Boys Markets, Inc. v. Retail Clerks Union, Local 770

PETITIONER:Boys Markets, Inc.
RESPONDENT:Retail Clerks Union, Local 770
LOCATION:United States District Court for the Central District of California

DOCKET NO.: 768
DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 398 US 235 (1970)
ARGUED: Apr 21, 1970 / Apr 22, 1970
DECIDED: Jun 01, 1970

Facts of the case

Question

  • Oral Argument – April 22, 1970 (Part 2)
  • Audio Transcription for Oral Argument – April 22, 1970 (Part 2) in Boys Markets, Inc. v. Retail Clerks Union, Local 770

    Audio Transcription for Oral Argument – April 21, 1970 (Part 1) in Boys Markets, Inc. v. Retail Clerks Union, Local 770

    Warren E. Burger:

    Next case on for argument is Number 768, Boys Market against Retail Clerks Union.

    Mr. McLaughlin, you may proceed whenever you’re ready.

    Joseph M. Mclaughlin:

    Mr. Chief Justice, may it please the Court.

    This case presents an issue which this Court faced eight years ago in Sinclair Refining Company versus Atkinson.

    The question is again here today as well as an additional questionnaire to the — was not present in Sinclair.

    The issue basically is whether federal courts have jurisdiction under Section 301 of the Labor Management Relations Act of 1947 to enjoin strikes and work stoppages by labor organizations in violation of their promises contained in their labor agreements not to engage in strikes or work stoppages during the term of the labor agreement and to submit such disputes to arbitration.

    This involves the question as to whether the Norris-LaGuardia Act should be accommodated to Section 301 and held not to bar the issuance of injunctions against strikes in breach or promise to arbitrate and not to strike.

    So the continuing validity of this Court’s decision in Sinclair is squarely at issue here today.

    Also, there’s a subsidiary question and that relates to the continued vitality of state court injunctions in the federal court after removal under Avco, that is assuming that this Court finds that Sinclair was rightly decided.

    The factual background is simple, the petitioner and the respondent, at all times material hereto, were parties to a collective bargaining agreement.

    On that agreement provided in pertinent parts that all disputes involving in any way the interpretation and application of the agreement shall be submitted to arbitration.

    It further contained a specific agreement that there would be no strikes, cessations of work, picketing, boycotts or lockouts during the term of the contract.

    It contained yet another specific provision namely that matters subject to the arbitration procedure should be settled and resolved by that established procedure.

    The employer operates a chain of some 35 supermarkets.

    On a particular day in 1969, the employer was utilizing some non-union — some non-bargaining unit personnel to stock a frozen food case.

    A union business agent observed this and objected, demanded that the employer cease.

    The employer believing that he was not in violation of the contract refused.

    The union called a strike.

    All the employees left the store.

    Picketing commenced.

    The customers were told that the store has closed.

    There is no service.

    Pickets carried signs saying, “Local 770, this store on strike, please respect our picket lines.”

    The employer demanded arbitration.

    The union refused and continued to picket.

    The employer went to the Superior Court, County of Los Angeles and obtained a temporary restraining order and also an order to show cause by preliminary injunction was issued.

    Now in connection with this state court procedure, union counsel was notified as provided by local court rule after argument in chambers in consideration of the verified complaints, the affidavits and the likes, the order was issued.

    Now the temporary restraining order enjoined the work stoppage.

    The union responded promptly by removing the case to the federal court and in the federal court filed a motion to dissolve the temporary restraining order.

    In opposition, the employer filed in the federal court a motion for an order compelling arbitration for an order requiring specific performance of the agreement to arbitrate and application for a preliminary injunction against the strike.

    Joseph M. Mclaughlin:

    Now the district judge was well aware of Avco and was well aware of this Court’s decision in Sinclair.

    And after consideration of the arguments of the parties in the various documents submitted, he denied the union’s motion to quash the state court injunction.

    He granted the employer’s motion for an order compelling arbitration in enjoining the work stoppage.

    The union appealed to the Ninth Circuit Court of Appeals which reversed the District Court on the ground of Sinclair.

    Now Your Honors, the underlying premise of the trilogy in Lincoln Mills of the law which this Court has developed under Section 301 is that arbitration is the most favorable solution, the most feasible solution to industrial warfare.

    Adjudication on the merits is to be substituted for muscle.

    This Court has said that the no strike agreement is the quid pro quo for the employer’s agreement to arbitrate.

