the —

Potter Stewart:

Did the state court have any — did the state court identify any particular provision that the state law was in conflict with?

Larry L. Eubanks:

No, Your Honor.

In this — in the North Carolina Supreme Court case, the Court simply ruled in that decision that this matter is preempted by Federal Law and that was the basis of their decision.

Larry L. Eubanks:

The Court of Appeals it rose specifically in citing Hanna and other decisions that he had not been preempted and the Supreme Court would reverse but it relied primarily on Hanna Mining in reversing the court’s decision of the Court of Appeals.

Now I submit to the Court that Hanna Mining simply says, “Here is a state court trying to enjoin conduct being engaged in by some supervisors” which the National Labor Relations Act says “cannot be done.”

The employer is not required to countenance, this kind of conduct.

And therefore when the state court attempted to enjoin it, this Court said that’s okay.

You can enjoin that kind of conduct because it does not in that kind of application of state law frustrate the National Labor policy.

Well, we are asking the Court in this instance simply to rule, if Congress meant anything when it put the first part of the sentence of 14 (a) in there “Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization” to treat the first half of that sentence the same way.

Meaning in effect if people have a right to belong to a union as Congress has said, then how can the provision for damages in a state court which only comes into play if this people are not allowed to exercise that right frustrate a National Labor Policy?

Thurgood Marshall:

But here you don’t have a right to work.

You have a right to organize.

Is that right?

Larry L. Eubanks:

Yes sir.

We have a — does the supervisors have a right to organize?

Thurgood Marshall:

The point involved in this case as to whether these supervisors had the right to organize.

Larry L. Eubanks:

No sir, that is I submit —

Thurgood Marshall:

Well, what are they fired for?

Larry L. Eubanks:

For simply signing union card.

Thurgood Marshall:

Is that organization?

Larry L. Eubanks:

Yes sir.

That’s all the complain alleged —

Thurgood Marshall:

Is that what the Labor Act is set up to control organizing of labors?

Larry L. Eubanks:

Your Honor, yes sir but I submit to the Court that organization includes much more than just joining a union.

There are many situations in actual life where frequently people are members of a union where they don’t even —

Thurgood Marshall:

All I am talking about is you keep saying that this is the right to work that North Carolina statute is interested in protecting the right to work.

Larry L. Eubanks:

Yes, sir.

Thurgood Marshall:

And the right to work is not involved I submit in this case.

It’s the right to organize that is involved, am I right?

Larry L. Eubanks:

I respectfully disagree with you Your Honor for this reason if I might explain.

The reason I disagree with you is this, I think that 14 (a) the second phrase of 14 (a) covers organizing, yes sir.

But I think it also permits the joining of a union by one individual or more individuals for that matter.

So long as there is no effort on their part to go through the processes of the National Labor Relations Act calling for recognition or through some action like was done in the Hanna case.

Thurgood Marshall:

But you did go to the Hanna law basis.

Larry L. Eubanks:

Your Honor, we were specifically told by the NLRB —

Thurgood Marshall:

But you did go?

Larry L. Eubanks:

Yes sir we filed charges.

Thurgood Marshall:

And you filed charges that they had interfered with the right to organize?

Larry L. Eubanks:

No, sir.

We filed charges alleging a violation of Section 8 (a) 1 and that these — these charges — they got caught in the old situation dealing with firing of supervisors to coerce the employees covered by the Act and they’re not participating in the union.

Thurgood Marshall:

That’s right.

Larry L. Eubanks:

That was our theory before the NLRB.

Thurgood Marshall:

But they participate in the union and the NLRB said no.

Larry L. Eubanks:

From discouraging the employees Your Honor as opposed to anybody else.

Remember the Act covers only employees —

Thurgood Marshall:

I thought the NLRB said that we don’t have a jurisdiction because supervisory employees are not under our jurisdiction.

Larry L. Eubanks:

They said — they clearly said that and that was a decision of the general counsel.

Mr. Nash when he contacted me and Mr. Stockton for the Company.

The wording of the letter was —

Thurgood Marshall:

So now you go to the state court on the right to work?

Larry L. Eubanks:

Yes sir.

Now, the situation is one where — it is simple for everybody who has filed briefs in this case except us seems to put a union activity or organizing and the signing of a union card or joining a union into the same board it isn’t.

