De Veau v. Braisted

PETITIONER:De Veau
RESPONDENT:Braisted
LOCATION:Approximately half-way between Santa Marta, Colombia and Miami. Florida (by water)

DOCKET NO.: 71
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 363 US 144 (1960)
ARGUED: Mar 01, 1960
DECIDED: Jun 06, 1960

Facts of the case

Question

  • Oral Argument – March 01, 1960 (Part 2)
  • Audio Transcription for Oral Argument – March 01, 1960 (Part 2) in De Veau v. Braisted

    Audio Transcription for Oral Argument – March 01, 1960 (Part 1) in De Veau v. Braisted

    Earl Warren:

    Number 71, George De Veau, appellant versus John M. Braisted, Jr., assistant, as District Attorney of Richmond County.

    Mr. Gleason

    Thomas W. Gleason, Jr.:

    Mr. Chief Justice, may it please the Court.

    This is an appeal from the Court of Appeals of New York.

    The nature of the proceeding was a declaratory judgment.

    It was instituted by the appellant to test the constitutionality of Section 8 for the Waterfront Commission Act.

    The facts in the case are very brief.

    De Veau, some 40 years ago in 1920 while a youth, went joyriding in an automobile valued at $700.

    He was apprehended by the police and later on he pleaded guilty to attempted grand larceny.

    He received a suspended sentence and was placed on probation for five years.

    In 19 —

    William O. Douglas:

    How — how old was he about this?

    Thomas W. Gleason, Jr.:

    He was 19 years of age at the time.

    William O. Douglas:

    And what year was this?

    Thomas W. Gleason, Jr.:

    In 1920.

    In 1926, he went to work on the waterfront and worked there until 1949 when he was elected Secretary-Treasurer of the Local 1346 in the port New York which is affiliated with the International Longshoremen’s Association.

    That election was held by the (Inaudible) Association.

    In 1953, the State of New York legislated Section 8, which prevented anyone who is convicted of a felony to be a union officer.

    In 1953, after the statute was legislated, the De Veau commenced an action in the Southern District Court of New York to test the constitutionality.

    At that time, the Waterfront Commission and the District Attorneys of New York put the position that it did not apply to De Veau.

    And sometime after that, the case of Calabrese and Hazelton was commenced in the State of New Jersey.

    There, the constitutionality of Section 8 was upheld on the grounds that it was — within the police power of the state.

    In 1955, before the decision of Hazelton versus Murray, De Veau again ran for office and was elected by the membership who knew of his past felony and this election was also conducted by the (Inaudible) Association.

    The compact was divided into three parts.

    Part one, does not contain Section 8.

    It sets up the recommendations made to Congress and which the Congress passed on.

    Section 8, is contained at part three, in which Congress did not pass on and therefore did not ratify Section 8.

    We take the position that Section 8 is in conflict with Section 7, in that Section 7 of the National Labor Relations Act pre-empts the States from taking any action as to setting up qualifications.

    We base this on a Hill versus Florida case in which the Court there ruled as I state may not set up qualifications as to union officers or representatives of unions which employees have the right to free choice.

    William O. Douglas:

    Are you talking about the Labor Management Act as it was at the time the Court of Appeals heard argument in this case or as of now?

    Thomas W. Gleason, Jr.:

    This — well, it was — as it was at that time.

    Since that time, the government, Congress has passed the Labor Management Disclosure Act which now sets up qualifications.

    That was passed after the Court of Appeals’ decision and (Inaudible).

    In fact I think, it was after — it was passed after we submitted the jurisdictional statement.

    William O. Douglas:

    Do you rely on the — the disclosure requirements in the Federal Act?

    Thomas W. Gleason, Jr.:

    Yes we do to this extent that it further justifies and shows that Congress there set up qualifications and they specifically spelled out but they still maintain a right of the representatives to have free choice, it’s tremendous do give them their free choice to choose representatives of their own choosing.

    William O. Douglas:

    Under the — under the Federal Disclosure Act, would this man be disqualified?

    Thomas W. Gleason, Jr.:

    No sir.

    He would not.

    William O. Douglas:

    By — by reason of what fact?

    The —

    Thomas W. Gleason, Jr.:

    Well, the fact is that it’s been 40 years since he was convicted of a crime and there the qualification said five years, either of conviction or five years at the — he’s sentenced.

    Earl Warren:

    Was the crime itself when it would disqualify under the Federal Act?

    Thomas W. Gleason, Jr.:

    He was convicted of attempted grand larceny, the access grand larceny.

    Now, I don’t know whether that would be considered grand larceny.

    He was convicted.

    He pleaded guilty at the time and received a suspended sentence.

    Earl Warren:

    When (Inaudible)

    Thomas W. Gleason, Jr.:

    Yes sir.

    Earl Warren:

    They don’t — they didn’t have — he wasn’t charged with the crime of joyriding as — as they have in some States.

    It was — it was attempted grand larceny.

    Thomas W. Gleason, Jr.:

    That’s correct sir and they didn’t have the youth felony act at that time in New York in which I believe they have now in New York and it wouldn’t be consider as a felony in New York.

    William J. Brennan, Jr.:

    Mr. Gleason, I am curious not at all relevant, but is there any effort to bring Hazelton and Murray there?

    Thomas W. Gleason, Jr.:

    Yes sir.

    Hazelton versus Murray was decided on the police power of the state.

    William J. Brennan, Jr.:

    Well, I wrote it.

    Thomas W. Gleason, Jr.:

    Yes sir.

    Earl Warren:

    — the Court.

    Thomas W. Gleason, Jr.:

    And there — there I think you based your decision on the decisions of the Staten Island case (Voice Overlap) —

    William J. Brennan, Jr.:

    No, it was the — was there any effort to have it reviewed in this Court?

    Thomas W. Gleason, Jr.:

    No sir.

    William J. Brennan, Jr.:

    That’s what I was interested?

    Thomas W. Gleason, Jr.:

    No sir.

    William J. Brennan, Jr.:

    So, this is — this case brings this question to us for the first time.

    Thomas W. Gleason, Jr.:

    That’s correct sir.

