Hotel Employees Union, Local No. 255 v. Sax Enterprises, Inc.

PETITIONER:Hotel Employees Union, Local No. 255
RESPONDENT:Sax Enterprises, Inc.
LOCATION:Sherry Frontenac

DOCKET NO.: 5
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 358 US 270 (1959)
ARGUED: Nov 10, 1958
DECIDED: Jan 12, 1959

ADVOCATES:
Arthur J. Goldberg – for the petitioners
David E. Feller – for the petitioners
Marion E. Sibley – for the respondents
Thomas H. Anderson – for the respondents

Facts of the case

In February of 1955, Hotel Employees Union, Local No. 255 began an effort to organize employees at resort hotels in Miami and Miami Beach, Florida; these hotels wholly occupied a stretch of land from Collins Avenue to the Atlantic Ocean. The National Labor Relations Board, however, had a stated policy of refusing jurisdiction over hotel employees. Hence, the union did not petition the board for an election or certification.

In March, the union tried to establish a procedure to collectively bargain for the employees of the various hotels. It could not reach an agreement between the employee representatives from each hotel, so it addressed a letter to the Miami Beach Hotel Association requesting a conference. It also sent copies to each hotel and published copies in local newspapers. The Association — which was not specifically authorized to bargain for its members — did not answer the union’s request. In response, on April 13, 1955, the union began a strike at nine hotels, including the Sherry Frontenac.

The hotels filed for an injunction against the picketers. Of the nine cases, the district court tried seven separately, with each judge retaining jurisdiction over his particular case. In each of the seven cases, the trial judge held that there was not enough evidence of violence to justify enjoining the picketing on that basis. Before each court could address whether the unions were coercing hotel employees to unionize, however, the Florida Supreme Court intervened. On the basis of the hotels’ complaint, it held that the real purpose of the strike was indeed to coerce hotel employees to join the union, in violation of Florida law.

Question

Did the Florida Supreme Court properly enjoin union hotel employees from picketing at twelve Miami resort hotels where the action was not under the explicit jurisdiction of the National Labor Relations Act?

Earl Warren:

Number 5, Hotel Employees Union, Local No. 255, et al., Petitioners, versus Sax Enterprises, Incorporated, et al., and Number 6, Hotel Employees Union, Local No. 255, et al. versus Harry Levy, et al.

Mr. — Mr. Goldberg.

Arthur J. Goldberg:

Mr. Chief Justice, may it please the Court.

These are 12 of 22 separate cases decided in identical per curiam decisions by the Supreme Court of Florida on March 15, 1957.

Each opinion in each case affirmed on the authority of another decision of the Supreme Court, Fontainebleau Hotel, 90 So.2d which is printed in the appendix page 49 of our brief decided February 1, 1957 an injunction against the peaceful picketing by the union, petitioner here, the Hotel and Restaurant Workers Union, a local of that organization of a Miami Beach or Miami Hotel.

There are nine of the 22 cases decided by the Supreme Court of Florida.

A labor dispute was settled by a negotiation of a collective bargaining agreement.

Later, I shall have some reference to a few more of the cases here in this connection.

Were the cases are nisi prius (Inaudible)

Arthur J. Goldberg:

No, they were tried before various courts.

Yes.

Arthur J. Goldberg:

And I shall make reference to the various nisi prius orders, Mr. Justice Harlan.

Review was sought and granted in 12 of the cases on two separate petitions for certiorari, which are No. 5 and No. 6 as they now stand.

The 12 cases were along with the other that made up the 22.

They were briefed together in the Supreme Court of Florida.

I believe they present identical issues although there were separate records even though some of the trials were combined for convenience and although the findings and injunctional orders are not identical in the lower courts.

The final order were all orders of injunction pursuant to a decision of the Supreme Court even though it’s different somewhat as I shall later explain.

The — it is difficult with — throughout the separate records and 12 separate proceedings to trace the course of this litigation which has an important bearing upon the case in this Court.

And in order to — in some convenient way since a stipulation to consolidate it was not available because of the counsel on the other side thought were good and sufficient reason, I’m sure they were.

I thought it might be convenient for the Court to set out a litigation chronology.

And you may find it convenient as I make my argument to refer to that chronology.

It is contained in Appendix B through our brief, the green brief and sets out in quite graphic form the history of this litigation.

I shall have occasion to make reference to the history as we go along.

And I think Your Honors may find it, as I say, convenient to — to examine this chronology.

First, let me address myself to the background of facts before turning to the course of the litigation.

In February 1955, the petitioner union, which organizes hotel and restaurant workers throughout the country, began a campaign to organize the employees in the service trades in the Miami Beach, Miami area in Florida.

The record in the case shows that while these, as the respondents probably goes in their answers and pleadings, are luxury hotels and as perhaps, we can recognize from the names of the hotels which are set forth from the chronology, there was a considerable background of dissatisfaction with the wages, hours and the poor working conditions of these hotels.

And consequently, the campaign for organization met with considerable success.

Now, normally, at this stage of the proceeding, the workers having been organized and the hotels themselves have engaged in an industry affecting commerce, the recourse would have been made by the union to the National Labor Relations Board for election and certification.

However, it was not available to the union because the National Labor Relations Board in the exercise of its alleged discretion, and this matter will come before this Court immediately following in case No. 21, where this is challenged by the union by way of a — injunction proceeding to compel the Labor Board to take jurisdiction in this very — this very dispute.

Arthur J. Goldberg:

However, in — at the setting as it stood in the organizational stage —

William J. Brennan, Jr.:

Well, may I ask, Mr. Goldberg, the degree in the next page (Inaudible)

Arthur J. Goldberg:

No, because the injunctions are outstanding.

And unless they are reversed by this Court, it will still be enjoined by final orders of the — of the courts in Florida.

Felix Frankfurter:

What if they’re moot?

They can be vacated without being —

Arthur J. Goldberg:

They could be vacated.

Felix Frankfurter:

Did I understand you to say the question is whether the Board should have taken jurisdiction or could have taken jurisdiction?

Arthur J. Goldberg:

Should have.

Felix Frankfurter:

Should have.

Arthur J. Goldberg:

The argument that will be made to you, this is not my case to argue and I don’t want to anticipate my brother’s argument.

Mr. Braham, the general counsel of the union will argue that.

But it will be his argument that the Board was compelled to take jurisdiction of representation cases under the statute as agreed.

Felix Frankfurter:

But you don’t think it’s relevant but does dispose in the sentence our prior decisions if the Board could have and the State has preempted.

Arthur J. Goldberg:

Yes, it is relevant.

And I will argue that —

Felix Frankfurter:

You do not —

Arthur J. Goldberg:

— I will argue that as one of the points that issue here.

Felix Frankfurter:

You’re making the point, are you?

Arthur J. Goldberg:

I am making the point here.

Well, if the — if the — excuse me.

Earl Warren:

No, go ahead, Justice Harlan.

If — if we — if we should hold the next case that the Board had jurisdiction to reply, you still have a preemption jury.

Arthur J. Goldberg:

That is correct.

In the penalty of whether the Board as Guss points out.

In the penalty of the Board was justified or not justified —

Felix Frankfurter:

Yes.

Arthur J. Goldberg:

— in denying jurisdiction, it is our argument here that their preemption existed and I —

Felix Frankfurter:

Well, that’s what Guss decision, wasn’t it?

Arthur J. Goldberg:

Yes, it was.

William O. Douglas:

Did the — did the Labor Board, the National Board refuse to act here?

Arthur J. Goldberg:

The National Board refused to act both in representation cases —

William O. Douglas:

In this — in this case.

Arthur J. Goldberg:

— and in — in this very controversy in involving this very — this specific hotel.

Earl Warren:

Well, is the — is the question of the preemption adequately raised in this case?

Arthur J. Goldberg:

I believe it is and I will turn to that, Your Honor.

Earl Warren:

I’m in no hurry about but I was going to say this.

If we decided — if it is adequately raised and if we decided with you on that issue, would it be necessary for us to go into these other questions?

Arthur J. Goldberg:

Well, I don’t — I can’t answer that because both issues that I raised are constitutional.

The preemption issue is, of course, based on the Supremacy Clause.

And on the Commerce Clause, the issue of free speech is raised under the Fourteenth Amendment.

I cannot say which of the —

Earl Warren:

Well —

Arthur J. Goldberg:

— constitutional argument this Court may choose to rest its decision on —

Felix Frankfurter:

But I suggest —

Arthur J. Goldberg:

— if it agrees with me.

Felix Frankfurter:

— but I suggest that this Court holds that the court below had no jurisdiction.

They don’t have to decide what was right in the manner in which it should exercise it on the merits.

Arthur J. Goldberg:

Except — except in both cases, it arises out of the Constitution.

And I know of no rule which gives priority one over the other.

But on both grounds, it is my —

Felix Frankfurter:

I suggest if the Court has no jurisdiction, you don’t examine whether it was right or wrong in — where it exercise it.

Arthur J. Goldberg:

But that determines — that is —

Felix Frankfurter:

I understand that.

Arthur J. Goldberg:

— based upon a constitutional argument.

Felix Frankfurter:

(Voice Overlap) it has no jurisdiction, you don’t go into the merits.

Arthur J. Goldberg:

The merits, of course, come up as a constitutional assailment on the injunction.Both points, however, are raised and left with the Court to determine.

William J. Brennan, Jr.:

Were they raised on the merits?

Arthur J. Goldberg:

Yes, they were.

And I shall point that although there are some argument about it, Mr. Justice Brennan.

Arthur J. Goldberg:

They were raised as the chronology will point out when I go into the chronology of various statements.

William J. Brennan, Jr.:

(Inaudible)

Arthur J. Goldberg:

He doesn’t agree with me but I will be prepared to discuss that, if I may, at a subsequent point.

Felix Frankfurter:

We know, but I — did I misunderstand you in — did I misunderstand in having you say that you don’t want to argue that because, Mr. Braham will argue that?

Arthur J. Goldberg:

No, no.

I do not want to argue the question of whether the Labor Board can be mandated into a certain jurisdiction whether —

Felix Frankfurter:

(Inaudible) is essential, at least to my point of view.

It’s a threshold question in your case, and you will argue.

Arthur J. Goldberg:

I will argue that by all means.

It is a strong argument of ours that whether or not the Board had discretions or refused to exercise jurisdiction, this is a commerce case covered by the National Act and therefore, the Florida courts had no right to issue the injunction.

By way of background to that point in both cases, since it applies to both cases, it is clear that this industry and these hotels are engaged in commerce.

Southern Florida has two and a half million visitors a year from other States.