I submit to the Court it isn’t the same thing.

William H. Rehnquist:

You have to establish don’t you Mr. Eubanks that the North Carolina Law is not a law relating to collective bargaining under 14 (a) and your contention since all it talks about his membership in the union, it doesn’t require an employer to do anything once a man is in the union.

It is not a law related to collective bargaining.

Larry L. Eubanks:

We submit if they were Your Honor it will be preempted and we agree with your position but we certainly say, if it were one relating to collective bargaining it would certainly be preempted because of 14 (a) in the second half for that sentence says, “You can’t require an employer to recognize that kind of situation and we agree with that and with all the cases relied on by North Carolina Supreme Court in holding against us or in reversing the Court of Appeals we agree with.

We agree with Hanna Mining, we agree with — and the cases which spell out the preemption doctrine and what is precluded from state jurisdiction and what is allowable.

You recall in Hanna that this Court said in Hanna that that state court since its enjoining on conduct that 14 (a) says that supervisors can engage in therefore does not frustrate state law.

I mean federal labor legislation of federal —

Potter Stewart:

I take it in that result of the state court’s ruling is that under the federal law, under the federal labor statute the employer has a guaranteed right that can’t be interfered with by the state, a guaranteed right to fire a supervisor for union membership.

Larry L. Eubanks:

That’s what the Court’s position was Your Honor but even the board —

Potter Stewart:

That is not, isn’t — that’s where the — necessarily where the State Court ended up.

Larry L. Eubanks:

Yes sir.

Larry L. Eubanks:

It is.

Potter Stewart:

And that although the Federal Act says nothing herein shall be taken to prevent membership nevertheless apparently has a guaranteed right to fire if you are a member.

Larry L. Eubanks:

Well, Your Honor that’s what the State Court as I understood it said Your Honor and that’s why I so vehemently disagree with because even if you will come into the case called (Inaudible) which I believe — and it involved one of these situations where a supervisor was fired because he was told to go out and engage in some unlawful conduct on part of his employer and he said, “I am not going to do it” and the employer said “Well, if you don’t do it I will fire you,” and he wouldn’t do it so he got fired and the case went up through the board and it was ended up to the situation that the board ruled and was supported by enforcement that that really coerced employees who were covered by the Act and by firing a supervisor who was being in an effort to coerce employees we feel that situation is covered by 8 (a) 1 of the Act and I agree fully.

But in so — if the employer sits and contends to this Court and us and through all the Courts that have gone before that, look, an employer should have an absolute right to fire a supervisor.

And that’s what I want to address this remark to.

Now, I remember in the North Carolina Supreme Court, one of the justices asked me and the question, “look, this means that anybody can be a union member.

This even means that a manger could be a union member.”

Well I submit to the Court, they can be and it doesn’t mean that disloyalty.

Somebody is so calm and in our every day life that people who grew up to the ranks of a union, a local union somewhere in the south or wherever it might be and accumulate benefits through membership and he is promoting in the supervision.

He keeps his membership.

The ruling of this Court that people are fired simply because they are union member, not for participation in any conduct disloyal to an employer, but simply by being something.

By belonging to something would in effect mean that the employer could go out and fire everybody that was a member of a union.

That’s what it means.

Now in a teacher situation, in a teacher situation where these teachers attempted to organize in the North Carolina area for example, this case came up as to whether or not they had the right to organize and under the First Amendment of course if the state said no or the county as this case might be, would be protected under First Amendment.

But I point out to the Court respectfully that to be a union member is not what 14 (a) is to protect against and there is no way it could frustrate federal labor policy for an employee or person who has got a right to work and arise a part of his right to live, go take a job or signing union card and in the end not getting fired when the law — when the federal labor law has already said it but Congress said that we could do it.

William H. Rehnquist:

Well but your example of the ordinary employee is the easy case because there, the federal law protects that right and obviously it wouldn’t get this far with that kind of a situation.

But then it makes your problem more difficult if the man is a supervisor and so you do have to address the supervisor on 14 (a) which doesn’t affect ordinary employees.

Larry L. Eubanks:

That’s correct Your Honor.

You got to — one thing I point out to the Court, the Court had a case that I find interesting as it relates to this situation and it was this, this case called U.S. versus Robel.

And I am sure the Court is familiar where it dealt with the question of a communist who had applied for a job with the Defense Department.