    The only reason why I think the Hazelton versus Murray case is — is brought into the phrase is the fact that New Jersey has the same statute which — which sets up only they say high misdemeanors over the — and — and Jersey and the fact is that there is some question at Section 8.

    The preemption was raised in the Hazelton versus Murray case.

    William J. Brennan, Jr.:

    And decided.

    Thomas W. Gleason, Jr.:

    Yes sir.

    We take the position also that the Hill versus Florida case explicitly set up rules so that there would be uniformity of — of qualifications for union officers.

    If there was to be any action taken, it was to be taken by Congress as the have done under the Labor Management Disclosure Act.

    Under the — under Section 8, Section 8 does not only take in representatives of New York, but takes in every union official from Maine to Texas.

    This was borne out in the Hogan case of ILA in which Joseph Schilt at that time was an official of the International and he had to relinquish that office.

    Few days after decision, Hogan died of course so he had a heart attack and so we couldn’t go up on that case, but the issue is that they have taken the position that no matter where the felony was committed and no matter where the official comes from as long as he is in New York, he cannot hold office.

    Now, the International office of the ILA is in New York.

    So it becomes broad.

    It — it actually extends its power into these areas and to these other States.

    The law specifically spells out that any felony of any state and we know there are some felonies in some States which are against public policy in New York namely the Crime of (Inaudible) and which would be a hardship.

    The International is made up of 50% of colored and 50% of white.

    So therefore, that would be a going beyond the State’s rights and going into other areas.

    We also believe that this Court has definitely set up in its decision in the San Diego case and stated the law that to have any qualifications set up by any States would definitely do away with the intent of Congress.

    We also take the position, that Section 8 is a violation of a Due Process Clause in that it deprives appellant of his right to work.

    Section 8 is automatic.

    There is no right to hearing, no right to notice.

    It specifically spells out that if a man has been convicted of a crime committed 40 years ago or even 100 years ago, he cannot hold the union office.

    It does not set up any qualifications and it does not take any consideration of whether the crime was committed as a union official or had any reference to as union office.

    The — stately, the Due Process Clause — Due Process Clause includes the right to pursue an occupation and this Court has so held.

    We take the position that the law is an ex post facto and also a bill of attainment in that is an additional punishment without trial.

    The man had no right to hearing and the only purpose of the statute was to punish and to deter others.

    There was no other purpose in the statute and we feel as if for these reasons that it’s unconstitutional.

    Charles E. Whittaker:

    I notice you say an occupation, the fact that he has been convicted (Inaudible) an occupation.

    You don’t mean to say any occupation.

    Thomas W. Gleason, Jr.:

    Yes sir.

    I mean a occupation.

    His right to pursue an occupation of being a union official, he is denied that right, for a crime was committed many years ago.

    Charles E. Whittaker:

    Is it unconstitutional for a state to say that one who has his felony may not licensed to practice law (Inaudible)

    Thomas W. Gleason, Jr.:

    But in New York, they have the — you have the right of a hearing and I believe in New York, you have the right even though you are convicted of a felony to be a lawyer.

    Here, there is no hearing, no notice, no nothing.

    It’s an automatic disbarment from holding office.

    It goes back to the time that the man had actually committed his crime 40 years ago.

    It doesn’t go into the future.

    It only goes into the past.

    It goes future as past actually.

    Charles E. Whittaker:

    I’m trying to understand if you would say the state without power to deprive one who has judge guilty of a felony from occupying at least some positions of trust to officers in the state.

    Thomas W. Gleason, Jr.:

    Well, the state has the right as long as it doesn’t conflict with the Constitution of the United States and the issue is whether or not a man has a right to a hearing and to justify his position especially, when it goes back to past crimes.

    To me, it’s the same position as passing a law for the president of the United States that he could not hold office more than twice.

    It takes effect for everybody in the future, but nobody – it didn’t take effect as far as Mr. Truman was concerned.

    He had a right to continue to run for office again, but this goes back 40 years and since a man who is now employed as a union official and was elected by the membership who knew of his crime and was conducted in an (Inaudible) association, an election.

    He is denied his right automatically.

    There’s no trial, no hearing and nothing, you just disqualify.

    Charles E. Whittaker:

    The election, how often in that union has it existed when he was an officer or the election is held, for what term?

    Thomas W. Gleason, Jr.:

    Five years.

    Charles E. Whittaker:

    Five years.

    Thomas W. Gleason, Jr.:

    Under the new law, it is four years.

    The issue raised by the — by the appellee was that the police powers of the state demanded this and we respectfully like to read from the articles — Article 1 finding in declarations of the Waterfront Commission Compact which was set forth before Congress.

    Section 4 says, “The States of New York and New Jersey hereby find and declare the occupations of longshoreman, stevedores, pier superintendent, hiring agents and port watchman are affected with the public interest requiring their regulation and such regulation shall be deemed and exercised by the police power of the two States for the protection of the public safety, welfare, prosperity, health, peace and living conditions of the people of the state — of the two States.”

    There is nothing in there that says anything about union officials.

    In fact, all through the hearings, congressional hearings, there was no mention of regulating union officials or union officers.

    The only mention was a — a statement submitted by the ILA attorney at that time a prepared statement which said that there was – it would be a conflict with Section 7 and the Hill case.

    This was before the Committee, congressional committee.

    Thomas W. Gleason, Jr.:

    It was not brought to the attention of Congress.

    It was not brought to the attention of the Senate.

    In fact, during the state crime hearings, there was no recommendation that there should be a regulation of union officials.

    William J. Brennan, Jr.:

    Well, Mr. Gleason, the — with this compact, not Section 8, but there was a compact —

    Thomas W. Gleason, Jr.:

    Yes sir.

    William J. Brennan, Jr.:

    — approved by the Congress.

    Thomas W. Gleason, Jr.:

    Yes sir.

    William J. Brennan, Jr.:

    And that compact had appended to it, did it not, the consent of Congress is hereby given to the compact and to the carrying out an effectuation of said compact and enactments in furtherance thereof.

    You attach any significance to that?

    Thomas W. Gleason, Jr.:

    Yes sir.