The great majority are accommodated by the given hotels and the other hotels, 150 in total number, who are members of the association —

Charles E. Whittaker:

Is that fact —

Arthur J. Goldberg:

— to which these hotels belong.

Charles E. Whittaker:

Mr. Goldberg, is that fact an issue here?

Arthur J. Goldberg:

I do not believe it is an issue.

The Government concedes it in no. 21.

Charles E. Whittaker:

There was a stipulation, was there not?

Arthur J. Goldberg:

There were — there were stipulations that witnesses would testify that these hotels were in commerce within the meaning of the Act.

These — the stipulation was — the affidavits were then denied on the ground that it was immaterial and irrelevant in our cases.

Charles E. Whittaker:

And the Court sustained that objection.

Arthur J. Goldberg:

Objection.

That is correct.

Felix Frankfurter:

Is the question of preemption turned on whether or not these hotels were engaged in commerce?

Arthur J. Goldberg:

I don’t think so.

I’m just —

Felix Frankfurter:

Pardon?

Arthur J. Goldberg:

No.

I do not think so.

Arthur J. Goldberg:

I do not think —

Felix Frankfurter:

There might be an order to give this Board jurisdiction.

Arthur J. Goldberg:

Yes.

The — the Board itself, as you will see in 21, concedes that these are engaged in commerce.

It was not (Voice Overlap) —

Felix Frankfurter:

(Voice Overlap) whether — whether that question, I’m not familiar with the record, though I read your brief.

What I want to know is this.

Is the question of whether these are amenable from your point of view to the Board potentially amenable at all events whether that question was contested?

And is — is that question to be determined by us on the basis of materials appearing in the record either by way of proof or concession or determination by the Board itself?

What is the answer?

Arthur J. Goldberg:

It is our — it is our position that in these particular cases, proof was offered on these particular points.

The objection to that proof sustained in the lower court in its decree was that these were immaterial.

We say they were material.

That was the only objection.

Felix Frankfurter:

So that the real — that the legal issue on that point is whether your offer of proof, prima facie at least, went to the establishment of these hotels in interstate commerce —

Arthur J. Goldberg:

Now, this —

Felix Frankfurter:

— and therefore, amenable to the Board’s jurisdiction.

Arthur J. Goldberg:

Correct.

And we think —

Felix Frankfurter:

Exercised or not, is that right?

Arthur J. Goldberg:

We think it plainly does.

Felix Frankfurter:

Correct.

Arthur J. Goldberg:

And the — our question also, Mr. Justice Frankfurter, was assigned as their preemption issue.

It was argued in the Supreme Court of Florida.

Supreme Court of Florida just ignored it in its final decision.

Felix Frankfurter:

And now, you are arguing then that if your offer of proof is adequate to maintain the proposition towards which the proof was directed, that, if found to be so, undermines the starting point of the court below.

Arthur J. Goldberg:

That is correct.

Felix Frankfurter:

All right.

Arthur J. Goldberg:

The — the general information which I’m giving about the state of the general industry is the information which you can take notice of as presented in 21.

I thought I would give it as a little background of the commerce aspects.

Arthur J. Goldberg:

For example, a $100,000,000 of food and lodging is furnished to visitors.

And this industry is the controlling industry of Southern Florida.

And it’s interesting to note that 1954, over 1,200,000 tourists came to the Great Miami area.

Our affidavit show most of them came by interstate carriers, railroads and — and airplanes.

Now, I have mentioned at this stage of the proceeding of organization that it did not appear that recourse to the Labor Board was available to the union.

Although it shall appear from 21 that not withstanding under the announced policies of the Board, it was not available.

The parties tried to go to the Board and were turned down to the Board.

Now, after organizing the employees, the — the union went to the Hotel Association and to various of these employers and said to them, “We have organized your employees.

And since access to the Board does not appear to be available, we would like to have a secret election so as to demonstrate to you that we represent the employees and so that we can engage in collective bargaining with you for these employees.”

The record shows that this offer of the union was affirmed by these hotels.

Potter Stewart:

There was no machinery, of course, under the state law for such (Voice Overlap) —

Arthur J. Goldberg:

There was not, Justice Stewart.

There was no machinery.

I’m going to refer to the state law in just a minute to show what the State was and the law was in Florida.

The state law is set forth on page 2 and 3 of our brief.

You will see that while the state law declares it to be the policy of the State to encourage the right to self-organization and to engage in concerted activities, the State of Florida prescribe neither a method for resolving representation cases for elections nor did it prescribe any procedure for handling unfair labor practices.

This is a declaration of general policy.

And it’s very interesting to note, although I don’t think it’s involved in this case because the Florida courts avoided this issue except one lower court withheld it that this provision unconstitutional.

Section 9, which appears on page 3, it says, “It shall be unlawful for any person — person to participate in a strike or a walkout without the same being authorized by majority vote of the employees to be governed thereby provided that this shall not prohibit any person from terminating employment of his own volition.”

There is no procedure in the state law for determining any majority vote on the strike issues.

This suggests an expression unaccompanied by any implementation machinery.

Now, in this State, I — I should point out that the union in addition to making a request for secret election published advertisements to this effect saying that they wanted secret election.

And they sent copies of these letters to these respective employers.

Now, they got nowhere.

And finally, now, I turn to my chart, if I may, finally you will see what began to happen.And we will start with same — the strike at Saxony.

And by the way, I would like to correct a typographical error where it says April 3rd in Appendix B on Saxony that should be April 13th, the first in the designation.

Felix Frankfurter:

April 13th?

Arthur J. Goldberg:

April 13th.

Now, you see that in Saxony, the union, asking for recognition, getting nowhere, finally, called a strike and began picketing the premises at Saxony.

Immediately following on April 14th, a complaint was filed which complaint is set forth on page 5 of the record.

Arthur J. Goldberg:

The complaint alleged in its complaint which is not unusual in cases involving labor unions and employers.

And by the way, this complaint bears out the admonition that Mr. Justice Frankfurter made many years ago in his book on labor injunctions.

It’s one thing to (Inaudible) allegations.

It’s another thing when you get proof.

This complaint alleged that a couple of carpetbaggers from the north came in to organize the union, that the employees did not want the organization and that the picket line was formed, that violence had been committed on the picket line.

And that also the object of the picketing was to coerce the employer to coerce the employees to join the union.

This is in essence with the complaint set.

And later, I shall point out that some of the other complaints were quite identical.

It is interesting but irrelevant really to point out that that was a proof came in, the three named defendants who were the business agents and officers of the union, who were residents of Florida for 32 years, for 17 years, for 18 years, respectively.

It also appears from the record that the plaintiffs, in many instances, who owned these hotels, were residents of northern and western cities.

In any event, complaint filed, and you will notice that immediately following on April 17th, the strike and picketing commends at the Sans Souci Hotel and immediately following strike and picketing commenced at the Sherry Frontenac Hotel.

Now, it is important for Your Honors to know what it was that in the picketing that was complained about and the — the picket sign which is set forth on page 5 of the record, and I wish to quote it, “This hotel refused to negotiate with the Hotel Employees Union, Local 255, American Federation of Labor, 1575 Worthington Avenue, Miami Beach.

This was the picket sign.

These hotels refused to negotiate which truly and factually set forth what had happened at that time.

Now, Chancellor held a hearing, and I refer to Sax — to Saxony at the moment.

There were other hearings held, as I explained to Mr. Justice Harlan, consolidated, but it was understood that each judge would handle his own case or cases.

This was a convenient mechanism.

They were not consolidated for all purposes.

Potter Stewart:

Mr. Goldberg, before you get to the hearing, do you concede, setting aside the question of preemption, do you concede that this complaint alleged a cause of action on the Florida law?

Arthur J. Goldberg:

Under Florida law, at that time, it alleged the cause of action on the coercion aspect and on violence.

Under Florida law at that State, as Florida law was then, it alleged a cause of action.

On the other hand, of course, the Chancellor was perfectly within his equity powers and asking for a hearing before he issued an injunction.

The hearing was held on May 15th and witnesses were heard, and affidavits were offered and on — on May 5th.

And the — well, excuse me, the hearings were held the April 28th and 30th, I skipped one.

On May 5th, after the hearings, the Chancellor issued an order denying the injunction.

William J. Brennan, Jr.:

Did he make any findings?

Arthur J. Goldberg:

Yes, he did.

And the findings are set forth on page 10 of the record to which we might —

William J. Brennan, Jr.:

Did he find any allegations of violence?

Arthur J. Goldberg:

He found no violence.

Arthur J. Goldberg:

In fact, he said —

William J. Brennan, Jr.:

(Inaudible)

Arthur J. Goldberg:

He said that there was — there was no — not a sufficient showing made to him to — and you will find it on page 11.

The course of the opinion finds the plaintiff has not made a sufficient showing projectorily on the basis of manner of the picketing and the method when which it is being conducted.

William J. Brennan, Jr.:

What about the coercion?

Arthur J. Goldberg:

Now, on the coercion, he said this presented a very serious issue.

And he wanted further hearings on an after answer file, and he left it in that setting.

In other words, he denied the injunction on the basis of violence.

On coercion, he said this did present under the law of Florida a substantive issue.

He wanted answer to come in.

He was going to hold a hearing.

In the meantime, he denied the injunction.

The plaintiffs promptly proceeded to ask for certiorari from the Supreme Court of Florida.

And they — they took the case up.

And in the Supreme Court of Florida — I want to skip the secret election.

I think I’m going to come back to that.

But in the Supreme Court of Florida, in a — in a relatively short period of time, May the 27th, handed down a decision in the Saxony case.

That’s the first of seven decisions of the Florida court which are involved in this controversy.

Now, before I review the Saxony decision, in addition to the law of Florida at that time being that the coercion of the employer to coerce the employees was invalid.

The law of Florida, as stated by the Supreme Court in the Cothron case, which is 50 So.2d 366, 1952, a recent — very recent decision is this.

And this is very important on subsequent development.

Here’s the law of Florida as stated by the Supreme Court, “There is no rule,” and I’m quoting from page 369, “regulation or law of this State which requires a notice to the employer of the reasons for an impending strike or as a prerequisite to picketing, and the courts are without power to supply such rule, regulation or law.”

In other words, the Florida Supreme Court at that time said that there was no rule which required any notice as a prerequisite to picketing and went on to say, and it had been gratuitous in light of what happened later, the courts are without power to supply such rule, regulation or law.

Now, the — the case went up to the Supreme Court on supersedeas.

And then the Supreme Court, on May the 27th, handed down its first opinion in this — this controversy, which we might, for convenience, call the Saxony opinion in which it was printed on record pages 16 to 20.