And the Defense Department had a regulation or some policy or for some reason he was not hired on the ground that his interest where inimical to that of this country because he was an admitting communist.

Well, there the Court pointed out and I’d like to quote that if I might to the Court.

The Court said this that “The operative fact upon which the job disability depends is the exercise of an individual’s right of association which is protected by the provisions of the First Amendment.”

Now I point that out for this reason, I submit to the Court that if Congress did not mean in its enactment of 14 (a) that people should be entitled even if they are a supervisor to continue to be able to join a union and it didn’t have that right. Surely Congress in the status of the law in 1947 would have been more explicit in the provisions of 14 (a).

They don’t talk about membership only in 14 (a), they talk about membership and then they talk about collective bargaining.

I submit when they talked about membership, it said in effect that if supervisors can join but I further submit if the supervisors do bond together and try enforcing their employer to recognize them, that’s against the law and 14 (a) doesn’t protect.

But unless an employer — a supervisor is disloyal to his employer and the employer learns of that disloyalty in more respect than to see him joining an organization, he is certainly entitled to some protection in the state court.

Did the supervisor here join the collective bargaining agents here?

Larry L. Eubanks:

Your Honor there was — this situation came up right after the campaign started.

There was no —

Now let’s assume that the supervisor decides he wants to join the union who is a collective bargaining agent.

Larry L. Eubanks:

Yes, sir.

I take it that this 164 doesn’t relieve the employer from bargaining with the bargaining agent just because the bargaining agent has some its supervisor member.

Larry L. Eubanks:

I respectfully disagree with that, I think it absolutely does.

Alright.

Larry L. Eubanks:

The employer —

Is that settled.

Larry L. Eubanks:

Yes, sir.

I certainly agree with your position in that matter.

So that if the employer — so that if the supervisor joins the wrong union, and if he joins the bargaining agent, the employer is excused from bargaining without bargaining agent, is that what you said?

Larry L. Eubanks:

He at that point in my judgment could take the position if you — if your union contains supervisors working for me I am not going to bargain with it.

I would think that if the other way, there might be a better argument for firing him.

Larry L. Eubanks:

I think so too Your Honor, I would agree with that.

I would fully agree with that position.

Gentlemen I thank you very much, I appreciate the time.

Warren E. Burger:

Thank you Mr. Eubanks.

Mr. Stockton.

Ralph M. Stockton, Jr.:

Mr. Chief Justice, may it please the Court.

This case came through the entire court procedures of North Carolina from the Trial Court to the North Carolina Appellate Court to the Supreme Court of North Carolina and that’s on certiorari here.

The Supreme Court of North Carolina in a rather exhaustive opinion reversed the Court of Appeals of North Carolina which had simply recited the Hanna Mining case and said that on the basis of Hanna, the state court was not preempted and reversed the Trial Court.

The Supreme Court reversed the North Carolina Court of Appeals and held it reviewed the legislative intent carefully of the Taft-Hartley Amendments of 1947 and the statute 14 (a) and incidentally Mr. Eubanks says nothing about 14 (b) which requires an agreement and I assume — we submit that has nothing to do with this case.

There is no union security agreement in this case.

The North Carolina Supreme Court referred to Section 14 (a) to the fact that in the 1947 Taft-Hartley Amendments, Congress specifically removed supervisors from the definition of employees and from the general jurisdiction of the NLRB —

Thurgood Marshall:

I thought Hanna was seven and eight, are you sure it is fourteen?

Hanna Manufacturing Company?

Hanna Mining?

Ralph M. Stockton, Jr.:

I didn’t understand your question Your Honor, it was a reference to the citation that Hanna Mining —

Thurgood Marshall:

No, does it involve Section 7 and 8?

Ralph M. Stockton, Jr.:

It involves Section 7 and 8 and the fact that in Hanna this Court said that this was a supervisory union, supervisor’s union in Hanna.

The Court — this Court said in that case, they are supervisors so they are outside seven and eight.

Ralph M. Stockton, Jr.:

We’ll also go further and we’ll look to see whether there is any other federal labor policy that would preempt the state court from acting.

And we say — this Court says in Hanna, the committee reports revealed that Congress propelling intention was to relieve employers from any compulsion under the Act and under state law to countenance of bargain with any union of supervisory employees so that this Court said on seven and eight, it’s out, the supervisors.