    Now, if unions are free to strike and the employer is bound to arbitrate, this does not only mean that the employer doesn’t receive his bargain, the benefit of this bargain which is really about the only thing an employer gets from a labor agreement but also most serious imbalance results.

    This Court has said that arbitration is the kingpin of the federal labor policy under Section 301.

    Well, the kingpin is destroyed by the strike in breach of contract where the union is obligated to arbitrate the underlying union.

    Warren E. Burger:

    Are you asking us to overrule the Sinclair case?

    Joseph M. Mclaughlin:

    Yes, Your Honor, I am.

    Warren E. Burger:

    When was it decided?

    Joseph M. Mclaughlin:

    1962 Your Honor.

    Warren E. Burger:

    Is to statutory decision?

    Joseph M. Mclaughlin:

    Your Honor it was a decision of the — decision of this Court.

    Warren E. Burger:

    Is it based on a statute?

    Joseph M. Mclaughlin:

    Yes, sir.

    Warren E. Burger:

    Nothing but a statute.

    Has it been presented in Congress to change it?

    Joseph M. Mclaughlin:

    Well, Your Honor in Sinclair, this Court —

    Warren E. Burger:

    You try — you’re trying to get the — a dissent in that case of 1962, reinstated as the law today under the statute.

    Joseph M. Mclaughlin:

    That’s correct sir, yes because I believe the dissent was correct.

    The decision of 1962 is simply out of harmony with the congressional policy which this Court has found in Section 301 that is that the federal courts under Section 301 are to develop a body of federal labor law.

    And as I’m pointing out before, arbitration has been declared to be the kingpin of that policy.

    Now the objection at the Norris-LaGuardia Act forbids what almost every commentator what agrees is necessary and desirable is simply not sound because you can adopt, you can accommodate Section 301, Norris-LaGuardia Act so as to give the fullest possible effect to the central purpose of those statutes.

    The courts done this before, it’s done in — on the field of antitrust.

    Justice Frankfurter writing for the court accommodated Norris-LaGuardia to the antitrust laws and the Hutcheson case.

    In Chicago River, this Court accommodated Section 301 with the Railway Labor Act and I submit that in Lincoln Mills this Court likewise accommodated the Norris-LaGuardia Act with Section 301.

    Warren E. Burger:

    Have you filed or joined and then request to Congress to change this statute —

    Joseph M. Mclaughlin:

    I’m sorry Mr. —

    Warren E. Burger:

    — as it was construed?

    Joseph M. Mclaughlin:

    I’m sorry Mr. Justice, I didn’t hear you?

    Have you joined and then request to Congress to change this statute as we construed it?

    Joseph M. Mclaughlin:

    No, Your Honor neither —

    Warren E. Burger:

    That (Inaudible) eight years ago?

    Joseph M. Mclaughlin:

    Neither I nor anyone I represent has opposed the Congress on this matter sir.

    Now, no viable distinction, it seems to me at least can be made between the accommodation of Chicago River and the failure to accommodate in Sinclair with Section 301.

    The only distinction is that in Chicago River the arbitrator was a National Railroad Adjustment Board.

    And here under Taft-Hartley Section 301, it’s an arbitrator who was selected through the contractually agreed upon procedures.

    I respectfully submit that the question that was asked or the question rather that was stated in the Court’s opinion in Sinclair was the wrong question.

    The opinion of the court starts off stating the question as being whether Section 301 and I believe the phrase used is “impliedly repealed” Section 4 of the Norris-LaGuardia Act.

    I think the answer to that is obviously no.

    I think the proper question, I would respectfully suggest, is a question as to whether the statute should be accommodated to each other and I think the answer there is just as obvious and its yes.

    Now, the legislative history of Section 301 —

    Byron R. White:

    I suppose that you would say that as a threshold matter before a court could issue the injunction to enforce the no-strike clause, you would — the court would have to pass on the arbitrability of the dispute.

    Joseph M. Mclaughlin:

    Well, obviously Your Honor and as this Court has pointed out it is the function of the court to determine arbitrability.

    Byron R. White:

    And pass on the scope of the no-strike clause?

    Joseph M. Mclaughlin:

    That would — that’s undoubtedly the case because, Your Honor —

    Byron R. White:

    Well, are any exceptions to it and things like that?

    Joseph M. Mclaughlin:

    I can’t think of any at the moment Your Honor, there would —

    Byron R. White:

    And then about an unfair labor practice strike, I suppose —

    Joseph M. Mclaughlin:

    Well, in unfair labor practice strike of course that’s something else the court —

    Byron R. White:

    So the courts going to end up to be doing a lot of arbitrators work just to get to the injunction question, aren’t they?