It appears in the chart which I have asked — which I have called to your attention.

Now, on Saxony, the Court said this as — by way of decision.

And then, they have something to say by way of dicta.

By way of decision it said, “It affirmed the violence, no violence is pointed.”

And this is very important in light of an allegation that counsel makes in his brief that there’s some elements of violence.

Arthur J. Goldberg:

Here, we have a chancellor finding no violence, express affirmance by the Supreme Court —

William J. Brennan, Jr.:

(Inaudible) I noticed in your chart (Inaudible)

Arthur J. Goldberg:

Yes.

William J. Brennan, Jr.:

Some of these things (Inaudible)

Arthur J. Goldberg:

Yes.

William J. Brennan, Jr.:

Does the issue of violence then again (Voice Overlap) —

Arthur J. Goldberg:

Not in these cases, not in these laws.

Not in these cases.

William J. Brennan, Jr.:

This is the last word you hear on violence?

Arthur J. Goldberg:

Yes, in the cases before it.

And by the way, I should point out to you that while counsel —

William J. Brennan, Jr.:

You mean the last word you hear was from Florida courts?

Arthur J. Goldberg:

By the courts, except later, we’ll come to Fontainebleau, another case where the violence matter entered.

It’s not this case.

I want to point out also in light of counsel’s argument later about certain background of violence or whatever he calls it.

These are separate cases, mind you, heard for convenience.

Mr. Sibley, my learned friend here, at page 12 and 13 of the record, when he started to present these series of cases, said to the Chancellor, “The only distinction, Your Honor, that I can point out between the cases may be some specific acts of violence which will be applicable to the particular cases and not necessarily to all cases.”

Now, the Saxony order no. 1 affirmed, as you will see from the opinion of the violence, affirmed the Chancellor.

On the coercion aspect of the case, the Court said that that was a — that was an offense under the law of Florida.

And then they enunciated, as a matter of equity doctrine, I’m not too familiar with that base of equity doctrine, at least in my jurisdiction in Illinois, this had not been equity doctrine, that it was necessary to accept the sworn allegation as — for the — the Chancellor to accept the sworn statement as true on this point, absent an answer and absent proof to the contrary.

And on that basis, substantively, the Court reversed and said the injunction should have been issued, no answer hasn’t been filed at that time the matter was heard.

Then the Court went on to something new.

And here is — here is an important aspect of the subsequent chronology of these cases.

Despite Cothron and without reference to Cothron which said that there was no rule and the courts couldn’t give a rule as to prerequisites for picketing, and without distinguishing the Cothron decision, having disposed of the case on the coercion point, the Supreme Court of Florida went on and said, and I quote, “In order for picketing to be lawful, the union must establish that the employees had chosen it as their representative.

It must also inform the employer the object to be accomplished by the picketing.

It must afford to the employer a fair opportunity to engage in negotiations.

And finally, the picketing must convey information concerning the facts of the dispute.”

Hugo L. Black:

On what page of the record is that?

Arthur J. Goldberg:

This is on record page 20.

Now, this language is set forth.

Arthur J. Goldberg:

This — Record 18 and 20 it starts, Mr. Justice Black, on page 18 in the opinion and then goes on through 20 where the various prerequisites are now set forth.

Are you — mind you, it is important to know that when the strike was called, none of these requisites were in the law of Florida.

In fact, they were expressly vitiated by the law of Florida as against to it in the Cothron decision.

Now, the next day, in obedience to the mandate of the —

Earl Warren:

Mr. Goldberg, some of the Justices have been looking for — for that language and they don’t find it on 18 and 20.

Arthur J. Goldberg:

It starts page 18.

It said, “Without doubt, a — it’s first paragraph —

(Inaudible)

Arthur J. Goldberg:

“Without doubt, a labor organization has the right to engage in peaceful —

Earl Warren:

Yes.

Arthur J. Goldberg:

— picketing of (Voice Overlap) —

Earl Warren:

Thank you.

Felix Frankfurter:

What — what —

Arthur J. Goldberg:

— in order for such picketing.”

Felix Frankfurter:

What’s — 20, isn’t it?

That’s all but in 19 to 20, you said (Inaudible)

Arthur J. Goldberg:

Well, this is on the truth concerning the facts.

Felix Frankfurter:

Well, this is the allegation.

Arthur J. Goldberg:

This is the last —

Felix Frankfurter:

Yes.

Arthur J. Goldberg:

— this is the last one.

It is at the bottom — the last paragraph in the page.

It cannot be said that they conveyed information concerning the facts of the labor —

Felix Frankfurter:

Yes.

Arthur J. Goldberg:

— dispute.

I — I jumped at the various parts to piece out the — the — now, the next day, the —

Felix Frankfurter:

Before you — before you move on, did I — am I to infer from what you’ve said that that paragraph, the first of the paragraph on 18, is, so to speak, you made law by the —

Arthur J. Goldberg:

Yes.

I read —

Felix Frankfurter:

— by the Supreme Court —

Arthur J. Goldberg:

Part.

Felix Frankfurter:

— it’s part of its common law determination, isn’t that right?

Arthur J. Goldberg:

That is correct.

There is no statutory law.

William J. Brennan, Jr.:

(Inaudible) assuming the Florida court did change the (Inaudible)

Arthur J. Goldberg:

They have —

William J. Brennan, Jr.:

(Inaudible)

Arthur J. Goldberg:

They have a right to change the rule.

Later, I suggest the combination of changes of rules, which went on in the seven opinions, was such that it may well be that in the combination of changes which culminated in no picketing, due process was violated.

But at this moment —

Felix Frankfurter:

Not because of changes but because —

Arthur J. Goldberg:

No, not — the Court may —

Felix Frankfurter:

No, no, what they substantively laid down.

Arthur J. Goldberg:

What they substantively do.

The — now, we turn — and you will see the Chancellor, obedient to the decision of the Supreme Court, issued then a preliminary injunction.

And I want to point out the character of the injunction because we — this is the injunction which later became permanent and we attacked the injunction on various grounds in this Court as I shall later point out.

Felix Frankfurter:

Will you forgive me for going back to the criteria or whatever they call them?

Arthur J. Goldberg:

Yes.

Felix Frankfurter:

On that paragraph, “The Court professes the side cases,” which — which I know nothing, at — at least for two of their requirements.

Arthur J. Goldberg:

Yes.

Felix Frankfurter:

Treasury, Inc. — Treasure Incorporated against Hotel and North East Texas where they cite a Texas case.

But the earlier one seems to be a Florida case where they — you say that they were unjustified in citing the —

Arthur J. Goldberg:

In light of their statement in Cothron, their latest expression in 1952, I felt that that was controlling.

And in Cothron, they had used very straightforward language as you will later see from their other opinion where they say we must forthrightly face up to the fact that Cothron is inconsistent.

And then —

Felix Frankfurter:

How do you spell that?

That isn’t in your brief.

Is it there?

Arthur J. Goldberg:

Yes, it is.

C-O-T-H-R-O-N, Cothron.

Felix Frankfurter:

But anyhow, what does it do?

Arthur J. Goldberg:

Citation was there.

Felix Frankfurter:

I don’t find it in your main brief.

I may be wrong.

Arthur J. Goldberg:

It is in the main brief.

I gave you the reference.

Felix Frankfurter:

All right.

Arthur J. Goldberg:

59 So.2d 366 at page 369.

We’ve cited that in the brief at various points.

Now, so the next day a preliminary injunction was entered.

The preliminary injunction is set forth in the record at page 31 and 32.

And since part of our attack on the injunctions of the — first, the whole injunctional order and then various components of it, I wish to turn for a moment to that injunctional order.

And you will see that this is a broad injunctional order.

Page 31, starting at page 31, “The union is enjoined from picketing in the hotel and then, they are also enjoined by a separate restraint from publishing or causing to be published any statements to the effect of a strike, walkout or cessation of work is in effect at the Saxony Hotel or that the plaintiff refuses to negotiate or recognize the defendant as a collective bargaining agent.”

Then, they’re further enjoined from carrying any placards.

They’re further enjoined from molesting, interference or violence in effect.

I mentioned that because the restraint against broad publication is an issue in this case as well as picketing.

And this is not a — an academic or theoretical issue to be derived from the injunction from picketing, as you have seen in some other cases and commented on.

This is the case where the union had published advertisements in all the newspapers saying they had a strike against this hotel and handed out handbills into penalty of picketing.

And this restraint was designed to prevent a publication in newspapers of their dispute with the employer.

Felix Frankfurter:

Outside the State?

Arthur J. Goldberg:

Outside the State.

Potter Stewart:

Was there any —

Arthur J. Goldberg:

They published in New York, in Cleveland, Cincinnati, several States, Chicago, I’ve forgotten the exact places.

Potter Stewart:

Was there any contention made that the statements of these publications were either false or — or libelous?

Arthur J. Goldberg:

I — I find nothing — I find nothing.

I think counsel argues that they had no right to negotiate but the statements made is incomparable to the statement made in the picket sign.

This hotel refuses to negotiate with the union.

Felix Frankfurter:

At most exuberance.

Arthur J. Goldberg:

Pardon?

Felix Frankfurter:

At most exuberance thing.

Arthur J. Goldberg:

Most exuberant.

Later, I shall point out a change in the picket signs and statements or attempted statements, even more limited in character as we go through the history of this case in some of the later hotels.

The statement was changed to read as follows.

This hotel refuses to aid in determining its employees’ bargaining agent.That was the extent of the statement made later.

Now, if you will go to this next —

William J. Brennan, Jr.:

Out of curiosity, did (Inaudible)

Arthur J. Goldberg:

Yes, they were enjoined.

William J. Brennan, Jr.:

In North East Texas case?

Arthur J. Goldberg:

In — in North East Texas.

Felix Frankfurter:

Well, the Court couldn’t do more than enjoined the particular individual (Voice Overlap) —

Arthur J. Goldberg:

Individual.

Well —

Felix Frankfurter:

— nothing to do with it.

Arthur J. Goldberg:

But the — the union was involved and the — and officers of the union were involved.

Now, if you will turn to the next.

Now, at that point Sans Souci remains dormant until the — Saxony remains dormant until the final decree.

We now turn to Sans Souci and Sherry Frontenac.

They are the next two hotels.

And if you will look there, you will see what happened.

Thereto, they denied a temporary injunction on the same ground, no violence and the — the holding the — the other issue for hearing.

But — and — and when the Saxony case came down on May 27th, counsel on the coercion issue for the hotel union immediately tried to meet the decision of the Court by proof that there was no coercion of the employers to force people to join the union.