And so far as the overriding federal labor policy, what the state court did in enjoining the supervisor’s union from that picketing was in accord with congressional intent under the National Labor Relations Act as indicated by the committee reports and therefore we — this Court said we will not preempt.

But that’s where our Court of Appeals got off the track on Hanna because the instant case —

Thurgood Marshall:

Well getting back to the other question, why did the Supreme Court say preempted?

What part of the National Labor Relations Act?

Ralph M. Stockton, Jr.:

The Supreme Court of North Carolina, Your Honor?

Thurgood Marshall:

Yes, sir.

Ralph M. Stockton, Jr.:

They referred to Section 211 the definition of taking supervisors out of the definition of employees, Section 14 (a) as — and the legislative history and the Federal Court cases — Circuit Court cases.

Thurgood Marshall:

Well, what in the Act in any federal act says that the state is prohibited from taking the action against the supervisor?

Ralph M. Stockton, Jr.:

The Section 14 —

Thurgood Marshall:

I’m wrong, of the state taking action against an employer that it be has of the supervisor.

Ralph M. Stockton, Jr.:

What says that the state is —

Thurgood Marshall:

State is prohibited from giving relief to a supervisor.

Ralph M. Stockton, Jr.:

To a supervisor.

Thurgood Marshall:

Yes, against an employer.

Ralph M. Stockton, Jr.:

They referred to Section 14 (a).

Thurgood Marshall:

Which says?

Ralph M. Stockton, Jr.:

Which says nothing prohibits the supervisor.

Nothing in this Act, the 1947 Amendment prohibits the supervisor from becoming or remaining a member of the labor organization but —

Thurgood Marshall:

That’s all it said.

Ralph M. Stockton, Jr.:

No sir, it says but no employer subject to this sub-chapter which we are shall be compelled to deem individuals defined herein as supervisors with these plaintiffs and these civil damage state suits as employees for the purpose of any law, either national or local relating to collective bargaining and this state court action is bound —

Thurgood Marshall:

That’s related — related to collective bargaining.

Ralph M. Stockton, Jr.:

Yes, Your Honor but this is —

Thurgood Marshall:

And this — is there anything in this action in the state court that says anything about collective bargaining?

Ralph M. Stockton, Jr.:

In the state statute itself?

Thurgood Marshall:

No sir, I said in the action.

Ralph M. Stockton, Jr.:

In the action of the state.

Thurgood Marshall:

How about the supervisor?

Ralph M. Stockton, Jr.:

There is nothing in the compliant that says we are relating this to collective bargaining.

Ralph M. Stockton, Jr.:

But as practical matter, it has to relate to collective bargaining because under — or example if the legislative history of the 1947 Amendments are very clear, they’re in the brief have very —

Thurgood Marshall:

Well, Mr. Stockton supposed this supervisor is no longer members of the union?

Can they bring the action?

Ralph M. Stockton, Jr.:

At this time?

Thurgood Marshall:

Yes, sir.

Ralph M. Stockton, Jr.:

They are no longer members of the union when they start the suit, is that your question, Your Honor?

No, I would say not Your Honor because at the time they were supervisors for this defendant.

They then joined the union, now the legislative history is clear if it please the Court on this matter.

Senator Taft in speaking to these amendments said specifically speaking of supervisors and this is in the brief.

They are subject to discharge for union activity and they are generally restored to the basis which they enjoyed before passage of the Wagner Act.

William H. Rehnquist:

Of course union activity isn’t all that clear.

Is it that it would extend to the mere joining of a union?

Ralph M. Stockton, Jr.:

Well, if they joined a union in the process of a union election going on then we would say this is certainly union activity.

There they’re joining sides with the union.

They are supervisory.

They are managers actually of these markets.

William H. Rehnquist:

Well, do you say that the North Carolina Law here that prevents a man from being fired for either joining or not joining a union is a law relating to collective bargaining under 14 (a)?

Ralph M. Stockton, Jr.:

Yes sir and I think it has to.

And if —

William H. Rehnquist:

Well, all they want there, all they said they were doing was joining the union.

They weren’t making any demand as I understand that the employer bargained with it.

Ralph M. Stockton, Jr.:

No sir, but when they joined the union, they are a necessity affecting the employer’s collective bargaining rights.