    That was specifically to spell out the rules and regulations to be — to be employed for longshoremen hiring centers and the rule set up for watchmen and for stevedores.

    William J. Brennan, Jr.:

    Well, wasn’t Section 8 in the statute which was part of an enactment with a counterpart enactment in New Jersey in —

    Thomas W. Gleason, Jr.:

    In that —

    William J. Brennan, Jr.:

    — furtherance of the compact.

    Thomas W. Gleason, Jr.:

    That — that was done separately and had no part of part one.

    In fact —

    William J. Brennan, Jr.:

    I know it was done separately by the legislatures of the two States but were not the statutes of the two States in furtherance of the compact after Congress had approved them?

    Thomas W. Gleason, Jr.:

    Yes, but only in furtherance of the occupations specifically spelled out in the findings and declarations.

    In fact, I — I ran through the legislation of a federal government and a state government and there was no mention anywhere of Section 8.

    William J. Brennan, Jr.:

    Well, is there any — is there any for whatever its worth, and the Congress at least afforded to give here a general approval of an enactments in furtherance of the compact.

    Thomas W. Gleason, Jr.:

    Which was specifically —

    William J. Brennan, Jr.:

    No — no limitation in the language.

    Thomas W. Gleason, Jr.:

    They put in Article 15, they have a limitation.

    William J. Brennan, Jr.:

    Article 15 of the compact?

    Thomas W. Gleason, Jr.:

    Yes sir which is part one and subdivision 2, there says “This compact is not designed and shall not be construed to limit in any way the rights of longshoreman hiring agents, pier superintendents or port — port watchmen or their employers to bargain collectively and agree among any method for this election of such employees by way of seniority experience, regular gangs or otherwise and they specifically spell out there, that they shall have the right to free choice and I think we — we answer that question —

    William J. Brennan, Jr.:

    Well, there’s nothing here but free choice of representatives, (Inaudible)

    Yes, I notice that.

    Thomas W. Gleason, Jr.:

    And subdivision 1, specifically spells that out and says “This compact is not design and shall not be construed to limit in any way, any rights granted for the right from any other statute or any rule of law for employees to organize in labor organizations, to bargain collectively and to act in any way individually, collectively and through labor organizations or other representatives of their own choosing —

    What division?

    Thomas W. Gleason, Jr.:

    — without limiting the generality of a point going nothing contained on this compact shall be construed to limit in any way the right of employees to strike.

    Thomas W. Gleason, Jr.:

    So they have a safeguard spelled out in article — at part one, Article 15 protecting these rights and that came about —

    Earl Warren:

    That language you have read is in the compact?

    Thomas W. Gleason, Jr.:

    Yes sir and that language came about during the state hearings whereby there was some objections raised by the unions that the state was infringing upon the — the rights of labor and they specifically put that in.

    I think we spell that out in a reply brief.

    One of the issues raised on a motion by the appellee was the fact of mootness.

    Sometime in 1957, the Local 1346 was — which was one of four checkers locals in a port merged into Local 1, into one local.

    There, they agreed that all the officers of each local would come in and hold office until 1960.

    They would have the same jurisdiction and have the same area and De Veau was in exactly the same position he is now as he was then.

    His jurisdiction in Staten Island, the crime is the collection of dues which would take place in Staten Island and therefore, he is exactly in the same position.

    I can’t see, in no sense, where the question is moot.

    Hugo L. Black:

    Did you argue this case before the Court of Appeals?

    Thomas W. Gleason, Jr.:

    Yes sir.

    Hugo L. Black:

    Did you mention the Hill case before them?

    Thomas W. Gleason, Jr.:

    Yes sir, we raised the Hill case from the Supreme Court, special time we raised it in the Appellate Division and we raised it in the Court of Appeals and I believe that —

    Hugo L. Black:

    Did they mention it at any — at any place?

    Thomas W. Gleason, Jr.:

    I think the only place that I think it was mentioned was the Appellate Division.

    Hugo L. Black:

    The Court of Appeals, didn’t mention, I see in their original opinion, did they read an opinion on rehearing?

    Thomas W. Gleason, Jr.:

    There was no rehearing.

    Hugo L. Black:

    No rehearing.

    Charles E. Whittaker:

    Mr. Gleason I’m interested on this question of mootness and might I ask you just a question to about it please.

    Is the union local to which petitioner belonged and of which he was an officer at the time of this action in 1957 still in existence?

    Thomas W. Gleason, Jr.:

    Local 1346 as such is not in existence.

    They all merged into Local 1, but all the officers and the members of 1346 became part of Local 1.

    Charles E. Whittaker:

    Now, by contract?

    Thomas W. Gleason, Jr.:

    By agreement.

    Charles E. Whittaker:

    All right.

    I had thought, now maybe I’m wrong about this, that union officers were elected by the members of the union and not appointed by contract of the existing officers, am I wrong about that?

    Thomas W. Gleason, Jr.:

    That’s right, but this was — the membership had passed on the merger.

    They had voted for the merger and this — the officers of the Local 1346 are still officers of the Local 1 and 1960 of the — at the termination of office, they will hold a new election whereby then instead of having four Secretary-Treasuries where they now have for each Local, they will have one Secretary-Treasurer.

    Charles E. Whittaker:

    Yes.

    Thomas W. Gleason, Jr.:

    Instead of having so many vice presidents, they will cut it down but in order to effectuate this merger, what they done was take the officers and — and put them into this Local until the termination of their terms.

    Charles E. Whittaker:

    Yes, that was done by contract of the parties — of the officers.

    Thomas W. Gleason, Jr.:

    Oh it’s done by contract of the parties which was ratified and passed by the membership.

    Charles E. Whittaker:

    All right.

    Now then, that did as I understand you extinguish the Local, what’s the number?

    Thomas W. Gleason, Jr.:

    1346.

    Charles E. Whittaker:

    Yes, 1346.

    Thomas W. Gleason, Jr.:

    The only thing that Local 1346 now has is a — an account in Staten Island which they still maintain in Staten Island until the finalization in October or November of this year of the Local 1 and — and that time the bank account will be put into the Local 1.