    Joseph M. Mclaughlin:

    I don’t think so, Your Honor because unless an agreement specifically confides the question arbitrability to the arbitrator.

    It is the court’s function to determine arbitrability.

    Now, in determining arbitrability, you have to interpret the scope of the arbitration clause and it’s not unusual on contracts for matters to be accepted from the scope of the arbitration clause.

    Now likewise with respect to a no-strike clause, it seems —

    Byron R. White:

    Is this contract still that — I mean, which this dispute arose still in effect?

    Joseph M. Mclaughlin:

    This particular contract expired was replaced after a strike by a successor contract.

    Joseph M. Mclaughlin:

    The language of this section and the language of the contract which relates to and which would have anything with the issues before this Court are identical.

    They haven’t been changed they are enforced in effect.

    Byron R. White:

    And the — no one has to know — nobody has to determine whether or not there is any contract about the — about this?

    Joseph M. Mclaughlin:

    No, there’s no — there is no issue in this case at all and union counsel for example will not deny one that there was a labor agreement at certain points to the language of the no-strike clause.

    If you’re — as is clear as language can possibly be and it would be extremely —

    Byron R. White:

    And the dispute was arbitrable?

    Joseph M. Mclaughlin:

    Yes, sir.

    Warren E. Burger:

    Now, to get it in focus, what would happen if the employer locked out the employees and the union wanted to grant a remedy what are their alternatives, what are their remedies?

    Joseph M. Mclaughlin:

    Under this contract and under similar contracts, if the union business agent had come in the store and he had said, “You’re improperly stocking the frozen food cases, it’s a violation.”

    And the employer had said it is not and you better forget about it and then the union business agent refused to it, and then the employer lock the people out or something like that.

    Then the union could have gone to court under this contract and under the law as I think it is and should be, could have gone to court and could have obtained a restraining order against the employer.

    In fact, I would stipulate —

    Warren E. Burger:

    But now, doesn’t Norris-LaGuardia forbid injunctions against both employers and unions?

    Joseph M. Mclaughlin:

    It most certainly does sir but I don’t that Norris-LaGuardia forbids —

    Warren E. Burger:

    Well, you — I know your argument here that it doesn’t but what is the present state of the law under Sinclair?

    Joseph M. Mclaughlin:

    Oh, under Sin —

    Warren E. Burger:

    Under Sinclair, could the employer — could the union get an injunction against the employer?

    Joseph M. Mclaughlin:

    No, sir.

    Warren E. Burger:

    So that at least as of now, under Sinclair both the employer and the — and union are in the same posture?

    Joseph M. Mclaughlin:

    Well, they’re in the same posture with respect to getting the injunction but they’re not in the same posture with respect to the objectives of arbitration and with respect to what the real meaning of the situation.

    Warren E. Burger:

    Well, let me strip it away then.

    Are they in the same posture in terms of the enforceability of the no-strike clause or the no-lockout clause?

    Joseph M. Mclaughlin:

    Legally speaking in terms of their right to access to the court or lack of right, they are the in same position, yes, sir.

    Warren E. Burger:

    So that if we overrule Sinclair, you’d put them again in the same posture but that they’d both have access, each would have access to the injunctive power of the courts to compel arbitration?

    Joseph M. Mclaughlin:

    Absolutely, Your Honor.

    Would that have been true when Sinclair was argued and —

    Joseph M. Mclaughlin:

    Yes sir, I believe so.

    As I to start to say the legislative history of this statute doesn’t indicate the congressional disapproval of this accommodation that we’re suggesting here today.

    In Sinclair this Court read more into that legislative history than it can properly bear.

    Justice Frankfurter and his dissent in Lincoln Mills I believe said that the legislative history of Section 301 leaves us in the dark.

    Joseph M. Mclaughlin:

    In Lincoln Mills, the majority opinion of this Court said that the legislative history of Section 301 was cloudy and confusing.

    One thing, Lincoln Mills did said about that legislative history though was that Congress interested in promoting collective bargaining that ended with the agreements not to strike.

    Now, if Congress was interested in promoting collective bargaining that ended with agreements not to strike, the enforcement of those agreement or the enforcement of those agreements must be provided for so as to make them meaningful because one thing Congress obviously wasn’t doing, it obviously wasn’t engaging in an idle exercise to encourage people to make agreements which were meaningless in practical effect.