He is dealing with a union which has his supervisors in it who maybe either trying to override the rank and file membership in his favor or undermine him in the employee’s favor contrary to the legislative intent which has been specifically set out backing up these 1947 Amendments to provide a balance between the employer and employee.

Warren E. Burger:

Do you think the National Labor Relations Board would count the ballot of the supervisor when they came to an election on the union?

Ralph M. Stockton, Jr.:

They ruled them out of the bargaining union insofar as —

Warren E. Burger:

Then I take it, you’re relating their acts, the supervisor’s acts to union activity is narrowed down to the proposition that when the foreman or other supervisor joins the union, he maybe giving — aiding comfort to the union and indicating an employer attitude in favor of the union as far as the other employees are concerned.

Ralph M. Stockton, Jr.:

That’s one possibility.

But there are other possibilities, they — for example, this legislative history says that no one whether employer or employee need to have as his agent, one is who is obligated to the other side.

This — pardon me sir.

Warren E. Burger:

Well, have it finished.

Ralph M. Stockton, Jr.:

This legislative history makes it clear that the conflict is recognized by Congress in enacting — in taking supervisors out of the National Labor Relations Act in enacting 14 (a) and that it relates to the day to day activities and the possibility of domination of the union by the supervisory member of the union and says specifically evidence before the committee shows clearly that unionizing supervisors under the Labor Act is inconsistent with the purpose of the Act.

Warren E. Burger:

What would be the posture of a foreman, these particular men, supervisors, if a strike were called, what would be their obligations with respect to the picket line?

Most unions have a penalty for a member who crosses a picket line.

Would these supervisors be subject to that?

Ralph M. Stockton, Jr.:

I don’t know the answer Your Honor but I think the question reveals the problems that and the fact that we are actually dealing with questions of collective bargaining when you give a state court a right to give a remedy and state court damages in this type of situation.

I might make this point, if the state right-to-work law is not preempted as to these supervisors’ then insofar as interstate commerce employers, employers within the scope of the Act.

The only people protected would be the supervisors.

The employees are obviously out.

They are within the National Labor Relations Act.

Mr. Stockton, may I ask.

I noticed that Mr. Eubanks’ brief at page 3 has a short paragraph, third from the bottom.

“The union began in organizing campaign that defendant Winston-Salem in North Carolina Stores in the spring of 1971.

In the course of that organizing campaign, the three petitioners named herein signed a membership application to join the union and were accepted in the membership in April and May of 1971.

There’s no evidence that they actually engaged in any pro-union activity.”

Do you accept that as an active statement of facts?

Ralph M. Stockton, Jr.:

Well, if Your Honor please, the case is here.

This statement made by Mr. Eubanks is a statement he makes.

The case is here actually almost pleading.

No, I am asking you, does that accurately state the facts?

Ralph M. Stockton, Jr.:

I don’t accept that as the actual facts.

I say to the —

Well do they engage in any other pro-union activity?

Ralph M. Stockton, Jr.:

Yes sir.

In my judgment they did.

It’s not really in the record before this Court because it comes on before this Court on the pleadings in an affidavit.

So let’s assume that — well perhaps I should put it to you this way.

Is it your position that standing alone, the fact that during an organizing campaign, they signed a membership application to join and were accepted in the membership?

Is it your position that standing alone, that brings you within the proviso of 14 (a) as employees for the purpose of any law relating to collective bargaining?

Ralph M. Stockton, Jr.:

Well if You Honor please, I would hate to restrict it that closely but I think that’s what —

I know, I ask you whether standing alone you would take that position.

Ralph M. Stockton, Jr.:

I would take that position and I think that’s what the Supreme Court of North Carolina has said because of the overriding legislative intent to discourage unionization of supervisors, clearly evidenced at the time of the enactment of the 1947 Amendments —

May I ask a few facts about whether or not an employer could be or would be under the law in the National Labor Relations Act upheld bargaining with a bargaining agent you had supervisors as members.

Now, let’s assume that — let’s assume that this union won the election and I submit that it was — other things being influenced with the bargaining agent, now the employer says I will refuse the bargain with you because you have some of my supervisors as members.

What’s the — if the lawyer — is the employer excuse —

Ralph M. Stockton, Jr.:

I am very much afraid the employer might have to bargain with that union.

I don’t know the answer, Your Honor.