    Charles E. Whittaker:

    Then would this — this petitioner in order to become an officer of Local 1 have to meet the members in an election?

    Thomas W. Gleason, Jr.:

    No, not until November, because he was elected in 1955 as Secretary-Treasurer of 1346, so therefore, he automatically became a Secretary-Treasurer of Local 1 and that office is still vacant pending the determination of — of this action.

    I might say that this is a declaratory judgment action and no matter what happens here, the De Veau is still in the same position because we must decide whether or not he has the right to run for office in November.

    Charles E. Whittaker:

    Well that’s another question.

    I was just trying to find out what is the real reason here (Inaudible) this union office was an officer?

    Earl Warren:

    Well, Mr. Sullivan.

    Thomas R. Sullivan:

    Mr. Chief Justice, may it please the Court.

    The District Attorney of Richmond County who is the appellee in this matter before Your Honors takes the position in the outset that this matter has become moot in that there is no longer a bona fide controversy existing between the appellant George De Veau and the appellee, the District Attorney of Richmond County in his official capacity and that this has arisen through acts and conduct not on the part of the District Attorney.

    The port of New York is a large sprawling area encompassing three counties within the city of New York and various counties in the state of New Jersey.

    Staten Island or Richmond County is one small part of it.

    At the time of the initiation of this action, there were four separate and distinct Locals involved with the checkers of cargo on the piers throughout the Port of New York.

    Each of these locals had certain territorial limitations, 1346 of which De Veau was Secretary-Treasurer had by charter of the territory of Richmond County, New York, Staten therefore, when it was made known to the District Attorney of Richmond County of the possible conflict between or with Section 8 of the Waterfront Commission Act because of De Veau previous conviction of a crime, the District Attorney of Richmond County was the office of cognizable with that statute in that particular case.

    And as a result of that, it was called for the attention of the International and the International, the president of the International Longshoreman’s Association at that time in independent suspended De Veau.

    No prosecution was begun by the District Attorney under Section 8.

    The interna — or De Veau and other members of 1346 originally instituted this action in the Supreme Court of Richmond County or a declaratory judgment and for an injunction restraining the District Attorney of Richmond County from enforcing Section 8 as against De Veau in his capacity as Secretary-Treasurer of Local 1346 or anyone else because of De Veau’s position as Secretary-Treasurer of 1346.

    Subsequently it now appears that the union on its own abolished 1346 and issued a new charter to a new local called Local 1.

    A copy of that charter is annexed to our motion papers to dismiss the appeal.

    The charter provides only that this new local shall jurisdiction over all checkers throughout the Port of New York.

    The charter says, absolutely nothing as to any merger with other locals and it provides simply that there shall be officers and it provides that there shall be I believe four Secretary-Treasurers.

    It provides that they shall be elected in October of 1960, but it says absolutely nothing as to who shall function as officers in the interim.

    I would point out to the Court, that at the time this charter was granted, De Veau was not an officer of 1346.

    He had been suspended by the president of the International.

    Thomas R. Sullivan:

    So that it would seem to the appellee that any action that would be taken now by this Court could not restore De Veau to any position in 1346 since it does not exist.

    And it seems that all this Court is being asked to do is render an advisory opinion as to whether or not De Veau is qualified to be a candidate for office next October.

    And we urge therefore in keeping with the language and the sentiments expressed by this Court only yesterday that constitutional issues in the striking down the statute on the ground — on constitutional grounds is — one is a right to be exercised very sparingly and to be exercise — and should not be exercised when there is no bona fide contest beginning upon.

    Felix Frankfurter:

    Is the suspension alive?

    Thomas R. Sullivan:

    I’m sorry sir I don’t know.

    I don’t understand you.

    Felix Frankfurter:

    He was suspended you said.

    Thomas R. Sullivan:

    That is correct sir.

    Felix Frankfurter:

    And I suppose the suspension was connected with inquiries or the action taken by your office?

    Thomas R. Sullivan:

    That is the grounds advance by the president of the International, yes sir.

    Felix Frankfurter:

    What I’m asking is whether the suspension is still indeed, he is still suspended in other words.

    Thomas R. Sullivan:

    Well, he was suspended from 1346 as an officer.

    Felix Frankfurter:

    Yes.

    Thomas R. Sullivan:

    1346 is out of existence.

    Felix Frankfurter:

    I understand that.

    What I’m — the point of my question is whether if suspension as an officer has — from his office in 1346 would carry with it because of the action taken by you, by the attorney, would carry with it his disability, automatic disability to run as an office of this Court?

    Thomas R. Sullivan:

    I do not think the suspension would do that sir.

    It is the contention that the law is what disables this.

    Felix Frankfurter:

    Yes, I understand that.

    But — but the law is still in content.

    Thomas R. Sullivan:

    That is correct sir.

    Felix Frankfurter:

    What I want to know is whether the action taken by the International continues to operate wholly apart from what obedience to the statute in which to be accepted on its face I suppose to this to the inference (Inaudible) unconstitutional.

    What I want to know is whether the suspension is an ingredient (Inaudible) in disabling him from being a candidate a suspension due to — derived from the action of the International?

    Thomas R. Sullivan:

    I’m afraid I could not answer that sir.

    The appellee would have —

    Felix Frankfurter:

    Would you think that’s relevant to your — to your question of mootness, your claim of mootness?

    Thomas R. Sullivan:

    There is nothing that we know sir which on the part of the International which affects that.

    We are only — we only have access to certain of the information.

    I think that Mr. Gleason might be in a better position to know more intimately.

    There have been no minutes of meetings or any other agreements among these locals that have been submitted as parts of briefs or otherwise.

    Thomas R. Sullivan:

    So that on that question sir I could not say for me to speculate as to what is in the minds of Captain Bradley or the others.

    Felix Frankfurter:

    Let me put to you — I don’t like put a hypothetical case.

    Suppose a proper — appropriate into making a basis for the Court that the International would deem itself bound by the considerations that move into suspending from 1346 to disallow him as a candidate for office in the new Local 1.

    Suppose, that were appropriately before the phase — before the Court, what would you then say about mootness?