So he noticed the case for hearing on June 4th.

Now, the Supreme Court was notified of these because these other cases, Sans Souci and Sherry Frontenac were — were on certiorari in this Court.

And its response was an immediate one.

On June 1, without argument on that issue, the Supreme Court of Florida, by telegram, and it’s interesting to read what happened in Record 111 or the statement by counsel, Mr. — counsel for the hotels.

And this is the statement, “As Your Honors know the response to this telegram was a hurried meeting by the Court in which they direct to the clerk to wire Your Honors to enter these injunctions, and I believe such a wire was received by the members of the Court I am so informed.”

So the —

Mr. Goldberg —

Arthur J. Goldberg:

— Chancellor got a wire from the Supreme Court.

Mr. Goldberg, I don’t want to interfere with your argument but are you going to leave yourself time to argue the preemption issue?

Arthur J. Goldberg:

Yes, I’ll — I’ll try to infer you the facts if I can.

The — immediately, there was a — there was a decision of the Court then on the basis of the other cases, the base of Saxony reversing these injunctions.

And then there were — there was then a motion to vacate, and there were hearings in these cases as you will see from Sans Souci and Sherry Frotenac.

There were hearings then after being filed.

Now, on the hearing of these cases, the Chancellor heard evidence.

And he heard evidence trying to meet the dicta in the Saxony case, that they must represent somebody that the employer must know about it, that — that they must give the objects of what they were attempting to do and the signs were — were peaceful, signs were truthful.

And upon the hearing of the evidence by the Chancellor, the Chancellor entered orders in which he found again that the union had met the standards, which appeared by a way of dicta in the case.

In some of the cases, the union brought in their people into Court, and they testified that they were members of the union.

In other cases where this was objected to on the ground that it wasn’t the best evidence, the evidence of the people themselves they brought in their — their cards to show that they represented the people.

Now, you’ll notice that on May 25th, there was a secret election held in all of these — these hotels.

Single election was — they tried to get the companies to agree to a secret election, they refused.

They tried to get them to agree that a citizens committee would hold a secret election, they refused.

And they got a — outstanding radio commentator in Miami to hold a secret election carefully supervised.

And at this election, a majority — an overwhelming majority of workers in all of these hotels voted to support the union and support the strike.

It ran 2000 and something to 80.

And the brief contains a record reference to each election.

Now, having offered this evidence, the Chancellor having decided now that they had met the — the limitations of the Saxony case, the — the Chancellor refused to grant relief.

Then, in order to speed this chronology alone, then the cases went up again to the Supreme Court.

And the Supreme Court in the second Boca Raton case, which you’ll find on page 277 of the record, face this problem that Mr. Justice Frankfurter talked about.

They said that their holding in Sax was directly contrary to Cothron.

They had to face that frankly.

And they overruled Cothron.

And then, after the second problem, they said that you had a duty in showing that you represented the employees to show it to the employer and demonstrate to him by substantial evidence that you represented the employees.

Now, mind you, in Florida, there is no law protecting any employee against a discharge, yet his name is given to the employers.

Now, it was not quite clear that they went that far.

They said you must show that they represent the employees, not if you will shift, and I will eliminate some of the other developments but if you will shift down to the Versailles case, the other case that —

Earl Warren:

Before you get to that, may I just ask if these two cases, the Saxony and the Sans Souci were tried by the same chancellor?

Arthur J. Goldberg:

Saxony is not.

I do not believe — no, they were not.

Earl Warren:

Different.

Arthur J. Goldberg:

They were not.

But the different chancellors —

Earl Warren:

Yes.

Arthur J. Goldberg:

— came to the same result in the three cases.

Earl Warren:

Yes.

Arthur J. Goldberg:

Now, if you go to Versailles to complete the picture, and then, Mr. Justice Harlan, I will — I will talk about some of the illegal issues.

If you go to Versailles, you will see the extent to which this union then went.

The union went to this extent.

They were confronted with this other decision which said you must demonstrate to the employer what you represent.

They didn’t quite know what it meant.

But they went to the employer and they did follow.

Before they conducted any picketing, they went to the employer and they said number one, we would like a secret election.

Number two, here is a list of our demands.

There have been some questions of whether they had notice of the demand.

They gave him a written list of demand.

Three, these are all set forth, the — the notice are set forth in 310 of the record, the bargaining demands in 312.

They then said to the employer, “Here is an affidavit from a certified public account, which certifies that he has examined our records and checking them against the list of hotel employees.

We represent a majority of accountants certified who represent a majority of the employees at the hotel.”

The hotel countered by saying this, “As we read the decision, you have to prove this to our satisfaction.”

They said, “Here is the CPA affidavit.”

They said, “That does not prove our satisfaction.

What we want is the right to interrogate these employees.

In your presence of course, but interrogate.”

Now, mind you, in the first four case, three cases, where the employees had gone out on strike.

They’re all had been replaced.

The union said — was even willing to go this far.

They said, “If you interrogate the employees, would you recognize the union for those employees have say that the union represents them?”

Under the law of Florida, there is no majority exclusive representation rule.

You may represent the union for your members.

Arthur J. Goldberg:

And in fact, the settlements that have been made in many of these cases that are not here were for members only.

Felix Frankfurter:

What is the number of employees in Versailles?

Arthur J. Goldberg:

In Versailles?

The number of employees was 59 out of 75 employees, 59 designated the union under this affidavit.

That appears on Record 297 and Record 323.

No, Record 313 and Record 323.

Now, the employer turned down that offer and said that “We will only deal with you in effect that you represent a majority of the employees.”

And the union said, “Well, we’ll make you another offer, even though, under the law of Florida, you don’t have to recognize what we can deal for our members.

We will go to a secret election and if we don’t have the majority, we won’t ask for representation.”

That offer was denied.

There, the Chancellor affirmatively found and denied the injunction and affirmatively found in record 379 that they represented the majority and they had met all of the — what he thought was a Supreme Court standard and he denied the injunction.

That was later reversed on the basis of short opinion without discussion on the basis of the second Boca Raton decision.

Finally, there’s one other case which I want to mention very briefly and then I will move into the discussion.

San Marino, the Chancellor confronted with this argument to who represented whom, thought in the exercise of his equity power since there were no machinery provided in the Florida statute for elections.

He denied the injunction pending a secret — he grabbed the injunction pending a secret election by a commissioner appointed by him.

The hotels promptly went to the Supreme Court of the State.

And another one of its opinion, the Supreme Court reversed step section of the order appointing a commissioner.

But peculiarly enough that — in effect that section of the order granting an injunction until an election was conducted.

So they have the anomaly of an injunctional order that said you are enjoined from picketing until an election is conducted, but the Supreme Court tore down that part of the order which said there’s an election ought to be conducted.

Now, finally, in the final chapter in this unfortunate saga, there’s the final decision.

These were all temporary orders, so they had to go back.

Stipulations were made for final orders and there were all injunctions then.

Some of the injunctions were not as broad as the injunction I read to you, some only restrained picketing.

A number of them restrained picketing and publication.

Finally, it went back.

And all the cases were pending in the Supreme Court, but the Supreme Court did not decide those cases directly, but they decided the Fontainebleau which is a separate case.

And in that case —

William J. Brennan, Jr.:

(Inaudible) findings of violence?

Arthur J. Goldberg:

Yes, Fontainebleau, they found some violence.

And by the way —

William J. Brennan, Jr.:

(Inaudible) only one of these cases.

Arthur J. Goldberg:

There were some cases were there was evidence of violence and the trial court found violence —

William J. Brennan, Jr.:

(Voice Overlap)

Arthur J. Goldberg:

Well, we — we did not seek to review this finding of the trial court.

Casablanca was one, Sea Isle or Empress.

Those cases, we did not take up.

We eliminate it because we did not want to get in an argument about a finding.

William J. Brennan, Jr.:

They’re not — they’re not before us.

Arthur J. Goldberg:

They’re not before you.

William J. Brennan, Jr.:

And Fontainebleau is not.

Arthur J. Goldberg:

Fontainebleau was not before you.

But Fontainebleau is before you as a statement of loss in three cases were affirmed on the basis of Fontainebleau.

And I want to read you one paragraph in the Fontainebleau decision.

William O. Douglas:

Where are you reading now?

Arthur J. Goldberg:

I am reading from page 50 of the appendix to our brief which sets out Fontainebleau.

Now — and then it’s in the first paragraph.

And they talked about picketing, and I’ll read — no, they talked about the right to strike and then they go on and say, “Those sets requirement, this is as to a majority vote about the strike provision,” which I refer to later, which clearly couldn’t apply to an industry in commerce under the O’Brien decision of this Court.

But passing that, because that is not involved here.

Here is the reference to picketing, “It cannot be initiated however for spite or for reasons other than to accomplish a lawful purpose and then the law order and decently required that it will be done in an atmosphere conducive to reaching a result that is fair to the employer, the employees and the public.

If attempted in an atmosphere of violence, insinuation, bad fate, deception, force or “damned if I don’t show you” spirit, they would not be recognized as a means of adjusting labor disputes.”

Now, I suggest to this Court that since these cases were affirmed on the basis of Fontainebleau and since violence is not present in any of these cases, and on the fact in four of them, there is an expressed affirmance by the Supreme Court itself of Florida that no violence is present.

I suggest to you that if I read anything under the law of Florida, Florida is now saying that picketing conducted in a “damned if I don’t show you” spirit is — can enjoined and has no constitutional protection.

Felix Frankfurter:

I don’t know what that means.

Arthur J. Goldberg:

I don’t know what it means either.

Felix Frankfurter:

Well, but you can’t take that out of the context.

Arthur J. Goldberg:

I’m not taking it out of context.

I’ve read the paragraph as it stands.

Felix Frankfurter:

(Voice Overlap) take it and read it, but you can’t then, after having read it, say that the law of Florida is if you picket in a “damned if I don’t show you” spirit, that’s illegal and that’s part of collocation of —

Arthur J. Goldberg:

That —

Felix Frankfurter:

— phrase.

Arthur J. Goldberg:

— is part of a collocation.

But as applied to the facts of this case, I think some sign must eliminate the violence, the other part applies, I think it reflects a decision —

Felix Frankfurter:

I understand your argument.

Arthur J. Goldberg:

— that applies.

Felix Frankfurter:

Your — your argument is that the law was laid down in occasions within cruel and violence.

The specific cases before this Court are devoid of violence or even have an affirmative denial of violence.

And you argue that the law laid down in that case is not measure of what was to be the law in these cases.