    If arbitration is going to work, the federal scheme must permit the effectuation of labor policy in the field of arbitration by means of the injunction against the strike and breach of contract.

    Now, it’s been suggested that this is not necessary.

    It’s been suggested that there are other and alternative ways to handle this problem.

    For example, the remedy of damages has been suggested.

    Well, damages as a remedy against a union, Your Honors, if I can bring 15 years of intimate experience about it to bear, damages against a union with whom a — an employer has a collective bargaining relationship are meaningless.

    Why don’t you — how about arbitrating and then enforcing the award?

    Joseph M. Mclaughlin:

    Well, first of all, to arbitrate in the face of a strike is difficult.

    Secondly, a strike defeats the arbitrator’s jurisdiction.

    And thirdly, —

    It what?

    Joseph M. Mclaughlin:

    A strike.

    Oh, you wouldn’t say the arbitrator didn’t have jurisdiction —

    Joseph M. Mclaughlin:

    Well, jurisdiction Your Honor in the sense that the — his ability to consider the matter on the merits to adjudicate the thing sanely and in a civilize fashion is defeated because, Your Honor, the employer in this case over who was right.

    Well, the fact remains you could arbitrate, could you?

    Joseph M. Mclaughlin:

    Pardon, sir?

    The fact remains you could arbitrate your dispute?

    Joseph M. Mclaughlin:

    Oh, yes but in this case for example, if —

    Warren E. Burger:

    But you could arbitrate it, if I may interrupt you, you could arbitrate if both parties agreed to arbitrate —

    Joseph M. Mclaughlin:

    That’s right.

    Warren E. Burger:

    — except, otherwise.

    Joseph M. Mclaughlin:

    That’s another point.

    If —

    Warren E. Burger:

    Well, if you could get an order to arbitrate?

    Joseph M. Mclaughlin:

    Well, but only — that’s my point; we should be able to get an order to arbitrate.

    Byron R. White:

    Or you could get an order to arbitrate, —

    Joseph M. Mclaughlin:

    Yes.

    But at the same time —

    Byron R. White:

    And you — then you can arbitrate and you can enforce the award?

    Joseph M. Mclaughlin:

    Alright.

    Byron R. White:

    I take it the — your opponents can or am I wrong, do they — don’t they concede that a court could issue an order enforcing an arbitration award?

    Joseph M. Mclaughlin:

    Well, —

    Byron R. White:

    Without violating Norris-LaGuardia?

    Joseph M. Mclaughlin:

    I don’t know what their position would be with respect to that.

    I have three comments that I would like to make.

    First, with respect what would’ve happen here, the dispute involved the propriety of the way a frozen food case was being stocked or rather a large frozen food case but nevertheless that.

    Now, the collective bargainingship — relationship or the collective-bargaining relationship with these parties is made up of hundreds and thousands of disputes like this over the years.

    Now, if the employer in this case had to wait while somebody got an order to arbitrate and then had arbitration hearing and then came back with an order and that leaves still unanswered Your Honor the question of the courts ability to specifically enforce the award of the arbitrator.

    That’s a question that came up in New Orleans Steamship and the Philadelphia Marine.

    In any event, my employer in this case, it isn’t worth it.

    He’s loss the benefit of his bargain.

    He can’t have a store shutdown with the enormous overhead of a modern supermarket for a period of two or three months while an arbitrator decides a dispute.

    It has defeated the jurisdiction of the arbitrator.

    Byron R. White:

    Well, let’s take another situation, suppose an employer discharges an employee and the union goes on a strike, do you think that you should be able to enjoin the strike while the union arbitrates?

    Joseph M. Mclaughlin:

    Absolutely and the reason for that Your Honor is that the —

    Byron R. White:

    Well, don’t you think that — what do you think about putting the man back to work while you’re arbitrating?

    Joseph M. Mclaughlin:

    Well, the point is that this things —

    You don’t do that do you?

    Joseph M. Mclaughlin:

    No sir, we do not and I do not think we should have to.

    Now I’d be glad to explain why, if I may.

    The reason is this, is that when the arbitrator renders his award and he says for example that that the employee was wrongly discharged that employee can be made whole because he is awarded reinstatement, he is awarded back pay.

    Whatever happened can be quite readily remedied.

    Now a strike in breach of contract is something of an entirely different order.

    It’s not the same thing at all.

    And so that’s why Your Honor I don’t think that there’s — an inequality as Your Honor at least to me seem to be suggesting.