    Thomas R. Sullivan:

    As to the District Attorney of Richmond sir, I say the — the question might be moot because whether or not we would have jurisdiction under this new Local would also oppose a problem because the presence of the offending official as it were, as a officer of the Local is a condition precedent to a local prosecution, other situations might change.

    Felix Frankfurter:

    That would mean that — that would be a constitutional party?

    Thomas R. Sullivan:

    That is correct sir.

    The point is that we feel at this point, there is no longer the conflict between these two parties.

    Earl Warren:

    Mr. Sullivan, what — what have you to say to the argument that Mr. Gleason to the effect that in order to achieve this merger of these four unions that it was necessary for them to have an interim organization until sometime in the latter part of — of this year which interim organization contemplated that the officers of each of these unions would — would remain as officers of the new organization until they had an election in the latter part of this — this year for single officers of the — of the new union.

    Thomas R. Sullivan:

    Mr. Chief Justice, I would like to correct one thing first.

    My reading of the charter provides not that they will cut down the number of officers in October, but that they will still have the seven vice presidents, four Secretary-Treasurers in October.

    As to your question —

    Earl Warren:

    Maybe I misunderstood you on that.

    Thomas R. Sullivan:

    I cannot sir say there is nothing before us, before the Court as to any agreement along these lines.

    It could have been by fiat of the International that the merger was affected, sometimes these arrangements on changing locals and amalgamating locals have the tinge of a shotgun wedding.

    There is nothing before us sir to justify that decision.

    Earl Warren:

    Well, when was — when was this merger affected?

    Thomas R. Sullivan:

    Apparently, sometime in 1957.

    It did not come to our attention.

    It was not mentioned at all in the history of this case, or through the Court of Appeal.

    They continued to operate as if or to present the case as if 1346 still existed and it only came to our attention after the matter was submitted to Your Honors.

    Earl Warren:

    Well then we don’t have any record.

    Do you — if you want to — to have it declared moot you must have a record here must you not to show the mootness of it.

    You can’t just bring in one — one document, one part of this organization and put it in the record and say that shows mootness.

    Thomas R. Sullivan:

    We did not put it in the record sir for that — we put in, in our motion for charter when we learned of the existence of the situation.

    Mr. Gleason submitted a — a reply to that I think enclosing or incorporating two affidavits, one from Bradley and one from another official of Local 1 on the question.

    We are, and I think it is conceded here sir that 1346 certainly no longer exists as such.

    William J. Brennan, Jr.:

    Well what — what’s the significance in Mr. Bradley’s affidavit Mr. Sullivan on that thing? The suspension of De Veau continued and necessary must continue as long as Section 8 is affective, affidavit sworn to January 11, 1960.

    You said this merger was 1956-1957?

    Thomas R. Sullivan:

    19 –this was 1957, yes sir and I think that might answer Mr. Justice Frankfurter’s question as to whether or not he is suspended as such.

    Thomas R. Sullivan:

    I think though, it also incorporates in there that it is the suspension is by operation of the statute until such time as the Court passes upon.

    Charles E. Whittaker:

    Where do I find in the record saying that 1346 is abolished, as I understood you to say it was?

    Thomas R. Sullivan:

    That sir is only from the argument here I think an answer to a question to Your Honor asked Mr. Gleason.

    Charles E. Whittaker:

    Yes.

    Thomas R. Sullivan:

    There is nothing in the record other than the charter itself which was appended to our motion to dismiss the appeal which gives complete jurisdiction over all checkers to this new Local 1, that’s at page 8 of our appellee’s motion to dismiss the appeal.

    Now, further if the Court please, an aside from the question of mootness which Your Honors defer until the hearing of the case on its merits, the people — the District Attorney of Richmond County contends that Section 8 of the Waterfront Commission Act is a valid exercise of the police powers of the States of New York and New Jersey and to understand the nature and the intent of Section 8, it will be necessary briefly to mention the history of Section 8 and the conditions which brought it about.

    For many years, there had been great concern as to certain conditions existing in Waterfront Labor Organizations in the Port of New York.

    A Committee or a Commission rather known at various times as the New York State Crime Commission or the (Inaudible) Committee conducted investigations over a period of several years in which they went into the question of certain abuses and corrupt practices in the Port of New York.

    In their report, they determined that over 30% of the officials of waterfront labor unions in the Port of New York had criminal records of various kinds.

    They found as a fact that this condition gave rise to many abuses, many violations of law to extortion from the union employees or form of kickbacks, the so-called notorious shake system that pilferage and larceny from the Port of New York were all — were tremendous in scope.

    These recommendations were forwarded to the Governor of New York who then hold — who then held rather further hearings on the matter along with the law enforcement council of New Jersey and further evidence was adduced.

    Your Honors will find reference at length to these matters in the brief of the Waterfront Commission of the Port of New York who filed the brief amicus curiae.

    Based upon these findings, both the States of New York and New Jersey legislation was proposed which led to the creation of a new bi-state agency known as the Waterfront Commission.

    Now, it is true that the legislation itself is divided into three parts.

    The first part is the actual contract or agreement between the two States to create this agency to police the Port of New York.

    And both States found that this waterfront crafts and the people who worked them, longshoremen, checkers and the like, that these occupations smacked of the public interest and it was in the public interest to regulate or control them in some way.

    Now, the compact provided that certain of these of occupations should licensed and that a license must be granted in order for a man to practice that occupation on the Waterfront of New York.

    And it is interesting to note that these appellant, De Veau could not at the moment practice the occupation of checker in the Port of New York, even though he seeks to be representative of the checkers.

    Now —

    Earl Warren:

    That’s because of your compact.

    Thomas R. Sullivan:

    Yes sir, a separate section, not Section 8.

    Earl Warren:

    Yes, yes.

    Thomas R. Sullivan:

    There is a separate section licensing checkers.

    Earl Warren:

    Yes.

    Thomas R. Sullivan:

    And De Veau would not be eligible for a license at the present time.

    Felix Frankfurter:

    Whether it’s a basis of disqualification of getting a license involving the same issue akin to the issue to the one before us?

    Thomas R. Sullivan:

    It involves the issue of a felony conviction sir.