Arthur J. Goldberg:

It is not and it —

Felix Frankfurter:

That is your statute.

Arthur J. Goldberg:

— should not be than that.

That is correct.

Felix Frankfurter:

All right.

Arthur J. Goldberg:

Now, I will now turn to the — to a brief (Inaudible).

I like to reserve a little time in rebuttal for my colleague, Mr. Feller.

We now turn to the questions presented.

On this record, the questions presented, it seems to me, are whether the State, in this case Florida, consistently with the Fourteenth Amendment may prohibit picketing by union engaged in an attempt to achieve union recognition and collective bargaining.

And in an industry this case, the hotel industry, where the objective sought to be achieved by the picket is not unlawful or contrary to any policy in the State.

The picket signs are truthful and the picketing is peaceful.

And as I read the decisions of this Court, the decision of the Court do not, in their various treatments of the subject, even suggest that picketing has communication that maybe more than communication.

But the picketing I described was communications picketing that they were seeking to an election or seeking collective bargaining can be constitutionally restrained.

Felix Frankfurter:

Mr. Goldberg, may I ask?

How many injunctions against which you complain are before us?

And would you mind stating where they are, the exact terms of the injunction?

Arthur J. Goldberg:

The exact — I can give you that.

I marked it on my chart.

The —

Felix Frankfurter:

Because that’s the really specific problem before us —

Arthur J. Goldberg:

They —

Felix Frankfurter:

— whether they return to that injunction can stand in the —

Arthur J. Goldberg:

All right.

Felix Frankfurter:

— light of this record, is that right?

Arthur J. Goldberg:

The injunction in Saxony is at Record 3132.

It was made permanent by Record 53.

Felix Frankfurter:

Was it changed when (Inaudible)

Arthur J. Goldberg:

No, it was not.

The injunction in — and that’s what I call a broad injunction, the — which I read, against publication to the record.

And Sans Souci is on page 98 and was made final at 291.

The record in Sherry Frontenac was — that was also a broad injunction.

The record in Sherry Frontenac was 543 and was made permanent in 570.

Charles E. Whittaker:

57?

Arthur J. Goldberg:

570, Mr. Justice Whittaker.

The record in Lombardy was 646 and was made permanent in 654.

William J. Brennan, Jr.:

Would you mind saying which are broad injunctions?

Arthur J. Goldberg:

Yes, these are all — the Saxony, Sans Souci and Sherry Frontenac are broad injunctions.

The record — the injunction in Lombardy was just narrow injunction.

It’s just against picketing not against publication.

The Miami Colonial, 666 was a temporary restraining order.

It was made permanent 797.

And that’s a narrow injunction.

The record in the (Inaudible) 815 made permanent 821.

And that is a narrow injunction.

The — the Del Monico was 844 and is 873.

The record in 881 — President Madison is 881 and was made final in 903.

And that was a narrow injunction.

The record in the injunction in Robert Richter was 994.

And that became a broad one again, although subsequent in time.

And it was made final in 1001.

The (Inaudible) the preliminary injunction was 1080 and became final in 1085.

And that was a broad injunction.

The record in Versailles, the — the injunction was 391.

Arthur J. Goldberg:

And I call that a limited broad injunction because that is the same as the broad injunction and enjoined from publishing refusal to negotiate but not from stating that a strike was going on.

The reason for that is that there was no strike going on in Versailles.

They didn’t call their people out.

They just put picket sign because at that point, they — they — when they call people out on strike they were replaced.

And by the way, and — when that took place they told their people to go in.

We don’t have any aspects of suppliers, other people.

They told their people to go in and protect their jobs.

And they were appealing to the public.

And this is the key to this whole dispute.

The appeals that were made were made to the public.

There were communications.

It was not in a flag or a signal.

William O. Douglas:

Are you planning to save any time for the question of the law?

Arthur J. Goldberg:

Yes, I will.

In the last quarters are — as indicated in the chart.

I will take just few more minutes.

As I read the decisions of this Court, this violates the constitutional protection of free speech.

As I also read the decisions of the Court, this violates the — the doctrine which is established in Guss that commerce here being present that the — the case was preempted.

And my opinion was adequately erased by the — by the parties.

It is clearly a Guss case even more a Guss case than Guss itself.

I’d like to ask you a question.

Assuming that your improper proof, which was rejected now in this preemption issue by the state courts, is accepted as prima facie sufficient, would that mean that we could decide the present — preemption issue up here or it have to go back —

Arthur J. Goldberg:

We don’t have to go —

— to the state — why not?

Arthur J. Goldberg:

We don’t have to go back because it was rejected not on the ground that it was an improper offer of proof but — but reject that on the ground that it was immaterial.

Do you mean the — the facts tendered in the proper were not — were not contested or not —

Arthur J. Goldberg:

No, they were not.

— controverted?

Arthur J. Goldberg:

The objection was made that it was immaterial and irrelevant to the issues of the case.

Earl Warren:

Mr. Goldberg, we’ve taken a lot of your time.

Earl Warren:

I’m going to give you five more minutes for rebuttal if you — if you wish it.And of course, counsel, we’ll give you an hour and five minutes for — for your side.

Arthur J. Goldberg:

Thank you, Your Honor.

Marion E. Sibley:

Mr. Chief Justice and members of the Supreme Court of the United States.

Earl Warren:

Mr. Sibley.

Marion E. Sibley:

It’s unfortunate that we found ourselves faced with the issue of fact before a court where, I should think, the only problem to be decided with one — be one of law.

I tried 18 or 19 of the 24 or 25 cases in which this union, moving into Miami, determined to organize with money but without members.

I do not recognize the cases I tried in the lower court from the presentation of it here.

A statement of the questions that we asked indicate a great convergence between our views only on the facts.

Our questions are whether a state court may enjoin picketing, (a) where the objective sought to be achieved by the pickets and the labor union they — they represent is unlawful and contrary to the public policy of the State, (b) the picket signs are untruthful, (c) the picketing is accompanied by acts of violence or near violence condemned by the state labor statute and is set in the background of coercion and tension.

Two, when to intensify the economic pressure generated by the unlawful picket line, the union engaged in false advertising may a state court lawfully enjoin all of the concerted unlawful and fraudulent acts which form a part of the union’s scheme to impose economic sanction upon the employer.

And three, and really the only legal question involved in this case, is whether or not the National Labor Relations Act protect the union from court action in its unlawful, fraudulent and violent picketing.

Now, it will be impossible for me in reciting and making a short reciting of facts to turn to each page of the record that had been to this Court.

I shall begin, if Your Honors please, at the beginning.

In January 1955 —

Felix Frankfurter:

May I — would you forgive me if I interrupt you?

Marion E. Sibley:

I — certainly, sir.

Felix Frankfurter:

You used three words, two words in a phrase, untruthful and violent when you — you spoke of false advertising.

Marion E. Sibley:

Yes, sir.

Felix Frankfurter:

Right?

Now, the inference you left on my mind, and I take it was left to be then was that this injunction, the constitutional validity of which is challenged or will base on determination either to conclusions from evidence, human or by affidavit or through findings of stipulations that there were untruthful utterances, violence and false advertising.

If that be so, it ought not to be too difficult to turn to the records and point out where there was such finding where there was such evidence.

Am I asking too much?

Marion E. Sibley:

Well, if Your Honor pleases, I do not take the Court is — is asking too much.

It has been admitted here that the false advertising consisted in the advertisement in all newspapers by the union that strikes were in progress at these hotels.

Felix Frankfurter:

Well, it was admitted that there was advertising not that it was false.That’s how (Voice Overlap) —

Marion E. Sibley:

Well, their answer, if Your Honor please —

Felix Frankfurter:

But I’m not — I — I don’t know, Mr. Sibley.

My point is that if the thing turns on falsity and violence, it’s one thing and easy of demonstration.

Marion E. Sibley:

Well, I think that is true, Your Honor.

And if the Court will turn, and I anticipated that question, by the record, if the Court will turn in the answer file, and this was the answer file in all of the cases, they had a stock answer that they filed, I think it would be found on page 23, paragraph (7) of that answer, denies that there was a strike in progress at the hotels.

Marion E. Sibley:

They, themselves, took that position that no strike — strike was in progress at the hotels.

We had taken the position that they had attempted to — this was our original position, they had attempted to strike without taking a secret vote as required by the Florida statute.

And they responded in their answer and we found it to be true afterwards that in truth, there was no strike whatever at the hotels.

In fact, it was established that in some hotels and some in these records, they didn’t even represent more employee in the hotel at the time to put the picket line up.

So obviously, there couldn’t be a strike.

Obviously, they pressure the picket line and drove those away who didn’t throw up away.

And the — the Supreme Court of Florida answers that and unless, unless this Court overrules a finding of fact in which this — they failed to bring up the record on which the Supreme Court of Florida pin its opinion.

Why, its — that could be concluded that they did not represent these people and they were not members of the union.

Felix Frankfurter:

What was that mean?

Earl Warren:

What case is that?

Felix Frankfurter:

What does that mean, they didn’t bring up the record?

Marion E. Sibley:

Well, I mean this, Your Honor, on page 15, if Your Honors will turn to it, of our brief.

And on 16, the Supreme Court of Florida finds in the Boca Raton case that they represented an insignificant number of the employees as shown by the designation cards put in by the union itself to establish that it represented the employees.

Earl Warren:

What case was that?

Marion E. Sibley:

The Boca Raton case, Your Honor, which governed six — governed two other cases that are here now.

Earl Warren:

Is that one of them that’s on appeal here?

Marion E. Sibley:

It was used to the authoritative to affirm two of the cases here or — or revised two of the cases here when the Court dissolve the injunctive order.

Now, let me explain.

Earl Warren:

Yes, I like to have you explain that to me.

Marion E. Sibley:

All right, sir.

Earl Warren:

But they’re not –those cases are not here?

Marion E. Sibley:

The Boca — yes, sir.

The Frontenac case and the Sans Souci case are here.

Earl Warren:

Oh, those — yes.

Marion E. Sibley:

They’re here, but this is the opinion in the Boca Raton case that were taken up as one appeal or as a consolidated appeal.

Their opinion was only written in the Boca Raton case and merely a per curiam in the other two cases that this is the authority for our —

Felix Frankfurter:

Were the facts — were the facts in the cases that are here which were affirmed on the basis of an — a case that isn’t here.

Is that right?

Marion E. Sibley:

That is correct.

Felix Frankfurter:

How do we know that the facts of the cases that are here were the cases of the — that was — that would be brought to the Supreme Court on which it — it wrote the opinion which guided the others?