    Could I ask you a question, its perhaps drawing more on your own experience, what would say was a fair estimate of what impact Sinclair has had during the eight years of the union management relations, is that a question that you can draw any light on?

    Joseph M. Mclaughlin:

    I can throw some light on it from my own experience.

    I personally do not think that at least in the areas where I have practiced that Sinclair itself has had much in effect at all until Avco came along.

    Joseph M. Mclaughlin:

    But you see, that was because for example in the southern district of California which is now the central in the south district, the courts there refused to accept removed cases from the superior court.

    Now, the gimmick in combination, Sinclair and Avco, you see, we removed the case from the superior court and the anomaly of that is and Congress could never have intended this, that an employer actually ends up with lesser means of effectuating his rights under the contract than he had before Section 301 and this I — I’m — I don’t think anyone could say they were intended.

    Warren E. Burger:

    May I ask you one question?

    Is there any difference in circumstances or conditions with reference to this case, now and eight years ago when its decided except that the members of the court have changed and that the personnel is different by —

    Joseph M. Mclaughlin:

    Well, Your Honor I think a number a things have happened to change it.

    For example, first of all as I made it plain, I think the decision was wrong and if it was — if I’m correct sir I may respectfully suggest if it was wrong then, it’s likely to be just as wrong today.

    Secondly, if I may say so with —

    Warren E. Burger:

    Is it any more wrong now than it was then?

    Joseph M. Mclaughlin:

    I believe it is because of Avco.

    You see —

    Warren E. Burger:

    Because of what?

    Joseph M. Mclaughlin:

    Because of this Court’s decision in Avco.

    You see previously as it —

    Warren E. Burger:

    In which case?

    Joseph M. Mclaughlin:

    In the Avco case, Your Honor.

    It was concerning the right of removal from state courts to federal courts of Section 301 actions.

    See, what actually happened was and this is the other anomaly if I may say so.

    That here we have a situation where I suppose that, Your Honors don’t agree with me and that Sinclair remains with continued vitality and then you put it together with Avco then we come up with this next question.

    Alright, then we have to decide or rather this Court has to decide what effect does Norris-LaGuardia have on state courts.

    What is the effect upon an injunction issued by a state court after it’s been removed to the federal court?

    Does Norris-LaGuardia command that order be dissolved?

    If not then the anomalous situation arises of having Section 301 under which the federal court system was to create a body of federal law of having results that have forced plaintiffs into state courts where state courts would do the body of 301 business under Section 301.

    And then the other side of it if you say, “Well, Norris-LaGuardia will require those injunctions to be dissolved.”

    As I’ve said before, an employer has less ways of effectuating his agreement than he had before 301, that’s not right.

    And then thirdly, if you say, “Well, state courts are bound by Norris-LaGuardia.”

    And we know we can’t say that from Norris-LaGuardia.

    We would have to import through an interpretation of Section 301.

    Warren E. Burger:

    What year was Avco decided?

    Joseph M. Mclaughlin:

    Avco, I believe was 1969 or 1968, Your Honor.

    It’s a rather recent case.

    Warren E. Burger:

    But you — did I understand you to say that Sinclair created no particular problems of consequence until —

    Joseph M. Mclaughlin:

    Oh, I think Sin —

    Warren E. Burger:

    — it was combined with Avco?

    Joseph M. Mclaughlin:

    I think Sinclair probably created or gave rise to serious problems of difficulties.

    For example in the District of Columbia or in states —

    Warren E. Burger:

    Where you have no state courts?

    Joseph M. Mclaughlin:

    Yes or in states where they have anti-injunction acts that might have been interpreted to not give this relief.

    I didn’t mean to say sir that Sinclair had not given rise to difficulties.

    What I meant to say was that whatever difficulties Sinclair gave rise to, they have been terrifically increased with the decision in Avco.

    Hugo L. Black:

    May I ask you — I understand your strong feeling on this, mostly misinterpreted and we misinterpret in the will of Congress but has Congress yet made any complaint about it?

    Joseph M. Mclaughlin:

    Well, to my knowledge sir I don’t think that Congress has passed any resolutions or enacted any statutes that would indicate a complaint however —

    Hugo L. Black:

    Don’t you think that might be the best place to go for people who feel that the will of Congress has been perverted?

    Joseph M. Mclaughlin:

    Well, Your Honor —

    Hugo L. Black:

    On statutory matter?

    Joseph M. Mclaughlin:

    This Court has interpreted statutes in various ways.