    Felix Frankfurter:

    All right.

    Thomas R. Sullivan:

    That is the reason and generally speaking throughout the whole scheme of —

    Felix Frankfurter:

    Well, it’s a fact that he couldn’t be a checker if you ask him to become an officer is in itself involving him in the case you’re arguing.

    Thomas R. Sullivan:

    No, sir I’m merely pointing it out that this not the —

    Felix Frankfurter:

    Well, I don’t mean — I don’t mean that the question of a checker’s license was involved —

    Thomas R. Sullivan:

    No —

    Felix Frankfurter:

    — with your argument that he couldn’t even get a checker’s license is — is in controversy because of the nature of the issue which would disqualify.

    Thomas R. Sullivan:

    Yes sir.

    Felix Frankfurter:

    All right.

    Thomas R. Sullivan:

    I don’t think they raised that would be probably a different —

    Felix Frankfurter:

    All right.

    Thomas R. Sullivan:

    — constitutional objection.

    Felix Frankfurter:

    I understand that and I simply suggest you can’t derive any argument there.

    Thomas R. Sullivan:

    No, I’m merely pointing it out —

    Felix Frankfurter:

    Alright.

    Thomas R. Sullivan:

    — in line with question asked by Mr. Justice Whittaker that there are and the States have from time to time imposed restrictions on certain occupations and have barred people from engaging in certain occupations because of a previous felony conviction.

    Felix Frankfurter:

    A plumber has to be licensed in New York?

    Thomas R. Sullivan:

    Yes sir, but I don’t think a felony conviction will buy you.

    William O. Douglas:

    Has this man — any criminal record since 1920?

    Thomas R. Sullivan:

    Not to my knowledge sir.

    William O. Douglas:

    We must assume —

    Thomas R. Sullivan:

    That there is none.

    William O. Douglas:

    — that there is none.

    Thomas R. Sullivan:

    No sir.

    I might correct one other point that I’m sure was inadvertent on Mr. Gleason’s part.

    He mentioned the Youthful Offender Act.

    This De Veau would not have come under the Youthful Offender Act even if it existed in those days.

    It would still have been a felony even in those days, even with the Youthful Offender Act.

    William O. Douglas:

    Was the act that he was convicted of related at all to waterfront activities?

    Thomas R. Sullivan:

    No, sir just before he worked on the waterfront.

    He was stealing a car.

    Now, the —

    Hugo L. Black:

    How old was he?

    Thomas R. Sullivan:

    19 sir at that time.

    In New York or Youthful Offender Act stops at the 19th birthday and anyone over that is chargeable as an adult felony.

    The statutes or the enactments of the States of New York and New Jersey went on further in parts two and three aside from the actual interstate compact to provide certain legislation in keeping with the purposes of the compact, that legislation was of two types.

    Some of it was reciprocal.

    Some of it took effect in either State upon enactment or shortly thereafter.

    Now Section 8, the section with which we are concerned, was enacted in New York and in New Jersey at the time the compact was enacted and was on the books and had been passed when the compact was submitted to the Congress for its approval.

    At the hearings held before the Congress, the question of Section 8 was brought up by the ILA representative.

    The same question of preemption, the same question of Hill against Florida was presented to the Congress at the time it was considering approval of the compact.

    Hugo L. Black:

    Do you have that legislative history in your —

    Thomas R. Sullivan:

    Yes sir.

    We — we have reference to it in our brief.

    The Congress nevertheless passed —

    William J. Brennan, Jr.:

    Have you spelled out or do you just have it referred to?

    Thomas R. Sullivan:

    We — we’ve only referred to the — I think at page of the hearings at which —

    William J. Brennan, Jr.:

    I see.

    Thomas R. Sullivan:

    — the reference was made.

    Felix Frankfurter:

    You mean in terms or in part of (Inaudible)

    Thomas R. Sullivan:

    By name sir.

    It was referred to.

    Earl Warren:

    Referred to in — in any of the reports of the Committees of Congress.

    Thomas R. Sullivan:

    In the report of the hearings sir.

    I do not know that’s in its report Congress or any of the Committees specifically referred to in Hill against Florida but it had been brought up at the Committee hearings.

    Earl Warren:

    By — by union —

    Thomas R. Sullivan:

    By Mr. Waldman who was the counsel to International Longshoremen’s Association.

    Earl Warren:

    Is there anything in the reports of the Committees that indicates at the — that they acted upon it one way or the other?

    Thomas R. Sullivan:

    I believe sir at page 21 or 22 rather of the Waterfront Commission’s brief amicus.

    They make reference to certain of the findings.

    I do not see that they made specific reference to —

    Hugo L. Black:

    Page what, 21?

    Thomas R. Sullivan:

    22 sir.

    Hugo L. Black:

    22.

    Thomas R. Sullivan:

    They do not — they did not make specific reference to Hill against Florida at that time, but they — it was at the hearings which are referred to at page 26 of the Waterfront Commission brief where the statement of Mr. Waldman appears.

    William J. Brennan, Jr.:

    What page is it?

    Thomas R. Sullivan:

    Page 26 sir of the Waterfront Commission’s brief.

    William J. Brennan, Jr.:

    Incidentally, is there any special legislative history involving those words of the approval in the enactments in furtherance thereof?

    Thomas R. Sullivan:

    There was no specific reference other than that in certain of the approval Congress has given to bi-state agencies such as the port authority.

    They specifically withheld those words.

    William J. Brennan, Jr.:

    Well, this is unusual isn’t it in the —

    Thomas R. Sullivan:

    It is sir.

    Usually the approval of Congress is given to the specific compact and further actions between the States in furtherance of the compact in many instances has to go back to Congress for further approval.

    This was a very sweeping grant of power by Congress.

    William J. Brennan, Jr.:

    Now, do I — do I understand you to say that in respect of New Jersey and New York statutes which had counterparts of Section 8 had actually been adopted by the two States?

    Thomas R. Sullivan:

    They had been enacted sir.

    The — the — I believe they had been enacted in June of 1953.

    There hearings were in August or the Congressional hearings on the compact.