Well, don’t you think that’s the answer to the question bears somewhat on the issue in this case?

Ralph M. Stockton, Jr.:

It may and it again indicates the fact that state court action here is becoming intermeddled in a field which should be preempted to the Federal Courts.

Well, you wouldn’t be making this argument that the supervisors have joined the union of their own and they never ask for any bargaining rights?

Ralph M. Stockton, Jr.:

And then were fired?

Yes, sir Your Honor.

Because the —

For the same reason?

Ralph M. Stockton, Jr.:

Well, possibly for all the reasons I think the — there is no more conflict where they joined they rank and file union, no question about that Your Honor.

You say the proviso in 14 (a) gives you any comfort in that respect because the supervisor said we have no collective bargaining.

We do not bargain with you at all.

We are sort of involved.

Ralph M. Stockton, Jr.:

I think 14 (a) would be more of a problem in that situation but here they joined in the rank and file union, along to by the other employees of the same employer.

Where and the union itself is a collective bargaining — in the business of collective bargaining?

Ralph M. Stockton, Jr.:

That’s correct.

Do you say Mr. Stockton that when these three supervisors went to the union and asked the union to file a complaint with the Labor Board for this conduct that that was engaging in union activity to ask the union to represent them?

Ralph M. Stockton, Jr.:

I hadn’t thought of that Your Honor.

I suppose that could be argued.

They did go to the union.

The union filed a complaint for them.

They are — it is union activity in a common sense respect I think if Your Honor please without any question.

And I think we could take that position of —

Thurgood Marshall:

But in this record do you have anything other than the fact that joined.

Do you have anything else in that do you?

Ralph M. Stockton, Jr.:

No sir, on the record.

Thurgood Marshall:

Well that’s all we have for —

Ralph M. Stockton, Jr.:

That is correct.

The case came on a motion on the pleadings and the record is — the allegation that they were fired because they joined the union which we moved to dismiss as not stating a claim upon which relief could be granted.

Thurgood Marshall:

They could have resigned from the union the next day so far as we know.

Ralph M. Stockton, Jr.:

Well that’s the record insofar as the case is before this Court if Your Honor please in the procedural manner in which it came here was the only way that could be actually.

Warren E. Burger:

I’m not sure I got fully your response to the posture of the business of the supervisors in case of a strike.

What about the picket line?

If they crossed that they’d be fired from the union probably, wouldn’t they?

Ralph M. Stockton, Jr.:

If they cross the picket line, yes sir Your Honor.

Warren E. Burger:

And if — or and they might be subject to penalties from the union if the union provided for the less — as they generally do.

Do you say that’s a conflict with the employer’s interest to have a supervisor who is in that position?

Ralph M. Stockton, Jr.:

That’s correct Your Honor and the Congress throughout the hearing is on these statute referred to the conflict, the right to have a loyal supervisor.

The possible conflict on the other side of the domination of the supervisor over the rank and file in a mixed union, and the situation here would be —

William H. Rehnquist:

14 (a).

The first part of proviso says, nothing herein shall prohibit any individual employee employed as a supervisor from becoming or remembering or remaining a member of a labor organization, so that bridge has been crossed by Congress, this conflict business by blowing into a labor organization.

Ralph M. Stockton, Jr.:

Well if Your Honor please, the other part is the most important and these hearings, the reports of the hearings make it very clear that the supervisors do not need to be treated as employees. And that —

William H. Rehnquist:

Don’t have to be bargained with?

Ralph M. Stockton, Jr.:

That’s right but that they don’t have any longer the right to join a union which is protected by the National Labor Relations Act.

They’re out there, they restored to their rights before the Wagner Act according as to what Senator Taft says and —

William H. Rehnquist:

How can you say that in view of the first section of 14 (a) that says, nothing herein shall prohibit any individual employed as a supervisor from becoming a member of a labor organization?

Ralph M. Stockton, Jr.:

The legislative history says that Your Honor and some of the cases say —

William H. Rehnquist:

Well, but if there’s a conflict between the language of the statute and the legislative history which do you take?

Ralph M. Stockton, Jr.:

Here’s the point, there’s nothing to keep and it’s said in here.

In some of the cases too not from this Court but from Federal Court, nothing keeps a supervisor from joining the union.