    For example, if you take a look at the legislative history of Lincoln Mills as you most certainly have, not Lincoln Mills of Section 301, we find in there practically no mention of arbitration.

    Now what I think happened here is likewise —

    Hugo L. Black:

    Well, why do you find it there if it’s not in the Act?

    Joseph M. Mclaughlin:

    Well, I think the court in interpreting the statute found it.

    Hugo L. Black:

    You think the court added it to the statute?

    Joseph M. Mclaughlin:

    No sir, I did not say that.

    I said, “In interpreting the statute the court found it.”

    But what I’m saying is that in the legislative history of that statute, you don’t find very much and also in looking at the wording of 301, you don’t find too much.

    Now, my point —

    Hugo L. Black:

    Now what do you think about this position of the court on cases where you decide nothing but statutory question changing from time to time not according to change conditions but because you changed the membership of the court?

    Joseph M. Mclaughlin:

    Well, sir I don’t know and I can’t agree that that’s correct, that is if your assumptions are correct.

    Hugo L. Black:

    What?

    Joseph M. Mclaughlin:

    Mr. — what — Mr. Justice Black, I’m saying, I can’t agree that there would be a change simply because the composition of the court has changed?

    Hugo L. Black:

    Well, wouldn’t that be it if there are no differences?

    Joseph M. Mclaughlin:

    I said Your Honor, I think that it — the same Justices could conceivably have come to the conclusion and this Court has done this before.

    Joseph M. Mclaughlin:

    Come to the conclusion that it did something incorrectly some years ago and rectify it.

    I don’t think there’s anything unusual about that either in the — our legal system in the United States or in the decisions of this Court.

    Hugo L. Black:

    Was not usually done eight years afterwards but sometimes it is (Voice Overlap) —

    Joseph M. Mclaughlin:

    Your Honor it’s been done lately —

    Hugo L. Black:

    (Voice Overlap) those of the statutes just because as the court change.

    Joseph M. Mclaughlin:

    Now another thing that’s been suggested is that discipline is a means of controlling this.

    Sir, you can’t fire your whole warehouse crew.

    I don’t have enough time to dwell on these things.

    Its illusion, it’s a snare.

    Disciplining employees doesn’t do any good because you need them.

    You’re in business to produce goods or to sell goods as the case may be.

    Next, they talk about quickie arbitrations.

    Quickie arbitrations are misnomer, they’re an illusion, the best illustration of that, we covered it in our reply brief, the best illustration of it though is to be found in the New Orleans Steamship case where they had a quickie arbitration procedure, quickie, yes.

    The hearing lasted for four days and the decision didn’t come out until over two months later.

    Now, in summary —

    Hugo L. Black:

    Do I understand that you’re talking against arbitrations now?

    We might have somewhat the same language?

    Joseph M. Mclaughlin:

    No, Your Honor, you don’t understand me or if you do understand me to be saying that you misunderstand me.

    What I’m saying sir is that there has been a suggestion particularly in the brief of AFL-CIO amicus that perhaps a proper substitute would be the negotiation of so-called quickie arbitration provisions and we’ve been at some pains in reply brief to point out why this isn’t so and I was just in my argument passing by and adverting to that fact sir.

    In any event —

    Hugo L. Black:

    Or rather will —

    Joseph M. Mclaughlin:

    Pardon me, sir?

    Hugo L. Black:

    Or rather will be.

    Joseph M. Mclaughlin:

    Sinclair was wrongly decided and as I say, we think it should be reversed.

    And I pointed out what I think or the really the thorny thicket that — I mean this business of really painting the court and the profession and the law into a corner if we continue down this path because of the fact that we now have to decide if Sinclair remains viable, we have to decide what we are going to do about remove state court injunctions.

    We get by that, what are we going to do about the power of state courts to issue injunctions particularly, well for some reason they aren’t removed.

    Now, I would suggest that a proper accommodation of Norris-LaGuardia and Section 301 sanctions the injunction in this case, it’s a vital part of Section 301’s effectuation.

    I would say that the availability of the injunction is far more necessary to Section 301 than it is detrimental to Norris-LaGuardia and therefore its respectfully submitted that the judgment of the Court of Appeals for the Ninth Circuit should be reversed with instructions to affirm the order of the District Court.

    Warren E. Burger:

    You’ll have three minutes left tomorrow morning for rebuttal counsel and we’ll suspend now until tomorrow morning.

    Joseph M. Mclaughlin:

    Thank you.