    The effect of dates of the statutes in both New York and New Jersey was September 1st.

    But they had been enacted, they were on the books and they were referred to in the Congressional hearings.

    William J. Brennan, Jr.:

    Do you know why these that — that those were not incorporated in the compact itself, why do we have these separate parts?

    Thomas R. Sullivan:

    The — I do believe sir the reason for the separate parts was that sir, some of the legislation was to take effect only in New York for instance when New Jersey passed recent — similar legislation.

    Certain areas covered by the Waterfront Commission Act were to take effect regardless of whether or not the other State applied that — or enacted the same legislation.

    Now, Congress too in approving the compact recognized that we had here was a uniquely local situation.

    It was not an attempt by the States of New York and New Jersey to regulate all labor unions, because the conditions which existed were not shown to have existed at all labor unions.

    But here, there was a situation existing in one segment of one industry, and the State in the exercise of its police powers sought to remedy this local situation, this local condition that was preying upon its citizens by the enactment of local legislation.

    Congress recognized this situation, recognized that it was a local situation and gave its approval to the attempts of the States of New York and New Jersey to regulate, to control, to license entire — an entire industry and in fact to eliminate certain phases of that industry because included in the Waterfront Commission Act was a statute banning what was commonly referred to as public loading which had a been recognized business prior to the enactment.

    William J. Brennan, Jr.:

    That was part of the compact itself, wasn’t it?

    Thomas R. Sullivan:

    That is correct sir.

    William J. Brennan, Jr.:

    And so was the checker’s provision was it not?

    Thomas R. Sullivan:

    The licensing provisions, right.

    William J. Brennan, Jr.:

    Both for the licensing of longshoremen and the checkers?

    Thomas R. Sullivan:

    Yes sir the checkers were considered a classification or sub-classification of longshoremen.

    Charles E. Whittaker:

    What does public loading mean?

    Thomas R. Sullivan:

    Public loading sir was the situation that a truck would deliver cargo to a pier or to pick up cargo, rather from a pier.

    It had to be brought from the end of the pier wherever it was located out and put on the truck.

    There were certain companies which existed solely to pick up the cargo from the pier and load it on board the truck for the trucking — for the truck man so he did not have to send a helper along with the driver to put it on board.

    And that practice — and that business was avouched by the Waterfront Commission Act.

    Now, there is a claim made that Section 8 of the Waterfront Commission Act conflicts with the general language of Section 7 of the National Labors Relations Act.

    This claim was made —

    Earl Warren:

    Mr. Sullivan before we get to that while we’re still on the — on the compact what have you to say about the restricted language that Mr. Gleason read us from the compact just — just short while ago?

    Would it — that language seem to rather broad and — and it seem to me it would call for some discretion?

    Thomas R. Sullivan:

    Are you referring sir to the findings and declarations of the two States or the — the so-called reservations section?

    Earl Warren:

    Now, well, the reservations which they said that this was not to interfere with collective bargaining and the selection of their — selection of their own officers and things of that kind.

    Thomas R. Sullivan:

    If I read it correctly sir the — it is the section that reads this compact is simply saying —

    Earl Warren:

    Where — where is that?

    Where is that to be found?

    Thomas R. Sullivan:

    It’s Article 15 of the compact.

    That’s at page —

    Earl Warren:

    Do we have that?

    Thomas R. Sullivan:

    I believe Mr. Gleason has cited it in his —

    Thomas W. Gleason, Jr.:

    Reply brief.

    Thomas R. Sullivan:

    — in their reply brief at page 7.

    Earl Warren:

    Page 7.

    We see that — let’s see.

    I don’t find that — well it seems to have the — I don’t seem to have the reply brief, but it’s all right.

    What — what do you have to say to that language Mr. Sullivan?

    Thomas R. Sullivan:

    Well sir this statute, Section 8 in no way — in our opinion, impairs the rights of the union to bargain collectively or to organize.

    It does in some respect create certain conditions under which the union or with which the union is confronted if they elect a certain class of person as their representative.

    I might answer that Section 8 is not a part of the compact.

    Earl Warren:

    What do you mean if they selected a certain class of individuals?

    Thomas R. Sullivan:

    That the — the union is placed under certain handicaps if they elect a felony as one of their officers.

    Earl Warren:

    That’s said in the compact?

    Thomas R. Sullivan:

    No, sir.

    I’m saying you asked me to comment on — on how I think this section affects the case we’re discussing.

    Earl Warren:

    Yes, yes.

    Thomas R. Sullivan:

    The statute only provides that nothing shall be limited in any way the right of the employees to organize or to bargain collectively through labor organizations or other representatives of their own choosing.

    In connection with that sir, I do not think that this statute interferes with the rights of employees to bargain collectively or to choose whomever they wish as their representative.

    It does —

    Earl Warren:

    Suppose they want Mr. Brown and doesn’t that interfere with their right to select him?

    Thomas R. Sullivan:

    It does provide sir certain hindrances if they choose him as their representative much the same as certain enactments of the Congress — ban the use of the National Labor Relations Board if a certain official of the union does not file a non-Communist affidavit.

    By same token they are perfectly free to select as a representative a man who is in jail but he certainly isn’t going to able to get out to attend the meetings and they — if they accept this and they’re willingly vote him in they face certain consequences.

    Earl Warren:

    All right.

    Thomas R. Sullivan:

    But we do not feel sir that this is a direct attempt to dictate the choice of the employees.

    They are free to choose whomever they wish if they wish to vote, they can have him, he bargain for them, he will be accepted as such.

    There is no contention here that his presence as an officer in any way, detracts from the ability of this local to perform its functions as a collective bargaining agent as in fact to distinctions of the —

    Earl Warren:

    Well, now, do you mean that he can act for them?

    Thomas R. Sullivan:

    In that — as a collective bargaining agent, absolutely sir.

    William J. Brennan, Jr.:

    The only thing that happens as I understand it is that anyone who collects dues in behalf of the organization then he’s guilty of a crime —

    Thomas R. Sullivan:

    Subject to prosecution, that is correct sir.