Marion E. Sibley:

Well, of course, that is one of our positions that if they wish to demonstrate that the Supreme Court of Florida made an error of fact, they should have brought the records up here to demonstrate it.

Felix Frankfurter:

But are the cases which are before this Court — are the — are the records, the records, and the basis of which the injunctions were issued affirmed by the Supreme Court eventually, are the records in those cases here, those that we independently can decide on the basis of those records what legal conclusions follow?

Marion E. Sibley:

May I — it’s difficult to be — give you yes and no answer.

Felix Frankfurter:

Where is that?

Marion E. Sibley:

I — may I explain it?

Felix Frankfurter:

Of course I’ll appreciate that some questions can’t be answered.

Marion E. Sibley:

May I explain it?

The — the union commenced to throw up picket lines on April 13th and they came up one right after the other every few days.

Nine picket lines were up by April 28th and nine bills of complaint by nine separate hotels had been fired.

On April 28th, we commenced a consolidated hearing for the granting of the temporary injunction.Nine hotels involved, four trial courts involved.

Judges Carroll, Floyd, Cannon and Crawford, each one had either one or two of those cases.

They sat en banc.

They listened to all the testimony in all nine cases.

The plaintiffs’ testimony which took three days that was through on April 30th.

There was evidence of violence in some, evidence of small violence and others.

Two of those cases, the Casablanca and the Sea Isle were heard by Judge Kennedy.

He withdrew from the group and continued his hearings by himself and granted injunctions upon the ground of violence.

And I’ll get that in a moment.

The other seven continued with the three judges.

At the conclusion of our testimony, they moved that the injunctions be denied and they denied the injunctions upon the ground that they did not think sufficient violence had been shown and they reserved the right without prejudice to determine whether or not the picketing was illegal and unlawful or for an illegal and unlawful practice.

To that, we took certiorari to the Supreme Court of Florida with one record from seven cases.

And in part of the record in two cases that it had started off.

Am I — am I making myself clear?

The Supreme Court of Florida said, “We’re at basis because there’s no countervailing evidence shown and it’s obvious to us that the picketing has been thrown up without any opportunity ever having been afforded these people to even negotiate or to determine whether or not the union represented any of their employees.”

They came back down on that problem.

Now, it’s a little crazy, I thought.

When it came down, Judge Carroll immediately entered the injunctive order in compliance with the Supreme Court’s opinions, the Supreme Court of Florida opinion.

Judges Floyd and Judges Gordon had returned and one of the cases had been assigned to Judge Floyd in his absence.

Judge Gordon and Judge Crawford did not entered the injunctive order but set it down ahead of defendants’ testimony even though the Supreme Court had determined that injunctive order should be granted, temporary injunctive order should be granted.

The union wired to the Supreme Court, that’s the wire they’re talking about, asking that it hold up its order until such time as they could put their evidence in.

Marion E. Sibley:

And in response to that, the Supreme Court wired back, we’ve ordered an injunction, enter the injunction.

Now, those three judges who had denied the injunction initially immediately commenced hearings on June 4th.

Now, there are only six cases involved, two of which are here now.

I’m trying to answer your questions, if Your Honor please.

They — all the testimony and all of them are taken at one time before these judges.

These three judges immediately dissolve the injunctions again which they had entered in the — in response to the Supreme Court’s mandate or the Supreme Court’s order after they heard the testimony.

Now, the testimony on the second hearing is that when whether union comes in to prove it represents the employees.

Mind you, last April, many of the employees have been run off.

And the hotels to protect themselves have had somebody to operate their hotels.

Now, we’re coming to June —

Earl Warren:

Where does that — where does that appear in the record?

Marion E. Sibley:

WeIl, it was — I — it’s — I can — I can tell you in a moment, Your Honor.

That testimony commences about page 161, I believe, that hearing opens.

Now, it’s earlier than that.

That — transcript of that hearing commences on Saturday, January the — June the 4th at page 109 of the record.

That’s the second consolidated hearing for the Court.

Now, there, the union attempts to establish — it represented employees at the time the picket lines were thrown up.

Felix Frankfurter:

May I —

Marion E. Sibley:

Yes, sir.

Felix Frankfurter:

(Inaudible) As I understand you, the Supreme Court directed that injunctions be entered by the lower court and did I understand you to say that three of the judges decline or refused to act on —

Marion E. Sibley:

I — I don’t — if Your Honor please, I don’t put it exactly that way.

Felix Frankfurter:

Well, I —

Marion E. Sibley:

I — I say that the opinion was reached.

Judge Carroll, the next day, entered his injunctive order.

Judges Floyd, Gordon and Crawford didn’t act into those.

They immediately said it — for taking of testimony.

And we were insisting upon them complying with the Supreme Court’s order.

And then, why it was sent by the union?

We are about to take our testimony, will you withhold the effect of your order until we can do so?

Felix Frankfurter:

And the Supreme Court said no and yet, the judges went ahead.

Felix Frankfurter:

Is that right?

Marion E. Sibley:

No, the Supreme Court — no, the Supreme Court said, “Enter the injunctive orders,” and they were entered.

Then, they continued the taking of testimony to determine whether or not they would dissolve the injunction.

And they dissolve them after —

Felix Frankfurter:

It was still a temporary injunction, wasn’t it?

Marion E. Sibley:

Still a temporary injunction, yes.

Now, it attack that hearing that the union attempts to establish its representation of the employees at the time it put up picket line.

It brings in and they have said that there was no way that they could establish that.

They brought in a form of a written card they had been using for years, which their — the employees signs and in which he designates the union as a bargaining agent.

But those cards that brought in and that were put in evidence established in many of the cases that only represented one or two or three of the employees at the time that they threw up the picket line when those hotels would have 200 and 300 employees.

Now, that’s what the Supreme Court of Florida is referring to when it says from the designation cards which were before the Supreme Court of Florida, but which are not before the Supreme Court of the United States.

It is clear that they did not represent the employees.

That’s put upon me.

Earl Warren:

Suppose they did represent them at that time, would you be here?

Marion E. Sibley:

[Laughs] Your Honor, if they had represented the employees at that time, I doubt if I would have been here because I think picket lines will still be up.

Earl Warren:

You mean —

Marion E. Sibley:

All the unions of the hotel —

Earl Warren:

— you mean that the hotels would not have recognized —

Marion E. Sibley:

No.

Earl Warren:

— that even though —

Marion E. Sibley:

Oh, they would have signed.

Now, if Your —

Earl Warren:

— even though — no, may I ask, if you —

Marion E. Sibley:

Yes.

Earl Warren:

— if you please.

Marion E. Sibley:

Yes.

Earl Warren:

You mean that, if they had, you just made the point that they did not have a majority of the employees.

Marion E. Sibley:

Right.

Earl Warren:

Now, I ask you if they had had a majority of the employees at the time they put up the picket line, would the company have recognized them, your answer to me was —

Marion E. Sibley:

Oh, I —

Earl Warren:

— that the pickets would still —

Marion E. Sibley:

No, no.

Earl Warren:

— be there.

Now, did —

Marion E. Sibley:

I’m —

Earl Warren:

— you mean by that —

Marion E. Sibley:

No.

Earl Warren:

— that they would not recognize them or if you didn’t, would the company have recognized the majority?

Marion E. Sibley:

I’m sorry.

I did not understand, Chief Justice, your question.

There is — record will disclose on what’s — it does not disclose one conference at which court reporters were present, but it’s referred to at page 1166, I think, of the record, in which the Sea Isle Hotel wish to negotiate.

Earl Warren:

Which one?

Marion E. Sibley:

The Sea Isle.

It — that’s the one where the injunction was on the grounds of — of violence.

Earl Warren:

That’s not here.

Marion E. Sibley:

That’s not here, but it’s — a part of the record is here because it will — one of the consolidated hearings and goes all the record came up in the consolidated hearings because there was no division between one hotel and the other as the testimony came on.

And in the Versailles case, and what pages I am trying to see for the Court to follow me, conferences were held in which the union representative and one of the attorneys present here was present, I was present, in which the hotel indicated it wouldn’t negotiate if they represented a majority.

And we agreed.

I thought on a formula for the union to demonstrate it — who it represented.

And the conference wound up whether that — what I thought was an agreement that the gentleman who represent the union who is present here today and my law partner would go into some room and they would permit the employees to come in secretly and tell them, whether they want the union to represent them or not.

Now, that conference broke up with an understanding that the following Monday, it would be implemented or continued for the final waking up of details.

And that’s on page 354 of the record.

That’s the entire conference.

But there’s another one exactly like it.

These hotels had never refused to negotiate, and that is what the Supreme Court of Florida placed and came out with.

And this transcript of what transpired showed that I took the position, “If you — the counsel under the person representing the hotel took the position that “If you represent a majority, we will negotiate.”

And the union says, “Suppose we don’t represent a majority, will you negotiate?”

And I said, “If you don’t represent a majority and I don’t negotiate, will you just take down the picket line?”

And no agreement from them on that could be reached and I beg that that conference be read and I wish that other one would have to.

Felix Frankfurter:

Mr. Sibley —

Marion E. Sibley:

Yes, sir.

Felix Frankfurter:

— I need your help.

Marion E. Sibley:

Yes, I will do my best.

Felix Frankfurter:

I don’t understand this case.

Marion E. Sibley:

Sir?

Felix Frankfurter:

I need your help in trying — and I’m trying to understand this case.

Marion E. Sibley:

I’m sorry, Your Honor, I confused you.

Felix Frankfurter:

And what I want to know is this.

There are certain injunctions before us which are (Inaudible)

Marion E. Sibley:

Yes, sir.

Felix Frankfurter:

— as being beyond the power of the State of Florida to — to have issued.

Marion E. Sibley:

Yes, sir.

Felix Frankfurter:

What I want to — what I want to know is this.

Those injunctions are sustained by your Supreme Court, which is the court of (Inaudible) to decide them in order to — maybe you’ll be — in order — to be able to petition again.

Marion E. Sibley:

Yes, sir.

Felix Frankfurter:

Those injunctions are sustained by a summary per curiam opinion, is that right?

Marion E. Sibley:

Yes, sir.

Felix Frankfurter:

Therefore, we must look somewhere else for the basis for the Supreme Court’s action —

Marion E. Sibley:

Yes.

Felix Frankfurter:

— in that it referred, and that’s the Fontainebleau case, is that right?

Marion E. Sibley:

Yes, sir.

Felix Frankfurter:

Therefore, the Fontainebleau case is the — is the justification that your Supreme Court gives.

What I want to know is this.

That opinion was filed as I know February 1st, 1957.

Will you be good enough to state what the law of Florida either statutory or common law decision?