But in the interest of the balance of power and maintaining a loyal supervisor personnel, nothing keeps the employer for firing him for union activity, for joining a union outside.

William H. Rehnquist:

And then you say he can be fired simply for joining a union?

Ralph M. Stockton, Jr.:

I think we have to say it on this case on the record.

Well, that’s it — said he want to service you and that really means according to you that the labor law, the federal statute guarantees to the employer the right to fire any supervisor who joins the union?

Ralph M. Stockton, Jr.:

Well —

Now that is pretty hard to take, isn’t it in the view of the first sentence of 14 (a) that says nothing herein shall interfere with the right of supervisor to join?

Ralph M. Stockton, Jr.:

No, sir.

I don’t think it is taking in context with the entire statement and taking in context with — that is the entire statement in 14 (a) that the supervisor does not have to treat him as an employee under the Act.

He’s got a right to join the union but the employer on the other side has got the right to treat him not as an employee at all.

He doesn’t have the protection of the Act.

Not to be fired without — fired for a union activity.

That maybe so.

But what you’re saying is that the federal law also prevents a state from giving the supervisor some protection.

And in order to do that, you have to say that the labor law guarantees the employer the right to fire.

Ralph M. Stockton, Jr.:

No, I would not go that far.

Well, then how do you preempt state law?

Ralph M. Stockton, Jr.:

Well you preempt state law simply because of the conflict created between the state and the federal for example.

I take unless the federal law guarantees the right to fire.

The state says, you don’t have the right to fire.

If you fire you are going to be sued for damage, you maybe sued for damages.

Ralph M. Stockton, Jr.:

The federal says though, you don’t have to treat him, supervisor employee —

Put it in any words you wanted.

Ralph M. Stockton, Jr.:

— as an employee.

Put it in any words you wanted.

You are saying the federal statute guarantees the employer the right to fire as against any contrary provision of the state.

Ralph M. Stockton, Jr.:

No sir, I’m saying that the state law is preempted in this particular field and that to create a right of action, civil damage right of action would create all the problems that Congress has talked about in the legislative history and that I say that a lot of part of 14 (a) is in that to provide against.

For example, in this particular case, the employer would be subject to the federal law as to employees, the state law as to supervisors.

The supervisors would be subject to state law and the employees would be subject to federal law.

So that you would have the resulting absolute conflict between federal and state law in situations in which Congress has indicated and this Court has indicated.

There should be some uniform approach at federal labor policy and we say that under the previous cases, Hanna Mining is the opposite of this case and I think I got into that for a moment.

Hanna Mining through that Court of Appeals are because they took the position that supervisors where involved so Hanna Mining says no preemption of the state so that’s what we hope, Hanna Mining did not hope well as I attempted to explain a few minutes ago.

Our position is if it please the Court that under the federal statutes, under the underlying purpose of a uniform approach, federal labor policy under the cases on preemption of this Court that the Supreme Court of North Carolina is correct and that the state is preempted from applying this particular statute as to supervisors in a state court damage action.

Thank you.

Warren E. Burger:

Thank you.

Mr. Eubanks, do you have anything further?

Let me begin by putting a question to you.

Warren E. Burger:

Suppose the supervisors at the time the organization activity began, went around to the employees with cards asking employees to sign.

Larry L. Eubanks:

I think they are engaging in union activity and that would be in subordination in the interest of the employer and they could be terminated.

Warren E. Burger:

Let’s take it one step per move, suppose the supervisors just go around with the union business agent, stand there and say nothing while they are soliciting.

Larry L. Eubanks:

Your Honor, I think that would be a closer question but I still think it would be giving comfort to the enemy to some extent.

[Voice Overlap] And I think the employer is entitled to believe that his supervision would not participate in such conduct but the employer owes an obligation if I may continue to explain this answer.

Owes an obligation to his, what they sometime later learn to be supervisors to explain to the supervisors that, look if we have a union campaign you are a supervisor.

You see in this particular case, you got to remember that these three individuals, they just walked up just by some guy said, “Here, sign this card” and they said “okay,” they signed it then they have a hearing on the election petition and they are found to be supervisors and that’s all the evidence.

No evidence of anything else.

They don’t vote in election and the day after the election they get fired.

Warren E. Burger:

I take it that you concede that any activity which could be regarded as aiding and assisting the union campaign would be grounds for dismissal.