    That is I said —

    Earl Warren:

    Well suppose — suppose they select as one of their officers someone to collect the dues aren’t they interfering, wouldn’t this law interfere with their — their right to — to do that?

    Thomas R. Sullivan:

    To collect dues?

    Earl Warren:

    Yes.

    Thomas R. Sullivan:

    Absolutely sir.

    Earl Warren:

    Well where — and — and wouldn’t that interfere with their right of organization?

    Isn’t the — isn’t the right to collect dues a rather important part of a — of labor organization?

    Thomas R. Sullivan:

    The — the thing sir is the same that the — right to appear before the National Labor Relations Board is an important function of a labor organization.

    Earl Warren:

    I know but that’s a — that’s a federal government.

    The federal government is occupying that field and it can say what it wants.

    The federal government can say — say that they can’t collect money if they — if they want I suppose as they’ve done in this — in this most recent act in 1959.

    They’ve laid down some — some regulations somewhat similar to this, but the question is whether with these restrictions that are in the compact and with the provisions of the labor — labor laws themselves to the effect that they may have then restrained right of — of organizing whether that preempts the situation and deprives New York of the right to — to vet then with them.

    That’s the only thing I have in my — in my mind.

    Thomas R. Sullivan:

    Mr. Chief Justice I had not — I have not addressed myself so exclusively to this question of preemption.

    I will be happy to do so now sir.

    The question —

    Earl Warren:

    Well, that’s a — didn’t this bear on it?

    Doesn’t this bear on it — this compact?

    Thomas R. Sullivan:

    Very much so sir.

    Earl Warren:

    Well, you would have left the compact that’s why I want to bring it back to it to — for that — to my — my (Inaudible).

    Thomas R. Sullivan:

    The question of preemption is to whether or not there is a conflict or whether or not the Congress has so occupied the field of labor management as to take away from the States all rights to act for safety, for the good and the welfare of their own citizens in anything touching upon labor organizations is one of the key issues that has been raised by the appellant throughout the history of this case.

    Not only throughout the history of this case, but throughout almost every case that has been brought under the Waterfront Commission Act.

    Up till the time that this case reached this Court the highest Court that had passed upon a similar statute was as has been pointed the Supreme Court of the State of New Jersey in the case of Hazelton against Murray in which this question of preemption was presented squarely before the Supreme Court of New Jersey, and which Mr. Justice Brennan in speaking for the unanimous court there held that Congress had not so preempted the field as to bar the States from enacting Section 8.

    The same question was — was raised in the federal courts in the (Inaudible) cases, and the Staten Island loaders cases in various aspects concededly of the Waterfront Commission Act.

    At least some —

    William J. Brennan, Jr.:

    Well let’s see Mr. Sullivan.

    Am I right that (Inaudible) and the loaders cases came up rather what was decided there were issues raised under provisions of the compact itself?

    Thomas R. Sullivan:

    No sir.

    The Hazelton against Murray —

    William J. Brennan, Jr.:

    No, I know the Hazelton —

    Thomas R. Sullivan:

    The – (Inaudible) and the Loaders’ cases were.

    Yes sir they came up under the compact.

    William J. Brennan, Jr.:

    Under the compact itself.

    Both the licensing in the loaders’ provision.

    Thomas R. Sullivan:

    That is correct sir.

    William J. Brennan, Jr.:

    With that distinction I don’t know that —

    Thomas R. Sullivan:

    There are many of them some outside the compact area are Rock and others which were in the Federal District Court the Southern District of New York in which these questions all were raised as to preemption.

    Hugo L. Black:

    Was the question raised there as to preemption raised has to conflict with the old act or the act which is in effect now?

    Thomas R. Sullivan:

    You mean the Disclosure Act of 1959?

    Hugo L. Black:

    Yes.

    Thomas R. Sullivan:

    No sir, they were all under the old act under seven of the NLRA.

    William O. Douglas:

    This — first time that the conflict — alleged conflict with the 1959 Act is raised, isn’t it?

    Thomas R. Sullivan:

    It’s the first time it has been mentioned sir.

    Thomas R. Sullivan:

    We contend that is not properly before the Court.

    Hugo L. Black:

    But do you think — do you think that the case could be decided without — by ignoring the fact that there is a statute now which does — let’s assume preempt the field?

    Can it be decided on — on the basis of your (Inaudible) before?

    Thomas R. Sullivan:

    I believe sir that the — this Court has held many times that you must in revealing a state court consider the law as it existed at the time the state court passed upon it.

    Hugo L. Black:

    But the question of preemption is a question that’s involved.

    Thomas R. Sullivan:

    Well in concerning the question of preemption sir, we have now reached the happy stage some 15 years later where we now find ourselves directly in the situation that was then a hypothetical one posed by Mr. Justice Frankfurter in his dissent.

    Can we now say in the view of the enactment of the provisions of that 1959 Disclosure Act that Section 7 of the NLRA covered it before or excluded it before?

    Hugo L. Black:

    Why do you — why do you have to go back to Section 7 of the old act?

    I should suppose that the law of the state was governed by the – it’s validity at the time the matter is being tried.

    Thomas R. Sullivan:

    At the time —

    Hugo L. Black:

    Now, maybe — maybe the courts held differently in the case then, I do not know that —

    William O. Douglas:

    We don’t have here a case for preemption for the first time is raised here.

    Preemption has been raised all along.

    Thomas R. Sullivan:

    That is correct sir.

    William O. Douglas:

    But it’s a different argument in the support of it is now rendered by reason of that 1959 statute.

    Is that correct?

    Thomas R. Sullivan:

    That is correct sir.

    This argument was never raised in the Court of Appeals for the simple fact that’s 1959 — the Labor Management Act of 1959 had not been enacted.

    Felix Frankfurter:

    It was held that later enactment does not exclude the earlier one?

    Thomas R. Sullivan:

    That is correct sir.

    Charles E. Whittaker:

    But if the — if the preemption was created by that 1959 Act then it first came into being at that time, wouldn’t that be true?

    Thomas R. Sullivan:

    If that were so sir, the question was raised that the preemption was existed under 7th.

    Charles E. Whittaker:

    Yes.

    Earl Warren:

    We’ll recess now.