What’s the law of Florida was as to the legality — the conditions under which picketing is legal?

More particularly, in relation between the employees giving notice or representing etcetera, etcetera.

What was the law of Florida which determined whether picketing was legal under Florida law either by your statute or by prior decisions which governed Chief Justice Terrell’s opinion in the Fontainebleau case?

Marion E. Sibley:

If Your Honor pleases.

If I may say so, the labor law in Florida developed and was elucidated through litigation.

Marion E. Sibley:

This had not — this Court had not faced this type of assault —

Felix Frankfurter:

You mean this — this rehearing.

Marion E. Sibley:

The Supreme Court —

Felix Frankfurter:

I’m not talking about those.

Marion E. Sibley:

— Supreme Court of Florida.

Supreme Court of Florida.

Felix Frankfurter:

(Voice Overlap) Florida law.

Marion E. Sibley:

I — that’s what I’m talking.

The Supreme Court of Florida is what I’m talking about.

The Supreme Court of Florida had not faced a mass of labor litigation under its labor statute until this hearing.

Felix Frankfurter:

Now, was the statute?

Would you state that (Voice Overlap) —

Marion E. Sibley:

Yes.

The statute, I shall —

Felix Frankfurter:

What was these things that bounded by statute so far as Florida legislation?

Marion E. Sibley:

The statute, if Your Honor pleases, is found on page 2 of our brief, the —

Felix Frankfurter:

And

Marion E. Sibley:

— full statute.

Felix Frankfurter:

— state the requirement of that with —

Marion E. Sibley:

The —

Felix Frankfurter:

— so far as relevant to this case.

Marion E. Sibley:

The statute gives to the employee the right to self-organization and to bargain through a bargaining agent of its own or their own choice.

That’s what the statute affords them without — and makes it unlawful for anyone to intimidate or coerce employee to deny him that right.

That’s what law of Florida was at the time.

Felix Frankfurter:

Without particularization, without details.

Marion E. Sibley:

Without particularization, without details.

Felix Frankfurter:

Now, what was the decision of law?

Earl Warren:

May I — before you get to the decision, may I just ask you if those — anything in the law which required the employees to have a majority of this — of them and if they did — didn’t have a majority, would they still organize and represent those who did belong to the union?

Marion E. Sibley:

That question has not, Your Honor, been specifically answered —

Earl Warren:

All right.

Marion E. Sibley:

— as I understand it.

Earl Warren:

Yes.

Marion E. Sibley:

We have taken the position, and I think correctly so that collective bargaining means a bargaining agent for a unit and it requires a majority.

But it is not in the statute and I cannot —

Earl Warren:

Now, let me ask you this.

I — I assume that they did have a majority, could they bargain, under this Florida law, for all of the employees of the hotel or could they only bargain for themselves?

Marion E. Sibley:

They could only bargain for themselves, Your Honor, because they have the right to a statute and that — and that I think keeps the avenue of employment open both to union and non-union.

Earl Warren:

Yes.

Now — now I interrupted your answer to —

Felix Frankfurter:

Now, what I want to know is —

Earl Warren:

— Justice Frankfurter.

Felix Frankfurter:

— if the statute is silent on the question of a majority.

Marion E. Sibley:

Yes, sir.

Felix Frankfurter:

So your Supreme Court silent on that subject.

From my point of view, the Supreme Court of Florida has been entitled to lay down rules if it is a legislature of Florida.

What I want to know is did the Supreme Court of Florida, before this litigation arose, lay down any rule on that matter?

Marion E. Sibley:

No, sir.

Felix Frankfurter:

It is laid down a rule in this case?

Marion E. Sibley:

I so understood the Fontainebleau case to mean, and that is my interpretation of it, to me —

Felix Frankfurter:

All I got from your elucidation up to now was, that’s quite erroneously, that the Florida Supreme Court indicated and laid down guides for the lower courts of Florida for the Chancellors that there must be a majority in order to put the picketing, is that right or wrong?

Marion E. Sibley:

No.

It did not, Your Honor, in the first place.

Felix Frankfurter:

Well, what was it that it told — why didn’t it tell the lower courts to issue injunctions?

On what basis?

Marion E. Sibley:

On the —

Felix Frankfurter:

Violence?

Marion E. Sibley:

On — on the basis — the original position, Your Honor, was on the basis that the union did not represent the employees that had not demonstrated to the employees that represented the employees that had suddenly without any fair place for picket lines.

Felix Frankfurter:

By represent five out of 500 or a majority out of 500?

I’m just asking for something that ought to be answerable from what was written in the opinion of the Supreme Court.

I’m assuming oral argument is intended to enlighten the Court and does not require me to read your brief in order to understand what your argument is.

Felix Frankfurter:

I don’t mean to say I don’t need them read eventually but I do not want to read briefs, most of the time, before argument.

Marion E. Sibley:

Yes, sir.

Felix Frankfurter:

And I’m entitled to have the case made clear by oral arguments.

Marion E. Sibley:

Well, if Your Honor pleases, the Supreme Court of Florida had not laid down a rule in reference to other — in order to require the majority at the time that picketing commenced.

Felix Frankfurter:

Well, what did it lay down?

What kind of a rule did it lay down to guide the Chancellors?

Marion E. Sibley:

It laid down a rule that this — this union had moved in representing no one.

Felix Frankfurter:

Nobody.

Marion E. Sibley:

That’s right.

Felix Frankfurter:

All right.

Marion E. Sibley:

That was — that was the proof at the moment that —

Felix Frankfurter:

Now, does the record — did the — are the records in the cases that are before us bare out a justification of the injunction on that basis —

Marion E. Sibley:

Your Honor —

Felix Frankfurter:

— namely, that this union represented no employee.

Marion E. Sibley:

Your — if Your Honor pleases —

Felix Frankfurter:

I can understand the public policy.

I don’t mean I don’t understand it.

I both understand it.

Now, I think it’s constitutionally invalid for Florida to have such a policy.

But I want to know what it is —

Marion E. Sibley:

Well —

Felix Frankfurter:

— before I can tell whether it’s valid.

Marion E. Sibley:

If Your Honor pleases, at the Fontainebleau case, if Your Honor please, the Court laid its opinion for the injunction on two things.

One, there is violence and two, that the union did not represent the — a majority of the employees or a substantial number.

That’s what I —

Felix Frankfurter:

(Voice Overlap) found those two facts with reference to Fontainebleau doesn’t give any basis for me to find that those facts existed with reference to two other cases and it so happens to other cases that are along before this Court.

So you have to do this, if I may say so.

You have to establish that this record comes within the determinations of Fontainebleau even on violence or on a representation to (Inaudible)

Can you do that?

Marion E. Sibley:

I think I can do that, if Your Honor pleases, if I will have the time.

Felix Frankfurter:

And if you don’t do that, where are you?

Marion E. Sibley:

I beg your pardon?

Felix Frankfurter:

And if you don’t do that, where are you?

Marion E. Sibley:

Well, I’m here, if Your Honor pleases.

I’m in the situation where this — the States, this State has determined that this union moved in for the purpose of coercing employees to designate it as their bargaining agent where the policy of the State says they have no power to do that by picketing.

Felix Frankfurter:

And does your record sustain your claim that there was coercion in any sense that that term has legal meaning?

Marion E. Sibley:

Well [Laughs] that’s difficult to know what that term — what legal meaning that term has.

But as I understand it, where you’re driven off and where you’re afraid to — to cross a picket line and where your employees have to live upstairs in your luxury hotel in order to wait on the customers, that has some evidence of coercion.

Now, my time is — I want to have a moment or two —

Earl Warren:

I would just like to ask one more question —

Marion E. Sibley:

Yes.

Earl Warren:

— and that is whether there is any finding by any court in any of these cases that are before us that the union put a picket line without any — representing any employees in that institution.

Marion E. Sibley:

Well, all I can say, if Your Honor pleases, is that the record before the Supreme Court of Florida saw or established the fact by the designation cards put in evidence by the union itself which have not been brought here and which the Supreme Court of Florida points to as the basis for its conclusion.

Earl Warren:

Well, did they — did the Supreme Court, in words, find that at the time these people put up a picket line on any of these institutions that it did not have any members?

Marion E. Sibley:

No, sir.

It did not make such a finding.

Earl Warren:

Well, then — then what are we arguing about here when you — when you say that these people put up a picket line without any — representing any employees?

Where do we base it upon if we don’t base it upon — where do you base this on upon —

Marion E. Sibley:

I base —

Earl Warren:

— if this isn’t —

Marion E. Sibley:

I —

Earl Warren:

— finding of any court?

Marion E. Sibley:

I base it on this.

We are talking about different injunctions at different times.

Did — I never —

Earl Warren:

I — I asked you about anyone —

Marion E. Sibley:

Yes.

Earl Warren:

— just give me anyone.

Marion E. Sibley:

At the time that the Supreme Court ordered the injunctive orders originally, the sworn complaint and the evidence taken upon which an injunctive order maybe granted established that the union represented no one.

They put in no evidence in at that time —

Earl Warren:

But you —

Marion E. Sibley:

— and put no answer in it at that time.

Earl Warren:

— but you had a hearing after that and the Chancellor filed that those things were true.

Marion E. Sibley:

Well, all the Chancellors — the Chancellor found that they represented less than a majority and the Supreme —

Earl Warren:

Well —

Marion E. Sibley:

— Court found they represented insignificant number.

Earl Warren:

But less than a majority is more than nothing, isn’t it?

And you have been talking about nothing.

You have been — I feel — feel that [Laughs] — that the way as I read you.

Marion E. Sibley:

Well, I — I’m afraid Your Honor’s statement is —

Earl Warren:

I base —

Marion E. Sibley:

— absolutely correct.

Earl Warren:

I — I mean — I mean you’ve been saying if they had no — they had no — no employees at all that they represented.

Now, I’m trying to find out where — what you rely on to represent to us that at the time they put up these picket lines, they represented no one.

Marion E. Sibley:

Well, I can only call Your Honors’ attention in view of the fact the evidence is not here.

And it was not our job to — to demonstrate to the Supreme Court of Florida’s findings of fact are not supported.

Felix Frankfurter:

Well, if the evidence isn’t here, I must interrupt you, if the evidence isn’t here, speaking for myself, this Court is incompetent to set aside the judgment below, but is it true that the evidence isn’t here?

Marion E. Sibley:

Well, I think we demonstrate that in our brief.

If Your Honor will turn to page 17 when we quote from our brief in the Supreme Court of Florida, we point out a number of places this union claimed to represented or had designation cards on at the time the picket line grew up.