Larry L. Eubanks:

Your Honor, I think that counts in an appropriate factual context.

I agree.

But I do believe that an employer — a person in a supervisory position is not anymore entitled or any less entitled to look after his own interests then or if people get paid by hour, I don’t see any distinction.

Warren E. Burger:

Well, then the remedy there is to join a union of supervisors, isn’t it?

Larry L. Eubanks:

No, sir because you got to remember.

Not necessarily you see, the factual context in which this always comes up, would generally mean where an employee is promoted up into the supervisory class and being a member as an employee would accumulate certain retirement program benefits and all that sort of thing, and if he casts his membership in a union, he is going to lose his retirement program or whatever it might be.

Warren E. Burger:

Well that’s not our case —

Larry L. Eubanks:

No but —

Warren E. Burger:

— right here, isn’t it?

Larry L. Eubanks:

No, but the reason I make in this point to the Court is that if at that point he has got to quit or be fired or leave the union, he is put in the situation of having to give up.

Warren E. Burger:

Well don’t we have an unresolved, possibly, an unresolved factual question here namely whether the conduct of these supervisors in whatever they may have done, signing the card and talking to people, whatever, whether that constituted aiding and assisting the union’s organization campaign.

Larry L. Eubanks:

I play the Court rule exactly that.

Your Honor, I think that that’s the whole point that the Superior Court be asked and the Supreme Court be asked. We want an opportunity to try this case on these merits.

If it proven and before jury or before the court that these three plaintiffs did in fact sponsor the union, went out and got people to sign card.

Travel around with the union organizer or did any of those things that he in any rights no matter knows it’s not in the best interest of the employer.

If it provide, he knows he is a supervisor, then I think that he has got grounds to fire man because the man should owe the employer some loyalty.

But I don’t — I think in the status of this case right now you got a situation where three individuals all they did was sign this card and I think people have a right to do that sort of thing.

I submit to the Court to the constitution in the law and this common sense gives us the right to do that.

I think —

Mr. Eubanks.

Larry L. Eubanks:

Yes, sir.

Suppose the Vice President in charge of personnel joined the union to which the majority of his employees also belonged and which was the collective bargaining agency for the company.

But also assume that this Vice President said of course, I am not going to take any part in negotiating with the union.

Under your submission would the company be entitled to discharge him?

Larry L. Eubanks:

Yes, sir.

Why?

Larry L. Eubanks:

I believe the employer would be entitled at that point to refuse to bargain with the union.

So long as they kept that individual member of the union which represents the rank and file, I have no problem with that.

I assume that he took no part in the bargaining.

He said, “I am not going to have anything to do that.

My duties relate to the personnel of this plant.

Some body else can bargain.”

Larry L. Eubanks:

I have no doubt that the employer would have every right at that point to refuse the bargaining with the union.

I think that’s exactly what 14 (a) says.

Suppose he was Executive Vice President —

Larry L. Eubanks:

I don’t care.

— and had nothing to do with personnel.

Larry L. Eubanks:

I don’t believe it would matter You Honor if he were President subject to the President making their life’s decision in the company.

Wait a minute, I don’t understand you.

The Executive Vice President could not be discharged if he belonged to the union?

Larry L. Eubanks:

No, Your Honor.

I don’t contend, as I understood the question if that was what could the — what rights did the company have at that point.

I think the company could say, look to the supervisor as the case might be.

I believe that your interest in belonging to the union of the rank and file gave me grounds to not recognize this union and bargain with it from our rank and files.

And I think 14 (a) clearly says, insofar as the right of being discharged, if the evidence says that all he did was join, Your Honor, I submit to the Court that they would have to say to him more then or prove more than the fact that he just — like these men did sign the cards. I believe it takes more than that.

Because I believe people got a right to do that.

You don’t think that North Carolina Statute applies the biblical injunction against saving two masters?

Larry L. Eubanks:

Your Honor, I certainly do not.

I certainly submit to this Court and to you, Your Honor that there is hardly an organizational situation where there is organized labor in this, in the state I am from North Carolina, or in any other state which — at which supervisors are not members of a union, one or more and in any sized company.

Not necessary to get bargaining right or anything like that because they came up through the work.

Larry L. Eubanks:

Yes.

I don’t agree that being a member of a union is inimical to being loyal to my employer.

I thank you very much.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.