And that was based on the record that has not been brought here.

But that’s a statement they put in the record here and I referred to.

That’s all I can refer to.

Earl Warren:

But did you say there that they represented no one at the time these pickets were put out?

Marion E. Sibley:

Well —

Earl Warren:

Read it to us —

Marion E. Sibley:

All right.

Earl Warren:

— then.

Marion E. Sibley:

Those cards indicated the Algiers Hotel, who has not here, one employee had designated the union as its bargaining agent prior to the picket line.

In the Sans Souci Hotel case, two employees that this case that had 300 employees, two employees that visited the union prior to the picket line.

The Monte Carlo case, not here, none of the employees had designated the union prior to the picket line.

Marion E. Sibley:

And the Sorrento Hotel case, not here, three of the employees had designated the union prior to the picket line and the Sherry Frontenac Hotel, which is here, one employee had designated the union prior to the picket line.

And the Roney Plaza Hotel case, no employee had designated the union prior to the picket line.

Earl Warren:

Now, that is your statement.

What I would like to know is was there any finding to that effect by any court?

Marion E. Sibley:

Only the finding that I referred to that the Supreme Court of Florida said that it — an insignificant number.

Felix Frankfurter:

Was that after the proceedings to vacate the injunction?

Marion E. Sibley:

That’s after the injunction was vacated.

Felix Frankfurter:

That was after the injunction was vacated.

Marion E. Sibley:

Yes, sir.

Felix Frankfurter:

Now, what I want to know is this, and I can assure you that I haven’t the slightest notion what I think about this case at this point because my mind isn’t (Inaudible) based on Goldberg painted one nice picture and you painted another nice picture.

But it ought to be susceptible of some specific actions to what seems to be relevant questions, namely, has your Supreme Court laid down, since the statute hasn’t, that picketing presupposes, the right of picketing presupposes representation by the union of a majority of the employees.

And you said no to that, isn’t it not?

Marion E. Sibley:

That’s right.

Felix Frankfurter:

The next question is has your Supreme Court said, as a matter of law, picketing can be valid, must represent — must be represented by a union that has a substantial, whatever that may mean?

Marion E. Sibley:

It has so said.

Felix Frankfurter:

Now — and therefore, the question is —

Marion E. Sibley:

That’s so said.

Felix Frankfurter:

— whether a State can lay down the requirements of substantiality on the part of the strike and picketing.

Marion E. Sibley:

It has so said in —

Felix Frankfurter:

It has so said.

Marion E. Sibley:

Yes.

Felix Frankfurter:

And you say that’s the governing Florida principle and the question is whether that’s valid or invalid under the Fourteenth Amendment, is that right?

Is that your position?

Marion E. Sibley:

Yes, sir.

Felix Frankfurter:

Now, what I want to know is, next, out in the — these two fat volumes, I should think these — these volumes are so fat, would have all the relevant facts in them, do these — do these records contain the basis for determining whether, as a matter of fact, the Supreme Court was justified in saying it was not a substantial representation?

Marion E. Sibley:

It does not, Your Honor.

Felix Frankfurter:

That is there were — there were — there was evidence, there were affidavits, there were legal materials in these proceedings which have not been brought up before us, is that right?

Marion E. Sibley:

That’s correct.

That’s correct, Your Honor.

Felix Frankfurter:

In these two cases?

Marion E. Sibley:

Yes, sir.

Felix Frankfurter:

I don’t understand that.

Marion E. Sibley:

All right, sir.

I didn’t think, if Your Honor pleases, that it was our —

Felix Frankfurter:

It wasn’t your business.

Marion E. Sibley:

All right, sir.

Felix Frankfurter:

Certainly not.

Marion E. Sibley:

Your Honor has given —

Charles E. Whittaker:

Was unlimited —

Marion E. Sibley:

— five minutes additional, may I take it at this time?

I have my lights up and my time is up, and I — I don’t know what the —

Earl Warren:

No, no, no.

You have — you have much time left to this.

Marion E. Sibley:

Well, I have an associate —

Earl Warren:

Oh, oh, well, your division of time.

You may —

Marion E. Sibley:

All right, sir.

Earl Warren:

— you may make as you wish.

Marion E. Sibley:

All right, sir.

I — I would like to touch the legal phase of the —

Earl Warren:

Yes, you may.

Marion E. Sibley:

— problem, if I may.

Earl Warren:

You may.

Marion E. Sibley:

Now, I think that the Supreme Court of the United States in the (Inaudible) case has determined the first problem here involved of whether or not a court may enjoin picketing when it’s for an unlawful purpose even though the picketing is assumed to be peaceful.

I’m not going to spend any time on that.

Counsel recognized, I think it does govern the case.

But they expressed the hope in prayer that in some case in which there’s been a certiorari granted, there will be a — a retreat from that position or a change of that position.

I must take a moment to get to the Guss and the Fairlawn and the San Diego cases in which it is contended now that the National Labor Relations Act preempted the trial court from rendering an — an injunction and preempted the field or took from the trial court its jurisdiction to act.

Those cases, I think, are involved here.

And those cases present, really, the only substantial question as I understand it in the — as I see it in the record.

Marion E. Sibley:

Now, this presents an unusual problem because the trial court that heard this case, the Circuit Court, is a court of general chancery jurisdiction.

And it has the ancient jurisdiction, the traditional jurisdiction to enjoin anyone, union or otherwise that interfere unlawfully with another’s business and — and causes irreparable injury.

The problem here presented is when and how that traditional and historic chancery jurisdiction of a court of general jurisdiction is preempted and ousted.

In the Guss case, there was an admission that the — the employer was engaged in interstate commerce.

And I think, in that case, the Utah Board was actually enforcing rights under the Labor Act, National Labor Act.

Earl Warren:

Are these hotels in commerce?

So do you contend these are not (Voice Overlap) —

Marion E. Sibley:

They’re not inference.

Earl Warren:

They’re not.

Marion E. Sibley:

They are not, Your Honor.

Now, that presents the first problem.

William O. Douglas:

As I the read the record — would you mind turning to record page 53?

Marion E. Sibley:

Yes, sir.

William O. Douglas:

In that first paragraph, an affidavit by a man with the name of Smith has been tendered on these issues of commerce.

Marion E. Sibley:

Page 53, Your Honor?

William O. Douglas:

53 of the record.

Earl Warren:

53.

That’s the final decree.

Marion E. Sibley:

The final decree on (Inaudible)

Earl Warren:

That’s the final decree.

William O. Douglas:

Yes, final decree.

The recital in that is that that affidavit —

Marion E. Sibley:

Yes, I — I —

William O. Douglas:

— was — was objected to on the ground that it was immaterial and irrelevant.

Marion E. Sibley:

Yes, that’s correct.

William O. Douglas:

And the Court sustained the objection upon that ground.

Marion E. Sibley:

That’s correct, Your Honor.

William O. Douglas:

Now, why is it immaterial and doesn’t that present a question of law for us under the Guss case?

Marion E. Sibley:

Well, Your Honor, that is precisely the problem I was moving to when the (Inaudible)

Now, the problem here is when and how is the traditional chancery jurisdiction of this trial court ousted?

Marion E. Sibley:

When must the question be raised?

How must it be raised?

May it be waived?

Now, that’s a field in which there has been nothing said as far as I can find as to the method and manner of raising the problem.

William O. Douglas:

That’s a matter of state procedure, isn’t it?

Marion E. Sibley:

I beg your pardon?

William O. Douglas:

That would be a matter of state procedure.

Marion E. Sibley:

If it’s a matter of state procedure, then, Your Honor, made in court.

William O. Douglas:

But the — the — in the — in final injunction, the Court passes on that very issue here.

Marion E. Sibley:

If Your Honor will permit me, I will get to that.

Just give me (Inaudible) please.

I don’t mean to be (Inaudible) but my time is (Inaudible)

Now, the union in each case filed an answer not raising this question but seeking affirmative relief under the right to wake statute of our State and invoked the jurisdiction of the Court.

That answer was filed on May 9th in most of these cases.

The complaints were filed in April.

They were winning.

And this union has a record, and we pointed to it, of resisting it all the time that the National Labor Relations Board ever had jurisdiction of the hotel industry.

They have taken that position before the Board.

And we cite the case where this particular union took that position.

Then, they did not take the position in the state court.

As long as they were winning, as long as the injunctions were being denied, and they were winning and continuing to win, remember, if Your Honors please, we took all the appeals but the lesser.

We took the place 6, 8, 10.

They were happy with the jurisdiction.

They saw nothing in it to justify any contention that the National Labor Relations Board had anything to do with this, nothing in the pleadings for the first 60 days of this litigation ever suggested that we were in commerce or that the National Labor Relations Board had any jurisdiction.

In the cases before Judge Floyd, Judge Crawford, Judge Gordon, they never even filed this answer, this supplemental answer which was filed out of turn raising this question until after the cases were on appeal at the final hearing.

We stipulated that they had misfiled them.

And they could assume that they were filed as of June 28th.

Earl Warren:

That — and that would be timely, would it?

Marion E. Sibley:

Oh, no, sir.

Earl Warren:

Oh, no, your stipulation.

Marion E. Sibley:

No, sir, it would not.

Earl Warren:

It — it would not make them timely.

Marion E. Sibley:

No, it would not make them timely.

They have no right to file without leave of court for 20 days after the case becomes an issue.

I say true, this was much after that and was filed without leave of court.

Now, in the Fairlawn case, the — the Chief Justice has clearly pointed out, has clearly pointed out that throughout that litigation in the state court, there was always the question raised and urged in the National Labor Relations Board and the National — preempted the Court.

Justice pointed out.

And it was not pointed out, I assume.

And I — it was pointed out because this Court in its inception had jurisdiction of this litigation at this class of cases, but something must be done and must be done timely.

And in other cases, this Court had said there had been no suggestion when this question was raised that is frivolous or that is dilatory.

Now, I ask, I ask, a court of general jurisdiction who perceives in a case — in a class of cases that has jurisdiction made the union come in and litigate like the benefit of its decrees, like we find itself until the last moment and then filed in every case what they call the supplemental answer, and then we all stipulate the final decree so we’ll get the cases on with and then he says I don’t want to introduce an affidavit.

And we will stipulate that we’ll go in and get final decrees, final decree, you read on the record.

We’ve got an affidavit for a man named Smith.

And stipulate here that you — that you objected on the ground that it’s immaterial and irrelevant.

And the final decrees are drawn.

And the trial court, not a single trial court, except one, ever knew that this issue was involved in this litigation.

Earl Warren:

We’ll recess now.